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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 498 SEPTEMBER TERM, 1997

JOHN GALLAGHER

v.

JOAN GALLAGHER

Cathell, Davis, Sonner, JJ.

Opinion by Cathell, J.

Filed: December 1, 1997

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John Gallagher appeals from a judgment of the Circuit Court for Baltimore County that granted Joan Gallagher, appellee, an absolute divorce, awarded her indefinite alimony, granted her a marital award, and awarded her attorneys' fees. Mr. Gallagher's

appeal raises issues regarding the award of indefinite alimony, monetary award, and attorneys' fees. of the trial court. I. THE FACTS At the time of before and We shall affirm the judgment

Appellant and appellee were married in 1987. their marriage, appellee had been married

twice

appellant had never been married.

Appellant was a professional

gambler and investor, and appellee worked as a secretary and sales clerk. While married, appellant continued to work as a professional gambler and investor. There also was testimony that appellant

acted as a "facilitator," one who assists another in placing bets on sporting events. Appellant testified that he made approximately He

$50,000 per year from personal bets and as a facilitator.

stated he expected a decrease in his income because he would no longer be acting as a "facilitator," as appellee's counsel had informed him that such conduct was illegal. Appellee continued to

work during the marriage and, at the time of the divorce, had a part-time job from which she earned $12,827 per year.

Appellee introduced, over appellant's objection, the testimony of Regis Burke, a Certified Public Accountant. Mr. Burke was

offered as an expert witness in the areas of taxation, accounting, finance, and asset valuation and was accepted as an expert by the court. expert Appellant never objected to Mr. Burke's credentials as an witness; that appellee's were objection by the related expert solely to from the the

summaries

prepared

witness

financial documentation and testimony given by appellant. Mr. Burke testified extensively regarding the summaries he had prepared relative to appellant's cash flow and assets. He

testified that appellant "spent well in excess of what he reported as income in each given year." For example, Mr. Burke testified

that in 1995, appellant spent approximately $31,375 more than his reported income. Mr. Burke testified that some of his assets,

however, were cashed in during that time period and that this would have given appellant additional liquidity. Mr. Burke testified

that this added liquidity could have been used to pay for the personal expenditures that exceeded his income, but he could not make a determination as to "what proportion was spent on living expenses and what proportion was rolled over into an investment account." In the court's memorandum opinion, it granted appellee an absolute divorce on the grounds of adultery. The court also

determined the parties' marital and non-marital property and valued that property. The court determined the parties' respective - 2 -

incomes and ultimately made a monetary award.

It noted it was

difficult "to determine precisely Mr. Gallagher's income given the nature of his business" and that "[s]everal exhibits were introduced in an attempt to persuade the Court that Mr. Gallagher's income exceeds that which is reported on his tax returns." court also stated: Mr. Gallagher testified that in the past, his personal wagering produced a $50,000 per year net income, but presently, the amount produced is only $25,000. He further testified that his present income from "facilitating" is $30,000 per year. . . . . The Court is persuaded that Mr. Gallagher has net income from personal wagering and "facilitating" in excess of $80,000 per year. Mr. Gallagher is approaching social security benefits eligibility. However, considering the nature of his business, it is not likely he will be forced to retire any time soon, barring any "unforseen legal intervention." Mr. Gallagher lists his monthly personal living expenditures at $3630.00. Ms. Gallagher attacks this figure, arguing that it is artificially low to conform to his grossly understated earnings. [Footnote omitted.] After considering the factors set forth in section 8-205 of the Family Law Article, the court granted appellee a monetary award of $175,000. In making this award, the court noted: 1) the The

"marriage came to an end because of the adultery committed by Mr. Gallagher;" 2) "Ms. Gallagher's physical health is more limiting than Mr. Gallagher's physical health;" 3) "[w]hen the parties lived together, Mr. Gallagher was the major monetary contributor while - 3 -

Ms.

Gallagher

used

her

earnings

for

her

personal

needs

and

desires;" 4) Ms. Gallagher relinquished her full-time employment at the insistence of Mr. Gallagher; and 5) "[b]oth parties made some nonmonetary contributions, mainly, the important contribution of companionship." The trial court also awarded appellee indefinite alimony in the amount of $1,500 per month. In doing so, the court acknowl-

edged that both parties were accustomed to a high standard of living. The court also noted that, following the monetary award,

appellee would have $380,778 in assets while Mr. Gallagher would hold assets totaling $267,117. $19,937 and her investment It noted appellee's income was would increase due to the

income

monetary award while appellant's would decline.

The trial court

further stated: "However, there is every reason to believe, and the court so finds, that Mr. Gallagher's earned income from his

business will continue to be substantially greater than that of Ms. Gallagher." It also found that the "respective living standards of

the parties will be unconscionably disparate." Finally, $20,684.95. tion for the court granted appellee attorneys' fees of

It specified that appellee had substantial justificathe proceeding and noted the financial

prosecuting

resources of the parties. At a later hearing on April 23, 1997, after the judgment of divorce was entered and this appeal taken, appellee's counsel requested that the court reduce the marital award and counsel fees - 4 -

to judgment.

Appellant's counsel asserted that the court lacked

jurisdiction to do so because he had filed an appeal to this Court and such a filing had divested the trial court of jurisdiction. The court reduced the marital award to judgment, finding that doing so was collateral to the initial judgment which was appealed. Appellant presents three questions on appeal: I. Did the circuit court err in making a monetary award and granting indefinite alimony? II. Did the circuit court err in granting an award of attorney fees and other costs to Ms. Levine [appellee's former counsel]? III. Did the circuit court have jurisdiction to reduce the monetary award to judgment? II. DISCUSSION

In the resolution of this case, we shall examine A) the monetary award; B) the award of alimony; C) the award of counsel fees; and D) the reduction of the monetary award and counsel fees to judgment. A. Appellant's primary Monetary Award assignment of error concerning the

monetary award relates to the trial court's determination that his income was approximately $80,000 per year. He gives multiple

reasons as to why the trial court erred in its determination of his then current income and argues that this error resulted in an exorbitant monetary award.

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We note initially that appellant has not raised any contention as to the characterization and valuation of the marital property. His only argument relates to his income. Before addressing appellant's various arguments, we shall state the law applicable to the granting of a monetary award. Maryland law requires that the trial court undertake a three-step process prior to granting a monetary award: (1) the trial court must initially characterize all property owned by the parties, however titled, as either marital or nonmarital; (2) the court shall then determine the value of all marital property; and, finally, (3) the court may then make a monetary award as an adjustment of the parties' equities and rights in the marital property. Strauss v. Strauss, 101 Md. App. 490, 501 (1994)(citations

omitted), cert. denied, 337 Md. 90 (1995); see also Md. Code (1984, 1991 Repl. Vol, 1997 Supp.),

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