Voluntary out-of-home placements: Considering the child’s best interests. Page 3 Blended families and the challenges of asset distribution. Page 4 Montgomery County divorce attorney disbarred for ‘intentional dishonesty’ Page 6
Vol. XXXVII, No. 4
TheDailyRecord.com/Maryland-Family-Law
200 St. Paul Place Suite 2480
Baltimore, Maryland 21202
Main Number: 443.524.8100
Suzanne E. Fischer-Huettner
Managing Director
Kendyl Kearly
Editor
Patrick Brannan
Managing Editor
Contributing Writers Hope Keller, Ian Round, Dan Belson
Maryland Family Law (ISSN 2373-7255) is published monthly (12 issues per year) by Bridgetower Media, 200 Saint Paul Place Suite 2480, Baltimore, MD 21202. The standard Digital+Print subscription is $478.80 per year. Periodicals postage paid at BALTIMORE, MD 21233-9998, and additional entry offices.
POSTMASTER: Send address changes to Maryland Family Law Update Subscription Services, PO Box 494, LINCOLNSHIRE, IL 60069-0494
To order a subscription go to: https:/thedailyrecord.com/ maryland-family-law/subscribe/ or call 800-437-0916 or by email: support@bridgetowerhelp.com.
To renew. change your address or to temporarily stop service. go to: https:/thedailyrecord.com/maryland-family-law/ manage-account-fc/ or call 800-437-0916 or by email support@bridgetowerhelp.com.
Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: Voluntary out-of-home placements: Considering the child’s best interests
4 Cover Story: Blended families and the challenges of asset distribution
6 In the News: Montgomery County divorce attorney disbarred for ‘intentional dishonesty’ 7 Family Law Digest
Voluntary out-of-home placements: Considering the child’s best interests
In child welfare, “‘[c]ustody’ means the right and obligation, unless otherwise determined by the court, to provide ordinary care for a child and determine placement.”
Furthermore, “[e]mbraced within the meaning of ‘custody’ are the concepts of ‘legal’ and ‘physical’ custody.”
Maryland law defines a custody determination as “a judicial decision, order, or instruction that relates to the custody of a child or to visitation rights.”
In child welfare matters, enveloped in custody concerns are the questions regarding the “placement” of a child.
When the local department of social services (department) becomes involved in a child welfare case, the caseworker must determine if the child is safe in their current circumstances by completing Maryland’s Safety Assessment for Every Child.
If a determination is made that a child is in an unsafe situation, the department must either develop a Safety Plan with the child’s parent or caregiver or remove the child and place the child in foster care or with approved kin.
The Safety Plan form used by the department contains the provision that may require “[t]he caregiver(s) [to] place the child outside the home (formal voluntary placement).”
The meaning of the language and the department’s authority to place a child outside the home under a Safety Plan is unclear.
Voluntary placements are governed by Maryland regulations and involve time-limited, binding, written agreements between the department and a parent who is anticipating a hospitalization, incarceration, or other temporary
JOAN
LITTLE
Child Advocacy
circumstances that impact parenting.
When the department uses the Safety Plan provision requiring a parent to relinquish physical custody of their child without the court’s involvement to avoid removal of the child, that placement does not always meet the conditions of a voluntary placement pursuant to COMAR, in that there is no binding written agreement or time limit.
For example, a mother may come to the attention of the department because, on occasion, her mental health challenges have rendered her unable to care for her child, and the child’s school reports neglect of the child.
Rather than remove the child, the department determines that a Safety Plan whereby the mother agrees to a voluntary placement outside of the home is the appropriate action to protect the child.
The Safety Plan includes language that the mother shall place the child outside her home with a named relative.
This kind of out-of-home placement of a child who has been identified as being in an unsafe situation brings benefits and concerns.
The value of such a “placement” is that in the short term, the child is protected.
The family is also empowered to determine the custodial arrangement.
However, although the child’s out-of-home placement results in the mother no longer having
physical custody of her child, there has been no court determination that the mother should no longer have custody of the child, physical or legal.
Thus, the mother can demand the child’s return whenever she wants to, whether or not she has remedied the circumstances that made the child unsafe.
Further, the department may not provide supportive services to the child, their parent, or caregiver, to remediate the reasons the child came to its attention, because it has not formally opened a foster care case.
The mother’s actions may cause the matter to come to the attention of the department or even the court, months after the initial reporting of the abuse or neglect.
On September 19, 2025, to address some of the concerns raised by the practice of having a parent place their child as a part of a Safety Plan, Texas Congressman Nathaniel Moran filed HR 5507, the “Hidden Foster Care Transparency Act,” requiring state social service agencies to report such cases.
Although this proposed legislation is only in the initial stages of the lawmaking process, its filing demonstrates a recognition on the national level that to effectively protect a child and be in the child’s best interests, these informal “placements” must have oversight, including a clear end date, a binding written agreement, and be closely monitored by the department which should be providing appropriate remedial services to the entire family.
Joan F. Little is a chief attorney at Maryland Legal Aid.
Blended families and the challenges of asset distribution
By Hope Keller
Special to The Daily Record
Beginning in the 1970s, Americans began divorcing and remarrying in greater numbers than ever before, expanding the definition of family.
Now, trust and estate attorneys are starting to hear more often from members of those blended families unhappy about the distribution of assets after an elder’s death.
“As the baby boomers are starting to pass away, you’re seeing more and more of these types of fights for a variety of different reasons,” said Edward Parent, a partner at Silverman Thompson in Baltimore who specializes in fiduciary litigation. “You have a stepparent and perhaps siblings that just didn’t have that family bond that you have growing up, and so it breeds a lot of resentment and mistrust.”
Parent and other estate and trust attorneys emphasized that the No. 1 way to head off litigation is to plan.
“The worst thing that a person can do is nothing, meaning no planning,” Parent said. “You’d be surprised how many people just go through their lives; they’re very busy. (Estate planning is) just not something they’re thinking about, and then, God forbid, something happens to them, and if they haven’t properly planned, you could leave a mess.”
No will
Dying intestate, or without a will, means the state will parcel out “probate assets,” or possessions held in the decedent’s name alone. (Jointly held assets, such as houses or bank accounts, generally do not go through the probate process, nor do retirement accounts with a designated, living beneficiary.)
“The state’s going to determine what happens to their estate rather than what they want to happen to their estate,” said David Diggs, of
the Law Office of David V. Diggs in Millersville, adding that on occasion, he will summarize Maryland’s estate and trust article to “scare people into having wills.”
If a decedent without a will leaves behind a spouse and any minor children, the surviving spouse receives 50% of the estate, and the children share the rest. In cases in which the decedent has adult children from a prior marriage, the surviving spouse is entitled to the first $100,000 of the estate, after which any remaining assets are divided between the spouse and the adult children.
Avoiding litigation
A prenuptial agreement can head off disputes among survivors in blended families, said Laura Lynn Thomas, founder and principal at Legacy Legal Planning in Columbia and the chair of the Maryland State Bar Association’s Estate & Trust Law Section Council.
“The No. 1 thing to do to avoid the potential for any litigation after a death, if it’s a second or third or fourth – or even a first – marriage, is to have a prenuptial agreement that clearly states what the rights are,” Thomas said.
SUBMITTED PHOTO
Edward Parent is a partner at Silverman Thompson in Baltimore.
Thomas also highlighted the importance of reviewing beneficiary designations.
“A lot of assets are handled by beneficiary designation these days,” she said, citing federal employees’ savings plans, in which the default beneficiary is generally the surviving spouse.
“That may not be your intention in a second marriage situation,” she said. “Make sure beneficiary designations are up to date.”
Determining who should be the personal representative, or executor, of an estate is also key to preventing issues down the line.
“Is it going to be the surviving spouse; is it going to be one of the adult children? I think transparency and a clear discussion about that might help avoid bruised feelings later on,” Diggs said.
Above all, attorneys emphasized, it is crucial to inform family members about estate plans.
Thomas said she advises clients to talk with their family about their plans – or, if that is too uncomfortable, to write them a letter.
“It doesn’t get rid of the chance of litigation, but it does allow families some insight into why they made the designations they did,” she said.
Trusts and complex estates
For wealthy individuals with complex estates, Parent said he often recommends a trust.
He gave the example of a decedent with a will who owned a house in Baltimore County and a beach house in Rehoboth. If the properties were not jointly titled, the executor of the will must open a primary probate case in Maryland, as well as a second, ancillary, probate case for the beach house in Delaware. Among its advantages, a trust allows an estate to bypass probate while also providing privacy, as the transfer of property through a trust does not enter the public record.
With the rise of divorces and remarriage starting in the 1970s, trust and estate attorneys are seeing more blended families that can be unhappy about the distributions of assets following a death.
Parent said: “Sometimes, a trust makes sense if there’s no one-sizefits-all circumstances, and that’s why, again, I always tell people: Go
do your research and find a good estate-planning attorney – there are excellent ones around here – who can walk you through all those options.” DEPOSITPHOTOS
SUBMITTED PHOTO
David Diggs, of the Law Office of David V. Diggs in Millersville.
SUBMITTED PHOTO
Lynn Thomas, founder and principal at Legacy Legal Planning in Columbia and the chair of the MSBA’s Estate & Trust Law Section Council.
In the News
Montgomery County divorce attorney disbarred for ‘intentional dishonesty’
By Dan Belson DBelson@TheDailyRecord.com
A Montgomery County divorce lawyer was disbarred in March after the Maryland Supreme Court found he engaged in a pattern of misconduct “riddled with deceit and intentional dishonesty.”
Spencer Michael Hecht, founding attorney at Rockville-based Hecht & Associates, had been the subject of three Attorney Grievance Commission complaints from different clients. He reportedly lost a copy of a client’s postnuptial agreement, misrepresented the status of discovery in another matter and made an unauthorized charge to a third client’s credit card — and did not issue refunds to two of the clients until after they filed complaints.
Justice Shirley M. Watts also wrote in the high court’s opinion that Hecht also engaged in bad-faith obstruction of his attorney discipline proceeding by providing “ever-changing and conflicting accounts” about whether a purported expert’s report at the center of one complaint had actually been prepared in one case. He instead shifted the blame to his clients, saying that his former client in that matter had been “untruthful” about not receiving the expert report even though he knew it didn’t exist.
“His conduct during the representation of his three clients — along with his responses to Bar Counsel and his testimony before this Court — demonstrated an unfortunate character trait by which he says whatever he thinks, at that moment, will avoid conflict or consequences,” Circuit Judge J. Bradford McCullough found after a three-day disciplinary proceeding in Montgomery County.
Asked by The Daily Record
whether he’d like to respond to the high court’s decision, Hecht said he was “undecided.” Michael L. Rowan of Ethridge, Quinn, Kemp, Rowan & Hartinger, who represented Hecht up until oral arguments in December, did not return a request for comment.
After losing a client’s signed postnuptial agreement, which the client said was a condition of dropping his divorce action, Hecht proceeded with dismissing the divorce case, according to the court opinion. When the client asked about a month later for a copy of the agreement, Hecht did not tell him that it was still missing, and he continued to conceal it later by telling his client it was still “valid and I will get you a copy.”
Once Hecht admitted that it was still missing, his client asked for a refund of the $2,400 Hecht had billed for drafting it, according to the opinion. Hecht responded by saying a refund was “not a reasonable option.” He sent a check about a year later, after the client had filed a complaint, with a letter stating that he had decided to refund the fee because his client “informed the peer review panel that he never kept a copy of the document.”
Hecht had reportedly told the second client that he was working on a motion to compel in her divorce proceedings after she had “clearly asked,” though he later testified that there was no motion and that her follow-up email asking about its status “was delusional.” She also paid Hecht $5,000 for an expert witness he said was going to prepare a report, though no report existed, and Hecht ignored repeated emails from the client about the status of the report. Hecht withdrew from the case before the start of the trial, citing a “breakdown in communication” with his client.
The court also found that after Hecht withdrew from the case, he signed an affidavit for opposing counsel that was harmful to his former client. In the affidavit, Hecht wrote that his client said she needed a postponement due to the “voluminous documentation she had been provided that she had not yet reviewed.”
The third matter involved a client whose credit card Hecht charged $7,500 after the client said he was hiring new counsel. When the client asked about the charge, Hecht replied that the fee was a “a modest replenishment” because he spent “an incredible amount of time” on the case that weekend. Hecht did not refund the client until about three years later, after an unsuccessful bid for a resolution with the Bar Association of Montgomery County’s Committee on the Resolution of Fee Disputes.
McCullough found eight aggravating factors, including Hecht’s prior disciplinary history, a “dishonest or selfish” motive, deceptive practices during the attorney discipline proceeding and Hecht’s refusal to acknowledge the wrongful nature of the misconduct. The Maryland Supreme Court found two more: his indifference to making restitution or rectifying the misconduct’s consequences and the likelihood of repetition of the misconduct.
Hecht had “no defensible position for refusing” the first and third clients’ refunds, Watts wrote in her opinion.
“In light of the numerous instances and wide range of intentional dishonesty throughout Mr. Hecht’s representation of three clients, the harm to the clients, and Mr. Hecht’s unwillingness to acknowledge the wrongfulness of his conduct, disbarment is necessary to protect the public,” she wrote.
The Appellate Court affirmed the Montgomery County Orphans’ Court’s order declaring appellants as vexatious litigants and enjoining them from against further filings in either the Circuit Court or the Orphans’ Court of Montgomery County relating to Dr. Parikh’s estate without first obtaining the Court’s permission. Appellants have recycled the same meritless and thoroughly debunked arguments over and over again, even after multiple failed appeals and the imposition of sanctions.
The Appellate Court dismissed husband’s appeal from an order issued by the Prince George’s County Circuit Court. Where, as here, a party seeks and secures an in banc review, they are precluded from pursuing their right to appeal to the Appellate Court of Maryland.
KELLY MARIE HARRIGAN CAMPBELL V. KEVIN JOHN CAMPBELL
Military benefits; calculation; marital settlement agreement
The Appellate Court affirmed the Anne Arundel County Circuit Court’s calculation of what portion of husband’s military retirement benefits wife was entitled to receive.
The Appellate Court vacated the Harford County Circuit Court’s order distributing marital property. Because husband is incarcerated, husband comes as close as an adult can be to having no living expenses and that circumstance is likely to remain for decades. However the trial court does not appear to have considered this critical economic circumstance in determining a fair distribution of marital property. It was also a clear abuse of discretion for the court to fault wife for testifying at husband’s trial and factor that into the equitable distribution of their property, especially without knowing the surrounding circumstances and not taking steps to learn about those circumstances.
LAUREN DEAN V. CLAYTON DEAN
Physical custody; tie-breaking authority; best interests
The Appellate Court affirmed the Baltimore County Circuit Court’s award of primary physical custody and tiebreaking authority in legal custody to father. The trial court thoroughly considered the custody factors applicable at the time, and determined that it was in the child’s best interest to award father primary physical custody and tiebreaking authority in legal custody.
The Appellate Court affirmed the Prince George’s County Circuit Court’s refusals to postpone a hearing regarding husband’s alleged breach of a judgment of absolute divorce. Three separate judges denied the husband’s motion, and the trial court’s decision at the time of the hearing, as well as the two previous denials, were amply supported by the record.
ODUNAYO AJAYI V. OLAIDE OGUNSADE
Absolute divorce; amend or alter; fraud, mistake, or irregularity
The Appellate Court affirmed the Prince George’s County Circuit Court’s order denying husband’s renewed motion to alter or amend the court’s judgment of absolute divorce. Because husband’s renewed was filed more than 30 days from the date of judgment, husband needed to show fraud, jurisdictional mistake, or irregularity that would have justified revision of the court’s judgment of absolute divorce. He failed to do so.
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to void the parties’ settlement
agreement. The circuit court did not err in determining that husband could not prevail on his bald assertion that a confidential relationship existed between the parties. And the circuit court did not err in finding that the provision requiring that the parties exchange lists of assets was not a condition precedent.
The Appellate Court affirmed the Baltimore County Circuit Court’s award of joint legal custody and shared physical custody of the parties’ minor child. The circuit court did not err or abuse its discretion in predicating its custody order on its independent review of the record supporting the magistrate’s thorough consideration of relevant custody factors, and in fashioning a custody schedule designed to meet the child’s educational and health needs while accommodating the geographic distance between these parents’ residences.
NURIA DE LA PEÑA V. HAYWOOD WILLIAMS FLEISIG
Prenuptial agreement, unfair and inequitable, freely and understandingly
The Appellate Court affirmed the Montgomery County Circuit Court’s invalidation of the parties’ “Partnership and Prenuptial Agreement.” The trial court did not err in determining that the terms of the prenuptial agreement were unfair and inequitable and that the agreement was not entered freely and understandingly, and thus constituted overreaching.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Orphans’ Court’s order declaring appellants as vexatious litigants and enjoining them from against further filings in either the Circuit Court or the Orphans’ Court of Montgomery County relating to Dr. Parikh’s estate without first obtaining the Court’s permission. Appellants have recycled the same meritless and thoroughly debunked arguments over and over again, even after multiple failed appeals and the imposition of sanctions.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
withdraw from her position.
Because our answer to each of these questions is no, we will affirm the judgment of the Orphans’ Court.
BACKGROUND
1. The History
This Court has issued six unreported opinions relating to Dr. Parikh’s estate:
(1) In re Estate of Parikh (Parikh I), No. 1226, September Term, 2017, 2019 WL 289999 (filed January 16, 2019), cert. denied sub nom. Matter of Estate of Parikh, 464 Md. 597 (2019);
(2) Matter of Estate of Parikh (Parikh II), No. 1480, September Term, 2017, 2020 WL 1330205 (filed March 23, 2020), cert. denied, 469 Md. 665 (2020);
(3) Parikh v. Boynton (Parikh III), No. 2366, September Term, 2019, 2021 WL 1293203 (filed April 7, 2021);
(4) Matter of Estate of Parikh (Parikh IV), No. 941, September Term, 2020, 2021 WL 4439267 (filed September 28, 2021), cert. denied, 477 Md. 158 (2022);
In these consolidated appeals,1 Oxana Parikh (“Oxana”) 2 and Namish Parikh (“Namish”) challenge orders entered by the Circuit Court for Montgomery County, sitting as the Orphans’ Court,3 relating to the administration of the estate of Dr. Dinesh O. Parikh. The appellees are Lynn Boynton, Esq., who is the special administrator and a copersonal representative of the estate; Tina Parikh-Smith (“Tina”), Dr. Parikh’s daughter, who is the other co-personal representative; and Neelaben (“Neela”) Parikh, Dr. Parikh’s spouse.
In their briefs, appellants present numerous issues, most of which have been resolved by one or more of the previous decisions issued by us regarding the Parikh estate. There are three remaining issues properly before us:
(1) Whether the Orphans’ Court erred in finding that Oxana and Namish are vexatious litigants who have acted in bad faith and without substantial justification such that the imposition of a pre-filing injunction against them is appropriate;
(2) Whether the Orphans’ Court erred by granting judgments for attorneys’ fees and expenses to Ms. Boynton and her attorney, Tina and her attorney, and Neela and her attorney; and
(3) Whether the Orphans’ Court erred in appointing Tina as co-personal representative with Ms. Boynton, and then successor personal representative after Ms. Boynton was permitted to
(5) Parikh v. Boynton (Parikh V), No. 1057, September Term, 2021, 2022 WL 1164972 (filed April 20, 2022); and (6) Matter of Estate of Parikh (Parikh VI), No. 807, September Term, 2022, 2023 WL 3614320 (filed May 18, 2023), cert. denied sub nom. In re Estate of Parikh, 485 Md. 138 (2023).
We will draw liberally from our earlier opinions in providing the following synopsis of the convoluted history of this litigation.
Dr. Dinesh O. Parikh, a resident of Montgomery County, executed a will dated July 30, 2014. In it, he left his entire estate to Oxana Parikh, the former wife of his son Namish.5 The will designated Oxana as the personal representative of the estate. The will made no provision for Namish, nor for Dr. Parikh’s spouse, Neela, nor for his daughter, Tina.
At or around the same time, Dr. Parikh signed a durable power of attorney, naming Oxana as his attorney-in-fact. Using the power of attorney, Oxana began to liquidate Dr. Parikh’s assets. Oxana used some of the proceeds of this process to transfer approximately $1.14 million to Namish. Additionally, and shortly before Dr. Parikh’s death, Oxana filed a divorce action in Dr. Parikh’s name against Neela in North Carolina.6
Dr. Parikh passed away in 2016. Oxana filed a petition with the Orphans’ Court to admit the 2014 will for probate and to appoint her as personal representative. The court granted the petition. Tina filed a petition to caveat the will, claiming that
Oxana and Namish had fraudulently influenced Dr. Parikh in its creation.7 Tina also sought to remove Oxana as personal representative and requested that the Orphans’ Court appoint a successor representative. Following a hearing, the Orphans’ Court removed Oxana as personal representative and appointed Lynn Boynton, Esq., as special administrator of the estate.8 Ms. Boynton then filed a civil action in the Circuit Court for Montgomery County seeking recovery of the funds that Oxana had transferred to Namish prior to Dr. Parikh’s death. Additionally, Tina filed a caveat proceeding in the Orphans’ Court challenging the validity of Dr. Parikh’s will.
At this juncture, Oxana, Namish, Tina, Neela, and Ms. Boynton agreed to mediate their disputes regarding Dr. Parikh’s estate. With the assistance of a mediator and their respective counsels, they entered into an agreement that should have resolved the differences between them. The agreement provided that, after payment of expenses, 57% of the estate would be paid to Namish and 43% would be paid to Tina and Neela.9 In addition, Oxana would be reimbursed for some of her expenditures on behalf of the estate. Ms. Boynton’s action to recover assets from Namish and the caveat proceeding were dismissed. It appears that the assets of the estate consisted primarily of cash and securities.
Oxana and Namish deposited the disputed funds in the Court’s registry pursuant to the consent order. However, shortly thereafter, they attempted to repudiate the terms of the agreement. Tina filed an emergency motion to enforce it. After a hearing, the Orphans’ Court granted Tina’s motion and ordered performance of the terms of the settlement agreement. The Court’s judgment triggered the first in a series of appeals filed by Oxana and Namish that provide the context of the parties’ current contentions. We will now summarize them.
In Parikh I, we held that the settlement agreement was binding and enforceable, and we affirmed the Orphans’ Court’s approval of the agreement. We also found no infirmity in Ms. Boynton’s authority to act as special administrator of the estate.
In Parikh II, we addressed issues relating to the administration of the estate and reaffirmed the enforceability of the settlement agreement.
In Parikh III, we affirmed the Orphans’ Court’s orders rejecting Oxana’s and Namish’s claims of fraud, mistake, and irregularity in the caveat proceeding. We also granted Ms. Boynton’s motion for sanctions on the ground that she was entitled to recover attorneys’ fees pursuant to Md. Rule 1-341(a) because, among other things, Oxana’s and Namish’s contentions that it was improper for Ms. Boynton to use her married name for professional purposes was “patently frivolous and devoid of any colorable claim” and warranted “a finding of both bad faith and lack of substantial justification.” Parikh III, 2021 WL 1293203, at *9 (cleaned up). We remanded the case to the Orphans’ Court to determine the amount of attorneys’ fees to which Ms. Boynton was entitled.
In Parikh IV, we addressed Oxana’s and Namish’s challenges to twenty-one orders issued by the Orphans’ Court and affirmed all of them. We explained that, as a result of our affirmance of the validity of the settlement agreement
in Parikh I, Oxana’s status as a non-beneficiary and noninterested person in the estate was established, and that the Orphans’ Court was correct when it concluded that “Oxana’s interest in the estate was limited to the issue of the award of attorneys’ fees against her[.]” Parikh IV, 2021 WL 4439267, at *2. We also held that Ms. Boynton was again entitled to attorneys’ fees for defending the appeal because appellants’ arguments were baseless and lacking in merit.
We remanded to the Orphans’ Court to determine an appropriate fee award.
In Parikh V, we affirmed the Orphans’ Court’s judgment that Oxana and Namish had filed multiple motions in the estate litigation in bad faith and without substantial justification. Once again, we awarded Ms. Boynton attorneys’ fees and costs incurred in opposing the motions in the Orphans’ Court and on appeal.
Most recently, in Parikh VI, we concluded that Oxana’s and Namish’s appeal of the Orphans’ Court’s order for them to appear in that court and show cause why they should not be declared vexatious litigants was premature because the Orphans’ Court had not held a hearing on the matter. We also held that the Orphans’ Court was required to provide the “the litigants notice and an opportunity to be heard before granting a prefiling injunction.” Parikh VI, 2023 WL 3614320, at *4. Additionally, we affirmed the Orphans’ Court’s denial of Namish’s petition to transmit issues to the Orphans’ Court for a decision by a jury. We explained that Namish’s contentions that the Orphans’ Court erred as to this issue were “comprehensively without merit” and “barred under the law of the case doctrine.” Id. at *3.
Finally, we once again concluded that Oxana’s and Namish’s continuing attacks on the validity of the settlement agreement were without substantial justification and amounted to “intentional efforts to delay the administration of the estate.” Id. at *4. After concluding that sanctions against Oxana and Namish were again appropriate, we remanded the case to the Orphans’ Court for a determination of the costs and fees incurred by Ms. Boynton in defending “this unjustified and frivolous appeal” pursuant to Md. Rule 1-341. Id
2. Two Relevant Legal Concepts
The outcome of most of the contentions raised by Oxana and Namish in these appeals turn on the application of one or the other of two well-settled legal concepts.
The first is the law of the case doctrine. As our Supreme Court explained more than six decades ago:
It is the well-established law of this state that litigants cannot try their cases piecemeal. They cannot prosecute successive appeals in a case that raises the same questions that have been previously decided by this Court in a former appeal of that same case; and, furthermore, they cannot, on the subsequent appeal of the same case raise any question that could have been presented in the previous appeal on the then state of the record, as it existed in the court of original jurisdiction.
Fid.-Baltimore Nat’l Bank & Tr. Co. v. John Hancock
Mut. Life Ins. Co., 217 Md. 367, 371–72 (1958) (emphasis added); see also Holloway v. State, 232 Md. App. 272, 282, (2017) (“In Maryland, the law of the case doctrine applies to both questions that were decided and questions that could have been raised and decided ”). For this reason, “[o]nce an appellate court has answered a question of law in a given case, the issue is settled for all future proceedings.” Stokes v. Am. Airlines, Inc., 142 Md. App. 440, 446 (2002).
The reason for the law of the case doctrine is wellestablished. Without it, “any party to a suit could institute as many successive appeals as the fiction of his imagination could produce new reasons to assign as to why his side of the case should prevail, and the litigation would never terminate.” Fid.-Baltimore Nat’l, 217 Md. at 372.10
For the most part, the contentions presented by appellants in the current appeals challenge Orphans’ Court rulings that were addressed or could have been addressed in one or more of their previous appeals. Reconsideration of our earlier holdings is precluded by the law of the case doctrine.
Second, it is appellants’ obligation to “to articulate and adequately argue all issues the appellant desires the appellate court to consider in the appellant’s initial brief.” Westminster Mgmt., LLC v. Smith, 486 Md. 616, 674 (2024) (quoting Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 241 (2004)). For this reason, “[i]f a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.” Id. (quoting DiPino v. Davis, 354 Md. 18, 56 (1999)); see also Konover Prop. Tr., Inc. v. WHE Assocs., Inc., 142 Md. App. 476, 494 (2002) (“We will not rummage in a dark cellar for coal that isn’t there. It is not this Court’s responsibility to attempt to fashion coherent legal theories to support appellant’s sweeping claims.”). Many of the contentions presented by appellants are inadequately briefed and fail for that reason.
Analysis
Our analysis is divided into three parts. In Part I, we will resolve pending motions filed by appellants in these appeals. In Part II, we will address the substantive contentions presented by appellants in their briefs. In Part III, we will discuss the Orphans’ Court’s entry of an order stating the Oxana and Namish are vexatious litigants and restricting their ability to file motions, pleadings, and other court papers in the Orphans’ Court and the circuit court.
I. The Pending Motions
As of September 4, 2025, there were five motions filed by appellants that were pending in this Court. One was appellants’ motion to consolidate the four pending appeals, which we granted on that day. We turn to the remaining motions, all of which we deny.
The first of these is appellants’ “Motion for Judicial Notice of USDC ECF 56” (filed August 1, 2025). The motion refers to a letter order filed by the United States District Court in Parikh v. Frosh, 22-cv-00110-PX, 2023 WL 131043 (D. Md. Jan. 9, 2023), aff’d in part, vacated in part sub nom., Parikh v. Brown, 2024 WL 2764720 (4th Cir. 2024). We can, and often do, take judicial notice of orders of other tribunals. See, e.g., Abrishamian v. Washington Med. Grp., P.C., 216 Md. App.
386, 413–14 (2014). We will do so here.
In Parikh v. Frosh, Oxana alleged that her constitutional rights were violated in various ways by the Orphans’ Court in the Parikh estate litigation and sought to overturn virtually all the orders entered by the Orphans’ Court after September 2016. These contentions did not fare well with the District Court, which dismissed her complaint with prejudice, found her to be a vexatious litigant, and entered an injunction prohibiting her from filing further pleadings without permission of the Court.
Oxana appealed the District Court’s judgment. The Court of Appeals for the Fourth Circuit affirmed the dismissal of the complaint but vacated the injunction and remanded the case to the District Court to afford Oxana an opportunity to respond to the sanctions motion. On remand, and after affording Oxana with an opportunity to respond to the motion, the District Court denied the sanctions motion for reasons unrelated to the issues raised in these appeals. The judgments of the federal courts in the Parikh v. Frosh litigation provide no support to appellants’ current contentions.
The second motion is appellants’ “Motion to Strike ‘Imposter’ Pendleton’s Answering Briefs.” We have previously addressed appellants’ thoroughly debunked idée fixe that Ms. Boynton is an “imposter” because she has chosen to use a different surname in her private life. See, e.g., Parikh V, 2022 WL 1164972, at *3 n.1 (“[W]e addressed appellants’ arguments that Ms. Boynton is a ‘fictional character’ and ‘non-existent’ person without legal standing to file suit in Parikh III and Parikh IV” and found them lacking.); Parikh III, 2021 WL 1293203, at *8–9 (“SA Boynton makes a compelling argument that . . . appellants crossed the line that separates legitimate advocacy from vexatious and abusive litigation. For example, in their never-ending efforts to discredit and personally attack SA Boynton, appellants likened SA Boynton’s use of her former married name to a ‘pseudonym.’ We conclude that [appellants’ actions] warrant[] a finding of both bad faith and lack of substantial justification.”).
Our holdings in Parikh V, Parikh IV, and Parikh III establish that Ms. Boynton is not disqualified from serving as special administrator to Dr. Parikh’s estate because she uses a different surname in her private life. These holdings are now one facet of the law of this case.11
The third motion is titled “Motion to Strike ‘Non-InterestedPerson,’ sometimes Dr. Parikh’s ‘Wife,’ and sometimes Trust beneficiary, Tina Parikh-Smith’s Answering Brief” In this motion, appellants assert that Neela and Tina do not have standing because neither of them were beneficiaries under Dr. Parikh’s will. This contention is without merit. It is the settlement agreement that the parties reached as a result of the mediation process that defines the parties’ rights and obligations. Tina and Neela are distributees under the terms of that agreement.
The fourth pending motion is titled “Motion for Criminal Referral of ‘Joseph M. Griffin,’ ‘Paul J. Maloney,’ ‘Robert Grant,’ ‘James Debelius,’ and ‘Lynn C. Pendleton’ for Concealing the Truth and Fabricating Counterfeit Document for Docketing to Facilitate a Theft of Almost One Million Dollars, vel non, Which at least Would Amount to Obstruction of Justice.”
Mr. Maloney is counsel to Tina, Mr. Grant is counsel to
Neela, and Mr. Debelius is counsel to Ms. Boynton in her capacity as special administrator to the estate. Mr. Griffin served as the Register of Wills for Montgomery County from 1998 until his death in August 2025. In the motion, appellants ask us to refer these individuals to the State’s Attorney for Montgomery County for a criminal investigation to determine if probable cause exists to charge them with fabricating an order by a judge of the Orphans’ Court. They do not explain how this Court has the authority to take such an action. Nor do appellants point to facts in the record that even remotely support their contentions. These failures are dispositive. See Konover Prop. Tr., 142 Md. App. at 494 (“We will not rummage in a dark cellar for coal that isn’t there. It is not this Court’s responsibility to attempt to fashion coherent legal theories to support appellant’s sweeping claims.”).
II. The Current Appeals
In their briefs, Oxana and Namish present twenty-nine contentions as to why the judgments entered against them should be reversed.12 Issues 5 through 8 pertain to the Orphans’ Court’s conclusion that Oxana and Namish are vexatious litigants and restricting their right to file court papers in the circuit court or the Orphans’ Court in any action involving Dr. Parikh’s estate. In Issue 19, appellants argue that the attorneys’ fees awards in the Parikh estate litigation are excessive.
Appellants’ remaining contentions were: (1) raised in previous appeals and were denied, (2) could have been raised in a previous appeal, and/or (3) are inadequately briefed in the current appeals. Under the first two scenarios, the law of the case doctrine prevents appellants from raising them in the current appeal. See, e.g., Holloway, 232 Md. App. at 282 (“In Maryland, the law of the case doctrine applies to both questions that were decided and questions that could have been raised and decided” in a prior appeal.). Under the third, appellants have waived their rights to present the contentions because their briefs are inadequate. See Westminster Mgmt., 486 Md. at 674 (“[I]f a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.” (quoting DiPino, 354 Md. at 56)); see also Konover Prop. Tr., 142 Md. App. at 494 (“We will not rummage in a dark cellar for coal that isn’t there. It is not this Court’s responsibility to attempt to fashion coherent legal theories to support appellant’s sweeping claims.”).
Before we address the issues raised by Oxana and Namish in the current appeals that are properly before this Court, we will summarize appellants’ other contentions to illustrate their continued recycling of issues without substantial justification and in contravention of the law of the case doctrine.
1. Ms. Boynton is not an imposter.
Appellants ask this Court to: (1) “Strike ‘Imposter’ Pendleton’s Answering Briefs” and (2) “Strike ‘Imposter’ Pendleton’s Opposition Filed Under Fraudulent Identity ‘Boynton,’” both on the ground that Ms. Pendleton was posing as Ms. Boynton and was never appointed as special administrator or personal representative of Dr. Parikh’s
estate. Appellants also contend that all of Ms. Boynton’s filings from the date she was appointed special administrator must be stricken, and the judicial decisions based on them reversed. This is so, say appellants, because she is “[a]n imposter” and the appointments were not made under “a true legal identity[.]” As we have explained, this contention was addressed and rejected in Parikh V, Parikh IV, and Parikh III. These contentions are completely meritless.
For these reasons, this Court has stated that Oxana’s and Namish’s “never-ending efforts to discredit and personally attack SA Boynton” and to challenge her very existence amounted to nothing more than “vexatious and abusive litigation” and a “vengeful crusade anchored in bad faith[.]” Parikh III, 2021 WL 1293203, at *8, 10. The law of the case doctrine precludes appellants from relitigating these matters.
2. The settlement agreement is enforceable.
Among other things, the settlement agreement reached by the parties in the mediation process called for Tina to deliver to the court stock certificates owned by Dr. Parikh that were in her possession within ten days of the approval of the agreement.
Under the terms of the settlement agreement, Namish was to receive 57% of the stock and Neela and Tina were to divide the remaining certificates between themselves. Tina delivered 57%, that is Namish’s share, of the certificates to the Orphans’ Court and retained the rest of the certificates for herself and Neela.
In Parikh IV, we stated:
Namish’s contention that the settlement agreement is void because Tina failed to convey the entirety of the Duke Energy stock to the estate within ten days of the return of the monies to the estate from the Registry of Court, is an issue that could have been raised and decided in Parikh II or Parikh
Because Namish failed to challenge the enforceability of the settlement agreement when that issue was previously decided by this Court, the issue is waived.
2021 WL 4439267, at *4.
The law of the case doctrine precludes appellants from relitigating this issue.
3. Tina Parikh-Smith and Neela Parikh have standing. Appellants contend that Tina was disinherited under Dr. Parikh’s will and “stripped . . . of standing from the date of [the] executory contract” for her failure to turn over 100% of the stock to the estate in a timely manner. They also contend that Neela is not a proper party. These contentions are without merit.
In Parikh I, we held that Tina has: standing to seek enforcement of the [settlement agreement] because she is party to that agreement and the agreement she sought [to] enforce bore directly on the administration of an estate of a deceased person. As Dr. Parikh’s daughter and a potential heir, Tina achieved standing when she petitioned to caveat the Will.
2019 WL 289999, at *14.
In Parikh II, 2020 WL 1330205, at *14, we held that “[t] he validity of Neela and Dr. Parikh’s marriage is no longer a dispute in this case, as the parties agreed as part of the [settlement agreement] not to challenge the order vacating the North Carolina divorce.” The law of the case doctrine precludes appellants from relitigating these issues.
4. Oxana does not have standing.
Appellants contend that Oxana is the “sole-interested person” and legatee, and that only she may petition to the Orphans’ Court to resolve any question related to the estate. Appellants are wrong. This contention was addressed in Parikh IV, 2021 WL 4439267, at *2: “Because Oxana is not an ‘interested person’ within the meaning of [EST. & TRUSTS] § 1-101(i), she has no standing to challenge the administration of the estate, with the exception of the award of attorneys’ fees against her.”
The law of the case doctrine precludes appellants from relitigating this issue.
5. The Orphans’ Court’s Rule 1-341 awards of fees and expenses to appellees are appropriate.
Appellants argue that the Orphans’ Court’s previous awards of fees and expenses to Neela, Tina, and Ms. Boynton should be reversed because Neela and Tina “never paid ‘a penny’ to their attorneys....There is no proof that Tina/Neela actually paid anything out-of-pocket for which their attorneys feign reimbursement.” (Emphasis omitted.) They also argue that Ms. Boynton was never appointed as special administrator and thus cannot incur expenses.
In Parikh V, 2022 WL 1164972, at *3, we held that this contention was “wrong” because the Orphans’ Court “concluded that Ms. Boynton had incurred attorneys’ fees and costs within the meaning of Rule 1-341, even though those fees and costs had not yet been paid by the estate.” The same logic applies in the present case. The Orphans’ Court did not err in awarding attorneys’ fees and expenses to Neela, Tina, and Ms. Boynton.
6. There was no judicial misconduct.
Appellants moved to transfer this case to the Orphans’ Court for Baltimore City. The motion was denied. Appellants cry foul. They argue that transfer was necessary because Montgomery County Circuit Court Judges David A. Boynton and John W. Debelius were respectively related to Ms. Boynton and to her counsel. But appellants did not assert that either Judge Boynton or Judge Debelius had any involvement with the Parikh estate proceeding. Judge Richard E. Jordan denied the motion. We addressed this issue in Parikh II:
A review of the record fails to persuade us that there were grounds upon which this case should have been transferred to another venue. There was no evidence of impropriety or personal bias against Oxana. Neither Judge [David A.] Boynton nor Judge [John W.] Debelius presided over any of the hearings in the case, and there is no evidence that either judge had any direct involvement or influence in the case. Further, Oxana does not contend that Judge Jordan had any kind of
relationship with SA Boynton or Mr. Debelius which may have affected his ability to preside over the case with fairness and impartiality.
Oxana has also failed to show evidence of prejudice towards her beyond the court’s rulings against her In short, there is no merit to Oxana’s accusations of judicial misconduct on the part of Judge Jordan or any other member of the court. The court did not abuse its discretion in denying Oxana’s ill-founded request for removal of the case to the Orphans’ Court for Baltimore City.
2020 WL 1330205, at *11–12 (emphasis added).
This holding is one aspect of the law of this case. Our opinion in Parikh II was filed on March 23, 2020. Appellants do not allege that any misconduct occurred after that date.
8. The Orphans’ Court did not err when it declined to transmit Namish’s issues to the circuit court.
In Parikh VI, we concluded that Namish’s contention that the Orphans’ Court erred in its denial of his petition to transmit issues to the circuit court for a decision by a jury was “comprehensively without merit” and “barred under the law of the case doctrine.” 2023 WL 3614320, at *3. The same contentions are still meritless and consideration of them is still barred by the law of the case doctrine.
III. The Remaining Issues
There are three remaining colorable issues raised by Oxana and Namish. They are:
(1) Whether the Orphans’ Court erred in finding that Oxana and Namish are vexatious litigants who have acted in bad faith and without substantial justification such that the imposition of a pre-filing injunction against them is appropriate;
(2) Whether the Orphans’ Court erred by granting judgments for attorneys’ fees and expenses to Ms. Boynton and her attorney, Tina and her attorney, and Neela and her attorney; and
(3) Whether the Orphans’ Court erred in appointing Tina as co-personal representative with Ms. Boynton, and then successor personal representative after Ms. Boynton was permitted to withdraw from her position.
We will address each of these topics separately.
1. Oxana and Namish are vexatious litigants.
On November 13, 2023, Judge Christopher C. Fogleman, an associate judge of the Circuit Court for Montgomery County sitting as the Orphans’ Court, issued a thorough, comprehensive, and meticulously reasoned opinion and order that (i) granted Tina’s and Ms. Boynton’s requests to declare Oxana and Namish vexatious litigants and (ii) entered an injunction, pursuant to Md. Rule 15-502(b),13 against further filings by them in either the Circuit Court or the Orphans’ Court of Montgomery County relating to Dr. Parikh’s estate without first obtaining the Court’s permission. Appellants contend that the Orphans’ Court erred. We do not agree.
Our analysis begins with a review of the reasoning and
holdings of the only Maryland reported opinion on the issue of vexatious litigants, Riffin v. Circuit Court for Baltimore County, 190 Md. App. 11 (2010). In Riffin, this Court explained that, before restricting a person’s right to access a court, the court must (1) afford the alleged vexatious litigant notice and an opportunity to be heard, (2) provide an opportunity for a hearing before an order is issued, (3) make substantive findings as to the frivolous or harassing nature of the litigant’s actions, and (4) “narrowly tailor” any order restricting the right to file a court paper. Id. at 33–34. Additionally, the court must weigh five factors:
(1) the litigant’s history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits;
(2) the litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?;
(3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and other parties.
Id. at 35 (quoting Safir v. United States Lines Inc., 792 F.2d 19, 24 (2nd Cir. 1986)).
We return to the case before us. The relevant events are:
On October 17, 2022, Tina filed a “Petition for Injunctive or Other Relief Against Namish Parikh and Oxana Parikh to Declare Them Vexatious and Frivolous Litigants” (the “Petition for Injunctive Relief”);
On November 23, 2022, the Orphans’ Court issued an “Order to Show Cause Why Oxana Parikh and Namish Parikh Should Not Be Designated as Vexatious Litigants.” The court scheduled a two hour hearing on the show cause order on February 17, 2023 at 1:30 PM. Notice of the hearing was sent to appellants.
On November 28, 2022, Oxana and Namish filed an appeal from the Show Cause Order.14
On February 15, 2023, Oxana and Namish filed a paper titled “Position Statement Regarding Unlawful 2/17/23 Hearing in Violation of Statutory Stay; and, [sic] Attachment” (the “Position Statement”).
On February 16, 2023, Tina filed a response to the Position Statement.
On February 17, 2023, the Orphans’ Court held the hearing on the show cause order. Although they had been previously notified of the hearing, neither Oxana nor Namish attended. The Court took the case under advisement.
On November 13, 2023, the Orphans’ Court filed a thorough and scholarly opinion and order which granted Tina’s Petition for Injunctive Relief. The Court found that Oxana and Namish were “Vexatious and Frivolous Litigants” and enjoined them from filing:
in this action any pleading, motion, or other paper, which pursuant to Md. Rule l-202(t) includes a document filed or that exists in electronic form, relating to the Estate of Dinesh O. Parikh, without first obtaining leave of the Court by obtaining
permission from the Administrative Judge or their designee[.]
Additionally, the Orphans’ Court ordered: that Oxana Parikh and Namish Parikh are hereby ENJOINED from filing in the Orphans’ Court for Montgomery County, Maryland or the Circuit Court for Montgomery County, Maryland any new action relating to the Estate of Dinesh O. Parikh, without first obtaining leave of the Court by obtaining permission from the Administrative Judge or their designee; and it is further ORDERED, that the Clerk of the Circuit Court for Montgomery County, Maryland not accept for filing any [court] paper, which pursuant to Md. Rule 1-202(t) includes a document filed or that exists in electronic form, from Namish Parikh and/ or Oxana Parikh arising out of or related to the Estate of Dinesh O. Parikh, absent a finding by the Court that the pleading, motion, or other paper is filed in good faith and not for any improper purpose and that it has a colorable basis in law and fact, and it is further, ORDERED, that the Orphans’ Court for Montgomery County, Maryland not accept for filing any pleading, motion, or other paper, which pursuant to Md. Rule 1-202(t) includes a document filed or that exists in electronic form, from Namish Parikh and/ or Oxana Parikh arising out of or related to the Estate of Dinesh O. Parikh, absent a finding by the Court that the pleading, motion, or other paper is filed in good faith and not for any improper purpose and that it has a colorable basis in law and fact[.]15
In support of these conclusions, the Orphans’ Court made the following findings of fact and conclusions of law:
• Maryland courts are “vested with the inherent authority to enter pretrial injunctions to control the actions of a vexatious or frivolous litigant, whether at the instance of any party or on its own initiative[,]” citing Riffin, 190 Md. App. at 26, 29.
• “Md. Rule l5-502(b)16 is clear authority for a Maryland court to issue a pre-filing order. Id. at 28.”
• Before issuing a pre-filing order, a court must “afford the purportedly vexatious party [with] notice and an opportunity to be heard. Id. at 32.”
• A court “‘should make substantive findings as to the frivolous or harassing nature of the litigant’s actions,’ addressing both the numericity and frivolity of that litigant’s filings. Id. at 34.”
Additionally, the Orphans’ Court addressed each of the five Riffin factors:
(1) The litigant’s history of litigation and particularly whether it entailed vexatious, harassing, or duplicative lawsuits.
The Orphans’ Court concluded that “Oxana’s and Namish’s repetitive filings have resulted in vexatious and duplicative appeals against the parties.” In support of this conclusion, the Court “summarize[d] some of the appellate litigation they
have pursued concerning this Estate”:
(1) Parikh v. Frosh, No. GJH-17-0332, 2017 WL 4124238 (D. Md. Sept. 15, 2017), aff’d, 715 F. App’x 288 (4th Cir. 2018) (granting defendant’s motion to dismiss, denying Namish’s motion for leave to file surreply, and denying Namish’s motion for preliminary injunction).
(2) Parikh v. Frosh, 715 F. App’x 288 (4th Cir. 2018) (District Court’s judgment affirmed).
(3) Matter of Estate of Parikh, No. 1508, Sept. Term, 2016, Nos. 546, 1226, Sept. Term, 2017, No. 548, Sept. Term, 2017, 2019 WL 289999 (Md. App. Ct. Jan. 16, 2019) (Parikh I) (four consolidated appeals – affirming dismissal of Oxana’s and Namish’s counterclaim and grant of Ms. Boynton’s summary judgment motion based on the pleadings, and alternatively, as a sanction for discovery violations).
(4) Matter of Estate of Parikh, 464 Md. 597 (2019) (petition for writ of cert. denied).
(5) Matter of Estate of Parikh, Nos. 1480, 1655, Sept. Term 2017, Nos. 501, 2312, Sept. Term, 2018, No. 302, Sept. Term, 2019, 2020 WL 1330205 (Md. App. Ct. March 23, 2020) (Parikh II) (five consolidated appeals – affirming judgments of the Orphans’ Court for Montgomery County).
(6) Matter of Estate of Parikh, 469 Md. 665 (2020) (petition for writ of cert. denied).
(7) Parikh v. Boynton, No. 2366, Sept. Term 2019, 2021 WL 1293203 (Md. App. Ct. Apr. 7, 2021) (Parikh III) (affirming Circuit Court’s denial of Oxana’s and Namish’s motions to set aside the final judgment, [to] remove Judge Ronald B. Rubin, and [to] transfer the matter to Baltimore City Circuit Court, remanding case to Circuit Court to resolve pending Rule 1-341 motion, and concluding that Oxana’s and Namish’s use of the appeals process to pursue their vexatious litigation and meritless arguments warrants a finding of both bad faith and lack of substantial justification).
(8) Matter of Estate of Parikh, No. 941, Sept. Term 2020, 2021 WL 4439267 (Md. App. Ct. Sept. 28, 2021) (Parikh IV) (holding that Oxana is not an “interested person” and therefore lacks standing to challenge the administration of the Estate, except the attorneys’ fees award against her, affirming the Orphans’ Court for Montgomery County’s judgment, and concluding that Ms. Boynton is entitled to an award of reasonable attorneys’ fees for the costs incurred in defending against this “frivolous appeal”).
(9) Matter of Estate of Parikh, 477 Md. 158 (2022) (petition for writ of cert. denied).
(10) Parikh v. Boynton, No. 1057, Sept. Term 2021, 2022 WL 1164972 (Md. App. Ct. Apr. 20, 2022) (Parikh V) (affirming Circuit Court’s sanctions award of attorneys’ fees and costs to Ms. Boynton).
(11) Parikh v. Frosh, No. 8:22-CV-00110-PX, 2023 WL 131043 (D. Md. Jan. 9, 2023) (granting Defendants Brian Frosh’s, Joseph Griffin’s, Mr. Debelius’s, and Ms. Boynton’s motions to dismiss, dismissing Oxana’s Amended Complaint, and imposing a prefiling injunction against Oxana).
(12) Matter of Estate of Parikh, No. 807, Sept. Term 2022, 2023 WL 3614320 (Md. App. Ct. May 18, 2023) (Parikh VI) (dismissing Oxana’s appeal from the show cause order, affirming the Orphans’ Court’s denial of Namish’s petition to transmit issues to the Circuit Court, and finding that
the appeals were filed in bad faith and without substantial justification and that Ms. Boynton is entitled to an award of attorneys’ fees and costs incurred in defending against them under Rule 1-341).
(13) In re Estate of Parikh, 485 Md. 138 (2023) (petition for writ of cert. denied).
(14) Parikh v. Joseph M. Griffin, Register of Wills for Montgomery County, Misc. No. 12, Sept. Term 2022 (Md. Sup. Ct. Jan. 24, 2023) (denying Oxana’s and Namish’s petition for writ of mandamus).
(Footnote omitted.)
The Orphans’ Court noted that, “[i]n the instant action, Oxana and Namish have challenged the settlement agreement’s validity through three appeals. The Appellate Court has repeatedly sanctioned them for their bad faith and vexatious appeals and has described their bad faith and vexatious conduct.”
In support of this conclusion, the Orphans’ Court pointed out that, in Parikh III, we stated:
We conclude that appellants’ use of the appeals process to pursue their vexatious litigation and meritless arguments warrants a finding of both bad faith and lack of substantial justification. Here, appellants did not pursue a questionable or innovative cause; nor did they explore beyond existing legal horizons. Rather, appellants continue to relitigate the settlement agreement and the summary judgment order, long after those issues were put to bed in Parikh I. Appellants argue, without substantial justification, their previous failed civil conspiracy, abuse of process, and unauthorized accounting claims from Parikh I, and repackaged them as claims regarding a fraudulent joint defense agreement, extraterritorial attachment of their bank accounts, and a lack of subject matter jurisdiction.
Appellants devised bad faith claims of fraud, based on personal attacks and vitriolic diatribes against opposing parties and counsel. Appellants’ allegations of perjury and fraudulent ex parte communications on the part of Attorney Debelius were unsupported by any credible evidence. The pursuit of the recusal of Judge Rubin and transfer of the case to Baltimore City was completely without merit and undertaken primarily to harass appellees and delay the finality of the case. We struggle to characterize appellants’ challenges to Tina’s share of the Estate and SA Boynton’s “existence” as anything short of a vengeful crusade anchored in bad faith and pursued without substantial justification. SA Boynton is entitled to an award of reasonable attorneys’ fees for the costs incurred in defending against this frivolous appeal.
(Emphasis and footnote omitted.)
Additionally, the Orphans’ Court noted that this Court had reach reached similar conclusions based on similar findings in Parikh IV:
Appellants continue to attack the validity of
the settlement agreement, despite our repeated affirmation of the settled law governing this case. Appellants’ arguments were baseless and entirely lacking in merit, and they pursued this appeal with the purpose of intentional harassment and delay of the administration of the Estate
(Emphasis added by the Orphans’ Court.)
The Orphans’ Court also discussed our decision in Parikh VI, where we stated:
Appellants’ continued attacks on the validity of the settlement agreement, which has been reaffirmed on multiple occasions, are both without substantial justification and are intentional efforts to delay the administration of the Estate. Their conduct has been sanctioned by this Court twice and, most recently, by the [O]rphans’ [C]ourt in its order denying Namish’s petition to frame and transmit issues. We hold that this appeal was taken in bad faith and without substantial justification and that sanctions are appropriate pursuant to Md. Rule 1-341.
(Emphasis added by the Orphans’ Court; footnote omitted.)
The Orphans’ Court also noted that the District Court for the District of Maryland had: enjoined Oxana from filing, without the Court’s prior leave, any future claims regarding the Estate against Brian Frosh, Joseph Griffin, Mr. Debelius, and Ms. Boynton. The District Court sanctioned Oxana despite this being her first time filing in federal court. The District Court described her litigation tactics as “vexatious and obstructive . . . aimed at thwarting [Ms. Boynton’s] efforts to carry out her duties as Special Administrator.”
The District Court also characterized Oxana’s conduct in her many appeals as part of “the same head-spinning litigation strategy” where she has “separately challenged nearly every adverse decision.” Describing the action before it, the District Court stated: “This suit, filed on January 14, 2022, bears the same hallmarks of Oxana’s frivolous and vexatious litigation tactics that she has used in the state litigation for six long years.”
The District Court granted defendants’ motion to dismiss, dismissed Oxana’s Amended Complaint, and ordered that Oxana will need advance leave of the Court before she may file any future litigation concerning this Estate.
(Cleaned up; emphasis added.)
The Orphans’ Court also noted that:
Not only have Oxana’s and Namish’s filings been duplicative, but they have resulted in unnecessary harassment to those unfortunate enough to be parties to these actions. In their pleadings, Oxana and Namish have engaged in troubling namecalling, including wholly unfounded, improper, immaterial, impertinent, and scandalous accusations of perjury, incest, bigamy, and sexual abnormalities (Emphasis added.)
(2) The litigant’s motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?
The Orphans’ Court stated: Oxana and Namish have no reasonable expectation of prevailing. Though at the outset the parties may have been uncertain of the litigation’s outcome, an objective person in Oxana’s and Namish’s place would have become aware of the likely outcome after the courts had consistently, uniformly, and repeatedly rejected their arguments. No reasonable person would have a good faith expectation of prevailing after their arguments have been rejected by the Circuit Court, sitting as the Orphans’ Court, the Appellate Court, the Supreme Court of Maryland, and the United States District Court for the District of Maryland. No reasonable person would continue to expect to succeed in invalidating the November l7, 2016 settlement agreement.
Oxana and Namish have also repeatedly failed to appear for hearings during this action. Whether out of fear of confronting opposing parties or for lack of substantial justification for their filings, their multiple failures to appear evidences their knowledge of the meritless nature of their arguments and claims.
(Footnote omitted.)
(3) Whether the litigant is represented by counsel.
The Orphans’ Court addressed this factor as follows: Although the parties have represented themselves throughout this action, Namish is an attorney and, upon information and belief, is licensed to practice law in the District of Columbia. Namish’s vexatious conduct is not a product of a lack of understanding of the legal process. Rather, his understanding of the law has likely enhanced his ability to take advantage of the legal system His repeated and duplicative filings only delay the Estate’s administration, [and] Oxana and he will likely be required to reimburse the Estate for a substantial amount of attorneys’ fees incurred in responding to their filings.
Oxana is not an attorney. However, even applying a more relaxed approach to her filings, Oxana’s filings cannot be considered anything other than vexatious. Multiple state and federal courts have repeatedly rejected her arguments, including concerning the validity of the settlement agreement. Neither Oxana’s nor Namish’s arguments are new or meritorious. All their motions, claims, or appeals have been dismissed or denied at both the state and federal level.
Oxana’s and Namish’s self-represented status changes nothing about the vexatious and harassing nature of their litigation tactics and the frivolous nature of their arguments and claims. Regardless of whether they have been assisted by legal counsel, a reasonable person in their position would have recognized the futility of continuing their barrage of filings.
(4) Whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel.
As to this factor, the Orphans’ Court found that: At the time of [Dr. Parikh’s] death, the Estate’s value was approximately $1.2 million. Tina contends that the total fees and expenses claimed by all parties exceed $700,000, most of which is attributed to Oxana’s and Namish’s bad faith conduct Clearly any pending litigation is unnecessary and expensive. [Oxana and Namish] have wasted judicial resources with their meritless claims and failures to appear for hearings. The Court finds that the instant litigation has long ago become a waste of resources and needlessly drained the Estate of a substantial amount of its value.
(5) Whether other sanctions would be adequate to protect the courts and other parties.
As to this issue, the Orphans’ Court stated:
Whether a litigant with a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties is the ultimate question the Court must answer Oxana’s and Namish’s proven blatant disregard for this Court and the judicial system suggests that there is no end in sight to their frivolous and vexatious filings. Therefore, an injunction appears likely to be the only means adequate to put a stop to Oxana’s and Namish’s egregious abuses of the judicial system.
Given the extensive history of this litigation that has spanned the course of seven years, requiring leave of the Court to submit any new filings is the only effective mechanism to protect the parties and the Court from the expense of further litigation. Nothing short of a pre-filing injunction will deter them from similar vexatious litigation in the future. Because a pre-filing injunction’s aim is to eliminate only frivolous actions, Oxana and Namish will still have access to the courts, but as to future litigation concerning this Estate, they will need advance leave of the Court before either of them may file another motion in this action or file any new action regarding the Estate.
The Court recognizes Oxana’s and Namish’s constitutional right to access the Courts. However, the requested relief does not outright preclude their access to the Orphans’ Court or the Circuit Court. After weighing the five Riffin factors, the Court finds that Oxana’s and Namish’s abusive conduct merits imposition of a prefiling injunction. Oxana and Namish will therefore need to obtain leave of the court before making any additional filings related to this Estate.
(Cleaned up.)
Based on these findings, the Orphans’ Court concluded that Oxana and Namish are vexatious litigants and required them to obtain advance leave of court before filing another motion
in the estate action or filing any new action relating to the estate.
Oxana and Namish argue that, by suggesting that “[n]o reasonable person would continue to expect to succeed in invalidating” the settlement agreement, the Orphans’ Court overlooked their claim that Ms. Boynton tricked them into signing the settlement agreement from the start; thus, by their reasoning, they do have a valid argument for invalidating the agreement. They are wrong. The Parikh I panel addressed the validity and enforceability of the settlement agreement in detail and concluded that it was enforceable. Parikh I, 2019 WL 289999, at *3–6. The time for appellants to have raised their trickery contention was in that appeal.
In continuing to attack the validity of the settlement agreement, Oxana and Namish prove the Orphans’ Court’s point: their arguments regarding the validity of the settlement agreement are meritless. “A party acts in bad faith when it acts vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons.” State v. Braverman, 228 Md. App. 239, 262 (2016) (cleaned up).
There is no good faith basis to dispute the validity of the Orphans’ Court’s order.
We conclude that appellants’ baseless and repeated attacks on the validity of the settlement agreement provides no basis for reversing the Orphans’ Court’s order finding that Oxana and Namish are vexatious litigants.
After considering this Court’s opinions in the previous six appeals, as well as the contentions raised by appellants’ briefs in the consolidated appeals before us, we conclude that Oxana and Namish have recycled the same meritless and thoroughly debunked arguments over and over again, even after multiple failed appeals and the imposition of sanctions against them for their bad faith behavior.
The Orphans’ Court summarized the convoluted history of this case and addressed the Riffin factors before issuing its injunction upon Oxana and Namish. We find no error in the Orphans’ Court’s well-reasoned analysis and its ultimate rulings. We agree with the Orphans’ Court’s holding that Oxana and Namish are vexatious litigants. We also agree with the Orphans’ Court that prohibiting appellants from filing a court paper without first obtaining permission to do so from either the Orphans’ Court or the circuit court is an appropriate remedy under the circumstances of this case.
2. The Award of Fees, Expenses, and Commissions
Oxana and Namish also challenge the award of fees, expenses, and commissions to Ms. Boynton, Tina, Neela, and their respective attorneys. In their briefs, they do not challenge the propriety of an award based on their abuse of judicial process; instead, they assert that an approximately $1 million “fine” is excessive and “grossly disproportionate to the ‘gravity of the offense[,]’” when, in their view, they have done nothing more than advocate for a valid will. In addition, they claim some duplication in the Orphans’ Court’s several awards of fees and expenses. There is no merit to either argument.
The award of fees, expenses, and commissions is expressly permitted when a litigant maintains a proceeding in bad faith or without substantial justification. See Md. Rule 1-341(a).18
Oxana’s and Namish’s characterization of the Orphans’ Court’s award of fees as a “fine” disproportionate to the gravity of their “offense” is inaccurate. The purpose of Rule 1-341 is not to punish litigants. As our Supreme Court has explained:
Rule 1-341 should not be construed as a punishment but merely as a mechanism to place the wronged party in the same position as if the offending conduct had not occurred. Rule 1-341 is not punitive but is intended merely to compensate the aggrieved party for their reasonable costs and expenses, including reasonable attorney’s fees.
Christian v. Maternal-Fetal Med. Assocs. of Maryland, LLC, 459 Md. 1, 19 (2018) (cleaned up).
In the present case, the fee awards reimburse appellees for the reasonable costs that they incurred defending against what the Orphans’ Court determined was Oxana’s and Namish’s continuing pattern of presenting baseless contentions in an attempt to nullify the settlement agreement. That the Rule 1-341 awards approach $1 million is the result of the litigation practices employed by appellants, despite repeated admonitions by the Orphans’ Court to cease their rehashing of issues previously decided in favor of their opponents.
Oxana and Namish also argue that some of the Orphans’ Court’s awards of fees, expenses, and commissions are duplicative. We read the record differently. For each award approved by the Orphans’ Court, Ms. Boynton, Tina, and Neela submitted detailed petitions, with itemized invoices and verified statements supporting their claims, as required by Rule 1-341(b). Oxana and Namish opposed each one. The Orphans’ Court held five hearings on the various fee petitions between 2021 and 2024. Oxana and Namish attended none of them to offer support for their opposition to the imposition of the requested awards.
In their briefs, Oxana and Namish point to overlapping time periods in the Orphans’ Court’s several Rule 1-341 awards, but they offer no proof of duplication of particular fees, expenses, or commissions. This is fatal to their claim, especially in light of the facts that: (1) Ms. Boynton incurred commissions, fees, and expenses in both the administration of the estate as personal representative and the litigation in defending the settlement agreement before Oxana and Namish were deemed to be acting in bad faith; and (2) Ms. Boynton, Tina, and Neela were each awarded judgments for the bad faith litigation undertaken by Oxana and Namish after that date, set by the Orphans’ Court as of April 26, 2017. In the absence of any evidence that the Orphans’ Court duplicated line items in its awards, Oxana and Namish do not meet their burden of proving error.
3. Appointment of Tina as Personal Representative of the Estate
Oxana and Namish assert that the Orphans’ Court should not have appointed Tina as personal representative of the estate. In their view, upon Ms. Boynton’s motion to withdraw as personal representative, Oxana should have been appointed as successor personal representative.
By order dated February 25, 2025, the Orphans’ Court granted, in part, Ms. Boynton’s petition to resign as personal representative of the estate and to substitute Tina in her place.19 The court required Ms. Boynton to continue to serve as personal representative until she fulfilled certain obligations to the estate. Until then, Tina would be her copersonal representative, succeeding her as sole personal representative once those obligations were complete.
Upon termination of a personal representative by resignation, the Orphans’ Court is required to appoint a successor personal representative. Pursuant to EST. & TRUSTS § 5-104, the classes of persons to be considered as successor personal representative (in descending order of priority), are: residuary legatees; children of a testate decedent entitled to share in the estate; any other person having a pecuniary interest in the proper administration of the estate; and any other person.
Appellants are correct that Dr. Parikh’s will named Oxana as personal representative of his estate. However, Oxana has demonstrated on repeated occasions that she is unable or unwilling to perform the duties of either a special administrator or a personal representative for Dr. Parikh’s estate.
Because she is a beneficiary of the estate and a person with a pecuniary interest in the proper administration of the estate, Tina is an appropriate person to be appointed successor personal representative. See EST. & TRUSTS § 5-104. On the other hand, Oxana fits into none of these categories.
Moreover, there is no evidence in the record that Tina has acted adversely to the interests of the beneficiaries or the estate. In stark contrast, it is abundantly clear that Oxana and Namish have engaged in meritless litigation over the last nine years. One consequence of their conduct is that the administration of Dr. Parikh’s estate has been prolonged unnecessarily. Another consequence is that the assets of the estate have been depleted through awards of fees, expenses, and commissions to the parties defending against their meritless contentions. There is no basis upon which to find that the Orphans’ Court erred or abused its discretion in appointing Tina as personal representative of the estate instead of Oxana.20
FOOTNOTES
1 On September 4, 2025, we granted Oxana’s and Namish’s motion to consolidate appeal No. 2537, September Term, 2024, with the previously consolidated appeals in No. 1533, September Term, 2023, and Nos. 1374 and 1922, September Term, 2024.
2 Because several parties and interested persons in this matter share a surname, we will refer to some of the members of the Parikh family by their given names. We mean no disrespect. In their briefs, the parties use “him,” “his,” “she,” and “her” to refer to individuals in lieu of non-gender specific pronouns. We will do the same.
3 See MD. CODE, EST. & TRUSTS § 2-101 (“In the estates of decedents law, the word ‘court’ means the orphans’ court in a county, or the court exercising the jurisdiction of the orphans’ court in a county.”). A judge of the Circuit Court for Montgomery County “at the time sitting as the Orphans’ Court for the County shall have full power to do an act which the Orphans’ Court of the County is or shall be authorized to perform[.]” EST. & TRUSTS § 2-106(c).
4 On January 14, 2025, Tina filed a motion requesting that we declare appellants to be vexatious appellate litigants and to issue an order to enjoin them from filing further appeals until a final accounting for the Estate has been completed. Appellants filed an opposition to the motion, and Tina and Ms. Boynton filed responses to appellants’ motion.
On February 3, 2025, this Court denied the motion “without prejudice to the appellees to seek further appropriate sanctions pursuant to Maryland Rule 1-341.”
5 Oxana and Namish were divorced in 2010.
6 Neela denied consenting to the divorce or knowing anything about the divorce proceeding. She later moved to vacate the North Carolina judgment of divorce.
7 The procedural history of the early stages of the administration of Dr. Parikh’s estate are described in detail in Parikh I, 2019 WL 289999, at *2–11.
8 See EST. & TRUSTS § 6-401(a)(1) (authorizing the Orphans’ Court to appoint a special administrator for an estate “if it is necessary to protect property before the appointment and qualification of a personal representative”).
9 Tina and Neela’s share was to be divided in accordance with an agreement between them.
10 There are exceptions to the law of the case doctrine. It does not apply when:
(1) the evidence in a subsequent trial is substantially different from what was before the court in the initial appeal; (2) a controlling authority has made a contrary decision in the interim on the law applicable to the particular issue; or (3) the original decision was clearly erroneous and adherence to it would work a manifest injustice.
Baltimore County v. Fraternal Ord. of Police, Baltimore County Lodge No. 4, 449 Md. 713, 730 (2016).
Appellants do not assert that any of these exceptions apply in the cases before us. We agree.
11 Our prior holdings notwithstanding, Oxana and Namish assert in the present appeals that the use of different surnames is fraudulent and that Ms. Boynton therefore “feigned being appointed personal representative” of the estate. These contentions are completely meritless.
12 Appellants’ issues are
1. Inchoate executory contract nonetheless failed due to failure to fully/timely perform[.]
2. OC lacks jurisdiction to consider “issue of who was entitled to” Duke stocks[.]
3. Neela/Tina are not “wives[.]”
4. Fraudulently procured OC order fabricating “incest,” approving bigamy, altering Will and filing fraudulent state/federal “married” joint tax returns[.]
6. Dkt. 538: CC has no jurisdiction over Estate matter[.]
7. Assuming jurisdiction, Dkt. 538 is still flawed[.]
8. CC relied on a reversed USDC order as predicate[.]
9. Appellants have been pro se since 6/28/17[.]
10. Dkt. 582/587 contains no citation to rules, statutes, or case law[.]
11. Challenge to inchoate executory contract with failed condition is/was “colorable[.]”
12. OC has no law-of-the-case doctrine (LCD) – it would defeat purpose of OC[.]
13. No fees “actually incurred,” i.e., paid “out-of-pocket” to defend against a specific position[.]
14. Total fees/costs unlawfully included fees for repeated untimely sanctions[] motions[.]
15. Each party waived attorneys’ fees in so-called agreement[.]
16. Double counting fees for duplicate work[.]
17. Fees/cost for Pendleton/Debelius are unlawful because she was never appointed[.]
18. No bank statements to support value of Estate funds[.]
19. Approx. $1 million in fines/fees/cost to administer an estate is excessive – thus unconstitutional[.]
20. OC misconduct[.]
21. Dkt. 520 and 582/587 are duplicate expenses[.]
22. Dkt. 521 omits proof of predicate – timely conveyance by Tina to Estate[.]
23. Dkt. 541 rendered moot by superseding Dkts. 582/587[.]
24. Dtk. 564 must be reversed because Oxana was never removed as PR by OC[.]
25. Dkt. 565 must be reversed to safeguard Estate assets from further dissipation by Pendleton[.]
26. Dkts. 566 & 581 must be reversed to reassert dignity of rule of law, ethics, and morality[.]
27. Dkt. 567 must be reversed as a matter of common sense[.]
28. Dkt. 568 must be reversed to put Pendleton before a [j]ury[.]
29. Dtks. 582 & 587[.]
Issues 5 through 8 and 19 are properly before us.
13 Md. Rule 15-502(b) provides: “Subject to the rules in this Chapter, the court, at any stage of an action and at the instance of any party or on its own initiative, may grant an injunction upon the terms and conditions justice may require.”
14 Tina moved to dismiss the appeal. On May 18, 2023, this Court granted the motion. We concluded that the appeal was filed in bad faith and without substantial justification and that Ms. Boynton, in her capacity as the personal representative of Dr. Parikh’s estate, was entitled to an award of attorneys’ fees and costs incurred pursuant to Md. Rule 1-341. We remanded the action to the Orphans’ Court for it to determine the amount of fees and costs and to enter judgment accordingly.
15 The Court denied as moot Tina’s “Petition for Expedited Decision for Finding that Oxana and Namish Parikh are Vexatious Plaintiffs,” which was filed on September 8, 2023.
16 Md. Rule 15-502 states in pertinent part:
(b) Issuance at Any Stage. Subject to the rules in this Chapter, the court, at any stage of an action and at the instance of any party or on its own initiative, may grant an injunction upon the terms and conditions justice may require.
17 Oxana and Namish also take issue with the fact that the caption of the court’s opinion and order states it was decided “IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND.” They aver that only the Orphans’ Court can enter orders in an estate matter, and the circuit court does not have the jurisdiction to strip them “of their constitutional rights to access Md. courts[.]”
These contentions are based upon a false premise. Oxana and Namish fail to acknowledge that the word “CIRCUIT” was crossed out in the caption of the order in question and replaced with a handwritten “Orphans’” before the order was filed.
Moreover, the order was signed by Judge Christopher C. Fogleman, of the “Circuit Court for Montgomery County, Maryland Sitting as the Orphans’ Court” and is docketed in the Orphans’ Court. See also Parikh v. Fogelman, No. 8:24-CV03627-AAQ, 2026 WL 179924, at *6 (D. Md. Jan. 23, 2026) (“Plaintiff also alleges that Defendant crossed out ‘Circuit’ and wrote ‘Orphans’’ to docket the injunction in Orphans’ Court, arguing that relabeling the court which issued the order renders the order a non-judicial act. This argument fails; what appears to be an attempt to correct a previously mislabeled document does not change the judicial nature of issuing the order.” (cleaned up)).
18 Rule 1-341(a) reads:
In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.
Rule 6-141 authorizes orphans’ courts to grant similar awards. The rule states:
If the court finds that the conduct of any person in maintaining or defending any proceeding was in bad faith or without substantial justification, the court may require the offending person or the attorney advising the conduct or both of them to pay to any other person and, when appropriate, to the estate the costs of the proceeding and the reasonable expenses, including reasonable attorney’s fees, incurred by the person or estate in opposing it.
19 The order was signed by Judge Sharon V. Burrell, who had replaced Judge Richard E. Jordan as the specially assigned judge presiding over the Parikh estate per an order signed by Montgomery County Administrative Judge James A. Bonifant, dated January 31, 2025.
Oxana and Namish complain that, as a friend of Ms. Boynton and her attorney, Judge Bonifant had a conflict of interest and should not have been permitted to replace the ailing Judge Jordan; therefore, any orders issued by the improperly appointed Judge Burrell (including her orders declining to accept Oxana’s and Namish’s petitions for filing, pursuant to the pre-trial injunctive order) were invalid and must be reversed.
As a separate basis for our conclusion that there was no error or impropriety on Judge Bonifant’s part, we point out that appellants offered no authority for their assertion that the circuit court’s administrative judge should not have been permitted to carry out a routine administrative judicial substitution in his sound discretion. This is fatal to their argument. See Westminster Mgmt., 486 Md. at 674 (“[I]f a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.” (quoting DiPino, 354 Md. at 56)).
20 On August 18, 2025, Oxana and Namish filed motions to strike “‘Imposter Pendleton’s Answering Briefs’” and “‘NonInterested-Person,’ sometimes Dr. Parikh’s ‘Wife,’ and sometimes Trust beneficiary, Tina Parikh-Smith’s Answering Brief.” These motions are meritless and we deny them.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court dismissed husband’s appeal from an order issued by the Prince George’s County Circuit Court. Where, as here, a party seeks and secures an in banc review, they are precluded from pursuing their right to appeal to the Appellate Court of Maryland.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
ACM sometime on or before September 10, 2025. 1
On November 19, 2025, Appellee filed a Motion to Withdraw Appeal, alleging Appellant was precluded from appealing under Md. Rule 2-551(h) by virtue of his consent to proceed with an in banc review. Appellant argued on November 26, 2025 in his Motion in Opposition to Appellee’s Motion to Withdraw that the in banc panel exceeded the scope of the issues before it, because Appellant sought review of “whether a mortgage payment on a rental property constitutes an ordinary or necessary expense required to produce income” and not “whether there was ‘credible testimony or evidence to support a finding that the Plaintiff’s mortgage was an ordinary and necessary expense’ required to produce income from rent.”
On December 5, 2025, Chief Judge Wells entered an order, stating the following:
This appeal arises from the calculation of child support obligations for Appellant, Emanuel Agbara (“Appellant”) by the Circuit Court for Prince George’s County. In a previous opinion, we vacated the judgment of the circuit court regarding Appellant’s child support obligations and remanded for the circuit court to consider the deduction of Appellant’s “ordinary and necessary” income-producing expenses regarding his two rental properties, for purposes of determining his “actual income” pursuant to Md. Code Ann., Fam. Law (“FL”) § 12201(b)(2).
On March 11, 2025, Appellant filed an appeal to the circuit court’s order that was entered around March 3, which recalculated his “actual income” pursuant to FL § 12-201(b) (2) following a remand hearing. During the remand hearing on February 26, 2025, the circuit court did not consider any new evidence and deducted expenses for only one of Appellant’s two rental properties.
On June 3, 2025, Appellant sought an in banc panel review to address the following two questions:
1. Is a mortgage on a rental property an ordinary or necessary expense required to produce income from a rental property?
2. Did the circuit court abuse its discretion when it declined to admit evidence or take testimony on remand to determine a child support obligation?
Subsequently, Appellant filed an appellate brief on June 23, 2025, which included an additional question regarding whether the court erred in deducting only one of his rental properties’ expenses. This question was not specifically presented to the in banc panel. Appellant withdrew his notice of appeal to the
Upon consideration of the appellee’s “Motion to Withdraw the Appellant’s Appeal,” which the Court will treat as a motion to dismiss this appeal, the appellant’s “Motion in Opposition to Appellee’s Motion to Withdraw the Appellant’s Appeal” and “Supplement to Appellant’s Motion in Opposition to Appellee’s Motion to Withdraw Appellant’s Appeal,” it is this 5th, day of December 2025 by the Appellate Court of Maryland, ORDERED that ruling on the appellee’s motion to dismiss is deferred to the Panel assigned to consider this appeal. Relative to the instant appeal before us, Appellant presents five questions,2 which are rephrased and reordered for clarity, as follows:
1. Did the circuit court err in failing to deduct “ordinary and necessary expenses” from Appellant’s Maryland rental property’s gross income when calculating his actual income?
2. Did the circuit court err by failing to deduct mortgage expenses when calculating actual income under FL § 12-201?
3. Did the circuit court err in not considering additional evidence regarding Appellant’s rental income?
For the reasons stated below, we treat Appellee’s motion to withdraw Appellant’s appeal as a motion to dismiss and dismiss the appeal.
BACKGROUND
Following their initial marriage in Nigeria in January 2013, Appellant and Appellee moved to Maryland where they held a second wedding ceremony in Prince George’s County on November 25, 2013. The marriage produced one child, born in January 2015. Several years later, the relationship of the
parties became strained and on June 15, 2018, the Circuit Court for Prince George’s County entered a Judgment of Absolute Divorce (“JAD”) awarding Appellee with primary custody and setting forth Appellant’s child support obligations.
On June 29, 2018, Appellant appealed the JAD on the basis that the circuit court erred in calculating his child support obligations by extrapolating his annual income from a single 2018 quarter that included non-recurring overtime. During that appeal, we rejected Appellant’s argument, but nevertheless found the circuit court erred by failing to decide the issue of alimony before determining Appellant’s child support obligation. Additionally, we found an error in the circuit court’s calculation of the parties’ actual monthly income, explaining: Setting aside, for the moment, Husband’s claim of error in the court’s inclusion of overtime and other pay in its annualization of his first quarter income, it appears that the circuit court erred factually in calculating both Husband and Wife’s actual monthly income. In its oral ruling, and on the child support guidelines worksheet it prepared, the court stated that Husband’s monthly income, based on annualized income of $164,000, was $13,776. By our calculation, however, $164,000 divided by twelve equals $13,666.67, creating an overstatement by the court of Husband’s income by approximately $109 per month.
And, after reviewing two of Wife’s paystubs, one of which apparently exhibited her 2018 first quarter income, the court, in calculating her yearly income, stated, it, “that’s a quarter and I multiplied it by 3. It was 7000 something and I multiplied it by 3.” The court then presumably divided its total by 12 to reach monthly income of $1,778. The proper calculation, however, would have been to multiply Wife’s first quarter income by four and then divide the total by twelve. The court, in its incorrect calculation, excluded three months of Wife’s income, understating her income by one quarter.” For these reasons, we will vacate the child support award, subject to the conditions set out in part 3 of this opinion.
On July 29, 2019, in an unreported opinion, we vacated the child support and alimony awards and remanded the case to the circuit court for further proceedings.
The remand hearing was not scheduled until almost four years later, when Appellant brought the outstanding matter to the attention of the circuit court on August 8, 2023. Agbara v. Okoji, No. 264, Sept. Term, 2024, 2024 WL 4814243, at *3 (Md. App. Ct. Nov. 18, 2024). On March 8, 2024, the circuit court reduced the child support payments and adjusted Appellant’s new income level by combining his 2023 W-2 earnings with an estimated $3,000 in monthly income from his two rental properties. Id. at 4. This $3,000 rental figure was derived by totaling the gross revenue from his Maryland property ($3,550) and Florida property ($2,300), then attributing roughly half of that total to him. Id. Consequently, the court ordered a new monthly child support obligation of $2,004, effective April 1, 2024. Id. The complete analysis of Appellant’s actual income by the circuit court is presented below:
This court does not find credible the testimony of Mr. Agbara that his rental properties generate no revenue. His testimony was that his Maryland property generates rental income of $3550.00 and that his Florida property generates $2300 in rental income. This court attributed approximately half of this amount to his monthly income and found $3000.00 in monthly rental income to Mr. Agbara.
Id. at 8.
Appellant filed another appeal on the basis that, inter alia, the circuit court abused its discretion when it calculated his child support obligations. Id. He argued that the circuit court erred by taking approximately half of the total rent he collected and labeling it as “income.” Id. He alleged that under FL § 12201(b)(2), actual income from his rental properties is not just the total amount of checks a landlord receives (gross income); instead, the law requires the court to subtract the “ordinary and necessary expenses” paid to keep the property running before deciding actual income for child support purposes. Id.
On November 18, 2024, we affirmed in part and vacated in part. Id. We found “it is not clear that the circuit court actually subtracted the ordinary and necessary expenses required to produce [Appellant’s] rental income before applying that income to its calculation of his child support obligations.” Id. For this reason, the circuit court “abused its discretion when it decided to attribute approximately half of [Appellant’s] gross monthly rent to his monthly income.” Id. Accordingly, we provided the following instructions:
On remand, the circuit court should render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce Agbara’s rental income, and then subtract that amount from his gross monthly rental income of $5,850 to determine his actual income from rent. Since the circuit court failed to do that in this case, its modified child support award should be vacated.
Id.
On February 26, 2025, the circuit court held a hearing, without receiving any new evidence, to reevaluate its previous ruling on Appellant’s child support obligations. The court rendered specific factual findings on what constitutes Appellant’s “ordinary and necessary expenses,” pursuant to this Court’s instructions. In doing so, the court identified Appellant’s repair costs, condominium fees, and management fees as “ordinary and necessary expenses.” However, the court failed to render findings of fact regarding which expenses belonged to the Maryland and Florida properties respectively, and did not deduct Appellant’s mortgage expenses.
The court issued a final order setting Appellant’s child support payments at $2,402 monthly, effective April 1, 2024, based on “the gross rental income minus ordinary and necessary expenses based on the testimony and exhibits addmitted [sic] into evidence at the modification hearing.” The court explained its calculation as follows:
In calculating child support, the Court considered the W2s submitted by the parties as well as the rental income testified to by Father. His testimony was that his Maryland property generates rental income of $3550.00 and that his Florida property
generates $2300 in rental income. This court did not find father’s testimony that his rental properties generate no revenue to be credible. Father’s financial statement was admitted into evidence as Defendant Exhibit 8 which established that father’s “secondary residence” had the following related monthly expenses: Mortgage $2029, repairs $400, Condominium Fee $120, Management Fee $184 for total secondary residence expenses of $2733. This court deducted the total of these expenses from the rental income testified to by father which reduced the total to $3117.00. Thereafter the court attributed $3000.00 in monthly rental income to Mr. Agbara.
In its opinion, the Appellate Court of Maryland referenced Reichert v. Hornbeck, 210 Md. App. 282 (2013) which held that it was “error for the circuit court to calculate [a payor’s] child support obligations by including the gross rent he received for his condominium without subtracting ‘ordinary and necessary expenses required to produce [that] income[.]’” 210 Md. App. 282, 327, n.12 (2013) (quoting Md. Code Ann., Fam. Law § 12-201(b)(2)).
In the prior calculation, this court erroneously subtracted the mortgage payment for secondary residence as well as the ordinary and necessary expenses required to produce Agbara’s rental income before applying that income to its calculation of his child support obligations. Mr. Agbara provided no testimony and presented no evidence regarding any deductions to his rental income and this court finds that the evidence submitted demonstrates that ordinary and necessary expenses required to produce his rental income include the following monthly expenses extrapolated from the Financial statement admitted into evidence as Defendant Exhibit 8: $400.00 repairs, $120.00 Condominium Fees, $184.00 Management fees- for a total of $704.00 in ordinary and necessary expenses required to produce Agbara’s rental income.
On March 11, 2025, Appellant filed the instant appeal, challenging the calculation of his child support obligation. A few months thereafter, on June 3, 2025, Appellant sought an in banc panel review to address the following two questions:
1. Is a mortgage on a rental property an ordinary or necessary expense required to produce income from a rental property?
2. Did the circuit court abuse its discretion when it declined to admit evidence or take testimony on remand to determine a child support obligation?
At some point prior to in banc review, Appellant withdrew his appeal to the ACM. On September 10, 2025, a three-judge panel of the circuit court conducted the in banc hearing and issued the following findings:
This matter came before the Court on September 10, 2025, for an In Banc Review of the Court’s hearing on recalculation of child support on February 26, 2025. Plaintiff presents for in banc review whether a mortgage on a rental property constitutes an ordinary or necessary expense required to produce
income, and whether the Court abused its discretion by declining to admit evidence or take testimony on remand to determine a child support obligation.
Having considered the Plaintiff’s memorandum, the record transmitted by the court, and the arguments of both parties, the Court finds no abuse of discretion. The appellate court instructed the circuit court to render specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce Plaintiff’s rental income. On remand, Judge Curry explained and revised her initial calculations, ultimately finding that there was no credible testimony or evidence to support a finding that the Plaintiff’s mortgage was an ordinary and necessary expense. The trial court’s conclusion that there was no credible evidence establishing the mortgage payment as an ordinary and necessary expense under Md. Code Ann., Fam Law § 12-201(b)(2) is supported by the record.
As to the Plaintiff’s second issue—whether the Circuit Court erred in refusing to admit additional evidence on remand—the panel finds no abuse of discretion. The remand order directed Judge Curry only to reconsider the child support calculation and to clarify its initial ruling by making specific factual findings regarding expenses. Judge Curry followed that instruction and explicitly stated that no new evidence would be admitted, relying solely on the existing record. Given the limited scope of the remand and the Appellate Court’s instructions, Judge Curry properly declined to allow additional evidence.
On November 19, 2025, Appellee filed a Motion to Withdraw Appeal, alleging Appellant was precluded from appealing under Md. Rule 2-551(h) by virtue of his consent to proceed with an in banc review. Appellant argued on November 26, 2025, in his Motion in Opposition to Appellee’s Motion to Withdraw, that the in banc panel exceeded the scope of the issues before it because he sought review of “whether a mortgage payment on a rental property constitutes an ordinary or necessary expense required to produce income” and not “whether there was ‘credible testimony or evidence to support a finding that the Plaintiff’s mortgage was an ordinary and necessary expense’ required to produce income from rent.”
On December 5, 2025, Chief Judge Wells entered an order, stating the following:
Upon consideration of the appellee’s “Motion to Withdraw the Appellant’s Appeal,” which the Court will treat as a motion to dismiss this appeal, the appellant’s “Motion in Opposition to Appellee’s Motion to Withdraw the Appellant’s Appeal” and “Supplement to Appellant’s Motion in Opposition to Appellee’s Motion to Withdraw Appellant’s Appeal,” it is this 5th, day of December 2025 by the Appellate Court of Maryland,
ORDERED that ruling on the appellee’s motion to dismiss is deferred to the Panel assigned to consider this appeal.
STANDARD OF REVIEW
“As an appellate tribunal, the in banc court ‘is subordinate to this Court just as we are subordinate to the Court of Appeals.’” Guillaume v. Guillaume, 243 Md. App. 6, 11–12 (2019) (quotation omitted). In most instances, the appellate court’s primary function is to review the judgment of the trial court. See id. Consistent with this principle, when an appeal presents a pure question of law, the standard of review is de novo. See id. “When reviewing a trial court’s exercise of discretion, however, ‘our standard is abuse of discretion, which is highly deferential to the trial court that is the judicial body that exercised its discretion.’” Id. (quotation omitted).
Furthermore, we review challenges to a court’s jurisdiction de novo See Stephen L. Messersmith, Inc. v. Barclay Townhouse Assocs., 313 Md. 652, 664 (1988). Judgments entered without jurisdiction “should be accorded no deference at all on appeal[.]” See id. Similarly, “[w]here appellate jurisdiction is lacking, the appellate court will dismiss the appeal sua sponte[.]” Eastgate Assocs. v. Apper, 276 Md. 698, 701 (1976).
DISCUSSION
I. An Election for In Banc Review Waives the Right to Appellate Review Absent a Statutory Exception. Under Md. Rule 2-551(h), the party who seeks and secures an
in banc review is precluded from pursuing their right to appeal to the Appellate Court of Maryland. That rule states in pertinent part:
Any party who seeks and obtains review under this Rule has no further right of appeal. The decision of the panel does not preclude an appeal to the Appellate Court by an opposing party who is otherwise entitled to appeal.
Since Appellant elected to proceed with an in banc review, Appellant waived his right to this appeal. Consequently, we decline to reach the merits of the questions presented.
Appellant’s additional question—concerning whether the circuit court erred by failing to deduct “ordinary and necessary expenses” from the Maryland rental property income —is functionally and legally subsumed into the questions presented to and decided by the in banc panel. Since this additional question involves the same property and the same financial records addressed in the in banc proceeding, it is a restatement of the same controversy. Therefore, we need not address the additional question on the merits. The in banc decision remains final.
CONCLUSION
For the foregoing reasons, we dismiss Appellant’s appeal.
APPELLEE’S MOTION TO WITHDRAW APPELLANT’S APPEAL, WHICH WAS TREATED AS A MOTION TO DISMISS APPEAL, IS GRANTED. APPEAL DISMISSED. COSTS TO BE ASSESSED AGAINST APPELLANT.
FOOTNOTES
1 Although a transcript is unavailable, the daily docket sheet filed on September 25, 2025 serves as confirmation that Appellant withdrew his notice of appeal prior to the in banc panel hearing.
2 Appellant’s original questions for the instant appeal are as follows:
1. Does the Appellate Court Mandate, “On remand, the circuit court should render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce Agbara’s rental income,” require the circuit court to determine the ordinary and necessary expenses required to produce income on each of the two rental properties that produce income towards “his gross monthly rental income of $5,850”?
2. Does a circuit court have discretion to subtract ordinary and necessary expenses required to produce income from the gross rental income?
3. Did the Appellate Court Mandate limit the trial court to conduct a hearing on Appellant’s income from rent on remand to the record?
4. Is a mortgage on rental property a rental expense under FL § 12-201(b)(2)?
5. Does FL § 12-201(b)(2) limit the number of hearing [sic] on an issue of child support obligations?
3 Rephrased from the question:
Does the Appellate Court Mandate, “On remand, the circuit court should render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce Agbara’s rental income,” require the circuit court to determine the ordinary and necessary expenses required to produce income on each of the two rental properties that produce income towards “his gross monthly rental income of $5,850”?
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 4 (2026)
Military benefits; calculation; marital settlement agreement
The Appellate Court affirmed the Anne Arundel County Circuit Court’s calculation of what portion of husband’s military retirement benefits wife was entitled to receive.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
3. Was the circuit court’s striking of [Wife’s] Supplemental Post Hearing Memorandum arbitrary and capricious[?]
For the reasons set forth herein, we shall affirm the judgment of the circuit court.
BACKGROUND
The parties married on May 8, 1998, and a final judgment of divorce was entered on April 9, 2009. Prior to the judgment of divorce being entered, the parties entered into a marital settlement agreement on September 19, 2008, wherein they agreed that a portion of Husband’s military retirement benefits would constitute marital property that they would divide equally, and they included the following provision in Paragraph 27 of the agreement, stating:
Kelly Marie Harrigan Campbell (“Wife”), appellant, was divorced from Kevin John Campbell (“Husband”), appellee, in the Circuit Court for Anne Arundel County in 2009. Prior to entry of the judgment of divorce, the parties had negotiated a marital settlement agreement that addressed the division of their marital property, including, but not limited to, Husband’s military retirement benefits. The marital settlement agreement was incorporated, but not merged, into the Judgment of Absolute Divorce.
Approximately nine years after the parties’ divorce, Husband retired from the military. Wife sought a court order directing the Defense Finance and Accounting Service (“DFAS”) to pay directly to her the portion of Husband’s military retirement pay that she was entitled to receive pursuant to the marital settlement agreement. The parties disagreed about the portion of Husband’s military retirement benefits Wife was entitled to receive, and they filed competing motions in the circuit court. The circuit court agreed with Husband’s assertion that the correct computation entitled Wife to receive 15.96% of Husband’s gross disposable military retired pay, and, on at least two separate occasions, the court entered an order to that effect. The court also ordered Husband to pay Wife backpay for past-due amounts.
Wife noted this appeal and presented three questions:
1. Did the circuit court err as a matter of law when it held that it did not have authority to make substantive changes to the March 3, [2022] order [that held Wife should receive 15.96% of Husband’s military retired pay]?
2. Is [Wife] entitled to a 27.3% share of [Husband’s] military pension pursuant to [f]ederal law?
The parties agree that a court of competent jurisdiction shall enter an order which directs the Maryland Air National Guard to pay directly to Wife such amount as is equal to fifty percent (50%) of the “marital property portion” of Husband’s disposable retired pay. The “marital property portion” of the monthly retired pay shall be a fraction of the total monthly retired pay, and shall be defined as follows: the numerator shall be the total number of points accumulated during Husband’s creditable service during the parties’ marriage, and the denominator of which shall be the total number of points credited to Husband for retirement purposes. Husband shall execute such documents and perform such acts as may be necessary or required so that Wife shall receive her share of the gross monthly retired pay directly from the Maryland Air National Guard, including but not limited to any forms which Husband is required to execute by the Maryland Air National Guard in order to effectuate the terms of this Judgment of Absolute Divorce.[ 1] (Emphasis added.)
Although this provision, on its face, suggests that this computation would be relatively simple, the arithmetic was complicated by Husband’s continued military service after the divorce. Husband’s resumption of full-time active duty resulted in his retirement being classified as an “active duty” retirement rather than a “reserve duty” retirement. Husband’s military service was served partly on active duty, but the majority of his service during this marriage was in the reserves. Husband was an active-duty service member in the United States Air Force from May 30, 1990, through April 1, 1999. (As noted above, the parties married on May 8, 1998,
and the final judgment of divorce was entered April 9, 2009.) He served on reserve duty in the Air National Guard from September 22, 1999, through June 20, 2013, and, therefore, was on reserve duty at the time of the parties’ divorce. Four years after the divorce, Husband resumed active-duty service with the United States Air Force on June 21, 2013, and he remained on active-duty status until he retired from the military on April 1, 2018.
We note that, after this appeal was filed and argued, this Court observed in Smith, 266 Md. App. at 126: “[W]hen the military retirement benefit is a result of the combination of active and reserve component service, points are the proper method for calculating the fraction” of the benefit that is marital property. Although that statement is consistent with Husband’s position in this case, Wife does not agree that her share should be computed using points, and that led to a number of hearings in the circuit court.
It appears the circuit court’s post-divorce involvement in the battle regarding the proper calculation of Wife’s share of Husband’s military retirement pay was initiated on July 19, 2019, when Wife filed a motion that included a section captioned Motion for Appropriate Relief for Co[n]stituted Pension Order. She asserted that, pursuant to “the parties’ divorce agreement, [Wife] is entitled to a Constituted Pension Order, awarding her a portion of [Husband’s] retirement pay.” Although she attached the marital settlement agreement as an exhibit, she did not quote verbatim the language of Paragraph 27 regarding the computation of the “ʻmarital property portion’ of Husband’s disposable retired pay.” Instead, Wife asserted in her motion: “The amount is to be computed by multiplying fifty percent times a fraction, the numerator of which is the number of months of marriage during [Husband’s] creditable military service divided by [Husband’s] total number of months of creditable service as of the date of divorce.”
Wife’s motion of July 19, 2019, asserted:
The duration of the marriage in relation to the time [Husband] performed creditable [service] for retirement pay is 10 years and 10 months, one hundred and thirty months total. The total amount of [Husband’s] active duty service performed was twenty years and nine days or a total of two hundred and forty months. Therefore, the fraction used in the calculation is 130/240. Which means the parties were married 54.17 percent of [Husband’s] performed active duty creditable service. Multiplying this by fifty percent equals 27 percent of [Husband’s] retired pay which should be awarded to [Wife] in a Constituted Pension Order.
On August 27, 2019, Husband filed an answer to Wife’s July 19, 2019 motion, and Husband expressed his disagreement with “the manner in which [Wife] has recited the extent of her entitlement to those [military retirement] benefits.” Husband noted that he had filed his own motion on August 15, 2019, requesting that the court enter an order computing Wife’s share based on points. In Husband’s motion filed August 15, 2019, he asserted:
b- That [Husband] entered military service on May 30, 1990.
c- That [Husband] retired from the military services
on March 31, 2018. . . .
d- That during [Husband’s] time in the military, he earned 8369 points.
e- That the parties were divorced from one another on April 3, 2009.
f- That, during the time of the marriage, [Husband] earned 2672 points.
g- That [Wife], pursuant to the [Marital Settlement Agreement dated September 19, 2008,] was entitled to a marital award which was equal to 50% of the percentage of a fraction, the numerator of which were the points earned by [Husband] during the marriage and the denominator of which were the total number of points earned during the time that [Husband served] in the military times the amount of [Husband’s] military retirement pay at the time of the divorce.
When converted to a percentage, the fraction produced by dividing 2672 by 8369 is 31.927%, and one-half of that percentage is 15.96%. Husband’s motion filed August 15, 2019, asked the court to enter his proposed Order for Division of Military Retirement Pay directing DFAS to pay Wife 15.96% of Husband’s disposable military retired pay. In support of this motion, Husband filed a copy of the marital settlement agreement, a proposed order for dividing his military benefits, a document summarizing his service history and points awarded for his service, and a letter from the Department of the Air Force.
Litigation skirmishes ensued, including discovery, disputes about discovery, miscellaneous motions and mediation, as well as dealing with the scheduling issues created by the COVID pandemic. Eventually, the circuit court scheduled the competing motions relative to the military retirement pay for an evidentiary hearing on the merits to be conducted on November 18 and 19, 2021. At those hearings, Wife urged the court to consider two issues: modification of child support payments, and issuance of a “constituted pension order” addressing division of Husband’s military retirement pay. With respect to the retirement pay, Wife asserted that the language in the marital settlement agreement regarding a fraction based upon Husband’s points should not apply because Husband had retired from the military while serving on active duty. Representing herself at the hearing, Wife argued that her position was supported by Marquis v. Marquis, 175 Md. App. 734 (2007). In Marquis, this Court observed that a constituted pension order (sometimes referred to as a “CPO”) is similar to a Qualified Domestic Relations Order (sometimes referred to as a “QDRO”), but a CPO is “applicable to military retirement pay.” Id. at 739 n.1.
Wife further argued, at one point during the hearing, that the division of Husband’s military retirement pay was governed by Paragraph 26 of the marital settlement agreement rather than Paragraph 27. Her theory was that Paragraph 27 referred to the Maryland Air National Guard whereas Husband’s retirement pay was based upon twenty years and nine days of service in the United States Air Force. Wife’s contention (at that point) was that Paragraph 27 only “pertains to a National Guard pension.” When the court said to Wife, “I
understand your position is that it is no longer a National Guard pension because it is now some active-duty pension is your argument[,]” Wife answered yes.
Husband responded, through counsel, that, unlike the Marquis case, Wife and Husband in this case expressly agreed to the computation of the marital property portion of Husband’s military retirement pay by dividing the points he earned during their marriage by the points Husband earned over the course of his entire service in the military prior to retirement. We see nothing in Marquis that precludes the use of points to compute the marital property portion of a spouse’s military retirement pay.
Husband further pointed out to the court that, if the fraction was to be computed using only his twenty years and nine days of active-duty service as the denominator, the pertinent active-duty time served during his marriage to Wife was only five years, seven months and sixteen days. In his view, if the denominator was 240 months, the correct numerator to use would be sixty-eight months, which would yield a marital property fraction of 28.3%, and Wife’s one-half share of that would be 14.2% of the military retired pay. But his primary argument was that the court should utilize the formula that the parties had agreed to in their marital settlement agreement— which had been incorporated into the judgment of divorce— and the percentage should be calculated using his points for the entirety of his military service in the Maryland Air National Guard and the United States Air Force.
At the conclusion of the two-day hearing, the court orally advised the parties of rulings that would guide the court in framing an order regarding Wife’s share of Husband’s military retirement benefits. The court recognized that Wife wanted the court to sign an order that would be reflective of her position that the computation of the marital share should be done using months of service instead of service points, and that Wife also asserted that the computation should be done pursuant to Paragraph 26 of the marital settlement agreement (regarding a civil federal pension) rather than Paragraph 27 (regarding military service). But the court was not persuaded by Wife’s arguments and explained that, in the marital settlement agreement dated September 19, 2008, the parties reached an agreement on how to deal with [Husband’s] retirement, and both paragraphs that are pertinent in this case are paragraphs 26 and 27.
There is little argument on the parties’ part with regards to the actual figures. We have the date [Husband] began in the military; everyone is in agreement. The date of the marriage; everyone is in agreement. The date of the divorce; everybody is in agreement. And the date of his retirement; everybody is in agreement. Everybody is in agreement as to the points with – and how they are attributed because there was documentation submitted to the [c]ourt.
[Wife’s] argument is . . . that because he retired . . . from the Air Force, it transitions this into a federal retirement and makes it into a federal employee retirement, a FERS, which is then controlled by
. . . paragraph 26 . . . . And [Husband’s] argument is that . . . it is still military [retirement,] and it is controlled by paragraph 27.
I do not see any evidence that has been presented to the [c]ourt that this retirement is no longer a military retirement and should be in any way converted to a Federal Employees Retirement System, a FERS.
And . . . the [c]ourt is going to find that paragraph 27 controls. I have read the case law that was submitted by [Wife], and I do not think that that mandates that the [c]ourt apply a Bangs formula.
So the [c]ourt’s ruling is that the constituted pension order . . . with regards to [Husband’s] retirement should be in accordance with paragraph 27, and it should be done by points as opposed to by years or time.
The court agreed specifically with Husband’s contention that Wife’s share of his military retirement pay would be 15.96% of the gross disposable pay, and the court directed Husband’s counsel to submit an order consistent with those rulings.
The court signed an order on December 10, 2021, docketed December 14, 2021, finding that “the ‘marital portion’ of Husband’s disposable retired pay is calculated as follows: number of ‘points’ accumulated for Husband’s service during marriage divided by the number of ‘points’ accumulated by Husband for [his] total service upon retirement[.]” The order included a statement that the court “FOUND that the number of points accumulated during the parties’ marriage is 2,672 and the number of points accumulated for Husband’s total service is 8,369.” The court therefore found that “the marital portion of [Husband’s] disposable retired pay is 31.93%[,]” and the court granted Wife “a 15.96% share of [Husband’s] retirement pay” “commencing on April 1, 2018, the date of Husband’s retirement[.]”
On February 2, 2022, Husband’s counsel filed a motion asking the court to accept the proposed military retired pay division order counsel submitted, explaining that the parties were at an impasse with respect to approval of the terms that should be included in that order. On February 17, 2022, Wife, through counsel, filed a response objecting to certain language in the draft order submitted by Husband’s counsel, and Wife asked the court to sign the alternative pay division order submitted by Wife.
On March 3, 2022, the circuit court entered a Military Retired Pay Division Order, consistent with the terms of the circuit court’s December 14, 2021 order. Paragraph 1 of the March 3, 2022 order provided:
Defendant (Former Spouse) [Wife] is awarded 15.96% of Plaintiff’s (Member’s) [Husband’s] gross disposable military retired pay, without any deductions for survivor benefits or other deductions. The marital property portion of the monthly gross disposable military retired pay shall be: 50% times a fraction – the numerator shall be the total number of points accumulated during the
member’s creditable military service during the marriage (2672 points); the denominator shall be the member’s total number of points accumulated during the member’s creditable military service for retirement purposes (8369 points). This fraction shall be multiplied times the amount of the member’s gross disposable military retired pay, including any applicable cost of living increases.
Paragraph 6 of the March 3, 2022 order stated:
This Order is a final judgment. The [c]ourt retains jurisdiction to enter additional orders and to amend this Order for the purpose of acceptance by the military, to effectuate the terms of the parties’ Judgment of Absolute Divorce and to settle any and all disputes between the parties relative to the benefits provided in this Order. Any such order may be entered nunc pro tunc, if appropriate. Neither party noted an appeal within thirty days after entry of either the order entered December 14, 2021, or the Military Retired Pay Division Order entered on March 3, 2022.
Instead, it appears that Wife submitted the March 3, 2022 Military Retired Pay Division Order to DFAS with an application for payment of benefits. By letter dated March 21, 2022, DFAS notified the parties that the direct payment of a portion of Husband’s benefits to Wife was not approved for the following reasons:
The Military Retired Pay Division Order must be certified by the Clerk of the Court.
Per Volume 7B, Chapter 29, Paragraph 290607 B [of the Department of Defense Financial Management Regulations]:
If the court order requires the designated agent to supply the denominator of a marital or coverture fraction, and the member qualifies for an active duty (i.e., regular service) retirement, the formula award must be expressed in terms of whole months. The numerator of the formula fraction is the number of months of marriage during military service. This number must specifically be provided in the court order. The denominator of the formula is the member’s total number of months of creditable military service. The designated agent will provide the denominator if needed to compute the formula. Any days or partial months of service will not be considered. [sic] If the award is expressed in terms of years instead of months.
Please submit a clarifying order which contains the formula in terms of months of service since the member retired as active duty.
Husband’s counsel then submitted to DFAS a certified copy of the March 3, 2022 order, and a certified copy of the December 14, 2021 order. DFAS again declined to process the order for direct payment and sent Wife a letter dated June 2, 2022. This letter omitted the reference to Paragraph 290607 B of the Department of Defense Financial Management Regulations (“DoD 7000.14-R”) and did not cite any other regulation, but advised:
Your application cannot be approved for the following reason(s):
The court order provides for a division of retired/ retainer pay by means of a formula wherein the numerator (length of marriage in months during the marriage) is not specified in months. Member is an active duty retiree, therefore the formula must be in months. You must obtain a certified copy of a clarifying order awarding either a fixed amount, a percentage of the member’s retired/retainer pay, or which provides a formula wherein the only missing element is the denominator (member’s years of service in in months). You may want to submit a clarifying order with just the percentage since there seems to be a problem creating a formula with MONTHS of service which is required by USFSPA since the member is retired as Active.
(Emphasis added.) The letter also included this caveat: “[P]lease note that . . . we cannot provide legal guidance in pursuing your case.” 2
On June 22, 2022, Wife moved for entry of a new Order for Military Pension Back Pay and Monthly Payments. The motion recounted the receipt of the two rejection letters from DFAS and attached a report from a consultant who opined that Wife’s fractional share of Husband’s retirement pay should be 27.3% based on the consultant’s calculation using months instead of points.
In response, on July 8, 2022, Husband filed an opposition contesting the opinion of Wife’s consultant, and pointing out that the June 2, 2022 letter from DFAS had suggested submitting “a clarifying order with just the percentage[.]” Husband also filed a Counter-Motion for Entry of Amended Military Retired Pay Division Order that removed the reference to the calculation of Husband’s military service based on points and provided only for the payment of 15.96% of Husband’s retired pay to Wife.
On July 25, 2022, Wife filed an opposition to Husband’s Counter-Motion for Entry of Amended Military Retired Pay Division Order, and Wife requested a hearing. The circuit court scheduled a “complex motions” hearing for December 19, 2022.
On December 19, 2022, the circuit court conducted a hearing on the parties’ competing motions. At the hearing, Wife’s counsel argued that Department of Defense regulations mandate that the marital share of a service member’s retired pay be computed using a fraction that utilizes months of marriage as the numerator, and number of months of military service as the denominator, asserting: “[Husband] is retired active duty. And for active duty you need to do a calculation in months.” “[Husband is] going to contend that you have to enforce the marital settlement agreement, that there is no choice. But it is wrong, the Government is not going to process this unless it is done using months.” Wife’s counsel further explained:
[I]f Your Honor looks at [DoD Regulation] 290607(b) the numerator of the formula fraction is the number of months of marriage during the military service. * * *
The law says you use the amount of time they were married. That is how it works. That is the numerator.
If you use the right numerator, you are going to [come] up with 131 over 240 and we are going to be fine.
At that point, counsel for Husband interjected: “[Husband] didn’t get credit for 131 months toward his military retirement during the marriage. He got credit for 67. So why should [Wife] get credit for more [months] than him?” (Emphasis added.) Wife’s counsel replied: “[T]he answer, Your Honor is in the regulations that I gave you.”
In support of Wife’s argument that the court could not use points to compute Wife’s share of this particular marital property, Wife presented expert testimony from retired Major General James V. Young, Jr., a consultant. General Young testified that he had thirty-six years of service in the Army, and that, for a major portion of that time, his position was “what we would think of as the Chief Human Resource Officer of the Army Reserve[,]” dealing with issues such as human resources, pay, benefits and retirement. The court recognized him “as an expert in pension formation.”
Asked to explain the difference between an active-duty retirement and a retirement from reserve military duty, General Young said:
[T]here are essentially two different systems. DFAS is the adjudicating authority for both systems. And . . . if [Husband] had retired as a reservist, then it would have been appropriate to use points. However[,] he retired with an active duty retirement. . . .
And so when that happens . . . you are . . . forced to use a different system. . . . So it is . . . the total months that you were married while you were in service divided by . . . the total month[s] of your active duty service.[3]
On cross-examination, General Young conceded that, even though Husband’s retirement was properly calculated using a denominator of 240 months, “he was in service for 27 total years[,]” which would equate to 324 months. When asked if all twenty-seven years were for “creditable service,” General Young testified: “they are, actually.” Husband’s counsel pressed this apparent discrepancy further and the following exchange occurred:
Q [by Husband’s counsel:] So just for example, if [Wife] received 10 years as a numerator over [a denominator of] 28 years, she would have 17.8 percent.[4] Here[,] you are trying to argue in this other formulated realm that she should have 27 percent. So you are arguing that [she] should have 10 percent more . . . without [Husband] having part active and part resolution [sic] and part not doing military at all than if he had been enlisted the entire time. How does that make any sense?
A I don’t think he was ever enlisted. . . . I am not trying to be evasive, I don’t quite understand the question.
When Husband’s counsel asked General Young to examine
one DoD form—which was a form that not only included space for a formula based upon months but also provided alternative spaces for stating a “fixed amount award” or a “percentage award”—the witness replied: “Well, then I guess it would contradict of [sic] what the two letters at DFAS had sent.”
Husband’s counsel argued to the court that, if the calculation had to be performed using full months of creditable service, that would explain why the military had used only twenty years for the denominator rather than the full span of Husband’s twenty-seven years in the military. But, if the computation was going to consider only the 240 full months of service as the denominator, then the portion of that time allocated to the marriage should be only five years and seven months (i.e., a numerator sixty-seven months), and that arithmetic would result in Wife’s share being lower than it would be using points as agreed in the marital settlement agreement.5
As the hearing was drawing to a close, Wife’s counsel reiterated his contention that the applicable regulations supported his expert’s opinion and counsel’s argument that Wife’s correct share was one-half of the fraction produced by dividing 131 months by 240 months. He stated: “I am not basing this on common sense, I am not basing it on forms. I encourage Your Honor to look at sections 290211(a), 290607, 290607(a), (b) and (d), 29070 [sic; probably 290701] (a) and (c) and 10 U.S.C. Section 1408(a)(4).” The list did not include 290601.D, quoted above.
Wife’s appellate issue about the circuit court striking her post-hearing submission arose because of some disputes during this hearing regarding exhibits. During the hearing, when Husband’s counsel raised a question about certain documents that were offered as exhibits with respect to Wife’s claim for back pay, the circuit court said that the proffered exhibits would be “marked as ID only[,]” and “I will give you both an opportunity . . . to get a calculation with supporting documentation. Submit them within . . . ten days.”
At the conclusion of the hearing, the court made plain that the additional post-hearing submissions of documentation were to be related only to “the back pay.”
Husband and Wife both submitted post-hearing memoranda. Wife also filed a supplemental post-hearing memorandum that included an addendum to Wife’s expert witness’s analysis. Husband filed a motion to strike Wife’s supplemental posthearing memorandum as being beyond the scope of what was left open for supplementation, and the court granted Husband’s motion to strike that supplemental post-hearing submission.
On March 31, 2023, the court convened a virtual hearing to announce its oral ruling on the record. The court summarized the orders that had been entered (by a different judge) on December 14, 2021, and March 3, 2022. The circuit court observed that neither party had appealed either the divorce judgment (entered April 9, 2009), the December 14, 2021 order (that had held Wife’s share of Husband’s military retired pay was 15.96%), or the March 3, 2022 Military Retired Pay Division Order (that had reiterated that Wife was awarded 15.96% of Husband’s gross disposable military retired pay, and had stated, “This Order is a final judgment.”). The court said that, because no timely appeal was taken after entry of the
March 3, 2022 order, “the substantive provisions to that order stand.”
But, in exercising the limited continuing jurisdiction that had been retained “for the purpose of acceptance by the military, to effectuate the terms of the parties’ Judgment of Absolute Divorce[,]” the court observed that the June 2, 2022 letter from DFAS had suggested submitting a clarifying order with just the percentage, and Husband’s counsel had “argue[d] that [the] military retired pay division order should be amended by the removal of the language that relates to points and leaving only the percentage share.” The court determined that such an amendment was “most appropriate because it is reflective of the parties’ agreement and the relevant court orders.”
On June 6, 2023, the circuit court entered an Amended Military Retired Pay Division Order that provided in pertinent part:
[Wife] is awarded 15.96% of [Husband’s] military gross disposable military retired pay, without any deductions for survivor benefits or other deductions. As of November 2022, [Husband’s] current military retired pay was $6,844.00. As of the date of divorce, April 9, 2009, [Husband’s] retired base pay (high 3) was $6,916.37, his rank was Lt. Col. (O-5), and [Husband] had 13.5 years of creditable service for retirement.
Wife noted this appeal on July 5, 2023.
At oral argument before this Court, Husband’s counsel represented that DFAS had accepted the June 6, 2023 Amended Military Retired Pay Division Order for processing. In rebuttal, Wife’s counsel denied having been advised that DFAS had accepted the order. The Court permitted the parties to submit supplemental documentation, including the marital settlement agreement, and the 2009 version of DoD 7000.14-R, which Wife included in her supplemental submission. Wife’s supplemental submission asserted that she had never agreed that her share of Husband’s retirement benefits is 15.96%, and further represented that, to the best of her knowledge, “DFAS has still not accepted the order.”
Husband’s supplemental submission filed on May 22, 2024, included a document that appears to be a letter from DFAS to Husband dated June 27, 2023, stating in pertinent part: “Based on the Amended Military Retired Pay Division Order [Wife] is awarded 15.96% of your disposable retired pay.” The DFAS letter dated June 27, 2023, indicated that, “[i]n accordance with the court order, direct payments to [Wife] should tentatively commence Aug 2023, with the first payment issued on the first of Sep 2023.” Husband submitted an email dated July 5, 2023, indicating that his counsel had forwarded the DFAS letter of June 27, 2023, to Wife’s counsel. Husband also included documentation showing certain payments Husband had made to Wife directly.
MOTION TO PARTIALLY STRIKE NOTICE OF APPEAL6
Wife’s notice of appeal, filed July 5, 2023, stated that she was appealing: “the [c]ircuit [c]ourt’s final order of June 6, 2023, and all interlocutory orders, including those entered on April 3, 2023, and May 8, 2023[,] regarding: (1) [Wife’s] Motion for Pension Back Pay and Monthly Payments; and (2) [Wife’s] Motion for Entry of Substitute Military Retired Pay Division
Order.” Prior to briefing, Husband moved to partially strike Wife’s notice of appeal, and Wife opposed the motion. This Court denied the motion without prejudice to Husband’s renewal of the motion in his brief.
In his brief, Husband renews his motion to strike Wife’s notice of appeal as to the orders entered by the circuit court prior to June 6, 2023. He argues that Wife’s appeal of the orders entered on April 3, 2023, and May 8, 2023, should be stricken as untimely because those orders were final orders which Wife failed to appeal within thirty days following the entry of the orders, as required by Md. Rule 8-202(a). We decline to grant the motion to partially strike the notice of appeal.
Generally, a litigant may appeal only from a “final judgment.” URS Corp. v. Fort Myer Constr. Corp., 452 Md. 48, 65 (2017); Md. Code, Courts and Judicial Proceedings Article § 12-301; see also Md. Rule 2-602. A judgment is final “only when the trial court intends an ‘unqualified, final disposition of the matter of the controversy’ that completely adjudicates all claims against all parties in the suit, and only when the trial court has followed certain procedural steps when entering a judgment in the record.” URS Corp., 452 Md. at 65 (quoting Waterkeeper All., Inc. v. Md. Dep’t of Agric., 439 Md. 262, 278 (2014)); accord Rohrbeck v. Rohrbeck, 318 Md. 28, 43-44 (1989).
In this case, the circuit court entered three written orders intended to memorialize and effectuate the oral rulings placed on the record on March 31, 2023: (1) on April 3, 2023, the signed hearing sheet from March 31, 2023 was entered as an order; (2) on May 8, 2023, the circuit court entered an order awarding Wife back pay of Husband’s military benefits; and (3) on June 6, 2023, the circuit court entered the Amended Military Retired Pay Division Order.
The April 3, 2023 signed hearing sheet and May 8, 2023 back pay order were not final judgments because neither order adjudicated all claims of all parties. Because the circuit court announced at the hearing on March 31, 2023, that it intended to issue a written Amended Military Retired Pay Order, the circuit court’s orders entered on April 3 and May 8 could not have been final judgments in the case until the Amended Military Retired Pay Order was entered in accordance with Md. Rule 2-601. See Jenkins v. Jenkins, 112 Md. App. 390, 402 (1996) (where a circuit court intends that a QDRO or Constituted Pension Order be integral to the final judgment, the judgment is not appealable until the circuit court enters the QDRO); Rohrbeck, 318 Md. at 44 (holding that the circuit court’s judgment was final only when the QDRO, “the last unresolved claim in the action[,]” was completed).
Wife’s appeal, filed within thirty days after the June 6, 2023 entry of the Amended Military Retired Pay Order, was timely as to that order and the interlocutory orders that led to the entry of that order. Accordingly, we deny Husband’s motion to partially strike Wife’s notice of appeal.
STANDARD OF REVIEW
We review rulings made by a circuit court sitting without a jury “on both the law and the evidence.” Md. Rule 8-131(c). We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous,” and we “will give due regard to the opportunity of the trial court to judge the
credibility of the witnesses.” Id.
“‘When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.’” Plank v. Cherneski, 469 Md. 548, 569 (2020) (quoting MAS Assocs., LLC v. Korotki, 465 Md. 457, 475 (2019)).
“Neither [Md. Code, Family Law Article] § 8-205 [n]or 10 U.S.C. § 1408 mandates any division of a military pension. Whether to award retirement funds, and if so, how to allocate them, is within the discretion of the trial court.” Fulgium, 240 Md. App. at 288 (emphasis added) (citing Long v. Long, 129 Md. App. 554, 574 (2000)).
As this Court observed in a recent case addressing issues relative to the division of military retired pay between former spouses:
In an action tried without a jury, this Court reviews the case on both the law and the evidence and may set aside the judgment of the trial court on the evidence where the finding is clearly erroneous. Maryland Rule 8-131(c). The trial court’s interpretation and application of the law are reviewed as to whether the court’s conclusions are “legally correct.” Schisler v. State, 394 Md. 519, 535 (2006). A trial court “has broad discretion ‘when determining the proper allocation of retirement benefits between the parties.’” Bangs, 59 Md. App. at 367 (citing Deering v. Deering, 292 Md. 115, 130 (1981)). The decision of the trial court is subject to reversal where its discretion has been abused. North v. North, 102 Md. App. 1, 13-14 (1994).
Review of the modification of a final judgment is subject to the provisions of Maryland Rule 2-535. Pelletier v. Burson, 213 Md. App. 284, 290 (2013). In pertinent part, Maryland Rule 2-535(a) provides: “On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment[.]” Id. at 290. Further, Maryland Rule 2-535(b) provides that “[o] n motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”
Smith, 266 Md. App. at 116-17.
DISCUSSION
I. THE CIRCUIT COURT’S ADHERENCE TO
THE ORDERS IT ENTERED ON DECEMBER 14, 2021, AND MARCH 3, 2022
Wife’s first question takes issue with a statement the circuit court made while delivering an oral ruling at the March 31, 2023 hearing that eventually led to the entry of the Amended Military Retired Pay Order on June 6, 2023. In the oral ruling, the judge summarized the procedural history of the case up to that point and observed that the court had entered two previous judgments addressing the division of Husband’s military retirement pay, one on December 14, 2021, and a second one on March 3, 2022. In each of those previous orders, the circuit court had concluded that Wife was entitled to 15.96% of Husband’s military retirement pay. In announcing
the court’s oral ruling on March 31, 2023, the court pointed out that the order entered on March 3, 2022, stated expressly that it was a “final judgment,” but that the court would retain[] jurisdiction to enter additional orders and to amend this [March 3, 2022] Order for the purpose of acceptance by the military, to effectuate the terms of the parties’ Judgment of Absolute Divorce and to settle any and all disputes between the parties relative to the benefits provided in this Order.
In the oral ruling on March 31, 2023, which led to the order that is the target of this appeal, the court focused on the limited scope of its retained jurisdiction and stated: “this [c]ourt does not have the authority to make the req[ue]sted substantive changes to the military retired pay division order. As a result the substantive provisions to that order stand.”
Wife asserts that this statement of law was an error that warrants reversal and remand.
Husband responds that the circuit court properly found that it did not have authority to substantively modify the March 3, 2022 order because that order was a final judgment. He further argues that Wife’s attempt to revise the March 3, 2022 order and relitigate the issues previously decided by the circuit court was barred by res judicata.
We disagree with Wife’s claim of error for two reasons. First, the circuit court correctly anticipated this Court’s ruling in Smith, 266 Md. App. at 121, wherein we held that, in the absence of fraud, mistake or irregularity, a court has limited authority under Maryland Rule 2-535 to exercise revisory power over a judgment more than thirty days after the judgment was entered. Consequently, the judge who was asked in this case to modify a judgment that had been entered more than thirty days before the motion seeking revision was filed was appropriately circumspect about the court’s authority to make the requested substantive modification.
Second, as we observed in Smith, even though the court’s previously-entered judgment included a provision that retained jurisdiction to modify the order to make it acceptable under the Uniformed Former Spouses’ Protection Act, that sort of provision does not authorize revision of a final judgment if the prior order does not need to be modified in order to comply with the “DFAS requirements for distribution of the spousal share[.]” Id. at 122-23. 7
Here, the circuit court concluded that the order for payment of Wife’s share by DFAS did not require the substantive modification sought by Wife, and consequently, the substantive provisions of the March 3, 2022 order should stand.
The court explained:
This . . . [c]ourt only retained jurisdiction to effectuate the terms of the settlement agreement which awards [Wife] 15.96 percent of the pension. The provision of the order to settle any and all disputes between the parties relative to the benefits provided in this order does not reopen the door to re-litigate issues that have already been resolved by this [c]ourt.
For the reasons set forth more fully in the next section of this opinion, we agree with that conclusion, and perceive no error of law in the circuit court’s statement that it did not have
authority to make the amendments requested by Wife.
II. THE CIRCUIT COURT DID NOT ERR IN AWARDING WIFE 15.96% OF HUSBAND’S MILITARY RETIREMENT BENEFITS
Wife contends that the circuit court erred in awarding her just 15.96% of Husband’s military retirement benefits and back pay. Wife asserts that federal law mandated that the circuit court calculate Wife’s share of Husband’s military retirement benefits by using a formula based on “months” rather than “points.” Had the circuit court calculated Wife’s share of Husband’s retirement pay on the basis of months, she contends, she would have been awarded 27.3% of Husband’s gross retired military pay and back pay.
Husband counters that the circuit court’s award of 15.96% of his gross disposable military retired pay was consistent with the parties’ marital settlement agreement in which they agreed to calculate the marital property portion of his military retirement pay using the “points” system that is applicable to reserve military service, and that was correct despite the unanticipated development that the gross dollar amount of his total retirement pay was based upon the total months of his active duty service. Husband further asserts that the Amended Military Retirement Pay Division Order does not violate federal law, but rather, satisfies Department of Defense Finance Management Regulations and DFAS’s suggestion that the parties could submit an order setting forth Wife’s award in the form of a percentage of his total gross retirement pay to avoid the apparent confusion that would be caused by the use of a formula in the pay order.
Military retirement pay is a federal benefit that, similar to a pension, provides a monthly annuity for life following a service member’s retirement. Dziamko, 193 Md. App. at 116. The requirements and structure of the reserve program are set out in 10 U.S.C. §§ 12731 to 12741; and the requirements for active-duty or “regular” retirement are set forth in 10 U.S.C. §§ 1401 to 1414. One of the complicating factors in this case is that Husband’s military service during his marriage to Wife was in the reserves for all but eleven months of the marriage, and, if he had retired on or soon after the date of their divorce, his retirement pay would have been determined under the reserve program. But, because he returned to active duty after the divorce and was serving on active duty as of the date of retirement, his retirement pay was determined under the active-duty program.
Nevertheless, the issue in this case is not a dispute regarding the total amount of Husband’s entitlement to retirement pay. Instead, the dispute in this case is about how to calculate the fraction of Husband’s total retirement pay the parties agreed would be marital property, one-half of which would be paid to Wife. Husband’s position is that that fraction is spelled out in Paragraph 27 of their marital settlement agreement that was incorporated into the judgment of divorce. Wife’s position is that federal law precludes the use of the computation she agreed to at the time of the divorce. Like the circuit court, we are not persuaded that federal law prohibits enforcement of the computation set forth in the parties’ marital settlement agreement.
The Uniformed Services Former Spouse Protection Act
(“USFSPA”), 10 U.S.C. § 1408, was passed by Congress in 1982, and “authorizes state courts to treat ‘disposable retired or retainer pay”’ as marital property. Mansell, 490 U.S. at 584 (quoting 10 U.S.C. § 1408(c)(1)). Describing the legislative history of the USFSPA in Smith, this Court stated:
The twofold purpose of the USFSPA is to authorize states to distribute military retired pay to spouses and former spouses and to provide a mechanism for the DoD to enforce these payment orders. Under the regulations, disposable retired pay is a federal entitlement that is defined under 10 U.S.C. § 1408(a)(4) as “the total monthly retired pay to which a member is entitled less [certain] amounts.”
The legislative history of the USFSPA includes a description of the legislative intent of the act: The provision is intended to remove the federal preemption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution
S. Rep. No. 97-502, at 1611, July 22, 1982; Fulgium v. Fulgium, 240 Md. App. 269, 279-80 (2019).
Smith, 266 Md. App. at 123-24 (emphasis added). 8
While the USFSPA grants states the authority to divide disposable retired pay as a marital asset, it does limit the fractional share that can be paid to a former spouse by DFAS pursuant to a court order to 50% of the member’s disposable retired pay. 10 U.S.C. § 1408(e)(1). But that limit has no application to the dispute in this case.
The Department of Defense Financial Management Regulations 7000.14-R, Chapter 29 (“DoD 7000.14-R”), implement the USFSPA.
As noted above, DoD 7000.14-R sets forth the required contents of a court order awarding military retirement pay as follows:
290601. Contents of Court Order[ 9]
* * *
D. If the order contains a retired pay award, that award must be expressed as a fixed dollar amount or as a percentage of disposable retired pay.
* * *
F. If the former spouse and the member were divorced before the member became entitled to receive military retired pay, the retired pay award may be expressed as a formula or hypothetical retired pay award in accordance with paragraphs 290607 and 290608. Since the computation of formula and hypothetical retired pay awards result in a percentage, they are considered a type of percentage award, and would
automatically receive a proportionate share of the member’s retired pay COLAs.
290607. Acceptable Formula Awards
A. If the former spouse’s award is expressed in terms of a formula, all the variables needed to calculate the formula must be included in the court order, with the exception of a member’s total number of months of creditable service or total number of Reserve retirement points, which the designated agent will provide in accordance with subparagraphs 290607.B and C. (Emphasis added.)
Wife did not address DoD 7000.14-R 290601 in her brief, but she contends that the calculation of her share of Husband’s retirement pay must be based upon the definition of a “formula award” set forth in DoD 7000.14-R 290211, which provides: 290211. Formula Award[ 10]
A formula award computes a former spouse’s property interest in a military member’s retired pay based on the relationship of the length of the parties’ marriage during the member’s creditable service (numerator) to the member’s total service that is creditable toward retirement (denominator). A formula award is stated as a marital fraction in which the numerator and denominator are multiplied by a given percentage.
A. For members qualifying for an active duty (i.e., regular service) retirement, the numerator is the number of months the parties were married while the member was performing creditable military service and the denominator is the number of months of the member’s total creditable military service. The elements must be expressed in terms of whole months. The former spouse’s award is usually calculated by multiplying the marital fraction by one-half or 50 percent, or any other given percentage amount. See paragraph 290607 for acceptable active duty formula award language.
B. For members qualifying for a Reserve (i.e., non-regular service) retirement, the numerator is the number of Reserve retirement points earned during the parties’ marriage, and the denominator is the member’s total number of Reserve retirement points. The elements must be expressed in terms of Reserve retirement points. The former spouse’s award is usually calculated by multiplying the marital fraction by one-half or 50 percent, or any other given percentage amount. See subparagraph 290607.B for acceptable Reserve formula award language.
Although DoD 7000.14-R 290211 provides details about what information the parties and court order must provide DFAS if the former spouse’s marital share is being expressed as a formula in the state court’s order for payment, DoD 7000.14-R 290601.D (quoted above) indicates that the pay award may be “expressed . . . as a percentage of disposable retired pay.” Our reading of the regulations is that the circuit court had the option, but was not required, to express Wife’s
award as a formula. The circuit court’s decision, therefore, to express Wife’s award of a share of Husband’s retired pay as a percentage did not violate DoD 7000.14-R 290211 or 290601. Although the DoD regulations permit an award to be expressed as a percentage, the regulations do not specify whether, in deciding what that percentage will be, the state court must use months or points or some combination to calculate how much a spouse’s marital share of a service member’s retired pay should be where, as here, the service member earned retired military pay through a combination of active and reserve duty. In Smith, we addressed the preference of many courts for using points rather than months in such situations:
Many members of the United States military serve on both active duty and as a reservist during their career. When there is a transition of service, it is critical to account for the change in how each form of the member’s service is credited toward their retirement. One legal commentator has observed that:
Use of a simple years of service computation rather than recognition of the point system will, in some situations lead to inequitable conclusions. The greatest potential for distortion of the marital share of the benefit occurs in situations where the member of the military retirement system switches from regular component to reserve component service.
In re Marriage of Beckman, 800 P.2d 1376, 137980 (Colo. App. 1990) (citing W. Troyan, “Procedures for Evaluating Retirement Entitlements Under Non-ERISA, Retirement Systems for Marriage Dissolution Actions,” 3 J.P. McCahey, ed., Valuation & Distribution of Marital Property § 46.34(1) (1990)). Therefore, when the military retirement benefit is a result of the combination of active and reserve component service, points are the proper method for calculating the fraction W. Troyan, “Procedures for Evaluating Retirement Entitlements Under Non-ERISA, Retirement Systems for Marriage Dissolution Actions,” 3 J.P. McCahey, ed., Valuation & Distribution of Marital Property § 46.34(2)(d) (1990).
266 Md. App. at 125-26 (emphasis added).
We pointed out in Smith that, for purposes of analyzing military retirement pay, the accrual of points and the accrual of months of active-duty service can present a situation of viewing apples and oranges because “a member of the military in active service earns one point for each day of active service, while a reservist earns a point for every day certain activities are conducted.” Id. at 124-25. The two measurements of service are not necessarily comparable as monthly units. And it appears to be easier to convert months of active duty service to points than it is to convert points earned for reserve duty to months. In that regard, we observed in Smith, that the units of measurement in the fraction’s numerator must be the same as the units of measurement in the fraction’s denominator because “[n]othing else would yield a meaningful fraction or percentage.” Id. at 129 (quoting Heger v. Heger, 184 Md. App.
83, 109 (2009)).
In Woodson v. Saldana, 165 Md. App. 480 (2005), this Court noted that the system of accruing points for reservists reflects a different method of valuing a reservist’s service, instead of merely counting the amount of time served, by considering the nature of a reservist’s activities. Id. at 490-91; see 10 U.S.C. § 12731 et seq. For example, reservists earn points “not only for days of service, but also for performing certain drills, completing certain education courses, and maintaining membership in certain military units.” Woodson, 165 Md. App. at 485; see 10 U.S.C. § 12732 et seq. “Reservists must accrue at least 50 ‘retirement points’ in a calendar year to have that year qualify toward retirement.” Woodson, 165 Md. App. at 485; see 10 U.S.C. § 12732(a)(2). We determined that, for determining the marital portion of the military retirement benefit in that case, because the “reservist’s retirement pay is not strictly a function of the length of military service, the appropriate formula is retirement points earned during the marriage divided by the total retirement points earned.” Woodson, 165 Md. App. at 491; accord Smith, 266 Md. App. at 126.
Courts in other jurisdictions that have considered this issue have concluded that retirement benefits earned through a combination of active and reserve duty should be calculated based on the accrual of retirement points rather than the length of service. See, e.g., Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002) (where wife’s National Guard service consisted of both active and reserve duty, it was error for the trial court to determine husband’s marital share of her retirement based on months rather than the number of points earned); In re Marriage of Poppe, 97 Cal. App. 3d 1, 8 (1979) (explaining that “the basis upon which the apportionment was made, years of service during the marriage before separation compared to ‘qualifying’ years in service, bears no substantial rational relationship to the amount of the pension” in the case of a spouse who served in both active duty and reserve capacities); In re Marriage of Beckman, 800 P.2d 1376, 1379 (Colo. App. 1990) (stating that the calculation of benefits based strictly on years of service rather than points for a member who accumulates both active and reserve service “will, in some situations, lead to inequitable conclusions” (cleaned up)); In re Marriage of Hill, 986 N.W.2d 884, 889 (Iowa Ct. App. 2022) (“[W]hen a military member’s retirement pay is not strictly a function of the length of military service, the appropriate formula . . . is retirement points earned during the marriage divided by the total retirement points earned.”); Bojarski v. Bojarski, 41 A.3d 544, 549 (Me. 2012) (holding that, when a spouse earns military retirement benefits “through a combination of active and reserve duty, courts must calculate the marital share of retirement benefits based on the accrual of retirement points”); Hasselback v. Hasselback, 2007 Ohio 762, 2007 WL 549461, at *4 (Ohio Ct. App. 2007) (holding that the “points” method was the appropriate method for valuing husband’s military retirement benefits earned through a combination of reserve and active duty); Contreras v.
Contreras, 974 S.W.2d 155, 158-59 (Tex. App. 1998) (holding that it was error to ignore the point system and treat husband’s reserve duty years like active duty years in calculating wife’s portion of his retirement pay).
We agree with the state courts cited above that, when a member’s retirement pay is earned through a combination of active and reserve duty, it is appropriate for a court to utilize points rather than months of service to calculate a spouse’s share of the marital property portion of a service member’s military retirement benefits.
At the time Husband and Wife divorced, the parties agreed to use Husband’s retirement points to calculate the portion of Husband’s retired military pay Wife would receive. The Amended Military Retired Pay Division Order enforced the terms of the marital settlement agreement by awarding Wife a percentage of Husband’s retired military pay based on the parties’ agreement to calculate the marital portion of his retirement pay based on points. The Amended Military Retired Pay Division Order entered by the circuit court also complied with the DoD regulation that stated the award could be expressed “as a percentage of disposable retired pay,” and also complied with the June 2, 2022 DFAS letter that suggested including a percentage of Husband’s retirement pay in a clarifying court order. We conclude that it was neither legal error nor an abuse of discretion for the circuit court to amend the Military Retired Pay Division Order to confirm that Wife was to receive 15.96% of Husband’s gross disposable military retired pay
III. THE CIRCUIT COURT’S ORDER GRANTING HUSBAND’S MOTION TO STRIKE WIFE’S POSTHEARING SUPPLEMENTAL MEMORANDUM
At the conclusion of the December 19, 2022 hearing, the circuit court permitted the parties to submit additional documentation following the hearing. Husband and Wife submitted post-hearing memoranda. Wife then submitted a supplemental memorandum which included a revised expert report that utilized data from Husband’s post-hearing memorandum. Husband filed a motion to strike Wife’s supplemental memorandum, which the court granted. Wife argues that the circuit court “arbitrarily and capriciously” struck her supplemental post-hearing memorandum, but she fails to provide any explanation in her brief as to how the court’s consideration of the supplemental memorandum would have influenced the court’s decision in this case. As we noted above, the circuit court told counsel at the conclusion of the December 19, 2022 hearing that the parties could file post-hearing submissions “only for the back pay” issue. Wife’s brief does not explain how her submittal complied with that limited subject matter, and more importantly, how consideration of the documents that were struck by the court could have altered the court’s ruling on the issues that were raised, or could have been raised, in this appeal. Consequently, we perceive no error.
FOOTNOTES
1 In Smith v. Smith, 266 Md. App. 106, 124-25, cert. denied, 492 Md. 430 (2025), we noted that points are earned for military retirement purposes as follows:
To calculate military retired pay, a member of the military in active service earns one point for each day of active service, while a reservist earns a point for every day certain activities are conducted. See generally Department of Defense, DoD 7000.14-R, Financial Management Regulation [hereinafter DoD FMR, Vol. 7B, Ch. 3], Vol. 7B., Ch. 3 (Sept. 2022).
2 We note that this letter’s statement that the court’s clarifying order must award either a fixed amount or “a percentage of the member’s retired/retained pay” was consistent with DoD 7000.14-R 290601.D, which at that time stated: “If the order contains a retired pay award, that award must be expressed as a fixed dollar amount or as a percentage of disposable retired pay.” The third option mentioned in the letter—referring to an award based on a “formula”—was consistent with DoD 7000.14-R 290601.F, which at that time stated:
If the former spouse and the member were divorced before the member became entitled to receive military retired pay, the retired pay award may be expressed as a formula or hypothetical retired pay award in accordance with paragraphs 290607 and 290608. Since the computation of formula and hypothetical retired pay awards result in a percentage, they are considered a type of percentage award, and would automatically receive a proportionate share of the member’s retired pay COLAs.
3 General Young also opined that the parties satisfied the “10-10 rule” that qualified them to have DFAS make direct payments to Wife. See Fulgium v. Fulgium, 240 Md. App. 269, 283 (2019) (“One of the limitations on direct payment is that it is available only when the service member performed ten or more years of creditable military service while married to his or her spouse. 10 U.S.C. § 1408(d)(2). See Mansell [v. Mansell, 490 U.S. 581, 585 (1989)]. Accord Dziamko [v. Chuhaj, 193 Md. App. 98, 119 (2010)] (direct payment of military pension not possible where parties married only seven years).”); see (continued…)
also Smith, 266 Md. App. at 116 (“DFAS does not distribute payments directly to former spouses of marriages that, like in this case, lasted less than ten years.”).
4 The arithmetic seems to be: 10 ÷ 28 = 35.7%. One-half of 35.7% is 17.8%
5 One of the documents Husband submitted in support of his Counter-Motion for an amended division order was a letter dated June 29, 2018, which he had obtained from a “Retirements Specialist” for the Department of the Air Force, who stated: “As of 1 Apr 18, you have 20 years, 0 months and 9 days of service toward active duty retired pay. For the period of your marriage, 8 May 98 to 3 Apr 09, the date of divorce, you earned 5 years, 7 months and 16 days of service toward active duty retired pay.”
6 In his brief, Husband requests that this Court consider his “Motion to Dismiss the Appeal” that was previously filed in this case, but there is no record of a “Motion to Dismiss” this appeal. But this Court did previously deny without prejudice Husband’s “Motion to Partially Strike the Appellant’s Notice of Appeal Filed on July 5, 2023” and we shall address the merits of that motion.
7 “[W]hile a trial court is not prohibited from amending orders to effectuate the intent of the parties, consistent with the terms of the settlement agreement, the court is not permitted to change the terms of an agreement reached by the parties.” Mills v. Mills, 178 Md. App. 728, 739 (2008) (citing Long v. State, 371 Md. 72, 89 (2002) (holding that the court erred in entering a modified consent order which undermined and materially altered the terms of the parties’ agreement); Eller v. Bolton, 168 Md. App. 96, 101 (2006) (holding that the circuit court retained jurisdiction to revise the QDRO regarding wife’s award of husband’s pension plan pursuant to the terms of the consent order). Cf. Dziamko, 193 Md. App. at 107 (“When the parties consent to certain terms and those terms are not fulfilled by subsequent court orders, an appeal may be heard.”).
8 We also noted in Smith, 266 Md. App. at 124 n.9, that the National Defense Authorization Acct (“NDAA”) for the Fiscal Year 2017 adopted new rules applicable to judgments of divorce entered on or after December 23, 2016. The new rules have the effect of freezing the marital property calculation as of the date of divorce. “The intent of the amendment was to prevent overcompensation to former spouses especially for achievements earned by their former spouse following separation.” Id. (citing Fulgium, 240 Md. App. at 281). Because the date of the judgment of divorce in this case predated December 23, 2016, the NDAA 2017 rules do not apply.
9 The 2023 version of DoD 7000.14-R 6.1 et seq., in effect when the circuit court issued the Amended Military Retired Pay Division Order, is substantially the same as those regulations in effect in 2009, though the format of subsection numbers has been revised, e.g., 290601 is now 6.1.
10 It should not be overlooked that all of the regulations that begin with the digits 2902 fall under the subsection of DoD 7000.14-R general heading “2902 DEFINITIONS[.]”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Harford County Circuit Court’s order distributing marital property. Because husband is incarcerated, husband comes as close as an adult can be to having no living expenses and that circumstance is likely to remain for decades. However the trial court does not appear to have considered this critical economic circumstance in determining a fair distribution of marital property. It was also a clear abuse of discretion for the court to fault wife for testifying at husband’s trial and factor that into the equitable distribution of their property, especially without knowing the surrounding circumstances and not taking steps to learn about those circumstances.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
distribution of marital property?1
We answer that question in the affirmative and, for the reasons explained below, shall vacate the judgment in part, affirm the judgment in part, and remand the case for further proceedings not inconsistent with this opinion.
FACTS AND PROCEEDINGS
At trial, Wife and Husband each testified and many exhibits were admitted into evidence. The following facts were adduced. In addition, for context, we take judicial notice of publicly-known facts elicited in the criminal case against Husband.
The parties married on March 31, 2007. The year before, they had purchased Husband’s parents’ house in Harford County, as joint tenants. At a subsequent time, they refinanced and title was changed to tenants by the entireties. The monthly mortgage payment on the home, including property taxes and related expenses, is $1,286.79.
The marriage produced a daughter (“Child”) born in December 2008. For eight years following Child’s birth, Wife primarily was a stay-at-home mother. In 2012, she started working part-time as a travel agent, earning a very small income.
This is an appeal by Jennifer L. Greene (“Wife”) in her divorce case against Daniel Greene (“Husband”), in the Circuit Court for Harford County. The case presents usual issues but highly unusual facts. On December 5, 2017, what the court called the parties’ “separation” began when Husband was arrested in the murder of his paramour’s boyfriend. He was tried by a jury in the Circuit Court for Baltimore City from June 14 through 23, 2023, and was convicted of first-degree murder and related crimes. On February 15, 2024, he was sentenced to life in prison plus twenty years consecutive.
In the meantime, on August 10, 2021, in the Circuit Court for Harford County, Wife filed suit for divorce. The case was tried on April 23, 2024. The court held the matter sub curia and, on May 17, 2024, entered a memorandum opinion. On September 18, 2024, a judgment of absolute divorce (“JAD”) was entered granting a divorce, distributing the parties’ marital property equally, awarding child support to Wife, and awarding attorneys’ fees to Wife.
Wife noted a timely appeal posing two questions for review, which we have combined and rephrased: Did the trial court abuse its discretion in its
For eleven years, Husband was employed as a firefighter by the Prince George’s County Fire Department. His employment began before the marriage, in March 2002. In March 2013, Husband received a full medical retirement due to an on-thejob injury to his lungs. The medical retirement provides him a lifetime pension with cost-of-living adjustments (“COLAs”). It is not taxed. Each month, the cost of medical, prescription drug, vision, and dental insurance, and a fee to the Prince George’s County Fire Fighters Association, is subtracted from the gross pension amount and the net pension amount (“net pension”) is paid to Husband. When he retired, Husband selected a payment option that includes a survivor benefit, which makes his monthly pension about $56.57 less than it would have been had he not chosen that option. He named Wife as the survivor beneficiary. The pension started to be paid immediately upon Husband’s retirement.
Post-retirement, from September 4, 2013 to April 21, 2017, Husband worked for Veterans Corps of America, Inc., as an urban search and rescue equipment specialist. That position paid $81,000 annually and required him to travel frequently. On April 21, 2017, he was terminated from employment. He applied for unemployment insurance benefits but was denied upon a finding by the Maryland Department of Labor that he was discharged for “gross misconduct connected with work[.]”2 He then started a small business of his own in Harford County that produced no income.
Meanwhile, in June 2013, Wife noticed on their joint cell phone account that Husband was sending “thousands” of text messages to a woman named Jennifer McKay, and in December 2013, Wife learned that Husband was having an affair with Ms. McKay. According to Husband, that relationship began in 2012 but did not become intimate until 2013. Wife testified that she confronted Husband “numerous” times about the affair, asking him to call it off and to attend marriage counseling with her. Husband refused to end the affair or go to counseling. In November 2016, Wife contacted Ms. McKay and asked her to end the affair. The affair continued for around three and a half years, during which time Husband became increasingly absent from the family and uninvolved in Child’s life. Wife testified that she wanted the marriage to survive. Husband testified that the marriage had not been good from the very beginning, became worse after he retired, but started to improve around Thanksgiving of 2017, because Wife began “walking with God[.]”
Sometime before that Thanksgiving, Ms. McKay ended her relationship with Husband and became involved with a man named Jon Hickey. Mr. Hickey lived in an apartment in the Upper Fells Point neighborhood of Baltimore City. On November 30, 2017, the police performed a welfare check on Mr. Hickey, at Ms. McKay’s request, after he failed to respond to her calls and did not show up for work. The police found Mr. Hickey on the sofa in his apartment, dead from a gunshot wound to the head. On December 5, 2017, Husband was arrested and charged with first-degree murder and other crimes in the death of Mr. Hickey.3 On December 28, 2017, he was indicted for those crimes.
From the date of his arrest through his trial in June 2023, Husband was confined in the Baltimore City Detention Center, without bond.4 Wife testified that, in 2021, she decided to be a witness for the State in the criminal trial. She did so when his case went to trial. The State’s evidence showed that Mr. Hickey was murdered in the early morning hours of November 29, 2017.5 Wife and Ms. McKay each identified Husband as the person shown in surveillance footage from a camera located near the exterior of Mr. Hickey’s apartment. The footage captured Husband outside Mr. Hickey’s apartment trying to get in, eventually succeeding, and later leaving the apartment holding a gun.
As noted, Husband was convicted of all the crimes charged. On February 15, 2024, he was sentenced to life in prison for first-degree murder, a consecutive ten year term for home invasion, and another consecutive ten year term for use of a handgun. The wear and carry a handgun sentence was merged. Husband noted an appeal, which was pending when the case at bar was tried two months after Husband’s sentencing. Since sometime after sentencing, Husband has been confined at the Western Correctional Center in Cumberland, Maryland.
In advance of the trial in this case, the parties agreed to Wife’s having sole legal and physical custody of Child. By her own choice, Child has no communication with Husband, having told him to stop writing letters to her. The parties contested equitable distribution of their marital property. The only marital property at issue was the equity in the marital home, which was $100,451 at the time of trial, and Husband’s
pension. They also contested child support and attorneys’ fees. Child was fifteen years old when this case was tried. Wife struggled financially after Husband’s arrest. Husband had been the primary breadwinner in the family. Before he retired, he brought in extra income from overtime work. After his retirement, he earned income above his pension from the job he was discharged from in 2017. After Husband was arrested, Wife began working full time as a commissioned travel agent. In 2019, she filed for Chapter 7 bankruptcy. She received a discharge in 2020. She waited until 2021 to file for divorce because she did not have the money to do so until after her discharge in bankruptcy. Wife testified that the marital home was and is in need of repairs, some of which she has undertaken. She took out a loan from Husband’s brother to replace the roof. She was able to pay him back.
The evidence showed that Wife earned $32,814 in 2022, which was in step with what she had earned in prior years, and $75,297 in 2023. She testified that the increase in her 2023 income was unusual because that year, in addition to working as a travel agent, she worked as a freelance writer for a travel publication, an opportunity no longer available to her. The court rejected that testimony as not credible and concluded that Wife “was capable of earning far more than average salary of just over thirty thousand dollars annually.”
Wife testified that she receives health insurance through Husband’s pension, as does Child, and that, upon divorce, her insurance will end and she will have to obtain her own policies. 6 Wife has no retirement benefits or accounts. In addition to the mortgage on the family home, she has a car loan. At the time of trial, Wife was forty-five years old and Husband was forty-one years old.
On December 22, 2017, soon after he was arrested, Husband gave Wife his power of attorney (“POA”). Throughout the marriage, the parties had a joint checking account and Husband had a checking account of his own that, prior to being given the POA, Wife did not have access to. After receiving the POA, Wife was able to view Husband’s accounts and saw that he had spent large sums of money on Ms. McKay, including for travel, dining, jewelry, and other gifts. He bought a boat that he kept at a marina. It caught fire and he recovered the insurance proceeds. Wife never used the boat and had no involvement with transactions related to it.
Beginning in January 2018, and continuing until October 2023, Husband directed his monthly net pension to be paid over to Wife. On March 8, 2021, without Wife’s knowledge, Husband gave his POA to his father and revoked all prior POAs. In October 2023, after Wife testified against him in the criminal trial, Husband reduced her monthly payment to onehalf of the net pension plus a sum slightly less than one-half of the monthly mortgage.
At the time of trial, Husband’s net pension was $2,666 per month. He testified that he needed some of the pension to pay legal fees, although it was not clear what fees he was talking about. He testified that his parents had paid his legal fees for private counsel for the criminal trial. They later filed for bankruptcy. His criminal appeal was being handled by lawyers in the criminal appeals division of the public defenders’ office, at no charge to him. Husband testified that
he would prefer to be represented by private counsel in that appeal, but presented no evidence as to what that would cost.
(On May 22, 2025, after briefs were filed, Husband voluntarily dismissed his appeal in the criminal case. The mandate issued on May 27, 2025.)
In closing argument, Wife’s counsel asked that the equity in the house be distributed so that she would receive 50% plus her full attorneys’ fees of $14,258, with Husband receiving the balance. That would result in $63,682 for Wife and $35,166 for Husband, which counsel described as an “80/20” split. Wife’s counsel further asked that Husband’s full pension be divided 80% to her and 20% to him. At that time, she took the position that Husband had not met his burden to prove that there was a non-marital portion to the pension, so it all would be treated as marital. She asked that she remain the survivor beneficiary. She also asked for a use and possession order for the family home until Child reaches the age of majority.
Husband’s counsel took two alternative positions about equitable distribution. First, that Husband receive 100% of his pension and Wife receive the entire equity interest in the marital home. Or second, that the house be sold and the parties split the equity, and Husband and Wife split the entire pension, both the marital and non-marital portions. (Counsel acknowledged that that would give Wife a greater part of the pension “than what [she] is legally entitled to under Maryland law.”) Counsel for Husband asked the court to allow Husband to keep the survivor benefit and place it in Child’s name and argued that there should not be a use and possession order.
As noted, the court took the matter under advisement. On May 17, 2024, the judge issued a memorandum opinion and asked counsel for the parties to draft and submit a JAD based on it.
In its memorandum opinion, the court found that Husband’s pension is 6/11 marital and 5/11 non-marital (roughly 55% marital and 45% non-marital). Using the monthly net pension amount of $2,666, it determined that Wife should receive 3/11, that is, 50% of the marital share.8 That comes to $727 per month or $8,724 annually. Husband will receive his 5/11 nonmarital share ($1,211.65) plus 3/11, which is the other 50% of the marital share ($727), for a total of $1,938.33 per month, or $23,259.96 annually. The court further determined that “[e] ach party should be permitted to leave to the survivor of their choice their portion of the pension.” It ordered the parties to enter into a QDRO pertaining to the pension.
The court granted Wife use and possession of the marital home for three years from the date of entry of the JAD or until Child is emancipated by age, whichever is sooner. Child will turn eighteen years old in December 2026, however, which is less than three years from the date of the JAD. The court gave Wife ninety days after the expiration of the use and possession period to refinance the mortgage and buy out Husband’s one-half interest. If she does not do so, the marital home will be sold and the net equity will be divided equally between the parties. Until that time, Husband would be responsible for paying one-half of the $1,286.79 monthly mortgage.
The court determined that Husband’s child support obligation is $380 per month from August 10, 2021, the date
Wife filed suit, until the date of the JAD (a total arrearage of $13,680), and $353 per month after the QDRO has gone into effect. (It did not address the period between the date of the JAD and the effective date of the QDRO). Based on Husband’s prior payments of all or part of his monthly net pension to Wife, the court credited him with $28,801 toward child support.
The court awarded Wife $3,500 in attorneys’ fees plus an additional $700 in fees for the cost of completion of the QDRO, all to be paid by Husband at a rate of $200 per month. (That is, for twenty-one months.)
We will discuss additional evidence, the court’s memorandum opinion, and the JAD in greater depth in our discussion of the issues.
STANDARD OF REVIEW
We review the rulings of a circuit court sitting without a jury “on both the law and the evidence[,]” giving “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c); Friedman v. Hannan, 412 Md. 328, 335 (2010). We review the court’s factual findings for clear error. MAS Assocs., LLC v. Korotki, 465 Md. 457, 47475 (2019). We review the court’s legal conclusions de novo. Nouri v. Dadgar, 245 Md. App. 324, 343 (2020).
A trial court’s decision to grant a monetary award, and the amount of that award, is reviewed for abuse of discretion. Flanagan v. Flanagan, 181 Md. App. 492, 521-22 (2008).
“Under that lenient standard, the ruling ‘will not be reversed simply because the appellate court would not have made the same ruling.’” McAllister v. McAllister, 218 Md. App. 386, 400 (2014) (quoting North v. North, 102 Md. App. 1, 14 (1994)).
For a decision to be an abuse of discretion, it must be “‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id. (quoting North, 102 Md. App. at 14).
DISCUSSION
Wife contends the trial court abused its discretion by distributing the marital property equally instead of awarding her most of the marital property, given Husband’s egregious conduct that wreaked havoc on the marriage and their daughter’s life and that Husband will spend the rest of his life in prison. In its memorandum opinion, the court opined that it would not be in Child’s best interest for Husband to become “penniless” but then be charged generally with child support. Wife argues that this was not a proper consideration of Child’s welfare and that, in fact, even if she were given all the marital property, Husband still would receive his nonmarital share of his pension, so he would not be rendered penniless and would have ample money to take care of his needs in prison. Wife points out that the court found the “parties’ relationship was long destroyed by [Husband’s] decision to physically and emotionally leave the marriage” but nevertheless found that “[t]hat alone does not warrant the complete transfer of all of his [marital] assets to [Wife].” Wife maintains that awarding her most of the pension would have provided her additional funds “to care for [Child] during the remaining years of her childhood, and to support her
financially as she pursues college, employment and other endeavors into her adulthood”; would have been equitable given the length of the marriage and her monetary and nonmonetary contributions to the marriage; and would have “assist[ed] in offsetting the horrific scenario created by [Husband].” Wife argues in addition that the court abused its discretion by dividing the survivor’s benefit for the pension.
Not surprisingly, Husband contends the court did not abuse its discretion in equally distributing the marital property and dividing the survivor’s benefit.
In Maryland, when granting a divorce and determining the equitable distribution of marital property, a court must employ a three-step process. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). First, the court must identify which property is marital. Md. Code, FAM. LAW (“FL”) § 8-203(a). Second, it must value the marital property. FL § 8-204(a). And third, it must decide whether distributing the marital property by title would be unfair, and if so, decide how to adjust the equities by granting a monetary award or a permissible transfer of property. See FL § 8-205(a)(1)-(2). See also Alston v. Alston, 331 Md. 496, 506 (1993) (stating that the purpose of a monetary award “is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title” (quotation marks and citation omitted)). Overall, the distribution of marital property must be “fair and equitable.” Long v. Long, 129 Md. App. 554, 578 (2000).
Pursuant to FL § 8-205(a)(2)(i), the court may transfer ownership in a pension from one party to either or both parties. And pursuant to FL § 8-205(a)(2)(iii)(1), subject to the terms of any lien, the court may order the transfer of ownership of real property owned jointly, and used as the parties’ principal residence, from one party to the other if the party to whom the property is transferred obtains a release of the other party from any lien. Under subsection (2) of the same law, the court may authorize one party to purchase the interest of the other in the real property, in accordance with terms and conditions the court orders. (The court also may do both, pursuant to subsection (3).)
FL § 8-205(b) lists factors the court must consider, if relevant, when deciding the equitable distribution of marital property by monetary award or permitted transfer. They are:
1. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. the value of all property interests of each party;
3. the economic circumstances of each party at the time the award is to be made;
4. the circumstances that contributed to the estrangement of the parties;
5. the duration of the marriage;
6. the age of each party;
7. the physical and mental condition of each party;
8. how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
9. the contribution by either party of [non-marital]
property … to the acquisition of real property held by the parties as tenants by the entirety;
10. any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
11. any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
Consideration of the relevant factors is mandatory. Nevertheless, the trial court need not “go through a detailed check list of the statutory factors, specifically referring to each, however beneficial such a procedure might be.” Malin v. Mininberg, 153 Md. App. 358, 429 (2003) (quotation marks and citation omitted). “This is because a judge is presumed to know the law, and is not required to ‘enunciate every factor he considered on the record,’ as long as he or she states that the statutory factors were considered.” Id. (quoting Randolph v Randolph, 67 Md. App. 577, 585 (1986)). “But, ‘the chancellor who fails to provide at least some of the steps in his thought process leaves himself open to the contention that he did not in fact consider the required factors.’” Id. at 430 (quoting Campolattaro v. Campolattaro, 66 Md. App. 68, 81 (1986), superseded on other grounds by Rule).
The memorandum opinion in this case does not mention the statutory factors, although it includes express findings on some of them, such as the ages of the parties, their physical conditions, and the value of their property interests, and implicit findings on others, such as the length of the marriage and the monetary and nonmonetary contributions of the parties to the well-being of the family.
One factor that must be considered to fairly distribute the parties’ marital property is the economic circumstances of the parties at the time the award is made. In its nine-page memorandum opinion, the court makes only one mention of the most distinguishing fact, economically and otherwise, about this case: that Husband is serving a life sentence plus twenty years consecutive in prison. The court makes no mention of the fact that, due to his incarceration, Husband incurs no expenses for housing (mortgage or rent, insurance, maintenance and repairs, water, gas and electric, internet, and cleaning), food, phone, transportation (either public or a vehicle, including the cost of purchase, repairs, insurance, and gas), clothing, and entertainment. Instead of bearing these usual living expenses, his expenses are limited to incidental personal items permitted in prison. He testified that he wants to save money for a legal fund for private counsel in his criminal appeal but did not introduce evidence of what that would cost. In fact, he was being represented by counsel from the criminal appeals division of the public defenders’ office, at no cost. And after the trial in this case, he voluntarily dismissed that appeal. Basically, Husband comes as close as an adult can be to having no living expenses and that circumstance is likely to remain for decades.
The court does not appear to have considered this critical economic circumstance in determining a fair distribution of marital property. And despite comments in the opinion that it would be wrong to leave Husband “penniless,” the evidence
established that he never will be penniless because he has a lifetime pension, 5/11 of which is his non-marital property.
9 Even using the monthly sum of $2,666 for the net pension at the time of trial, the non-marital portion is $1,211.65 per month. That is an annual income of $14,539.80, tax free, for a person with no living expenses.
Relatedly, there is nothing in the court’s memorandum opinion to show any consideration that Wife, by contrast, has no non-marital property, savings, or retirement funds and incurs all the living expenses described above and more.
Beyond that, there are several unfortunate comments in the memorandum opinion that strongly suggest the court was placing blame on, if not punishing, Wife in its distribution of marital property for having testified against Husband in his criminal trial:
• The court found that information Wife learned about the money Husband had spent on Ms. McKay “caused [Wife] to no longer remain supportive or silent regarding [Husband], but to become a witness for the State and against her estranged husband.” It further found that Husband’s affair with Ms. McKay was “open and notorious,” so Wife should not have been surprised to learn that he had spent considerable sums on Ms. McKay. These findings imply that Wife was unjustified in her reaction to Husband’s using the family’s money to fund his affair and testified against him based on that unjustified reason. That is not supported by the evidence.
• The court found that Husband changed his POA from Wife to his father due to “her active role as a witness against him in the murder trial[,]” implying that he was justified in doing so as it was wrong for her to have testified. This finding was not supported by the evidence (in part because the POA change happened in 2021, two years before Husband’s trial).
• The court found that “[t]he already deplorable state of [the parties’] relationship was made even more untenable when [Wife] determined to assist the State against [Husband] in his pending murder trial.” The same implication is made here.
• The court commented that Wife’s “request [to be given all of Husband’s pension] appears more related to [Husband’s] current legal issues, but the marriage was already over by December 2017.” Wife did not ask to receive all of Husband’s pension and the evidence contradicted the finding that the marriage was “already over by December 2017.” Husband testified that the couple’s relationship had improved around Thanksgiving of that year and Wife testified that before the arrest she had wanted to reconcile. The comment suggests that Wife’s request for a sizable distribution of Husband’s pension was vindictive, despite evidence that she was trying to protect herself and Child from the economic hardship brought about by Husband’s criminal conduct. During trial, the court interjected and asked follow-up questions, as often happens in a bench trial. Although there was evidence that Wife had testified for the State in the criminal trial, there was no evidence about the substance of her testimony or the circumstances that led her to testify. The court did not pose any questions to ferret out that information,
which would not be surprising if the court did not think it was significant. The opinion reveals to the contrary, however, and as discussed, that the court took a negative view of Wife based on it. The court was critical of Wife for testifying without knowing anything about her testimony or the circumstances surrounding it. It was a clear abuse of discretion for the court to fault Wife for testifying at Husband’s trial and factor that into the equitable distribution of their property, especially without knowing the surrounding circumstances and not taking steps to learn about those circumstances.10
We also are troubled by the use the court made of the evidence that, during his period of incarceration from January 2018 until the date of divorce, Husband paid his full net pension to Wife for sixty-four months and half his net pension plus half the mortgage to her for nine months. The court determined that these payments, which it calculated as totaling $197,737 over that seven year period, were “advanced support to [Wife].” On that basis, the court rejected Wife’s “request that she be awarded all of the equity in the marital home.”
This is an out-of-context analysis of these payments. Husband always was the primary breadwinner in the family. In April 2017, he lost his job that paid $81,000 a year and was denied unemployment insurance benefits because he had been discharged for cause. He did not obtain another job but instead started a small business that earned no money. At that point, with Husband spending most of his time away from home with Ms. McKay, the family’s income consisted only of Husband’s pension and the small income Wife was earning from part-time work as a travel agent. Then, Husband was arrested for murder and jailed without bond. He continued to receive his pension but no longer had any living expenses, while Wife suddenly was left to pay all the household expenses and all the expenses of raising Child, with very little income.11
The pension payments to Wife were not “advanced support.” They were payments that supported the family at the time they were made, over a period of years in which there was little other means of support for the family - - to the point that Wife had to file for bankruptcy - - and Husband had no living expenses. Moreover, the payments had no connection to a fair distribution of the equity in the marital home. The court’s approach would be the same as counting the amount of pendente lite alimony received by a spouse against that spouse’s claim to marital property. It is apples and oranges.
Then, having already used the pension money Husband paid to Wife for his benefit in determining the distribution of the equity in the marital home, the court essentially double dipped, applying a large portion of the same money as a “credit” for Husband against child support. Using August 2021 as the starting point (as that is when suit was filed), the court subtracted from each monthly net pension payment $727 (the one-half of the marital value of the pension it had determined Wife was entitled to), $380 (the child support it had calculated from August 2021 to the entry of the JAD) and $636 (one-half the monthly mortgage), arriving at a $923 “credit” for Husband per month through September 2023, and a $226 “credit” for Husband per month from October 2023 to the date of divorce. That produced a total child support
“credit” for Husband of $28,801. The court awarded a child support arrearage of $380 per month from August 2021 through September 2024 (the date of divorce), which totals $14,440; and child support of $353 per month from the date of the JAD to the month Child reaches the age of majority. That sum will total $9,531. Those two amounts ($14,440 and $9,531) of child support total $23,971, which is less than Husband’s $28,801 “credit.” Thus, Husband will never have to pay child support arrears or child support going forward.
Wife has not appealed the part of the judgment granting child support arrears or child support going forward, and for that reason we are not vacating that part of the judgment. We point out the court’s credit decision because it illustrates the basic unfairness to Wife of the court’s rulings under the total circumstances in the case. In that vein, it is worth noting that the court’s award to Wife is less than Husband’s counsel suggested she receive in closing argument.12
We conclude that, under the circumstances, the court’s distribution of marital property was not equitable, and its exercise of discretion in that regard was “‘well removed from any center mark imagined by [this Court] and beyond the fringe of what [we] deem[] minimally acceptable.’” McAllister, 218 Md. App. at 400 (quoting North, 102 Md. App. at 14).
Finally, as explained, when Husband retired, he selected a plan that included a 100% survivor’s benefit and named Wife as the beneficiary. The court determined that the survivor’s benefit is divisible, and each party is entitled to name a survivor beneficiary for “their portion of the pension.” There was no evidence about the workings of the pension plan,
however, including whether the survivor’s beneficiary can be changed, whether and how an alternate beneficiary may designate a separate beneficiary, and whether the pension plan permits dual survivor beneficiaries. In addition, the evidence showed that Wife was designated the survivor beneficiary during the marriage, not prior to it, and the payments toward the survivor’s benefit were made during the marriage. There was no consideration of how marital funds used to purchase the survivor’s benefit should factor into the equitable analysis. Thus, the decision to divide the survivor’s benefit was not supported by the evidence and was an abuse of discretion.
On remand, the court may hear additional evidence so the information it considers is timely and accurate. When considering the equitable distribution of Husband’s pension, the court’s starting point should be the monthly gross pension amount, not the monthly net pension amount. The evidence showed that, in 2024, at the time of trial, the gross distribution to Husband each month was $3,241.03. As explained, from that amount, the cost of health and other insurance was deducted, resulting in the monthly net pension amount of $2,666. The parties are now divorced, and Wife will not be receiving any health or other insurance benefits through the pension. It is unclear whether Child is receiving benefits. In any event, whatever the division may be, it should be made from the gross amount, with Husband thereafter deducting the benefits that apply to him.
Because both parties are liable on the mortgage, the portion of the JAD requiring Husband to pay one-half of the monthly mortgage amount shall remain in effect. 13
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY VACATED WITH RESPECT TO EQUITABLE DISTRIBUTION OF MARITAL PROPERTY AND PENSION SURVIVOR BENEFICIARY DESIGNATION, EXCEPT APPELLEE TO CONTINUE PAYING APPELLANT ONE-HALF OF MONTHLY MORTGAGE AMOUNT. JUDGMENT OTHERWISE AFFIRMED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 Wife worded her questions presented as follows:
1 Did the court err in its failure to consider the necessary statutory factors and/or abuse its discretion in rendering an award that provided Mr. Greene 50% of the marital property?
2 Did the court err and/or abuse its discretion in its treatment of the survivor benefit issue?
2 Wife testified that Husband was terminated for lying about expenses on a company credit card he was issued. Husband testified that that was not true, and that he was terminated simply because his services no longer were needed. When the decision of the Maryland Department of Labor disallowing Husband’s request for unemployment insurance benefits was moved into evidence, Husband testified that the document was “contrived by the government[.]”
3 The other crimes were breaking and entering the dwelling of another to commit a crime of violence (“home invasion”), use of a firearm in the commission of a crime of violence, and wearing and carrying a handgun.
4 In 2018, the circuit court granted a motion to suppress evidence, from which the State noted an appeal. This Court reversed, State v Greene, 240 Md. App. 119 (2019), and the Supreme Court of Maryland granted a writ of certiorari and agreed that the suppression motion had been improperly granted. Greene v State, 469 Md. 156 (2020). By the time the case was remanded to the Circuit Court for Baltimore City, the courts were undergoing periodic shut-downs due to the continuing Covid-19 pandemic. All of this accounts for the long stretch of time that elapsed between Husband’s arrest and his jury trial.
5 Upon being arrested on December 5, 2017, Husband gave the police a voluntary statement claiming that he could not have killed Mr. Hickey because, in the early morning hours of November 29, 2017, he was at home in bed with Wife. In
essence, Wife’s testimony was that she could not vouch for Husband’s presence at home between the time she went to bed on the night of November 28 and when she saw him in the kitchen of their house at 6 a.m. on November 29.
6 There was no testimony about whether Child’s health insurance would continue to be paid by Husband postdivorce. In the Child Support Guidelines the court used, there is no entry for the cost of health insurance for Child.
7 The actual numbers used do not coincide with the sum used by the court as the equity value in the house because counsel for Wife used a slightly smaller number, $98,848.
8 As we shall discuss infra, the monthly gross pension amount, not the monthly net pension amount, should be used.
9 The evidence was sufficient to show that 5/11 of the pension is non-marital.
10 As mentioned above, we have taken judicial notice of publicly available information about Husband’s criminal case. This includes that, on the day of his arrest, he told the police he had been home in bed with Wife, in Harford County, when Mr. Hickey was murdered in
Baltimore City. His statement cast Wife in the role of an alibi witness. Yet, when surveillance camera footage was obtained, it showed Husband breaking into Mr. Hickey’s apartment and then leaving it with a gun in hand. The alibi testimony Husband wanted Wife to give would have been untruthful. The court’s remarks strongly suggest that, if Wife’s truthful testimony would not support Husband, she should not have testified at all. Wife should not be criticized, let alone punished, for choosing to testify and to do so truthfully.
11 In her Financial Statement submitted in this case on April 22, 2024, Wife listed her expenses and those of Child, which totaled $5,713.95 per month. It would have been less in prior years, but likely would have been significantly more than Husband’s monthly net pension.
12 Using Husband’s counsel’s figures, $2,666 per month net pension and $98,848 equity in the marital home, Husband was willing for Wife to receive one-half of the full monthly pension, including the non-marital portion ($15,996 a year) and one-half of the equity in the home ($49,424). The court awarded Wife one-half of the equity in the marital home ($49,424) and one-half of the martial portion of the pension ($8,724 a year).
13 To avoid any appearance of continuing unfairness, we recommend that, on remand, the case be reassigned.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 4 (2026)
Physical custody; tie-breaking authority; best interests
The Appellate Court affirmed the Baltimore County Circuit Court’s award of primary physical custody and tie-breaking authority in legal custody to father. The trial court thoroughly considered the custody factors applicable at the time, and determined that it was in the child’s best interest to award father primary physical custody and tie-breaking authority in legal custody.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
I. QUESTIONS PRESENTED
Ms. Fram presents the following questions for our review, which we have rephrased:2
1. Did the trial court err in awarding primary physical custody and tie-breaking authority in legal custody to Dr. Dean, despite his parental alienation behavior?
2. Did the trial court err in finding that two investment accounts were primarily nonmarital, where marital and nonmarital funds were commingled in the accounts?
For the reasons stated herein, we affirm the judgments of the Circuit Court for Baltimore County.
II. FACTUAL & PROCEDURAL BACKGROUND
This appeal arises from a divorce and custody dispute adjudicated by the Circuit Court for Baltimore County. Appellant, Lauren (Fram) Dean (“Ms. Fram”),1 filed a Complaint for Absolute Divorce on November 30, 2023, which was followed by a Counter-Complaint for Divorce, filed on January 8, 2024, by Appellee, Dr. Clayton Dean (“Dr. Dean”). A trial on the merits commenced on April 9, 2025, consumed eleven days, and concluded on May 19, 2025. The circuit court entered the Judgment of Absolute Divorce on June 5, 2025, and a Supplemental Judgment of Absolute Divorce regarding the financial matters on August 14, 2025. An order modifying the child access schedule and child support was entered on October 24, 2025.
Ms. Fram filed an appeal on July 30, 2025, challenging the court’s ruling awarding Dr. Dean primary physical custody and tie-breaking authority in legal custody, as set forth in the Judgment of Absolute Divorce, entered on June 5, 2025. Ms. Fram filed another appeal on September 15, 2025, challenging the court’s finding that the Merrill Lynch accounts #3859 and #7889 were primarily nonmarital, as reflected in the Supplemental Judgment of Absolute Divorce and Memorandum Opinion, entered on August 14, 2025. No appeal was filed in relation to the October 24, 2025 order.
The parties appeared before this Court for oral argument on January 13, 2026.
The parties met in early 2014 and moved into together six months later. At the time, Ms. Fram was 25 years of age, working at her mother’s retail store. Dr. Dean was 37 years of age and a spinal surgeon at Mercy Hospital. Shortly after the parties moved in together, Ms. Fram quit working and Dr. Dean provided financial support for her. The parties married on February 3, 2018, and one child was born to the marriage in 2019. Until 2022, Dr. Dean worked full-time, and Ms. Fram was the primary caregiver for the child.
Difficulties in the marriage began shortly after Ms. Fram became pregnant and increased after the child was born. In July of 2022, Ms. Fram left the marital home with the child. The parties shared physical custody of the child during the separation. The separation was difficult for the child and the parties, and the child was returned to the home in September of 2022, followed by Ms. Fram shortly thereafter. However, the marital relationship did not resume. When the child returned to the home, Dr. Dean retired and became the child’s primary caregiver. Ms. Fram remained in the marital home throughout the litigation of this case because she was concerned if she moved out that Dr. Dean would keep the child from her.
A. Judgment of Absolute Divorce & Supplemental Orders
The Judgment of Absolute Divorce, entered on June 5, 2025, granted Ms. Fram an absolute divorce from Dr. Dean and restored her to her maiden name. Ms. Fram was ordered to vacate the marital home within fourteen days of May 29, 2025. Dr. Dean was awarded primary physical custody of the child, with “reasonable and liberal access” awarded to Ms. Fram.3 The parties were awarded joint legal custody of the child, with Dr. Dean having tie-breaking authority only after following a strict resolution process established by the court. Ms. Fram was ordered to continue reunification
therapy with the child. A review hearing on Ms. Fram’s access with the child was scheduled for October 7, 2025.
The court reserved on the financial issues, including marital property, monetary award, and alimony, pending the parties’ written closing arguments. Until the resolution of the financial matters, Dr. Dean consented to continuing to pay the monthly payments and insurance for the 2022 Mercedes AMG GLE vehicle driven by Ms. Fram, to pay Ms. Fram’s rent and utilities, and to advance $10,000.00 against any monetary award to assist Ms. Fram with moving expenses. Dr. Dean consented to continuing to provide health insurance and cover any other medical expenses for the child.
A Supplemental Judgment of Absolute Divorce and Memorandum Opinion regarding the marital property, monetary award, alimony, and child support was entered on August 14, 2025. Ms. Fram was awarded half of the marital portion of Dr. Dean’s Merrill Lynch Individual Retirement Arrangement (“IRA”) account, a monetary award in the amount of $1,440,763.46, and indefinite alimony in the amount of $5,000.00 per month. Dr. Dean was denied a monetary award and alimony. However, Ms. Fram was ordered to pay $535.00 per month in child support to Dr. Dean.
Each party called expert witnesses to testify regarding the parties’ finances. Ms. Fram called Bruce G. O’Heir, CPA (“Mr. O’Heir”). Dr. Dean called Mark W. Norris, CPA (“Mr. Norris”).
The marital home located on Mantua Mill Road in Glyndon, Maryland was purchased by Dr. Dean two years before the parties’ marriage and titled solely in his name. The court found that Dr. Dean’s nonmarital contribution to the marital home was 27% of the property’s value, which resulted in $810.000.00 nonmarital equity.4 The marital value of the home was determined by the court to be $1,351,172.92.
Dr. Dean’s 87.5% ownership in Velocity Ventures I, LLC, was marital property. The court found Dr. Dean’s financial expert, Mr. Norris, credible in the LLC’s valuation at $688,500.00.
The parties disagreed on the marital status of the Merrill Lynch Primary Investment Account #3859 and the Merrill Lynch Account #7889. The court found Mr. Norris’s analysis as to both accounts credible, as he was able to trace which funds were nonmarital and which were marital. Crediting Mr. Norris’s analysis, the court found that 87%, or $5,643,544.00, of the Merrill Lynch Primary Investment Account #3859 was nonmarital and the remaining 13%, or $844,355.00, was marital. Regarding the Merrill Lynch Account #7889, the court found that 97% was nonmarital and 3% was marital, equating to $40,499.00.
The marital portion of Dr. Dean’s Merrill Lynch Roth IRA equaled $394,587.00. The court ordered Ms. Fram’s 50% in the marital interest be transferred by a Qualified Domestic Relations Order (“QDRO”). Since Ms. Fram’s interest in the IRA would be transferred to her directly, the IRA account was not considered for the purpose of determining a monetary award.
Dr. Dean retained possession of the 2022 Mercedes AMG GLE. The court found that the lien on the vehicle was more than the value of the vehicle, and therefore, valued the vehicle at zero. The court found that the Merrill Lynch Custodial Account opened by Dr. Dean for the benefit of the
child was not subject to distribution.5 Neither the vehicle nor the Custodial Account would be considered an asset of Dr. Dean for the purpose of determining a monetary award for Ms. Fram.
After the parties separated, but prior to the divorce proceedings, Ms. Fram rented a townhouse in Lutherville, paying a $3,000.00 security deposit. The court found that the furniture purchased by Ms. Fram for the townhouse was worth approximately $10,000.00. Ms. Fram’s PNC bank account was valued at $10,000.00 by the court from Ms. Fram’s testimony.
The court found that the total value or equity of the parties’ marital assets was $2,947,526.92. Dr. Dean held $2,924,526.92 of the marital assets titled in his name. The court valued the total of Ms. Fram’s marital assets at $23,000.00.
The court considered the factors required by Md. Code Ann., Fam. Law § 8-205(b), and granted Ms. Fram a monetary award in the amount of $1,440,763.46.6 The court considered the factors required by Md. Code Ann., Fam Law § 11-106(b), found that there was a disparity7 in income and standard of living between the parties, and awarded Ms. Fram indefinite alimony in the amount of $5,000.00 per month.8 Using the child support guidelines and considering Ms. Fram’s $5,000 monthly alimony as her only income, the court calculated Ms. Fram’s child support obligation to $535.00 per month.
On October 7, 2025, the court held a review hearing regarding Ms. Fram’s access schedule with the child. On October 24, 2025, the court entered an order modifying the child access schedule as set forth in the Judgment of Absolute Divorce. Pursuant to the new order, Ms. Fram was granted two nonconsecutive weekends with the child from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday. After the two nonconsecutive weekends, Ms. Fram was granted visitation with the child every other weekend, starting Friday after school until Monday morning when she takes the child to school. The Tuesday and Thursday schedules remained the same, with Ms. Fram picking the child up from school and returning her to Dr. Dean at 7:00 p.m.; however, during the weeks without a weekend visitation, the Thursday visitation becomes an overnight stay. The parties will alternate holidays and equally divide winter and spring breaks from school.
Due to Ms. Fram’s increased access schedule, the child support was also modified. Per the child support guidelines, the court ordered Dr. Dean to pay $884.00 per month in child support to Ms. Fram. In all other matters, the court’s prior orders remained in full force and effect, provided they are not inconsistent with the new order.
Additional facts will be included in the discussion as they become relevant.
III. DISCUSSION
For the following reasons, we conclude that the trial court’s ruling is not inconsistent with its findings and objectives, and that the trial court did not abuse its discretion in its custody determination. We further conclude that the court’s reliance on the testimony of Dr. Dean’s expert was not an abuse of discretion, and its determination as to the marital and nonmarital portions of the two investment accounts was not clearly erroneous.
A. The Trial Court Did Not Err in Awarding Dr. Dean Primary Physical Custody and Tie-Breaking Authority in Legal Custody
Ms. Fram argues that “the trial court abused its discretion when it awarded primary physical custody and tie-breaking authority to [Dr. Dean] despite repeatedly finding that [Dr. Dean] was intentionally interfering with the relationship between [the child] and [Ms. Fram].” Ms. Fram claims that the trial court’s ruling does not logically follow its factual findings of Dr. Dean’s parental alienation behavior and its announced objectives of reunification between the child and Ms. Fram. Ms. Fram requests that this Court vacate the custody award and remand the case for reconsideration of shared physical custody and awarding Ms. Fram tie-breaking authority in legal custody.
Dr. Dean counterargues that Ms. Fram’s “appeal of the trial court’s proper custody order should be dismissed because [Ms. Fram] did not file the required notice of appeal to the controlling custody order and her appeal is moot.” Dr. Dean claims that the controlling custody order is the order that was entered on October 24, 2025, which modified the child access schedule and child support, rather than the Judgment of Absolute Divorce entered on June 5, 2025, to which Ms. Fram takes appeal. Ms. Fram replies that “the appeal is not moot because the October 24, 2025 order did not materially modify the trial court’s Judgment of Absolute Divorce as to physical or legal custody.”
Alternatively, Dr. Dean counters that “the trial court’s legal and physical custody decisions were not erroneous or an abuse of discretion where there was ample evidence in the record to support the trial court’s conclusions.” Dr. Dean emphasizes that the trial court never found that he was guilty of parental alienation, but instead the court found that the toxic home environment was created by Ms. Fram’s decision to continue living in the home. As such, Dr. Dean asks this Court to affirm the trial court’s judgments.
1. STANDARD OF REVIEW
“The light that guides the trial court in its determination, and in our review, is the best interest of the child standard, which is always determinative in child custody disputes.”
Santos v. Santos, 448 Md. 620, 626 (2016) (citing Ross v. Hoffman, 280 Md. 172, 178 (1977) (internal quotation marks omitted). However, “an appellate court does not make its own determination as to a child’s best interest; the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.” Gordon v. Gordon, 174 Md. App. 583, 637–38 (2007).
We review the trial court’s factual findings for clear error. Lemley v. Lemley, 109 Md. App. 620, 627 (1996). A finding is not clearly erroneous where there is competent or material evidence in the record to support it. Id. at 628. We do not sit as a second trier of fact, but rather we review the record for the presence of sufficient material evidence to support the trial court’s findings. Id. Moreover, the record is reviewed in the light most favorable to the party that prevailed below. Id.
We review a trial court’s custody determination under the abuse of discretion standard. Santos, 448 Md. at 625.
As such, we defer to the trial court, as they are uniquely situated to observe and assess the credibility of the parties and witnesses. Id. (citing Petrini v. Petrini, 336 Md. 453, 470 (1994)). Under this deferential standard, we may only reverse the trial court where “no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.” Id. at 626. (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). Moreover, we may not reverse the trial court’s decision simply because we would have decided the case differently. Gordon, 174 Md. App. at 638.
2. PHYSICAL & LEGAL CUSTODY
In determining child custody, the trial court’s “paramount concern is the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303 (1986). To determine what is in the best interest of the child, the trial court must “evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.” Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 419 (1978). “[A] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision [they] render[].” Id. at 414 (citation omitted); see also Taylor, 306 Md. at 311 (“The resolution of a custody dispute continues to be one of the most difficult and demanding tasks of a trial judge.”).
Custody encompasses both “physical” and “legal” custody. Taylor, 306 Md. at 296. Physical custody includes the “right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” Id. Whereas legal custody involves the “right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Id.
Custody, both physical and legal, may be granted solely/ primarily to one parent, or jointly/shared between both parents. See id. at 296–67. “Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.” Id. at 297. Joint legal custody indicates that “both parents have an equal voice in making [] decisions” concerning the child. Id. at 296.
When determining custody, there are several factors that a court must consider. See Sanders, 38 Md. App. at 420; Taylor, 306 Md. at 304–11; Md. Code Ann., Fam. Law § 9-201. Prior to the enactment of Family Law § 9-201 on October 1, 2025, “the factors to be considered by a court in making such a determination [were] not specified in statute but [were] instead [] developed through case law.” Md. Gen. Assemb. Dep’t of Legis. Servs., The 90 Day Report: A Review of the 2025 Legislative Session, 447th Sess., at Part F-7 (2025). At the time of trial and the court’s custody ruling in the case sub judice, Family Law § 9-201 was not yet in effect. See id.; Md. Code Ann., Fam. Law § 9-201. In its ruling, the trial court here considered the custody factors that were applicable at the time, citing to Sanders and Taylor See Sanders, 38 Md.
App. at 420; Taylor, 306 Md. at 304–11. As such, we assess the trial court’s ruling based on the case law that applied at the time.
This Court in Montgomery County Department of Social Services v. Sanders, established a list of factors to weigh in making a custody determination:
(1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreement between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunity of visitation; (9) length of separation from natural parents; and (10) prior voluntary abandonment or surrender.
J.A.B. v. J.E.D.B., 250 Md. App. 234, 253 (2021) (citing Sanders, 38 Md. App. at 420).
However, the court’s considerations are not limited to this list and no single factor should be given more weight than another. Sanders, 38 Md. App. at 420–21. The court must consider the “totality of the situation in the alternative environments[.]” Id.
When a court is considering whether shared custody is a viable option, it must consider “the Taylor factors” as established in Taylor v. Taylor by our then Court of Appeals.
J.A.B., 250 Md. App. at 255. The Taylor factors include: (1) capacity of parents to communicate and to reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between child and each parent; (5) preference of child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of parents; (12) impact on state or federal assistance; and (13) benefit to parents.
Id. at 255–56 (citing Taylor, 306 Md. at 304–11). Again, this list of Taylor factors is not all-inclusive.9 Taylor, 306 Md. at 311. The court “should consider all other circumstances that reasonably relate to the issue.” Id.
3.
ANALYSIS
While Dr. Dean argues in his brief that Ms. Fram’s appeal should be dismissed because she did not appeal the proper custody order, Dr. Dean’s counsel at oral argument before this Court conceded that the issue of legal custody and tie-breaking authority was still before this Court’s review, because the October 24, 2025 order did not address or modify legal custody. When a trial court determines legal custody, that decision is not made in a vacuum; it is inherently intertwined with the court’s assessment and determination of physical custody. As such, a review of legal custody requires us to review physical custody as well. Moreover, because we find no error or abuse of discretion by the trial court in its overall custody determination, we need not address whether the issue of physical custody is moot.
Ms. Fram’s primary argument is that the trial court’s ruling, awarding Dr. Dean primary physical custody and tie-breaking authority in legal custody, does not logically follow from its factual finding regarding Dr. Dean’s parental alienation behavior and the court’s objective for reunification between her and the child. Thus, we must assess the trial court’s factual findings and whether its analysis of those facts supports its ruling.
First, we address the issue of parental alienation. To support her argument, Ms. Fram cites to Bajaj v. Bajaj, 262 Md. App. 435 (2024). In Bajaj, the trial court found that the mother “deliberately estranged the minor children from the Father.” Id. at 441. However, the court denied the father’s request for a 2-2-5-5 access schedule,10 finding that it was not in the children’s best interest to be apart from mother for five days at a time. Id. at 439. Instead, the court granted the father visitation on Wednesday nights until 7:00 p.m., overnight visits on alternating weekends, half of holiday breaks, such as Christmas, Thanksgiving, and spring break, and two weeks during summer vacation, either consecutive or nonconsecutive. Id. at 441. The father requested an in banc review in the circuit court pursuant to Md. Rule 2-551. The in banc panel held that “given the trial court’s findings about the strength of the loyalty bind such that the children could not be parted from Mother for long periods, the trial court did not adequately explain why it also ordered extended periods of visitation to Father on holidays.” Id. The in banc panel remanded the case and asked the trial court to explain why the access schedule was in the children’s best interests. Id. The mother appealed to this Court, and we held: [W]hether the circuit court erred in ordering its custody schedule is not before us in this appeal. But we agree with the in banc panel that there is a logical disconnect in the trial court’s reasoning: given its finding that it was not in the minor children’s best interest to be apart from Mother for periods of five days or more, it left unexplained why it would be in their best interest to be in Father’s custody for longer holidays such as Father’s two-week summer access. While it appears possible that the trial court meant that it would only be detrimental to the minor children to be parted from Mother for long periods during their regular schedule, we need not speculate. The in banc panel ordered the modest remedy of remand to the circuit court for reexplanation and reconsideration of its order, and we agree that this was an appropriate manner of clarifying the trial court’s reasoning.
Id. at 451.
The issue and holding in Bajaj are much narrower than Ms. Fram alleges. Ms. Fram essentially argues that Bajaj stands for the proposition that a finding of parental alienation is inconsistent, or logically disconnected, with granting the alienating parent primary custody and limiting the other parent’s access. That is not the holding of Bajaj. The narrow holding in Bajaj simply says that the finding that the children cannot be apart from the mother more than five days is inconsistent with the ruling granting father holiday periods
in excess of five days, and because the trial court did not explain why this inconsistency was in the best interests of the children, the case needed to be remanded for the court to provide such explanation. See id. Moreover, we did not foreclose the possibility that the trial court could provide a sufficient explanation for the inconsistency, such as the children could not be apart from their mother “during their regular schedule.” Id. In the case sub judice, there are no factual findings that are directly inconsistent with the ruling, like that in Bajaj. Furthermore, the trial court’s oral ruling sufficiently explains why its custody decision is in the child’s best interest.
In discussing parental alienation in its ruling, the trial court summarized the opinions of the experts in the psychological and child access evaluations. From Dr. Dean’s psychiatric evaluation, it was the opinion of Stephen W. Siebert, M.D., that “Dr. Dean’s parental alienation was under [Dr. Dean’s] control.” The opinion of K. DeShawn Jennings, LCSW-C, in the child access evaluation, was that Dr. Dean “does not separate himself from [the child] or give [the child] time to engage with [Ms. Fram].” The court then indicated that although Dr. Dean has given the child permission to love Ms. Fram, pursuant to the advice of the reunification therapist, Dr. Esther Finglass, “I don’t think she really believes it.” However, the court also found that Dr. Dean began seeing a parenting coach and is working to promote independence within the child.
It is unclear whether the trial court made a finding of parental alienation, as it did not explicitly say so, or if the court was simply summarizing the evidence and testimony presented at trial. Regardless of whether there was such finding, Ms. Fram is asking us to hold that a finding of parental alienation precludes the alienating parent from primary physical custody and tie-breaking authority in legal custody, which we decline to do. In determining custody, the court considers the “totality of the situation in the alternative environments.” See Sanders, 38 Md. App. at 420–21. The trial court clearly considered Dr. Dean’s behavior in its assessment and, despite such behavior, found based on the “totality of the situation” that it was in the best interest of the child to award him primary physical custody and tie-breaking authority in legal custody. As such, the trial court did not abuse its discretion by failing to rely on this one factor in making its custody decision.
Second, we discuss whether the court’s ruling “logically follows” from any of its other factual findings. Ms. Fram fails to acknowledge the trial court’s other factual findings regarding her behavior, that may have resulted in the court declining to order shared physical custody and award her tie-breaking authority in legal custody. While the trial court found that Ms. Fram was fit to care for the child, it had some concerns. The court was primarily concerned with Ms. Fram’s decision to remain in the marital home, which created a toxic environment, despite the advice to move out.11 The court found that the toxic environment in the home was exacerbated by Ms. Fram’s having “a timer on her phone to take pictures of Dr. Dean and [the child] at every hour” and Ms. Fram’s agreement or understanding with the child that they would not play together or speak to one another in the house, but rather whisper or only talk if Dr. Dean was not
around. Regarding this behavior, the court was concerned what message it was sending to the child and noted that Ms. Fram “is teaching [the child] to keep secrets and acting in a way that also isn’t healthy.”
Moreover, although the court did not believe that Ms. Fram’s extramarital affairs made her a “bad mother,” the court found that they did “take her away from time with [the child]” and that “[t]here is a lack of predictability if she tells [the child] she’ll be right back and then doesn’t return for an extended period of time.” Prior to reunification therapy, the child was “anxious and fearful” of Ms. Fram. Even after reunification therapy began, while the child was comfortable with Ms. Fram during the therapy sessions, the child was still not comfortable with Ms. Fram handling her caregiving at home. Ever since the child returned to the marital home, Dr. Dean became the primary caregiver for the child. The child is “highly bonded” with and reliant on Dr. Dean. Ms. Fram would like for us to believe that her fractured relationship with the child is a result of Dr. Dean’s behavior, which it may be, however, it is just as likely that the broken relationship is a result of her own actions, or a combination of both parents’ behavior. Considering these findings, we disagree with Ms. Fram’s argument that the court’s ruling does not “logically follow” its factual findings. Moreover, the ruling is not inconsistent with the court’s objective to reunify Ms. Fram and the child, as the court ordered reunification therapy to continue and ordered a reasonable and liberal access schedule, which included overnight visits.12
Lastly, we consider whether the trial court abused its discretion in its custody determination overall. When deciding whether shared custody was appropriate, as Ms. Fram desired, the trial court considered the Taylor factors. The capacity of the parents to communicate “is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate, and is relevant as well to a consideration of shared physical custody.” Taylor, 306 Md. at 304. The trial court summarized the testimony of the witnesses and found that the parties did not communicate well. Dr. Dean indicated that “the parties don’t communicate well, don’t trust each other enough, and forcing them to communicate would lead to arguments and acrimony.” Ms. Fram testified that Dr. Dean does not communicate with her regarding the child, including matters related to school and medical appointments. The court referred to the child access evaluation, which indicated that the parties did not coparent. Several other witnesses testified that the parties did not communicate with one another. Moreover, the parties were only willing to share custody if certain conditions were met.13 Considering their inability to communicate, hesitation to share custody, and other findings discussed supra, we conclude that the trial court did not abuse its discretion in declining to award shared physical custody.
Moreover, we do not find that the trial court abused its discretion by awarding Dr. Dean primary physical custody. The court found Dr. Dean fit to have custody of the child. Since July 2022, Dr. Dean was the primary caregiver for the child. He and the child are “highly bonded” and the child is reliant on him. Dr. Dean is engaged with a parenting coach to address the court’s concerns discussed supra. He will
retain possession of the family home and is able to maintain a stable home. Dr. Dean is financially “very well off from his work as a spinal surgeon” and retirement investments, and thus financially able to support the child. We conclude that the trial court did not abuse its discretion in awarding primary physical custody to Dr. Dean. Where both parents are deemed fit, it is not an abuse of discretion to award one parent primary physical custody over the other. See Gordon, 174 Md. App. at 617, 638–39 (holding there was no abuse of discretion where the trial court found both parents to be fit but granted primary physical custody to the mother and liberal visitation with the father); Viamonte v. Viamonte, 131 Md. App. 151, 159 (2000) (holding there was no abuse of discretion where the trial court found that “both parents are fit and proper to have custody of the minor [child], but that [the father’s] personal and occupational situation is more stable and that he is therefore more able to provide for [the child,]” and granted primary physical custody to the father).
As for legal custody, while the court found that the parties do not communicate, it also indicated that it had a “great deal of concern that if one party were awarded sole legal custody, sole decision-making ability, they would use it to the exclusion of the other party and completely shut that party out” and that was not in the child’s best interest. Therefore, the court ordered joint legal custody and awarded tiebreaking authority to Dr. Dean.
During its assessment of the character reputation of the parties, the court addressed the spoliation issue, summarizing that there was a hearing that made it “very clear” that email and text messages were not to be deleted, however, Ms. Fram deleted such messages. The court noted that it “could make a reasonable inference that [the deleted messages] would probably not be very flattering to [Ms. Fram]. Do they impact on her parenting skills? [. . .] She deleted them[,] so we won’t know that[.]”Furthermore, the trial court questioned Ms. Fram’s decision-making ability because of Ms. Fram’s decision to remain in the marital home despite experts’ advice to remove herself from that toxic environment.14 We note that tie-breaking authority is only to be exercised after a strict and lengthy resolution process ordered by the court.
Considering Ms. Fram’s history of failing to comply with the court orders, and questionable decision to remain in a toxic environment despite expert advice, we conclude that the trial court did not abuse its discretion in declining to award Ms. Fram tie-breaking authority in legal custody.
Ultimately, we review the trial court’s custody determination under the abuse of discretion standard. See Santos, 448 Md. at 625. Again, under such standard we may only reverse the trial court when “no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.” See id. at 626. The trial court here thoroughly considered the custody factors applicable at the time under Taylor and Sanders, and determined that it was in the child’s best interest to award Dr. Dean primary physical custody and tie-breaking authority in legal custody. While we understand that Ms. Fram is not satisfied with the access schedule and tie-breaking authority, we cannot conclude that the ruling is
inconsistent with the court’s findings and objectives, nor can we conclude that the trial court abused its discretion in its custody determination.
B. The Trial Court Did Not Err in Finding that Two Investment Accounts were Primarily Nonmarital Property
Ms. Fram argues that “the trial court’s finding that the Merrill Lynch Accounts - 3859 and -7889 are mostly nonmarital was based on its clearly erroneous reliance on [Dr. Dean’s] expert’s testimony and is not supported by Maryland law.” Ms. Fram asserts that it is impossible to trace funds that have been commingled in an investment account where there have been withdrawals and deposits both before and during the marriage. Ms. Fram asks this Court to remand the case for reconsideration of the Merrill Lynch accounts “as marital property to be divided evenly between the parties.”
Dr. Dean counterargues that “the trial court did not err in its findings as to the marital and non-marital components in either (a) account 7889; or (b) the primary investment account [3859].” Dr. Dean asserts that his expert analyzed both accounts, traced the nonmarital funds, and that the trial court was not clearly erroneous in accepting the expert’s analysis. Moreover, even if the accounts were deemed marital, that does not necessitate equal division of the accounts. Dr. Dean asks that we affirm the trial court’s judgments.
1. Standard of Review
Whether an asset, or a portion thereof, is marital or nonmarital is a question of fact, which we review under the clearly erroneous standard. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021) (quoting Collins v. Collins, 144 Md. App. 395, 408–09 (2002)). However, we review the decision to grant a monetary award under the abuse of discretion standard. Id.; see also Alston v. Alston, 331 Md. 496, 504 (1993) (“The decision whether to grant a monetary award is generally within the sound discretion of the trial court.”).
2. Marital & Nonmarital Property
Marital property is “property, however titled, acquired by [one] or both parties during the marriage.” Md. Code Ann., Fam. Law § 8-201(e)(1). Marital property does not include property: “(i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.” Md. Code Ann., Fam. Law § 8-201(e) (2). In a divorce proceeding, “if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property[,]” and “the value of all marital property.” Md. Code Ann., Fam. Law §§ 8-203(a), 8-204(a). Thereafter, “the court must determine if the division of marital property according to title will be unfair; if so, the court may make an award to rectify the inequity[,]” pursuant to Fam. Law § 8-205.15 Richards v. Richards, 166 Md. App. 263, 272 (2005) (quoting Collins, 144 Md. App. at 409); see also Md. Code Ann., Fam. Law § 8-205.
In determining whether property is marital or nonmarital, Maryland courts follow the “source of funds” theory:
[W]hen property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital. Thus, a spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.
Dave v. Steinmuller, 157 Md. App. 653, 663–64 (2004) (quoting Pope v. Pope, 322 Md. 277, 281–82 (1991)). Therefore, the “party who asserts a marital property interest bears the burden of producing evidence of the identity and value of the property.” Noffsinger v. Noffsinger, 95 Md. App. 265, 281 (1993). “Conversely, the party seeking to demonstrate that particular property acquired during the marriage is nonmarital must trace the property to a nonmarital source.” Innerbichler v. Innerbichler, 132 Md. App. 207, 227 (2000) (quoting Noffsinger, 95 Md. App. at 283) (internal quotation marks and brackets omitted). “Any property acquired during the marriage that cannot be directly traced to a nonmarital source is marital property.” Noffsinger, 95 Md. App. at 281.
3. Analysis
Ms. Fram argues that the trial court erred in relying on Dr. Dean’s expert witness to determine that two investment accounts, Merrill Lynch accounts #3859 and #7889, were mostly nonmarital, as it is impossible to trace nonmarital funds from marital funds commingled in investment accounts. Therefore, Ms. Fram alleges that these two investment accounts should be deemed entirely marital property and divided equally between the parties.
We disagree with Ms. Fram’s contention that where marital and nonmarital funds are commingled, it is impossible to trace the nonmarital funds. See Noffsinger, 95 Md. App. at 284 (“[T]he mere fact that nonmarital funds rested in the same account as marital funds does not compel the conclusion that the funds commingled.”). If “the party seeking to demonstrate that particular property acquired during the marriage is nonmarital [can] trace the property to a nonmarital source[,]” that property or a portion thereof will be deemed nonmarital. See Innerbichler, 132 Md. App. at 227. That is just what Dr. Dean’s financial expert witness, Mr. Norris, did. At trial, Mr. Norris, testified as to his methodology on tracing the nonmarital funds in the two investments accounts and his opinion as to the marital and nonmarital portions of those accounts. Mr. Norris’ expert report, which supported his testimony and opinion, was admitted into evidence. Mr. Norris analyzed every account statement from the date of marriage for account #3859 and from the date that account #7889 was opened in 2023 until February 28, 2025, and categorized every deposit and withdrawal as either marital or nonmarital depending on its origin.
The trial court found, crediting Mr. Norris’ testimony, that the balance of account #3859 on February 2, 2018, the day before the marriage, was $2,564,359.00 and thus, nonmarital. While this account was jointly titled by the time the parties went to trial, the account was not jointly titled until April 1, 2019. Moreover, if “marital property” is any property acquired during the marriage, regardless of its title, it stands to reason that property can be determined “nonmarital” or partly nonmarital regardless of title. See Md. Code Ann., Fam. Law § 8-201(e)(1). Regardless, the fact the account was jointly titled is of no consequence because Mr. Norris was still able to trace certain funds to nonmarital sources.
As a result of Mr. Norris’ tracing, the trial court found that the deposits in account #3859 of $259,806.00 from Dr. Dean’s 2018 Maryland State tax refund and $1,191,205.00 from his 2018 federal tax refund were nonmarital. These refunds resulted from Dr. Dean’s reported $4,200,000.00 loss from investing in Global Credit Recovery, which later turned out to be a Ponzi scheme, with nonmarital funds. Dr. Dean invested $3,000,000.00 in Global Credit Recovery prior to the marriage, and another $1,000,000.00 after the marriage but with funds that were traced to a bonus Dr. Dean received for 2017.16 Another $633,866.00 in account #3859 was traced to the sale of Dr. Dean’s interest in Millennium Spine Center and deemed nonmarital. Dr. Dean acquired this interest in 2011, pre-marriage, which Ms. Fram did not dispute was nonmarital. Mr. Norris traced $22,202.00 in inter-account transfers from Dr. Dean’s nonmarital accounts. Mr. Norris testified that any other deposits into the account that was not traced back to one of the sources previously mentioned, were determined marital.
Dr. Dean opened account #7889 in his name solely in January of 2023 with a payment from Global Credit Recovery, as restitution from the loss in the Ponzi scheme, in the amount of $2,081,031.00. Although this account was opened during the marriage, this deposit was traced back to the nonmarital investment as discussed supra and the trial court found it to be nonmarital. Mr. Norris testified, and his report shows, that the other deposits into this account were marital.
For both accounts, Mr. Norris also analyzed the withdrawals and inter-account transfers to determine their marital or nonmarital status and charged them to the appropriate categories. For example, Mr. Norris traced a withdraw from account #7889 in the amount of $830,000.00 to pay 2024 taxes on the restitution received from Global Credit Recovery and charged it to Dr. Dean as nonmarital. Withdrawals and interaccount transfers occurring during the marriage that could not be traced to a nonmarital purpose were deemed to be marital, according to Mr. Norris.
In relation to the withdrawals or transfers, Ms. Fram cites Schweizer v. Schweizer, 301 Md. 626, 636 (1984), arguing that “marital debt” must be directly traceable to the acquisition of marital property. Ms. Fram further argues that because Mr. Norris could not directly trace the withdrawals or transfers categorized as marital to the acquisition of marital property, the value of the marital portion should not be reduced by such withdrawals or transfers. However, Ms. Fram’s assertion is misplaced because withdrawals and transfers are not “debts” as envisioned by the Court in Schweizer See id. at 636–38.
Regarding how Mr. Norris calculated the net earnings on the marital and nonmarital portions in the investment accounts, he testified that “each month for the earnings per the investment statements, we simply prorated the earnings between the nonmarital balance of the previous month and the marital balance for the previous month and that’s how we prorated the total earnings for each month[.]” Thus, both marital and nonmarital categories accumulated net earnings in proportion to their value.
Based on Mr. Norris’ tracing analysis and opinion, the trial court found that account #3859 was 87% nonmarital and 13% marital, and account #7889 was 97% nonmarital and 3% marital. Whether an asset is marital or nonmarital is a question of fact, which we review for clear error. Wasyluszko, 250 Md. App. at 269. We do not sit as a second trier of fact, but rather we review the record, in the light most favorable to the party that prevailed below, for the presence of sufficient material evidence to support the trial court’s findings. Lemley, 109 Md. App. at 628. We conclude there was sufficient material evidence in Mr. Norris’ testimony and expert report to support the trial court’s findings.
Moreover, where “there are two experts, the trier of fact must evaluate the testimony of both of them and decide which opinion, if any, to accept.” Long v. Long, 129 Md. App. 554, 570 (2000) (quoting Quinn v. Quinn, 83 Md. App. 460, 470 (1990)). The trial court does not abuse its discretion by accepting the testimony of one party’s expert over the expert of the other. Id.; see also Fox v. Fox, 85 Md. App. 448 459 (1991) (holding that the trial court did not abuse its discretion by accepting the testimony of one party’s expert, where the expert explained in detail how they arrived at such opinion).
Here, both parties’ experts testified as to the marital and nonmarital nature of the investment accounts in question. The trial court accepted the testimony and opinion of Dr. Dean’s expert, who explained in detail how he arrived at his opinion. We conclude that the trial court did not abuse its discretion by accepting the opinion of Dr. Dean’s expert
over that of Ms. Fram’s. Consequently, we conclude that the court’s determination of the marital and nonmarital portions of the two investment accounts in question were not in clear error.
IV. Conclusion
For the foregoing reasons, we affirm the judgments of the Circuit Court for Baltimore County. The trial court did not abuse its discretion by failing to rely solely on Dr. Dean’s parental alienation behavior in making its custody decision. We decline to hold that a finding of parental alienation precludes the alienating parent from primary physical custody and tie-breaking authority in legal custody, where the “totality of the situation” of what is in the best interest of the child supports an award of custody to the alienating parent.
Considering their inability to communicate, hesitation to share custody, and other findings discussed supra, we conclude that the trial court did not abuse its discretion in declining to award shared physical custody. Subsequently, where both parents are deemed fit, we conclude that the trial court did not abuse its discretion in awarding primary physical custody to Dr. Dean over Ms. Fram. Furthermore, given Ms. Fram’s history of failing to comply with a court’s order and decision to remain in a toxic environment despite expert advice, we conclude that the trial court did not abuse its discretion in declining to award Ms. Fram tie-breaking authority in legal custody. Overall, we cannot conclude that the trial court’s ruling is inconsistent with its findings and objectives, nor can we conclude that the trial court abused its discretion in its custody determination.
We further conclude that the trial court did not abuse its discretion by accepting the testimony and opinion of Dr. Dean’s expert over the expert of Ms. Fram. Consequently, we conclude that the court’s determination as to the marital and nonmarital portions of the two investment accounts in question was not clearly erroneous.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Appellant, Lauren Dean, was restored to her maiden name, Lauren Ashley Fram, pursuant to the Judgment of Absolute Divorce. As such, we will refer to her as Ms. Fram in this opinion.
2 Ms. Fram presented the following questions in her brief:
1. Did the trial court err, abuse its discretion, and was it clearly erroneous when it disregarded clear evidence and its own findings that Father was intentionally interfering with the relationship between Mother and M.D., and yet awarded Father primary physical of M.D. and tie-breaking authority in legal custody?
2. Did the trial court err as a matter of law and was it clearly erroneous when it found that two investment accounts were primarily non-marital when the funds were commingled to an inextricable degree and could not be directly traced to a non-marital source?
3. To what remedies is Mother entitled?
3 Ms. Fram’s access schedule, once she vacated the marital home, included every Tuesday, Thursday, and Saturday from 11:00 a.m. to 2:00 p.m.; beginning August 2, 2025, Saturdays would be extended to 5:00 p.m.; once school began, Tuesday and Thursday access would begin after school until 7:00 p.m.; and holidays would be as agreed upon by the parties.
4 The purchase price of the home was $2,250,000.00 with a downpayment of $450,000.00. Dr. Dean’s total mortgage
payments prior to the marriage equal $162,424.00. The Fair Market Value (“FMV”) of the marital home was appraised at $3,000,000.00 in 2024. As of June 1, 2025, the mortgage balance was $838,827.08.
5 See Abdullahi v. Zanini, 241 Md. App. 372, 411 (2019) (holding that an account, opened for the benefit of the parties’ child, titled in one spouse’s name, should not be counted as that spouse’s separate asset for the purpose of determining an equitable monetary award, where there is no evidence that the spouse intended to use the funds for anything other than for the benefit of the child).
6 The total marital assets of $2,947,526.92 equally divided among the parties equals $1,473,763.46 per party, minus Ms. Fram’s total marital assets of $23,000 equals $1,450,763.46, minus the $10,000.00 that Dr. Dean advanced to Ms. Fram equals a monetary award to Ms. Fram in the amount of $1,440,763.46.
7 The standard is whether the standards of living will be unconscionably disparate. Md. Code. Ann., Fam. Law § 11-106(c). Since Dr. Dean does not contest the alimony award we accept the finding of the trial court.
8 The court found Ms. Fram’s reasonable monthly expenses included $3,000 in rent, $250.00 for electric, $100.00 for cellphone service, $350.00 for drugstore items, $175.00 for household items, $250.00 for cable and internet, $250.00 for haircare, and $90.00 for nailcare. The court also noted that Ms. Fram would have additional expenses of a new car and health insurance.
9 The trial court indicated that it also considered “the 35 factors by Judge [Fred S.] Hecker, [that he] puts out through the Family Law University for judges and magistrates,” and the new statute, Family Law § 9-201.
10 “This custody arrangement would mean that the children would spend two days with Father, two days with Mother, five days with Father, then five days with Mother. Afterwards, the cycle would repeat, giving the parties equal access with the children but on a staggered basis.” Bajaj, 262 Md. App. at 439 n. 1.
11 The trial court expressed:
I am concerned that here we are on May 29th and [Ms. Fram] is still in the house, despite everything that she’s been hearing that she needs to be out. [...] This is a
toxic, toxic environment to be raising somebody in, and [Ms. Fram] says she didn’t move out because she didn’t want to lose contact with [the child] and lose access to [the child]. I don’t know if she’s being selfless or selfish because the act is both.
12 In the supplemental order issued on October 24, 2025, Ms. Fram was granted two nonconsecutive weekends with the child from 10:00 a.m. on Saturday to 7:00 p.m. on Sunday. After the two nonconsecutive weekends, Ms. Fram was granted visitation with the child every other weekend, starting Friday after school until Monday morning when she takes the child to school. The Tuesday and Thursday schedule remained the same, with Ms. Fram picking the child up from school and returning her to Dr. Dean at 7:00 p.m.; however, during the weeks without a weekend visitation, the Thursday visitation becomes an overnight stay.
13 The trial court noted that Ms. Fram indicated in her psychiatric evaluation that she would be open to shared custody “if Dr. Dean conforms his behavior to be what is what’s best for [the child].” As for Dr. Dean, he indicated that he would be willing to share custody “but trust needs to be rebuilt between [Ms. Fram and the child].”
14 The trial court noted that Ms. Fram “has a townhouse, so it’s not like she has to go out and look for someplace new to live.” After the parties separated, but prior to the divorce proceedings, Ms. Fram rented a townhouse in Lutherville, paid for by Dr. Dean.
15 “[A]fter the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” Md. Code Ann., Fam. Law § 8-205(a)(1).
16 The $200,000 investment in Global Credit Recovery was made in June of 2018, less than five months after the marriage. Mr. Norris testified that the $200,000 represents less than 5% of the $4.2 million investment into Global Credit Recovery. Mr. Norris explained that the bulk of the loss was incurred prior to the marriage, and that the restitution paid was only a partial recovery of that loss.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s refusals to postpone a hearing regarding husband’s alleged breach of a judgment of absolute divorce. Three separate judges denied the husband’s motion, and the trial court’s decision at the time of the hearing, as well as the two previous denials, were amply supported by the record.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
E. Allen, as his attorney had advised him not to appear at the hearing, claiming a belief that the motion for postponement would be granted. L. Allen testified regarding the pending motions, and E. Allen, who was absent, did not testify, call witnesses, or present any evidence. The court ordered a money judgment related to the outstanding rental income and granted attorney’s fees in L. Allen’s favor. E. Allen filed a motion to alter or amend the judgment, as well as for a new trial and hearing, which the court denied. E. Allen then filed this timely appeal and presents the following sole issue for our review:2
Whether the circuit court abused its discretion in denying the motion for postponement.
For the following reasons, we find that the circuit court did not abuse its discretion and thus affirm the judgment of the court.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves a challenge by appellant to the denial of a motion for postponement by the Circuit Court for Prince George’s County. Appellant, Everett R. Allen (“E. Allen”), and appellee, Lisa N. Allen (“L. Allen”), were married in August of 1980. In December of 2022, the circuit court entered an order granting L. Allen a judgment of absolute divorce (hereinafter the “Divorce Judgment”), in which, pursuant to an agreement between the parties, L. Allen received title to a rental property located in Washington, D.C. (hereinafter “Building 1957”).1
In April of 2023, L. Allen filed a motion for contempt and enforcement, alleging that E. Allen had not paid her the rental income generated by Building 1957 as mandated by the court in its findings of fact and conclusions of law related to the Divorce Judgment. In August of 2023, the court granted a money judgment against E. Allen; however, the court declined to hold him in contempt at that time. The court noted that issues regarding funds held in escrow and related outstanding rental income would be reserved for a later hearing. L. Allen subsequently obtained a writ of garnishment, which the court dismissed at a hearing in January of 2024, ordering the parties to appear on March 11, 2024 for a further hearing regarding pending motions filed by the parties. On March 6, 2024, counsel for E. Allen filed a motion for postponement, asserting that E. Allen would be unable to attend the March 11th hearing due to health issues. The court denied the motion, as well as two subsequent renewed motions made by counsel for E. Allen, the last occurring orally at the start of the March 11, 2024, hearing. The hearing proceeded without
E. Allen and L. Allen were married in Washington, D.C. in August of 1980. In April of 2020, L. Allen filed a complaint for absolute divorce, which the court granted by the Divorce Judgment in August 2022, incorporating a written agreement signed by the parties in 2020.3 Pursuant to the agreement, L. Allen was to receive title to Building 1957, a multi-unit apartment building located in Washington, D.C. The circuit court also ordered that, pursuant to the agreement, L. Allen was to receive all profits generated by Building 1957. Motions for Contempt and Enforcement, Appropriate Relief, and a Writ of Garnishment
In April of 2023, L. Allen filed a motion for contempt and enforcement, 4 asserting that E. Allen had not complied with the court’s order regarding Building 1957. L. Allen’s primary assertion was that E. Allen refused to remit $76,272.18 5 as mandated by the Divorce Judgment. L. Allen also filed a motion for appropriate relief. In that motion, L. Allen asserted that E. Allen refused to pay her the rental income generated by Building 1957 in 2022 and through the date of the motion in 2023.6 Last, L. Allen averred that she incurred $25,986.58 in fines and penalties due to E. Allen’s failure to forward L. Allen’s mail related to the property.
E. Allen responded and admitted that the circuit court had ordered him to pay L. Allen the rental income that had been generated by Building 1957 in 2020 and 2021. Nonetheless, E. Allen asserted that the sums he owed should be adjusted to account for sums he claimed L. Allen owed to him. These sums included a check in the amount of $4,774.00 issued to L. Allen after the sale of the marital home (hereinafter the “Escrow Check”), 7 which E. Allen asked the court to set
off against the money owed by E. Allen to L. Allen. E. Allen additionally requested that $19,187 held in a separate escrow account (hereinafter the “Escrow Funds”) be released and applied to the sum he owed to L. Allen.8,9
In August of 2023, the circuit court issued a series of orders declining to find E. Allen in contempt; however, it required that he pay $76,272.18 to L. Allen. 10 The court did not rule on the issues regarding the money from the escrow accounts, nor the rental income owed to L. Allen for 2022 and 2023. Instead, the court reserved those issues for a later hearing.
Shortly after the court’s ruling, L. Allen requested and obtained a writ of garnishment against E. Allen, seeking to satisfy the judgment. The garnishee bank filed a motion to dismiss, which the court granted at a hearing in January of 2024. The court then set a hearing for Monday, March 11, 2024 at 1:30 p.m. to resolve pending motions.
Motions for Postponement and the March 11th hearing
On March 6, 2024, the Wednesday before the hearing, counsel for E. Allen filed a motion for postponement, stating that E. Allen could not attend the March 11th hearing because he “[was] currently experiencing health issues for which he [was] currently under the care of a physician[.]” The court denied the motion the next day, indicating, “[n]o supporting documents [were] provided” with the motion. Per counsel for E. Allen, she received notice of this denial on Saturday, March 9, 2024.
On March 11, 2024, at 10:35 a.m., approximately three hours prior to the scheduled hearing, E. Allen filed a renewed motion for postponement, this time attaching a letter from a physician who asserted having treated E. Allen. The letter, dated March 4, 2024, stated the following:
TO WHOM IT MAY CONCERN I saw Mr. Allen on 2/28/2024 for an acute gout flare of the [left] wrist for which I placed him on gout treatment as well as a short course of pain medication given the severity of his pain. He’s made me aware that he has a court case this week, however[,] given his acute flare w[ith] the severe pain and being on pain medication, he may not necessarily be in the right state of mind to participate in court at this time. I would like to ask for his hearing to be postponed until the end of this month so he’ll no longer be on pain medications and his flare will have fully resolved as it may take him longer than a younger person to fully recover from this flare. Thank you for your understanding and please let me know if you have any questions/concerns.
There is a signature that purports to be that of the physician at the bottom of the letter; however, there was no accompanying affidavit. The circuit court denied this motion the same day at 11:23 a.m. Per counsel for E. Allen, at approximately 12:40 p.m., she received notice that the hearing was proceeding as scheduled.
At the commencement of the 1:30 p.m. hearing, counsel for E. Allen was present and again moved for a continuance. E. Allen was absent. According to information provided by his counsel, E. Allen contacted her at 10:27 a.m. that day to ask what time the hearing began. However,
counsel for E. Allen, contending she believed that the court would grant the renewed motion for postponement, told E. Allen that he did not have to appear in court that day. Counsel for E. Allen disclosed that information to the court, and the following colloquy ensued:
THE COURT: Why would you tell your client no?
COUNSEL FOR E. ALLEN: Because I’ve never seen an injustice like that. But there could be one. I don’t know, it could be. And then that would be my fault.
THE COURT: Injustice?
COUNSEL FOR E. ALLEN: I will go call my client and let him know to come. But or you can start, because by the time he has to testify, I guess he’ll be here. And hopefully he’ll get someone to be able to bring him. And he can testify under the narcotics that he’s under. But I mean, I don’t believe that he’s -- based on what his doctor says, that he can even competently testify based on his medication.
THE COURT: His doctor wrote this letter a week ago. COUNSEL FOR E. ALLEN: Right.
THE COURT: That doesn’t mean whatever pain
COUNSEL FOR E. ALLEN: And I filed my motion last week.
THE COURT: -- medication he was under on March 4th, he’s still suffering from.
COUNSEL FOR E. ALLEN: Well, that picture is what he took last night and sent to me. Or he sent it to me yesterday.
THE COURT: This doesn’t show me anything.
COUNSEL FOR E. ALLEN: So are you -- is the Court saying that the doctor has to give a notice every single day of the condition of the client? He hasn’t been leaving his house. I mean, he --
THE COURT: I’m saying that the letter says he saw your client on February 28th.
COUNSEL FOR E. ALLEN: Right.
THE COURT: Today’s March 11th. COUNSEL FOR E. ALLEN: Right.
THE COURT: He wrote this letter a week or so after the appointment. He wrote this letter on March 4th.
COUNSEL FOR E. ALLEN: Right.
THE COURT: That’s not to say that in a week, he’s still in the same condition.
COUNSEL FOR E. ALLEN: Well, what happens is a doctor prescribes a number of pills. So if he prescribed 20 pills, and he knows as a doctor how many pills are needed to be taken in order for to treat a condition, I’m assuming that he assumed okay, well, I prescribed this medication on the 28th. It’s probably completed. Because he said by the end of the month that he should be fine. It’s probably going to be completed by the end of the month or close to the end of the month, and then that’s when he would be able to competently come in and testify. So --
THE COURT: You got, you got a denial, and your client’s not here.
COUNSEL FOR E. ALLEN: Well, that’s not the information I received this morning from Judge Kelsey’s law clerk. Judge Kelsey’s law clerk said that they’re forwarding the motion to Judge Dawson for him to consider it, and that’s who I thought we were about to go in front of to ask for this anyway.
THE COURT: And if Judge Dawson denies the motion, then what?
COUNSEL FOR E. ALLEN: Yeah, then I would have had to say well, I guess we have to go forward. I mean, but I don’t --
THE COURT: Well, that’s what you got to say now.
COUNSEL FOR E. ALLEN: I don’t believe that the Court would deny the motion.
THE COURT: I’m denying the motion. The hearing proceeded as scheduled, and L. Allen, who was present, testified as to the money E. Allen owed her from the rent generated by Building 1957 in 2022 and 2023. L. Allen also testified that she would like to receive her portion of the sums held in escrow, as E. Allen had not yet paid her money due under the Divorce Judgment.
The Circuit Court’s Ruling
The circuit court awarded L. Allen a money judgment in the amount of $11,573.21, which represented rental income owed for 2022 and 2023, as well as attorney’s fees (hereinafter the “May 2024 Judgment”). 11 E. Allen then filed a motion to alter or amend the judgment, as well as for a new trial and a hearing, which the court denied. 12 This timely appeal followed. Additional facts will be incorporated as needed.
DISCUSSION
THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR POSTPONEMENT.
A. Party Contentions
E. Allen asserts that the circuit court abused its discretion by denying his motion for postponement. He advances that argument under five theories: 1) he provided the proof purportedly requested by the circuit court in its first denial of the motion for postponement;
2) the differential case management plans for several courts across the state support a postponement under circumstances similar to those of E. Allen at the time of the hearing;
3) the circuit court showed partiality toward L. Allen in failing to offer alternatives to the denial of the motion, such as allowing E. Allen to arrive late;13 4) he was prejudiced by his inability to put forth a defense; and 5) counsel’s actions were reasonable, and the circuit court’s actions were unreasonable.14
L. Allen asserts that the trial court did not abuse its discretion in denying the motion for postponement. L. Allen primarily contends that the court correctly ruled on the
motion for postponement because counsel for E. Allen: failed to file the necessary documents in support of the motion; failed to file the motion in a timely manner; assumed without basis that the court would grant the motion; failed to properly advise E. Allen on the status of the motions; and failed to file proposed findings of fact as ordered by the court at the March 11th hearing.
B. Standard of Review
“To grant or deny. . . a motion for continuance is in the sound discretion of the trial court.” Serio v. Baystate Props., LLC, 209 Md. App. 545, 554 (2013) (citation and internal quotation marks omitted). See also Maryland Rule 2-508(a) (dictating that the circuit court may, “[o]n motion of any party or on its own initiative . . . continue or postpone a . . . proceeding as justice may require”). Thus, on appeal, we review the trial court’s decision for an abuse of that discretion. Serio, 209 Md. App. at 554. “An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court[ ] . . . or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court [ ] . . . or when the ruling is violative of fact and logic.’” Bacon v. Arey, 203 Md. App. 606, 667 (2012) (quoting Beyond Systems, Inc. v. Realtime Gaming Holding Co., 388 Md. 1, 28 (2005)) (alterations and omissions in original). See also Serio, 209 Md. App. at 554 (holding that a court abuses its discretion if it uses that discretion “arbitrarily”). “Absent an abuse of that discretion[,] we historically have not disturbed the decision to deny a motion for continuance.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006) (citations omitted). See also Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 445 (2003) (“Absent an indication from the record that the trial judge misapplied or misstated the applicable legal principles, the presumption [that a judge correctly exercised discretion] is sufficient for us to find no abuse of discretion.”).
C. Analysis
The circuit court did not abuse its discretion in denying E. Allen’s motion for a postponement. As indicated above, a circuit court abuses its discretion if it rules in a manner unsupported by the record or takes a view that no other “reasonable person” would adopt. See Bacon, 203 Md. App. at 667. See also Serio, 209 Md. App. at 554. Here, E. Allen requests that we find that the trial court abused its discretion despite noting ample basis in the record for the court to deny the motion to postpone. We decline to do so.
First, as E. Allen acknowledges, three judges denied the motion for postponement. For there to be an abuse of discretion, it must be the case that no “reasonable person” would take the view adopted by the trial court. See Bacon, 203 Md. App. at 667. Here, three judges on the same court adopted the same view, having been provided the same or limited information as a basis for the requested postponement.15
Moreover, the trial court’s decision at the time of the hearing, as well as the two previous denials, were amply supported by the record. First, counsel for E. Allen failed to file supporting documentation in support of the initial motion
for postponement, and when counsel did so subsequently by the day of the hearing, the purported supporting document was outdated. That is, counsel filed a letter from a physician dated March 4, 2024, which detailed E. Allen’s physical condition during a visit on February 28, 2024. As the trial court noted at the March 11th hearing upon the third postponement request, the letter was not indicative of E. Allen’s physical state that day. In addition, counsel for E. Allen did not proffer what would have been elicited by E. Allen’s testimony. Thus, we cannot determine how E. Allen was prejudiced by the hearing continuing in his absence, as claimed. A hearing will generally proceed as scheduled until such a time that the court, in its “sound discretion,” decides to grant a continuance. Serio, 209 Md. App. at 554 (citation omitted). See also Maryland Rule 2-508(a). Notably, in this case, L. Allen, who was present at the March 11th hearing, opposed the motion for postponement and requested that the hearing continue, asserting that she would be prejudiced by a continuance.
Additionally, counsel for E. Allen failed to file proposed findings of fact as ordered by the court, wherein he could have put forth the costs he contended he was owed to offset the money judgment to L. Allen. E. Allen concedes that the facts listed above are independent reasons to affirm the trial court’s decision. Nonetheless, he asks that we find that the trial court abused its discretion for several reasons; we find none of his arguments persuasive.
First, E. Allen asserts that the motion for postponement should have been granted because he submitted the supporting documentation as requested by the circuit court. However, the circuit court did not request documentation or indicate that the postponement would be granted should documentation subsequently be provided. The first denial order simply stated “[n]o supporting documents provided.” Nonetheless, the documentation eventually presented by counsel was unpersuasive to the court for the reasons stated above. We find no abuse of discretion in the court’s denial and notation of missing documentation, nor the conclusion that the late-provided documentation was insufficient.
Next, E. Allen asserts that the circuit court was partial toward L. Allen because actions taken by other Maryland courts in similar circumstances, such as allowing late arrivals, supported the grant of the motion for postponement, or, in the alternative, allowing
E. Allen to arrive late. As E. Allen notes in his brief, the procedures of courts in other Maryland jurisdictions have no authority on court administration in the Circuit Court for Prince George’s County.16 E. Allen provided the postponement procedure for the Circuit Court for Prince George’s County, suggesting that under this policy and the case management plans for the other counties, E. Allen’s gout flare should have qualified him for a continuance. However, as E. Allen acknowledges, the procedure is not binding on the court. Trial courts have broad discretion in how to manage their dockets. See Heit v. Stansbury, 215 Md. App. 550, 568 (2013). Therefore, the trial court, in deciding that there was not a sufficient basis to grant the motion for postponement, also had broad discretion in disallowing E. Allen to arrive late, thereby delaying the hearing, as a remedy. See id. We find no abuse of discretion.
Last, E. Allen argues that he was prejudiced by his inability to put forth a defense and presents three arguments grounded in reasonableness, contending that counsel’s actions were reasonable and that the circuit court’s actions were unreasonable. As discussed supra, E. Allen was advised by his counsel not to appear for the March 11th hearing, although he emailed counsel on the day of the hearing to inquire as to the time the hearing started; this suggests that he was prepared to attend. Counsel for E. Allen also failed to file proposed findings of fact as ordered by the court at the end of the March 11th hearing. This failure, coupled with counsel’s failure to make a proffer regarding E. Allen’s anticipated testimony, demonstrate E. Allen’s inability to show prejudice. We conclude the court did not abuse its discretion in entering a judgment in L. Allen’s favor or in denying the revisory motion. Finding no abuse of discretion in the record, we affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The parties refer to the rental property as “1957” in their filings.
2 Rephrased from: DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING THE APPELLANT’S MOTION TO POSTPONE WHEN HE PRESENTED CREDIBLE EVIDENCE OF A SUDDEN MEDICAL EMERGENCY SUPPORTED BY A LETTER FROM HIS PHYSICIAN STATING THAT HE SHOULD NOT TESTIFY IN A HEARING DUE TO THE MEDICATION THE APPELLANT WAS PRESCRIBED AND THE SEVERITY OF THE PAIN APPELLANT WAS EXPERIENCING[?]
3 The circuit court incorporated, but did not merge the agreement into the Divorce Judgment.
4 The filing also requested attorney fees.
5 This figure represents the sum of rental income generated by Building 1957 in 2020 and 2021.
6 L. Allen also contended that she could not fairly ascertain how much money the property was generating in 2023 because E. Allen precluded her access to an online account by changing the password.
7 The sum of the Escrow Check was paid to L. Allen as a refund from escrow funds after the sale of the parties’ marital home.
8 In response to the motion for appropriate relief, E. Allen also claimed that L. Allen owed him money for upkeep of the parties’ marital home, as well as property taxes.
9 E. Allen also filed a motion for appropriate relief that made the same arguments as his response to L. Allen’s motion for contempt/enforcement.
10 E. Allen noted an appeal in August of 2023. However, this Court sua sponte dismissed the appeal due to E. Allen’s failure to file a brief by the assigned deadline.
11 The court credited E. Allen half of the Escrow Funds and Escrow Check towards the sum owed to L. Allen.
12 The circuit court noted in its denial that E. Allen failed to file proposed findings of fact within two weeks of the May 2024 judgment as ordered by the court.
13 E. Allen asserts that the court was also partial toward L. Allen by awarding attorney fees, thereby punishing E. Allen.
14 First, E. Allen asserts that the court was unreasonable in concluding that the doctor’s letter, which was dated March 4th and described a visit on February 28th, was not indicative of E. Allen’s physical state on March 11th. Next, counsel for E. Allen argues that it was not unreasonable for counsel to excuse E. Allen’s appearance because she provided a doctor’s note, indicating that E. Allen was under the care of a doctor. Last, counsel for E. Allen claims that the circuit court was unreasonable in denying the motion to alter or amend and for a new trial because, counsel asserts, the denial was based on counsel’s failure to file proposed findings of fact regarding the March 11 hearing as ordered by the court.
15 The first judge denied the motion, noting counsel for E. Allen failed to attach supporting documentation demonstrating that E. Allen was having health issues. There is no indication as to the reason the second judge denied the renewed motion. The third judge denied the motion, having been provided information that counsel advised E. Allen not to attend court, and having not been presented any current documentation showing that E. Allen was impaired on the day of the hearing.
16 In his brief, E. Allen provided the Differential Case Management plans regarding postponements for the circuit courts in the following Maryland jurisdictions: Baltimore City, Baltimore County, St. Mary’s County, and Allegany County.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 4 (2026)
Absolute divorce; amend or alter; fraud, mistake, or irregularity
The Appellate Court affirmed the Prince George’s County Circuit Court’s order denying husband’s renewed motion to alter or amend the court’s judgment of absolute divorce. Because husband’s renewed was filed more than 30 days from the date of judgment, husband needed to show fraud, jurisdictional mistake, or irregularity that would have justified revision of the court’s judgment of absolute divorce. He failed to do so.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
consideration. That filing was rejected by the court clerk because it did not include a signature or certificate of service. The exact nature of the filing is unclear from the record.2
On November 6, 2024, an attorney entered her appearance on behalf of Husband. That same day, Husband’s attorney filed a “Notice of Inability to File Answer on Behalf of Defendant Odunayo Ajayi.” In that filing, Husband claimed, through counsel, that he had “been in the custody of the Prince George’s County Sheriff’s Department since October 4, 2024.” Husband alleged that, “as a result his incarceration, [he had] been unable to file an Answer and otherwise participate in the above captioned matter.” Husband asked the court to “not enter an Order of Default.”
On November 14, 2024, Wife filed a motion asking the court to enter an Order of Default against Husband based on his failure to file an answer to Wife’s complaint for absolute divorce. Wife also filed an affidavit of service, which indicated that, on October 4, 2024, Husband was personally served with a Writ of Summons and a copy of the divorce complaint.
This appeal arises from a judgment, entered in the Circuit Court for Prince George’s County, granting Olaide Ogunsade (“Wife”) an absolute divorce from Odunayo Ajayi (“Husband”), awarding Wife custody of the parties’ minor child, and ordering Husband to pay retroactive support. Following entry of the court’s judgment, Husband filed a motion to alter or amend, which the court denied. Husband then filed a renewed motion to alter or amend, which the court also denied. Husband thereafter noted this appeal.
In this appeal, Husband presents six questions for our review. For clarity, we have consolidated those questions1 into a single question:
Did the circuit court err or abuse its discretion in denying Husband’s renewed motion to alter or amend?
Finding no error or abuse of discretion, we affirm.
BACKGROUND
Husband and Wife were married in 2020. In 2023, the parties had a child. On August 5, 2024, Wife obtained a Final Protective Order against Husband. Husband was ordered to stay away from the marital home until the order expired on August 5, 2025.
On September 6, 2024, Wife filed for divorce. On October 4, 2024, Husband was personally served with a Writ of Summons and a copy of the divorce complaint.
In October 2024, Husband submitted a filing for the court’s
On November 20, 2024, the court entered an Order of Default against Husband. Notice of the default order was addressed to Husband and mailed to the marital residence. A notice was also sent to Husband’s counsel.
A merits hearing was scheduled to take place on February 12, 2025. Notice of the hearing was sent to Husband at the marital residence and to Husband’s counsel. That hearing was subsequently cancelled and rescheduled for April 24, 2025. Notice of the rescheduled hearing was sent to Husband at the marital residence and to Husband’s counsel.
On February 13, 2025, Husband’s counsel withdrew from the case. On February 19, 2025, the court sent a “Notice to Employ New Counsel” to Husband at the marital residence.
On April 24, 2025, a merits hearing was held before a magistrate. Husband did not attend the hearing. According to Wife, Husband was incarcerated at the time of the hearing.
On May 13, 2025, the court entered a judgment of absolute divorce. The court awarded Wife sole custody of the parties’ minor child and ordered Husband to pay $23,231.00 in “unpaid family support.”
On May 23, 2025, Husband filed a “Motion to Alter or Amend Judgment or, in the Alternative, Motion to Reconsider.” Husband’s primary allegation was that he “was incarcerated at the time the divorce proceedings commenced and was not properly served in accordance with Maryland law.” Husband’s motion included additional claims of error regarding the court’s custody and support decisions. Husband asked the court to vacate the judgment and reopen the case to permit further proceedings on the merits.
On June 18, 2025, the court denied Husband’s motion to alter or amend. In so doing, the court noted that Husband had been personally served in October 2024.
On July 17, 2025, Husband filed a “Renewed Motion to Alter or Amend Judgment or, in the Alternative, Motion to Reconsider.” Husband alleged that he “was not provided with actual or constructive notice of either the original proceedings or the ongoing litigation, depriving him of a meaningful opportunity to participate or respond and thereby violating his procedural and constitutional rights.” Husband argued that,
[P]ursuant to Maryland Rule 2-121(a)(3), when a party is incarcerated, service must be made either by delivering the summons and complaint to the warden or administrative head of the correctional institution, or by arranging qualified personal delivery at the facility, such as by a process server during designated visiting hours.
Husband claimed that, because “essential filings and notices, including those concerning hearings, custody, support, and the final judgment, were not appropriately delivered through the required institutional channels or correctional personnel,” he was “not apprised of key proceedings” and “therefore was unable to defend himself.” Husband also claimed that the court’s award of custody to Wife was improper because it was made “without a full evidentiary hearing” and without a consideration of the requisite statutory factors. Husband asked the court vacate the judgment of divorce, reopen the case, and “direct proper service in accordance with Rule 2-121(a)(3)” to allow him “to participate in further proceedings on the merits, including those involving custody, property division, and support obligations[.]”
On August 8, 2025, the court entered an order denying Husband’s renewed motion to alter or amend. The court noted that Maryland Rule 2-121(a)(3) merely states that service of process may be made “by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: ‘Restricted Delivery – show to whom date, address of delivery.’” The court also noted that Husband was personally served with process on October 4, 2024.
On August 26, 2025, Husband noted the instant appeal. Additional facts will be supplied as needed below.
DISCUSSION
A. Husband’s Contentions
Husband contends that the circuit court erred and abused its discretion in entering the judgment of absolute divorce. First, Husband argues that the court violated his due process rights by failing to provide proper notice of the proceedings, and that opposing counsel deprived him of a fair trial by deliberately mailing notices to the marital residence despite knowing that Husband was incarcerated. Second, Husband argues that the court erred in awarding custody to Wife without Husband’s participation at the merits hearing. Third, Husband argues that the court erred in imposing retroactive support and failing to classify the marital home as non-marital
property. Finally, Husband argues that the “cumulative effect” of the errors warrants reversal.3
B. Scope of Appeal
Before discussing the merits of Husband’s claims, we must discuss the procedural posture of the case, as that posture defines the scope of our review. As noted, the court entered the judgment of absolute divorce on May 13, 2025, but Husband did not file his notice of appeal challenging the court’s judgment until August 26, 2025. Ordinarily, such a belated appeal would be dismissed as untimely. See Md. Rule 8-202(a) (requiring a notice of appeal to be filed within thirty days after entry of the judgment from which the appeal is taken).
That said, where, as here, a motion to alter or amend is filed within ten days of entry of judgment, that filing tolls the appeals period until thirty days after the motion is withdrawn or the court rules on the motion. Estate of Vess, 234 Md. App. 173, 194 (2017). Because Husband filed his first motion to alter or amend within ten days of entry of the court’s judgment of absolute divorce, the thirty-day window for challenging that judgment was tolled until June 18, 2025, which is when the court denied Husband’s motion to alter or amend. Thus, Husband had thirty days from that date to file a timely notice of appeal challenging the court’s judgment of absolute divorce.
Unfortunately for Husband, he did not file his notice of appeal within that time. Rather, on July 17, 2025, Husband filed his renewed motion to alter or amend the court’s judgment. That filing did not further toll the period within which Husband was required to file his notice of appeal challenging the court’s judgment of absolute divorce. See Johnson v. Francis, 239 Md. App. 530, 541 (2018) (“[O]nce a court has denied one motion for reconsideration, the filing of additional such motions does not toll the running of the time to note an appeal.”). By the time the court denied Husband’s renewed motion on August 8, 2025, the appeals period for challenging the court’s judgment of absolute divorce had lapsed. Husband’s notice of appeal, which he filed on August 26, 2025, was therefore timely with respect to the denial of his renewed motion to alter or amend, but it was untimely with respect to any challenge to either the court’s judgment of absolute divorce or the court’s denial of Husband’s initial motion to alter or amend. As such, our review in the instant appeal is limited to whether the court erred or abused its discretion in denying Husband’s renewed motion to alter or amend. See id. at 541–42; see also Sydnor v. Hathaway, 228 Md. App. 691, 707–08 (2016) (where a revisory motion is filed beyond the ten-day period set forth in Rule 2-534, an appeal noted within thirty days after the court resolves the revisory motion is limited to the issues generated by the revisory motion).
Furthermore, under Maryland Rule 2-535(a), a court is generally permitted to exercise revisory power and control over a judgment on a motion filed by a party within thirty days after entry of judgment. Facey v. Facey, 249 Md. App. 584, 604–05 (2021). After that thirty-day time period, however, the judgment becomes enrolled, and “the court may revise it only upon finding of fraud, jurisdictional mistake, or
irregularity, which are narrowly construed.” LVNV Funding LLC v. Finch, 463 Md. 586, 607–08 (2019); see also Md. Rule 2-535(b) (“On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”). Here, Husband’s renewed motion to alter or amend was not filed until July 17, 2025, more than two months after the court entered the judgment of absolute divorce. Thus, not only is our review limited to whether the court erred or abused its discretion in denying Husband’s renewed motion, but our review is further limited to whether there was some fraud, jurisdictional mistake, or irregularity that would have justified revision of the court’s judgment of absolute divorce.
C. Analysis
A court’s decision to revise a judgment for fraud, mistake, or irregularity is ordinarily reviewed for abuse of discretion. Facey, 249 Md. App. at 601. On the other hand, whether fraud, mistake, or irregularity exists, as a factual predicate, is a question of law we review without deference. Id.
“The burden of proof in establishing fraud, mistake, or irregularity is clear and convincing evidence.” Id. (cleaned up). “Maryland courts have narrowly defined and strictly applied the terms fraud, mistake, and irregularity, in order to ensure finality of judgments.” Thacker v. Hale, 146 Md. App. 203, 217 (2002) (cleaned up). “Moreover, the party moving to set aside the enrolled judgment must establish that he or she acted with ordinary diligence and in good faith upon a meritorious cause of action or defense.” Id. (cleaned up).
A. Fraud
“Maryland courts may vacate an enrolled judgment for extrinsic, but not for intrinsic, fraud.” Das v. Das, 133 Md. App. 1, 18 (2000). “[F]raud is extrinsic when it actually prevents an adversarial trial, but is intrinsic when it is employed during the course of the hearing which provides the forum for the truth to appear, albeit that truth was distorted by the complained of fraud.” Access Funding, LLC v. Linton, 482 Md. 602, 664 (2022) (cleaned up). “In determining whether or not extrinsic fraud exists, the question is not whether the fraud operated to cause the trier of fact to reach an unjust conclusion, but whether the fraud prevented the actual dispute from being submitted to the fact finder at all.” Das, 133 Md. App. at 18 (cleaned up). Examples of extrinsic fraud include: Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side,[] these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former
judgment or decree, and open the case for a new and a fair hearing.
Access Funding, 482 Md. at 664 (quoting United States v. Throckmorton, 98 U.S. 61, 65 (1878)).
We hold that Husband has failed to establish fraud by clear and convincing evidence. The record shows that Husband was made aware of the proceedings on October 4, 2024, long before the court held the merits hearing on Wife’s complaint for absolute divorce. At that point, Husband had a duty to keep himself informed as to the progress of the case. See Das, 133 Md. App. at 19. The record also shows that, upon being made aware of the proceedings, Husband filed a response and, when that response was rejected by the clerk, retained counsel, who then filed, on Husband’s behalf, a notice indicating that Husband could not file an answer due to his incarceration and asking the court not to enter an order of default. From that, it is clear that Husband was not only aware of the proceedings but knew that he was in default and that further action was required. Importantly, although Husband did mention that he was incarcerated, at no point did he ask the court or Wife to send future communications and notices to him in prison, nor did he include his prison address on any court filing. See id. at 20 (noting that “a litigant has a continuing obligation to furnish the court with [his] most recent address”) (cleaned up). And, aside from those initial filings, Husband submitted no papers or requests for relief as to the order of default and the merits hearing, despite the fact that he was at least constructively aware, by way of notices to his attorney, that the order of default had been entered and that a merits hearing was to be held. Given those circumstances, we cannot say that the court erred or abused its discretion in refusing to revise its judgment of absolute divorce on the basis of fraud.
B. Mistake
“‘[I]t is well settled that mistake, as used in Rule 2-535(b), is limited to jurisdictional error, such as where the Court lacks the power to enter the judgment.’” Facey, 249 Md. App. at 639 (cleaned up). A court’s power, or jurisdiction, to enter a judgment usually concerns two aspects: “(a) jurisdiction over the person—obtained by proper service of process—and (b) jurisdiction over the subject matter—the cause of action and the relief sought.” Id. at 640 (cleaned up). We have said, It is only when the court lacks the power to render a decree, for example because the parties are not before the court, as being improperly served with process, or because the court is without authority to pass upon the subject matter involved in the dispute, that its decree is void. Thacker, 146 Md. App. at 225 (cleaned up).
We hold that Husband has failed to establish mistake by clear and convincing evidence. It is beyond question that the circuit court had subject matter jurisdiction over the divorce proceedings, and Husband does not argue otherwise. As for personal jurisdiction, the record shows that Husband, a Maryland resident, was properly served with process on October 4, 2025. See Md. Rule 2-121(a) (“Service of process may be made within this State . . . by delivering to the person to be served a copy of the summons, complaint, and all other
papers filed with it[.]”). That was sufficient for the court to obtain personal jurisdiction over Husband. See Facey, 249 Md. App. at 640 (holding that the court had personal jurisdiction over the defendant, who was “a Maryland resident and was properly served with process”); see also Conwell Law LLC v. Tung, 221 Md. App. 481, 498 (2015) (“A court obtains in personam jurisdiction over a defendant when that defendant is ‘notified of the proceedings by proper summons.’”) (cleaned up). Thus, the court did not err or abuse its discretion in refusing to revise its judgment of absolute divorce on the basis of mistake.
C. Irregularity
An “irregularity” is “the doing or not doing of that, in the conduct of a suit at law, which, conformable to the practice of the court, ought or ought not to be done.” Velasquez v. Fuentes, 262 Md. App. 215, 242 (2024) (cleaned up). Such “irregularities” most often involve “a failure of process or procedure by the clerk of a court, including, for example, failures to send notice of a default judgment, to send notice of an order dismissing an action, to mail a notice to the proper address, and to provide for required publication.” Thacker, 146 Md. App. at 219–20. On the other hand, “if the judgment under attack was entered in conformity with the practice and procedures commonly used by the court that entered it, there is no irregularity justifying the exercise of revisory powers under Rule 2-535(b).” Id. at 221. “When determining whether an irregularity occurred, a trial court must consider the totality of the circumstances.” Id. at 219 (cleaned up). Furthermore, “[i]rregularity, like fraud, provides very narrow grounds for revising a final judgment under Rule 2-535(b).” Das, 133 Md. App. at 23. As we have
explained, “the crux of an irregularity finding is ‘to prevent hardships which may result from a lack of notice and the corresponding lack of an opportunity to interpose defense prior to enrollment of a judgment.” Velasquez, 262 Md. App. at 241 (cleaned up).
We hold that Husband has failed to establish irregularity by clear and convincing evidence. As discussed, Husband received service of process in October 2024, retained counsel in November 2024, and filed a response that same month. In so doing, Husband indicated that he was aware of the proceedings and the fact that he was in default for failing to file an answer. At that point, it was reasonable for the court to continue utilizing the same process for notifying Husband as to ongoing matters, particularly given that Husband did not request, expressly or implicitly, that notification be made in any other manner. Moreover, there is nothing in the record to indicate that the court’s method of notification was inconsistent with the practice and procedures commonly used by the court. As such, the court did not err or abuse its discretion in refusing to revise its judgment of absolute divorce on the basis of irregularity.
Finally, even if the circumstances of Husband’s case constituted the sort of fraud, mistake, or irregularity that would have justified revision of the court’s judgment of absolute divorce, we cannot say that the court abused its discretion in refusing to do so. As discussed, a party moving to set aside an enrolled judgment must establish that he or she acted with “ordinary diligence.” See Thacker, 146 Md. App. at 217. Here, the record makes plain that Husband’s current predicament was caused by his lack of diligence and not by the actions of the court or Wife.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 All of Husband’s questions focus on alleged errors made by the circuit court in entering the judgment of divorce. As discussed in greater detail infra, the sole issue here is whether the court erred or abused its discretion in denying Husband’s renewed motion to alter or amend.
2 Husband claims that he “filed a pro se written response from jail, requesting additional time to reply” and that he included “his jail address on the document.” We could not confirm Husband’s claims, as he failed to include any citation to the record in support, and our independent review of the record did not reveal any such document or documents.
3 Wife did not file a responsive brief in this appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to void the parties’ settlement agreement. The circuit court did not err in determining that husband could not prevail on his bald assertion that a confidential relationship existed between the parties. And the circuit court did not err in finding that the provision requiring that the parties exchange lists of assets was not a condition precedent.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Whether the circuit court erred in failing to provide Husband with the opportunity to testify and present evidence regarding the existence of a confidential relationship.
For the following reasons, we hold that the circuit court did not err and affirm.
BACKGROUND
This case arises out of divorce proceedings between Davood Ashrafi (“Husband”), appellant, and Nahal Kardan (“Wife”), appellee, in the Circuit Court for Montgomery County. The parties resolved their differences through mediation on June 7, 2024. Thereafter, they placed their settlement agreement on the record. Subsequently, Husband alleged that a condition precedent existed in the settlement agreement that had not been met, rendering the agreement void. The court scheduled a hearing on this issue for November 20, 2024, and ordered the parties to submit memoranda addressing the condition precedent issue.
In his memorandum, Husband alleged for the first time that the parties were in a confidential relationship, and that Husband was induced to enter the settlement agreement by duress or fraud. As a result, Husband contended that the agreement should be set aside. On November 20, 2024, after hearing arguments from both parties, but without taking testimony or receiving evidence, the court found that there was no condition precedent in the agreement, and that no confidential relationship existed. The circuit court granted the parties divorce, incorporating, but not merging, the agreement. This appeal followed.
QUESTIONS PRESENTED
Husband presents one question for our review, which we have rephrased as follows:1
Husband and Wife were married in Iran on November 11, 2001. The parties share two children, both now emancipated by age. The parties owned real property and several businesses jointly and individually. The parties separated on or around January 14, 2019. Wife initially filed a Complaint for absolute divorce on May 20, 2019. On March 20, 2021, the parties signed a document titled “Nahal Kardan and Davood Ashrafi Divorce Settlement Agreed Terms,” which outlined the disposition of various assets and other settlement terms (the “March 20 Agreement”). Thereafter, the parties filed a memorandum of understanding with the court, to which they attached the March 20 Agreement, and agreed to dismiss the divorce matters. The case was thereby voluntarily dismissed. The parties then entered a reconciliation period.
On June 20, 2023, Husband filed a Complaint for absolute divorce and sought a division of their assets. On July 19, 2023, Wife filed a motion to dismiss, arguing that the matter was already settled pursuant to the parties’ March 20 Agreement. Thereafter, Wife’s motion to dismiss was denied. On October 20, 2023, Wife filed a motion for a protective order to prevent Husband from gaining access to records and documents pertaining to certain businesses and trusts which, pursuant to the March 20 Agreement, are held solely by Wife. The court granted Wife’s protective order. On January 19, 2024, Wife filed a counterclaim for absolute divorce and a motion to enforce the March 20 Agreement.
The parties participated in mediation on June 7, 2024. At the conclusion of the mediation, the agreement was read, recorded, and transcribed. The verbal settlement agreement, (the “June 7 Agreement”), resolved all outstanding issues and required that each party: provide the other party with a list of existing assets as of [June 7, 2024]. If either party discovers an asset that is not listed on the asset list, then the . . . non-disclosing party shall pay 60 percent of the value of the asset to the other party plus the attorney’s fees incurred in discovering the asset.
The asset lists were to be provided within ten days. Counsel for Wife was to draft the Agreement and send the first draft to Husband’s counsel within two weeks. The parties agreed that
“[i]n the event that the parties are not able to sign a written separation agreement, then the terms that [the parties] placed on the record will be the terms that the parties use.” Furthermore, “both parties agree[d] and acknowledge[d] that this is a binding deal [executed on June 7, 2024], and both of them intend[ed] to be bound by this agreement as of [June 7, 2024].” Counsel for Wife sent a draft written settlement agreement on June 28, 2024, and attached a list of assets. Husband failed to respond. As such, the transcription of the June 7 Agreement constituted the parties’ final agreement.
On August 23, 2024, Wife filed an amended counterclaim for absolute divorce, noting that the parties had engaged in mediation and there was nothing left to adjudicate. On August 30, 2024, Wife filed a motion to enforce the June 7 Agreement. In the motion to enforce, Wife asserted that she had provided Husband with her list of assets. Wife alleged that Husband “failed and refused to provide his asset list to Wife.” Wife requested that the court order Husband to provide his asset list to Wife pursuant to the June 7 Agreement, and incorporate, but not merge, the June 7 Agreement into an order for the judgment for absolute divorce between Husband and Wife. Wife did not request a hearing.
On October 4, 2024, Husband filed an opposition to Wife’s motion to enforce the June 7 Agreement. In his opposition, Husband alleged that Wife had failed to provide a list of her existing assets and the value of each asset. Husband agreed that each party was required to provide a full asset list and financial disclosure, and repeatedly claimed that Wife had failed to provide him with the requisite financial disclosure. Husband recognized that “full financial disclosure of both parties is essential in this case.”2 Furthermore, Husband agreed that “once there has been full financial disclosure, [Husband] would not object to the Court [i]ncorporating but not merging the [parties’] June 7, 2024 Agreement.” Husband requested that the court “require both parties to provide full financial disclosure prior to enforcing the [parties’] Agreement.” Husband did not request a hearing.
The court held a hearing on Wife’s motion to enforce the June 7 Agreement on October 7, 2024. The parties presented arguments regarding whether they intended to be bound by the June 7 Agreement. Further, Husband argued that the exchange of asset lists was a condition precedent to the agreement, and without a full financial disclosure, there was no agreement. The court recognized that because the term “condition precedent” did not appear in the June 7 Agreement, the court would need to consider the language of the agreement, and if it determined that the language was ambiguous, it would take testimony from the parties.
The court directed Husband to file a memorandum of law by October 22, 2024 in support of his assertion that providing the list of assets was a condition precedent. Wife was ordered to file a response by November 6, 2024. Notably, neither party requested an evidentiary hearing, and the court set a “Motion Hearing” on November 20, 2024.
On October 30, 2024, eight days after the deadline imposed by the court, Husband filed a memorandum in support of his request that the court set aside the June 7 Agreement. In his memorandum, Husband did not address whether the disclosure of their assets was a condition precedent
to the agreement. Instead, Husband argued -- for the first time -- that a confidential relationship existed between the parties. Husband further contended that in a confidential relationship, the dominant party must show that an agreement was not procured by fraud. Further, to justify the validity of an agreement, the dominant party must show that there was a “full, frank, and truthful disclosure” of assets at the time the agreement is reached.3 Husband maintained that Wife’s failure to provide a “full, frank and truthful disclosure” amounted to “fraudulent inducement” as well as unconscionability rendering the June 7 Agreement voidable. Husband did not specifically claim in his memorandum that the parties were in a confidential relationship, nor did he allege any facts beyond his continued allegation that Wife did not provide her list of assets.
In response, on November 6, 2024, Wife alleged that her list of assets was attached to the draft settlement agreement that was sent to Husband’s counsel on June 28, 2024.
Wife alleged that on September 6, 2024, she sent a revised asset list to Husband’s counsel.4 Wife then argued that the requirement that the parties disclose their assets was not a condition precedent. Wife further maintained that the June 7 Agreement was a valid, binding agreement, and that her disclosure was adequate because the June 7 Agreement did not require her to list the value of each asset, only their existence. Finally, Wife argued that in separation agreements, there is no presumption of a confidential relationship, and that Husband alleged no facts that would support a finding of a confidential relationship. Lastly, Wife contended that even if she did not disclose the value of her assets, this alone would not support a finding that a confidential relationship existed.
The court held a hearing on November 20, 2024. At the outset of the hearing, Husband’s counsel stated that the purpose of the hearing was to determine the validity of the June 7 Agreement. If so, the court would grant a divorce. Alternatively, if the court found that the June 7 Agreement was not valid, the parties would move forward to trial. Husband contended that that the exchange of a list of assets was a condition precedent to the June 7 Agreement between the parties. Husband then alleged that the parties were in a confidential relationship, in which he was the dependent party. Therefore, according to Husband, Wife was required to prove that there was a full, frank, and truthful financial disclosure. Wife responded, arguing that the exchange of the list of assets was merely one term of the agreement and not a condition precedent. Further, Wife argued that there was no presumption of a confidential relationship between Husband and Wife, and Husband was unable to provide facts sufficient to support the allegation of a confidential relationship.
The court found that the June 7 Agreement provided for a specific remedy that would result if an asset was not disclosed, namely that the discovering party would receive 60 percent of the asset. As a result, the court determined that the exchange of the lists of assets was not a condition precedent to the Agreement. Accordingly, the court determined that the June 7 Agreement was valid and binding on the parties.
The court went on to address the confidential relationship. Initially the court stated:
Now, the plaintiff has alleged that there was a confidential relationship and that he believes that the contract should be voided. The law is clear. If you can establish that there was fraud or duress with regard to entering into that agreement, then the agreement could be subject to be declared null and void.
So with that, [counsel for Husband], do you intend to present evidence with regard to establishing that the contract should be voided?
Husband indicated that he would call two witnesses, at which point counsel for Wife addressed the court:
[COUNSEL FOR WIFE]: So when I was saying there are no allegations [of a confidential relationship], he hasn’t set forth any factual allegations of fraud. So for him to say he can prove it, he hasn’t set it out what -- I don’t know what to expect because he hasn’t alleged the basis for the fraud. He hasn’t alleged the basis for the existence of a confidential relationship.
And so for him to be given the opportunity now -- first of all, she doesn’t have notice. He had the opportunity now. The agreement is presumed valid. I would ask that the Court go forward with the divorce merits.
In order to provide Wife with notice, the court stated that it would set a discovery deadline and an evidentiary hearing regarding whether a confidential relationship existed between the parties. The court noted that Husband does “have the right to ask the Court to void the agreement if he can show fraud, duress, and being part of a confidential relationship where he was taken advantage of. That’s all that discovery will be limited to.”
The court then conducted further inquiry to determine the scope of discovery. The court asked Husband’s counsel to confirm that “in order for [Husband] to prove his confidential relationship, he says he wants to prove that there are other assets beyond what was on the list which she’s already provided him.” The court then repeated its inquiry, asking “the right that you have to pursue and establish a confidential relationship butts up against your trying to claim that there are assets that she’s hidden; is that correct?” Husband’s counsel confirmed this understanding.
The following colloquy then ensued:
THE COURT: Something just occurred to me.
[COUNSEL FOR HUSBAND]: Yes.
THE COURT: How can he claim a confidential relationship when he has a provision in the agreement that says if you don’t list all of the assets and I uncover them, I get 60 percent? Where’s the trust and the reliance on somebody that they’ll be fair and just to him when he says, hey, I’m not so sure that I’m going to put a covenant in this agreement that if you uncover something, then I’m entitled to 60 percent of it? How are you going to overcome that at any [future hearing?]
THE COURT: You have to show that he lost his free will and just relied on her to be fair -* * *
THE COURT: . . . how he could ever overcome that he trusted and relied on her and lost his free will when he put a provision in the agreement, a covenant, saying if you didn’t disclose everything to me, then you get 60 percent of it once you identify it. * * *
THE COURT: . . . How can he overcome the fact that he did not trust that she listed all the assets by putting that provision in the agreement?
[COUNSEL FOR HUSBAND]: Because the law . . . requires proof that one spouse is dominant and the other is dependent.
THE COURT: Uh-huh.
[COUNSEL FOR HUSBAND]: It has nothing to do
THE COURT: And he gave up his free will and relied on her, and he clearly demonstrated in the agreement that he did not give up his free will. He wanted to have a safety provision that if she didn’t reveal all assets, then he could still come after her and get them and get no analysis by the Court, he gets 60 percent of them.
THE COURT: . . . I will explain it once again. He cannot prove confidential relationship when he puts that term into the agreement, period. That’s it. Can he then try to enforce the agreement and do his discovery? What the limits will be on that discovery, I’m not making a determination now. That will be subject to future motions.
Following a brief recess, the court reiterated its conclusion that the provision in the June 7 Agreement that the parties exchange lists of assets was not a condition precedent. The court then noted that husband “indicated that he was under duress, under a confidential relationship, and the result, that agreement should be voided.” The court continued: I indicated previously that, given that the agreement indicates that the plaintiff does have recourse of determining of whether the defendant has listed all the assets that she has, it is clear to me that he was not under the total control of the defendant and loss of will, a fact that he would need to prove in order to establish that there was duress in this matter, and he has -- if he was under such duress he wouldn’t have included that type of provision in the agreement.
Finding the absence of a confidential relationship, the court denied Husband’s motion to set aside the June 7 Agreement. Thereafter, the court granted the absolute divorce. This appeal followed.
STANDARD OF REVIEW
“When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence.” Md. Rule 8-131. We “will not set aside the judgment of the trial court on the evidence unless clearly erroneous[.]” Id “If any competent material evidence exists in support of the
trial court’s factual findings, those findings cannot be held to be clearly erroneous.” MAS Associates, LLC v. Korotki, 465 Md. 457, 474 (2019). This is “a highly deferential evidentiary review.” Id.
“When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.” Caldwell v. Sutton, 256 Md. App. 230, 263 (2022). We, therefore, review de novo a court’s interpretation of the Maryland Rules. Xu v. Mayor of Balt., 254 Md. App. 205, 211 (2022). Additionally, “[t] he interpretation of a written contract . . . is a question of law, which is reviewed de novo.” All State Home Mortg., Inc. v. Daniel, 187 Md. App. 166, 180 (2009).
DISCUSSION
I. The court did not err in failing to provide Husband the opportunity to present evidence and testimony regarding the existence of a confidential relationship at the November 20, 2024 hearing.
Husband contends that the circuit court erred by “refusing” to allow Husband to present testimony and evidence at the November 20, 2024 hearing. Husband argues that he “had a right to an evidentiary hearing to factually prove the existence of a confidential relationship and to prove that he was induced into entering into the [June] 7, 202[4] Agreement under duress and fraud.” In response, Wife maintains that Husband never requested a hearing, and the court was not required to hold a hearing. Further, Wife asserts that the November 20, 2024 motion hearing was not an evidentiary hearing. Wife further argues that Husband failed to allege facts sufficient to support a finding of a confidential relationship, and the court did not err in its determination that no confidential relationship existed between the parties. Lastly, Wife concludes that that the exchange of assets was not a condition precedent, and that the June 7 agreement is valid.
Maryland Rule 2-311(f) provides:
A party desiring a hearing on a motion, other than a motion filed pursuant to Rule 2-532, 2-533, or 2-534, shall request the hearing in the motion or response under the heading “Request for Hearing.” The title of the motion or response shall state that a hearing is requested. Except when a rule expressly provides for a hearing, the court shall determine in each case whether a hearing will be held, but the court may not render a decision that is dispositive of a claim or defense without a hearing if one was requested as provided in this section.
The court has the unbridled discretion to determine whether a hearing will be held on motions filed by the parties in certain instances. See Miller v. Mathias, 428 Md. 419, 443 (2012) (noting that Rule 2-311(f) “mandates a hearing only if a party requests one and if the court ‘render[s] a decision that is dispositive of a claim or defense.’”); Adams v. Offender Aid & Restoration of Balt., Inc., et al., 114 Md. App. 512, 518 (1997) (“For those motions that could be categorized as ‘dilatory’ or ‘frivolous,’ the established procedure permits
judges to decide the issues based only on the pleadings and attached exhibits and affidavits. Even when the cases are not frivolous or dilatory, the judge may dispose of the case entirely without hearing if no request for hearing has been made.”).
Critically, Husband never requested a hearing. He never filed a pleading requesting a hearing nor verbally requested such a hearing. Wife also did not request a hearing. The court, therefore, was not required to hold a hearing on the parties’ respective motions. Even so, the court exercised its discretion and scheduled a “Motion Hearing” for November 20, 2024. When discussing scheduling with the parties, the court specifically clarified that this was to consider the issue relating to Husband’s allegation that a condition precedent in the agreement existed. The following colloquy between the court and counsel occurred:
THE COURT: Is it appropriate then that the Court would have to take testimony with regard to an ambiguity in the language of the agreement?
[COUNSEL FOR WIFE]: I don’t know if its an ambiguity. The Court would have to take testimony to find as a fact whether or not a condition precedent exists.
THE COURT: Wouldn’t first have to look at the agreement and then make determination whether the language is so clear that the party would not have to testify and the Court says hey, here’s the agreement and we just go from there?
[COUNSEL FOR WIFE]: I think that’s appropriate. THE COURT: Do you agree, [counsel for Husband]?
[COUNSEL FOR HUSBAND]: Yes.
The court then requested that each party submit a memorandum of law regarding the existence of a condition precedent to the June 7 Agreement. Thus, the court left open the possibility that, if necessary, evidence and testimony may need to be considered by the court regarding the existence of a condition precedent. The court made no comment about the necessity of receiving evidence or testimony regarding the existence of a confidential relationship because Husband had not made such an argument up to that point. Accordingly, the court had the discretion to permit or refuse to permit the parties to present evidence regarding the confidential relationship at the November 20, 2024 hearing.
“Maryland law . . . makes plain that a husband and wife are presumed not to occupy a confidential relationship.” Lasater v. Guttman, 194 Md. App. 431, 457 (2010). In a marital relationship, “the existence of a confidential relationship is an issue of fact and is not presumed as a matter of law.” Id. (quoting Upman v. Clarke, 359 Md. 32, 42 (2000)). “The proponent of a confidential relationship bears the burden of showing that it exists, i.e., that by virtue of the relationship she (or he) was justified in assuming that the other spouse would not act in a manner inconsistent with her (or his) welfare.” Id. at 458. See also Cannon v. Cannon, 384 Md. 537, 556 n. 8 (2005) (“A confidential relationship between a husband-and-wife entering a pre-separation (or post-marital) agreement made with the intent of limiting the marital rights (provided under Family Law Article § 8–101) is a question of fact that may be proven by the party seeking to attack the
agreement in order to shift the burden of proof to the party seeking to enforce the agreement.”).
Thus, Husband was required to prove the existence of a confidential relationship. In both his memorandum and during the November 20, 2024 hearing, Husband repeatedly asserted that there was a confidential relationship between the parties. He further contended that Wife’s failure to provide a full financial disclosure constituted fraud and coercion.
It was unclear from Husband’s arguments, however, what facts he was alleging to support his contention that a confidential relationship existed and that he was the dependent spouse. When asked by the court “what evidence you have to show fraud or duress that you intend to present this morning,” Husband simply presented conclusory allegations that a confidential relationship existed, and that Wife’s failure to provide Husband with an asset list constituted fraud. Notably, Husband did not ask the court to testify or enter certain evidence which was refused by the court. In short, the court did not “refuse” to permit him to present any evidence that was offered. Husband simply did not allege any facts in support of his assertion of a confidential relationship.5
Although the court did not entertain additional evidence or testimony, the court clearly reviewed the June 7 Agreement, and particularly, the provision providing that “If either party discovers an asset that is not listed on the asset list, then the . . . non-disclosing party shall pay 60 percent of the value of the asset to the other party plus the attorney’s fees incurred in discovering the asset.” The court found this provision troubling, and inquired: “How can he claim a confidential relationship when he has a provision in the agreement that says if you don’t list all of the assets and I uncover them, I get 60 percent? Where’s the trust and the reliance on somebody that they’ll be fair and just to him when he says, hey, I’m not so sure that I’m going to put a covenant in this agreement that if you uncover something, then I’m entitled to 60 percent of it? How are you going to overcome that at any . . . future hearing?”
This assumption -- that Wife would be hiding assets from Husband -- is entirely inapposite with the notion that Husband would be “justified in assuming that [Wife] would not act in a manner inconsistent with [Husband’s] welfare.” Lasater v. Guttman, 194 Md. App. at 458. The court inferred that any facts alleged by Husband in an effort to show that a confidential relationship existed between that parties would be inconsistent with the factual record before the court, the analysis provided in the memoranda submitted by each of the parties, and the motions’ court’s reading of the June 7 Agreement. Based on our review of the record, the circuit court did not err in determining that Husband could not prevail on his bald assertion that a confidential relationship existed between the parties.
II. The court did not err in finding that the provision requiring that the parties exchange lists of assets was not a condition precedent.
Wife additionally argues in her brief that the June 7 Agreement was valid and that the requirement that the parties exchange lists of assets was not a condition precedent. Husband did not address the condition precedent finding
in his brief, but did so at the motions hearing in the circuit court. Because the existence of a condition precedent was the original issue submitted to the circuit court, and because the court found at the November 20, 2024 hearing that there was not a condition precedent, we briefly address the court’s finding here.
“A condition precedent is ‘a fact, other than mere lapse of time, which, unless excused, must exist or occur before a duty of immediate performance of a promise arises.’”
Wildewood Operating Co., LLC v. WRV Holdings, LLC, 259 Md. App. 464, 479 (2023) (quoting Chirichella v. Erwin, 270 Md. 178, 182 (1973)). “‘Where a contractual duty is subject to a condition precedent, whether express or implied, there is no duty of performance and there can be no breach by non-performance until the condition precedent is either performed or excused.’” All State Home Mortg., Inc, 187 Md. App. 182 (citations omitted). The terms of the contract determine the existence of a condition precedent:
The question whether a stipulation in a contract constitutes a condition precedent is one of construction dependent on the intent of the parties to be gathered from the words they have employed and, in case of ambiguity, after resort to the other permissible aids to interpretation[.] Although no particular form of words is necessary in order to create an express condition, such words and phrases as “if” and “provided that,” are commonly used to indicate that performance has expressly been made conditional, as have the words “when,” “after,” “as soon as,” or “subject to[.]”
Aronson & Co. v. Fetridge, 181 Md. App. 650, 682 (2008) (quoting Chirichella, 270 Md. at 182).
Notably, none of the words that typically designate a condition precedent -- if, provided that, when, after, as soon as, or subject to -- were used in the context of the asset list exchange provision. Looking beyond those words, however, nothing in the June 7 Agreement tended to indicate that the financial disclosure was required before the agreement became binding. Quite the opposite, as the record is replete with instances confirming the parties’ intent to be bound by the June 7 Agreement. As noted, “both parties agree[d] and acknowledge[d] that this is a binding deal [executed on June 7, 2024], and both of them intend[ed] to be bound by this agreement as of [June 7, 2024].” The court specifically spoke to Husband about understanding:
THE COURT: . . . So Mr. Ashrafi, you have heard all of these terms recited here on the record, correct?
MR. ASHRAFI: Yes, correct.
THE COURT: Been present throughout this entire proceed[ing], correct?
MR. ASHRAFI: Yes, correct.
THE COURT: Okay. And you have heard [counsel for Wife] put those terms on the record and as amended or amplified by your attorney as well -- well, actually amended and amplified by your attorney and occasionally by myself; is that correct?
MR. ASHRAFI: Yes, correct.
THE COURT: And the terms that are in place
here on the record, are those all of the terms of this agreement?
MR. ASHRAFI: Yes.
THE COURT: Okay. And you understood all of those terms; is that correct?
MR. ASHRAFI: Yes. Yes.
THE COURT: And do you intend to be bound by this agreement?
MR. ASHRAFI: Yes.
The requirement that the parties exchange lists of assets was, as described by Husband at the November 20, 2024 hearing, one of several terms contained in the Agreement. The provision specifically contemplated that the asset lists would be exchanged in the future, and did not provide that
should the lists not be exchanged, any other aspect of the June 7 Agreement would be rendered null and void. Husband clearly and unequivocally agreed to be bound by all of the terms of the June 7 Agreement. The court, therefore, did not err in determining that the asset exchange provision was not a condition precedent.
Finding no error with the court’s findings -- that a confidential relationship did not exist between the parties and that the exchange of lists of assets was not a condition precedent to the June 7 Agreement -- we affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 Husband phrased the question as follows:
FOOTNOTES
Did the trial court err by refusing to allow appellant to present testimony and evidence at the November 20, 2024 hearing.
2 Although Husband alleges that he “responded to [Wife’s] counsel asking for a full financial disclosure,” it is unclear whether Husband had provided Wife with a full disclosure of his assets at this point.
3 Although Husband does not say as much in his memorandum, implicit in his argument is the allegation that Husband and Wife were in a confidential relationship at the time the settlement agreement was created.
4 Wife’s disclosure lists several assets but does not provide the value of any of the listed assets. Rather, the disclosure listed items including “Bank of America account,” “Bitcoin,” and “Personal Property” with no corresponding approximate valuation. At the October 7, 2024 hearing, Wife’s counsel alleged that this was sufficient because nothing in the June 7 Agreement required that the list of assets include the value of each of the assets. Husband’s repeated assertions that Wife has not provided a list of her assets appears to refer to her failure to provide the valuation of each of the listed assets.
5 When the court was initially considering whether to order discovery for a future hearing and the scope of that discovery, Husband alleged: “She’s the one who controlled the purse. She’s the one who told him what to do. She’s the one who said transfer all the homes into my name, put all the money into this account. We have to be able to explore every one of those issues.” Shortly after this statement, the court arrived at its conclusion that it did not need to order any discovery or conduct further proceedings because Husband’s actions and allegations that Wife was hiding assets from him indicated that a confidential relationship did not exist.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s award of joint legal custody and shared physical custody of the parties’ minor child. The circuit court did not err or abuse its discretion in predicating its custody order on its independent review of the record supporting the magistrate’s thorough consideration of relevant custody factors, and in fashioning a custody schedule designed to meet the child’s educational and health needs while accommodating the geographic distance between these parents’ residences.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
evidence supports them. Hosain v. Malik, 108 Md. App. 284, 303-04 (1996). Regarding the ultimate custody decision, we review the circuit court’s determination for abuse of discretion, which exists only if “no reasonable person would take the view adopted by the trial court” or the ruling is “clearly against the logic and effect of facts and inferences before the court[.]” Santo v. Santo, 448 Md. 620, 625-26 (2016) (cleaned up).3
Mindful that the “‘court’s objective is not . . . to punish’” a parent, but “to determine what custody arrangement is in the best interest of the minor children,” we consider a wellestablished list of factors when applying the best interest standard to each case. Burdick v. Brooks, 160 Md. App. 519, 528 (2004) (quoting Hughes v. Hughes, 80 Md. App. 216, 231 (1989)). In Taylor v. Taylor, 306 Md. 290 (1986), and Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978), we find a non-exhaustive list of factors that circuit courts are required to consider when making custody determinations:
(1) The fitness of the parents;
(2) The character and reputation of the parties;
M.J. (“Father”), appellant, challenges an order by the Circuit Court for Baltimore County (the “Custody Order”) denying his petition seeking sole legal and physical custody of his fouryear-old child (the “Child”) with T.A. (“Mother”), appellee.1 In Father’s view, the Circuit Court for Baltimore County erred and abused its discretion in ordering a split-week schedule, giving him custody from Friday until Monday, and in other ways that he itemizes in his informal brief identifying seven issues.2 Concluding that both the record and the law support the circuit court’s decision to order joint legal custody and shared physical custody, we will affirm the Custody Order.
LEGAL STANDARDS GOVERNING REVIEW OF CUSTODY DECISIONS
We summarize the legal framework governing custody decisions as background for our review of the record. As this Court has explained, appellate review is limited. “[A]n appellate court does not make its own determination as to a child’s best interest; the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.” Gordon v. Gordon, 174 Md. App. 583, 637-38 (2007); see Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019).
Reviewing the evidence in the light most favorable to the custody decision, we conclude the circuit court’s factual findings are not clearly erroneous when competent, material
(3) The requests of each parent and the sincerity of the requests;
(4) Any agreements between the parties;
(5) Willingness of the parents to share custody;
(6) Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest;
(7) The age and number of children each parent has in the household;
(8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
(9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;
(10) The geographic proximity of the parents’ residences and opportunities for time with each parent;
(11) The ability of each parent to maintain a stable and appropriate home for the child;
(12) Financial status of the parents;
(13) The demands of parental employment and opportunities for time with the child;
(14) The age, health, and sex of the child;
(15) The relationship established between the child and each parent;
(16) The length of the separation of the parents;
(17) Whether there was a prior voluntary abandonment or surrender of custody of the child;
(18) The potential disruption of the child’s social and school life;
(19) Any impact on state or federal assistance;
(20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child;
(21) Any other consideration the court determines is relevant to the best interest of the child.
Azizova, 243 Md. App. at 345-46 (quotation marks omitted)
(quoting Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(a), at 5-9 to 5-11 (6th ed. 2016)).
Sanders was decided in 1978; Taylor was decided in 1986.
The law has not stood still in the intervening forty years.
In Azizova, we identified nine additional considerations developed in intervening appellate decisions:
(1) the ability of each of the parties to meet the child’s developmental needs, including ensuring physical safety; supporting emotional security and positive selfimage; promoting interpersonal skills; and promoting intellectual and cognitive growth;
(2) the ability of each party to meet the child’s needs regarding, inter alia, education, socialization, culture and religion, and mental and physical health;
(3) the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties;
(4) the history of any efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent;
(5) any evidence of exposure of the child to domestic violence and by whom;
(6) the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties;
(7) the ability of each party to co-parent the child without disruption to the child’s social and school life;
(8) the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and
(9) the child’s possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child.
Azizova, 243 Md. App. at 346-47 (quoting Fader’s Maryland Family Law § 5-3(b), at 5-11 to 5-12).
FACTUAL BACKGROUND
Father and Mother have one child, a son born in May 2021. Since the Child’s birth and thirty-day NICU hospitalization, they have maintained a co-parenting relationship. After operating under an informal shared custody arrangement for the Child’s first two and a half years, in November 2023, Father petitioned for “sole legal and physical custody . . . pendente lite and permanently[.]” The ensuing proceedings,
detailed below, resulted in the denial of that relief and the custody order from which Father now appeals, awarding joint legal custody and shared physical custody.
Custody Pleadings
On November 22, 2023, Father, then represented by counsel, alleged in his custody petition that he had “been the child’s primary care taker since his birth” and that Mother “has had an unstable home life and environment, and changed jobs frequently.” Contending that they were “unable to communicate with each other for the betterment of the child[,]” he asserted that it was “in the best interests of the child that his custody be awarded to” Father.
Representing herself, Mother answered the complaint, denying that Father had custody of the Child since birth and seeking denial or dismissal of the petition. She also filed a counterclaim, seeking sole legal custody, primary physical custody, and child support, averring that would be in the Child’s “best interest” because she is “his primary caregiver” and has had decision-making authority “since birth.”
After obtaining counsel, Mother filed an amended answer stating that “the child primarily lives with her at” a residence in Baltimore, that Father “has access with [the] Child[,]” that “the parties have been able to communicate and resolve significant issues regarding the child’s health and general welfare[,]” and that Father’s “Complaint for Custody [should] be denied.” She also filed an Amended Counter-complaint for Custody, Access, Child Support, and Other Relief, averring in more detail that “[t]he Child has been in [her] primary care and custody . . . since his birth” and that there had been no prior “litigation concerning the custody of the Child[.]” Mother alleged that Father “was not present at the Child’s birth” by caesarian section because he was asked “to leave the delivery room” after they “were arguing intensely during labor.” He allegedly did not contact Mother or visit the Child until Mother “reached out and invited him to see his son.” The Child was four months old when they met. Since about a month after that, Father has had “scheduled regular and independent visits with the Child.”
Identifying current and prior addresses, Mother asserted that the Child was living in a household that included Mother’s “two (2) other male minor children” and “her 19-year[-]old son” and that “all four (4) children have a close and loving relationship.” At the time Mother filed that pleading, the family was living “with her parents . . . in a five (5) bedroom home in Baltimore City” that is “an appropriate residence for the Child.”
Mother “aver[red] it is in the Child’s best interest that she be awarded sole legal custody” (or joint with tie-breaking authority) and primary physical custody. Mother further stated that, “although the parties’ communication needs improvement, they have managed to make some legal custody decisions jointly, such as choosing a daycare provider.” The parents lived “approximately 40 minutes from one another and meet halfway to exchange the Child.” Citing Father’s significant age difference “and inconsistent employment,” Mother “aver[red] she could provide a more suitable environment and facilitate the active lifestyle their young son requires.”
With respect to employment, Mother averred that she had been working at “the Greater Baltimore Medical Center as a medical assistant . . . since September, 2023[,]” on a 7:45 a.m. until 4:15 p.m. schedule that makes her “available to care for the Child before and after school.” Alleging that Father “is somewhat secretive about his employment[,]” Mother had “a good-faith belief” that his employment had been sporadic and included work “as a maintenance mechanic for properties he owns” and “as a full time physician’s assistant[.]” He told her he had “retired from the Baltimore County Police Department and intends to return to work at a hospital, ostensibly as a physician’s assistant.”
Mother also presented “concerns about [Father’s] childrearing theories[,]” citing as an example that “he sometimes has the Child accompany him while he does maintenance work on his properties.” In addition, she maintained that he “has only paid a bare minimum in child support (between $1,500 and $2,000 in total)” and only upon Mother’s request.
The Custody Hearing
While the custody matter was pending, the appearances of both Mother’s and Father’s attorneys were stricken, on August 22 and November 4, 2024, respectively. At the custody hearing on April 9, 2025, neither parent had counsel. By that time, Father was amenable to joint custody but wary of sharing physical custody because he did not want to be “a weekend dad.” Mother sought joint legal and shared physical custody.
Father presented testimony from himself, his two sisters, and Mother, as well as documentary and photo evidence regarding what he viewed as relevant factors. Mother, in addition to cross-examining Father’s witnesses and testifying on her own behalf, called Father as a witness. Contending that he would provide the Child with more attention and resources, a safer home, and greater emotional and financial stability, Father maintained that the following factors supported an award of sole legal and primary physical custody:
• Research on single father and single mother households: Citing to “a Pew Research study[,]” Father argued that research showed that “single father homes . . . typically had higher outcomes than single mothers and are far less likely to live below the poverty line” with “exponentially lower rates” of “[p]sychiatric disorders[.]” The magistrate declined to consider “this type of evidence” because “you’re trying to enter some expert testimony, but they’re not here and not able to be cross-examined by” Mother.
• Historical record and performance: Referring to “work records,” “resumes,” “educational records,” “financial history,” “social media,” and “civic . . . engagement[,]” Father emphasized his qualifications and records as an honorably discharged Marine, master’s degree graduate, licensed physician’s assistant and registered nurse with a successful history of having primary custody of his now-adult daughter beginning at age eleven.
• Critical thinking, conflict resolution, work ethic, time management, meeting goals: Father pointed
to his successes in his career, financial affairs, and raising his other children.
• Economic resources, including financial stability and management: Father cited “past and future financial management skills, financial stability, access to financial resources, dependency on government subsidies, bankruptcy, financial loss, credit card debt, . . . school debt[,]” expenses, access to funding for educational and extracurricular activities, and “projected wealth and long-term resources.”
• Child’s safety and well-being: Inviting comparisons, Father also pointed to what he contended was a “high-risk environment” for the Child at Mother’s residence compared to the Child’s environment at Father’s residence, which featured “safety equipment,” “emergency planning, medical training,” “health care,” as well as “sanitation,” “nutrition, proper sleep, emotional resilience, happiness, meeting milestones, and fostering a supportive environment.” He recognized the importance of “[c]onsistency and stability,” including “discipline, routine, [and] reliability.”
Father called Mother as a witness. She testified that she has had primary physical custody of the Child since he came home from the hospital after thirty days in the NICU. After Mother reached out to Father, Father began seeing the Child when he was four months old.
Mother had moved several times with the Child. Although they previously lived with her parents, moving into their five-bedroom home in 2024, when Father petitioned for full custody, she moved to a three-bedroom townhouse in Rosedale with the Child and her eight-year-old son, on the recommendation of her attorney. Her eldest son is an adult and her eighteen-year-old son remained at his grandmother’s residence.
Mother consistently acknowledged that Father is “a great” parent who loves the Child and typically shares in his childcare and financial support. Although there has never been a child support order, Mother testified that they “split everything” required for the Child’s support. In addition, Father had purchased a washer and dryer and furnished a heater and microwave for Mother’s household.
Mother attributed intermittent increases in Father’s “animosity” toward her to whether or not they were having an intimate relationship. Although she has never prevented him from being with the Child, Mother explained that there had been lapses during which Father stopped responding to her communications, either in connection with some disagreement related to the Child or their intimate relationship.
For example, when Father objected to the distance for one of the Child’s daycare centers, he stopped making copayments, causing Mother to move the Child to a provider that accepted vouchers. The first time Father picked the Child up there, he told the new provider (rather than Mother) that he was moving, then stopped communicating with Mother or picking up the Child.
In November 2023, after they disagreed over a daycare provider, Father did not communicate for two weeks, then
filed this petition for custody. At the time of this evidentiary hearing in April 2025, the typical custody arrangement was not a rigid one because Father had begun working at Express Care, so his schedule changed during his probationary period. Often Mother picked up the Child from daycare on Monday and Father picked him up from daycare on either Thursday, Friday, or Saturday. Father had not done so since March 18, however, and was not responding to emails or phone calls from Mother.
Mother was seeking joint legal and physical custody. She had recently removed the Child from his daycare for safety concerns, after “[h]e was able to open the door.” Because the Child had a developmental speech delay, Mother had navigated social services to obtain an IEP and a placement at a public preschool, which he was scheduled to begin halfdays the following Monday and continue full days for pre-K.
The Magistrate’s Findings and Recommendations
On April 17, 2025, applying statutory and other relevant custody factors, the magistrate issued the following written findings and recommendations4:
1) Fitness of the parents
Both [Father] and [Mother] testified in this case. The Court observed the demeanor of [Father] and [Mother] while they were testifying. Both parties appeared to be honest and forthcoming. Both parents expressed a love of the minor child and expressed a willingness to act in the best interests of the child. Father called two of his sisters, . . . both of whom praised Father as a parent to his child.
Both Father and Mother appeared to be fit and proper parents.
2) Character and reputation of the parents
See fitness of parents section.
3) The requests of each parent and the sincerity of the requests
Father is requesting sole legal and primary custody of the minor child. Father testified that he does not want to be a “weekend dad.” He strongly believes that children in single father homes do much better than children in single mother homes. Father is very sincere in his request and clearly believes he offers a better living situation for the minor child.
Mother is seeking joint legal custody and primary physical custody. She recommends that Father have the access on weekends and for the entire summer. Mother is sincere and generous in her requests.
4) Any agreements between the parents
There is not a current agreement between the parties. Parties had an agreement, but currently Father has not seen the minor child since March 18, 2025. Mother claims that Father has been ignoring her calls and does so when he is upset because “he does get not [sic] his way.” The parties followed a routine that had minor child living primarily with Mother. Father would pick the minor child up on Thursday or Friday from daycare and drop him off at daycare on Monday mornings.
5) Willingness of the parents to share custody
See numbers 3&4 above.
6) Each parent’s ability to maintain the child’s relationship with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest
Father’s sister [T.J.] testified that she has a daughter who is “roughly the same age” as the minor child. She claims that she sees the minor child on weekdays and some weekends. [R.A.] testified that Father took her youngest daughter to Disney with the minor child. Father took her child on the trip because she could not afford it. She has not seen the minor child recently due to an injury from which she is recovering.
Mother has two sons. One is an adult. The other is an eightyear-old child. There was very little evidence regarding the sons’ interaction with the minor child in this case.
7) The age and number of children each parent has in the household
Minor child is the only minor child residing in Father’s home. Mother has an eight-year-old child in her home.
8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment
The minor child is not of an appropriate age to state a preference or to have formed a rational judgment.
9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare
Mother is clearly trying to establish lines of communication with Father and share in decision making for the minor child. Mother claims that Father ignores her calls if he is upset about something.
The Father is currently upset with Mother for what he believes was a unilateral decision by Mother to pull the minor child from the Celebree School. Mother and Father agreed to enrolling the minor child in the Celebree School. Mother receives day care vouchers. The parties agreed that Father would pay the co-pay for the daycare. The child was enrolled in a Celebree school close to her home. After Father stopped paying the co-pay for Celebree due to his concerns about cleanliness and health closures at Celebree, Mother made the unilateral decision to enroll the minor child in Magic Moments Daycare Center in Essex/ Parkville. Father is very unhappy about this, claiming that the daycare is too far away from his home and that he must travel three hours round trip to pick up and drop off the minor child. Father has recommended that the minor child go to a daycare closer to his home. Mother did not enroll the minor child in the daycare of Father’s choosing because that facility did not accept vouchers. Mother recently decided to unenroll the minor child from Magic Moments due to a security concern. Minor child has discovered how to open the door at Magic Moments. Because the school will not change the door lock system, the school and Mother decided that it was in the best interests of the child’s safety for the child to no longer attend Magic Moments. The minor child is currently awaiting placement in a Baltimore County
preschool placement due to a potential IEP due to minor child’s developmental delays.
Mother testified that she has made educational decisions on her own but has informed Father of all decisions she made. She also testified that she has made all medical appointments for the minor child, but that Father does take the minor child to some of the medical appointments. Mother has attended audiologist appointments. Father has attended the one cardiologist appointment. The parties have attended pediatrician appointments separately and together.
The minor child is enrolled in swim lessons. The parties agreed that the minor child benefits from swim lessons. Father pays for the lessons and Mother transports the minor child to and from the lessons.
The parties have relatively good communications with each other unless Father is upset about something. At the birth of the child, Father was asked to leave the hospital because he was upset with Mother. Medical personnel were concerned about Mother and the minor child’s health as they were prepping Mother for a C-section birth. Because he was asked to leave, he did not have contact with Mother for the next thirty days. When Mother removed the minor child from Celebree, Father did not communicate with Mother from November 5 until November 22, 2025, on the day that Mother was served with his initial complaint in this case.
10) The geographic residences of parents and opportunity for visitation
Father resides in Baltimore County in Owings Mills. Mother resides in Baltimore County by the City County line near Rosedale.
The parties reside approximately 22 miles apart.
11) The ability of each parent to maintain a stable and appropriate home for the child
Father resides in a four-bedroom, two- and one-half bath home in [Owings] Mills. Father testified that he has lived at this home for fifteen years and that he owns the home. Father claims that the home is in a safe neighborhood and that his home is located in a cul-de-sac. Father’s home is a stable and appropriate home for the minor child.
Mother resides in a townhome. Father attempted to paint Mother’s home as a[n] unfit home. He asked Mother about a “large reptile” being removed from her home. Mother testified that there was a garter snake removed from her home after she discovered the snake and called the home’s management company to remove the snake. They removed the snake that same day. Father also implied that Mother’s home suffered from a cockroach infestation. There was no proof of this offered other tha[n] Father saying that he saw a bug on his shoe while at Mother’s house. Father also raised the concern that Mother has made many frequent moves in the last five years. Despite Father’s concerns the Court finds that Mother provides the minor child with a stable and appropriate home.
12) Financial status of the parents
Father is currently employed as a physician’s assistant. Father is proud of his credit rating of 842. He appears to be financially stable.
Mother is currently employed by the Baltimore Medical System. According to evidence solicited by Father, Mother earns $21.94 per hour and is employed full time. Mother also appears to be financially stable.
13) The demands of parental employment and opportunities for time with the child
There are no work-related impediments for Father’s ability to spend time with the child. He testified that he currently works two to three days per week for eight-to-twelvehour shifts. Initially, his work schedule was unpredictable because he [was] under a probationary schedule at work. He recently obtained his current job; however, his six-month probationary period has been successfully completed. Now that the probationary period is over, Father has more control over his schedule. Father has ample time to care for the minor child.
Mother is employed full time. There was no testimony that this creates any hardships on Mother’s ability to spend time with the minor child.
14) The age, health and sex of the child
The minor child is almost four years old and is male. Minor child has some developmental delays. Minor child requires speech pathology issues which may be related to hearing issues. The minor child is otherwise healthy and active.
15) The relationship established between the child and each parent
The minor child appears to have a good relationship with both parents. Father’s sisters praised Father as a “good” and “awesome” father. [R.A.] testified that it is rare not to see the Father and child together. Both of Father’s sisters described the minor child as happy. Mother testified that she wants Father to be involved in the life of the minor child.
Mother testified that she and minor child have been together since the child’s birth. It appears that she has a good relationship with the minor child.
16) The length of separation of the parents
There was no testimony offered as to when the parties separated. It can be assumed [from] testimony offered that the parents were already separated when the minor child was born.
17) [P]rior voluntary abandonment or surrender of custody of the child
Not applicable.
18) The potential disruption of the child’s social and school life
There was no testimony regarding this factor. The minor child is only three years old and is currently not enrolled in school.
19) Any impact on state or federal assistance
Mother receives vouchers for the minor child’s daycare; however, the minor child is no longer enrolled in daycare. The minor child is scheduled to begin preschool through
Baltimore County Public Schools in the Fall of this year.
20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child
There was no testimony regarding this factor.
Father’s Exceptions and the Exceptions Hearing
Father filed timely exceptions to the magistrate’s report and recommendations. In a detailed pleading corresponding to the mandatory custody factors, he itemized the following challenges to the magistrate’s recommendations for joint legal and shared physical custody:
1. Fitness of the parents: Father argued that the magistrate erred “in his summation of [Mother’s] fitness,” given that he presented evidence of “his fitness as a parent, citizen, and guardian[,]” as well as Mother’s questionable fitness given her housing and employment insecurities, the condition and amenities of her residence, her financial position including the need for financial assistance in the form of “government subsidies” despite her full-time plus part-time employment.
2. Character and reputation of the parents: Father compared the above factors to his “impeccable character and reputation” reflecting his military service, education, medical licensing as a registered nurse and physician’s assistant, and service with the Baltimore County Police Department.
3. The request of each parent and the sincerity of the requests: Father reiterated that “he does not want to be a ‘weekend dad’” and “strongly believes that children in single father homes do much better than children in single mother homes.” Father pointed out that Mother “has three other sons, two of which have developmental and behavioral challenges[,]” as well as “elderly parents for which she provides care and transportation” and “ongoing health challenges of her own[.]”
4. Any agreements between the parties: Father disputed the magistrate’s finding that there was “no current agreement” regarding custody. He also argued that the magistrate erred in considering Mother’s testimony that he had not seen the Child “since March 18th 2025” and was “ignoring her calls[,]” as he does when “upset” about not getting “his way,” because Mother “did not provide any factual evidence to substantiate this accusation, i.e. text messages, call log, unreturned emails. Guidash v. Tome, 211 Md. App. 725[,] 735 (2013).” Likewise, Father maintained that the magistrate erred in failing to consider that (a) Father “took leave from his employment from 2021 until 2024 to care for the child fulltime during the . . . infant and toddler years while [Mother] return[ed] to work full time” and (b) that the recent “routine” of Father having the Child “from Thursday until Monday morning” “was a temporary arrangement as several daycare providers in [Father’s] living area [sic] did not have any openings to accept new toddlers.”
6. Each parent’s ability to maintain the child’s relationship with the other parent, siblings, etc.: Father pointed out that the magistrate erred “in stating that . . . Mother has [t]wo sons” because she “has three other sons.”
9. The capacity of the parents to communicate and reach shared decisions affecting the child’s welfare: Father asserted that the magistrate erred in considering Mother’s claim that “Father ignores her calls if he is upset about something” because Mother provided no witness or documentation “to substantiate the accusation, i.e. text messages, call log, unreturned emails.” Given “the 9735 text messages exchanged . . . over the course of three and one half years,” the magistrate should have required some corroboration. For the same reason, the magistrate erred in its consideration of Mother’s testimony about the circumstances surrounding the Child’s removal from daycares and the Child’s diagnoses of a developmental delay.
In addition, the magistrate’s characterization of Mother’s testimony that “she has made educational decisions on her own but informed Father of all her decisions” and that she makes “all medical appointments” but both parents have taken him to those appointments evidences a “prejudicial tone and glaringly bias[ed] disposition” given Father’s history of full-time care for the Child’s first twenty-four months. Likewise, Father complained about the magistrate’s “conspicuous errors and omissions and misdirection” in his description of Father’s behavior that led the hospital to ask him to leave “because he was upset with” Mother. According to Father, he left only after Mother, who was in distress with preeclampsia and being prepped for a caesarian delivery, told him to leave and that the baby was not his.
11. The ability of each parent to maintain a stable and appropriate home for the child: Father pointed to “omissions, misdirection and errors” in the magistrate’s determination not to credit Father’s allegations about a snake Mother discovered in her home and “a bug on his shoe while” he was visiting, citing the lack of any evidence to support Mother’s claim that the snake was merely a garter snake and his proffer of “color photos of the residence” with “a can of roach spray.”
13. The demands of parental employment and opportunity for time with the child: Citing Mother’s report that she works full time from 8-5 p.m. five days a week and part-time “over night Friday, Saturday and twelve hours every other weekend[,]” Father contended that “schedule will have a negative impact and displays a level of inflexibility in caring for the minor child.”
At the exceptions hearing on June 24, 2025, both parents again represented themselves. They updated the court regarding the Child’s needs, explaining that he had a developmental delay in speech, for which he now had an IEP. He had finished the school year in a three-year-old program at the public elementary school “five minutes” from Mother’s residence in Rosedale and would be starting pre-K at the
According to Father, to reach Mother’s residence and the Child’s school from his residence in Owings Mills, he had a two to three hour drive round trip. In his view and medical assessment, the Child’s “delayed speech” reflected “a hearing problem” that had been “significantly improving” since he had “tympanostomy tubes placed[.]”
Father, acknowledging that he no longer opposed joint legal custody or shared physical custody, focused on the magistrate’s split-week custody schedule, which he criticized for effectively dividing custody into weekdays for Mother and weekends for Father. He pointed out that, even though he “made it very clear to the Magistrate that [he] was not interested in being just the weekend parent” because he “wanted . . . to be significantly involved in what was going on throughout the week, throughout school time, after school,” the magistrate made “that exact recommendation.”
When the court asked Father what schedule he preferred, Father proposed either the “reverse” schedule, with Mother having weekends, or a week-on/week-off alternating schedule. In doing so, Father acknowledged that “some of the dynamics have changed” since the hearing before the magistrate, because the Child “started Pre-K[.]”
Mother then explained that, since the evidentiary hearing, the Child had completed a three-year-old program at “his zoned school” near her residence, which is a two to three hour drive “across town” from Father’s residence. In the fall, he would return to that school for pre-K.
That is why Mother favored their current schedule, where Father picks up the Child on Friday, has “him the whole weekend, every weekend,” for “an equal amount of time.”
In Mother’s view, Father’s schedule alternatives were not workable because (1) the Child’s delay requires a consistent schedule, especially for weekday bedtimes, which have differed between households; (2) she “can’t find a before and aftercare just for part-time or every other week”; and (3) she would not be able “to put [him] in activities . . . if every week is different.”
Although Father maintained that bedtime had been later at his house because it was the weekend, he conceded that there were “two hours of travel time” to Mother’s house, sometimes “almost three” from his house “on the other side of the beltway.” Father was willing to “sacrifice” to help the Child, but also suggested “that he could go to school on [his] side of town” and Mother “can get him on the weekends.”
At the conclusion of the hearing, the court recognized that both parents love their Child, “want the best for him[,]” and “have been able to communicate fairly well, which is a pretty rare commodity[.]” After commending them, the court pointed out that “unless the two of you are living together . . . , your son can only be with one of you at a time[.]”
The Circuit Court’s Custody Order
In its memorandum opinion and order entered on July 25, 2025, the circuit court denied Father’s exceptions on the ground that “the Magistrate’s findings and recommendations were supported by the evidence and not clearly erroneous.” In particular, the court recognized that Father places more weight on certain evidence than
did the Magistrate and states that there was evidence that was not appropriately considered in making the custody determination. This Court has independently examined the evidence and, while conclusions may be expressed differently, finds that there was sufficient evidence before the Magistrate to support the conclusions as expressed in the Magistrate’s Report and Recommendations.
After reviewing the pleadings, the transcript of the hearing, and evidence before the Magistrate, the Magistrate’s findings, and having heard the arguments of the parties, the Court makes the following rulings on [Father’s] Exceptions. * * *
[Father] claims that the Magistrate’s findings were biased and were not properly supported by documentary evidence, thus affecting the Magistrate’s determination of custody and credibility of the parties.
The Court finds that there is not a sufficient factual basis to support [Father’s] claims of bias. [Father] did not raise the issue at trial and did not cite to any references on the record. For this reason, [Father] has failed to preserve the issues. . . .
[Father] maintains that he did not want to be a “weekend parent” . . . and states that the Magistrate’s findings disregard arguments he presented regarding what he views as more equitable parenting time. [Father] cites to the proposal of a shared parenting scheduled that was presented before the Magistrate . . . . However, given the physical distance between the parties and the Minor Child’s perceived developmental delay, this Court believes that there was no error of law made by the Magistrate in his determination of custody.
[Father] states that there was a lack of documentary evidence presented by [Mother] and its absence undermined [Mother’s] credibility. . . [T]he Magistrate had opportunity to review the evidence and see the witnesses in person. He found both parties to be credible and made the determination concerning custody that was based on what is in the Minor Child’s best interest.
* * *
The Court has considered the arguments set forth in the Exceptions filed by [Father], the Magistrate’s Report and Recommendations, the transcript of the hearing before the Magistrate, and the arguments presented to the Court on June 24, 2025.
In exercising its independent judgment, the Court reaches the same result as did the Magistrate as to the best interests of the Minor Child, and the recommended determination of custody. The Court finds that the Magistrate’s findings and recommendations were supported by the evidence and not clearly erroneous. The Court adopts as to its own the factual findings as determined by the
Magistrate in his Report and Recommendations. Father noted this timely appeal.
DISCUSSION
In his brief, Father raises the following questions:
1. Whether the trial court erred in failing to draft [a] neutral and balanced parenting plan, conducive to the unique circumstances of the litigants?
2. Whether the trial court abused its discretion by not adequately considering the best interest of the child under the totality of the circumstances?
3. Whether the Court was neutral and unbiased, in the application of case law and [precedent] avoiding favoritism, prejudice, and impropriety?
4. Did the Court protect the rights of all parties and ensure equal treatment under the law?
5. Did the court interpret and apply statutory and case law accurately?
6. Does the current parenting plan[] provide a comprehensive and dynamic blueprint for the litigants and the child in question?
7. Finally did the Court issue a decision based on the facts and evidence presented?
As we understand these issues and supporting arguments, Father challenges the process by which the court determined custody (Issues 3 and 4), the court’s application of the law (Issue 5), and the ultimate decision that it is in the Child’s best interests for his parents to share both legal custody and physical custody under a schedule that splits each week into Mother having the Child on Monday through Friday morning, and Father having him from Friday until Monday morning (Issues 1, 2, 6, 7).
In custody disputes, magistrates often act as the factfinder and prepare a written recommendation for the circuit court. See Md. Rule 9-208(a), (b), (e)(1). The magistrate’s factual findings “do not bind the parties until approved by the court.”
Doser v. Doser, 106 Md. App. 329, 343 (1995); Md. Rule 9-208(i) (1). When, as in this case, a parent contests the magistrate’s findings by filing exceptions within ten days, Md. Rule 9-208(f), the circuit court reviews the record and exercises its own “independent judgment concerning the proper conclusion to be reached upon those facts.” Domingues v. Johnson, 323 Md. 486, 490 (1991).
On appeal, this Court reviews both the process and the decision of the circuit court.
As we recently explained, when evaluating custody determinations, this Court utilize[s] three interrelated standards of review.
First, when reviewing a magistrate’s report, both a trial court and an appellate court defer to the magistrate’s first-level findings (regarding credibility and the like) unless they are clearly erroneous. Second, if it appears that the circuit court erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.
Finally, when the appellate court views the ultimate conclusion of the court founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion. While the circuit court may be guided by the magistrate’s recommendation, the court must make its own independent decision as to the ultimate disposition, which the appellate court reviews for abuse of discretion.[] A court abuses its discretion when no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles. It has also been said to exist when the ruling under consideration appears to have been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.
In applying these standards, we are mindful that Maryland’s appellate courts consistently affirm custody determinations when the circuit court and magistrate have conducted a thorough and well-reasoned analysis within the framework of the recognized custody factors. See, e.g., Santo, 448 Md. at 646 (concluding the custody decision was “predicated on its thorough review of the Taylor factors, deliberation over custody award options, sober appreciation of the difficulties before it, and use of strict rules including tie-breaking provisions to account for the parties’ inability to communicate”); Reichert v. Hornbeck, 210 Md. App. 282, 308 (2013) (recognizing that “the court articulated fully the reasons that supported the conclusion that joint physical and legal custody was appropriate through an extensive and thoughtful consideration of all suggested factors” (cleaned up)). Applying these standards, we conclude that the circuit court did not err or abuse its discretion in predicating this Custody Order on its independent review of the record supporting the magistrate’s thorough consideration of relevant custody factors, and in fashioning a custody schedule designed to meet the Child’s educational and health needs while accommodating the geographic distance between these parents’ residences.
Legal Rulings (Issue 5)
Challenging the court’s interpretation and application of “statutory and case law[,]” Father argues that it failed to “properly address[] each exception to the Master’s findings, thereby violating precedent . . . in Bagley v. Bagley, 98 Md. App. 18 (1993).” In his view, “the trial court’s ruling merely adopted the Master’s recommendations without explicit findings on the contested issues[,]” which “mirrors the error in Bagley, where . . . the judge failed to demonstrate an independent assessment of the exceptions.”
When a circuit court refers a matter to a magistrate, the magistrate has authority to review evidence and make
recommended findings of fact. See Md. Rule 9-208(b). Either party may challenge the magistrate’s findings by timely filing exceptions in the circuit court. See Dillon v. Miller, 234 Md. App. 309, 317 (2017). “‘[W]hen reviewing a [magistrate’s] report, both a trial court and an appellate court defer to the [magistrate’s] first-level findings (regarding credibility and the like) unless they are clearly erroneous.’” Velasquez, 262 Md. App. at 227 (quoting McAllister v. McAllister, 218 Md. App. 386, 407 (2014)). Generally, factual “findings are ‘not clearly erroneous if there is competent or material evidence in the record’” to support those findings. Azizova, 243 Md. App. at 372 (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)). The magistrate’s factual findings “are to be treated as prima facie correct and are not to be disturbed by the court unless found to be . . . unsupported by substantial evidence in the record” presented to the magistrate. O’Brien v. O’Brien, 367 Md. 547, 554 (2002).
In turn, the “circuit court may be ‘guided’ by the [magistrate’s] recommendation,” but “must make its own independent decision as to the ultimate disposition[.]” McAllister, 218 Md. App. at 407 (citation omitted). This Court will set aside the resulting custody order “only on a clear showing that the trial court abused its discretion.” Gizzo v. Gerstman, 245 Md. App. 168, 201 (2020) (cleaned up). In this context, abuse of discretion occurs “when ‘no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.’” Velasquez, 262 Md. App. at 228 (quoting Das v. Das, 133 Md. App. 1, 15 (2000)).
We do not agree that the court failed to exercise its independent discretion. Here, Father filed written exceptions detailing his objections to the magistrate’s conclusions and recommendations. The circuit court held an exceptions hearing at which Father had a full and fair opportunity to orally argue why the court should reject the magistrate’s findings and recommendations.
During that hearing, Father conceded that he no longer sought sole legal and physical custody. Instead, he acknowledged that “the dynamics have changed” since the Child began going to school, then focused on his opposition to a split-week custody schedule that would make him “just the weekend parent[.]” When the court asked about the distance from his house to the Child’s school if he had custody on schooldays, Father testified that the trip was “almost three hours” but he was willing to make that “sacrifice[.]” He did not address how such a long commute would affect his fouryear-old son, but suggested the Child could attend a school near him.
In its Custody Order, the court expressly stated that it “considered the arguments set forth in the Exceptions filed by” Father, as well as “the transcript of the hearing before the Magistrate, and the arguments presented to the Court on June 24, 2025.” Citing “the physical distance between the parties and the Minor Child’s perceived developmental delay,” the court found “no error of law” in the magistrate’s recommendation and stated that it was “exercising its independent judgment” to reach the same conclusions and result that the split-week custody schedule was in “the best interests of the Minor Child[.]”
Based on this record, we discern no grounds to question that the circuit court exercised its duty to independently consider both the evidence presented to the magistrate and the recommendations made by the magistrate. In particular, during the exceptions hearing and in its Custody Order, the court directly addressed Father’s objection to being “a ‘weekend parent[,]’” his concerns about Mother’s home and financial resources, and his beliefs regarding “outcomes” of single mother households and the lack of documentation supporting Mother’s claims. Having reviewed the entire record – from pleadings, to evidentiary proceedings before the magistrate, to the exceptions hearing in the circuit court – we conclude that the court full and fairly considered the evidence and arguments presented by both parents.
We are not persuaded otherwise by Father’s argument that the court erroneously failed to recognize that he satisfied the two requirements for changing custody, which are that (1) there was a material change in circumstances, and (2) the change serves the best interests of the child. See Velasquez, 262 Md. App. at 246. When deciding whether to revise an existing custody order, the purpose of requiring a material change is “to preserve stability for the child and to prevent relitigation of the same issues” that generated the custody order in effect. See McMahon v. Piazze, 162 Md. App. 588, 596 (2005). Here, where there was no prior court order regarding custody of the Child, there was no need for the court to make findings regarding a material change.
In any event, to the extent that Father’s argument may be read to assert that the Child’s needs and the parties’ circumstances have evolved over the Child’s life, the court expressly considered the family history and current circumstances as part of its custody determination. Based on this record, the court correctly applied the law in predicating its custody decision on the best interests of the Child.
Due
Process (Issues 3 and 4)
In two of his “questions presented” – asking “[w]hether the Court was neutral and unbiased, in the application of case law and [precedent] avoiding favoritism, prejudice, and impropriety” and whether “the Court protect[ed] the rights of all parties [to] ensure equal treatment under the law” – Father suggests that the circuit court was not “neutral” in resolving this custody dispute.
Under Md. Rule 18-102.2(a), judges are required to “perform all duties of judicial office impartially and fairly.” Maryland law establishes a “‘strong presumption’ that judges are impartial participants in the legal process.” Harford Mem’l Hosp., Inc. v. Jones, 264 Md. App. 520, 541 (cleaned up), cert. denied, 490 Md. 640 (2025). “Bald allegations and adverse rulings are not sufficient to overcome this presumption of impartiality.” Id. at 541-42.
Because preservation requirements apply to allegations of judicial bias, any “litigant claiming bias on the part of the trial judge must generally move for relief as soon as the basis for it becomes known and relevant[,]” identifying the objectionable conduct and the relief requested. Id. at 542 (cleaned up). Requiring contemporaneous objection preserves opportunities to ensure an impartial proceeding and
prevents belated allegations of bias from being “weaponized to avoid unfavorable rulings[.]” Id. at 543. For that reason, when reviewing claims of partiality, we ask whether the (1) facts are set forth in reasonable detail sufficient to show the purported bias of the trial judge; (2) the facts in support of the claim [were] made in the presence of opposing counsel and the judge who is the subject of the charges; (3) [the party alleging bias was] ambivalent in setting forth his or her position regarding the charges; and (4) the relief sought [was] stated with particularity and clarity.
Braxton v. Faber, 91 Md. App. 391, 408-09 (1992).
Father does not cite us to a single instance when he objected or otherwise asserted that the magistrate or court was biased against him. For that reason, he did not preserve his due process challenge based on bias. See id.
Even if he had done so, we are not persuaded that Father would be entitled to relief. In custody cases, the “‘court’s objective is not . . . to punish’” a parent, but “to determine what custody arrangement is in the best interest of the minor children[.]” Burdick, 160 Md. App. at 528 (quoting Hughes v. Hughes, 80 Md. App. 216, 231 (1989)). On appeal, we ask “whether a reasonable member of the public knowing all the circumstances would be led to the conclusion that the judge’s impartiality might reasonably be questioned.” Harford Mem’l Hosp., 264 Md. App. at 547 (cleaned up). For claims of bias in evidentiary rulings or the manner in which the court conducted trial, we recognize that such allegations are undermined when those decisions were legally correct and within the scope of the court’s discretion. See id.
Father notably does not identify the type of judicial partiality that has warranted appellate relief based on either inappropriate personal conduct toward counsel, improvident remarks concerning a jury, or potential connections to litigants and witnesses. Cf. Surratt v. Prince George’s Cnty., 320 Md. 439 (1990) (female attorney alleged repeated instances of sexual misconduct by judge); In re Turney, 311 Md. 246 (1987) (judge presided over criminal trial in which former wife’s stepson was implicated); Jefferson-El v. State, 330 Md. 99, 109 (1993) (judge criticized the jury and remarked that acquittal was an “abomination”). Instead, our reading of Father’s complaints is that Father attributes the custody schedule to bias of the magistrate and/or judge, rather than permissible factors pertaining to the Child’s best interest.
Having examined the pleadings, transcripts, recommendation, and Custody Order in context, we are satisfied that neither the magistrate nor the court injected impermissible views or biases into its custody determination. To the contrary, the court explained that a split-week schedule best accommodates the reality that the Child is living in two households that are separated by a two-hour drive. We address Father’s challenge to that decision next.
Custody
Decision (Issues 1, 2, 6, 7)
Father presents a number of issues that, at their core, challenge the court’s ultimate decision to order joint legal and shared physical custody. Specifically, in Father’s view, the court abused its discretion in “modifying the schedule” that he proposed and in addressing “matters” on which “the current parenting plan” that Mother and Father had been operating
under was “silent.” Father complains about the magistrate and court “adopting” certain “recommendations[,]” including provisions in the Custody Order “adopting . . . a rotating IRS tax claimant schedule, establishing a neutral location for custody exchange, [and] establishing mediation guidelines for unresolved or contested medical and or educational concerns.” Most importantly in his view, “a more equitable division of parenting time” – presumably meaning some schedule other than the Monday-Friday/Friday-Monday schedule in the Custody Order – would “directly support[] the child’s emotional well-being[.]”
When determining whether a custody decision was founded “upon sound legal principles” and based upon “factual findings that are not clearly erroneous[,]” this Court recognizes that “[a] n abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.” B.O. v. S.O., 252 Md. App. 486, 502 (2021) (cleaned up). An abuse of discretion occurs only when “‘no reasonable ‘person would take the view adopted by the [circuit] court’” or the court “‘acts without reference to any guiding principles.’” George v. Bimbra, 265 Md. App. 505, 517 (2025) (quoting Alexander v. Alexander, 252 Md. App. 1, 17 (2021)). We are mindful that, in many cases, the evidence could support either the custody decision recommended by the magistrate and made by the circuit court, or “a contrary decision to award custody” under a different arrangement. Gizzo, 245 Md. App. at 200 (cleaned up). For that reason, we do not second-guess a custody determination merely because another judge might have established different terms. See Jose v. Jose, 237 Md. App. 588, 599 (2018).
With respect to the tax schedule, custody exchanges, and mediation guidelines, Father abandoned any such challenges that he had made in his written exceptions when, during the exceptions hearing, he narrowed his objections to the physical custody schedule. After hearing from Mother, Father, and his sisters, and considering the documentary evidence presented by the parties, the circuit court agreed with the magistrate that both parents were loving, fit, and sought the best for their Child. Considering each of the relevant custody factors in light of Father’s exceptions, both the magistrate and the court found that Mother and Father were sincere in their desire for custody, able to reach shared decisions regarding the Child, able to provide a safe and stable home for the Child, and able to meet his developmental and financial needs.
In these circumstances, we conclude that the circuit court did not abuse its discretion in agreeing with the magistrate’s assessment that is in the Child’s best interest for these parents to share joint legal custody. Although courts consider a variety of factors when deciding whether joint legal custody is appropriate, the “most important factor” is always “the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.” Santo, 448 Md. at 628 (cleaned up). On this crucial factor, “the best evidence” is ordinarily “the past conduct or ‘track record’ of the parties.” Taylor, 306 Md. at 307.
Here, the record shows that these parents can communicate and come to shared decisions affecting the Child’s welfare, including medical and educational decisions. Indeed, they managed his care without any judicial intervention for the first three years of his life. Once they resolved their disagreement
over events surrounding Father’s departure from the hospital while Mother was in labor, both parents corresponded and agreed about the Child’s care, health, and educational needs. Likewise, both parents participated in health care provider visits and otherwise met the Child’s health, housing, and emotional needs. Even during the course of this custody litigation, they continued to collaborate on custody, for example by accommodating Father’s probationary work schedule and adjusting to other variables.
Moreover, Father conceded that joint legal and shared physical custody was appropriate. By the time of the hearing in April 2025, the Child had been diagnosed with a speech delay, for which he had been offered IEP services at a public school, in a program that started the following week. At the exceptions hearing in July 2025, the Child had progressed while attending that program and was enrolled in pre-K at the same school for the fall.
Under these circumstances, the court did not abuse its discretion in concluding that prior disputes over daycare issues had evolved and resolved as a result of the Child receiving services for a speech delay at the school near Mother. The court did not err or abuse its discretion in concluding there was no insurmountable obstacle to shared decisionmaking under an order establishing joint legal custody. Both parents have been fit, loving, involved, and willing to make such decisions. Given their track record, the court commended them for putting aside their differences with each other for the benefit of the Child. See Santo, 448 Md. at 628. In turn, based on this record, the court did not abuse its discretion in determining that joint legal custody is in the Child’s best interests.
With respect to shared physical custody, the court adopted the magistrate’s recommendation to continue splitting
custody on a schedule like the one under which the parents had been operating since the Child began attending school, with Father picking up the Child on Friday afternoons and delivering him to his daycare or school on Monday mornings, and Mother picking up the Child on Mondays and delivering him to his daycare or school on Fridays. Father contends that “a more equitable division of parenting time directly supports the child’s emotional well-being” so that “[t]he trial court’s failure to acknowledge these developments constituted a misapplication of law and an abuse of discretion.” We disagree.
The court cited two relevant custody factors – the Child’s developmental needs and the distance between the parents’ residences – as grounds for its custody decision. Under this shared custody schedule, the Child spends significant time periods with each parent during each week, creating a stable schedule that allows this four-year-old with a speech delay to attend a neighborhood public school where he receives appropriate services under his IEP, while living with each parent during at least four days of every week. Although Father objected that this schedule makes him “a weekend dad,” his Friday afternoon through Monday morning custody period affords him opportunities to spend time with the Child outside of the work, school/daycare, and other weekday activities that limit Mother’s time with the Child during her custody period from Monday afternoon through Friday morning. Given that each parent has a consistent and substantial period of time with the Child, while the Child is able to reach his school in minutes on schooldays, the court did not abuse its discretion in ordering shared physical custody on the split-week schedule set forth in the Custody Order.
THE CUSTODY ORDER OF JULY 25, 2025, BY THE CIRCUIT COURT FOR BALTIMORE COUNTY, IS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 To preserve the parties’ privacy, we will use their initials and family relationships.
2 Father, as a self-represented appellant in this family law appeal, elected to file an informal brief, as permitted by Md. Rule 8-502(a)(9) and this Court’s Administrative Order dated December 19, 2022. Mother did not file a brief in this Court.
3 In written orders and opinions, Maryland courts sometimes remove non-substantive material, such as brackets and quotation marks, from quotations to improve readability. The phrase “cleaned up” is a signal to the reader that this has occurred. See Lamalfa v. Hearn, 457 Md. 350, 373 n.5 (2018).
4 Because neither party presented evidence to support an award of child support under the statutory guidelines, the magistrate did not make a recommendation regarding child support.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 4 (2026)
Prenuptial agreement, unfair and inequitable, freely and understandingly
The Appellate Court affirmed the Montgomery County Circuit Court’s invalidation of the parties’ “Partnership and Prenuptial Agreement.” The trial court did not err in determining that the terms of the prenuptial agreement were unfair and inequitable and that the agreement was not entered freely and understandingly, and thus constituted overreaching.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
law in Argentina, Spain, New York, and Washington, D.C. Mr. Fleisig was an economist at the World Bank, but retired in 1995.
On December 28, 1993, the parties entered into the 1993 Prenuptial Agreement, which was drafted by Ms. de la Peña, as she was an attorney.2 Per the 1993 Prenuptial Agreement, the parties “plan[ned] on getting legally married and having a child.” The agreement, in pertinent part, read:
[. . .] The parties have fully disclosed and reviewed all their assets and debts, and each consulted with their respective accountants and lawyers.
[. . .] The parties further agree to separate, and community or joint property. Assets designated as one person’s separate property including assets traceable to separate property belongs exclusively to that person with the right to manage or dispose of it. Separate property is not subject to division. Any assets designated as community or joint property belongs to both of us equally with equal rights to manage it.
This appeal arises from a Judgment of Absolute Divorce entered on August 13, 2024, granting Appellee, Heywood Williams Fleisig (“Mr. Fleisig”), an absolute divorce from Appellant, Nuria de la Peña (“Ms. de la Peña”), and an order entered on August 30, 2023, invalidating the parties’ “Partnership and Prenuptial Agreement” dated December 28, 1993 (“1993 Prenuptial Agreement”) by the Circuit Court for Montgomery County.
I. Questions Presented
Ms. de la Peña appealed to this Court and presents the following questions for our review, which we have condensed and rephrased for clarity:1
1) Did the trial court err in invalidating the 1993 Prenuptial Agreement?
2) Did the trial court err in limiting Ms. de la Peña’s relief to that of a limited divorce?
3) Did the trial court err in its distribution of marital property and denial of a monetary award?
For the reasons stated herein, we conclude that the trial court did not err and thus we affirm the judgments of the Circuit Court for Montgomery County.
II. Factual & Procedural Background
Ms. de la Peña and Mr. Fleisig began dating in 1992 when Ms. de la Peña was 26 years of age and Mr. Fleisig was 52 years of age. Ms. de la Peña was an attorney, admitted to practice
The parties agree to maintain the following assets as separate property whether acquired before or after this agreement during their partnership or marriage:
[. . .]
Nuria de la Peña: [. . .] The ownership rights in, and disposition of, the death benefit of life insurance policies of [Mr. Fleisig] established for, or that at any time have designated, [Ms. de la Peña] as beneficiary shall be deemed [Ms. de la Peña’s] separate property.
Spousal rights to pension benefits. [. . .]
[Ms. de la Peña] further agrees to buy the property 5353 29th [Street NW, Washington, D.C.,] from [Mr. Fleisig] and to lend 10% of the purchase price ($42,500) to [Mr. Fleisig] at the annual interest rate of 8% due in thirty years from the purchase date.
[. . .]
Community or joint property: The parties agree that all other personal or real property or assets owned jointly or separately, whenever acquired, including property acquired before this date, will be held as community, joint, joint tenants, or marital assets in the event of legal marriage, regardless on whose title it is held. These include and is [sic] not limited to retirement accounts, bank accounts, income, benefits, or service before or after this
agreement. It also includes retirement benefits in pension, annuities and other employee benefits or tax deferred plans contributed or earned before or after this agreement.
In anticipation of having a child and in how the interruption of [Ms. de la Peña’s] career will affect her earnings to raise a child, in the event of dissolution of partnership or marriage, legal separation or divorce, [Mr. Fleisig] agrees that [Ms. de la Peña] shall have the property where they live free of debt, and half of the community or joint assets. Alimony rights to maintain the standard of living to which she was accustomed and spousal rights to benefits are not waived. [Mr. Fleisig] shall have the equity proceeds from the sale of [Ms. de la Peña’s] property at 5353 29th [Street NW, Washington, D.C.,] and the other half of community or joint assets. Each party shall have their separate property listed above, which shall be confirmed to each absolutely.
[. . .]
Interpretation and severability: This agreement is drafted and entered in the District of Columbia. It shall be interpreted and enforced according to the laws of the District of Columbia. [. . .] If any part is determined invalid, the validity and enforceability of the remaining parts shall not be affected. If any dispute arises between us concerning this agreement, we will first try to resolve the dispute in mediation.
Each of us has read this agreement carefully and sign it freely after ample time for obtaining all advice each considers appropriate.
The parties were married on January 1, 2000 in California, and one child was born of the marriage on June 16, 2000.3 On or about December 5, 2021, the parties separated. On June 7, 2022, Ms. de la Peña filed a Complaint for Limited Divorce from Mr. Fleisig. Mr. Fleisig filed a Counter-Complaint for Absolute Divorce on December 6, 2022. On December 23, 2022, Ms. de la Peña filed an answer to Mr. Fleisig’s counterclaim. Mr. Fleisig filed an Amended Counter-Complaint for Absolute Divorce and a motion to “bifurcate the issues related to the validity of certain [prenuptial] agreements” on February 7, 2023.
In her Complaint, Ms. de la Peña sought a limited divorce, permanent alimony, a monetary award, 50% of Mr. Fleisig’s pension income “as agreed upon in the [parties’] prenuptial agreement[,]” use and possession of the family home, and attorney’s fees. Ms. de la Peña asked the court to determine marital and non-marital property as well as each party’s interest in the marital property and to distribute the marital property as such. In addition, Ms. de la Peña requested the court to order “that [she] be maintained as the surviving spouse beneficiary of [Mr. Fleisig’s] pension with the United States Office of Personnel Management[,]” and “that [she] be maintained as the surviving spouse beneficiary for [Mr. Fleisig’s] life insurance policies and [Individual Retirement Arrangement (“IRA”)] and/or reinstated as the surviving spouse beneficiary if necessary.” Lastly, Ms. de la Peña sought
“such other and further relief in favor of [Ms. de la Peña] as this [c]ourt deems just and proper.”
In Mr. Fleisig’s Amended Complaint, he alleged that “[p] rior to the marriage, the parties entered into a Prenuptial Agreement, executed on June 25, 1999” (“1999 Prenuptial Agreement”), which provided for “the division of assets and pension rights as stated therein and further provide[d] for the waiver of alimony and counsel fees incident to a divorce.” Mr. Fleisig sought an absolute divorce, based on the parties’ separation in excess of 12 months, and a declaratory judgment to set aside the 1993 Prenuptial Agreement and to have that agreement declared invalid and unenforceable. Additionally, Mr. Fleisig requested that the court enforce the 1999 Prenuptial Agreement, that the family home and all jointly owned property be sold and proceeds be divided pursuant to the 1999 Prenuptial Agreement,4 that all pensions earned by him prior to and after the marriage be determined as his sole and separate property,5 that neither party be awarded alimony or counsel fees, that the court determine which property is marital and its value, that the court grant him a monetary award, and that the court order “such other and further relief as may be equitable.”
A. The Partnership and Prenuptial Agreement of 1993
In support of his request for a declaratory judgment, Mr. Fleisig claimed that, at the time of the 1993 Prenuptial Agreement’s execution, he and Ms. de la Peña were in a confidential relationship, Ms. de la Peña was providing him with legal and business advice, Ms. de la Peña was a licensed attorney in Washington, D.C., New York, Spain, and Argentina, Ms. de la Peña prepared the agreement without giving him the opportunity to negotiate or modify it, Ms. de la Peña was aware that he relied on and trusted her legal advice and thus he did not have legal counsel with respect to the agreement, Ms. de la Peña did not provide any financial disclosure of assets, worth, or income prior to the agreement’s execution, that the terms and method of execution of the agreement are overreaching and unconscionable, and that Ms. de la Peña exerted undue influence over him causing him to enter into the agreement.
Pursuant to Mr. Fleisig’s motion to bifurcate, a hearing was held on June 16, 2023 and following written arguments submitted by the parties, the court issued a memorandum opinion and order invalidating both the 1993 and 1999 Prenuptial Agreements.6 As for the 1993 Prenuptial Agreement, the court found that Ms. de la Peña, an attorney, drafted the agreement and that there was no evidence that the terms of the agreement were negotiated by Mr. Fleisig. The court believed Mr. Fleisig’s testimony that “he did not think he needed to get an attorney because [Ms. de la Peña] is an attorney, she had financial acumen, and he loved her.”
The court further agreed with Mr. Fleisig that the terms of the 1993 Prenuptial Agreement were contradictory.7 The agreement refers to “[s]pousal rights to pension benefits” in the “separate property” section of the agreement, however, the court found that “there is no corresponding language to indicate what the references mean because the preceding and succeeding paragraphs address different and unrelated subject matters.” The court also found that, from the section
on “[c]ommunity and joint property,” Ms. de la Peña “intended that she would share in [Mr. Fleisig’s] pension, which, given his age, was not that far away.” The court concluded that “[t]his contradiction casts doubt on whether [Mr. Fleisig] actually understood what rights he was signing away.”
The court found that, while the agreement listed some of the assets of the parties, the agreement did not include all assets of the parties. Moreover, the assets that were listed did not include values. For example, Ms. de la Peña listed her assets as real estate in Argentina and a Honda Accord vehicle, while failing to include assets such as bank accounts. The court explained that such omission is not fatal to the validity of the agreement, but it is considered when determining whether the agreement is overreaching.
As for the fairness of the agreement or whether it was overreaching, the court found that “the benefit to [Mr. Fleisig] was not commensurate with that which he relinquished, and he did not understand the Agreement. Therefore, the Agreement was not fair when it was made.” The court explained that Mr. Fleisig’s “World Bank pension was earned and was in pay status, with the vast majority of it being earned prior to the Agreement[,]” and that Mr. Fleisig also had “accrued a pension from the Federal government for his service prior to 1980.” Per the agreement, Ms. de la Peña “would be entitled to share in the pensions as if they were jointly owned, precluding the Court from considering what if any portion constituted marital property.”
The court concluded that:
Given the inconsistencies in the 1993 Agreement, the Court finds [Mr. Fleisig’s] testimony credible that he did not understand the Agreement and relied on [Ms. de la Peña]. The Court, therefore, finds that the terms of the 1993 Agreement demonstrate overreaching. Accordingly, the Court concludes that the 1993 Agreement is not valid.
Thereafter, Ms. de la Peña moved for reconsideration of the validity of the 1993 Prenuptial Agreement on September 25, 2023, which was denied. On November 22, 2023, Ms. de la Peña filed an interlocutory appeal with this Court, which was dismissed.8
B. Divorce Proceedings: May 13–14, 2024
A trial on the merits for divorce was held on May 13 and 14, 2024. At the close of Ms. de la Peña’s case, Mr. Fleisig moved for judgment “arguing that because [Ms. de la Peña] did not file for an absolute divorce and never amended her complaint, her only remedy was for a limited divorce and [alimony].” The court deferred its ruling and, at the conclusion of trial, ordered the parties to submit written arguments. In its Memorandum Opinion and Judgment of Absolute Divorce, entered on August 13, 2024, the court granted Mr. Fleisig’s motion for judgment.
In granting the motion for judgment, the court found that Mr. Fleisig alerted Ms. de la Peña to the fact that “the court did not have jurisdiction to determine the marital property and monetary award issues in the context of a limited divorce pleading” in his Answer to Plaintiff’s Complaint. However, after almost two years of the case’s pendency, Ms. de la Peña never filed an amended pleading. Moreover, the court
found that while Ms. de la Peña listed several requests in her complaint, she “never made a request for a monetary award or property transfer that was not entirely predicated and contingent on her request for a limited divorce.” (emphasis added). As such, the court concluded that Ms. de la Peña was “not entitled to a transfer of property or a monetary award pursuant to a request for a limited divorce[,]” and that her “claims for a monetary award or any interest in [Mr. Fleisig’s] assets, to the extent not required as a result of [Mr. Fleisig’s] pleadings, [were] not properly before this Court and are, therefore, DENIED.”
The court determined the marital property of the parties pursuant to Mr. Fleisig’s request in his Amended CounterComplaint. The parties agreed that the family home, the Acura vehicle driven by Ms. de la Peña, the Toyota driven by Mr. Fleisig, and Ms. de la Peña’s Roth IRA account with a balance of $22,000, were marital property. With respect to the family home, Ms. de la Peña claimed that “the equity in the marital home was solely contributed from the equity she received from the sale of a house that she owned in Washington, D.C.,” and that “this amount exceed[ed] the estimated equity after the sale of the home,” and therefore, she requested that “all proceeds from the sale of the marital home be awarded to her[.]” However, the court noted that Ms. de la Peña did not produce any evidence to support this argument and found, therefore, that Ms. de la Peña did not meet her burden. As a result, the court concluded that “the entire house [was] marital property, the proceeds from the sale of which, shall be divided equally between the parties.”
The parties disputed the marital status of Mr. Fleisig’s two retirement pensions,9 Mr. Fleisig’s IRA,10 and Mr. Fleisig’s Federal Employees’ Group Life Insurance (“FEGLI”) policy. With respect to Mr. Fleisig’s retirement annuity with the World Bank, the court found that it was “earned and in pay status prior to the parties’ marriage” and therefore, “is fully non-marital.” For Mr. Fleisig’s federal retirement annuity, the court found that that “vast majority of this annuity was earned prior to the parties’ marriage[,]” with “2,761 days of service prior to the parties’ marriage and 959 days of service after the parties’ marriage.” As a result, the court found that 74.22% of Mr. Fleisig’s federal retirement annuity was nonmarital and 25.78% was marital. With a monthly payment of $2,656, the “marital portion of the monthly annuity payment at that time would therefore be $684.71.”11
The court credited Mr. Fleisig’s testimony that his IRA was “funded from his Cornell pension and his Federal [Thrift Savings Plan (“TSP”),] which were earned before the marriage.” The court further noted that Ms. de la Peña did not present any evidence that Mr. Fleisig’s IRA was marital. In regard to the FEGLI policy, Ms. de la Peña sought an order requiring Mr. Fleisig to maintain this policy and to name Ms. de la Peña as the sole beneficiary of the death benefit. The court found that Ms. de la Peña failed to present “evidence at trial of the nature of the FEGLI policy, the benefits thereunder, the policy’s value, or the marital nature of the policy, if any.” Moreover, the court concluded that it did not have jurisdiction to require Mr. Fleisig to “continue to maintain his life insurance policy for the benefit of [Ms. de la Peña.]” 12
As previously indicated, the court found that Ms. de la Peña was not entitled to a transfer of property or a monetary award. However, the court noted that, even if properly pled, it would not be inclined to grant Ms. de la Peña a monetary award because:
1) [Mr. Fleisig] does not have a significantly higher percentage of the marital assets title[d] solely in his name; 2) [Mr. Fleisig] receives $12,708.56 gross monthly from his pensions; 3) The Court has awarded [Ms. de la Peña] $3,500.00 monthly in alimony; 4) [Ms. de la Peña] has been awarded $25,000.00 in attorney’s fees; and 5) [Mr. Fleisig] has substantial debt.
In conclusion, the court granted Mr. Fleisig an absolute divorce from Ms. de la Peña on the ground of separation in excess of 12 months, and ordered that the marital home and marital property within the home be sold and the net proceeds equally divided between the parties. Each parties’ clothing, personal papers, effects, and vehicles were awarded to them respectively. Ms. de la Peña was awarded indefinite alimony in the amount of $3,500 per month, 50% of the marital portion of Mr. Fleisig’s federal retirement annuity, and $25,000 for attorney’s fees.13 Mr. Fleisig was awarded his remaining pensions and IRA as his sole and separate property. Ms. de la Peña’s request for a monetary award was denied.
Ms. de la Peña moved for a new trial on August 23, 2024 and filed an appeal with this Court on September 12, 2024. On November 7, 2024, the circuit court denied Ms. de la Peña’s motion for new trial.
Additional facts will be included in the discussion as they become relevant.
III. Discussion
We conclude that the trial court did not err in its decision to invalidate the 1993 Prenuptial Agreement and to not enforce it during the divorce proceedings. While we conclude that the trial court erred in finding that Ms. de la Peña was limited to the relief of a limited divorce, we also conclude that the trial court did not err overall in its Judgment of Absolute Divorce. The trial court considered Ms. de la Peña for all relief available under an absolute divorce and distributed the marital property equitably, assessed the monetary award factors, found that such monetary award was not required to adjust the equities of the parties, and ordered indefinite alimony and attorney’s fees to Ms. de la Peña. We further conclude that the trial court did not err in its distribution of the marital property and did not abuse its discretion in denying Mr. de la Peña’s request for a monetary award.
A. Validity of the 1993 Prenuptial Agreement
A prenuptial or premarital agreement is a legal contract “entered prior to marriage and executed in contemplation of marriage[,]” for the purpose of preserving “the property of one spouse [or both spouses], thereby preventing the other from obtaining that to which he or she might otherwise be legally entitled.” 12 M.L.E. Husband and Wife § 25, Westlaw (database updated November 2025). As legal contracts, prenuptial agreements are “interpreted according to the objective theory of contracts and subject to traditional
contract defenses, such as fraud, duress, coercion, mistake, undue influence, incompetency, or unconscionability at the time the agreement was entered into.” McGeehan v. McGeehan, 455 Md. 268, 294 (2017) (citing Cynthia Callahan & Thomas Ries, Fader’s Maryland Family Law §§ 14–1, 14–2(b) (6th ed. 2016) [hereinafter Fader’s Maryland Family Law]). However, prenuptial agreements presume that “a confidential relationship exists, as a matter of law, between the parties at the formation of the [prenuptial] agreement[.]” Cannon v. Cannon, 384 Md. 537, 543 (2005). This presumption can be rebutted “[i]f the party seeking enforcement can prove that a negotiation took place between the parties—an actual give and take occurrence, then a court properly may treat the contested agreement as a contract between equals.” Id. at 572. As a consequence of the confidential relationship, the burden of proving the validity of a prenuptial agreement shifts to the party seeking to enforce the agreement. Id. at 555. Whereas in a generic contract dispute, when the parties are not in a confidential relationship, the party seeking to invalidate the contract bears the burden of proving the contract’s invalidity. Id. at 554–55. Secondly, as a result of the confidential relationship, the parties to a prenuptial agreement are each required “to make a frank, full, and truthful disclosure of their respective worth in real as well as personal property.” Id. at 555–56 (quoting Levy v. Sherman, 185 Md. 63, 73 (1945)). Full disclosure is required “so that he or she who waives [their rights to such property] can know what it is he or she is waiving.” Id. at 559 (quoting Hartz v. Hartz, 248 Md. 47, 56–57 (1967)). “There is no gender consideration involved, [. . .] because the parties are required to make mutual disclosures prior to entering the [prenuptial] agreement.” Cannon, 384 Md. at 571. However, “the disclosure need not be a drastically sweeping one and the [spouse] need not know the [other spouse’s] exact means so long as [they have] a general idea of [the other’s] property and resources.” Harbom v. Harbom, 134 Md. App. 430, 449 (2000).
In determining the validity of a prenuptial agreement, the “real test” is whether there was “overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or in its procurement.” Id. at 559 (quoting Hartz, 248 Md. at 57). Thus, the party seeking to enforce the agreement must prove the absence of overreaching, which may be established by showing that there was full disclosure of the parties’ assets. McGeehan, 455 Md. at 294; see also Cannon, 384 Md. at 573 (“One way (and perhaps the gold standard) a party seeking to enforce an agreement may meet its burden, [. . .] is if it documents a full, frank, and truthful disclosure of his or her assets and their worth before the [prenuptial] agreement is signed.”). If there is an inadequate disclosure of assets, proof that the party challenging the agreement had “adequate knowledge of the existence of the assets subject to the waiver and knowledge of what those assets are worth in sum[,]” will suffice. McGeehan, 455 Md. at 294 (citation omitted). However, “failure to disclose or lack of precise knowledge will not necessarily be fatal to the validity of the [prenuptial] agreement[,]” as there are alternatives to prove an agreement’s validity. Cannon, 384 Md. at 568 (quoting Hartz, 248 Md. at 58).
A prenuptial agreement’s validity may be proven if the lack of disclosure or knowledge was not prejudicial to the party challenging the agreement. McGeehan, 455 Md. at 294; see also Harbom, 134 Md. App. at 450 (quoting Hartz, 248 Md. at 58) (“For the basic issue is overreaching, not the absence of disclosure. If the intended [spouse] is not prejudiced by the lack of information, [they] may not repudiate.”). The lack of prejudice may be proven by showing that the “benefit to the waiving party was commensurate with what he or she relinquished such that the agreement was fair and equitable[,]” or by proving that “the party attacking the agreement entered into the agreement freely and understandingly.” Id. at 294–95 (quoting Fader’s Maryland Family Law, supra, at § 14-2(b)).
Our Court reiterated this “two-pronged test” in Stewart v. Stewart, explaining:
[The] two-pronged test, derived from the definition of “overreaching” itself, [is] a test which requires the court to ask, first, “was the benefit to [the party attacking the agreement] commensurate with that which she [or he] relinquished so that the agreement was fair and equitable under the circumstances,” and, second, “did the subsequent would-be repudiator of the contract enter into the agreement freely and understandingly.” [Hartz, 248 Md. at 57–58; accord Cannon, 384 Md. at 568–69.] As the first prong of this “overreaching” test addresses the substantive fairness of the prenuptial agreement, while the second prong addresses the manner in which the repudiating party’s assent to that agreement was obtained, we shall refer to the first of the two prongs as the “substantive prong” and the second as the “procedural prong.”
214 Md. App. 458, 470 (2013).
In regard to the “substantive prong,” the party seeking to enforce the prenuptial agreement must prove that the agreement was not unfairly disproportionate to the challenging party at the time the agreement was executed. See Cannon, 384 Md. at 574. “For example, [a prenuptial] agreement that provides valuable consideration (other than marriage itself) in exchange for a waiver, or where the parties agree to a mutual waiver of the marital rights, is more likely not to be found unfairly disproportionate.” Id.
If the terms of the agreement are unfairly disproportionate to the challenging party, the party seeking to enforce the agreement must prove that “overreaching” did not occur in the execution of the agreement, which brings us to the “procedural prong.” See id. For the procedural prong, trial courts may consider factors such as “the extent of the disclosure (if any), whether the attacking party had the opportunity to seek legal advice before signing the agreement, and whether the attacking party voluntarily and knowingly relinquished his or her rights.” Id. The court may also consider who drafted the agreement. See id. at 572–73 (“[E]vidence as to who drafted the agreement is considered more properly in analysis of an argument under the overreaching standard.”).
Other factors the court may consider for either prong include: he situation of the parties, their ages, their respective holdings and income, their respective
family obligations or ties, the circumstances leading to the execution of the agreement, the actions of husband and wife after the marriage as they tended to show whether the agreement was voluntarily and understandingly made, the needs of him or her who made relinquishment, including whether or not that one, after the death of the other, can live substantially as comfortably as before the marriage.
Harbom, 134 Md. App. at 443.
If it is proven that there is no overreaching, the burden shifts and the party challenging the agreement “must resort to other common law contract defenses to attack the validity of the [prenuptial] agreement[,]” such as “fraud, duress, coercion, mistake, undue influence, or incompetence on the part of a party.” Id. at 574–75. However, these defenses will likely be considered during the overreaching analysis. Id. at 575. Moreover, an otherwise valid prenuptial agreement may be challenged on the basis that it is unconscionable. Id. at 562 (citing Martin v. Farber, 68 Md. App. 137, 143–45 (1986)). Unconscionability must be measured at the time the agreement was entered. Stewart, 214 Md. App. at 478; see also Cannon, 384 Md. at 575 (“[T]he doctrine of unconscionability remains a viable alternative, if the unconscionable condition can be proven to have existed at the time the agreement was entered.”). An agreement is unconscionable if it is “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Martin, 68 Md. App. at 144 (citations omitted). Proving that a prenuptial agreement is unconscionable “requires a greater showing of inappropriateness [. . .] than it does to show that it is invalid under the fair and reasonable” or overreaching test. Stewart, 214 Md. App. at 478 (internal quotation marks and citations omitted). Therefore, if an agreement is not overreaching, the court “may conclude, on that ground alone, that the parties’ prenuptial agreement [is] not unconscionable.” Id.
In sum, the parties entering into a prenuptial agreement are presumed to be in a confidential relationship, and as such, the party seeking to enforce the agreement has the burden of proving the agreement is valid. See McGeehan, 455 Md. at 294. The validity of a prenuptial agreement rests on whether there was overreaching in the agreement itself—whether the agreement terms are fair and equitable (the substantive prong)—or in its execution—whether the agreement was entered freely and understandingly (the procedural prong). See Stewart, 214 Md. App. at 470. If the terms of the agreement are unfair or unequitable, the party seeking to enforce the agreement must prove that the agreement was entered freely and understandingly. See Cannon, 384 Md. at 573–74. The enforcing party may prove that the agreement was entered freely and understandingly by showing that there was a full disclosure of each parties’ assets and their worth, or that there was adequate knowledge of the same. See McGeehan, 455 Md. at 294. If the enforcing party proves that no overreaching occurred, the party challenging the agreement may assert common law contract defenses—fraud, duress, coercion, mistake, undue influence, incompetence—or that the agreement is unconscionable. See Cannon, 384 Md. at 575.
1. Standard of Review
We review the circuit court’s decision to invalidate the 1993 Prenuptial Agreement according to Maryland Rule 8-131(c), which states:
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
Md. Rule 8-131(c). As such, we review the circuit court’s factual findings under the clearly erroneous standard. See Stewart, 214 Md. App. at 475; see also Cannon, 384 Md. at 545. “A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App. 620, 628 (1996). Moreover, we review such evidence in the light most favorable to the party that prevailed below. Id. One the other hand, the circuit court’s legal conclusions are reviewed de novo without deference. Nouri v. Dadgar, 245 Md. App. 324, 343 (2020).
In reviewing a circuit court’s decision on the validity of a prenuptial agreement, we have previously explained: This Court cannot substitute its judgment for that of the chancellor as the trier of fact. Our scope of review is limited to whether those findings are clearly erroneous in light of all the evidence. We must accept the truth of all the evidence and all favorable inferences fairly deducible therefrom to support the factual conclusion reached by the chancellor.
Blum v. Blum, 59 Md. App. 584, 597 (1984); see also Hale v. Hale, 74 Md. App. 555, 564 (1988) (affirming the trial court’s finding that there was undue influence upon the wife in signing the agreement and that the marital separation agreement was unconscionable, thus rescinding the agreement).
2. Analysis
Ms. de la Peña asserts that the trial court erred in invalidating the 1993 Prenuptial Agreement, because: with respect to the agreement, there was an absence of an unfair, unjust, or clearly one-sided result; the trial court failed to consider performance of the agreement thereafter; the trial court incorrectly determined that she was the dominant party rather than Mr. Fleisig in executing the agreement; Mr. Fleisig had access to seek counsel to advise him on the agreement, although he failed to do so; the trial court incorrectly found that Mr. Fleisig did not have adequate knowledge of the agreement’s terms and the parties’ assets; the trial court failed to apply the laws of Washington, D.C., as stipulated in the agreement; and the trial court incorrectly found that the agreement contained contradictions and inconsistencies. Furthermore, Ms. de la Peña argues that the trial court erred in failing to sever valid provisions of the 1993 Prenuptial Agreement regarding the surviving spouse annuity of the Civil Service Retirement System (“CSRS”), the life insurance policies, the family home, and retirement accounts. As such, Ms. de la Peña requests that this Court reverse the circuit
court and remand the case, order the circuit court to validate and enforce the 1993 Prenuptial Agreement, or alternatively order the circuit court to sever the provisions regarding federal and pension benefits, life insurance policies, the family home, and retirement accounts.
Mr. Fleisig counters that the trial court properly held that the 1993 Prenuptial Agreement was invalid, because: the preparation and execution of the agreement was overreaching; the terms of the agreement are contradictory and confusing; Ms. de la Peña did not present evidence of any financial disclosure prior to the agreement’s execution; Ms. de la Peña’s interpretation of the agreement is overreaching; and the trial court properly applied Maryland law. In addition, Mr. Fleisig argues that the trial court did not err in failing to sever certain provisions of the 1993 Prenuptial Agreement, because there is no legal basis for the court to sever the provisions of the agreement as Ms. de la Peña has requested. Therefore, Mr. Fleisig requests that this Court affirm the circuit court’s judgment.
We conclude that the trial court did not err in determining that the terms of the 1993 Prenuptial Agreement were unfair and inequitable. Nor did the trial court err in finding that the agreement was not entered freely and understandingly, and thus overreaching. Consequently, the trial court did not err in invalidating the 1993 Prenuptial Agreement and not enforcing it during the divorce proceedings. Moreover, we conclude that the trial court did not err in failing to sever the provisions of the agreement.
I. Substantive Prong: Whether the 1993 Prenuptial Agreement Terms are Fair and Equitable
In reviewing whether the 1993 Prenuptial Agreement was overreaching and therefore invalid, we first assess the substantive prong—whether the agreement terms are fair and equitable. The fairness or reasonableness of the prenuptial agreement must be determined as of the time of its execution, rather than at the time the agreement is challenged. See Martin, 68 Md. App. at 137 (reversing the trial court’s decision to invalidate the prenuptial agreement, which was based on unfair circumstances arising after the execution of the agreement). Ms. de la Peña argues that the trial court failed to consider performance of the agreement after its execution, however, circumstances arising thereafter do not determine whether the agreement was overreaching at the start in its terms or execution. See id. The circuit court found that “the benefit to [Mr. Fleisig] was not commensurate with that which he relinquished,” at the time the agreement was entered, particularly as it related to Mr. Fleisig’s pensions, and therefore, the agreement was “not fair when it was made.”
By the time the 1993 Prenuptial Agreement was executed, the vast majority of Mr. Fleisig’s pensions—World Bank pension and federal pension—were already earned. Mr. Fleisig had accrued a federal pension for his service in the Federal government prior to 1980, when he then began working at the World Bank, 13 years before the execution of the prenuptial agreement. Moreover, at the time the parties entered the 1993 Prenuptial Agreement, Ms. de la Peña was approximately 26–27 years of age and Mr. Fleisig, 53 years of age. The circuit court noted that Ms. de la Peña “intended that
she would share in [Mr. Fleisig’s] pension, which, given his age, was not that far away.” Pursuant to the 1993 Prenuptial Agreement, pensions earned “before or after” the agreement were designated as “community or joint property.” In the event of separation or divorce, each party was entitled to “half of the community or joint assets.” As the circuit court indicated in its ruling, such agreement precludes “the Court from considering what if any portion constituted marital property.”
Per the 1993 Prenuptial Agreement, Ms. de la Peña would be entitled to half of Mr. Fleisig’s pension, of which the vast majority had been earned prior to the agreement in 1993 or their marriage in 2000. Ms. de la Peña would be entitled to a portion of Mr. Fleisig’s pension that would not be considered marital property under Maryland law;14 a portion that Ms. de la Peña would not typically be entitled to.15 Although it is true that Ms. Fleisig would be entitled to half of Ms. de la Peña’s pension or retirement earned before the 1993 Prenuptial Agreement or marriage, at the time of the agreement Ms. de la Peña was approximately 26–27 years of age, with likely much less retirement or pension earned. As such, the terms of the 1993 Prenuptial Agreement in relation to retirement or pension accounts were not fair and equitable.
Furthermore, the 1993 Prenuptial Agreement entitled Ms. de la Peña to “the property where they live free of debt”16 and “[a]limony rights to maintain the standard of living to which she was accustomed and spousal rights to benefits[,]” in the event of separation or divorce, while Mr. Fleisig was entitled to “the equity proceeds from the sale of [Ms. de la Peña’s] property at 5353 29th [Street NW,] Washington[, D.C.]” Counsel for Mr. Fleisig summed up the inequity of the 1993 Prenuptial Agreement in his opening statement during the hearing on the validity of the prenuptial agreements: per the agreement, Ms. de la Peña was “entitle[d] to [Mr. Fleisig’s] retirement assets that were in pay status for a job that he no longer had at the time of the marriage and [. . .] 50 percent of the premarital retirement accounts[;] [Mr. Fleisig] was going to give [Ms. de la Peña] a house [and] pay the mortgage[.]” In exchange for giving Ms. de la Peña a house, free of debt, and possible indefinite alimony,17 Mr. Fleisig was entitled to the equity proceeds from the sale of Ms. de la Peña’s 5353 29th Street property.
Moreover, the circuit court found contradictory the terms of the agreement in relation to the 5353 29th Street property, indicating it was unclear whether the $42,500 loan was already made or only planned to be made to Mr. Fleisig in relation to Ms. de la Peña purchasing the property. First, the 1993 Prenuptial Agreement states that Mr. Fleisig “agrees that he owes [Ms. de la Peña] $42,500, representing 10% of the purchase price of the property 5353 29th [Street NW, Washington, D.C.,]” but later the agreement indicates that Ms. de la Peña “further agrees to buy the property [. . .] and to lend 10% of the purchase price ($42,500)” to Mr. Fleisig. Therefore, it is unclear whether the benefit to Mr. Fleisig—the equity proceeds from the sale of Ms. de la Peña’s property at 5353 29th Street NW, Washington, D.C.—were commensurate with that which he relinquished—a house, free of debt, and possible indefinite alimony to Ms. de la Peña.
In Williams v. Williams, 306 Md. 332 (1986), the trial court
found that the terms of a marital separation agreement were unconscionable,18 striking the agreement. Id. at 334. The separation agreement in question was prepared by the wife’s attorney and signed by the husband without any negotiation of the terms or the advice of an attorney. Id. at 333, 341. The agreement required the husband to convey to the wife the marital home, the contents of the home, and a 1982 Thunderbird motor vehicle, while also requiring the husband to pay the mortgage, car loan, and all marital financial obligations. Id. at 334. “In sum, under the agreement the wife was to receive property valued at approximately $131,000. The husband, on the other hand, would retain property valued at about $1,100.” Id. In its ruling, the trial court found that there was “inadequate consideration for the agreement, because, in fact, what the husband was receiving here is so little in relationship to the value of the assets. Most particularly, the ongoing obligations that he was agreeing to pay.” Id. at 337. Our Supreme Court affirmed the trial court’s decision, holding an agreement unconscionable where the “consideration was grossly inadequate and the burdens on the husband were oppressive[.]” Id. at 341, 343. Even though the trial court did not make any findings of incompetency, duress, fraud, or that the husband was “the dominated and dependent party[,]” the Supreme Court held that the terms of the agreement were so unfair and inequitable that such further analysis was unnecessary. Id. at 337, 343.
There is a similarity in the terms of the 1993 Prenuptial Agreement with respect to Mr. Fleisig and those of the marital separation agreement in Williams. Here, like in Williams, Mr. Fleisig is required to relinquish the marital home to Ms. de la Peña, either free of debt or with Mr. Fleisig paying the mortgage, upon separation or divorce per the 1993 Prenuptial Agreement. In addition, in the agreement, Ms. de la Peña does not waive alimony rights, subjecting Mr. Fleisig to the possibility of paying indefinite alimony. Moreover, Ms. de la Peña would be entitled to half of Mr. Fleisig’s pension, of which the vast majority was earned prior to the agreement in 1993 or their marriage in 2000—a portion of Mr. Fleisig’s pension that would not be considered marital property; a portion that Ms. de la Peña would not typically be entitled to. Although Mr. Fleisig would also be entitled to half of Ms. de la Peña’s pension or retirement accounts, considering the age difference of the parties, the amounts are not likely to be commensurate. Similarly, the property free of debt, and indefinite alimony Ms. de la Peña was entitled to per the agreement, is not likely to be commensurate with the equity proceeds of the 5353 29th Street property, that Mr. Fleisig was entitled to. While we recognize that the 1993 Prenuptial Agreement is not unconscionable and not as extreme as the marital separation agreement in Williams, we still conclude that the trial court here did not err in determining that the terms of the 1993 Prenuptial Agreement were unfair.
II. Procedural Prong: Whether the 1993 Prenuptial Agreement was Entered Freely and Understandingly
We further recognize that the unfair terms of the 1993 Prenuptial Agreement alone are not sufficient to declare the agreement invalid. “[M]ere inadequacy of price will not of itself be sufficient to warrant the rescission of a contract [. . . and
one] cannot be relieved of a contract merely because he may have made a bad bargain[.]” Williams, 306 Md. at 340 (quoting Straus v. Madden, 219 Md. 535, 542 (1959)). However, such unfairness in a contract “accompanied by other inequitable incidents,” such as the contract being made without “professional advice or consultation[,]” or “concealments, misrepresentations, undue advantage, oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecuniary necessities, and the like on the part of the other,” may provide the basis to invalidate said contract. Williams, 306 Md. at 340–41 (quoting Straus, 219 Md. at 543–44). Therefore, we must assess the second prong of the overreaching test—the procedural prong—whether the 1993 Prenuptial Agreement was entered freely and understandingly.
The circuit court found that Ms. de la Peña, who is an attorney, drafted the agreement and provided it to Mr. Fleisig, who was unrepresented, with no evidence that the terms were negotiated. We recognize that failure to seek attorney advice itself is not fatal where “the attacking party had the opportunity to seek counsel and was not discouraged from doing so.” Stewart, 214 Md. App. at 475 (citation and internal quotation marks omitted). However, Mr. Fleisig did not seek the advice of an attorney with respect to the agreement because he considered Ms. de la Peña to be his attorney, as she was, in fact, an attorney and had financial acumen; he loved her and trusted her to act in his best interest.
In addition, Mr. Fleisig was experiencing financial difficulties and Ms. de la Peña was assisting him in rearranging his finances with respect to his debt at the time the agreement was entered. These factors combined indicate that Ms. de la Peña was the dominant party in this confidential relationship at the time, or at least in a superior bargaining position. See Martin, 68 Md. at 146 (citation omitted) (in confidential relationships “a presumption arises that confidence was placed in the dominant party [by the subservient party] and that the transaction complained of resulted from fraud or undue influence and superiority or abuse of the confidential relationship by which the dominant party profited.”); see also Blum, 59 Md. App. at 595 (a dominant party in a confidential relationship has the burden of proving that the agreement was fair in its terms and execution.).
Furthermore, the circuit court found certain terms of the 1993 Prenuptial Agreement contradictory. See, supra, Section III.2.i. In particular, the circuit court found the term “[s]pousal rights to pension benefits” unclear and contradictory. The term “[s]pousal rights to pension benefits” is unclear because “there is no corresponding language to indicate what the references mean[.]” The term as mentioned in the agreement is contradictory because it appears to be designated as “separate property” in the agreement, however, the agreement also designates it as “[c]ommunity or joint property[.]” The court indicated that this “contradiction casts doubt on whether [Mr. Fleisig] actually understood what rights he was signing away.”
Moreover, the circuit court found that the agreement failed to include all of the parties’ assets and the assets that were listed, did not include values. The “frank, full, and truthful disclosure” of the parties’ assets and their value is required so
that the parties may know what they are waiving by entering a prenuptial agreement. Cannon, 384 Md. at 555–59. However, if there is not sufficient disclosure of assets, an “adequate knowledge of the existence of the assets” and “knowledge of what those assets are worth” will suffice. McGeehan, 455 Md. at 294. While it is not required for the agreement to contain an entire list of the parties’ assets and their values, as the trial court here found, Mr. Fleisig testified that Ms. de la Peña did not provide him with any information on her financial assets, tax returns, or income at the time of the execution of the agreement. However, failure to disclose or lack of precise knowledge of the parties’ assets alone will not invalidate a prenuptial agreement, but rather it is a factor in considering whether the parties entered into the agreement “understandingly.” See Cannon, 384 Md. at 568.
Ultimately, the circuit court found Mr. Fleisig’s testimony “credible that he did not understand the Agreement and relied on [Ms. de la Peña].” We acknowledge that “[a]ssessing the credibility of witnesses is the role of the trial court, not the appellate courts.” See Hale, 74 Md. App. at 569. Id. Moreover, Ms. de la Peña, as the party seeking to enforce the agreement and as the dominant party in the confidential relationship, had the burden of showing that the agreement was fair and equitable in its terms and entered freely and understandingly; a burden which she failed to meet. See Cannon, 384 Md. at 555; Blum, 59 Md. App. at 595. We find no error in the trial court’s findings here.
Similarly, in Hale v. Hale, 74 Md. App. 555 (1988), this Court held that the husband obtained a marital separation agreement by abusing the confidential relationship between himself and his wife, and that the wife was unduly influenced by the husband and the attorney, who drafted the agreement, into signing the inequitable marital settlement agreement that she did not understand. Id. at 562–63, 570–71. The trial court found that the wife trusted her husband and that the husband “was aware of her trust in him[.]” Id. at 565. Furthermore, the trial court found that the wife had little participation in the formation of the agreement and that she did not understand it. Id. at 566. The trial court found that the wife believed that the attorney, who drafted the agreement and who was representing the husband, was also acting as her attorney and the attorney knew this. Id. at 566, 570. Although the attorney recommended that the wife seek independent counsel and advised her that she was forfeiting certain marital property rights in the agreement, the trial court found that these warnings were “insufficient to overcome her trust in him and her belief that he would not allow her interests to be adversely affected.” Id. at 570. We found no error in the trial court’s findings and affirmed the trial court’s decision to rescind the separation agreement. Id. at 574.
While we do not believe that Ms. de la Peña intentionally abused the confidential relationship between her and Mr. Fleisig, as we did in Hale, the fact remains that Mr. Fleisig trusted Ms. de la Peña and believed that she was his attorney, acting in his best interest. Like in Hale, this trust and belief resulted in Mr. Fleisig signing an agreement that he had little involvement in forming, that he did not understand, and whose terms were inequitable to him. As such, we conclude that the circuit court here did not err in finding that
the 1993 Prenuptial Agreement was not entered freely and understandingly.
In concluding that the trial court did not err in determining that the terms of the 1993 Prenuptial Agreement were unfair, as well as finding that the agreement was not entered freely and understandingly, and thus overreaching, we affirm the trial court’s decision to invalidate the 1993 Prenuptial Agreement and not enforce it during the divorce proceedings.
iii. Foreign Law
Additionally, Ms. de la Peña argues that the trial court failed to apply the laws of Washington, D.C. in assessing the validity of the 1993 Prenuptial Agreement. Mr. Fleisig counterargues that Ms. de la Peña did not offer evidence of the foreign law, nor did she argue that Washington, D.C. laws applied, at the validity hearing.
We agree with Mr. Fleisig. Moreover, Ms. de la Peña cited to Maryland law, not the laws of Washington, D.C., in her written closing statement submitted to the trial court after the validity hearing, as she similarly does in her briefs to this Court. Ms. de la Peña fails to argue how the two laws differ to the legal question at hand or how the trial court’s ruling would have been different had it applied the laws of Washington, D.C. As such, we consider this issue waived and not properly briefed. See Scott v. State, 247 Md. App. 114, 152 (2020) (“As this issue was not raised below and, in any event, was not sufficiently briefed in this Court to permit our deciding it, it is not appropriate for us to address it.”).
iv. Severability
Lastly, Ms. de la Peña argues that the trial court erred in failing to sever valid provisions of the 1993 Prenuptial Agreement. Mr. Fleisig counters that Ms. de la Peña cites no authority to support her claim that each term of the prenuptial agreement can be severed, where the agreement in its entirety has been deemed overreaching and invalid. Again, we agree with Mr. Fleisig. The terms that Ms. de la Peña requests severed—particularly those regarding pensions and retirement accounts—are those same terms that the trial court found to be unfair or inequitable and we agree. Moreover, the trial court found that the execution of the agreement in its entirety was not freely or understandingly entered, which we agree, and therefore the agreement in its entirety is invalid. Therefore, there are no “valid provisions” to sever. As such, the trial court did not err in failing to sever provisions of the 1993 Prenuptial Agreement.
B. The Judgment of Absolute Divorce, August 13, 2024
1. Limited vs. Absolute Divorce
An absolute divorce “terminates the marriage, severing all legal ties between the parties that are a function of marriage and entitling either of the parties or both to remarry.” Walter v. Walter, 181 Md. App. 273, 289 (2008) (citation and internal quotation marks omitted). Whereas a limited divorce “does not end the marriage” but rather is “a legal acknowledgment that the parties, although married, are living apart.” Id. A limited divorce may be granted for a “limited time or for an indefinite time.” Md. Code Ann., Fam. Law § 7-102(b)
(repealed 2023). Moreover, a limited divorce can be revoked, unlike an absolute divorce. Walter, 181 Md. App. at 294. While a court may grant alimony, including indefinite alimony, under a limited divorce, the court may not distribute marital property under a limited divorce. Id. at 292. Distribution of marital property, and consequently grants for monetary awards, may only be made pursuant to an annulment or an absolute divorce. See id. at 295. However, Maryland repealed the courts’ authority to grant limited divorces, effective October 1, 2023. See Md. Code Ann., Fam. Law § 7-102 (repealed 2023).
i Analysis
Ms. de la Peña argues that the court erred in limiting her relief to that of a limited divorce. While her pleadings did not specifically request an “absolute divorce,” Ms. de la Peña did request “a monetary award in her pleading as well as any other equitable relief.” Mr. Fleisig counterargues that the trial court did not err in denying Ms. de la Peña relief outside of a limited divorce. Ms. de la Peña did not amend her complaint to seek an absolute divorce, and further, she “never [made] a request for a monetary award or property transfer that [was] not entirely predicated and contingent on her request for a limited divorce.” Therefore, Ms. de la Peña is not entitled to an absolute divorce or its relief, such as a monetary award or transfer of property. Moreover, Mr. Fleisig notes that “[d]espite the repeal of Md. Code, Family Law Article, §7102, Ms. de la Peña’s claim for a limited divorce must still be adjudicated as she requested a limited divorce prior to October 1, 2023.”
We conclude that the trial court erred in finding that Ms. de la Peña was only entitled to the relief of a limited divorce and that the trial court should have construed Ms. de la Peña’s complaint as a complaint for absolute divorce, “to do substantial justice.” See Md. Rule 2-303(e). At the time of trial, the trial court was no longer authorized to award a limited divorce in this case, due to the repeal of Fam. Law § 7-102. Moreover, in her complaint, Ms. de la Peña explicitly requested relief permitted under an absolute divorce, despite her failure to request an absolute divorce.
During trial, at the close of Ms. de la Peña’s case, Mr. Fleisig moved for judgment, requesting the court to deny Ms. de la Peña’s requests for a monetary award and transfer of property, “arguing that because [Ms. de la Peña] did not file for an absolute divorce and never amended her complaint, her only remedy was for a limited divorce and [alimony].” In the Judgment of Absolute Divorce, entered on August 13, 2024, the court granted Mr. Fleisig’s motion for judgment, stating, Ms. de la Peña’s “claims for a monetary award or any interest in [Mr. Fleisig’s] assets, to the extent not required as a result of [Mr. Fleisig’s] pleadings, are not properly before this Court and are, therefore, DENIED.” The Judgment further granted an absolute divorce to Mr. Fleisig. The court reasoned that because Ms. de la Peña “never filed a complaint for absolute divorce or requested it in her response to [Mr. Fleisig’s] Supplemental Counterclaim, an absolute divorce cannot be entered in her favor[.]”
Ms. de la Peña filed a Complaint for Limited Divorce and Related Relief on June 7, 2022, prior to the repeal of Fam.
Law § 7-102 on limited divorce. See Md. Code Ann., Fam. Law § 7-102 (repealed 2023). The divorce proceedings took place on May 13 and 14 of 2024 and the court’s judgment was entered on August 13, 2024. Therefore, by the time the case went to trial and judgment was issued, courts did not have the authority to grant limited divorces in Maryland. See id. We first address what effect, if any, the repeal Fam. Law § 7-102 has on the parties’ arguments and the trial court’s ruling.
a Repeal of Family Law § 7-102
There is a “special rule of statutory construction that [states,] rights which are of purely statutory origin and have no basis at common law are wiped out when the statutory provision creating them is repealed, regardless of the time of their accrual, unless the rights concerned are vested.” McComas v. Crim. Injs. Comp. Bd., 88 Md. App. 143, 149 (1991) (quoting Beechwood Coal Co. v. Lucas, 215 Md. 248, 255–56 (1958)). There is an exception to this rule, such as if the legislation contains a saving provision. “Absent a saving provision or some other clear expression by the legislature that it intends to protect claims that are pending on the date of the enactment, an amendment of a purely statutory right affects all claims not yet vested.” Id. at 150–51.
Maryland has a general saving provision for penalties, forfeitures, and liabilities under criminal or civil actions under Maryland Code, General Provisions § 1-205, which states:
(a) Except as otherwise expressly provided, the repeal, repeal and reenactment, or amendment of a statute does not release, extinguish, or alter a criminal or civil penalty, forfeiture, or liability imposed or incurred under the statute.
(b) A repealed, repealed and reenacted, or amended statute shall remain in effect for the purpose of sustaining any:
(1) criminal or civil action, suit, proceeding, or prosecution for the enforcement of a penalty, forfeiture, or liability; and
(2) judgment, decree, or order that imposes, inflicts, or declares the penalty, forfeiture, or liability
Md. Code Ann., Gen. Provisions § 1-205. (emphasis added). However, this general saving provision only “preserves any penalty, forfeiture or liability, either civil or criminal, which shall have been incurred under such repealed or amended statute[.]” Waker v. State, 431 Md. 1, 12 (2013) (citation and internal quotation marks omitted). For example, a criminal “sentence that had been imposed prior to the statutory change at issue,” would be preserved by the general saving provision, whereas the general savings provision would not apply where a defendant “had not been convicted or sentenced when the statute concerning his offense was amended.” In re M.P., 487 Md. 53, 87 (2024) (discussing State v. Johnson, 285 Md. 339, 346 (1979); Waker, 431 Md. at 13.).
Therefore, where the right is purely statutory, not yet vested, not preserved by the general saving provision (not a penalty, forfeiture or liability already incurred under the repealed statute), and where there is no clear indication by the legislature that claims pending on the date of the repeal are to be preserved, the statute or right prior to repeal is
ineffective. Here, the right to a limited divorce is a purely statutory construct. See Taylor Taylor, 306 Md. 290, 298 (1986) (“The power to grant a divorce is not a part of the common law jurisdiction of a court of equity, and prior to 1841 was exercised solely by the Legislature.”); see also Md. Code Ann., Fam. Law § 7-102 (repealed 2023). The rights to a limited divorce had not yet vested for Ms. de la Peña as her trial on the merits of divorce took place in May 2024, after Fam. Law § 7-102 was repealed on October 1, 2023. Moreover, the court’s judgment was entered on August 13, 2024. Similarly, the general saving provision, under Gen. Provisions § 1-205, does not apply since no penalty, forfeiture, or liability was incurred by the parties by the time Fam. Law § 7-102 was repealed on October 1, 2023. Lastly, the legislation repealing Fam. Law § 7-102 does not indicate that claims pending under Fam. Law § 7-102 at the time of repeal should be preserved. H.B. 14, 2023 Gen. Assemb., 445th Sess. (Md. 2023). To the contrary, the legislation explicitly states, “FOR the purpose of repealing the authority of a court to decree a limited divorce[.]” Id. Therefore, at the time of the repeal’s effectiveness, October 1, 2023, courts no longer had the authority to award a limited divorce.
As such, Mr. Fleisig’s argument that “Ms. de la Peña’s claim for a limited divorce must still be adjudicated as she requested a limited divorce prior to October 1, 2023[,]” is incorrect, as is his argument that Ms. de la Peña’s “only remedy was for a limited divorce and [alimony].” If the court has no authority to award a limited divorce, it, consequently, cannot adjudicate an action under former Fam. Law § 7-102, which would include abiding by the restrictions on remedies as set forth in Fam. Law § 7-102. See, supra, Section III.B.1. Similarly, the circuit court was incorrect in finding that Ms. de la Peña was “not entitled to a transfer of property or a monetary award pursuant to a request for limited divorce.”
Furthermore, pursuant to Maryland Rule 2-303(e), “[a]ll pleadings shall be so construed as to do substantial justice.” Md. Rule 2-303(e). While Ms. de la Peña’s complaint explicitly requested a limited divorce, rather than an absolute divorce, it also requested the following relief that would have only been permitted under an absolute divorce:20
4. DETERMINE the nature and extent of the property held by the parties and to the extent to which the property is marital and/or non-marital;
5. DETERMINE each party’s interest in the marital property and DISTRIBUTE the same;
6. AWARD Plaintiff monetary award[;]
7. AWARD Plaintiff 50% of the Defendant’s pension income [. . .] [. . .]
15. For such other and further relief in favor of Plaintiff as this Court deems just and proper.
Mr. Fleisig and the circuit court rely on Lasko v. Lasko, 245 Md. App. 70 (2020), to limit Ms. de la Peña’s relief to that of a limited divorce. In Lasko, while the wife only sought a limited divorce in her counter-complaint, this Court held that wife’s answer to husband’s complaint sufficiently set forth a claim for monetary award, authorizing the trial court to grant wife a monetary award. Id. at 72. The wife’s answer requested that “the Court determine, at the time of the entry of its Judgment, which of the property owned by the parties is marital property
and the value of the same[,]” and that she “be granted all relief to which she may be entitled pursuant to the Family Law Article of the Annotated Code of Maryland.” Id. at 79. Here, Mr. Fleisig essentially argues, and the circuit court agreed, that because Ms. de la Peña did not request the determination and distribution of marital property, as well as a monetary award, in her answer to Mr. Fleisig’s counter-complaint, she is not entitled to such relief. However, this argument fails to acknowledge that Ms. de la Peña did explicitly request such relief in her initial complaint, in addition to “such other and further relief in favor of Plaintiff as this Court deems just and proper.”
In Attorney Grievance Commission of Maryland v. Kreamer, 387 Md. 503 (2005), the trial court found that Ms. Kreamer “failed to allege a ground upon which an absolute divorce could be granted.” Id. at 521.21 However, our Supreme Court held that, “[t]he fact that the pleading did not contain the phrase ‘cruelty of treatment’ or ‘excessively vicious conduct’ does not change the import of the counterclaim. The pleading certainly alleged facts that, if proven, would have supported the grant of an absolute divorce on the grounds of cruelty of treatment.” Id. Similarly, here, Ms. de la Peña’s complaint requested absolute divorce type relief, without explicitly containing the term “absolute divorce.” Moreover, the purpose of a pleading is to: “(1) [provide] notice to the parties as to the nature of the claim or defense; (2) [state] the facts upon which the claim or defense allegedly exists; (3) [define] the boundaries of litigation; and (4) [provide] for the speedy resolution of frivolous claims and defenses.” Ledvinka v. Ledvinka, 154 Md. App. 420, 429 (2003) (citing Scott v. Jenkins, 345 Md. 21, 27–28 (1997)). “The most important of the four is notice.” Id. Here, Mr. Fleisig was certainly on notice that Ms. de la Peña was requesting the determination and distribution of marital property, and a monetary award because she explicitly requested such relief in her complaint. Moreover, Ms. de la Peña’s complaint contained facts upon which a claim of absolute divorce could be granted.22
Because the court was no longer authorized to award a limited divorce at the time of trial, and considering Ms. de la Peña explicitly requested relief eligible under an absolute divorce—such as the determination and distribution of marital property, a monetary award, and 50% of Mr. Fleisig’s pension—in her complaint, the court should have construed Ms. de la Peña’s complaint as a complaint for absolute divorce, “to do substantial justice.” See Md. Rule 2-303(e). Thus, the trial court erred in this regard.
However, Ms. de la Peña did not argue on appeal that the circuit court erred in granting Mr. Fleisig an absolute divorce, rather than granting Ms. de la Peña an absolute divorce, nor did she argue that the grant of Mr. Fleisig’s motion for judgment was in error. Instead, she argued that the court erred in limiting her relief to that of a limited divorce— alimony—and to that which she is entitled as a consequence of Mr. Fleisig’s requested relief—the determination and distribution of marital property. Therefore, we need not address whether the trial court erred in granting an absolute divorce in Mr. Fleisig’s favor or in granting the motion for judgment. Instead, we will address the circuit court’s ruling
as to the distribution of the marital property and its denial in granting a monetary award.
2. Marital Property & Monetary Award
Upon the dissolution of a marriage, the marital property must be distributed fairly and equitably. Alston v. Alston, 331 Md. 496, 506 (1993). However, “equitable” does not mean “equal.” Id. at 508. When the court cannot transfer ownership of marital property,23 it must make a monetary award to ensure equity between the parties. Id. at 498–99. A monetary award is “intended to compensate a spouse who holds title to less than an equitable portion” of marital property. Innerbichler v. Innerbichler, 132 Md. App. 207, 227 (2000) (quoting Ward v. Ward, 52 Md. App. 336, 339–40 (1982)).
Before granting a monetary award, the court must first, determine which property is marital property; secondly, determine the value of the marital property; and lastly consider the various factors listed in Fam. Law § 8-205(b). 24 Once those steps have been followed, “the court may transfer ownership of an interest in property described in [Fam. Law § 8-205(a)(2)], grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” Md. Code Ann., Fam. Law § 8-205(a)(1).
Marital property is property acquired during the marriage by one or both parties, regardless of how the property is titled. Md. Code Ann., Fam. Law § 8-201(e)(1). Marital property excludes “any property acquired prior to the marriage, property acquired by inheritance or gift, property excluded by valid agreement, or property that is directly traceable to nonmarital sources.” Noffsinger v. Noffsinger, 95 Md. App. 265, 281 (1993). When nonmarital assets are used to acquire marital property, the “spouse contributing nonmartial property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property.” Pope v. Pope, 322 Md. 277, 281–82 (1991). “If a property interest cannot be traced to a nonmarital source, it is considered marital property.” Innerbichler, 132 Md. App. at 227.
i Standard of Review
The determination of “whether property is marital or nonmartial is a question of fact[, and therefore], our review of a trial court’s decision as to that issue is governed by the clearly erroneous standard.” Malin v. Mininberg, 153 Md. App. 358, 428 (2003) (citing Noffsinger, 95 Md. App. at 285). “Factual findings that are supported by substantial evidence are not clearly erroneous.” Richards v. Richards, 166 Md. App. 263, 272 (2005) (citing Collins v. Collins, 144 Md. App. 395, 409 (2002)). However, a trial court’s ruling regarding a monetary award is reviewed for abuse of discretion. Id. (citing Gallagher v. Gallagher, 118 Md. App. 567, 576 (1997)). As such, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result.”
Innerbichler, 132 Md. App. at 230.
ii Analysis
We conclude that the trial court did not err in its rulings related to the marital property in this case. Ms. de la Peña
failed to provide sufficient, if any, testimony or evidence at trial to support her claims related to the marital home, Mr. Fleisig’s IRA and federal pensions, the FEGLI life insurance policy, and expenses on the marital home in 2022. Moreover, we conclude that the trial court did not abuse its discretion in refusing to grant Mr. de la Peña a monetary award, after it assessed the requisite steps and factors to grant a monetary award, despite its finding that Ms. de la Peña was not entitled to such an award under her pleadings for a limited divorce.
a The Marital Home
Ms. de la Peña argues that the trial court erred in failing to trace her non-marital funds in the purchase of the marital home on Travilah Road. Mr. Fleisig counters that Ms. de la Peña did not provide any evidence to support her claim at trial. Ms. de la Peña alleges on appeal that she contributed $475,000 in nonmarital funds to purchase the marital home, and because the current equity in the marital home is less than her nonmarital contribution, she should receive the entirety of the net proceeds from the sale of the marital home. Although Ms. de la Peña testified to this effect at trial, the trial court found that she failed to produce any evidence to support her testimony. The entirety of her testimony related to the marital home was as follows:
[PLAINTIFF’S COUNSEL:] Ms. de la Peña, before you and Mr. Fleisig purchased the current marital home, had you purchased any real properties before?
[MS. DE LA PEÑA:] I bought the first house, Tulip Street in Washington, D.C., and we lived there before we moved to Maryland.
[PLAINTIFF’S COUNSEL:] When did you purchase the home? [MS. DE LA PEÑA:] 2000, in July 2000.
[PLAINTIFF’S COUNSEL:] July 2000? And when did you move into Travilah?
[MS. DE LA PEÑA:] In 2006. Tulip Street, 1908 Tulip Street was the address in D.C. and I purchase it in my name.
[PLAINTIFF’S COUNSEL:] Okay. When you say you purchased it in your name, did you use your personal funds or were they the joint funds of both parties?
[MS. DE LA PEÑA:] All, all my funds. Heywood was still paying debt from his real estate business.
[PLAINTIFF’S COUNSEL:] Okay. When did you -has the Tulip Street home been sold?
[MS. DE LA PEÑA:] Yes, we sold it in 2006 and we transferred the proceeds from that sale from Tulip Street to the present home on Travilah Road. [PLAINTIFF’S COUNSEL:] Okay. Did Mr. Fleisig contribute to the downpayment of the purchase of the Travilah home?
[MS. DE LA PEÑA:] No, he didn’t.
First, Ms. de la Peña states that she purchased the parties’ first home, the Tulip Street property, with her personal funds in July 2000. The parties were married in January of 2000, therefore, the Tulip Street home would have been considered fully marital property, unless Ms. de la Peña could trace her interest in the property back to her nonmarital funds. See
Noffsinger, 95 Md. App. at 283. Ms. de la Peña failed to do this at trial.
Then Ms. de la Peña states that the proceeds from the sale of the Tulip Street property were used to purchase the Travilah Road property in 2006, also during the marriage. However, it is not until the appeal that Ms. de la Peña revealed what the proceeds from the sale of the Tulip Street property were that went into the purchase of the Travilah Road property—$475,000. Moreover, Ms. de la Peña never testified as to the original purchase price of the Travilah Road property or what percentage her contribution was to the total price.25 No evidence was presented to this effect either. We similarly do not know if the Tulip Street was bought out right or if there was a mortgage on that property. We have no idea what Ms. de la Peña’s alleged nonmarital interest in these properties was. Moreover, Ms. de la Peña testified that after 2001, all of her salary from Center for Economic Analysis of Law (“CEAL”)26 was deferred and that all of the parties’ expenses were paid from Mr. Fleisig’s pension income. Therefore, the mortgage payments for the Travilah Road property, and possibly the Tulip Street property, from 2001 onwards were made with Mr. Fleisig’s income.
Even if Ms. de la Peña had properly traced her contribution to the properties to a nonmarital source, the Travilah Road property would have been a combination of nonmarital and marital property, due to Mr. Fleisig’s mortgage payments. However, Ms. de la Peña failed to prove her nonmarital interest in the Travilah Road property. She did not provide sufficient testimony or evidence to trace the Tulip Street property or the Travilah Road property back to a nonmarital source. Therefore, the property is considered marital property, to be distributed equitably among the parties. See Noffsinger, 95 Md. App. at 283 (“The party seeking to demonstrate that particular property acquired during the marriage is nonmarital must trace the property to a nonmarital source.”). The trial court found that Ms. de la Peña failed to meet her burden, declared the home was marital property, and ordered that it be sold with the net proceeds equally divided between the parties. We see no clear error in the trial court’s finding here.
b Mr. Fleisig’s IRA
Ms. de la Peña argues that the trial court erred in finding that Mr. Fleisig’s IRA was his nonmarital property. Mr. Fleisig contends that Ms. de la Peña did not provide sufficient testimony or any evidence at trial to support her claim that the IRA was marital property.
The IRA account is titled solely in Mr. Fleisig’s name. “[T] he party who asserts a marital interest in property bears the burden of producing evidence as to the identity of the property.” Innerbichler, 132 Md. App. at 227. Therefore, Ms. de la Peña had the burden to prove the IRA was marital property. However, neither party testified at trial as to when the IRA account was opened. Ms. de la Peña testified that the parties discussed investing their income into Mr. Fleisig’s IRA. Counsel for Ms. de la Peña attempted to admit into evidence an alleged email between the parties regarding the IRA, however, its admission was denied by the court, pursuant to objection from defense counsel. Thereafter, Ms.
de la Peña’s testimony regarding the IRA account ended. Only in her Motion for New Trial after the merits hearing and her Appellate brief before this Court did Ms. de la Peña argue that the IRA was opened during the marriage and funded with marital funds. Mr. Fleisig correctly points out that Ms. de la Peña’s Appellate brief “references [] documents she filed in a post-judgment filing that she never introduced into evidence to support her claim” regarding the IRA account. As such, we cannot consider these documents on appeal. See Accrocco v. Splawn, 264 Md. 527, 532 (1972) (the Court declined to consider “documents, statements and other material not in the record[,]” noting that “this Court should not at this stage of the proceeding attempt to evaluate or comment upon these matters not of record[.]”); Frazier v. Waterman S. S. Corp., 206 Md. 424, 446 (1955) (the Court refused to consider evidence “not in the record, and its contents consequently are not before [it].”).
Mr. Fleisig testified at trial that, while a minority of funds in the IRA account came from his federal retirement annuity, the majority of the funds in the IRA came from his annuity from his employment at Cornell University. Mr. Fleisig testified that he was employed at Cornell University from 1964 to 1972, well before his marriage to Ms. de la Peña. Ms. de la Peña offered no testimony or evidence at trial to dispute Mr. Fleisig’s testimony regarding the IRA account. As such, the trial court found that the IRA was Mr. Fleisig’s nonmarital property, noting that Ms. de la Peña “presented no evidence that this account, or any portion thereof, was marital.”
Considering Ms. de la Peña had the burden of proving what portion of the IRA account constituted marital property and failed to meet that burden at trial, we conclude that the trial court, with the testimony and evidence presented to it at the time, did not err in determining the IRA was Mr. Fleisig’s nonmarital property.
c Pensions & Surviving Spouse Benefit
Ms. de la Peña argues that the trial court erred in failing to award her a surviving spouse annuity in Mr. Fleisig’s federal pension. Mr. Fleisig contends that the trial court did not abuse its discretion in refusing to award her a surviving spouse annuity in a pension, of which the majority was earned prior to the marriage.
Mr. Fleisig has two pensions in question—a pension from the World Bank and a pension for his service in the federal government. Mr. Fleisig testified that he was employed with the World Bank from 1981 to 1995 and began collecting this pension in 1995. Ms. de la Peña did not provide any testimony or evidence to the contrary. Since this pension was earned and in pay status prior to the marriage, the trial court found that Mr. Fleisig’s World Bank pension was entirely his nonmarital property and did not award Ms. de la Peña any portion of this pension. We conclude that the trial court did not err in this ruling. See Merriken v. Merriken, 87 Md. App. 522, 532 (1991) (“[T]he value of nonmarital property is not subject to equitable distribution.”).
Regarding Mr. Fleisig’s federal pension, the letter from the United States Office of Personnel Management admitted into evidence at trial, reflected his periods of federal service as follows: 08/12/1974 to 01/03/1979 – Federal Reserve Board;
01/04/1979 to 03/05/1982 – Congressional Budget Office (“CBO”); 05/15/2003 to 12/29/2005 – CBO. Only two years and seven months of Mr. Fleisig’s ten years and one month of service occurred during the marriage. The trial court, in applying the formula established in Bangs v. Bangs, 59 Md. App. 350 (1984), found that 74.22% of Mr. Fleisig’s federal pension was nonmarital and 25.78% was marital. As such, the trial court awarded Ms. de la Peña one-half of the monthly marital portion—25.78%—of Mr. Fleisig’s federal pension.27 We conclude that the trial court did not err in this finding.
Ms. de la Peña argues that the court erred in “not confirming [her] surviving spouse annuity” in Mr. Fleisig’s federal pension. Again, Ms. de la Peña references in her Appellate brief arguments and documents submitted in her postjudgment filings, which we cannot consider. See Accrocco, 264 Md. at 532; Frazier, 206 Md. at 446. However, Ms. de la Peña did not present any testimony or evidence at trial in support of her claim for the former surviving spouse annuity benefit in Mr. Fleisig’s federal pension.
Even so, while the trial court is “authorized to order an employee to effect a survivor annuity benefit, naming the employee’s former spouse as beneficiary[,]” it is within the trial court’s discretion to do so. Caldwell v. Caldwell, 103 Md. App. 452, 457 (1995). We reiterate that marital property must be distributed fairly and equitably, however, “equitable” does not mean “equal.” Alston, 331 Md. at 506, 508. The trial court found that only two years and seven months—25.78%—of Mr. Fleisig’s federal pension constituted marital property. Considering Ms. de la Peña’s lack of testimony or evidence to support her claim, the small percentage of Mr. Fleisig’s federal service occurring during the marriage, and given the court’s discretion in awarding such benefit, we conclude that the trial court did not abuse its discretion in declining to award Ms. de la Peña a former surviving spouse annuity benefit.
d Life Insurance Policy
Ms. de la Peña argues that the trial court erred in “failing to award support during the marriage for the premiums of FEGLI, or reimburse this expense under undue enrichment[.]”
Ms. de la Peña asserts that she covered premiums for Mr. Fleisig’s FEGLI policy totaling $123,800.00 ($2,751/month) and therefore requests reimbursement for such expense. Mr. Fleisig counterargues that a claim for undue enrichment was not pled before the trial court and thus cannot be raised for the first time on appeal. Moreover, Mr. Fleisig did not benefit from the premiums paid because the FEGLI policy was a group term life insurance policy with no cash value. Without a cash value, the FEGLI policy is not an asset of the parties, and the court does not have the authority to transfer ownership of the policy.
We agree that Ms. de la Peña’s argument here was not presented before the trial court. Even if Ms. de la Peña’s argument was preserved, the trial court found that Ms. de la Peña “presented no evidence at trial of the nature of the FEGLI policy, the benefits thereunder, the policy’s value, or the marital nature of the policy.” We agree, and again, Ms. de la Peña’s Appellate brief references documents submitted post-judgment, which we cannot consider. See Accrocco, 264 Md. at 532; Frazier, 206 Md. at 446.
Instead, Ms. de la Peña requested that the trial court order Mr. Fleisig to maintain his FEGLI policy with her as the sole beneficiary. The trial court found that it had “no jurisdiction to require [Mr. Fleisig] to continue to maintain a life insurance policy for the benefit of [Ms. de la Peña] pursuant to Md. Code Ann., Fam. Law, §8-205(a)(2).”28 The trial court cited to Hopkins v. Hopkins, 328 Md. 263 (1992), where our Supreme Court addressed whether “a court may order a non-consenting obligor ex-spouse to cooperate so that the obligee-ex-spouse may acquire insurance on his life.” Id. at 265. Like Ms. de la Peña, the wife in Hopkins was willing to pay the premiums of the life insurance on her ex-husband, to which she would be the beneficiary. Id. at 267. The Court in Hopkins held that a court cannot order or compel a party to cooperate with their ex-spouse in obtaining life insurance on their life. Id. at 265. Therefore, the trial court here did not err in refusing to order Mr. Fleisig to continue maintaining a life insurance policy for the benefit of Ms. de la Peña.
We conclude that the trial court did not err in failing to reimburse Ms. de la Peña for premiums she paid towards Mr. Fleisig’s FEGLI policy, as Ms. de la Peña failed to present any evidence or testimony to support her claim at trial. Ms. de la Peña paid these premiums at her own risk. Additionally, we conclude that the trial court does not have the authority to order Mr. Fleisig to maintain a life insurance policy with Ms. de la Peña as the beneficiary, and as such, the trial court did not err in this regard.
e Home Expenses for 2022
Lastly, Ms. de la Peña argues that the trial court erred in “denying support for home expenses in 2022[.]” She claims that Mr. Fleisig only paid one third of the home expenses— the mortgage—from the time the parties separated in December of 2021 until the pendente lite order in January of 2023. Ms. de la Peña asserts that she had to borrow money to pay the expenses, in addition to paying “extraordinary repairs when a tree accident rendered the family house unlivable.”29 Mr. Fleisig counterargues that the trial court did not err in denying additional support for home expenses, as such issues were or should have been addressed in the pendente lite order. Ms. de la Peña further alleges claims of fraud against Mr. Fleisig for withdrawing funds from joint accounts and taking additional mortgage out on the house. Mr. Fleisig counters that such fraud claims were not pled before the trial court and thus not preserved for appeal. At trial, Ms. de la Peña failed to provide sufficient testimony or evidence in to support her claim for home expenses in 2022. Although she provided a photo of the fallen tree, Ms. de la Peña does not indicate how much the “extraordinary repairs” cost from the damage to the marital home, nor does she provide receipts or other documentation for such repairs. She does not indicate specifically what other expenses she is requesting reimbursement for, nor does she provide receipts or other documentation. Again, Ms. de la Peña’s Appellate brief references documents submitted post-judgment, which we cannot consider. See Accrocco, 264 Md. at 532; Frazier, 206 Md. at 446.
Moreover, the pendente lite order entered on January 23, 2023 incorporated the parties’ consent Interim Agreement
Resolving Pendente Lite Hearing (“pendente lite agreement”), which was agreed upon and signed by the parties on January 3, 2023. In the pendente lite agreement, Mr. Fleisig agreed to pay to Ms. de la Peña until the case is settled, unless otherwise stated: $2,750 per month in alimony commencing December 1, 2022; $5,000 total as reimbursement for attorney’s fees; $1,000 per month for five months commencing on the date the agreement was signed;30 $300 per month for medical expenses; the monthly premium payments for the FEGLI basic policy, but not the premium on the Supplemental FEGLI policy; and the monthly health insurance premium for his World Bank policy which includes coverage for Ms. de la Peña. In addition, Mr. Fleisig agreed to pay the monthly mortgage and HELOC payments on the marital home and to transfer title of the 2013 Acura motor vehicle to Ms. de la Peña.
Considering the lack of evidence provided to support Ms. de la Peña’s claim for home expenses from 2022 at trial and the pendente lite agreement of January 2023, which provided significant financial support to Ms. de la Peña, the trial court did not err in failing to award home expenses from 2022.
f Monetary Award
The trial court found that, pursuant to her request for a limited divorce, Ms. de la Peña’s “claims for a monetary award [. . . were] not properly before [the court], and [were], therefore DENIED.” However, this Court previously concluded that because the trial court was no longer authorized to award a limited divorce at the time of trial, and considering Ms. de la Peña explicitly requested absolute divorce type relief—such as a monetary award—in her complaint, the court should have construed Ms. de la Peña’s complaint as a complaint for absolute divorce. See, supra, Section III.B.1.i. Therefore, Ms. de la Peña’s claims for the distribution of marital property and a monetary award should have been addressed by the trial court. The trial court did determine and distribute the marital property, which included Mr. Fleisig’s pensions, albeit pursuant to Mr. Fleisig’s pleadings. We already concluded supra that the trial court did not err regarding the distribution of marital property. Thus, we now consider whether the trial court erred in denying Ms. de la Peña a monetary award.
Although the trial court found that Ms. de la Peña was not entitled to a monetary award pursuant to a request for a limited divorce, the court still conducted the required assessment needed to grant a monetary award. In its Memorandum Opinion, the trial court noted:
But even if [Ms. de la Peña’s] request for a monetary award were properly before the [c]ourt, the [c]ourt would not be inclined to grant [Ms. de la Peña] the award that she seeks for several reasons: 1) [Mr. Fleisig] does not have a significant higher percentage of the marital assets titled solely in his name; 2) [Mr. Fleisig] receives $12,708.56 gross monthly from his pensions; 3) The [c]ourt has awarded [Ms. de la Peña] $3,500.00 monthly in [indefinite] alimony; 4) [Ms. de la Peña] has been awarded $25,000.00 in attorney’s fees; and 5) [Mr. Fleisig] has substantial debt. Again, a monetary award is granted “as an adjustment
of the equities and rights of the parties,” Md. Code Ann., Fam. Law § 8-205(a)(1), typically when one spouse “holds title to less than an equitable portion” of marital property. Innerbichler, 132 Md. App. at 227 (citation omitted). The trial court found that Mr. Fleisig did not have “a significant higher percentage of the marital assets titled solely in his name[.]” In fact, the trial court only found the following property to be marital: 1) the house on Travilah Road; 2) the parties’ two motor vehicles; 3) Ms. de la Peña’s IRA; and 4) 25.78% of Mr. Fleisig’s federal pension. Only marital property is considered when determining whether an “adjustment of the equities” is required. See Merriken, 87 Md. App. at 532 (“[T]he value of nonmarital property is not subject to equitable distribution.”).
Moreover, before granting a monetary award, the court must consider the various factors listed in Fam. Law § 8-205(b). See, supra, n. 22. However, the court need not “go through a detailed check list of the statutory factors, specifically referring to each[.]” Malin, 153 Md. App. at 429. While the trial court did not specifically outline each of these factors in its opinion, it did explicitly outline the factors required for awarding alimony pursuant to Fam. Law § 11106(b),31 which are significantly similar to those in Fam. Law § 8-205(b) for a monetary award. In fact, five of the factors are exactly the same. See Fam. Law § 11-106(b)(4)–(8); Fam. Law § 8-205(b)(1), (4)–(7). For the remaining monetary award factors, such as the value of all property of the parties, how and when marital property was acquired, as well as the contribution of the parties’ nonmarital property in acquiring marital property, the court considered these factors when it determined and distributed the marital property. See Fam. Law § 8-205(b)(2), (8)–(9). The trial court certainly considered “the economic circumstances of each party at the time the award is to be made[,]” Md. Code Ann., Fam. Law § 8-205(b)(3), when it considered the alimony factors regarding finances—“the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony[,]” and “the financial needs and financial resources of each party, including: (i) all income and assets, including property that does not produce income; [. . .] (iii) the nature and amount of the financial obligations of each party; and (iv) the right of each party to
receive retirement benefits[,]” Md. Code Ann., Fam. Law § 11-106(b)(9), (11)—and granted indefinite alimony to Ms. de la Peña.
We are satisfied that the trial court followed the required steps and assessed the requisite factors to grant a monetary award, regardless of its finding that Ms. de la Peña was not entitled to such an award pursuant to her request for a limited divorce. As such, we conclude that the trial court did not abuse its discretion in declining to grant a monetary award to Ms. de la Peña. Moreover, we need not remand this case, even though we concluded that the trial court erred in finding that Ms. de la Peña was restricted to the relief of a limited divorce, because the trial court actually did consider Ms. de la Peña’s requests for all relief available under an absolute divorce. The trial court determined and distributed the marital property equitably, assessed the monetary award factors and found that such award was not required to adjust the equities of the parties, and ordered indefinite alimony and attorney’s fees to Ms. de la Peña.
IV. Conclusion
For the foregoing reasons, we conclude that the trial court did not err in its decision to invalidate the 1993 Prenuptial Agreement and not enforce it during the divorce proceedings. Moreover, we conclude that the trial court did not err in its Judgment of Absolute Divorce, despite our conclusion that the trial court erred in finding that Ms. de la Peña was limited to the relief of a limited divorce. The trial court, however, did consider Ms. de la Peña’s requests for all relief available under an absolute divorce and distributed the marital property equitably, assessed the monetary award factors, found that such monetary award was not required to adjust the equities of the parties, and ordered indefinite alimony and attorney’s fees to Ms. de la Peña. We further conclude that the trial court did not err in its distribution of the marital property and did not abuse its discretion in refusing to grant Mr. de la Peña a monetary award.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY ARE AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Ms. de la Peña presents the following questions for our review:
1) Did the trial court err in invalidating the 1993 domestic Partnership and Prenuptial Agreement?
2) Did the trial court err in failing to sever valid provisions?
3) Did the trial court err by not confirming Wife’s surviving spouse annuity?
4) Did the trial court err in failing to award support during the marriage for the premiums of FEGLI, or reimburse this expense under undue enrichment?
5) Did the trial court err in denying support for home expenses in 2022? Alternatively,
6) Did the trial court err in failing to trace Wife’s separate property in their home?
7) Did the trial court err in holding the IRA the separate property of Husband?
8) Did the trial court err in limiting relief to limited divorce?
2 As noted, Ms. de la Peña was admitted to practice law in Argentina, Spain, New York, and Washington, D.C.
3 At the time of trial, the parties’ daughter was 23 years of age.
4 The 1999 Prenuptial Agreement, in pertinent part, read: “In the event of separation or divorce, marital property acquired after the marriage shall nevertheless remain subject to division, in proportion to the sums of separate property contributed by each party towards its acquisition and improvement, unless otherwise agreed in writing.”
5 Regarding separate property, the 1999 Prenuptial Agreement indicated that “[t]he income each of [the parties] earn[] – as well as any items of investments [the parties] purchase[] with [their] income, belong[] absolutely to the person who earns the money unless there is a written joint ownership agreement[,]” and that “[the parties] shall each maintain [their] own separate bank, credit card, investment and retirement accounts.”
6 Mr. Fleisig did not appeal the court’s decision as it relates to the validity of the 1999 Prenuptial Agreement. Therefore, that agreement is not subject to this appeal, and we will not address it further.
7 First, the 1993 Prenuptial Agreement indicates that, “[a]ssets designated as one person’s separate property including assets traceable to separate property belongs exclusively to that person [. . . .] Separate property is not subject to division.” Then the agreement indicates that “[t]he parties agree that all other personal or real property or assets owned jointly or separately, whenever acquired, including property acquired before this date, will be held as community, joint, joint tenants, or marital assets in the event of legal marriage, regardless on whose title it is held.” While “[s]pousal rights to pension benefits” appear to be designated as “separate property” in the agreement, the agreement also designates as “[c]ommunity or joint property[,]” the parties’ “retirement accounts, bank accounts, income, benefits, or service before or after this agreement” and “retirement benefits in pension, annuities and other employee benefits or tax deferred plans contributed or earned before or after this agreement.”
The agreement also indicates that Mr. Fleisig “agrees that he owes [Ms. de la Peña] $42,500, representing 10% of the purchase price of the property 5353 29th [Street NW, Washington, D.C.,] plus the interest rate of 8% per year, due in thirty years from the purchase date[,]” however, later in the agreement it states that Ms. de la Peña “further agrees to buy the property [. . .] and to lend 10% of the purchase price ($42,500)[.]” The court found these terms contradictory as it was unclear whether the loan was already made to Mr. Fleisig or if it was just planned to be made to him.
8 “[A] party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Md. Code Ann., Cts. & Jud. Proc. § 12-301 (emphasis added).
[A]n order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment[. ] Md. Rule 2-602(a) (emphasis added).
9 Mr. Fleisig has a retirement annuity with the World Bank and a federal retirement annuity.
10 As of May 7, 2024, Mr. Fleisig’s IRA had a balance of $113,619.46.
11 The trial court came to this amount using the formula established in Bangs v. Bangs, 59 Md. App. 350 (1984).
12 See Hopkins v. Hopkins, 328 Md. 263, 275 (1991) (holding that a trial court could not compel a party to cooperate with their ex-spouse in obtaining a life insurance policy on their life).
13 Neither Ms. de la Peña nor Mr. Fleisig appealed the circuit court’s ruling with respect to the awards for alimony or attorney’s fees, and thus we need not address these awards further.
14 “Marital property” is “property, however titled, acquired by 1 or both parties during the marriage.” Md. Code Ann., Fam.
Law § 8-201(e)(1).
15 Marital property does not include property acquired before marriage. Md. Code Ann., Fam. Law § 8-201(e)(3)(i). Upon the dissolution of a marriage, the marital property is distributed equitably between the parties. See Alston v. Alston, 331 Md. 496, 506–08 (1993).
16 The 1993 Prenuptial Agreement does not specify what it means to be “free of debt.” However, counsel for Mr. Fleisig during the hearing on the validity of the agreement argued that, per the agreement, Mr. Fleisig “was going to give [Ms. de la Peña] a house [and] pay the mortgage[.]” The idea that “free of debt” meant that Mr. Fleisig would pay the mortgage was neither further explained through testimony nor challenged by Ms. de la Peña during the validity hearing. Moreover, the house that the parties lived in at the time of the divorce proceedings was subject to a mortgage and a home equity line of credit (“HELOC”).
17 “The court may award alimony for an indefinite period, if the court finds that: [. . .] even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.” Md. Code Ann., Fam. Law § 11-106(c).
18 While our trial court here did not find the terms of the 1993 Prenuptial Agreement so unfair and inequitable to reach the level of “unconscionable” as the court in Williams did, the Williams case provides an example of terms in a marital agreement that the court deems as unfair and inequitable. “[I]t requires a greater showing of inappropriateness to prove that a prenuptial agreement is unconscionable than it does to show that it is invalid under the fair and reasonable test, which it deems to be the same as Maryland’s overreaching test.” Stewart, 214 Md. App. at 478 (citation and internal quotation marks omitted). Therefore, if an agreement is deemed unconscionable, it is inherently unfair and unreasonable, however, not every agreement deemed unfair and unreasonable will be found unconscionable. See id. (“Having just determined that there was no overreaching by Mr. Stewart, we may conclude, on that ground alone, that the parties’ prenuptial agreement was not unconscionable.”).
19 Mr. Fleisig cites no authority to support this assertion.
20 “In a proceeding for an annulment or an absolute divorce, if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property[.]” Md. Code Ann., Fam. Law § 8-203(a) (emphasis added). A “pleading for limited divorce cannot effectively seek a monetary award or transfer of marital property under our statutory scheme as marital property only exists in the context of an absolute divorce or annulment.” Lasko v. Lasko, 245 Md. App. 70, 76 (2020) (citation omitted).
21 Kreamer involved an attorney grievance petition. The Supreme Court held that the counterclaim for absolute divorce that Ms. Kreamer filed on behalf of her client alleged sufficient facts, that if proven, would entitle her client to relief. 387 Md. at 94.
22 Ms. de la Peña’s complaint asserted that the parties separated in December of 2021. When she filed her complaint on June 7, 2022, it had been six months since the parties separated. Ms. de la Peña claimed separation of six months as grounds for divorce in her complaint. On October 1, 2023, the grounds for an absolute divorce were amended to include six months separation, “if the parties have lived separate and apart for [six] months without interruption before the filing of the application for divorce.” Md. Code Ann., Fam. Law § 7-103(a)(1); see also H.B. 14, 2023 Gen. Assemb., 445th Sess. (Md. 2023).
23 Courts are prohibited from transferring ownership of an interest in property unless the property is one of the following:
(i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties;
(ii) subject to the consent of any lienholders, family use personal property, from one or both parties to either or both parties; and
(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together[.]
Md. Code Ann., Fam. Law § 8-205(a)(2).
24 The factors as listed in Fam. Law § 8-205(b) are as follows:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
Md. Code Ann., Fam. Law § 8-205(b).
25 During her testimony, Ms. de la Peña’s counsel alluded to a downpayment on the Travilah Road property purchase, and in her brief, Ms. de la Peña indicates that the equity proceeds from the Tulip Street property sale only “contributed” to the purchase of Travilah Road, therefore, Ms. de la Peña’s alleged contribution was not the full amount of the purchase price for Travilah Road, therefore, either Mr. Fleisig paid the remainder or there was a mortgage for the Travilah Road property. We know that, at the time of trial, there was a mortgage on the Travilah Road property.
26 CEAL was a non-profit organization that the parties established to assist and provide technical support in drafting legislation in developing countries, primarily in Spanish-speaking countries.
27 The trial court noted that “the total monthly payment to [Mr. Fleisig] under his Federal annuity is $2,656.00. The marital portion of the monthly annuity payment at that time would therefore be $684.71 ($2,[656].00 x 25.78% = $684.71).” Per the court’s ruling, Ms. de la Peña is entitled to one-half of the marital portion, which would be $342.35 per month.
28 Md. Code Ann., Fam Law §8-205(a)(2) reads:
(2) The court may transfer ownership of an interest in:
(i) a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties;
(ii) subject to the consent of any lienholders, family use personal property, from one or both parties to either or both parties; and
(iii) subject to the terms of any lien, real property jointly owned by the parties and used as the principal residence of the parties when they lived together[.]
Md. Code Ann., Fam. Law § 8-205(a)(2).
29 Ms. de la Peña testified that in 2022 a tree fell on the marital home and caused significant damage.
30 There was no explanation in the agreement as to what these payments were for.
31 Md. Code Ann., Fam. Law § 11-106(b) reads:
(b) In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
