O'Connor v. O'Connor

Morton, J., delivered the opinion of the Court. The parties to this appeal were divorced on January 18, 1971, as a result of the filing of a decree in the Circuit Court for Montgomery County. Custody of the parties’ six minor children was awarded to the wife and the decree provided that the husband should pay to the wife $850 per month as alimony and $850 per month for the support of the children. In 1973 the mother filed a petition seeking increased alimony and child support.

A hearing was held before a master. The chancellor, after overruling the husband’s exceptions Jo the master’s report, signed an order, embodying the master’s recommendations, in which the monthly alimony payments to the wife were increased to $950 and the monthly payments for support of the children were increased to $1350 beginning May 18,1973. ⁵²¹ The record indicates that at the time the order was signed, two of the six children had become emancipated. In the brief of the appellant it is asserted that another of the children, Gary Michael O’Connor, became 18 years old on February 20,1974. As his first point in this appeal, the appellant urges that support payments for Gary “should now be terminated as he is no longer a minor,” citing Chapter 651, Section 1, of the Acts of 1973.

The appellee, in reply, asserts in her brief that since the effective date of the Act, which her counsel terms the “new ‘eighteen-year old statute,’ * * * was July 1, 1973, and Chancellor Cahoon’s order increasing support accounts from May 18, 1973, it would logically follow that no problem is presented from May 18, 1973, to February 20, 1974, when Gary turned eighteen * * *.” We are not clear as to the point appellee attempts to make unless it is to concede that under Section 1 of Chapter 651 child support payments are automatically terminated when the child, in this instance, Gary, attains the age of 18 years. Section 1, however, has to be read in conjunction with Section 51 of Chapter 651 which provides that “the provisions of this Act shall be construed only prospectively and shall not be applied * * * to any court decree, trust, will, deed or other instrument in effect prior to the effective date of this Act.” The Court of Appeals in Monticelo v. Monticello, 271 Md. 168 , had Section 51 before it for review and Judge Singley, speaking for the Court, announced, at 173-174: “* * * we 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.” ⁵²² The original decree awarding the sum of $850 per month for the support and maintenance of the minor children of the parties was entered on January 18, 1971. Since there is nothing in the decree, or otherwise, to indicate a contrary intent, we think the decree comes squarely within the holding in Monticello that the use of the phrase “minor” children “in a decree relating to child support dated prior to 1 July 1973, must have meant support until attaining age 21 * * *.” That the order, effective May 18, 1973, increasing the support payments for the minor children was not filed until December 13, 1973, and thus after the effective date of the Act, does not, in our opinion, alter this conclusion for it is the date of the original decree, not the date of the modifying decree, which controls. Thus, in spite of the cloudy position of the appellee on this issue, we can find no merit in the suggestion of the appellant that the case “be remanded so that the lower court will specifically terminate support for Gary Michael O’Connor as of February 20,1974 * * The appellant next attacks the amount of the award for the support of the children and in doing so centers his complaint largely upon the fact that some of the support monies will be used by the mother to finance the education of the remaining minor children in “parochial schools.” The appellant points out that the chancellor did not order appellant in the prior divorce decree to pay for the private school education of the children but did order him to pay for the college expenses of the two older children who were in college at the time of the decree.

Appellant argues that the chancellor below was without authority to increase support payments for the children, knowing that they were to continue in private schools, because under the so-called “law of the case” doctrine, (citing 4 M.L.E. §54) the-chancellor below was bound to follow the holding of the chancellor in the original divorce proceedings. Whatever the “law of the case” doctrine may hold in other situations, the law in a child support case is always what is in the best interest of the child, ie., the needs of the child in view of the child’s station in life, tempered only by the financial ability of the parents to provide the requisites of the child. Wagshal v. Wagshal, 249 Md. 143 ; Fainberg v. Rosen, 12 Md. App. 359 . ⁵²³ It appears that prior to the divorce the older two children had been sent by the parents to secondary parochial schools, John Jay attending St. John’s College High School and Kathleen attending Holy Child School. The appellant paid their tuition and expenses.

Just prior to the initiation of the divorce proceedings, their son, Gary, had been enrolled in St. John’s College High School and appellant paid his tuition for the first year. After the divorce, Gary continued to attend St. John’s and the mother enrolled another son, Mark, in St. John’s and another daughter, Sharon, in Holy Child School. The mother continued to pay the school expenses. The record also shows that the appellant himself graduated from St. John’s College High School as a youth.

When asked if he had any objection to the boys being sent to St. John’s, appellant replied: “No.” He then elaborated by stating, “I didn’t object to the boys going to St. John’s anymore so than I would object to them going to Montgomery County schools.” When