Graeff, Kehoe, Sharer, J. Frederick (Retired, Specially Assigned), JJ.
Gary Heit, appellant, and Kathryn Stansbury, appellee, were married on August 1, 2005. On December 24, 2008, the Circuit Court for Montgomery County issued a Judgment of Absolute Divorce. Since that time, the parties have remained embroiled in litigation, including previous appeals to this Court, Heit v. Stansbury, Nos. 9 & 990, Sept. Term, 2009 (filed Jan. 15, 2010) and Heit v. Stansbury, No. 354, Sept. Term, 2010 (filed June 10, 2011). In the latter appeal, this Court reversed the $82, 340 monetary award in favor of Ms. Stansbury, as well as a money judgment in the amount of $15, 000, and we vacated the June 11, 2009, Qualified Domestic Relations Order ("QDRO") and the judgment awarding Ms. Stansbury attorneys' fees of $76, 571.53.
On remand, the circuit court denied Ms. Stansbury's request for a monetary award and attorneys' fees, and it denied "all other requests for relief by either party." Mr. Heit then filed a post-judgment motion for restitution, seeking the return of monies already received by Ms. Stansbury from his 401(k) plan and from wage garnishments. He also moved to have the case specially assigned to the circuit court judge who conducted the remand hearing. The court denied Mr. Heit's motion for special assignment, and after a hearing before a different judge, the court granted Ms. Stansbury's motion to dismiss on the ground that res judicata barred Mr. Heit's claim.
On appeal, Mr. Heit raises two questions for our review, which we have rephrased:
1. Did the circuit court err in granting Ms. Stansbury's motion to dismiss Mr. Heit's motion for restitution on res judicata grounds?
2. Did the Administrative Judge abuse his discretion by failing to specially assign the case?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The background facts concerning the parties' marriage and the proceedings leading up to the first two appeals were set forth in detail in our prior opinions and need not be repeated. We shall set forth only the facts and proceedings relevant to the issues raised on this appeal and for purposes of context.
In the first Judgment of Absolute Divorce, dated December 24, 2008, the court awarded a monetary award to Ms. Stansbury in the amount of $173, 911.53, including $76, 900 for repayment of a joint home equity line of credit ("HELOC"), $15, 000 for unpaid spousal support, $5, 440 for a Cadillac Escalade, and $76, 571.53 for attorneys' fees. The court also ordered a transfer of 50% of the total value of Mr. Heit's Oracle 401(k) plan as of the date of divorce. The court found that the total value of the 401(k) was $132, 741; thus, Ms. Stansbury was entitled to $66, 370.50.
Mr. Heit did not file a supersedeas bond, and on January 6, 2009, Ms. Stansbury sought a writ of wage garnishment against Oracle, Mr. Heit's employer, in the amount of $173, 911.53. On February 26, 2009, she moved for entry of the QDRO to obtain her 50% interest in Mr. Heit's 401(k). Mr. Heit opposed Ms. Stansbury's motion for entry of a QDRO, arguing that the court had erred in classifying the entire value of the Oracle 401(k) plan as marital property. The court denied the motion on June 9, 2009. Mr. Heit appealed this ruling, as well as the Judgment of Absolute Divorce, contending that the court erred: (1) in granting Ms. Stansbury a divorce on cruelty grounds; and (2) in entering the money judgment in Ms. Stansbury's favor.
We consolidated Mr. Heit's appeals and reversed the Judgment of Absolute Divorce, agreeing that the court erred in granting the divorce on the ground of cruelty. We further opined that, in the absence of the divorce itself, it was premature to make any decision with respect to a marital award. Thus, we remanded the case to the circuit court for "possible further proceedings."
On March 31, 2010, the circuit court held a remand hearing. On April 16, 2010, the court entered a "Judgment of Absolute Divorce Nunc Pro Tunc, " the second divorce judgment, granting a divorce on the ground of voluntary separation. In addition, the court awarded attorneys' fees to Ms. Stansbury in the amount of $76, 571.53, granted Ms. Stansbury a monetary award of $82, 340, ordered that Ms. Stansbury was entitled to 50% of Mr. Heit's Oracle 401(k) plan, which was valued at $132, 741 as of December 24, 2008, and ordered that Mr. Heit pay Ms. Stansbury $15, 000 in accordance with the prior agreement of the parties.
On April 19, 2010, Mr. Heit noted his appeal. On May 26, 2010, Fidelity Investments issued Ms. Stansbury a check in the amount of $88, 217.32.
On June 10, 2011, we issued our opinion with respect to the second divorce judgment. We vacated the QDRO, holding that the court erred in classifying the entire value of the 401(k) as marital property. We reversed the monetary award in the amount of $82, 340 on several grounds, including that the court did not have jurisdiction to use a monetary award as a judgment on a tort and contract claim. We also reversed the $15, 000 judgment in favor of Ms. Stansbury, holding that the court did not have authority to enter judgment for arrearages for non-payment of monies pursuant to an agreement that was not for alimony or support. Because we reversed the "monetary award, " we also vacated the $76, 571.53 award of attorneys' fees, for re-evaluation.
On June 4 and 5, 2012, the circuit court held a hearing. The court clarified the issues before it on remand: (1) what portion of the Oracle 401(k) constituted marital property; (2) the value of the marital portion of the Oracle 401(k) as of December 24, 2008, the date of divorce; (3) what, if any, of the marital portion of the Oracle 401(k) should be the subject of an equitable monetary award to Ms. Stansbury; and (4) attorneys' fees.
Counsel for Mr. Heit informed the court that the 401(k) had been depleted and no longer existed. He advised that the parties had reached a stipulation, for purposes of recalculation of a monetary award, that the marital portion of the 401(k) was $58, 382.34, and the non-marital portion was $93, 297.06. He argued, however, that no monetary award should be granted because Ms. Stansbury had already received $88, 217.32 as a result of the "erroneous QDRO, " and she "succeeded in garnishing approximately $24, 000" from his wages prior to the reversal of the money judgments. The following colloquy then ensued:
[COUNSEL FOR MR. HEIT]: So . . . the facts show that Ms. Stansbury despite the reversal or vacator on every issue in these divorce proceedings and despite the two appeals on which she's lost, has amassed some $112, 000 from Mr. Heit's wages and the 401K earnings. That's money she's already received. And awarding a monetary award from the hypothetical of $58, 000 of marital property that was in the 401K as of December 2008, we maintain . . . that would not seem equitable in light of that windfall already obtained.
THE COURT: Well, are you entitled to get that back or is that just sort of gone forever?
[COUNSEL FOR MR. HEIT]: Do you want to issue an order to disgorge, I don't think you can.
THE COURT: I'm just asking you what –
[COUNSEL FOR MR. HEIT]: We would like to get some of that back, of course.
THE COURT: Well, I'm sure you would like to, I'm just asking you what's the vehicle for getting it back if you can get it back or is it just too late to get back?
THE COURT: . . . I'm just asking you as a legal matter, that's all, just curious.
[COUNSEL FOR MR. HEIT]: Well, you know once upon a time, you don't see this very often, but once upon a time in the late 1800's, and it hasn't been overturned, there's such a thing as called the cause of action for reimbursement. That's what happens when you win on appeal but you can't post a supercedes [sic] bond so you're never protected and you lose your money. And ...