Harman v. Harman

BISHOP, Judge. This is an appeal from a decree of the Circuit Court for Harford County which granted a divorce a vinculo matrimonii to appellant, Patricia Anne Harman, from appellee, Robert S. Harman, on the grounds of desertion. The decree also awarded appellant alimony for two years in the amount of $400.00 per month, a Vs interest in appellee’s pension, and $1,000.00 in counsel fees. Appellant contends that the trial court erred when it: I. Failed to award her alimony for an indefinite period; II.

Characterized certain property as marital for the purposes of granting a monetary award because it relied solely upon the presumption of gift based upon the titling of the property as tenants by the entirety; ⁵⁵⁸ III. Awarded her only a Vs interest in appellee’s accumulated pension rights; IV. Failed to award her adequate counsel fees. Appellant has failed to comply with Rule 1028 b, regarding the contents of the record extract, and Rule 1031 c 4, regarding references to the record and transcript.

In appeals challenging the alimony award, the valuation of marital property or the monetary award, the record extract must contain the evidentiary bases of salaries, expenses, valuations, etc. We cannot rely upon assertions made in briefs or the findings of fact made by the chancellor, and we cannot continually afford to wade through the entire record ourselves and do the work of the attorney. Pursuant to Rules 1028 i and 1031 f, we may dismiss this appeal. Nisos v. Nisos, 60 Md.App. 368 at 376 , 483 A.2d 97 (1984); Kemp-Pontiac-Cadillac, Inc. v. S & M Construction Co., 33 Md.App. 516, 521 , 365 A.2d 1021 (1976). In Nisos we warned the bar as we do in this case that “in the future such failure to comply with the rules will result in summary dismissal of the appeal.” 60 Md.App. at 376 , 483 A.2d 97 .

Since this appeal was pending at the time of our opinion in Nisos , again “we decline the temptation to ‘visit the sins’ of the attorney upon his client.” 60 Md.App. at 376 , 483 A.2d 97 . FACTS The parties were married on December 27, 1952, and lived together in Aberdeen, Harford County, for approximately twenty-nine years. They had three children, all of whom were adults at the time of trial. During the marriage, appellee earned most of the funds to maintain the family; he has been employed at the Aberdeen Proving Grounds since 1948.

Appellant was primarily a non-monetary contributor to the family; she raised the children and managed the household. Appellant does, however, have a nursing degree from Harford Community College and had been employed as a nurse during part of the marriage. ⁵⁵⁹ On December 9, 1981, appellee left the marital home. He contended that the marriage relationship was strained and that efforts at reconciliation were unsuccessful. Appellant stated that she did not wish him to leave the home or terminate the marriage.

In fact, after he left, she unsuccessfully requested him to return. The chancellor noted that although living conditions were unpleasant and the marital relationship had “ceased for all practical purposes,” appellant had not engaged in any conduct which justified appellee’s leaving the marital home. Accordingly, he granted appellant a divorce a vinculo matrimonii on the grounds of desertion. I. Alimony The chancellor awarded appellant alimony in the amount of $400.00 per month for a period of two years.

Appellant contends that he erred in failing to make the award for an indefinite period pursuant to Md.Ann.Code art. 16, § 1(c)(1) (1981) 1 which states, in pertinent part, that The court may award alimony for an indefinite period when it finds as a fact that: (i) The party, seeking alimony, by reason of age, illness, infirmity, or disability, cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (ii) Even after the receiving party will have made as much progress toward self-support as can reasonably be expected, the respective standards of living of the two parties will be unconscionably disparate. Specifically, she relies upon the second factor and alleges that the standards of living of the parties are and will continue to be “unconscionably disparate” in the absence of an award of indefinite alimony. ⁵⁶⁰ The principal function of alimony, under the present statute, is rehabilitation; the concept of alimony as a lifetime pension enabling the financially dependent spouse to maintain an accustomed standard of living has largely been superseded by the concept that the economically dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living. Holston v. Holston, 58 Md.App. 308, 321 , 473 A.2d 459 (1984). Subsection 1(c)(1), however, addresses those situations in which it is “impractical to expect a dependent spouse to become self-supporting through further education or job training” and where “rehabilitative alimony for a limited period of time may result in gross inequity.” Holston, 58 Md.App. at 321-22 , 473 A.2d 459 .

In Holston , we held that the chancellor abused his discretion by failing to award indefinite alimony because at the end of the three year period, during which the appellant would receive alimony payments of $150.00 per week, she unjustifiably would be left “with a standard of living greatly below that enjoyed during the marriage and unconscionably disparate from the standard of living available to” the appellee. 58 Md.App. at 324 , 473 A.2d 459 . In that case, the appellee earned in excess of $85,000,000 as a dentist, as an instructor the University of Maryland Dental School, and as a consultant. Id., 58 Md.App. at 313, 322 , 473 A.2d 459 . The appellant had not been employed for fifteen years, when she had been a secretary at the University of Maryland Medical School.

Id., 58 Md.App. at 322-23 , 473 A.2d 459 . At the time of trial, secretaries at the university were earning approximately $13,000.00 per year. Even if appellant, re-entering the job market after fifteen years, would be able to gain employment at a similar salary, her earnings would be less than 15 per cent those of appellee. There is nothing in the evidence to indicate that appellant would ever be able to eliminate or even substantially diminish such disparity.

Assuming appellant used her ⁵⁶¹ three years of alimony to return to college, receive a degree and acquire a marketable skill, it is questionable whether after graduation she could earn a salary even approaching appellee’s earnings. Compounding the difficulty of obtaining an education and a marketable skill is the necessity to provide and care for five minor children. Reading the record, we see no reason to expect that if alimony terminates after three years the respective standards of living of the parties would not then be “unconscionably disparate.” Id,., 58 Md.App. at 322 , 473 A.2d 459 . Furthermore, there was nothing to justify the disparity — “the parties entered the marriage with comparable standards of living, the wife’s efforts contributed greatly to the husband’s career, and it was the husband’s fault that destroyed the marriage.” Id.

Appellant in the case sub judice does not have to care for minor children and she has a full time job as a clerk typist with the federal government with a salary of approximately $11,000.00 per year. In addition, she has a nursing degree and according to the record, could earn from $15,000.00 to $20,000.00 per year as a nurse. Appellant testified, however, that she is not emotionally capable of nursing on a full time basis and that the job with the federal government offers benefits which the nursing position does not. She listed monthly expenses of $1,648.28, which included an automobile payment of $249.55 that apparently terminated in August, 1984, and a net monthly income of $1,450.02.

Appellee has been employed by the federal government since 1948, and earns approximately $37,000.00 per year. He listed monthly expenses of $3,514.50, which the chancellor indicated included a slightly inflated charge for clothing, and a gross pay of approximately $2,862.40 per month. We find no abuse of discretion in the case sub judice. This is not a case like Holston where the wife was unemployed, had minor children to care for, and could not hope to earn much more than 15 per cent of her husband’s salary. ⁵⁶² II. & III.

Monetary Award The chancellor awarded appellant a Vs interest in appellee’s pension, payable “as, if and when” it accrues, as a monetary award. Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05 (1984). 2 Appellant challenges the amount of this award and the method employed by the chancellor to determine the value of the marital property prior to making it. In Ward v. Ward, 52 Md.App. 336 , 449 A.2d 443 (1982), we stated that the purpose of the monetary award “is to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage, strictly in accordance with its title.” 52 Md.App. at 339 , 449 A.2d 443 . In addition, we explained that Section 3-6A-05 envisions a three-step process.

Harper v. Harper, 294 Md. 54 , 448 A.2d 916, 928-29 (1982) 294 Md. at 79 [ 448 A.2d 916 ]: 1) if an equitable adjustment over and above the distribution of the spouse’s property in accordance with its title is an 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 in original). Id.

A. Which Property Is Marital Property Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05(a)(l) states, in pertinent part, that “the court shall determine which prop ⁵⁶³ erty is marital property if the division of property is an issue.” Marital property is defined as 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. Md.Cts. & Jud.Proc.Code Ann. § 3-6A-01(e) (1984). 3 The chancellor determined that the marital property consisted of: (1) a certificate of deposit worth $14,000.00; (2) miscellaneous government bonds worth $2,300.00; (3) the real property referred to as lots 4-10; (4) the improvements located on lot number 5 and a portion of lot number 4; (5) the furniture in the family home; (6) the furniture in Robert’s apartment; (7) a 1981 Buick Regal; (8) a 1980 Datsun pickup; and (9) Robert’s pension. There is no dispute that the items numbers 1-2, and 4-9, supra, constitute marital property.

Appellant contends, however, that the lower court impermissibly characterized item 3, the real property, as marital property because it relied upon the presumption of gift theory, Ayars v. Ayars, 50 Md.App. 93, 96 , 436 A.2d 490 (1981), based upon the fact that appellant had transferred her interest in the real property to herself and appellee as tenants by the entirety. In March of 1951, appellant’s father, Eugene Welsh, Sr., conveyed the lots at issue here, as well as several other lots, to a straw party, who conveyed them to Eugene Welsh, Sr., Eugene Welsh, Jr. and appellant Patricia Welsh, as joint tenants. Eugene Welsh, Sr. died in April of 1951; appellant married appellee in December of 1952; and appellant’s brother Eugene Welsh, Jr. married sometime thereafter. In April of 1960, pursuant to an agreement between them to divide the original tract, appellant and her brother Eugene Welsh, Jr. conveyed the tract to a straw party who con ⁵⁶⁴ veyed lots 4-10 to appellee and appellant as tenants by the entirety.

In the meantime, appellant and appellee built their family home on lot number 5 and a portion of lot number 4. Construction began in the mid to late 1950’s and apparently was completed by the time of the April 1960 transfer. Appellee apparently did a substantial part of the construction himself, working in the evenings and on weekends. According to the chancellor, Lots 4, 5, 6, 7, 8, 9 and 10 were originally gifts from the father of Patricia, and as such were excludable from marital property so long as title was in her name. 4 However, by the execution of the deed in 1960 which conveyed these lots to Robert S. Harman and Patricia W. Harman, his wife, as tenants by the entireties (Plaintiffs Exh.

No. 11), these lots then became marital property by reason of a gift. There is a presumption in Maryland that transfers between spouses during the period of the marriage constitutes a gift. In this case the parties were married at the time of the acquisition of title as tenants by the entireties and the home had, in fact, been constructed thereon at that time. The home was paid for by Robert and built by him with assistance from Patricia.

There is a presumption that the transfer of title to a tenancy by the entire-ties constituted a gift from each spouse to the other of any interest he or she then held in the property. (See Ayars v. Ayars, 50 Md.App. 93 , at Pg. 96 [ 436 A.2d 490 ].) There was no testimony in this case to rebut the presumption that the 1960 transfer constituted a gift. ⁵⁶⁵ These determinations violate the rule recently established in Grant v. Zich, 300 Md. 256 , 477 A.2d 1163 (1984): when characterizing property as marital or nonmarital under § 3-6A-05(a) for the purpose of granting a monetary award under § 3-6A-05(b), a presumption of gift does not arise from the titling of property as tenants by the entirety. Rather, in characterizing property as marital or non-marital under § 3-6A-05(a), the appropriate analysis to be applied is the source of funds theory enunciated in Harper [v. Harper, 294 Md. 54 , 448 A.2d 916 (1982)]. 300 Md. at 271-72 , 477 A.2d 1163 . 5 Under an appropriate analysis, the “characterization of property as nonmarital or marital depends upon the source of the contributions as payments are made, rather than the time at which legal or equitable title to or possession of the property is obtained.” Id., 300 Md. at 270 , 477 A.2d 1163 . The source of appellant’s and appellee’s interest in lots 4-10 was appellant’s interest in the original tract of land which was a gift from her father before she married appellee.

Unless the Court finds reliable evidence of an actual gift from appellant to appellee, lots 4-10 are not marital property. Appellee answers that notwithstanding the use of the presumption of gift and resulting violations of the rule established in Grant , the evidence in this case supports a finding that there was an actual gift of the property. While Grant “does not preclude a finding of an actual gift of the ⁵⁶⁶ property, sufficient to permit its classification as marital; it does ... preclude the theory of a presumed gift.” Nisos v. Nisos, 60 Md.App. 368 at 381 , 483 A.2d 97 . Since the chancellor in the case sub judice relied upon that theory, and not a finding of actual gift, we will remand the case for his determination on this issue, see Nisos, slip op. 60 Md. App. at 381 , 483 A.2d 97 , for which it may be necessary to take additional evidence.

In addition, we note that the chancellor stated that appellee paid for the home. If the home was purchased with funds earned by appellee during the marriage, it is clearly marital property. If, however, nonmarital funds were used, the home would be subject to the same analysis as lots 4-10. On remand, this issue should be clarified.

B. The Value of All Marital Property Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05(b) (1984) states, in pertinent part, that “[t]he court shall determine the value of all marital property.” The chancellor in the case sub judice determined the following values for the property that he concluded to be marital property: $32,244.56 cumulative payments 6 ⁵⁶⁷ There is no dispute regarding the valuation of the certificate of deposit, government bonds, furniture, automobiles, or that each lot is worth $4,000.00. As stated above, however, the chancellor erred in basing his