Luhmann v. Luhmann

• Decision Date: 08 September 1977
• Docket Number: No. 1016,1016
• Citation: 37 Md.App. 185,376 A.2d 1141
• Parties: H. Conrad LUHMANN, Jr. v. Natalie C. LUHMANN.
• Court: Court of Special Appeals of Maryland

Page 185

37 Md.App. 185

376 A.2d 1141

H. Conrad LUHMANN, Jr. v. Natalie C. LUHMANN.

No. 1016.

Court of Special Appeals of Maryland.

Sept. 8, 1977.

Dale L. Button, Bethesda, for appellant.

Edward J. McGrath, Gaithersburg, with whom were McGrath & Doyle, Gaithersburg, on the brief, for appellee.

Argued before THOMPSON, LOWE and MELVIN, JJ.

MELVIN, Judge.

The principal issue in this appeal involves the duration of the child support provisions of a divorce decree entered on 15 April 1974 by the Circuit Court for Montgomery County.

The underlying facts can be briefly recounted. The appellant, H. Conrad Luhmann, Jr., and the appellee, Natalie C. Luhmann, were married on 24 July 1954. Two children were born of the marriage, viz., Craig Lee Luhmann, born 15 May 1955, and Eric Conrad Luhmann, born 10 June 1957. On 22 September 1971, when Craig was 16 years old and Eric was 14 years old, the parties entered into a "Separation and Property Settlement Agreement", which, among other things, provided as follows:

" . . . . That the Husband agrees to pay to the Wife for the support and maintenance of the aforesaid children the sum of One Hundred Fifty Dollars ($150.00) per month per child, the first of which said payments shall be due upon the execution of this Agreement by both parties hereto, with each succeeding monthly payment due on the same date of each month thereafter. The said support for each child shall continue until each child shall become twenty-one years of age or be sooner emancipated, at which time the support for that child shall then terminate . . . ."

The Agreement further provided that,

" . . . consistent with the rules or practice of any court granting any decree of absolute divorce, the provisions of this Agreement, or the substance thereof, may be made a part of that said decree, but notwithstanding such incorporation, this Agreement shall not be merged in such decree but shall in all respects be forever binding upon the parties".

On 1 July 1973, Chapter 651 of the Laws of 1973, now codified as Art. 1, § 24 of the Md. Code (1957, 1976 Repl. Vol.), became effective, decreasing the age of majority from 21 to 18 years.

On 4 January 1974, when Craig was 18 and Eric was 16 years old, the appellant-husband filed a bill of complaint for divorce on the grounds of three years separation. The bill alleged, inter alia, that "the property rights between the parties have been settled by a Separation Agreement between them dated September 22, 1971, as well as custody and child support". The appellee-wife did not contest the divorce. The case was forwarded to the Domestic Relations Master for the taking of testimony and recommendations.

On 11 April 1974, pursuant to the recommendations of the Domestic Relations Master, the divorce was granted to appellant. The decree provided in pertinent part as follows:

"ORDERED that the Plaintiff shall pay to the Defendant, for the support and maintenance of the remaining minor child, the sum of Two Hundred Dollars ($200.00) per month, commencing on the first day of the month, following the signing of the Decree by the Court, pending further order of the Court, and it is further

"ORDERED that the provisions of the Separation and Property Settlement Agreement dated September 22, 1971, and filed in this matter as Plaintiff's Exhibit No. 2, may be incorporated in the Decree of Divorce, insofar as the Court has jurisdiction, pending further order of the Court . . . "

On 10 June 1975, Eric became 18 years of age and appellant discontinued all child support payments. On 6 August 1975, appellant filed a "Motion to Amend Decree of Divorce" in which he alleged that Eric had "pass(ed) the age limit within which the Court in its Decree of April 11, 1974, ¹ had jurisdiction to require the payment of support by the Plaintiff to the Defendant". He prayed that the decree be amended to "eliminate the provisions as to custody and child support".

By order filed 25 August 1976, the court dismissed the motion. In his appeal from that order, appellant contends that his motion to amend the decree as prayed should have been granted for either of the following reasons: 1) As a matter of law, the decree can not operate to require him to provide child support for Eric beyond his eighteenth birthday, because the decree was passed after the effective date of Chapter 651 of the Laws of 1973. 2) Regardless of his age, Eric has become emancipated by reason of his earning capacity and ability to care for himself.

I

Had the divorce decree of 15 April 1974 not mentioned the Agreement, it is clear that the requirement of the decree that appellant pay $200 per month for the support of "the remaining minor child" would automatically expire upon the child's (Eric's) reaching his eighteenth birthday. Monticello v. Monticello, 271 Md. 168, 315 A.2d 520 (1974); Code Art. 1, § 24. This does not mean, however, that the child support provisions of the Agreement would also expire. On the contrary, the Agreement specifically provides that whether incorporated in a divorce decree or not its provisions "shall not be merged in such decree but shall in all respects be binding upon the parties". Thus even if the Agreement were not incorporated as part of the decree, its provisions would still be enforceable between the parties. Consequently, after Eric became 18 and before he...