Maness v. Sawyer

CHARLES E. MOYLAN, JR., J., Retired, Specially Assigned. The appellant, David J. Maness (“Husband”), and the appellee, Rebecca S. Sawyer (‘Wife”), were married in North Carolina on June 16, 1994. Two children were born of the marriage: Hayley Louise Maness, born on January 16, 1998, and Sophie Anne Maness, born on May 10, 2001. On December 29, 2005, the Wife filed her petition for a limited divorce and for the immediate custody of the children in the Circuit Court for Anne Arundel County.

The ultimate trial of the case before Judge Nancy L. Davis-Loomis began on December 18 and 19, 2006, and was continued on February 28, March 1, March 2, and May 25, 2007. On May 25, Judge DavisLoomis delivered an oral opinion resolving all issues before the court, followed by the filing of a written Order on that day and a Judgment of Absolute Divorce on May 30. By the Judgment of Absolute Divorce, Judge Davis-Loomis granted a divorce to the Husband on the basis of the Wife’s adultery; awarded to the Wife sole legal and physical custody ²⁹⁹ of the children; granted the use and possession of the family home at 449 Alfreton Court in Severna Park to the Wife and children for a period of two years; ordered the Husband to pay to the Wife the sum of $1,203 per month for child support of the two children; found the Husband in contempt for having failed to pay the child support ordered in the pendente lite order of Judge Michael E. Loney on June 5, 2006, and directed that the Husband could purge himself of that contempt by paying the arrearage of $20,299; and ordered the Husband to pay the Wife $5,000 as a contribution toward her attorney’s fees. On this appeal, the Husband raises the five contentions 1. that Judge Davis-Loomis erroneously treated 449 Alfreton Court as the “family home” within the meaning of Maryland Code, Family Law Article, § 8-201; 2. that Judge Davis-Loomis abused her discretion in granting sole legal and physical custody of the children to the Wife; 3. that Judge Davis-Loomis abused her discretion in calculating the amount of monthly child support; 4. that Judge Davis-Loomis erroneously calculated the arrearages to be paid to the Wife in order to purge the Husband’s contempt; and 5. that Judge Davis-Loomis abused her discretion in ordering the Husband to pay $5,000 of the Wife’s attorney fees. “It Takes a Heap of Living To Make A House a Home” Or Does It?

The Husband’s most intriguing contention, at least initially, is a teaser and one that may require us to make an educated guess as to the 1978 intention of the Maryland General Assembly. The issue concerns the status of 449 Alfreton Court in Severna Park. Judge Davis-Loomis awarded the use and possession of that residence to the Wife and children for a period of two years, dating from June 25, 2007. She did so ³⁰⁰ pursuant to Maryland Code, Family Law Article, § 8-208(a), which provides in pertinent part: (a) Award of possession and use. — (1) When the court grants ... a limited or absolute divorce, regardless of how the family home ... is titled, owned, or leased, the court may: (i) decide that 1 of the parties shall have the sole possession and use of that property; (Emphasis supplied).

The potential problem is with § 8-201(c)(l), “Definitions,” which defines “family home” in the following tripartite way: (c) Family home. — (1) “Family home” means the property in this State that: (i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child. (Emphasis supplied). The Husband contends that 449 Alfreton Court did not qualify as the “family home” because he and his Wife never lived there together. That is literally true, but it is not necessarily dispositive.

When the Wife and children first came to Annapolis in September of 2004, the Husband remained in North Carolina. When the Wife and children arrived in Annapolis, they lived first at a Radisson Suite Hotel and then in a furnished apartment on Conduit Street. Early in 2005, the Wife’s employer made a rental house, referred to by the parties as “Hillsmere,” available to her and the children at a below-market rental rate. When the Husband first arrived in Maryland on March 1, 2005, he lived there, at “Hillsmere,” with his Wife and children until July 21, 2005, although he and his Wife did not share a bedroom.

By April of 2005, however, the marriage was already in a shambles and the Wife told the Husband that she wished him to vacate the ³⁰¹ Hillsmere residence. When he refused to leave, she herself left with the children on July 21, 2005, and moved into the Harbor Gates Apartments in Annapolis. The Husband remained in the Hillsmere residence until November 1, 2005, notwithstanding the owner’s regular efforts to get him to leave. On November 1, the Husband showed up at the Wife’s apartment and, at the urging of the children, was allowed to sleep there, on a living room sofa, until December of 2005.

Thus far in the residential saga, there was obviously no property that would remotely qualify as the “family home.” On approximately November 1, 2005, however, the Husband and Wife settled on 449 Alfreton Court, which the two of them thereafter owned as tenants by the entireties. The Wife and the children moved into the Alfreton Court residence on December 1, 2005. By agreement between Husband and Wife, however, the Husband did not. When he unexpectedly showed up at Alfreton Court on December 14, 2005, and subsequently refused to leave, the Wife and children immediately moved out and back into the Harbor Gates Apartments.

They only returned to the Alfreton Court residence on or about June 5, 2006 when the Husband, under a pendente lite order and a threat of contempt, moved out. From the testimony of the parties, Judge Davis-Loomis found that the Alfreton Court residence had been purchased for the express purpose that the Wife and children would live there. It is owned as tenants by the entireties. It was purchased with the express purpose of the children living in that home with mother.

I know that father indicated that he intended once he thought that the marital difficulties could be resolved that they would reside there together. (Emphasis supplied). It is also significant that on March 16, 2006, the Husband, along with the Wife, executed an Interim Agreement with respect to the Alfreton Court residence. In that agreement, the parties designated 449 Alfreton Court as the “Family Home.” The agreement read: ³⁰² “INTERIM AGREEMENT THIS INTERIM AGREEMENT is entered into and effective this 16 day of March, 2006 by and between Rebecca S. Maness (Hereinafter “Wife”) and David J. Maness (Hereinafter “Husband”).

RECITALS WHEREAS, the Parties were married on June 18, 1994, by a religious ceremony and as a result of their marriage, two children were born, namely Hayley Louise, born January 16,1998 and Sophie Anne, born May 10, 2001 (hereinafter the “Minor Children”)” WHEREAS, the Parties own, as tenants by the entire-ties, property and improvements known as W Alfreton, Court, Sevema Park, Maryland 21H6 (hereinafter the “Family Home”); WHEREAS, The Husband is presently residing at the family home. NOW, THEREFORE, in consideration of the promises and mutual covenants and understanding of each of the Parties, the Parties hereby covenant and agree as follows, all as of the effective date hereof: 1. Family Home. The Family Home is subject to a lien of a mortgage.

Wife with the Minor Children shall have the exclusive use and possession of the Family Home and all personal property located in the Family Home until the first to occur of (i) subsequent agreement of the parties, (ii) subsequent order of the court, (iii) Wife fails to timely pay the mortgage on the family home, (iv) wife no longer has equal shared time custody of the children, (v) an unrelated male resides in the home or (vi) Wife fails to attend counseling as set forth hereinafter.” (Emphasis supplied). Notwithstanding the facts 1) that, at the time of their divorce, the Husband and Wife owned 449 Alfreton Court; 2) ³⁰³ that that was the only home they owned; and 3) that the Wife and children had been living in that home for 11 months, the Husband maintains that because he and the Wife never stayed under the same roof of 449 Alfreton Court on the same night, it did not qualify as a place where “they [had] lived together.” The inevitable conclusion of his logic is that there was no family home and no place, therefore, to which a use and possession order might apply. Judge Davis-Loomis, however, refused to apply such sterile logic. Instead, she ruled: THE COURT: We still have miles to go before we sleep.

All right. Use and possession. Mother has requested use and possession of family home, family use personal property. As an adjunct to that, there is an argument that this home, the Alfreton home, does not 'meet the definition of a family home.

I know the argument and I understand the argument that Mr. Maness and the family never lived together in that home. Now 7 believe from the intent of the legislature and what they perceived as the family home that this home meets that definition closely enough. It is owned as tenants by the entireties. It was purchased with the express purpose of the children living in that home with mother.

I know that father indicated that he intended, once he thought that the marital difficulties could be resolved, that they would reside there together. He went to that home in December Hth of '05 indicating that it was his home, too, and he could live there. And certainly the point of the use and possession of the family home only the parent with primary physical custody could be permitted to have use and possession of the home because it is for the children. And, again, it is in the best interest of the children from stability of the children.

These children have, in their short lives, been [moved from] pillar [to] post. They have been in North Carolina. They have been, I believe, in couple of homes in North Carolina. They have been in a home in Okracoke. ³⁰⁴ They have been in three homes, in three places in Maryland, in a short period of time, the Hillsmere home and the Harbor Gates home and the Alfreton home.

Let’s give them a rest. Let’s let them stay in one place for a while, and so I am going to grant use and possession beginning today’s date, May 25th, to the mother and the minor children. And I am going to make that use and possession for a two-year period through June 24th. It is actually two years and a month, and my reason for adding that extra month is that if there is moving to occur, I don’t want it to occur during the school year while the children are still in school.

You know, right at the end of May, I believe that would be too much chaos as well. I know that it has been some period of time that Ms. Maness, the mother [and the] children, have been in the home, and that will continue through June 25th of 2009. And that is going to be without right of contribution for the mortgage from father during that period of time. So, just to clarify, Ms. Maness, mother, will be responsible for the payment of the mortgage during that period of time.

(Emphasis supplied). We affirm as a legally correct decision Judge Davis-Loom-is’s determination that 449 Alfreton Court was the proper object of a use and possession order. It was, moreover, the right thing to do, and that always helps. Although we necessarily reject the Husband’s argument, we do not blithely dismiss it.

It focuses attention on an unusual little definitional wrinkle that is deserving of analysis. What did the Legislature have in mind when it used the phrase “when they lived together”? Does the phrase set out a necessary condition that, for some plausible purpose, should be considered the sine qua non for the very existence of a family home subject to a use and possession order? Or is it, rather, merely a descriptive phrase that, 99% of the time, will serve to identify the property that the Legislature had in mind for use and possession purposes, with nobody’s having anticipated the other and aberrational one percent of possible fact patterns?

None of ³⁰⁵ our caselaw has heretofore had to confront the phrase “when they lived together.” We now do. It behooves us, for starters, to take a closer look at § 8-201, defining “Family home.” It consists of two subsections, one telling us what the “family home” is and the other telling us what it is not. Subsection (1) tells us what the family home is: (1) “Family home” means the property in this State that: (1) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child. 449 Alfreton Court clearly satisfied (c)(l)(ii) and (c)(l)(iii). It is only (c)(1)® that is in doubt.

Subsection (2), by contrast, tells us what the “family home” is not: (2) “Family home” does not include property: (i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; or (iii) excluded by valid agreement. None of those express exclusions applies to 449 Alfreton Court. It might seem that the residence in issue was neither included nor excluded by the statutory definition. It may be that, because of an aberrational fact pattern, 449 Alfreton Court simply falls through the definitional cracks.

There could, of course, be other aberrational situations that the Legislature may not have anticipated when it used the phrase “when they lived together.” Hypothesize a couple acquiring a home for intended family use, but one spouse, for the weeks or the years that the other spouse and children were then in residence, should be unavoidably away because of the demands of business, of military deployment abroad, of foreign study, of imprisonment, or of confinement in a hospital or nursing home. The absent spouse may never have lived under ³⁰⁶ the roof for a single night, but we cannot believe that the Maryland Legislature intended, should the marriage then dissolve, to preclude the passage of a use and possession order for the protection of the custodial spouse and children. There would be no intelligible purpose to be served by such a stingy interpretation of a law passed, after all, for the benefit of the children. The phrase “when they lived together” is a convenient and efficacious descriptive phrase that works most of the time, but it is not a talismanic qualifier for the very existence of a “family home.” To keep from being caught in an inadvertent linguistic trap, it will help us if we appreciate what the Legislature was trying to accomplish.

In enacting the use and possession provisions in 1978, the General Assembly went out of its way to make its animating purpose clear by expressly including the provision that is now codified as § 8-206, dealing with “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. (Emphasis supplied). Section 8-208, moreover, the section that in subsection (a) gives a chancellor the actual authority to award the possession and use of a family home, in subsection (b) spells out the “required considerations,” which we repeat in pertinent part: In awarding the possession and use of the family home and family use personal property, the court shall consider each of the following factors: (1) the best interests of any child; (2) the interest of each party in continuing: ³⁰⁷ (i) ... to occupy or use the family home or any part of it as a dwelling place; or (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 or family use personal property is infringed on by an order issued under §§ 8-207 through 8-213 of this subtitle. (Emphasis supplied).

With the “Legislative policy” of § 8-206 and the “Required considerations” of § 8-208(b) then in the front of the mind, we may look at the status of 449 Alfreton Court as of May 25, 2007, when Judge Davis-Loomis rendered her decision with respect to its use and possession. 449 Alfreton Court had jointly belonged to the Husband and Wife, as tenants by the entireties, for 19 months, from November 1, 2005 through May 25, 2007. For 18 of those months, from December 1, 2005, through May 25, 2007, it had been continuously occupied by some member or members of the immediate family. The Wife and the children had lived there for the two-week period of December 1 through December 14, 2005. The Husband had then lived there for six consecutive months, from December 14, 2005 through June 17, 2006.

The Wife and children then resumed their occupancy and, as of the date of Judge Davis-Loomis’s use and possession order, had been living there continuously for 11 months and one week, from June 17, 2006, through May 25, 2007. 449 Alfreton Court had been bought, moreover, for the use of the Wife and the children. The Interim Agreement of March 16, 2006, signed by both Husband and Wife, repeatedly referred to 449 Alfreton Court as the “family home.” As of the time of the use and possession orders, the children, whose interest according to the Legislature was paramount, had been living in the home and its neighborhood for almost a year and had been attending school nearby for a year. The Maryland General Assembly clearly did not intend that they should be dispossessed. ³⁰⁸ Throughout the entire 19-month period, it was clearly the intention of both the Wife and the Husband to be domiciled at 449 Alfreton Court. The Wife and children intended for that to be their permanent home.

They only desired to keep the Husband out. The Husband, for his part, fully intended for it to be his permanent home. He simply desired that his Wife and children should be reconciled to join him there. As of the moment of the use and possession order, 449 Alfreton Court was unquestionably “the principal residence of the parties” and it had been that for 19 uninterrupted months.

It was simply the bizarre case that whenever the Husband came in the front door, the wife, with the children, scooted out the back door. The Maryland caselaw is completely in line with the statutorily announced legislative policy. The authority for a court to enter a use and possession order came into the law in 1978 as a result of the recommendation of the Governor’s Commission on Domestic Relations Laws. In Pitsenberger v. Pitsenberger, 287 Md. 20, 24 , 410 A.2d 1052 (1980), Chief Judge Robert Murphy referred to the preamble to the new, statute.

The new statute has governed property disposition in divorce and annulment actions since its effective date of January 1, 1979. In a preamble to the statute, the General Assembly declared 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. ‘The General Assembly declares further that it is the policy of this State that when 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 ³⁰⁹ their interest must be given particular and favorable attention.’ ” (Emphasis supplied). In upholding the constitutionality of the new statute and in pointing out that a temporary use and possession order does not represent an unconstitutional taking of a husband’s property, Judge Murphy stressed the State’s overriding concern with the interests of the minor child. [T]he State’s interest is to ensure that when a marriage is dissolved, the interests of minor children in the family are given “particular and favorable attention ” — this being the policy of the State as declared by the General Assembly in the preamble to the statute....

The procedure provided for in § 3-6A-06 seeks to avoid uprooting the children from the home, school, social and community setting upon which they are dependent. 287 Md. at 31 , 410 A.2d 1052 (emphasis supplied). In Bledsoe v. Bledsoe, 294 Md. 183, 189-90 , 448 A.2d 353 (1982), Judge Cole traced the history of Maryland’s use and possession law and elucidated its purpose by referring to the Comments of the Governor’s Commission that proposed the new law. In 1976, Governor Marvin Mandel established the Governor’s Commission on Domestic Relations Laws to study the constitutional, statutory, and common law regarding marriage and the dissolution of marriage in Maryland. Pursuant to its charter the Commission proposed a bill, ultimately Senate Bill 604, Ch. 794 of the Laws of 1978, to the General Assembly to remedy perceived inequities in the then “Maryland law governing the disposition of real and personal property upon divorce” or annulment.

Report Accompanying The Commission’s Proposed Bill On The Disposition Of Property In Ccmnection With A Divorce Or Annulment, at 2 (1978). The proposed bill was adopted in substantially the same form as the commission proposed it and the comments of the commission on the bill are, therefore, highly relevant. ³¹⁰ At page twelve of its report, regarding § 3-6A-06, the commission explains the purposes to be accomplished by the court in awarding use and possession of the family home and family use personal property. Subsection (a) states two primary purposes which the authority conferred by this Section on the family home should be used to accomplish. These are to permit the children of the family to live in an environment and community which is familiar to them and to permit the continued occupancy of the family home by a spouse who has a special need to live in that home.

The Commission believes, on the one hand, that these two purposes comprise all that are entitled to priority in the exercise of the authority conferred by this Section; on the other, the Commission considers the accomplishment of these purposes justifies the imposition of the specific burdens on the ready disposability of the property and on the financial obligation of the respective parties that the exercise of this authority may involve. Two points are worthy of note in this statement of purposes. First is that the second explicated objective of the statute is to permit the spouse with a special need to continue to live in the family home. (Emphasis supplied).

In Barr v. Barr, 58 Md.App. 569, 585 , 473 A.2d 1300 (1984), this Court also spoke to the overarching purpose of the use and possession law. The sole purpose, not merely the primary purpose, of the use and occupancy provision is to permit the child or children of the family to live in the community and environment which is familiar to them. Bledsoe v. Bledsoe, 294 Md. 183, 191 , 448 A.2d 353 (1982). A parent’s or spouse’s needs are of no consideration except as those needs contribute to, or reflect upon, the obligation she or he owes to the child or children.

(Emphasis supplied). See also Kennedy v. Kennedy, 55 Md. App. 299, 302-06 , 462 A.2d 1208 (1983); Court v. Court, 67 ³¹¹ Md.App. 676, 680-85, 509 A.2d 693 (1986) (this Court treated as the “family home” a house which the family had not actually occupied for the preceding five years); Hughes v. Hughes, 80 Md.App. 216, 223-25 , 560 A.2d 1145 (1989); Kelly v. Kelly, 153 Md.App. 260, 268-69 , 836 A.2d 695 (2003). What, then, shall be made of the phrase “when they lived together”? We deem it to be a phrase that well describes a common circumstance that frequently helps to identify the truly critical term “the principal residence of the parties.” The phrase, however, does not, we hold, constitute a necessary condition precedent to the very existence of a “principal residence of the parties.” It is “the principal residence of the parties” that is the “family home” and that is, therefore, the proper subject of a use and possession order, whether the parties ever actually “lived there together” or not.

The Custody Award As we undertake our review of the decision to grant sole legal and physical custody to the Wife, the standard of appellate review to be applied is that of abuse of discretion. In Davis v. Davis, 280 Md. 119, 124-26 , 372 A.2d 231 (1977), Judge Digges resolved any theretofore existing uncertainty in that regard. [TJhere is some confusion in our cases with respect to the standard of review applicable to the chancellor’s ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors’ opinions, that appellate courts must exercise their “own sound judgment” in determining whether the conclusion of the chancellor was the best one.

Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407 , 62 A.2d 293, 298 (1948), and as our decisions indicate, a ³¹² reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion____ In sum, we point out that three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, further