Hill v. Hill
Decision Date | 01 September 1988 |
Docket Number | No. 1530,1530 |
Citation | 79 Md.App. 708,558 A.2d 1231 |
Parties | Arthur Neil HILL, Jr. v. Judy Ann HILL. , |
Court | Court of Special Appeals of Maryland |
Jo Benson Fogel, Rockville, for appellee.
Argued before GARRITY, ALPERT and ROBERT M. BELL, JJ.
This is an appeal challenging the trial court's jurisdiction to extend a pendente lite order following a denial of divorce. The order embraced the custody and support of the parties' minor children and, allegedly, the use and possession of the family home. Appellant, Arthur Neil Hill, Jr., also questions the trial judge's decision not to recuse himself from the second divorce hearing. Specifically he asks:
1. Did the Circuit Court have jurisdiction over pendente lite orders for support and related matters after it had denied the Wife's Complaint for Divorce?
2. Did the Circuit Court err in not granting the Appellant's Motion to Recuse?
Arthur N. Hill and Judy Ann Hill, appellee, were married on October 7, 1972 in Prince George's County. Two children On December 7, 1987, Mr. Hill filed a Counter-Complaint for Absolute Divorce based on a two-year separation. Mrs. Hill answered the Counter-Complaint and filed her own Second Amended Complaint on March 7, 1988. A pre-trial conference was held on June 20, 1988. On July 1, 1988, Mr. Hill filed a Motion to Recuse in which he alleged that the court was biased against him and was not prepared to render a fair and impartial ruling on the case. The court conducted a hearing on Mr. Hill's Motion to Recuse, and, after the hearing, denied the motion.
Appellant maintains that the court lacked jurisdiction to extend the pendente lite orders of custody, support, and use and possession once it denied appellee's complaint for divorce on April 1, 1987. We glean from this argument that but for the improper continuation of the custody and support orders, there would have been no arrearage. As support for his position, appellant contends that the Family Law article of the Maryland Code as revised from former statutes, does not grant the court jurisdiction to decide these matters once a divorce is denied. We will first address the issue of the court's power to extend the pendente lite order for custody and support.
Under the early common law of this State courts had no power to make a custody and support determination until a divorce was decreed. See e.g. Murray v. Murray, 134 Md. 653, 107 A. 550 (1919). Then, in 1920, the Maryland General Assembly enacted legislation expressly giving the court jurisdiction to render a custody determination "whether a divorce is decreed or denied." 1920 Md. Laws 574. See Roth v. Roth, 143 Md. 142, 150, 122 A. 34 (1923); Hood v. Hood, 138 Md. 355, 363, 113 A. 895 (1921). This modification of the law was codified in the Md.Ann.Code at Article 16, § 39 (1924). See Melson v. Melson, 151 Md. 196, 206, 134 A. 136 (1926). In the same vein, in section 80 of the revised 1924 Code, a court of equity was given jurisdiction to decide custody and support of minors upon any "bill or petition filed by the father or mother ..." requesting that the court make that determination. See Barnard v. Godfrey, 157 Md. 264, 145 A. 614 (1929). In Barnard, supra the court noted that:
From this language it will be seen that courts of equity in this state have full power, and it is their duty, to determine Id., at 267, 145 A. 614. See also Stirn v. Stirn, 183 Md. 59, 64, 36 A.2d 695 (1944) (quoting Barnard, supra ). The Code has been revised many times since 1924, however, each revision always included a provision granting the court jurisdiction to decide who shall be awarded custody of minors and who shall be charged with their support whether a divorce is decreed or denied. 1
(5) custody or guardianship of a child;
* * *
* * *
(9) support of a child.
* * *
* * *
(1) direct who shall have the custody or guardianship of a child, pendente lite or permanently;
(2) determine who shall have visitation rights to a child;
(3) decide who shall be charged with the support of the child, pendente lite or permanently; or
(4) from time to time, set aside or modify its decree or order concerning the child.
Appellant urges this Court to hold that because the Code does not expressly state that the Court retains jurisdiction over custody and support "whether a divorce is decreed or denied" the legislature intentionally repealed the court's jurisdiction over these matters once a divorce is denied. Appellant's interpretation contemplates a substantive change in the law. According to the Report on House Bill 1, Family Law Article, issued on August 22, 1983 by the Commission to Revise the Annotated Code, the purpose of the Code revision was to modernize and clarify the language in the Code, and not to make substantive changes in the law.
The general rule of construction that courts apply to a bulk revision was stated in Welch v. Humphrey, 200 Md. 410, 417, 90 A.2d 686 (1952):
The language in Section 1-201 that states that an equity court has jurisdiction over the custody and support of a child, simplifies the earlier statutes which granted the court jurisdiction to decide custody and support "whether or not a divorce is decreed or denied." The phrase "whether or not ..." is superfluous. Filing for divorce is not a prerequisite to invoking the court's jurisdiction to award custody and support. Section 5-203(c)(1)...
To continue reading
Request your trial-
Ricketts v. Ricketts
...v. Crumlick, 164 Md. 381, 387-388,165 A. 189, 192 (1933); Barnard v. Godfrey, 157 Md. 264, 145 A. 614 (1929); Hill v. Hill, 79 Md.App. 708, 711-12, 558 A.2d 1231, 1233 (1989). prior to the amendment of the statute in 1929, the issue in this case would appear to have been decided. In Barnard......
- Morgan v. State
- Torkornoo v. Torkornoo
-
In re Estate of Parikh
...of one party over the other does not automatically mean that the judge is biased or prejudiced against the losing party." Hill v. Hill, 79 Md. App. 708, 716 (1989) (finding no evidence to support appellant's contention that adverse rulings and perceived bias warranted judge's recusal). "Fur......