Coffman v. Hayes

Finan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Circuit Court for Kent County (Rasin, J.) in an action ex contractu, whereby the appellee mother was awarded $3535.35 against the appellant father for arrearages in support and medical payments for minor children. Appellee claims the money was due and owing pursuant to the terms of a separation agreement executed by the parties on September 12, 1967, while they were man and wife. The parties were subsequently divorced and the separation agreement was incorporated into the divorce decree rendered on May 16, 1969.

The father claims a credit should be allowed for a three month period during which he and the paternal grandmother cared for the children and for certain medical payments covered by insurance purchased by the mother. The lower court did not allow the credits and the father appealed. In order that there may be a proper disposition of this case on remand, we must answer the question of whether the father may have a right of recoupment for periods during which the mother has abandoned the children forcing him to assume actual custody, when there is in existence a support and maintenance agreement requiring him to make support payments to the mother for the children and the agreement is silent regarding the contingency of abandonment by the mother. ⁷¹⁰ In reply to the mother’s declaration the father filed a general issue plea by way of denial. During the course of the trial, the father made a proffer to introduce evidence to the effect that immediately after the execution of the separation agreement the mother abandoned the children and left the State for a period of three months, thereby making it necessary for him and the paternal grandmother to assume de facto custody and care of the children.

The lower court would not admit this testimony on the premise that the action before it was an action at law in contract and there was nothing “in the agreement which supports the contention that he [the father] was not required to pay unless the wife personally had physical custody and supported the children.” The court further stressed that the agreement was silent on that point and that the court knew of no law which “impressed on the agreement the requirement that support need not be paid if the person who has legal custody does not, in fact, support the children.” The court also stated: “* * * Now if you claim some credit on an issue that you claim is related but not directly as a defense in this case such as payment of the support, it seems to the court that you should have filed some kind of a counter-claim or something to show the credit for which you are entitled but you have not done that. You filed a general issue plea in which you state that you are not indebted under this agreement. This is a suit on a contract.” The record further reveals that in rebuttal to the proffer offered by the father’s counsel relative to the paternal grandmother’s keeping the children for three months, counsel for the mother proffered to show that the grandmother had been paid $2,000 for the support of the children during this period, and that the money was taken out of the mother’s share of the proceeds from the sale of property previously owned by the parties. However, since the lower court would consider no evidence at vari ⁷¹¹ anee to the terms of the separation agreement, the proffered testimony made by both counsel was excluded.

After the non-jury trial had concluded and while the court was holding the matter sub curia pending submission of memoranda by counsel, the father filed a counterclaim based on the credit he was seeking. The mother then filed a motion ne recipiatur to strike the counterclaim on the grounds that it had not been filed within the time limit prescribed by Maryland Eule 314 and that there had been no showing of good cause which would allow an extension of time pursuant to Maryland Eule 309; the court granted her motion. For the reasons which we shall hereafter set forth, we affirm the judgment of the lower court in its ruling on the reimbursement for medical expenses by the appellant to the appellee, in its holding the appellant liable for the arrearages in general and in its allowance for the credit given to the appellant for the support of the eldest daughter, Lisa, who had remained continuously with the paternal grandmother. However, we will remand the case for further proceedings regarding the allowance of credit to the father for the three month period from September 12, 1967, until December 12, 1967, during which time the other four children were cared for by the paternal grandmother.

If the father actually supported the children during this time, then we are of the opinion that he should be allowed a $780 credit for this period. However, since the mother had proffered evidence to show that the paternal grandmother had been reimbursed from her funds, the court should hear testimony on this question, as in that event, the father may not be entitled to the claimed credit. We now come to a discussion as to why we think the father may have been entitled to a credit for the period during which he had de facto custody of the children. This presents the issue of whether, pursuant to the support and maintenance provisions of the separation agreement, which is silent on the matter, the father may have -a right of recoupment for a period where the mother had ⁷¹² abandoned the children, forcing him to take actual custody of them. 1 The lower court erred in not admitting the evidence relating to the credit claimed by the father for the period of time that he had actual custody of the children and supported them.

This evidence should have been properly admissible under the defense of recoupment which may be proved under a general issue plea by way of defense, unless an affirmative judgment is sought. Maryland Rule 342 b 1 and Rule 314. See interpretation given both Rules operating in tandem in Eisenberg v. Air Conditioning, Inc., 225 Md. 324, 337 , 170 A. 2d 743 (1961), and District Agency Co. v. Suburban Delivery Service, Inc., 224 Md. 364, 370 , 167 A. 2d 874 (1961). In this latter case, Chief Judge Bruñe explored the question of what must be pleaded specially as a set-off as distinguished from a recoupment, and as was stated by this Court in Eisenberg , “The essential conclusion drawn is that a claim growing out of an independent transaction (set-off) must be specially pleaded, while a claim arising out of the same trans ⁷¹³ action (recoupment) need not be, but may be proved under a general issue plea, unless an affirmative judgment is sought by the defendant.” 224 Md. at 337 .

Actually, the excluded testimony was not needed to prove that the mother did not have actual custody and that the father had supported the children for the three month period from September 12, 1967, until December 12, 1967, as upon cross-examination the mother stated that during this period she was in Philadelphia with her mother while the children remained in this State with the paternal grandmother. Also, the father’s testimony that the children were left with the paternal grandmother when the mother went to Philadelphia was uncontradicted. We now come to the consideration of whether, under the facts here presented, the father may be entitled to recoupment. Decisions from other jurisdictions dealing with similar situations have reached diverse conclusions depending principally upon factual considerations.

One line of decisions would deny relief to the father on the premise that he was bound strictly by the terms of the divorce decree, or, as in this case, the separation agreement, and that he should bring an action to modify the decree. 2 Fearon v. Fearon, 154 S.E.2d 165 (Va. 1967); Tucker v. Tucker, 398 S.W.2d 238 (Ky. 1965); Koon v. Koon, 313 P. 2d 369 (Wash. 1957); Sampognaro v. Sampognaro, 63 So. 2d 11 (La. 1953). Other cases have denied relief to the father where it appears that he had voluntarily taken custody of the children and voluntarily made payments or made payments in excess of those stipulated in the decree or agreement and for which amounts he later sought a credit. Wills v. Glunts, 151 S.E.2d 760 (Ga. 1966); Martin v. Martin, 368 P. 2d 170 (Wash. 1962); Finkbeiner v. Finkbeiner, 288 S.W.2d 586 (Ark. 1956); Nichols v. Nichols, 119 N.E.2d 351 (N.Y. 1954). Still other jurisdictions have denied relief in situations where ⁷¹⁴ the children were with the husband only for a visit, and oftentimes pursuant to the terms of a decree.

Morrison v. Morrison, 122 So. 2d 199 (Fla. 1960); Markham v. Markham, 300 S.W.2d 370 (Tex. 1957); Brummer v. Brummer, 69 A. 2d 38 (N.J. 1949). The principle underlying the decision in most of these cases is that to relax the strict compliance rule invites “continuous trouble and turmoil.” Fearon, supra, at 168 . The cases which afford relief to the father by way of a credit do so where he has assumed direct support for the children under what this Court in Bradford v. Futrell, 225 Md. 512, 518 , 171 A. 2d 493 (1961), termed a “compulsion of circumstances.” This “compulsion of circumstances” might arise from a mother’s ill health, financial condition, or abandonment of the children, and in such a case the father will be given credit for the time that the children have been in his physical custody and under his actual care. Headley v. Headley, 172 So. 2d 29 (Ala. 1964); Chapman v. Chapman, 161 P. 2d 917 (Ore. 1945); Mason v. Mason, 34 P. 2d 328 (Ore. 1934); Schlom v. Schlom, 115 So. 197 (Miss. 1928).

The common denominator of virtually all of the decisions cited, which allowed the father