Fuge v. Fuge

ADKINS, J., In these cross-appeals, we again are asked to resolve legal issues stemming from the 1998 divorce of Jeffrey and Susan Fuge. The Circuit Court for Montgomery County granted the Fuges a judgment of absolute divorce on June 11, 1998. This is the third appeal concerning divorce-related issues. Upon reviewing the case for a third time on remand, the circuit court entered a monetary award in favor of Ms. Fuge, holding that Maryland Code (1984, 1999 Repl.

Vol.), section 8-201(e)(2) of the Family Law Article (“FL”) was not applicable to a marital home, which had been held by the Fuges as tenants by the entirety during their marriage, but sold before their divorce. The court also ruled that Mr. Fuge was not obligated to pay any portion of the Fuge children’s private school tuition. It is from this decision that the parties note their respective appeals. Mr. Fuge, appellant/cross-appellee, raises two questions for our review.

I. Did the trial court err when it ruled that FL section 8-201(e)(2) does not apply to real property held by the parties as tenants by the entirety during their marriage, but sold before the divorce?

II

Did the trial court err when, in determining the monetary award, it looked to the parties’ respective economic circumstances on the date of the divorce in 1998 rather than on the date that the monetary award was entered in 2001? Ms. Fuge, appellee/cross-appellant, puts forth an additional issue in her cross-appeal.

III

Did the trial court err in determining that Mr. Fuge did not have to contribute toward private schooling for ¹⁴⁶ the Fuge children, after making an express finding that such schooling was appropriate? We hold that the trial court properly found that FL section 8-201(e)(2) did not apply to the Fuge’s former property. We find error, however, in the court’s failure to reevaluate the parties’ economic circumstances in 2001, upon its recalculation of the original 1998 monetary award in response to our decision in the second appeal. The court committed further error in basing its conclusion that Mr. Fuge had no obligation to contribute to his children’s private school tuition on a clearly erroneous factual finding that Mr. Fuge lacked the ability to do so.

We therefore remand the case in order for the trial court to reconsider issues II and III in accordance with our opinion. FACTS AND LEGAL PROCEEDINGS Because of the lengthy history of this case before this Court, and the extensive record, we have chosen to restate substantial portions of the facts from our opinion in the second appeal in this case. Relatively Undisputed Facts The Fuges were married on October 29,1977, and produced three children. In 1979, the Fuges acquired a home at 3902 Woodbine Street, Chevy Chase, Maryland (“the Woodbine property”).

The sum of $179,000 that was needed to purchase the Woodbine property was provided by Mr. Manfuso, Ms. Fuge’s father. Mr. Fuge was the only party to attend the November 26, 1979 settlement, and the Woodbine property was titled in the names of both parties, as tenants by the entirety. In 1983, the parties constructed an addition to the Woodbine property, and Mr. Manfuso again provided the necessary funds, about $30,000. On August 29,1986, the parties sold the Woodbine property and received net proceeds of $340,610.67.

They then moved into a house located at 8315 Kerry Road, Chevy Chase, Maryland, which had been previously purchased by Mr. Man- ¹⁴⁷ fuso, including an adjoining lot with an address of 8817 Kerry Road, Chevy Chase, Maryland, and was given by Mr. Manfuso to Ms. Fuge by an accommodation deed. The parties constructed a house on the 8817 Kerry Road property, but continued to reside at the 8315 Kerry Road property rent-free during the construction of the 8317 Kerry Road property. The total cost of constructing the 8317 Kerry Road property amounted to $526,992.00. The parties moved into the 8317 Kerry Road house in December 1988, with the property titled solely in Ms. Fuge’s name.

The Disputed Facts The parties separated in August of 1995. At trial, the main issue before the court was whether the $340,610.67 received from the sale of the Woodbine property was marital property or Ms. Fuge’s sole property. Because the evidence surrounding these transactions conflicted at trial, we will summarize the testimony of Ms. Fuge, Mr. Manfuso, and Mr. Fuge, as they relate to these transactions. Concerning the money used for the purchase of the Woodbine property, Ms. Fuge testified at trial that the money had been loaned to her by Mr. Manfuso to cover both the purchase of the Woodbine property and the closing costs.

Ms. Fuge also said that no marital funds had been used in that transaction. Not only was the loan from Mr. Manfuso evidenced by a demand promissory note for $179,000.00, dated December 20, 1979, and payable to Mr. Manfuso, the promissory note was signed only by Ms. Fuge. Concerning the construction of the addition, she alone executed a promissory note for $30,302.02 on January 24, 1983, payable to Mr. Manfuso. These were the only funds used in constructing the addition.

Concerning repayment of the loans, Ms. Fuge testified that in 1984, the two loans, totaling approximately $209,000, were forgiven by Mr. Manfuso. Not only had no payments been made on either note, Mr. Fuge was not a party to either note nor was his name mentioned in the “Acknowledgment of Gift” forgiving the loans. In addition, Ms. Fuge contended that Mr. ¹⁴⁸ Manfuso had never intended for Mr. Fuge to receive any of those funds, and had given them solely to her. After the sale of the Woodbine property, Ms. Fuge placed the net proceeds from the sale into a Franklin Fund account solely in her name (“the Franklin Fund”).

By the end of 1986, the Franklin Fund contained $580,000. Ms. Fuge testified that all of the money used in the construction of the 8317 Kerry Road property had been obtained from the Franklin Fund. At trial, Mr. Manfuso testified that he had made the check for $179,000 to purchase the Woodbine property payable only to Ms. Fuge, because prior to estate planning he and his wife had decided to give Ms. Fuge an interest-free loan to purchase a home. Mr. Manfuso also recalled having made clear to both parties that any gifts and/or funds provided by him were to remain only in Ms. Fuge’s name, and that he had intended the funds used for the purchase of the Woodbine property to be a gift only to Ms. Fuge.

As for the $30,000 interest-free loan used for constructing an addition to the Woodbine property, Mr. Manfuso said that those funds had been given solely to Ms. Fuge. Mr. Fuge testified that the sum of $179,000 needed to acquire the Woodbine property had been a gift to both parties from Mr. Manfuso. Before purchasing the Woodbine property, Mr. Manfuso had said, “ ‘Kids, I want you to go out and start looking for a house, and I will be helping you.’ ” After they had decided to purchase the Woodbine property, Mr. Manfuso said, “ ‘You two are very lucky in that I am giving you a gift to buy your first home.’ ” Mr. Fuge said they had discussed purchasing the Woodbine property, and Ms. Fuge had commented on how wonderful it was that Mr. Manfuso was “ ‘helping [them] to get into this home, the two of us.’ ” Mr. Fuge testified that he had attended settlement on the Woodbine property and that Mr. Manfuso’s check had been deposited into the parties’ joint bank account, but he could not recall to whom the check was made payable. Regarding construction of the addition, Mr. Fuge testified that the funds used to construct the addition to the Woodbine property had ¹⁴⁹ been a gift to the parties from Mr. Manfuso.

Mr. Fuge also testified that Mr. Manfuso had never indicated that the addition of the Woodbine property was to be a gift only to Ms. Fuge, and that the conversations he had had with Ms. Fuge concerning construction of the addition consisted of their comments that they were both very lucky to have Mr. Manfu-so giving them this gift. Upon sale of the Woodbine property, Mr. Fuge testified that he and Ms. Fuge decided to place the net proceeds in an interest bearing account to be used for the construction of a new house, and confirmed that the Woodbine property had been titled in both their names as tenants by the entirety. On May 21, 1998, at the close of evidence, the trial court found that the lot upon which the 8317 Kerry Road property was built was non-marital property, as it had been a gift from Mr. Manfuso solely to his daughter, Ms. Fuge. In addition, the trial court found that monies in the Franklin Fund in excess of the $340,000 received from the sale of the Woodbine property were funds belonging solely to Ms. Fuge, as gifts from her parents.

Moreover, those funds, plus the net proceeds received from the sale of the Woodbine property, were used to construct the 8317 Kerry Road property. The trial court took under advisement the issue of whether FL section 8-201 (e)(2) applied to the Woodbine property. On June 10,1998, the trial court ruled from the bench: On May 21st I decided all issues with the exception of the property at (Kerry Road] in Woodbine. I took the case under advisement because of the issue regarding how.... [FL 8-201] applied to this case....

I have decided this issue on other facts and the facts that I find are that [Ms.] Fuge’s father, Mr. [Manfuso], made a gift to both Mr. and [Ms.] Fuge of the funds needed to purchase the property on Woodbine November 26th, 1979____ When the Woodbine property was sold in August of 1986[,] $340,611 proceeds of the sale were placed into an account in [Ms.] Fuge’s sole name. Other non-marital monies were put into that account. ¹⁵⁰ The cost of construction of the home on [Kerry Road] was $526,992. The marital property, $340,611, was used in its entirety towards the cost of construction on [Kerry Road] and it represented____64.4 percent of the cost to construct the home on [Kerry Road]. The evidence at trial was that the value of the property at [Kerry Road] totaled $860,0.00, of which $275,000 was for the land.

The land is clearly non-marital property and titled to [Ms.] Fuge---- [T]here is no evidence in this record that the title to the Woodbine property was recorded by mistake. The evidence is that the title to the Woodbine property was in the joint names of Mr. and [Ms.] Fuge as tenants by the entirety. Further, there is no evidence that during the time that the parties lived in Woodbine that it was to be treated in any way other than jointly owned marital property. After the sale of the property the evidence is that [Ms.] Fuge told [Mr. Fuge] that her father wanted [the Kerry Road] property to be in her name only.

Jeffrey’s testimony and evidence presented was that he was reluctant to agree to not have his name on the property but his wife reassured him or assured him notwithstanding the fact that it was her father’s idea the property was jointly, was still to be half owned by each of them. Further, I accept the testimony of [Mr. Fuge] that he and his wife agreed to put the proceeds from Woodbine into [Ms.] Fuge’s account and that they further agreed that the money would be used to build a new home.... There is no evidence it was done by mistake. There is evidence that a subsequent piece of property was incorrectly titled in both Mr. and [Ms.] Fuge’s names and it was immediately changed to [Ms. Fuge’s] sole name.

Further, I accept the testimony of [Mr. Fuge] that another reason he was reluctant to agree to putting the property in his wife’s sole name was because he didn’t have any retirement and he expressed that to his wife, who told him that he need not worry, that she would inherit millions of ¹⁵¹ dollars and that if he just continued to pay the bills he would be taken care of when she inherited from her mother and father. It was his testimony and credible testimony that he consented because he trusted his wife, that there were several conversations between he and his wife on this matter. So as a result of all the evidence, I am signing a judgment of absolute divorce.... The real property, as indicated before, on [Kerry Road] is determined to be marital property to the extent of $378,151.

A monetary award is granted in favor of [Mr. Fuge] against [Ms. Fuge] in the amount of $141,510 as an adjustment of the equities of the parties and to the marital property. Unhappy with this result, Ms. Fuge appealed to this Court. In an unpublished opinion filed July 21, 1999 (“Opinion I”), we reviewed the trial court’s findings of fact and determined that it had incorrectly used a preponderance of the evidence standard of proof in determining that the funds provided by Mr. Manfuso for the purchase of the Woodbine property were a gift to both parties. See Fuge v. Fuge, No. 1262, Sept. Term 1998, 127 Md.App. 782 , (filed July 21, 1999), slip op. at 22.

We noted that, in determining whether a valid inter vivos gift has been made, the appropriate standard of proof is by clear and convincing evidence. Consequently, we remanded the case to the trial court “to consider the evidence anew,” using the proper standard of proof. Furthermore, for the benefit of the trial court on remand, we underscored that the spouse claiming that the property is marital property has the burden of persuasion to establish, by clear and convincing evidence, that the third party gift was to the marital unit. Accordingly, for [Mr. Fuge] to prevail, the court must be persuaded, by clear and convincing evidence, that all three elements of a valid inter vivos gift were ¹⁵² present, as well as [Mr.] Manfuso’s intention that the gift was to both [Mr. Fuge and Ms. Fuge], Id., slip op. at 24 (citations omitted) On remand, after a hearing, the trial court decided: [I] am not going to make any finding with regard to [FL] 8-201(e)(2) or its applicability to this case.

What I understand the Court of Special Appeals remanded the case for was for me to make a finding on the record with regard to the gift I found [Mr.] Manfuso made to the marital unit of Mr. and [Ms.] Fuge. I applied a standard I thought was correct of preponderance of the evidence. The Court of Special Appeals says that with regard to that issue, the standard correctly is clear and convincing evidence. So I have considered it, and for the sake of the record, I accept the testimony of [Mr. Fuge].

I believe [Mr. Fuge’s] testimony is more credible than that of [Ms.] Fuge or [Mr.] Manfuso. I believe [Mr.] Manfuso made a gift to Mr. and [Ms.] Fuge, to the marital unit, and I am convinced by clear and convincing evidence that the gift was made by him to the Fuges[.] Mr. Fuge’s counsel inquired whether the ruling applied to the $30,000 gift for construction of the addition to the Woodbine property, and the trial court replied that it did. Unhappy once more, Ms. Fuge again appealed the trial court’s decision to this Court. In an unpublished opinion filed October 26, 2000 (“Opinion II”), we again reversed the trial court’s decision, citing the absence of clear and convincing evidence that Mr. Manfuso intended to relinquish all interest in the $179,000 he gave the Fuges to purchase the Woodbine property.

See Fuge v. Fuge, No. 2432, Sept. Term 1999, 134 Md.App. 708 (filed Oct. 26, 2000). We explained that, in order to have a valid inter vivos gift, “[t]here cannot be reserved to the donor a ... power to revoke the gift or a dominion over the subject of the gift[.”] ¹⁵³ Although [Mr.] Manfuso transferred the money to the parties, he clearly reserved [a power] to revoke the gift and seek repayment of the money by requiring that [Ms. Fuge] execute a demand promissory note containing a confessed judgment clause. Although [Mr.] Manfuso may have never intended to demand repayment, the fact remains that he reserved the right to do so; in effect, if it was a gift, [Mr.] Manfuso retained the right to revoke the gift. Consequently, as [Mr. Fuge] failed to present clear and convincing evidence of one of the three elements required to establish a valid inter vivos gift, the money received on 26 November 1979 was a loan, not a gift.

Although, [Mr.] Manfuso eventually forgave the loan, it is clear from the evidence that when he did so, he intended that the gift had been given only to [Ms. Fuge]. Therefore, the proceeds received from the sale of the Woodbine property constituted non-marital property because the source of the funds used to acquire the Woodbine property was traceable directly to a gift from [Mr.] Manfuso solely to [Ms. Fuge], See id., 134 Md.App. 708 , slip op. at 19-20. We did not address the FL section 8-201 (e)(2) issue because it was not decided by the trial court. Our mandate reversed the judgment and remanded the case to the trial court “for further proceedings consistent with [our] opiñion[.]” New Developments Since The Second Appeal In early December 2000, Mr. Fuge requested, by motion, a reduction in his child support obligation, due to his son Jeffrey reaching the age of majority, and Ms. Fuge’s new employment.

At the June 29, 2001 hearing on Mr. Fuge’s motion, the trial court also considered the issues as directed in Opinion II. At this hearing, Mr. Fuge took the stand. He testified that he had moved the offices of his business, Jeffrey C. Fuge and Associates, from a rented office space on Old Georgetown Road to his home, “in an effort to try to save money.” Since January 1999, Mr. Fuge had cut the hours of his single employee by half, due to monetary concerns. ¹⁵⁴ While Mr. Fuge was on the stand, his personal financial statement, which reflected his current income, assets, and liabilities, was introduced into evidence. This financial statement listed his monthly wage income as $11,098, and his monthly income from other sources as $10,020, for a total monthly income of $21,118.

Taxes attributable to this income totaled $7,469, leaving a monthly income, after taxes, of $13,649. His total monthly expenses (not including taxes), including those for his children, totaled $11,186. According to the financial statement, Mr. Fuge’s total liabilities were approximately $40,000 more than his total assets. Ms. Fuge also submitted a financial statement.

Her financial statement reported her monthly income from her wages and trust account as $4,082, 1 and her monthly income from other sources (including gifts) as $3,560, for a total monthly income, before taxes, of $7,642. Taxes attributable to this income totaled $1,458, leaving a monthly income, after taxes, of $6,184. According to her financial statement, Ms. Fuge’s total monthly expenses (not including taxes), including those for her children, totaled $18,319.50. 2 Her total assets were reported to be $317,700, with no reported liabilities. Near the end of the hearing, the Court turned to the FL section 8-201(e)(2) issue.

THE COURT: ... The issue that we have to talk about now is, during the course of the trial, and even after the first decision of the Court of Special Appeals, [Mr. Fuge’s attorney], on his client’s behalf, has asked me on separate ¹⁵⁵ occasions to rule on the issue he raised on behalf of his client, on the applicability of [FL 8-201(e)(2)] ...; and I declined to do that, for reasons I said.... I don’t need to rule on that because I am going to decide on other reasons .... The Court of Special Appeals, on the issue raised by [Mr. Fuge’s attorney] basically said we are not going to deal with that either because [the trial judge] never ruled on it; he never made the finding one way or the other, so it is really not before us to decide.

So [Mr. Fuge’s attorney] comes back on behalf of his client now and says okay, so now rule on it; now rule on what I asked you to rule on previously because you have been reversed on the reason you thought you were right.; and your position is, it is too late, you cannot reopen it, the case is over. Right? [MS. FUGE’S ATTORNEY]: I have that position and one other [one.].... I looked at the opinion of the Court of Special Appeals, which says that Your Honor’s decision is reversed, “Case remanded to the [trial court] for further proceeding consistent with this opinion.” It doesn’t say that you now have the authority to do anything but-I mean, they are very clear instructions.

When it was remanded the first time, it wasn’t reversed. It was judgment affirmed in part and vacated in part, case remanded for further proceedings. This time, I don’t think the Court of Special Appeals has given you the discretion to say, gee, I am now going to decide this on another issue. THE COURT: Okay.

Well, maybe they will. I think in fairness to all parties, when they come into a courtroom, they ought to be able to have the ability to argue the position they take, whatever it is, and have somebody like me rule on whatever argument they are making; and I didn’t rule on the argument made by Mr. Fuge on that issue, and I believe that there is some law to support the further consideration by me of that argument, because [Mr. ¹⁵⁶ Fuge’s attorney] not only couldn’t get me to rule on it, he now cannot get the Appellate Court to rule on it.... [MS. FUGE’S ATTORNEY]: No, he filed for reconsideration on that specific issue of the applicability of 8-201(e)(2), and his motion for reconsideration was denied, and he then filed cert, on that exact same issue, which was also denied. THE COURT: Well, I have been asked to rule on it.

I didn’t rule on it. I am going to rule on that issue ...; but do you want to make any further argument on that issue ... ? [MR. FUGE’S ATTORNEY]: Just that we think ... since the property was owned as tenants by the entireties, it is absolutely clear that [section 8-201(e)(2)] would dictate that the proceeds from the sale of Woodbine would be marital ____ THE COURT: Okay. Well, I am going to, on the one hand, reopen this record to permit Mr. Fuge to make the argument he has made.

On the other hand, I am denying it. I think that, one, it is clear now that the ... fund[s] ... were ... given from Mr. Manfuso to his daughter, Ms. Fuge. That is a matter of record in this case---- So the source of the funds, for the purpose of this case, is clearly Mr. Manfuso; and the record in this case is that ... the property on Woodbine that was acquired in 1979, it was titled as tenants by the entirety----The gift was by Mr. Manfuso to his daughter. The property was titled as tenants by the entirety.

It was sold ... in 1986. About $340,000 or so were the proceeds from that sale. That money was put into an account in the name of [Ms.] Fuge. Those proceeds were used to buy property on [Kerry Road], and that property was not held as tenants by the entirety.

So the issue, was, and ... is now raised, that because of-the tenancy by the entirety property was sold in 1986; these people were divorced in 1998, 12 years later-Mr. Fuge’s position is, the fact that the property was held by tenants by the entirety makes it marital property, and the new law that went into effect — the amendment was 1994 — determined that; the law was prospective. This case was filed in 1995. ¹⁵⁷ I believe that the amendment in 1994 ... was limited ... to property that existed at the time of [the] divorce, and this [Woodbine] property ... was sold before the divorce and actually sold before the Acts went into effect.... And I believe it does not apply to previously owned property. So I am----ruling against Mr. Fuge. 3 (Emphasis added.) After the court ruled on the applicability of FL 8-201(e)(2) to the Woodbine property, Mr. Fuge’s attorney requested that, in entering a revised monetary award in accordance with our Opinion II, the court take into consideration the parties’ economic circumstances at the time of the hearing, not at the time of the divorce.

He argued as follows: [MR. FUGE’S ATTORNEY]: [W]e would respectfully submit that the law is clear that ... one of the considerations that you would take into account at that point in time ... under [FL] 8-205, is the “economic circumstances of each party at the time the award is to be made”~that is today. ... [W]e respectfully submit that if you look at the financial circumstances of the parties, that it would be inappropriate to enter a monetary award in favor of [Ms.] Fuge, and it is very clear that it is [the] financial circumstances at the time the award is made-that is today. [MS. FUGE’S ATTORNEY]: Your Honor, we are back now to June the 26th, 1998. The Court has said that you found marital property of “X”~ THE COURT: I think you are right.... [E]ven though we are right here in 2001, we are really back in 1998.

On July 10, two orders were entered, reflecting the trial court’s rulings at the June 29 hearing. In one order, the court reduced Mr. Fuge’s monthly child support obligation. In the second, the court vacated the earlier $141,500 monetary award in favor of Mr. Fuge, and ordered that a new monetary award ¹⁵⁸ of $47,565.50 be entered in favor of Ms. Fuge. Thereafter, both parties appealed.

DISCUSSION I. Application Of Family Law Section 8-201(e)(2) Mr. Fuge first asserts error in the trial court’s conclusion that the proceeds of the Woodbine property, a marital residence acquired by the Fuges during their marriage and held by them as tenants by the entirety, but sold prior to their divorce, do not constitute marital property under the definition set forth in FL section 8-201(e). Trial Court’s Authority To Rule On The Applicability Of FL Section 8-201(e)(2) Before we turn to the merits of Mr. Fuge’s contention, we first must address Ms. Fuge’s assertion that the trial court had no authority to rule on the applicability of FL section 8-201(e)(2). Apparently anticipating Ms. Fuge’s argument, made both before the lower court at the June 29, 2001 hearing and in her brief to this Court, Mr. Fuge cites two cases, Teamsters Local 639--Employers Health Trust v. Reliable Delivery Svc., Inc., 42 Md.App. 485 , 401 A.2d 191 (1979), and Supervisor of Assessments v. Scheidt, 85 Md.App. 154 , 582 A.2d 563 (1990), cert. denied, 322 Md. 240 , 587 A.2d 247 (1991), in support of his contention that the court properly ruled on the FL section 8-201 (e)(2) issue. In Teamsters Local, the lower court interpreted the term “employee,” in a collective bargaining agreement that obligated the employer to pay a certain sum per hour of employee work into a health and welfare fund, to mean “union member.” On appeal, the Trust asserted that the court erred in construing the term “employee” so narrowly.

While defending the lower court’s interpretation of the contractual language, the employer also “interwovfe] into its brief[] issues of limita ¹⁵⁹ tions[.]” Id. at 487, 401 A.2d 191 . We refused to decide the issue, concluding that the defense of limitations is not properly before us because, while it was raised in the trial court, the judge did not rule upon it. Inasmuch as this case shall be reversed and remanded, [the employer] will have an opportunity of presenting the matter of limitations, vel non, to the judge for a ruling. Id. at 487-88 , 401 A.2d 191 .

Our mandate in Teamsters Local read “Judgment reversed and case remanded to the circuit court for further proceedings.” Id. at 491 , 401 A.2d 191 . As in Teamsters Local, here Mr. Fuge requested, not once, but twice, that the trial court rule on the applicability of FL section 8-201(e)(2). On both occasions, the trial court refused to decide the issue. In the two prior appeals noted from those proceedings, we twice passed on the issue, as we did on the limitations issue raised in Teamsters Local, declining to decide an issue raised in, but not decided by the lower court. 4 Although we did not explicitly state that the lower court had authority to rule on the FL section 8-201(e)(2) issue on remand in Opinion II, as in Teamsters Local, we believe such a ruling was within the trial court’s authority.

Ms. Fuge argues that Teamsters Local is distinguishable because the limitations defense raised in that case is a jurisdictional defense that can be raised at any time. We disagree. If our ruling in Teamsters Local was made on this basis, as ¹⁶⁰ Ms. Fuge asserts, we would have simply considered the issue ourselves, since former Md. Rule 1085, as does our current rule, permitted the appellate courts to decide issues of the trial court’s jurisdiction over the person and over the subject matter. See former Md. Rule 1085 (1986) (“a question as to the jurisdiction of the lower court may be raised and decided in [the Court of Special Appeals] whether or not raised and decided in the lower court”); Md. Rule 8-131(a) (2002)(“The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court”).

Because we hold that the lower court had the authority to rule on the section 8-201(e)(2) issue, we now address the legal correctness of that ruling. The Merits FL section 8-201(e) defines the scope of “marital property.” (1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage. (2) “Marital property” includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement. (3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property: (i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.

(Emphasis added.) Subsection (e)(2) was added by an amendment effective on October 1, 1994. The “Editor’s Note” following FL section 8-201 states that “Section 2, ch. 462, Acts 1994, effective Oct. 1,1994, provides that ‘this Act shall be construed only prospectively and may not be applied or interpreted to have any effect on or application to any action filed before October 1,1994.’ ” (Emphasis added.) ¹⁶¹ Mr. Fuge challenges the trial court’s ruling that FL section 8-201(e)(2) does not apply to funds resulting from the sale of the Woodbine property, acquired by the Fuges during their marriage, titled to the then couple as tenants by the entirety, and sold before their divorce. Because Ms. Fuge did not file the divorce action until 1995, he argues, application of the statute is prospective. Ms. Fuge vigorously asserts that the legislative history of FL section 8-201(e)(2) must be consulted to fully understand its intended scope.

She argues that “[w]hile the statute clearly does not apply to actions filed prior to October 1, 1994 (the effective date of the Act)[,] ... a review of the legislative history establishes that the statute was never intended to apply to any previously owned property[.]” Thus, she asserts, applying the statute to the Woodbine property, which was sold before the effective date of the statutory change, would be an impermissible retroactive application. “[T]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995). The best evidence of legislative intent is the plain language of the statute. See Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 , 784 A.2d 569 (2001). “Ordinarily, where the language of the statute is not ambiguous or obscure, this Court need not look beyond the plain language of the statute to discern legislative intent.” Graves v. State, 364 Md. 329, 346-47 , 772 A.2d 1225 (2001) . “We review the language of the contested provision in the context of the statute as a whole and with respect to the clear purposes the legislature conveyed.” Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 445 , 795 A.2d 715 (2002) .

Our examination of FL section 8-201(e)(2) convinces us that the statute contains an ambiguity that cannot be resolved solely by resort to the statute’s plain language. Although section 8-201(e)(2) provides that “property held by the parties as tenants by the entirety” is considered marital property, absent a contrary agreement between the parties, the statute ¹⁶² is ambiguous regarding when the property must be held by the parties as tenants by the entirety to be considered marital property. Under section 8-201(e)(2), both Ms. Fuge’s contention that the property must be held as tenants by the entirety at the time of the divorce, and Mr. Fuge’s contention that the property must have been held by the parties as tenants by the entirety at some time during the marriage, are conceivable. Thus, the statute is ambiguous as to the time reference for the word “held,” and we must look beyond its plain language in construing legislative intent.

See Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 , 517 A.2d 730 (1986) (“where a statute is plainly susceptible of more than one meaning and thus contains an ambiguity, courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives, and purpose of the enactment”). As an initial matter, we reject Mr. Fuge’s assertion that “a view of the facts and holding of ... Grant v. Zich [ 300 Md. 256 , 477 A.2d 1163 (1984)] demonstrates that [section] 8-201(e)(2) does control the characterization of Woodbine and its sale proceeds as marital or nonmarital property herein.” In Grant , a pre-section 8-201(e)(2) case, the issue was whether a home purchased by a married couple during their marriage and titled as tenants by the entirety constituted marital property.

The majority of the funds used to purchase the home originated from the proceeds of the sale of a home owned solely by the husband prior to the marriage. In that case, the Court of Appeals held that, “when characterizing property as nonmarital or marital ... a presumption of gift does not arise from the titling of property as tenants by the entirety.” Id. at 272 , 477 A.2d 1163 . It then proceeded to apply the source of funds theory, noting that a large portion of the funds used to purchase the marital home were “directly traceable to the proceeds” of the husband’s prior home. See id. at 275 , 477 A.2d 1163 .

Thus, it held that the marital home must be “characterized as part nonmarital and part marital, notwithstanding its titling as tenants by the entirety.” Id. at 276 , 477 A.2d 1163 . ¹⁶³ We do not find Grant to be persuasive precedent because there, in determining the applicability of the Marital Property Act, the Court employed a tracing analysis. When tracing, it is logical and reasonable to look to historical facts and origins. Here, we are simply interpreting the language of section 8-201(e)(2), and trying to determine whether the word “held” refers to “at the time of the divorce” or “at some time during the marriage.” Ms. Fuge contends that this case is analogous to Choate v. Choate, 97 Md.App. 347 , 629 A.2d 1304 (1993), a pre-section 8-201(e)(2) case that showcased inequities that the legislature sought to remedy through the adoption of FL section 8-201(e)(2). Ms. Choate owned a home before her marriage to Mr. Choate.

Shortly after the marriage, she refinanced the home. At this time, the property was placed in the names of both parties as tenants by the entirety. The Choates later divorced, and the divorce court ruled that the entire appraised value of the home was the separate non-marital property of Ms. Choate. Mr. Choate appealed, asserting that he had an interest in the property as a tenant by the entirety.

In addressing the question on appeal, we commented on the peculiar nature of the case, describing it as that anomalous situation where the party who claims the property is nonmarital would have been better off if he or she could establish that the property was marital. In this case, no marital property existed; hence, no marital assets were available out of which to make a monetary award. Choate, 97 Md.App. at 355 , 629 A.2d 1304 (footnote omitted). In resolving the case, we addressed Ms. Choate’s contention that to hold that she could not have property she owned outright before the marriage returned to her upon divorce simply because of a change in title “would produce an absurd result.” Id. at 362 , 629 A.2d 1304 .

Sympathizing with her position, but nonetheless rejecting it, we explained: She may find it absurd, but it is precisely the result mandated by the law. That was the law before the Property Disposition Act and it is the law now. With very few ¹⁶⁴ exceptions, under [FL section 8-205(a)], the court may not transfer the interest in property from one spouse to the other. The court may only make an adjustment in the form of a monetary award and then only out of marital property.

The home could not have become marital property because marital property does not include property “directly traceable” to property acquired before the marriage. Hence, the absurdity that Mrs. Choate perceives reflects the statutory law. Id. We therefore concluded that, although the home was nonmarital property, the Choates were nonetheless co-owners of that property.

See id. at 365 , 629 A.2d 1304 . We held that it was “up to the trial court to adjust the equities to reflect the nonmarital portion of the property.” Id. It was in large part in reaction to the perceived inequities that surfaced in Choate and other cases that the legislature amended FL section 8-201(e) to add a provision characterizing “any interest in real property held by the parties as tenants by the entirety” as marital property. This case is not as closely analogous to Choate as Ms. Fuge suggests.

The inequity in Choate arose because there was no marital property from which a monetary award could be made, and the equities adjusted. Thus, the hands of the trial court in .Choate were tied due to the distinct factual nature of that case. In contrast, here the trial court’s hands were not tied in determining an equitable monetary award. If FL section 8-201(e)(2) applies to the Woodbine property, as Mr. Fuge suggests, the proceeds from its sale would be placed in the marital property “pot” from which the monetary award is made.

The trial court, however, would still have the option of giving a greater award to Mr. Fuge if it believed the equities lay in his favor, 5 effectively ignoring Mr. Manfuso’s contribution. Alternatively, it could decline to award anything to Mr. Fuge if it believed the equities lay in Ms. Fuge’s favor because ¹⁶⁵ she contributed the larger share of the purchase price