Evans v. Evans

MURPHY, Chief Judge. The question in this case is whether, as part of a divorce proceeding, the court is authorized to award visitation rights to a nonadoptive stepmother of a minor child. I Cheryl and Donald Evans were married in June of 1975. For six months prior to the marriage, Donald’s child by an earlier marriage, then eighteen-month-old Jason, was in Cheryl’s care.

The parties separated in January of 1980. For seven months thereafter, Jason lived with Cheryl. In August of 1980, Jason went to live with his father. In April, 1981, Donald filed a bill of complaint for divorce in the Circuit Court for Prince George’s County.

Cheryl answered and filed a cross-bill for divorce, requesting, among other things, liberal visitation rights with Jason, which Donald opposed. The court (Johnson, J.) granted visitation rights between Jason and Cheryl. On appeal, the Court of Special Appeals, in an unreported opinion, vacated that part of the decree which granted visitation rights to Jason. The court concluded that under Maryland Code (1980 Repl.Vol.), § 3-602(a)(4) of the Courts and Judicial Proceedings Article, “child visitation rights do not extend to a class of individuals broader than biological parents, adoptive parents, and grandparents.” We granted certiorari to consider the important issue of statutory interpretation raised in the case. ³³⁶ II Until its recent recodification, § 3-602(a) of the Courts Article provided in pertinent part: “A court of equity has jurisdiction over the custody ... [and] visitation ... of a child.

In exercising its jurisdiction, the court may: (1) Direct who shall have the custody ... of a child; (4) Determine who shall have visitation rights to a child. At any time following the termination of a marriage, the court may consider a petition for reasonable visitation by one or more of the grandparents of a natural or adopted child of the parents whose marriage has been terminated, and may grant such visitation if the court believes it to be in the best interests of the child____” 1 (Emphasis supplied.) The italicized language was added to the statute by ch. 276 of the Acts of 1981. In reversing the lower court’s visitation award, the Court of Special Appeals said: “If ... the Legislature had intended Section 3-602(a)(4) to empower equity courts with virtually unlimited discretion in determining the class of individuals entitled to child visitation rights, there would have been no logical rationale for the 1981 legislative amendment to Section 3-602(a)(4) extending the child visitation rights to grandparents. ... The appellee’s broad interpretation of the first sentence of Section 3-602(a)(4) is inconsistent with a plain reading of the second sentence in this statutory provision.

The obvious import of the 1981 amendment to Section 3-602(a)(4), which included grandparents in the class of individuals entitled to have child visitation rights, runs contrary to a legislative intention to grant an unlimited ³³⁷ discretionary power in the equity court to grant visitation rights to anyone the court desires. Unlike the 1981 amendment of Section 3-602(a)(4) applicable to grandparents, the Legislature has not seen fit to explicitly expand the child visitation rights to either stepparents or to former stepparents. There is no existing case law in Maryland which grants child visitation rights either to stepparents or to former stepparents.” The Court thus concluded that the 1981 amendment with respect to visitation by grandparents dictated a reading of the balance of § 3-602(a)(4) as allowing visitation only by a parent. An examination of the legislative history of § 3-602(a)(4) convinces us that the court was wrong in so holding.

Ill Chapter 262 of the Acts of 1841, which enabled courts to grant limited and absolute divorces, also conferred upon them the authority to determine “who shall have the guardianship and custody of the children.” 2 That this authority encompassed the power to grant visitation rights is well established. In Pangle v. Pangle, 134 Md. 166 , 106 A. 337 (1919), the Court, after declining to transfer custody from a father to a mother, observed, “[t]here has been a commendable disposition on the part of the respondent to afford his former wife frequent opportunities for association with their child, and this privilege should be properly secured and regulated by the decree.” Id. at 170 , 106 A. at 338 . For other cases approving visitation rights in a decree, see Hild v. Hild, 221 Md. 349 , 157 A.2d 442 (1960); Barnard v. Godfrey, 157 Md. 264 , 145 A. 614 (1929); England v. Megear, 145 Md. 574 , 125 A. 731 (1924); Hill v. Hill, 49 Md. 450 (1878). After Murray v. Murray, 134 Md. 653 , 107 A. 550 (1919) held that courts could not determine guardianship or custody until after a divorce was decreed, the General Assembly ³³⁸ responded with the enactment of Ch. 573 of the Acts of 1920.

See Hood v. Hood, 138 Md. 355, 362 , 113 A. 895, 898 (1921). That statute, later codified as Code (1957, 1973 Repl.Vol.), Art. 16, § 66(a), read as follows: “The several equity courts of this State shall have original jurisdiction in all cases relating to the custody or guardianship of children and may on bill or petition filed by the father or mother or relative or next of kin or next friend of any child or children direct who shall have the custody or guardianship of such child or children, and who shall be charged with his, her or their support and maintenance, and may from time to time thereafter annul, vary or modify its decree or order in relation to such child or children____” These provisions, while again referring only to “custody” and “guardianship,” clearly encompassed visitation. 3 Chapter 573 became § 3-602 of the Courts Article, that article having originally been enacted by ch. 2 of the Acts of 1973 (Special Session). The recodified xx provision did not retain the limiting reference “on the bill or petition filed by the father, mother, relative, next of kin, or next friend ... or by [a] public welfare official.” Thus, no enumeration of petitioners appeared when ch. 317 of the Acts of 1975 amended § 3-602 to explicitly confer jurisdiction upon courts to determine “who shall have visitation rights to a child.” ³³⁹ On its face, therefore, § 3-602(a)(4), prior to the 1981 amendment, constituted the broadest possible grant of authority to courts to determine who shall be awarded visitation rights. There is no indication that this authority was intended, in any manner, to be narrower than the court’s authority, as previously exercised over child custody.

Donald nevertheless argues that the court’s authority over visitation must be construed narrowly, in light of the 1981 amendment that specifically provided for visitation by grandparents in instances where the marriage is terminated. He contends that “[i]f the Legislature established a new category of individuals for visitation, such as grandparents, one must logically conclude the group had been legally deprived of the right and needed legislative action for relief.” We disagree. Skeens v. Paterno, 60 Md.App. 48 , 480 A.2d 820 (1984) involved a decree that provided for paternal grandparents to exercise their son’s visitation rights during his absence on Navy duty. Paced with the appropriate construction of § 3-602, the Court of Special Appeals stated that “[i]n 1981, it seemed clear enough that as a matter of law grandparents could be granted custody of and visitation rights to their grandchildren,” citing as authority Maddox v. Maddox, 174 Md. 470 , 199 A. 507 (1938) and Powers v. Hadden, 30 Md.App. 577 , 353 A.2d 641 (1976). 60 Md.App. at 60 , 480 A.2d 820 .

The Court of Special Appeals, therefore, looked for the legislative intent in the enactment of the 1981 amendment, by undertaking to “identify the problem the legislature was seeking to resolve in enacting [the] particular law.” Id. The 1981 amendment—Senate Bill 333—was the culmination of a four-year effort to enact legislation to guarantee visitation rights to grandparents. 4 Opposition to the measures seemingly succeeded because of a consensus in the ³⁴⁰ legislative committees that the then existing law already afforded visitation rights to grandparents. In a letter to counsel for the Senate Judicial Proceedings Committee about Senate Bill 53 (1978), the Managing Attorney and the Chief Attorney of the Domestic Law Unit of the Legal Aid Bureau posited that “[t]he Court, under the present law, has the authority, and in fact does, grant visitation to any person that can further the best interests of the child.” In a letter to a proponent of Senate Bill 415 (1979), the Chairman of the Senate Judicial Proceedings Committee explained the unfavorable report of the bill as follows: “The Equity Court at the present time has the authority to designate grandparents’ visitation rights if in the judgment of the Court this is in the best interest of the child. It was for that reason the Committee felt best not to mandate that which is now permitted.” The testimony of the sponsor of House Bill 1205 (1979), before the House Judiciary Committee,