Court v. Court

• Decision Date: 01 September 1985
• Docket Number: No. 179,179
• Citation: 67 Md.App. 676,509 A.2d 693
• Parties: . ,
• Court: Court of Special Appeals of Maryland

Page 676

67 Md.App. 676

509 A.2d 693

Kenneth E. COURT v. Marie A. COURT.

No. 179, Sept. Term, 1985.

Court of Special Appeals of Maryland.

June 4, 1986.

Katherine K. Cawood, Annapolis, for appellant.

Paula J. Peters, Annapolis, for appellee.

Argued before MOYLAN, WILNER and GARRITY, JJ.

GARRITY, Judge.

The Circuit Court for Anne Arundel County (Heise, J.) granted the appellant, Kenneth E. Court, an absolute divorce from Marie A. Court, appellee, on the grounds of voluntary separation. Mrs. Court was awarded temporary alimony, custody of the parties' minor children, possession and use of a house in which the family once lived, and a monetary award of approximately $33,000. Mr. Court challenges the court's designation of the family home and various facets of the monetary award. He presents the following issues for our review:

1. Whether the trial court erred in its determination that a property, which was not the principal residence of the spouses when they last lived together, was the "family home" and the proper subject of a use and possession order.

2. Whether the trial court erred by including as marital property real estate conveyed by the husband before the date of the filing for divorce when such property was conveyed for fair value.

3. Whether the trial court erred in making a marital award when it did not include all the marital property.

4. Whether the trial court erred in failing to consider that part of the marital property was obtained after separation by the sole efforts of the husband.

5. Whether the trial court improperly considered fault in determining the monetary award.

Facts

Kenneth and Maria Court were married at Bridgetown, Barbados in 1968. Maria, a former Greek citizen, had been a tour guide in her native Greece when she met Kenneth, who was then on a sailing expedition around the world. After their marriage, the parties took up residence in Anne Arundel County, where Mr. Court worked as an engineer for Westinghouse. The Courts had two children, Mimi Eleni, born July 12, 1971, and Christina Maria, born September 9, 1974. The couple experienced few marital difficulties until Kenneth decided to resign from his job and embark on another sailing expedition. In 1980, he contracted to sail a yacht from Turkey to Annapolis via Gibraltar and the West Indies. The voyage commenced in July of 1980 and ended in May of 1981.

Since 1975, the Courts lived in a house they had purchased on Conduit Street in the heart of Annapolis. Because of financial difficulties that resulted from Mr. Court's sailing plans, however, the family moved to their summer cottage in the southern part of Anne Arundel County for the duration of Mr. Court's voyage. The idea was that the Conduit Street house could be leased and the income used to pay a portion of the family's expenses until Mr. Court returned from sea. Besides, the cottage, known as "Atholl", was less burdensome financially, since it was part of a twelve-acre tract owned by Mr. Court's parents. They had conveyed to their son a one-seventh undivided interest in their "guest house" (Atholl) after Maria and Kenneth were married.

When Mr. Court returned from sea he called his wife upon docking in North Carolina and, in response to questions, advised her that he had been having an affair with a 22-year-old female crew member from France whom he wanted to bring home with him. He was swiftly dissuaded from this arrangement. Although Mr. Court returned to the Atholl property to live with his family, the marriage soon began to deteriorate. Mrs. Court took up separate residence on October 1, 1982. By agreement between the parties, Mrs. Court subsequently leased a house approximately one and a half miles from "Atholl" and the children took up residence with her in April, 1983. Following the court's decree, however, Mrs. Court and her daughters moved back into the house located in Annapolis pursuant to an award of its possession and use for the maximum statutory period of three years.

I. The Family Home

The record reflects that a few years after the Courts moved to Anne Arundel County, where they had intended to establish permanent residency, they purchased a large house near the waterfront in Annapolis on Conduit Street. According to Mr. Court, who at the time was a staff engineer for Westinghouse with a salary of $30,000 per year, "We were always land poor. One of the things that Maria thought was important, and I concurred with her, was to buy a big house that considerably extended our means. And that was the house on Conduit. Our fall back was always that we could rent it and move to the cottage."

When Mr. Court decided to terminate his employment and return to sea in the summer of 1980, Mrs. Court and the couple's daughters, who were then aged 6 and 9, moved to the cottage located near Galesville. Mr. Court testified that the reason for the move was to enable the parties to lease the Conduit Street house so that mortgage payments on it could be met while he was sailing from Turkey to the United States. Mrs. Court testified that as the couple "did not have any money" at the time, she thought that her husband "was not going to go" on the trip. In essence, as the chancellor found, "she moved only for her husband's convenience."

When Mr. Court returned from sea after nearly a year, Mrs. Court testified that she intended to move back to the Conduit Street house, which in the meantime had become vacant, but that her husband had placed it on the market for sale. In order to stop such a transaction, to which she strenuously objected, Mrs. Court wrote a note to her husband confirming a rental agreement that he had already executed with a third party. The note clearly recited her confirmation of the lease on the basis that she was "not interested in selling the house." The refusal by Mr. Court to move back into the Conduit Street house upon his return from sea proved to be the coup de gras as far as Mrs. Court was concerned. She took up separate residence a month later.

Mr. Court places strong reliance on the fact that the Conduit Street residence had been rented-out from the time he left for sea until the hearing, a period of four years. He argues that the confirmation of the rental agreements not only excluded the Conduit Street property from consideration as the family home, but avers that because of such rentals, the house lost its environmental continuity in relation to his children and, therefore, lost its qualification as the family home. We disagree.

Fam.Law (1984) § 8-201(c) defines "family home" as property in this State that:

(i) was used as the principal residence of the parties when they lived together;

(ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and

(iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.

(2) "Family home" does not include property:

(i) acquired before the marriage;

(ii) acquired by inheritance or gift from a third party; or

(iii) excluded by valid agreement.

The house on Conduit Street in Annapolis was purchased, renovated, and then used by the Courts as their principal residence without interruption for approximately five years. Although we do not here pass upon the judgment of Mr. Court to resign from his job and return to sea, because of the financial straits of the family that decision required the house on Conduit Street to be either sold or leased to a third party. The Courts decided to lease the house, maintain mortgage payments with the proceeds, and move to their summer cottage. Although Mr. Court attempted to sell the Conduit Street house shortly after his return from sea, it is clear that the couple had originally viewed the move to the cottage as a temporary stop-gap measure. It is also clear to us that under the circumstances, Mrs. Court's subsequent confirmation of an executed rental agreement in no way was intended by her to act as an agreement to exclude the house from consideration as the family home under § 8-201(c)(2)(iii). Quite to the contrary, her very purpose was to preserve and maintain its viability to be used again as the family home.

In satisfaction of the statutory definition of "family home", which includes factors to be considered in a conjunctive manner, we believe the evidence to be sufficient to show that the Conduit Street house in Annapolis 1) was used as the principal residence of the parties when they lived together; 2) was owned by both parties at the time of the hearing; and 3) will be used by Mrs. Court and the two minor children of the parties as their principal residence. Based on such evidence, we hold that the chancellor did not err in ruling that the Conduit Street house was the family home.

Possession and Use

The considerations required of a chancellor when awarding possession and use of a family home are set forth in Fam.Law § 8-208(b). The factors to be weighed include:

(1) the best interests of any child;

(2) the interest of each party in continuing;

(i) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it as a dwelling place (ii) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it for the production of income; and

(3) any hardship imposed on the party whose interest in the family home or family use personal property is infringed on by an order issued under ... this subtitle.

In harmony with the clear intent of the statute, when considering the award of possession and use of a family home, the interests of minor children of a disrupted marriage must be given particular and favorable attention so as to secure and maintain the highest degree of stability possible under the circumstances. Pitsenberger v. Pitsenberger, 287 Md. 20, 24, 410 A.2d 1052 (1980); cf. Kennedy v. Kennedy, 55 Md.App. 299, 462 A.2d 1208 (1983). The chancellor made the following findings:

The...