Holston v. Holston

• Citation: 58 Md.App. 308,473 A.2d 459
• Decision Date: 06 April 1984
• Docket Number: No. 552,552
• Parties: , 16 Ed. Law Rep. 1284 Eileen A. HOLSTON v. Alvan M. HOLSTON, Jr. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 308

58 Md.App. 308

473 A.2d 459, 16 Ed. Law Rep. 1284

Eileen A. HOLSTON v. Alvan M. HOLSTON, Jr.

No. 552 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 6, 1984.

T. Bruce Hanley, Baltimore, for appellant.

Charles E. Rosolio, Baltimore, for appellee.

Argued before LISS, BISHOP and BLOOM, JJ.

BLOOM, Judge.

The Circuit Court for Baltimore County granted appellant, Eileen A. Holston, a divorce a vinculo matrimonii from appellee, Alvan M. Holston, Jr., on February 14, 1983. In addition to the divorce, which was granted on the basis of appellee's adultery, the decree awarded appellant custody of the parties' five minor children, alimony for three years at a rate of $150 per week, and child support of $100 per week per child. The decree also provided for the sale of the marital home with the proceeds to be divided equally between the parties, granted a monetary award of $35,000 to appellant, and ordered appellee to pay $3,100 toward appellant's counsel fees and expenses.

When the parties were married in August 1965, appellee was entering his junior year of dental school. Appellant was employed as a secretary at the University of Maryland Medical School where she earned $5,000 per year. She was employed full time until her husband's graduation in June 1967. During that time, appellant's earnings constituted approximately 60 to 70 percent of the parties' living expenses. The remaining expenses were paid for with the earnings from appellee's summer employment.

After graduating from dental school, appellee served as a dentist in the United States Army. Upon his discharge from military service, he began his present career as an instructor at the University of Maryland Dental School. At the time of the divorce, appellee was an assistant professor and director of a graduate program of advanced general dentistry. In addition, he held numerous consulting positions and practiced dentistry at the school through a faculty program called FDSP Associates, P.A.

The dissolution of the parties' marriage was precipitated by appellee's departure from the marital home on November 23, 1980, after several months of steadily deteriorating marital relationship. Attempts at reconciliation failed, and appellant eventually filed a bill of complaint seeking a divorce. Although satisfied with the court's granting of the divorce, appellant brought this appeal because she was not satisfied with other portions of the decree. Specifically, appellant contends:

I. The trial court erred in denying appellant's request that appellee pay for and/or contribute toward the private and/or parochial education of the five minor children of the parties.

II. The trial court erred in the granting of a monetary award to appellant for the court failed to determine what items of property were marital property; the court's valuation of marital property was unsupported by the evidence and the court did not apply the nine statutory factors in granting the marital award.

III. The trial court erred in failing to grant appellant alimony for an indefinite period as provided in article 16, § 1(c)(1)(ii), of the Annotated Code of Maryland.

IV. The trial court abused its discretion in granting insufficient counsel fees and costs to appellant in view of the evidence presented.

I. Education Expenses

The parties' marriage produced five children. The oldest, Elizabeth Ann (Betsy), attended public schools for the first and second grades and Cathedral School in the third grade. When her parents learned that Betsy was a gifted child, they enrolled her in St. Paul's School. The parties later became dissatisfied with St. Paul's and enrolled Betsy in the Roland Park Country School, which she was attending at the time of the divorce.

The second child, Alvan (Trippy), was initially enrolled at Cathedral School and then followed Betsy to St. Paul's School. As a result of his parents' dissatisfaction with St. Paul's, Trippy was enrolled in the public school system where he participated in the gifted and talented program. Similarly, the third child, Timothy, attended St. Paul's in first and second grades and then followed his brother into the public school system.

At the time of the divorce proceedings, the two younger daughters, Katherine and Lauren, were attending the Church of the Good Shepherd School, a church-sponsored pre-school program.

Appellant contends that the lower court erred in refusing to require appellee to contribute toward the children's tuition expenses for private and parochial education. At trial, appellant testified that she and appellee had planned for each child to enroll in private school after completion of the sixth grade. Although Trippy remained in public school beyond the seventh grade, this was partly due to his enrollment in the gifted and talented program at Dumbarton Middle School. Both parties testified at trial, however, that they had at least contemplated enrolling Trippy at Loyola High School for the upcoming school year.

In arguing that appellee should pay for the children's private education expenses, appellant relies upon our decision in O'Connor v. O'Connor, 22 Md.App. 519, 323 A.2d 632 (1974). In that case, the chancellor granted the ex-wife's petition seeking increased alimony and child support. The ex-husband attacked the increase in child support "largely upon the fact that some of the support monies will be used by the mother to finance the education of the remaining minor children in 'parochial schools.' " Id. at 522, 323 A.2d 632. After noting that "the law in a child support case is always what is in the best interest of the child, i.e., the needs of the child in view of the child's station in life, tempered only by the financial ability of the parents to provide the requisites of the child," id. (citations omitted), we examined the particular facts of the case and held that the chancellor was not clearly erroneous in increasing the child support.

The obvious financial ability of the father to pay for his childrens' [sic] private schooling, the pattern of education which had been set for the children prior to the divorce, the station in society occupied by the parties and the educational needs of the children create a set of circumstances, when considered in their totality, which clearly justify, in our opinion, the increased child support payments ordered by the chancellor.

Id. at 526, 323 A.2d 632.

Appellant claims that the above quoted portion of O'Connor established "factual criteria to be analyzed in determining whether a noncustodial spouse should be financially responsible for the private education of his children." Appellant then asserts that "[t]he record below fully satisfies each of the factors set forth in O'Connor...."

Appellant's reading of O'Connor, however, is a bit too broad. O'Connor did not hold that a chancellor must rigidly weigh those particular factual criteria in deciding whether to order the noncustodial parent to pay for the child's private education. Rather, O'Connor held that, based on the specific set of circumstances presented by that case, the chancellor was not clearly erroneous in increasing the support payments for the minor children. Indeed, we were careful in stating that we were not creating a general set of criteria but were only ruling upon the specific facts before us.

While we do not endeavor at this time to formulate any general rule or principle regarding the responsibility of a father to provide his child or children with an education in the private secondary school sector ... we believe that in the factual posture of this case, the chancellor below was not clearly erroneous in increasing the support payments for the minor children, knowing that a part of those funds would be expended to finance the education of the parties' minor children in parochial schools.

Id. at 525, 323 A.2d 632.

O'Connor, therefore, presented certain factors which are permissible considerations in ruling on the issue of child support. While O'Connor did not attempt to restrict future chancellors to the use of those factors, certain criteria are so immaterial that a chancellor's reliance upon them will constitute reversible error. In the instant case, the chancellor relied upon just such a factor. In refusing to order appellee to pay for the children's tuition expenses, the chancellor stated

I cannot understand how the custodial parent can insist that the children go to private schools, because this was once discussed and approved by both parents, and at the same time allow the attitude that presently exists and the hostility that presently exists and the isolation of a father from any decisions affecting the children to continue.

(emphasis added).

The amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent. The proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that conclusion, the chancellor must balance the needs of the child against the parent's financial ability to meet those needs.

Appellee's reliance upon Hardisty v. Hardisty, 183 Conn. 253, 439 A.2d 307 (1981), is misplaced. The chancellor here was not faced with a father's principled objection to private secondary schooling as was the chancellor in Hardisty. Furthermore, the child in Hardisty was enrolled for the first time in private school after the dissolution of the marriage and without the father's consultation. In our case, the chancellor was not faced with such a situation nor did he rely upon any similar considerations. A chancellor's concern "with the present estrangement of the children from their father," while certainly understandable, is not a proper consideration in determining the amount of child support to be paid by the father. The chancellor, in considering an inappropriate factor in setting the amount of child...