Mount v. Mount

BISHOP, Judge. Miyoko Mount appeals from a decree of the Circuit Court for Anne Arundel County which granted to Edward L. Mount, appellee, a divorce a vinculo matrimonii on the ground of voluntary separation. The decree also equally ⁵⁴¹ divided marital property valued at $106,000, decreased appellant’s share of the marital property by granting appellee a monetary award of $6,000, awarded appellant monthly alimony of $200 for a period of nine months and counsel fee of $4,500, and divided certain personal property between the parties. Facts This second marriage for each party occurred on January 10, 1974.

They separated in September 1980. Appellant claims the separation was caused by hostile and violent acts of appellee and his actual desertion; appellee claims that the separation was by mutual consent. Appellant, about 48 years of age, was born in Saseba, Japan. She was trained in a dress maker college and worked as a tailor.

She also had operated an unsuccessful restaurant. Appellee, 53 years of age, operated a bowling alley in which he had a 10% interest, acquired before his marriage to appellant. The record supports appellant’s contention that over the years appellee had beaten her a number of times and that, as a result, she was hospitalized four or five times. On April 1, 1979, two men appellant identified as acquaintances of her husband assaulted and robbed her after, she claimed, she had been set up by her husband.

To support appellee’s complicity appellant argues that certain items, including an album of photographs, which had been in her stolen purse, surfaced later in the possession of her husband. Three months later, on July 11, 1979, the building in which appellant owned and operated a restaurant was destroyed by fire. To settle a law suit based on her failure to pay a loan made for the purchase of the restaurant, appellant paid $22,322.50 from the proceeds she received as her share from the sale price of the family residence. As a result of the assault and robbery appellant’s physician found that she had “post traumatic headache syndromes in which trauma to the brain has caused intractable ⁵⁴² and at times frequent headaches and severe anxiety;” and that “she complained of chronic right shoulder and neck pain with limited motion.” On March 2, 1981, almost two years later, the physician found that she was 100% disabled and would remain so until April 1, 1982.

As a result of this incident, the Workmen’s Compensation Commission, on September 2, 1981, found that appellant had sustained an 18% industrial loss of the use of her body (neck — 8% and head 10%) for which she received a permanent partial compensation award of $6,660.00, payable at the weekly rate of $74.00, beginning on April 14, 1980. Psychiatrist Michael D. Potash, on April 23, 1981, reported that appellant had a 5% psychiatric disability as a result of the assault and robbery incident, plus a pre-existing psychiatric disability of 15% “as a result of grave marital discord.” He also reported that appellant suffered a long series of traumatic events beginning when she was an early adolescent with the bombing of Nagasaki. Appellee had a gross salary of $505.00 per week, plus a $30.00 monthly expense account. He received money from land he owned in Pennsylvania.

Also, he owned a dwelling in which he allowed a friend to live rent free. On August 22, 1974, a dividend of fifteen shares of the stock of Greenway Bowl East, Inc., was declared on the ninety shares of Greenway Bowl, Inc., stock which appellee had acquired before his marriage. The chancellor found that none of this stock was marital property because the Greenway Bowl, Inc., stock was acquired before the marriage, and the Green way Bowl East, Inc., stock was a stock split resulting from that prior stock acquisition. Greenway Bowl, Inc., had a net worth of $1,439,263.00 and Greenway Bowl East, Inc., a net worth of $1,071,999.00.

Appellee testified that he had a $60,000.00 life insurance policy on which he had paid monthly premiums of $52.00 for 10 or 12 years and in which appellant had been named beneficiary. Prior to trial appellee had changed the benefi ⁵⁴³ ciary designation to his two children. The record does not indicate the cash value of the policy. In addition to a $3,000.00 Individual Retirement Account, appellee had a $20,000.00 insurance policy designated as a retirement fund.

Since 1964 he had been paying weekly premiums of $11.00. In 1984, the 20th anniversary of the policy, appellee would be entitled to receive the $20,000.00. As a result of her restaurant business failure, except for alimony and $500.00 in cash, a 1978 Dodge and a $200.00 life insurance policy, appellant was without funds. She was living in a boarding house at a monthly cost of $400.00.

Her financial statement showed total monthly expenses of $560.22. Additional facts will be supplied during the discussion of the issues. Appellant raises seven issues contending that the court erred: 1. In its determination that the parties mutually separated. 2.

In its refusal to grant the appellant a divorce a vinculo matrimonii on the grounds of abandonment. 3. In awarding the appellant alimony for nine months rather than permanent alimony. 4. In failing to consider the husband’s ownership in Greenway Bowl, Inc., and Greenway Bowl East, Inc., in determining alimony and marital award. 5. In determining that 6 Ivy Lane, Country Club Estates was marital property. 6.

In failing to determine that Mrs. Mount was entitled to contribution for furnace repairs made while she lived at the marital home and after appellee had moved out. 7. In failing to determine what interest Mrs. Mount had in her husband’s $20,000.00 retirement policy and the $60,-000.00 life insurance policy. ⁵⁴⁴ The Divorce After finding that a voluntary separation occurred in November 1981, the chancellor granted appellee’s amended and supplemental bill of complaint for a divorce based on mutual and voluntary separation for more than a year. Maryland Annotated Code, Article 16, section 24. Appellant argues that appellee returned to the home, slept there and attempted to have sexual relations with her during the crucial twelve month period.

Appellee denied this, stating that when he visited the home appellant was not present. Citing Carney v. Carney, 16 Md.App. 243 , 295 A.2d 792 (1972) and Lillis v. Lillis, 235 Md. 490 , 201 A.2d 794 (1964) for her authority, appellant contends that “parties cannot live under the same roof in a voluntary separation.” We agree; however, in this case there was an evidentiary conflict, which the chancellor resolved in favor of appellee. Appellant also argues that there was no corroboration of the mutual and voluntary separation. Again there was conflicting testimony on this issue, although it appears that in September 1981 appellant did admit that she told appellee that she did not want to remain married to him.

In her answer to . appellee’s bill of complaint, which she later amended to the contrary, appellant admitted to the mutual and voluntary separation. Appellant further claims that the testimony of appellee’s two witnesses on this issue was not sufficient to provide even the slight corroboration required. Fedder v. Fedder, 248 Md. 162 , 235 A.2d 553 (1967) and Sewell v. Sewell, 218 Md. 63 , 145 A.2d 422 (1958). The chancellor resolved the evidentiary conflicts in favor of the appellee.

Appellant concludes that in both Misner v. Misner, 211 Md. 398 , 127 A.2d 547 (1956) and in the case sub judice “there was no evidence that the parties ever met or discussed their marital relationship after the original separation.” In Misner the appellant’s wife flatly contradicted appellee husband on the evidence pertaining to the mutual and voluntary issue. We do not read Misner to mean that ⁵⁴⁵ an involuntary or forced separation never can ripen into a mutual and voluntary separation unless the parties meet and discuss the issue. The chancellor resolved these factual conflicts in favor of the appellee and since he was not clearly erroneous, we must affirm his action. Maryland Rule 1086.

Even if the original separation had been caused by the wrongful conduct of appellee, in view of our holding above, it would not be relevant to this issue. The Ivy Lane Property Appellant argues that the Ivy Lane real property, which was titled in her name prior to the marriage, and which she brought into the marriage with her, was transferred into their joint names during the marriage solely for the purpose of obtaining a loan and, therefore, was not a gift to the appellee. We will not look beyond the deed to the Ivy Lane property. Each party came into the marriage with previously owned real property; each placed each other’s respective name on the deeds and thereby made valid gifts to each other.

Bledsoe v. Bledsoe, 294 Md. 183, 186-87 , 448 A.2d 353 (1982). We affirm the chancellor’s determination that Ivy Lane is marital property. The Stock Appellant concedes that the appellee’s 90 shares of Greenway-Bowl stock acquired before the marriage is not marital property, but argues that the 15 shares of Green-way-Bowl East stock received during the marriage should be considered marital property. In his written opinion the chancellor found that, “The stock in Greenway-Bowl East is a stock split ... it is attributable directly to the Greenway-Bowl, Inc., stock and is likewise not marital property.” The evidence does not support the chancellor’s conclusion that the Greenway-Bowl East stock resulted from a stock split.

It is clear that ⁵⁴⁶ Greenway-Bowl East stock was issued as a dividend to the Greenway-Bowl stockholders. In Exhibit No. 20, a letter from Greenway-Bowl, Inc., and dated November 17, 1982, signed by James T. Russell, Secretary-Treasurer, the following appears: “Edward Mount received 15 shares of Greenway Bowl East, Inc., stock that transacted (sic) by a transfer of ownership from Greenway Bowl, Inc., on August 22, 1974.” On December 28, 1982, during cross-examination, appellee was asked about the Greenway Bowl East, Inc., stock certificate: “Q. Was that a stock dividend that was given to you, sir? A. From the Greenway Bowl, Inc., (sic) owns stock ... owns stock in Greenway Bowl East ... for tax purposes they took, gave us stock in there instead of giving us dividends anymore, they gave us stock into there but it was from Greenway Bowl, Inc’s (sic) stock.” There are important differences between a stock split, and a dividend paid in the stock of another corporation. A stock split, says Fletcher, Cyclopedia Corporations § 5362.1: “[IJs merely a dividing up of the outstanding shares of a corporation into a greater number of units without disturbing the stockholder’s original proportional participating interest in the corporation.

His proportionate share of ownership, his rights on dissolution and the total value of his investment in the corporation are all preserved intact after the split is consummated. The only noteworthy occurrences resulting from a stock split are the receipt of a new certificate evidencing the change in shares and the necessary clerical corrections to be made on the record books.” A stock split does not generally alter the amount of the corporation’s capital. That, in essence, is what distinguishes it from a stock dividend. Geier v. Merc.

Safe Dept. ⁵⁴⁷ & Tr. Co., 273 Md. 102, 119-20 , 328 A.2d 311 (1974); Fletcher, supra, § 418-14; Md.Code, Corp. & Assoc. art. § 2-309(e)(l). Clearly, the Greenway Bowl East stock was not acquired through any stock split. A cash dividend, or a dividend paid in the form of some other corporate property (such as stock in another corporation) has a far different significance.

Again, as Fletcher points out, § 5355: “Such a dividend diminishes the property of the corporation by exactly the amount .paid out and correspondingly increases the property of the individual stockholders, or, in other words, subtracts so much from the treasury of the corporation and transfers it to the pockets of the stockholders.” Assuming that the distribution of the fifteen shares was a proportional one based on Mr. Mount’s ownership of the 90 shares of Greenway Bowl, Inc., (i.e., one share of Green-way Bowl East stock for each six shares of Greenway Bowl, Inc., stock owned), and that all other stockholders of Green-way Bowl, Inc., received the same proportional distribution, it would appear that the Greenway Bowl East stock was not acquired as a true stock dividend, but as an ordinary dividend paid in property other than cash. See Corp. & Assoc. art. § 2-309(a). If this is what occurred — and that is all that the record indicates — the transaction was simply the transfer of a corporate asset to the stockholders. The value of Mr.