delivered the opinion of the Court.
The appellant, Jesse P. Bradford, appeals from a money decree entered against him by the Circuit Court for Prince George’s County, sitting in Equity, in favor of his former wife, Mickey N. Futrell, who has remarried. The decree was passed on August 10, 1960, in a proceeding to ascertain the amount of unpaid installments owed by the appellant under an October, 1944, decree of the same court which granted the appellee a divorce from the appellant, awarded her the custody of their four minor children and required the appellant to pay to the appellee the sum of $20.00 per week for the
Although the eldest child had attained his majority, the decree required continued payments of $20.00 per week for the three younger children because of increased living costs. The appellant does not object to that portion of the decree. What he does contest is the size of the decretal award to his ex-wife. He complains that, in determining the arrearage figure, the chancellor should have allowed him full credit for all money and items of personal property given by him to the children themselves, even though he referred to them as gifts; that he should have been allowed a credit because the eldest child left the home of the appellee, resided with him for a short period and then entered the armed forces of the United States; and that he should have been given credit for a portion of the allotment which the appellee received because of her present husband’s military service, since the Bradford children were claimed as dependents of their stepfather. The appellant also maintains that the chancellor erred in permitting appellee to make claim for payments due hack to the divorce decree of 1944, and that, in any event, her whole claim for arrearages is barred by both laches and limitations.
After the parties were divorced in 1944 the appellant remarried. Shortly thereafter the appellee moved to Florida with the children because, she said, her ex-husband’s unreasonable actions tоward the children were harmful to them and' kept her household in frequent turmoil. It is conceded that appellant made all required payments for the support of the children up to November 4, 1945. Thereafter his remittances, ceased. Appellee, who had obtained work upon arrival in Florida, gave a graphic description of her struggle to provide food, clothing and shelter for herself and her four young boys and of the privations they endured, particularly after Brаdford’s payments ceased. On September 13, 1946, she married' her present husband, an Air Force sergeant, who aided in maintenance of her children. Mrs. Futrell told of frequent
Mrs. Futrell stated that her eldest son, Phillip, had always been his father’s favorite. She testified that since Bradford wouldn’t send money to her, she “put the boy up to calling his father at Christmases, birthdays, graduation, and other special occasions”, because she didn’t like to see her sons do without the things that most children had. Bradford sent a number of checks, payable to Phillip, in response to the boy’s calls, which were endorsed by the boy and cashed by his mother. The money, she said, sometimes went for clothes and sometimes for toys for all the children.
In addition, Bradford of his own accord sent various checks to the children with letters referring to them as birthday or holiday gifts, and on a few occasions also sent clothing, some of which Mrs. Futrell said was unsuited to the children. On one occasion, when Phillip asked him for a motor scooter, he purchased an automobile at a cost of $1,195, had it titled in Phillip’s name and delivered it to the boy. Mrs. Futrell said this was a surprise gift, unwelcomed by her, at least. She said she taught her son to operate it and thereafter never drove it herself. She said that after a time it “broke down” and her ex-husband towed it back to Maryland and never returned it. On one of his more or less annual visits to the children in Florida, Bradford bought a television set for the children, for which he paid $186. Mrs. Futrell testified that after November 4, 1945, she received no money directly from her former husband.
Bradford maintains that all payments and credits claimed by him were made with the consent and acquiescence of Mrs. Futrell and that therefore he should have been allowed for all of them. He claims that Mrs. Futrell requested him to purchase the television set to keep the children off the street,
At the hearing, the chancellor ruled that the appellant was not entitled to credit for checks which he had clearly designated as gifts, but that he would be allowed for checks (even though payable to the children) which were not described as gifts and the proceeds of which were received by Mrs. Futrell. The appellant received credit for clothing which he sent to the boys, as necessities, but not for the automobile and television set, on the ground that they were gifts and nоt necessities.
At the hearing Bradford claimed that a total allowance of $5,717.01 was due him for money and property advanced. The chancellor found that the items advanced clearly as gifts amounted in value to $2,149.33, and deducted that figure from Bradford’s claimed credits, leaving an allowed credit of $3,567.68. The latter sum was thereupon deducted from $16,440, the total of payments accrued from the date of the divorce decree, resulting in the $12,872.32 decreed to be due аnd unpaid as of August 1, 1960.
Therefore, the questions raised on this appeal are: Whether appellant should have been given credit for the gifts, amounting to $2,149.33; whether he should have been given a credit because the son, Phillip, left his mother’s home before attaining his majority; whether he should have been given credit for part of Mrs. Futrell’s military allotment, since her present husband claimed her children as dependents; and whether Mrs. Futrell’s claim for arrearages, or any part thereof, is barred by laches or limitations.
We proceed now to consideration of the question whether a father, subject to a decree requiring periodic payments to his former wife for support of their children, is entitled to allowance for gifts made by him directly to the children. This question does not appear to have been presented to this Court before, and neither party to this proceeding has cited any reported decision of a Maryland court on thе subject, nor have we found any. The problem is discussed at length in 27B, C.J.S., Divorce, § 321 (1) (2), and in an annotation in
“The subject matter of the present annotation is such as to prevent the formulation of general rules, since the factual situation appears to be controlling in most cases. But it may be stated generally that the courts in most jurisdictions recognize, although not expressly stating it as a general principle, that a father should be allowed credit for expenditures made while the child is in his custody or for other voluntary expenditures in the child’s behalf where such payments, although at variance with the requirement that the payments be made to the mother, constitute a substantial compliance with the spirit and intent of the decree. The question of what constitutes substantial cоmpliance depends, of course, upon the circumstances of each individual case; and it is to be noted that in many cases where the courts have assumed jurisdiction to determine the merits of the father’s claim, credit for voluntary payments have been denied.” (Emphasis supplied.)
There is considerable conflict among the cases as to. whether
any
credit can be given for expenditures made by the father on behalf of his children other than as provided by the decree. One line of decisions is to the effect that since the obligation of the father has been fixed by the decree, it cannot be satisfied except by strict compliance with its terms, and the proper remedy for the father, if any remedy is called for, is a motion to modify the decree. A father may not himself determine the method of payment or to whom payment should be made. See, for example,
Cotton v. Wright,
Somewhat opposed to this view are decisions holding that where “compulsion of circumstances” makes necessary the direct expenditures by the husband, he will be given credit when the expenditures constitute “substantial compliance with the spirit and intent of the decree”.
Jackson v. Jackson,
In the absence of some finding of consent by the mother, most courts refuse to allow a husband to dictate how he will meet the requirements for support payments when the mode of payment is fixed by a decree of court. Thus he will not be credited for payments made when he unnecessarily interposed himself as a volunteer and made payments direct to the children of his own accord.
Wills v. Baker,
The next contention of the appellant is that the chancellor failed tо give proper consideration to the military allotment accruing to the ex-wife as a result of claiming the children as dependents of their stepfather. As appellee has pointed out, the cases cited by appellant to support this contention are concerned with the situation where the estranged or divorced husband was in the armed forces, and the wife and children received allotments from the government because of his military status. In the instant сase the wife has remarried and
We come now to the final question, whether appellee’s claim for arrearages, or any portion thereof, is barred by limitations or laches.
Recent litigation between these parties was inaugurated when Mrs. Futrell on April 16, 1958, filed suit in the District Court of the United States for the District of Maryland against her former husband for accrued payments under the divorce decree. The jurisdiction of that сourt was based on diversity of citizenship, she being then, as now, a resident of Florida. The District Court decided it would not act on the complaint provided Bradford would file a petition in the original divorce action in Prince George’s County to determine what amount, if any, was owed under the decree. Con
We think that the question of limitations in this case is controlled by the case of
Marshall v.
Marshall,
“It is conceded that no sums which became payable under the decree more than twelve years before the filing of the petition for the enforcing process can be recovered, in view of the Code provision that no ‘bill, testamentary, administration or other bond (except sheriffs’ and cоnstables’ bonds), judgment, recognizance, statute merchant, or of the staple or other specialty whatsoever, except such as shall be taken for the use of the State, shall be good and pleadable, or admitted in evidence against any person in this State after the principal debtor and creditor have both been dead twelve years, or the debt or thing in action is above twelve years’ standing.’ Code, Art. 57, Sec. 3.”
“Another point decided [in Marshall] was that continuing periodical instalment payments of money under a decree were not barred by limitations as to those which had severally become due within the twelve years next preceding the proceedings for enforcement. The court did not hold that the agreed рeriodical payment must be paid if without the statute of limitations, but carefully confined the application of the statute to ‘the amount of the unpaid instalments, and the existence of the conditions upon which its enforcement is dependent’ as ascertained by an appropriate proceeding.
“The rule of limitations stated in Marshall v. Marshall, supra, would seem to apply to the periodical instalments of alimony under a decree, to the extent that when such instalments separately becamе due the statute of limitations of twelve years began respectively to run severally as a bar to the enforcement of every such instalment, if it had accrued due and remained undischarged. In Kalben v. King,166 Md. 632 , 640,172 A. 80 , where alimony pendente lite was the subject matter, there is a dictum to that effect. In such event, the enforcement of the collection of the moneys due might continue to be by way of scire jadas, attachment, execution or by other equitable remedies if within the period of limitations,
Appellee attempts to avoid the bar of limitations as to payments accrued for more than twelve years by pointing out that Code (1957), Art. 57, § 3, also provides that “every payment on the principal upon any
single hill or other specialty
shall suspend the operation of this section as to such
From what has been said, it follows that the chancellor should have taken into account, in computing arrеarages, only those installments which accrued within twelve years prior to April 16, 1958, when Mrs. Futrell filed suit in the District Court. Stated conversely, he should have disallowed payments which came due before April 16, 1946. Since the record shows that no payments were made by appellant between November 4, 1945, and April 16, 1946, it follows that an amount representing installments of $20.00 for 23 weeks— a total sum of $460—was erroneously included in the decree below. Therefore a decree will be entered for $12,412.32, with interest from August 1, 1960. Rule 875 a.
Decree reversed in part and affirmed as to the remainder in the amount of $12,412.32, with interest from August 1, 1960; costs to be paid by appellant.