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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 317 September Term, 1999

MARC JEFFREY CHIMES v. CAROLINE FLEMING MICHAEL

Hollander, Thieme, Adkins, JJ. Opinion by Thieme, J.

Filed: March 30, 2000

This is an appeal of a Judgment of Absolute Divorce entered on March 11, 1999, after a two-day trial during February in the Circuit Court for Montgomery County. On May 7, 1998, appellant

Marc Jeffrey Chimes filed a Complaint for Custody, requesting custody and support of the parties' six-year-old daughter, Meryn. Appellee Caroline Fleming Michael counterclaimed for custody and divorce. Chimes then counterclaimed as well for divorce, a

monetary award, future payment of proceeds from stock options when exercised, and legal fees. Before trial, the parties agreed to joint legal custody, with Chimes having primary physical custody of the child. The issues

contested at trial focused on marital property, primarily Michael's America Online employee stock options worth more than $10 million before taxes. The court below granted Chimes the use and

possession of the family home and car, child support, a monetary award of $1,493,423.20, and an "if, as and when" order directing the future distribution of stock options that were not yet fully vested. The court divided equally between the parties the marital

property other than the stock options, including monetary proceeds resulting from the exercise of more than $1 million in options. As

for the options, the court divided vested but unexercised options 75 percent to Michael and 25 percent to Chimes; the value of the vested options was rolled into Chimes's monetary award. The non-

vested options will be subject to the same division, but only after

application of a coverture fraction similar to the "Bangs formula" used for pension assets.1 The coverture formula will exclude from The

division a portion of the options that increases with time.

longer Michael waits to exercise the options, the less money Chimes may receive. The court also set child support, by allocating The Judgment was amended by

Meryn's needs equally between parties.

an Order entered April 13, 1999, in order to clarify certain matters, including the tax rate and which options would be used to pay Chimes's "if, as and when" award. Michael fully satisfied the

monetary award judgment, and Chimes accepted a sum representing the entire award. He nevertheless appeals the judgment and raises the

following questions: 1. Did the trial court abuse its discretion when it awarded Chimes 25 percent of the marital stock option rights, while dividing equally all other marital property, including the proceeds of stock options granted and exercised during the marriage? Did the trial court abuse its discretion by applying a coverture fraction or time rule similar to the so-called "Bangs

2.

See Bangs v. Bangs, 59 Md. App. 350, 475 A.2d 1214 (1984). In Bangs, the chancellor awarded future shares in the husband's retirement benefits to the wife if, as, and when he received them. To calculate the wife's share, the benefits when received would be multiplied by .5 (her award share), then further multiplied by a fraction that represented the years of marriage divided by the total years of employment. Id. at 356. In the instant case, the court ordered the "if, as, and when" share to be multiplied by Chimes's award share (.25), then further multiplied by a fraction representing the number of months between the grant of options and the dissolution of the marriage divided by the number of months between the grant of options and their exercise.

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formula" to adjust Chimes's rights in the stock options?[2] 3. Did the trial court err when it admitted and relied upon expert opinion as to the value of non-vested stock options, where the expert testified that it is not possible to value non-vested options within a reasonable degree of professional certainty? Did the trial court abuse its discretion when it split the child's support needs equally between parties and denied accounting from the date of the filing?

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Michael filed a motion to dismiss this appeal based on the fact that Chimes had been paid and accepted the monetary award before he filed a notice of appeal. We denied without prejudice, and she We now grant her motion to We explain

renewed the motion in her brief.

dismiss as to the first three issues raised on appeal. herein.

As to the fourth issue, child support, we answer "yes, in

part, and no, in part" to the question presented and we explain. Facts Chimes and Michael were married on October 21, 1989. One

child, a daughter named Meryn Michael Chimes, was born of the marriage on July 19, 1992. At the time of trial, Chimes and

Michael were, respectively, forty-five and thirty-seven years of age. When the parties married, Chimes was the primary breadwinner, and he remained so until 1997. Michael worked freelance for over

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This question combines three questions raised by Chimes.

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two years following Meryn's birth.

In May 1995, she went to work Chimes lost

for America Online (AOL), where she is still employed.

his consulting job of ten years in December 1997, and he remains unemployed. By his own testimony, his efforts to seek new

employment have been quite limited. During the time they lived together, any money the parties earned went into, and any expenses the parties paid came out of, the joint family account. When Meryn was an infant, the parties

hired a full-time care giver and housekeeper, Della Aguilar, who has continued to work for Chimes to date on a part-time basis. The parties' marriage was troubled for a long time prior to the divorce. They began discussing separation in 1993, and in

spring 1996, Chimes gave a neighbor a copy of a draft separation agreement. A month before the separation, Chimes informed Aguilar,

and Michael moved out on December 20, 1996. Michael contacts. obtained her employment at AOL through family

When she began work there, she was granted options for Three thousand of those options vested

12,000 shares of stock.

after her first anniversary with the company and an additional 3,000 per year vested on May 30 of 1997, 1998, and 1999. was granted 1,000 additional options in October 1997. Michael These

options vested at the rate of 250 per year on October 31 of 1997, 1998, and 1999. The final 250 will vest October 31, 2000. Thus,

when the parties separated, on December 30, 1996, only 3,000

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options of the 13,000 granted had vested, and the market price of AOL stock was $33.25 per share. On August 29, 1997, AOL granted Michael 1,000 more options, scheduled to vest at the rate of 250 per year on August 29 of 1998, 1999, 2000, and 2001. On September 1, 1998, almost two years after

the parties' separation, Michael received another 1,300 options, slated to vest at the rate of 325 per year on September 1 of 1999, 2000, 2001, and 2002. has The value of AOL stock fluctuates, but it

"increased wildly," in the chancellor's words, since the

grants.3 Chimes's expert acknowledged at trial that the stock options were granted to Michael, in part, as an incentive for her continued employment with AOL. The AOL stock option plan states:

A Participant who ceases to be an employee, director or consultant of the company or of an Affiliate (for any reason other than termination "for cause," disability or death) may exercise any Option granted to him or her to the extent that the Option is exercisable on the date of such termination of service, in accordance with the pertinent Option Agreement. An option holder who becomes disabled may exercise any options within one year of the date of termination for disability, and an

Our research showed that during the week of oral argument, AOL stock hovered between $55 and $57 per share. Because of the merger between AOL and Time-Warner, the value of AOL stock had declined in recent weeks from its value at the time of the trial. The stock has split, nevertheless, an amazing five times since Michael began to acquire options, and each time the stock split, her number of options likewise increased and the "strike" price to exercise those options decreased. See Yahoo! Finance (visited Mar. 6, 2000) <http://finance.yahoo.com>.

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optionee's estate may exercise any options within one year of death. According to the plan, the options are not transferrable by Michael; nor may they be assigned, pledged, or hypothecated in any way; nor are they subject to execution, attachment, or similar process. The parties stipulated that all options, both vested and non-vested, were marital property. As of the trial date, Michael

held 45,000 vested options from the first grant, 1,348 from the second grant, and 1,000 from the third grant. The parties agreed

at the trial that these options were worth in excess of $7.2 million before taxes, and $3.9 million after taxes. The parties

also stipulated that, on the day of the trial, Michael owned 31,600 non-vested options, including 24,000 from the first grant, 2,000 from the second grant, 3,000 from the third grant, and 2,600 from the fourth grant. The majority of these shares, 24,000, vested Chimes's expert valued the

about three months after the trial.

non-vested shares at $4,151,499, whereas Michael's expert, Jeffrey Capron, testified "that it is not possible to identify a value for non-vested options within a reasonable degree of professional certainty," and that the "better view" is that valuing non-vested options is "so speculative" that an opinion cannot be rendered. Capron's proposed method of distribution for the "if, as and when" award was to apply a coverture fraction, see supra, note 1, to nonvested options. This methodology effectively dilutes Chimes's

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share over the long run, if Michael delays in exercising them.

The

trial court admitted Capron's testimony, over Chimes's objections. After a two-day trial on the merits, the court below granted the parties a Judgment of Absolute Divorce and entered in favor of Chimes a judgment of $1,493,423.20, representing 50 percent of the marital property, including the proceeds of those options that had been exercised before the date of divorce, and 25 percent of the after-tax exercised.4 value of vested stock options that had not been

The court also divided the non-vested options 75

percent to Michael and 25 percent to Chimes, to be distributed on an "if, as and when" basis. to the coverture fraction. The trial court found Meryn's support needs to be $2,250 per month, and it split those costs evenly between Chimes and Michael. Because Chimes is the custodial parent, Michael must pay him $1,000 per month. She also covers the child's health insurance premiums. The non-vested options were subject

The court denied Chimes's request for attorneys' fees and costs. On March 2, 1999, Michael filed a Motion to Alter or Amend the Judgment. 1999. An Order amending the Judgment was entered on April 15,

On May 3, following Michael's payment in full, Chimes filed

a line indicating that the judgment had been satisfied.

On December 16, 1998, Michael exercised 21,000 stock options and realized gross proceeds of $1,945,860 ($1,225,552 after taxes were withheld). She used some of the proceeds for taxes, and legal and accounting fees. At trial, $970,000 after-tax proceeds remained in her money market account at Chevy Chase Bank.

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Discussion I Chimes's first three questions address the court's methodology for dealing with the stock options, especially those options that had not vested at the time of trial. He objects to the 75:25

division of all unexercised options, as well as to the court's use of the coverture formula for the non-vested options and reliance on Michael's expert witness for testimony on eventual distribution of the proceeds. Michael moves to dismiss these issues. We find her

rationale for dismissal to be dispositive, and we therefore grant her motion, declining to reach the merits of Chimes's appeal. Michael argues, and we agree, that by accepting the benefits of the trial court's judgment -- indeed, the full satisfaction of the monetary award -- Chimes has "lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken." Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531

(1966); see also Suburban Dev. Corp. v. Perryman, 281 Md. 168, 171, 377 A.2d 1164 (1977) ("It is a well-established rule in this State that unless the decree also adjudicates a separate and unrelated claim in favor of a litigant, he cannot, knowing the facts, both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal."); Bowers v. Soper, 148 Md. 695, 696, 130 A. 330 (1925) ("Upon the plainest principles of estoppel [appellant] is prevented from successfully

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disputing a disposition of funds thus made with his consent."); Stewart v. McCaddin, 107 Md. 314, 318-19, 68 A. 571 (1908) ("He thus acquiesced in, and invoked the authority of, the very order from which he had appealed . . . . Under these circumstances, he More

cannot be permitted to question the validity of the order.").

recently, we reiterated this principle in Fry v. Coyote Portfolio, LLC, 128 Md. App. 607, 616, 739 A.2d 914 (1999): It is well settled in Maryland, and the law generally is to the effect, that, if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order, or decree, such acceptance operates as a waiver of any errors in the judgment, order, or decree and estops that party from maintaining an appeal therefrom. Events that transpired since the judgment convince us that Chimes recognized the validity of the Judgment of Absolute Divorce, as amended, and took action inconsistent with his right to appeal by eagerly accepting the benefits of that judgment, even as he twice filed Notices of Appeal. In the Judgment of Absolute Divorce, Chimes received from the trial court a monetary award in his favor for $1,493,423.20. The

judgment was docketed on March 11, 1999, and Michael satisfied it within weeks. On March 19, she sent Chimes a check for $750,000 in On about March 29, pursuant to Chimes's

partial satisfaction.

instructions, Michael transferred an additional $727,552.20 to his attorney's escrow account. She delivered the final installment, a

check for $15,871, to Chimes's attorney on April 13. 9

Chimes wasted no time in accepting the judgment's benefits. Only eight days after the judgment was docketed, he accepted and negotiated Michael's first check. Less than a week later, on March as was his

25, he filed a Request for a Writ of Garnishment -- right -- to execute on the unsatisfied portion.

Although the writ

was never served, the docket shows that Chimes personally procured it, as agent for his attorney. On April 9, when he had received

all but the small final installment of the award, Chimes filed a Notice of Appeal with this Court, challenging the trial court's equitable distribution of the same. On April 28, when he filed the

statement of satisfaction required by Maryland Rule 2-626(a),5 Chimes also filed a second Notice of Appeal for the judgment as it had been amended by the order of April 13. He now stands before

this Court, having accepted almost $1.5 million from the equitable distribution of marital assets, and appeals the same. Chimes argues that he has not accepted any portion of the "if, as and when" award of non-vested options, and that such award is independent from the monetary award entered by the chancellor. He

contends that the monetary award is "unrelated to, or independent of, the unfavorable portion of the decree," i.e., the award of non-

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Rule 2-626(a) states: Upon being paid all amounts due on a money judgment, the judgment creditor shall furnish to the judgment debtor and file with the clerk a written statement that the judgment has been satisfied. Upon the filing of the statement the clerk shall enter the judgment satisfied.

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vested options and, thus, "acceptance of the benefit under [this] unrelated or independent portion of the decree will not result in a waiver of the right to appeal from the other unfavorable We

independent portion of the decree." disagree.

Fry, 128 Md. App. at 919.

Chimes's reading of the Maryland law of equitable distribution clearly contradicts our statutes and cases. Although a marital

estate may include many categories of property -- real estate, vehicles, retirement funds, stock portfolios, bank accounts,

jewelry, antiques, collectibles, precious metals -- all the property together is but a single pie to be divided between the divorcing parties. Thus, a judgment of divorce might divide the various

forms of property in differing proportions, but at bottom it is a unitary plan for the distribution of assets. Law Article makes this scheme clear. Title 8 of the Family

The court first must identify

all marital property before it begins the process of distributing it. See Md. Code (1984, 1999 Repl. Vol.),

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