Stern v. Horner

Moore, J., delivered the opinion of the Court. Divorced in August 1971 by a Nevada decree which incorporated the provisions of an agreement providing for the maintenance and support of three minor children, the appellant-father sued in equity for the reduction and/or elimination of the maintenance and support payments. At the time of suit, the father was a law student residing in Massachusetts and the children were in the custody of the mother at Ocean City, Maryland. Both parents had remarried.

The chancellor was persuaded that our decision in Pumphrey v. Pumphrey, 11 Md. App. 287 , 273 A. 2d 637 (1971) altogether precluded consideration of a reduction of support payments for minor children under a written agreement and he dismissed the petition. On appeal, this disposition is assailed by the father who claims error in the dismissal of his petition and contends also that the chancellor improperly refused (a) to permit the mother, called as a witness for the father, to testify as to her income and property and that of the three children; and (b) to permit the father to testify as to any change in his circumstances subsequent to the execution of the agreement between the parties on February 8, 1971. If no error is found in these respects, the father alternatively contends that Code, Art. 16 (1957, 1973 Repl. Vol.), § 28 upon which the court rested its decision based upon its interpretation of our opinion in Pumphrey, supra, is facially unconstitutional as ⁴²³ violative of the equal protection clause of the Fourteenth Amendment.

It is our determination that Pumphrey does not compel nor does it justify a conclusion that under no circumstances may a court of equity decrease the amount of maintenance and support of minor children from the amount set forth in a written agreement between the former husband and wife. Accordingly, we reverse and remand for further proceedings. I The operative facts, received by stipulation of the parties in open court and by the limited testimony of the appellant-father, are that the parties were married in Baltimore on August 26, 1961 and they had three children, a girl and two boys. At the time of hearing on October 9, 1973 the girl was seven and the two boys four and three, respectively.

The parties entered into a separation and property settlement agreement in Maryland on February 8, 1971 and the Nevada decree, entered on August 4, 1971, “confirmed, ratified and approved” it and incorporated its terms. Under the agreement the father undertook to pay $100 per month per child through age 21, terminable by death, marriage or military service; to pay all reasonable and necessary medical, dental and hospitalization expenses as well as the costs of medicines, orthopedic and orthodontic treatment, eyeglasses and corrective shoes; and to contribute to the college educations of the children commensurate with his financial ability and to maintain a policy of insurance on his life for each child in the amount of $15,000. Appellant testified that at the time of the execution of the agreement in February 1971 he was earning $27,000 per annum as manager of manufacturing in a business enterprise owned by his then father-in-law. At the time of the hearing in October 1973 he was a third year student at Boston College Law School in Boston, Massachusetts.

Upon objection by counsel for the mother, he was not permitted to testify as to changed circumstances and impaired financial ⁴²⁴ condition. The court also refused to permit the mother, when called by counsel for the father, to testify as to her property and income and that of the three children. (As authority for both rulings, the court essentially relied upon the Pumphrey case.) The appellant was, however, permitted to make extensive proffers of testimony, including that, as a result of entering law school, he had income of only $3,000 from a profit sharing trust derived from his former employment, that his employment in the summer of 1972 resulted in earnings of less than $500, that he had received payments under the G.I. Bill and had made national defense student loans; and that if his attendance at law school, where he was in the top 10% of his class and a member of the Law Review, was allowed to continue he had prospective employment with a law firm in Boston at a substantial salary. With respect to the mother’s situation, appellant proffered that she would testify that she and the children had securities and other assets aggregating, on a combined basis, over $400,000 with a combined income in excess of $11,000 annually.

In a memorandum opinion filed with the Order dismissing the petition the chancellor wrote in pertinent part: “In this case the father seeks to modify the terms of an agreement incorporated into a decree of this court because his economic position has changed for the worse, and the minor children have assets and income available for the support of the children. The father proffered clear evidence to this effect, but this court ruled that it is not admissible because it is inconceivable that a reduction or elimination of support payments due from a father for his children could be in the best interests of such children. The Court’s ruling was based on Pumphrey v. Pumphrey, 11 Md. App. 287 . The Court believes this case to be controlling.” (Emphasis added.) ⁴²⁵ II Parenthood is a status which survives divorce and is terminable only by death or adoption.

The interest of the State in the preservation of the relationship between parent and child and in the protection of the young by courts of equity in Maryland is reflected in several legislative enactments by the General Assembly, in addition to Art. 16, § 28, which are here directly relevant. First, the General Assembly has ordained that the father and mother are jointly and severally charged with the support, care, nurture, welfare and education of a minor child. Code (1957, 1970 Repl. Vol.) Art. 72A, § 1.

This section, originally enacted in 1929, 1 now provides that this joint and several obligation extends to children under eighteen years of age. The statute orders equality between the parents with respect to their “powers and duties” and also provides that neither parent has any superior right of custody. 2 Secondly, the General Assembly has conferred upon courts of equity in Maryland original jurisdiction in “all cases relating to custody, guardianship, maintenance and support of legitimate and illegitimate children,” and invested them with statutory authority to impose obligations for the support and maintenance of minors. Code (1957, 1970 Repl. Vol.) Art. 16, § 66.

This statute was originally enacted in 1920 as Ch. 573 of the Laws of that year. It contemplates changes in orders or decrees with respect to the support and maintenance of minors. Thus, it specifically provides (§ 66 (a)) that the Court may from time to time “annul, vary or modify its decree or order in relation to such child or children. . . .” (Emphasis added.) The Court of Appeals has repeatedly and consistently recognized that ⁴²⁶ prior to the original enactment of Art. 16, § 66 equity had long had jurisdiction quite apart from divorce proceedings to award the custody of minors and to enter appropriate orders for their support and that the law’s provisions are largely declaratory. Price v. Price, 232 Md. 379 , 194 A. 2d 99 (1963); Coleman v. Coleman, 228 Md. 610 , 180 A. 2d 875 (1962); Barnard v. Godfrey, 157 Md. 264 , 145 A. 614 (1929).

The decision in Barnard v. Godfrey, supra, Digges, J. writing for the Court, came shortly before the 1931 enactment of Art. 16, § 28, involved in this case. A petition for reduction of child support was filed by a divorced husband under § 80 of Art. 16 which has since become § 66. The parties had, prior to the grant of the divorce, entered into a written agreement under the terms of which custody of the son and daughter was divided — the mother having the daughter and the father having the son. The father was to pay $100 per month for the daughter’s support.

Later, a supplemental agreement was entered into whereby the children were given to the mother and the father agreed to pay $325 per month. In his petition he sought a reduction from $325 to $100 per month. The chancellor in his decree ordered payment of $200 per month until the children should attain 21 years. Giving implicit recognition of the authority of the chancellor to reduce the support and maintenance of the children from the agreed $325, the Court of Appeals found the reduced sum of $200 “reasonable and proper in relation to the father’s income of at least $12,000 per year.” Earlier in the opinion Judge Digges characterized Art. 16, § 80 as declaratory of the inherent power of courts of equity over minors, a power which should be exercised “with the paramount purpose in view of securing the welfare and promoting the best interest of the children.” Again, as far back as 1841, the General Assembly provided ¡that in matrimonial causes wherein a decree of divorce was granted, and where the care and custody of children formed part of the relief prayed, the court may direct who shall have guardianship or custody and who shall be charged with their support and maintenance.

Code (1957, ⁴²⁷ 1973 Repl. Vol.) Art. 16, § 25. 3 With respect to changes in such decrees or orders, the identical language of Art. 16, § 66 is employed, namely, that the court may at any time thereafter “annul, vary or modify such order in relation to the children.” Under this statutory provision the power of courts of equity in Maryland to reduce the amount of support payable on behalf of minor children was unsuccessfully challenged and the courts’ power to reduce support money for minor children explicitly affirmed in Slocum v. Slocum, 158 Md. 107 , 148 A. 226 (1930). There a divorced father petitioned under former Code, Art. 16, § 39, now § 25, for the reduction of the monthly sum of $30 payable by him under a divorce decree for the support of one child. This was one of the terms of a contract under seal entered into after the parties were at issue.

In September of 1927 the husband paid the wife $7,000 in cash and granted her an unencumbered fee simple title to their residence in lieu of alimony. In May 1928, however, he was adjudicated a bankrupt and at the time of the hearing in December 1928 his income was less than $100 a month. The chancellor reduced the child support payment from $30 monthly to $15. On appeal it was contended that the “chancellor had not the power to modify the decree by reducing the amount upon which the parties had previously agreed” and, if such power existed, the circumstances did not justify a reduction.

Both contentions were rejected. The court’s power was held to reside in then Art. 16, § 39. With reference to the exercise of the power of the court to vary the amount allotted to the wife for the support of the minor, the guideline followed was that the power should not be exercised except when clearly indicated by a change in the circumstances, needs and pecuniary condition of the parties. ⁴²⁸ The Court of Appeals then granted the requested reduction stating (p. Ill): “It is evident that the faculties of the husband have materially been diminished since the date of the decree by his financial reverses, and that he was entitled to a reduction, since