Brown v. Brown

5 A.3d 1144

195 Md.App. 72

Samuel J. BROWN

v.Bernice D. BROWN.

No. 1015, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Sept. 30, 2010.

Joel R. Zuckerman & James S. Maxwell (Maxwell & Barke LLC, on the brief) Rockville, MD, for appellant.

Linda Haspel (Haspel & McLeod, PC, on the brief) Rockville, MD, for appellee.

Panel: HOLLANDER, EYLER, JAMES R., and LAWRENCE F. RODOWSKY, (Retired, specially assigned) JJ.

HOLLANDER, J.

This appeal arises from divorce proceedings in the Circuit Court for Montgomery County involving Samuel Brown, appellant, and Bernice Brown, M.D., appellee. Followinga trial in May 2008, the court issued a Memorandum and Orderdated May 23, 2008, granting appellee the following: an absolute divorce under §§ 7-103(a)(7) and (8) of the Family Law Article ("F.L.") of the Md.Code (2006 Repl.Vol.); ¹ a monetary award in the amount of $215,000; attorneys' fees in the amount of $12,500; and the transfer to appellee of title to the parties' residence.²

On appeal, appellant presents four issues, which we quote but have reordered:

1. Whether, under Family Law Article § 8-205(a)(2)(iii), the Divorce Court lacked authority to transfer a jointly-owned former marital home the parties agreed was to be treated as non-marital, given that the statute provides that the transfer must be ordered "as an adjustment of the equities and rights of the parties concerning marital property."

2. Whether the value set by the Divorce Court for the entity called Stone Development, LLC, jointly-owned by the parties, solely based upon an interrogatory answer by husband reciting that a Wall Street Journal Online website estimated the value of an LLC Property at $259,621, should be set aside as clearly erroneous and not reasonably representative of the value of the parties' interest in the LLC.

3. Whether the Divorce Court abused its discretion and/or erred as a matter of law by granting a monetary award to wife in excess of the value of the marital property the Divorce Court itself determined was titled in the name of husband, resulting in wife's receiving more than what the court determined was the value of all of the parties' marital property.

4. Whether the Divorce Court abused its discretion by awarding attorneys' fees to be paid by a jobless, virtually penniless husband, to a cardiologist wife the Divorce Courtfound possessed non-marital property in excess of $1,000,000.

For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings.³

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on June 1, 1999. Appellee is a cardiologist and appellant is an attorney licensed to practice law in Texas. No children were born to the union. The parties separated on or about May 19, 2007. On June 6, 2007, appellee filed a Complaint for Absolute Divorce. As of the trial in May 2008, appellant was fifty-four years old and appellee was fifty years of age.

The court issued a Scheduling Order on August 28, 2007, establishing a discovery completion date of December 21, 2007. On October 26, 2007, appellee noticed appellant's deposition for December 12, 2007. Appellant moved for a protective order as to his deposition, which appellee opposed. On December 6, 2007, the court (Harrington, J.) issued an Order denying appellant's motion, ordering him to attend his deposition and to provide appellee with all requested discovery within three days. Nevertheless, appellant failed to appear for his deposition or produce the requested discovery. Consequently, appellee filed a Motion for Sanctions and Request for Default Judgment on January 17, 2008, which appellant opposed. On February 29, 2008, the court entered an Order that "prohibited[appellant] from introducing into evidence or referring to any document which was requested by Plaintiff," and from "making a claim for attorneys' fees, alimony, or a monetary award." It also awarded reasonable attorney's fees to appellee, in "a sum to be determined at the merits hearing after Defendant has the opportunity to be heard."

Pursuant to Maryland Rule 9-207, on May 1, 2008, the parties filed a Joint Proposed Statement Concerning Marital and Non-Marital Property ("Joint Statement" or "9-207 Statement"). The parties' residence, located at 15009 Notley Road in Silver Spring, was owned as tenants by the entirety ("TBE") but was listed on the 9-207 Statement as "non-marital." The parties agreed, however, that title was "Joint." We shall discuss the 9-207 Statement in more detail, infra.

Trial commenced on May 7, 2008 (Rubin, J.). Appellant did not appear because, according to his lawyer, he was incarcerated on "an outstanding warrant stemming from [an earlier] domestic violence incident." Appellant's lawyer indicated that he was "waiving" appellant's "appearance" and "ready to move forward."

Appellee testified that she is a physician and was the sole financial contributor to the marriage. Describing appellant as "extremely abusive," Dr. Brown stated that, "throughout the marriage, Samuel J. Brown abused me physically, mentally, verbally and emotionally," and asserted that "[t]he incidents are too numerous to mention." According to appellee, appellant repeatedly "humiliated" her in "public places" and "criticized and denigrated [her] in the presence of others." She also stated that "every single day" the parties had "an argument about something. He would get ticked off about something .... he would get mad at me at the drop of a hat.... It was like a daily thing." Therefore, when the parties separated, she "felt like a weight had been lifted ... off [her] shoulders."

Appellee described in detail numerous incidents of physical and verbal abuse during the marriage, which "destroyed her spirit." She said: "I was just existing.... He destroyed my happiness, and there was no joy in my life." For example, appellee recounted ⁴:

We were at the hotel [in August 1999] and we had an argument, and during the argument, he backhand slapped me across my face and he split my lower lip, and I tried to get to the phone and, again, he prevented me from making a call. And he prevented me from leaving the hotel room.

Appellee also recalled an episode of domestic violence that occurred in November 1999:

I was sitting on the sofa and I was watching television and he asked me to come to bed and I told him that once that show was over that I would come up. It was only about 15 minutes and he said, come to bed now. And I said I'd be up, you know, after this is over. I just wanted to see the end of it.

And then he grabbed my arm, and I fell to the floor and he dragged me from the family room, across the kitchen floor, into the hallway at the foyer and he threw my body up against the wall and he demanded that I get up. And I was afraid to get up because I thought he would just push me again. So I stayed there and then he went and got a pitcher of water and he dumped it on me.

With respect to an incident in 2000, appellee testified:

I was sitting down on the sofa with my laptop doing some work and he came into the room and he was talking to me and I continued to look at the laptop. And he yelled at the top of his voice, why I would not look at him when he was talking, and he came over and he slammed the computer top down, and it almost caught my fingers. But I jumped back in time.

And I had some papers beside me and he took those papers and he just flung them across the room. And then I got up to get the papers and he pushed me and I fell backwards. And I had my glasses on. He grabbed the glasses off of my face and he flung them.... And he prevented me from making a phone call.

Dr. Brown also described an incident that occurred on June 24, 2004, when appellant became "enraged" about a bill. Appellee claimed that appellant repeatedly pushed her, shefell, and he prevented her from calling 9-1-1. As a result of that incident, appellee obtained a temporary protective order on June 25, 2004.⁵

In addition, appellee testified to an incident on May 19, 2007, stating:

He attacked me in the exercise room. We had had, he had started this bizarre argument about the smoke detector battery. He had changed it and the battery that he removed from it was different from the one that he had placed in it before, so he asked me had another man come into the house and replaced it.... And then he got into my face and he was saying, shut your big fat mouth.... And then he just lost control. He shoved me so hard that I went backwards into the Bowflex machine and then he yelled at me to get up and then when I got up, he started strangling me. And I screamed and he had come to sit down. I sat on a bench and he pushed me off the bench and when I was on the floor, I felt pain in my back and so I went and looked in the mirror and I saw a lot of bruises on my back and I saw that my finger was cut.

Appellee was examined at Holy Cross Hospital on the same date.⁶ She obtained a final protective order against appellanton June 21, 2007. ⁷

According to appellee, appellant "contributed nothing" to the marriage, monetary or non-monetary. She asserted: "The sole contributor was myself." Appellee explained that, since the marriage in 1999, she paid all of the mortgage payments for the parties' home from her salary, in the amount of $2,089.89 per month, as well as all of the real estate taxes. Appellee also paid all of the mortgage payments after the parties separated. In addition, appellee claimed that she "did all of the laundry.... Some cooking. General upkeep of the house," while appellant only cooked "sporadically." ⁸

Because appellant is not licensed to practice law in Maryland, appellee "suggested [to appellant] that he could do the medical billing for [her] medical practice." She stated: "He did the medical billing for [her] cardiology practice sporadically from 2000 to 2004," as well as "the first couple of months of 2005." She continued:

That stopped because I found out that he wasn't doing it properly. He was not following-up on

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