Nisos v. Nisos

• Decision Date: 01 September 1984
• Docket Number: No. 65,65
• Parties: Elizabeth G. NISOS v. Michael J. NISOS. ,
• Court: Court of Special Appeals of Maryland

Page 368

60 Md.App. 368

483 A.2d 97

Elizabeth G. NISOS v. Michael J. NISOS.

No. 65, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Nov. 8, 1984.

Michael T. Scanlon, Cleveland, Ohio, with whom was Arthur M. Wagman, Rockville, on the brief, for appellant.

William R. Voltz, Washington, D.C., for appellee.

Argued before BISHOP, ADKINS and GETTY, JJ.

BISHOP, Judge.

Elizabeth G. Nisos appeals from a final decree of divorce a vinculo matrimonii obtained against her by the appellee, Colonel Michael J. Nisos. The decree was filed in the Circuit Court for Montgomery County on September 14, 1983. Besides declaring the parties divorced, the decree ordered alimony and property distribution as follows:

1. Appellee was ordered to pay to appellant "$1,400.00 per month indefinite alimony, beginning August 1, 1983;"

2. Appellant was awarded "30% of the United States Air Force Retirement Pension received by Michael J. Nisos, as her share of that marital property. Said thirty percent (30%) of that pension to be reduced by any sum received by [appellant] as alimony ...; "

3. Appellant was "awarded thirty percent (30%) of the Aerospace Education Foundation Pension if and when [appellee] receives same. Said thirty percent (30%) of that pension to be reduced by any sums received by [appellant] as alimony ...; "

4. "[T]hat the Marriott Corporation Stock owned jointly by the parties is to be evenly divided with each party receiving two hundred thirteen shares ...; "

5. All real property owned jointly by the parties was ordered sold "and ... the proceeds of the sale ... divided equally between the parties."

6. All personal property owned jointly by the parties was ordered sold and the proceeds divided equally. ¹

FACTS

Appellant and appellee were married on October 23, 1947. They separated on August 1, 1980. In 1982, appellee filed a Bill of Complaint for Divorce A Vinculo Matrimonii on the ground of voluntary separation for more than one year. At the time of trial appellant was 57 years of age and appellee was 61 years of age. Appellee, a career Air Force officer, retired from the service in 1967. Thereafter, he took employment with the Aerospace Education Foundation.

The parties owned four pieces of real property: the marital residence, located in Bethesda, Maryland, and three oceanfront rental properties. Although the trial testimony is by no means clear, it appears the parties titled the properties in both names as tenants by the entirety. The parties also owned 426 shares of stock of the Marriott Corporation which, apparently, they held as joint tenants.

There was evidence that at some point during the marriage appellant received a gift of two houses from her mother. Appellant eventually sold the homes and placed the proceeds in the parties' joint bank accounts. Later, these proceeds were applied toward the purchase price of each of the aforementioned jointly owned real properties as well as the stock.

Appellant raises several allegations of error, both in the Court's decree and in the chancellor's conduct of trial.

We preface our review of the merits of the appeal, however, with the observation that rarely does this Court receive a brief and record extract that is as disorganized and unintelligible as that of appellant. Her submission is replete with violations of the mandatory rules of appellate procedure. Briefly, we note the following violations:

1. Appellant attaches and relies on "Appeal Exhibits." Not only are such exhibits not authorized by the rules, but none were either admitted into evidence below or filed with the lower court during pre-trial discovery. A party is not entitled to supplement the record by inserting such foreign matter as he deems advisable. M.R.P. 1028 b 1 (b); Community Realty Co. v. Siskos, 31 Md.App. 99, 102, 354 A.2d 181 (1976).

2. Appellant attached to her record extract a document which purported to be her financial statement of record. Upon examination of the record, we learned that this document was not in fact the financial statement she filed in court. Moreover, appellant neglected to include the appellee's complete financial statement. We condemn appellant's apparent attempt to mislead the Court. M.R.P. 1028 b 1 (b).

3. Appellant failed to include in her record extract any of the documents admitted at trial. M.R.P. 1028 b 1 (b).

4. Appellant failed to set forth the statute upon which she relied in alleging certain error. M.R.P. 1031 c 3.

5. Appellant failed to set out succinctly and to appropriately number the questions presented. M.R.P. 1031 c 2.

6. Appellant used her "statement of facts" to argue her allegations of error, rather than to guide the court in its understanding of the case. She also failed to refer us to the portions of the transcript upon which she relied in setting out certain "facts", and to note where facts were in dispute. M.R.P. 1031 c 4.

In light of these numerous, and at times egregious, violations of Rules 1028 and 1031, we are authorized in our discretion either to ignore her contentions or ultimately, to dismiss this appeal. 1028 i; 1031 f. Kemp-Pontiac-Cadillac, Inc. v. S & M Construction Co., 33 Md.App. 516, 521, 365 A.2d 1021 (1976). We are convinced, however, that our failure to address these issues would result in substantial injustice to appellant. We decline the temptation to "visit the sins" of the attorney upon his client. Nevertheless, we warn the bar that in the future such failure to comply with the rules will result in summary dismissal of the appeal.

We will address two issues:

I. Whether in making the monetary award, the chancellor complied with Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05 (1984).

II. Whether the chancellor improperly excluded certain evidence.

I.

Md.Cts. & Jud.Proc.Code Ann. § 3-6A-05 (1984) ² authorizes the chancellor to "grant a monetary award as an adjustment of the equities and rights of the parties concerning marital property." Cts. & Jud.Proc. § 3-6A-05(b). A monetary award is designed to accomplish an equitable division of marital property in an indirect manner, Ohm v. Ohm, 49 Md.App. 392, 396, n. 2, 431 A.2d 1371 (1981), "in accordance with the announced policy of the legislature which is to give careful consideration to both monetary and nonmonetary contributions by the spouses to the marriage." Wimmer v. Wimmer, 287 Md. 663, 667 n. 2, 414 A.2d 1254 (1980).

In Ward v. Ward, 52 Md.App. 336, 339, 449 A.2d 443 (1982) Judge Moore, for the Court, summarized the three step process required by § 3-6A-05:

1) if an equitable adjustment over and above the distribution of the spouse's property in accordance with its title is in issue, the court shall determine which property is marital property;

2) the court shall then determine the value of all marital property;

3) finally, the court may make a monetary award as an adjustment of the parties' "equities and rights" concerning marital property, whether or not alimony is awarded. If an award is deemed appropriate, the court shall then consider each of the nine factors enumerated in § 3-6A-05 (b) in determining a fair and equitable amount and the method of its payment. (Emphasis in original).

The chancellor, in announcing his intention to grant appellant's monetary award, stated in part:

Now, the wife contends that she is entitled to a marital award with respect to the husband's U.S. Air Force retirement at this time, an award from the husband's Air Force Association pension which is not available to the husband for another four years at least, until he is 65.

With respect to the Air Force retirement, the wife is clearly entitled to share in this and the Court has reviewed the many factors contained in Section 3-6A-05 of the Marital Property Act. That does not mean to say that you get your Air Force retirement, you pay out alimony from that retirement, and you also have to pay a share. I am certainly not--it is not my intention to create a double payment out of the same fund.

But the Court does recognize that the wife spent many years as a service wife with the expectation, along with your husband, that you would be the beneficiary of a pension after 20 years or whatever it might be, in the service. So, it would seem that it would be fair and equitable, and I have reviewed the many factors contained in Section 3-6A-05 entitled "Monetary Awards" of the Courts and Judicial Proceedings article, and given the fact that--and there has been testimony concerning this $20,000, other monies that have been given, it would appear that maybe bank account-wise, the wife is a little ahead insofar as marital property, but the pension and the retirement is a very valuable right that she ought to be entitled to share in.

The Court feels that it is fair and equitable for the wife to share in this asset, that is, the U.S. Air Force retirement, to the extent of 30 percent of the husband's net receipt of this retirement, on an as, if and when paid basis. Now, this amount will be reduced by any amount the husband may be required to pay the wife in alimony.

As to the Air Force Association pension, the wife is also entitled to share in this asset, and in the Court's opinion, to the extent of 30 percent of the husband's net receipts of this pension, on an as, if and when paid basis. This amount will also be reduced by any amount the husband may be required to pay as alimony.

For the reasons that follow, we hold that the chancellor did not comply with the requirements of § 3-6A-05 and we remand for his redetermination.

A. The Court Shall Determine Which Property Is Marital Property.

Section 3-6A-01(e) defines "Marital Property" as

"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 supplied)

Appellant...