Fainberg v. Rosen

Murphy, C. J., delivered the opinion of the Court. Appellant (husband) and appellee (wife) were divorced a vinculo matrimonii on July 23, 1963. Custody of the parties’ three minor children was awarded to the wife. The decree incorporated an agreement between the parties which provided that the husband pay $100.00 per week for support of the three minor children “until said children shall respectively reach the age of twenty-one years, marry, die, or become self-supporting, whichever event shall first occur,” it being further provided that “the amount of such payment shall be reduced by one-third for each child as to whom any such event shall have occurred.” On March 14, 1968 the wife filed a petition in the ³⁶² equity court for an increase in child support payments.

She claimed that the cost of supporting, maintaining, and educating the children had greatly increased; and in particular that it was “now necessary” to provide for the college education of the parties’ eldest child Bonnie, who had theretofore attended C. W. Post College at an expense of $4,500.00 and who was then a second year student at George Washington University where the expenses approximated $3,000.00 per year. In addition to the claim for increased child support payments, the petition sought reimbursement for college expenses previously incurred and paid by the wife. The matter was referred to a Master-Auditor who, after an extended evidentiary hearing, recommended to the court that it pass an order increasing the child support payments from $5,200 per year to $8,200 annually, effective July 30, 1967. Both parties filed exceptions to this report.

A further evidentiary hearing was held before the court, at which the Master-Auditor’s report was considered, together with supplemental, clarifying, and additional evidence. By order of modification for child support dated September 4, 1970, the Chancellor decreed that the husband pay the wife “retrospectively dated from September 1, 1966 [the date Bonnie entered college] and continuing until July 1, 1969 [the date Bonnie became twenty-one] the sum of * * * $140.00 per week for the support and maintenance of the said three minor children of the parties to help defray the increased cost of maintenance * * * and the additional college education expenses for * * * [Bonnie].” The Chancellor further ordered that, effective July 1, 1969, the child support payment for the two remaining minor children would be $100.00 per week. Supportive of its decree, the court rendered an opinion in which it concluded that it had the power to retroactively increase child support payments to a date preceding the filing of the petition for modification, so long as the requisite change in the circumstances was shown by the evidence. The court held further that the agreement between the parties with re ³⁶³ spect to child support payments was not binding on it; that in view of the parties’ station in life, a college education for Bonnie was a necessity; that the primary duty for supplying that education rested with the father; and that the court could properly pass an order for increased child support to make allowance for payment of college expenses.

On appeal, the husband claims that the Chancellor had no power to increase the level of child support payments retroactive to September 1, 1966, the date Bonnie entered college. He contends that the wife’s petition for modification was not filed until March 4, 1968, and that in no event could the court increase support payments retrospectively to cover college expenses incurred prior to the date the petition for modification was filed. Maryland Code, Article 16, Section 28 provides that an agreement between a husband and wife respecting “support, maintenance, property rights or personal rights * * * shall be valid, binding and enforceable to every intent and purpose.” The Section further provides that where any such agreement affects “the care, custody, education or maintenance of any infant child or children of the parties,” the court shall have the right to modify the agreement “in respect to such infants as to the court may seem proper, looking always to the best interest of such infants.” In a similar vein, Section 66 of Article 16 provides that equity courts shall have power to direct who shall be charged with the support and maintenance of a child and authorizes the court, “from time to time thereafter [to] annul, vary or modify its decree or order in relation to such child or children.” These statutes invest the equity court with power to modify any decree as to support and maintenance for a minor child which the facts would then justify, despite any agreement on the subject between the parties, as long as the best interests of the child so require. The cases so holding are legion.

See, for example, Wooddy v. Wooddy, 258 Md. 224 ; Tvardek v. Tvardek, 257 Md. 88 ; Bebermeyer v. Bebermeyer, 241 Md. 72 ; Pumphrey v. Pumphrey, 11 ³⁶⁴ Md. App. 287. We find nothing in the statutes or in the cases, however, which indicates that the equity court is empowered to modify a decree for child support by retroactively increasing the amounts due thereunder to cover a period of time prior to the date the petition for modification was filed. In Larkin v. Larkin, 113 N.W.2d 75 (Minn.), it was held to be the general rule that a decree fixing the amount of the father’s obligation for child support cannot be retroactively increased. In Adair v. Superior Court, 33 P. 2d 995 (Ariz.), it was held that an increase in payments for child support retroactively as of a date prior to the filing of the petition for modification was not permissible.

The rationale underlying these cases appears clear, viz., that the decree determining the amount of child support to be paid by the father was final for the period of time it covered, and that to permit retroactive increases would be tantamount to setting aside the decree after it had been performed. The rule in California is to the contrary, but appears based on statutory authority to retrospectively modify child support decrees. The cases are collected in a note at 6 A.L.R.2d 1277 , entitled “Retrospective Modification of, or Refusal to Enforce, Decree for Alimony, Separate Maintenance, or Support.” See particularly pages 1330-1333. It is also said to be the prevailing rule that a judicial decree obligating a father to pay a certain sum for the support of his child is the limit of his liability, except as it may be subsequently modified. 24 Am.Jur.2d Divorce and Separation, Section 835.

The cases are collected in a note at 7 A.L.R.2d 491 entitled “Support Provisions of Judicial Decree or Order as Limit of Father’s Liability for Expenses of Child,” and are typified by the holding of the New York court in Karminski v. Karminski, 23 N.Y.S.2d 141 , 143 that: “* * * a decree of divorce fixing a sum payable for support of a child of the marriage is intended to limit the liability of the husband for ³⁶⁵ all expenses for the maintenance of said child, and that it is improper to disregard such limitations with respect to past expenditures, even though the amounts involved represent necessaries of a somewhat extraordinary nature. In so holding we do not relieve the father of the obligation to support his child. On the contrary, we uphold such obligation, but limit the amount of his liability to the sum fixed by the court’s judgment until and unless such judgment is modified. Any other rule would invite constant squabbles over alleged extra expenditures for the support and maintenance of children of divorced parties, where the court had already fixed a sum for such support.” Some jurisdictions permit recovery against a father for expenses incurred on behalf of a child in excess of the amount he is obligated to pay by judicial decree or order.

Maryland permits such recovery, not by retroactive modification of the support decree, but by an action at law. Thus, in Kriedo v. Kriedo, 159 Md. 229 , an agreement between the husband and wife was incorporated into a divorce decree; it required the husband to pay $7.00 weekly for child support. Two years later, the wife filed a petition in the equity court seeking reimbursement for necessary medical and funeral expenses paid by her on behalf of the child. She contended that the $7.00 weekly fixed by the decree was insufficient, and not intended to cover such extraordinary expenses for necessaries.

The court held that the father is under a common law obligation to support a minor child without regard to a decree divorcing the parents; and that the decree directing that he pay $7.00 weekly “in no way affected his common law obligation to support * * * [the child], but only prescribed the amount to be paid for its support, * * The court concluded that the husband’s obligation could not be enforced in equity; that the obligation was one at law, stating: (p. 233) ³⁶⁶ “Our conclusion, therefore, is that the father is primarily liable for the extraordinary necessary expenses shown to have been incurred for the benefit of his deceased minor child, which liability is to the persons rendering the service in cases where those rendering service have not been paid, and that the mother is entitled to reimbursement from the father in those cases in which payment has been made by her, but that upon the refusal of the father to pay, the remedy is by a suit at law wherein he is entitled to have a jury pass upon questions of fact, including the inquiry as to ivhether the services were rendered, whether they were necessary, and whether the charge was a reasonable and proper one.” (Emphasis supplied.) In Price v. Price, 232 Md. 379 , an equity case involving the father’s responsibility to pay for necessary legal expenses incurred by his divorced wife on behalf of their child, alleged to be in excess of amounts provided for child support in the parties’ divorce decree, the court said: “Since equity may prospectively specify the person who is to provide necessaries and the amount, and the common law obligation of the father to pay for necessaries in addition to those covered or contemplated by the decree continues to exist, it would seem sensible to