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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 658 September Term, 2002 _______________________________

BETH ANN ENSOR KELLY

V.

ROBERT W. KELLY

_______________________________ Hollander, Salmon, Barbera, JJ. _______________________________ Opinion by Salmon, J. Filed: November 25, 2003

The marriage of Beth and Robert Kelly was dissolved by a judgment of absolute divorce entered in the Circuit Court for Baltimore County on May 16, 2002. The divorce was granted after a one-day trial conducted on January 23, 2002. On March 25, the chancellor filed a memorandum

opinion and order in which he denied Ms. Kelly's request for indefinite alimony, denied her request for attorney's fees, granted Mr. Kelly's request for use and possession of the marital home for three years, and granted Ms. Kelly a monetary award. Mr. Kelly

thereafter filed a motion to alter or amend the judgment, which was granted on April 23, 2002. As revised, the court ordered that Ms.

Kelly was to receive a monetary award in the amount of $66,472, and that Mr. Kelly was to transfer to his ex-spouse one-half of the value of a 401K plan valued at $141,378 on an "as[,] if[,] and when basis." No other changes were made.

Ms. Kelly filed this timely appeal and raises four questions, phrased as follows: 1. Did the lower court err in awarding Husband use and possession of the family home for a period of three (3) years following the date of the absolute divorce [i.e., through May 16, 2005] when the youngest child would attain the age of eighteen on March 19, 2004? Did the lower court err in failing to include $89,000 in a savings account, titled solely to Husband, and earned during the course of marriage as "marital property" and, thereafter, fail to consider same in conjunction with the granting of a monetary award?

2.

3.

Did the lower court abuse its discretion in denying Wife's request for indefinite alimony based upon an unconscionable disparity of incomes and standards of living between the parties when [h]usband earned $305,000 in the year immediately preceding the divorce and Wife earned $37,000 in that year? Did the lower court err in denying Wife's claim for contribution for counsel fees?

4.

I.

BACKGROUND FACTS Two sons were born of

Beth and Robert Kelly married in 1980. the marriage: March 19, 1986. Mr. Kelly, aged forty-four, has a

Matthew, born December 5, 1983, and David, born

degree

in

biological

sciences from the University of Maryland.

During the first few

years of marriage, he worked for the United States Federal Guaranty Company and later for the Chesapeake and Potomac Telephone Company, earning a modest income. In 1985, he joined Alex. Brown, Inc., and At the time of the

commenced working in its technology division.

trial, he was a director of Alex. Brown and the Chief Technology Officer for its Correspondence Services Business Units. In 1986, the Kellys built a four-bedroom home on one acre of land in Carroll County, Maryland. While living in that home, the

couple enjoyed an upper-middle-class lifestyle. Ms. Kelly moved out of the marital home in October of 1999. Since that date she and Mr. Kelly have lived separate and apart. Mr. Kelly, who has had physical custody of the children since the separation, still lives in the marital home. 2

Between 1997 and 2001, Mr. Kelly's income at Alex. Brown averaged $250,831 per year. His best year was 2001, when he earned

$305,000. Of that last-mentioned amount, $180,000 was a bonus, and $125,000 was his base salary. At the January 2002 hearing in this

matter, Mr. Kelly testified that his annual bonus is based on performance during the previous year. Therefore, the $180,000

bonus he was paid in 2001 was based on his year 2000 performance. Mr. Kelly testified that bonuses based upon 2001 performance were to be paid in February 2002 and that it was his "firm belief" that he would receive no bonus for that year. He founded his

belief upon the fact that Alex. Brown's losses for 2001 exceeded "six figure millions of dollars." Moreover, Mr. Kelly served on an Alex. Brown cost-cutting committee that proposed that senior

management, in which he apparently is included, would receive no 2001 bonuses. In this regard, he further testified:

Q. [W]hat will your total compensation be in the year 2002, this year? A. Okay. It'll be one hundred and twenty-five thousand dollars. Q. Which is your salary?

A. Which is my salary. The compensation structure was designed specifically for that. Salaries are paid based on a, kind of a cost of living to give everyone a comfortable living. Our Managing Director's making x, Directors make x and then the rest is based on a bonus structure, depending on how well the firm does. Q. And what is the status of your job right now?

3

A. Actually, my job, quite frankly, is in jeopardy, unless I have an interest in moving to New York, which I do not. We have recently gone through an organizational restructuring, and I now work for a management team out of New York. We are having conversations around what portions of our team might be left in Baltimore and what portions are not. The, given that, given that I am

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