*1 erroneous, were reversal is not here, warranted either be- those rulings cause were nonprejudicial or because the question of prejudicial error not preserved for appellate review. OF THE
JUDGMENTS COURT OF SPECIAL APPEALS AFFIRMED. BE PAID
COSTS TO BY THE PETITIONER. C.J., MURPHY, has authorized me to state that he con- curs in the result.
v.
Emma G. SININGER. Term, Sept.
No. Appeals
Court of of Maryland.
Aug. *2 (Pickett, Houlon Ber-& Bergman, Hyattsville Ronald B. brief), for man, appellant. on Hyattsville, Fait, Spring, appellee. Dorothy R. Silver ELDRIDGE, COLE, MURPHY, C.J., Argued before COUCH, E. RODOWSKY, JJ., and CHARLES DAVIDSON, (re- ORTH, Appeals Jr., Judge Associate Court tired), Assigned. Specially
COUCH, Judge. has in this case whether presented The issue an adult child who duty, equity, enforceable age majority. after the becomes disabled filed a 10, 1980, Sininger, appellee, Emma On December Sining Donald Support against for Child Complaint Bill of er, appellant, the Circuit Court for Montgomery County. had been divorced a vinculo matrimonii parties February divorce, 1969. Pursuant to the appellant paid for each their three children until they reached the age of majority—age twenty By one.1 court order, payments were ended in August all children requisite reached the having age. herein,
By complaint filed Mrs. Sininger sought sup- port Janette, for their daughter who although twenty- time, three at the suffered from severe mental illness and incapable of supporting caring for herself. At hearings a domestic master testimony before relations fo- cused on when disability Janette’s Appellant occurred. contended Janette was not disabled her illness until emancipated she became an Both parties adult. agree that one, after reaching age twenty Janette left family home *3 her apartment Further, and held own a job. and it is uncontested that is presently Janette disabled and requires maintained, however, medical Appellee attention. that Jan- illness, ette’s mental hence her disability, began in childhood and she that never was able to care herself properly. The evidence on question focused this ruling because in on appellant’s Question Law, Motion for Decision aof of awarded, master had held that for support to be appellee had to prove that Janette’s mental or physical disability existed she reached the of age before majority. evidence, hearing
After
the master found that Janette
was not disabled at
the time
she attained the
of
and
majority,
he denied support. Appellee excepted to the
legal
master’s
and factual conclusions. The circuit court
accepted
master’s factual finding
concerning
time
occurred,
that the disability
granted
but
appellee’s excep-
tion to the
legal
master’s
conclusion that the
sup-
Maryland
(1957,
1,
1. See
Repl.Vol.),
Legisla
Code
Article
change
age majority
tive
is
prospectively only
to be construed
1,
(from July
1973).
Monticello,
168,
Monticello v.
271 Md.
315 A.2d
520,
denied,
(1974)
cert.
U.S.
95 S.Ct.
Appellant jurisdiction because termi order jurisdiction Ap age majority. the children attained the nated once continuing juris focuses the lack pellant’s contention however, although equity, based complaint, diction. The order. The original support for modification jurisdic general equity here relies on the court’s complaint original continuing jurisdiction and not on its tion concedes Appellant essentially domestic relations case. 3-602(a) Proceedings section of the Courts and Judicial Article, Repl.Vol.),2grants Code *4 provides: 2. The section maintenance, Custody, guardianship, support of 3-602. "§ child. (a) jurisdic- equity.—A equity court of has Jurisdiction courts maintenance, legitimation, custody, guardianship, visi- over the tion exercising jurisdiction, the support a child. In its tation and may: court (3) charged support with the and mainte- Decide who shall be child, pendente permanently; of a lite or nance child; circuit court jurisdiction over a if the that term enlarged “child” has been statutorily include more persons than under the In majority. the instant case incapacitated issue before us is whether an adult child is treated on equal footing with minor child. Because we hold that will has an duty incapacitated adult child and such because an adult child is equal to be treated on with a footing minor parents is properly 3-602(a), enforceable under section (1974, Maryland Code 1984 Repl.Vol.), Cts. & Jud.Proc. Article. contends, and
Appellant
agrees,
the dissent
that
a disabled child into adulthood
continues because
disability prevents
child from ever becoming emanci-
reasoning
is
pated.
that because the
incapable
child is
emancipation,
minor
he remains a
obligation
continues until the condition changes. Appellant concedes
parental duty
to support exists in the situation
where the
incapacitation
continuing from
mi-
the child’s
but contends that
nority,
duty extends no further.
Appellant contends that once a child
emancipat-
becomes an
ed adult the
obligation
parental support cannot be re-
sumed. We shall refer to this
emancipation
view as the
Appellant supports
rationale.
these contentions
charac-
Smith,
355,
terizing Smith v.
227 Md.
(1962),
A.2d 862
pivotal
case on point,
facts,
as a case limited to its
which
a child incapacitated
involve
his
during
Essential-
minority.
ly,
appellant would draw a distinction
parents’
in the
support obligation
upon
based
the time that
the child’s
disability arose. We do not agree.
Borchert,
v.
(1946),
Borchert
185 Md.
this Court first addressed the parent’s issue duty to incompetent adult child. Court pointed out obligation no common law incompetent adult existed, children at id. 45 A.2d at but noted a Article, Repl.Vol.), Code Cts. & Jud.Proc. 3-602(a). *5 common law expand to tendency jurisdictions in other The A.2d at 465. duty, at recognize and to id. in the Court, however, chose to follow the trend absence duty. to enforce such a authority in this state statutory stated: 594-95, A.2d The at at 466-67. Court Id. for exist power be some to may desirable it “However son, his compelled support to which a father be by to fit make the failure has not seen to Legislature ... although designated it has so so a criminal offense do men- situations heretofore such failure in other domestic legislative of the omission branch tioned. The is an indication that of such a statute government it on placed by child is incapacitated failure minor the failure to footing a different from legislative action We cannot now without further child. invoked attempted to be hold that the divorce statute include than minor chil- enlarged case is other this dren.” did parental duty content to hold that a
Id. Court was of the upon of the law case based purposes exist at at 45 A.2d appellant. of the Id. concession ultimately such was holding view Court’s unenforceable, to determine whether it was not essential recognized Maryland. the legisla- Assembly responded
The General promptly Borchert, and in 1947 noted by tive omission the Court (1957, 1982 Code enacted what is now codified §27, Repl.Vol.), provides: Article statute “§ adult child. 97. Failure of destitute of means
Any person an adult child destitute who has or and unable to himself reason mental or to earn physical infirmity, possessed who is able provide necessary means sufficient such child with shelter, food, or clothing neglects care and who and, do, guilty refuses so to shall of a misdemeanor thereof, not more than upon conviction shall be fined $1,000.00 imprisoned for not more than one year, both.” *6 again
The
faced the issue in
Smith,
Court
Smith v.
355,
(1962).
Md.
In
the Court did not draw a distinction based on
The
held that
emancipation.
Court
enact-
legislative
ment
it clear
made
that
an
adult
incapacitated
equal
child was on
footing with
a minor child.
Although the incapac facts of involved a child Smith during itated his minority,3 significant it is that the Court opinion only ques- 3. The Court's in Smith indicates that the child in adult, incapacitated, opinion tion was an and was but the does not brief, expressly incapacitation indicate when his occurred. his son, appellant incapacitated son confuses with another nineteen old, years separate who was involved in a issue. We can infer from opinion during incapacitated that the case did a child involve his minority presented because the court did address not the issue here today. briefs in the confirm Smith case this inference. The adult facts, ration- in the recitation facts such not include did child was that the The fact opinion. its ale, holding of emancipa- is crucial minority his during incapacitated persuades fact crucial of this The absence rationale. tion interpretation intend the did that the Court us attribute would dissenting opinion appellant Smith Court apparent isIt opinion. Court’s its to base and declined rationale emancipation aware Borchert, supra, Further, reasoning. such holding on used rationale was emancipation noted that the Court 592, 45 A.2d at at 185 Md. jurisdictions, in other some cases *7 this ration- adopting resisted 465, apparently the Court yet faced twice was Thus, the Court where Maryland. ale it declined the rationale adopt situation perfect the with emancipation an not persuaded are to do so. We We case. to the Smith attributed properly can be rationale 97, Article section of language the rely plain instead Smith, parent hold that v. holding the Smith an so, has the means to do has who after commenced disability adult child whose incapacitated age majority. the she attained comparison with is reinforced This conclusion hand, i.e., the issue at the converse of dealing with statutes Md.Code parents. the child’s a child to §§ 104-110, Cum.Supp.), Repl.Vol., Parents,” this subtitle, treat “Destitute comprising 637 of the by Chapter first enacted subtitle duty. present its substantially into and was amended Acts of 1916 To facilitate the of 1939. 675 of the Acts by Chapter form Parents” “Destitute present comparison reader’s §§ subtitle, “Destitute 97-103, comprising subtitle in parallel in subtitles Children,” have set forth two we psycho- epilepsy and had additional at six was afflicted with son 9, Smith, supra. Appellant’s Brief at E. logical problems. Appendix to theory Also, argued appellee in Smith we note that incapacitated child is because obligation continues 11-13, Appellee at becoming emancipated. Brief of incapable Smith, supra. an appendix opinion to this where wé have italics supplied “parent” to the words and “child.” This comparison makes immediately apparent that the General Assembly essentially tracked the then existing “Destitute Parents” when subtitle responded Borchert with “Destitute Children” Chapter subtitle enacted 113 of the Acts of 1947. Sec- tions dealing 97-103 with destitute adult children are obvi- §§ 104-110 ously dealing converse with destitute parents. foregoing significant its relevance to interpreta phrase person child,”
tion of the who has an “[a]ny adult § phrase’s companion which introduces 97. That in present § 104 is the phrase, “[a]ny person having parent or § parents.” comparison It is clear from the 97 with § inway 104 and from the which the words “parent” employed “child” are both subtitles as a whole that the “person” use of the verb “to have” with as its subject and parent parents” either “an adult child” or “a or as its objects relationship parent describes and child. The child,” has an adult “person who referred to in is a who stands in the person parent relation of to the “adult child.” The has a person “parent parents” who stands in the relation of child to the parents. *8 § Thus, term, 97’s use of the “person,” is not limited to one “care, who has the custody possession” and of the adult § child as those terms are used 96 and as suggested by Indeed, the dissent.4 Chapter when 113 of the Acts of 1947 § brought 97 into the Maryland Code the Act was described 4. Art. provides: 96§ "Desertion or abandonment of child. care, Any person having custody possession any the or of eighteen years age, under of who shall desert or abandon such child public charge, with the intent it shall become a or without making provision proper support for its and maintenance for a period years responsible person of at least three with some or infants, duly institution authorized to take and care for shall be ” guilty of a misdemeanor .... Repl.Vol.). Code of adult “relating support to destitute title as the its one
by by parents.” their children relating the statutes difference between significant
One of and financially parents destitute support able by to the children, of their enactment at the time adult disabled desti- support to the of relating the subtitle then children financially able by disabled their parents tute and to the latter limited introductory the section of was is that parents____” parent ... a having adult “[a]ny person § (1939), By Art. added.) See Md.Code (Emphasis limitation, “adult,” of 1952 was 36 of the Acts Chapter presently from that section which is deleted support 104 to expanded impose deletion to their their minor children addition parents destitute on instance, children, when, in either the children were adult capable expansion by This 1952 financially doing of so. dealing with of Assembly statute General succeeding generation strongly generation by preceding dealing parallel indicates the 1947 statute with adults of the generation incapacitated preceding should forced into a restricted succeeding generation not be “adult child unable plain meaning ... construction. infirmi- physical himself reason of mental limited exclusively includes Section 97 is not ty” Janette. age majori- child who has reached chronologically minority during from a incurred ty, disability who suffers extending uninterruptedly majority, beyond matter, not, legal has technical been thereby and who emancipated. in Art. 27 which
There are other than those statutes and our impose §§ 97-103 be tested scope interpretation if policy, effort to a consistent them in an discern against dealing those with the such statutes include any. Currently paternity, in state with expense patients hospitals, §27, present marital At the time property. statutes seem hospital enacted the reimbursement *9 previously but incapacitated, been construed include have emancipated, adult children within the parents’ support duty. The later enacted and marital paternity property statutes reflect the same policy.
In 1947 obligations the care of reimburse for inmates in state psychiatric hospitals and in chronic disease hospi- tals were imposed by (1989, Md.Code 1947 Cum.Supp.), Art. 59, title, Insane,” subtitle, “Lunatics “Lunatic or Insane § Paupers.” In subtitle 4 placed on “a ____” liability father mother, for a daughter both son or With respect (1947 to chronic disease hospitals, Md.Code Supp.), Art. “Health,” 528 provided that “there shall be patient collected from family or his as much of the actual cost of maintenance as reasonably possible ....” Chapter 509 Acts of 1949 expanded by this theme providing for investigation of the financial condition “persons chargeable” patient’s legally support. with the (1951), 562(a). See Md.Code These provisions for reimbursement of and chronic psychiatric hospital disease costs were parents construed to to the apply of adult children. This is demonstrated the amendments to both statutes Chapter effected 164 of the Acts of 1964 which limited parental obligation to make reimbursement to- ward the cost rendered or daughter of care to a son to cases where the children under twenty-one years were age. the title 164 the Chapter Assembly General stated its purpose parents to be “to remove the liability for pay- children____” ment toward the cost care of their adult §§ provisions (1982), These today 16-101(f)(2) are Md.Code 16-102(a) of the Health General Article which incorpo- rate present majority. While policy was changed reimbursement, respect 1964 with to health care no comparable change was or has since been made to the dependent adult children subtitle of Art. 27.
Disputed paternity and the obligation support illegiti- mate litigated children were in 1947 under former Art. title, Fornication,” “Bastardy and of Md.Code A Cum.Supp.). procedure determining civil paternity enforcing support by Chapter substituted 722 of
615 (1957, Repl.Vol., Acts of 1963. See Md.Code 1983 §§ 66H(a)(l) 66A to 66P. Section Cum.Supp.), order the equity may court declared provides sum pay father to a certain and mainte- nance of the child dies, age
“until the child reaches the of 18 marries years, first self-supporting, becomes whichever event occurs. However, if having years age, reached 18 of is destitute of means and unable to himself physical infirmity, reason of mental or the court require during to be made or payments continued continuance of the mental or physical infirmity.” language necessarily applies We do not believe that this only incapacity prior reaching eigh- when the occurred First, teen of reached 18 years age. expression “having is to a nineteen old as well as years age” applicable year eighteen legislature an old. Had the intended to year rationale, implement they could have sim- emancipation reaching stated instead: ply clearly “upon years Further, age____” in our this is not limited provision view to a situation only continuing incapacitation because court to legislature power continuing did not limit the of the rather, that the court could existing payments, provided but require “payments (Emphasis to be made continued.” added.)
The most recent a expression by Assembly General somewhat area Marital analogous Property is under the §§ Act, Repl.Vol.), Md.Code 3-6A-01 to 3-6A-08 Courts and Judicial Article. That stat- Proceedings ute the term employs defining “family “minor child” home” which is the in 3-6A- subject special provisions “ ‘[mjinor 06. Under the Marital Act a child’ Property who, includes a child 18 or older years because upon mental or is physical disability, dependent parent.” § 3-6A-01(d). again, Once the General has not Assembly any indicated intention to restrict this definition to a child is unemancipated continuing disability. who because sum, analogous statutes are consistent most of the “Destitute Children” subtitle interpretation with our event, fail to any 27. In these statutes reflect any of Art. to our policy contrary and consistent which definite otherwise might justify placing and which interpretation plain language on the of Art. restrictive construction very §27, 97. Institute for Continuing also note that the
We Inc., Lawyers, Planning Professional Education of Estate *11 332-333 Handicapped Dependents Families that transfers to a (1983) practitioners advises they so as are gifts long child are not taxable generally the child. legal obligation in satisfaction of a Then, 355, 227 Md. 176 A.2d Smith, citing supra, Smith v. 27, Maryland, that 862 and Art. 97 it is stated “[i]n of obligation child do have an parents of an adult disabled to the adult support,” limiting without statement disability. continuing unemancipated who because in case in the dissent the instant Finally, consideration of emotional presented hypotheti- we are with an extreme and decides cal to But this Court support appellant’s view. cases, imagine hypotheticals. easily actual We could eman- results under an hypothetical would have absurd instance, cipation rationale For a man’s two approach. 18, one are daughters, age age injured the other paralyzed daughter in the same car The younger accident. can rely indefinitely, yet eigh- on her father’s support teen old year daughter right support. reject has no We inequitable appel- from the results that could follow approach. lant’s an actual case and prefer We to await it, decide time. distinguish it if at that appropriate,
In the instant the plight case we are concerned with Sininger. majority Janette We believe that the vast parents married support mentally would care and disabled Indeed, in twenty-three year daughter. old this case Jan ette’s mother has taken into her care to care for Janette her; Siningers it would be no different if the remained made to suffer a child should not be rights married. Washburn, Sup- Post-Majority her divorce. parents’ from (1971). Dad, Temp.L.Q. Dad, Poor port: Oh so suffer. would approach, Janette appellant’s Under emancipa- difficulty illustrates the case Janette’s dis- mental, physical rather than rationale cases tion often mental disabilities injuries, ability. physical Unlike case traced in the instant The evidence over time. develop childhood. into her disability mental roots of Janette’s along, all did difficulties, present Yet, though her mental finding, master’s according to the disabling, not become she Although age majority. passed after she until obliga- any is freed from her father along, suffered all has found that her the master her tion to because twenty-first after her her until sufferings did not disable imagine we can rationale emancipation birthday. Under olds, incapaci- one incapacitated, both year twenty-three two years the other for six (after majority), years tated for five is that one is entitled (before The result majority). chosen for arbitrary age is not. The and the other policy the clear should not override majority language by legislature expressed plain inequity accept inconsistency cannot 97. We *12 rationale as emancipation applying follow from would urged by appellant.
Therefore,
the instant case is within the
hold that
we
(1962);5
Smith, 227 Md.
Appellee also contended on her that the cross-appeal awarded, set, sum and the by retroactive date the circuit court clearly Upon were erroneous. reviewing the consider master, ations and by decisions made the domestic relations court, the circuit accepted by we cannot say findings were erroneous. clearly THE
JUDGMENT OF CIRCUIT COURT FOR MONT- GOMERY AFFIRMED. THE COUNTY TWO-THIRDS OF BE COSTS TO PAID BY APPEL- APPELLANT/CROSS LEE; BE ONE-THIRD OF THE COSTS TO PAID BY APPELLEE/CROSS-APPELLANT.
APPENDIX Destitute Children Destitute Parents parent Failure of sup- Failure of children to (cid:127) destitute adult child. port parents. destitute Any person who Any person has an- adult having parent or child destitute of parents means and State, unable par- within this such to mental or himself parents reason of being ent or destitute of physical infirmity, who is means of subsistence and unable possessed of or able to earn means age, either reason of old infirmi- provide sufficient ty herself, such or illness to himself or necessary shelter, food, with and possessed care who is of or able clothing neglects and who to earn such sary shelter, food, provide means sufficient to do, guilty refuses so to misdemeanor shall be parents with neces- and, upon *13 conviction care and cloth- thereof, shall ing, do, be fined not neglects more and or refuses so to $1,000.00 imprisoned year, than shall, or upon for thereof, conviction not more than one or both. guilty misdemeanor, be deemed of a and, upon any conviction in court of having original jurisdic- the State tion, punished by shall be a fine not exceeding imprisonment $500.00 or in the House of Correc- year, tion for not more than one or both, in the discretion of the court. § § child; by procedure by parent; procedure 98. Oath 105. Oath against parent. against child. (a) (a) any any parent Whenever child destitute Whenever desti- means subsistence and unable tute of means of subsistence and physi- age, either cal shall, reason of mental or unable either reason of old infirmity infirmity himself illness to him- or writing writing in under filed in oath self or herself shall un- (the Attorney awith State’s term der oath filed with a State’s Attor- (the Attorney ney Attorney in State’s subtitle includes as used this term State’s deputy deputy State’s At- used in this State’s includes subtitle torney Attorney Attorney or assistant or State’s assistant acting authority given by acting Attorney under the State’s thority given by under au- Attorney) parent State’s of earn means sufficient accuse his the State’s Attor- being possessed ney) being possessed of or able to accuse his her adult or provide of or able to earn shelter, food, necessary provide him with means sufficient such clothing shelter, necessary care and and has failed to so, food, Attorney may clothing do the State’s re- care and and has quire so, par- Attorney witnesses other than the failed to do may require the State’s appear ent accused to him before witnesses other than appear for such examination of witnesses as the child accused to him for such examination of wit- before may public be deemed the interest. may After such examination nesses as public be deemed in the inquiry Attorney may or the State’s interest. After such exami- inquiry file an information in the circuit nation or ney may the State’s Attor- county against court of the the ac- file an information parent charging county against cused the offense of him with circuit court of the nonsupport. charging the accused child him nonsupport. with the offense of (b) Nothing section, (b) Nothing this section, how- in this how- ever, prevent ever, shall the State’s prevent At- shall the State’s At- torney, fit, if he sees torney, fit, from submit- if he sees from submit- ting any nonsupport such ting any case to nonsupport such case to grand jury, as in other grand criminal jury, as in other criminal cases, may cases, for such action as it for such action as it proper, deem proceeding instead of proper, deem by way proceeding instead of by way of information. of information. Inquiry by Attorney; State’s Inquiry by State’s Attor- subpoena, disobedience to etc. ney; disobedience to sub- poena, etc. Attorney may, The State’s Attorney may, State’s for the purpose facilitating handling purpose facilitating handling cases, subpoenas of such summonses issue cases, and subpoenas such issue requiring personal requiring personal summonses firm, any person, attendance of any person, firm, cor- attendance of poration cor- poration association, or association, other than or other than parent, give the accused testimo- give testimony accused ny in connection with such examina- in connection with such examina- inquiry, requiring pro- tion or duction or inquiry, tion requiring pro- any documentary and all any duction of documentary and all matter in connection with such matter in ex- connection with such ex- inquiry. amination or The State’s inquiry. amination or The State’s Attorney may also administer Attorney may oaths also administer oaths affirmations, affirmations, examine witness- examine witness- es and receive evidence. In the es and receive evidence. In case of *14 subpoena or subpoena disobedience to a mons, sum- to a case of disobedience or contumacy summons, contumacy a or the of a wit- or the of him, him, appearing appearing ness before the before the witness may Attorney may Attorney invoke the aid invoke the aid State’s State’s county; of the county; of the circuit court and the the court of the of and the court an order circuit may thereupon may thereupon issue court issue firm, firm, person, person, requiring the requiring the an order corporation association, association, obey obey to corporation or or to subpoena and subpoena the give testimony or summons to the give testimony or summons and to produce any any produce to and to and documentary documentary matter deemed matter and all and all deemed necessary by investigation any person, firm, court for said such necessary by said court for such investigation or inquiry. inquiry. case In case or corporation firm, corporation or as- any person, or as- obey obey to such an to such an sociation refuse order of the court sociation refuse after the same after order court the same witness, witness, on the has been on the served has been served such firm, corporation firm, person, corporation such or person, or deemed in con- association shall be tempt be deemed in con- association shall pun- pun- of shall be tempt and shall court and of court be therefor, therefor, subject right subject right to the ished to the ished to after provided appeal or appeal provided as here- now or here- now as regulated. regulated. after § § parent 100. Notice to accused 107. by Notice to child accused by information. information. parent accused or about The child accused or about to be nonsupport by be accused of nonsupport by an in- accused of an infor- by formation filed a by State’s attor- mation filed attorney State’s ney shall notified be the State’s shall be notified the State’s at- attorney writing (1) in torney (1) of: writing the time of: the time place hearing and place of hearing exami- and nation in the exami- inquiry, (2) nation right (2) or inquiry, right or parent appear such at such hear- such appear child to at such hear- ings produce ings and to produce such evidence and to such evidence touching upon or information or investigation touching upon said information said investigation may desire, as he may desire, as he (3) right parent (3) such right to testi- testify such child to fy in his own behalf before the in his own behalf before the State’s attorney, provided State’s attorney, provided he noti- he notifies the attorney fies the State’s attorney his de- State’s of his desire to do signs sire to do so and signs a written so and a written waiver to the any waiver to the effect that any testimony testi- effect that which he mony may give may he may give which may against be used be him against used him in the event that in the event he any is tried on any he is tried on information or information be may or indictment that may brought indictment that brought against him. against him. Payments support; for Payments support; for bond. bond. parent Whenever accused of Whenever a child accused of non- nonsupport, proceedings support, after proceedings be- after before a (cid:127) attorney, fore a State’s shall con- State’s attorney, shall consent writing, sent thereto writing, whenev- thereto in up- whenever upon give er failure such give consent on failure to such consent such parent such shall guilty, be found child guilty, shall be found the court shall issue an order di- court shall directing issue an order recting parent: such such child: (1) pay maintenance for the To maintenance (1) pay To parent, or support of said pay or to support of said and an county or equal to the pay sum county or to equal to the sum Baltimore, the case City Baltimore, case to may as the City of public be, parent be a if said public be, child be if said par- during said charge, the life of during life of said charge, possessed is or until possessed of ent of until the child or other sup- adequate means of support. other adequate means of *15 paid may be to be port. The sum may agreed paid be to be The sum proceedings upon, agreed if consent proceedings be consent upon, had, if agree- had, of in the absence agree- or be absence in the or may ment, fix, court as the may such sum ment, court as the sum such regard circum- to the due with regard circum- fix, to the with due child, and of the accused parent, and stances accused of the stances (2) (2) give give To bond to the State of To bond to the State of penalty Maryland penalty in such as the in such as the fix, fix, may good good court cient ing and suffi- court cient with and suffi- securities, securities, conditioned on mak- conditioned on mak- payments required by ing payments required by the the the the order, order, any any court’s or amendments court’s or amendments give give thereof. Failure to such bond thereof. Failure to such bond punished by punished by in in shall be commitment shall be commitment jail given, jail the not until said bond be but the until said bond be exceeding or the house of correction exceeding year. given, one but not year. one § § parent proba- proba- 102. Release of on 109. Release child on tion; tion; recognizance. recognizance. imposing punish- imposing punish- Instead of the Instead of the bond, bond, give give ment for failure to the ment for failure to the may, may, court due in its discretion and'with court in its discretion and with regard regard ability ability to the financial due of the accused to the financial child, parent, of the accused release such release such parent custody probation custody probation from on from child for period during period during for the which the ac- the shall be ments, which the accused required required pay- cused shall be to make make payments, upon recognizance entering upon entering his into a his or her into recognizance in such sum as the a court shall in such sum as the direct, direct, court shall securities. The condition of the re- cognizance with or without with or without securities. The condition of the re- cognizance shall if be such that shall be such that if the parent per- per- accused sonal ever ordered to do so within the shall make his accused child shall make his sonal appearance appearance at the court when- at the court when- ever ordered to do so within the period during period during which he shall re- be which he shall be re- quired payments, quired payments, to make such and to make such and comply comply shall further of the with the terms shall further with the terms order, order, any subsequent any subsequent or of or of thereof, thereof, modification cognizance then the re- modification then the re- void, void, cognizance shall be otherwise shall be otherwise of full force If and effect. of full force and effect. If the by court be satisfied information court be satisfied information proof proof and due under oath that the and due under oath that the accused has violated the terms of accused has violated the terms of order, may pro- order, may pro- such ceed to forthwith such ceed to it forthwith impose impose sentence under the sentence under the original original give give convictionof failure to conviction of failure to bond. In the case forfeiture of a bond. In the case forfeiture of a recognizance recognizance enforcement enforcement by execution, execution, thereof the sum re- thereof the sum re- may, covered in the may, discretion of covered the discretion of court, paid, court, the part, be or in paid, whole be whole or in county part, the child or to parent county to the or to the City Baltimore, to or City Baltimore, as the toor as the may be, public may be, case if the child'be a parent case if the be a charge. public charge. order, bond, order, bond, Release from from Release etc. etc. Upon Upon the death of parent the child or the death of the or parent, upon child, the ing or upon parent secur- the ing or secur- adequate sup- other adequate means of sup- other means port, upon parent becoming or port, upon becoming or the child losing possession unable to earn of means sufficient to losing possession unable to earn provide sup- provide sup- of means sufficient to port port parent, for the the child and his sureties be shall released from his sureties shall released from any any the terms of court ren- order the terms of court ren- order any recogni- any dered and of zance bond or recogni- dered and of bond or given. given. zance *16 ORTH, dissenting. Judge, Sininger, the father of Jannette Sininger, A.
Donald from appeal review on his for question this presents Montgomery Court entered the Circuit judgment County: enforceable duty has a civil parent
Whether emancipated, adult his once equity court of majority experi- attaining age after daughter who disability? mental ences holding question by this answer majority
The so, has a do has the means to who com- disability child whose incapacitated majority. age she attained menced after an adult concluding parental that “the regardless in this case child existed incapacitated a classic exam- majority provide emancipation,” child’s interpreta- in the guise judicial judicial legislation ple function Legislature’s usurpation The tion. Court’s law is without holding to a which leads result; it is case to reach a holding strains practicality. apparent This is from law oriented. rather than oriented case we are the instant confession majority’s “[i]n Sininger.” While of Jannette plight concerned with the commendable, holding reflects what the majority concern is. actually than what be rather feel the law should they applications practical eyes close their majority assume a 66 example, For this case. holding beyond their The father worked old son. year father and a 45 old year Being of 65. he retired at faithfully until hard *17 he had saved in life-style, his and conservative thrifty comfort. in relative remaining years his enough spend as a son, ne’er-do-well even his supported father had at which minor, age majority, attained the until the child life of crime. on a home and embarked time the son fled the thereafter, thoroughly dissolute and In and out of jail tree, and as a into a character, he drove his car age at He had paralyzed. he was he suffered injuries result of the in attempted get not seen or touch with his father for and, in fact had no years, over 20 evidenced concern whatso- Now, ever his father’s welfare. destitute of means about and unable to himself reason of his physical he calls his father to him. infirmity, upon Under so, father majority’s holding, duty the the has the to do and if he in he is duty criminally civilly. fails that liable also, likelihood, responsible The father would all I parties third who furnished son with necessaries. cannot conceive that such a result was contemplated by Legislature. The characterize this as majority hypothetical They they “prefer extreme and emotional. declare that it, it, an actual case and decide if distinguish await It appropriate, my hypothetical at that time.” is true that present invokes none of the or concern with sympathy in the But respect to the unfortunate woman instant case. holding permits By of the no distinction. majority live, rule a for as as he shall faces majority’s parent, long legal duty that he will have the his possibility him, prior adult child of the child’s upon regardless thrust support, upon of care and invoked independence. the child’s only during of the child is not active birth long remains dormant thereafter so minority, but awakened, and the child are alive. The ado, incapacitated. no further at time the child becomes any that, Bumble, supposes In the of Mr. “If the law words that ass, recognized has law is a idiot.” This Court “[o]ne of stat- of the understood canons for the construction well consequences.” that should avoid utes is courts absurd 181, 200, 473 281, 299 Md. Special Re No. Investigation me, (1984). majority To results holding A.2d I cannot it. consequences, accept absurd I explain Before I think that the law is what why be, no would have it I note that the found majority majority cross-appeal need to address the mother’s contention on finding circuit court was erroneous clearly Jannette was not disabled until after she reached the
625 between “The distinction say: majority The majority.1 illness and when the illness occurs the onset when For holding.” under our irrelevant disabling is becomes necessary I find infra, apparent will be reasons which Relations Master The Domestic the contention. address found hearing petition plenary conducted the who not dis him that Jannette was evidence before from the The majority. age attained the time she at abled “[Tjhere It said: determination. accepted this court equity the Master’s find evidence sufficient credible the time she in fact disabled at not that she was ing of fact on findings From the years.” of 21 attained I report in Master’s am set out adduced as the evidence credi that there was the Chancellor agreement in full Therefore, finding. the Master’s evidence to ble judgment. in that clearly erroneous the court was Md.Rule 886. held to be the they what have state that majority equity general under the “is enforceable
parental
3-602(a) of the
court under section
of the circuit
jurisdiction
Article,
Code”
Proceedings
and Judicial
Courts
have time
of this Court
opinions
RepLYol.).
1984
declara-
statutory
clear that the
made
again
perfectly
jurisdic-
court of
has
equity
tion set out
this section—“[a]
to minor
child”—applies only
of a
the ... support
tion over
379,
Price, 232 Md.
said in Price v.
children. This Court
(1963)
“declaratory
the statute is
384,
A.2d 99
” (Emphasis
over minors....
power
equity
inherent
mi-
concerning
referred to as
The statute
supplied).
Stancill, 286 Md.
v.
recently
as Stancill
nors
to the cases
533-534,
(1979).
addition
“There
common
obligation
was no
law
to
children;
incompetent
neither
there any
was
to support
children____”
Borchert,
586,
infant
Borchert v.
185 Md.
590,
(1946).
facts. The case arose
divorce
concerned
to amend an order
child
included
petition
a
a
granting
decree
a divorce
vinculo matrimonii. At the
a
shortly
child was minor and
thereaft-
time of
order the
care,
having
custody
possession
any
"Any person
child
eighteen
age,
years of
who shall desert or abandon such child
under
charge,
public
it shall become a
or without
with the intent
making
period
provision
proper
and maintenance for a
for its
responsible person
duly
years
some
of at least three
institution
infants,
guilty
and care for
shall be
of a misde-
authorized
take
Repl.Vol.)
Code
meanor....”
er became totally and permanently incapacitated. He
reached the
some 15
majority
years later and contin-
ued to
helpless
mother,
be a
invalid. The
who had custody,
could not properly provide
for the
father,
but
man of
(he
comfortable means
owned valuable property and
was the recipient
income),
of a large
was fully
to do
able
so.
petition
mother’s
asked that the father be ordered to
pay
reasonable and adequate sum for the support of the
long
as it continued under the disability.
The case not only brought into the
open
inadequacies
of the Maryland law on the matter but spotlighted those
inadequacies. The Court determined that
if
even
there
were a duty on a father
an incapacitated adult
child, there was no
provision
the Maryland
law which
it could be enforced. The Court noted that there was no
statute making the
perform
failure to
the conceded duty a
criminal offense. And neither the statute
bestowing
court4 of equity original jurisdiction over the support of
children5 nor the statute empowering the
court
an a
mensa divorce action to order who shall
charged
with the
a child was sufficient to enable enforcement of
such duty.
statutes,
Those
observed,
the Court
referred to
“children” and “unless
attempt
we
judicial legislation that
word must be construed as meaning children in the ordinary
sense; that is those who have not reached their majority.”
Borchert,
However desirable it may be for some power to exist by which a father may compelled be to support son, his under the circumstances set out in these proceedings, Legislature has not seen fit to make the failure to do aso 16, Maryland (1939) 41; 4. Then Code Maryland Art. § now Code (1973, Repl.Vol.) 1984 3-602 Proceedings § of the Courts and Judicial Article. (1939) 16, 85; Maryland 5. Then Code Maryland Art. now Code (1957, 16, Repl.Vol.) 1981 Art.
629 designated it such fail- although has so criminal offense by in domestic situations.... omission ure other of such a statute is government legislative branch an support incapacitated that the failure to an indication footing it the failure is on a different from placed child minor now further child. We cannot without support to attempted action hold that the divorce statute legislative to enlarged in case is include other than to invoked this be A.2d 594-595, Id. minor children. at the Bill Complaint held that the demurrer to The Court the order overrul- been sustained reversed should have it. ing responded plain to the Assembly promptly
The General 113, 1947, in It enacted Acts Ch. now suggestion Borchert. 27, Repl.Yol.) out in Code set § 97. The statute reads: who has an adult child destitute means
Any person himself reason of mental or unable of or infirmity, possessed able earn physical who necessary such child provide means sufficient with shelter, food, or clothing neglects care and and who do, and, of a misdemeanor guilty refuses so to shall be thereof, fined shall not more than upon conviction $1,000.00 imprisoned year, more than one both. Smith, Md. 176 A.2d the Court
In Smith v. concerned of a father to again was incapacitated his destitute adult child. matter arose appeal, the father permanent an action for On alimony. decree he challenged an order included incapacitated child. The thought his adult Court after opportunity that “at the first the Borchert significant taken.” legislative decision further action was fact passage at “The A.2d 862. Smith [the 1947] act,” declared, legislative “is a clear indication of Court incapacitated place intent failure *22 630 equal
an footing with failure to a minor child.” Id. therefore, In “opinion, the Court’s the Chancellor was justi- fied this recognizing legislative policy awarding support payments child, disabled adult whom the testimony showed was destitute of othér means mainte- nance.” Id. any duty
Borchert made clear that on part of a parent incapacitated, destitute, an adult child would have to be under the authority a statute. Smith certainly stands for the proposition that an equity court a domestic parent case order a to support such a imposed as that statute.6 insofar Smith, however, does not the scope define and extent of the duty the statute on a imposes parent. urges father that the Smith did not holding encom
pass the situation in which the child incapacitated became age after attaining words, majority. other he argues that the duty applied only when the incapacity occurred before the child was emancipated. The rationale for this view is that if an incapacitated child reaches the majority thereby is not emancipated but remains a minor. The majority dismiss this contention on ground that Smith did not base its on holding such As I reasoning. Smith, read no Court said more in its brief treatment of this matter than that the court equity recognize could legislative inherent in policy the statute legis this lative was to policy place failure to support incapacitated an child an equal footing with to support failure a minor child. simply Smith does express position on whether a parental incapacitated destitute adult only arises when the incapacity occurs before the child point 6. We out that Ch. comprehen- Acts also established a whereby every incapacitated sive scheme destitute child could obtain through Attorney. from its State’s Code Repl.VoL, also, Cum.Supp.) Art. 98-103. See §§ §§ 90-93.
631 though the is invoked even emancipated or whether is after The factual incapacity emancipation. occurred the decided, circumstances, however, opinion on which that was occurred it that the of the child before incapacity were out, majority age majority. point the As the attained it from opinion, the was evident this was clear from but certainly The was briefs submitted. Smith Court the opinion me that the of it. It to that a view aware seems it to more no further the facts do is required than went sound, in the a stated than notion position, absence of that short, holding. I in its opinion beyond went facts Smith, in its brief treatment very do not believe that But have it say. teaches would subject, majority what does, I it is I would renounce wrong, if it think that further that it not serve the basis ado so without event, turn, I majority finally law. In as the any more bad clear, do, question As Borchert makes to of the statute.7 only upon regard can be resolved due here Borchert, in seen, have which supra, opinion As we statute, made clear perfectly the enactment of prompted the child in case occurred before that the incapacity This child attained the circumstance majority. therefore, was, Legislature. available to the readily remedy deficiency in the law body desire of to in light of that factual Borchert discovered situation, occurring to an after a child incapacity not as emancipated. had been jurisdictions help. They in other are of are decided on the
7. Cases
no
law,
applicable Maryland,
Borchert
common
which under
is not
statutes,
authority except
peculiar
upon no
under their own
legal
raising
obligation
obligation.
Even
of a
status of a
moral
diversity
authority
great
opinion.
those
within
areas of
there is
Decision,
Annot.,
(1948);
1
Rela-
See
A.L.R.2d 910
Recent
Domestic
Child,
Support—Parental Duty Support a Subnormal
48
tions—Child
Child,
Am.Jur.2d,
(1977);
361
Parent and
102-103
§§
Miss.L.J.
59
Comment,
(1971);
Duty
Support
Parental
Disabled Adult Chil-
Note,
dren,
(1960);
Family Law—Duty
De Paul
L.Rev. 245
Case
Child,
(1961).
Support
Parent to
Adult
Drake L.Rev.
an
Section 97 of Article 27 imposes the duty incapacitated destitute adult child on “[a]ny person who has
...” the child. The designation of the person chargeable
plain, unambiguous and unequivocal. The
restricted,
but,
is not
to parents,
as the statute clearly
says,
“any person.” So when the statute
speaks
terms
of one who “has” a child it is not referring only to one who
“has a child” in the
person
sense that a
is the child’s natural
father or mother. Since this Court has determined that the
legislative intent in enacting
97 was to place “failure to
*24
support an incapacitated child on equal footing with failure
child,”
Smith,
to
a minor
360,
This leads to matter of emancipation.8 imposes law a certain bondage upon minor chil- dren, but it also permits release release, therefrom. Such which sets the child free from legal subjection gives and it the right labor for itself and collect and control its own is wages, called “emancipation.”
A child is emancipated, course, upon arriving at the age of majority, although where, on account of some infirmity of mind or body him rendering incapable of himself, taking care of he compelled is to remain parent. Emancipation of this kind is effected opera- § tion of law. 59 Am.Jur.2d 93 at 191. history Clark, aFor of the see H. emancipation doctrine of The Law Domestic Relations in the United States 240-241 (1968).
633 172, Monticello, 168, 315 A.2d 271 Md. v. Monticello See 145, 42 L.Ed.2d denied, 95 S.Ct. 419 U.S. cert. Dad, Washburn, Oh, Poor Support: (1974); Post-Majority (1971). A minor xxxxxxxx 344-346 Dad, Temp.L.Q. parents. its and control of authority is to the subject child natural guardians are the joint “The father and mother severally charged are and jointly child and ... their [minor] nurture, care, welfare and education. support, with its ” and duties.... Md.Code equal powers shall have They 72A, A is entitled to Repl.Yol.) § 2. The of minor child. Id. earnings and the services and the parents as to both legal liabilities rights however, upon emancipation. extinguished, are child relationship A 93 at 191-192. severance Am.Jur.2d of a coming minor parents between capable taking care himself child who services, to the child’s parent’s claim relinquishes time and conferring right on him his own thus from of care parents It frees the their earnings. control, authority. custody, and the child from their parents’ legal It terminates the Id. child.... *25 reaching of emancipated by age majori- completely
Once presump- sufficient to overcome the ty impediment with no coming age, the emancipation arising by tion of of adult relapse pupilage except by cannot into child thereafter consent, of and child. J. express implied, Cf, Areen, Law, (1978). 847-848 Family emancipated completely
It be Jannette was Clark, H. attained of The majority. she See before § States, 8.3 Law Domestic Relations in the United of (1968). event, emancipat- was any clearly completely In she obligation her father to upon becoming age. ed The the terms of the decree Jannette was then ended by court formally and later terminated was enough earned employed order. and She herself; course, parents, her had no claim on her earn- ings or She separate services. established domicile from parent. that of enjoyed either She to enter power into and binding short, contracts she went conveyances. her adult, own an way as free and clear of any parental control and authority.
The mere fact that Jannette became subsequently dis- change abled did not this relationship with her father. He could her, not force his authority control on dictate reside, where is, she was or otherwise run life. her That reason, she did “de-emancipated” not become of her did disability; thereby relapse she into pupilage. Her certainly her, father had a obligation moral to care for but he legal words, had no do obligation to so. In other as father, between and her Jannette father did not fit into “person category who has adult child” within § the contemplation of § seeks majority 3-6A-01(d) of the Courts
and Judicial Article wherein Proceedings “minor child” is defined including years who, “a child 18 of age or older because of mental or physical is disability, dependent upon a parent.” They point out that the definition does not recognize a distinction based I emancipation. do not statute, this in 1978, enacted believe and concerned with an entirely different matter—the distribution mari- tal in divorce property any legisla- annulment—reflects § tive intent respect to the enactment of thirty-three prior. utter years connection, lack of even § by inference, of 3-6A-01(d) readily apparent when considered in the light 3-6A-06(a). That section explains that authority the court regarding the marital property “shall exercised permit the children live in family continue to the environment and *26 is community which familiar to them permit and to the continued occupancy of the family home and possession and use of use family personal property spouse by a with in that has a need to live minor child who of a custody home.” of the thinking of the indication appropriate
A more is found the of children respect support Legislature the Code. Md. Maryland Article of Health-General the § of the Health-Gener (1982, Cum.Supp.) 16-102 Code of this State to policy is the al Article announces “[i]t and, provid the extent recipient of services each obligate recipient for the title, legally responsible those ed in this received able, the cost of care that is for pay, financially if for chargeable A the person of services.” recipient the responsible relative....” includes “[a]ny cost of services § 16-101(c)(l). encompasses A relative” “responsible “[t]he minor____” who is a recipient of a of services parents the 16-101(f)(2). (Emphasis Legislature Thus supplied). parent pay for has not seen fit make chargeable, an child. would care of adult however, of an adult child who was for the care age majority, the time it attained the at incapacitated minor, status of a circumstance it would retain the emancipation having been rebutted presumption I read precisely This is how incapacity. the fact § 97. when holding of the obvious incongruity majority’s Health provisions light in the above
considered view, parents have majority Article. Under of a minor also support, only care and but regardless incapacitated destitute adult an if of an But the care and emancipation. child’s State, provided by child is destitute adult incapacitated duty imposed parents no legal then there is " care, 'Recipient means individual who receives of services’ treatment, maintenance, facility program in a or that is wholly partly by Department.” operated or funded 16-101(e)(l) Cum.Supp.) of the Health-General Code Article. *27 reimburse the State. The obligation of parents to reim- burse the State is only respect to a minor child.
Statutory provisions regarding paternity of a child born out of wedlock also shed light on the Legislature’s policy as to child support. The man declared to be the father may be ordered by the equity court to a certain pay sum for the support and maintenance of the child
until the child reaches the age dies, of 18 years, marries or becomes self-supporting, whichever event first occurs. However, if the having reached years of age, is destitute of means and unable to himself reason of mental or physical infirmity, court may require payments be made or continued during the continuance of the mental or physical infirmity. Md.Code 1981 Repl.Yol.) 66H(a)(l). provision This clearly recognizes emancipation as serving extinguish the duty provide support. And language used for the continuance payments after the child has attained the of majority—“if the child having years reached 18 of age, is destitute of means and [incapaci- tated]”—patently applies only when the incapacity occurred prior to reaching years of age.
The majority’s attempt to. distinguish the health and paternity statutes which I have referred to is far from persuasive. I find the majority’s view to be more self-serv- ing than logical. Contrary assertions, to' their I think, for out, reasons herein set those statutes and the statute here reflect a consistent legislative policy, namely, that there parental is no duty to support a destitute adult child who becomes incapacitated after he has been emanci- pated.
It is my opinion that the Master below was correct and that the Chancellor was wrong. I would reverse the judgment of the Circuit Court for Montgomery County.
I am authorized to state that Judge Chief MURPHY and Judge COLE concur the views here expressed.