Freese v. Freese

FISCHER, Judge. Appellant, Clara G. Freese, appeals from an amended judgment of absolute divorce entered by the Circuit Court for Montgomery County on September 20, 1990. The following issues are raised by appellant: 1. Did the trial court properly determine ownership and valuation of all marital property? 2.

Did the trial court properly deny a monetary award and adjustment of the equities of the parties? 3. Did the trial court properly rule on the question of stock dividends received and held by appellee during the separation of the parties? 4. Did the trial court err in not including as marital property the traced asset promissory note from the prior ¹⁴⁷ Bethesda house sale, together with interest income therefrom? 5. Did the trial court err in its award of alimony? 6.

Did the trial court err in not reimbursing appellant for some or all of her detective fees? The parties to this proceeding were married on September 17, 1955. Children were born to the marriage but are now emancipated. On August 17, 1984, Clara G. Freese filed a complaint for divorce alleging constructive desertion and adultery.

Subsequently, a supplemental complaint and a second supplemental complaint were filed. The appellee, Russell R. Freese, filed a counter-complaint for divorce, and the matter was tried on December 18,1986. Testimony was taken, and final argument was set for February 2, 1987. Following argument, the court proceeded to give its oral opinion disposing of the matter.

The court found that the husband had committed adultery, awarded indefinite alimony to the wife in the amount of $400 per month, declined to make a monetary award, and declined to award the wife repayment of detective fees. The court did, however, award the wife attorney’s fees totalling $6,000. I., II. & III. Appellant’s initial complaint is that the trial judge did not properly determine ownership and valuation of all marital property.

Fam.Law Article Section 8-203 provides that, “[I]f there is a dispute as to whether certain property is marital property the court shall determine which property is marital property.” Section 8-204 states, “The court shall determine the value of all marital property.” Section 8-205 requires that after the court complies with 8-203 and 8-204 by determining what property is marital and the value of the marital property, the trial judge should proceed to consider and evaluate the factors set forth in § 8-205. These factors are: (1) the contribution, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; ¹⁴⁸ (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property; (9) any award of alimony and any award or other provision that the court has made with respect to family use of personal property or the family home; and (10) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. It is clear that the foregoing statutes set out the responsibilities of the trial court in arriving at a reasonable monetary award that will fairly balance the equities between the parties. In his oral opinion, the trial judge gave a recitation of the various properties he found to be marital property.

The judge found the marital home to be valued at $127,000, JNB Securities worth $8,000, “securities check” amounting to $10,000 1 , E.F. Hutton account totalling $38,000, life insurance of $16,000, Nolan Company account worth $1,250, husband’s retirement benefits of $10,707, profit sharing plan amounting to $20,745, household furnishings of approximately $5,000, husband’s IRA worth $11,000, wife’s IRA worth $2,800, and automobiles valued at $7,000. The court determined that the total value of all marital property was between $280,000 and $300,000. The trial judge concluded, “While the husband may have a little more marital ¹⁴⁹ property than the wife, in the Court’s opinion, there is nothing about any of the property in this case that makes it necessary to adjust the equities and rights of the parties concerning marital property, and the court will, therefore decline to make a marital [monetary] award.” It is impossible to determine how the trial judge arrived at his conclusion since he failed to follow the steps set out in the statutes. We and the Court of Appeals have repeatedly stated that it is mandatory for trial judges to carry out the provisions of Fam.Law Sections 8-203, 204 and 205.

Deering v. Deering, 292 Md. 115, 121 , 437 A.2d 883 (1981); Quinn v. Quinn, 83 Md.App. 460, 464 , 575 A.2d 764 (1990); Campolattaro v. Campolattaro, 66 Md.App. 68, 73 , 502 A.2d 1068 (1986); Nisos v. Nisos, 60 Md.App. 368, 382 , 483 A.2d 97 (1984); Cotter v. Cotter, 58 Md.App. 529, 535 , 473 A.2d 970 (1984); Grant v. Zich, 53 Md.App. 610, 614 , 456 A.2d 75 affd, 300 Md. 256 , 477 A.2d 1163 (1984); Ward v. Ward, 52 Md.App. 336, 339 , 449 A.2d 443 (1982); Ayars v. Ayars, 50 Md.App. 93, 97 , 436 A.2d 490 (1981). Appellant filed a motion to reconsider, and the trial judge stated, “The only portion of this Opinion that I feel somewhat uncomfortable with is the marital property issue, and I would — and I am not in any way suggesting that I will or I won’t reconsider. If both parties want to submit a list showing all of the property, its value, who owns it, the date of acquisition and an accounting, I will look at it and I will take your Motion for Reconsideration under advisement.” In response to the judge’s request, on April 27, 1987, counsel for appellant sent a letter to the judge listing $118,495 in marital property plus an additional $9,500 which was disputed. Counsel for appellant requested that appellant be awarded one-half of the marital property or $59,-247.50 plus one-half of however the court resolved the dispute over the $9,500.

The dispute concerned whether the appellee had collected $9,500 or $4,500 in dividend checks during the marital separation. Apparently, not finding ¹⁵⁰ counsel’s letter of April 27, 1987 to be of any assistance 2 , the judge, on May 18, 1987, in a short opinion and ordér, stated, “[I]t is still the Court’s opinion that a monetary award is not appropriate in this case.” In order to determine the appropriateness of a monetary award, it is necessary for the trial judge to determine what property is marital property and to assess the value of each item. After totalling the value of all the marital property, the court should then determine the value of the marital property titled as to each of the parties and the value of the marital property titled jointly. The court must also determine the value of non-marital property owned by each of the parties.

Armed with this information, the court will be able to make an equitable adjustment if such is necessary. In the case at bar, the court reviewed the property items in its oral opinion and made findings 3 as follows: MARITAL PROPERTY JOINTLY TITLED 2117 Henderson Avenue $127,000 JNB Securities 8,000 E.F. Hutton account 38,000 Automobiles 7,000 Household furnishings 5,000 “Securities check” [JNB] 10,000 TOTAL $195,000 MARITAL PROPERTY TITLED IN HUSBAND Cash value life insurance $ 16,000 Nolan Co. stock account 1,250 Retirement benefits 10,707 IRA 11,000 ¹⁵¹ Profit sharing account 20,745 TOTAL $ 59,702 NON-MARITAL PROPERTY TITLED IN HUSBAND Note $ 25,000 Bank account deriving from note 6,000 TOTAL $ 31,000 MARITAL PROPERTY TITLED IN WIFE IRA $ 2,800 NON-MARITAL PROPERTY TITLED IN WIFE 2 Rings $ 2,000 * * The court did not make a finding as to these items, but they were not contested by the parties. In summary, this results in jointly titled marital property of $195,000, marital property of $59,702 titled in husband, and non-marital property of $31,000 titled in husband. In contrast, the wife has, in addition to her interest in the jointly owned marital property, marital property of $2,800 titled in her name and non-marital property of $2,000.

Therefore, not including the jointly owned marital property in which the wife will share equally, the husband is left with $90,702 ($59,702 marital property titled in his name, and $31,000 non-marital) as opposed to the wife’s total property value of $4,800 ($2,800 being marital property).. If we assume that the parties will evenly divide $195,000 in jointly held marital property, the husband is allowed to retain marital property totalling $157,202, and the wife $100,300. He also has $31,000 non-marital or a total of $188,202 in assets, she has $2,000 non-marital property or a total of $102,300 in assets. While the court did not so state, we must assume that the court was aware of this difference when it observed, “While the husband may have a little