Nisos v. Nisos

³⁷⁴ BISHOP, Judge. Elizabeth G. Nisos appeals from a final decree of divorce a vinculo matrimonii obtained against her by the appellee, Colonel Michael J. Nisos. The decree was filed in the Circuit Court for Montgomery County on September 14, 1983. Besides declaring the parties divorced, the decree ordered alimony and property distribution as follows: 1.

Appellee was ordered to pay to appellant “$1,400.00 per month indefinite alimony, beginning August 1, 1983;” 2. Appellant was awarded “30% of the United States Air Force Retirement Pension received by Michael J. Nisos, as her share of that marital property. Said thirty percent (30%) of that pension to be reduced by any sum received by [appellant] as alimony ...; ” 3. Appellant was “awarded thirty percent (30%) of the Aerospace Education Foundation Pension if and when [appellee] receives same.

Said thirty percent (30%) of that pension to be reduced by any sums received by [appellant] as alimony ...; ” 4. “[T]hat the Marriott Corporation Stock owned jointly by the parties is to be evenly divided with each party receiving two hundred thirteen shares ...; ” 5. All real property owned jointly by the parties was ordered sold “and ... the proceeds of the sale ... divided equally between the parties.” 6. All personal property owned jointly by the parties was ordered sold and the proceeds divided equally. 1 FACTS Appellant and appellee were married on October 23, 1947. They separated on August 1, 1980.

In 1982, appellee filed a Bill of Complaint for Divorce A Vinculo Matrimonii on the ground of voluntary separation for more than one year. At ³⁷⁵ the time of trial appellant was 57 years of age and appellee was 61 years of age. Appellee, a career Air Force officer, retired from the service in 1967. Thereafter, he took employment with the Aerospace Education Foundation.

The parties owned four pieces of real property: the marital residence, located in Bethesda, Maryland, and three oceanfront rental properties. Although the trial testimony is by no means clear, it appears the parties titled the properties in both names as tenants by the entirety. The parties also owned 426 shares of stock of the Marriott Corporation which, apparently, they held as joint tenants. There was evidence that at some point during the marriage appellant received a gift of two houses from her mother.

Appellant eventually sold the homes and placed the proceeds in the parties’ joint bank accounts. Later, these proceeds were applied toward the purchase price of each of the aforementioned jointly owned real properties as well as the stock. Appellant raises several allegations of error, both in the Court’s decree and in the chancellor’s conduct of trial. We preface our review of the merits of the appeal, however, with the observation that rarely does this Court receive a brief and record extract that is as disorganized and unintelligible as that of appellant.

Her submission is replete with violations of the mandatory rules of appellate procedure. Briefly, we note the following violations: 1. Appellant attaches and relies on “Appeal Exhibits.” Not only are such exhibits not authorized by the rules, but none were either admitted into evidence below or filed with the lower court during pre-trial discovery. A party is not entitled to supplement the record by inserting such foreign matter as he deems advisable.

M.R.P. 1028 b 1 (b); Community Realty Co. v. Siskos, 31 Md.App. 99, 102 , 354 A.2d 181 (1976). 2. Appellant attached to her record extract a document which purported to be her financial statement of record. Upon examination of the record, we learned that this docu ³⁷⁶ ment was not in fact the financial statement she filed in court. Moreover, appellant neglected to include the appellee’s complete financial statement.

We condemn appellant’s apparent attempt to mislead the Court. M.R.P. 1028 b 1 (b). 3. Appellant failed to include in her record extract any of the documents admitted at trial. M.R.P. 1028 b 1 (b). 4.

Appellant failed to set forth the statute upon which she relied in alleging certain error. M.R.P. 1031 c 3. 5. Appellant failed to set out succinctly and to appropriately number the questions presented. M.R.P. 1031 c 2. 6.

Appellant used her “statement of facts” to argue her allegations of error, rather than to guide the court in its understanding of the case. She also failed to refer us to the portions of the transcript upon which she relied in setting out certain “facts”, and to note where facts were in dispute. M.R.P. 1031 c 4. In light of these numerous, and at times egregious, violations of Rules 1028 and 1031, we are authorized in our discretion either to ignore her contentions or ultimately, to dismiss this appeal. 1028 i; 1031 f.

Kemp-Pontiac-Cadillac, Inc. v. S & M Construction Co., 33 Md.App. 516, 521 , 365 A.2d 1021 (1976). We are convinced, however, that our failure to address these issues would result in substantial injustice to appellant. We decline the temptation to “visit the sins” of the attorney upon his client. Nevertheless, we warn the bar that in the future such failure to comply with the rules will result in summary dismissal of the appeal.

We will address two issues: I. Whether in making the monetary award, the chancellor complied with Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05 (1984).

II

Whether the chancellor improperly excluded certain evidence. ³⁷⁷ I. Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05 (1984) 2 authorizes the chancellor to “grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property.” Cts. & Jud.Proc. § 3-6A-05(b). A monetary award is designed to accomplish an equitable division of marital property in an indirect manner, Ohm v. Ohm, 49 Md.App. 392, 396, n. 2 , 431 A.2d 1371 (1981), “in accordance with the announced policy of the legislature which is to give careful consideration to both monetary and nonmonetary contributions by the spouses to the marriage.” Wimmer v. Wimmer, 287 Md. 663 , 667 n. 2, 414 A.2d 1254 (1980). In Ward v. Ward, 52 Md.App. 336, 339 , 449 A.2d 443 (1982) Judge Moore, for the Court, summarized the three step process required by § 3-6A-05: 1) if an equitable adjustment over and above the distribution of the spouse’s property in accordance with its title is in 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). The chancellor, in announcing his intention to grant appellant’s monetary award, stated in part: Now, the wife contends that she is entitled to a marital award with respect to the husband’s U.S. Air Force retirement at this time, an award from the husband’s Air ³⁷⁸ Force Association pension which is not available to the husband for another four years at least, until he is 65. With respect to the Air Force retirement, the wife is clearly entitled to share in this and the Court has reviewed the many factors contained in Section 3-6A-05 of the Marital Property Act. That does not mean to say that you get your Air Force retirement, you pay out alimony from that retirement, and you also have to pay a share.

I am certainly not — it is not my intention to create a double payment out of the same fund. But the Court does recognize that the wife spent many years as a service wife with the expectation, along with your husband, that you would be the beneficiary of a pension after 20 years or whatever it might be, in the service. So, it would seem that it would be fair and equitable, and I have reviewed the many factors contained in Section 3-6A-05 entitled “Monetary Awards” of the Courts and Judicial Proceedings article, and given the fact that — and there has been testimony concerning this $20,000, other monies that have been given, it would appear that maybe bank account-wise, the wife is a little ahead insofar as marital property, but the pension and the retirement is a very valuable right that she ought to be entitled to share in. The Court feels that it is fair and equitable for the wife to share in this asset, that is, the U.S. Air Force retirement, to the extent of 30 percent of the husband’s net receipt of this retirement, on an as, if and when paid basis.

Now, this amount will be reduced by any amount the husband may be required to pay the wife in alimony. As to the Air Force Association pension, the wife is also entitled to share in this asset, and in the Court’s opinion, to the extent of 30 percent of the husband’s net receipts of this pension, on an as, if and when paid basis. This amount will also be reduced by any amount the husband may be required to pay as alimony. ³⁷⁹ For the reasons that follow, we hold that the chancellor did not comply with the requirements of § 3-6A-05 and we remand for his redetermination. A. The Court Shall Determine Which Property Is Marital Property.

Section 3-6A-01(e) defines “Marital Property” 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.” (Emphasis supplied) Appellant contends that since the proceeds from the sale of her homes were used to purchase the jointly owned stock and real estate, these properties cannot be characterized as entirely marital. The Court of Appeals addressed this precise issue in the recent case of Grant v. Zich, 300 Md. 256 , 477 A.2d 1163 (1984). In Grant , the Court held that when determining the character of property as marital or nonmarital, under § 3-6A-01(e), the appropriate analysis to be applied is the source of funds theory [explained in Harper v. Harper, 294 Md. 54 , 448 A.2d 916 (1982) ] ...

Under that theory, when property is acquired by an expenditure of both nonmarital and marital property, the property is characterized as part nonmarital and part marital, regardless of how titled. The property is nonmarital in the ratio that the nonmarital investment in the property bears to the total nonmarital and marital investment in the property, and its value is not subject to equitable distribution. (Id. at 268-9, 477 A.2d 1163 ). The Court went on to hold that the “source of funds theory” applied even to property subsequently titled in the names of both spouses.

On behalf of the Court, Judge Davidson wrote: ³⁸⁰ To characterize property as marital, based upon a presumption of gift arising from the titling of property as tenants by the entirety, makes the characterization of property as marital dependent, not only upon the legalistic concept of title, but also upon the time at which title is obtained, rather than the time at which payments are made. To employ a presumption of gift based upon the titling of property as tenants by the entirety, rather than making a determination as to the source of funds used by the spouses to acquire ‘the property, is to create a preference for the classification of property as marital and, therefore, subject to equitable distribution. For these reasons, a presumption of gift based upon the titling of property as tenants by the entirety when characterizing property as marital or non-marital under § 3-6A-01(e) is not consonant with the legislative policies embodied in the Act. Accordingly, we now hold that when characterizing property as marital or non-marital 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. 300 Md. at 270-71 , 477 A.2d 1163 (footnote omitted) (Emphasis added).

The principles enunciated in Grant apply directly to the instant case. It is undisputed that appellant contributed her separate, nonmarital.property toward the purchase of the Marriott Stock. Her separate property was also used to make the down payment on each of the jointly owned real properties. In disposing of this issue the chancellor stated: Now, between husband and wife there is a presumption of gift.

If one party contributes to any party, whether by way of a piece of property received, or by way of salaries invested or mortgages paid, it is presumed that half of it is a gift to the other spouse. ³⁸¹ He then ordered sale of the jointly owned real estate in lieu of partition and an equal division of the proceeds in accordance with title. § 3-6A-04(b)(2). Also, he ordered a partition of the 426 jointly owned shares of Marriott Stock, each party to receive 213 shares. § 3-6A-03(b)(2). The chancellor’s initial disposition of both the real and personal property in accordance with title was correct. Both § 3-6A-03 and § 3-6A-04 expressly state “the court may not transfer the ownership of [personal or real] property from one spouse to another.” For the purpose of determining title to these assets, therefore, and ordering their distribution in accordance with that title, he did not err in applying the presumption of gift principle.

The problem is that the chancellor also appears to have relied on the presumption of gift theory in determining what is marital property and the appropriateness and amount of appellant’s monetary award. That, as Grant v. Zich makes clear, he cannot do. Grant eliminated the presumption of gift theory based on titling for purposes of determining whether property acquired during the marriage with nonmarital funds is itself marital property and requires that we look to the source of funds in characterizing jointly titled property. This does not preclude a finding of an actual gift of the property, sufficient to permit its classification as marital; it does, however, preclude the theory of a presumed gift.

B. The Court Shall Determine The Value of All Marital Property. Prior to adjusting the parties’ equities and rights concerning the marital property prior to making a monetary award, Cts. & Jud.Proc. § 3-6A-05(b) plainly mandates that the chancellor “shall determine the value of all marital property.” (Emphasis supplied). The evidence indicates that the marital property in this case consists of real property, stock and the pensions. ³⁸² As we pointed out in LA. the chancellor did not properly consider the real property and the stock in making his determination of what property is marital property, therefore, there is no way that he could have properly considered their values. Since the chancellor correctly concluded that the appellee’s pensions were marital property, the statute required that he ascertain the values of the pensions and include those values in the total value of the marital property before making a monetary award.

Komorous v. Komorous, 56 Md.App. 326, 328 , 467 A.2d 1039 (1983). We have consistently held that the legislature by use of the word “shall” intended the provision to be mandatory. Grant v. Zich, 53 Md.App. 610, 614 , 456 A.2d 75 (1983) aff'd., 300 Md. 256 , 477 A.2d 1163 (1984); see, e.g. Deering v. Deering, 292 Md. 115, 121 , 437 A.2d 883 (1981) (“part of (b) section 3-6A-05 commands the court to determine the value of all marital property.”) (Emphasis added); Ward v. Ward, 52 Md.App. 336, 339 , 449 A.2d 443 (1982) (court shall determine the value of all marital property); Ayars v. Ayars, 50 Md.App. 93, 97 , 436 A.2d 490 (1981) (monetary award first requires determination of the value of the marital property).

(Emphasis added). In the case sub judice evidence was produced regarding the amount of monthly payment received by appellee from his Air Force Retirement pension ($1,529); and the amount of the monthly payment appellee expected to receive under his Aerospace Foundation pension, beginning in 1987 ($1,500). The Court received no evidence of either appellee’s contributions to the pension funds, if any, or evidence of the present value of appellee’s interest in each pension. Without this evidence