Beverly Ann KEYS v. Harvey S. KEYS.
No. 1503, Sept. Term, 1991.
Court of Special Appeals of Maryland.
Oct. 28, 1992.
614 A.2d 975
Gerald A. Smith, Baltimore, for appellee.
Argued before MOYLAN, BISHOP, BLOOM, WENNER and FISCHER, JJ.
FISCHER, Judge.
Beverly Ann Keys, appellant, and Harvey S. Keys, appellee, were married on October 10, 1969, and two children, Tamiko and Dwayne, were born of that marriage. On December 10, 1987, the Circuit Court for Baltimore City granted an absolute divorce to the parties. The divorce order awarded to Ms. Keys use and possession of the marital home until September, 1988. The home was sold on June 30, 1990, and Ms. Keys filed a claim against the proposed disposition of the sale proceeds. On May 21, 1991, the Circuit Court for Baltimore City conducted an evidentiary hearing, and on June 4, 1991, the court issued its ruling. Ms. Keys appeals the trial court‘s order, and she presents the following questions for our consideration1:
- Did the Circuit Court for Baltimore City abuse its discretion by granting Ms. Keys compensation for only one-half of the mortgage payments paid for the period September 1, 1985 to September 10, 1988?
- Did the Circuit Court for Baltimore City abuse its discretion by refusing to grant compensation to Ms. Keys for the mortgage payments paid after September 8, 1988?
- Did the Circuit Court for Baltimore City abuse its discretion by refusing to grant to Ms. Keys $2,250 for the lost value of the Ford Mustang?
As the trial court order and memorandum of June 4, 1991 stated, “[A]fter a lengthy and rancorous pre-Decree period involving many battles, this Court granted [Mr. Keys] an absolute divorce on December 10, 1987, seemingly ending the war.” The divorce decree: (1) awarded Ms. Keys the use and possession of the marital home, (2) ordered Mr. Keys to pay Ms. Keys alimony of $25 a week for a period of eighteen months, (3) ordered Mr. Keys to pay $70 per week for the support of Tamiko and Dwayne Keys, (4) excluded Mr. Keys as the biological father of Jamal Keys and ordered Ms. Keys to pay the $400 advanced for a paternal blood test and ordered her to reimburse Mr. Keys $140.40 for the medical expenses associated with the birth of the child, (5) ordered the sale of the 1980 Ford Mustang, аnd (6) awarded personal property to Mr. Keys. The decree also granted:
[T]he use and possession of the marital home to [Ms. Keys] for a period of three (3) years from September 10, 1985. This Court holds that [Ms. Keys] shall pay the mortgage, taxes and utility bills of the marital home during the three (3) year period. In September 1988, the marital home shall be sold and the proceeds divided equally after [Ms. Keys] is credited One Thousand Three Hundred Eighty-Three Dollars and Forty-Seven Cents ($1,383.47) representing four (4) mortgage payments that should have been paid by [Mr. Keys] and after [Ms. Keys] is credited for all mortgage payments and taxes that she paid on the рroperty from September 1, 1985 until the property is sold.
The record shows that Mr. Keys was willing to sell the marital home in September of 1988, and he notified Ms. Keys of arrangements he had made to facilitate the court ordered sale. Mr. Keys contends, and the trial judge found, that by various means Ms. Keys obstructed and delayed the sale of the home. Consequently, in December of 1989, the court appointed the parties’ attorneys as trustees to sell the marital home. Finally, the property was sold for $50,000 in
Ms. Keys argues that the divorce decree awarded her one hundred percent compensation for mortgage payments paid frоm September 1, 1985 until the date the property was sold. The trial court denied Ms. Keys’ claim to full compensation for the mortgage payments and awarded her compensation for one-half of the total payments made prior to September, 1988. Ms. Keys postulates that the divorce decree required Mr. Keys to reimburse her for the total amount paid. She adds that if the intent of the decree was for her to receive only one-half of the mortgage payments, as the trial court ultimately ordered, then the decree would have explicitly stated that she was only entitled to one-half. Ms. Keys notes that, instеad, the decree states, “Ms. Keys is credited for all mortgage payments and taxes that she paid on the property from September 1, 1985 until the property is sold.” The right of a cotenant to contribution for mortgage and tax payments is well established. Crawford v. Crawford, 293 Md. 307, 443 A.2d 599 (1982); Aiello v. Aiello, 268 Md. 513, 302 A.2d 189 (1973); Imagnu v. Wodajo, 85 Md.App. 208, 223, 582 A.2d 590 (1990). A Crawford contribution claim, however, is not a matter of right but is an equitable remedy awarded within the discretion of the court. Broseus v. Broseus, 82 Md.App. 183, 192, 570 A.2d 874 (1990); Wassif v. Wassif, 77 Md.App. 750, 551 A.2d 935, cert. denied, 315 Md. 692, 556 A.2d 674 (1989); Spessard v. Spessard, 64 Md.App. 83, 494 A.2d 701 (1985). Obviously, Ms. Keys misunderstands the
II.
Second, Ms. Keys argues that the trial court abused its discretion in denying her contribution for mortgage and tax payments made after September, 1988. Ms. Keys avers that she is entitled to contribution for all the mortgage and tax payments, including the payments after September, 1988. The trial court denied her claim for contribution fоr payments after September, 1988, explaining that the use and possession order was in effect for a three year period ending in September, 1988 and that “[Ms. Key‘s] bad faith efforts to thwart the orderly, cost-effective sale of the marital home, as ordered by the Decree of Divorce, were inexcusable.” We believe the trial court did not abuse its discretion in denying Ms. Keys contribution for the payments after September, 1988.
The divorce decree stated that the marital home shall be sold in September, 1988 and that Ms. Keys is to be “credited for all mortgage payments and taxes that she paid on the property from September 1, 1985 until the property is sold.” The divorce decree intended for Ms. Keys and the children to reside in the marital home for three years, and shortly after the use and possession period expired, the home would be sold. Clearly, the decree did not intend for the sale of the home to take place some twenty months after the use and possession period expired.
‘We point out, as we have before, that the chancellor is not required to place the parties in a position of monetary equality....’ The chаncellor is not precluded from allowing reimbursement to a spouse for maintaining tenancy by the entireties property, nor must he require that the spouse out of possession contribute a proportionate share of the payments. Depending on the circumstances, requiring contribution could create the very inequity which the [Marital Property Act] was designed to prevent. Hence, the test involves whether the total disposition is equitable. [Citation omitted; footnote omitted.]
In Broseus v. Broseus, 82 Md.App. 183, 570 A.2d 874 (1990), the husband, a Ph.D., was awarded use and possession of the marital home but was denied contribution. We concurred with the chancellоr‘s decision “that it was unreasonable for [the husband] to expect reimbursement for his payments on their joint obligation as he was receiving the benefit of the use of the residence and since [wife‘s] standard of living was considerably lower than his.” Broseus, 82 Md.App. at 193.
In the instant case, the trial court considered several factors in denying Ms. Keys contribution for the mortgage payments made after September, 1988. The trial court‘s order specifically stated:
[Ms. Keys‘] bad faith efforts to thwart the orderly, cost-effective sale of the marital home, as ordered by the Decree of Divorce, were inexcusable. Because he suffered inсreased costs of sale, and because he acted in utmost good faith and was fully cooperative, it cannot be persuasively argued that Mr. Keys stands unjustly enriched by this court‘s refusal to award [Ms. Keys] contribution for the mortgage payments accruing after the expiration of the use and possession order in September, 1988.
Finally, on February 6, 1989, Mr. Keys filed a pleading captioned “Complaint for Partition or Bill of Sale to Harvey S. Keys” asking the court to order the sale of the marital home. On Decеmber 15, 1989, the court ordered that counsel representing each party act as trustees to make such a sale. On March 20, 1990, after many attempts by the trustees to gain access to the property, the trustees filed a motion to secure the keys to the house. The motion explained that the trustees had entered into a contract of sale and that the contract was contingent upon a satisfactory plumbing inspection by the buyer. The motion stated:
6. That the Trustees have been informed that [Ms. Keys] has not made [the marital home] available for said inspection. The communications between Beverly Ann Keys and the three agents involved has not been productive.
7. That in order to complete the sale of the above property, that the plumber inspect the premises and that in the near future, the property be appraised by the Lending Institution and lastly, an opportunity to make repairs, as required by the Lending Institution or the Contract.
8. That the Trustees, do not have any keys to [the marital home] and suggest to the Court, that if they had keys they would be able to have their agents gain entrance for the plumbing inspection, appraisal and repairs.
The court subsequently ordered Ms. Keys to provide the trustees with a set of keys to the marital home. Even after the closing of the contract of sale, Ms. Keys continued to delay her move from the home:
Counsel: Do you remember the exact dates the locks were changed?
Ms. Keys: No, I do not.
Counsel: I have a bill here that indicates that the locks were changed on June 22, 1990. If I have a bill to that effect, would you dispute that?
Ms. Keys: I had already moved when the locks were changed.
Counsel: Didn‘t you call me back after this date, ... seeking to get access to the house to move?
Ms. Keys: Yes, I did because I couldn‘t get in to get the rest of my things.
Counsel: Okay. So you hadn‘t completed the move?
Ms. Keys: Well, I only had a few things that I had to clean up. I left some coats in the closet, I think.
Counsel: Well, Ma‘am, I‘m going to tell you I was in thе house on June 22, and it was plenty of stuff in there on the 22nd.
The Court: Mrs. Keys, you knew back in 1987, at the time of the divorce, that you only had the right to remain in the house until September of ‘88, correct?
Ms. Keys: Yes.
The Court: And yet, you‘re saying that when push finally came to shove in June of 1990, almost two years later, you had so ill-prepared to move out of the house, that it was necessary for counsel to come in and ask for court order to get you to turnover the keys, because you didn‘t want to move, because you weren‘t prepared to move.
Ms. Keys: Correct.
The Court: And, if I understand your testimony, the period from September of 1988 until you finally moved in June of 1990, you were hoping and wishing that you were going to somehow be able to work something out with your husband?
Ms. Keys: Yes.
The Court: Did your husband do or say anything at all during that period that suggested to you that he was going to be amenable to that arrangement, to any such arrangement?
Ms. Keys: No.
Mr. Keys testified that he attempted to comply with the divorce decree and have the property sold in September, 1988. He testified to the following:
Counsel: Did there come a time when you had made some efforts to have that property sold, pursuant to Judge Johnson‘s order?
Mr. Keys: Yes.
Counsel: Now, what was that effort? What did you do?
Mr. Keys: What I did, I went up to see Mr. Steve Campbell, a realtor. And he informed me, at that point, that he had just sold a house on Lucia Avenue which was a [one-bedroom]. And he asked me what was mine? I said it was a three bedroom. He said well, in order to get
Admittedly, the evidence available to the trial court, on the issue of Ms. Keys’ refusal to cooperate, was not overwhelming up to the point at which she refused to turn over the house keys to the trustees. Ms. Keys’ refusal in early 1990 to provide the trustees, including her own attorney, with a key to the house for the purpose of obtaining an inspection of the house made it abundantly clear to the trial judge that she was doing everything possible to delay the sale of the house. After considering all of the available evidencе, the court concluded that Ms. Keys had delayed the sale of the home and that, under equitable considerations, she was not entitled to contribution from Mr. Keys for mortgage payments made after the conclusion of the use and possession period. The trial court found that Ms. Keys would be unjustly enriched if the court were to order Mr. Keys to pay one-half of the mortgage payments from September, 1988, since those expenditures were caused by Ms. Keys’ actions in delaying the sale of the property.
The dissent is apparently premised upon the theory that, following a divorce of the parties, the co-tеnant in possession has a legal right to contributions, and the court may not reduce the amount of those contributions despite equitable considerations. This, of course, is incorrect. The right to contributions, whether between tenants by the entireties or tenants in common, is an equitable remedy. See Aiello v. Aiello, 268 Md. 513, 302 A.2d 189 (1973), Crawford v. Crawford, 293 Md. 307, 443 A.2d 599 (1982). As Judge Bell
Pursuant to
Ms. Keys also argues that the trial court erred in basing its decision on an erroneous belief that Mr. Keys was “ousted” from the family home. The trial court denied Ms. Keys’ contribution claim for the mortgage payments after September, 1988, in part, because the trial court incorrectly reasoned that the use and possession award effectively “ousted” Mr. Keys from the home. A use and possession order is not equivalent to an “ouster.” We have used the term “ouster” to describe actions by one co-tenant which preclude another co-tenant from the use and enjoyment of the property. In Spessard, 64 Md.App. at 88, we described “ouster” as:
[T]he actual turning out or keeping excluded the party entitled to the possession of any real property....’ The exclusion does not require physical eviction, so long as ‘the act or declaration constituting the ouster [is] unequivocal and notorious....’ To prove ouster, one must show ‘actual intent to exclude the co-tenant permanently from his rights in the property....’ (Citations omitted.)
The trial court‘s ruling thаt the use and possession order “ousted” Mr. Keys from the marital home is erroneous. Mr. Keys was, however, constructively “ousted” from the home at the time Ms. Keys refused to turn over the keys. Moreover, the option of moving back into the marital home after the expiration of the use and possession order does not appear to have been available to Mr. Keys since Ms. Keys admitted that, in 1984, she stabbed Mr. Keys. As we have concluded that the trial court was not clearly erroneous in deciding that Ms. Keys delayed the sale, the trial court did not err in applying equitable considerations and in determining that Ms. Keys is not entitled to contribution for mortgage payments made after September, 1988.
III.
Third, Ms. Keys claims that she is entitled to one-half of the value of the 1980 Ford Mustang. The divorce
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
BLOOM, Judge, concurring in part and dissenting in part.
Although I agree with most of the majority opinion, I dissent from that part thereof that affirms the denial to Mrs. Keys of what are now termed Crawford contributions for mortgage payments she made between September 1988 and March 1990. I believe that the majority, as well as the chancellor, have simply misconstrued the facts and misinterpreted the law relating to contributions between co-tenants.
Contrary to whаt the majority opinion states, a co-tenant who has laid out money to make mortgage payments, including principal and interest, taxes, and insurance, or for necessary repairs, and thus has benefitted the other co-tenant by preserving and protecting their property, is entitled to contribution. Crawford v. Crawford, 293 Md. 307, 443 A.2d 599 (1982); Aiello v. Aiello, 268 Md. 513, 302 A.2d 189 (1973); Colburn v. Colburn, 265 Md. 468, 290 A.2d 480 (1972); Schilbach v. Schilbach, 171 Md. 405, 189 A. 432 (1937); Hogan v. McMahon, 115 Md. 195, 80 A. 695 (1911). The majority opinion cites Broseus v. Broseus, 82 Md.App. 183, 192, 570 A.2d 874 (1990); Wassif v. Wassif, 77 Md.App. 750, 551 A.2d 935 (1989); and Spessard v. Spessard, 64 Md.App. 83, 494 A.2d 701 (1985) as support for its state-
Generally, claims between co-tenants for contribution are asserted in partition or mortgage foreclosure proceedings and are recognized as equitable claims, enforceable as equitable liens. And to the extent that one co-tenant pays the mortgage debt, he may obtain an assignment of the mortgage or at least assert a right of subrogation. See Aiello, supra, 268 Md. at 513.
Some states, however, recognize the existence of a common law action for contribution, in the nature of an action in indebitatus assumpsit—being indebted, he undertook (or promised). See, e.g., Fowler v. Fowler, 50 Conn. 256 (1882). Whether enforceable at law or in equity, it is clear that the payment by one co-tenant of more than his or her share of charges that had to be paid in order to presеrve the property creates a debt, the ultimate payment of which by those who in equity and good conscience ought to pay it will be compelled by the court. Id. [268 Md.] at 519.
Law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law.1
Because this debt or obligation and its corresponding right or entitlement are founded on principles of equity, in a divorce proceeding the claim for contribution may be subsumed in or offset by the authority of the chancellor to achieve a more complete equity between the parties by granting (or declining to grant) a monetary award. By thе time the chancellor was called upon to do equity in these proceedings, however, the parties had long ceased to be husband and wife and tenants by the entirety. Mrs. Keys was a tenant in common and, as such, lawfully entitled to Crawford contributions, provided she had not ousted her co-tenant.
Where there has been an ouster, the co-tenant in possession forfeits any right of contribution. Spessard, 64 Md.App. at 88.
“Ouster is the actual turning out or keeping excluded the party entitled to the possession of any real property.” The exclusion does not require physical eviction, so
long as “the act or declaration constituting the ouster [is] unequivocal and notorious.” ... To prove ouster, onе must show “actual intent to exclude the co-tenant permanently from his rights” in the property.... (“where one co-tenant ... remains in possession ... and refuses to accede to plaintiff‘s demands for access to the property, such conduct clearly constitutes an ouster.“). For example, possession under circumstances which evince “a claim of exclusive right and title” and which deny “the right of the other tenants to participate in the profits” may constitute an ouster.
Id. at 88-89 (citations omitted).
To the extent that Mrs. Keys, in seeking contribution, was invoking the aid of equity, she may be subject to the equity principle known as the “clean hands” doctrine. The maxim, “he who comes into equity must come with clean hands” is based on public policy and means that “courts of equity will not lend their aid to anyone seeking their active interposition, who has been guilty of fraudulent, illegal, or inequitable conduct in the matter in relation to which he seeks assistance.” Hlista v. Altevogt, 239 Md. 43, 49, 210 A.2d 153 (1965). In applying the maxim, however, equity courts do not require litigants to have led faultless lives in dealings on all matters, but confine themselves to the effect that the alleged fraudulent, illegal, or inequitable conduct has upon the request for relief then under consideration. Id. See also, Niner v. Hanson, 217 Md. 298, 142 A.2d 798 (1958); Brown v. Brown, 199 Md. 585, 87 A.2d 626 (1952).
The meager record in this case contains not one shred of evidence that would support a conclusion that Mrs. Keys ousted Mr. Keys from use and enjoyment of the property or otherwise engaged in any fraudulent, illegal, or unconscionable conduct detrimental to Mr. Keys until March 1990, after the court appointed trustees had executed a contract of sale. Then, according to the evidence, she denied, or at least impaired, efforts by the trustees to gain access to the
The divorce decrеe awarded Mrs. Keys use and possession of the marital home for a period of three years from September 10, 1985. It also stated that “[i]n September 1988, the marital home shall be sold and the proceeds divided ...,” but that is a far cry from a “court ordered sale,” as the majority terms it. Op. at 680. The divorce
The termination of the use and possession order on September 11, 1988, did not require Mrs. Keys to vacate the рremises. She was certainly not obliged to accept Mr. Keys‘s offers or accede to his proposals. It is preposterous to suggest that by remaining on the premises and continuing to pay the mortgage for the benefit of both parties until the house was sold Mrs. Keys ousted Mr. Keys or deprived him of any of his rights in or to the property. It is equally preposterous to suggest that, by ignoring or rejecting Mr. Keys‘s proposals for selling the house, Mrs. Keys ousted her former husband or deprived him of any right or, in the language of the court, “obstructed and delayed the sale of
I would reverse the trial court‘s denial of Mrs. Keys‘s claims for Crawford contributions, at least for mortgage payments she made from September 1988 to March 1990, while affirming the other provisions of the judgment.
Judge WENNER joins in these views.