Kamin-A-Kalaw v. Dulic

KARWACKI, Judge. Where property is jointly owned, it is well-settled that a cotenant who makes payments to preserve the property is entitled to contribution from his cotenants for their share of the payment. Manns v. Manns, 308 Md. 347, 352 , 519 A.2d 740, 743 (1987); Crawford v. Crawford, 293 Md. 307, 309 , 443 A.2d 599, 600 (1982); Aiello v. Aiello, 268 Md. 513, 518-19 , 302 A.2d 189, 192 (1973); Lingo v. Lingo, 267 Md. 707, 714 , 299 A.2d 11, 13 (1973); Pino v. Clay, 251 Md. 454, 456-57 , 248 A.2d 101, 102-03 (1968); Hogan v. McMahon, 115 Md. 195, 201-02 , 80 A. 695, 698 (1911). This case presents the narrow question of how that contribution should be calculated.

I. In 1983, O’Kassa Kamin-A-Kalaw and Gerald Dulic, who are unmarried, purchased improved real property in Montgomery County as joint tenants. Thereafter, they resided in that property and pooled their resources to pay the ⁵² mortgage debt which they incurred at the time of its purchase and the other expenses of maintaining their home. In July of 1986, discord developed in the domestic arrangement of the parties. Thereafter, Kamin-A-Kalaw paid the monthly installments of the principal and interest on the mortgage as well as the premiums for the insurance protecting the property and the real estate taxes thereon.

On February 24, 1987, Dulic filed a complaint in the Circuit Court for Montgomery County, seeking a sale of the property in lieu of partition. Kamin-A-Kalaw filed a counterclaim against Dulic for damages as the result of an alleged assault and battery, conversion of personal property, and failure to repay certain loans. In an amended complaint, Dulic then sought damages from Kamin-A-Kalaw who, he alleged, had negligently infected him with a sexually transmitted disease. When the case was called for trial on September 13, 1988, the court severed the claims for damages asserted in the counterclaim and amended complaint and proceeded to hear the issues relating to the sale of the property in lieu of partition.

At the conclusion of that trial, the court ordered a sale of the property and found that Kamin-A-Kalaw had advanced $33,965.12 in mortgage payments, insurance premiums and taxes for the property since July of 1986. Consequently, the court ruled that Dulic owed a duty to contribute one-half of that sum to his joint tenant. In the subsequently .entered order on November 2, 1988, appointing a trustee to make the sale the court provided: The proceeds of sale and any refund of escrows shall be distributed as follows: Firstly, to discharge the first trust in favor of Brokers Mortgage Service or its successor and any other joint liens of record, secondly, to pay the costs and expenses of sale, thirdly, to pay by way of contribution the sum of $16,982.56 to defendant and to reimburse any additional principal, interest, taxes and insurance expense to the party advancing the same from September 14, 1988 until the date of conveyance, and, ⁵³ thirdly, [sic] to divide equally between the parties any remaining balance. When the trustee filed an accounting with the court, he proposed the following distribution of the net proceeds of the sale: Payment to plaintiff (Dulic) ¥2 of net proceeds $ 23,258.05 Less Judgment for Contribution $ 16,982.56 Less reimbursement to defendant of ¥2 mortgage payments made since September 14, 1988, per Order of Court 4,323.00 1,952.49 Payment to defendant (Kamin-A-Kalaw) ¥2 of net proceeds 23,258.05 Plus Judgment for Contribution 16,982.56 Plus reimbursement to defendant of ¥2 mortgage payments made since September 14, 1988, per Order of Court 4,323.00 44,563.61 Dulic objected to this proposal, arguing that under the court’s order his contribution to the payments advanced by his joint tenant should first be deducted from the net proceeds of the sale and the balance should then be divided between the parties.

Kamin-A-Kalaw responded to Dulic’s objection and also filed a motion to clarify the court’s earlier order with regard to the contribution due by Dulic. After a hearing the court overruled Dulic’s objection and filed the following order: [T]his court’s Order of Sale and Appointment of Trustee of November 2, 1988 be, and it is hereby, amended as follows: The last paragraph thereof is deleted, and