Kramer v. Kramer

Davidson, J„ delivered the opinion of the Court. On 29 June 1973, in the Circuit Court for Baltimore County, Theresa Z. Kramer, the appellant (mother), filed a bill of complaint for an absolute divorce from Howard Calvin Kramer, the appellee (father), on the grounds of cruelty, constructive desertion and an uninterrupted separation of five years. Included among the prayers for relief were ones for alimony and for custody and support of the three minor children of the parties, Pamela, then age 17, Theresa, then age 14, and Priscilla, then age 12. On 10 September 1974 Judge John N. Maguire filed a memorandum opinion and order in which he found that the father had not deserted the mother but that the parties had lived separate and apart for five years.

His order, in pertinent part, awarded the mother an absolute divorce and denied her alimony, awarded the father custody of Theresa and Priscilla, and failed to provide child support payments for Pamela. 1 It is from the denial of alimony to the mother, ⁶²³ the award of custody to the father and the refusal of support payments for Pamela that this appeal is taken. I On appeal the mother’s primary contention is that the chancellor erred in awarding custody of the two minor children, Theresa and Priscilla, to the father. The governing principle with regard to an award of custody is that the best interest and welfare of the child are determinative. In undertaking appellate review of the chancellor’s award of custody, this Court has limited the applicability of the “clearly erroneous” rule to the factual findings underlying the chancellor’s conclusion as to what constitutes the best interest and welfare of the child, reserving the right to exercise our own best judgment as to the appropriateness of that conclusion.

Barsallo v. Barsallo, 18 Md. App. 560, 565 , 308 A. 2d 457, 460 (1973); Mullinix v. Mullinix, 12 Md. App. 402, 411-12 , 278 A. 2d 674, 678-80 (1971); Sullivan v. Auslaender, 12 Md. App. 1, 4-5 , 276 A. 2d 698, 699-701 (1971). Upon our review of the record in this case we cannot say that the chancellor was clearly erroneous in his findings of fact or that his ultimate conclusion that custody should be awarded to the father was incorrect. Ordinarily custody should be changed only when the best interest of the child requires a modification. Winter v. Crowley, Jr., 231 Md. 323, 331 , 190 A. 2d 87, 91 (1963); Peterman v. Peterman, 14 Md. App. 310, 320-21 , 286 A. 2d 812, 819 (1972); Sullivan, supra, at 12 Md. App. 5 , 276 A. 2d 701 .

In determining what is likely to be in the best-interest and welfare of a child, a court may properly consider, among other things, the fitness of the person seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the children, the physical, spiritual and moral well-being of the children, the environment and surroundings in which the children will be reared, the influence likely to be exerted upon the children, and if old enough to make a rational choice, the preference of the children themselves. Hild v. Hild, 221 Md. 349, 357 , 157 A. 2d ⁶²⁴ 442, 446 (1960); Deckman v. Deckman, 15 Md. App. 553, 565-66 , 292 A. 2d 112, 118-19 (1972). The record shows that all three children lived with their mother after the parties’ separation in 1967. While the chancellor did not find the mother to be unfit, there was evidence to show that the mother, then working full-time as a nurse and staff development director at Maryland General Hospital, had a history of repetitive occurrences of mental depression, suicide attempts, and alcoholism problems, which ultimately required long-term psychiatric hospitalization.

Although she had greatly improved, she still drank occasionally and was prone to hysterical exaggeration. Because she frequently attended Alcoholics Anonymous meetings and evening college classes in addition to working full-time, she spent such a considerable time away from the children that they had virtually no maternal supervision. In addition, there was a lack of involvement on her part in the children, their interests, and their emotional development. There was evidence to show that the children were doing well.

Both Theresa and Priscilla had been honor students at their respective schools the year before; Theresa was a high school cheerleader. Yet the probation officer’s report shows that Priscilla was recently suspended from junior high school and was becoming prone to temper outbursts; that neither of the children got along well with their older sister Pamela; and that Priscilla was not getting along well with her mother. Finally, there was evidence to show that the father, a urologist, was a conscientious man, deeply concerned and involved in the welfare of the children; that he then lived in a spacious, attractively furnished two bedroom apartment which he shared with his 79 year old widowed mother; that he was then willing and able to obtain even more commodious accommodations if custody were granted to him; that during the years since the separation of the parties the father had spent four nights a week with the children and was generally available to them on call; that Theresa wanted to be in her father’s custody; that Priscilla wanted to ⁶²⁵ be with Theresa; and that, in the opinion of the probation officer, the father is “presently more able to provide the most stable and consistent atmosphere for the girls.” We agree with the chancellor’s conclusion that custody of these children should be awarded to the father. Priscilla’s difficulties at school, her inability to get along well with her mother, the inability of both children to get along with Pamela, and Theresa’s decided preference to be with her father, coupled with the fact that since 1967 the father has been more integrally involved with the children than has the mother, are all factors which demonstrate that a change in custody is in the children’s best interest.

The strong paternal influence and involvement which the father offers far outweighs any disadvantage which may be suffered by transferring custody of the children to him. Accordingly, the chancellor’s determination with respect to the custody of the children will be affirmed. II The mother additionally contends that she was entitled to support payments, including college expenses, for Pamela, notwithstanding the fact that Pamela had become 18 years old in January, 1974, and was, therefore, no longer a minor at the time of the award in July, 1974. She asserts that before 1 July 1973, the effective date of Art. I, § 24, which changed the age of majority from 21 to 18 years, the father had verbally agreed to support the children and that that agreement meant that he agreed to support the children until they reached the age of 21.

The father contends that before 1 July 1973 there was no agreement to support the children until age 21 and in the absence of any support agreement or court decree executed or entered into prior to 1 July 1973, the mother was not entitled to child support for Pamela. The record shows that the parties separated in August, 1967. According to the mother, the parties after discussion verbally agreed, sometime in September or October, 1967, that the father should pay the mortgage, utilities and ⁶²⁶ insurance expenses as well as $150.00 every two weeks as support for the three children. The mother testified that payments in accordance with this agreement were made until January, 1974, at which time the father ceased making support payments for Pamela who then became 18 years old and who was attending college.

While the father testified that at the time of the separation of the parties he and the mother were both represented by counsel, and while no formal written separation agreement making disposition of the property of the parties was introduced into evidence, the father at no time during the trial denied the existence of an agreement with respect to child support as testified to by the mother. Moreover, he himself testified that from the time of the separation of the parties in August, 1967, he paid $150.00 every two weeks for the three children and, in addition, another $150.00 per month for utilities, the mortgage and “a number of other things.” Finally, he testified that, whereas he intended and hoped to contribute to the cost of a college education for his daughters Theresa and Priscilla, he would not contribute to Pamela’s education for the sole reason that “my wife had enough money that if she had been prudent she could have paid for Pamela’s education. She should have taken care of that during that period.” Here the evidence presented compels the conclusion that an agreement between the parties with respect to support payments for the three children did exist long before 1 July 1973, the effective date of Art. I, § 24. There is no requirement that there be a formal written agreement in matters involving separation, alimony, child support and custody.

Wilner v. Wilner, 251 Md. 13, 24 , 246 A. 2d 273 , 279 (1968); Hahn v. Hahn, 192 Md. 561, 568 , 64 A. 2d 739, 742 (1949). 2 The existence of an agreement with respect to such ⁶²⁷ matters may be verified from testimony, the conduct of the parties, and other evidence in the case. Wilner, swpra, at 251 Md. 24 , 246 A. 2d 279 . Here the mother’s acceptance of payments unilaterally determined by the father to be appropriate, for a period of six years, without resort to a support action, constitutes acquiescence in and acceptance of an offer of support for the children made by the father, and, therefore, constitutes an agreement between the parties with respect to support payments for the three children. See Eckard v. Gardner, 255 Md. 171, 178 , 257 A. 2d 174, 177 (1969); Rethorst v. Rethorst, 214 Md. 1, 15 , 133 A. 2d 101, 109 (1957).

Moreover, the fact that these parties, each of whom were represented by counsel from the time of their separation in August, 1967, never entered into or executed a formal written separation agreement, making final disposition of all their property rights, does not establish that the parties previously had not effectuated an agreement with respect to child support. Even a temporary measure providing for child support pending the completion of negotiations between parties’ counsel, concededly nothing more than an interim measure which does not purport to make a final determination of property rights, is nonetheless a valid and enforceable agreement. Wilner, supra, at 251 Md. 24 -25, 246 A. 2d 279 . Here both the father and mother testified as to facts which support a rational inference that an agreement with respect to the support of the children did in fact exist prior to 1 July 1973.

There was no denial by the father of the existence of that agreement. Although the chancellor made no finding with respect to the existence of such an agreement, the corroborated evidence supports such a finding. A finding to the contrary, had one been made, would have been clearly erroneous. On the basis of the record before us we are persuaded that an agreement between the parties with respect to the support of their three children, which required the husband to pay $25 per week per child, did, in fact, exist before 1 July ⁶²⁸ 1973, the effective date of Art. I, § 24. 3 The question next to be resolved is whether, by virtue of that agreement, and notwithstanding the provisions of Art. I, § 24 which made 18 rather than 21 the age of majority, the father was obligated to support Pamela after she reached the age of 18 in January, 1974.

Article I, Section 24 provides: “(a) Except as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all 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.” Section 51 stipulates: “That the provisions of this Act shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this Act, or to any gift made under the Uniform Gift to Minors’ Act prior to that date, or to any court decree, trust, will, deed or other instrument in effect prior to the effective date of this Act.” (Emphasis added.) ⁶²⁹ Section 52 of the Act provides that the Act shall take effect 1 July 1973. The impact of Art. I, § 24 on a parent’s obligation to provide child support has been considered in Maryland on three occasions. The Court of Appeals in Monticello v. Monticello, 271 Md. 168 , 315 A. 2d 520 (1974), initially determined the effect of Art. I, § 24. There a part of a divorce decree, entered in 1968, ordered a father to pay support for his three “infant children.” In construing Section 1 in conjunction with Section 51, the court said at 271 Md. 173 , 315 A. 2d 523 : “. . . [w]e are prepared to hold that the use of phrases such as ‘infant’ child, ‘minor’ child, ‘during infancy,’ ‘during minority,’ ‘until attaining majority,’ or ‘until age of majority,’ in an agreement or in a decree relating to child support dated prior to 1 July 1973, must have meant support until attaining age 21, in the absence of a clear expression of contrary intent, since this is the only meaning which could reasonably have been within the contemplation of the parties at the time such an agreement was executed, or in a judge’s mind when such a decree was entered.

However, we do not decide whether this holding governs the interpretation of an agreement or decree which refers to ‘child’or ‘children,’ otherwise unidentified, or to a child, by name, without further elaboration from, which intent can be inferred.’’ (Emphasis added.) The same result was reached by this Court in O’Connor v. O’Connor, 22 Md. App. 519, 522 , 323 A. 2d 632, 634 (1974), in which this Court considered a decree entered in 1971 which required the father to pay support for the “minor children” of the parties and in Abb v. Crossfield, 23 Md. App. 232, 237-38 , 326 A. 2d 234, 238 (1974), in which this Court considered a 1963 support order, based on a pre-existing agreement of the parties that expressly obligated the father ⁶³⁰ to provide support for a child “until the said child reaches her 21st birthday or becomes self-supporting.” Neither of these cases decided the question eschewed by the Court of Appeals in Monticello and now squarely before us concerning the impact of Art. I, § 24 on a preexisting oral agreement relating to child support which refers to “child” or “children” otherwise unidentified, or to a child by name without further elaboration. 4 Since we are here concerned with the construction and interpretation of an agreement for child support we follow the objective law of contracts which requires us to determine, from the language of the agreement itself, what a reasonable person in the position of the parties would have thought the agreement meant at the time it was effectuated. Monticello, supra, at 271 Md. 173 , 315 A. 2d 522 -23; Slice v. Carozza Properties, Inc., 215 Md. 357, 368 , 137 A. 2d 687, 693 (1958). The same principle would, of course, be followed if we were concerned with a similarly worded judicial decree imposing child support. Monticello, supra, at 271 Md. 173 -74, 315 A. 2d 523 .

The agreement here, whether viewed as arising from the verbal assent of the parties or from their .conduct, is an agreement by which the father undertook to pay $150 every two weeks for the three “children.” The agreement contained no express provisions as to when the payments might terminate. Nor did it contain any express provisions as to any contingencies upon which the payments might terminate. In the absence of any specific provisions for the termination of payments only two ⁶³¹ interpretations of the agreement are reasonable. Because Pamela, Theresa, and Priscilla will remain the children of their father until the time of his death, the agreement to pay $150 every two weeks for the support of “the children” could be viewed as a promise by the father to support the children for the rest of his natural life.

Or, because the agreement was made by married persons living separate and apart, it could be viewed as one designed to satisfy the father’s legal obligation to support his children, which obligation, under then existing law, required him to support his children until they reached the age of 21. The fact that the agreement contains no express provision for termination of payments does not permit it to be viewed as one allowing the father to terminate payments at any time. Such an interpretation would, in essence, view the father’s promise as one to provide payments so long as he was willing so to do, a view which negates the very existence of an agreement because of the illusory nature of the father’s promise. See Stamatiades v. Merit Music, 210 Md. 597, 614-15 , 124 A. 2d 829, 838 (1956); Foster-Porter Enterprises v. De Mare, 198 Md. 20, 30-31 , 81 A. 2d 325, 331 (1953).

We think it obvious that in 1967 reasonable married persons, who had separated and had entered into an agreement for the support of their children, would have thought that that agreement was an agreement designed to satisfy, without the need of a court adjudication, the legal obligation of the supporting parent to his children, an obligation which at that time required support until the age of 21. We now hold that the use of words such as “child” or “children” otherwise unidentified, or a reference to a child by name, without further elaboration, in an agreement or in a decree relating to child support, dated prior to 1 July 1973, in the absence of a clear expression of contrary intent must have meant support for the parties’ offspring at least until they attain the age of 21. The only meaning, which could reasonably have been within the contemplation of the parties at the time such an agreement was effectuated, was one that required support to be continued at least until the child attained 21 years of age. The same would be true for a ⁶³² similarly worded judicial decree providing for child support entered before the effective date of Art. I, § 24.

Such a holding is consonant with the provisions of Section 51, which direct that the “Act shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or