Grant v. Zich, 39

• Decision Date: 01 September 1983
• Docket Number: No. 39,39
• Citation: 477 A.2d 1163,300 Md. 256
• Parties: Constance Yvonne GRANT, formerly Constance G. Zich v. Robert A. ZICH
• Court: Maryland Court of Appeals

Page 256

300 Md. 256

477 A.2d 1163

Constance Yvonne GRANT, formerly Constance G. Zich v. Robert A. ZICH.

No. 39 Sept. Term, 1983.

Court of Appeals of Maryland.

July 13, 1984.

Glenn M. Cooper and Mindy G. Farber, Chevy Chase (Paley, Rothman & Cooper, Chartered, Chevy Chase, on the brief), for appellant.

Alan D. Massengill, Gaithersburg (Alan D. Massengill, P.A., Gaithersburg, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

DAVIDSON, Judge.

The primary question presented by this case concerns whether a marital residence, purchased during marriage and titled as tenants by the entirety, constitutes marital property under Maryland Code (1974, 1984 Repl.Vol.) § 3-6A-01(e) of the Courts and Judicial Proceedings Article. The relevant statutory provisions are § 3-6A-01(e) and § 3-6A-05(a), (b), and (c).

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

" '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 directly traceable to any of these sources." (Emphasis added.)

Section 3-6A-05(a) provides in pertinent part:

"(a) In granting an absolute divorce or annulment ... the court shall determine which property is marital property if the division of property is an issue." (Emphasis added.)

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 non-monetary, 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." (Emphasis added.)

In 1968, the respondent/cross-petitioner, Robert A. Zich (husband), then unmarried, purchased a house in the District of Columbia (D.C. house). In November 1971, he married the petitioner/cross-respondent, Constance Yvonne Grant (wife). In December 1971, the husband sold the D.C. house. In February 1972, the parties purchased a marital residence located in Illinois (Illinois marital residence) that was titled as tenants by the entirety. Most of the funds used to purchase the Illinois marital residence were traceable to the proceeds from the sale of the husband's D.C. house--property acquired by the husband before marriage. Some of the funds used to purchase that residence were funds acquired by the wife before marriage. Subsequent mortgage payments were made from funds acquired by the parties during the marriage that had been deposited in joint bank accounts.

In November 1975, the Illinois marital residence was sold. Proceeds from that sale were used to purchase a marital residence in Potomac, Maryland (Maryland marital residence). The Maryland marital residence was titled as tenants by the entirety. Subsequent mortgage payments were made from funds acquired by the parties during marriage that had been deposited in joint bank accounts.

Thereafter, the parties experienced marital difficulties and voluntarily separated in March 1980. At about that time, the wife removed certain personal property from the Maryland marital residence. In January 1981, the Maryland marital residence was sold and the proceeds placed in escrow.

On 28 October 1980, in the Circuit Court for Montgomery County, the husband sued for divorce. He also sought a determination of the ownership of personal property under § 3-6A-03; ¹ a determination of the ownership of real property under § 3-6A-04; ² and a monetary award under § 3-6A-05. In her answer, the wife sought a divorce. She also sought a determination of the ownership of personal property; a determination of the ownership of real property; a monetary award; and alimony.

At trial, the wife disclaimed ownership of a part of the personal property that she had removed from the Maryland marital residence by conceding that that part belonged to the husband. Subsequent to the trial, the husband filed "Proposed Findings of Fact and Conclusions of Law" in which he stated that he was "willing to waive any interest he may have in all of the personal property [the wife] took control of."

In a written memorandum, the trial court, insofar as here relevant, initially determined the ownership of certain personal and real property. With respect to the personal property removed by the wife from the Maryland marital residence at the time of separation, the trial court said:

"[The husband] has filed with his Proposed Findings of Fact and Conclusions of Law a suggested distribution of assets and value in which he states that he is willing to waive any interest he may have in all of the personal property [the wife] took control of except for several personal items that [the wife] now admits belong to him. This suggestion greatly simplified the otherwise item by item decision the Court would have to make and the obvious necessity to order the sale of jointly owned personal property. [The wife] obviously desired to have the personal property as evidenced by her taking possession and control of it.... The Court accepts these proposals and has considered them in the Decree entered."

With respect to the proceeds from the sale of the Maryland marital residence, the trial court said:

"[B]ecause the home from which these proceeds were derived was owned by the parties as tenants by the entirety, each party owns a one-half interest...."

The trial court then said:

"The husband has argued that he is entitled to an additional monetary award from the wife pursuant to Section 3-6A-05(b) of the Courts and Judicial Proceedings Article of the Code. After carefully considering each of the statutorily delineated factors in the context of this case, this Court is in agreement and will therefore grant the husband a monetary award as an adjustment of the equities and rights of the parties."

In determining the amount of the monetary award, the trial court considered the factors delineated in § 3-6A-05(b), including the fact "that the husband was the principal source of funds used to acquire the [Maryland marital residence], the major asset owned by the parties...." However, before determining the amount of the monetary award, the trial court did not characterize the property of the parties as either marital or nonmarital as required by § 3-6A-05(a). Nor did the trial court determine the value of all marital property as required by § 3-6A-05(b).

On 21 December 1981, the trial court entered an order granting the husband an absolute divorce. Among other things, the trial court awarded the wife "[t]he sole ownership of all tangible personal property in her possession ..." and "one half of the proceeds from the sale of the [Maryland marital residence] ..."; granted the husband "one half of the proceeds from the sale of the [Maryland marital residence] ..." and a monetary award in the amount of $55,000; and denied the wife an award of alimony.

On 18 January 1982, the wife appealed to the Court of Special Appeals. Grant v. Zich, 53 Md.App. 610, 456 A.2d 75 (1983). On 23 July 1982, before that appeal was decided, this Court decided the case of Harper v. Harper, 294 Md. 54, 448 A.2d 916 (1982). There, we explicated the three-step process to be followed when granting a monetary award pursuant to § 3-6A-05. We expressly stated that when granting such an award, the trial court is required

"to determine the extent to which the property and the marital residence are to be characterized as nonmarital or marital; to determine the value of the marital property; and to make an equitable distribution of the value of the marital property with due regard being given to all of the relevant factors." Harper, 294 Md. at 82, 448 A.2d at 930.

Additionally, we held that in characterizing property as nonmarital or marital under § 3-6A-05(a), "the appropriate analysis to be applied is the source of funds theory." Harper, 294 Md. at 80, 448 A.2d at 929.

On 3 February 1983, the Court of Special Appeals decided, among other things, that the trial court had erred in awarding all of the personal property then in the wife's possession to the wife. In reaching this result, the Court of Special Appeals said:

"Under § 3-6A-03(a) of the Courts and Judicial Proceedings Article, 'the court may not transfer the ownership of personal property from one spouse to the other.' If the court lacks this authority to transfer, a fortiori such a transfer cannot be made contrary to the intent of one of the parties. Neither could [the husband's] release of interest in the personal property be considered a gift, since a gift requires acceptance on the part of the donee, Rogers v. Rogers, 271 Md. 603, 607, 319 A.2d 119, 121 (1974), and acceptance clearly did not...