Rand v. Rand

• Citation: 280 Md. 508,374 A.2d 900
• Decision Date: 30 June 1977
• Docket Number: No. 147,147
• Parties: , 90 A.L.R.3d 150 Florence Mitchell RAND v. Robert C. RAND.
• Court: Court of Appeals of Maryland

Page 508

280 Md. 508

374 A.2d 900, 90 A.L.R.3d 150

Florence Mitchell RAND v. Robert C. RAND.

No. 147.

Court of Appeals of Maryland.

June 30, 1977.

Elbert R. Shore, Jr., Rockville (John T. Bell, Frank S. Cornelius and Bell & Cornelius, Rockville, on the brief), for appellant.

Allen J. Katz, Gaithersburg (George W. Young, Jr., P.A., Gaithersburg, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

MURPHY, Chief Judge.

We granted certiorari in this case to decide whether, in view of the provisions of Maryland Code (1957, 1970 Repl. Vol., 1976 Supp.) Art. 72A, § 1 and Article 46 of the Maryland Declaration of Rights, the Court of Special Appeals applied correct principles of law in allocating child support payments between the child's parents. ¹

Art. 72A, § 1 provides, insofar as pertinent, that "The father and mother are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education. They shall have equal powers and duties . . . ." Article 46 of the Declaration of Rights, better known as the Equal Rights Amendment (E.R.A.), provides that "Equality of rights under the law shall not be abridged or denied because of sex."

Florence and Robert Rand were divorced in 1971. The chancellor awarded Florence custody of the minor child Virginia, alimony of $75 monthly, and child support of $250 monthly. See Rand v. Rand, 13 Md.App. 574, 284 A.2d 271 (1971). In 1975 Florence sought an increase in child support to finance Virginia's college education; ² Robert cross-filed for a reduction or termination of alimony. The chancellor adopted the master's report, which found the required monthly child support to be $520, increased Robert's child support contribution to $480 monthly, and terminated his alimony payments. Florence appealed. She contended that the chancellor erred in not ordering Robert to pay a greater sum toward Virginia's support.

The Court of Special Appeals noted that Florence, a teacher, had a yearly income exceeding $16,000, of which $300 remained monthly after her properly allowable personal expenses were paid and that Robert, a mathematician, had a yearly income exceeding $27,000, of which $500 remained monthly after payment of his proper expenses. It did not disturb the finding below that $520 monthly was a reasonable amount for the maintenance and support of Virginia. It did, however, find that the allocation of $480 (92%) of that amount to Robert was clearly erroneous. Based on the net monthly income available to the parties after personal expenses, the court calculated that Robert was liable for only 5/8ths of $520 or $325 monthly and implicitly, that Florence was responsible for the remainder ($195 monthly). In so concluding, it relied on Art. 72A, § 1, the case of Melson v. Melson, 151 Md. 196, 134 A. 136 (1926), and Article 46 of the Maryland Declaration of Rights. The court said that "Florence's contention that as the mother she is but contingently obligated to contribute to the support of her minor child is unsound under the circumstances of this case." 33 Md.App. at 539, 365 A.2d at 593. ³

Florence contends that she is chargeable with Virginia's support only to the extent that Robert is financially incapable of providing it. It is her apparent contention that before she has any responsibility to contribute to Virginia's support, Robert is obligated to pay child support of at least $500 monthly, the total remaining to him after payment of his personal expenses.

At common law, the father was primarily liable for the support of his minor children. See Seltzer v. Seltzer, 251 Md 44, 246 A.2d 264 (1968); Sause v. Sause, 194 Md. 76, 69 A.2d 811 (1949); Kriedo v. Kriedo, 159 Md. 229, 150 A. 720 (1930); Alvey v. Hartwig, 106 Md. 254, 67 A. 132 (1907); Maryland Drydock Co. v. Parker, 37 F.Supp. 717 (D.Md.1941). This responsibility arose from the father's corresponding right to his children's earnings and services, a right which the mother did not share. See Greenwood v. Greenwood, 28 Md. 369 (1868).

Notwithstanding the enactment of Art. 72A, § 1, ⁴ our cases involving child support continued to apply the common law rule that the father is primarily liable for the support of his minor children, and that, it is his financial worth which must be considered. E. g., Seltzer v. Seltzer, supra; Wagshal v. Wagshal, 249 Md. 143, 238 A.2d 903 (1968); Chalkley v. Chalkley, 240 Md. 743, 215 A.2d 807 (1966); Woodall v. Woodall, 16 Md.App. 17, 293 A.2d 839 (1972). While we indicated that a court may take the mother's earnings into account, see Groner v. Davis, 260 Md. 471, 272 A.2d 621 (1971); Melson v. Melson, supra, we never had occasion to consider whether Art. 72A, § 1 required that it be done.

The Equal Rights Amendment was adopted by the people of Maryland in November, 1972. It is the impact of this constitutional amendment on Art. 72A, § 1, and on the common law obligation of the father to support his minor children, to which we now turn our attention.

To ascertain the mandate of the constitutional amendment, we look first to the "natural and ordinary signification" of its language. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 358 A.2d 241 (1976). If that language is clear and unambiguous, we need not look elsewhere. Harden v. Mass Transit Adm., 277 Md. 399, 354 A.2d 817 (1976); Md.-Nat'l Cap. P. & P. v. Rockville, 272 Md. 550, 325 A.2d 748 (1974). The words of the E.R.A. are clear and unambiguous; they say without equivocation that "Equality of rights under the law shall not be abridged or denied because of sex." This language mandating equality of rights can only mean that sex is not a factor. See Brown, Emerson, Falk, and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971).

Cases from other state jurisdictions interpreting the breadth and meaning of their equal rights amendments are instructive in ascertaining the reach of Maryland's E.R.A. The Supreme Court of Washington interpreted its Equal Rights Amendment, ⁵ a provision almost identical to Maryland's, in Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975). The court there said that by ratifying "the broad, sweeping, mandatory language" of the amendment, the citizens "intended to do more than repeat what was already contained in the otherwise governing constitutional provisions, federal and state, by which discrimination based on sex was permissible under the rational relationship and strict scrutiny tests." 85 Wash.2d at 871, 540 P.2d at 889. The court, therefore, did not consider whether the sex-based classification at issue concerning eligibility to participate in high school sports satisfied the rational relationship or strict scrutiny test. It found that the "overriding compelling state interest" had been determined by the people of the state to be that "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex." The rule which forbade qualified high school girls from playing on teams with boys was invalidated under that state's E.R.A.

The Pennsylvania Supreme Court has taken a similar position in interpreting that state's E.R.A. ⁶ Noting that the clear purpose of the constitutional provision was to end discriminatory treatment on account of sex, the court struck down differential sentencing procedures for women and men. Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). It stated that "sex may no longer be accepted as an exclusive classifying tool." 458 Pa. at 296, 328 A.2d at 855. In another case, it reversed an order whereby a husband was required to post security for costs in a pending divorce under a statute burdening men only. It said:

"The thrust of the Equal Rights Amendment is to insure equality of rights under the law and to eliminate sex as a basis for distinction. The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman." Henderson v. Henderson, 458 Pa. 97, 101, 327 A.2d 60, 62 (1974) (per curiam ).

Colorado exempts from the operation of its E.R.A. ⁷ only those cases in which classification of the sexes is based on physiological differences. Holding that a rape statute punishing only male offenders was not unconstitutional, the court reasoned that:

"This amendment prohibits unequal treatment based exclusively on the circumstance of sex, social stereotypes connected with gender, and culturally induced dissimilarities. However, it does not prohibit differential treatment among the sexes when, as here, that treatment is reasonably and genuinely based on physical characteristics unique to just one sex. . . . In such a case, the sexes are not similarly situated and thus, equal treatment is not required." People v. Salinas, Colo., 551 P.2d 703, 706 (1976).

The Illinois Supreme Court has applied a slightly less stringent test to sex-based classifications. In a case relying on the constitutional amendment ⁸ to challenge the validity of sex-based differences in the jurisdiction of the juvenile court (under 17 years for boys; under 18 years for girls), the court found "inescapable the conclusion that (the amendment) . . . requires us to hold that a classification based on sex is a 'suspect classification' which, to be held valid, must withstand 'strict judicial scrutiny.' " People v. Ellis, 57 Ill.2d 127, 132-33, 311 N.E.2d 98, 101 (1974). It held that that sex-based difference could not withstand strict scrutiny. See also Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775 (1974). Unlike the interpretations placed on their respective constitutional provisions by the highest courts of Washington, Pennsylvania, and Colorado, the...