Scott v. Scott
| Decision Date | 01 September 1994 |
| Docket Number | No. 438,438 |
| Citation | 653 A.2d 1017,103 Md.App. 500 |
| Parties | Warren W. SCOTT, Jr. v. Jean A. SCOTT. , |
| Court | Court of Special Appeals of Maryland |
James E. Clubb, Jr., Ocean City, for appellant.
James W. Almand (Ayres, Jenkins, Gordy & Almand, P.A., on the brief), Ocean City, for appellee.
Submitted before BISHOP, ALPERT and FISCHER, JJ.
On May 6, 1992, appellee/cross-appellant, Jean A. Scott ("Wife"), filed a complaint for limited divorce from appellant/cross-appellee, Warren W. Scott, Jr. ("Husband"), in the Circuit Court for Wicomico County. In her complaint, Wife alleged desertion and cruelty. Husband denied the cruelty allegation, admitted leaving the marital home as of March 15, 1992, but denied such act constituted desertion. Husband filed a counter-complaint for limited divorce on June 10, 1992, alleging voluntary separation and constructive desertion. Wife denied both allegations. On March 24, 1993, Husband filed an amended counter-complaint for absolute divorce, alleging the same grounds in his original counter-complaint. Wife later amended her complaint to request an absolute divorce.
The trial court entered a pendente lite order giving Wife temporary custody of the parties' two children and use and possession of the family home and family use personal property. Husband received visitation rights, was ordered to pay child support, to provide health and dental insurance for the children, and to return certain valuables to Wife. The pendente lite order also mandated that the parties split evenly all medical bills not covered by insurance, the costs of all house repairs, and all mortgage payments and taxes on the family home. The trial court reserved its ruling with respect to alimony.
Wife answered Husband's amended counter-complaint and admitted voluntary separation, but denied constructive desertion. Wife also filed an amended complaint for divorce, "absolute or limited," alleging desertion and cruelty. Husband reasserted that he separated from Wife on March 15, 1992, but denied desertion and cruelty. The trial court held the divorce hearing on September 24 and 29, 1993. On September 24, the court orally granted Wife a divorce on the ground of desertion by Husband. On December 14, 1993, the court issued its opinion and order on the remaining issues involving marital property distribution, the monetary award, custody and visitation, child support, and alimony. Both parties appealed that order.
Husband and Wife raise numerous issues on appeal and cross-appeal, which we consolidate and rephrase for clarity:
I. Alimony
A. Did the trial court err in granting Wife alimony?
B. Did the trial court err in not granting Wife indefinite alimony?
II. The Monetary Award
A. Did the trial court err in its method of computing the monetary award?
B. Did the trial court err in not specifying the method of payment of the monetary award?
C. Did the trial court err in granting Wife a fixed dollar amount of Husband's pension "as, if, and when" received?
III. Child Support
A. Did the trial court err in its use of the Child Support Guidelines?
B. Did the trial court err in failing to order Husband to provide the children with health and dental insurance?
IV. Use and Possession
Did the trial court err when it failed to incorporate the pendente lite order relative to use and possession of the family home and family use personal property that the parties previously had stipulated would be controlling?
V. Sale of Jointly Owned Realty and Personalty
Did the trial court err when it failed to order the sale of all jointly owned property?
VI. Attorney's Fees
Did the trial court err in not awarding Wife attorney's fees and litigation costs?
Husband and Wife were married May 21, 1979. They had two children during their marriage, Alexander, born September 19, 1980, and Meredith, born February 26, 1986. Husband and Wife purchased their family home in Salisbury, Maryland during 1980 for $88,000. The parties increased the value of the family home to $138,000 by the addition of $50,000 in improvements. Both parties owned substantial property, real and personal, marital and nonmarital, and both were monetary and nonmonetary contributors to the marriage. According to Wife, in December 1991, Husband announced he was leaving the family home. He moved to Ocean City, Maryland on February 15, 1992, without Wife's consent. He returned to the family home, on March 14, 1992, spent one night at the home, and has continuously lived away from the family home since March 15, 1992.
At the time the trial court issued its opinion and order in December 1993, Wife was thirty-nine years old and Husband was forty-five years old. Wife works two jobs that give her an approximate annual salary of $27,500. She works full-time for the University of Maryland Cooperative Extension Service in Salisbury as an extension advisor. She also performs free-lance writing for various companies. Wife has been the primary caretaker for the children. Husband's annual salary is approximately $72,000, plus bonuses. He is a territory sales manager for CIBA-GEIGY Corporation, where he has been employed since 1974. CIBA-GEIGY provides Husband with a motor vehicle, health and dental insurance, pension plan, and a 401(k) savings plan. Husband also has two expense accounts. Additional facts will be discussed infra.
First we discuss the validity of the divorce orally granted to Wife on the grounds of desertion by Husband. The judgment of divorce must be properly granted; if not, then the issues raised on appeal would be moot. See e.g., Md.Fam.Law Code Ann., § 8-203(a)(1) (1991) () (emphasis added); id. § 8-205 ().
As indicated supra, the divorce hearing was conducted on September 24 and 29, 1993. At the end of the first day of the hearing, the following colloquy took place between the court and counsel for the parties THE COURT: All right. We'll recess until Wednesday morning [September 29]. Does nine o'clock suit everybody?
(Whereupon, the hearing was concluded).
(Emphasis added). The docket entry for September 24, 1993 reads as follows:
Court grants divorce, reserves ruling on marital property, and ordes [sic] all parties to reconvene on Wednesday, September 29, 1993 at 9:00 a.m. for continuation of hearing.
The court never issued a written order, decree, or judgment of divorce. Moreover, the court never indicated that it would issue a written order of divorce. There is no specific docket entry, aside from that reprinted supra, indicating that an order for judgment of divorce had been filed.
The hearing continued on September 29, 1993. The court heard testimony and arguments on the remaining issues of marital property distribution, the monetary award, custody and visitation, child support, and alimony. The parties were given ten days to submit post-trial memoranda relative to the issues reserved by the trial court. Both parties, in their memoranda, acknowledged that the court granted a divorce on September 24, 1993. On December 14, 1993, the trial court filed an extensive opinion and order relative to the property, custody, support, and alimony issues. The trial court began its discussion noting that "[t]his court orally granted a divorce on September 24, 1993 on the grounds of desertion by the Husband."
"[T]he threshold question that must be resolved is, simply put, 'the old, old question of when is a judgment a judgment.' " Davis v. Davis, 335 Md. 699, 709, 646 A.2d 365, 369 (1994) (quoting Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 238 F.2d 298, 298 (9th Cir.1956)). In Davis, the Court of Appeals discussed, at length, Maryland law relative to granting a judgment. A judgment is "any order of court final in its nature entered pursuant to these rules." Rule 1-202(m). Rule 2-601 dictates the manner in which a judgment is to be entered. In Davis, the Court of Appeals, reading Rules 1-202(m) and 2-601 in conjunction, determined that
two acts must occur for an action by a court to be deemed the granting of a judgment: the court must render a final order and the order must be entered on the docket by the clerk. These two required acts--rendition of a judgment by the court and entry of the judgment by the clerk--are discrete occurrences.
Davis, 335 Md. at 710, 646 A.2d at 370. "A judgment is therefore not granted until it is both properly rendered and properly entered." Id. Rendition of a judgment, the court stated, "is the court's pronouncement, by spoken word in open court or by written order filed with the clerk, of its decision upon the matter submitted to it for adjudication." Id. (emphasis added). The clerk's entry of the judgment on the docket is a purely ministerial act evidencing the judicial act of the court rendering the judgment. Id. We need to determine whether the court's oral pronouncement, in open court, "grant[ing Wife] the divorce," is a valid judgment of divorce.
Although a trial court's judgment must be an...
To continue reading
Request your trial
-
Schaefer v. Cusack
...concerning the custody, support, or visitation of a child of the parties...." This issue must be addressed. In Scott v. Scott, 103 Md.App. 500, 524-25, 653 A.2d 1017, 1029 (1995), this Court said, "The trial court never addressed Wife's request for fees and costs. Accordingly, we remand so ......
-
Potts v. Potts
...credited toward Husband's retirement, at the time he retires." Kelly, 118 Md.App. at 471, 702 A.2d 999 (quoting Scott v. Scott, 103 Md.App. 500, 519, 653 A.2d 1017 (1995)). Other jurisdictions have explained that the effect of an "if, as and when" pension is to allow the non-employee spouse......
-
Malin v. Mininberg
...only $9,600. Because "[a]limony must be considered when determining each parent's monthly adjusted actual income," Scott v. Scott, 103 Md.App. 500, 521, 653 A.2d 1017 (1995), we shall direct the court, on remand, to revise the allocation of the parties' respective contributions to the medic......
-
Harbom v. Harbom
...the court that, if it grants the exemption to the noncustodial parent, it must state its reasons for doing so. Scott v. Scott, 103 Md.App. 500, 522, 653 A.2d 1017 (1995). The savings to the party benefitting from the exemption must be considered when determining the party's income and apply......
-
§ 7.05 Using Marital Funds to Pay a Premarital Mortgage or Using Separate Funds to Pay a Mortgage Loan Obtained During Marriage
...denied 323 N.C. 174, 373 S.E.2d 111 (1988). [215] See Jandorf v. Jandorf, 100 Md. App. 429, 641 A.2d 971 (1994). Cf., Scott v. Scott, 103 Md. App. 500, 653 A.2d 1017 (1995) (discussing a new statute which applies to all actions filed after October 1, 1994).[216] See Stevens v. Stevens, 651 ......