Bangs v. Bangs

• Decision Date: 01 September 1983
• Docket Number: No. 1058,1058
• Citation: 59 Md.App. 350,475 A.2d 1214
• Parties: Herbert Pancoast BANGS v. Antonina K. BANGS. ,
• Court: Court of Special Appeals of Maryland

Page 350

59 Md.App. 350

475 A.2d 1214

Herbert Pancoast BANGS v. Antonina K. BANGS.

No. 1058, Sept. Term, 1983.

Court of Special Appeals of Maryland.

June 7, 1984.

William T. Kerr, Towson, with whom were Bregel & Bregel, Chartered, Towson, on the brief, for appellant.

Ann M. Turnbull, Baltimore, with whom were Frank, Bernstein, Conaway & Goldman, Baltimore, on the brief, for appellee.

Argued before MOYLAN, GARRITY and BLOOM, JJ.

BLOOM, Judge.

The Circuit Court for Baltimore County granted the appellee, Antonina Bangs, a divorce a vinculo matrimonii from the appellant, Herbert Pancoast Bangs, on the ground of voluntary separation. The court also awarded appellee custody of the parties' minor child, alimony, child support, a monetary award which included part of appellant's pension as he receives it, and counsel fees.

In this appeal, Mr. Bangs has launched a multi-pronged attack on the decree. He presents a total of nine issues in his brief, the first eight of which relate to the propriety of the monetary award and the ninth to the award of alimony. He will prevail on none of them.

Facts

The parties were married on February 28, 1970. On August 12, 1971, the husband's mother made a gift to him of an undivided interest in real estate by conveying her home to herself and him as joint tenants. The property, then unencumbered, was valued at $37,500. Shortly thereafter, the husband and his mother borrowed $25,000, secured by a mortgage on the jointly owned property, and built a second, smaller house on the property. The husband's mother then lived in the newer house, referred to by the parties as the "small house"; and the parties occupied the original house, referred to as the "large house." During their marriage, the parties used $8,740 of marital funds to make payments on the mortgage. They also made improvements to the large house. At trial, the wife testified that the kitchen was redesigned, a wall was built in the living room, and a new bathroom was added, all at a cost of between $5,000 and $8,000. In addition, she testified that a new closet system was installed at a cost of several hundred dollars and that landscaping was done at a cost of $4,000.

A fire on June 25, 1979, destroyed the large house and all of the couple's personal property. They received $151,721.89 in insurance proceeds after the fire and before their separation. Of that total, $95,613 was for destruction of the house and $53,092 was for loss of the contents. Payment of the insurance proceeds was received in checks payable to the parties jointly. The checks were endorsed and deposited in a money market account titled in the husband's name. It is undisputed that the entire amount of $95,613 received by reason of damages to the building was spent by the husband in reconstructing the large house. What happened to the $53,092 received for loss of the contents, however, was the subject of considerable controversy. The husband asserted that much of that money was "spent for or on behalf of [the wife]." She, on the other hand, while agreeing that some of the money was spent on her behalf, denies that such expenditures were to the extent alleged by the husband. It was undisputed that a total of $120,000 was spent in rebuilding the large house. Since the home insurance proceeds totaled $95,613, about $25,000 over and above that amount was spent in the reconstruction. The husband claimed that "the additional monies [were] provided from 'contents money and salary,' but principally from contents money."

After the fire, the parties lived at first in a hotel and then later in a trailer located on the property. In late June 1980, the husband moved out of the trailer and into the small house with his mother. He later began living with another woman in a motel. Eventually, he and his girlfriend then moved into the reconstructed large house upon its completion.

In addition to granting appellee a divorce, the decree ordered appellant to pay appellee $350 per month in alimony and $300 per month in child support. Appellee was granted a monetary award of $32,900 plus a future sum or sums of money equal to a fractional share of appellant's retirement pension if, as and when he receives it. The fractional share payable to appellee out of each pension payment appellant receives is: one-half of a fraction of which the number of years and months of the marriage (12 years, 7 months) is the numerator and the total number of years and months of employment credited toward retirement is the denominator:

1 Twelve years and seven months of marriage

- X -----------------------------------------

2 total years of employment

If appellant voluntarily takes his pension as a lump sum, either before or after retirement, then, upon receipt of that lump sum, he must pay to appellee the sum of $22,500 plus simple interest thereon at the rate of 10 percent per annum from July 1, 1983, to the date of payment.

I. Monetary Award

The Maryland General Assembly enacted the Property Disposition in Divorce and Annulment Act, Md.Cts. & Jud.Proc.Code Ann. §§ 3-6A-01 through 3-6A-07, in 1978 "to protect the interests of spouses who had made nonmonetary contributions to the marital residence." Harper v. Harper, 294 Md. 54, 63, 448 A.2d 916 (1982). The statutory provisions which are relevant to our inquiry are §§ 3-6A-01(e) and 3-6A-05(a)(1), (b), and (c).

Section 3-6A-01(e) provides:

(e) Marital Property.--"Marital Property" is 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 traceable to any of these sources.

(Emphasis added).

Section 3-6A-05(a)(1) provides in pertinent part that "[i]n granting an absolute divorce or annulment ... the court shall determine which property is marital property if the division of property is an issue."

Section 3-6A-05(b) and (c) provide:

(b) The court shall determine the value of all marital property. After making the determination, the court may grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. The amount of the award and the method of its payment shall be determined after considering each of the following factors:

(1) The contributions, monetary and nonmonetary, of each party to the well-being of the family;

(2) The value of all property interests of each spouse;

(3) The economic circumstances of each spouse at the time the award is to be made;

(4) The circumstances and facts which contributed to the estrangement of the parties;

(5) The duration of the marriage;

(6) The age and the physical and mental condition of the parties;

(7) How and when specific marital property was acquired, including the effort expended by each party in accumulating the marital property;

(8) Any award or other provision which the court has made under this Subtitle 6A with respect to family use personal property or the family home, and any award of alimony; and

(9) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award. (c) A monetary award made under this section may be reduced to a judgment to the extent that any part of the award is due and owing.

Section 3-6A-05, therefore, directs the chancellor to embark upon a three-step process, see Harper, 294 Md. at 79, 448 A.2d 916, and Ward v. Ward, 52 Md.App. 336, 339, 449 A.2d 443 (1982): (1) If a party seeks an equitable adjustment beyond the distribution of the parties' property in accordance with its legal title, the chancellor shall determine which property is marital property; (2) the chancellor must then determine the value of all marital property; and (3) the chancellor may then make a monetary award as an adjustment of the parties' equities and responsibilities, whether or not alimony is awarded. If the chancellor determines that a monetary award is to be given, he must then consider each of the nine factors found in § 3-6A-05(b) in determining a fair and equitable amount and the method of its payment.

In the instant case, the parties agreed, and the chancellor consequently found, that the real property, improved with the two houses, had a value of $156,000 at the time of trial. The chancellor then determined that since appellant had only a one-half undivided interest in the property that interest had a value of $78,000. At the time of trial, the property was subject to a mortgage balance of $16,260. Subtracting half of that figure from appellant's $78,000 interest, the chancellor determined that appellant's equity in his one-half undivided interest was approximately $70,000.

The parties also agreed that the property was worth $37,500 at the time that appellant and his mother took title to it as joint tenants. Therefore, appellant's initial nonmarital ¹ contribution toward the acquisition of the property was one-half of $37,500 or $18,750. The chancellor then determined that the parties, as a marital unit, contributed $18,750 to the property. That determination was based on the mortgage payments of $8,740 made by the marital entity and the value of the improvements they had made to the house and grounds. The chancellor thus determined that the husband's undivided one-half interest in the property was one-half marital and one-half nonmarital property. Consequently the husband's nonmarital interest in the property was worth $35,000 (one-half of $70,000) and the marital interest was also worth $35,000. The chancellor then decided to award one-half of the marital interest, $17,500, to the wife

because I'm convinced that the marriage relationship was such that it was a 50/50 partnership and that the non-monetary contributions that she made were equal to the monetary contributions--the monetary and non-monetary...