Boucher v. Shomber

• Decision Date: 09 December 1985
• Citation: 65 Md.App. 470,501 A.2d 97
• Parties: John H. BOUCHER v. Susan F. Boucher SHOMBER. 326 Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 470

65 Md.App. 470

501 A.2d 97

John H. BOUCHER v. Susan F. Boucher SHOMBER.

326 Sept. Term 1985.

Court of Special Appeals of Maryland.

Dec. 9, 1985.

William L. Haugh, Jr., Frederick, for appellant.

W. Milnor Roberts, Frederick, for appellee.

Argued before MOYLAN, GARRITY and ROSALYN B. BELL, JJ.

GARRITY, Judge.

Our examination shall focus upon the jurisdictional authority of a chancellor and the related procedure to be utilized in providing general relief in the form of a money judgment towards a child's educational expenses that had not been specifically determined in a prior divorce decree.

Facts

On June 25, 1955, John Boucher married Susan Boucher in LaCrosse, Wisconsin. The couple have four daughters, Holly (born December 7, 1958), Susan (born June 30, 1960), Jennifer (born March 13, 1963), and Carrie (born November 7, 1966).

On December 5, 1972, the couple entered into a voluntary separation agreement. On July 25, 1973, the Bouchers were divorced a vinculo matrimonii in the Circuit Court for Frederick County. The divorce decree incorporated the separation agreement. The decree stated, in pertinent part:

The Husband shall have transferred to him full and complete control of the scholarship fund of HOLLY KATHERINE BOUCHER as a consideration of costs and expenses of the post-secondary education of all of the aforesaid children, limited to a college of their choice located in the State of residence at the time said child terminates the secondary education. The aforesaid assumption of payment for said post-secondary education, as to each such child, shall commence on the completion of a public high school at which time the Husband's obligation for support, as to each child shall terminate.

In June of 1977, Holly, the eldest daughter, graduated from high school in Frederick, Maryland. Mrs. Boucher (now Shomber) thereupon moved to Florida with her four daughters. In the winter of 1978, Holly attended a local community college in Florida. In June of 1978, she began her studies at the University of Florida. The following May, the parties returned to the Frederick County Circuit Court, pursuant to Mrs. Boucher's petition for contempt and modification. On May 4, 1979, the Circuit Court for Frederick County entered an Order of Court based on consent of the parties. The order provided, in pertinent part:

B. That the Respondent is hereby ordered to pay unto the Complainant the sum of Two Thousand Six Hundred Nineteen Dollars ($2,619.00) which represents the college expenses to date of Holly Katherine Boucher, and continual expenses until completion of undergraduate studies; ...

C. That the Respondent is henceforth responsible for college expenses incurred by Holly Katherine Boucher, Jennifer Ray Boucher and Carrie Beth Boucher, conditional to the extent that the above listed children attend a four-year consecutive course of studies at a State-supported school immediately upon termination of their secondary education, and further, that the Complainant will cooperate in all regards in securing financial aid, grants, scholarships, and other available resources to help alleviate any college expenses incurred by the above listed children, provided, that the children and Complainant are not subject to personal obligation for repayment of same.

Holly continued her education at the University of Florida, and she graduated with honors from that institution in the spring of 1983. Evidently, however, her father had paid little or nothing toward this education. Therefore, on May 26, 1983, Mrs. (Boucher) Shomber filed against her former husband another petition for contempt in the Circuit Court for Frederick County. Mr. Boucher answered the complaint and cross-petitioned to modify the 1979 decree.

On December 16, 1983, the chancellor held a lengthy hearing pursuant to the petitions. At that hearing, Mr. Boucher successfully raised the issue of a one-year period of limitations as to his liability to pay his daughter's college expenses. Pursuant to a petition for rehearing submitted by Mrs. Shomber, however, the chancellor determined on March 5, 1984, that, as the payments were analogous to child support, the three-year period of limitations under FL § 10-102 was applicable. In an effort to provide Mr. Boucher with an opportunity to present evidence of additional payments, the chancellor continued the matter until December 7, 1984. Up to this point in the proceedings, we note that the equity court had not issued a decree. On December 27, 1984, the court awarded a money judgment in the amount of $16,084.83. While not making a finding as to whether Mr. Boucher was in contempt of court, the court did detail the amounts Mr. Boucher owed his former wife. ¹ Mr. Boucher has appealed the December 27 judgment to this court and raises several issues for our review, which we rephrase as follows:

First, he asks whether the trial court could render a judgment without finding Mr. Boucher in contempt.

Second, he asks whether, in fact, the court did hold Mr. Boucher in contempt, since it could not do so for a failure to pay an indefinite sum (i.e., the "reasonable college expenses" of Holly).

The third and fourth issues are whether Holly fulfilled her duties that arguably triggered his payment obligations.

Fifth, Mr. Boucher contends that the chancellor abused his discretion by dismissing Mr. Boucher's cross-petition for modification.

Sixth, Mr. Boucher reiterates his limitations argument based on the equitable doctrine of laches.

Finally, he contends that his daughter's registration for financial aid terminated his liability to pay her college expenses.

Jurisdiction and Procedure

The first two of the issues raised by Mr. Boucher concern the nature of the equity court's action. At the outset, the appellant claims that the chancellor's order was ambiguous. He points to the fact that the judgment neither granted nor dismissed the petition for contempt. On the other hand, the appellant notes that the following colloquy took place at the December 16, 1983, hearing between the chancellor and counsel for appellee:

THE COURT: [T]here's no doubt in my mind that this is a contempt proceeding. It's been titled so, it's relief asked, for a finding of contempt, an amended petition for contempt, and--

MR. ROBERTS: Your Honor, as I said, I think the law cases said in the past that the titling doesn't bind us--the clear--

THE COURT: I agree with that.

MR. ROBERTS: Okay.

THE COURT: There's no question about that; but all the relief has to do with contempt too.

* * *

MR. ROBERTS: --But I'm suggesting there's additional relief requested, ... the money judgment and attorney's fees and whatever that's in addition, and this Court has the authority to enforce its decrees by money judgments. That's what we requested.

THE COURT: Only in contempt proceedings, that's the point.

* * *

THE COURT: I'm going to find Mr. Boucher in contempt of court. I'm going to suspend the imposition of sentence by entering a money judgment against him....

There is, however, no reason for Mr. Boucher's confusion. A finding of fact or conclusion of law, unless embodied in an order or decree, or any other form of decision approved by the court, and entered on the docket, is not a part of a judgment. Md.Rule 2-601. See Reddick v. State, 213 Md. 18, 31, 130 A.2d 762 (1957). cert. den. 355 U.S. 832, 78 S.Ct. 50, 2 L.Ed.2d 44 (1957); see also Kelley v. Davis, 233 Md. 494, 497, 197 A.2d 230 (1963). Such a view is nothing new in Maryland. In Alleghany Corporation v. Aldebaran Corporation, 173 Md. 472, 196 A. 418 (1937), the Court of Appeals declared: "[A]n opinion, however positive, is not in any sense a final act, it is not the subject of appeal, and it may always be changed before final decree. The reasons assigned for a decree are no part of the decree itself." 173 Md. at 478-79, 196 A. 418, quoting from Miller, Equity Procedure § 260. Therefore, it would appear from the final judgment passed in this matter that the chancellor failed to find the appellant in contempt.

Thus, we must determine precisely what action the equity court was taking. As the appellant correctly notes, he could not have been found in contempt for failure to pay an indefinite sum. The seminal case on an equity court's proceedings in the enforcement of a divorce decree is Kemp v. Kemp, 287 Md. 165, 411 A.2d 1028 (1980). In that case, the court's decree incorporated the separation agreement of the parties. One provision of the agreement declared that "the Husband further agrees to pay reasonable medical and dental expenses for said minor children...." Mrs. Kemp sought reimbursement for her payment of their son's medical expenses following his psychiatric treatment. The Court, relying on its prior decision in Gromer v. Davis, 260 Md. 471, 272 A.2d 621 (1971), held that an equity court did have jurisdiction to set an award pursuant to its prior decree. 287 Md. 173-74, 411 A.2d 1028.

Because of the similarity between the reasonable medical expenses in Kemp and the "continual expenses" for Holly in the 1979 decree herein, Kemp speaks to that case as well as the matter sub judice:

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. See Lewis v. Lewis, 256 Md. 45, 55, (1969); Langville v. Langville, 191 Md. 103, 110 (1948); Foote v. Foote, 190 Md. 171, 177 (1948); Dickey v. Dickey, 154 Md. 675, 680-81 (1928). This does not mean, however, that the equity court may invariably utilize the full panoply of the enforcement powers granted to it by Md. Rule 685 (now Md.Rule 2-648).... [To enforce a provision requiring payment of certain reasonable expenses,] the equity court would first have to hold such further proceedings as it deems appropriate to determine the amount owing under this provision, then enter an order to pay a specified...