UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1115 September Term, 2010 JAMES J. FLAMISH v. CAROL D. FLAMISH Eyler, Deborah S., Woodward, Raker, Irma S. (Retired, Specially Assigned), JJ. Opinion by Woodward, J. Filed: August 14, 2013
On November 3, 2009, James Flamish, appellant, and Carol Flamish, appellee, appeared before a family division master for a hearing on appellant s Motion for Modification (Terminate Alimony). On January 7, 2010, the master recommended that appellant s motion be denied and that appellant be ordered to pay appellee s attorney s fees. On January 12, 2010, appellant filed Exceptions to the Master s Findings and Recommendations. On June 1, 2010, the Circuit Court for Montgomery County held a hearing on appellant s exceptions, and, on June 17, 2010, filed a written opinion overruling all of appellant s exceptions. On June 17, 2010, the court also entered an order denying appellant s motion and ordering appellant to pay appellee s attorney s fees. Appellant presents two questions for our review, which we have rephrased: 1. Did the trial court err or abuse its discretion in denying appellant s Motion for Modification (Terminate Alimony)? 2. Did the trial court err or abuse its discretion in awarding appellee attorney s fees? For the reasons set forth herein, we shall answer each question in the negative and accordingly affirm the judgment of the circuit court. BACKGROUND Appellant and appellee were married on August 23, 1975. They have one child as a result of the marriage, James John Flamish, Jr., who was born on January 1, 1982 and is now emancipated. The parties were divorced by the circuit court on June 2, 1999. As of the date of divorce, appellant worked for Adams-Burch, Inc. as a commission-only salesman in the food service industry, and appellee worked as a part-time parent educator in the Montgomery
County School System. At the time of the divorce, the parties stipulated that appellant s gross annual income was $68,250.00 and appellee s gross annual income was $13,392.00. The parties entered an agreement that was incorporated, but not merged, into the Judgment of Absolute Divorce. Pursuant to that agreement, the court ordered the following: [Appellant] shall pay to [appellee] as and for alimony the amount of $2310 per month, beginning and accounting from March 1, 1999, to be increased to $3,000 beginning and accounting from January 1, 2000, through August 31, 2001. Thereafter, said alimony shall be reduced to $1,500 per month beginning and accounting from September 1, 2001, to continue thereafter as modifiable alimony, payable during the joint lives of the parties or the remarriage of [appellee], whichever shall first occur.... On January 16, 2004, appellee filed a Motion for Modification of Alimony, requesting that the circuit court increas[e] the amount of monthly alimony payable to her by [appellant]. On March 19, 2004, appellant filed a Motion for Modification of Alimony, requesting that the court issue an Order decreasing the amount of monthly alimony payable by [appellant] to [appellee]. Both motions were scheduled for a hearing on October 13, 2004. On October 13, 2004, the parties jointly filed a Line of Dismissal, stating that the parties had resolved their issues and requested that the court dismiss each of their motions. On April 1, 2009, appellant filed a Motion for Modification (Terminate Alimony) ( Motion ) seeking to terminate appellee s alimony on the grounds that appellee was selfsupporting and that appellant s income had decreased. On June 24, 2009, appellee filed an opposition to the Motion. 2
Appellant, since the divorce, has remained employed with Adams-Burch, Inc. According to his amended financial statement, appellant has a gross annual income from wages of $118,680.00 and an adjusted annual income, after deductions, of $115,163.64. Appellee is currently employed by the Montgomery County School System as a full-time teacher. According to her amended financial statement, appellee has a gross annual income from wages of $84,187.00, and an adjusted annual income, after deductions, of $35,368.20. 1 On November 3, 2009, the parties appeared before a family division master for a hearing on appellant s Motion. On January 7, 2010, the master delivered his oral findings and recommendations. The master noted at the outset that appellant was seeking only to terminate alimony, not to modify it: On the record, I basically asked counsel, is this something that [appellant] is seeking to modify, the obligation? I was basically told this is an all or nothing proposition to me. (Emphasis added). The master explained that under the statute, appellant must demonstrate how it would be a harsh, and inequitable result upon him for me not to terminate [the existing alimony award], and that the master must first examine [appellant] s income. The master identified several instances that called into question appellant s credibility with regards to his stated income and assets. First, the master noted that appellant failed to disclose, at the time of the divorce, that he was a co-owner with his mother of a significant by appellant. 1 The adjusted annual income does not include the $1,500.00 per month alimony paid 3
amount of IBM stock. Next, the master explained that appellant omitted five rental real properties from his initial financial statement, as well as from his income tax returns. According to the master, there were also significant discrepancies between appellant s income tax returns and his amended financial statement regarding car expenses, income taxes paid, FICA, and Medicare taxes. Finally, the master noted that appellant represented his income to be $148,900.00 on a recertification application to America s Bank for an extension of a construction loan, which was much higher than the income figure he had submitted to the court. In considering these discrepancies, inconsistencies, and failures to disclose, the master concluded that he could not rely on appellant s stated income and assets and therefore appellant failed to met his burden of proof for terminating alimony: Simply put, I have absolutely zero confidence in [appellant] s numbers. I have absolutely zero confidence in his credibility. In my opinion, he has done everything to hide his income, his assets. He wants nobody to look into them, yet he wants a modification. Sir, in all candor, I don t believe a word you told me. His omissions were intentional, in my mind, as the initial trier of fact. It is that simple. In my opinion, [appellant] has no credibility. [Appellant] comes to this court, in my opinion, with completely unclean hands. Simply put, in my opinion, with the evidence before me, and the lack of evidence before me, and the conflicting evidence before me, [appellant], by his own doing, not by counsel s, by his own doing, has failed to carry his burden to me to show how the [failure to terminate] alimony would be a harsh and inequitable result upon him, as I cannot, with any reasonable certainty, ascertain his income. The master then recommended that appellant s Motion be denied. The master also recommended that attorney s fees be awarded to appellee in the amount of $23,051.25, 4
because appellant either failed to comply with discovery or made material omissions and misrepresentations in discovery, which caused appellee to incur expensive and unnecessary legal fees in seeking discovery. On January 12, 2010, appellant filed Exceptions to the Master s Findings and Recommendations. On June 1, 2010, the circuit court held a hearing on appellant s exceptions, and, on June 17, 2010, issued a Memorandum Opinion overruling all of appellant s exceptions. In its opinion, the circuit court addressed appellant s claim that the master failed to address whether the alimony should be modified and thus erred by not reducing the alimony paid by appellant to appellee: Termination and modification of alimony are, in fact, treated separately by and are wholly distinct under Maryland law. Moore v. Jacobsen, 373 Md. 185, 191 (2003). They are two discrete remedies which operate under two materially different standards. [Md. Code (1984, 2006 Repl. Vol.),] 11-108 [of the Family Law Article ( F.L. )], which governs termination of alimony, requires in this case that the Court find that termination is necessary to avoid a harsh and inequitable result. [F.L. ] 11-107, which governs modification of alimony, authorizes the Court to modify alimony as circumstances and justice require. Consequently, if [appellant] wished to pray in the alternative for modification of alimony, he was required to explicitly state so in his motion, so as to put [appellee] on notice and allow her to defend accordingly. Although [appellant] entitled his motion as Motion for Modification (Terminate Alimony), [appellant] only asked within that the Court terminate alimony. Furthermore, at the hearing on the motion, [appellant] only argued that alimony be terminated, and not that it be modified. 5
As [appellant] never moved for modification of alimony, neither the Master nor this Court are obliged to determine whether [appellant] is entitled to such. (Footnote and citation omitted). The circuit court also considered appellant s contention that the master erred in not terminating appellant s alimony obligation because the master s recommendation was based solely on his findings and conclusions as to appellant s credibility, which were without adequate grounds. The court responded: [Appellant] s first core argument is that the Master s findings and conclusions as to his credibility are not entirely meritorious, and do not in themselves justify the Master s recommendation. Conceding the inconsistencies in his financial disclosures, [appellant] attempts to justify them to rebut the Master s credibility determination. He argues that he failed to disclose the stock ownership in his initial financial statement because he is a lay person with no legal training, and thus the obligation to include the stock as an asset was not apparent; and additionally because the stock was originally jointly titled in the names of [appellant] and his mother. This Court finds that [appellant] is a college-educated man with a bachelor s degree in business administration; the Court does not credit his stated ignorance as to stock investments being assets that should be disclosed in his financial statement. This Court further finds that at the time of filing his initial financial statement, the stock was titled solely in [appellant] s name. As for his rental properties, [appellant] attempts to justify his failure to disclose them in the initial financial statement by claiming that they were not income-bearing at the time; [appellant] also advances this reason to explain why he did not include the properties in his tax return or file a separate return for his LLC, which owns the properties. This Court finds that real properties are assets that compromise [appellant] s net worth, and clearly must be disclosed, at the very least in his financial statement. The court cannot credit [appellant] s proffered excuses. [Appellant] attempts to explain away 6
(Footnote omitted). the discrepancy in his car expenses by claiming that a per-mile deduction standard is acceptable on a tax return, but actual expenses are required on the financial statement. [Appellant] next claims that the stated income tax on his financial statement was inflated because he simply overestimated, and he concedes without explanation that the stated income in his loan recertification application was erroneous. Finally, [appellant] argues that the Court did not hold [appellee] to the same standard of credibility. The Master s findings as to the defects in [appellant] s financial disclosures were not clearly erroneous, as they are plainly evident to this Court from a review of the record. In regards to the conclusion that [appellant] was not credible about his financial condition, the Master, as the initial trier of fact, was in a superior position to evaluate [appellant] s credibility. Intel Assoc. v. Harrison Inn Inlet, Inc., 324 Md. 254, 266 (1991). Even upon an independent review of the record and consideration of [appellant] s arguments, this Court reaches the same conclusion. [Appellant] failed to provide credible evidence to establish his economic standing, and therefore did not successfully carry his burden of proof to show that termination of alimony is necessary to avoid a harsh and inequitable result. The abundant disparities and omissions in [appellant] s financial disclosures render the evidence patently unreliable. [Appellant] s arguments, which attribute these evidentiary flaws to simple error or ignorance, fail to explain or redeem the problems. The errors and omissions are too numerous and too significant to be cast as mere mistakes, and [appellant], as a college-educated man with a bachelor s degree in business administration, cannot credibly maintain ignorance as to the meaning of asset. The circuit court then addressed appellant s claim that the master erred in failing to find that appellee was economically rehabilitated and thus alimony should be terminated to avoid a harsh and inequitable result. The court responded that the inability to determine appellant s income made any consideration or finding as to appellee s financial situation 7
irrelevant, because without information as to appellant s financial situation, there was no way for the master or the court to determine whether the termination of alimony was necessary to avoid a harsh and inequitable result: Without knowledge of [appellant] s actual income and net worth, it was not possible for the Master, nor is it possible for this Court, to ascertain the degree of divergence between the parties respective standards of living. While this Court finds that [appellee] did substantially increase her income between the date of the divorce and the present, [appellee] s improved financial standing alone cannot show that termination is necessary to avoid a harsh and inequitable result, and this Court therefore denies [appellant] s motion to terminate alimony. Finally, the circuit court considered appellant s claim that the master erred in awarding attorney s fees to appellee. The court stated: Pursuant to an alimony proceeding, [F.L.] 11-110(d) provides that upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding. Upon its independent review, this Court is compelled to award full attorney s fees to [appellee] because there was an absence of substantial justification for [appellant] to pursue this proceeding, id., given the manner in which he attempted to prosecute his claim. [Appellee] did indeed substantially increase her income since the time at which alimony was awarded, and had [appellant] been forthcoming with his own financial information so as to enable the Master to make an informed and just determination, [appellant] would have had good cause to prosecute this proceeding. Instead, [appellant] persistently failed to provide [appellee] and the Master with the evidence necessary to properly adjudicate the dispute, and his continued pursuit 8
of the action thereto was, at best, a marked misuse of judicial resources. (Emphasis in original). The court went on to explain that appellee also would be entitled to attorney s fees pursuant to F.L. 11-110(b)-(c). The court analyzed the two required statutory factors to make such an award, finding that (1) even though appellant rendered it impossible for this Court to determine his precise financial resources and needs, he had, according to his amended financial statement, $249,246.00 more in net worth than appellee, and thus had the ability to bear [appellee] s attorney s fees ; and (2) appellee had substantial justification to defend against appellant s Motion because of appellant s lack of disclosure of his finances and the resulting employment of discovery procedures by appellee to ascertain those finances. Because the amount of the attorney s fees was found reasonable and necessary, the court concluded that appellee was entitled to an award of attorney s fees. In conformance with its Memorandum Opinion, the circuit court entered an order on June 17, 2010, denying appellant s Motion and ordering appellant to pay appellee s attorney s fees in the amount of $23,051.25. This timely appeal followed. Additional facts will be set forth below as necessary to resolve the questions presented. 9
DISCUSSION A. Appellant s Motion to Terminate Alimony 1. Request to Modify Alimony Preliminarily, we must address appellant s contention that the trial court erred in not considering his request for modification of alimony, as an alternative to termination. Appellant claims that he made references throughout [the hearing before the master] to modifying or terminating alimony and that the Motion was sufficient to give appellee notice that he was seeking either termination or modification of alimony. Appellee counters that the circuit court correctly determined that appellant had pled only the termination of alimony. According to appellee, termination and modification of alimony are governed by two different standards set forth in two different statutory provisions of the Family Law Article, and appellant never requested modification. Viewing the four corners of the Motion, it is clear that appellant was seeking only to terminate alimony. The Motion is titled Motion for Modification (Terminate Alimony), and Paragraph 8 of the Motion states that there has been a substantial change in the parties financial and personal circumstances; that said circumstances and justice requires 10
[sic] that alimony terminate; that termination of alimony is necessary to avoid a harsh and inequitable result. [2] In his prayer for relief, appellant requests that the previously ordered alimony be terminated accounting to the date of the filing of this Motion. (Emphasis added) Nowhere in the prayer for relief is there a request for modification of alimony. Moreover, we note that in the past appellant has proven capable of specifically requesting modification of alimony as distinct from termination of alimony. On March 19, 2004, appellant filed a Motion for Modification of Alimony, which prayed for the circuit court to issue an order decreasing the amount of monthly alimony payable by [appellant] to [appellee]. Thus, if appellant sought termination of alimony and, in the alternative, modification, appellant knew how to specifically request it. As previously indicated, the master stated on the record that he understood appellant s Motion to be one for termination of alimony only. There is nothing in the transcript of the hearing before the master to show that appellant s counsel advised the master that such understanding was incorrect. Indeed, in her Memorandum Opinion, the circuit court judge noted that appellant s counsel also conceded on the record at the Exceptions Hearing that he had never made an oral motion for modification of alimony when he was before the Master. 2 We note that the language necessary to avoid a harsh and inequitable result is specific to the court s evaluation of a request for termination. See Md. Code (1984, 2006 Repl. Vol.), 11-108(3) of the Family Law Article. 11
Finally, the circuit court explained that [t]ermination and modification of alimony are, in fact, treated separately by and are wholly distinct under Maryland law and that, if [appellant] wished to pray in the alternative for modification of alimony, he was required to explicitly state so in his motion, so as to put [appellee] on notice and allow her to defend accordingly. We agree. Modification and termination of alimony require two distinct evaluations under the statute and thus, to satisfy due process, appellant was required to explicitly request modification of alimony to bring that issue properly before the court. Because appellant did not request modification of alimony in his Motion, nor make an oral motion for the same before the Master, the trial court did not err in failing to consider the issue of m odification of alimony. 2. Factual Findings and Credibility Assessment Appellant asserts that the circuit court erred in finding that appellant was not credible. Specifically, appellant contends that the court endorsed the master s findings without any independent analysis of appellant s explanations for the discrepancies in the reporting of his income, expenses, and assets, and merely rubber-stamped the master s findings. Appellant also claims that the master s factual findings were erroneous. Appellee responds that the circuit court gave appropriate deference to the master s fact-finding and assessment of appellant s credibility. According to appellee, the trial court went further, by conducting its own independent review, and came to the same findings and 12
credibility assessment as the master. Appellee concludes that the trial court did not blindly accept the master s findings and conclusions without discussion or analysis and that the court s decision was not erroneous. In reviewing a master s findings and recommendations, a trial court must subject[] the master s fact-finding to a clearly erroneous test and then exercis[e] his [or her] independent judgment concerning the proper conclusion to be reached upon those facts. Domingues v. Johnson, 323 Md. 486, 490 (1991). A finding that a witness did not testify truthfully is a finding of fact that a master may make, even though it is to some extent an opinion or conclusion, often drawn from a variety of observations and inferences. Id. at 494. In its Memorandum Opinion, the trial court reviewed each of the master s findings of fact regarding appellant s inconsistencies and omissions in his financial disclosures, as well as appellant s explanations for such inconsistencies and omissions. The court addressed appellant s failure to disclose his ownership of IBM stock and five rental properties on his initial financial statement that was filed at the same time as the filing of the Motion. The court also discussed the discrepancy in appellant s car expenses as reported on his income tax returns and his amended financial statement, appellant s substantial overestimation of his income taxes on his amended financial statement, and the major discrepancy between appellant s income listed in his loan recertification application and the income set forth in his amended financial statement. In the discussion of these discrepancies and failures of 13
disclosure, the court rejected all of appellant s proffered excuses. The court concluded that the master s findings as to the above defects in [appellant] s financial disclosures were not clearly erroneous, and that the master s conclusion from those findings that appellant was not credible about his financial condition was entitled to deference because of the master s position as the initial trier of fact. The trial court, however, went further than what the law requires by conducting an independent review of the master s factual findings and credibility assessment. Such independent review resulted in the court reaching the same conclusion as the master. The court explained: Even upon an independent review of the record and consideration of [appellant] s arguments, this Court reaches the same conclusion. [Appellant] failed to provide credible evidence to establish his economic standing, and therefore did not successfully carry his burden of proof to show that termination of alimony is necessary to avoid a harsh and inequitable result. The abundant disparities and omissions in [appellant] s financial disclosures render the evidence patently unreliable. [Appellant] s arguments, which attribute these evidentiary flaws to simple error or ignorance, fail to explain or redeem the problems. The errors and omissions are too numerous and too significant to be cast as mere mistakes, and [appellant], as a collegeeducated man with a bachelor s degree in business administration, cannot credibly maintain ignorance as to the meaning of asset. It is abundantly clear from the above review of the trial court s opinion that the court did not rubber-stamp the master s factual findings and credibility assessment, but in fact exercised its own independent review to reach the same conclusion. Drawing the same conclusion as the master from an independent analysis is not tantamount to a rubber-stamp. 14
Appellant also contends that the master s factual findings and credibility assessment were in error. As we stated in Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md. App. 267, 275, cert. denied, 328 Md. 237 (1992): (Citations omitted). Unless the factual findings of the trial court are clearly erroneous, an appellate court may not arrive at different factual conclusions. If there is any competent material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous. The weight of the evidence and the credibility of the witnesses is a matter for the determination of the trial court and will not be disturbed on appeal unless clearly erroneous. There is more than substantial evidence to support the master s and trial court s factual findings regarding the discrepancies and failures of disclosure in appellant s reporting of his financial condition. In fact, appellant s complaint, both before the trial court and on appeal, is essentially that the master did not accept his explanations for these discrepancies and failures of disclosure. In our view, the court properly rejected appellant s excuses for (1) failing to disclose his ownership of stock and real properties on his initial financial statement, (2) asserting different car expenses on his tax returns and financial statements, (3) inflating the income tax on his amended financial statement, and (4) listing his income on a loan recertification application that was substantially higher than the stated income in his financial statements. The court reasoned that, because appellant was a college-educated man with a bachelor s degree in business administration, the court could not credit his proffered excuses, which included ignorance of the meaning of asset on a financial 15
statement and simple error in overestimating the income tax on his financial statement. Therefore, the trial court s finding that appellant was not credible about his financial condition was not clearly erroneous. 3. Consideration of the Statutory Factors Appellant contends that the trial court was required to consider each of the factors under F.L. 11-106 in determining whether alimony should be terminated and erred by failing to do so. We disagree. F.L. 11-108 governs the termination of alimony: (Emphasis added). Unless the parties agree otherwise, alimony terminates: (1) on the death of either party; (2) on the marriage of the recipient; or (3) if the court finds that termination is necessary to avoid a harsh and inequitable result. There is nothing in the language of F.L. 11-108, nor in the case law, that requires the trial court to consider any of the factors set forth in F.L. 11-106 when determining whether to terminate alimony. Indeed, the case law supports the opposite proposition, namely that the F.L. 11-106 factors are wholly separate from the analysis required under F.L. 11-108. See Walter v. Walter, 181 Md. App. 273, 297 (2008) (stating that the decision to award alimony incident to the entry of a judgment of absolute divorce is not to be made by means 16
of a modification or termination standard, but by consideration of the factors set forth in FL section 11-106 ). Appellant, nevertheless, relies on our opinion in Lott v. Lott, 17 Md. App. 440 (1973), to support the principle that whether or not modification is justified is to be determined by an application to the changed conditions of all the relevant principles that are applied in fixing the amount of the original award of alimony. Id. at 447 (footnotes omitted). Appellant s reliance is misplaced. First, Lott was decided in 1973, a time when F.L. 11-106 and 11-108 did not yet exist. Second, the appellee in Lott sought a modification of alimony by increasing the amount of the award, not a termination of alimony. Id. at 441-42. Last, the issue before us in Lott was whether a substantial change in the circumstances of both parties was a condition precedent to a trial court s jurisdiction to modify an alimony award. Id. at 444. We did not decide any issue relating to the required factors to be considered by the trial court in determining whether to terminate an aw ard of alimony. 4. Appellee s Finances and Financial Discrepancies Appellant argues that the trial court also erred in failing to analyze appellee s income and financial circumstances and in failing to address discrepancies in appellee s financial statements. Specifically, appellant asserts that appellee is wholly self-supporting, with an income of $84,187.00 per year as opposed to $13,392.00 per year at the time of the divorce, and has substantial assets, with a total net equity of $541,754.00. 17
Appellee responds that the trial court was not required to make findings as to appellee s financial circumstances and any alleged discrepancies in her financial statements, because [w]ithout a clear credible picture of the appellant s income, expenses and financial circumstances, further findings are superfluous. According to appellee, if a party fails to meet his burden of proof regarding one element of his case, it matters not whether there was proof of the other elements. We agree with appellee. Under F.L. 11-108(3), in order to terminate alimony, the trial court must find that termination is necessary to avoid a harsh and inequitable result. As the moving party in the instant case, appellant had the burden of proving that termination of alimony was warranted. See Walter, 181 Md. App. at 296. In its Memorandum Opinion, the trial court stated that, in order to determine whether the termination of alimony is necessary to avoid a harsh and inequitable result, the trial court must compare the financial circumstances of both [appellee] and [appellant]. The court explained that, [w]ithout knowledge of [appellant s] actual income and net worth, it was impossible for the court to ascertain what, if any, divergence existed between the parties respective standards of living. Thus the court concluded that appellee s financial condition standing alone could not be the basis for the termination of alimony. We agree with the above analysis and conclusion of the trial court. Appellant, as the moving party, had the burden of proof, and the first step in satisfying that burden was to show his financial condition at the time of the hearing before the master. We have already 18
held that the master and the trial court were not clearly erroneous in finding that appellant was not credible about his financial condition. Without adducing credible evidence of his financial condition, appellant failed to carry his burden of proving that termination of alimony was necessary to avoid a harsh and inequitable result. F.L. 11-108(3). Accordingly, evidence of appellee s income and financial circumstances, as well as any discrepancies in appellee s financial statements, were essentially irrelevant to the trial court s decision, and the court thus did not err in failing to consider such evidence or discrepancies. Appellant again looks to Lott for support. 17 Md. App. at 445. Appellant asserts that under Lott, the trial court need only determine whether there was a substantial change in [a]ppellee s financial circumstances to begin the statutory process of determining whether a continuation of alimony was warranted. Again, appellant s reliance on Lott is misplaced. As previously mentioned, the issue before us in Lott was whether a substantial change in the circumstances of both parties was necessary for the trial court to modify an alimony award. 17 Md. App. at 444. The evidence before the trial court in Lott indicated that only the husband s financial circumstances had substantially changed, while the wife s income and needs had remained essentially the same since the date of the original alimony award. Id. at 442-43. The key distinction between Lott and the case sub judice is that, in Lott, the court had evidence of the financial condition of both parties at the time of the hearing. Id. Here, the trial court had no credible evidence to establish [appellant s] economic standing. 19
For all of the above reasons, we hold that the trial court did not err or abuse its discretion in denying appellant s motion to terminate alimony. B. Attorney s Fees Appellant contends that the circuit court erred in awarding attorney s fees to appellee. According to appellant, he had clear and substantial justification for prosecuting the Motion, and the circuit court failed to adequately consider appellee s financial resources or needs in rendering its decision. Appellee counters that the circuit court did not abuse its discretion in awarding attorney s fees to appellee. Appellee contends that the court properly found that appellee s defense to the Motion was substantially justified and that appellant had not only the financial resources to pay the attorney s fees but had greater financial resources than appellee. The award or denial of counsel fees is governed by the abuse of discretion standard. Caccamise v. Caccamise, 130 Md. App. 505, 519, cert. denied, 359 Md. 29 (2000). Here, the circuit court found two separate grounds on which to base its award of appellee s attorney s fees. First, the circuit court determined that F.L. 11-110(d) empowered the court to award attorney s fees under the circumstances of the instant case. F.L. 11-110(d) states: Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the 20
(Emphasis added). court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding. The circuit court found that there was an absence of substantial justification for [appellant] to pursue this proceeding, given the manner in which he attempted to prosecute his claim. (Citation omitted). As to the presence of good cause to the contrary, the court found that, had [appellant] been forthcoming with his own financial information so as to enable the Master to make an informed and just determination, [appellant] would have had good cause to prosecute this proceeding. The court concluded: Instead, [appellant] persistently failed to provide [appellee] and the Master with the evidence necessary to properly adjudicate the dispute, and his continued pursuit of the action thereto was, at best, a marked misuse of judicial resources. Second, the circuit court found that an award of attorney s fees to appellee was warranted under F.L. 11-110(b)-(c), which states: Authority of court (b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding. Required considerations (c) Before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding. 21
The circuit court first looked to the financial resources and financial needs of both parties. The court found that appellant rendered it impossible for this Court to determine his precise financial resources and needs, given the defective financial information he has provided. The court explained that pursuant to the equitable doctrine of unclean hands, it would not allow appellant to benefit from this lack of candor. The court considered the financial resources and needs of appellee, finding that appellee had annual gross income of $84,187.00 and a net worth of $541,754.00. Accepting appellant s net worth of $791,000.00 at face value, the court concluded that appellant had the ability to bear [appellee] s attorney s fees. The circuit court then considered whether appellee had substantial justification for defending against appellant s Motion. The court found: [Appellant] hid assets and refused to make full disclosure of his finances from the commencement of this litigation. The resulting evidentiary failures raised questions as to whether termination of alimony was warranted, and [appellee] was entitled to fully defend against this matter on the merits. Furthermore, as the Master correctly found, [appellee] was forced to employ discovery procedures, including the filing of multiple subpoenas and a motion to compel, in an attempt to ascertain [appellant] s financial status. The circuit court clearly articulated its findings as to the required considerations under both F.L. 11-110(d) and F.L. 11-110(b)-(c) and had competent evidence to support those findings. Accordingly, we see no error or abuse of discretion on either ground for the court s award of attorney s fees to appellee. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT. 22