Abell v. Abell, 309

• Decision Date: 28 May 1971
• Docket Number: No. 309,309
• Citation: 277 A.2d 629,12 Md.App. 99
• Parties: Lucie Ann ABELL v. J. Frank ABELL.
• Court: Court of Special Appeals of Maryland

Page 99

12 Md.App. 99

277 A.2d 629

Lucie Ann ABELL v. J. Frank ABELL.

No. 309.

Court of Special Appeals of Maryland.

May 28, 1971.

Eugene E. Pitrof, Upper Marlboro, for appellant.

Oliver R. Guyther, Leonardtown, for appellee.

Argued before MORTON, ORTH and POWERS, JJ.

MORTON, Judge.

Under date of December 9, 1969, the Chancellor below signed a decree in which the wife, Lucie Ann Abell, appellant here, was awarded a divorce a vinculo matrimonii from her husband, J. Frank Abell, and given custody of two minor daughters with reasonable rights of visitation awarded to the husband. It was further decreed therein that the husband should provide reasonable support for the daughters 'and that the matter of alimony and support, the question of counsel fees, court costs, as well as the division of personal property jointly owned by the parties to this cause be held in abeyance for further determination by this Court.' Thereafter, on April 7, 1970, the Chancellor signed an order, accompanied by an opinion, providing for a division of the personal property of the parties and support for the two daughters. He did not award alimony to the wife or require the husband to pay her attorney's fees.

According to the findings of the Chancellor, the parties had been married approximately 32 years and had four daughters, two of whom were married and two of whom were 19 and 20 years of age, respectively, unmarried, and attending St. Mary's College of Maryland at the time of the hearing below. The husband entered the 'slot machine business upon their legalization and through the years had accumulated substantial property and a comfortable living for himself and his family. In June, 1968, the slot machines were outlawed and the financial success of the defendant waned and declined with their demise. Problems and difficulties in the marriage occurred prior to and after the outlawing of these machines.'

As a result of his business activities, the husband accumulated a substantial number of commercial enterprises and properties, largely tavern and restaurant facilities, had substantial holdings of corporate stocks and bonds and owned a number of race horses. According to a statement filed by him in the proceedings below, he had a net worth as of June 30, 1969, of approximately $300,000, based upon the following assets: coin machines valued at $15,000; automobiles and trucks valued at $8,000; stocks and bonds valued at $43,145.10; notes and mortgages receivable in the amount of $43,286.27; land, buildings and equipment valued at $209,511.63; and horses and equipment valued at $10,856.54. His total liabilities, according to the net worth statement, amounted to $50,554.63.

At the time of the hearing below the wife had a savings account in the amount of $28,598.89; 'cash on hand in excess of $20,000'; cash in two bank accounts in the amount of approximately $1,300 and shares of a bank stock valued at $12,100.

It was conceded that all of the husband's assets, both real and personal were jointly owned by the husband and wife, or intended to be jointly owned, with the exception of a $13,000 savings account in the husband's name, alone, which had been pledged to secure a $20,000 business loan.

The Chancellor ordered an equal division between the parties of the stocks and bonds listed in the husband's net worth statement at a value of $43,145.10, and the notes and mortgages payable to the parties which, according to the statement, were valued at $43,286.27. He awarded to the wife a 1967 Cadillac automobile and the furniture, fixtures and furnishings in the home of the parties which was occupied solely by the wife and the unmarried daughters-the husband living in an apartment over one of the restaurants owned by the parties.

The coin machines, trucks and horses were awarded to the husband. He was required to designate the wife as a one-third beneficiary in existing insurance policies on his life, the four children were to be designated as two-thirds beneficiaries and the husband was required to continue to pay the premiums. He was also required to pay the undergraduate college expenses for the two unmarried daughters, their medical and dental expenses, and each daughter was to receive a clothing allowance of $16.65 per week, $5.00 per week for spending money and $2.00 per day as a food allowance when living at home with the wife.

Among the contentions advanced by the wife in this appeal is the complaint that the division of the personal property by the Chancellor was 'totally inequitable.' It is asserted that 'the appellant acknowledges that such a division is within the sound judicial discretion of the Chancellor, but we contend that the Chancellor abused his discretion in this regard.'

Section 29 of Article 16, Md.Code, provides:

'Whenever a court shall grant a divorce a mensa et thoro or a divorce a vinculo matrimonii, it shall have the power to hear and determine all questions which may arise between the parties to such proceeding in connection with the ownership of personal property (except chattels real) held, possessed or claimed by either or both of them, and shall have the power to make a division of such property between them, or order a sale thereof and a division of the proceeds of such sale, or make such other disposition thereof as the court may deem proper. (An.Code, 1951, § 38; 1947, ch. 220.)'

The Court of Appeals in Lopez v. Lopez, 206 Md. 509, 112 A.2d 466, had occasion to construe this statute and in approving the refusal of the Chancellor to award to the wife a part of the husband's personal property, stated, at 517, 112 A.2d at 470:

'However, Section 38 (now § 29) of Article 16, as enacted by the Legislature in 1947, goes no further than to empower a court of equity, in decreeing a divorce, to determine the ownership of the personal property of the parties and to apportion the property accordingly.'

In the course of his opinion, the Chancellor below stated: 'Defendant has throughout the proceeding stated and reiterated that, except for a $13,000 savings account pledged as security for a bank loan, half of what he owns belongs to his wife, the complainant herein. After considering the recommendations of the parties and defendant's express intention as to the joint ownership of the property, this court has reached the following allocation of the presonal property.'

That the Chancellor in making the allocation was of the opinion that he had discretionary authority under § 29 to make division and distribution of the jointly owned property as he deemed to be fair and reasonable, without respect to ownership, is clear for, after citing the statute, he stated that 'the court believes that in view of the overall division of the property, the allocation is fair and equitable.' The statute, however, does not give discretion to a court of equity, sitting as a divorce court, to award the property of one spouse to the other. Any doubt in this respect is resolved by the Court of Appeals' recent holding in Gebhard v. Gebhard, 253 Md. 125, 252 A.2d 171, where Lopez was quoted with approval and the Court held that the Chancellor there had erred in awarding to the wife a part of the securities which were owned solely by the husband.

As stated in Gebhard, at 128-129, 252 A.2d at 173:

'The law is well established in this state that, as was said by Chief Judge Brune for this Court in Brucker v. Benson, 209 Md. 247, 121 A.2d 230 (1956):

'An equity court in this State, when sitting as a divorce court, does not sit in the exercise of its ordinary chancery jurisdiction and 'has no power, unless conferred by the Legislature, to transfer the property of either spouse to the other, or otherwise to dispose of it.' Dougherty v. Dougherty, 187 Md. 21, 32, 48 A.2d 451; Schwartzman v. Schwartzman, 204 Md. 125, 102 A.2d 810; Lopez v. Lopez, 206 Md. 509, 112 A.2d 466.' Id. at 250, 121 A.2d at 232.'

We are unaware of any legislative authority empowering our courts of equity, when sitting as divorce courts, to transfer the property of one spouse to the other or otherwise to dispose of it. ¹ Thus, having found that the personal property was owned equally by the parties, the Chancellor was powerless to do anything more under the terms of § 29 than to make an equal division between the parties of the jointly owned property or, in the alternative, to order a sale of the property or such part thereof deemed necessary to effectuate an equal division, and to order the proceeds of sale to be equally divided between the parties.

Here, it is apparent that the Chancellor adhered to the provisions of the statute in awarding an equal division of the stocks and bonds and the notes and mortgages. It is equally apparent, however, that he exceeded...