O'Brien v. O'Brien

WILNER, Judge. We granted certiorari to determine whether the Court of Special Appeals was correct in holding that respondent, Colleen O’Brien, who assumed actual care and custody of her minor sister, Fiona, following the death of their mother, may enforce an existing child support order entered against their father without first having been appointed as Fiona’s guardian. See O’Brien v. O’Brien, 136 Md.App. 497 , 766 A.2d 211 (2001). Unfortunately, we shall be unable to decide that issue, as no judgment has been entered in the case.

When William and Gabriele O’Brien were divorced in 1988, they had three children — Molly, who was 16, Colleen, who was 15, and Fiona, who was only seven. The judgment of divorce incorporated a property settlement agreement under which the O’Briens agreed that they would have joint legal custody of Molly and Colleen, that Molly would live with her mother and Colleen would live with her father, and that the mother, Gabriele, would have sole legal and physical custody of Fiona. The initial judgment required William to pay child support to Gabriele for Molly and Fiona in the amount of $250/month, each. In June, 1991, after both Molly and Colleen had turned 18, the support order was modified to require William to pay $514/month for the support of Fiona.

The modified support order took into account a provision in the property settlement ⁵⁴⁹ agreement that each party would pay one-half of the private school tuition for the children. The annual tuition payment at the time was determined to be $2,942, of which William’s share was $1,471, or $123/month. That amount was added to his base monthly child support obligation of $391, which produced the gross obligation of $514. Payment of that support was enforced through an earnings withholding order that directed William’s employer to deduct the requisite amount from William’s salary and make the payment to Gabriele through the Child Support Enforcement Division of the Circuit Court (CSED). 1 Gabriele died on March 13, 1996.

On March 26, William notified CSED of Gabriele’s death and advised that “[s]ince I will now be the sole supporter of [Fiona], my daughter, I request that the garnishment of my salary cease.” Obviously assuming the truth of that statement, CSED responded on April 29,1996, with a Notice of Closing that stated: “The Child Support Enforcement Division has been advised of the Plaintiffs death on March 31, 1996. 2 Consequently, ongoing child support is terminated effective said date. There are no arrearages owed. This case is CLOSED on the Child Support Enforcement Division’s computer system and no further action will be taken. Defendant’s employer shall no longer deduct child support from his wages, effective immediately.” Based on that response, William ceased paying any direct support for Fiona.

He made no effort to have the existing court order modified or vacated, however. Nor did he assume actual custody of the child or provide for her food, clothing, ⁵⁵⁰ shelter, or other daily living expenses, as he had represented to CSED he would do. At the time of her mother’s death, Colleen was just completing her last year of college in New York. She returned home for about three weeks to get “everything set up,” and, following her graduation two months later, she returned permanently, moved into the home where Fiona and Molly were living, and assumed responsibility for her younger sister. 3 Fiona was enrolled at the time in the National Cathedral School.

William, who was already responsible for half of the tuition, $123/month of which was included in the 1991 child support order, arranged for a package of tuition support and assumed responsibility for an average of $364/month of the tuition. He kept Fiona insured under his health insurance policy and said that he occasionally gave her “car fare” of $15 to $20 when he saw her, but, as noted, he made no other contribution to her support. Colleen applied for social security benefits for Fiona and, in May or June of 1996, began to receive $500/month. She testified that she paid for all of Fiona’s basic living expenses, including food and clothing, and that, despite several oral requests by her, William never contributed anything toward those expenses.

In her testimony given before a domestic relations master, Colleen estimated Fiona’s expenses as $200/ month for food, $150 to $200/month for utilities, $100 for transportation (representing a three-way split of the payment ⁵⁵¹ due on Gabriele’s car), $250/month for clothing and incidentals, and $200/month for spending money. Colleen took no steps to have herself appointed as Fiona’s legal guardian. She said that she discussed that prospect with her father and that he asked her not to make such an effort— that he would resist it. She said that she asked her father on a number of occasions to provide assistance and that he refused, claiming that “things were tight.” By the winter of 1999, while contemplating how to defray Fiona’s upcoming college expenses, she and Fiona came to the conclusion that it was unfair of their father not to have provided support and that, if they could recover that support, it could be used for Fiona’s college expenses. 4 On February 12, 1999, three months shy of Fiona’s 18th birthday, Colleen filed a motion to intervene in the divorce proceeding.

She alleged in her motion that Fiona had been in her care and custody since March 13, 1996, that she had assumed responsibility for her sister’s care, support, and maintenance, that William, though gainfully employed and subject to an existing order of child support, had refused to provide any support to Fiona since March, 1996, and that Colleen was a proper and fit person to have custody of Fiona. On March 24, 1999, the court entered an order granting the intervention, whereupon Colleen filed a motion seeking (1) custody of Fiona, (2) an order holding William in contempt for failure to pay the court-ordered child support, (3) modification of the child support, (4) a judgment for arrearages, and (5) counsel fees. William responded with a motion to vacate the order granting intervention on the ground that child support had been terminated in March, 1996, and that it was inappro ⁵⁵² priate for Colleen to intervene in a case that had been closed for three years. As additional relief, he asked that he be awarded counsel fees.

In May, 1999, the court denied the motion to vacate and, in due course, the matter was set for hearing before a domestic relations master, at which the evidence summarized above was presented. In her report, the master rejected William’s contention that, because Colleen was never appointed Fiona’s guardian, she had no standing to bring the request for child support. Citing Robinson v. State, 68 Md. 617 , 13 A. 378 (1888), the master concluded that neither legal custody nor guardianship was a prerequisite to an award of child support to the de facto custodian of a minor child. She also determined that an existing order of child support is not automatically terminated upon the death of the payee but imposes a continuing obligation until the order is modified.' From those conclusions, and upon the evidence presented, the master found that William was obligated under the 1991 order to pay $514/ month.

She allowed him a credit for the total tuition he had paid during the 38 month period, in the amount of $13,850, but disallowed the occasional cash gifts — the “car fare” — and found a net arrearage of $5,682, which she recommended be entered as a judgment. She recommended, in addition, that William contribute $2,500 toward Colleen’s counsel fees. William filed four exceptions to the master’s report — that (1) the decision to “grant an award of child support” in favor of Colleen for a period of time prior to the date of her motion to intervene was clearly erroneous “in that [Colleen] lacked the proper standing since Maryland Law allows child support to be awarded only back to the date of filing of the request for same,” (2) the master erred in finding an entitlement to child support without finding that Colleen “provided the actual support of the minor,” (3) she abused her discretion in “failing to apply equitable principles of fairness and laches,” and (4) she was clearly erroneous in awarding counsel fees. Nowhere in these exceptions did William raise the issue of Colleen’s general standing as a petitioner.

In his memorandum in support of the exceptions, he asserted only that she could not ⁵⁵³ stand in the shoes of her mother and attempt to collect support for a period prior to the filing of her petition. After hearing argument, the court announced that it was going to grant the exceptions because “I don’t think the equities in this case would warrant granting a judgment to the intervenor in this case,” that the facts presented to the master did not “justify a finding that Colleen spent any of her money on behalf of [Fiona].” That finding was based entirely on the fact that Colleen received $500/month on Fiona’s behalf from Social Security and that the guideline child support based on William’s salary would only have been