Rhoderick v. Rhoderick

Barnes, J., delivered the opinion of the Court. In these three consolidated appeals from three separate orders of Judges Turnbull, Maguire and Proctor in the Circuit Court for Baltimore County, the appellant and petitioner below, Emma V. Rhoderick, contends that Judge Turnbull in the Order of October 7, 1968, and Judge Proctor in his order of December 2, 1969, did not allow sufficient increases in the amount of support for the three children (John, Richard and Mark) of Emma and her former husband, the appellee and respondent below, Richard L. Rhoderick (Richard). It is also contended that Judge Maguire erred in the order passed by him on June 17, 1969, declining to award Emma an ³⁵⁶ amount for “counsel fee and court costs to enable her to prosecute the appeals.” The facts are not in dispute in any substantial way. Emma was granted a divorce a mensa et thoro from the appellee Richard by a decree of the Circuit Court for Baltimore County in 1959 and was awarded custody of the three minor children.

This decree was affirmed by this Court in Rhoderick v. Rhoderick, 224 Md. 478 , 168 A. 2d 518 (1961). On March 15, 1968, Emma filed a Petition for Increase in Child Support based upon a $3,000 increase in the father’s gross income and increases in the family living expenses resulting from inflation and certain unusual medical and dental expenses for the children. At the time this Petition was filed Richard was employed as an engineer with the Naval Ordnance Systems Command of the United States Department of the Navy with a civil service rating of GS — 13, fifth step, with a base salary of $15,307 per annum. Richard, having moved to Fairfax County, Virginia in 1966, resisted the jurisdiction of the Circuit Court for Baltimore County, but, on July 2, 1968, Judge Jenifer ruled that the lower court had continuing jurisdiction in regard to all matters pertaining to the custody and support of the children, and he passed an order on July 8, 1968, denying Richard’s motion and giving Richard 30 days within which to answer the Petition.

Richard filed his answer in due course and there is no contention before us that the lower court did not have jurisdiction. 1. (Appeal No. 6) At the hearing before Judge Turnbull on the Petition of March 15, 1968, Emma submitted a statement showing general expenses of $178.00 a week. It was developed that in 1964 the lower court had increased the award for child support from $20.00 a week for each child to $27.50. Alimony of $15.00 a week had been left at the same figure.

From the time of the last hearing in 1964, Richard had received an increase in salary of approximately $3,- ³⁵⁷ 000 a year. Emma introduced into evidence an Employee’s Statement of Earnings, Deductions and Leave issued by Richard’s employer showing a gross pay of $646.40 for a two week period ($323.20 a week) and a net pay of $399.91 for the two week period (199.95 a week). Counsel for Emma offered to show that if Richard took all of the exemptions to which he was entitled, the amount withheld for taxes would be approximately $40.00 less each two week period. Counsel for Richard countered this by observing that Richard’s Federal Return had been audited by the Internal Revenue Service practically every year since the divorce decree and that Richard owed the Government money each year on the present basis of deductions. 1 Emma testified in regard to the increased expenses for the children, the depletion of her savings to make ends meet and to the fact that her eldest son, John, would soon be ready to enter college.

Richard filed a financial statement indicating a net monthly income of $867.00, and his monthly expenses (not including incidentals) of $871.15 a month, or a net deficit of $4.15 a month. There is an error in addition in the monthly expenses, which actually total $851.15 a month vs. $871.15, so that there was a surplus of $15.85 a month for incidentals. Richard testified that as a result of the original divorce litigation, the allowances made for counsel fees, and other expenses of suit he had been forced to borrow money and he had not yet been able to liquidate all of his indebtedness. In his list of monthly expenses he showed payments on account of his debts as follows: Household Finance — $50.00, Navy Credit Union — $55.34, Suburban Finance Co. — $21.81 and Montgomery Ward— $13.00.

His statement of liabilities showed that he owed ³⁵⁸ the companies mentioned $1500.00, $1500.00, $130.00 and $165.00 respectively. His only asset was a 1967 Renault automobile having a listed value of $750.00. The general breakdown of Richard’s monthly expenses were as follows: Living Expenses — Rent, food, clothing, etc. $288.-50, payment on account of loans $140.15, support payments $422.50, a total of $851.15. Richard swore that the statement was an accurate statement of his finances and this testimony was not impaired on cross-examination.

Judge Turnbull granted Emma an increase in child support of $2.50 a week for each child, a total increase of $7.50 a week or $390 a year, and passed an order giving effect to this increase on October 7, 1968. Emma perfected an appeal from this order. There was no Motion by Emma under Maryland Rule 564 b 2, requesting Judge Turn-bull to state his reasons for his ruling, so that this helpful information is not before us. Richard filed a cross-appeal from the order of October 7, but this cross-appeal was later dismissed.

Considering all of the evidence produced before Judge Turnbull, we cannot say that his grant of a $2.50 a week increase for each child’s support was in error and we shall affirm the Order of October 7, 1968. See Maryland Rule 886 a. See also our decision in Fuld v. Fuld, 252 Md. 254, 256 , 250 A. 2d 93, 95 (1969) in which Judge McWilliams for the Court in Note 1 set forth the prior decisions of the Court considering, payments for support and maintenance of minor children of parties divorced a vinculo matrimonii and stated: “In our judgment no useful purpose will be served by setting forth herein an analytical recitation of the various factual situations presented by those cases and how we resolved them. It is enough, we think, to say that our decisions do not compel a conclusion that Judge Wolf’s determination of the adequacy of $35 per week for the maintenance and support of Robert was clearly erroneous.

Levy v. Bernstein, 237 Md. 552 , 207 A. 2d 98 (1965).” ³⁵⁹ On December 4, 1968, Emma filed a Petition for Counsel Fee and Allowance of Court Costs, pursuant to Code (1957, 1969 Supp. to 1966 Repl. Vol.) Art. 16, § 5A, both for the hearing before Judge Turnbull and the prosecution of her appeal from the Order of October 7, 1968. This petition was opposed and the matter came before Judge Maguire for a hearing on June 17,1969. 2. (Appeal No. 185) At the hearing on the Petition of December 4, 1968, it appeared that Richard had obtained a divorce a vinculo matrimonii from Emma in Virginia.

The only testimony taken at this hearing was that of Richard, as an adverse witness for Emma. He, in effect, reintroduced his testimony taken at the previous hearing before Judge Turn-bull that he had a net income of $399.91 every two weeks. He further testified that he had only taken two of the children and himself as exemptions for tax purposes, rather than all three children and himself, because he had “paid over two hundred and eighty-six dollars of income tax the last three years running, and I had to go out and borrow. I felt justified in trying to match my tax liability by deductions.” Judge Maguire was of the opinion — relying in part on Andrews v. Andrews, 242 Md. 143 , 218 A. 2d 194 (1966) and Carter v. Carter, 156 Md. 500 , 144 A. 490 (1929) 2 — that the lower court should not determine the question of an allowance to Emma of counsel fees and court costs “until the matter has been disposed of by the Court of Appeals.” It was his opinion that Emma would be entitled to such an allowance only if the legal services were necessary for the welfare of the chil ³⁶⁰ dren and that this determination turned on a finding of whether or not an appeal from Judge Turnbull’s order was substantially justified.

Judge Maguire believed this, in effect, would be passing upon the propriety of Judge Turnbull’s award, a proper function of this Court rather than of another judge in the Circuit Court for Baltimore County, itself. In our opinion, in the light of Art. 16, § 5A and our construction of the statutory provision in Fuld v. Fuld, supra, Judge Maguire was in error in not passing upon the question of substantial justification for the appeal and, if the facts otherwise justified it, in not making an award to Emma of an amount for counsel fees and court costs, not only for this appeal but also for legal services in connection with the hearing before Judge Turnbull. In Price v. Price, 232 Md. 379 , 194 A. 2d 99 (1963), this Court held that under the Maryland cases a divorced mother, having custody of minor children, could not recover a counsel fee, not covered or contemplated by a separation agreement or the decree approving it, as a necessary and reasonable service to the minor children in an action at law. Judge (now Chief Judge) Hammond stated for the Court: “The fee sought in this case is claimed to be for necessary and reasonable services which were not covered or contemplated by the separation agreement or the decree which approved it.

Under the authorities, we think the action to secure payment of the fee must be at law. If a contrary result is preferable, the Legislature may change the rule for the future.” ( 232 Md. at 385 , 194 A. 2d at 103 ). The General Assembly apparently thought that a contrary result would indeed be preferable and it can be assumed that the passage of the Act of 1967, Chap. 488 was in response to this Court’s suggestion in the Price case. In any event, § 5A provides: ³⁶¹ “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 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.” In Fuld (apparently not cited to Judge Maguire by either counsel in the hearing before him), we indicated that the allowance of a counsel fee by the lower court in that case was insufficient and we increased it.

We 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 that case. In our opinion, this is 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. There 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. Admittedly, the issue is a sensitive one when the petition for the allowance of counsel fees and court costs is addressed to a judge in the lower court other than the judge passing upon the petition for additional child support, but, bearing in mind the distinction already mentioned, we are of the opinion that the required determination can be made without undue embarrassment.

We ³⁶² are further of the opinion that although we do not find that Judge Turnbull’s order of October 7, 1968, was clearly in error, there was “substantial justification” for Emma to file the petition for the increase (she prevailed on this petition) and to take an appeal to this Court from that order. We shall, therefore, reverse Judge Maguire’s order of July 5, 1969, and remand this aspect of the consolidated appeal to the lower court to make a proper allowance for counsel fees for legal services rendered in the proceedings before Judge Turnbull, before this Court and also in the proceedings, hereinafter mentioned, before Judge Proctor. In making the allowance the lower court will, in regular course, take further testimony in regard to the services rendered, their reasonable value and the usual economic considerations arising from the needs of Emma and Richard’s ability to pay. 3. (Appeal No. 361) Counsel for Emma having learned at the hearing before Judge Maguire that Richard had received another increase in salary of $1,800 a year, effective November 1, 1968, and that federal employees in his classification of employment were scheduled for another salary increase of approximately $2,000, effective July 1, 1969, Emma filed a new Petition for Increase in Child Support on June 18, 1969.

After an answer was filed by Richard, this new petition was heard by Judge Proctor on September 25, 1969. At the time of this hearing, the three sons were 18, 16 and 13 years of age, respectively, and John, the eldest son, had been accepted at St. Andrews Presbyterian College in Laurinburg, North Carolina. St. Andrews has an annual tuition cost of $3,000.00. Substantial testimony was taken at this hearing.

Inasmuch as it is conceded in Emma’s brief that “Judge Proctor’s comprehensive written opinion can be accepted as the most complete statement of the financial facts of the Rhoderick family,” we will quote substantial portions of that opinion, as representing the facts adduced at that hearing. Judge Proctor stated in his written opinion: ³⁶³ “FINDINGS OF FACT” “The controlling factors, so far as I am concerned, are what changes, if any, have occurred in the