Presley v. Presley

• Decision Date: 15 November 1985
• Docket Number: No. 315,315
• Citation: 500 A.2d 322,65 Md.App. 265
• Parties: Floyd E. PRESLEY, Jr. v. Mary Ellen PRESLEY. Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 265

65 Md.App. 265

500 A.2d 322

Floyd E. PRESLEY, Jr. v. Mary Ellen PRESLEY.

No. 315 Sept. Term 1985.

Court of Special Appeals of Maryland.

Nov. 15, 1985.

Paul W. Barnett (Barnett & Barnett, on brief), Cumberland, for appellant.

Frank P. Flury, Riverdale, for appellee.

Argued before MOYLAN, WILNER and GARRITY, JJ.

WILNER, Judge.

The principal issue in this appeal is whether the Circuit Court for Prince George's County erred in requiring appellant, both prospectively and retrospectively, (1) to make periodic support payments to his adult mildly retarded daughter Pamela, and (2) to pay a certain share of Pamela's medical expenses and medical insurance premiums. In a cross-appeal, Pamela's mother, appellee, complains about the court's denial of her request that appellant pay a share of her counsel fees.

Pamela was born in 1964. She is, and apparently always has been, mildly mentally retarded. From ages 6 to 10, Pamela attended a school for mentally handicapped children; she was then transferred into a special education program at a regular public school. At the age of 16, Pamela left school and enrolled in a State vocational rehabilitation program. She thereafter worked at a number of "minimum wage" jobs--a "shampoo girl" in a beauty shop, a laborer at a commercial greenhouse. At the time of trial, she was employed as an animal caretaker by the National Institute of Health.

In June, 1975, when Pamela was 11 years old, the parties were divorced by the Circuit Court for Prince George's County. The divorce decree incorporated by reference a separation agreement entered into by the parties in April, 1975, which, in relevant part provided:

(1) "That the wife shall have custody of the minor child, Pamela, with reasonable rights of visitation to the husband" (p 2);

(2) "The husband agrees to pay the sum of One Hundred Dollars ($100.00) per month to the wife as child support for Pamela, and he further agrees to pay all medical and dental expenses for said minor child" (p 4); and

(3) "The husband agrees to continue to name the wife as sole beneficiary of all present life insurance policies until their youngest child, Pamela, becomes eighteen years of age" (p 7). ¹

Nowhere did the agreement or the divorce decree refer to Pamela's handicap or allude to her being mentally retarded.

Appellant paid the $100/month support called for in the agreement throughout and beyond Pamela's minority. He discontinued the payments in the spring of 1983, when Pamela was 19, apparently as the result of a disagreement over appellee's allowing Pamela (1) to leave appellee's home and take an apartment of her own, (2) to have her own car, and (3) to undergo sterilization by means of tubal ligation. Appellee responded in May, 1983, with a petition claiming an arrearage in support and medical expense payments and seeking both an order of contempt with respect to the arrearage and an order continuing and increasing appellant's future support obligation. In July, 1984, appellee amended her petition by deleting her request for a contempt citation but adding a request that "an order be entered finding [Pamela] to be a minor child, by reason of mental infirmity, within the Maryland Law, for purposes of support, and that the Court retain permanent jurisdiction of the parties and this case, until further order by the Court."

Appellant moved preliminarily to dismiss the petition on the grounds that (1) he had no obligation to support Pamela beyond her 18th birthday, and (2) Pamela was a necessary party to the proceeding. Appellee offered two theories to support a continuing obligation--the 1975 separation agreement and the requirements of Md.Code Ann. art. 27, § 97, which, at the time of the petition and the hearing thereon, provided: ²

"Any person who has an adult child destitute of means and unable to support himself by reason of mental of physical infirmity, who is possessed of or able to earn means sufficient to provide such child with necessary shelter, food, care and clothing and who neglects or refuses so to do, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000.00 or imprisoned for not more than one year, or both."

The court appeared to reject appellee's argument that there was any continuing contractual obligation under the separation agreement, suggesting several times that the agreement had "expired" when Pamela turned 18. Although the court mentioned the statute, it never clearly indicated whether a continuing obligation on the part of appellant could arise from it. Relying on Colburn v. Colburn, 45 Md.App. 313, 412 A.2d 1309 (1980), however, the court held that it had a continuing jurisdiction to modify the divorce decree, even after the child attained her majority. It was apparently on that basis that the court proceeded.

There was evidence presented at the hearing showing that:

(1) Pamela is mildly retarded. As measured by the Wechsler Adult Intelligence Scale, her full scale I.Q. is 77, which puts her in the seventh percentile (i.e., 93% of the population would achieve a higher score).

(2) She is capable of gainful employment. She has been employed by the National Institute of Health, full-time, since August, 1983. Though still a probationary employee at time of trial--i.e., she had not attained merit system status--she was earning a gross annual salary of $14,200. Her net pay was approximately $10,600, or about $888/month.

(3) Pamela had minimal living expenses while she resided with appellee. At time of trial, she shared a one-bedroom and den garden apartment with another young woman, who contributed to the rent and expenses. Even with the contributions of her roommate, Pamela's net income fell short of covering her general expenses, excluding medical expenses, by about $2400/year, or $200/month. In addition, she incurred unreimbursed medical expenses of about $900/year.

(4) Pamela is not quite so independent as her living and working arrangements facially might suggest. Appellee furnished her apartment and bought her a car; she has paid for Pamela's unreimbursed medical expenses and has made up part of Pamela's general monthly deficit. She has also provided substantial assistance to Pamela in terms of everyday activities--shopping, budgeting, attending to her clothes, etc.

Most of this evidence was not really in dispute. Appellant's position was not that Pamela didn't have these expenses, but that they were unnecessary. He objected to Pamela's having her own apartment and car, and in general thought her standard of living was too high.

At the close of the hearing, the court made a general finding that Pamela "has a mild mental disability that causes her to be temporarily partially dependent upon her parents" and that this temporary partial dependency "has been ongoing since she reached the chronological age of eighteen." The basis for this finding, however, was apparently not the shortfall between Pamela's net income and expenses, as was testified to by appellee, but rather the court's concern over the fact that Pamela had not yet achieved merit system status at her employment. The court said, in this regard:

"I find that this child substantially supports herself. The only problem is we don't know whether this is going to be permanent. But I will have the Defendant to continue one hundred dollars per month child support and no more.

Now, the reason I initially made the finding about temporary, is because I foresee that this is going to come to an end because this young lady is successful at NIH. She is going to be on her own. And there is no sense setting her up for a failure, by assigning to her a standard of living that she is not going to be able to maintain. We have to be pragmatic in these things. These are sad things, but there is no obligation that a parent maintain a child indefin[i]tely in an artificial standard of living. Any child earning fourteen thousand dollars a year can maintain a decent standard of living without assistance. And I think it is manifestly unfair to require a parent to maintain a child in a standard of living in excess of that indefinitely.

Therefore, after having made these findings about temporary partial, we have to set this matter in for a review. Now, the first review would be August of 1985. When she will have completed her second year. At that time, if she still is employed at NIH, as I understand it she begins ... at that point to be eligible for health insurance on her own. But that, although she would be a merit employee at that point is still temporary or probationary, so then there should be a further review in August of 1986.

And, gentlemen, at that time, if she goes off probationary status, the Court foresees an end to temporary partial disability. But we have to bridge it. And we have to be pragmatic while we are bridging this gap." (Emphasis added.)

Upon these findings, the court, on October 9, 1984, entered an order directing appellant to pay:

(1) Two-thirds of the cost of Pamela's medical and hospitalization insurance and three-fourths of her uninsured medical, psychological, dental, and prescription drug expenses accruing from and after May 1, 1983;

(2) Arrearages of $3,788 in medical and dental expenses incurred by appellee for Pamela prior to the filing of the petition, $984 in medical expenses incurred for Pamela since the filing of the petition, and $1,600 in monthly support.

The October 9 order said nothing about future payments of periodic child support. It is clear, however, from the court's remarks that it regarded that obligation as flowing from the initial divorce decree. Indeed, the October 9 order was couched as an amendment to that decree.

From this order and the extension of his duty of support under the divorce decree, appellant has brought this appeal. Although he initially challenged appellee's standing to prosecute this action on behalf of Pamela, at oral argument he...