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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 757 No. 2504 September Term, 2005

GEORGE KENNETH RIDGEWAY, JR. v. NANCY G. RIDGEWAY

Murphy, C.J. Barbera, Karwacki, Robert L. (Retired, specially assigned), JJ.

Opinion by Barbera, J.

Filed: October 30, 3006

This case presents the question, among others, of whether the trial court, after an appeal has been noted, can award the

prevailing spouse advanced attorney's fees to defend the appeal from the court's refusal to terminate alimony. We shall hold that

the trial court can make such a fee award and that the court properly exercised its discretion to do so in this case. George Kenneth Ridgeway, appellant, appeals from an order of the Circuit Court for Calvert County reducing, but not terminating, the indefinite alimony he pays to his former wife, Nancy G. Ridgeway, appellee. Nine months after the parties were divorced

and appellant was ordered to pay alimony to appellee, and in anticipation of his upcoming retirement, appellant filed a petition for modification or termination months of after alimony the and ("petition for

modification"). voluntarily

Fifteen from

divorce, the

appellant began

retired

employment,

parties

receiving retirement benefits. The circuit and court subsequently but did granted not the petition for

modification

reduced,

terminate,

appellant's

monthly alimony obligation. The court also awarded attorney's fees to appellee. Appellant appealed, and appellee sought attorney's The circuit court granted

fees to defend the case on appeal.

appellee's petition for advanced appellate attorney's fees, and appellant appealed from that order as well. two appeals. We consolidated the

Appellant presents three questions for our review, which we have reworded slightly: 1. Given the change in the parties' respective economic circumstances, did the court err or abuse its discretion in refusing to terminate alimony, considering in particular that appellee's total income is greater than appellant's total income? Did the court err or abuse its discretion in awarding appellee attorney's fees as part of its ruling on appellant's petition to modify or terminate alimony? Did the court have jurisdiction to consider appellee's post-appeal motion for advanced attorney's fees relating to the instant appeal, and if so, did the court err or abuse its discretion in awarding appellant $3,700.00 in advanced appellate attorney's fees?

2.

3.

We affirm the judgments of the circuit court. FACTS AND PROCEEDINGS The parties divorced on June 18, 2003. In the judgment of

absolute divorce, the court ordered, inter alia, that appellant pay indefinite alimony to appellee in the amount of $1,750.00 per month, and that appellee is entitled to a "pro-rata share" of appellant's retirement benefits. The court cautioned appellant in

its oral ruling at the divorce hearing that alimony would not necessarily be adjusted upon his retirement. The court stated:

[Appellant] has talked about retirement. That will be a decision he will have to make. The only thing I would caution him is that there is not necessarily an assurance that any award would be adjusted based on retirement. Obviously that retirement would create income for [appellee], but that doesn't necessarily mean there would be a dollar for dollar adjustment. I'm not saying there

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wouldn't be. I am just saying you can't assume that there would be. On March 12, 2004, appellant filed the petition for

modification in anticipation of his upcoming retirement. Appellant stated in the petition that he expected both parties to begin receiving retirement benefits upon his retirement. He asked the

court to terminate his obligation to pay alimony once appellee began receiving her pro-rata share of the retirement benefits. also requested an award of attorney's fees. Appellee modification, filed arguing a motion that to dismiss the petition was for He

appellant's

request

"patently

premature" because appellant was not yet retired when he filed the petition. hearing. Meanwhile, in September 2004, appellant retired from his job as a facilities manager at the Washington Navy Yard. Appellant was 55 years old. At the time of his retirement, he earned an annual The court denied the motion and set the matter in for a

salary of $84,127.00. On January 28, 2005, appellee filed a petition for contempt and show cause order ("petition for contempt"), requesting the court to find appellant in contempt because he had failed to make alimony payments for December 2004 and January 2005. Appellee

sought attorney's fees incurred in the filing of the petition for contempt. On March 11, 2005, the court held a hearing on appellant's -3-

petition for modification and appellee's petition for contempt. Appellant testified that the parties decided during the marriage that he would retire at age 55 because the males in his family die at approximately age 70. He currently receives a net retirement payment of $1,662.00 $100.00 per per month, month and in in 2004, he received as well.

approximately

interest

income

Appellant acknowledged that he has not made an alimony payment to appellee since November 2004, explaining that she began to receive retirement benefits in December 2004. Appellant testified further that, upon his retirement in September 2004, he received a payment of $23,634.33 from his employer. That payment represented a $25,000.00 incentive for

retiring plus compensation for accumulated annual leave, minus taxes. Appellant did not notify appellee of the payment or share

any portion of it with her. Appellant received approximately $110,000.00 in proceeds from the sale of the parties' marital home. At the time of the hearing,

he had approximately $90,000.00 in his bank accounts. Appellant testified that he presently resides with his fiancee in her home in Willards, Maryland. He pays her $200.00 each month He

toward the mortgage and half the costs of operating the home.

also has a monthly car payment of approximately $662.00 per month. From March through October, he works about three days per week at a golf course near his current residence. He earns a low wage, but

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he is able to golf at the course for free.

Appellant stated that

he has a number of medical problems, including asthma, high blood pressure, and carpal tunnel syndrome in both hands. Appellee, in turn, testified that she works in the Calvert County school system as an assistant manager of a cafeteria in an elementary school. She earns approximately $17,084.00 a year. She purchased a new home in Prince Frederick, Maryland, in September 2003, shortly after selling the house that she lived in with appellant. her monthly Appellee's monthly mortgage payment is $1,285.00 and car payment is $403.00. She has approximately

$30,000.00 in a savings account. position in $163.00. 2008 and earn a

She can retire from her current monthly retirement allowance of

If she remains employed until 2014, however, she will

receive $393.00 per month. Appellee testified further that, in December 2004, she

received about $3,200.00 from appellant's retirement fund. then, she has received a monthly retirement

Since of

benefit

approximately $1,239.00.

The cost of a former spouse survivor

annuity, $238.00, is subtracted from her portion of the retirement benefit. Appellee stated that she has a number of medical

problems, including arthritis, Grave's disease, and psoriasis. Appellee incurred approximately $5,800.00 in attorney's fees for services rendered in defending the petition for modification. Appellant argued in closing that alimony should be terminated

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because his monthly income is less than appellee's.

He further

argued that he should not be found in contempt because, the lack of the requisite show cause order aside, he withheld the alimony payments only after appellee began receiving her share of his pension. Appellee full-time acknowledged that appellant's as a change retirement in from

employment

qualified

circumstance.

Evidently alluding to her house purchase, appellee argued that she had reasonably anticipated receiving, under the court's order, both an indefinite alimony award of $1,750.00 and her share of

appellant's retirement, and that the equities dictated that the original award not be modified. Appellee further argued that

appellant should be considered to be in contempt, "show cause order or not." The court noted that it could not find appellant in contempt because a show cause order had not been issued. curia the petition for modification. On April 6, 2005, the court issued an order reducing The court held sub

appellee's monthly alimony obligation from $1,750.00 to $500.00. The court stated that it "is satisfied that some modification is necessary and that [appellant] is entitled to a reduction of his monthly alimony payment, but that some alimony continues to be due." The court dismissed the petition for contempt, denied

appellant's request for attorney's fees, and granted appellee's

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request for attorney's fees in the amount of $2,500.00. noted a timely appeal from that order.

Appellant

On May 10, 2005, appellee filed a petition for appellate attorney's fees to enable her to prepare a response to appellant's appeal to this Court. In the petition, appellee argued that

Maryland Code (1984, 2004 Repl. Vol.),

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