Quarles v. Quarles, 1354

• Decision Date: 01 September 1984
• Docket Number: No. 1354,1354
• Citation: 489 A.2d 559,62 Md.App. 394
• Parties: Theron QUARLES v. Patricia QUARLES. ,
• Court: Court of Special Appeals of Maryland

Page 394

62 Md.App. 394

489 A.2d 559

Theron QUARLES v. Patricia QUARLES.

No. 1354, Sept. Term, 1984.

Court of Special Appeals of Maryland.

April 3, 1985.

Sheldon E. Friedman, Timonium, for appellant.

Daniel J. Bartolini, Baltimore (Curtis C. Coon, and Burke, Gerber, Wilen, Francomano & Radding, Baltimore, on the brief), for appellee.

Argued before GARRITY, ADKINS and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

The parties, Theron Quarles, Sr., appellant and Patricia Quarles, appellee, were married on June 28, 1961. They had two children, Theron Quarles, Jr. and Richard Quarles, born January 17, 1965 and May 25, 1966 respectively. After the parties began living separate and apart, appellee assumed care and custody of their minor children.

The parties were divorced a vinculo matrimonii by the Circuit Court for Baltimore City on June 24, 1981. The decree provided, in pertinent part:

5. That husband shall pay directly to wife, and not through any governmental agency, the sum of Eight Hundred Dollars ($800.00) per month as alimony and child support (with no fixed allocation), on the first (1st) and fifteenth (15th) of each month in equal installments, accounting from June 15, 1981.

The alimony and child support provision was made "... subject to further order of this Court" and incorporated into the decree. The court reserved, for later decision, ¹ issues pertaining to marital property, entitlement to marital awards, court costs and expenses, and counsel fees.

Pursuant to the reservation, a hearing was scheduled for September 17, 1981. Prior to the hearing, the parties entered into an agreement amending the decree: appellee waived any rights that she might have in appellant's military pension; appellant agreed to "... convey [to appellee] all of his right, title and interest..." in the family home; and appellant agreed to provide appellee with non-modifiable fixed support. This agreement was adopted by the court and incorporated into the June 24, 1981 divorce decree, which was otherwise confirmed and ratified.

Appellant paid the specified alimony and support through July, 1983 when he began to reduce the payments. Appellee thereupon filed a petition to cite appellant for contempt and for other relief. Appellant countered with a petition to modify the decree, citing as the reason the fact that one of the children reached majority on January 17, 1983. Appellee, demurred and, due to a change in the amount of arrearage claimed, filed an amended petition for contempt. Appellant responded by moving to consolidate the various proceedings.

A hearing on appellee's contempt petition was held on February 24, 1984 before Master Bonita Dancy. At that time appellant, who presented no testimony, contended that Theron, Jr.'s majority relieved him of his obligation to pay the full agreed upon amount. The parties stipulated to the amount of the arrears. The master concluded:

1. That the husband engaged in "unlawful" self-help in unilaterally deciding "not to obey the terms of the valid court order that he has both the ability and estate to obey"

2. That under Article 16 Section 28 Annotated Code of Maryland agreements between husband and wife concerning alimony and child support are valid and modifiable by the court unless the parties state that the alimony provision is not subject to modification but provisions concerning child support are always subject to modification

3. That the order of October 5 did not allocate the amount designated as child support and the amount designated as alimony, and states that the $800 is not subject to modification

4. That the husband was in contempt "because under this Order there is no way he can unilaterally determine what portion of the $800 payment is child support"

5. That the husband cannot reduce payments because even if a portion of the $800 is determined to be child support, it was an award to two children "with no per child designation..." and husband must continue to pay the full undivided amount until each child attains majority [citing Becker v. Becker, 39 Md.App. 630, 387 A.2d 317 (1978) ]

Finding no basis for appellant's failure to pay appellee $800 per month as ordered, she referred the case to court for hearing and recommended "that [appellant] be adjudged in contempt of the court with sanctions as the court deems appropriate under the circumstances."

Appellant excepted to the findings and recommendation of the master and requested a hearing. That hearing was scheduled for June 5, 1984 when all open matters were to be considered. Appellant subsequently filed, on the date of the hearing on his exceptions, an amended petition for modification on the grounds that his youngest child attained majority on May 25, 1984.

On June 5, 1984, appellant was not present, but his counsel appeared and requested a postponement because he was unprepared to present testimony or offer exhibits. The request was denied. After argument of counsel, all open matters were considered and ruled upon. The court's rulings were incorporated into an order dated June 14, 1984, which provided:

(1) the Petition for Modification of Decree and Amended Petition for Modification of Decree be dismissed

(2) Petitioner's Demurrer to Respondent's Petition for Modification of Decree be rendered moot

(3) Respondent's Exceptions to Findings of Master be overruled

(4) arrearages be set at Three Thousand, Six Hundred Sixty-six Dollars ($3,666.00) said arrearage representing all payments under said Consent Decree due up to, but not including, any amount due and payable in June, 1984

(5) the husband was found in contempt of court and was ordered to purge himself of the contempt by payment of an additional sum of Two Hundred Dollars ($200.00) per month, through the Bureau of Support and Enforcement of Baltimore City

(6) husband shall pay Eight Hundred Dollars ($800.00) monthly Alimony and Child Support (with no fixed allocation) as ordered by this court on October 5, 1981, through the Bureau of Support and Enforcement of Baltimore City, payable monthly in two (2) equal installments on or before the 3rd and 17th day of each month

Appellant appealed and, in this court, presents two questions:

1. Did the Honorable Joseph H.H. Kaplan, Judge of the Circuit Court for Baltimore City, err by dismissing the Defendant's Petition for Modification of Decree and by overruling the Defendant's Exceptions to Findings of the Master in his Order dated June 14, 1984?

2. Did the Honorable Joseph H.H. Kaplan err in determining the alimony and child support (with no fixed allocation) provision of the Consent Decree entered on October 5, 1981, is non-modifiable?

1.

Appellant asserts that the trial judge erred in denying his timely request for postponement. He argues that his counsel's appearance on June 5, 1984 was "for the purpose of determining whether or not a postponement of the various motions and petitions pending before the court would be granted" since appellant was out of the country and would not be available to testify.

It is within the trial judge's discretion to grant or to deny a continuance and that decision will not be disturbed on appeal, absent an abuse of discretion. Maryland Rule 2-508 (former rule 527 a); In Re McNeil, 21 Md.App. 484, 320 A.2d 57 (1974); Colburn v. Colburn, 20 Md.App. 346, 316 A.2d 283 (1974); Brooks v. Bast, 242 Md. 350, 918 A.2d 84 (1966). Failure to adequately prepare for trial is ordinarily not a proper ground for continuance or postponement. Cruis Along Boats, Inc. v. Langley, 255 Md. 139, 257 A.2d 184 (1969); Hughes v. Averza, 223 Md. 12, 161 A.2d 671 (1960). Appellant excepted to the master's findings on March 20, 1984 and a hearing was set for June 5, 1984. Appellant's counsel had ample time to prepare for the hearing and to arrange for appellant to be present. We find that the trial judge did not abuse his discretion when he denied appellant's request for postponement.

Appellant next alleges that the trial judge erred in dismissing his petition and his amended petition for modification of the Decree without an evidentiary hearing. We disagree for reasons to be discussed below.

Appellant also complains that the trial judge erred in overruling his exceptions to the findings of the master without an evidentiary hearing. Appellant's argument is without merit.

Maryland Rule 596 h. 6., present Rule 2-541(i), provides, in pertinent part:

6. Hearing--Additional Evidence.

No evidence in addition to that presented to the Master shall be submitted at a hearing upon exceptions unless the exceptant has set forth in the exceptions, with particularity, the additional evidence which he desires to offer at the hearing and specifically requests in the exceptions that additional evidence be taken at the hearing, with the reasons why the evidence was not offered before the Master. The court may in its discretion (i) remand the matter to the Master to hear and make appropriate findings or conclusions in regard to the additional evidence and to report thereon, (ii) hear and consider the additional evidence, or (iii) conduct a de novo hearing.

In order for appellant to have presented additional evidence, he must have complied with Rule 596 h. 6. Appellant did not comply and, therefore, has no basis for complaint. In any event, the decision to allow the presentation of additional evidence is within the sound discretion of the trial judge. That discretion in this instance was properly exercised.

Appellant's complaint that the trial judge's determination of the arrearages was without support in the record is likewise without merit. Where installments of alimony and child support are not paid, the right to collect any amount in arrears may be obtained through the court. See Stewart v. Stewart, 256 Md. 272, 260 A.2d 71 (1969), Stancill v. Stancill, 41 Md.App. 335, 397 A.2d 218 (1979). In the case sub judice, the parties stipulated to the arrearages at the master's hearing. That stipulation...