Corry v. O'Neill

BLOOM, Judge. The 9 January 1979 divorce decree that terminated the marriage of appellant, Dana S. O’Neill (now Corry), and appellee, Robert J. O’Neill, granted appellant custody of the parties’ two minor children and, with modifications, incorporated an agreement between the parties dated 29 July 1977, which, inter alia, contained provisions for appellee’s contributions toward the support and future education of the children. Those provisions engendered disputes that resulted in bouts of post-divorce litigation arid culminated in this appeal, in which appellant presents the following questions: 1. Did the lower court err in its determination that child support of $350 per month pursuant to the Order of 28 October 1988 terminated when appellee’s son attained the age of 18? 2.

Did the lower court err in its computation of arrearages in child support? 3. Did the lower court fail to exercise discretion or abuse discretion in not permitting the appellant to present additional evidence of appellee’s financial circumstance? 4. Was the lower court clearly erroneous in concluding that there was no evidence pertaining to appellee’s ability to contribute to his son’s college expenses? We perceive neither error of law nor abuse of discretion in the trial court’s decision and order. ¹¹⁵ FACTS The two children born of the parties’ marriage are Heath, born 20 May 1968, and Brandon, born 7 October 1973.

The agreement between the parties, which was incorporated in the 9 January 1979 divorce decree issued by the Circuit Court for Howard County, provided that appellee would pay $100 per month in child support for each child until each child reached the age of twenty-one. It also provided that the parties would each pay for the college expenses of their children “in accordance with their financial means at the time.” Pursuant to a stipulation, the divorce decree ordered appellee to pay a greater sum as child support than the settlement agreement provided for; it ordered him to pay appellant $250 per month for the two children. The parties having stipulated that appellee had an accumulated arrearage of $2,500 in child support and $746 in other expenses, the divorce decree also required that, commencing 1 January 1979, appellee would pay appellant $100 per month toward satisfaction of the arrearage in addition to the $250 per month as child support until 1 October 1982, after which the entire sum of $350 per month would be considered child support. In 1987 appellant, through the Office of the State’s Attorney for Howard County, filed a petition to cite appellee for contempt, alleging that he had failed to pay child support.

Appellee filed a motion to modify child support on the ground that Heath had become eighteen years of age in May 1986. To resolve the pending actions regarding child support, the parties filed a Stipulation and Agreement that the court incorporated in an order in October 1988. In the Stipulation and Agreement, appellee acknowledged an arrearage of $15,000 in child support pursuant to the divorce decree. Although appellant maintained that appellee owed her $21,245 in child support arrearages as of 1 June 1988, she agreed to accept the compromise amount of $15,000 if appellee paid that sum on or before 30 September 1989.

Appellee’s child support obligation to pay $350 per month continued. ¹¹⁶ In October 1992, appellant filed a Complaint to Enforce Decree and to Find Defendant in Contempt, alleging that appellee had failed to make child support payments in accordance with the October 1988 order, and she also sought reimbursement for more than $25,000 in college expenses that she had paid on behalf of their son Brandon. Appellant contended that the child support payments of $350 per month were to continue until each child reached the age of twenty-one. On or about 30 April 1993, appellant filed a request for production of certain documents,, income tax returns, business records, bank records, and other documents reflecting appellee’s financial status. Appellee failed to respond, so on 30 June 1993, just twenty days prior to the scheduled hearing before the master, appellant filed a motion to compel discovery.

For some unexplained reason (certainly not attributable to appellant), there was a delay in presenting that motion to a judge; consequently, it was not until 9 August 1993, after a hearing on the merits had already been conducted before a master, that the motion was granted. Nevertheless, upon receipt of a copy of the motion to compel discovery, appellee’s counsel faxed to appellant’s counsel, less than one week before the scheduled hearing on the merits, copies of the following documents: 1. Appellee’s income tax returns for 1990 and 1991. (Appellant asserted that there were no schedules attached to those returns.) 2.

Appellee’s 1099 statement for 1992 (he had not yet filed his income tax return for that year). 3. Financial statements of appellee’s business for 1990, 1991, and 1992. 4. Titles to appellee’s automobiles and deeds to his real property. 5. Bank statements from February 1992 through January 1993.

The hearing before Master Schwessinger was held on 20 July 1993. With respect to her claim for reimbursement of ¹¹⁷ college expenses, appellant testified about her income and financial ability, but failed to present any testimony or evidence regarding appellee’s financial ability. She later filed a Motion for Leave to Reopen Testimony, but the master did not rule on this motion. The master issued a Report and Recommendations on 20 December 1993, and on 5 January 1994 the court ruled that appellant’s motion to reopen the hearing to permit additional testimony was moot.

Appellant filed exceptions to the master’s report, and a hearing thereon was conducted by Judge Raymond J. Kane, Jr. Judge Kane eventually sustained in part and overruled in part the master’s report and recommendations. A. CHILD SUPPORT DURATION Appellant contends that the trial court erred by finding that appellee’s obligation to pay child support in the amount of $350 per month pursuant to the October 1988 order terminated when the youngest child reached the age of eighteen. At oral argument, appellee conceded that, because the divorce decree incorporated the terms of the settlement agreement, he was required to pay child support until each child reached the age of twenty-one. Kemp v. Kemp, 287 Md. 165, 175 , 411 A.2d 1028 (1980) (“Once the court decides to incorporate an agreement between the parties as part of its decretal relief ... the agreement is included within the order and is enforceable as a valid provision of the decree.”) (citations omitted).

He contends, however, that after both children attained the age of eighteen he was only required to pay the $100 per month per child agreed upon in the settlement agreement, and not the $350 per month required by the divorce decree. In Maryland, prior to 1973, the age of majority was twenty-one years. By the enactment of Chapter 651 of the Laws of 1973, however, the General Assembly of Maryland lowered the age of majority to eighteen. That statute, now codified in Md.Code (1957, 1994 Repl.Vol.), Art. 1, § 24, provides: (a) Except as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all ¹¹⁸ purposes whatsoever and has the same legal capacity, rights, powers, privileges, duties, liabilities, and responsibilities as prior to July 1, 1973, persons had at twenty-one years of age, and the age of majority is hereby declared to be eighteen years.

(b)(1) The terms “adult”, “of full age”, or “of legal age” refer to persons who have attained the age of eighteen years. (2) The term “minor”, as it pertains to legal age and capacity, refers to persons who have not attained the age of eighteen years. Support agreements or decrees dated prior to 1 July 1973 were not affected by that statute. Luhmann v. Luhmann, 37 Md.App. 185, 189 , 376 A.2d 1141 (1977).

Specifically, we have held that references in such agreements or decrees for child support, dated prior to 1 July 1973, to “child,” “children,” or to a child of the parties by name, without further elaboration, and in the absence of a clear expression of contrary intent, will be taken as meaning support for a child of the parties until that child attains the age of twenty-one. See Miller v. Miller, 70 Md.App. 1, 18-19 , 519 A.2d 1298 (1987); Kramer v. Kramer, 26 Md.App. 620, 631 , 339 A.2d 328 (1975). See also Monticello v. Monticello, 271 Md. 168, 173-74 , 315 A.2d 520 cert. denied, 419 U.S. 880 , 95 S.Ct. 145 , 42 L.Ed.2d 121 (1974) (regarding words such as “infant child,” “minor child,” “during infancy,” “during minority,” “until attaining majority,” or “until age of majority” as used in agreements or decrees for support dated prior to 1 July 1973). A court can require a parent to support a healthy child only until the child reaches majority.

Quarles v. Quarles, 62 Md.App. 394, 403 , 489 A.2d 559 (1985). The parents can, however, contractually obligate themselves to support a child for a longer period, and a court can enforce such an obligation if the parties consent to have the agreement incorporated or merged into the judgment of divorce. Md.Code (1974, 1991 Repl.Vol.), § 8-105(a)(2) of the Family Law Article; Stancill ¹¹⁹ v. Stancill, 41 Md.App. 335, 339 , 397 A.2d 218 , aff'd, 286 Md. 530 , 408 A.2d 1030 (1979). In the case sub judice, the settlement agreement that the court incorporated by reference into the divorce decree provided that appellee would pay unto the Wife for the support and maintenance of each of the two minor children of the parties ... the sum of One Hundred Dollars ($100.00) per month per child, or a total of Two Hundred Dollars ($200.00) per month for all two of said children.

Said payments with respect to each child shall cease and terminate upon the first to occur of any of the following events as to any such child: (a) arrival at age 21; (b) marriage; (c) becoming self-supporting; and (d) death of said child. Despite the parties’ agreement, which calls for appellee to pay $100 per month for the support of each of the two children, the divorce decree ordered appellee to pay $250 per month, later increased to $350 per month, as child support. Unquestionably, the court had the authority to modify the parties’ agreement “in respect to [the] infants as to the court may seem proper, looking always to the best interests of such infants.” Md.Code (1957, 1973 Repl.Vol.) Art. 16, § 28. Md. Code (1984, 1991 Repl.Vol.), § 8-103(a) of the Family Law Article, the successor to Art. 16, § 28, expresses the power to modify a settlement agreement in a slightly different manner, without any material alteration of substance: “The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of a minor child of the spouses, if the modification would be in the best interests of the child.” There has never been any dispute, therefore, as to the power of the circuit court to modify the agreement as to the amount of child support.

Indeed, appellant agreed to such a modification. The issue in this case is whether the modification of the parties’ agreement as to the amount of child support continues in effect beyond the child’s minority. Appellee contends that the judicial modification of the parties’ agreement, increasing appellee’s child support ¹²⁰ obligation, ceased to be in effect when Brandon attained the age of eighteen, and that thereafter appellee’s obligation for child support reverted to the contractually fixed amount of $100 per month. We believe that that contention, as novel as it may seem at first glance, is correct.

We find that the statutory references to “infants” and “the best interests of such infants” in the statute in effect at the time of the settlement agreement and the divorce decree and to the “minor child” and the “best interests of the child” in the current statute to be significant. They constitute an acknowledgment that the court’s jurisdiction over the support of a child and the protection of the child’s best interests extends only during the child’s minority. The court may, of course, enforce an agreement to support a child after the child attains his or her majority and, by incorporating the agreement into a decree, enforce the obligation either as a contractual one or as one imposed by a judgment. See Luhmann, 37 Md.App. at 189-90 , 376 A.2d 1141 .

But in the absence of an agreement, a parent could not be forced to support a healthy adult child. Although not directly on point, we regard the opinion of the Court of Appeals in Brodsky v. Brodsky, 319 Md. 92 , 570 A.2d 1235 (1990), as instructive. The Court held therein that, after the daughter of the parties attained her majority, the circuit court had no authority to modify the support provisions of the divorce decree, which had incorporated the parties’ separation agreement containing provisions for support for their daughter’s college education. Quoting the language of § 8-103(a) of the Family Law Article concerning the authority of the court to modify an agreement with respect to the support of a minor child of the parties if that would be in the best interests of the child, the Court of Appeals pointed out that the daughter was no longer a minor when the request for modification was made.

Id. at 100, 570 A.2d 1235 . For the same reason that a court has no authority to modify a decree incorporating an agreement for support after the child ceases to be a minor, a court having exercised its authority to modify an agreement ¹²¹ for support of a minor child has no authority to extend that modification beyond the child’s minority. The circuit court appears to have recognized that limitation on its authority when the parties were before it in October 1988, when appellant, complaining that appellee was in arrears in payment of child support (she claimed that the arrearages amounted to $21,245.06; he admitted that he owed $15,000; and she agreed to accept that sum on condition that it be paid by 30 September 1989), sought to have appellee cited and punished for contempt. By agreement of the parties, appellee was ordered, inter alia, to continue to pay to appellant “the sum of Three Hundred and Fifty Dollars ($350.00) per month as and for the support and maintenance of Brandon R. O’Neill, the sole remaining minor child of the parties.” When the current round of litigation, which commenced with another petition to cite appellee for contempt, reached the hearing stage before a master, the master concluded that the October 1988 order to pay appellee $350 per month for the support of