*1
Court of 4, 1986. June *2 Cawood, for Annapolis, appellant. Katherine K. Peters, appellee. for Annapolis, Paula J. GARRITY, MOYLAN, JJ. WILNER and
Argued before GARRITY, Judge. J.) (Heise, County Anne Arundel for
The Circuit Court Court, di- Kenneth E. an absolute appellant, granted Court, grounds on the appellee, Marie A. vorce from *3 temporary Mrs. was awarded Court voluntary separation. children, possession minor the parties’ of alimony, custody lived, a once and family in the use of a house which $33,000. Mr. chal- approximately of monetary award home and family of the designation court’s lenges the presents award. He monetary of the facets various for our review: following issues in its determination trial court erred 1. Whether principal residence was not a property, together, was last lived spouses they when use and of a proper subject and the home” “family order. as marital including trial court erred 2. Whether the husband before conveyed by real estate property such for divorce when filing the date fair for value. conveyed was in a marital making erred the trial court 3. Whether property. the marital include all it did not award when consider failing erred in trial court 4. Whether the after obtained the marital part efforts of the husband. the sole separation by 5. Whether the trial court improperly considered fault in
determining the monetary award.
Facts Kenneth and Maria Court were married at Bridgetown, Maria, Barbados 1968. citizen, a former Greek had been a tour guide her native Greece when she Kenneth, met who was then on sailing a expedition around the world. After their marriage, up took residence in Anne Arundel County, where Mr. Court worked an engineer as for Westinghouse. The Courts children, had two Mimi Eleni, 12, 1971, born July Maria, and Christina Septem- born 9, ber 1974. The couple experienced few marital difficulties until Kenneth resign decided to from his job embark on sailing another expedition. In he contracted to sail a yacht from Turkey to Annapolis via Gibraltar and the West Indies. The voyage commenced of 1980 July and ended in May of 1981.
Since the Courts lived in a they house had pur- chased on Conduit Street in the heart of Annapolis. Be- cause of financial difficulties that resulted from Mr. Court’s sailing plans, however, the moved to their summer cottage in the southern part of Anne Arundel County for the duration of Mr. Court’s voyage. The idea was that the Conduit Street house could be leased and the income used to pay portion of the family’s expenses until Mr. Court returned from Besides, sea. cottage, known as “At- holl”, was less burdensome financially, part since it was a twelve-acre tract owned Mr. parents. Court’s They *4 had conveyed to their son a one-seventh undivided interest in their “guest (Atholl) house” after Maria and Kenneth were married.
When Mr. Court returned from sea he called his wife upon docking and, North Carolina in response ques- to tions, advised her that he had been having an affair with a 22-year-old female crew member from France whom he wanted bring to home with him. He swiftly was dissuaded from this arrangement. Although Mr. Court returned to family, marriage live his
the Atholl to with up separate to deteriorate. Mrs. Court took began soon 1, By agreement on 1982. between residence October a approxi- leased house subsequently Mrs. Court parties, “Atholl” and the children one and a half miles from mately Following her in April, residence with up took 1983. decree, however, daughters Mrs. and her Court court’s Annapolis pursuant located in to into the house moved back and use for the maximum of its an award years. of three statutory period I. Home Family that a few after the Courts years The record reflects had intended to County, they to Anne Arundel where moved large a residency, they purchased permanent establish on Street. Annapolis near the waterfront Conduit house Court, the time was a staff to Mr. who According $30,000 per a Westinghouse salary for with engineer things that poor. land One always “We were year, her, I concurred with thought important, Maria was our considerably extended big to a house buy was fall the house on Conduit. Our back means. And that was cottage.” to the could rent it and move always we employment to terminate his Mr. Court decided When and the Mrs. Court return to sea the summer to aged then 6 and moved couple’s daughters, who were testified that near Mr. Court cottage located Galesville. to lease for the was to enable the reason move iton mortgage payments Street house so that Conduit sailing Turkey from could met while he was couple as the “did Mrs. testified that United States. Court time, thought she that her at the any money” not have essence, In as go” trip. on the going “was not husband found, only “she for her husband’s the chancellor moved convenience.” nearly year, from sea after Mr. Court returned
When to the she intended to move back Mrs. testified that house, in the meantime had become Conduit Street *5 vacant, placed but that her husband had it on the market transaction, stop for sale. In order such a to she to strenuously objected, Mrs. Court wrote a note her hus- confirming agreement band a rental that he had already executed with a third The note recited her party. clearly confirmation the lease on the basis that she was “not selling by interested the house.” refusal Mr. Court upon move back into the Conduit Street house his return from proved coup gras sea to be the de as far as Mrs. Court was concerned. took up separate She residence a month later. places strong
Mr. Court reliance on the fact that Conduit Street residence had been rented-out from the time he left for hearing, period sea until the of four years. He argues that the confirmation of the rental agreements not excluded only the Conduit Street from considera- home, tion as the family but avers that because of such rentals, the house lost its environmental continuity rela- and, therefore, tion to his children qualification lost its as home. family disagree. We (1984) 8-201(c) Fam.Law defines home” as “family this State that: (1)was principal used as the residence of the parties when they together; lived
(ii) is owned or leased 1by parties or both of the at the time of proceeding;
(iii) being is used or principal will be used as a residence 1 or by both of the and a child.
(2) home” “Family does not include property: (i) acquired before the marriage; (ii) acquired inheritance or gift from a third or party; (iii) excluded by agreement. valid The house on in Annapolis purchased, Conduit Street renovated, and then used the Courts as their principal residence interruption without for approximtely years. five do Although pass upon we not here judgment Mr. sea, to resign job from his and return to because of the financial straits of the decision required *6 house on Conduit Street to be either or sold leased to a third The Courts party. house, decided to lease the maintain mortage payments proceeds, with the and to their move summer cottage. Although Mr. attempted to sell the sea, Conduit Street house after his return shortly from it is couple clear that the had originally viewed the to the move cottage as a temporary stop-gap measure. It is also clear to us that circumstances, under the Mrs. Court’s subse- quent of confirmation an executed rental agreement no way by was intended her to act as an agreement to exclude the house from consideration as the family home under 8-201(c)(2)(iii). Quite to the her contrary, purpose very § to preserve was and maintain its to viability again be used as the family home.
In satisfaction of statutory definition of “family home”, includes factors to be considered in a conjunc- manner, tive we believe evidence to be sufficient 1) show that in Annapolis Conduit Street house was used as the principal parties residence of the when they 2) lived together; parties was owned both at the time of 3) and hearing; will be used Mrs. Court and the two minor children of the as their residence. principal evidence, Based on such we hold that the chancellor did not err in ruling that the Conduit Street house the family home.
Possession and Use required The considerations of a chancellor when awarding possession and use of a home are set forth family 8-208(b). The weighed Fam.Law factors to be include:
(1) child; any best interests of (2) the party continuing; interest of each
(i) personal to use the use or family any part it,of or to or use the home or of it occupy family any part dwelling place; as a
683
(ii) to use the
use
or
family
personal property
any part
it, or
occupy
family
part
or use the
home or
of it
any
income;
production
for the
(3)
on
any hardship imposed
whose interest in
party
home or
family
personal property
use
is in-
fringed on
order
by an
issued under
this subtitle.
...
statute,
In harmony with the clear intent of the
when
considering
the award of
and use of a family
home, the
of minor
interests
children of a
mar-
disrupted
riage
given particular
must be
attention so
favorable
as
highest
to secure and maintain the
degree
stability
possible under the circumstances.
v. Pitsen-
Pitsenberger
20, 24,
(1980);
287 Md.
The parties’ 1974, two children were born in 1971 and spent and thus have most of their in the lives Conduit them, Street house. The environment is familiar to and it is in clearly their best interests to reside there.
Mrs. Court rents a house currently for herself and the children at a per cost of about month. Mr. Court $475.00 resides nearly rent-free at the Cumberstone Road cot- in tage. Her interest home as a occupying family dwelling place for herself and greatly the children out- weighs interest he in any may occupying have it. Finally, he suffer very hardship consequence will little as a of this award, and he any hardship outweighed does suffer is the interests of the in having possession children use and Therefore, of the house for limited period. the Court possession home, will award use and of the family located Street, at 84 Conduit to the Defendant for a period three years. (Mrs. Court)
The Court has already per awarded $800.00 month as alimony. rehabilitative The Court will order taxes, pay mortgage, Mrs. Court to all the insurance and house____ expenses maintenance on the Conduit Street 684 in Mr. parties, is beneficial to both arrangement
This from payment deduct the alimony be able to Court will to deduct the tax, Mrs. Court will be able his income while interest. mortgage circumstances to award under the proper it is
Whether
the custodial
family
parent
use of a
home to
and
in the cross-fire of
caught
been
of minor children who have
the discretion
a decision that lies within
discord is
parental
in
The discretion of the chancellor
award
chancellor.
not
dis
use of a
home will
family
ing possession
that it was
showing
in the
of a
appeal
on
absence
turbed
that his or
showing
manner or a
arbitrary
an
exercised
Ken
Kennedy
erroneous. See
v.
clearly
her
judgment
(1983);
303,
A.2d 1208
see also
462
Md.App.
55
nedy,
(1981);
1, 9,
Surfacely, it would of in contravention from their environment uprooted been posses- of question the statute. Each clear of purpose however, its home, own presents and use of a sion chancellor examined a to be set of circumstances unique mindful of needs of children while stablizing to the sensitive parental accompany offtimes practical problems 8-208(b) under considered factors very discord. provide. so not was Annapolis of to the environment
The return Christina, at who for Mimi and change exactly abrupt an hearing the time of the were 13 and years-of-age. When area, in they previously part resided of the they were neighborhood developed friendships they which were to maintain and cultivate. their Although able teachers may changed, have classmates in the same many remained Indeed, any “uprooting” school. have been their may displacement forced Galesville.
We believe the chancellor to have sensi- eminently been tive to the needs and interests of the children while Court fashioning a fair determination in of the of the light totality circumstances, included the needs and inter- practical which hold parents. ests of both We that the chancellor did not in awarding his discretion and use of the abuse to Mrs. Conduit Street house Court for the benefit of the daughters. Court’s two
II. The Atholl Property Mr. that the trial court improperly Court asseverates included the Atholl in his name property, only, was computation property. its of marital Mr. Court further that, prior claims since he had Atholl to the conveyed decree, divorce it should not have been included process consideration award. monetary overall purchased parents Mr. Court from his a one-seventh in piece undivided interest which included the contract, 26, 1971, cottage. The sales dated June stated a $10,000. Mrs. name does purchase price While Court’s deed, not either on the contract or in the appear subsequent 24, 1979, appear dated her name does on the February In purchase property. note used to Novem- promissory (a year separation ber of 1983 little more than one after the prior petition), conveyed but to the divorce Mr. Court his parents. interest back to his The recited consideration the deed that of the to waive their parents’ agreement Mr. repayment obligations claim to of certain owed agreement gave to them. The also Mr. Court the five right period years to reside on the for a per year. a rent of $10
686 following findings ^chancellor made the fact and law:
conclusions of parties’ finds the one-seventh interest in The Court that (“Atholl”) is marital property the Cumberstone Road purchased by parties during it was because propjerty for with funds. marriage paid marital As their was to argument, points to Mr. Court’s second 58 Sharp, Md.App. case of 386 A.2d Sharp recent vs. [473 (1984), Appeals where the Court stated: 499 ] Special against Legislature’s stated clearly would [I]t to one marital policy permit spouse squander to public an impossible equitable and render it to make prpperty Therefore, (Citations omitted). of property. av^ard that intentional- property a chancellor finds wliere of that dissipated property order to avoid inclusion ly award, monetary such inten- consideration of toward dissipation rights is a fraud on marital ... ... tional dissipated prop- the chancellor should consider the apd with property as extant marital ... to be valued erty property. the other marital existing A.2d Md.App. at 399 Sharp, [473 499]. that Road appears
It
the Court
Cumberstone
in the
name as an
solely
was titled
Plaintiff’s
property
his
defeat
parents
any
attempt by
Plaintiff
land. The
might
that the Defendant
have
interest
in 1983 in order
parents
the land to his
conveyed
Plaintiff
marital property
its inclusion in a
award.
to avoid
to allow the
the facts were sufficient
We believe
Atholl
had been
property
to conclude that the
chancellor
any
interest
by Mr. Court to defeat
marital
conveyed
upon
finding, we hold
may have had. Based
such
his wife
parties’
included the
one-sev-
property
that the chancellor
determining
in the
interest
Atholl
when
enth
monetary
of the
award.
amount
Property
III.
Marital
Valuation of
the trial court failed to evaluate
Mr. Court avers that
setting the
the household
when
*10
award.
the
monetary
Unquestionably,
Maryland case law
statutory
require
and
directive
the court to determine the
property prior making any
value of all marital
to
monetary
Cts,
award. See
3-6A-05(b) (now
& Jud.Proc.
Fam.Law
§
Nisos,
Nisos v.
8-205(a)(2));
368, 381,
60
483
Md.App.
Cotter,
Cotter v.
(1984);
529,
A.2d 97
58 Md.App.
473
v.
(1984);
Dobbyn Dobbyn, Md.App.
662, 675,
A.2d 970
57
(1984);
Deering Deering,
v.
115, 129,
In his memorandum and the chancellor “There was no or testimony concerning how when any Further, (personal) property acquired. this neither counsel addressed the issue in memoranda or in oral argu- Therefore, ment. the court will assume that the parties agreement reached concerning personal have the division of The chancellor then on to property.” went “expressly power reserve the to make a further determination with regard question to this for 90 days, during which time the parties may request taking further to testimony however, this hearing, resolve issue.” Prior to such appellant appeal Thus, filed the at bar. record before us does not include as to any testimony “how or when” the items, list of ordinary household such as furniture pots and and pans, purchased. were noted, however,
As hearing petition at on the to judgment, amend the prior had been conducted to the filing had, fact, of the appeal, the chancellor alluded to the value of the household ordinary was under the parties considered it de minimus. impression that The court stated:
The court has that personal property part open left although it impression was under the—there really any argument wasn’t between the about a that, assume, division of it and I essentially, just, it was ordinary personal household great that had no great significance value or other than its present day value as either used furniture or whatever it was. I before, think I I’ve discussed that but state it again to great significance was attached nothing any with an indica- in the case. And also personal property have a reason to it would not tion that there was believe (Em- way one or the other. affected the marital award added). phasis if could have determined the the chancellor
Clearly, to duty he had a property, household items to be marital properly in order to consider their worth evaluate award, though even such assets monetary amount of any agreement an subject or between were would be 970. Cotter, Md.App. 473 A.2d Cotter v. parties. however, presented the evidence In the case sub judice, *11 him insufficient to allow to determine the chancellor was furnishings goods and the household were initially whether marital assets. not determine the thresh- the chancellor could
Although he assumed the he advised the that question, old that had personal property items to be household “ordinary present other than its great significance or great no value or it was.” either used furniture whatever day value as of house- further that the value The chancellor advised in any not affected the marital award hold items would have us, we can not of the record before event. On basis event, In clearly any chancellor to be erroneous. hold the as the value of the property, if considered marital even error, minimus, hold under any items was de we household case, to harmless. the circumstances of this be Post-Separation Property IV. the chancellor should not
Mr.
contends that
Court
he
those assets which
property
considered as marital
have
separation.
after
acquired
had
471 A.2d
Md.App.
In
57
Dobbyn Dobbyn,
v.
marriage
“means
acquired during
that property
we held
marriage
the commencement
the time between
death,
or the issuance of
annulment
its dissolution
acknowledged
Mr.
divorce.”
Court
decree
absolute
prior to
dispute
purchased
in
had been
property
contends, however,
funds used to
divorce. He
acquired after he and his
property
this
had been
purchase
As Judge
This is
irrelevant.
separated.
clearly
had
wife
337, 354,
Wilen, Md.App.
in
v.
Bloom observed Wilen
(1985):
Determining separation rather than the time of will not time divorce lead to an result. The extent to necessarily inequitable spouse acquisi- the efforts of one have led may which any or to an increase its without tion of value or the other monetary non-monetary contribution should, can, and parties separated spouse after determining would constitute taken into account what award. equitable monetary an agreement contrary, to the we any In the absence as marital correctly that the chancellor considered believe Mr. acquired by assets which had property those been prior to the divorce. Fault
V. Consideration of party that the fault of either is Mr. Court believes monetary the amount of a totally setting irrelevant award. noted, 3-6A-05(b)(4) chancellor
As the
Cts. & Jud.Proc. §
facts
contributed to
includes “the circumstances and
*12
as a factor to
con-
estrangement
parties”
the
of the
be
in the determination
the
See Fam.Law
sidered
award.
Indeed,
8-205(a)(4).
the lower court
we have reversed
§
weight
to this factor.
given
when it has not
sufficient
553,
(1984).
Mount,
JUDGMENT AFFIRMED. BE PAID BY
COSTS TO APPELLANT.
WILNER, Judge, dissenting.
Respectfully, embarrassment, and with some I dissent. elucidation; The no respect needs it is for legal bril- liance of my colleagues panel that, on the and for the fact think, what I I despite may wrong. be My embarrassment stems from the fact that I had a in writing hand the statute here, issue a statute that I find ambiguous. now
The for authority a court to enter a use and possession order came into the law in 1978 as part of the recommenda- tions of the January, Governor’s Commission on Do- mestic Relations Laws. It a unique provision, that it (and marked the only exception to the Commission’s Legislature’s) expressed view that courts in domestic rela- tions cases should not free to deal be with instance, derogation of title. In this one limited to the home” “family “family personal use a court property,” exclusive temporary possession can award to one spouse regard without to title. First,
There are aspects two to the matter. the property qualify must as a home” or “family “family personal use property,” both of which are defined terms the statute. See (d).1 art., 8-201(c) If Fam.Law does definition, not fall scope within the it cannot be subjected possession order, to a use and may whatever be aspect, assuming circumstances. second the prop- ought erty qualifies, is whether there use and largely order. That is a matter of court discre- 1, 1984, Family 1. The Law article took effect October which was after recodified, merely the trial in this case. It without substantive art., change, provisions Proceedings of former Courts & Judicial *13 3-6A-01, convenience, seq. et For I shall cite to the § current law. are set forth in tion, the criteria for the exercise which art., 8-208. Fam.Law the definition. Section 8- problem
The here concerns 201(c) home” as “family defines in
“the this State that: property (i) the principal was used as the residence of parties together; lived they when
(ii) 1 or of the at the by parties is owned or leased both proceeding; time of the
(iii) or used as a residence being principal is used will be and a child.” parties or both tests, separate These are three and all must be satisfied. (ii) (iii); question they clearly There is no as to or are met. (i); is with does it mean a that was problem property residence, principal time as their any used assumes, or the that was used as majority property as Therein principal just separation? residence before latter, I and for that ambiguity. lies the think it means the reason, I would that the Conduit Street conclude not home.” qualify parties’ “family does as the view, forth, in clearly my Section 8-206 sets rather legislative authority behind the vested the court policy enter a use and order. It states that the court possession exercise under 8-207—8-213—the sec- powers shall its §§ orders: dealing possession tions with use and to continue to live “(1) family to enable child of the any community in the environment and that are fa- child; and miliar to the (2) occupancy continued provide for the fami- ly home per- and use of use a of a child who property by party custody sonal with added.) (Emphasis has a need to live that home.” policy fully thinking That reflects the Governor’s 1978), Report (January, p. Commission. See Commission Indeed, suggestion rejecting Maryland 12. all adopt community property—that form of *14 be in half simply upon divided a divorce—the Commission observed on 4 of p. Report: its virtually (nor,
“It assures that neither spouse, there- fore, children) their minor will be able to continue living in the home. Each family party will have a half interest home, in the so that unless there agreement be some of parties the appliances, furniture, home—and the furnishings in it—will have to be sold in order that each may Thus, recover value of his or her interest. whatever stability might perchance have survived the breakup marriage of the itself will further likely be eroded, and children will frequently uprooted be from the neighborhood they know. The first disadvantage, there- fore, is the concomitant psychological par- trauma to the ties and their children.”
I recognize construction, the “cardinal rules” of statutory the most “cardinal” of which is to carry out the true Legislature. intention of the It certainly possible is to read 8-201(c)(i) (not as including any property ex- otherwise § cluded) that was ever used by parties principal as their residence. statute, and, That is how the reads the majority if isolation, read in totally it would not an be unreasonable But, construction. 8-206, when read context with it § can hardly be what the Legislature intended. a read- Such ing would be inconsistent wholly with 8-206. The absurd- § ities evident, that it could lead very logically to are self indeed are illustrated by very this case.
The Conduit Street has not been the family home—at least was not as occupied such—since the summer out, and, occasion, 1980. It was rented on one nearly sold. For four Mrs. years, Court and the children lived Galesville, or near appears on a Maryland map be some 8 to 10 miles south of Annapolis and clearly nowhere in vicinity Conduit Street. Whatever may have been the case in 1980 sea, when Mr. Court went to by 1984 it cannot reasonably be said that Conduit Street was “the environment and that community familiar to the [were] child[ren].” 8-201(c)(i) strictly must be read so suggest
I not do on occupied that the only include as to may be Separations separation. their before very day or the other spouse one moves by temporary preceded home. But the real marital an intention abandon without occasioned hiatus, of which was only quarter a four-year wanderlust, whatever Mr. bursts Court’s exigency and posses- statute. The use elasticity may there for “contin- provide case did not entered this sion order ued home” and did not allow occupancy *15 to “continue in the and com- to live environment children added.) In- (Emphasis to them. that are familiar” munity returned for a third time and deed, the children uprooted it Christina, 10, hadn’t lived age neighborhood them to in since Mimi, hadn’t lived age she was in since 9. she was order and remand possession the use and
I
vacate
would
support,
child
alimony,
to reconsider
case for the court
tenant
that. As a
light
award
monetary
and a
contin-
right to
course,
equal
has an
common,
Mrs. Court
is sold.
time as the
until such
ued
v. the TREASURY. OF COMPTROLLER Term, 981, Sept. 1985. No. Maryland. Special Appeals
Court of 4, 1986. June