Sody v. Sody

• Decision Date: 16 September 1976
• Docket Number: No. 1217,1217
• Citation: 363 A.2d 568,32 Md.App. 644
• Parties: Stanley SODY v. Phyllis L. SODY.
• Court: Court of Special Appeals of Maryland

Page 644

32 Md.App. 644

363 A.2d 568

Stanley SODY v. Phyllis L. SODY.

No. 1217.

Court of Special Appeals of Maryland.

Sept. 16, 1976.

Frank B. Cahn, II, Baltimore, for appellant.

Michael G. Hendler and Bennett Gilbert Gaines, Baltimore, for appellee.

Argued before MOYLAN, MOORE and MASON, JJ.

MOORE, Judge.

This is an appeal in a matrimonial action wherein the appellant husband challenges certain of the chancellor's findings and orders relating to property, alimony and counsel fees. Perhaps the most significant issue arises out of the court's determination that a former joint bank account of the parties was the sole property of the wife.

The appellee, Phyllis L. Sody, was awarded a divorce a vinculo matrimonii in the Circuit Court for Baltimore County (Haile, J.) in a decree which also granted custody of a minor child to the appellee but reserved for further hearing all matters relating to child support, alimony, counsel fees and division of jointly owned personal property. After further evidentiary hearings, the court (Brannan, J.) made, inter alia, the following orders which are the subjects of this appeal:

1) That the proceeds withdrawn by appellee from the joint savings account of the parties prior to the filing of appellee's bill of complaint were the sole and separate property of appellee;

2) That the sum of $5 per week was to be paid as alimony by appellant to appellee to continue during the lives of the parties or until she should remarry;

3) That the sum of $2,500 be paid as additional counsel fee to counsel for the appellee to be divided equally between the parties;

4) That the sum of $350 be paid by appellant to appellee, representing one-half of a private investigator's fee paid by her;

5) That the sum of $836.48 be paid by appellant for automobile rental payments incurred by appellee from August 12, 1975, to October 21, 1975, the date of the hearing, when appellant disclosed the location of a 1973 Mercury Cougar automobile primarily used by appellee, but secreted by appellant. ¹

The record discloses that the parties owned a residence in Baltimore County, as tenants by the entirety. It was valued by the wife in the sum of $45,000. They continued to live in it, without cohabitation, after the filing of the bill of complaint by the wife on June 26, 1974; the wife moved out on April 1, 1975. ²

With respect to his financial condition, appellant testified that he had been unemployed since February, 1975, drawing unemployment compensation in the amount of $99.00 per week. These payments had terminated by the time of trial. He had previously been employed by Needlecraft Corporation of America as national sales manager, earning $27,500 per annum. He testified that he lost his job when the company was purchased by another corporation. Thereafter, he attempted several unsuccessful business ventures, including a loan company and a men's cologne distributorship. At the time of trial, his only source of income was $384 per month representing installment payments form the sale of a corporation, Magnet Enterprises, which had owned a downtown Baltimore bar, operated by Mr. Sody. The record reveals that the parties jointly held 75% of the stock of Magnet Enterprises prior to its sale, and that the remaining interest was owned by appellant's mother. ³ Against these limited assets, appellant testified to monthly living expenses of $552.

According to appellee's testimony, she was employed as a real estate salesperson earning commissions of approximately $8500 in 1974 and $7500 in 1975. Previously, she worked part time for five years for the City of Baltimore. Mrs. Sody's financial statement showed requirements of $1193.82 a month, without apportionment, for the support and maintenance of herself and the minor female child, Kelly, age 14. Included in this assessment of needs was a $295 monthly payment under a mortgage of $24,000 on her residence, a townhouse which she had purchased for $50,000. (The $26,000 down payment was borrowed from her mother, to be repaid when convenient.)

With respect to the joint bank account of the parties, the appellee testified as follows on direct examination:

'Q Now, when you and your now ex-husband first had a parting of the ways did you-was there a joint bank account?

A Yes.

Q Joint savings account?

A Yes, there was.

Q Where was that account located?

A It was located in Baltimore Federal Savings and Loan.

Q Baltimore Federal Savings and Loan?

A Yes.

Q And did you withdraw the money from that account?

A I did.

Q And where did you deposit that money?

A In Yorkridge Federal.

Q And in whose name did you deposit it, that money?

A My name.

Q You have that bank book with you?

A Yes, I do. It is in that envelope.

Q Now, I show you a savings account book, number 10546-5, Yorkridge Federal Savings and Loan Association, titled in the name of Phyllis Sody, and trust for self and Kelly Sody, joint owners, subject to the order of Phyllis Sody. Balance at death of either to belong to the survivor. And I ask you if you can identify this bank book?

A Yes, that's mine.

Q Alright. Now, the first deposit in this bank book is on June 12, 1974? ⁴

A Right.

Q In the amount of $9,423.91. And additional deposit on June 13, 1974, the day after, of $150.00, starting out there with a full balance of $9,573.91, is that correct?

A That's correct.

Q Now, you say this money came from a joint account in the name of yourself and your husband from Baltimore Federal?

A That's correct.

Q Where did that money come from?

A It was money that we had saved.

Q Money that you had saved?

A Right.

Q And any other specific sources in addition to money that you had saved?

A Well, there was some money from Magnet Enterprises that was put into this bank account.'

Appellee later testified that $2,300 of the total amount of the joint account represented the proceeds of a check drawn on the Magnet Enterprises checking account and deposited by her in the joint account at the request of appellant.

Between the time the old account was closed out and the date of the hearings below, appellee had made withdrawals from the new account. These included:

$300.00-stereo set for son's birthday

835.00-to repair or replace an air conditioner compressor

250.00-contact lenses for daughter, Kelly

1165.04-legal fees

129.00-car payment

100.00-living expenses

700.00-private investigator fees

By the time of trial, the balance in the account was $4,093.04. ⁵

On cross-examination, Mrs. Sody gave the following testimony concerning her interest and that of Mr. Sody in the joint account:

'Q Oh, well, are you saying then that half the bank account is your husband's, or all of it is your husband's, or what?

A Well-

MR. HENDLER (Appellee's counsel): Objection.

THE COURT: Overruled.

A Half of the bank account was supposedly his.

MR. CAHN (Appellant's counsel): Half of the bank account was supposedly his?

A That's correct.

Q (By Mr. Cahn) But, you took it all?

A That's correct.'

When Mr. Sody took the stand, his testimony concerning the account was limited to the following:

Q Alright. Mr. Sody, there was some testimony about a bank account at Baltimore Federal Savings and Loan that was a joint account, you and your wife, is that correct?

A That's correct.

Q That was monies put in from your earnings?

A That's correct.

Q Some monies went in from Magnet Enterprises, is that correct? $2300?

A $2300, that's right.

Q And have you ever gotten any money out of that joint account? In the last year and a half?

A I haven't seen a penny of it.'

As for the car rental of $836.48 ordered to be reimbursed by Mr. Sody, the wife testified that on August 12, 1975, she reported to her insurance company that the 1973 Mercury Cougar was missing from the front of her house. The insurer permitted her rental fees for a 30-day period before reimbursing her for the loss. Shortly before the expiration of the 30 days, however, she learned, through her attorney, that the car had not been stolen, but that it had been taken by the appellant without his wife's knowledge or permission. The insurance company then refused to pay for the car rental. Mrs. Sody testified that she had to rent a car and that the total expense was $836.48.

We will consider appellant's assertions of error in the order presented.

I

Did the lower court properly declare the proceeds of the joint savings account to be the sole and separate property of the wife?

The Maryland Code (1974), Courts and Judicial Proceedings, § 3-603(b) provides:

Determination or division of personal property.-A court granting a limited or absolute divorce may determine the ownership of personal property, other than chattels real, held, possessed, or claimed by a party to the divorce proceedings, and in accordance with that determination may:

(1) Make a division of personal property between the parties;

(2) Order a sale of personal property and a division of proceeds; or

(3) Make any other disposition of personal property it deems proper. (formerly Code (1957), Art. 16, § 29).

It is clear that a court of equity, sitting as a divorce court, does not have discretion to award the property of one spouse to the other. Abell v. Abell, 12 Md.App. 99, 103, 277 A.2d 629 (1971). As stated in Joyce v. Joyce, 10 Md.App. 516, 522-23, 276 A.2d 692 (1970).

'This statute does no more than to empower the court, in decreeing a divorce, to determine the ownership of the personal property of the parties and to apportion the property accordingly. Lopez v. Lopez, 206 Md. 509, 112 A.2d 466. It confers no power to transfer the property of either spouse to the other, or otherwise to dispose of it. And it is firmly established that a court of equity has no power, unless conferred by the legislature, to transfer the property of either spouse to the other, or otherwise to dispose of it. . . . Hall v. Hall, 180 Md. 353, 24 A.2d 415. See Brucker v. Bensen, 209 Md. 247, 121 A.2d 230; Lickle v. Boone, 187 Md. 579, 51 A.2d 162; Gunter v. Gunter, 187 Md....