Wenger v. Wenger, 722

• Decision Date: 07 June 1979
• Docket Number: No. 722,722
• Citation: 402 A.2d 94,42 Md.App. 596
• Parties: Charles Earl WENGER v. Susan Wickersham WENGER.
• Court: Court of Special Appeals of Maryland

Page 596

42 Md.App. 596

402 A.2d 94

Charles Earl WENGER v. Susan Wickersham WENGER.

No. 722.

Court of Special Appeals of Maryland.

June 7, 1979.

Allen J. Kruger, Washington, D. C. (argued), with whom was Paul J. McGarvey, Washington, D. C., on the brief, for appellant.

Robert R. Michael, Bethesda (argued), with whom was John V. Long, Washington, D. C., on the brief, for appellee.

Before MOYLAN, COUCH and MacDANIEL, JJ.

MOYLAN, Judge.

This appeal puts squarely before us the proper function of the Chancellor vis-a-vis a Report and Recommendation of a Domestic Relations Master. At issue specifically in this case is the amount of money to be awarded in 1) child support pendente lite and 2) alimony pendente lite. The Domestic Relations Master made initial recommendations in these regards. The Chancellor raised both amounts. The extensive testimony taken in a hearing before the Domestic Relations Master and the extensive findings of fact made by him were such that the evidence was legally sufficient to support either the lower award or the larger award. Neither the determination of the lesser figure nor of the greater figure represented an abuse of discretion so as to require reversal.

The question is clearly one of who has the ultimate discretion. If the Chancellor may override the recommendations of the Master only where the Master was clearly erroneous in his findings of fact or abused his discretion, the Chancellor here was wrong. If, upon the other hand, the Chancellor, based upon his own findings of fact or upon the findings of fact made by the Master, may exercise his own discretion as to the ultimate amount of the awards, the Chancellor here did not abuse his discretion and will not be reversed.

The Appellant, Charles Earl Wenger (Husband), and the Appellee, Susan Wickersham Wenger (Wife), were married on July 15, 1967. Two children were born of that marriage, a girl and a boy, who at the time of this litigation were eight and seven years old, respectively.

On July 22, 1977, the Wife sued the Husband for an absolute divorce, for child custody, child support and alimony, the last three on both a pendente lite and permanent basis. The first procedural step was a Show Cause Order directed to the Husband inquiring why he should not comply with the pendente lite relief prayed. On September 18, 1977, the Husband filed an answer. On December 28, 1977, the issues of pendente lite custody, child support and alimony came on for a hearing before Domestic Relations Master Louis Cohen. Because of the length of the testimony, the hearing could not be concluded in a single day and was continued until March 29, 1978. On May 2, 1978, the Report of the Domestic Relations Master was filed.

In reviewing the Master's Report, it will assist later analysis if we keep distinct his five pages of "Findings of Fact" and his 1/2 page of "Recommendations." As we shall discuss more fully, the degrees of deference due the two functions of the Master that is, the fact-finding function and the recommending function differ markedly. Based upon his findings, the Master recommended that temporary child custody be awarded the Wife. The Husband does not dispute this recommendation. Based upon his findings, the Master recommended that child support pendente lite be in the amount of $600 per month. The Husband took exception to this, claiming the figure to be excessive. The Wife also took exception, claiming the figure to be inadequate. Based upon his findings, the Master recommended that the Wife be denied alimony pendente lite. The Wife took exception to this.

The Report of the Domestic Relations Master, together with the exceptions filed thereto by both Husband and Wife, came before Judge Stanley B. Frosh, sitting in Chancery for Montgomery County. Judge Frosh did not find it necessary to convene a hearing for additional or de novo fact-finding. He proceeded to fashion his ultimate decree on the basis of the Report and its findings of fact, the exceptions taken to that Report and "all relevant facts." The option of not convening a hearing is made clear by Rule S 74.f.4 of the "Court Rules Sixth Judicial Circuit of Maryland," which provides, in pertinent part:

"Upon the filing of exceptions pursuant to this section, the proceedings shall be referred to the Court. The Court shall then rule upon exceptions on the record, unless it shall determine that a hearing is required, in which event the Court shall refer the proceedings and the exceptions to the Assignment Office for the scheduling of a hearing on the exceptions and the notification of counsel." (Emphasis supplied)

The propriety of this option was affirmed by us in Rand v. Rand, 33 Md.App. 527, 365 A.2d 586 (1976), Vacated on other grounds, 280 Md. 508, 374 A.2d 900 (1977), where Judge Menchine said for us, at 33 Md.App. 535, 365 A.2d at 59:

"Accordingly, we see no illegality or impropriety in the enactment of a local rule leaving to the discretion of the trial court the question whether a court hearing upon the exceptions is necessary or desirable."

In making his ultimate decision on the question of child support pendente lite, Judge Frosh made it very clear that his factual predicate was "the record" made before the Master, as well as the Report of the Master and the Exception taken to it:

"The Court has examined the Report, Exceptions and all relevant facts in reaching its decision. The Court is of the opinion that the record reflects the actual needs for the support and maintenance of the minor children exceed the amount determined by the Master and that the Husband can and should contribute, Pendente lite, the sum of $900.00 per month and that The Master clearly erred in his recommendation." ¹ (Emphasis supplied)

We note at the outset that the record made before the Domestic Relations Master was ample to support either the Chancellor's figure of $900.00 per month or the Master's figure of $600.00 per month. Itemized monthly expenses for the children tended to show a monthly need of $300.00 for anticipated rent;. $236.00 for food; $120.00 for clothing; $78.00 for medical needs; $51.00 for transportation; $116.00 for recreation; $68.00 for life and accident insurance; $5.00 for telephone; $22.00 for incidentals; $250.00 for child care; $40.00 for school supplies; $8.00 for gifts; and $105.00 for dental-orthodontia needs, a total of $1399.00 per month. The Master concluded that the "needs appear inordinate." He made a "reasonable readjustment of the needs of the children" so that they should not exceed $600.00 per month. Part of the inevitable balancing was the net monthly income of the Husband. In addition to the salary of the Husband, substantial assets were shown in him the ownership of nine warehouses. The Chancellor balanced the Husband's ability to pay against the need of the children and came up with $900.00 per month, which was also substantially below the $1399.00 per month claimed by the Wife. Both the Chancellor's figure and the Master's figure were within the legitimate discretionary range. Provided only that the right officer of the court make the determination, either determination would be upheld upon appellate review.

In making his ultimate decision on the question of alimony pendente lite, Judge Frosh again made it very clear that his factual predicate was "the record." He awarded the Wife $300.00 per month as alimony pendente lite.

"As to the issue of alimony Pendente lite, the Court finds that The Master erred ² in his recommendation in denying alimony and that the Plaintiff has actual need for personal support. Based upon the record's description of Defendant's actual assets, the Court finds that Defendant has the ability to pay alimony, Pendente lite, to Plaintiff in the sum of $300.00 per month." (Emphasis supplied)

Once again, we note that the record made before the Domestic Relations Master was ample to support either the Chancellor's figure of $300.00 per month ($926.00 minus $660.00) or the Master's figure of zero ($705.00 minus $720.00). The Wife showed monthly expenses of approximately $926.00 for herself and claimed a net monthly income of $660.00. Using her financial statement for the first 11 months of the year and then dividing by 11 the Master concluded that the Wife's monthly income was $720.00. The Master chose to discount a $200.00 per month figure for anticipated income tax on the alimony and disallowed a $25.00 per month figure for life and accident insurance. The Chancellor allowed these figures to enter into his own calculation. Once again, provided only that the right officer of the court make the determination, either determination would be upheld upon appellate review as not being an abuse of discretion.

The appellant, articulating it most explicitly in his reply brief, seeks to analogize the Chancellor vis-a-vis the Master to an appellate court vis-a-vis a trial court:

"(T)he Chancellor set aside the decision of the Master without showing that the Master's findings were clearly erroneous. At a minimum, the Chancellor should be required to make the requisite showing that the Master's findings were clearly erroneous before setting them aside.

The 'clearly erroneous' standard of review set forth in Bris Realty is the same as that under Maryland Rules 886 and 1086 applicable to appellate courts. Since there are few reported cases on the application of the standard to the relationship of master and chancellor, however, and there is an abundance of case law under Rule 1086 applying the standard, Rule 1086 case law is cited as analogous."

The appellant, in reply brief, goes on:

"Furthermore, the function of the reviewing court (in this case, the Chancellor) is 'not to determine whether, on the evidence, (it) might have reached a different conclusion, but rather to determine from the evidence, and the proper inferences therefrom whether it was legally sufficient to warrant the finding' of the Master."

Despite the...