Howard v. Howard

1

AUSTIN HOWARD v. LARISSA HOWARD

No. 641-2022

Court of Special Appeals of Maryland ^[**]

April 6, 2023

Circuit Court for Howard County Case No. C-13-FM-20-000785

Reed Leahy, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Battaglia, J.

After a five-day trial before Judge Timothy J. McCrone of the Circuit Court for Howard County, Austin Howard, Appellant, and Larissa Howard, Appellee, were granted a Judgment of Absolute Divorce. Judge McCrone also denied Mr. Howard's motion to take additional evidence, which was filed after he had orally ruled regarding the marital property and child access issues on April 15, 2022, but before a formal opinion and a judgment were entered on May 12, 2022.

Mr Howard appeals the denial of his motion, as well as various portions of Judge McCrone's ultimate ruling, including the $3,270,006 monetary award granted to Ms. Howard; the schedule for visitation with the three children, who, at the time of trial, were 6, 4, and 3, as well as the edict that each party would pay half of the marital home's $5,980 monthly mortgage during Ms. Howard's three-year use and possession; and the final computation of child support assessed against Mr. Howard.

Mr. Howard presents us with four questions on appeal, which we have renumbered and summarized:^[1]

I. Whether the trial court erred by denying Mr. Howard's motion to take additional evidence, which was filed after Judge McCrone orally announced his ruling but before the Judgment of Absolute Divorce was entered?

II. Whether the trial court erred by granting Ms. Howard a $3,270,006 monetary award, which represented 55% of the marital property?

III. Whether the trial court erred by ordering Mr. Howard an access schedule of four overnights every two weeks, when the Pendente Lite Consent Order had granted him five overnights?

IV. Whether the trial court judge erred in his calculation of child support by failing to attach the Maryland Child Support Guidelines to the Judgment of Absolute Divorce and by including the cost of private school tuition and therapy expenses in his calculation, and by ordering each party to pay half the mortgage on the marital home?

For the reasons that follow, we shall affirm the decisions of Judge McCrone.

Facts & Procedural History

Austin Howard and Larissa Howard were married on July 15, 2014 in California and had three minor children born in 2015, 2017, and 2019. From 2010 until December 2018, Mr. Howard was employed as a professional football player with the National Football League ("NFL").

On June 8, 2020, Mr. Howard filed a Complaint for Limited Divorce in the Circuit Court for Howard County, to which Ms. Howard filed a Counter-Complaint for Absolute Divorce. The parties, subsequently, entered into an Interim Consent agreement, which was reduced to a Pendente Lite Consent Order. The Order granted Mr. Howard access to his three children from Wednesday to Friday during the first week, and Friday to Monday, including a Tuesday night dinner, during the second week.

In December of 2021, Ms. Howard filed an Amended Counter-Complaint for Absolute Divorce, in which she asked the court to grant her sole legal and primary physical custody of her three children; to establish an access schedule of four overnights every two weeks with Mr. Howard and the children, without a Tuesday night dinner; child support in the amount of $1,915, which did not include private school tuition or therapy expenses; indefinite alimony; attorneys' fees; title to the marital home, or in the alternative, use and possession of the marital home for three years; as well as a monetary award granting her 60% of the marital property and an equitable division of retirement and pension plans. In response, Mr. Howard filed an Amended Complaint for Absolute Divorce, in which he asked the court for sole legal and primary physical custody of the children; that he pay the $5,980 monthly mortgage of the marital home during Ms. Howard's use and possession period, in lieu of child support; a "2-2-5" access schedule, in which the children would spend Mondays and Tuesdays with Ms. Howard, Wednesdays and Thursdays with Mr. Howard, and every other weekend with each of them; a sale, in lieu of a partition, of all real and personal property; attorneys' fees; as well as that Ms. Howard receive 30% of the marital property as a monetary award.

On February 14, 15, 16, and 18, as well as April 15, 2022, a trial was held before Judge McCrone. On the first day of trial, Mr. and Ms. Howard submitted a Second Amended Joint 9-207 Marital Property Statement ("Joint 9-207"),^[2] in which they listed, among other properties, that which they agreed was marital property, as well as its value. As marital property, they included Fidelity investment accounts titled under Mr. Howard's name, including Accounts Numbered 5524 and 5528,^[3] which they valued at $3,385,341 and $2,540,905, respectively.^[4] On the fourth day of trial, Mr. Howard's counsel stipulated on the record that his client's non-marital portions of Fidelity Account 5524 were $54,169.13 and $51,526.70 for Account 5528, for a total of $105,695.83 in non-marital property attributable to Mr. Howard, to which the attorney for Ms. Howard agreed; the judge accepted the stipulation.

On April 15, 2022, the last day of trial, Mr. Howard introduced a de bene esse deposition of Mark Doman, Mr. Howard's financial advisor for his Fidelity accounts, taken on March 23, 2022. During the deposition, Mr. Doman identified various statements for Fidelity Accounts 5524 and 5528, beginning on January 1, 2014 until January 31, 2022. Mr. Doman related that Ms. Howard had no access to the Fidelity accounts without Mr. Howard's authorization.

On the last day of trial, Judge McCrone orally announced his decision. He granted the parties joint legal custody of the three minor children, with primary physical custody and tie-breaking authority to Ms. Howard. He also ordered that she receive a monetary award of $3,270,006, representing 55% of the marital property, to be reduced to a judgment if not paid within 30 days; 50% of the marital share of Mr. Howard's NFL 401K and NFL Capital Accumulation Plan^[5] to be transferred, without creating a taxable event, to Ms. Howard; 50% of the marital share of Mr. Howard's NFL Pension "if, as, and when,"^[6] to be transferred to Ms. Howard; an access schedule of four overnights every two weeks for Mr. Howard with his children, including a Tuesday night dinner; and ordered each party to pay half of the $5,980 monthly mortgage on the marital home during Ms. Howard's three-year use and possession period. Judge McCrone then adopted Ms. Howard's requested child support amount of $1,915 but asked that each party submit revised child support calculations to take into consideration his various decisions regarding the monetary award and the access schedule.^[7]

On May 3, 2022, after Judge McCrone announced his oral ruling, but before he formally entered his judgment, Mr. Howard filed a "Motion to Take Additional Evidence" under Maryland Rule 2-311. Mr. Howard asked that Judge McCrone admit the February and March 2022 Fidelity statements for Accounts 5524 and 5528, as well as permit expert testimony to be adduced about the potential tax consequences of reducing the monetary award to a judgment, pursuant to Maryland Rule 2-534, to which Ms. Howard demurred.

On May 11, 2022, Judge McCrone denied Mr. Howard's motion, and on the following day, he entered the Judgment of Absolute Divorce, which mirrored in large part his oral rulings, and also included contribution for private school tuition and therapy expenses by Mr. Howard, for a total of $3,187 in monthly child support payments to be paid by him.

Mr. Howard filed this timely appeal.

Discussion

Denial of Mr. Howard's Motion to Take Additional Evidence

Mr Howard filed his motion to take additional evidence under Maryland Rule 2311, which provides: "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, and shall set forth the relief or order sought." In his motion, Mr. Howard argued that Judge McCrone should reopen the case to receive additional evidence, pursuant to Maryland Rule 2-534, which provides:

Motion to alter or amend a judgment-Court decision

In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial. A motion to alter or amend a judgment filed after the announcement or signing by the trial court of a judgment but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.

An appellate court reviews the denial of a motion to alter or amend a judgment for abuse of discretion. Miller v Mathias, 428 Md. 419, 438 (2012) (quoting RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 673 (2010)). A court abuses its discretion "where no reasonable person would take the view adopted by the [trial] court" or when it acts "without reference to any guiding rules or principles." In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal citations omitted). "With respect to the denial of a motion to alter or amend the discretion of the trial judge is more than broad; it is virtually without limit." Steinhoff v. Sommerfelt, 144 Md.App. 463, 484 (2002). "Appellate review of a court...