Broseus v. Broseus

• Decision Date: 06 March 1990
• Docket Number: No. 999,999
• Parties: Roger BROSEUS v. Isadel L. BROSEUS. Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 183

82 Md.App. 183

570 A.2d 874

Roger BROSEUS v. Isadel L. BROSEUS.

No. 999 Sept. Term 1989.

Court of Special Appeals of Maryland.

March 6, 1990.

Jennifer Evans, Rockville, for appellee.

Argued before ALPERT, ROSALYN B. BELL and WENNER, JJ.

ROSALYN B. BELL, Judge.

This over-priced tragedy from the Circuit Court for Montgomery County raises seven issues, one of which has two parts. We conclude that all of the issues are devoid of merit and affirm.

Roger and Isadel Broseus were married on May 2, 1970. They are the parents of one child, Alexandra, who was born on August 22, 1981. Until the parties separated on July 30, 1985, the family lived together in a three-bedroom home which they owned in Gaithersburg. The home was fully furnished and contained many items acquired during the marriage. From April, 1986, when he obtained pendente lite relief, to the present day, the family home has been occupied by Dr. Broseus.

Roger Broseus, Ph.D., was aged 46 and in good health at the time of trial on May 15 and 16, 1989. He was a commissioned officer in the Public Health Service, assigned to the National Institutes of Health. Dr. Broseus had been employed by the Public Health Service since January, 1970. His salary at the time of the trial was $56,411.52 per year, $11,627.52 of which was nontaxable as housing and subsistence allowances. He ordinarily received annual cost of living increases, benefits, and direct medical and dental care coverage for himself and his family.

Isadel Broseus was aged 43 at the time of trial. She was educated in the Philippines where she had obtained a bachelor's degree in medical sciences in 1965. Prior to the parties' separation, she had not been employed since 1977. Following the separation, she obtained a part-time job; she initially earned $4.75 per hour, then $6.00 per hour. Since August of 1988, she has been a liaison between a laboratory and physicians at Providence Laboratory Associates with an annual salary of $19,674. She has only minimal benefits associated with her employment. Although in good physical health at the time of the trial, Ms. Broseus was under regular psychiatric care which the court had ordered her to continue in the interests of the minor child. With the divorce, her insurance coverage under Dr. Broseus' plan would terminate.

This litigation began after Dr. Broseus took the minor child and left Ms. Broseus on July 30, 1985. Dr. Broseus obtained legal custody of Alexandra by court order on October 15, 1985. In March of 1986, he obtained pendente At that December, 1986 hearing, the Master recommended that Ms. Broseus be awarded custody and other relief, including, but not limited to alimony and child support. ¹ Dr. Broseus took exceptions and hearings were held in November of 1988 on the custody, visitation and ongoing use and possession of the family home. Further hearings were held in May of 1989 on the financial and property issues.

                lite custody and use and possession of the family home;  and Ms. Broseus was required to relinquish her use and possession of the family home.   At the time of the trial, she lived in a sparsely furnished efficiency apartment with a monthly rent of $485.   She used public transportation and cabs because her car was repossessed when the payments were not made.   Following a hearing before the Master for Domestic Relations in December, 1986, the Master found that Dr. Broseus had deserted Ms. Broseus and recommended that she be divorced on the grounds of desertion.   She obtained that divorce in May of 1989
                

After the November, 1988 hearings, Dr. Broseus was granted custody of the minor child. Ms. Broseus, however, was awarded liberal visitation amounting to approximately 48 percent of Alexandra's time. Ms. Broseus provided support beyond mere food and shelter to Alexandra during the periods of her physical custody. On May 15 and 16, 1989, a further hearing was held before the Chancellor on Dr. Broseus' Exceptions to the Master's Report and Recommendations on all financial issues pending in the case. At the conclusion of the hearing on May 16, 1989, the Chancellor made a number of rulings. The Chancellor entered Judgment of Absolute Divorce on May 25, 1989 consistent with these rulings. From this judgment, Dr. Broseus has appealed, contending the Chancellor erred:

I. by denying Dr. Broseus contribution for all payments made by him relating to the mortgage on the marital home since the date of separation;

II. by abusing his discretion in awarding indefinite alimony to Mrs. Broseus;

III. in increasing the amount and duration of alimony to be paid by him since Ms. Broseus did not except to the Master's Report and Recommendations;

IV. in abusing his discretion in awarding $5,000 in attorney's fees to Ms. Broseus and denying the claim for attorney's fees made by Dr. Broseus;

V. in ordering Dr. Broseus to pay Ms. Broseus $2,000 representing the entire proceeds of the sale of the automobile owned jointly by the parties;

VI. (a) in overruling Dr. Broseus' Exception to the Report and Recommendations of the Master on the value of the pension when the time between the evidentiary hearing before the Master and the Chancellor's award was approximately 30 months;

VI. (b) in overruling Dr. Broseus' Exception to the Report and Recommendations of the Master as to the pension but, nevertheless, modified the Master's recommendation by increasing Ms. Broseus' rights in that pension;

VII. in failing to award any child support to Dr. Broseus.

Ms. Broseus, although she filed no cross-appeal, seeks sanctions under Rule 1-341 for the filing of the appeal.

CONTRIBUTION

Appellant made the mortgage payments on the family home from July, 1985 through the time of trial in May, 1989. Appellee contributed no funds to those payments, but did not live there after April, 1986. Appellant seeks contribution for his payments on account of the mortgage. He asserts that, "[a]bsent a finding of ouster or the existence of an agreement between the parties, the Chancellor was required to make an award of contribution to the Appellant." He cites no authority for this statement. To In Spessard v. Spessard, 64 Md.App. 83, 95-96, 494 A.2d 701 (1985), in discussing contribution where one party left the home ostensibly after being battered, we said:

the extent he suggests "the Chancellor was required" to make such an award, we hold the assertion is misleading and a misstatement of the law. ²

"We point out, as we have before, that the chancellor is not required to place the parties in a position of monetary equality.... The chancellor is not precluded from allowing reimbursement to a spouse for maintaining tenancy by the entireties property nor must he require that the spouse out of possession contribute a proportionate share of the payments. Depending on the circumstances, requiring contribution could create the very inequity which the Act was designed to prevent. Hence, the test involves whether the total disposition is equitable." (Citation omitted.) (Footnote omitted.)

Between tenants by the entirety, the entitlement to contribution is an equitable matter and not a matter of right and is within the sound discretion of the trial court. Wassif v. Wassif, 77 Md.App. 750, 766, 551 A.2d 935, cert. denied, 315 Md. 692, 556 A.2d 674 (1989); Spessard, 64 Md.App. at 90, 494 A.2d 701. We find no abuse of that discretion in this case.

Clearly the nature of the Marital Property Act was remedial and the Act should be liberally construed. Harper v. Harper, 294 Md. 54, 64, 448 A.2d 916 (1982). Contribution is a factor that may be considered in making a Further, since the parties were married during the time appellant made those payments, they were made from marital funds and contribution was not mandated. Prahinski v. Prahinski, 75 Md.App. 113, 141, 540 A.2d 833, cert. granted 313 Md. 572, 546 A.2d 490 (1988). If the payments had been made out of or directly traceable to nonmarital funds, the issue would be viewed from a different posture. That was not the case. These payments were admittedly The Chancellor granted a three-year use and possession award to appellant, and ordered him to bear the cost of the mortgage, any indebtedness related to the property, the cost of maintenance, insurance, assessments and taxes. He further ruled that, upon expiration of the use and possession order, the property be evenly divided with no contribution or offset. He ordered the payments be made by appellant in accordance with § 8-208(c), which permits the allocation of financial obligations, and the ultimate partition and division of the proceeds under § 8-202. The right to direct who shall bear the burden of the costs of the property and the right to determine alimony, child support and a monetary award of necessity includes the right to establish whether any right to contribution will flow from the fulfilling of that obligation to pay the costs. For the reasons already stated, we see no error of law or abuse of discretion by the Chancellor in the instant case.

                monetary award in accordance with Property Disposition in Annulment and Divorce, Md.Fam. Law Code Ann. §§ 8-201 et seq.  (1984 & 1989 Cum.Supp.). 3  While the Chancellor may consider the issue of contribution, the Chancellor may or may not consider contribution in making a monetary award.   In the instant case, the Chancellor found that it was unreasonable for appellant to expect reimbursement for his payments on their joint obligation as he was receiving the benefit of the use of the residence and since appellee's standard of living was considerably lower than his.   We concur.   Appellant makes no claim that the expenses of the house exceeded the value of use of the premises, and the record indicates no basis on which to make such an argument.   Several reasons appear that would support the Chancellor's decision to reject any award of contribution:  (1) the payments from July 1985 through March 1986 constituted support to

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