Peterman v. Peterman

Orth, J., delivered the opinion of the Court. The question in this case is whether the chancellor below was correct in ordering ROBERT L. PETERMAN (appellant) to pay VALERIE S. PETERMAN (appellee) for the professional services of her solicitor in connection with the proceedings before the court. The amount of the counsel fee is not an issue. 1 The power of a court of chancery to require the husband to pay the wife alimony and counsel fees rests fundamentally upon the existence of the marital relation. 2 So, when the marriage is dissolved by divorce, the former wife is not entitled to an allowance of counsel fees inci ³¹² dent to further litigation against her husband, such as her seeking to secure an increase in the amount of alimony. It logically followed, reasoned the Court in Carter v. Carter, 156 Md. 500 , that subsequent to an absolute divorce, no counsel fee should be allowed to the mother because of her inability to pay her solicitor for his legal services in proceedings relative to the father’s request for a modification of the decree with respect to the custody of their infant child. “But”, the Court continued, “while the relation of husband and wife is ended by an absolute divorce, that of parent and child continues, and the father remains primarily, and the mother secondarily, bound to support and maintain the infant.” 3 Id., at 508 .

Therefore, even though “there can be no liability of the father to the mother for her counsel fees by reason of their former marital relation, yet, by reason of his parental obligation, the father may be liable, even to the mother, in the absence of any reason for imposing upon her his primary obligation, if upon his default, she has supplied the minor with necessaries. This obligation is at law and not in equity.” Ibid. “Necessaries”, when used in connection with the responsibility of a parent to a child, “is not confined to such obvious things as board, lodging, and education, but may upon proper circumstances, extend to the services of an attorney, if reasonable and necessary for the protection or enforcement of the property, rights of the minor or his personal protection, liberty, or relief. * * * The right of recovery, however, is subject to the condition that the expenditure of money made or the services rendered were reasonable and neces ³¹³ sary for the welfare of the infant, and especially, in the event of an action at law or in equity, is it required, before the father may be charged with the payment of attorney fees, that it must affirmatively appear that the proceeding begun or the defense interposed was reasonable and necessary for the temporal or personal welfare of the minor.” Id., at 509 . In Price v. Price, 232 Md. 379 , where there was a question of the correctness of an award to be paid by the father of a counsel fee to a lawyer who had performed services for a minor child some time after an absolute divorce had been granted, the Court reiterated, citing Carter, McKay v. Paulson, 211 Md. 90 , Frank v. Frank, 203 Md. 361 , and Kriedo v. Kriedo, supra, that if the divorced mother or another has furnished necessaries to an infant, the father may be liable to her or the supplier, and again pointed out that this liability of the father must be enforced at law. It suggested, at 385, that the Legislature might well want to change the rule.

Then in Andrews v. Andrews, 242 Md. 143 , decided 1 April 1966, the Court, relying on the Carter rule that the divorced wife is not entitled to an allowance of counsel fees with respect to the children unless the proceedings are reasonable and necessary for the children’s benefit, held that the award there of a counsel fee to the divorced wife was improper. 4 It called attention to Price . Apparently the Legislature responded. In 1967 it enacted ch. 488, codified as Art. 16, § 5A, providing: “In all cases where a person makes an application for a decree or modification of a decree with respect to the custody, the amount of support or visitation rights concerning a child or children of the parties, or files any form of proceeding to recover arrearages of child support or otherwise to enforce such decree, the court, after considering the financial status of both ³¹⁴ parties, their respective needs and whether there was substantial justification for instituting or defending the proceeding, may make such award of costs and counsel fees to either party as shall be just and proper under all the circumstances.” This statute was construed in McCally v. McCally, 251 Md. 735 . Observing that the Act gave the equity court power to award a counsel fee at any time in child custody and support cases, the Court found that by including as a consideration for the exercise of the power “whether there was substantial justification for instituting or defending the proceeding,” the effect was to make the statutory test on that point the test of the cases such as Carter and Andrews .

At 736-737. 5 The statute was applied in Fuld v. Fuld, 252 Md. 254 , where the Court found that the allowance of a counsel fee by the lower court was insufficient and increased it. In so doing it assumed that the lower court had correctly concluded that there was “substantial justification” for instituting the proceeding for an increase in the amount of support and maintenance for the minor child involved in the case. 5 6 In Rhoderick v. Rhoderick, 257 Md. 354 , the Court was of the opinion that the assumption in Fuld that the lower court had correctly concluded that there was “sub ³¹⁵ stantial justification” for instituting the proceeding for an increase in the amount of support and maintenance for a minor child was “a desirable practice as it would enable us — as we did in the Fuld case — to consider the correctness of the allowance of counsel fees (and court costs) at the same time that we consider the merits of the case.” At 361. But it was careful to point out that “[t]here is, of course, quite a difference between the issue of whether or not there was ‘substantial justification’ in bringing the proceeding, on the one hand, and the issue of whether or not the lower court was clearly in error in making the allowance, on the other.” Ibid. 7 In the light of Art. 16, § 5A and the construction and application of it by the Court of Appeals, we conclude that in equity, subsequent to a divorce a vinculo matrimonii, the chancellor may in his discretion make an award of costs and counsel fees not covered or contemplated by a separation agreement or the decree approving it to either party when (1) the proceeding is one involving the custody, support or visitation rights concern ³¹⁶ ing a child of the parties, and (2) there was substantial justification for instituting or defending the proceeding. For there to be “substantial justification” it must affirmatively appear, under the rule in Carter , made applicable to the statute by the holding in McCally , that the proceeding begun or the defense interposed was reasonable and necessary for the welfare and benefit of the child. 8 We think it clear from the opinion in Rhoderick that “substantial justification” vel non is to be determined as a matter of law.

Of course, when there is substantial justification for instituting or defending the proceeding, the making of the award by the court is upon consideration of the financial status of both parties and their respective needs. The making of the award in this context is tested by the clearly erroneous rule, Rule 1086. THE INSTANT CASE On 13 October 1967 ROBERT L. PETERMAN, appellant, was divorced a vinculo matrimonii from VALERIE S. PETERMAN by decree of the Circuit Court of Baltimore City. It was ordered in the decree that (1) the Agreement between the parties dated 29 January 1966 “relative to custody, maintenance and support, alimony, property rights, attorney’s fee, etc., be and the same is hereby approved and made a part of this Decree”, (2) appellant pay the cost of the proceeding in accordance with the Agreement, and (3) “the Stipulation and Agreement between the parties dated the 2nd day of October, 1967, relative to alimony and support arrearages, be and the same is hereby approved and made a part of this Decree.” Spelled out in the decree, as in accordance with the Agreement of 29 January 1966, was that appellee “shall have the guardianship and custody of LISA PET ³¹⁷ ERMAN and LORI PETERMAN, the minor children of the parties in this proceeding, and accounting from the date of this Decree the said Plaintiff [appellant] shall pay directly to the Defendant [appellee] the sum of $100.-00 per month for each child for her support and maintenance; and the Plaintiff shall pay directly to the Defendant for her maintenance and support and as alimony, the sum of $200.00 per month, or l/60th of his gross income; and the Plaintiff shall carry and pay for Blue Cross and Blue Shield insurance for said children and for the Defendant, and in addition shall pay all medical, surgical or dental bills not covered by said insurance, provided said bills do not exceed $150.00 in any calendar year; with the right to the Plaintiff to see said children at all times set out in said Agreement; all subject to the further Order of this Court in the premises; * * On 30 August 1968 appellant filed a petition to determine custody of the children but according to a memorandum dated 26 February 1970 of the Probation and After-Case Division of Juvenile Services an agreeable visitation schedule had been arranged between appellant and appellee, appellant “now feels his children’s best interests are being served by this arrangement,” and he was “no longer pursuing the custody of his children.” On 9 April 1970 appellant filed another petition.

Claiming numerous breaches of the agreement on numerous occasions by appellee, and citing the clause in the agreement whereby appellee agreed “to consult Husband with respect to all reasonably important decisions concerning the health, welfare and education of their said children * * he alleged that in January 1970 the two children, one then eight years of age and the other seven years of age, told him that they “were attending Religious Services in Catholicism at St. Williams Church” and that neither appellant nor appellee “at the time of the divorce, or prior thereto, were members of the Catholic Church.” He asserted that she had not consulted him concerning the schooling or religious training which the children would receive and that he contacted her and indicated to ³¹⁸ her “that he did not feel it was in the best interests of the children to become members of the Catholic Church, as this was not his faith nor [her] faith.” It was further alleged in the petition that appellee was employed and had sufficient income for all her needs and that he was paying her 20% of his gross salary in addition to the support payments of $200 a month. He claimed the alimony paid was “oppressive and excessive.” He prayed that the order of 13 October 1967 be modified to provide that appellee receive no further alimony, that she account for monies paid for support of the children and that she be held in contempt for “intentionally violating” the order of 13 October 1967. A show cause order was issued. On 22 April 1970 appellee filed a petition for the issuance of a contempt citation on the ground that appellant had paid no alimony after 1 March 1970, announced that he would pay no more, and had not complied with provisions of the agreement concerning statements of income received by him.

A show cause order was issued on that petition. On 23 April appellee filed a demurrer and answer to appellant’s petition and the same date filed a petition to modify the decree of divorce by increasing the amount of alimony and support to be paid by appellant. Appellant answered both petitions. The matter came on for a hearing on 14 January 1971 in the Circuit Court for Baltimore City before Cardin, J. On 2 April the