The purpose of this article is to define the purpose of, and the criteria for use and possession of the Family home.
Maryland Rule 9-208. Referral of matters to masters states that:
(1) As of course.- If a court has a full-time or part-time standing master for domestic relations matters and a hearing has been requested or is required by law, the following matters arising under this Chapter shall be referred to the master as of course unless the court directs otherwise in a specific case:
(E) preliminary or pendente lite possession or use of the family home or family-use personal property;...
(G) subject to Rule 9-205 as to child access disputes, constructive civil contempt by reason of noncompliance with an order or judgment relating to custody of or visitation with a minor child, the payment of alimony or support, or the possession or use of the family home or family-use personal property (emphasis added), following service of a show cause order upon the person alleged to be in contempt;
(H) modification of an existing order or judgment as to the payment of alimony or support or as to the possession or use of the family home or family-use personal property (emphasis added);
The purpose of the statutes pertaining to use and possession of the family home or family use property is to protect the interest of minor children. Pursuant to Family Law Article 8-206. Family home; family use personal property - The court shall exercise its powers under ºº 8-207 through 8-213 of this subtitle:
(1) to enable any child of the family to continue to live in the environment and community that are familiar to the child; and
(2) to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home (emphasis added).
Use and possession of family use property or the family home can only be awarded to a married custodial parent. In accordance with Family Law Article º 8-207 (a) Determination.- In a proceeding for an annulment or a limited or absolute divorce, the court may determine which property is the family home and family use personal property (1) before the court grants an annulment or a limited or absolute divorce; or (2) when the court grants an annulment or a limited or absolute divorce. Therefore, as a practice point, it is advisable to file a Complaint for Absolute or Limited Divorce, rather than just a Complaint for Custody, if the parties are married, and there is a family home.
During the pendency of the proceeding, the use and possession determination may be modified, pursuant to Family Law Article º 8-207:
(b) Modification.- A preliminary or pendente lite determination is subject to modification during the pendency of the proceeding.
If the court finds that the property is not family use property, pursuant to 8-207(c) ... the property shall be treated as marital property if it otherwise would have been treated as marital property.
It is interesting to note that the Court may divide use and possession of family use property:
Family law Article 8-208 states that:
(1) When the court grants an annulment or a limited or absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased (emphasis added), the court may:
(i) decide that 1 of the parties shall have the sole possession and use of that property; or
(ii) divide (emphasis added)the possession and use of the property between the parties.
It is important to note that the statute requires the Court to consider the following in rendering its decision on use and possession:
(1) the best interests of any child;
(2) the interest of each party in continuing:
(i) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it as a dwelling place (emphasis added); or
(ii) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it for the production of income (emphasis added); and
(3) any hardship imposed on the party whose interest in the family home or family use personal property is infringed on (emphasis added) by an order issued under ºº 8-207 through 8-213 of this subtitle.
Furthermore, the Court may determine the financial responsibility of the parties in maintaining family use property:
(c) Allocation of financial responsibilities.- The court may order or decree that either or both of the parties pay all or any part of:
(1) any mortgage payments or rent;
(2) any indebtedness that is related to the property;
(3) the cost of maintenance, insurance, assessments, and taxes; or
(4) any similar expenses in connection with the property.
(d) Effect of award of sole possession and use.- An order giving a party the sole possession and use of the family home under subsection
(a) of this section does not affect the right of the other party to claim the family home as that party's principal residence for tax purposes.
Pursuant to Family law Article 8-209, in a temporary or final Judgment, the Order concerning use and possession is subject to: 1) the terms and conditions that the court sets; (2) the time limits that the court sets, subject to º 8-210 of this subtitle; and (3) modification or dissolution by the court.
The usual benchmark for the termination of a use and possession order , as defined by Family Law Article º 8-210 is:
(1) In any order or decree, or any modification of an order or decree, a provision that concerns the family home or family use personal property shall terminate no later than 3 years after the date on which the court grants an annulment or a limited or absolute divorce.
(2) The 3-year limitation set out in paragraph (1) of this subsection applies to a limited divorce notwithstanding the subsequent granting of an absolute divorce.
(b) Remarriage of party with possession or use of property (emphasis aded).- Subject to the provisions of subsection (a) of this section, in any order or decree, or any modification of an order or decree, a provision that concerns the family home or family use personal property shall terminate when the party with the possession or use of the property remarries.
(c) Treatment of property.- When a provision that concerns the family home or family use personal property terminates, the court shall treat the property as marital property if the property qualifies as marital property, and adjust the equities and rights of the parties concerning the property as set out in º 8-205 of this subtitle
As a practice point, it would be advisable not to have the Court grant the Limited Divorce, if you wish to extend the period of time for use and possession for your client, and to resolve the issue by a Consent Order or agreement.
To finish, I will refer to two recent cases concerning use and possession. In the case of JOSEPH CACCAMISE v.SUSAN CACCAMISE, decided in March 2000, the Court determined that property owned by the husband's corporation, in this case a vehicle, was not use and possession material, under the statute. Refer back to Md.Code, Fam. Law §8-208(a).
In the case of Knott v. Knott, heard in St. Mary's County, and decided on appeal in September 2002, the mother had use and possession of the family home, and the father agreed to pay the mortgage, taxes and insurance on the marital home in "lieu of child support". In the appeal, Appellant (father) argued that a ... change in circumstances justified a modification of terms of the Consent Order relating to child support. In response to appellant's amended complaint, appellee noted that the Consent Order contained no direct child support obligation and that payments made by appellant were "in lieu of" child support. Appellee argued that an order directing a parent to make payments for the benefit of the child did not constitute child support, and thus was not subject to modification. On exceptions, the lower Court found that the Consent Order did not constitute child support and, therefore, only could be modified "by mutual participation and consent of the parties."
The appellate Court determined that the operative words are "said payments on the marital residence shall be in lieu of child support." "The order does not say that the payments on the marital residence shall be in lieu of child support and spousal support. If the parties had intended payments for spousal support, they could have included that language in the order. In addition, the Consent Order provides that the minor child and appellee will have the use and possession of the family home until 2004. The use and possession statute's sole purpose is for the benefit of the child or children of the family. Md. Code (1973,1999 Repl. Vol.), ¦ 8-206 of the Family Law Article; Pitzenberger v. Pitzenberger,, 287 Md. 20 (1980. A parent's or spouse's needs are of no consideration except as those needs contribute to, or reflect upon, the obligation she or he owes to the children. Barr v. Barr,, 58 Md. App. 569 at 585 (1984. See Also Bledsoe v.Bledsoe,, 294 Md. 183 (1982) (holding that a wife with a child from a prior relationship was not entitled to use and possession of the family home. Moreover, in addition to any order that the non-custodial parent pay direct child support payments, the trial court may order one or both of the parents to contribute to the mortgage on the family home, insurance, and taxes. Md. Code (1984,1999 Repl. Vol.), ¦ 8-208(c) of the Family Law Article. It stands to reason that if appellant agreed to make the payments in order that the minor child could stay in the home with which she is familiar, those payments are made for her benefit, and therefore, should be considered child support payments. The principles of Maryland law regarding child support, the language of the Consent Order, the parties' concessions about the purpose of the payments, and the fact that the payments were made in connection with use and possession all support this Court's conclusion that the payments in question are child support. Accordingly, the trial court erred by finding that the Consent Order did not provide for child support or its functional equivalent."
An important practice note with respect to Consent Orders is that you must be scrupulous in defining all of the terms of the agreement. For example, as a lesson from the Knott case, counsel should be specific in determining any deviation from child support in the Agreement when such payments are for the maintenance of the family home to enable use and possession for the child.
