Fairbanks v. McCarter, 125

• Citation: 622 A.2d 121,330 Md. 39
• Decision Date: 01 September 1992
• Docket Number: No. 125,125
• Parties: , 61 USLW 2659 Richard M. FAIRBANKS et ux. v. James F. McCARTER, Jr. ,
• Court: Court of Appeals of Maryland

Page 39

330 Md. 39

622 A.2d 121, 61 USLW 2659

Richard M. FAIRBANKS et ux. v. James F. McCARTER, Jr.

No. 125, Sept. Term, 1992.

Court of Appeals of Maryland.

March 31, 1993.

Brett W. Wilson, (Wilson & Collison, P.A., both on brief) both of Cambridge, for appellant.

George J. Goldsborough, Jr. (Goldsborough & Tolley, both on brief) both of Easton, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

MURPHY, Chief Judge.

This case focuses upon Maryland's grandparents' visitation statute, ch. 296 of the Acts of 1981, now codified as Maryland Code (1984, 1991 Repl.Vol.) § 9-102 of the Family Law Article. It provides:

"At any time after the termination of a marriage by divorce, annulment, or death, an equity court may:

(1) consider a petition for reasonable visitation by a grandparent of a natural or adopted child of the parties whose marriage has been terminated; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent."

The primary question before us is whether exceptional circumstances justifying grandparental visitation, apart from the best interests of the grandchild, must exist as a precondition to a visitation award.

I

Rose Mary Holden, nee Fairbanks, and James McCarter were divorced in 1988. Pursuant to the divorce decree and a consent order dated January 30, 1991, the couple shared joint legal custody of their two children, Daniel and Erin. The father served as the custodial parent. The mother retained the right to visit with the children on alternate weekends, for a two-week summer vacation, and on certain holidays.

The parties' agreement made no provision for grandparental visitation. The paternal grandparents saw the children as often as five times weekly when visiting at their son's home, and sometimes invited the children to the grandparents' beach house. The maternal grandparents, Rebecca and Richard Fairbanks, typically saw the children every other Sunday afternoon when their family and friends gathered for dinner. They also saw the children somewhat sporadically at local Little League baseball games. All of the grandparents offered the children a stable, comfortable, and affectionate environment.

Mr. and Mrs. Fairbanks filed a "Complaint for Visitation Rights" in the Circuit Court for Dorchester County, naming James McCarter as the sole defendant. They alleged that the father would not voluntarily expand the time that the children might spend with their maternal grandparents, and petitioned the court to award them enforceable visitation rights of their own. The father answered by contending that the Fairbankses enjoyed ample access to the children when they were with the mother. At the subsequent hearing, Rose Mary Holden testified that she did not wish to yield any of her own visitation time with her children.

The trial court (Warren, J.) denied the petition. In so doing, it distilled three principles from the statute and case law:

"[T]he first, and probably the most important to make note of, is that the ultimate test in any of these cases is what is in the best interest of the children.

"The second of these principles ... is that [when] you are talking about custody of children, custody awarded to grandparents as against a parent is only to be granted when there are exceptional circumstances.

"In Paterno ¹ the Court further notes that that may also be true with respect to grandparental visitation....

* * * * * *

"... [T]here is at least a [third] principle that absent other exceptional factors, the visitation or custody with the grandparents is in substitution of or in lieu of custody or visitation with the parent...."

The trial court found no evidence supporting "the exceptional measure" of formal grandparental visitation. It said that additional visitation orders, signifying a widening battle over Daniel and Erin's time, would be contrary to the children's best interests.

The grandparents appealed to the Court of Special Appeals, arguing that the circuit court erred by improperly raising and intertwining the questions of exceptional circumstances and derivative rights with the simple statutory command that the child's best interest only must govern visitation awards. We granted certiorari on our own motion prior to intermediate appellate review.

II

When, as here, we issue a writ of certiorari to review a case pending before the Court of Special Appeals, we will consider those issues that would have been cognizable before the intermediate appellate court. Maryland Rule 8- 131(b)(2). Furthermore, while we will ordinarily not decide any other issue not raised or decided below, the appellate court may, in its discretion, decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. Maryland Rule 8-131(a); Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507 (1991); Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184 (1990).

At the hearing before the circuit court, the question of whether the children's mother was a necessary party arose only obliquely, and did not lead to a ruling by the trial court. Counsel for James McCarter merely observed, without more, that "that petition [for grandparental visitation] ... should properly be directed to both parents." We agree. A person otherwise subject to service of process shall be joined in an action if, in the person's absence, complete relief cannot be accorded among those already parties, or disposition of the action may impair or impede the person's claimed interest relating to the subject of the action. Maryland Rule 2-211(a). The trial court shall order that the person be made a party if not joined as required. Id. See generally South Down Liquors v. Hayes, 323 Md. 4, 10-11, 590 A.2d 161 (1991); Mahan v. Mahan, 320 Md. 262, 271-273, 577 A.2d 70 (1990). The requirement that necessary parties be joined exists to assure that a person's rights are not adjudicated unless that person has his or her day in court, and to assure a determination of an entire controversy in a single proceeding without a multiplicity of litigation. Bender v. Sec., Dep't of Personnel, 290 Md. 345, 351, 430 A.2d 66 (1981).

The mother, Rose Mary Holden, was conspicuous by her absence among the litigants. Under the circumstances of this case, she clearly qualified as a necessary party whose joinder as a co-defendant was required under Rule 2-211. The respective claims of the grandparents and father relating to visitation were circumscribed, to some extent, by her own visitation rights as defined in the divorce decree and consent order. Moreover, Ms. Holden explicitly testified as a witness that she did not wish to lose any of her own visitation time with Daniel and Erin. Inasmuch as they were potentially subject to modification at the hearing demanded by the grandparents, the mother's visitation rights were at stake. These features of the dispute required joinder of the mother as a party both to ensure complete relief with a view to the interests of the other parties, and to protect her own interests.

III

As earlier noted, § 9-102 provides in pertinent part that "an equity court may ... consider a petition for reasonable visitation by a grandparent ...; and ... if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent." It is well settled that in construing a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988); Comptroller v. Fairchild Industries, 303 Md. 280, 284, 493 A.2d 341 (1985). The Court may also appropriately look at the larger context, including the legislative purpose, within which statutory language appears. Baltimore Cty. C.A.U.T. v. Baltimore Cty., 321 Md. 184, 204, 582 A.2d 510 (1990); Morris v. Prince George's County, 319 Md. 597, 604, 573 A.2d 1346 (1990).

Both the language and the purpose of the statute are clear. The legislature invested trial court judges sitting in equity with the power to consider and award reasonable grandparental visitation in furtherance of the child's best interest. The statute's use of the word "may," rather than "shall," signifies that the steps prescribed in § 9-102 are available, but not mandatory; such is the ordinary and natural import of the word. See Fleishman v. Kremer, 179 Md. 536, 541, 20 A.2d 169 (1941) ("may" bears its ordinary signification of permission, unless context shows it was meant to be imperative). The discretionary import of the statute is thus consonant with the common-law rule that grandparents have no inherent right to custody of their grandchildren. Burns v. Bines, 189 Md. 157, 164, 55 A.2d 487 (1947).

We observe in this regard that the 1981 grandparents' visitation statute represented the culmination of a four-year effort to enact legislation to afford visitation rights to grandparents. See Evans v. Evans, 302 Md. 334, 339-42, 488 A.2d 157 (1985). It tracked the language of House Bill 1205, introduced in the 1979 Session of the General Assembly (but not enacted), as to which its sponsor, then Delegate Pica, explained its content to the House Judiciary Committee:

"In HB 1205 grandparents are not automatically deemed a group to be considered in the awarding of visitation rights. They are, however, a category that may be considered for visitation rights. And once they are considered, they may be awarded the rights if it is in the best interest of the child.

* * * * * *

"The language puts no mandatory restrictions on a judge when he determines visitation rights. It only offers a category he may consider if the child would benefit from the visits."

(Emphasis in original.) As the 1979 House Bill and § 9-102, as enacted in 1981, were substantively identical, Delegate Pica's statement of the...