Brucker v. Benson, 89

• Decision Date: 07 March 1956
• Docket Number: No. 89,89
• Parties: Beulah Gent Benson BRUCKER v. Lysle K. BENSON.
• Court: Maryland Court of Appeals

Page 247

209 Md. 247

121 A.2d 230

Beulah Gent Benson BRUCKER v. Lysle K. BENSON.

No. 89.

Court of Appeals of Maryland.

March 7, 1956.

Jerome B. Wolff, Baltimore (William S. Brucker, Towson, on the brief), for appellant.

James C. L. Anderson, Towson, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

This is the second phase of this case to come before this Court. In Benson v. Benson, 204 Md. 601, 105 A.2d 733, it was held that the wife, who was the appellant then as well as now, was entitled to a divorce a vinculo matrimonii on the ground of voluntary separation for a period of more than three years. Upon remand of the case a decree of divorce was entered on July 22, 1954. On August 19, 1954, the wife filed a petition, which gives rise to her present appeal, in which she sought a monetary decree against her former husband in lieu of, or in satisfaction of, claims based upon the purchase of personal property with funds furnished by herself and by her former husband, in approximately equal amounts, during their married life together. This appeal is from an order or decree dismissing her petition and from rulings on interrogatories propounded by her and from the trial court's refusal to permit her to amend her petition. (The title of the present case is explained by the fact that since the divorce the former Mrs. Benson has remarried.)

Her petition alleged that during the period of slightly more than five years (July 1, 1944 to July 30, 1949) when the parties had lived together as husband and wife, they acquired 'substantial personal property in the form of farm equipment, Government Savings Bond, automobile, furniture, electrical appliances, livestock and other miscellaneous property, including wedding presents, with a value of approximately $7,000.' The petition further alleged that the wife contributed approximately equally with the husband to the purchase of this personal property and that her earnings amounted to about $9,500 and and his to about $11,200 during the above period. Her petition also asserted that she had 'received no portion of the mutual personal property either in kind or equivalent value' and that the husband has enjoyed the possession and use of the property since July 30, 1949. The wife sought a monetary decree for $3,500 as her share of mutual personal property.

I. Basis for Wife's Claim to Personal Property.

The legal basis for the appellant's petition must be considered. Though the appellant's brief asserts that her claim is based upon Code 1951, Article 16, Section 38, we note that the relief prayed is in terms which would have been much more appropriate if the cash had involved property owned by the wife at the time of the marriage and had fallen within that clause of what is now Code 1951, Article 16, Section 34, which provides that in any case in which a divorce is decreed, the court may 'award to the wife such property or estate as she had when married, or the value of the same, or of such part thereof as may have been sold or converted by the husband * * * or such part of any such property as the court may deem reasonable'. Since the wife's claim here is based upon her earnings subsequent to the date of the marriage which she says were applied to the purchase of personal property during the marriage, that statute is clearly not applicable.

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, 457; Schwartzman v. Schwartzman, 204 Md. 125, 102 A.2d 810; Lopez v. Lopez, 206 Md. 509, 112 A.2d 466.

Any rights in personal property to which the wife may be entitled in this proceeding must rest upon Code 1951 Article 16, Section 38, enacted by Chapter 220 of the Acts of 1947, which reads as follows:

'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.'

In this case the appellant does not seek by her petition as filed to establish her ownership of, or claim to, personal property, nor does she seek the sale of any such property in order that the proceeds thereof may be divided. She seeks money--not tangible property--and she seeks it in an amount which she says is equivalent to her total contributions to a matrimonial, pooled fund used to buy personal property.

The manner of computing her claim and the theory of her petition as filed seem to have been substantially as follows: first, to show cash contributions to a pool fund which was to be used in part for the purchase of personal property and in part for improving the real estate which constituted the Benson home and farm; second, to approximate the respective contributions of the husband and wife to this pool; third, chiefly by deducting amounts expended from the pool for other purposes, to approximate the amount or balance supposedly paid out of it for the purchase of personal property; and fourth, because at the time of the separation she did not receive any of the personal property purchased with the pool funds, to charge her former husband with the full amount of her contributions to the fund which may have been applied to the purchase of personal property, regardless of the present ownership, value, or even existence, of such property. This would, upon divorce, convert all of her alleged contributions towards the personal property fund into demand deposits, repayable by the husband.

When pressed during the trial on the matter of depreciation, the appellant's counsel eventually conceded that an allowance should be made for depreciation. He suggested 50% on what he called 'the gross amount' and claimed 'about $2,000.' The basis for his estimate was straight line depreciation apparently at 20% a year for five years, which he averaged to two and one-half years over the five years of the parties' married life together. He ignored the five years following the separation.

Reverting for the moment to the 'demand deposit' theory, we may observe that the appellant's petition ignores the presumption of a gift, which was held to exist in such cases as Tyson v. Tyson, 54 Md. 35; Reed v. Reed, 109 Md. 690, 72 A. 414, and Nihiser v. Nihiser, 127 Md. 451, 96 A. 611. As was said in the Reed Case, 'A decree for divorce has no retroactive effect; per se, it does not legally restore the status quo of the parties before marriage, or annul their voluntary and legal acts during coverture.' 109 Md. 693, 72 A. 415.

Her petition also ignores whatever effect the gift to her of a substantial interest in the Benson farm may have had upon the financial pool arrangements.

We may note at this point that testimony as to amounts put into the fund, as to amounts expended for purposes other than the purchase of personal property and as to amounts alleged to have been expended for that purpose was both scanty and very indefinite. The appellant seeks to blame this vagueness in part on the rulings of the trial court on her interrogatories, to which we shall refer later. We find it unnecessary at this point to go into the vagueness of the testimony because there is a more fundamental weakness in the appellant's claim.

This is that such a monetary claim simply is not warranted by the terms of Section 38 of Article 16, which we regard as controlling. By its express terms, its operation is limited to the determination of questions arising between the parties in connection with the ownership of personal property held, possessed or claimed by either or both of the parties. How far these provisions might be invoked if fraud or...