Hughes v. Hughes

BISHOP, Judge. William G. Hughes (“William”) appeals from an order of the Circuit Court for Montgomery County (Weinstein, J.) which, among other things, awarded William an absolute divorce, and awarded the appellee, Patricia Ann Hughes ²¹⁹ (“Patricia”): custody of the parties’ two minor children; child support in the amount of $700 per month; exclusive use and possession, for two years, of the family home and the personal property located therein; and a monetary award of $7,500. In this appeal, William asks: I. Whether the court may grant a use and possession order for the family home when legal title to that residence was acquired by William before the marriage.

II

Whether the court erred in granting Patricia a $7,500 monetary award.

III

Whether the court erred in denying William’s request for joint custody of the children.

IV

Whether in awarding custody of the children the court imposed a “change of circumstances burden of proof” requirement on William and also assumed that custody should be with Patricia. V. Whether the court imposed an unconscionable burden on William in the amount of child support ordered. We answer each of these questions in Patricia’s favor and affirm the circuit court’s order; we also express our complete agreement with the well written opinion which Judge Weinstein filed in this case and upon which a large part of this opinion is based. Before discussing the merits of this case we first address Patricia’s motion to dismiss the appeal; she complains that William failed to comply with Maryland Rule 8-501 which governs the printing of the record extract.

Rule 8-501(d) requires the appellant to include in the record extract those portions of the record agreed upon by the parties. In the event of a dispute the Rules allow the appellant either to demand advance payment from the appellee to cover the printing expenses for any part of the record that appellee insists be printed, Rule 8-501(d)(4) or to petition the Court, under Rule 8-607(b), to assess against appellee the costs for printing any unnecessary material. Despite these explicit detailed provisions, William’s counsel elected to pursue his own personal solution to what he ²²⁰ apparently perceived as approximately 200 “totally irrelevant” pages in the materials designated by Patricia for inclusion in the record extract. He took it upon himself unilaterally to exclude these materials from the printed extract.

Needless to say, we are not impressed by William's attempt to avoid the Rules by fashioning his own remedy to his perceived problem. Such freewheeling “impairs the ability of this Court to review the proceedings below.” Leaf Co. v. Montgomery County, 70 Md.App. 170, 172 , 520 A.2d 732 (1987); see also Spivey v. Harris, 64 Md.App. 619 , 498 A.2d 281 (1985). While Patricia has included the necessary portions of the text in her “Appendix”, this does not alleviate the confusion and imposition on the Court which has had to contend with the inconvenience of reading two record extracts instead of one (it also heightens the costs of litigation). Nevertheless, in the exercise of our discretion, we deny the motion to dismiss. 1 Leaf Company, 70 Md. App. at 173 , 520 A.2d 732 .

FACTS The following findings of fact by the trial judge are supported by substantial and competent evidence in the record and, therefore, not “clearly erroneous,” Md.Rule 8-131(c). ²²¹ The parties were married on December 30, 1982____ Two children were born as a result of the marriage, Jacqueline Rose Hughes and Margaret Susan Hughes, twins born on September 6, 1983____ [William] is forty-four (44) years old and is employed by the National Association of Federal Veterinarians as an attorney. His net monthly income (after taxes) is three thousand dollars ($3,000)____ [Patricia] is thirty-nine (39) years old and is currently employed part time ..., sixteen hours per week at $10.00 an hour. (E 173-174) In 1975, William purchased an unimproved parcel of land in Easton (the “Easton property”) for $37,500. He paid $4,000 in cash and financed the remainder with a purchase money mortgage with payments of $280.22 per month which payments were made continuously from 1975 through the trial date in December 1987.

Subsequently, in the summer of 1982, construction began on a $100,000 home on the Easton property (the “Easton home”) which was financed in part by a loan of $48,000 from William’s mother. Monthly payments of $463.00 were made on this loan from January 1983 through the trial date and, although William’s mother ultimately forgave $20,000 of the principal, the amount of the payments remained constant since 1983. Both the Easton home and property were titled in William’s name alone. The parties, along with their children, occupied the Easton home from the time of the children’s birth in 1983 until the parties separated in February 1986; at which time, in accordance with their agreements, Patricia remained in the Easton home with the twins and William moved into a $104,000 home which he purchased in Silver Spring.

Except for a 3% month period, November 1986 — February 1987, this situation remained unchanged through the trial date. I. Use and Possession Section 8-208 of the Family Law Article provides judicial authority to award possession and use of the “family ²²² home.” There is, however, an express limitation in § 8-201(c)(2) which states, inter alia, that: (2) “Family home” does not include property: (i) acquired before the marriage; (emphasis added). William contends that the Easton home and the Easton property were “acquired” before the marriage because “[t]he residence in question was titled in the name of, built by, and solely owned and occupied by the plaintiff [ (William) ] before the marriage.” He concludes, therefore, that, under § 8-201(c)(2), the Easton home and property are not the proper subject of a use and possession order. Patricia counters that the Court’s previous definition of the term “acquired”, as stated in Harper v. Harper, 294 Md. 54, 80 , 448 A.2d 916 (1982); see also Grant v. Zich, 300 Md. 256 , 477 A.2d 1163 (1984); Schweizer v. Schweizer, 301 Md. 626 , 484 A.2d 267 (1984), controls; in Harper the Court stated that the term “ ‘acquired’, appearing in [§ 8-201(e) 2 (defines the phrase “marital property”) is] the on-going process of making payment for property.” She contends that, given this definition of “acquired”, the chancellor’s determination that the Easton home is a “family home”, § 8-201(c), is not clearly erroneous because some of the payments on the Easton home and property were made during the marriage and the property was, therefore, “acquired” during, not after, the marriage.

William distinguishes the case sub judice from Harper, Grant, and Schweizer on the basis that those cases involve the interpretation of “acquired” in the context of § 8-201(e) of the Family Law Article (which defines the term “marital property” as that “acquired by 1 or both parties during the marriage”) whereas the instant case involves the definition of “acquired” as it appears in § 8-201(c). He argues that the expansive, “source of funds” definition adopted in Harper is not suitable in the context of a use and possession ²²³ order because the results achieved would be unfair. According to William’s argument, for example, when the source of funds theory is employed in the context of a marital property award, a husband who contributes $20 to the payments on the $100,000 marital residence, which is titled solely in the wife’s name, is potentially entitled to a monetary award equal to .02 percent of the value of that home, the amount of his contribution. See Harper, 294 Md. at 80 , 448 A.2d 916 .

But if that same husband is granted custody of the parties’ minor child then, defining acquired as the on going process of making payments, he would be eligible to receive 100 percent of the marital home for a period of up to three years, thereby resulting in a windfall to the husband which would appear to be entirely at the wife’s expense. In place of the Harper definition of “acquired” William urges the adoption of the “inception of title theory” which was specifically rejected by the Court in Harper and which provides that: The word ‘acquired’ contemplates the inception of title, and as a general rule the character of the title depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right by virtue of which the title is finally extended and perfected. Harper, 294 Md. at 65 , 448 A.2d 916 . As William’s argument makes clear, under this view the court’s use and possession order would be improper as William alone obtained title to the Easton home before the marriage.

The Court of Appeals in Bledsoe v. Bledsoe, 294 Md. 183, 186-187 , 448 A.2d 353 (1982), narrowly avoided the issue suggested here by the parties when the Court observed that: Donald first contends that the subject property is not a “family home” within the meaning of the term as defined in ... [§ 8-201(c) of the Family Law Article] because he acquired the property prior to his marriage to Pamela____ Donald argues that this section effectively prevents the Bledsoe home from being a “family home” irrespective of ²²⁴ his 1977 transfer of the property to Pamela and him as tenants by the entirety. While we have uncovered no Maryland case addressing this exact point, we have recognized on many occasions the proposition that property purchased entirely by one spouse but titled in the names of both as joint tenants or tenants by the entirety amounts to a gift to the other spouse of an ownership interest in the property____ Here, then, though Donald acquired the property prior to the marriage, when he created a tenancy by the entirety he made a valid gift to Pamela of an interest in the property. Therefore, this property, being the principal residence of the spouses, could not be excluded from the definition of “family home” solely because he had initially acquired it prior to the marriage. Accordingly, we must undertake the task of statutory construction which the Court in Bledsoe was able to avoid.

In defining the ambiguous terms of a statute, the courts must attempt to enforce a construction which is consistent with the statute’s legislative purpose. See Tucker v. Fireman’s Fund Insurance Co., 308 Md. 69, 75 , 517 A.2d 730 (1986); State v. Berry, 287 Md. 491 , 413 A.2d 557 (1980). One source of such a legislative purpose is found in the preamble to Ch. 794 of the Acts of 1978 which provides that the purpose underlying §§ 3-6A-01 to 3-6A-07 of the Courts and Judicial Proceedings Article (1980), since recodified as §§ 8-201 to 8-210 of the Family Law Article (1984) 3 , is as follows: The General Assembly declares that it is the policy of this State that marriage is a union between a man and a woman having equal rights under the law. Both spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses and any children they may have. ²²⁵ [W]hen a marriage is dissolved the property interests of the spouses should be adjusted fairly and equitably, with careful consideration being given to both monetary and nonmonetary contributions made by the respective spouses to the well-being of the family, and further, that if there are minor children in the family their interests must be given particular and favorable attention.

A second source of legislative purpose is found in the statute itself which provides that: § 8-206. Family home; family use personal property— Legislative policy. The court shall exercise its powers under §§ 8-207 through 8-213 of this subtitle: (1) to enable any child of the family to continue to live in the environment and community that are familiar to the child; and (2) to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home. These statements of legislative intent evidence three primary concerns by the legislature, the welfare of each of the parties and the welfare of the children, and these three concerns are not always compatible.

The potential conflict between them is particularly evident in the context of orders for use and possession of the family home which inevitably benefit the children and the custodial parent to the detriment of the non-custodial parent. Apparently mindful of this conflict, “[t]he legislature ... seems to have lucidly expressed its intent that when awarding use and possession of a family home, and thereby expelling the other spouse from the dwelling, it would only do so when one spouse needed the home for the benefit of the children of that family.” Bledsoe, 294 Md. at 192 , 448 A.2d 353 . The Court in Bledsoe limited the use and possession order to the “natural or adopted children of the parties to the divorce ...” Id. at 193 , 448 A.2d 353 . ²²⁶ With this legislative intent as a guide, we consider the possible interpretations of “acquired” as that term is used in § 8-201(c). We discern three such possibilities: the two suggested by the parties — the “inception of title theory” and the “on-going process of making payment for property” —and the common or dictionary definition.

The problem with the inception of title theory is that, in the situation sub judice, it only protects the interests of the non-custodial parent. This result not only ignores the legislative intent to protect both parties, but, more importantly, it also fails to give the children’s interests “particular and favorable attention.” Bledsoe, supra. Accordingly, we reject the inception of title theory as a possible source of a definition. Defining “acquired” as the on-going process of making payments is also an unacceptable alternative because, unlike marital property, the courts can not possibly grant use and possession of say 45 percent of the family home; for the average family home the extent of the use is all or nothing.

Unlike the foregoing highly technical definitions of acquired, which do not apply in the determination of whether property is subject to a use and possession order, the common meaning of the term fully supports the legislative intent. In its common usage, acquired means “attained by the individual by or as if by his [or her] own efforts”. Webster’s Third New International Dictionary 18 (1981). Under this definition, a person “acquires” property by his or her “own efforts” when 100 per cent of the funds used to purchase that property are provided by that person alone from premarital funds; a home that has been purchased in part since the date of the marriage, then, has not been “acquired before the marriage” for the exclusionary purposes of § 8-201(c)(2)(i).

The common definition of “acquired” is particularly suitable in the context of § 8-201(c) because it protects the interests of the children as well as the interests of both parents. Unlike either of the other definitions considered, it ²²⁷ protects the interests of the children and the custodial parent by allowing for their use and possession of a home which came into being, at least in part, through the labors of the custodial parent with the common understanding that such efforts would benefit the parties and their children. On the other hand, this definition of acquired, when considered within the context of §§ 8-201 thru 8-210, also protects the interests of the non-custodial parent, even under circumstances where 99 percent of the funds used to purchase the family home were provided by the non-custodial parent before the marriage. A non-custodial parent who has provided such premarital funds is protected by the statute itself which provides that: a use and possession order is limited in duration to three years, § 8-210(a); a use and possession order terminates upon the remarriage of the custodial parent, § 8 — 210(b); no use and possession order will lie in the case where the non-custodial parent acquired 100 per cent of the home before the marriage, § 8 — 201(c)(2)(i); and, finally, under § 8-208(b) & (c), in awarding use and possession of the family home the courts must: [C]onsider each of the following factors: (2) the interest of each party in continuing: (i) to ... occupy or use the family home or any part of it as a dwelling place; (ii) to ... occupy or use the family home or any part of it for the production of income; and (3) any hardship imposed on the party whose interest in the family home ... is infringed on____ (c) Allocation of financial responsibilities. — The court may order or decree that either or both of the parties pay all or any part of: (1) any mortgage payments or rent; (2) any indebtedness that is related to the property; (3) the cost of maintenance, insurance, assessments, and