delivered the opinion of the Court.
This case is but one of the matters generated by the domestic difficulties of Dr. Arthur O. Wooddy, here the appellee, and Mrs. Louise R. Wooddy, here the appellant. The rift culminated in a bitterly contested divorce suit in 1868 which was concluded by the entry of a decree of divorce a vinculo matrimonii on Dr. Wooddy’s cross-bill of complaint. The other sequelae may be found in
Wooddy v. Wooddy,
In the 1966 divorce decree, the Circuit Court for Charles County (Dorsey, J.) awarded to Mrs. Wooddy custody of the Wooddy’s children, Clara Louise, now 18 years of age; Arthur Rossiter, now 12, and Edmund Lee (Eddie Lee), now 11, and directed that Dr. Wooddy pay $750 a month to Mrs. Wooddy, accounting from 15 October and
In 1960, it had been determined that Eddie Lee was suffering from Down’s syndrome (mongolism). At the time of the divorce, he was enrolled at The Benedictine School For Exceptional Children at Ridgely, Maryland, where he remained until June of 1968, when the school recommended that he be transferred to a school for children who were trainable but not educable. In August of 1968, he entered the Van Hook-Walsh School in Middle-town, Delaware. In 1966, Clara Louise was attending public school in Charles County. After graduating from La Plata High School in June of 1969, she entered Mary Washington College at Fredericksburg, Virginia.
In December of 1968, Mrs. Wooddy, who had been unsuccessful in her efforts to persuade her former husband to contribute to the expenses which she was bearing for the care of Eddie Lee and was about to incur for the college education of Clara Louise, filed in the Circuit Court for Charles County a petition for the modification of that portion of the 1966 decree which dealt with child support.
The relief which Mrs. Wooddy sought was wide ranging, since she urged:
(i) that Dr. Wooddy be held in contempt for failing to pay Eddie Lee’s tuition bill for $388.82, incurred at The Benedictine School’s summer camp, and the charges described in (iii) below;
(ii) that Dr. Wooddy be ordered to reimburse Mrs. Wooddy for the $338.82 which she had expended ;
(iii) that Dr. Wooddy be ordered to pay Eddie Lee’stuition and incidental expenses at the Van Hook-Walsh School and to reimburse Mrs. Wooddy for the amounts which she had advanced commencing in August, 1968;
(iv) that Dr. Wooddy be ordered to “provide a college education for Clara Louise Wooddy and Arthur Rossiter Wooddy”; 1
(v) that Dr. Wooddy be ordered “to reinstate or maintain any life insurance kept on his own life” at the time of the divorce, and that Mrs. Wooddy be irrevocably designated the primary beneficiary of such policies and the children be named contingent beneficiaries; 2
(vi) that the support provisions of the 1966 decree which provided for monthly payments of $750 be clarified, so that there be paid to each child the sum of $250 per month, in addition to educational expenses;
(vii) that Dr. Wooddy’s visitation rights be specified; and
(viii) that a fee be allowed Mrs. Wooddy’s counsel.
Dr. Wooddy, in his answer, averred that he had paid Eddie Lee’s tuition at The Benedictine School amounting to some $1,000 a year (it was actually about $1,500) ; that he had refused to pay the charge of $338.82, which was a fee for a summer day camp conducted by the School in 1967, because he regarded it as beyond the scope of the 1966 decree; that he had never been consulted in regard to placing Eddie Lee in the Van Hook-Walsh School; and that the support provisions of the 1966 decree were sufficient to provide a college education for Clara Louise and Arthur Rossiter.
After hearing testimony, the chancellor (again Dorsey, J.) entered an order dismissing Mrs. Wooddy’s petition with costs.
(i) to hold Dr. Wooddy in contempt for his refusal to pay tuition charges for Eddie Lee and to enter judgment for arrearages;
(ii) to increase the provision for Clara Louise while she is in college;
(iii) to require Dr. Wooddy to irrevocably designate the three children as beneficiaries of one half of his life insurance; and,
(iv) to award counsel fees to Mrs. Wooddy’s attorney.
We shall review each of these contentions, keeping in mind the oft-repeated principle that an order for support and maintenance of children may be varied or modified by the court in the exercise of its sound discretion, Code (1957, 1966 Repl. Vol.) Art. 16, §§ 25, 66;
Seltzer v. Seltzer,
First of all, the issues must be viewed in the light of Dr. Wooddy’s financial circumstances. Introduced in evidence were his United States income tax returns for 1967 and 1968. In the earlier divorce case there was evidence that in 1965, his adjusted gross income was $44,252.52 on which he paid a tax of $10,816.94. In 1967, his adjusted gross income was $28,938.91, and the tax was $7,315.35. In 1968, adjusted gross income was $50,768.56 (of which $5,973.36 represented earnings of his second wife) and the tax was $14,593.76. Consequently, his income after ¡federal taxes was $33,435.58, in 1965; $21,623.56, in 1967; and $36,174.80, in 1968, if his wife’s earnings are included. In 1967, he was not only paying $9,000 for the support of his children, but about $1,500 for Eddie Lee’s tuition, and in 1968, $9,000 for support .payments, but perhaps only about $800 for Eddie Lee’s tuition. In addi
At first blush, the situation would seem to come within the ambit of
Burton v. Burton,
“* * * jn our jU(jgment no useful purpose will be served by setting forth herein an analytical recitation of the various factual situations presented [by the child support cases] and how we resolved them. * * *”
(i) Eddie Lee
We think that Dr. Wooddy is quite right in saying that the requirement of the 1966 decree that he pay “all tuition charges required for special schooling” of Eddie Lee did not saddle him with the 1967 camp fee of $338.82. The chancellor concluded, as do we, that this was a responsibility beyond the scope of the original decree, for which Dr. Wooddy could not be held answerable either in a civil action, or in contempt.
We view the problem of Eddie Lee’s tuition at the Van
There was testimony that the Van Hook-Walsh School, which Eddie Lee entered in August, 1968, offers a year-round resident program, and that Eddie Lee is only at home for several days every two months. The tuition there is $3,600 of which Maryland’s Board of Education pays $800. In the nine months’ period August, 1968 through April, 1969, Mrs. Wooddy’s payments to Van Hook-Walsh, including tuition at an annual rate of $2,800 and miscellaneous incidentals, totalled $2,483.67, or an average of about $276 per month. If this were put on a yearly basis, Eddie Lee’s total expenses at Van Hook-Walsh would appear to be between $3,300 and $3,350 each year. We think that the chancellor must have lost sight of this, and was in error when he failed to require Dr. Wooddy to contribute $30 a month, accounting from 1 August 1968, toward Eddie Lee’s school expenses.
Because Mrs. Wooddy twice advised Dr. Wooddy of her intention to enter Eddie Lee at Van Hook-Walsh, and apparently received no reply, we need not reach the question considered in
Fanning v. Warfield,
(ii) Clara Louise
Clara Louise entered Mary Washington College in September 1969, six months after the hearing had been had below. Mrs. Wooddy introduced in evidence a “budget”
Once again, this problem cannot be wholly isolated from the support which Dr. Wooddy is providing for Clara Louise. That a college education is a necessity if the station in life of a child justifies a college education and the father is financially able to pay or contribute to the payment for such education is no longer an open question in Maryland. Compare
Rhoderick v. Rhoderick,
(iii) The Life Insurance Policies
Mrs. Wooddy has referred us to no Maryland case, and we have found none, which would support her argument that Dr. Wooddy can be required to designate his chil
It cannot be argued that our equity courts in the exercise of their jurisdiction over minors have inherent power to pass such a decree in the absence of statute, and certainly no warrant can be found for it in Code, Art. 16, § 66. Moreover, the idea would be directly contrary to the firmly established principle that responsibility for support ceases with the death of the parent,
Blades v. Szatai,
Alternatively, Mrs. Wooddy would have us impress the life insurance policies with a constructive trust in the
(iv) Counsel Fees
Code (1957, 1966 Repl. Yol., 1969 Cum. Supp.) Art. 16, § 5A provides:
“In all cases where a person makes an application for a decree or modification of a decree with respect to the custody, the amount of support or visitation rights concerning a child or children of the parties, or files any form of proceeding to recover arrearages of child support or otherwise to enforce such decree, the court, after considering the financial status of both parties, their respective needs and whether there was substantial justification for instituting or defending the proceeding, may make such award of costs and counsel fees to either party as shall be just and proper under all the circumstances.”
In view of the conclusions reached in this opinion, we find that there was substantial justification for the filing of Mrs. Wooddy’s petition for modification, see
Fuld v. Fuld, supra,
As we see the case, Mrs. Wooddy’s petition should have not been dismissed, and a portion of the relief which she sought should have been granted by modifying the 1966 decree to provide for the payment by Dr. Wooddy of $30 per month toward Eddie Lee’s tuition, accounting from 1 August 1968, and continuing so long as he remains at Van Hook-Walsh School; and the payment of $700 per year toward Clara Louise’s college expenses, commencing with the academic year which began in September, 1969, and continuing so long as she remains a student at Mary Washington College, the final payment to be made prior to 20 September 1972, all subject to the further order of the court, together with an allowance of the counsel fees discussed in the immediately preceding paragraph.
Order reversed, case remanded for modification of decree of 19 October 1966 in conformity with this opinion, costs to be paid by appellee.