Bland v. Larsen

BISHOP, Judge. Appellee, Carol A. Larsen (“Larsen”), a Virginia resident, filed a Uniform Reciprocal Enforcement of Support Act (“URESA”) Petition (“the Petition”) in a Frederick, Virginia court against Appellant, Gilbert A. Bland (“Bland”), a Maryland resident. Larsen alleged that Bland owed $16,325 in arrearages of child support payments. The Virginia court transmitted the Petition to Maryland.

The Circuit Court for Howard County referred the matter to a domestic relations master. After a hearing, both parties filed exceptions to the master’s recommendations. The circuit court conducted a hearing on the exceptions, denied Bland’s exceptions, and ordered Bland to pay Larsen $365 per month on arrearages of $14,750. ¹²⁸ Issues Bland raises the following issues which we restate as follows: I. Whether the court erred when it failed to apply equitable defenses available under Florida law.

II

Whether the court erred when it concluded that the action was not barred by laches.

III

Whether Bland’s reliance on the advice of counsel is a valid defense to the action.

IV

Whether the court abused its discretion when it refused to apply the doctrine of unclean hands and bar Larsen’s claim. V. Whether the court had jurisdiction over Larsen’s claim even though the Virginia court failed to certify the Petition. Facts Bland and Larsen were married and had two children, Heather and Melissa. On May 2, 1978, a Florida court adjudged that the marriage was “irretrievably broken” and entered a Judgment of Dissolution of Marriage.

The court ordered Bland to contribute $25 per week in child support and to forward all such payments to the clerk of the court. Later that year, a New York court awarded Larsen custody of Heather and Melissa. The court permitted Bland to visit the children on December 28 and 24, 1978, but left to the parties the responsibility of determining additional visitation, and if unable, requesting that the case be “re-calendared for further hearing.” At the hearing before the master, Larsen testified that, since the dissolution of their marriage, Bland paid only $850 in child support. Bland testified that he made other child support payments “early on,” but his records of those payments, including cancelled checks, were lost while in storage over the last fourteen years.

The payments Bland allegedly made in addition to the $850 were sent to the children directly; Bland did not make payments through the clerk of the Florida court. ¹²⁹ Bland explained: “I, I, I don’t make payments to Mrs. Larsen because she’s an alcoholic and I, I’d rather not give her the money. ‘Cause, ah, when the children were young, I used to give her money, and it never got to the children.” The master determined that Bland owed Larsen $16,725 in arrearages. Bland filed exceptions to the master’s findings, challenging, inter alia, the master’s failure to apply the defenses of laches, unclean hands, and good faith reliance upon counsel. Larsen challenged the master’s determination of the amount of arrearages. The court set the proper amount of arrearages at $14,750, and denied Bland’s exceptions.

Additional facts will be provided in the discussion, infra. Discussion I Bland argues first that the court erred when it failed to apply Florida law which, according to Bland, provides that the custodial parent’s failure to allow the noncustodial parent visitation is a defense in an action based on arrearages of child support payments. We decline to pass on this issue. Rule S74A(d) provides: “Within five days after recommendations are placed on the record or served pursuant to section c of this Rule, a party may file exceptions with the clerk. ...

Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise. ” (Emphasis added). This Court has reviewed carefully Bland’s exceptions and the transcript of the exceptions hearing. Nowhere does it appear that Bland raised this issue in the circuit court.

Bland contends that he submitted, at the hearing, “a lengthy brief citing many Florida case law precedents.” Bland, however, did not include that “brief” in the record extract. See Rule 8-501(c). We cannot determine whether the brief was submitted during the evidentiary hearing or the exceptions hearing. Further, we cannot determine whether Bland’s citations to Florida case law were provided in support of this argument, or in the context of ¹³⁰ Bland’s good faith reliance on counsel argument, discussed infra.

In its memorandum and order, the trial court stated that Bland “assert[ed] that he was denied visitation justifying nonpayment under Florida law.” The court concluded that the “law of Maryland is to the contrary.” Although this indicates that the court did consider the issue, based on the record, we can only conclude that the court was referring to the issue in the context of Bland’s good faith reliance on counsel argument. We conclude that Bland waived the issue of whether the court erred in not applying Florida law with respect to whether the failure to allow visitation is a defense to an action for child support arrearages. Even if we were to consider the merits of Bland’s contention, we would conclude that the court did not err. We explain. “In determining whether and to what extent a duty of support is imposed or imposable [in a URESA action], ordinarily it is the law of the responding state, and not the law of the initiating state, which governs.” Virginia ex rel.

Halsey v. Autry, 293 Md. 53, 59 , 441 A.2d 1056 (1982). Maryland law is clear that “the denial of visitation privileges may not be nonjudicially enforced by the other spouse’s withholding of child support.” Stancill v. Stancill, 286 Md. 530, 538 , 408 A.2d 1030 (1979). In Stancill , the Court of Appeals also reviewed decisions of other state courts and concluded that “many of them have also denied the use of one parent’s breach of the visitation privilege as a defense in an action based on arrearages of child support payments.” Id. at 536 , 408 A.2d 1030; see also M.L. Cross, Annotation, Violation of Custody or Visitation Provision of Agreement or Decree as Affecting Child Support Payment Provision and Vice Versa, 95 A.L.R.2d 118 (1964). Bland nevertheless contends that the court should have applied Florida law because, until 1987, Bland resided in Florida and “governed himself according to Florida law.” Florida law, however, is similar to Maryland law. ¹³¹ Bland cites Department of Health & Rehabilitative Servs. ex rel.

Soles v. Thomas, 477 So.2d 1053 (Fla.Dist.Ct.App.1985), review denied, 488 So.2d 829 (Fla.1986), to support his position. The Court in Thomas declared that “the rule in Florida has always been that interference with visitation or custody rights is the classic example of [when] the court[ may exercise its] power to refuse to enforce payment of past due child support.” Id. at 1056 . The Court, however, explained that this general rule is inapplicable in a URESA action, “which specifically excludes consideration of visitation or custody from the duty of support.” Id. The Court cited § 88.271 of the Florida Statutes, which provides in pertinent part: “The determination or enforcement of a duty of support owed to one petitioner [in a URESA proceeding] is unaffected by any interference by another petitioner with rights of custody or visitation granted by a court.” Fla.Stat.Ann. § 88.271 (West 1987).

Thus, under Florida law, the duty of the noncustodial parent to support a child is independent of the custodial parent’s duty to permit visitation. The reason for the rule is that when visitation is denied, the noncustodial parent has numerous legal remedies to enforce the judgment. Sanctions include holding the custodial parent in contempt, and ordering a modification of custody. Hoffman v. Foley, 541 So.2d 145, 146 (Fla.Dist.Ct.App.1989) (citations omitted); see also Newbold v. Newbold, 472 So.2d 543 (Fla.Dist.CtApp.1985) (“The only matter that can be addressed in a [URESA proceeding] is that of support, and it is improper for the court in such a proceeding to condition support payment, or any portion thereof, on the custodial parent’s compliance with orders governing visitation rights.”).

Accordingly, any alleged error on the part of the trial court when it failed to apply Florida law was harmless and does not require reversal. See Harris v. David S. Harris, P.A., 310 Md. 310, 319 , 529 A.2d 356 (1987) (“[T]he appellate courts of this State will not reverse a lower court judgment for harmless error: the complaining party must show prejudice as well as error.”). ¹³² Bland also argues for the first time on appeal that the Florida court’s order to pay child support is “defective on it’s [sic] face and is unsupportable in any court.” We shall decline to consider this contention. See Rule S74A(d); see also Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court----”). Bland’s remedy, if any, was limited to challenging the validity of the decree in the Florida courts.

Bland exercised none of his legal remedies either to compel Larsen to allow reasonable visitation with the children or to petition the Florida court to modify the 1978 child support order. After fourteen years of inaction and acquiescence, Bland cannot now attempt to avoid his obligation to provide support for his children. II Bland next contends that Larsen’s claim is barred by the doctrine of laches. Bland argues that Larsen’s fifteen-year delay in bringing the action sub judice resulted in prejudice and placed him at a distinct disadvantage because Bland: (1) detrimentally relied on Larsen’s acquiescence, remarried, and fathered two children to whom he must now provide support; and, (2) lost records of payments made toward his duty of support.

Laches has been defined as an “inexcusable delay, without necessary reference to duration, in the assertion of a right, and, unless mounting to the statutory period of limitations, mere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another.” Bradford v. Futrell, 225 Md. 512, 525 , 171 A.2d 493 (1961). Thus, “[before the defense of laches may be successfully invoked, two elements must be shown: (1) an undue lapse of time; and, (2) some disadvantage or prejudice to the party asserting the defense.” Weidner v. Weidner, 78 Md.App. 367, 375 , 553 A.2d 263 (1989). Assuming, without deciding, that the doctrine of laches may be applied as a defense in an action based on arrearages of child support payments, but see Payne v. Prince George’s County Dep’t of Social Seros., 67 Md.App. 327, 338 , ¹³³ 507 A.2d 641 (1986) (“Whether laches applies at all in a paternity proceeding for child support may be questioned. An infant, who cannot legally bring suit himself or herself can scarcely be accused of lack of diligence.”); Green v. Green, 44 Md.App. 136, 150 , 407 A.2d 1178 (1979) (“it is one thing to penalize a person for sitting too long on his own rights; it is quite another to penalize [a dependent child] because someone else sat on those rights”), rev’d, 288 Md. 127 , 415 A.2d 1131 (1980), we hold that, under the circumstances of this case, the court did not err when it refused to apply the doctrine.

As to Bland’s first allegation of prejudice, we cannot find support for his assertion in the record. Although Bland testified that he has two children living with him now, he did not testify that he remarried and had additional children because of Larsen’s inaction. In Weidner, supra, a URESA action for the enforcement of alimony, the appellant advanced a similar argument. There the appellant argued “that had he known that he would have been ‘saddled’ with a $12,660.00 debt at this time in his life, he would have modified his expenses over the past 19 years.” 78 Md.App. at 375 , 553 A.2d 263 .

We determined that the court did not err when it refused to apply the doctrine of laches because the appellant “offered no evidence which showed that he had changed his position relying on the belief that he was no longer responsible for alimony payments to his ex-wife.” Id. (emphasis added). Bland’s contention fails for the same reason. As to the alleged loss of payment records, we again determine that the doctrine of laches is inapplicable.

Bland admitted at oral argument having discontinued regular support payments in the early 1980’s. Because the twelve-year statute of limitations under § 5-102(a)(3) of the Courts and Judicial Proceedings Article (1989) was applied in the case sub judice, the arrearages of child support the court awarded Larsen did not include any amount due Larsen before the early 1980’s. Thus, there was no prejudice. Although Bland alleges that he complied with Larson’s request that payments be made directly to her, he could have continued to pay support through the office of the clerk of the Florida court, and that court presum ¹³⁴ ably would have had a complete record of payments.

Any inability to prove payments is due entirely to Bland’s noncompliance with the court order. Cf. Howell v. Brwmmell, 293 Md. 646, 650 , 446 A.2d 1149 (1982) (“Any prejudice that resulted from the absence of the two witnesses at trial was caused by the appellant’s failure to