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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2496 September Term, 2004

JAMES K. HART v. CYNTHIA M. HART

Murphy, C.J., Adkins, Thieme, Raymond G., Jr., (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: June 2, 2006

Appellant James K. Hart challenges a judgment of divorce awarding appellee Cynthia M. Hart, inter alia, two-thirds of the proceeds from the sale of the family home and indefinite alimony. We shall vacate that judgment, and in doing so, hold that a court ordering the sale of a jointly titled family home once the use and possession period for that property expires may not divide those sale proceeds unequally rather than adjusting the equities between the parties via a separate monetary award. FACTS AND LEGAL PROCEEDINGS James and Cynthia Hart divorced after 24 years of marriage. They resolved custody, visitation, and support issues regarding their children,1 only one of whom remained a minor at the time of the divorce. Our focus is on the property matters that were

resolved at trial and are the subject of this appeal. During their separation, the Harts agreed that Cynthia would have use and possession of the marital home held as tenants by the entireties, which they stipulated to be worth $356,000. Under the

terms of the agreement, Cynthia's use and possession period ends August 15, 2006, shortly before the youngest Hart child reaches his 18th birthday. At trial, Cynthia Hart was 52. Before she married, she earned a master's degree in education and reading. During the marriage,

The eldest two children, Gregory and Shanna, were over 18 by then. Brady, born April 23, 1993, died October 1, 1995. Patrick, born September 6, 1988, was the only child living at home after the parties separated on November 9, 2002.

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she worked full time in banking until 1993, with her highest salary being $26,000. Thereafter, she worked in educational positions

that did not require teacher certification, which she had not obtained. In the three years before trial, Cynthia earned $15,000

in salary plus an annual dividend of $6,000, working as a language enrichment specialist. In June 2004, as a result of lost funding, Cynthia's position was terminated. and banking. She unsuccessfully applied for jobs in education Eventually, she began the process of completing

requirements for teaching certification, which she estimated would take two years and yield a starting salary of $34,975.00 plus eventual eligibility for pension benefits. During the marriage, Cynthia inherited money from her mother's estate. She spent approximately $120,000 on family expenses, At the

including paying private school tuition for the children.

time of trial, she had approximately $567,000 of her inheritance remaining. James Hart was 50 at the time of trial. During the marriage,

James completed his bachelor's degree and earned a masters in business administration in the evenings. He simultaneously worked At trial, James was

full time during the day for Northrop Grumman.

in his 29th year at Northrup Grumman, earning an annual salary of $112,000. He also earned retirement benefits and a $15,000 annual

bonus in 2004.

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James and Cynthia had a comfortable but not extravagant lifestyle during the marriage. They purchased a vacation

condominium in Ocean City.

They also lived in a series of three

homes that pertain to this appeal. In 1977, before the marriage, James bought a home on Summit Road. The couple lived there when they married in 1980. While in

In 1981, they purchased a house on Whitney Road.

high school, Cynthia had received a personal injury settlement; she used $29,000 of this money to make the down payment on the Whitney Road property. The Harts lived there until they purchased their

final marital home on Albacore Drive. Because the Whitney Road home had not been sold before

settlement on Albacore Drive, the Harts borrowed $40,000 from Cynthia's mother and took a home equity loan against the Whitney Road property in order to complete the Albacore Drive purchase. These two loans were repaid entirely with proceeds of the

subsequent sale of the Whitney Road house. James eventually sold his Summit Road house sometime after the move to Albacore Drive. He claims that he deposited $30,000 in

proceeds from that sale into Cynthia's individual bank account, and that the couple then used $26,000 of those funds to make mortgage payments on Albacore Drive. Cynthia counters that James told her

that he sold the Summit Road property for a loss, and denies that any money from that sale was deposited into the marital account or

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used to make mortgage payments on the Albacore Road property. In the summer of 2000, Cynthia learned that James was having an extramarital affair. According to Cynthia, James then deceived

her into believing that he ended his adulterous relationship. Instead, he continued to live in the marital home and have marital relations with her, at the same time he maintained a sexual relationship with his paramour and made plans for divorce. During this time, Cynthia paid family bills from her inheritance,

including all mortgage payments and private school tuition. James filed for divorce on July 25, 2003. Until October 2003, James deposited his entire paycheck into the marital checking account. He continued to pay some household expenses thereafter. James was paying only

By May 2004, Cynthia had lost her job. utility bills that were in his name.

Cynthia paid all other

expenses for her, their minor child, and the Albacore Drive home from her inheritance. After a four day trial, the Circuit Court for Anne Arundel County entered a judgment on December 21, 2004. The court ordered

the Albacore Drive home to be sold at the end of the use and possession period, and that the net sale proceeds be divided unequally, with two-thirds allocated to Cynthia and one-third to James. The court also awarded Cynthia rehabilitative and

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indefinite alimony.2

James noted this appeal,3 raising several

issues that we consolidate and restate as follows: I. Did the trial court err in awarding Cynthia a two-thirds interest in the net proceeds from the sale of the family home following the use and possession period? Did the trial court err in Cynthia indefinite alimony? awarding

II.

We shall vacate the judgment because the trial court erred in dividing the home sale proceeds unequally, possibly in lieu of making a separate monetary award. Although there was evidence that might support an indefinite alimony award, we cannot affirm the decision to make such an award because the trial court failed to make the threshold finding that, even after a period of

rehabilitative alimony, Cynthia's living standard would still be unconscionably lower than James's. DISCUSSION I. Unequal Division Of Sale Proceeds From Family Home A. Sale Of Family Home Held As Tenants By The Entireties Following Use And Possession Order Under FL sections 8-203 to 8-205, Maryland courts must (1) determine which of a divorcing couple's property is marital

Cynthia moved for reconsideration or to amend the judgment. After a hearing, James's alimony arrearage was adjusted. That aspect of the judgment has not been challenged in this appeal.
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Cynthia withdrew her cross-appeal before briefing. 5

property, (2) value such property, and then (3) determine whether to grant a monetary award "as an adjustment of the equities and rights of the parties[.]" See Kelly v. Kelly, 153 Md. App. 260, FL section 8-202(b)(2) provides

270 (2003); FL

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