Bradford v. Futrell

• Decision Date: 13 June 1961
• Docket Number: No. 246,246
• Citation: 225 Md. 512,171 A.2d 493
• Parties: Jesse P. BRADFORD v. Mickey N. Bradford FUTRELL.
• Court: Maryland Court of Appeals

Page 512

225 Md. 512

171 A.2d 493

Jesse P. BRADFORD v. Mickey N. Bradford FUTRELL.

No. 246.

Court of Appeals of Maryland.

June 13, 1961.

George T. Burroughs, Upper Marlboro (on Motion to Dismiss), Isidore Ginsberg, Baltimore (on Merits) (Ginsberg & Ginsberg and Hyman Ginsberg, Baltimore, and George T. Burroughs, Upper Marlboro, on the brief), for appellant.

Robert F. Hochwarth, Baltimore (on Motion to Dismiss), Robert F. Hochwarth, Baltimore, and Hal C. B. Clagett, Upper Marlboro (on Merits) (Sasscer, Clagett & Powers, Upper Marlboro, and Eli Frank, Jr., and Frank, Bernstein, Gutberlet & Conaway, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., on Motion to Dismiss.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY, and SYBERT, JJ., on Merits.

SYBERT, Judge.

The appellant, Jesse P. Bradford, appeals from a money decree entered against him by the Circuit Court for Prince George's County, sitting in Equity, in favor of his former wife, Mickey N. Futrell, who has remarried. The decree was passed on August 10, 1960 in a proceeding to ascertain the amount of unpaid installments owed by the appellant under an October, 1944, decree of the same court which granted the appellee a divorce from the appellant, awarded her the custody of their four minor children and required the appellant to pay to the appellee the sum of $20.00 per week for the support of the children. After a full hearing, the chancellor found the appellant to be in arrears in the amount of $12,872.32 as of August 1, 1960 in the weekly support payments and entered a decree in that amount in favor of the appellee, with interest from August 1, 1960.

Although the eldest child had attained his majority, the decree required continued payments of $20.00 per week for the three younger children because of increased living costs. The appellant does not object to that portion of the decree. What he does contest is the size of the decretal award to his ex-wife. He complains that, in determining the arrearage figure, the chancellor should have allowed him full credit for all money and items of personal property given by him to the children themselves, even though he referred to them as gifts; that he should have been allowed a credit because the eldest child left the home of the appellee, resided with him for a short period and then entered the armed forces of the United States; and that he should have been given credit for a portion of the allotment which the appellee received because of her present husband's military service, since the Bradford children were claimed as dependents of their stepfather. The appellant also maintains that the chancellor erred in permitting appellee to make claim for payments due back to the divorce decree of 1944, and that, in any event, her whole claim for arrearages is barred by both laches and limitations.

After the parties were divorced in 1944 the appellant remarried. Shortly thereafter the appellee moved to Florida with the children because, she said, her ex-husband's unreasonable actions toward the children were harmful to them and kept her household in frequent turmoil. It is conceded that appellant made all required payments for the support of the children up to November 4, 1945. Thereafter his remittances ceased. Appellee, who had obtained work upon arrival in Florida, gave a graphic description of her struggle to provide food, clothing and shelter for herself and her four young boys and of the privations they endured, particularly after Bradford's payments ceased. On September 13, 1946, she married her present husband, an Air Force sergeant, who aided in maintenance of her children. Mrs. Futrell told of frequent efforts to have Bradford make the support payments and of his replies that 'he wasn't going to pay it, he didn't have to pay it'. She stated that on one occasion she attempted to have an attorney collect the arrearages, but that this effort failed when the family moved from Florida to another State upon transfer of her husband. She said that frequent transfers of her husband to points distant from Maryland made it impossible to enforce payments from Bradford.

Mrs. Futrell stated that her eldest son, Phillip, had always been his father's favorite. She testified that since Bradford wouldn't send money to her, she 'put the boy up to calling his father at Christmases, birthdays, graduation, and other special occasions', because she didn't like to see her sons do without the things that most children had. Bradford sent a number of checks, payable to Phillip, in response to the boy's calls, which were endorsed by the boy and cashed by his mother. The money, she said, sometimes went for clothes and sometimes for toys for all the children.

In addition, Bradford of his own accord sent various checks to the children with letters referring to them as birthday or holiday gifts, and on a few occasions also sent clothing, some of which Mrs. Futrell said was unsuited to the children. On one occasion, when Phillip asked him for a motor scooter, he purchased an automobile at a cost of $1195, had it titled in Phillip's name and delivered it to the boy. Mrs. Futrell said this was a surprise gift, unwelcomed by her, at least. She said she taught her son to operate it and thereafter never drove it herself. She said that after a time it 'broke down' and her ex-husband towed it back to Maryland and never returned it. On one of his more or less annual visits to the children in Florida, Bradford bought a television set for the children, for which he paid $186. Mrs. Futrell testified that after November 4, 1945, she received no money directly from her former husband.

Bradford maintains that all payments and credits claimed by him were made with the consent and acquiescence of Mrs. Futrell and that therefore he should have been allowed for all of them. He claims that Mrs. Futrell requested him to purchase the television set to keep the children off the street while she stated that a television dealer for whom one of the boys worked persuaded him to buy it.

At the hearing, the chancellor ruled that the appellant was not entitled to credit for checks which he had clearly designated as gifts, but that he would be allowed for checks (even though payable to the children) which were not described as gifts and the proceeds of which were received by Mrs. Futrell. The appellant received credit for clothing which he sent to the boys, as necessities, but not for the automobile and television set, on the ground that they were gifts and not necessities.

At the hearing Bradford claimed that a total allowance of $5,717.01 was due him for money and property advanced. The chancellor found that the items advanced clearly as gifts amounted in value to $2,149.33, and deducted that figure from Bradford's claimed credits, leaving an allowed credit of $3,567.68. The latter sum was thereupon deducted from $16,440, the total of payments accrued from the date of the divorce decree, resulting in the $12,872.32 decreed to be due and unpaid as of August 1, 1960.

Therefore, the questions raised on this appeal are: Whether appellant should have been given credit for the gifts, amounting to $2,149.33; whether he should have been given a credit because the son, Phillip, left his mother's home before attaining his majority; whether he should have been given credit for part of Mrs. Futrell's military allotment, since her present husband claimed her children as dependents; and whether Mrs. Futrell's claim for arrearages, or any part thereof, is barred by laches or limitations.

We proceed now to consideration of the question whether a father, subject to a decree requiring periodic payments to his former wife for support of their children, is entitled to allowance for gifts made by him directly to the children. This question does not appear to have been presented to this Court before, and neither party to this proceeding has cited any reported decision of a Maryland court on the subject, nor have we found any. The problem is discussed at length in 27B, C.J.S. Divorce § 321(1)(2), and in an annotation in 2 A.L.R.2d 831, where numerous decisions from other jurisdictions are cited. At page 832 of the A.L.R. annotation appears the following appraisal of the cases by the annotator 'The subject matter of the present annotation is such as to prevent the formulation of general rules, since the factual situation appears to be controlling in most cases. But it may be stated generally that the courts in most jurisdictions recognize, although not expressly stating it as a general principle, that a father should be allowed credit for expenditures made while the child is in his custody or for other voluntary expenditures in the child's behalf where such payments, although at variance with the requirement that the payments be made to the mother, constitute a substantial compliance with the spirit and intent of the decree. The question of what constitutes substantial compliance depends, of course, upon the circumstances of each individual case; and it is to be noted that in many cases where the courts have assumed jurisdiction to determine the merits of the father's claim, credit for voluntary payments have been denied.' (Emphasis supplied.)

There is considerable conflict among the cases as to whether any credit can be given for expenditures made by the father on behalf of his children other than as provided by the decree. One line of decisions is to the effect that since the obligation of the father has been fixed by the decree, it cannot be satisfied except by strict compliance with its terms, and the proper remedy for the father, if any remedy is called for, is a motion to modify the decree. A father may not himself determine the method of payment or to whom payment should be made. See, for example, Cotton v. Wright, 1939, 193 La. 520, 190 So. 665; Campbell v. Campbell, 1928, 223 Ky. 836, 4 S.W.2d...