Kramer v. Kramer

Decision Date04 June 1975
Docket NumberNo. 927,927
Citation26 Md.App. 620,339 A.2d 328
PartiesTheresa Z. KRAMER v. Howard Calvin KRAMER
CourtCourt of Special Appeals of Maryland

John H. Price, Jr., and I. Duke Avnet, Baltimore, for appellant.

John J. Hirsch, Baltimore, for appellee.

Argued before POWERS, GILBERT and DAVIDSON, JJ.

DAVIDSON, Judge.

On 29 June 1973, in the Circuit Court for Baltimore County, Theresa Z. Kramer, the appellant (mother), filed a bill of complaint for an absolute divorce from Howard Calvin Kramer, the appellee (father), on the grounds of cruelty, constructive desertion and an uninterrupted separation of five years. Included among the prayers for relief were ones for alimony and for custody and support of the three minor children of the parties, Pamela, then age 17, Theresa, then age 14, and Priscilla, then age 12.

On 10 September 1974 Judge John N. Maguire filed a memorandum opinion and order in which he found that the father had not deserted the mother but that the parties had lived separate and apart for five years. His order, in pertinent part, awarded the mother an absolute divorce and denied her alimony, awarded the father custody of Theresa and Priscilla, and failed to provide child support payments for Palmela. 1 It is from the denial of alimony to the mother the award of custody to the father and the refusal of support payments for Pamela that this appeal is taken.

I

On appeal the mother's primary contention is that the chancellor erred in awarding custody of the two minor children, Theresa and Priscilla, to the father. The governing principle with regard to an award of custody is that the best interest and welfare of the child are determinative. In undertaking appellate review of the chancellor's award of custody, this Court has limited the applicability of the 'clearly erroneous' rule to the factual findings underlying the chancellor's conclusion as to what constitutes the best interest and welfare of the child, reserving the right to exercise our own best judgment as to the appropriateness of that conclusion. Barsallo v. Barsallo, 18 Md.App. 560, 565, 308 A.2d 457, 460 (1973); Mullinix v. Mullinix, 12 Md.App. 402, 411-12, 278 A.2d 674, 678-80 (1971); Sullivan v. Auslaender, 12 Md.App. 1, 4-5, 276 A.2d 698, 699-701 (1971). Upon our review of the record in this case we cannot say that the chancellor was clearly erroneous in his findings of fact or that his ultimate conclusion that custody should be awarded to the father was incorrect.

Ordinarily custody should be changed only when the best interest of the child requires a modification. Winter v. Crowley, Jr., 231 Md. 323, 331, 190 A.2d 87, 91 (1963); Peterman v. Peterman, 14 Md.App. 310, 320-21, 286 A.2d 812, 819 (1972); Sullivan, supra, at 12 Md.App. 5, 276 A.2d 701. In determining what is likely to be in the best interest and welfare of a child, a court may properly consider, among other things, the fitness of the person seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the children, the physical, spiritual and moral well-being of the children, the environment and surroundings in which the children will be reared, the influence likely to be exerted upon the children, and if old enough to make a rational choice, the preference of the children themselves. Hild v. Hild, 221 Md. 349, 357, 157 A.2d 442, 446 (1960); Deckman v. Deckman, 15 Md.App. 553, 565-66, 292 A.2d 112, 118-19 (1972).

The record shows that all three children lived with their mother after the parties' separation in 1967. While the chancellor did not find the mother to be unfit, there was evidence to show that the mother, then working full-time as a nurse and staff development director at Maryland General Hospital, had a history of repetitive occurrences of mental depression, suicide attempts, and alcoholism problems, which ultimately required long-term psychiatric hospitalization. Although she had greatly improved, she still drank occasionally and was prone to hysterical exaggeration. Because she frequently attended Alcoholics Anonymous meetings and evening college classes in addition to working full-time, she spent such a considerable time away from the children that they had virtually no maternal supervision. In addition, there was a lack of involvement on her part in the children, their interests, and their emotional development.

There was evidence to show that the children were doing well. Both Theresa and Priscilla had been honor students at their respective schools the year before; Theresa was a high school cheerleader. Yet the probation officer's report shows that Priscilla was recently suspended from junior high school and was becoming prone to temper outbursts; that neither of the children got along well with their older sister Pamela; and that Priscilla was not getting along well with her mother.

Finally, there was evidence to show that the father, a urologist, was a conscientious man, deeply concerned and involved in the welfare of the children; that he then lived in a spacious, attractively furnished two bedroom apartment which he shared with his 79 year old widowed mother; that he was then willing and able to obtain even more commodious accommodations if custody were granted to him; that during the years since the separation of the parties the father had spent four nights a week with the children and was generally available to them on call; that Theresa wanted to be in her father's custody; that Priscilla wanted to be with Theresa; and that, in the opinion of the probation officer, the father is 'presently more able to provide the most stable and consistent atmosphere for the girls.'

We agree with the chancellor's conclusion that custody of these children should be awarded to the father. Priscilla's difficulties at school, her inability to get along well with her mother, the inability of both children to get along with Pamela, and Theresa's decided preference to be with her father, coupled with the fact that since 1967 the father had been more integrally involved with the children than has the mother, are all factors which demonstrate that a change in custody is in the children's best interest. The strong paternal influence and involvement which the father offers far outweighs any disadvantage which may be suffered by transferring custody of the children to him. Accordingly, the chancellor's determination with respect to the custody of the children will be affirmed.

II

The mother additionally contends that she was entitled to support payments, including college expenses, for Pamela, notwithstanding the fact that Pamela had become 18 years old in January, 1974, and was, therefore, no longer a minor at the time of the award in July, 1974. She asserts that before 1 July 1973, the effective date of Art. I, § 24, which changed the age of majority from 21 to 18 years, the father had verbally agreed to support the children and that that agreement meant that he agreed to support the children until they reached the age of 21. The father contends that before 1 July 1973 there was no agreement to support the children until age 21 and in the absence of any support agreement or court decree executed or entered into prior to 1 July 1973, the mother was not entitled to child support for Pamela.

The record shows that the parties separated in August, 1967. According to the mother, the parties after discussion verbally agreed, sometime in September or October, 1967, that the father should pay the mortgage, utilities and insurance expenses as well as $150.00 every two weeks as support for the three children. The mother testified that payments in accordance with this agreed were made until January, 1974, at which time the father ceased making support payments for Pamela who then became 18 years old and who was attending college.

While the father testified that at the time of the separation of the parties he and the mother were both represented by counsel, and while no formal written separation agreement making disposition of the property of the parties was introduced into evidence, the father at no time during the trial denied the existence of an agreement with respect to child support as testified to by the mother. Moreover, he himself testified that from the time of the separation of the parties in August, 1967, he paid $150.00 every two weeks for the three children and, in addition, another $150.00 per month for utilities, the mortgage and 'a number of other things.' Finally, he testified that, whereas he intended and hoped to contribute to the cost of a college education for his daughters Theresa and Priscilla, he would not contribute to Pamela's education for the sole reason that my wife had enough money that if she had been prudent she could have paid for Pamela's education. She should have taken care of that during that period.'

Here the evidence presented compels the conclusion that an agreement between the parties with respect to support payments for the three children did exist long before 1 July 1973, the effective date of Art. I, § 24. There is no requirement that there be a formal written agreement in matters involving separation, alimony, child support and custody. Wilner v. Wilner, 251 Md. 13, 24, 246 A.2d 273, 279 (1968); Hahn v. Hahn, 192 Md. 561, 568, 64 A.2d 739, 742 (1949). 2 The existence of an agreement with respect to such matters may be verified from testimony, the conduct of the parties, and other evidence in the case. Wilner, supra, at 251 Md. 24, 246 A.2d 279. Here the mother's acceptance of payments unilaterally determined by the father to be appropriate, for a period of six years, without resort to a support action, constitutes acquiescence in and acceptance of an offer of support for the children made by the father, and, therefore, constitutes an agreement between the parties with respect to support payments for the three children. See Eckard v. Gardner, 255 Md. 171, 178, 257 A.2d 174, 177 (1...

To continue reading

Request your trial
37 cases
  • Hosain v. Malik
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1995
    ... ... The Montana Supreme Court's decision in In re Marriage of Kramer, 177 Mont. 61, 580 P.2d 439 (1978), for example, is instructive. That court held that the judge erred in deciding a custody issue in a divorce ... ...
  • Corry v. O'Neill
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1994
    ... ... See Miller v. Miller, 70 Md.App. 1, 18-19, 519 A.2d 1298 (1987); Kramer [658 A.2d 1158] v. Kramer, 26 Md.App. 620, 631, 339 A.2d 328 (1975). See also Monticello v. Monticello, 271 Md. 168, 173-74, 315 A.2d 520 cert ... ...
  • Knott v. Knott
    • United States
    • Court of Special Appeals of Maryland
    • September 5, 2002
    ... ... itself, what a reasonable person in the position of the parties would have thought the agreement meant at the time it was effectuated." Kramer v. Kramer, 26 Md.App. 620, 630, 339 A.2d 328 (1975) ...         "In lieu of" means "instead of; in place of; in exchange or return for." ... ...
  • Wagner v. Wagner
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1995
    ... ... ' ... depending upon what is in the best interests of the child.' " (quoting Taylor, 306 Md. at 301, 508 A.2d 964)); Kramer v. Kramer, 26 Md.App. 620, 623, 339 A.2d 328 (1975) ("[T]he best interest and welfare ... of the child are determinative."). While a trial court ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT