Corry v. O'Neill

BLOOM, Judge.

The 9 January 1979 divorce decree that terminated the marriage of appellant, Dana S. O’Neill (now Corry), and appellee, Robert J. O’Neill, granted appellant custody of the parties’ two minor children and, with modifications, incorporated an agreement between the parties dated 29 July 1977, which, inter alia, contained provisions for appellee’s contributions toward the support and future education of the children. Those provisions engendered disputes that resulted in bouts of post-divorce litigation arid culminated in this appeal, in which appellant presents the following questions:

1. Did the lower court err in its determination that child support of $350 per month pursuant to the Order of 28 October 1988 terminated when appellee’s son attained the age of 18?

2. Did the lower court err in its computation of arrearages in child support?

3. Did the lower court fail to exercise discretion or abuse discretion in not permitting the appellant to present additional evidence of appellee’s financial circumstance?

4. Was the lower court clearly erroneous in concluding that there was no evidence pertaining to appellee’s ability to contribute to his son’s college expenses?

We perceive neither error of law nor abuse of discretion in the trial court’s decision and order.

FACTS

The two children born of the parties’ marriage are Heath, born 20 May 1968, and Brandon, born 7 October 1973. The agreement between the parties, which was incorporated in the 9 January 1979 divorce decree issued by the Circuit Court for Howard County, provided that appellee would pay $100 per month in child support for each child until each child reached the age of twenty-one. It also provided that the parties would each pay for the college expenses of their children “in accordance with their financial means at the time.”

Pursuant to a stipulation, the divorce decree ordered appellee to pay a greater sum as child support than the settlement agreement provided for; it ordered him to pay appellant $250 per month for the two children. The parties having stipulated that appellee had an accumulated arrearage of $2,500 in child support and $746 in other expenses, the divorce decree also required that, commencing 1 January 1979, appellee would pay appellant $100 per month toward satisfaction of the arrearage in addition to the $250 per month as child support until 1 October 1982, after which the entire sum of $350 per month would be considered child support.

In 1987 appellant, through the Office of the State’s Attorney for Howard County, filed a petition to cite appellee for contempt, alleging that he had failed to pay child support. Appellee filed a motion to modify child support on the ground that Heath had become eighteen years of age in May 1986. To resolve the pending actions regarding child support, the parties filed a Stipulation and Agreement that the court incorporated in an order in October 1988. In the Stipulation and Agreement, appellee acknowledged an arrearage of $15,000 in child support pursuant to the divorce decree. Although appellant maintained that appellee owed her $21,245 in child support arrearages as of 1 June 1988, she agreed to accept the compromise amount of $15,000 if appellee paid that sum on or before 30 September 1989. Appellee’s child support obligation to pay $350 per month continued.

In October 1992, appellant filed a Complaint to Enforce Decree and to Find Defendant in Contempt, alleging that appellee had failed to make child support payments in accordance with the October 1988 order, and she also sought reimbursement for more than $25,000 in college expenses that she had paid on behalf of their son Brandon. Appellant contended that the child support payments of $350 per month were to continue until each child reached the age of twenty-one.

On or about 30 April 1993, appellant filed a request for production of certain documents,, income tax returns, business records, bank records, and other documents reflecting appellee’s financial status. Appellee failed to respond, so on 30 June 1993, just twenty days prior to the scheduled hearing before the master, appellant filed a motion to compel discovery. For some unexplained reason (certainly not attributable to appellant), there was a delay in presenting that motion to a judge; consequently, it was not until 9 August 1993, after a hearing on the merits had already been conducted before a master, that the motion was granted. Nevertheless, upon receipt of a copy of the motion to compel discovery, appellee’s counsel faxed to appellant’s counsel, less than one week before the scheduled hearing on the merits, copies of the following documents:

1. Appellee’s income tax returns for 1990 and 1991. (Appellant asserted that there were no schedules attached to those returns.)

2. Appellee’s 1099 statement for 1992 (he had not yet filed his income tax return for that year).

3. Financial statements of appellee’s business for 1990, 1991, and 1992.

4. Titles to appellee’s automobiles and deeds to his real property.

5. Bank statements from February 1992 through January 1993.

The hearing before Master Schwessinger was held on 20 July 1993. With respect to her claim for reimbursement of college expenses, appellant testified about her income and financial ability, but failed to present any testimony or evidence regarding appellee’s financial ability. She later filed a Motion for Leave to Reopen Testimony, but the master did not rule on this motion. The master issued a Report and Recommendations on 20 December 1993, and on 5 January 1994 the court ruled that appellant’s motion to reopen the hearing to permit additional testimony was moot. Appellant filed exceptions to the master’s report, and a hearing thereon was conducted by Judge Raymond J. Kane, Jr. Judge Kane eventually sustained in part and overruled in part the master’s report and recommendations.

A. CHILD SUPPORT DURATION

Appellant contends that the trial court erred by finding that appellee’s obligation to pay child support in the amount of $350 per month pursuant to the October 1988 order terminated when the youngest child reached the age of eighteen. At oral argument, appellee conceded that, because the divorce decree incorporated the terms of the settlement agreement, he was required to pay child support until each child reached the age of twenty-one. Kemp v. Kemp, 287 Md. 165, 175, 411 A.2d 1028 (1980) (“Once the court decides to incorporate an agreement between the parties as part of its decretal relief ... the agreement is included within the order and is enforceable as a valid provision of the decree.”) (citations omitted). He contends, however, that after both children attained the age of eighteen he was only required to pay the $100 per month per child agreed upon in the settlement agreement, and not the $350 per month required by the divorce decree.

In Maryland, prior to 1973, the age of majority was twenty-one years. By the enactment of Chapter 651 of the Laws of 1973, however, the General Assembly of Maryland lowered the age of majority to eighteen. That statute, now codified in Md.Code (1957, 1994 Repl.Vol.), Art. 1, § 24, provides:

(a) Except as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all purposes whatsoever and has the same legal capacity, rights, powers, privileges, duties, liabilities, and responsibilities as prior to July 1, 1973, persons had at twenty-one years of age, and the age of majority is hereby declared to be eighteen years.

(b)(1) The terms “adult”, “of full age”, or “of legal age” refer to persons who have attained the age of eighteen years.

(2) The term “minor”, as it pertains to legal age and capacity, refers to persons who have not attained the age of eighteen years.

Support agreements or decrees dated prior to 1 July 1973 were not affected by that statute. Luhmann v. Luhmann, 37 Md.App. 185, 189, 376 A.2d 1141 (1977). Specifically, we have held that references in such agreements or decrees for child support, dated prior to 1 July 1973, to “child,” “children,” or to a child of the parties by name, without further elaboration, and in the absence of a clear expression of contrary intent, will be taken as meaning support for a child of the parties until that child attains the age of twenty-one. See Miller v. Miller, 70 Md.App. 1, 18-19, 519 A.2d 1298 (1987); Kramer v. Kramer, 26 Md.App. 620, 631, 339 A.2d 328 (1975). See also Monticello v. Monticello, 271 Md. 168, 173-74, 315 A.2d 520 cert. denied, 419 U.S. 880, 95 S.Ct. 145, 42 L.Ed.2d 121 (1974) (regarding words such as “infant child,” “minor child,” “during infancy,” “during minority,” “until attaining majority,” or “until age of majority” as used in agreements or decrees for support dated prior to 1 July 1973).

A court can require a parent to support a healthy child only until the child reaches majority. Quarles v. Quarles, 62 Md.App. 394, 403, 489 A.2d 559 (1985). The parents can, however, contractually obligate themselves to support a child for a longer period, and a court can enforce such an obligation if the parties consent to have the agreement incorporated or merged into the judgment of divorce. Md.Code (1974, 1991 Repl.Vol.), § 8-105(a)(2) of the Family Law Article; Stancill v. Stancill, 41 Md.App. 335, 339, 397 A.2d 218, aff'd, 286 Md. 530, 408 A.2d 1030 (1979).

In the case sub judice, the settlement agreement that the court incorporated by reference into the divorce decree provided that appellee would

pay unto the Wife for the support and maintenance of each of the two minor children of the parties ... the sum of One Hundred Dollars ($100.00) per month per child, or a total of Two Hundred Dollars ($200.00) per month for all two of said children. Said payments with respect to each child shall cease and terminate upon the first to occur of any of the following events as to any such child: (a) arrival at age 21; (b) marriage; (c) becoming self-supporting; and (d) death of said child.

Despite the parties’ agreement, which calls for appellee to pay $100 per month for the support of each of the two children, the divorce decree ordered appellee to pay $250 per month, later increased to $350 per month, as child support. Unquestionably, the court had the authority to modify the parties’ agreement “in respect to [the] infants as to the court may seem proper, looking always to the best interests of such infants.” Md.Code (1957, 1973 Repl.Vol.) Art. 16, § 28. Md. Code (1984, 1991 Repl.Vol.), § 8-103(a) of the Family Law Article, the successor to Art. 16, § 28, expresses the power to modify a settlement agreement in a slightly different manner, without any material alteration of substance: “The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of a minor child of the spouses, if the modification would be in the best interests of the child.” There has never been any dispute, therefore, as to the power of the circuit court to modify the agreement as to the amount of child support. Indeed, appellant agreed to such a modification. The issue in this case is whether the modification of the parties’ agreement as to the amount of child support continues in effect beyond the child’s minority. Appellee contends that the judicial modification of the parties’ agreement, increasing appellee’s child support obligation, ceased to be in effect when Brandon attained the age of eighteen, and that thereafter appellee’s obligation for child support reverted to the contractually fixed amount of $100 per month.

We believe that that contention, as novel as it may seem at first glance, is correct. We find that the statutory references to “infants” and “the best interests of such infants” in the statute in effect at the time of the settlement agreement and the divorce decree and to the “minor child” and the “best interests of the child” in the current statute to be significant. They constitute an acknowledgment that the court’s jurisdiction over the support of a child and the protection of the child’s best interests extends only during the child’s minority. The court may, of course, enforce an agreement to support a child after the child attains his or her majority and, by incorporating the agreement into a decree, enforce the obligation either as a contractual one or as one imposed by a judgment. See Luhmann, 37 Md.App. at 189-90, 376 A.2d 1141. But in the absence of an agreement, a parent could not be forced to support a healthy adult child.

Although not directly on point, we regard the opinion of the Court of Appeals in Brodsky v. Brodsky, 319 Md. 92, 570 A.2d 1235 (1990), as instructive. The Court held therein that, after the daughter of the parties attained her majority, the circuit court had no authority to modify the support provisions of the divorce decree, which had incorporated the parties’ separation agreement containing provisions for support for their daughter’s college education. Quoting the language of § 8-103(a) of the Family Law Article concerning the authority of the court to modify an agreement with respect to the support of a minor child of the parties if that would be in the best interests of the child, the Court of Appeals pointed out that the daughter was no longer a minor when the request for modification was made. Id. at 100, 570 A.2d 1235. For the same reason that a court has no authority to modify a decree incorporating an agreement for support after the child ceases to be a minor, a court having exercised its authority to modify an agreement for support of a minor child has no authority to extend that modification beyond the child’s minority.

The circuit court appears to have recognized that limitation on its authority when the parties were before it in October 1988, when appellant, complaining that appellee was in arrears in payment of child support (she claimed that the arrearages amounted to $21,245.06; he admitted that he owed $15,000; and she agreed to accept that sum on condition that it be paid by 30 September 1989), sought to have appellee cited and punished for contempt. By agreement of the parties, appellee was ordered, inter alia, to continue to pay to appellant “the sum of Three Hundred and Fifty Dollars ($350.00) per month as and for the support and maintenance of Brandon R. O’Neill, the sole remaining minor child of the parties.”

When the current round of litigation, which commenced with another petition to cite appellee for contempt, reached the hearing stage before a master, the master concluded that the October 1988 order to pay appellee $350 per month for the support of Brandon, “the sole remaining minor child of the parties,” terminated when Brandon ceased to be a “minor child,” that is, on 7 October 1991, his eighteenth birthday. Judge Kane agreed with the master, and, for the reasons stated above, we agree with both of them.

B. COMPUTATION OF ARREARAGES

Appellant contends that the master incorrectly determined the number of months of child support arrearages that appellee owed appellant arising from the 1988 Stipulation and Order. The Master determined that appellee owed thirty-six months of back support payments accrued between November 1988 and October 1991 at a rate of $350 per month equalling $12,600. Appellant argues that appellee owed thirty-nine months of back support payments from August 1988 through October 1991 for a total of $13,650. At the hearing, Mr. Muller, from the Support Division of the Howard County Department of Social Services, testified that appellee owed thirty-nine months of support payments, but Mr. Muller could not explain how he arrived at that figure. Consequently, the Master calculated the arrearage from the month after the Order was entered, November 1988, through October 1991, a period of thirty-six months.

The Stipulation and Order issued in late October 1988 was a compromise between the parties that dismissed appellant’s Petition to Cite for Contempt and appellee’s Petition to Modify Child Support.¹ In the Stipulation, appellee agreed “to continue to pay unto the Plaintiff, Dana O’Neill, the sum of Three Hundred Fifty Dollars ($350.00), as ordered aforesaid.” Neither the Stipulation nor the Order indicates that the child support payments provided for therein would be retroactive. Appellee argues that, because the Stipulation and Order were a compromise between the parties, payments were to begin in November 1988, the first month after the Order was issued. Appellant maintains that payments were to begin in August 1988 because the Stipulation acknowledges that appellee had an arrearage of $15,000 as of 5 July 1988. She suggests that in the Stipulation the parties calculated the arrearages owed up through July 1988, and the 1988 Order and Stipulation were to be retroactive to August 1988.

We are not persuaded that the conclusion of the master and the holding of the court, that the payments were not retroactive but were to begin upon the issuance of the order, were clearly erroneous; they are a reasonable interpretation of the evidence and testimony presented. Therefore we affirm the ruling of the circuit court that appellee owes arrearages for thirty-six months beginning on November 1988 through October 1991.

C. COLLEGE EXPENSES

Regarding college expenses, the settlement agreement between the parties provided:

The Husband and Wife agree that each will pay, in accordance with their financial means at that time, for the attendance of the children at a four-year college, university or technical or vocational school, to include registration fees and tuition, necessary books, room and board and laboratory fees.

1. Additional Evidence

Appellant contends that the circuit court erred in dismissing, as moot, her motion to reopen the case. That motion, however, was directed to the master and sought a hearing by the master before he submitted his report and recommendations. By the time the motion was put into the court file and reached Judge Kane, the master had already submitted his report and recommendations. Since the motion sought an opportunity to present more evidence to the master, it had unquestionably been rendered moot by the master’s report. As Judge Kane pointed out, it would have been counterproductive to remand the case to the master to receive evidence that could just as well be heard by Judge Kane if he deemed it appropriate to accept more evidence. As it turned out, he chose to decide the case on the evidence presented to the master, concluding that appellant had shown no compelling reason to permit her to present evidence that she should have presented to the master.

That brings us to appellant’s principal contention, that the trial court abused its discretion or failed to exercise discretion by not allowing appellant to present additional evidence regarding appellee’s financial ability to pay for their son’s college expenses. Specifically, appellant protests the court’s denial of her request to take additional evidence, which was included in her Exceptions to the Master’s Report and Recommendations. “Whether a case shall be reopened for the taking of additional testimony rests within the sound discretion of the trial judge; and from his grant or refusal to grant the request to reopen, ordinarily no appeal will lie.” Willey v. Glass, 242 Md. 156, 163, 218 A.2d 212 (1966) (citations omitted).

Appellee was present at the master’s hearing and available to be called as a witness, but appellant declined to call him. At the hearing, appellant had in her possession appellee’s 1990 and 1991 income tax returns, as well as other financial documents reflecting appellee’s financial status, but declined to submit them as evidence. Although she had received these documents only a few days before the hearing, appellant did not complain that she had had inadequate time to review them. Nor did she complain that the furnished documents were lacking in any material respect or inadequately reflected appellee’s financial status.

In her exceptions to the master’s report, appellant mentioned for the first time that the 1990 and 1991 income tax returns furnished by appellant did not have “the appropriate schedules attached.” She did not indicate what schedules she was referring to or why their absence was significant. She asserted that appellant had not provided his 1992 tax return because he had received an extension and had not yet filed a return for that year. She complained that he should have filed one by that time. During the hearing on exceptions, appellant’s counsel’s primary complaint about the tax returns was that the copies furnished her were unsigned. At the hearing on her exceptions, she complained, for the first time, that she had received the requested documents six and four days prior to the hearing. She did not contend that the furnished material was too complicated to comprehend within such a short period; her complaint was that there was not enough time to find out if the unsigned tax returns “in fact were his tax returns” and the unsigned 1099 statement “was in fact what it was.”

From the argument presented at the exceptions hearing, it is apparent that appellant had opted not to call appellee as an adverse witness or to present any evidence as to his financial status based on the documents furnished by him because she believed “that the burden is on the Defendant to present the evidence of his financial state, financial situation.” Obviously, the issue of appellee’s financial status was critical to appellant’s claim, since appellant’s contractual obligation to contribute to his children’s college expenses was conditioned on his financial means at the time such expenses were to be incurred. We have stated that in breach of contract cases, such as this one, in which appellant is attempting to enforce a provisions of the settlement agreement, the burden of proof is on the plaintiff or on the party who asserts the affirmative of an issue, and such a burden never shifts. Kruvant v. Dickerman, 18 Md.App. 1, 3, 305 A.2d 227 (1973); see also Noffsinger v. Noffsinger, 95 Md.App. 265, 281, 620 A.2d 415 (1993). Appellee argued, the master concluded, and Judge Kane agreed that it was appellant’s obligation to show that appellee had breached his agreement to contribute to his son’s college expenses, and that meant that appellant was required to prove that appellee had the financial means to pay at least some of those expenses. Instead of meeting that burden, she chose only to show that she did not have the means to pay Brandon’s college expenses so she borrowed money from her father to send her son to college.

We are not called upon to decide whether the master, in the first instance, and the chancellor, ultimately, erred with respect to the allocation of the burden of proof or burden of going forward with the evidence. That issue was not raised below and, more important, was not raised on appeal. In her exceptions to the master’s report and recommendations, appellant did not assert that the master was wrong in concluding that she had the burden of presenting evidence as to appellee’s financial means. The failure to set forth such a contention in the exceptions constituted a waiver of that issue. Md.Rule 2-541(h)(2). Consequently, the issue was not before Judge Kane, so he could hardly have committed an error of law with respect thereto. Even if the issue had been raised below, it is certainly not before us. In her appeal to this Court, appellant has made no contention that Judge Kane erred in allocating to her the burden of proof or burden of going forward with evidence to show that appellee had means—income or property—with which he could have paid all, or at least some, of their son’s college expenses. Instead, she asserted that she did present a prima facie case that appellee could have paid Brandon’s college expenses and, in fact, paid tuition for one semester while agreeing to pay (and thereby acknowledging an ability to pay) “the entire bill.” Her argument in this Court was that, by presenting a prima facie case, she had shifted the burden to appellee to prove that he could not afford to pay. We shall address that contention, together with a related one, anon.

The status of the case before Judge Kane with respect to appellant’s breach of contract case, therefore, was as follows:

(a) Appellant had received, prior to the hearing before the master, documentary evidence reflecting appellee’s income and assets (real estate, motor vehicles, and bank accounts). She had not contended that the material was received too late to be useful at the trial; and her complaints that the tax returns were unsigned and did not contain certain unspecified schedules did not establish that the documents furnished to her could not have been used to present at least a prima facie case that appellee had the means to contribute to Brandon’s college expenses.

(b) Having an opportunity to present evidence in support of her claim, appellant chose not to present any evidence as to appellee’s financial status because she believed (mistakenly) that it was up to appellee to present evidence proving that he could not pay for their son’s college education. Appellant was not contending that the master was wrong as a matter of law in ruling that she had the burden of proof and in dismissing her claim because she had presented no evidence on the issue of appellee’s ability to contribute to the boy’s college expenses. Instead, what she was seeking was another evidentiary hearing, before either the master or the chancellor, to enable her to correct her tactical error by calling appellee as an adverse witness.

Judge Kane did not give appellant what appellee’s counsel aptly termed “another bite at the apple.” He decided the case on the basis of the record made before the master, thereby implicitly denying appellant’s request of an evidentiary hearing. That decision was one entirely within his discretion. Maryland Rule 2-541(i) provides that

exceptions shall be decided on the evidence presented to the master unless: (1) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (2) the court determines that the additional evidence should be considered.

We are not persuaded that denial of appellant’s request to reopen the case and provide another evidentiary hearing was an abuse of discretion. Appellant’s tactical decision in declining to offer evidence that was available to her because she mistakenly believed that appellee had the burden of proving that he was not in breach of his contractual obligation is certainly not a compelling reason to reopen the case to let her present evidence that she had declined to present to the master.

2. Appellee’s Financial Situation

Appellant claims that she presented before the master sufficient evidence to make out a prima facie case that appellee had the financial means to pay their son’s college expenses. Therefore, she contends, Judge Kane erred in concluding that “the record before the Master is devoid of evidence pertaining to [appellee’s] ability to contribute to the children’s college expenses.”

Appellant’s argument is based upon her testimony before the master. In response to a question by her attorney, appellant said that appellee agreed to and did pay Brandon’s tuition for his first semester at Penn State, but she added that appellant insisted that he had to take back from Brandon the Mazda RX7 sports car that he had earlier given his son and to sell the car in order to pay the tuition for that semester. Brandon turned the car back to his father to sell so he could go to school. Appellant testified that appellee told her that “he was going to be covering the whole bill and he needed the car back.” It is appellant’s contention that that snippet of evidence gave rise to an inference that appellant aeknowledged his financial ability “to cover the whole bill.” Therefore, she argues, she made out a prima facie case that shifted to appellee the burden of going forward with the evidence.

It is perfectly clear from appellant’s own testimony, however, that the conversation with appellee to which she referred concerned payment only of the bill for the son’s first semester. Instead of making out a prima facie case of appellee’s financial ability to pay Brandon’s college expenses, her testimony tends to reflect a contrary state of affairs—whether true or not, appellee’s position was that he would have to take back and sell the boy’s car in order to pay one semester’s tuition. That certainly does not amount to evidence that appellee thereafter had the means to pay Brandon’s tuition for any succeeding semester, much less that he had the means to pay for the boy’s room and board, books, or other expenses at Penn State.

Reviewing the testimony in context, Judge Kane correctly determined that the record of the proceedings before the master was, indeed, devoid of evidence pertaining to appellee’s ability to contribute to his son’s college education.

JUDGMENT AFFIRMED.

COSTS TO BE PAID BY APPELLANT.

1 . The parties' oldest son, Heath, turned 18 in May 1986. Therefore, appellee petitioned to decrease the amount of support he was required to pay.