Kemp v. Kemp

• Decision Date: 22 February 1980
• Docket Number: No. 66,66
• Citation: 411 A.2d 1028,287 Md. 165
• Parties: Nancy C. KEMP v. Nicholas Bosley Merryman KEMP.
• Court: Maryland Court of Appeals

Page 165

287 Md. 165

411 A.2d 1028

Nancy C. KEMP v. Nicholas Bosley Merryman KEMP.

No. 66.

Court of Appeals of Maryland.

Feb. 22, 1980.

Donald F. Chiarello, Baltimore, for appellant.

Robert A. DiCicco, Towson, for appellee.

Argued before SMITH, DIGGES, ELDRIDGE, COLE and DAVIDSON, JJ.

DIGGES, Judge.

We granted certiorari in this proceeding to review the following questions which arise under an earlier divorce and child custody decree entered in this same equity action: (1) whether the Court of Special Appeals improperly substituted its view of the evidence in the trial court for that of the chancellor when it reversed his order suspending the father's initially decreed visitation privileges with his son? And (2) whether the equity court here lacked jurisdiction to enforce a provision of this same family dissolution decree regarding the payment of reasonable medical expenses of the parties' children? Because at oral argument in this Court, both parties agreed that there has been such a substantial passage of time, as well as a material change in circumstances, since testimony was presented with regard to the respondent visiting his son, a new hearing on that issue is now necessitated; accordingly, with only minimal discussion of this issue, we will direct the Court of Special Appeals to vacate that portion of the chancellor's decree and order a new hearing on the visitation question. Further, because the provision of the divorce and custody decree relating to the payment of medical expenses incorporated an agreement of the parties on this matter, we find that the equity court had jurisdiction to specifically enforce this decretal provision, and accordingly, will reverse the intermediate appellate court's decision that such an order was beyond the jurisdiction of the trial court.

Petitioner Nancy C. Kemp and respondent Nicholas B. M. Kemp separated, after eleven years of marriage, in October 1972, and were subsequently divorced a vinculo matrimonii on May 17, 1974. Custody of the parties' two minor children, Frances (now 17) and Nicholas, Jr. (now 12), was awarded to the petitioner, with a specific schedule of visitation of the daughter and son with the respondent set forth in the decree. The divorce and custody decree required Mr. Kemp to contribute toward the support of his children "the sum of Fifty Dollars ($50.00) per week per child and to pay such other sums for the education and general welfare of the children as provided for in an Agreement by and between the parties hereto dated May 17, 1974." In the separation agreement, which was approved by the court and incorporated into its decree "as if fully set forth herein," the respondent specifically agreed to pay, among other things, the "reasonable medical and dental expenses for said minor children." It is this latter provision, as well as the visitation privileges awarded to the father, which underlies this appeal.

Ever since the parties' domestic difficulties began in 1972, there has been a continual controversy between them over the respondent's visitation with his son. ¹ Legal proceedings were begun in the summer of 1975 by Mr. Kemp to enforce the 1974 decree and by Mrs. Kemp to modify the visitation schedule; this legal skirmish was settled prior to court disposition of the matter. However, the parties' disagreement again returned to the court by the institution of the present proceeding in April 1977. At that time, Mrs. Kemp terminated all associations between her son and her ex-husband, and petitioned the circuit court for a temporary suspension of his visitation rights. Mr. Kemp countered with a request of his own seeking to hold his ex-wife in contempt for violating the visitation provisions of the earlier decree. The father also discontinued support payments for his son, which, in turn caused the mother to file a second petition also praying for the issuance of a contempt citation against her ex-husband for his failure to provide this weekly payment. Mrs. Kemp further alleged as a basis for relief that her son had been under the medical care of a psychiatrist since December 30, 1972, and that this expense had not been paid as required by the decree.

A hearing was held on these petitions and the chancellor (Haile, J.), finding that the continued visitation between Mr. Kemp and his son would not be in the child's best interest, ordered that such visits should be suspended "subject to the continuing jurisdiction of this court." The court also ended the respondent's obligation to pay child support during this suspension since it determined that the father's conduct "(was) not the sole cause of the estrangement between himself and his son." In addition, the chancellor dismissed both petitions for contempt, and, after finding that the "services of the psychiatrist were necessary," he ordered Mr. Kemp to reimburse his ex-wife for the $1,245 which she had paid to the doctor for the son's medical care that he received beginning in December 1972. Both parties noted a timely appeal from the circuit court's order to the Court of Special Appeals. The appellate court reversed those portions of the chancellor's order suspending the father's visitation rights and support obligations, as well as the chancellor's direction that Mrs. Kemp be reimbursed for all the psychiatrist's bills she had paid. As a basis for overturning the circuit court's suspension of visitation, the intermediate appellate court explained:

We do not feel that the circumstances here present the exceptional case ² where all access to the child should be denied the father. The report of the Probation Department to the court made no recommendation that visitation be suspended. Nor was there any clear showing otherwise that any contact of the child with his father would be so detrimental to the child as seriously to endanger his well-being. (Kemp v. Kemp, 42 Md.App. 90, 97-98, 399 A.2d 923, 928 (1979).)

With relation to the reimbursement of the medical bill, the appellate court held that, as a court of equity, the trial court lacked jurisdiction to order such a payment. Id. at 99-100, 399 A.2d at 928-29. We now explain our alternative disposition with respect to these rulings made by the Court of Special Appeals.

Turning first to the issue of visitation, we find it is no longer necessary to decide whether the intermediate appellate court utilized an improper standard of review when it examined the circuit court's decision because that issue is now moot. It has been two and one-half years since Judge Haile's hearing on visitation, and both parties now agree that circumstances have sufficiently changed so as to require a new hearing on this question. Thus, whether we accept the Court of Special Appeals' actions in this regard is purely an academic question and one which we will not decide. See Atty. Gen. v. Anne Arundel Cty. Sch. Bus., 286 Md. 324, 327, 407 A.2d 749, 752 (1979). However, because the petitioner's contention before this Court that the Court of Special Appeals usurped the trial court's function with respect to evaluating the evidence may well have merit, we reiterate the "three distinct aspects of review," established in Davis v. Davis, 280 Md. 119, 372 A.2d 231, cert. denied 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977), which should be utilized whenever an appellate court examines a decision by the chancellor concerning the welfare of children. As we said in Davis :

When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion. (Id. at 125-26, 372 A.2d at 234 (footnote omitted).)

When deciding on remand the type of association that should exist between Mr. Kemp and his son, the chancellor must, of course, do so on the basis of what he believes is in the best interests of the child, e. g., Stancill v. Stancill, 286 Md. 530, 534, 408 A.2d 1030, 1033 (1979); Radford v. Matczuk, 223 Md. 483, 488-89, 164 A.2d 904, 907-08 (1960), but he should, in accordance with the standard articulated by this Court in Radford v. Matczuk, supra, 223 Md. at 488, 164 A.2d at 907, only deny total visitation if the evidence clearly demonstrates the existence of extraordinary circumstances requiring such drastic action.

Having concluded that the first issue is moot, we now take up the problem of whether a court of equity may order one parent to reimburse the other for medical expenses incurred on behalf of the parties' minor child which were not contemplated as being within the specific amount of support previously ordered. Here, the parties' youngest child, Nicholas, has been seeing Dr. John M. Arthur, a psychiatrist, periodically since December 1972. At the time of the hearing before Judge Haile, the bill for Dr. Arthur's services amounted to $1245, which Mrs. Kemp had paid. In ordering the respondent to reimburse his ex-wife for this expense, the chancellor relied on the following provision of the separation agreement which had been incorporated into the divorce-custody decree:

The Husband further agrees to pay reasonable medical and dental expenses for said minor children. . . . The Husband shall be consulted on all major medical, surgical and/or dental needs for the minor children except where emergency will not permit, provided, however, that Husband shall not unreasonably withhold his consent.

The Court of Special Appeals reversed the circuit court's order of payment. Relying principally on the decisions of this Court in Kriedo v. Kriedo, 159 Md. 229, 150 A. 720 (1930)...