Ruppert v. Fish

WILNER, Judge. The parties here were once married and are now divorced. Their current dispute centers on their child’s education— which private school he is to attend, who is to make that decision, and who is to pay for that schooling. The Circuit Court for Baltimore County, interpreting a separation agreement between the parties in light of two subsequent court orders, decided that (1) the father had to pay for the child’s private schooling, (2) for the 1988-90 school years, the child was to attend McDonogh School, and (3) thereafter, the father could determine which private school the child would attend.

Neither party is entirely happy with those decisions, and so both have appealed. We shall ⁶⁶⁸ affirm part of the judgment and remand another part for further proceedings. In July, 1983, prior to their divorce, the parties prepared for themselves a separation agreement that, for whatever reason, they did not actually sign until some 15 months later, in October, 1984. The agreement gave the wife, Cindy, custody of the child, Christan, subject to liberal visitation privileges on the part of the father, John.

Paragraph 3 provided, in relevant part, that John would pay $40 a week in child support directly to Cindy and that: “Also the husband agrees to pay for the child[’]s schooling for which right the Husband will have the right to choose the child[’]s education, until the Husband dies, the child obtains eighteen (18) years of age, dies, marries, or becomes self-supporting, whichever event first occurs.” The divorce decree was entered by the Circuit Court for Howard County on January 30, 1985. It provided, in relevant part, that: “The defendant [Cindy] shall have custody of the minor child, with the plaintiff husband having liberal visitation rights pursuant to the terms of their separation agreement, and the plaintiff shall pay the defendant child support in the amount of $40 per week pursuant to the terms of their separation agreement, however subject to the further order of this court.” When the agreement was prepared in 1983, Christan was two-and-a-half years old and was enrolled in a day care program that had been selected by John; he was still enrolled in a pre-school program when the agreement was ultimately signed in October, 1984 and when the divorce decree was entered in January, 1985. In the Fall of 1986, Christan began attending the pre-first grade at McDonogh School, a private school located in Baltimore County; that school was selected by John, although it was agreeable to Cindy. John paid the tuition.

At about the same time, Cindy filed a complaint in the Circuit Court for Baltimore County to increase the child support and modify the visitation schedule. The end result of that proceeding was a ⁶⁶⁹ consent order entered on September 8, 1987, which (1) increased John’s child support from $40 to $75 a week, (2) modified the visitation schedule somewhat, (3) provided that “the father shall pay for the private school tuition, with the mother paying for all school clothes,” and (4) further provided that “any and all previously issued Orders, unless specifically modified, shall remain in full force and effect.” Christan continued at McDonogh for the 1987-88 school year; John paid the tuition. At some point prior to March, 1988, John, faced with a declining income from his occupation as a real estate appraiser, informed Cindy that he would not be able to continue Christan at McDonogh for the 1988-89 year unless she agreed to pay half the tuition. He proposed as an alternative that Christan go to a nearby Catholic school, Holy Family.

According to John, Cindy objected to Holy Family but suggested instead that Chris-tan be enrolled at St. Charles Borromeo, another Catholic school. He claimed that he thereupon registered Christan at St. Charles School for the 1988-89 school year, but that Cindy then objected to that school as well. Cindy did indeed object to the switching of schools. In March, 1988, she filed a petition to enforce the provision of the September, 1987 consent order obligating John to pay for Christan’s private schooling.

She contended that Chris-tan was happy at McDonogh and was doing well there, that the school was convenient to where they lived, and that John could afford the tuition. She asserted that the first installment of the tuition for the 1988-89 school year was due March 1, 1988, and that John had refused to pay it. She asked that John be ordered to pay the tuition and that the consent order be modified to convert the tuition into child support payable directly to her. John initially responded to this petition with a motion to dismiss, contending that (1) to the extent it represented an action for specific performance, it was inappropriate because Cindy had an adequate remedy at law and (2) to the extent that it sought a change in the child support, Cindy had failed to allege a change in circumstances. ⁶⁷⁰ The motion to dismiss was heard by Judge Levitz on December 1, 1988.

Judge Levitz regarded the separation agreement as essentially irrelevant with respect to the issue then before him, as it had not been incorporated into the divorce decree or the consent order. Without intending to preclude John from either pursuing some action under the agreement or filing a petition to modify the consent order, Judge Levitz noted that Cindy’s petition was to enforce the consent order and therefore determined that that order was all that was before him. The order required John to pay the private school tuition; Christan was then at McDonogh School; that was the tuition that had to be paid. These pronouncements were made from the bench.

On December 8, 1988, Judge Hennegan, presumably acting as chambers judge, signed an order implementing Judge Levitz’s decision. The order directed John to reimburse Cindy for the $3,900 she had previously paid toward the 1988-89 tuition and to pay the balance of that tuition ($2,075) by January 1, 1989. In a timely filed motion to alter or amend that order, John complained that the proceeding before Judge Levitz was on a motion to dismiss for failure to state a claim, not on the merits, and that the order requiring him to pay the tuition was therefore improper. He had not had the opportunity to answer the petition.

What occurred immediately thereafter is a bit confusing. Judge Levitz apparently found merit in the argument presented in the motion to alter or amend, for, on December 13, 1988, he granted the motion and gave John ten days in which to answer Cindy’s petition. In seeming contradiction to that ruling, however, Judge Levitz, on January 9, 1989, filed a written “Motions Ruling” granting Cindy’s motion to enforce the consent order and denying John’s motion to dismiss. At some point, John complied with Judge Hennegan’s order and paid the full amount of the 1988-89 tuition ($5,975).

Pursuant to the ruling on the motion to alter or amend, however, John also filed an answer to Cindy’s petition to enforce and a two-count counterclaim. In that counterclaim, he (1) contended that by thwarting his effort ⁶⁷¹ to enroll Christan at St. Charles School, Cindy had breached the provision of the separation agreement giving him the right to choose Christan’s school, for which he sought damages, and (2) sought a modification of the consent order to make clear that his obligation to pay the tuition would apply only if he were allowed to select the school or, alternatively, to terminate his obligation for tuition. With respect to the latter, he averred that the 1987 consent order was “never meant to modify the father’s right to choose the private school of the child as a condition precedent of the obligation to pay for said school.” The merits of this controversy, encompassing both Cindy’s petition (apparently still alive despite the January 9 order) and John’s counterclaims, came before Judge Hinkel on August 29, 1989. By that time, of course, the question of where Christan would go to school in the 1989-90 school year had also come into issue.

After an evidentiary hearing, Judge Hinkel determined that (1) there was no inconsistency between the clause in ¶ 3 of the separation agreement giving John the right to select Christan’s school and the subsequent decree and consent order; (2) that part of the agreement was not incorporated or merged in that decree or order and thus stood as an independent, enforceable right; (3) although John’s financial circumstances had deteriorated, they had not declined to the point of constituting a material change in circumstances — i.e., he could still afford the McDonogh tuition; (4) Christan’s best interest would not be served by removing him from McDonogh for the 1989-90 school year, which was just about to commence, and that John would therefore have to pay the tuition at McDonogh for that year; but (5) thereafter, by virtue of the agreement, John was free to withdraw Christan from McDonogh if he so chose. In an order filed October 13, 1989, the court declared that the separation agreement was lawful and enforceable and that John therefore was obliged to pay private school tuition “at a school of his choosing”; that there was no substantial change in his circumstances; that he be enjoined from changing schools until the end of ⁶⁷² the 1989-90 school year; that he pay the McDonogh tuition for 1989-90; and that his breach of contract action be dismissed. As we indicated, both parties have appealed. Cindy complains that the court erred in allowing John to change schools after the 1989-90 school year based solely upon the separation agreement and without regard to the best interest of Christan.

Although that allowance is not expressly articulated in the written order, it is certainly implicit in the order, given the conclusions announced by Judge Hinkel from the bench. John is undisturbed by that ruling but complains that the court erred in precluding him from exercising that right for the 1988-89 and 1989-90 school years and forcing him to keep Christan at McDonogh and pay the full tuition for those years. We find qualified merit in Cindy’s complaint but none in John’s. Two basic issues are presented in the appeal and cross-appeal: (1) whether John’s contractual right to pick Christan’s school has been lost because the agreement was incorporated