Kennedy v. Kennedy

• Decision Date: 08 July 1983
• Docket Number: No. 1252,1252
• Citation: 462 A.2d 1208,55 Md.App. 299
• Parties: Robert V. KENNEDY v. Beverley G. KENNEDY.
• Court: Court of Special Appeals of Maryland

Page 299

55 Md.App. 299

462 A.2d 1208

Robert V. KENNEDY v. Beverley G. KENNEDY.

No. 1252.

Court of Special Appeals of Maryland.

July 8, 1983.

Jack C. Sando, Bethesda, for appellant.

Elizabeth Tennery, Rockville, with whom were Welsh & Tennery, Rockville, on the brief, for appellee.

Argued before MASON, GARRITY and GETTY, JJ.

GARRITY, Judge.

The appellant, Robert V. Kennedy, (husband) and the appellee, Beverley G. Kennedy, (wife) were granted a divorce a vinculo matrimonii on July 22, 1982 by the Circuit Court for Montgomery County. Judge Rosalyn Bell awarded custody of the parties' daughter to the wife, and custody of their two sons to the husband. Mrs. Kennedy was, inter alia, awarded use and possession of the family home for three years, alimony of $700.00 per month, child support of $500.00 per month, a monetary award of $29,350.00, counsel fees of $3,000.00, and private investigator's fees of $1,000.00 The chancellor also ordered the parties and their children to participate in family counseling, at the expense of the husband.

On appeal, Mr. Kennedy asks:

1. Did the trial court act arbitrarily, or was it clearly wrong, in awarding use and possession of the family home to a spouse who was awarded custody of only one of three minor children of the parties and who evidenced no special need to live in the family home?

2. Did the trial court act arbitrarily, or was it clearly wrong, in awarding alimony for an indefinite period, when there was no evidence that the respective standards of living of the two parties will otherwise be unconscionably disparate?

3. Did the trial court act arbitrarily, or was it clearly wrong, in awarding alimony to the wife of $700.00 per month, when the evidence indicated that the wife was self-supporting?

4. Did the trial court act arbitrarily, or was it clearly wrong, or did it have jurisdiction to require the parties and all three of their children to participate in family counseling to the extent required by such family counselor or counselors?

We shall briefly state the factual background for this appeal and then answer Mr. Kennedy's questions seriatum.

The Facts

The parties are citizens of Australia, and have resided in Montgomery County for many years. They were married in Australia in 1960, and their marriage produced three children; Troy, born in 1965, Jason, born in 1968, and Bronwen-Sara, born in 1972.

Both parties work in the District of Columbia. Mr. Kennedy is an economist with the International Monetary Fund, earning approximately $3,904.00 per month. Mrs. Kennedy is a staff assistant at the World Bank, earning approximately $1,309.00 per month. The income for both parties is not subject to federal or state tax.

The wife filed a bill of complaint seeking a divorce a vinculo matrimonii on the grounds of adultery. She also sought child custody, support, alimony, a monetary award and other relief. The husband answered the wife's bill and filed a cross-bill of complaint alleging constructive desertion.

I. Use and Possession of Family Home

(a) Discussion of the Law

The Annotated Code of Maryland, Cts. & Jud.Proc. Article, § 3-6A-06 provides in pertinent part:

(a) The authority conferred by this section shall be exercised to permit the children of the family to continue to live in the environment and community which is familiar to them and to permit the continued occupancy of the family home and possession and use of family use personal property by a spouse with custody of a minor child who has a need to live in that home.... In exercising its authority under this section, the court shall consider each of the following factors:

(1) The best interests of any minor child;

(2) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any portion of it as a dwelling place;

(3) The respective interest of each spouse in continuing to use the family use personal property or occupy or use the family home or any part of it for the production of income;

(4) Any hardship imposed upon the spouse whose interest in the family home or family use personal property is infringed upon by an order issued under this section.

(b) When granting a limited or absolute divorce, or annulment, the court may determine which property is the family home and family use personal property.

(c)(1) Regardless of how the family home or family use personal property is titled, owned, or leased, the court may decide that one of the parties shall have the sole possession and use of that property or it may divide the possession and use of the property between them.

(2) The court may also order either or both of the parties to pay all or any part of any mortgage payments or rent, all or any part of the indebtedness related to the property, the cost of any maintenance, insurance, assessments and taxes, and any other similar expenses in connection with the property.

This statute protects the interests of any minor child caught in the cross-fire of a divorce case, and ensures that such a child need not suffer the unsettling loss of his or her home during the course of the litigation. Pitsenberger v. Pitsenberger, 287 Md. 20, 410 A.2d 1052 (1980). In Pitsenberger, supra at 31, 410 A.2d 1052, Chief Judge Murphy wrote that Section 3-6A-06 gave "special attention to the needs of minor children to continue to live in a familiar environment." It was further stated that by the statute, the legislature sought "to avoid uprooting the children from the home, school, social and community setting upon which they are dependent."

Two necessary prerequisites that must be satisfied before a spouse can be awarded use and possession of a family home are 1) that the spouse be awarded custody of a minor child, and 2) that there be shown a need for the custodial child to continue to live in the family home. ¹ Strawhorn v. Strawhorn, 49 Md.App. 649, 435 A.2d 466 (1981), vacated on other grounds, 294 Md. 322, 450 A.2d 490 (1982).

The Maryland statutes and case law impose no additional prerequisites for a spouse's seeking an award of use and possession and the spouse who obtains a use and possession award need not be awarded custody of all of a family's minor children. Nothing in the law prohibits a chancellor from awarding the custody of one child of a family to the mother, and custody of another child of the family to the father, if such a decision serves the children's best interest. See J. Ester, Maryland Custody Law, 41 Md.Law Rev. 225, 267-68 (1982) (as to discussion of split custody). Davis v. Davis, 280 Md. 119, 372 A.2d 231, cert. denied 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977), (custody of six-year old daughter awarded to mother, of two older children to father); Bryce v. Bryce, 229 Md. 16, 181 A.2d 455 (1962) (custody of four-year old daughter awarded to mother, of 13-year old daughter and 15-year old son to father). Under the law of Maryland, an award of use and possession may follow an award of custody so long as the spouse receiving use and possession satisfies the two prerequisites of Section 3-6A-06.

(b) Application of the Law to the Case

The chancellor began her analysis of the issue of the family home by conceding that the children ought to be allowed to remain in their own home, but that this ideal situation could not be achieved because of the necessity for dividing child custody between the parties. While neither party is satisfied with this division of custody, Maryland law clearly permits it. There was a reasonable basis for such an award, and for a subsequent award of use and possession of the family home to facilitate the custody award.

In her written opinion, the chancellor stated that neither party had deserted the other, but that both parties "prefer to remain in the marital home rather than leave and give the other some peace." The record surprisingly reveals that the parties continued to cohabit in their Bethesda, Maryland house up to and including the day of trial. The chancellor, however, awarded the wife use and possession of the marital home for three years.

At the hearing in circuit court, the parties presented evidence supporting their belief that the marriage had collapsed without hope of reconciliation. Mrs. Kennedy established that her husband committed adultery and that she had not condoned the offense. Mr. Kennedy, while unable to sustain his allegation of constructive desertion, clearly indicated his desire to end the marriage.

These "skirmishes in their power war", to use the chancellor's apt phrase, had clearly produced detrimental effects on the children. The chancellor, expressing her concern for "the potentiality of maintaining natural family relations", in the midst of the parties' "battle for power over the children", ruled that although either one of the parents would be fit to have custody of the children, the best interests of each child would be served if the sons resided with their father and the daughter with her mother. This division followed the recommendation of the court's investigative officers, and the chancellor's interpretation of the general desires of the children themselves as expressed in an in camera hearing. We hold, therefore, that there was an adequate basis for the custody award, which satisfied the first prerequisite in Mrs. Kennedy's effort to obtain use and possession of the family home.

Mrs. Kennedy was able to satisfy the second prerequisite for an award of use and possession by presenting evidence of her daughter's desire and need to both live with her mother and continue to reside in her own community. Bronwen-Sara, who was ten years of age at the time, specifically advised the chancellor of her positive feelings toward the neighborhood and of her desire not to move far away from her friends. In light of the statutory intent that minor children, in an effort to provide them a degree of stability, should be allowed to remain in familiar environs, if...