Kemp v. Kemp

Moylan, J., delivered the opinion of the Court. We are called upon here to decide whether there was sufficient evidence of extraordinary circumstances to warrant a suspension of the appellant’s right of visitation with his now 11-year-old son. The appellant, Nicholas Bosley Merryman Kemp (father), and the appellee, Nancy C. Kemp (mother), were married on December 8,1961. Two children were born as a result of that marriage — a daughter, Frances Jeffries (Jeff), born December 17,1962, and a son, Nicholas Bosley Merryman, Jr. (Buzz), born July 20, 1967, the subject of this appeal.

Marital problems caused the parties to separate in October, 1972. They were subsequently divorced on May 17, 1974. The divorce decree provided, inter alia, that the mother would have custody of the children and that the father would have reasonable rights of visitation. The decree set out a specific schedule for the father’s visitation with his children.

The decree further provided that the father was to contribute $50 per week to the support of each child and such other sums as set forth in the property settlement agreement incorporated into the decree. In the agreement, the father, among other things, agreed to pay the reasonable medical and dental expenses of the children and to maintain adequate ⁹² medical insurance coverage for them. The agreement provided that he would be consulted on all major medical, surgical and/or dental needs of the children, except where emergency would not so permit. Apparently, ever since the parties separated, they have argued over the appellant’s visitation with Buzz. 1 The arguments reached a head in the summer of 1975 when each party petitioned the court to hold the other in contempt for violations of the divorce decree, and the mother sought to modify the visitation schedule.

Before disposition of the various petitions by the court, however, the parties resolved their differences. Even though the child’s psychiatrist recommended a suspension of visitation, the parties agreed that the father would see his son for two days every other weekend instead of one day every weekend, as set forth in the divorce decree. The resolution was short-lived. On April 22, 1977, the mother again filed a petition to modify the father’s visitation rights.

She alleged that the appellant and his present wife were having domestic problems and that the continued visitation of Buzz with his father under these circumstances and in this environment was not in the child’s best interests. Her allegation was based on conversations between her attorney and the appellant’s present wife. On May 2, 1977, the court ordered an investigation of the matter by the Probation Department of the Circuit Court for Baltimore County. Meanwhile, since April 10,1977, the mother had not allowed the father to visit with his son.

On June 27, the father, therefore, filed a petition to hold the mother in contempt of court for failure to comply with the visitation provisions of the divorce decree. He also discontinued sending her support payments for Buzz. As a result, on July 6, the mother filed a cross-petition to hold the father in contempt for failure to pay child support. In her petition, she also stated that Buzz has been under the medical care of a psychiatrist since ⁹³ December 30,1972, and that his father has refused to pay the cost of this psychiatric treatment.

After a full hearing on the petition of April 22, 1977, to modify the father’s visitation rights and on the cross-petitions of June 27 and July 6, 1977, to hold each of the parties in contempt, the chancellor issued a memorandum and order finding that the continued visitation of Buzz with his father would not be in the child’s best interests. The chancellor also suspended the support payments for Buzz as of the date of the last payment. He found that the conduct of the father was not the sole cause of the estrangement between the father and son and suspended the father’s contributions to the support of his son so long as the child refuses to visit with his father. The chancellor dismissed the cross-petitions of June 27 and July 6 to hold each of the parties in contempt but ordered the father to pay the psychiatrist’s fee.

The father has filed an appeal from that judgment and the mother has filed a cross-appeal. The father contends that the evidence did not justify a suspension of his right of visitation with his son and that the chancellor erred in ordering him to pay the cost of his son’s psychiatric treatment. He further contends that the chancellor erred in failing to hold the appellee in contempt of court for refusing to allow him visitation with his son in accordance with the provisions of the divorce decree. The mother contends that the chancellor erred in suspending support payments for Buzz and in failing to find the father in contempt of court for his arrearages in child support.

The appellant is a general contractor, specializing in excavating. He has operated his own business, on first a part-time and later a full-time basis, since 1949. One month after divorcing the appellee, he married his present wife, Eleanor (Ellie), who is considerably younger than he. The appellant and Ellie have one child, a son, born September 22, 1976, and Ellie has a daughter by a previous marriage, whom the appellant has adopted.

The appellant and his current wife reside on the same farm in northern Baltimore County where the appellant and appellee resided when they were married. ⁹⁴ The incident which precipitated the appellee’s refusal to permit Buzz to visit with his father occurred in April, 1977. The appellee’s attorney received a telephone call from the appellant’s current wife telling him that she and the appellant were having domestic problems and that she thought it would be advisable that Buzz not visit with them while they were having these problems. She told the attorney that the quarrels had come very close to physical strikings between them and that they were affecting her own two young children. The appellee’s attorney wrote to the appellant advising him that Buzz was aware of the problems at the Kemp home and that they had affected him considerably.

He advised the appellant that, under the circumstances, the appellee would not permit further visitation. The appellant explained to the appellee’s attorney that he and Ellie merely had an argument over money on April 12. At the hearing, the appellant denied that he and his wife are having serious domestic problems or that they had any violent arguments in Buzz’s presence. He testified that on many weekends he consented not to see his son because Buzz would have other activities planned.

When the visitation schedule was changed to alternate weekends in November of 1976, Buzz would still have things planned on the weekends he was to visit with him. Sometimes when the appellant went to pick up his son, nobody would be at home. The appellant testified that it would take' his son some time to “unwind” when visiting with him but that once he “loosened up,” he seemed to enjoy himself. He testified that Buzz gets along well with Ellie and their daughter.

The appellee gave a completely different version of the child’s visits with his father. She testified that Buzz has begged her not to make him visit his father and that she, on many occasions, has had to force him to go. She testified that prior to December, 1976, when Buzz was visiting with his father every weekend, he would come home on Sunday nights with severe asthma attacks which required emergency treatment at the hospital and that he experienced severe stomach cramps following the visits which would last for several days, interfering with his school work. The appellee ⁹⁵ testified that Buzz’s grades at school were very, very poor and that he was very unhappy that he was being forced to visit with his father.

Buzz’s work would improve the weeks there was no visitation but would slump again after a visit. She testified that Buzz told her that there was a great deal of arguing and fighting at the Kemp home and that he felt uncomfortable there and begged her not to make him go. The appellee testified that since visitation ceased in April, 1977, Buzz has been very, very happy and has had no asthma attacks or stomach cramps. In questioning by the chancellor, in chambers, out of the presence of the parties, Buzz reaffirmed essentially what his mother had testified — that he did not want to visit with his father.

He testified that visits with his father were “no fun” and that there was “nothing to do.” He testified that he disliked very much visiting with Ellie and her daughter, “Boo.” When the chancellor questioned him whether he wanted his father completely out of his life, he nodded affirmatively. He said that he never wanted to see his father again. He told the chancellor that his father always yells at him and that he feels his father does not love him. Buzz testified that he has been happy that he has not seen his father since Easter, 1977.

The chancellor questioned him whether he missed his father, and he shook his head negatively. The chancellor asked Buzz if he would be willing to visit with his father at a place where Ellie was not present, but he insisted that he did not wish to see his father. The appellee testified that she discontinued Buzz’s visits with his father on the advice of the child’s psychiatrist, Dr. John M. Arthur. Dr. Arthur testified that he has seen Buzz sporadically over a period of four or five years and sporadically over the course of the last several months.

He expressed the opinion that visitation should not be reinstated or continued at this time. He gave as the basis for his opinion: “Well, I saw Buzz Kemp originally because he was doing very poorly in school, very poorly socially and this could not be accounted for by psychological studies or by his inability and the psychologist referred him to me as a child with personality ⁹⁶ problems that he thought was interfering with his functioning. It became clear to me after, I can’t say, a number of months that the friction between his parents was a very heavy burden on this boy; he felt this as a very heavy burden. He really suffered from his parents bickering over many issues.

One of the issues being, the major one being over him and what he would be doing, where he should spend his time, what he should do____ He had many exciting weekends with his father, actually, at this time and his mother worried about it____[Tlhey would do dramatic things that he thought was very exciting, motorcycle, things that his mother didn’t have where they lived in the city and this excited the boy, pleased him and worried his mother, but over a longer period of time it became clear that he was really burdened by the fact that they differed and he was torn in his loyalty between which one he should please, whether he should stay home with his mother or go spend more time with his father. He did poorly, functioned poorly, I think, in general for a bright, perceptive boy. As time went on it became more clear that he was much more comfortable at home with his mother and the exciting things provided by his father simply were no longer exciting and just this past year his schooling has been much improved. He is functioning like a bright boy should function.

He is obviously happier, happier than I have ever seen him and I think, too, that this is connected with the approval — with his not being required to go see his father. I think required is the correct word. He considers this a real — he considers it a strain, a burden.” Dr. Arthur felt that forcing Buzz to visit with his father was destructive to the future relationship between them. He testified that Buzz was much happier when he saw him in July of 1977 and that his happiness and his doing better in school were directly related to his feeling that he was not required to see his father. ⁹⁷ The chancellor gave great weight to the opinion of Dr. Arthur.

He felt that the psychiatrist’s opinion was of such “probative force” as to warrant a suspension of visitation privileges. In Radford v. Matczuk, 223 Md. 483 , the Court of Appeals quoted the general rule from 2 Nelson, Divorce, §