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Turner v. Turner9/30/2002
urt's view, the sizeable alimony award was to be used, in part, for payment of attorney's fees. The court thus believed that appellant had "sufficient funds to pay nearly all her legal bills on an ongoing basis." Put another way, the court concluded that the amount of monthly alimony was meant to cover appellant's legal fees.
A party may request counsel fees under F.L. ยง 11-110. This section provides, in pertinent part:
(a) Authority of court. -- At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
(c) Required considerations. -- Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and
(2) whether there was substantial justification for prosecuting or defending the proceeding. See Blake v. Blake, 81 Md. App. 712, 730 (1990).
The award or denial of counsel fees is governed by the abuse of discretion standard. Coviello v. Coviello, 91 Md. App. 638, 658 (1992).
As we see it, the underpinning of the court's ruling was flawed. The court was of the view that appellant had "sufficient funds" to pay her legal bills from her alimony because it believed that appellee also paid the mortgage expense, in addition to the alimony. That finding was clearly erroneous.
The actual mortgage payment was $1840 per month, and the real estate taxes, prorated, came to about $340 a month. The additional sum that appellee paid each month of $1112 was not the mortgage payment, as the court apparently believed. Rather, that was an additional payment of principal, so that the mortgage could be paid off by the year 2000, consistent with the parties' earlier intentions. Therefore, of the monies appellant received each month in alimony, she applied over $2800 per month towards the mortgage and taxes, which means appellant had about $2800 a month less available to her than the court evidently believed.
Moreover, in finding that the alimony was sufficient to cover the legal fees, the court apparently did not consider that appellant had not yet received the monetary award, and so there was no income stream to meet her expenses. In addition, the tax consequences were significant. The alimony was not, of course, tax free to appellant. Conversely, the alimony expense to appellee was not as great as it might seem, given that the payment was tax deductible to him.
Accordingly, we shall vacate the award of attorney's fees and remand for further consideration, so that the court may consider the issue of attorney's fees based on accurate factual underpinnings. VIII and IX.
The Corporate Claims
Appellant complains that the trial court erred or abused its discretion in denying various claims in the corporate suit. In particular, the court ruled against appellant with regard to her claims for Breach of Fiduciary Duty - Injunctive Relief (Count II); Constructive Fraud (Count IV); Declaratory Judgment (Count VI); and Breach of Fiduciary Duty - Money Damages - Derivative Action (Count IX); Breach of Fiduciary Duty - Injunctive Relief - Derivative Action (Count X); and An Accounting - Derivative Action (Count XI).
In Count XI, appellant sought an accounting from BSL and appellee to ascertain the exact amount of money diverted from BSL. As a stockholder, she asked the court to order appellees to "render a descriptive account for the income and expenses associated with the corporation from January 1, 1995 to date." Appellant also asked for judgment "for any amount found to be due
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