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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2257 September Term, 1999

MARY S. WELSH

v.

TIMOTHY E. WELSH

Davis, Sonner, Alpert, Paul E., (retired, specially assigned), JJ.

Opinion by Davis, J.

Filed: October 2, 2000

Appellant Mary S. Welsh was granted a Judgment of Absolute Divorce from appellee Timothy E. Welsh in the Circuit Court for Carroll County on September 27, 1999. Appellant initially filed

an action for divorce on grounds of adultery in the spring of 1994 in the Circuit Court for Howard County. The case was

subsequently transferred to the Circuit Court for Carroll County in June 1994 because all of the circuit court judges sitting in Howard County recused themselves.1 Appellee filed a

counterclaim for divorce on grounds of a two-year separation. The court ordered that appellee pay appellant $500 per week as pendente lite alimony and permit her use of a condominium owned by the parties. On December 6, 1996, appellant filed an

interlocutory appeal protesting three rulings on motions made by the court. v. Welsh, We filed an unreported opinion in the matter, Welsh No. 103, September Term, (October 15, 1997), and

thereafter the case proceeded to trial on the merits on each parties' amended complaint in March 1999 and again in June 1999. The circuit court's Judgment of Divorce was issued on September 27, 1999 and both parties filed separate Motions to Alter or Amend Judgment on September 6 and 7, 1999, respectively. The

Appellee had previously been a Howard County Assistant State's Attorney and the County Solicitor and thereby was well known to members of the Howard County bench.

1

- 2 court denied both motions on October 26, 1999 and this appeal ensued. Appellant raises five questions for our review and appellee filed a cross-appeal raising six questions. Because some of

these questions address the same issues we list them together, rephrased and renumbered as follows: I. Did the circuit court err in denying appellant alimony? Did the circuit court err in denying either party an award of attorney's fees? Did the circuit court err in calculating the monetary award to appellant and denying appellee a monetary award? Did the circuit court err in granting appellee an award of development fees relating to the marital real property? Did the circuit court err in granting appellant an award of one-half of the attorney's fees appellee expended in another lawsuit using marital funds? Did the circuit court err in granting appellant one-half of appellee's retirement on an "as, if, and when" basis? Did the circuit court err in ordering appellant liable for any future judgment or settlement relating to possible litigation with the Bassler Hunt Partnership? Did the circuit court err in allowing the court-appointed trustee to retain the same powers concerning the sale of the marital home and an accompanying building as set forth in an Order dated August 31, 1995?

II.

III.

IV.

V.

VI.

VII.

VIII.

- 3 IX. Did the circuit court err in vacating the Order of December 2, 1996 after the interlocutory appeal, thereby violating the mandate of this Court? Did the circuit court err in granting appellant a divorce based on a two-year separation, instead of awarding the divorce to appellee?

XI.

We answer questions one through six and eight through ten in the negative and question seven affirmatively, thereby affirming in part and reversing in part the judgment of the circuit court.

FACTUAL BACKGROUND
The parties were married in 1961 and four children were born of the marriage, all of whom are now emancipated. In 1972, the

couple purchased a twenty-two acre property with a twenty-two room manor home known as Font Hill Manor Farm (Font Hill), with accompanying buildings, one of which is known as the Dairy

Barn/Chilling House, which appellee uses as an office. Appellee is sixty-one years of age and holds an

undergraduate accounting degree and a law degree.

From 1961 to

1966 he worked for the Internal Revenue Service while earning his law degree and thereafter he opened his own law practice. From 1969 to 1973, appellee was employed as an Assistant State's Attorney for Howard County and, from 1979 through 1987, he was the Howard County Solicitor. He taught business, law, and

- 4 accounting courses from 1968 to 1996 at Catonsville Community College in Baltimore County. Additionally, he holds a real

estate broker's license and is president of the Welsh Company, of which he owns eighty-five percent; the couple's only daughter owns fifteen percent. The value of appellee's stock in that

company is a reported $1,062.50. Appellant is fifty-nine years of age and holds a high school degree with one year of practical nursing training. She has not

worked in the nursing field for thirty-five years and primarily cared for the children and marital home throughout the marriage. After leaving Font Hill on April 10, 1994, appellant filed for divorce. The case was subsequently transferred from the Circuit

Court for Howard County to the Circuit Court for Carroll County. In May 1996, the court ordered that appellee pay appellant $500 per week in pendente lite alimony and also provided that she occupy a condominium, known as Vantage Point, owned by the

couple, with expenses for that dwelling to be paid by the courtappointed trustee. Hill home. In parcels. 1993, The the marital parcel lots; property (Section the was rezoned into three of ten Two) Appellee continued to reside in the Font

first

One)

consisted

single-family

dwelling

second

parcel

(Section

consisted of twenty-six single-family dwelling lots, including

- 5 the Dairy Barn/Chilling House; the third parcel (Section Three) consisted of 3.32 acres on which the Font Hill home was located. The parties entered into a contract in 1994 to sell the lots in Section One and received a total of $923,927.50. In February

1999, the parties entered into a contract to sell the lots in Section Two, for which they received a total of $1,812,500. Additional facts will be provided as they become relevant to our discussion of the issues raised in this appeal.

DISCUSSION I
Appellant first contends that the court erred when it denied her request for permanent alimony. She explains that, despite

the proceeds received from the sale of the lots on the Font Hill property and from the eventual sale of the Font Hill marital home, she is not she in a position that to become is self-supporting. in a superior

Additionally,

contends

appellee

financial position due to various tax benefits he will receive and, therefore, the parties' financial status will be

unconscionably disparate, thus warranting an award of alimony. Appellant first argues that the court could have awarded appellant the divorce based on her claims of adultery because she provided sufficient evidence to prove appellee's adulterous

- 6 activities. states that In its opinion, however, the court specifically appellant's and evidence to "failed to establish required the by

disposition

opportunity

commit

adultery

Pohzehl v. Pohzehl, 205 Md. 395, 109 A.2d 58 (1954) and its progeny." specifically We note that at the court went on to conclude that his

that,

trial,

appellee

conceded

relationship with a woman had progressed to a sexual one after the parties had separated. It is ultimately up to the court, based on its fact finding, to declare the grounds for divorce. the court be when obligated the to grant is more It is not reasonable that divorce on that the it grounds is more

the

requested

judge

persuaded

likely than not that other grounds for the divorce are more justified. that the The court explained in its opinion that it found relationship long before between appellant actually and left appellee the had

deteriorated

appellant

marital

home in April 1994.

Indeed, the court comments that the couple

did not have sexual relations for nearly two decades and opines that the marriage evolved into one "of convenience." Although

appellee acknowledged having sexual relations with another woman while the couple was separated, it is clear that the court was not satisfied in by the evidence activities presented while the that appellee was had still

engaged

adulterous

couple

- 7 living together. Even more significant, the court did not

believe that appellee's relations with another woman were, in fact, the reason for the break up of the marriage. Based on the

evidence presented, we do not perceive any error in the court awarding appellant the divorce based on a two-year separation, rather than adultery. Appellant apparently argues the issue of adultery in the hopes that a divorce based on those grounds would favor an award of indefinite alimony. The Court of Appeals, however, has

specifically held that alimony is "never a punitive measure." Danzinger v. Danzinger, 208 Md. 469, 474 (1955). Adultery is

merely one factor to be considered when the court addresses an award of alimony in determining the circumstances that

contributed to the breakup of the marriage. Vol.), Fam. Law (F.L.)

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