Spessard v. Spessard
| Decision Date | 01 September 1984 |
| Docket Number | No. 1339,1339 |
| Citation | 64 Md.App. 83,494 A.2d 701 |
| Parties | Sharon A. SPESSARD v. Kevin Lee SPESSARD. , |
| Court | Court of Special Appeals of Maryland |
Charles P. Strong, Jr., Hagerstown (Ottinger and Strong, Hagerstown, on brief), for appellee.
Argued before GARRITY, ALPERT and ROSALYN B. BELL, JJ.
This appeal involves whether the trial court was erroneous in holding that there was no ouster of the wife from the family home, and whether the wife must contribute to the payment of the joint obligations on the family home.
Sharon A. Spessard and Kevin Lee Spessard were married in 1966. One child was born of the marriage in 1967. She and the husband's three children from a previous marriage were also part of the household. During the marriage the parties purchased property at 1816 West Washington Street, Hagerstown, Maryland, as tenants by the entireties and used it as their family home.
The parties separated on September 3, 1981, following the return of the wife from a friend's home. The parties The wife brought suit for divorce on the grounds of constructive desertion or, alternatively, voluntary separation. She sought pendente lite relief, including a use and possession order for the house. The wife later abandoned that case and filed a new suit, to take advantage of a change in the law which reduced the requisite period of living separate and apart before securing a divorce. We do not know precisely what happened to the prayer for use and possession pendente lite. In any event, the husband remained in the home and made the mortgage payments from August 1981 through March 1984.
related different versions of what led up to the separation and of what occurred after her return home on the night of September 3. The wife claimed that the husband drank excessively; that he did so that night; and that after she arrived home they had a confrontation, during which he broke her wrist. The husband, on the other hand, denied that he had a drinking problem. He claimed that, on the evening in question, his wife became angry about his charges of infidelity and threw things at him. Both parties agree that after the confrontation the wife left the home with their daughter and did not return; the husband remained in the home
After hearing all the testimony, the chancellor granted a divorce based on the two-year statutory separation and made a monetary award of $8,900. The husband moved to reconsider the award for two reasons: (1) to credit an overpayment on the alimony pendente lite; and (2) to deal with the husband's claim for contribution for the principal, interest, taxes and insurance paid on the house, which totaled $15,359 through July 1984. The chancellor granted a credit for the $120 overpayment, from which there was no appeal. The chancellor also found there was no ouster. He revised the order and reduced the monetary award by one-half of the payments on the principal, interest, insurance and taxes. The wife contends on appeal that the chancellor was clearly erroneous in concluding there was no ouster and in reducing the monetary award by $7,679.50.
The issue was presented to the chancellor in a slightly unusual manner. At trial, the parties advised the court that they had agreed to sell the marital home outside the court proceeding. They stipulated that appellee's claim for contribution would be included as an "other factor" to be considered in making a monetary award. 1
Ordinarily, a cotenant who pays the mortgage, taxes, and various carrying charges of jointly-owned property is entitled to contribution from the other. Aiello v. Aiello, 268 Md. 513, 518-19, 302 A.2d 189 (1973); Pino v. Clay, 251 Md. 454, 456-57, 248 A.2d 101 (1968); Hogan v. McMahon, 115 Md. 195, 201-202, 80 A. 695 (1911). But, where there has been an ouster, the cotenant in possession forfeits that right. Young v. Young, 37 Md.App. 211, 221, 376 A.2d 1151, cert. denied, 281 Md. 746 (1977). This rule of cotenancy has been held applicable to a tenancy by the entireties. Colburn v. Colburn, 265 Md. 468, 474-75, 290 A.2d 480 (1972); Crawford v. Crawford, 293 Md. 307, 309, 443 A.2d 599 (1982).
"Ouster is the actual turning out or keeping excluded the party entitled to the possession of any real property." Childs v. Kansas City, St. Joseph & Council Bluffs Railroad Company, 117 Mo. 414, 23 S.W. 373, 378 (Mo.1893). The exclusion does not require physical eviction, so long as "the act or declaration constituting the ouster [is] unequivocal and notorious." Id. To prove ouster, one must show "actual intent to exclude the co-tenant permanently from his rights" in the property. Mastbaum v. Mastbaum, 126 N.J.Eq. 366, 9 A.2d 51, 53 (N.J.1939); see also, Hamilton v. MacDonald, 503 F.2d 1138, 1146, (9th Cir.1974); see, e.g., Newman v. Chase, 70 N.J. 254, 359 A.2d 474, 481 This Court recognized the following definition of ouster in Young, supra:
In the case sub judice, the chancellor did not resolve the factual dispute between the parties concerning what occurred on the evening of the separation, nor did he articulate any facts that would support his terse conclusion that "[t]he Court fails to find from the evidence that there was an ouster...." Moreover, the findings that the chancellor made tended to support appellant's version of the facts, namely:
We simply cannot ascertain the basis for the chancellor's ruling. Pursuant to Md.Rule 1086, we must conduct an independent review of the record on both the law and the To conclude that the chancellor in the present case was correct, we must assume he resolved the essential factual disputes 2 in favor of the husband and against the wife. Our dilemma is that the facts actually found by the chancellor indicate a contrary resolution. We, therefore, remand to the chancellor to find the facts which resulted in his conclusion that there was no ouster, so that if necessary we may conduct a meaningful review. Md.Rule 1071.
evidence, but we will not set aside the chancellor's decision on the evidence unless it was clearly erroneous. In making that [494 A.2d 705] assessment, we must give due regard to the opportunity of the court to examine the credibility of the witnesses. Md.Rule 1086
This decision, however, does not end the inquiry because the ultimate disposition must be an equitable one. Although this Court, in Bender v. Bender, 50 Md.App. 174, 436 A.2d 518 (1981), cert. denied, 292 Md. 555 (1982), held that a wrongfully ousted spouse did not have to pay contribution during the period of the ouster, this is not an ironclad rule. The opinion of the Court indicated that cases alleging ouster must be judged on a case-by-case basis to determine whether, in fairness and equity, the payments made by the spouse in possession should be credited against what was claimed by the ousted spouse for loss of use and enjoyment of the property. Id. at 181, 436 A.2d 518. Since we will remand to the chancellor, we will discuss appellee's claim to contribution. A review of the historical background of joint tenancies and ouster will prove helpful.
Co-Ownership and Claim For Contribution
The law of real property in Maryland has its roots in early English common law. See Beall v. Beall, 291 Md. 224, 234, 434 A.2d 1015 (1981); Columbian Carbon Co. v. Kight, 207 Md. 203, 206, 114 A.2d 28 (1955); Marburg v Today, joint tenancy has substantially the same characteristics as it did in feudal times: (1) joint tenants are both seized of the whole property and have equal undivided interests in it; (2) each tenant has an equal right to possession, use and enjoyment of the property; (3) each cotenant has the right to convey his interest and the right to partition the estate; and (4) on the death of one joint tenant, the surviving tenants have the whole estate. Id.; 2 Tiffany, The Law of Real Property § 419 (B. Jones ed. 3d ed. 1939).
Cole, 49 Md. 402, 411 (1878). Consequently, the concept of jointly-owned property derives from the tenor of feudal times. 2 American Law of Property § 6.1 (A.J. Casner ed. 1952). Joint tenancy was one of the earliest forms of co-ownership of property and occurred automatically when two or more persons were conveyed an estate in fee simple, fee tail, or for life. Id. Feudal society favored this tenancy over other forms of co-ownership, because it was based upon the legal fiction that all of the grantees together constituted one entity. Id.; 4 Thompson on Real Property § 1775 (Grimes ed. 1961 Repl.Vol.). "It was to the interest of the lord that each feudal holding be a single feud continuing until the death of the survivor ..."--the joint tenancy, with
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