Strawhorn v. Strawhorn

Mason, J., delivered the opinion of the Court. On this appeal we are asked to decide, among other things, whether the chancellor erred in awarding exclusive use and possession of the family home of the parties to appellee for her benefit and for the benefit of her minor child of a former marriage. John Martin Strawhorn, appellant, and . Janet B. Strawhorn, appellee, were married in July of 1977 and separated in June of 1979.

During this marriage no children were born or adopted. The parties lived together with appellee’s son and appellant’s stepson in the family home which they acquired in July of 1977. At the present time appellee receives $275.00 a month in child support payments from the father of the minor child. In August of 1979 appellee filed suit for an absolute divorce from appellant on the ground of adultery.

She also sought pendente lite and permanent alimony, counsel fees, and the use and possession of the family home. Appellant, on the other hand, filed a cross bill for an absolute divorce on the ground of adultery. A hearing was held before a domestic relations master on the pendente lite issues. The master recommended that Appellee be awarded use and possession of the family home, and that she be denied alimony and counsel fees.

The pendente lite recommendations of the master were adopted by the chancellor in an order dated 7 ⁶⁵¹ January 1980. Subsequently, a hearing was held on the merits of the case and the chancellor in an order dated 17 July 1980 dismissed appellant’s cross-bill and awarded appellee, among other things, an absolute divorce and the use and possession of the family home for a period of three years. With respect to the use and possession award of the family home, appellant argues, in effect, that although he has no legal duty to support appellee’s son of a former marriage, the use and possession award nevertheless imposes such a duty. That "it is a harsh result which deprives a man of his property to permit another man’s child to remain in the house.” In response thereto appellee argues that the use and possession award only runs to the benefit of the spouse and is substantially the same as alimony inasmuch as it may not be continued if the spouse having use and possession of the family home remarries.

Appellee argues further that the use and possession award was a proper exercise of discretion by the chancellor and that "while it is true that only certain categories of spouses are eligible for use and possession orders, namely spouses with children (be they children of the marriage or not) it is the spouse and not the children to whom the order runs.” The authority upon which the chancellor issued the use and possession award of the family home to appellee is section 3-6A-06 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland which, in relevant part, provides: (a) The authority conferred by this section shall be exercised to permit the children of the family to continue to live in the environment and community which is familiar to them and to permit the continued occupancy of the family home and possession and use of family use personal property by a spouse with custody of a minor child who has a need to live in that home. ... In exercising its authority under this section, the court shall consider each of the following factors: ⁶⁵² (1) The best interests of any minor child; (Emphasis supplied). In Pitsenberger v. Pitsenberger, 287 Md. 20 (1980), the Court of Appeals lucidly delineated the purpose of section 3-6A-06 in the context of a pendente lite use and possession award: In enacting § 3-6A-06, the State’s provision of pendente lite use and possession awards is intended to give special attention to the needs of minor children to continue to live in a familiar environment for the temporary duration of the pendente lite period. The procedure provided for in § 3-6A-06 seeks to avoid uprooting the children from the home, school, social and community setting upon which they are dependent, especially during the period of parental separation.

During this period, due to the contentious behavior of the parents, the children have the greatest need for a stable environment to help them overcome the family instability. Id. at 31-32. Section 3-6A-06 is designed to ensure that minor children need not suffer up to the point when grounds for a divorce may be proven. Because the main purpose of § 3-6A-06 is protection of the children’s interests, the children must be permitted to reside in the family home regardless of the existence of probable grounds for a divorce.

Id. at 33. (Footnote omitted). We think the statute makes it clear that custody of a minor child and a need to live in the family home are necessary prerequisites that must be satisfied before a spouse can be awarded use and possession of the family home. Here appellee satisfied the custody of a minor child requirement, and there was ample evidence in the record for the ⁶⁵³ chancellor to find a need by appellee and her child to live in the family home.

This, however, does not end our inquiry. Another issue, as we perceive it, is whether the word child as it appears in section 3-6A-06 means any child or is its meaning restricted to a child of the parties. A similar issue in a different context was considered by the Court of Appeals in Brown v. Brown, 287 Md. 273 (1980). There the question was whether the lower court could imprison a stepfather under the court’s contempt power to enforce a contractual obligation incorporated in a divorce decree to support a stepchild.

Article III, section 38 of the Maryland Constitution provides: Imprisonment for debt. No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for the support of an illegitimate child or children, or for alimony, shall not constitute a debt within the meaning of this section. The stepfather argued, in essence, that he was not subject to incarceration under section 38, supra, for not supporting his stepdaughter because there was no legal duty, independent of his contractual obligations, to support her. In reversing the lower court which had adjudged the stepfather in contempt, the Court said: That the legal duty to support does not ordinarily encompass a stepchild is beyond doubt, and the authorities are legion to that effect. ...

And this is for good reason, for the foundation upon which the law imposes a duty of support upon parents does not similarly justify such a duty being placed upon stepparents. (Citations omitted). * * * [T]he obligation of the appellant here to support his stepchild is contractual, and consequently quite ⁶⁵⁴ different from a father’s noncontractual duty to support his natural or adopted child.... [H]is agreement to aid in the support of his stepdaughter created nothing more than a debt for which the constitution affords him immunity from incarceration when he failed to discharge his contractual obligation. In buttressing its interpretation of section 38 that the word "child” did not encompass stepchild, the Court observed: [I]t has long been established that the 'popular conception of the meaning of the words "child or children” [of specific individuals] is "immediate offspring.” Billingsley v. Bradley, 166 Md. 412, 419 , 171 A. 351, 354 (1934). See Ryan v. Herbert, 186 Md. 453, 461 , 47 A. 2d 360, 364 (1946); Webster’s Third New International Dictionary, 388 (2d unabr. ed. 1961).

Second, it has been stated that the word (child 'has two meanings in law: (1) in the law of . . . domestic relations, and as to descent and distribution, it is used strictly as the correlative of "parent,” and means a son or daughter. . .’ * * * Finally, when the legislature intends that the word 'child’ have other than its ordinary meaning, it generally defines explicitly the scope of the word as so used. See, e.g., Md. Code 1959, 1976 Repl. Vol. 1979 Cum. Supp.), Art. 27, § 35A (child abuse); Md. Code (1957, 1979 Repl.

Vol.), Art. 88A, § 45 (Aid to Families with Dependent Children). Id. at 284-285. See also 59 Am. Jur. 2d Parent and Child § 3 (1971) where it is stated: The word 'children’ does not ordinarily include stepchildren or grandchildren.

In a statute, it may include adopted children. But in a private instrument it is usually held not to include them unless a contrary intent appears, or unless a con ⁶⁵⁵ trary construction is required by statutory definition. (Footnotes omitted). In the same vein, see also Flores v. King, 13 Md. App. 270 (1971) where this Court was requested to construe the word child in the wrongful death statute. 1 There it was argued that since the stepdaughter was completely dependent upon the decedent she should be allowed to assert a claim for her stepfather’s death.

In rejecting this contention, we said: "We are urged to judicially interpret the noun 'child’ as used in the statute so as to include 'dependent stepchild.’ We decline to do so. Id. at 273-274 .... We think that had the legislature intended the word child to include stepchild it would have said so.” Id. at 275 . Although the construction of the word child by the Court of Appeals in Brown v. Brown, supra, and this Court in Flores v. King, supra, would appear to militate against holding that the word child in section 3-6A-06 includes stepchild, the cardinal rule in the construction of a statute is to effectuate the real and actual legislative intent.

Atlantic Gulf & Pacifíc Co. v. Dept. of Assessments and Taxation, 252 Md. 173, 177 (1964). The language of the statute is the primary source for determining this intent. State v. Fabritz, 276 Md. 416, 421 (1975), cert. denied, 425 U.S. 942 (1976). The legislative history of the instant statute (Chapter 794, Laws of Maryland 1978, 2304, 2309) discloses that the original language in section 3-6A-06(A)(l) read: "The best interests of any minor children of the parties.” The words "children of the