Grant v. Zich

⁶¹² Adkins, J., delivered the opinion of the Court. On October 28, 1980, appellee Robert A. Zich (Mr. Zich) sued appellant, then Constance G. Zich (Dr. Grant) for divorce on the ground of voluntary separation. He also sought a monetary award under § 3-6A-05 of the Courts and Judicial Proceedings Article and determination of the ownership of personal property under § 3-6A-03. Dr. Grant responded.

She also sought a monetary award and the determination of the ownership of personal property, as well as alimony. On December 21, 1981, after proceedings that were both extensive and contentious, the Circuit Court for Montgomery County granted Mr. Zich a divorce a vinculo matrimonii. The decree in addition ordered the parties to divide equally the proceeds of sale of their residence, transferred certain personal property to Dr. Grant (over her objections), made a monetary award of $55,000 to Mr. Zich, and denied alimony to Dr. Grant. On January 18, 1982, the chancellor filed a supplemental' memorandum and order of court declaring Mr. Zich’s civil service retirement account to be marital property to the extent of $19,850.

The order further provided that Dr. Grant receive a lump sum payment of half of that amount ($9,925) "if and when the husband begins to collect such benefits.. . .” On appeal, Dr. Grant contends that the court erred in: 1. making a monetary award in favor of Mr. Zich; 2. transferring ownership of personal property to her without her consent; 3. failing to award her alimony; and 4. making an insufficient and otherwise incorrect award of Mr. Zich’s pension benefits. Facts The parties were married in 1971. Both were then employed. Both brought assets to the marriage.

Both continued working after the marriage. As a result, they were able to enjoy a lavish life style and accumulated substantial ⁶¹³ additional assets. Despite their material advantages, however, all was not well. They began seeing a marriage counselor in 1977.

In 1978, Dr. Grant was seriously injured in an automobile accident and was forced to stop working. Things went rapidly downhill from there, the record being replete with testimony of incivilities, harassment, bad temper, and physical abuse on both sides. Financial disagreements ensued, and in 1980, the parties separated. Shortly after the separation, produced when Dr. Grant left the family home, she removed therefrom most of the "family use personal property.” At the time of the divorce, Dr. Grant, a registered nurse, was self-employed in a "nurse-psychotherapist” practice.

Mr. Zich remained in federal government service. Although the parties disagree as to just how much Dr. Grant was earning (and about virtually everything else) it seems clear that Mr. Zich’s income was substantially greater than hers. Let those facts suffice by way of general background. Others will be related as necessary to consideration of the issues on appeal.

Monetary Award and Transfer of Personal Property Section 3-6A-05 of the Courts and Judicial Proceedings Article authorizes a court, in granting an absolute divorce, to "grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” The award’s amount, and its method of payment, is to be determined after considering nine factors listed in § 3-6A-05 (b). In this case, as noted, the chancellor made such an award in favor of Mr. Zich. Dr. Grant asserts this was error for two reasons: First, because the chancellor failed to determine what was marital property and the value of it; and second, because in making the award the chancellor failed to consider all the statutory factors and analyzed others in a manner inconsistent with the statutory policy to adjust the property interests of spouses fairly and equitably, giving careful consideration to their respective monetary and non-monetary contributions to the marriage. Bender v. Bender, 282 Md. 525 , 386 A.2d 772 (1978).

Subsumed in both ⁶¹⁴ arguments, as we see it, is her contention that the chancellor improperly transferred certain personal property to her against her consent. We think she is correct in her first argument, and at least partially correct in the second. There is no doubt that the question of whether to grant a monetary award under § 3-6A-05 is discretionary, as is the amount of the award and its method of payment, so long as the chancellor considers the nine statutory factors. Ward v. Ward, 52 Md. App. 336 , 449 A.2d 443 (1982).

But once a chancellor decides to make a monetary award, he becomes bound to follow two statutorily-mandated procedures in addition to consideration of the nine factors. Section 3-6A-05 (b) requires that as a precondition to an award "[t]he court shall determine the value of all marital property” [emphasis supplied]. This, in turn, requires a determination of what is marital property, and § 3-6A-05 (a) directs that "the court shall determine which property is marital property if the division of property is an issue” [emphasis supplied]. While the legislative use of the "shall” in itself would seem to be a sufficient indication for the mandatory nature of these provisions, both this court and the Court of Appeals have removed any possible doubt on this point.

In Ayars v. Ayars, 50 Md. App. 93, 97 , 436 A.2d 490, 492 (1981), we pointed out, by way of dictum, that had the chancellor wished to take into consideration the parties’ contributions to certain property, he could have done so by way of a monetary award under § 3-6A-05 (b). We cautioned, however, that this "requires the determination of the value of the marital property” [emphasis supplied]. Just over a month later, the Court of Appeals used even stronger language. It said "part (b) of section 3-6A-05 commands the court to determine the value of all such marital property” [emphasis supplied].

Deering v. Deering, 292 Md. 115, 121 , 437 A.2d 883, 886 (1981). Later, commenting on the flexibility of a monetary award and the chancellor’s discretion in deciding to make one, it again emphasized that "the law commands the trial court 'both to ⁶¹⁵ determine which property is marital property,’ if its division is an issue, and to 'determine the value of all [such] marital property’ ” [emphasis supplied]. Id. at 129 , 437 A.2d at 891 . We summarized the situation in Ward v. Ward, supra: 1) if an equitable adjustment over and above the distribution of the spouse’s property in accordance with its title is in issue, the court shall determine which property is marital property; 2) the court shall then determine the value of all marital property; 3) finally, the court may make a monetary award as an adjustment of the parties’ "equities and rights” concerning marital property, whether or not alimony is awarded.

If an award is deemed appropriate, the court shall then consider each of the nine factors enumerated in § 3-6A-05 (b) in determining a fair and equitable amount and the method of its payment [emphasis partially in original and partially supplied], 52 Md. App. at 339 , 449 A.2d at 445-446 . Marital property "is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources.” Courts and Judicial Proceedings Article, § 3-6A-01 (e). In the case at bar, the division of property was in dispute.

Among other things, the parties initially disagreed as to the ownership and marital property status of portions of the approximately $58,000 worth of personal property Dr. Grant had removed from the marital home. Mr. Zich attempted to eliminate this particular issue by agreeing to waive any interest in that property, and the chancellor accepted this proposal because "it greatly simplified the otherwise item by item decision the court would have to make in all of the personal property Mrs. Zich [Dr. Grant] took control of . . . .” He transferred this property to Dr. Grant. This was error. ⁶¹⁶ Under § 3-6A-03 (a) of the Courts and Judicial Proceedings Article, "the court may not transfer the ownership of personal property from one spouse to the other.” If the court lacks this authority to transfer, a fortiori such a transfer cannot be made contrary to the intent of one of the parties. Neither could Mr. Zich’s release of interest in the personal property be considered a gift, since a gift requires acceptance on the part of the donee, Rogers v. Rogers, 271 Md. 603, 607 , 319 A.2d 119, 121 (1974), and acceptance clearly did not occur here.

The short of it is that except for Mr. Zich’s pension benefits and, possibly, the proceeds of the marital home, the chancellor did not properly determine what was marital property. Nor did he determine the value of the marital property. Accordingly, he was without authority to make a discretionary monetary award under § 3-6A-05 (b). This holding also requires us to conclude that the chancellor erred in his application of the nine factors prescribed by that subsection.

The memorandum and order in this case show that consideration was given to factors one through six and to factor eight. No express consideration was given to the ninth ("such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award”) although the chancellor recited in his memorandum that he had considered all the factors, and it is presumed that such discretion has been properly exercised in the absence of proof to the contrary. Lapides v. Lapides, 50 Md. App. 248, 252 , 437 A.2d 251, 254 (1981). But in view of his error in transferring disputed personal property to Dr. Grant, the chancellor of necessity also erred in his consideration of factor two ("value of all property interests of each spouse”) since he allocated the value of that property to Dr. Grant.

Nor could the chancellor have given appropriate consideration to factor seven ("how and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property”) since, as we have noted, he failed to determine fully what was marital property. ⁶¹⁷ The shortcomings we have discussed require a remand so that the chancellor may determine what was marital property and its value. We recognize, as did the Court of Appeals in Deering, supra, that this may be a burdensome task. In making those determinations, however, we do not think the statute requires a separate decision as to every toothbrush and towel. It may be feasible to place numbers of property items,