Gebhard v. Gebhard

• Decision Date: 07 April 1969
• Docket Number: No. 154,154
• Citation: 253 Md. 125,252 A.2d 171
• Parties: Karl Ten Eyck GEBHARD v. Ruby Price GEBHARD.
• Court: Maryland Court of Appeals

Page 125

253 Md. 125

252 A.2d 171

Karl Ten Eyck GEBHARD v. Ruby Price GEBHARD.

No. 154.

Court of Appeals of Maryland.

April 7, 1969.

Robert S. Bourbon, Silver Spring, for appellant.

Arthur Dale Leach, Hyattsville, (Sorrell, Paulson, Leach & Wilkinson, W. Byron Sorrell, Richard S. Paulson and George A. Wilkinson, Jr., Hyattsville, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.

SMITH, Judge.

The Circuit Court for Montgomery County granted the appellee (wife) a divorce a vinculo matrimonii from the appellant (husband). The husband appeals from that portion of the decree granting the wife one-third of certain stocks or bonds, all of the household furnishings and $525.00 per month alimony. The matter of household furnishings is now moot and is not pressed on appeal. We shall modify the alimony award and reverse that portion of the decree dealing with the securities.

The parties were married in Texas. They resided there for a number of years prior to moving to Maryland in 1965. The wife in her bill of complaint prayed 'that the property rights between the parties be settled and determined'.

There were stocks with a total value as of January 9, 1968, of $42,198.62 registered in the name of the husband as follows:

                Standard Oil of Calif.              60    shares      $3,780.00
                Texaco, Inc.                        53      "          4,418.875
                Tennessee Gas Transmission
                  Co.  (Tennaco)                    202      "          5,706.50
                Potomac Electric Power Co.         418      "          7,942.00
                Wellington Fund, Inc.             1222      "         15,886.00
                Wash.  Water Power Co.               50      "          1,175.00
                Cities Service Co.                   6      "            291.75
                Niagara Mohawk Power Co.            30      "            667.50
                American Tel. & Tel. Co.            42      "          2,331.00
                                                                    ------------
                                            TOTAL...............    $ 42,198.62
                

The wife claimed them to be joint property. The trial judge said:

'The wife was a complete homemaker to the point of doing all washing and ironing and all housework for the entire period of the marriage and, in addition, kept books and handled the home office of the husband. The accumulation of this personal property was in part from inheritance by the husband and in part from income to which the wife contributed both as homemaker and hostess, and as his secretary. The Court feels that she should, therefore, be entitled to one-third of said stocks, or their equivalent in cash on the current market. Real estate, both in Texas and in Virginia is also involved, but the Court has no authority to make any finding or distribution except as to ownership of personal property. (Art. 16, Sec. 29, Annotated Code of Maryland).'

The wife admits that she owned no property when she came to the marriage. She has not been employed during the marriage except in helping the husband in his employment. She does not claim that she made any cash contribution toward the purchase of the stocks. The husband testified that of the stocks above listed Standard Oil of California and Cities Service Co. were owned prior to marriage, Tennessee Gas Transmission Company was bought with money left to him by his father, and Potomac Electric Power Company, Wellington Fund, Inc., and A. T. & T. were gifts from his mother. The wife does not dispute this. In response to one question as to what assets she brought to the marriage she replied, 'I brought myself.' She was then asked if she brought any money or stocks and replied in the negative. She admitted that the stocks were registered in the name of the husband but states that she 'thought there was community property on stocks'.

I.

The wife urges upon us that since, as is admitted, the stocks were acquired while the parties resided in Texas that Texas law is applicable and under the community property law of that state she would have certain rights in the stocks. She served no notice, however, of reliance on Texas law. At oral argument the wife urged that since the husband had served notice of reliance on Texas law that this was sufficient. The husband's notice, however, was solely related to a provision of Texas law pertaining to remarriage after divorce.

In the absence of notice of intent to rely on foreign law pursuant to Code (1965 Repl.Vol.) Art. 35, §§ 47 to 53 or waiver of that requirement, the court was not required to notice judicially the law of Texas (nor are we, Maryland Rule 885), other than to presume it is like that of Maryland. Parkside Terrace Apartments, Inc. v. Lindner, 252 Md. 271, 273, 249 A.2d 717 (1969); Leatherbury v. Leatherbury, 233 Md. 344, 348, 196 A.2d 883 (1964); Hogan v. Q. T. Corporation, 230 Md. 69, 73-74, 185 A.2d 491 (1962); Alexander v. Hergenroeder, 215 Md. 326, 330, 138 A.2d 366 (1958).

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.

The jurisdiction of the trial court comes from Code (1966 Repl.Vol.) Art. 16, §§ 25 and 29. Section 25 provides in pertinent part:

'* * * in all cases where a divorce is decreed, the court passing the same shall have full power to 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, having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court may deem reasonable * * *.'

Section 29 provides in pertinent part:

'Whenever a court shall grant 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.'

Comment on the latter section was made in Lopez v. Lopez, 206 Md. 509, 112 A.2d 466 (1955) by Judge Delaplaine:

'However, Section 38 of Article 16 (now Section 29), 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.' Id. at 517, 112 A.2d at 470.

In Lopez, supra, the wife claimed part of the personal property to which she had not contributed. She contended that since the husband was a bigamist, therefore obviously guilty of adultery, she was entitled to part of her husband's property because she had enabled him to acquire it by refraining from taking any legal action against him during a period of 17 years. This Court said:

'We agree that complainant cannot be regarded as a part owner of the property used by defendant in his business. While the Legislature has conferred upon each court of equity in the State the power to determine the ownership of personal property upon granting a divorce, the court obviously cannot...