Bornemann v. Bornemann

⁷²⁰ SHARER, J. In this case of first impression, we are asked to review the effect of the 2002 amendment to Md.Code, art. 1, § 24, the age of majority as it relates to the child support obligation of a non-custodial parent, and particularly whether the amendment may be applied retrospectively. We shall hold that the amendment does have retrospective application. FACTUAL BACKGROUND The parties to this appeal, Richard Henry Bornemann, appellant, and Valerie Bornemann, appellee, were divorced by judgment of the Circuit Court for Howard County, entered on December 10, 1990. Previously, the parties executed a property settlement agreement, which, for purposes of this litigation, called for custody of their then-minor child, Adam, to be awarded to Valerie, and required Richard to pay child support of $1,300 per month.

Their agreement was incorporated by reference into the judgment of divorce. The agreement and the judgment called for appellant’s child support obligation to terminate upon the first to occur of any one of the following events: the child’s arrival at age 18, marriage of the child, the child becoming fully self-supporting, death of the child, or death of the obligated party. Adam, having been born on September 19, 1987, attained the age of 18 on September 19, 2005. On September 13, 2005, Valerie, through counsel, filed in the Circuit Court for Howard County a Motion to Modify Child Support, seeking continuation of child support beyond Adam’s 18th birthday.

The underpinning of the motion was Valerie’s assertion that the amendment to Md.Code, art. 1, § 24 — the age of majority — entitled her to receive support for Adam until he graduated from high school in 2006. Appellant filed a written opposition to the motion and, at the same time, moved for a downward modification of his support obligation. The case was referred to a family law master who, following a hearing on December 20, 2005, made findings of fact and recommended that the circuit court adopt an order that would extend appellant’s support obligation until Adam’s graduation ⁷²¹ from high school, or his 19th birthday, whichever should first occur. Appellant filed timely exceptions to the recommendation, which were heard in the circuit court on May 4, 2006.

On May 30, 2006, the circuit court entered an order adopting the master’s recommendations as to the extension of the support obligation. Appellant has noted this appeal and assigns three errors to the circuit court. As slightly rephrased, the issues are: 1 1. Whether the circuit court erred in applying Article 1, Section 24 of the Maryland Rules of Interpretation retroactively in violation of appellant’s constitutional guarantees under the Maryland Declaration of Rights and the United States Constitution. 2.

Whether the circuit court erred in finding appellee to be a proper party. 3. Whether the circuit court erred in not applying the child support guidelines. For the reasons that follow, we shall affirm the judgment of the circuit court. Nonetheless, we shall remand to the circuit court for such further proceedings as are appropriate to bring appellant into compliance with the judgment of that court. 2 The Age of Majority — Obligation to Support Maryland Code, Rules of Interpretation, as amended by the General Assembly in 2002, provides: ⁷²² § 24.

Age of majority; meaning of “adult”, “of legal age”, and “minor”. (a) Age of majority. — (1) Except as provided in paragraph (2) of this subsection or as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all purposes whatsoever ... (2) A person who has attained the age of 18 years and who is enrolled in secondary school has the right to receive support and maintenance from both of the person’s parents until the first to occur of the following events: (i) The person dies; (ii) The person marries; (in) The person is emancipated; (iv) The person graduates from or is not longer enrolled in secondary school; or (v) The person attains the age of 19 years. (b) “Adult”, “of legal age”, and “minor” defined. — (1) The terms “adult”, “of full age”, or “of legal age” refer to persons who have attained the age of eighteen years.

(2) Except as provided in subsection (a)(2) of this section, the term “minor”, as it pertains to legal age and capacity, refers to persons who have not attained the age of eighteen years. The amendment became effective on October 1, 2002. 3 1. Retrospective Application Appellant’s challenge to retrospective application of the 2002 amendment to Art. 1, § 24 is two-fold. First, he asserts that retrospective application will impair his “vested right” to termination of his child support application on the day of Adam’s 18th birthday.

Secondly, he maintains that such application is in violation of Article 1, Section 10 of the United ⁷²³ States Constitution, which precludes the enactment of laws impairing the obligation of contracts. The test for retrospective application of a legislative enactment was set out by the Court of Appeals in Allstate Ins. Co. v. Kim, 376 Md. 276, 289, 829 A.2d 611 (2003) 4 : When an issue is raised regarding whether a statute may be given retroactive effect, we engage in a two-part analysis. First, we must determine whether the Legislature intended the statute to have the kind of retroactive effect that is asserted ...

Applying the presumption of prospectivity, a statute will be found to operate retroactively only when the Legislature “clearly expresses an intent that the statute apply retroactively.” If we conclude that the Legislature did intend for the statute to have retroactive effect, we must then examine whether such effect would contravene some Constitutional right or prohibition. (Emphasis in original) (citations omitted). There are exceptions to the general presumption that statutes are not to be applied retrospectively. Langston v. Riffe, 359 Md. 396, 406 , 754 A.2d 389 (2000).

These include legislative enactments that apply to procedural changes, or that have a remedial effect and do not impair vested rights. Id. at 406, 408 , 754 A.2d 389 . We first ascertain the Legislature’s intent. ⁷²⁴ Legislative Intent To determine legislative intent, we begin by examining the plain meaning of the statutory language. Reier v. State Dept. of Assessments and Taxation, 397 Md. 2, 26 , 915 A.2d 970 (2007).

If the language in the statute is clear and unambiguous, we need not search further. Evans v. State, 396 Md. 256, 341 , 914 A.2d 25 (2006). If the language does not clearly convey the Legislature’s intent, we may look for evidence of intent from legislative history or other sources. Id.; see also Allstate, supra, 376 Md. at 290 , 829 A.2d 611 .

The genesis of the amendment to art. 1, § 24 of the Rules of Interpretation, is found in Senate Bill 657, introduced in the 2002 session of the General Assembly. The amendment is silent regarding its retroactive or prospective effect. Testimony found in the bill file for Senate Bill 657 is also silent on the matter. The preamble to Senate Bill 657, however, is not.

The preamble to Senate Bill 657 provides: FOR the purpose of altering certain provisions of law defining the age of majority to provide that a person who has attained the age of 18 years and who is enrolled in secondary school has a right to support and maintenance until the first of certain events occur; establishing that this Act shall be considered a material change in circumstances for purposes of modifying a child support order issued before the effective date of this Act; and generally relating to child support. (Emphasis added). Preambles may be considered when determining legislative intent. Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 81 , 904 A.2d 511 (2006)(“In an attempt to determine legislative intent, it is well settled that preambles to a statute may be considered.”)(citing McAlear v. McAlear, 298 Md. 320, 343 , 469 A.2d 1256 (1984)).

But see Comptroller of the Treasury v. Glenn L. Martin Co., 216 Md. 235, 249 , 140 A.2d 288 (1958)(“Preambles are not operative parts of the statute.”); Gibson v. State, 204 Md. 423, 432 , 104 A.2d 800 (1954). ⁷²⁵ The emphasized language of the preamble appears to reference Md.Code, Fam. Law (“FL”) § 12-204(a) (2006 Repl-Vol.), which provides: Modification of child support award. (a) Prerequisites. — The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance. (Emphasis added).

Enacted in 1988, the material change requirement of FL § 12-104(a) for child support modifications has long been a component of Maryland family law, and was well-ensconced when the Legislature considered Senate Bill 657. Therefore, we reasonably conclude that the Legislature intended the changes promulgated by Senate Bill 657 to work in pari maieri with § 12-104(a). In other words, the amendments provided custodial parents the opportunity to seek modification of the existing child support orders to obtain extension of the obligation. We also look for guidance from previous interpretations of art. 1, § 24.

The effect of the 2002 amendment is a question of first impression, but does not represent the first amendment to the age of majority. Article 1, § 24 was amended in 1973, lowering the age of majority from 21 to 18 years. See Chapter 651 of the Laws of 1973. That amendment precipitated a similar issue — whether child support decrees entered before July 1, 1973, could be amended to shorten a support obligation.

The Court of Appeals addressed the issue in Monticello v. Monticello, 271 Md. 168, 173-74 , 315 A.2d 520 (1974), stating: [W]e are prepared to hold that the use of phrases such as “infant” child, “minor” child, “during infancy,” “during minority,” “until attaining majority,” or “until age of majority,” in an agreement or in a decree relating to child support dated prior to 1 July 1973, must have meant support until attaining age 21, in the absence of a clear expression of contrary intent, since this is the only meaning which could reasonably have been within the contemplation of the par ⁷²⁶ ties at the time such an agreement was executed, or in a judge’s mind when such a decree was entered. The Court of Appeals relied on language in the 1978 act which instructed that “the provisions of this Act will be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this Act ...” Section 52, ch. 651, Acts 1973. The Court also relied on the legislative intent: Such a holding is not only consonant with the provisions of section 51, which direct that the Act be applied prospectively, but is consistent with the clear expression of legislative intent found in the Legislative Council’s report to the 1973 General Assembly regarding the bill which later became the Act. Monticello, supra, 271 Md. at 174 , 315 A.2d 520 .

The report of the Legislative Council cited by the court made clear that the law was not intended to affect “decrees, trusts, deeds, and other instruments in being on the effective date of July 1, 1973.” Id. We base our interpretation of the 2002 amendment by applying the same reasoning applied by the Court of Appeals in Monticello . While the Legislature made it clear that the 1973 amendment was to be applied only prospectively, the legislative intent for retrospective application of the 2002 amendment is clear, and implicates support orders in being prior to the effective date — October 1, 2002. Having determined that the Legislature expressed a clear intent that the statute apply retrospectively, we now examine whether such application “would contravene some constitutional right or prohibition.” Allstate, supra, 376 Md. at 289, 829 A.2d 611 .

Validity of Retrospective Application Vested Rights We begin our discussion of the validity of retrospective application by addressing appellant’s contention that his “vested right” to termination of his child support obligation on the ⁷²⁷ day of Adam’s 18th birthday has been impaired by the circuit court’s retrospective application of art. 1, § 24. Appellee, in contrast, argues that appellant has no vested right at stake, asserting that “[s]inee Maryland Courts have never hesitated to modify child support agreements, such agreements can hardly be classified as an interest which is proper for a state to ‘recognize and protect.’ ” Whether appellant has a vested right to terminate his child support obligation at Adam’s 18th birthday is, therefore, a threshold matter to the issue of impairment. Family Law § 5-203 charges that parents “are jointly and severally responsible for the child’s support, care, nurture, welfare, and education.” The Court of Appeals has stated that “[t]he obligation is not perfunctory, to be performed only at the voluntary pleasure or whimsical desire of the parent ...” Middleton v. Middleton, 329 Md. 627, 633 , 620 A.2d 1363 (1993). The duty parents owe to their children did not originate in statute, however, as § 5-203(b)(l) is reflective of both traditional common law and natural law.

The principle was best articulated in the language quoted by the Court of Appeals in Brown v. Brown, 287 Md. 273, 284 , 412 A.2d 396 (1980): [t]he duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world ... By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. (Quoting 1 W. Blackstone, Commentaries on the Laws of England 447 (Christian ed., Phila. 1854)). Against this backdrop of historically recognized inherent parental duties and obligations, we take up appellant’s argument that he has suffered the loss of a vested right.

Appellant asserts that by applying the 2002 amendment to art. 1, § 24 retrospectively, the court imposed upon him a new legal duty (the extension of his child support obligation), thus ⁷²⁸ infringing upon his vested right to pay a lesser amount, in total. A vested right is defined as “[a] right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person’s consent.” Black’s Law Dictionary 1324 (7th ed.1999). 5 The law of Maryland is clear that the obligation to support accrues at the child’s birth. When there is a vesting in the context of the support obligation is not clear. The Court of Appeals has noted in dicta that courts cannot order child support payments previously paid by putative fathers to be repaid when paternity is later