Young v. Young

Moore, J., delivered the opinion of the Court. The parties to this appeal are a divorced couple who married each other when the wife was not yet divorced from her first husband. Two years after they learned the correct date of the wife’s decree, they remarried. In the interim, they had acquired a matrimonial residence as “tenants by the entireties.” Ten years after their remarriage, they were divorced.

The former wife thereupon filed a bill of complaint for the sale of the property in lieu of partition. The Circuit Court for Anne Arundel County (Childs, J.), after a hearing and the filing of a written opinion, entered a decree appointing trustees to sell the property. It was also ordered that the net proceeds of sale be divided equally but that the former husband’s share be increased by one-half of the amounts he expended for taxes, mortgage amortization and interest from the time of the divorce to the date of settlement under the judicial sale. For the reasons set forth, we affirm.

I Naomi and Paul Young first came to know each other in 1960 or 1961 when they were married to different spouses. They lived together in Baltimore County for a time and in the fall of 1963 they moved to 804 Geis Circle, Glen Burnie, Anne Arundel County, a single-family dwelling. Finally, on April 3, 1964, they were united in marriage in a civil ceremony at the Court House in Towson, Maryland. The application for marriage license, signed by Paul, described his own marital status as “divorced on April 15, 1963” and Naomi’s as “divorced on March 26, 1964.” The latter date, according to her testimony, was the day when she appeared before an examiner in the Circuit Court for Baltimore City in uncontested divorce proceedings which she had commenced against her first husband.

It was her understanding, she testified, that her decree of divorce was signed on the day of the hearing. After the marriage, on May 20, 1964, the parties acquired the leasehold and ground rent ²¹⁴ interests in the single-family dwelling in which they had been living. The recitals in the deeds stated that the property was conveyed to them “as tenants by the entireties, their assigns, the survivor of them and the survivor’s personal representatives and assigns. .. .” (Emphasis added.) In October 1964, Naomi received in the mail a communication from her attorney in the Baltimore City divorce proceedings, enclosing a copy of the final decree which was dated September 11, 1964. She testified that her husband was at home when this letter was received and that they were both “upset and excited.” Immediately contacting her attorney by telephone, she was told that her marriage to Paul was null and void and that they should be remarried.

Called as a witness, the attorney testified that although Naomi’s decree of divorce was supposed to have been signed in March 1964, her former husband had failed to pay the court costs and the entry of the decree was consequently delayed until September 11,1964.- Despite the knowledge of the invalidity of their marriage, the parties continued to live together in the marital abode as husband and wife. Each testified that neither felt impelled to participate in a second ceremony until August 12, 1966, when they were remarried 1 at the Court House in Towson. The relationship between them thereafter was marked by difficulties and discord. Paul’s three children by his former marriage lived with them, as did for a time Naomi’s child by her first marriage.

She also returned to work in 1967 at the Westinghouse Electronics Corporation where she was employed as an electronics operator, earning close to $3 per hour; and her employment was a bone of contention. The parties weathered periods of separation. She left the home for as long as three months in 1968 and six months in 1969. On or about November 15, 1972, their separation became permanent.

According to her testimony, living conditions became intolerable because of Paul’s temper. ²¹⁵ She testified: “We couldn’t get along at all and Paul was constantly raving and he was a beater and I just couldn’t take it any longer. ... He liked to beat on women.” 2 After her departure, she attempted, on one occasion, to return for some of her personal belongings but he prevented her from doing so. Naomi testified that Paul continued in the exclusive occupancy and use of the house after she left and that, as of a year later, he was living there with his three children, another woman and the latter’s two children. She maintained that the down payment on the house in the sum of $234 was made from their joint savings, that mortgage payments and improvements to the property were financed through their joint earnings and performed by their joint efforts but that she made no contribution to the mortgage payments, taxes and insurance after leaving him in 1972.

Paul, on the other hand, insisted that Naomi had made no contribution toward the purchase of the house, nor to the house payments and improvements, and that she spent all of her earnings on herself. In his answer to Naomi’s bill for a sale of the property, he asked the court to declare that she held “said real property in trust” and that she be required to reconvey it to him. These requests were grounded upon claims of fraud on the part of Naomi in connection with the parties’ first marriage — consisting of alleged false statements that she was then unmarried, willfully made to deceive Paul into acquiring the house as tenants by the entireties. On appeal, the former husband challenges the chancellor’s decree ordering the sale of the property and he posits four separate assignments of error. 3 In our judgment, upon a careful review of the record and the applicable law, the case ²¹⁶ reduces itself to two fundamental issues: (a) Under all the circumstances, what was the effect of the conveyance to Naomi and Paul as tenants by the entireties when they were not in fact married? and (b) If Naomi acquired an interest in the property, to what extent, if at all, should she be charged with contributions on account of taxes, improvements, mortgage amortization and interest payments upon a judicial sale?

II

At the time of the conveyance to the parties of the subject property “as tenants by the entireties” in 1964, they were not legally married. A tenancy by the entireties can be created only when the grantees stand in relationship of husband and wife at the time of the conveyance to them, and absent such a relationship, an attempt to create such tenancy must fail. 4 Lopez v. Lopez, 250 Md. 491, 510 , 243 A. 2d 588 (1968); Hutson v. Hutson, 168 Md. 182, 188 , 177 A. 177 (1935); Mitchell v. Frederick, 166 Md. 42, 48 , 170 A. 733 (1934). The subsequent marriage, or, as in this case, remarriage, of the grantees of real property does not convert their ownership into a tenancy by the entireties. Schwarz v. United States, 191 F. 2d 618, 621 (4th Cir. 1951); Lopez v. Lopez, supra, 250 Md. at 511 .

Clearly, however, a deed which is not effective to create a tenancy by the entireties is not a nullity, unless fraud is established. Hutson v. Hutson, supra. In the absence of fraud, the effect of the attempted conveyance to Naomi and Paul in 1964 as tenants by the entireties was to create either a joint tenancy or a tenancy in common. Section 2-117 of the Real Property Article of the Annotated Code of Maryland (1974) establishes a presumption against joint tenancy “unless the deed, . .. ²¹⁷ expressly provides that the property granted is to be held in joint tenancy.” Joint tenancies in Maryland are thus not favored legislatively but they are, of course, recognized and, in their creation, the words “joint tenants” or “joint tenancy” need not be used.

As Chief Judge Murphy of the Court of Appeals, specially assigned, stated in Gardner v. Gardner, 25 Md. App. 638 , 335 A. 2d 157 (1975), “the statutory requirement is only one of clear manifestation or intention and not of particular words.” Id. at 643 . See Alexander v. Boyer, 253 Md. 511 , 253 A. 2d 359 (1969); Register of Wills v. Madine, 242 Md. 437 , 219 A. 2d 245 (1966); Boyd v. Boyd, 24 Md. App. 497 , 332 A. 2d 328 (1975). The principal characteristic of a joint tenancy is the right of survivorship and the specific expression in a deed of such a right is “a clear indication of an intention to create a joint tenancy.” Gardner, supra, 25 Md. App. at 642 ; Mitchell v. Frederick, supra, 166 Md. at 47 ; cf. Donnelly v. Donnelly, 198 Md. 341 , 84 A. 2d 89 (1951). In the instant case, the right of survivorship was explicitly stated.

As previously noted, the deed recited that the grantors conveyed the property to “Paul Burton Young and Naomi Bertha Young, his wife, as tenants by the entireties, their assigns, the survivor of them. . . .” (Emphasis added.) The parties thus took title to the property as joint tenants and not as tenants in common. We reject Paul’s contention that there was fraud on the part of Naomi and that she held her interest under a constructive or resulting trust. The chancellor held that Paul had failed to prove fraud. This finding is not clearly erroneous.

Maryland Rule 1086. Indeed, we think the record abundantly supports his conclusion that, “The totality of the circumstances indicate the presence of good faith in [Naomi’s] actions;” and we are impressed with the court’s assessment of Naomi’s credibility in stating, “The sincerity of [Naomi’s] belief that she was once again free to remarry is not to be doubted.” Appellant’s reliance upon Schwarz v. United States, supra, and Hutson v. Hutson, supra, is misplaced. Both cases involved the fraudulent concealment