*1 for the the enhanced statutory imposition elements parole, and that sentence should years of 25 without sentence been affirmed.1 have APPEALS OF THE COURT OF SPECIAL
JUDGMENT REVERSED; REMANDED TO THAT COURT CASE AFFIRM THE TO JUDGMENT WITH INSTRUCTIONS BELOW; IN AND IN THE COURT THIS COURT COSTS BE BY TO PAID RESPONDENT. OF SPECIAL APPEALS Herman ALSTON Viola ALSTON. Term, 3, Sept. 1991.
No. Appeals Maryland. Court of
July 1993. Sept. Denied 1993. Reconsideration judge permitted attack 1. Because the trial should have collateral findings preclu- part sentencing proceeding, her will have no upon any subsequent sive effect collateral attack defendant bring respect predicate able to with to the conviction. *2 (both P.A., Turnbull, Turnbull, on Lyons, & Ann M. Wase *3 Towson, brief), petitioner. for White, Mindel, White, Jr., D. (George Berwick W.
William Towson, Foard, brief), respondent. all on for Clarke & C.J., MURPHY, ELDRIDGE, and Argued before RODOWSKY, McAULIFFE, CHASANOW, and KARWACKI BELL, ROBERT M. JJ.
ELDRIDGE, Judge. of marital propriety issue before us concerns the a The granted proceeding. a divorce property monetary statutory has enacted a scheme relat- Assembly The General (1984, divorce, upon Maryland matters Code ing property to Family to of the Article. §§ 8-201 8-205 Law RepLVol.), by which the provisions, to the mechanism Pursuant these in “marital are to be spouses' property property” interests adjusted “monetary the trial court Generally, award.”1 Maryland purposes pertinent 1. of this case is Code statute Article, (1984, Repl.Vol.), Family 8-205 of the Law first enacted of of which follows: Ch. 794 the Acts states as proper- ownership any particular piece not transfer does process may which three-step instead undertakes ty,2 but First, court must the trial monetary culminate award. subject “marital property” which property determine 8-205(a). Next, must de- allocation, §§ and the court 8-203 §§ and 8- property, 8-204 the value of the termine (b) "(a) award.—Subject provisions of subsection Grant of section, property is marital after the court determines which this property, the court property, value of the marital and the retirement, profit pension, ownership of an interest in a transfer party sharing, compensation plan from 1 to either or both or deferred both, award, monetary adjustment of the parties, grant or as an parties concerning marital wheth- equities rights of the alimony is awarded. er or not payment or “(b) determining amount and method Factors in and the terms court shall determine the amount transfer.—The award, payment the terms of the transfer of a or method retirement, profit sharing, pension, or deferred of the interest in the both, following plan, considering compensation after each of factors: contributions, (1) nonmonetary, party each well-being family; (2) party; value of all interests of each (3) party of each the time the the economic circumstances made; award is to be (4) estrangement that contributed to the the circumstances parties; (5) marriage; the duration of the (6) age party; of each (7) physical party; each and mental condition of (8) specific or interest in the how and when retirement, plan, pension, profit sharing, compensation or deferred party acquired, including expended by each in accumu- effort retirement, pension, lating the marital or the interest in the both; profit sharing, compensation plan, or or deferred (9) alimony provision any award of award or other respect family personal property or the court has made with use *4 home; family and (10) necessary appro- any other factor that the court considers priate equitable to consider in order to arrive at a fair and retirement, profit pension, an interest in the award or transfer of compensation plan, sharing, or deferred or both. "(c) Award reduced to judgment.—The may judg- court reduce to a section, any monetary extent ment award made under this to the any part owing.” of the award is due and exceptions a transfer interests 2. to this rule are that court retirement, compensation plans. pension, profit sharing, or deferred 8-205(a) Family § Law Article. 500
205(a).
various factors before
the court must consider
Finally,
(b).
8-205(a)
detailed
award, §§
For more
fashioning any
Maryland
discussions of
see,
v.
322
e.g.,
Pope,
scheme,
587 A.2d
Pope
Md.
Herget
Herget,
v.
(1991);
Md.
573
798
Wiens,
(1988);
102,
(1990);
314 Md.
Zandford
Niroo,
v.
Grant
(1988);
v.
Md.
We shall conclude specific piece wife half the value of when it awarded property. of marital
I. Alston are as follows. Viola and Herman The relevant facts in 1985. they separated in June were married filed in the for Baltimore late Mrs. Alston Circuit Court divorce, couple’s voluntary on the City complaint based alimony or a separation year. for over one She did seek Mr. was served and notified award. Alston days within a divorce thirty that if he not file a response did him, response. file granted against but he did not could be days he assumed that the divorce had thirty expired, After the granted. been filed, divorce action was
At the time above-mentioned Alston as a clerk with the Federal Govern- employed Mrs. $19,000 ment, per year. Through of about earning salary rights had employment, pension ap- this she accrued worth $22,000. $1,000, car proximately She owned a worth about $2,000. savings about had and some furniture worth She *5 was, there- $1,000. Alston’s net worth Mrs. accounts worth $26,000. fore, approximately filed, Mr. divorce action City the Baltimore
When of by Department prison guard as a employed Alston was $29,500 D.C., of earning salary Washington, Corrections his through years accrued pension, His per year. government Department of with military employment service $17,000. He owned Corrections, approximately was worth His net worth was car, $8,000 worth of furniture. and about $25,000, of his car. plus the value approximately thirty day period expiration days Several before complaint, divorce Mr. to Mrs. Alston’s filing for answer “Lotto,” which had an District of Columbia Alston won the Mrs. Alston imme- one million dollars.3 annuity value of over for in the Circuit Court petition dismissed her divorce diately later, filed in six months she City. Approximately Baltimore for abso- County complaint Court for Baltimore the Circuit alia, a adultery, seeking, inter ground lute divorce on the in Mr. a substantial interest representing award annuity.4 lottery Alston’s dismiss and an answer to Mrs. filed a motion to
Mr. Alston Complaint filed a He also “Counter complaint. Alston’s on the Divorce,” a divorce from Mrs. Alston seeking Absolute desertion, cruelty. The circuit court adultery, grounds motion to dismiss. denied Mr. Alston’s $55,000 paid annuity per lottery winnings as an were to 3. twenty years. Approximately eleven thousand dollars were year over taxes, to receive a payor for income so Mr. Alston was withheld $44,000 years. twenty each November for check for about sought permanent alimony, specifically, a valuation 4. More Mrs. Alston adjusting the parties’ property and a property rights, one-half interest in Mr. parties’ marital at least a ownership annuity, of all of the yearly Alston’s a determination costs, property, attorneys' couple’s personal fees and real and required. relief” as "such other and further briefly alleged that she and Mr. Alston had cohabited Mrs. Alston also thereby abandoning claim for a no-fault during March voluntary year. ground separation for over one on the divorce trial, annuity agreed that the During parties both before technically marital because was disputed marriage. Although expiration *6 annuity, parties’ arguments of the the value present monetary of a award. Mrs. appropriateness centered on the factors, that, statutory all she considering argued Alston other award of half some monetary entitled contended portion annuity. Specifically, of the she substantial substantially greater contributions that had made she that, therefore, statutory family, the first well-being 8—205(b) Family §in of the Law Article factor set forth other argued, among Alston. She also weighed against Mr. caused es- ongoing adultery Mr. Alston’s things, that in her weighed so the fourth factor trangement parties, of the favor. to any that Mrs. Alston was not entitled argued
Mr.' Alston Mrs. Alston had award. Mr. Alston asserted that contributions, non-economic, economic or significant not made He in contended that he was well-being family. trial, and, consequently, the time of straits at dire economic 8-205(b) § statutory against factor in militated the third estrangement monetary award.5 He stated desertion and thus the by was caused Mrs. Alston’s no award be statutory fourth factor indicated that eighth on the factor delineat- heavily made. Mr. Alston relied 8-205(b), judge to consider how requires § ed in which acquired. Finally, Mr. specific marital when factor, under Alston to the tenth “catch-all” which pointed necessary or elements. judge may appropriate consider other unique, the court was in He that the situation before argued joint through parties’ the asset was their future provide together. efforts to lotto, quit job, bought a winning the Mr. Alston his new Lincoln 5. After Car, Laurel, Maryland, in Town a condominium interest purchases high Virginia. He financed all of these time share unit in interest, downpayments, so his debt rates of and made minimal significantly equity purchases. exceeds his in his burden judgment entered a the circuit court November On ground Mrs. Alston on the in favor of divorce absolute to either alimony denied The court adultery. Mr. Alston’s of the Alstons’ valued all The court then party. The court found that annuity. including lottery value of present assets with a had title to marital
Mr. Alston to assets worth $479,695.85, Alston held title and that Mrs. forth in the ten factors set $26,889.09. The court discussed 8-205(b) Article, treating each of them Family Law $452,806.76 disparity weight. Noting to equal entitled to Mrs. assets, monetary award the court made a distribution on the yearly net fifty percent Alston of annuity.6 Alston, court’s of an grant the circuit aggrieved
Mr. adultery, and ground Alston on the absolute divorce Mrs. *7 judge by parties, stated: regard argued the trial 6. With to the factors factor, of each to the respect to the first the contribution "... with monetary fairly contributions were marriage, the court finds that the side, However, non-monetaiy the court is convinced equal. on the significantly wife's exceeds from the evidence that contribution that of the husband. í¡í sjs s|s if: if: each, course, factor, of circumstances “The third the economic addition, annuity court took again, contract. In the husband’s debt, is now in notwith- consideration the fact that the husband into a standing significantly increased as result of the fact that his income job present annuity no receipt of the contract. He has at time, prevent although anything should him from there isn’t money working earning should he choose to do that. up estrange- "Considering leading to the also the circumstances ment, all, adultery, really there is the which is uncontroverted. first of something is not limited to And court is convinced that that is instances, part. general pattern on the husband’s one or two but is a addition, on Mr. that there was an attitude the court is convinced malaise, part general of marital for want of a better Alston’s in comment. factor, property argues eighth the marital "Mr. Alston how course, acquired, great significance. Of the court also consid- put only being regard in to that the effort into it. The difference ered cost, money, whatever that Mr. Alston took the time and effort and that, say purchase lottery Beyond there isn’t much to in ticket. regard his favor with to that.” lottery winnings half of his court’s decision award by the Alston, Appeals. to the Court of appeal Special Mrs. took an the circuit court’s court affirmed appellate The intermediate Alston, Alston v. judgment, Md.App.
(1990). determination of a regard to the circuit court’s With award, Special Ap- monetary Court property in all factors as had statutory sequence, reviewed peals § 8-205, factor set forth eighth trial As to the judge. ... namely Specific “how when by party each acquired, including expended the effort the Court of property,” Special the marital accumulating 580): (85 188-189, 582 A.2d at Appeals Md.App. stated the D.C. Lotto correctly “When conceded it to the court could not find annuity was marital acquisition, be individual and thus method 8-203(a) distribution, §a controlled under which would have factors, ten with merely among statutory one factor became the trier its to be determined court as weight fact.”
Thereafter, granted petition Alston’s for writ we Mr. issue, 322 which was limited to the marital certiorari (1991). A.2d 510 Md.
II. grant whether decision of the trial court. See within the sound discretion generally award”) 8-205(a) (“the ... grant court Niroo, supra, added). See also Niroo 313 Md. at (emphasis Deering Deering, 37; supra, 230-231, 292 Md. 545 A.2d at *8 Ward, 52 336, Ward v. 131, 891; 339 Md.App. 437 at n. A.2d (1982). 443, Nevertheless, 3, n. even with 449 A.2d 446 3 matter, court must respect discretionary trial exercise See, legal in with standards. its discretion accordance correct State, 266, 275, 657, e.g., Bohnert v. 539 A.2d Md. State, 423, 426-430, 1286, (1988); Colter v. 297 Md. 466 A.2d (1983); 170, Kemp Kemp, v. 165, 1288-1290 287 Md. Harold, 167, (1980); Radman v. 279 Md. 1031-1032 (1977). 472, 476 367 A.2d correctly been classified annuity has Lotto
Mr. Alston’s disposing, in Maryland, Before 1979 property.7 as marital marriage gener divorce, during acquired of property upon was the owner party of which a determination ally involved determined, the court ownership Once asset. particular owner, or, if the to its awarded system This led equally. to both jointly, held cases, whose spouse because a many inequity substantial acquisition in the latter’s spouse other assisted the efforts interest legally cognizable had no generally assets those assets.8 the Gover- family problems, law and other
To address this
which,
recom-
study,
after
a commission
in 1976 appointed
nor
alia,
“equitable
new
mended,
entirely
system
inter
title
discussing why it believed
distribution.”
modified,
(Report
stated
the Commission
to be
system ought
Law, at
Relations
on Domestic
Commission
of the Governor’s
1978) (often
(Jan.
Commission
referred to as the Groner
officer)):
its presiding
after
Report,
Mary-
people
not believe that
does
“The Commission
activities
spouse
that a
whose
hold the view
today
land
income
production
do not include the
marriage
within
purchase
anything toward
has ‘never contributed
during the
spouses
or both
by either
property acquired
non-monetary contri-
Its members believe
marriage.
titled,
"property,
acquired
1 or both
property is
however
Marital
7.
8-201(e)(l)
Family Law Article.
marriage.”
parties during the
until after
not divorced a vinculo matrimonii
the Alstons were
Because
Lotto,
“during
winnings were
won the
Mr. Alston’s
Mr. Alston
Altman,
483, 490,
386 A.2d
282 Md.
marriage.” See Altman v.
(1978),
there cited.
and cases
Gebhard,
(1969), in which
Consequently,
the Commission
non-monetary
to the
contribution
giving recognition
with
by
either
acquisition
property
with
spouse
regard
one
during
marriage.
or both
spouses
Assembly
proposal
The
followed the Commission’s
General
Ch. 794 of the
distribution statute.
equitable
and enacted
so,
title
Ch.
doing
Legislature,
Acts of 1978.
is
marriage
that “when
policy
set forth the State’s
should be
spouses
interests
dissolved
being
equitably,
with careful consideration
adjusted fairly
monetary
nonmonetary contributions made
given to both
family.”
At
well-being
to the
respective spouses
time,
Assembly expressed
the General
its concern
the same
equitable,
opposed
presumptively
make
courts
Maryland
Ch.
divisions. See Laws
equal, property
monetary
“A
(deleting
language
award shall
necessary
to divide the value of
presumptively
such as
The court
property equally
parties.
the marital
between
of the marital
on
adjust
the division
the value
may
factors).
equal
considering”
than
after
several
basis other
sight
history
courts not lose
of this
It is
important
purpose
making
property.
when
decisions about
provide
“function
means
[of
award]
adjustment
result from distribution
inequities
of title.”
of certain
accordance with the dictates
Herget,
The factors listed mandated any way, Assembly ritized in nor has the General The balancing or of the factors. any particular weighing and factors is left to the discretion application weighing Nevertheless, history in and light of the trial court. factor, statute, to “how and eighth relating purpose contri property” acquired when was specific its should be party acquisition, bution that each made toward The circuit court and the Court given weight. considerable be eighth indicated that the factor should not Special Appeals in case. any more than other factor this given any weight here, however, ap circumstances such particular Under not consistent with the statute. proach was down, no hard and fast rule can laid While be depend upon while each case must its own circumstances to in a as equity accomplished, generally insure that case such eighth given greater weight this the factor should be than the party, wholly through others. Where one his or her own efforts, and without direct or indirect contribution other, acquires a item of marital after the specific has, separated have and after the marital as a family matter, exist, practical represent ceased to ing equal particular property division would not be consonant with the ordinarily history purpose statute. trial found that judge annuity acquired was because money,
Mr. Alston “took the time and effort and
whatever
cost,
purchase
ticket.”
the amount of
lottery
While
may
effort itself
not have been great,
annuity
was
Mr. Alston’s
not
in
entirely through
efforts. This is
a ease
party
acquisition
which one
has facilitated the other’s
Alston,
own
indirectly.9
using
or
Mr.
Ms
directly
property,
This event
funds,
and won the Lotto.
purchased the ticket
or
joint
efforts
any way
parties’
not
in
on
dependent
was,
time,
marriage
life,
At the
past
present.
shared
over.
purposes,
for all practical
cases,
case,
many
other
once
In this
as
“marital,”
circuit court
have suc
to be
determined
As
temptation
property equally.
to divide the
cumbed to
discussed,
requires
our
division
“equitable”
statute
previously
Leg
Maryland
not
division. The
“equal”
the notion that marital
rejected
specifically
islature
equally.10 Maryland,
be divided
presumptively
should
states, “equitable” does
majority
equitable
distribution
Deering, supra,
“equal.” Deering
necessarily
mean
(“we
at 892
out that section 3-6A-
point
Md.
*11
property
of
purpose
the broad remedial
the marital
keeping
9.
In
with
statute,
acquisition of
recognize
toward the
we
that indirect efforts
generally,
J.
weight.
Lawrence
important
entitled to
See
are
assets
Golden,
§
Property,
“Contribution
Equitable Distribution
8.18
of
Maintenance,
(1983,
Property”
of
1992
Acquisition,
and Preservation
Cum.Supp.).
states,
course,
is
property”
“community
of
marital
10.
In
divorce,
upon
some
equally
the wife and husband
with
between
divided
allowing
modify
this
equitable considerations
division.
states also
Community
Vaughn, Principles
generally,
DeFuniak and M.
See
W.
Greene,
1971);
(2d
Comparison
Property Aspects
Property
ed.
S.
Property Systems, 13
Community Property and
Marital
Common-Law
(1979).
Creighton
71
L.Rev.
equitable
adopted
distribution schemes have
Some states which have
See, e.g.,
presumption
equal
statutory
in favor
distribution.
created a
9-12-315(a)(1) (“All
(19'87,
Repl.Vol.) §
marital
Ark.Code Ann.
1991
party
the court
be distributed one-half
each
unless
shall
shall
inequitable.
that event the court
a division to be
In
finds such
equitable”);
that the court deems
N.C.Gen.
make some other division
(1991)
107.105(l)(f);
(1992)
50-20(c);
§
Oregon
§
Stat.
Revised
Stat.
48-2-32(a);
(1966,
Repl.Vol.) §
1992
Wis.Stat.Ann.
W.Va.Code Ann.
761,
(1981)
Salisbury,
Salisbury
770
See also
v.
657 S.W.2d
767.255.
presumption
equal
a
(Tenn.Ct.App.1983) (adopting
division as
adopted equal
statutory interpretation). Other states have
matter of
"starting point”
equitable
See
distribution.
as a less formal
division
524,
LaBuda,
(1986); Wanberg
Pa.Super.
v.
349
509 equal division require §§ 8-203 to does not [now 8-205] 05 392, 405, Ohm, 431 Md.App. property”); of marital Ohm (1981).11 award, a In making light factors in weigh trial must the relevant judge sound discretion to and then use his her legislative purpose, with the accordance equitable arrive at an award that course, proper, often be equal may statute. Of distribution with the equitable that result and consistent and where a court should not hesitate to make such legislative purpose, different, and must be an award. Each divorce situation is In individually. light peculiar evaluated circumstances case, however, trial erred in half of judge awarding of this Moreover, annuity the Lotto to Mrs. Alston. record justify awarding us contains no evidence which would before any portion annuity to Mrs. Alston. portion judgment of the trial court’s
Consequently, property monetary to the marital award must be relating relationship reversed. Because between however, we property monetary alimony, award and shall remand the case so that the trial court redetermine McAlear, alimony. matter of McAlear v. 298 Md. See (1984).12 A.2d 1256 Hairston, See, (D.C.1983); e.g.,
11.
Dissenting BELL, dissenting. M. ROBERT I dissent. that, majority holds
The efforts, her his or own party, wholly through one Where other, by the or indirect contribution without and direct martial after the item of acquires specific family, a practical the marital separated and after have monetary an matter, exist, representing award ceased to would not ordinari- particular property of that equal division history the purpose with the ly be consonant statute. to achieve a result majority seeks
Op. at 507. Unable, existing ruling, under the fair. just believes very harsh result in this difficult it considers a avoid what requires periodic payments for a definite alimony award of Moreover, determining the amount of either a period time. in consider alimony, equity courts are award or factors, all interests of the such as the value of similar contributions—monetary nonmonetary—of spouses, spouses at the time of the spouses, circumstances the economic award, estrange- that contributed to the facts and circumstances marriage. Additionally, spouses, and the ment duration award, equity determining of a courts must the amount alimony, determining the amount of while consider any monetary alimony, equity award.” courts must consider (1981). Deering v. Deering, Md. See also
511 law, bad that hard cases make observed case—it has been WOKO, Inc., 329 U.S. v. Comm’n Fed. Communication (1946); Northern Sec. 91 L.Ed. 67 S.Ct. 400-401, 436, 468, States, S.Ct. U.S. Co. United (1904) (Holmes, dissenting); J. Citaramanis L.Ed. (1992) (Bell, Hallowell, 142, 177, 328 Md. the rules of the majority simply changes dissenting)—the J. which, turn, property, on marital puts gloss It game. distributed, judicial as well as property marital impacts how Heretofore, once property, awards. review of was determined separation, before or after whether to make a the decision to be in a award, property lump of the or percentage either as a amount, discretion of the was entrusted to sound sum chancellor, enumerated considering after the factors exercised 8-205(b) (1984, Repl.Vol.) Maryland Code Article,1 legal and “in accordance with correct Family Law at 504. Op. standards.” 8-205(b) provides:
1. Section (b) determining payment and method or terms Factors in amount the amount and the method of court shall determine transfer.—The award, monetaiy the terms of the transfer of the payment of a or retirement, sharing, compen- pension, profit or deferred interest in the both, following plan, considering factors: sation or after each contributions, (1) nonmonetary, party monetaiy of each well-being family; (2) party; the value of all interest each (3) party the economic circumstances of each the time the made; award is to be (4) estrangement that contributed to the the circumstances parties; (5) marriage; the duration of the (6) age party; of each (7) physical party; and mental condition each (8) specific when or interest in the how and retirement, plan, pension, profit sharing, compensation or deferred expended party acquired, including the effort each in accumu- retirement, pension, lating property or interest in the the marital both; plan, profit sharing, compensation or deferred or (9) any alimony provision that award of award or other respect family personal use the court has made with home; family
I.
*14
issue,
is at
the
monetary
a
award
have held that “when
We
via a
realignment
to
a
assets
is
effectuate
permitted
court
Wiens,
102, 106,
v.
314 Md.
process.”
three-step
Zandford
Niroo,
226, 231, 545
(1988); Niroo v.
13,
313 Md.
15
549 A.2d
(1988).
court
to
requires
The first
the
35,
step
37-38
A.2d
is
property.
parties’
which of the
determine
8-203(a).
second,
to
court has
value
§
Under
to
Finally,
§
court must decide whether
8-204.
property.
parties’
of the
adjustment
award
monetary
make a
106,
Zandford,
8-205(a);
at
§
314 Md.
rights.
equities
is
to make a
obliged
The chancellor
not
A.2d at 15.
549
and,
made,
not
if
is
he or she need
award
one
monetary
115,
Deering Deering, 292 Md.
v.
property.
divide the
equally
Ohm,
(1981);
392,
Ohm v.
883,
49
203,
Md.App.
892
437 A.2d
(1981).
1371,
405,
If an award is deemed
431 A.2d
1378
it, it must consider
the court
make
before
appropriate,
Id.
in section 8-205.
314
of the ten factors enumerated
each
Harper Harper,
5;
n.
5,
15 n.
294
at
549 A.2d at
Md.
106-07
(1982).
54, 79,
A.2d
929
Md.
448
winnings
the lotto
were marital
The trial court found
i.e.,
...
1 or both
“property
8-201(e)(1).
Pope
v. Pope,
See also
during
marriage.”
(1991); Niroo,
Md. at
277, 279,
482
313
322 Md.
36; Queen Queen, A.2d at
Md.
Archer,
347, 349,
Archer v.
(1987);
Md.
A.2d
(1985).2
it
majority
point;
concedes that
(10)
necessary
appro-
or
any
factor that the court considers
other
equitable monetary
priate
to
at
fair and
consider in order
arrive
to
retirement, profit
pension,
in
of an interest
transfer
plan,
sharing,
compensation
or both.
or deferred
that,
personal
injury,
damage
like
awards for
2. The husband maintains
inheritances,
winnings
totally
to
were
unrelated
gifts
the lotto
Thus,
argues,
entirely
he
party and
fortuitous.
efforts of either
eighth
was an
adequately
consider
factor
chancellor’s failure
damages
personal
injury
In order
recover
in
abuse of discretion.
must,
fact,
case,
injured;
plaintiff
example,
in
have been
there-
for
fore,
claimant,
party.
personal
injured
uniquely
to the
the claim is
affect,
directly
damages
injury
nor is
Entitlement
does
hit before the
that,
jackpot
the lotto
when
acknowledges
prop-
winnings are
marriage,
lotto
termination
Archer,
Having
After
curtailed when the marital
significantly
awards is
*15
Unkle,
spouse.
upon,
See Unkle v.
dependent
the efforts of the other
587,
(1986).
winnings
share
Lotto
do not
that
305 Md.
attribute;
While no its circumstances insure depend upon each case must own this in a case such as accomplished, generally be equity that than the given greater weight be eighth factor should his or her own party, wholly through one others. Where by efforts, or indirect contribution and without direct other, after a item of marital acquires specific has, family and after the marital separated have matter, exist, monetary ceased to practical particular property division of that representing equal and history consonant with the ordinarily would of the statute. purpose history purpose It that
Op. proffers at 507. result. Acknowl- statute dictate that equitable distribution con- concerned that “careful Legislature that the edging nonmonetary to both given sideration [be] well-being respective spouses made contributions 1978, majority Acts of asserts family,” see Ch. As- of the statute indicates the General history [t]he equity by with achieving concerned sembly primarily non-monetary acquisition to the reflecting contributions assets, major should be consid- principle analysis. judge’s a trial eration view, into majority’s In the this translates 506-507. Op. at *16 factor, relating specif- to ‘how and when according eighth “the and the contribution that property’ acquired ic marital was ... acquisition made toward its considerable each party initially per- focused on what it weight.” majority Id. to jerk equally inclination to be the chancellor’s knee ceived to purports acknowledge It then winnings. divide the lotto weigh the role to the relevant factors that it is chancellor’s Court, sure, marriage, all the condition that the for 4. The to be inserts dead; met, for purposes, that condition would be whatev- intents and is continues, period separation. whenever there is a er award, monetary make an appropriate discretion to exercise circumstances, equal be an division under some which ordinarily for would purpose A remand property. the for that remanding Rather the case required. have been than however, real when holding Court makes clear its the purpose, us contains no evidence that “the record before it determined annuity to awarding justify any portion which would pur- a lotto ticket is Alston.” at 509. Whenever Op. Mrs. will by parties, one of the the record separation chased after law, evidence; hence, in no as a matter of contain the same a to non-purchasing spouse entitled such case would the winnings. monetary any portion decision, make today’s whether to Before determination judge’s to the trial discre- a award was entrusted tion, as a of law. reviewing not to a court determine matter is marital today, determining property Before after which required was then further chancellor not before property acquired marital as categorize acquired separation. after That was separation because, Legisla- to the required not reference factors mone- whether to make a ture defined inform decision award, family asset health of marital when the tary readily unmistakenly apparent. It was acquired statute, reason—nothing for another matter, law, permitted for that the chancellor to treat case from property acquired separation differently marital after separation. put, as property acquired Simply before rose”5, is a “[pjroperty acquired by is rose is a rose “[r]ose though even are divorce, up date of party Williams, separated, Williams is property,” (1987), such, Md.App. and as treatment, accorded the same of the determina- purposes award, of a tion before Wilen, Wilen separation. Md.App.
(1985),
Special
the Court of
made this
Appeals graphically
There,
trial
mar-
very point.
court determined that
Stein,
Emily,
5. Gertrude
1913.
Sacred
*17
1981 and
September
dead”
riage
“factually
was
acquired
after that date should
be
property
concluded
Id. marital
By opinion, two standards for decisions reviewing ánd before relating monetary Property acquired sepa- awards. if award is made from that category; ration one if all court must look determine ten reviewing Moreover, have been considered. factors section 8-205 than another as greater weight of them is be accorded none Thus, petitioner acquired a matter law. had the the lotto hour, ticket, if an by only even chancellor’s pre-separation, weigh all of the relevant factors would not be a decision to however, If, majority. were problem hour, if separation, by only even a different acquired after obtain; eight weighted would factor would have result to the exclusion the other factors. heavily more even fact, fact, review, In on would be decisive. suggested no has of this State held or even case a court 8-205(b) should, as a matter
that one
the factors
section
Prahinski
law,
heavily than another. See
weigh
more
*18
(1990);
784,
Prahinski,
227, 229-30,
785
321 Md.
582 A.2d
798,
(1990);
466, 471, 573
800
A.2d
Herget,
v.
319 Md.
Herget
(1987);
347,
740,
Manns,
351,
742
308 Md.
519 A.2d
Manns v.
1076;
v.
Archer,
350,
Lookingbill
(1989). to the is that each of factors suggests only The statute states, part, in pertinent statute weight: be some given the amount and the method court shall determine “The ... after each considering of a payment factors____” added). 8-205(b) § (emphasis following Moreover, conjunctive. in the factors are listed too, We This, that all of them must be considered. indicates according interpreted be have held that “the word ‘and’ should and it is not inter- plain ordinary meaning to and its ” ‘or.’ Comptroller the word Fairchild changeable with (1985). Industries, 285-86, A.2d 343-44 303 Md. suggest in the law that the nothing There is statute case to 8-205(b) in be Legislature intended that factors section thus, conjunctive; requiring other than in the interpreted interpre- to weigh chancellor each of factors. “Where the conjunctive, to of a is such as in the place tation statute difficulty for must both applicant practical a variance show in in hardship interpret and order to have court statute Sutherland, Statutory 1A J. disjunctive.” Singer, Norman (4th 1985). Construction, 21.14, Thus, § at ed. ... if money, determination what sum making [of
[i]n or the other as an any, spouse should be awarded one con- obliged ... is equitable adjustment], the chancellor set ... 8-205.... sider all the criteria forth be in each weight given much should each [h]ow factor entirely case a matter within chancellor’s sound discretion. added).
Wilen, 355, 486 at 784 Md.App. (emphasis and, sure, fact, be To a chancellor must would remiss how, when, marital property if he or did not consider she however, or, This, require does acquired. matter, those matters. only the chancellor consider permit But, once it is determined that alone, after the efforts of one separation spouse situation, in that majority opinion. the effect of the Because ... will evidence which would “contain[ record never ] to the other justify awarding any portion annuity” as a majority opinion preclude, effect of the is to party, the law, post-separation property being matter such from *19 award, that source a marital whatever the result consider of agree other would dictate. I with the ation of the factors court, the chancellor concludes appellate intermediate once the during parties’ separation that was property acquired the acquisition ... “the method property, bec[omes] with its among statutory factors, weight ten merely one factor trier v. to be the court as Alston determined of fact.” 188, Alston, 176, 574, (1990), A.2d 510 cert. Md.App. 85 582 (1991) A.2d 510 granted, (emphasis supplied). 322 Md. 587 ours, the duty, I hold that it is chancellor’s not would weight determine the to be all of the factors and consider given to each factor.6 particular property the determination whether
Making monetary depend primarily the of a award to on the be basis face timing acquisition only its flies in the given have mari- legislative interpretation scheme and the we effect, shown, treating it as I tal but has the have suggests majority 6. The that in case the chancellor "succumbed to this temptation property equally.” Op. at 14. divide the There fact, nothing support suggestion; absolutely the record to prove opposite—that arrived at the record tends to chancellor considering all the facts. The record does amount of award after knee-jerk upon that the award settled not read to a conclusion having petitioner the lotto. reaction to the hit
519 on that differently only based property same kind of shown, unnecessary layer Moreover, I also as have factor. depend- review, of different factors requiring consideration is imposed. timing acquisition, on ing to make a decision today, Prior to a trial court’s from which it is to be award, property identification of the it was only could be where made and the award itself reversed than gave lip no more the record that the [court] “clear from Alston, factors”, Md.App. at service to the [ten] Ward, 343-44, Md.App. at v. quoting Ward (1982), misinterpreted or “where the court 449 A.2d factors.” Id. at unimportant one or dismissed as 579-80, Mount, Md.App. citing 582 A.2d at Mount (1984). Now, acquired when as court’s award decision separation, after trial if is not eight be reversed factor property may weight. considerable accorded majority Legislature
If had intended the result reaches, could, would, have a distinction probably drawn post-separation pre-separation between least, according to or, prioritized at factors most perhaps listing eight important. factor importance, acquired” and when the marital Currently, “how all, factors, if indicating, anything of the ten eighth is the overriding importance. See it is not to accorded Giedinghagen, (Mo.App. S.W.2d Giedinghagen *20 1986), in which the court held entitled
We not hold nor intimate that husband here is do The lottery winnings. of the portion proceeds just court is to make distribution the marital into doing and in so take account the contribution to the as well as spouse acquisition each other considerations. supplied). at 714 (emphasis
Id. omitted whether a is entitled to a spouse determination of prop- of marital respect acquisition and, so, by if in what amount has been entrusted erty chancellor, the latter the sound discretion of Legislature to upon the chancellor to be made decision 8—205(b). in section the factors enumerated consideration of be, not, depend made to and should That decision or whether the review- when the upon reaches to be the result the chancellor ing court believes harsh.