Jurisdictional Statement — Pitsenberger v. Pitsenberger
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Bupreme Court, U. &-7
FILED
APR 30 1980
JR., CLERA
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
“79-1729
JOHN W. PITSENBERGER,
Appellant,
~
MARY W. PITSENBERGER,
Appellee.
ON APPEAL FROM THE
COURT OF APPEALS OF MARYLAND
JURISDICTIONAL STATEMENT
Joun G. GILL, JR.
ELLEN ANN CALLAHAN
17 West Jefferson Street
Rockville, Maryland 20850
(301) 340-9444
Attorneys for Appellant
OE
Washington, D.C. «© THIEL PRESS + (202) 638-4621
(t)
TABLE OF CONTENTS
Se GREET bs sc cele poe a ae ee ee
FORE Ghee acco ks-ue Cheb hewaee sce et
CONSTITUTIONAL PROVISIONS, STATUTES,
nn Bcc cue eR EO ETS Lee Cre eee
I. The Maryland Law at Issue Violates the Due Process
Clause of the Fourteenth Amendment in That It
Fails To Provide for a Meaningful Hearing Before
Dispossessing Spouse of His Real Property .....
II. The Maryland Law at Issue Permits the Unlawful
Taking of Private Property Without Just Compen-
sation in Violation of the Fifth and Fourteenth
FN 66.5 Sask 6 oa en BRR ek
APPENDICES:
A. Opinion of the Court of Appeals of Maryland .....
B. Opinion of the Circuit Court for Montgomery
CO, FRU, 5 kis Ni vance owesslelele
i TO CANE 5 is a's cas Kee eke
D. Subtitle 6A. Property Disposition in Divorce and
Annulment, Courts and Judicial Proceedings, Anno-
COR RG OE PN os 6 WS owns we ok bcs
I OHMS 254 0. vos ca te Cbd
WOUNDED oe. ccs cence
DOD NEN ens hk ak eee
Rules of the Sixth Judicial Circuit of Maryland,
wssenhenict Me eC Ce
(12)
TABLE OF AUTHORITIES
Cases: iia
Bell v. Burson, 402 U.S. 535 (1971) .............. rE
Bianchi v. Morales, 262 U.S. 170 (1923)............05.% 8
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
coat cee MOREE OEE TE Ce Ce ORT eae ee 8
Causby v. United States, 328 U.S. 256 (1946)........... 12
Chicago, Burlington & Quincy Railroad Co. v. Chicago,
Be Wc Ree CORFE ck ve ew aWek ek wea eee 10
Ewing v. Mytinger & Casselberry, Inc., 339 U.S.
Be Se ie cee Sara mee. gree ee me 9
Fahey v. Mallonee, 382 U.S. 245 (1947)... .. cece cccces 9
Fuentes v. Shevin, 407 U.S. 67 (1972) ............ BP
Goldberg v. Kelly, 397 U.S. 254 (1970) ..........206- 7
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)... 7
Lindsey v. Normet, 405 U.S. 56 (1972) .............. 8
North American Cold Storage Co. v. Chicago, 211 U.S.
Pee SOUS 0b oo he a 6 8 ae 4d Ob ee eee 9
Penn. Central Transportation Co. v. City of New York,
ee | a er err ry ee 11
United States v. General Motors Corp., 323 U.S. 373
ERED no 6 oes bens 0s Seip ade a ees 2,10,11
Constitutional Provisions:
Fifth Amendment, United States Constitution .... 1,3, 4,6, 10
Fourteenth Amendment, United States Constitution
PN ey ern Che 1, 3, 4, 6, 7, 9, 10
Statutes and Rules:
Section 3-6A-06, Courts and Judicial Proceedings, Anno-
tated Code of Maryland
ae oe i, 2, 5, @, &, & 7.9, 26,13, 82,29
Rules of the Sixth Judicial Circuit of Maryland, Rule $74. .3, 4
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
No.
JOHN W. PITSENBERGER,
Appellant,
MARY W. PITSENBERGER,
Appellee.
ON APPEAL FROM THE
COURT OF APPEALS OF MARYLAND
JURISDICTIONAL STATEMENT
John W. Pitsenberger, appellant, appeals from the final
judgment of the Court of Appeals of Maryland, dated
January 31, 1980, holding that Section 3-6A-06, Courts
and Judicial Proceedings, Annotated Code of Maryland,
is not unconstitutional as violative of appellant’s rights to
due process and to just compensation guaranteed by the
Fourteenth and Fifth Amendments of the Constitution
of the United States.
OPINIONS BELOW
The opinion of the Court of Appeals of Maryland,
which appears in the appendix hereto, p. la, ifra, is
reported unofficially at 410 A.2d 1052 (1980).
The opinion of the Circuit Court for Montgomery
County, Maryland is reprinted in the appendix hereto,
p. 17a, infra.
JURISDICTION
The judgment of the Court of Appeals of Maryland
upholding the validity of a Maryland statute was filed on
January 31, 1980.
A notice of appeal to this Court was duly filed in the
Circuit Court for Montgomery County, Maryland, the
court possessed with the record, on April 21, 1980. See
p. 21a, infra.
This appeal is being docketed in this Court within 90
days from the filing of the opinion below. The jurisdic-
tion of this Court is invoked under 28 U.S.C. § 1257 (2).
Cases believed to sustain jurisdiction are: Fuentes v.
Shevin, 407 U.S. 67 (1971); Bell v. Burson, 402 U.S.
535 (1970); United States v. General Motors Corp., 323
U.S. 373 (1945).
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
The statute, the validity of which is questioned, is
Section 3-6A-06 of the Maryland Property Disposition
in Divorce and Annulment Act. It can be found in
the Courts and Judicial Proceedings Volume of the
Annotated Code of Maryland, 1979 Supplement, pgs.
3
70-71.! The full text of this section is set forth in the
appendix hereto, p. 23a, infra.
Constitution of the United States of America, Amend-
ment V:
No person shall be . . . deprived of life, liberty,
or property, without due process of law; nor shall
private property be taken for public use without
just compensation.
Constitution of the United States of America, Amend-
ment XIV:
- - + [NJor shall any State deprive any person of
life, liberty, or property without due process of
ae
Courts and Judicial Proceedings, Annotated Code of
Maryland, Section 3-6A-01.
Courts and Judicial Proceedings, Annotated Code of
Maryland, Section 3-6A-07.
Rules of the Sixth Judicial Circuit of Maryland, Rules
S74.
QUESTIONS PRESENTED
1. Whether Section 3-6A-06, Courts and Judicial Pro-
ceedings, Annotated Code of Maryland, which permits
a pendente lite award of the family home to a petitioning
spouse without a preliminary determination that there
exist grounds for divorce or that the evicted spouse
presents a danger to the health, safety, and welfare of
1Subsequent to the Circuit Court decision in this case, the
Maryland Property Disposition in Divorce and Annulment Act
was amended and incorporated into the most recent Courts and
Judicial Proceedings Volume of the Annotated Code of Maryland.
These amendments do not affect this appeal. The revised statute
can be found in Md. Cts. & Jud. Proc. Code Ann. § 3-6A-06,
pgs. 118-119.
e?
4
the petitioning spouse or the children of the parties,
violates the due process clause of the Fourteenth Amend-
ment of the United States Constitution?
2. Whether Section 3-6A-06, Courts and Judicial Pro-
ceedings, Annotated Code of Maryland, permits the
unlawful taking of private property without just com-
pensation in violation of the Fifth and Fourteenth
Amendments of the United States Constitution?
STATEMENT OF THE CASE
Appellant John W. Pitsenberger is married to Appellee
Mary W. Pitsenberger. They own a home located in
Rockville, Maryland as tenants by the entirety. In August
of 1978, appellee left the family home taking two of
the parties’ five children with her (John C. and Alison)
and $10,000.00 from the parties’ joint savings. In Sep-
tember 1978, the other three children of the parties
(Guendolen, Deirdre, and Jennifer) began residing with
appellee.
On January 2, 1979, appellee filed a bill of complaint
for divorce a mensa et thoro seeking, inter alia, a use
and possession order for the family home and family use
personal property pursuant to Section 3-6A-06, Courts
and Judicial Proceedings, Annotated Code of Maryland?
(effective January 1, 1979).
On February 16, 1979, a pendente lite hearing was
held before a Domestic Relations Master who has no
authority under local judicial rules to consider the merits
of a contested divorce action.? After refusing to hear
testimony relating to the merits of appellee’s suit for
2 This section is hereinafter referred to as Section 3-6A-06.
3Rules of the Sixth Judicial Circuit of Maryland, Rule S74b.
5
divorce, the Master recommended that appellee be
granted custody of the children and pendente lite use of
the family home and familv use personal property. The
Master also recommended that appellant pay $1,000.00
per month child support as well as the monthly mortgage
on the family home. (E. 13-14).* However, the findings
of fact upon which the Master’s recommendations were
based do not include a preliminary finding that there
exist grounds for divorce, that the presence of appellant
in the family home presented a danger to the health,
safety, or welfare of appellee or the children of the
parties, or the amount of money which would justly
compensate appellant for the taking of his possessory
interest in the family home and family use personal
property.
The Circuit Court subsequently adopted the recom-
mendations of the Domestic Relations Master in an order
dated May 23, 1979. However, the Circuit Court’s order
modified these recommendations to award “exclusive”
use of the family home and family use personal property
to appellant (E. 17) thereby ripening the constitutional
issues. The next day that court issued an order for
appellant to show cause why he should not be held in
contempt for failing to vacate the family home. Appel-
lant filed an Opposition to Plaintiff’s Petition to Hold
Defendant in Contempt and raised the federal due
process and just compensation issues:
ee, eo
5. §3-6A-06 is unconstitutional in that it
authorizes the taking of property without just
compensation and due process required by the
4(E. ) refers to the pages of the record extract prepared by
the parties for the Court of Appeals of Maryland.
#*
6
Fifth and Fourteenth Amendments to the
United States Constitution .... [E. 28]
* * x
Following the contempt hearing of May 26, 1979, the
lower court expressly rejected appellant’s constitutional
arguments by ruling that Section 3-6A-06 does not
violate the due process provisions of the federal and state
constitutions or amount to an unlawful taking of private
property. See opinion below, p. 17a, infra. Appellant
vacated his home* on June 5, 1979 and filed an inter-
locutory appeal to the Court of Appeals of Maryland.®
Appellant’s brief reiterated the two constitutional issues
raised in the Circuit Court as previously set forth in this
Jurisdictional Statement. On January 31, 1980, the
Maryland Court of Appeals filed its opinion which
squarely faced the federal constitutional issues and which
upheld the validity of Section 3-6A-06. See opinion
below, p. la, infra. There has yet to be a trial on the
merits of appellee’s divorce action.
SAppellant was outraged by the Circuit Court’s May 23, 1979
order which, although not based on a finding of marital fault on
the part of appellant, deprived him of the custody of his children,
of his home and possessions, and of two-thirds of his take-home
pay. After vacating the family home, appellant refused to comply
with the remaining portions of the May 23, 1979 order, including
the portion requiring him to pay the mortgage on the family home.
Appellant was incarcerated for ninety-nine days as a result of the
subsequent civil contempt proceedings initiated by the appellee.
During this period of incarceration appellant was fired, after
twenty-six years of government employment, from his $50,000.00
per year position as Chief Engineer of the Navy Strategic Missile
Program.
©The Maryland Court of Special Appeals, the intermediate Ap-
pellate Court, was bypassed when the highest Court of Maryland
granted a petition for certiorari due to great public importance of
the issues involved.
7
THE QUESTIONS ARE SUBSTANTIAL
THE MARYLAND LAW AT ISSUE VIOLATES
THE DUE PROCESS CLAUSE OF THE FOUR-
TEENTH AMENDMENT IN THAT IT FAILS TO
PROVIDE FOR A MEANINGFUL HEARING
BEFORE DISPOSSESSING A SPOUSE OF HIS
REAL PROPERTY.
Section 3-6A-06, which permits a pendente lite award
of the family home to a petitioning spouse without a
preliminary determination that there exist grounds for
divorce or that the evicted spouse presents a danger to
the health, safety, and welfare of the petitioning spouse
or the children of the parties, violates the due process
clause of the Fourteenth Amendment of the United
States Constitution.
The Court of Appeals of Maryland conceded the exist-
ence of the prerequisites invoking the protection of
the Fourteenth Amendment due process clause. First,
appellant’s dispossession of the family home and family
use personal property constituted “state action” because
it entangled the state in the Section 3-6A-06 pendente
kite proceedings. Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974). Second, appellant’s dispossession
of the family home and family use personal property was
a significant taking even though the taking involved only
a possessory interest and is possibly temporary. Fuentes
v. Shevin, 407 U.S. 67 (1972). If there is state action
depriving an individual of a significant property interest,
due process requires a meaningful hearing (Bell v. Burson,
402 U.S. 535 (1971)), at a meaningful time. Goldberg v.
Kelly, 397 U.S. 254 (1970); Fuentes v. Shevin, supra.
The pendente lite hearing was not a meaningful hearing
because the Domestic Relations Master refused to permit
8
testimony pertaining to the merits of appellee’s suit for
divorce. It is clear that in a suit for divorce the existence
of grounds for divorce is the ultimate and central issue.
The Court below cited Lindsey v. Normet, 405 U.S.
56 (1972), and Bianchi v. Morales, 262 U.S. 170 (1923)
as authority for constitutionally limiting the issues at the
pendente lite hearing to the considerations set forth in
Section 3-6A-01(A)(1)-(4). However, these cases do not
provide authority for eliminating from consideration, at
a pre-dispossession hearing, the central and ultimate issue
in the case. To the contrary, in Lindsey v. Normet, supra,
this Court upheld a leasehold repossession statute which
limited consideration at the pre-dispossession hearing to
the very issue raised by the landlord’s suit: whether the
tenant failed to timely pay his rent.
The position of the Court of Appeals of Maryland
that the central issue of a case can be avoided at the
pre-dispossession hearing is contrary to the concept of
“meaningful hearing” and is not in accord with the
applicable decisions of this Court. In Bell v. Burson,
supra, this Court considered a Georgia statute which
required that the driver’s license of an uninsured motoxist
involved in an accident be revoked unless he posted
security sufficient to cover the amount of damages
claimed by the aggrieved parties of the accident. The
Court found this statutory scheme violated due process
because the liability of the uninsured motorist was
excluded from consideration at the Motor Vehicle Ad-
ministration hearing. While this Court has previously
determined that there may exist compelling circum-
stances warranting a pre-hearing seizure of property, an
examination of these cases clearly demonstrates that such
compelling circumstances do not exist in this case. See,
e.g., Calero-Toledo v. Pearson Yacht Leasing Company,
9
416 U.S. 663 (1974) (seizure of yacht transporting
marijuana); Ewing v. Mytinger & Casselberry, Inc., 339
U.S. 594 (1950) (misbranded drugs); Fahey v. Mallonee,
332 U.S. 245 (1947) (bank failure); North American
Cold Storage Company v. Chicago, 211 U.S. 306 (1908)
(contaminated foods). Arguably a pre-hearing seizure
may be warranted if the presence of the spouse in the
family home presents a danger to the health, safety and
welfare of the spotisé seeking the use and possession
order or to the children of the parties. However, there
was no such finding by the Domestic Relations Master
and no such a finding is required by Section 3-6A-06.
This statutory scheme, which has few safeguards
against abuse, permitted appellee to abandon the family
home, to take the children, to file for a pendente lite
use and possession order, and to oust appellant from the
family home. And yet appellant, who may be completely
innocent of any marital fault, can obtain no relief until
the trial on the merits of the divorce action.
Appellant will be accorded the opportunity for the
required meaningful hearing only when the trial on the
merits is reached by the Circuit Court for Montgomery
County, Maryland, in the regular course of administering
its calendar. This trial has twice been postponed due to
a crowded court docket. A trial on the merits which
takes place more than a year after a significant depriva-
tion is well beyond the period of delay rejected by this
Court in Fuentes v. Shevin, supra, at 86:
The Fourteenth Amendment draws no bright lines
around three-day, 10-day or 50-day deprivations
of property. Any significant taking of property by
the State is within the purview of the Due Process
Clause. While the length and consequent severity of
a deprivation may be another factor to weigh in
10
determining the appropriate form of a hearing, it is
not decisive of the basic right to a prior hearing of
some kind.
THE MARYLAND LAW AT ISSUE PERMITS THE
UNLAWFUL TAKING OF PRIVATF PROPERTY
WITHOUT JUST COMPENSATION IN_ VIO-
LATION OF THE FIFTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CON-
STITUTION.
It is well-established that the due process clause of
the Fourteenth Amendment requires a State to pay just
compensation when it takes private property for a public
purpose. Chicago, Burlington & Quincy Railroad Co. v.
Chicago, 166 U.S. 226 (1897).
The State, through its entanglement in the Section
3-6A-06 pendente lite hearing, effectively takes from
appellant his property by awarding to appellee the
exclusive use and possession of appellant’s home and
family use personal property. This taking of appellant’s
property was not accomplished through the institution
of formal eminent domain proceedings by the State.
However, the institution of eminent domain proceedings
by the State is not necessary for a taking of property.
United States v. General Motors Corp., 323 U.S. 373
(1945).
Although there is no taking of the ownership interest
of appellant in the property, the requirement of just
compensation for a constitutional taking of property is
not contingent upon the taking of an ownership interest.
This Court has recognized that a taking of property
subject to a lease requires compensation to the tenant
enjoying the leasehold irterest. United States v. General
Motors Corp., supra. It is clear that the taking of only a
ll
possessory interest in property entitles the owner to just
compensation. It is also clear that even the temporary
taking of a possessory interest requires the payment of
compensation to the owner. United States v. General
Motors Corp., supra.
Appellant submits that he is entitled to compensation
in the amount of the fair market value of his possessory
interest in the family home.” However, there is no provi-
sion in Section 3-6A-06 for compensation to a spouse
evicted from the family home. There was no finding of
fact by the Domestic Relations Master of the amount
necessary to justly compensate appellant for the taking
of his family home. Instead of awarding just compen-
sation to appellant, the Circuit Court ordered appellant
to pay the monthly mortgage on the family home.
The Court of Appeals of Maryland found no taking of
appellant’s property because appellant’s children were
occupying his home. The Court concluded that appellant
has not been deprived of all beneficial use of his prop-
erty and is not entitled to compensation.
The lower court’s reasoning is based on an apparent
assumption that the State’s activity is that of a noncom-
pensable regulation of appellant’s property under its
police power. Whether the State’s interference with
private property is a nonconipensable regulation or a
taking can only be determined by examining the facts
of each case. Penn Central Transportation Co. v. City
of New York, 438 U.S. 104 (1978). Appellant respect-
fully submits that the State’s physical intrusion on his
property is not a regulation but is a taking of his property
‘In fact, under principles of Maryland eminent domain law,
he would receive additional compensation for relocation and
assistance provided for in Md. R. P. Code Ann. 12-202 (a).
12
entitling him to compensation. Causby v. United States,
328 U.S. 256 (1946).
Il.
THIS CASE IS IMPORTANT.
In 1978, approximately 1,128,000 marriages were
dissolved by divorce or annulment in the United States.
In 1979, this number increased to 1,170,000.8 It is
clear that in the United States in 1980 a divorce action
has ceased to be a rare or exceptional legal proceeding.
Thus, the implications of this case render it one of
generic importance to a major segment of this country’s
population.
This population segment is becoming significant in
that the Maryland Property Disposition in Divorce and
Annulment Act represents a developing trend in the
treatment of pending divorce actions by numerous state
legislatures. At this time, there are at least thirteen
states permitting the pendente lite ouster of a spouse
from the family home.? None of these statutes requires
a showing of probable grounds for divorce. Two statutes,
like Maryland’s, do not even require a showing that the
petitioning party or the children of the parties is endan-
gered by the presence of the opposing spouse in the
8Nat’l Center for Health Statistics, Monthly Vital Statistics
Report, Provisional Statistics (DHEW Pub. No. (PHS) 80-1120,
1980).
Cal. Civil Code, § 4359 (a); Colo. Rev. Stat., § 14-10-108 (2);
Conn. Gen. Stat., §46b-83; Del. Code Ann., tit. 15, § 1509 (a)(5);
Ill. Rev. Stat., ch. 40, § 701; Me. Rev. Stat. Ann., tit. 19, § 722-B;
Md. Cts. & Jud. Proc. Code Ann., §3-6A-06; Mass. Gen. Laws
Ann., ch. 208, §34B (West); Mo. Rev. Stat., § 452.315 2(3);
Mont. Rev. Codes Ann., § 40-4-106 (2)(c); N.H. Rev. Stat. Ann.,
§ 458.16; Wash. Rev. Code, § 26.09.060(2)(c); W. Va. Code,
§ 48-2-13.
13
family home.!° The sanction by the Court of Appeals
of Maryland of the constitutionality of Maryland’s
statute renders the statute an appealing model for addi-
tional states desiring to legislate an easy method of
providing temporary shelter to a party awaiting the
resolution of a divorce action.
In light of the predictable acrimony involved in a
contested divorce action and in light of the failure of
these statutes to adequately protect innocent spouses
against abuse, these statutory schemes provide a great
potential for the infringement of individual constitu-
tional rights.
This case is a specific demonstration of the injustice
and unfairness accruing to an individual whose constitu-
tional right to be heard has been infringed. Appellant
was forbidden even to preliminarily dispute the merits
of his spouse’s divorce action and he was stripped of his
home and his possessions. The Maryland statute enforces
the shattering of appellant’s family by prohibiting him
from visiting his children in his own home. Appellant
had no meaningful say in his dispossession and he has
no recourse. And yet Appellant has consistently pro-
fessed his willingness to reconcile with his wife; see e.g.,
(E. 9). This statute is repugnant to the concept of fair
play encompassed in the due process clause because
it permits the grossest of deprivations on the mere
assertion by a party that he or she has grounds for
divorce.
This case represents the first constitutional test of a
radically new statute which substantially alters the right
10Conn. Gen. Stat., § 46b-83; Md. Cts. & Jud. Proc. Code Ann.,
§ 3-6A-06; W. Va. Code, § 48-2-13.
14
of a spouse to occupy his or her home prior to a decree
of divorce. It is a case of significant public interest so
as to require plenary consideration of the Supreme Court
of the United States.
CONCLUSION
For these reasons, this Court should note probable
jurisdiction of this appeal.
Respectfully submitted,
JOHN G. GILL, JR.
ELLEN ANN CALLAHAN
17 West Jefferson Street
Rockville, Maryland 20850
(301) 340-9444
Attorneys for Appellant
APPENDIX
la
APPENDIX A
John W. PITSENBERGER
v.
Mary W. PITSENBERGER,
No. 80.
Court of Appeals of Maryland.
Jan. 31, 1980.
Ellen Ann Callahan, Rockville (Gill & Sippel, Rock-
ville, on brief), for appellant.
Vincent E. Ferretti, Jr., Rockville (Ferretti, Ehrlich
& Gordon, Rockville, on brief), for appellee.
Argued before MURPHY, C.J., and SMITH, DIGGES,
ELDRIDGE, ORTH,* COLE and DAVIDSON, JJ.
MURPHY, Chief Judge.
This is the first case in which we consider the consti-
tutionality of Maryland’s new legislation on property dis-
position in divorce and annulment — ch. 794 of the Acts
of 1978, now codified as Maryland Code (1974), 1979
Cum.Supp. §§3-6A-01 to 3-6A-07 of the Courts and
Judicial Proceedings Article. More specifically, two ques-
tions are raised for our determination:
1. Does §3-6A-06, on its face, violate procedural
due process by authorizing a pendite lite use and pos-
session award of the family home and other property
without a preliminary showing by the petitioning
spouse that grounds exist for a divorce?
*Orth, J., participated in the hearing of the case and the con-
ference in regard to its decision but retired prior to the adoption of
the opinion by the Court.
R 2a
2. Does §3-6A-06 permit the unlawful taking of
private property without just compensation in viola-
tion of the Fifth and Fourteenth Amendments of the
United States Constitution, Article 24 of the Mary-
land Declaration of Rights,! and Article Ill, §40 of
the Maryland Constitution?
John and Mary Pitsenberger were married on June 30,
1962, in Alexandria, Virginia. Five children were born as
a result of the marriage. In August of 1978, Mary left the
family, home in Rockville, Maryland, taking two of the
parties five minor children and $10,000 from the parties’
joint savings account. About one month later, the other
three children went to live with Mary in a small three
bedroom townhouse in Derwood, Maryland. Mary rented
the house on a month-to-month lease, but she was in-
formed that the lease would not be renewed after May of
1979. While living with Mary, the children remained en-
rolled in the neighborhood schools near the family home.
Mary drove them to school each day.
On January 2, 1979, Mary filed a bill of complaint for
a divorce a mensa et thoro on the grounds of construc-
tive desertion in the Circuit Court for Montgomery
County. She sought pendite lite custody of the children,
child support, alimony and, pursuant to §3-6A-06(d), an
exclusive use and possession order for the family home
and family use personal property (furniture, applicances,
household furnishings and a 1973 Dodge Dart). On Feb-
ruary 9, 1979, John filed his answer and a cross-bill of
complaint for divorce a mensa et thoro on the grounds of
desertion.”
I Formerly Article 23 until changed by constitutional amend-
ment, ratified November 7, 1978. See chapter 681 of the Acts of
1977.
2John filed a petition on April 19, 1979 to dismiss his cross
claim for divorce without prejudice.
3a
On February 16, 1979, a hearing was held before a
domestic relations master to determine pendite lite the
issues of child custody and support, alimony, and the
need of the parties and the children to remain in the fam-
ily home. Mary testified that she was on welfare and
lacked funds to rent another house or apartment. Despite
John’s yearly salary of approximately $47,000, she said
she had received no child support since August, 1978.
With respect to alternative living arrangements, Mary
explained that her mother’s residence, a small three bed-
room house in Alexandria, Virginia, provided insufficient
living room for her family. The only other alternative
was to stay at the three bedroom house of her brother-in-
law and his wife and two children. Even if they could
reside there on an emergency basis, she would have to
drive each day from Bowie, Maryland to the children’s
schools. Other testimony was heard respecting the fitness
of each party to have custody of the children. A Court
Investigator’s report indicated that all of the children
expressed a strong desire to live with their mother. The
master refused to hear testimony pertaining to the merits
of Mary’s suit for divorce.
The master recommended that Mary be awarded pen-
dente lite custody of the minor children and that John
pay $1,000 per month child support, as well as pay the
mortgage, taxes and insurance for the family home. The
master also recommended that Mary be awarded pen-
dente lite use of the family home, the family personal
property located in the home and the Dodge Dart, but
recommended that Mary be denied temporary alimony
and initial counsel fees. These recommendations were
adopted by the circuit court on May 23, 1979, and its
order specified that Mary was awarded the exclusive use
of the family home.
4a
On May 24, 1979, an order was issued requiring John
to show cause why he should not be held in contempt
for failing to vacate the family home. In response to
Mary’s petition to hold him in contempt, John raised the
constitutional issues upon which he now appeals. Fol-
lowing a contempt hearing, the circuit court (Mathias, J.)
ruled that §3-6A-06, on its face, does not violate the due
process provisions of the federal and state constitutions,
and does not sanction the unlawful taking of private
property without payment of just compensation. On
June 5, 1979, John vacated the family home. We granted
certiorari prior to determination by the Court of Special
Appeals of John’s appeal from the order of the circuit
court.
I.
The new statute has governed property disposition in
divorce and annulment actions since its effective date of
January 1, 1979. In a preamble to the statute, the Gen-
eral Assembly declared that
“*... it is the policy of this State that marriage is a
union between a man and a women having equal rights
under the law. Both spouses owe a duty to contribute
his or her best efforts to the marriage, and both, by
entering into the marriage, undertake to benefit both
spouses and any children they may have.
‘The General Assembly declares further that it is the
policy of this State that when a marriage is dissolved
the property interests of the spouses should be adjust-
ed fairly and equitably, with careful consideration
being given to both monetary and nonmonetary contri-
butions made by the respective spouses to the well-
being of the family, and further, that if there are minor
3The appeal was taken pursuant to §12-303(a) of the Courts
Article.
5a
children in the family their interest must be given par-
ticular and favorable attention.’ ” (Emphasis added.)
The statute changes Maryland law by empowering courts
to distribute assets acquired during marriage through
monetary awards, §3-6A-05, and use and possession
orders of certain property, §3-6A-06. The legislation
recognizes nonmonetary as well as monetary contribu-
tions to a family, § 3-6A-05(b)(1), and authorizes courts
to equitably distribute property acquired during mar-
riage, §3-6A-05(b)(9). The statute provides various fac-
tors to be considered in granting to a spouse with custody
of a minor child use and possession awards of the family
home and personal property used in the home. See gen-
erally, Comment, Property Disposition Upon Divorce in
Maryland: An Analysis of the New Statute, 8 U.Balt.-
L.Rev. 377 (1979).
This case involves only those sections of the statute
that pertain to pendente lite use and possession awards.
Section 3-6A-06 is applicable to disposition of the fam-
ily home and family use personal property. Definitions
of the “family home” and “family use personal prop-
erty” are provided in §3-6A-01(b) and (c), respectively.
The family home is defined as property in Maryland that:
“(1) was used as the principal residence of the spouses’
when they lived together, (2) at the time of the pro-
ceeding is owned or leased by at least one of the
spouses, and (3) is being used or will be used by at
least one of the spouses and a minor child as their
principal residence.”
Excluded from this definition is property acquired prior
to the marriage, property acquired by inheritence or gift
from a third party, or property excluded by a valid
agreement. The term “family use personal property” is
defined to encompass:
6a
“tangible personal property, acquired during the mar-
riage, owned by either spouse or owned jointly by
both spouses, and used primarily for family purposes.
It includes motor vehicles, furniture, furnishings, and
household appliances.”’
This definition also excludes property acquired by inher-
itance or gift from a third party or property excluded by
valid agreement.
Section 3-6A-06(a) directs that a family home and
family use personal property should be disposed of in
such a manner as 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 per-
sonal property by a spouse with custody of a minor
child who has a need to live in that home.”
Section 3-6A-06(d) provides for a preliminary determin-
ation as to the property which constitutes the family
home and the family use personal property, and auth-
orizes a court to exercise pendente lite powers over these
types of property. In exercising this authority, a court
is directed by §3-6A-06(a) to consider the following fac-
tors:
“(1) The best interests of any minor child;
(2) The respective interest of each spouse in contin-
uing to use the family use personal property or occupy
or use the family home or any portion of it as a dwel-
ling place;
(3) The respective interest of each spouse in contin-
uing to use the family use personal property or occupy
or use the family home or any part of it for the pro-
duction of income;
7a
(4) Any hardship imposed upon the spouse whose in-
terest in the family home or family use personal prop-
erty is infringed upon by an order issued under this
section.”
A temporary or a final order concerning the family home
or family use personal property may not exceed a three-
year period from the time an.absolute or limited divorce
or annulment is granted. §3-6A-06(e). There is no pro-
vision for a preliminary determination of the existence
of grounds for a divorce.
IT.
John argues that §3-6A-06(d) violates his right to pro-
cedural due process guaranteed by the Fourteenth
Amendment of the federal constitution and Article 24
of the Maryland Declaration of Rights. He claims that
he was deprived of the use of his home without a prelim-
inary determination that Mary has grounds for a divorce.
Preliminarily, it should be pointed out that Article 24
of the Maryland Declaration of Rights and the Four-
teenth Amendment of the United States Constituion have
the same meaning, and that Supreme Court interpreta-
tions of the Fourteenth Amendment function as author-
ity for interpretation of Article 24. Barry Properties v.
Fick Bros., 277 Md. 15, 22, 353 A.2d 222 (1976); Bur-
eau of Mines v. George’s Creek, 272 Md. 143, 156, 321
A.2d 748 (1974).
Several issues are presented when analyzing a conten-
tion that a state has deprived one of his property without
due process of law, see generally, Riger v. L & B Ltd.
Partnership, 278 Md. 281, 288-89, 363 A.2d 481 (1976),
but before discussing these issues it should be made clear
that John’s argument is based on a violation of proced-
ural due process rather than substantive due process.
8a
Indeed, John makes no contention that the legislature
acted arbitrarily in enacting the family home and family
use personal property provisions contained in § 3-6A-06.
See Governor v. Exxon Corp., 279 Md. 410, 423-26, 370
A.2d 1102 (1977), aff'd, 437 U.S. 117, 98 S.Ct. 2207, 57
L.Ed.2d 91 (1978).
The first prerequisite to raising a due process argument
is that the action complained of must constitute “state”
action. Jackson v. Metropolitan Edison Co., 419 U.S.
345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); Barry Proper-
ties v. Fick Bros., supra, 277 Md. at 22-23, 353 A.2d 222.
Next, the state action must result in a “deprivation” of
the complainant’s interest, Fuentes v. Shevin, 407 U.S.
67, 84, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Barry
Properties v. Fick Bros., supra, 277 Md. at 23, 353 A.2d
222; and such interest must be a “property” interest
within the meaning of the due process clause. Goss v.
Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 737, 42 L.Ed.2d
725 (1975); Board of Regents v. Roth, 408 U.S. 564,
569-72, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Fuentes
v. Shevin, supra, 407 U.S. at 84.. Finally, if state action
deprives one of a property interest, the court must bal-
ance the various interests at stake in order to determine
the procedural due process which is constitutionally
required under the circumstances. Hortonville Dist. v.
Hortonville Ed. Assn., 426 U.S. 482, 494-96, 96 S.Ct.
2308, 49 L.Ed.2d 1 (1976); Mathews v. Eldridge, 424
U.S. 319, 332-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976);
Goss v. Lopez, supra, 419 U.S. at 577-80, 95 S.Ct. 729;
Mitchell v. W.T. Grant Co., 416 U.S. 600, 604, 607, 610,
94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
It is clear that the remedy of §3-6A-06 involves state
action because it is created, regulated and enforced by
the State. See Barry Properties v. Fick Bros., supra, 277
9a
Md. at 22-23, 353 A.2d 222 (mechanics’ liens involve
state action). There appears to be no significant differ-
ence in the degree or type of state participation in
§ 3-6A-06 proceedings as compared with the statutes per-
mitting seizure of property pendente lite that the Sup-
reme Court has voided on due process grounds. See North
Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601,
95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (garnishment);
Mitchell v. W.T. Grant Co., supra (sequestration under a
vendor’s lien); Fuentes v. Shevin, supra (replevin); Snia-
dach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct.
1820, 23 L.Ed.2d 349 (1969) (garnishment). Obviously,
in voiding these statutes, the Court necessarily concluded
that those prejudgment remedies sufficiently involved the
statc so as to activate due process protections. Section
5-6A-06 effectively creates a right in one tenant to
remove a cotenant from property owned by tenants by
the entirety, and thereby totally entangles the State in
§ 3-6A-06 pendente lite proceedings. The enforcement
provision of the statute, §3-6A-07(a), states: “An order,
award, or decree entered under this subtitle may be en-
forced in accordance with the Maryland Rules.” In order
to enforce a use and possession order, a court may direct
the sheriff to eject an objecting spouse from the family
home. Thus, §3-6A-06 pendente lite determinations,
created, regulated and enforced by the State, sufficiently
involve state action so as to activate Fourteenth Amend-
ment protection.
The .second prerequisite to the applicability of pro-
cedural due process protections in this case is “depriva-
tion” of property. See Fuentes v. Shevin, supra, 407
U.S. at 84-86, 92 S.Ct. 1983. John’s property interest
in the family home originates from a deed granted to
him and his wife as tenants by the entirety. The family
use personal property consists of property purchased by
10a
John and Mary during their seventeen-year marriage.
Although the use and possession order obtained by Mary
deprived John of his possession but not his title to the
family home and family use personal property, the Sup-
reme Court has held that possessory interests in prop-
erty are within the protection of the Fourteenth Amend-
ment. /d.
The fact that John’s dispossession of the family home
and the family use personal property may be temporary
does not render due process requirements inapplicable.
John’s dispossession may be considered temporary in
the sense that he may regain possession of his property
if Mary fails to prove grounds for a divorce. Further-
more, if Mary successfully establishes grounds for div-
orce, John may regain the use of his property if he is
awarded custody of the children. §3-6A-06(a). In any
event, the Supreme Court has pointed out that “‘a tem-
porary, nonfinal deprivation of property is nonetheless a
‘deprivation’ in the terms of the Fourteenth Amend-
ment.” Fuentes v. Shevin, supra, 407 U.S. at 85, 92 S.Ct.
at 1996. See Sntadach v. Family Finance Corp., supra;
Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d
90 (1971). As of December 31, 1979, John has been dis-
posessed of his property for over six months. With
respect to the length of a deprivation, the Supreme Court
said in Fuentes, supra, 407 U.S. at 86, 92 S.Ct. at 1997:
“The Fourteenth Amendment draws no bright lines
around three-day, 10-day, or 50-day deprivations of
property. Any significant taking of property by the
State is within the purview of the Due Process Clause.
While the length and consequent severity of a depri-
vation may be another factor to weigh in determin-
ing the appropriate form of hearing, it is not decisive
of the basic right to a prior hearing of some kind.”’
lla
Thus, John’s possessory interest in the family home and
family use personal property is entitled to the protection
of procedural due process of law.
Once it is determined that an interest is entitled to due
process protection, the pertinent inquiry then becomes
what process is due. Goss v. Lopez, supra, 419 U.S. at
577, 95 S.Ct. at 738. The Supreme Court has recognized
that interpretation of the due process clause is a practical
matter which must be approached with the realization
that due process “negates any concept of inflexible pro-
cedures universally applicable to every imaginable situa-
tion.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895,
81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Determing what
process is due requires consideration and accommodation
of both the government and private interests. Hortonville
Dist. v. Hortonville Ed. Assn., supra, 426 U.S.at 494, 96
S.Ct. 2308. This essentially involves balancing the var-
ious interests at stake. Riger v. L & B Limited Partner-
ship, supra, 278 Md. at 289, 363 A.2d 481. At a mini-
mum, due process requires that a deprivation of property
be preceded by “‘... notice and opportunity for hearing
appropriate to the nature of the case.’ ” Goss v. Lopez,
supra, 419 U.S. at 579, 95 S.Ct. at 738 (quoting Mullane
v. Central Hanover Trust Co., 339 U.S. 306, $15, 70 S.Ct.
652, 94 L.Ed. 865 (1950)). Fundamentally, due process
requires the opportunity to be heard “ ‘at a meaningful
time and in a meaningful manner.’ ” Mathews v. El-
dridge, supra, 424 U.S. at 333, 96 S.Ct. at 902 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,
14 L.Ed.2d 62 (1965).
John argues that procedural due process requires a
hearing before a spouse can obtain pendente lite the
family home and family use personal property. He fur-
ther asserts that a pendente lite hearing, in order to be
12a
meaningful, must inquire into the probability that a
spouse seeking a use and possession order will ultimately
succeed on the merits of the divorce action. Otherwise,
he helieves, a party may obtain pendente lite that which
he could not obtain if there were no grounds for divorce:
the exclusive use of the family home and family use per-
sonal property. In surn, John argues that the § 3-6A-
06(d) hearing was meaningless because it avoided what he
considers to be the very subject of dispute, namely,
whether Mary had grounds for a divorce.
In addressing John’s attacks on the constitutionality of
§ 3-6A-06, we begin by considering the nature of his
interests at stake. Next, John’s interests in obtaining a
hearing on the probable grounds for divorce prior to a
pendente lite award must be weighed against the State’s
interest in implementing the procedure specified in §3-
6A-06. It should also be recognized that the State’s inter-
est, under the facts of this case, is essentially the same as
the interest of Mary and the parties’ children.
John’s interest is not to be deprived of the use of his
home and family use personal property without a prior
hearing which establishes that Mary has probable grounds
for divorce. His interest is to avoid the hardship and ex-
pense imposed on a parent who is ordered to give exclus-
ive use of the home to his children and the parent who
has been awarded custody. John argues that § 3-6A-06
pendente lite determinations may cause gross injustice.
He asserts that this section permits a spouse to leave the
family home, without grounds for divorce, and to take
the minor children and request a pendente lite use and
possession decree in order to evict his spouse from the
family home. Due to crowded court dockets, he claims
that the evicted spouse is prevented from obtaining im-
mediate relief from this hardship.
13a
In opposition to John’s interests, the State’s interest
is to ensure that when a marriage is dissolved, the inter-
ests of minor children in the family are given “particular
and favorable attention” — this being the policy of the
State as declared by the General Assembly in the pre-
amble to the statute. In enacting §3-6A-06, the State’s
provision of pendente lite use and possession awards is
intended to give special attention to the needs of minor
children to continue to live in a familiar environment for
the temporary duration of the pendente lite period.
The procedure provided for in §3-6A-06 seeks to avoid
uprooting the children from the home, school, social and
community setting upon which they are dependent,
especially during the period of parental separation. Dur-
ing this period, due to the contentious behavior of the
parents, the children have the greatest need for a stable
environment to help them overcome the family instabil-
ity. Finally, to be considered in conjunction with the
State’s and children’s interests in the pendente lite pro-
cedure, Mary also has an interest in continuing to occupy
the family home, which she owns with John as a tenant
by the entirety.
The legislature was aware in enacting §3-6A-06 that
conflicting interests must be considered and accommo-
dated prior to pendente lite use and possession awards.
This accommodation of interests is reflected in § 3-6A-
06(a) which ensures fairness by requiring a court to weigh
various needs and interests of the spouses and the chil-
dren. Prior to a pendente lite determination, which is
subject to later modification, a court must consider the
best interests of the children, the interests of each spouse
in continuing to use the family home for a dwelling place
or for production of income, and finally the court must
consider any hardship on the spouse whose interest in the
l4a
family home or family use personal property would be
interfered with by a pendente lite award. §3-6A-06(a)
(1)-(4).
Notwithstanding this procedure, which is carefully
designed to accommodate the conflicting interests pres-
ent pending dissolution of a marriage, John asserts that
the pendente lite hearing is meaningless because the exis-
tence of probable grounds for a divorce is not a matter
that must be considered prior to a pendente lite award.
In other words, John argues that §3-6A-06 pendente
lite determinations violate procedural due process be-
cause of the legislature’s decision to restrict the pendente
lite hearing to a consideration of the interests specified in
section 3-6A-06(a)(1)-(4). It has been established, how-
ever, that a state may properly limit the issues which may
be raised at a hearing prior to a proposed deprivation of
interests, if (1) the previously ignored issue may be raised
at a subsequent hearing, and (2) the postponement fur-
thers an important state purpose. See Lindsey v. Normet,
405 U.S. 56, 64-69, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972);
Bianchi v. Morales, 262 U.S. 170, 171, 43 S.Ct. 526, 67
L.Ed. $28 (1923); L. Tribe, American Constitutional Lavy
552-53 (1978).
With respect to the first requirement that must be ful-
filled in order to properly limit the issues that may be
raised at a predeprivation hearing, John’s concern that no
grounds for a divorce exist will be considered at the ad-
versary hearing on the merits of Mary’s divorce com-
plaint. Section 3-6A-06 pendente lite determinations also
satisfy the second requirement. In enacting §3-6A-06,
the legislature decided not to require a preliminary find-
ing of grounds for divorce as a prerequisite to a pendente
lite award. Imposing the additional requirement that
probable grounds for divorce be proven would seriously
15a
impair the effectiveness of the statute in protecting the
children’s welfare. In many cases, the existence of
grounds for a divorce cannot be proven until a final div-
orce trial. Section 3-6A-06 is designed to ensure that
minor children need not suffer up to the point when
grounds for a divorce may be proven. Because the main
purpose of §3-6A-06 is protection of the children’s
interests, the children must be permitted to reside in
the family home regardless of the existence of probable
grounds for a divorce.* In conclusion, pendente lite use
and possession orders awarded after a consideration of
the four elements in §3-6A-06(a) satisfy procedural due
process by effecting a constitutional accommodation of
opposing interests.
III.
John next argues that § 3-6A-06 permits the unlawful
taking of private property without just compensation in
violation of the Fifth and Fourteenth Amendments of
the United States Constitution, Article 24 of the Mary-
land Declaration of Rights, and Article Ill, section 40 of
the Maryland Constitution.®° John contends that the use
and possession order signed by the court on May 23,
1979 effectively takes his property by awarding Mary the
exclusive use of the family home and family use personal
* John also baldly asserts, without supporting argument that
he should not have been evicted from the family home absent a
finding that he endangered the health, safety or welfare of his
children or spouse. In response to this assertion, it should be
recognized that section 3-6A-06(a) satisfied the requirements of
procedural due process through its provision of the four elements
that must be considered prior to a pendente lite award.
5 Article III, §40 and the Fourteenth Amendment have the
same meaning in reference to a “taking’’ of property. Bureau of
Mines v. George’s Creek, supra, 272 Md. at 156, 363 A.2d 481.
l6a
property. John asserts that he is entitled to compensa-
tion in the amount of the fair market value of his pos-
sessory interest in the family home and for relocation
expenses.
To constitute a taking in the constitutional sense, so
that the State must pay compensation, the state action
must deprive the owner of all beneficial use of the prop-
erty. Md.-Nat’'l Cap. P. & P. Comm’n v. Chadwick, 286
Md. 1, 10-11, 405 A.2d 241 (1979); Governor of Mary-
land v. Exxon Corp., supra, 279 Md. at 437, 370 A.2d
1102. As these cases indicate, it is not enough for the
property owner to show that the state action causes sub-
stantial loss or hardship. John, as guardian of his minor
children, is charged with their support, care and welfare.
Maryland Code (1957, 1978 Repl. Vol.), Art. 72A, §1.
Because his children have the use of the family home and
family use personal property, John is in fact using his
property to properly house his children. John therefore
has not been deprived of all beneficial use of his prop-
erty. In sum, the use and possession order does not
amount to a “taking” of private Property in violation of
the federal or state constitutions.
We thus conclude that Mary was properly awarded
pendente lite use and possession of the family home, and
family use personal property.
ORDER AFFIRMED, WITH COSTS.
© Because we have not found a “‘taking”’ in the constitutional
sense, it is unnecessary to address John’s argument that his prop-
erty was taken for the private use of another.
17a
APPENDIX B
IN THE CIRCUIT COURT
FOR MONTGOMERY COUNTY, MARYLAND
Sitting as a Court of Equity
Equity No. 65624
[Filed: May 31, 1979]
MARY W. PITSENBERGER,
Plaintiff,
v.
JOHN W. PITSENBERGER,
Defendant.
MEMORANDUM OPINION AND ORDER
Defendant husband is in possession of the “family
home” and has made it clear that he will not voluntarily
yield exclusive possession to his wife who has obtained
a pendente lite order requiring him to do so. The upshot
is that he has been brought into court on a contempt
citation. His defense is that the “family home” section
of the new act on property disposition in divorce and
annulment cases is unconstitutional.
The subject property in this case meets the definition
of “family home” as set out in Section 3-6A-01 CJ.
It is owned as tenants by the entireties and was the
principal residence of the parties and their five children
when they lived together before August 19, 1978, when
the wife left, allegedly because of her husband’s cruel
and vicious conduct.
18a
Section 3-6A-06 and subsections (c)(1)(d) are the
particular portions of the property disposition act which
are alleged to be unconstitutional. Subsection (c)(1)
reads:
“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 continued possession and use of that
property or it may divide the possession and use of
the property between them.”
Subsection (d) reads:
“The court may make a preliminary determi-
nation of which property is the family home or
family use personal property and may exercise
pendente lite the powers over the family home and
family use personal property which are granted in
this section. These preliminary and pendente lite
determinations are subject to modificiation during
the pendency of the proceeding.”
The defendant relies on subsection (b) for the proposi-
tion that the court may only exercise such power over
real property “when granting a limited or absolute
divorce or annulment.” Such is not our interpretation
of the statute. We must look at the statute as a whole
and attempt to harmonize its parts. It seems clear to us
that the legislature meant to give the court power over
real property used as a family home not only when
granting a divorce or annulment but also preliminarily
by way of a pendente lite order.
The defendant also attacks the law on due process
grounds, alleging an unconstitutional taking of property
prior to a hearing and determination of the basic issue
of whether plaintiff is entitled to a divorce. Defendant
cites as authority the Fifth and Fourteenth Amendments
19a
to the Federal Constitution and Article 23 of the Mary-
land Declaration of Rights. We reject the notion that due
process requires first a determination that the plaintiff
is entitled to a divorce. The legislature has specifically
declared the courts may pendente lite exercise the power
granted over the “family home.”
Defendant points out abuses may occur, as, for
example, a fraudulent claim for divorce for the purpose
of expelling a spouse from the marital home. But there
is the possibility of abuse in all pendente lite orders.
We point out, however, that in the statute under review
there is a safeguard. Subsection (d) says “pendente lite
determinations are subject to modification during the
pendency of the proceeding.”
It is true that historically “the estate by the entireties
in Maryland has all its common law incidents.” Foland
v. Hoffman, 186 Md. 423. But common law rights are
subject to change by the legislature. Basta v. State, 133
Md. 568.
While in accordance with the common law our courts
have always held to the concept that neither tenant by
the entireties may dispossess the other, there is no bar
to the legislature changing this concept, as has been done
in new subtitle 6A. |
The defendant here was afforded a hearing before the
Master on a show cause order that put him on notice
that the court would be asked to grant plaintiff and her
children the right to possesss and use the “family home.”
We cannot agree with defendant that the new property
disposition law in divorce and annulment cases violates
the due process provisions of the federal or state con-
stitution or amounts to an unlawful taking of private
property.
#*%
20a
The new law contains no specific recital of sanctions
that may be used. We shall assume it was the legislative
intent that the court’s usual contempt power be used in
appropriate cases to enforce its orders. We cannot say
here that the defendant has willfully and deliberately
violated the pendente lite order of this court because
he may have been under an honest misapprehension as
to the meaning of the law. Therefore, we shall not find
him in contempt but shall instead order him by 12:00
noon on June 5, 1979, to deliver to his wife and five
children exclusive possession of the home at 14937
Walkerway Drive (sic), Rockville, Maryland. His failure
to do so shall be regarded as a contempt punishable under
the contempt power of this court.
So ORDERED this 29th day of May, 1979.
/s/ Joseph M. Mathias
Judge of the Circuit Court for
Montgomery County, Maryland
Pla
APPENDIX C
IN THE CIRCUIT COURT
FOR MONTGOMERY COUNTY, MARYLAND
Equity No. 65624
[Filed: April 21, 1980]
MARY W. PITSENBERGER,
Plainttff,
v.
JOHN W. PITSENBERGER,
Defendant.
NOTICE OF APPEAL TO THE
SUPREME COURT OF THE
UNITED STATES
Notice is hereby given that John W. Pitsenberger,
Defendant in the above-entitled case and appellant in
Appeal No. 80 in the Court of Appeals of Maryland,
hereby appeals to the Supreme Court of the United
States from the final judgment of the Court of Appeals
of Maryland filed January 31, 1980 holding constitu-
tional Section 3-6A-06, Courts and Judicial Proceeuings,
Annotated Code of Maryland.
This appeal is taken pursuant to 28 U.S.C. Section
1257(2).
22a
/s/ Ellen Ann Callahan
Attorney for Defendant/Appellant
17 West Jefferson Street
Rockville, Maryland 20850
(301) 340-9444
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing
Notice of Appeal to the Supreme Court of the United
States on Vincent E. Ferretti, Jr., Attorney for Appellee,
by placing said copy in an envelope with first class post-
age prepaid addressed to said attorney at 416 Hungerford
Drive, Rockville, Maryland 20850, which is his post
office address, and by depositing said envelope and its
contents in a United States mail box in Rockville, Mary-
land, this 21st day of April, 1980. All parties required
to be served have been served.
/s/ Ellen Ann Callahan
Attomey for Defendant/Appellant
17 West Jefferson Street
Rockville, Maryland 20850
(301) 340-9444
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APPENDIX D
STATUTES AND RULES
Subtitle 6A. Property Disposition in Divorce and Annul-
ment, Courts and Judicial Proceedings, Annotated
Code of Maryland.
§ 3-6A-01. Definitions.
(a) Jn general.— As used in this subtitle, the follow-
ing words have the meanings indicated:
(b) Family home.—“Family home” is the property
in this. State that: (1) was used as the principal resi-
dence of the spouses when they lived together, (2) at
the time of the proceeding is owned or leased by at
least one of the spouses, and (3) is being used or will
be used by at least one of the spouses and minor child
as their principal residence. It does not include prop-
erty acquired prior to the marriage, property acquired
by inheritance or gift from a third party, or property
excluded by valid agreement.
(c) Family use personal property.—“Family use
personal property” is tangible personal property,
acquired during the marriage, owned by either spouse
or owned jointly by both spouses, and used primarily
for family purposes. It includes motor vehicles, furni-
ture, furnishings, and household appliances. However,
it does not include property acquired by inheritance or
gift from a third party, or property excluded by valid
agreement.
* ok x
**
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§ 3-6A-06. Family Home; Family Use Personal
Property.
(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 cus-
tody of a minor child who has a need to live in that
home. However the use, occupancy, and possession
of the family home may not be continued under the
authority conferred by this section if the spouse
having the use, occupancy, and possession remarries;
and also the use and possession of family use personal
property may not be continued under the authority
conferred by this section if the spouse having the use
and possession remarries. 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 con-
tinuing 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 con-
tinuing 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.
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(b) When granting a limited or absolute divorce,
or annulment, the court may determine which prop-
erty 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 pay-
ments 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.
(d) The court may make a preliminary determina-
tion of which property is the family home or family
use personal property, and may exercise pendente
lite the powers over the family home and family use
personal property which are granted in this section.
These preliminary and pendente lite determinations
are subject to modification during the pendency of
the proceeding.
(e) Any provision in any temporary or final order
or decree concerning the family home or family use
personal property is subject to the terms and condi-
tions and limited to the period of time specified by the
court, and is subject to modification or dissolution
by the court, as the circumstances and justice may
require. However, any such order or decree or any
modification thereof concerning the family home or
family use personal property shall be made for a time
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period not to exceed 3 years from the date of the
granting of the limited or absolute divorce, or annul-
ment. Nevertheless, if the provision concerning the
family home or family use personal property is a part
of an order or decree incident to a divorce a mensa
et thoro, the provision may not subsequently be
extended for an additional period of time as part
of an order or decree incident to a divorce a vinculo
matrimonii.
(f) Upon the termination of an order issued under
this section of the family home or family use personal
property, the property shall be treated as marital
property if it so qualifies, and the court shall consider
the factors set forth in § 3-6A-05(b) in arriving at a
division of the proceeds or value of the property. If
however, the family home or the item of family use
personal property was acquired by one of the parties
before marriage or by inheritance, or was acquired by
gift by one of the parties from a third party or was
excluded by valid agreement, then upon termination
of the order the property shall be awarded to the party
who owns it.
(g) If the court determines that there is no need
for an order issued under this section regarding the
family home or all or any items of family use personal
property, the property shall be treated as marital
property if it would otherwise have been treated as
marital property.
§ 3-6A-07. Enforcement.
(a) An order, award, or decree entered under this
subtitle may be enforced in accordance with the
Maryland Rules.
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RULES OF THE SIXTH JUDICIAL CIRCUIT
OF MARYLAND, RULE S74.
a. Scope.
In Counties having a full-time Domestic Relations
Master, or Masters, this rule shall apply. (Revised July 1,
1971)
b. Referral.
The Court, in its discretion, shall direct the Clerk to
refer to the Domestic Relations Master actions in which a
hearing has been requested, including but not limited to
the following. A bill or petition:
(i)
(ii)
(iii)
(iv)
for alimony pendente lite; or for support, cus-
tody and visitation of children pendente lite, or
for initial counsel fee;
for modification of existing orders or decrees to
increase or decrease the amount of alimony or
child support, or to change the custody of minor
children or provisions for child visitation;
for divorce, annulment, custody or separate
maintenance in which there is a decree pro con-
fesso or where the action is at issue as a result of
an answer having been filed but in which there is
no actual contest and where the parties have not
specifically requested a hearing before the Court;
however, in cases where an answer has been filed
but there is no actual contest, the file shall not be
referred to the Domestic Relations Master until
both counsel have filed with the Clerk a praecipe
(or praecipes) stating that there is no actual
contest as to any issue;
originally seeking separate maintenance, ali-
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mony or child support wherein it is the amount
thereof and not the right thereto that is actually
contested. 4
filed pursuant to the Uniform Reciprocal En-
forcement ot Support Act (Article 89C) where
this State is the initiating State or the responding
State.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.