Wilen v. Wilen

• Decision Date: 01 September 1984
• Docket Number: No. 475,475
• Citation: 486 A.2d 775,61 Md.App. 337
• Parties: Loveta I. WILEN v. Herbert Barry WILEN. ,
• Court: Court of Special Appeals of Maryland

Page 337

61 Md.App. 337

486 A.2d 775

Loveta I. WILEN v. Herbert Barry WILEN.

No. 475, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Jan. 11, 1985.

Arthur I. Messinger, Annapolis (Messinger & Mayer, Annapolis, on the brief), for appellant.

R. Calvert Steuart, Landover (Greenan, Walker, Steuart & Meng, Landover, on the brief), for appellee.

Argued before BISHOP, ADKINS and BLOOM, JJ.

BLOOM, Judge.

These cross-appeals present a variety of issues concerning the propriety of a decree entered by the Circuit Court for Anne Arundel County divorcing the parties a vinculo matrimonii, determining what constituted marital property, valuing that property, and granting the wife, Loveta Wilen, appellant, a monetary award. We shall remand these proceedings because several of the chancellor's findings were improper and amounted to an abuse of discretion.

In late 1971 or early 1972, Loveta Wilen and the appellee, Barry Wilen, began cohabiting in appellee's apartment in Suitland. At that time, Mr. Wilen was employed by Hillcrest Electronics, a family-owned business, and appellant was an assistant general manager of a Sheraton Hotel. Appellant left her job several months after she moved in with appellee. She claims she did so because Mr. Wilen wanted her to stay at home, entertain guests, and be available for business and social engagements. She had several other hotel-related jobs during the course of her relationship with appellee but inevitably either quit or was fired because of her allegedly heavy social calendar.

In 1973, Mr. Wilen purchased a townhouse in Crofton as a residence for himself and appellant. All of the cash used to purchase that property came from Mr. Wilen's funds, and the mortgage securing the bulk of the purchase price was in his name only. The parties were married in June 1976. Shortly thereafter, Mr. Wilen sold the townhouse and applied the net proceeds of that sale, $2044, together with an additional $14,700 of his funds, to purchase a three bedroom house in Annapolis, the total cost of which was $129,900. Mrs. Wilen contributed no funds towards the purchase of the home.

Sometime after the parties began cohabiting and before they were married, Hillcrest Electronics was purchased by a wholly owned subsidiary of Peoples Drug Stores, Inc. Mr. Wilen then became an employee of that corporation. Eventually Mr. Wilen sold to his father Hillcrest Electronics stock that had been given to both parties jointly as an engagement gift.

The husband's income increased dramatically from 1971 when he was earning about $25,000 annually to 1981 when he earned about $90,000. The couple's lifestyle rose in direct relation to Mr. Wilen's salary. The two entertained often, maintained a Capital Centre "sky suite" which friends, employees and business acquaintances of appellee's frequented, and traveled extensively throughout the country and abroad. Mrs. Wilen received gifts of expensive jewelry and furs both from her husband and from her in-laws.

Mr. Wilen also became involved in a variety of real estate transactions. He was a one-third partner in several general partnerships that bought and sold Anne Arundel County real estate, including Bay Country Investments and 1000 West Partnership. He also invested in a real estate tax shelter in Flint, Michigan. He maintained an I.R.A. account and a T. Rowe Price money market fund. Mr. Wilen also owned stock in two companies, Sebar Enterprises, Inc., and Finalco, Inc., which were peripherally related to Hillcrest Electronics and Peoples Drug Stores.

Mrs. Wilen did not contribute any money towards the real estate investments, nor was she involved in any of the companies in any way. The two maintained separate "joint accounts," with Mr. Wilen putting his money into his account and Mrs. Wilen putting money she earned from her occasional employment into hers. It does not appear that Mr. Wilen ever withdrew funds from his wife's account, although he frequently deposited money into it.

In 1981, the couple began to have marital problems. Mrs. Wilen discovered that her husband was having an affair. Several squabbles resulted in physical violence between the two. Ultimately, Mr. Wilen moved out of the Annapolis home.

Mrs. Wilen then filed for divorce in May of 1981 on the grounds of adultery. A proposed consent order was drafted by her counsel, under which Mr. Wilen would provide alimony pendente lite, continue to make mortgage payments, and maintain the marital home. The husband signed this document and began to make payments according to its terms. Mrs. Wilen, however, never signed it.

The case was tried in August of 1983. A memorandum opinion and decree was issued on November 7, 1983, granting the wife a divorce a vinculo matrimonii. The chancellor determined what constituted marital property and the value of each item.

The following were found to be marital property:

ITEM VALUE

(1) Proceeds from stock transfer of $ 67,000.00

Hillcrest Electronics from

appellee to appellee's father

(2) Net equity of marital home at 18,469.37

2729 Poplar Lane, Annapolis

(3) IRA Retirement Account 53,294.46

(4) Furnishings in marital home 8,000.00

(5) United Bank and Trust Co. 1,674.00

stock

(6) Hyatt Hotel tax shelter in Flint, 42,500.00

Michigan

(7) T. Rowe Price Account purchases 12,800.00

in 1981 before separation

(8) Sales proceeds from property 42,166.66

located at 20 Eastern Avenue

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Total Value $245,904.49 The following items were found to be non-marital property:

(1) Appellee's 1/3 interest in 1000 West Partnership

(2) Appellee's interest in Finalco

(3) Appellee's 1/2 interest in Sebar Enterprises, Inc.

(4) Appellee's interest in 18 Eastern Avenue (present residence of appellee)

(5) Appellee's 1/3 interest in Bay Country Investments except for 1/3 interest in proceeds of 20 Eastern Avenue sale

(6) Appellee's interest in Peoples Drug Stores stock

The chancellor granted the wife a monetary award equal to one-half of the marital property, or $122,952.25, but denied her any form of alimony.

Petitions to modify were filed by both parties. After a hearing thereon, the court modified its decree by reducing the total valuation of marital property to $227,435.12, which in turn reduced the wife's monetary award to $113,717.56. ¹ The chancellor refused to amend his decision denying alimony to the wife.

A timely appeal and cross-appeal to this court were taken. The wife raises five issues in her appeal; the husband raises six issues in his cross-appeal:

I. Did the trial court err in excluding from assets to be considered marital property those assets acquired after the court determined the marriage was "factually dead"?

II. Did the trial court err in not awarding alimony to the Appellant/Cross-Appellee?

III. Did the trial court err in not dividing assets acquired while the parties cohabited prior to their marriage?

IV. Did the trial court err in excluding from assets to be considered marital property those shares of stock that were acquired during the marriage and the increase in value of Sebar, Inc., during the marriage?

V. Did the trial court err in not awarding arrearages as per the Consent Order entered into between the parties?

VI. Did the court err in characterizing as marital property the marital home purchased, in part, with non-marital property contributed by cross-appellant?

VII. Did the court err in characterizing as marital property, or in ascertaining the value of, proceeds from the sale of partnership property owned, in part, by cross-appellant, absent evidence that it was purchased subsequent to the marriage of the parties?

VIII. Did the court err in refusing to consider at the hearing on the motions for reconsideration and modification additional evidence proffered by cross-appellant as to the proper valuation of the partnership property?

IX. Did the court err in characterizing as marital property funds held in a T. Rowe Price money market account existing during the course of the marriage, absent any evidence that it existed upon the dissolution of the marriage?

X. Did the court err in characterizing as marital property, and in ascertaining the value of, cross-appellant's interest in a hotel tax shelter, absent evidence that it was purchased subsequent to the marriage of the parties and absent sufficient evidence as to its value?

XI. Did the court err in awarding a monetary award of 50 percent of the ascertained marital property to appellant/cross-appellee, without specific analysis of those factors enumerated in § 3-6A-05(s) of the Courts and Judicial Proceedings Article?

I. Property Acquired After Marriage is "Factually Dead"

The chancellor determined that the marriage was factually dead as of September 1, 1981. Relying on New Jersey cases such as Painter v. Painter, 65 N.J. 196, 320 A.2d 484 (1974), and Brandenburg v. Brandenburg, 167 N.J.Super. 256, 400 A.2d 823 (App.Div.1979), he concluded that property acquired after September 1, 1981, should not be considered to be marital property. In light of recent decisions of this court, that conclusion was erroneous.

Cotter v. Cotter, 58 Md.App. 529, 473 A.2d 970 (1984), Gravenstine v. Gravenstine, 58 Md.App. 158, 472 A.2d 1001 (1984), and Dobbyn v. Dobbyn, 57 Md.App. 662, 471 A.2d 1068 (1984), "make it clear that marital property is to be determined and valued as of the date of divorce, not the date of separation." Cotter, 58 Md.App. at 537, 473 A.2d 970. Thus, the chancellor's refusal to consider the substantial assets acquired between separation (September 1, 1981) and divorce (November 1983) was improper, ² and this issue must be remanded for further fact-finding as to acquisition of any property subsequent to the separation but prior to the divorce and valuation of all property as of the date of the divorce.

II. Denial of Alimony

Despite noting that appellant's general financial situation was not very good and that her husband had committed adultery, the chancellor...