Pitsenberger v. Pitsenberger

Murphy, C. J., delivered the opinion of the Court. ²² This is the first case in which we consider the constitutionality of Maryland’s new legislation on property disposition in divorce and annulment — ch. 794 of the Acts of 1978, now codified as Maryland Code (1974, 1979 Cum. Supp.) §§ 3-6A-01 to 3-6A-07 of the Courts and Judicial Proceedings Article. More specifically, two questions are raised for our determination: 1. Does § 3-6A-06, on its face, violate procedural due process by authorizing a pendente lite use and possession award of the family home and other property without a preliminary showing by the petitioning spouse that grounds exist for a divorce? 2.

Does § 3-6A-06 permit the unlawful taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution, Article 24 of the Maryland Declaration of Rights, 1 and Article III, § 40 of the Maryland Constitution? John and Mary Pitsenberger were married on June 30, 1962, in Alexandria, Virginia. Five children were born as a result of the marriage. In August of 1978, Mary left the family home in Rockville, Maryland, taking two of the parties’ five minor children and $10,000 from the parties’ joint savings account.

About one month later, the other three children went to live with Mary in a small three bedroom townhouse in Derwood, Maryland. Mary rented the house on a month-to-month lease, but she was informed that the lease would not be renewed after May of 1979. While living with Mary, the children remained enrolled in the neighborhood schools near the family home. Mary drove them to school each day.

On January 2, 1979, Mary filed a bill of complaint for a divorce a mensa et thoro on the grounds of constructive desertion in the Circuit Court for Montgomery County. She sought pendente lite custody of the children, child support, ²³ alimony and, pursuant to § 3-6A-06 (d), an exclusive use and possession order for the family home and family use personal property (furniture, appliances, household furnishings and a 1973 Dodge Dart). On February 9,1979, John filed his answer and a cross-bill of complaint for divorce a mensa et thoro on the grounds of desertion. 2 On February 16,1979, a hearing was held before a domestic relations master to determine pendente lite the issues of child custody and support, alimony, and the need of the parties and the children to remain in the family home. Mary testified that she was on welfare and lacked funds to rent another house or apartment.

Despite John’s yearly salary of approximately $47,000, she said she had received no child support since August, 1978. With respect to alternative living arrangements, Mary explained that her mother’s residence, a small three bedroom house in Alexandria, Virginia, provided insufficient living room for her family. The only other alternative was to stay at the three bedroom house of her brother-in-law and his wife and two children. Even if they could reside there on an emergency basis, she would have to drive each day from Bowie, Maryland to the children’s schools.

Other testimony was heard respecting the fitness of each party to have custody of the children. A Court Investigator’s report indicated that all of the children expressed a strong desire to live with their mother. The master refused to hear testimony pertaining to the merits of Mary’s suit for divorce. The master recommended that Mary be awarded pendente lite custody of the minor children and that John pay $1,000 per month child support, as well as pay the mortgage, taxes and insurance for the family home.

The master also recommended that Mary be awarded pendente lite use of the family home, the family personal property located in the home and the Dodge Dart, but recommended that Mary be denied temporary alimony and initial counsel fees. These recommendations were adopted by the circuit court on May ²⁴ 23, 1979, and its order specified that Mary was awarded the exclusive use of the family home. On May 24, 1979, an order was issued requiring John to show cause why he should not be held in contempt for failing to vacate the family home. In response to Mary’s petition to hold him in contempt, John raised the constitutional issues upon which he now appeals.

Following a contempt hearing, the circuit court (Mathias, J.) ruled that § 3-6A-06, on its face, does not violate the due process provisions of the federal and state constitutions, and does not sanction the unlawful taking of private property without payment of just compensation. On June 5, 1979, John vacated the family home. We granted certiorari prior to determination by the Court of Special Appeals of John’s appeal from the order of the circuit court. 3 I. 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 their interest must be given particular and favorable attention.’ ” (Emphasis added.) ²⁵ The statute changes Maryland law by empowering courts to distribute assets acquired during marriage through monetary awards, § 3-6A-05, and use and possession orders of certain property, § 3-6A-06. The legislation recognizes nonmonetary as well as monetary contributions to a family, § 3-6A-05(b) (1), and authorizes courts to equitably distribute property acquired during marriage, § 3-6A-05 (b) (9). The statute provides various factors to be considered in granting to a spouse with custody of a minor child use and possession awards of the family home and personal property used in the home. See generally, Comment, Property Disposition Upon Divorce in Maryland: An Analysis of the New Statute, 8 U. Balt.

L. Rev. 377 (1979). This case involves only those sections of the statute that pertain to pendente lite use and possession awards. Section 3-6A-06 is applicable to disposition of the family home and family use personal property. Definitions of the “family home” and “family use personal property” are provided in § 3-6A-01 (b) and (c), respectively.

The family home is defined as property in Maryland that: “(1) was used as the principal residence of the spouses when they lived together, (2) at the time of the proceeding is owned or leased by at least one of the spouses, and (3) is being used or will be used by at least one of the spouses and a minor child as their principal residence.” Excluded from this definition is property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by a valid agreement. The term “family use personal property” is defined to encompass: “tangible personal property, acquired during the marriage, owned by either spouse or owned jointly by both spouses, and used primarily for family purposes. It includes motor vehicles, furniture, furnishings, and household appliances.” This definition also excludes property acquired by inheritance ²⁶ or gift from a third party or property excluded by valid agreement. Section 3-6A-06 (a) directs that the family home and family use personal property should be disposed of in such a manner as to “permit the children of the family to continue to live in the environment and community which is familiar to them and to permit the continued occupancy of the family home and possession and use of family use personal property by a spouse with custody of a minor child who has a need to live in that home.” Section 3-6A-06 (d) provides for a preliminary determination as to the property which constitutes the family home and the family use personal property, and authorizes a court to exercise pendente lite powers over these types of property.

In exercising this authority, a court is directed by § 3-6A-06 (a) to consider the following factors: “(1) The best interests of any minor child; (2) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any portion of it as a dwelling place; (3) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any part of it for the production of income; (4) Any hardship imposed upon the spouse whose interest in the family home or family use personal property is infringed upon by an order issued under this section.” A temporary or a final order concerning the family home or family use personal property may not exceed a three-year period from the time an absolute or limited divorce or annulment is granted. § 3-6A-06 (e). There is no provision for a preliminary determination of the existence of grounds for a divorce. ²⁷ II. John argues that § 3-6A-06 (d) violates his right to procedural due process guaranteed by the Fourteenth Amendment of the federal constitution and Article 24 of the Maryland Declaration of Rights. He claims that he was deprived of the use of his home without a preliminary determination that Mary has grounds for a divorce.

Preliminarily, it should be pointed out that Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning, and that Supreme Court interpretations of the Fourteenth Amendment function as authority for interpretation of Article 24. Barry Properties v. Fick Bros., 277 Md. 15, 22 , 353 A.2d 222 (1976); Bureau of Mines v. George’s Creek, 272 Md. 143, 156 , 321 A.2d 748 (1974). Several issues are presented when analyzing a contention that a state has deprived one of his property without due process of law, see generally, Riger v. L&B Ltd. Partnership, 278 Md. 281, 288-89 , 363 A.2d 481 (1976), but before discussing these issues it should be made clear that John’s argument is based on a violation of procedural due process rather than substantive due process. Indeed, John makes no contention that the legislature acted arbitrarily in enacting the family hóme and family use personal property provisions contained in § 3-6A-06.

See Governor v. Exxon Corp., 279 Md. 410, 423-26 , 370 A.2d 1102 (1977), aff’d, 437 U.S. 117 , 98 S. Ct. 2207 , 57 L. Ed. 2d 91 (1978). The first prerequisite to raising a due process argument is that the action complained of must constitute “state” action. Jackson v. Metropolitan Edison Co., 419 U.S. 345 , 95 S. Ct. 449 , 42 L. Ed. 2d 477 (1974); Barry Properties v. Fick Bros., supra, 277 Md. at 22-23 . Next, the state action must result in a “deprivation” of the complainant’s interest, Fuentes v. Shevin, 407 U.S. 67, 84 , 92 S. Ct. 1983 , 32 L. Ed. 2d 556 (1972); Barry Properties v. Fick Bros., supra, 277 Md. at 23 ; and such interest must be a “property” interest within the meaning of the due process clause.

Goss v. Lopez, 419 U.S. 565, 576 , 95 S. Ct. 729, 737 , 42 L. Ed. 2d 725 (1975); Board of Regents v. ²⁸ Roth, 408 U.S. 564, 569-72 , 92 S. Ct. 2701 , 38 L. Ed. 2d 548 (1972); Fuentes v. Shevin, supra, 407 U.S. at 84 . Finally, if state action deprives one of a property interest, the court must balance the various interests at stake in order to determine the procedural due process which is constitutionally required under the circumstances. Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 494-96 , 96 S. Ct. 2308 , 49 L. Ed. 2d 1 (1976); Mathews v. Eldridge, 424 U.S. 319, 332-35 , 96 S. Ct. 893 , 47 L. Ed. 2d 18 (1976); Goss v. Lopez, supra, 419 U.S. at 577-80; Mitchell v. W. T. Grant Co., 416 U.S. 600, 604, 607, 610 , 94 S. Ct. 1895 , 40 L. Ed. 2d 406 (1974). It is clear that the remedy of § 3-6A-06 involves state action because it is created, regulated and enforced by the State.

See Barry Properties v. Fick Bros., supra, 277 Md. at 22-23 (mechanics’ liens involve state action). There appears to be no significant difference in the degree or type of state participation in § 3-6A-06 proceedings as compared with the statutes permitting seizure of property pendente lite that the Supreme Court has voided on due process grounds. See North Georgia Finishing, Inc. v. Di-Chem., Inc., 419 U.S. 601 , 95 S. Ct. 719 , 42 L. Ed. 2d 751 (1975) (garnishment); Mitchell v. W. T. Grant Co., supra (sequestration under a vendor’s lien); Fuentes v. Shevin, supra (replevin); Sniadach v. Family Finance Corp., 395 U.S. 337 , 89 S. Ct. 1820 , 23 L. Ed. 2d 349 (1969) (garnishment). Obviously, in voiding these statutes, the Court necessarily concluded that those prejudgment remedies sufficiently involved the state so as to activate due process protections.

Section 3-6A-06 effectively creates a right in one tenant to remove a cotenant from property owned by tenants by the entirety, and thereby totally entangles the State in § 3-6A-06 pendente lite proceedings. The enforcement provision of the statute, § 3-6A-07 (a), states: “An order,