O'Brien v. O'Brien

DEBORAH S. EYLER, Judge. The Circuit Court for Montgomery County denied a petition by Colleen Victoria O’Brien, appellant, for child support arrearages against her father, William Robert O’Brien, appellee, for support of Colleen’s younger sister, and William’s daughter, Fiona Katherine O’Brien. The circuit court rejected a domestic relations master’s recommendation for an arrearages award in favor of Colleen and against William. On appeal, Colleen raises four questions for review, which we have combined, reordered, and rephrased: I. Did the circuit court err in ruling that Colleen lacked standing to seek arrearages against her father because she did not have legal custody or guardianship of Fiona?

II

Did the circuit court err in ruling that an award of arrearages would be inequitable in the absence of proof that Colleen spent her own money to support Fiona?

III

Did the circuit court err in denying Colleen’s petition for arrearages in part because Fiona was receiving Social Security death benefits? For the following reasons, we shall reverse the judgment of the circuit court and remand the case for further proceedings. FACTS AND PROCEEDINGS On August 24, 1988, William and his wife Gabriele Borm O’Brien were divorced by judgment of the Circuit Court for Montgomery County. The O’Briens’ marriage had produced three children: Molly, born April 30, 1972; Colleen, born June ⁵⁰¹ 1, 1973; and Fiona, born May 30, 1981.

The Judgment of Absolute Divorce incorporated, but did not merge, a Marital Settlement Agreement in which William and Gabriele agreed to share legal custody of Molly and Colleen, with Molly to live with Gabriele and Colleen to live with William. The parties also agreed that Gabriele would have sole legal and physical custody of Fiona. The agreement specified that William was to pay Gabriele the sum of $250 per month for support of Fiona, until Fiona’s death, marriage, attaining the age of majority, or becoming self-supporting. On May 23, 1991, the circuit court granted a petition for modification filed by Gabriele and increased the amount of William’s child support for Fiona to $514 per month, with the payments to be made by means of a wage withholding order, through the Child Support Enforcement Division (“CSED”).

This amount was to include William’s contribution toward private school tuition for Fiona. On March 13, 1996, Gabriele died. At that time, Molly and Colleen were 23 and 22 years old, respectively, and Fiona was 14 years old. About two weeks after Gabriele’s death, on March 26, 1996, William wrote a letter to the CSED asking for an end to the wage withholding order, and providing a copy of Gabriele’s death certificate.

William’s letter stated, “Since I will now be the sole supporter of [Fiona], my daughter, I request that the garnishment of my salary cease.” On April 29, 1996, the CSED filed a “Notice of Closing,” signed by a legal assistant, stating that “ongoing child support is terminated effective [March 31, 1996],” that no arrearage was outstanding, that the case was “closed” on the division’s computer system, and that “[William’s] employer shall no longer deduct child support from his wages, effective immediately.” Almost three years later, on February 12, 1999, Colleen filed a motion to intervene. That motion was granted on March 29,1999. That day, she filed a petition for custody, for modification of child support, and for other relief, pertaining to Fiona. She alleged, inter alia, that since their mother’s ⁵⁰² death, she had had physical custody of Fiona and had been the sole supporting adult in her life, and that William had not contributed to Fiona’s support.

On November 21, 1999, Colleen’s petition for modification went before a domestic relations master, in an evidentiary hearing. Thereafter, the master issued a report and recommendations, in which she made the following factual findings. At the time of Gabriele’s death, Colleen was in her final semester of college, out of state. Colleen returned to Maryland and remained for about three weeks, to get “ ‘everything set up.’ ” Upon graduation, at the end of May 1996, Colleen moved back to Maryland permanently.

Thereafter, she and Fiona, and for part of the time Molly, lived together. Colleen took responsibility for Fiona’s day to day care and for paying her basic living expenses. She applied for Social Security death benefits for Fiona, and in late May or June, 1996, Fiona began receiving benefits of approximately $500 per month. From late spring 1996 until the master’s hearing, Colleen used those benefits and her own earnings to pay for Fiona’s living expenses.

During that time frame, William did not make any cash contributions to Colleen for Fiona’s support, and did not take any steps to obtain physical custody of Fiona. Colleen asked William to pay support for Fiona, but he refused. The master further found that the Judgment of Absolute Divorce and the 1991 modification order required William and Gabriele to split the cost of Fiona’s private school tuition. Fiona was enrolled in a private parochial school at the time of her mother’s death.

William immediately contacted the school and made arrangements to pay Fiona’s full tuition, including a loan component, and other school expenses, such as book fees. From May 1996 through June 1999, William paid a total of $13,850 to the school (an average of $364.47 per month). The master concluded that William’s court ordered child support obligation for Fiona continued after Gabriele’s death, and was not altered or modified by the “notice of closing” filed by the CSED. The master determined that William was in arrears for child support for Fiona from May 1996 through June 1999 (when Fiona turned 18).

After crediting William ⁵⁰³ with $364.47 per month for his payments of school expenses for Fiona, the master calculated the child support arrearage for the applicable time period to be $5,682.14 ($149.53 x 38 months). The master found that some cash payments that William testified he had made to Fiona were gifts, and were not to be credited against the arrearage. Accordingly, the master recommended that a judgment for arrearages of $5,682.14 be entered against William and in favor of Colleen. She also recommended that William be ordered to pay $2,500 to Colleen as a contribution to her attorney’s fees.

William filed exceptions to the master’s report and recommendations. He argued: 1) that Colleen lacked standing to recover child support arrearages from him; 2) that arrearages could not be recovered for a period preceding the filing of Colleen’s petition; 3) that the master erred in finding that Colleen was entitled to arrearages without also finding that she had “provided actual support of’ Fiona; 4) that the master’s recommendation to award arrearages was unfair and inequitable; and 5) the recommended award of fees was in error because it was not based on a consideration of the factors set forth in the Family Law Article. Colleen filed an opposition to William’s exceptions and filed cross exceptions based on the master’s decision not to recommend an award of the full amount of her attorney’s fees. On January 7, 2000, the circuit court made an oral ruling sustaining William’s exceptions.

The court stated that the equities of the case did not warrant granting Colleen a judgment for arrearages and that the facts put before the master did not support her finding that Colleen had “spent any of her money on behalf of [Fiona].” The court explained that, while there was evidence that Colleen had spent some money for Fiona’s support, the evidence also showed that Fiona’s monthly Social Security death benefits exceeded the amount of William’s support obligation. 1 The court added that it was not going to enter judgment in favor of Colleen for arrearages ⁵⁰⁴ when there was “no guarantee that Colleen [was] going to spend that money or has spent that money on the child.” Finally, the court stated that it would issue its order without prejudice to Colleen’s petitioning for appointment as guardian of Fiona and then seeking an award of arrearages. The court concluded by saying, “[0]bviously there was a court order outstanding and [William] had an obligation to pay, but I am not convinced that the child was in any way deprived because she was receiving those monies from Social Security benefits.” On February 11, 2000, the court issued an order sustaining William’s exceptions. The order was docketed on February 18, 2000. Thereafter, Colleen noted a timely appeal.

Additional facts will be recited as pertinent to our discussion of the issues. DISCUSSION Colleen contends that while the circuit court correctly recognized that William’s obligation to pay child support survived Gabriele’s death, it incorrectly denied her an award of arrearages on the ground that she lacked standing and it further erred in ruling that, even if she had standing, an award of arrearages was not equitable because 1) the evidence did not support the master’s finding that she had spent any of her own funds to support Fiona, and 2) the amount of any arrearages would be entirely offset by the sums that Fiona had received as Social Security death benefits. In response, William argues the burden was on Colleen to seek a guardianship or custody order for Fiona and to request a modification of the child support order directing payment to her, and that the court correctly ruled that, until she did so, she lacked standing to seek arrearages. William also maintains that the court correctly determined, in the alternative, that there was no evidence that Colleen had spent her own funds to support Fiona and that his child support payments were completely offset by Fiona’s Social Security death benefits.

He points out that he relied on the Child Support Enforcement Division’s representation that he no longer was required to pay child support, and that the. circuit court ⁵⁰⁵ properly ruled that it would be inequitable to award arrearages under the circumstances. I. In Newkirk v. Newkirk, 73 Md.App. 588 , 535 A.2d 947 (1988), we held that a non-custodial parent’s obligation to pay child support did not terminate upon the death of the custodial parent. In that case, upon divorce, the mother of two children was awarded custody and the father was ordered to pay child support. Several years later, when the mother was dying of cancer, she executed a last will and testament appointing her adult son from a prior marriage as guardian of the children upon her death.

After the mother died, the adult son took custody of the children and the father ceased paying child support. The father then petitioned for custody. The adult son cross-petitioned for custody and sought an award of child support arrearages. The circuit court granted custody to the adult son and awarded arrearages to him for the period beginning with the death of the mother.

We affirmed on appeal. In so doing, we made plain that the father’s court-ordered obligation to pay child support for his minor children did not cease upon their mother’s death. See also Abrams v. Connolly, 781 P.2d 651 (Colo.1989) (noncustodial parent’s obligation to pay child support, pursuant to written agreement incorporated into divorce decree, did not terminate upon death of custodial parent, even though agreement did not specify who was to receive payments thereafter); McCann v. McCann, 27 Cal.App.4th 102 , 32 Cal.Rptr.2d 639 (1994) (child support order does not automatically terminate upon death of custodial parent; even if noncustodial parent assumes custody, he must request judicial termination of order if order does not so provide). See also Md.Code (1999 Repl.Vol.) § 5-203 of the Family Law Article (FL)(parents are joint natural guardians of their minor children and are jointly and severally responsible for their support, care, nurture, welfare, and education).

There is no case in Maryland discussing whether and under what circumstances a third party who has physical custody of ⁵⁰⁶ a child, but does not have legal custody and is not the child’s legal guardian, has standing to seek and recover child support arrearages from the non-custodial parent. 2 In Newkirk , the issue was not raised, most likely because the father assumed that the mother’s testamentary designation of her adult son as guardian of the children conferred g-uardianship status upon him. In fact, that was not the case. When one parent dies, the surviving parent becomes the sole natural guardian of the parents’ minor child. FL § 5-203(a)(2)(i).

A “surviving parent” of an unmarried minor child may make a testamentary appointment of a guardian of the person of that child, unless prohibited by court order or by agreement from doing so. Md.Code (1991 Repl.Vol.), § 13-701 of the Estates