John O. v. Jane O.
| Decision Date | 01 September 1991 |
| Docket Number | No. 714,714 |
| Citation | 90 Md.App. 406,601 A.2d 149 |
| Parties | JOHN O. v. JANE O. , |
| Court | Court of Special Appeals of Maryland |
David E. Carey (Gloria Barnhart and Brown, Brown, and Brown, P.A., on the brief), Bel Air, for appellant.
Patrick D. Haskins, Bel Air, for appellee.
Argued before BISHOP, ALPERT and ROSALYN B. BELL, JJ.
John and Jane O. 1 were married on April 13, 1963. One child was born of the marriage and was emancipated at the time of these proceedings. They also adopted a son, who at the time of trial was 13 years of age. The parties separated on November 29, 1987. On April 15, 1988, the Circuit Court for Harford County entered a pendente lite order awarding Ms. O. custody of the minor child and exclusive use and possession of the family home and family use personal property located therein.
Trial was held in the Circuit Court for Harford County on July 11-13, 1990. On March 27, 1991, the court issued a judgment which granted the parties an absolute divorce and awarded Ms. O. use and possession of the family home for an additional three years, plus sole custody of the parties' minor child. As of that date, Ms. O. was in possession of the family home by virtue of the pendente lite order of April 15, 1988. In the same judgment, the court also limited Mr. O.'s visitation with the child to "reasonable periods of time during the child's summer vacation and on holidays provided, however, that he shall not be permitted overnight visitation at this time." Limitation on overnight visitation was imposed due to a report by the child that Mr O. had touched him in an inappropriate manner during one of the child's previous overnight visits. Also taken into consideration by the court was a psychological evaluation in connection with a charge against Mr. O. in 1982 of perverted practice which was the result of an incident involving a 15 year-old boy. Although the conviction was reversed on appeal, the charge will be discussed later in this opinion.
In addition to the limited visitation, the court ordered Mr. O. to pay Ms. O. a monthly sum equal to the amount of the second mortgage on the family home; ordered that each party retain the personal property in their possession; ordered Mr. O. to pay Ms. O. the sum of $324 per month as child support; ordered Mr. O. to pay $582.50 in attorney's fees to the child's attorney; denied Mr. O. a monetary award; and denied both parties their request for counsel fees.
Mr. O. has appealed, contending the trial court erred in
--passing a second order which extended Ms. O.'s use and possession of the family home and family use personal property for three years, when two years and 11 months earlier, the court granted her the exact same relief, pendente lite;
--failing to consider the factors enumerated in Md.Fam.Law Code Ann. § 8-208(b) (1984, 1990 Cum.Supp.), when it granted Ms. O. use and possession of the family home and family use personal property;
--ordering Mr. O. to pay child support based on his "potential income," when there was no evidence that he had voluntarily impoverished himself;
--denying Mr. O. a monetary award, pursuant to Md.Fam.Law Code Ann. § 8-205 (1984, 1990 Cum.Supp.);
--denying Mr. O. overnight visitation with the parties' minor child based on the "totality of the allegations" against Mr. O. when it made no finding that any of these allegations had merit; and
--finding the interests of the child on the issue of custody were properly represented by the child's court-appointed attorney who was not present at trial for the taking of evidence and who requested that the court disregard the child's own stated wishes.
We will affirm on all issues except those based on voluntary impoverishment. We will remand for further proceedings to allow the trial court to find or decline to find whether Mr. O. was voluntarily impoverished.
Mr. O. claims that Ms. O. was awarded use of the family home and family use personal property, pendente lite, in an order dated April 25, 1988. He argues that, under the language of Md.Fam.Law Code Ann. Title 8 (1984, 1991 Repl.Vol.), the court cannot, as a part of its final judgment on March 27, 1991, grant Ms. O. use and possession of the family home and family use personal property for an additional three years. He states that the terms of the statute limit use and possession orders to a total of three years under any circumstances. Mr. O. claims that Ms. O. is not entitled to remain in the family home for an additional three years because she had occupied the family home for two years and 11 months under the pendente lite order.
Mr. O.'s concern with the family use personal property is unwarranted since the order of March 27, 1991 made no reference to a use and possession order of the family use personal property, which had already been divided by the parties. This does, however, leave the use and possession of the family home at issue. Mr. O. contends that for two reasons the trial judge abused his discretion in granting a second use and possession order. First, he argues that Md.Fam.Law Code Ann. § 8-210(c) prohibits the court from issuing a second use and possession order upon the termination of a prior order, regardless of that prior order's duration. Second, Mr. O. claims that the court has no authority to award use and possession of a family home for more than a three-year period.
-- The Second Use and Possession Order Under § 8-210(c)--
Mr. O. reads § 8-210(c) to mean that the court may never issue a second use and possession order for the family home. He interprets § 8-210(c) to mean that, once the first use and possession order terminates, the court must classify the home as marital property and consider it in making a monetary award. He claims the court has no other option and bolsters his position by pointing to § 8-209, which limits use and possession orders to the terms, conditions and time constraints set by the court. We find Mr. O.'s interpretation of the statute unduly restrictive and not in keeping with its purpose.
Section 8-210(c) provides in pertinent part:
"(c) Treatment of Property.--When a provision that concerns the family home or family use personal property terminates, the court shall treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in § 8-205 of this subtitle."
Mr. O. points us to no legislative history or case law to support his position. He would have us read § 8-210(c) in a vacuum and without regard to § 8-208, which specifies:
"(a) Award of possession and use.--(1) When the court grants an annulment or a limited or absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may:
(i) decide that 1 of the parties shall have the sole possession and use of that property; or
(ii) divide the possession and use of the property between the parties.
"(2) The court may exercise these powers pendente lite." (Emphasis added.)
Section 8-208 is part of subtitle 2 entitled "Property Disposition in Annulment and Divorce." The purpose of subtitle 2 is set forth in § 8-206, "Family home; family use personal property--Legislative policy" which provides:
Mr. O. would have us read § 8-208 to limit the power of the court to a shorter period than the three years permitted, if a pendente lite order has been issued prior to the granting of a final divorce decree. This would arbitrarily frustrate the avowed purpose of the statute and the three-year period permitted under § 8-210(a).
Section 8-208 cannot, under any possible construction, be read to mean that, if the court makes a use and possession award pendente lite, a final decree terminates that award and no further use and possession order is possible. Under Mr. O.'s interpretation, if the parties separate and a pendente lite order for use and possession is granted and the divorce follows, it would not matter how long the custodial spouse and child had been in the home following separation. The result under Mr. O.'s construction of the statute would be that, even if the custodial spouse and child had been in the home for only a day under a pendente lite use and possession order, the court would have no authority to continue their right to remain in the home. Such an interpretation of § 8-210(c) is utterly inconsistent with the legislative policy set forth in § 8-206.
--Three-Year Limit--
Section 8-210 was originally codified in Md.Cts & Jud.Proc.Code Ann. §§ 3-603 to 3-6A-07 (1974, 1979 Cum.Supp.). Section 3-6A-06 covered the disposition of the family home in a divorce case. The three-year limitation imposed after granting of a limited or absolute divorce or an annulment was added by amendment prior to the passage of the Act governing Property Disposition in Annulment and Divorce, but did not appear in the original draft. The Preamble to the Act, S.B. 604, ch. 794 at 2304, 1978 Md.Laws states:
"The General Assembly declares further that it is the policy of this State that when a marriage is dissolved the property interests of the spouses should be adjusted fairly and equitably, with careful considerations being given to both monetary and nonmonetary contributions made by the respective spouses to the well-being of the family, and further, that if there are minor children in the family their interests must be given particular and favorable attention."
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