author: Lowe, J.,

text:
    PRINCE GEORGE’S COUNTY, MARYLAND v. GREENBELT HOMES, INC.
    [No. 1595,
    September Term, 1980.]

      Decided July 10, 1981.

      The cause was argued before Moylan, Lowe and Mason, JJ.

      Robert N. Stokes, Jr., Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney, and Michael O. Connaughton, Deputy County Attorney, on the brief, for appellant.

      Lester B. Seidel, with whom were Patrick J. Clancy and Krooth & Altman on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Reluctant to plunge into the sea of matrimony, John Hemphill and Lynn Bradley were nonetheless eager to settle upon its shores. They had jointly contracted to purchase the right of "perpetual use and enjoyment” of a dwelling unit in a cooperative housing development known as Greenbelt Homes, Inc., situate in Prince George’s County. Because the contract was "subject to an acceptance of the purchaser by Greenbelt Homes, Inc. as members,” each applied for membership indicating on his application that they resided together and by the joint contract to purchase, inferentially intended to continue to do so in the dwelling unit described.

To their chagrin, they were denied membership "because [they] were not married.” According to their precipitous complaint to the Human Relations Commission of Prince George’s County, the spokesman for Greenbelt Homes, Inc.,

"said that in the past the Board [of Directors] has made exceptions to its policy of not selling to unmarried persons but never for an unmarried couple. He stated that not being married was the only reason for our rejection, that everything else was alright.”

Anxious to fulfill its destiny as destroyer of discrimination, the Commission made ready to do battle, apparently to provide surcease for the sensitivities of those whom they clept "Complaintants.”

The Complainants had not alleged that they had been deprived individually of membership which under the by-laws stipulated that

"Only one person per dwelling unit may be a member of the Corporation....”

They were concerned solely with the "policy” of not selling to unmarried couples which stemmed from the provision in the by-laws that excepted from the individual membership restriction,

"that a husband and wife or other persons specifically authorized in any case by the Board of Directors may hold a membership jointly.”

The Commission perceived discrimination from a different perspective. It noted that Greenbelt’s Mutual Ownership Contract contained a covenant that

"The member shall occupy the dwelling unit covered by this contract as a private dwelling from the date of occupancy ... for himself and his immediate family....”

Focusing on the word "family” (while ignoring its immediately preceding restrictive adjective), the Commission rejected the "generally accepted” interpretation of "family” applied by Greenbelt Homes, and took "notice” that Webster’s Seventh New Collegiate Dictionary (1967 edition) listed a series of definitions for "family” broad enough to cover not only "[a] group of persons of common ancestry,” but also "a group of individuals living under one roof...,” a "group of things related by common characteristics,” "fellowship” and more pointedly,

"A basic unit in society having as its nucleus two or more adults living together, and cooperating in the care and rearing of their own or adopted children.”

The Commission also took "notice” that § 10.0 of the Prince George’s County Zoning Ordinance defines a family for housing occupancy purposes as,

"An individual, or two or more persons related by blood or marriage, or a group of not more than five persons (excluding servants) not related by blood or marriage, living together as a single housekeeping group in a dwelling unit....”

The Commission further concluded that

"Greenbelt Homes, Inc.’s claim (The Board of Directors acting as Greenbelt Homes, Inc.) that their verbally expressed, only, interpretation of 'family’ being 'commonly accepted’ is not valid.”

It then held that Greenbelt’s covenant, so interpreted, contravened a local ordinance against discrimination which proscribed

"acting, or failing to act, or unduly delaying any action regarding any person because of... marital status ... in such a way that such person is adversely affected in the area[s] of housing....” Prince George’s County Code, § 2-186(3).

Caught up in the cause which by now seemingly surpassed its "complaintants” (who we empirically note have since married and become ensconced elsewhere), the Commission ordered (among other things):

"That Greenbelt Homes, Inc. revise their [sic] Membership Agreement and their [sic] Mutual Ownership Contract to eliminate any provisions which are contrary to federal, state and/or local laws and/or ordinances.”

Our purpose in belaboring how the Commission arrived at its result is to emphasize by its omission that the Commission did not find that a covenant restricting membership to one’s immediate "family” as that term is "commonly accepted” would have been discriminating because of marital status. It found only that the definition applied by Greenbelt to its covenant was invalid and implicitly should be defined as broadly as any of Webster’s alternatives, and at least as broadly as the Zoning Ordinance of which the Commission took "notice.”

Pursuant to § 2-197 of its Code, Prince George’s County filed suit for declaratory judgment and mandatory injunction in the Circuit Court for Prince George’s County in equity to enforce the order of the Commission. Greenbelt Homes, Inc. answered and sought declaratory judgment as to the meaning of the terms "marital status” as used in the code and "family” as used in the Greenbelt covenants. Greenbelt had sought to have the Commission ruling appealed to the Circuit Court for Prince George’s County for review; but the case was dismissed, we are told, for want of jurisdiction. The parties here then stipulated that the court record containing the Commission record be made a part of the record of this enforcement proceeding.

The case was submitted on motions for summary judgment by both parties; that of the County was denied and that of Greenbelt granted. In its opinion, which we shall accept as the requested declaration, (Reddick v. State, 213 Md. 18, 31 (1957)), the judge did not define "family” as requested. In defining "marital status,” however, he held that

"People who are not married to one another do not have a marital status and for that reason it is clear that the legislative body did not intend for such to apply. If the County Council of Prince George’s County wants that intent, the ordinance should be amended to prohibit marital status 'or lack thereof.’ ”

The issue raised on appeal by Prince George’s County is

"whether the appellee’s practice of refusing to approve or enter into perpetual use agreements with unmarried heterosexual couples constitutes marital status discrimination within the meaning of § 2-186(3), Prince George’s County Code? ”

But the issue is not nearly so conceptually broad. When we reflect upon the Human Relations Commission Order, it is that foundation with which we find primary fault. If we addressed the question asked in isolation, a simple affirmance would support the result of the Court’s judgment but leave in limbo a highly questionable declaration which is the crux of this appeal. Significantly, Maryland’s statute with regard to "Discrimination in Housing” also makes it an unlawful practice to discriminate in regard to housing "because of ... marital status” (Md. Ann. Code Art. 49B, § 20). A declaration regarding that term in context takes on added interpretative importance. It is noteworthy that the term "marital status” appears 100 times in the Annotated Code of Maryland scattered in some 31 different, although often related, sections. Since Judge Ross’ proclamation that

"People who are not married to one another do not have a marital status.. .”

is somewhat misleading, we will attempt to clarify the meaning of that term as used in the context of the housing discrimination law before addressing the Commission’s erroneous definition of "family” in its even more restrictive context in the covenant. See Md. Rule 1085.

— marital status —

Under the facts presented, we point out that neither complainant (each of whom was "single,” "unmarried”) was denied membership individually because of his or her individual marital status. While each separately had a marital status, collectively they did not. Only marriage as prescribed by law can change the marital status of an individual to a new legal entity of husband and wife. The law of Maryland does not recognize common law marriages (Henderson v. Henderson, 199 Md. 449, 454 (1952)) or other unions of two or more persons — such as concubinage, syneisaktism, relationships of homosexuals or lesbians — as legally bestowing upon two people a legally cognizable marital status. Such relationships are simple illegitimate unions unrecognized, or in some instances condemned, by the law. That public policy message rings out from the procedural prerequisites for legitimating "marriages,” Md. Ann. Code Art. 62, and the statutory condemnation of other relationships, see, e.g., Md. Ann. Code Art. 27, § 18 (Bigamy) and §§ 390 et seq. The obvious intent of our legislature is to encourage the proverbial concept that more belongs to a marriage than four bare legs in a bed. Even contemporary discrimination laws are not intended to promulgate promiscuity by favoring relationships unrecognized by statute or case law as having legal status.

Neither Mr. Hemphill nor Ms. Bradley was denied membership in Greenbelt Homes, Inc. because he or she was single. They were denied joint membership because neither Greenbelt nor the law of Maryland recognized their union as cloaking them with a "marital status.” Greenbelt simply refused to acknowledge that the naked emperor was wearing clothes. The complainants who were not then married may not compel treatment as an entity (e.g., as tenants by the entireties, see Lopez v. Lopez, 250 Md. 491, 510 (1968); and c.f., McManus, et al. v. Summers, 290 Md. 408 (1981)), any more than a married couple may be treated as single for preferential tax treatment, see e.g., Helvering v. Janney, 311 U.S. 189 (1940). We are what we are, and it is in that capacity which we must be judged even when we seek the judgment.

— family —

The crux of the Commission’s order, however, was its finding that Greenbelt’s "commonly accepted” definition of the term "family” is invalid. The Commission held that the term "family” as used in the contractual covenant included — as a matter of law — at the very least the two complainants, but interpretatively as many as "five persons ... not related by blood or marriage, living together as a single housekeeping group in a dwelling unit,” which it gleaned from the local zoning ordinance.

The Court of Appeals has noted that the statutory use and definition of the word "family” may be (and often is) limited to the purposes of a specific act. Hicks v. Hatem, 265 Md. 260, 264 n. 1 (1972). In that case the Court of Appeals was interpreting the use of the term "family” in the household exclusion provision of insurance contract, just as we are here concerned with an exclusionary provision in a contract. There the Court agreed with Greenbelt’s observation of the "commonly accepted” interpretation of terms:

"It would thus appear that in common parlance and usage the word 'family’ more frequently connotes the existence of a marital or blood relationship, or a legal status approximating such relationship.” Id. at 264. (Emphasis added).

Noting that common law marriages are not recognized in Maryland as a "legal status,” the Court held that an unmarried woman living without consanguinal ties within an insured’s household did not "in this State” possess a legal status which was the equivalent of being a "family” member. It would seem to follow that the Greenbelt covenant meant what Greenbelt intended it to mean, rather than what the Commission wanted it to mean. From at least as early as 1833, we are told that in construing covenants they must be viewed in context and in accordance with the intention of the covenantors. See, Watchman v. Crook, 5 G & J 239 (1833).

But even without a clear contextual intent, words express whatever meaning convention has attached to them. Trimble v. Seattle, 231 U.S. 683 (1914). In "The Theory of Legal Interpretation,” 12 Harv. L.R. 417 (1899), Oliver Wendell Holmes pointed out that:

"A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the word-book.”

It is apparent that the Commission’s declaration of invalidity of Greenbelt’s definitional application of the term "family” was an error of law affecting its decision. Md. Ann. Code Art. 41, § 255 (f) (4); or, if found as a fact, it was unsupported by competent material, and substantial evidence in view of the entire record as submitted. Md. Ann. Code Art. 41, § 255 (f) (5). It follows that without regard to the judge’s rather broad definitional reasoning regarding the meaning of "marital status,” he did not err in refusing to enforce the defective order of the Commission at the insistence of the County.

Finally, we cannot conclude without noting that the Court of Appeals has given recognition sub silentio to the Greenbelt Homes, Inc. policy complained of by the original parties in this case as "never [authorizing joint membership] for an unmarried couple.” Although not written in either the light or the shadow of the recent influx of discrimination laws, the Court of Appeals was by no means offended by this same appellee’s termination of membership of a single woman who "persistently and grossly” violated her contract by (among other things) living with "an adult man’’to whom she was related neither by blood nor marriage. The Court affirmed the termination of her interest for such "objectionable conduct.” Green v. Greenbelt Homes, Inc., 232 Md. 496 (1963).

Judgment affirmed.

Costs to be paid by appellant, Prince George’s County.

      . Wilson, The Oxford Dictionary of English Proverbs 513 (3d. Ed. 1970).


source: Caselaw Access Project

license: Public Domain

text:
    BRUCE R. SPELL v. STATE OF MARYLAND
    [No. 1600,
    September Term, 1980.]

      Decided July 10, 1981.

    The cause was argued before Gilbert, C. J., and Thompson and Lowe, JJ.

      Louis P. Willemin, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James Maggio, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Bruce R. Spell was convicted of robbery after being tried by a jury in the Criminal Court of Baltimore. He was tried jointly with Gloria Matthews after the two of them had been arrested near the scene of a taxicab robbery. The arrest precipitously followed an immediate report by the victim and verbal description over the police radio. A prompt identification by the victim followed a confrontation upon apprehension.

Relying upon Eley v. State, 288 Md. 548 (1980), appellant contends that it was error to preclude his argument that a "lineup” should have been conducted. After arguing to the jury that the one-on-one confrontation was an overtly suggestive procedure, appellant commenced to point out that the police did not even test the identifying witnesses’ reliability by requiring an identification from a lineup. The court sustained the state’s objection to such an argument, reasoning that

"There was no line-up in evidence. I will sustain the objection. There was no evidence. That was the evidence, there was no lineup.”

Appellant responded that this was precisely what he was contending.

"I understand, but I am commenting on why there should have been a line-up.”

In other words, he was detracting from the reliability of what was done by pointing out what he believed should have been done.

Eley, supra, reversed a conviction, appellant points out, because Eley was precluded from arguing that the state’s unexplained failure to produce fingerprint evidence should lead the jury to infer that the evidence would have been unfavorable to the State. The State contends that Eley was narrowly written to apply precisely to available fingerprint evidence in the absence of positive identification by a witness or other such reliable evidence. According to the State, the Court of Appeals carefully pointed out the factual absence of a positive identification and the unique fact that the Court had "taken judicial notice of the high degree of reliability accorded [fingerprint] identification.” 288 Md. at 553-54.

Here there was a "show-up” confrontation identification uncontested by appellant. In contrast with "judicial notice of the high degree of reliability accorded” fingerprint identification by the Court in Eley, the State points to the express reluctance of that same Court to establish lineup identification as better than a prompt, quick show-up held under proper circumstances, which was the case before us. See Foster & Forster v. State, 272 Md. 273, 297-98, cert. denied, 419 U.S. 1036 (1974), quoting Stanley v. Cox, 486 F.2d 48, 54-55 (4th Cir. 1973). Indeed the Supreme Court itself is loathe to evaluate the comparative reliability of different types of eyewitnesses’ identifications, notes the state, referring us to Neil v. Biggers, 409 U.S. 188, 200 (1972); and, it should be noted here that no testimony was offered on the relative reliability of either method as appears to have been done in the Biggers case.

While it is hard to conceive that Eley intended to apply a broad permit to all defendants to argue the absence of barely relevant investigating techniques unused (and perhaps unnecessary) either for apprehension or conviction, we are confronted with the fact that the role of the Court of Appeals (as opposed to our own) is a contemplative one writing primarily principles to guide bench, bar and litigants in the future rather than to decide cases narrowly restricted to their facts as is our wont. We are the court of direct appeal primarily to be concerned with the drawing of narrow lines dependent upon the issues presented by the litigants; theirs is the court responsible for writing instructively with a broad brush, prognosticating by principles espoused what we must apply to comparable factual settings.

Had the Court of Appeals meant Eley to have been restrictively decided upon so narrow an application as urged by the State, the Court could have remanded to us with instructions so to decide, or even decided the case by an unreported opinion. Indeed, if that were the Court’s intent, it would not be too much to expect that the Court clearly would so indicate. To the contrary, however, the Court quoted with approval the very broad statement of policy extracted from the Alaskan case of Jacobson v. State, 551 P.2d 935, 941 (1976):

" '[cjounsel’s argument concerning the reasons for the departure from normal practice was within the range of permissible argument.’ ”

There can be little argument that this adopted concept was intended as a broad rather than a restrictive one.

Even if that were not so, the only other recited authority was directly on point with the factual issue before this court — comment upon absence of a line-up identification — People v. Carter, 73 Ill. App. 3d 406 (1979). After quoting from that case, the Court of Appeals concluded that

"where there is unexplained silence concerning a routine and reliable method of identification especially in a case where the identification testimony is at least subject to some question, it is within the scope of permissible argument to comment on this gap in the proof offered.” (Footnote omitted). Eley, supra at 555.

That is the message of Eley. Whether we agree with the majority or the distinguished dissent in that case, it is the Court of Appeals’ role to espouse, and ours to apply, such rules. Because we may have reversed our roles in the past is no precedent that we do so with sufficient frequency to justify distinguishing rulings with which we may be uncomfortable. We note in passing that permitting such arguments conforms to the tradition of permitting substantial latitude to counsel in argument. If its relevance is questionable its effectiveness upon a jury may be diminished by a prosecutor in rebuttal. Without regard to its merit, the ruling set forth in Eley is conceptual and clearly applicable to the facts here.

Because we are reversing and will remand for retrial, we need not address the severance issue also raised (since appellant will be retried alone) or the jury sheet clerical correction at the bench, which hopefully need not recur. Nor need we be concerned with the alleged violations of Stevenson v. State, 289 Md. 167 (1980), and State v. Hutchinson, 287 Md. 198 (1980), which appellant conceded had not been preserved. It will suffice to point to these recent cases for the edification of the court upon retrial.

We will, however, comment upon the court’s instruction to the jury that presence at or near the scene of a crime is a "compelling element” in the proof of criminal agency. When commenting upon the considerations available to the jury, we admonish the judge to be more careful in using adjectives which may suggest undue weight to be given one element of consideration over another. While comment upon facts is permissible, the area is a dangerous one and recitations must be without suggestive emphasis.

Judgment reversed and case remanded for a new trial.

Costs not to be reallocated.

Md. Rule 1082 f.


author: Wiener, J.,

text:
    ROBERT L. DENNINGHAM v. JUDITH DENNINGHAM
    [No. 1602,
    September Term, 1980.]

      Decided July 10, 1981.

    The cause was argued before Wilner, Couch and MacDaniel, JJ.

      Robert L. Denningham, in proper person, appellant.

      Douglas I. Malcom for appellee.
   Wiener, J.,

delivered the opinion of the Court.

The parties to this dispute were married on November 9, 1963. They separated July 15,1977, having in the meanwhile produced two children — Coren, born 1965, and Elena, born 1968. Prior to their actual separation, they signed a written Separation Agreement providing, among other things, that appellee (the wife) would have custody of the children and that appellant would pay to her $300 every two weeks for their support.

This litigation ultimately proceeded upon appellee’s supplemental bill in the Circuit Court for Prince George’s County, seeking a divorce a vinculo matrimonii, alimony, incorporation of the terms of the separation agreement into the decree, and counsel fees. Virtually everything, including custody, was in dispute. On June 29, 1979, apparently with the acquiescence of both parties, the court ordered its Mental Hygiene Consultation Service to conduct an investigation for the purpose of "evaluating everyone in the Denningham family” and to file a report with the court. It is evident from what subsequently occurred that this investigation, and the report, was ordered primarily in connection with the issues of custody and visitation; and we shall hereafter refer to it as the "custody investigation.”

On July 27, 1979, prior to completion of the custody investigation but following an evidentiary hearing, the court proceeded to dispose of the other matters in dispute. It entered a decree that day that (1) granted appellee a divorce a vinculo matrimonii; (2) allowed temporary custody of the two minor children of the parties to remain with appellee; (3) determined that a $7,670 judgment be entered against appellant for unpaid child support required by the couple’s separation agreement; (4) ordered appellant to pay $433 per month as temporary child support; and (5) required that the parties be evaluated by the Circuit Court Mental Health and Hygiene Service preparatory to any "final” custody determination.

On August 15, appellant discharged his counsel and advised the court clerk that he would thenceforth be representing himself. On September 20, the court routinely sent a notice to counsel (but not to appellant) advising that the custody investigation report had been received, that "counsel” should contact the Mental Hygiene Consultation Service "for information on this report,” and that the matter would be scheduled for further hearing. Appellant, of course, was unaware of the report.

On September 25,1979, appellant filed a motion to revise the July 27 decree, seeking to reduce the amount of the monetary judgment entered against him therein. On the same day, he noted an appeal to this Court from that decree.

On November 8, 1979, apparently in anticipation of the further proceeding pertaining to custody and visitation, the court filed a "Memorandum of Court,” calling attention to the custody investigation report and stating that "[ijnasmuch as this report is confidential and the defendant ... is now representing himself in this matter, the court has decided in all fairness that the contents of the aforementioned report will not be made available to counsel for the plaintiff or the defendant.”

The parties returned to court on December 7, 1979, presumably in connection with appellant’s motion to revise the monetary judgment. In view of appellant’s appeal, however, the court declined to consider the motion or even the pending matters of "permanent” custody and visitation. It did consider appellant’s request to read the custody investigation report, but again rejected that request. In so doing, it stated "for the record,” its reason: "that these reports are confidential, they are not designed for the parties, they are designed for the attorneys. Mr. Denningham was represented during the trial and he is now not represented, and I have decided that in fairness, since the report was prepared for my benefit, I would read the report and I would not let you read the report, either.” (Emphasis supplied.)

Appellant dismissed his September 25 appeal to this Court on December 20,1979. Nothing happened, however, for over eight months. On September 3,1980, the parties returned to court in connection with the matters of custody, visitation, child support, and appellant’s year-old motion to revise the monetary judgment, which motion the court quickly denied. The balance of the two-day proceeding concerned custody and visitation, and was taken up primarily with testimony presented by and on behalf of appellant, whose complaint was that appellee has been endeavoring to alienate the children from him. The court interviewed the children in chambers, alone — apparently without even a court stenographer — and announced that "they are adamant that they want to live with their mother” and that even weekend overnight visits "is going to be difficult for them.”

At the conclusion of the proceeding, the court, mentioning both its own interview with the children and the custody investigation report and recommendation, determined that "there really has been no showing that I should take the children away from the mother and place them with [appellant].” On October 17,1980, the court entered an order awarding permanent custody of the children to appellee, requiring appellant to pay child support of $433 a month, establishing a specific visitation schedule, and directing the Mental Hygiene Consultation Service to review the case in five months and again in ten months.

Appellant responded with a motion for rehearing which was denied on November 3, 1980. The next day, he filed this appeal, raising eight issues that go to virtually everything the court decided. He complains about the money judgment, visitation, custody, and child support on a variety of constitutional, procedural, and substantive grounds. In the interests of clarity, we have divided the issues raised by appellant into two categories — those that question the monetary judgment of July 27, 1979, and those that attack the custody, visitation, and child support decisions.

The Monetary Judgment

Appellant’s first three complaints concern the entry of the monetary judgment for child support arrearages. Two of them attack the judgment directly on procedural grounds; the third deals with the court’s refusal to grant appellant’s motion to set it aside on the ground that the separation agreement from which the judgment arose was induced by fraud.

The money judgment challenged here was part of the July, 1979, divorce decree that resolved all pending matters between the parties except permanent custody, which raises the initial question of whether the current appeal of the money judgment — filed more than a year after that judgment was entered — is a timely one under Maryland Rules 605a and 1012.

In Pappas v. Pappas, 287 Md. 455 (1980), the Court of Appeals reminded both bench and bar that Maryland Rule 605a is a general rule and that it applies to domestic cases. With one possible caveat, which it unfortunately left somewhat imprecise, the Court made clear that a divorce decree which adjudicates less than all of the claims pending before the trial court is not a final and appealable one except to the extent that the determination and direction required under the rule is validly made, and that, unless dealing with an order for which an interlocutory appeal is allowed under Courts article, § 12-303, no part of such a decree may be appealed until finality is achieved through the resolution of the remaining issues.

The caveat referred to appears on p. 463 of 287 Md. The decree at issue in Pappas granted a divorce and awarded alimony, child support, guardianship of the minor children, and counsel fees, but reserved ruling on the issues of property division, custody, and the amounts of alimony, child support, and counsel fees. Absent a Rule 605a determination and direction, the Court concluded that too much had been left open — that less than all the claims had been decided and that no part of the decree was final or appealable. It then said, however:

"For purposes of this opinion it is not necessary for us to determine whether the reservation of the amount of counsel fees or the reservation of the amount of alimony and support without more would render the decree other than final. It is sufficient for our purposes to hold that where the issue of property division, the amount of counsel fees, and the amount of alimony and support remain to be determined, the judgment was not final.” (Emphasis in original.)

The Court did not explain in this caveat what is so special about the amounts of support (spousal or child) that might exempt a reservation of those items from the operation of the rule. Was it suggesting perhaps that those items may be different because they are always subject to the further jurisdiction of the court, and therefore never achieve the status of true finality? If so, it would seem that orders of child custody and visitation should be treated likewise.

Read literally (and until Pappas rather consistently), Rule 605 a would seem to admit of no exceptions — that a decree which fails to resolve a pending issue in dispute, whether support or custody, does indeed adjudicate "less than all the claims” and therefore does "not terminate the action as to any of the claims” unless the authorized determination and direction is made. See Estep v. Estep, 285 Md. 416, 423-24 (1979).

The Court’s suggestion in Pappas that there might be exceptions to the rule, at least with respect to support, ought to be clarified. Litigants (and their attorneys) must have some assurance as to whether a divorce rendered by a decree that leaves open an issue of support (or custody or visitation) is or is not final. There is more at stake than the timeliness of appeals, although that, of course, is the heart of the matter.

In this case, it makes no practical difference whether the current appeal is timely. We have examined the substance of appellant’s complaints about the money judgment and find them to be without merit. The trial court made its findings based on disputed evidence, and we find neither clear error in the findings nor an abuse of discretion in the court’s declining to revise them. Thus, whether the current appeal is timely by virtue of Maryland Rule 605a or untimely by reason of Maryland Rule 1012, appellant will not prevail.

Custody, Visitation, and Child Support

Appellant asserts that the court’s decisions on custody, visitation, and child support deprived him of various constitutional rights. Appellee responds that appellant failed to raise these issues below. With one exception, appellee is correct and we will not consider those issues. Maryland Rule 1085.

The one exception is appellant’s assertion that he was denied due process of law when the court considered the custody investigation report in making its custody determination (and the concomitant child support and visitation conclusions) after it had refused to permit him to see the report. We agree that the court erred in that regard.

We must approach the use of custody investigation reports with a certain balance. The opinions of this Court and the Court of Appeals are replete with statements encouraging chancellors to utilize such reports and attesting to their value in arriving at custody determinations. See, for example, Ouellette v. Ouellette, 246 Md. 604 (1967); Shanbarker v. Dalton, 251 Md. 252 (1968); Deckman v. Deckman, 15 Md. App. 553 (1972); Powers v. Hadden, 30 Md. App. 577 (1976). See also Okpaku, Psychology: Impediment or Aid in Child Custody Cases, 29 Rutgers L. Rev. 1117 (1976). Indeed, it is the very reliance placed on these reports that creates the problem.

On the one hand, whether conducted by probation, social service, or medical agencies, custody investigation reports nearly always contain material that is sensitive and highly personal, material that ought to be kept confidential. Medical data, psychiatric opinions, details pertaining to lifestyles and intimate relationships are often recorded, as are the results of interviews with the children whose custody is at issue. That is why, in most cases, these reports are submitted to the court under seal and are dealt with differently than other exhibits in the case. It is also why the court may, in some instances, have a serious concern about allowing even the parties to see the contents of the report.

The counterweight, however, is that these reports consist largely of hearsay declarations — often double- or triple-level hearsay — as well as opinions of various social workers, medical or paramedical personnel, psychologists, teachers, and the like, which may or may not have a reasonable basis. Statements contained in a custody investigation report have no special indicia of reliability. They are generally not under oath and often emanate from people having overt or covert bias. In many instances, the statements represent subjective feelings and perceptions rather than objective observations or empiric data. Their usefulness to the court is only as strong as their reliability, and that requires that they be subject to challenge in essentially the same manner as any other critical evidence.

We decided as much, at least implicitly, in Draper v. Draper, 39 Md. App. 73 (1978). In that case, a custody investigation report recommended that custody be awarded to the father. Counsel for the parties had read the report, although they had not been given copies of it. The father offered the report in evidence without calling its author as a witness, apparently without objection. In her case, the mother sought to call the author for cross-examination, not desiring to vouch for or be bound by the author’s testimony. We concluded that the chancellor erred in refusing that request. See also Annot., Right In Child Custody Proceedings To Cross-Examine Investigating Officer Whose Report Is Used By Court In Its Decision, 59 A.L.R.3d 1337 (1974). Certainly, if it is error to deny the right to cross-examine the author of the report, it is even more blatant and grievous error to hide the report entirely from the parties and yet rely on it in making a decision.

This, indeed, is the uniform view that has been taken wherever the question has arisen. Absent consent or waiver, it is error for a court to admit and consider a custody investigation report without affording the parties an opportunity to read and challenge it. See Kightlinger v. Kightlinger, 439 P.2d 614 (Ore. 1968); Williams v. Williams, 130 N.E.2d 291 (Ill. App. 1955); Lewis v. Lewis, 534 S.W.2d 800 (Ky. 1976); Gilmore v. Gilmore, 341 N.E.2d 655 (Mass. 1976); Mazur v. Lazarus, 196 A.2d 477 (D.C. 1964); Scott v. Scott, 415 A.2d 812 (D.C. 1980); Oltmanns v. Oltmanns, 121 N.W.2d 779 (Minn. 1963); In Re S_ M_ W — , 485 S.W.2d 158 (Mo. App. 1972); Hosking v. Hosking, 318 So.2d 559 (Fla. App. 1975); Comment, Use of Extra-Record Information in Custody Cases, 24 U. Chicago L. Rev. 349 (1957); Annot., Consideration of Investigation by Welfare Agency or the Like in Making or Modifying Award as Between Parents of Custody of Children, 35 A.L.R.2d 629 (1954). Cf. Kesseler v. Kesseler, 225 N.Y.S.2d 1 (N.Y. 1962); Larson v. Larson, 140 N.W.2d 230 (Wis. 1966); and Eastman v. Eastman, 626 P.2d 1238 (Kan. App. 1981). See also Cornwell v. Cornwell, 244 Md. 674 (1966).

These decisions merely make manifest one of the cornerstones of our system of justice: the right of the parties to be aware of all of the evidence considered by the trier of fact in making an adjudicatory determination and to have the opportunity to challenge and answer that evidence. "Due process” encompasses that principle and requires that if a court bases its custody decision, even in part, on an independent report, the parties — or their attorneys — must be given the opportunity to examine the report and must be allowed the opportunity to cross-examine the investigator and to produce outside witnesses to establish any inaccuracies the report may contain. However sensitive the material may be, a party has a right to know what evidence is being considered by the court in judging his cause. A custody case can no more be tried and decided upon secret ex parte evidence than any other proceeding.

In this case, however, the court’s error, though of constitutional dimension, was harmless. In order to justify a change of custody, appellant had the heavy burden of demonstrating " a strong reason affecting the welfare of the child.” Sartoph v. Sartoph, 31 Md. App. 58 (1976), cert. denied, 278 Md. 732. "The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change.” Id. at 67.

The children — daughters aged twelve and fifteen — had been in appellee’s custody for the entire three years since the parties separated and, as we have noted, they expressed to the court their clear and unequivocal desire to remain with appellee. There was no evidence in the case seriously suggesting that they were not being properly cared for or that their needs were not being adequately met.

Unlike many reports of this type, the custody investigation reports in question here relied primarily on interviews with the parents and the two children, and not on the statements or opinions of third parties. They merely recited what the court already knew from its own interviews with the children and from the testimony presented by the parties. The most significant statement in the reports was that the children earnestly desired to remain with their mother, a desire of which appellant was fully aware. The material contained in the reports at issue here was basically cumulative and introduced nothing new of any significance that was, or could have been, relied upon by the court in determining custody. That is why we find, in this particular circumstance, that the error was harmless. Cf. Daitoku v. Daitoku, 39 Hawaii 276 (1952) and cases collected in Annot., supra, 59 A.L.R.3d 1337, 1349 (§ 4).

Judgment affirmed; appellant to pay the costs.

      . It is not clear from the record why this last item was necessary. The order of June 29 ordered the investigation and directed the parties to report to the Service’s Intake Office within forty-eight hours. The Service’s report, dated September 18, 1979, does not indicate when the interview with the parties occurred.

      . The court’s decree was originally dated August 27,1979, although the docket entries show that it was entered on July 27,1979. At some point, the error was caught and the court amended the decree by striking the word "August” and inserting the word "July.” It is clear that the docket entry is correct and that the decree was actually signed and filed on July 27, 1979. Nevertheless, on October 5, 1979, in consideration of the error, the court issued an order "that the defendant’s Order for Appeal filed herein on September 25, 1979, be treated as having been timely filed____” Because appellant’s present appeal does not rest upon the September 25 order for appeal, it is not necessary for us to consider whether that order was a valid or proper one. See Maryland Rule 1012.

      . Because the private interview and the exclusion of even a court reporter was without objection and because appellant makes no complaint about it in this appeal, the correctness of that procedure is not before us. We do, however, take this opportunity once again to stress our belief that, even though the parties can affirmatively waive the presence of a reporter, the better practice is to have a reporter present in order that a complete record will be available on appeal. See Nntwell v. Prince George’s County Department of Social Services, 21 Md. App. 100 (1974).

      . The record reveals that a "follow-up” report was rendered by the Mental Hygiene Consultation Service on November 10,1980, based upon an interview with the parties and the children on October 16, 1980.

      . Appellant suggested at oral argument that the issues of child support and visitation were also left unresolved. We do not agree. Naturally, had the court ultimately awarded custody of the children to appellant, adjustments in the child support and visitation orders would have been required; but those matters, as with custody, are always subject to further court order. Insofar as open, current disputes are concerned, the decree settled everything except "permanent” custody.


author: Couch, J.,

text:
    SYLVESTER E. HARPER v. AMARYLLIS M. HARPER
    [No. 1609,
    September Term, 1980.]

      Decided July 10, 1981.

    The cause was argued before Wxlner, Couch and MacDaniel, JJ.

      Jeffrey Lee Greenspan and Elana Rhodes Byrd for appellant.

      Steven R. Migdal, with whom were Manis, Wilkinson & Snider, Chartered on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

On November 10, 1980, the Circuit Court for Anne Arundel County granted a divorce a vinculo matrimonii to Amaryllis M. Harper, the appellee. The chancellor (Lerner, J.) also declared certain real property owned by Mr. Harper, the appellant, to be marital property and ordered its sale in lieu of partition, with the proceeds therefrom to be shared by the Harpers equally.

Four questions are presented for our review, as set forth below:

"1. Whether or not the Hon. Eugene M. Lerner, Judge, Circuit Court for Anne Arundel County, Maryland, abused his discretion by not recusing himself at the trial of this case and by refusing to return the case to the assignment office to await reassignment to a visiting judge from a court other than the Circuit Court for Anne Arundel County, Maryland.

2. Whether or not the trial court erred in declaring one of three lots of real property, titled exclusively in the name of Sylvester E. Harper, together with a house located on said lot, to be marital property and thus subject to equitable distribution pursuant to Maryland Courts and Judicial Proceedings Code Annotated, Section 3-6A-01 (e).

3. Whether or not the trial court erred in ordering the sale in lieu of partition of the real property titled solely in the name of Sylvester E. Harper, rather than, assuming this property was marital property, determining the value of such property and making a monetary award in order to adjust the equities of the parties, as required by Maryland Courts and Judicial Proceedings Code Annotated, Section 3-6A-05 (b).

4. Whether or not the trial court erred in failing to make a monetary award to adjust the equities of the parties and thus failed to take into account the equities, liabilities and property interests held by each party exclusive of any ownership of real property.

(1 a)

Change of venue

Because both Mrs. Harper and a daughter of the marriage, Kim Harper, were employed in the court system in Anne Arundel County, Mr. Harper filed a motion for a change of venue, which was denied. A subsequent pleading was filed, entitled "Motion for Change of Venue,” seeking alternative relief for the matter to be heard by a "visiting judge” or a recusal of any judge with whom Mrs. Harper and her family and associates had direct employment or social relationships. This motion was likewise denied by Judge Lerner, who then heard the case. Appellant contends it was error to do so.

Appellant concedes that the "right” of removal applies only to actions at law and not to actions in equity. See Ezersky v. Ezersky, 40 Md. App. 713, 394 A.2d 1225 (1978). Nevertheless, he appears to contend that the chancellor had the discretionary power to cause the case to be removed. In Ezersky, however, we specifically held that:

"... the common law discretionary power of removal is never available in an equity or divorce case. As indicated above, this discretionary power originated in the common law Court of King’s Bench. It has, accordingly, been inherited by our common law courts. Our equity courts, on the other hand, find their origin in the Court of Chancery and, in the case of divorce, in the Ecclesiastical Courts, Dougherty v. Dougherty, 187 Md. 21, 48 A.2d 451 (1946). There is no indication that these English courts exercised a discretionary power of removal, and we are not free to give their successors such a power.” Id. at 718-719.

Thus there was no error in denying appellant’s motion for a change of venue.

(lb)

Right of recusal

The appellant alternatively argues that the chancellor should have recused himself and had the matter heard by a visiting judge from another county. Under the circumstances present here, we find no error. Whether to recuse himself is a matter within the discretion of the court, Marzullo v. Kovens Furniture Co., 253 Md. 274, 252 A.2d 822 (1969), and will not be disturbed on appeal except for an abuse of that discretion. The record shows that Judge Lerner had met Mrs. Harper only once, when he was introduced to her outside the courthouse by Kim, who was employed by Judge Wray. He only knew Kim by sight and that she worked for Judge Wray. We perceive no such connection between Judge Lerner and the Harpers as would indicate that because thereof he should have recused himself. So far as assigning the matter to a visiting judge, it is clear Judge Lerner advised appellant that there would not be one that day and that appellant’s counsel opted, in the interest of time, to proceed with Judge Lerner. We see no error on this issue.

(2)

Declaration of Marital Property-

In 1950, prior to his marriage to Mrs. Harper in 1951, Mr. Harper purchased a lot under a land installment contract and made all the monthly payments thereon; this lot was titled in his name alone. In 1967 Mr. Harper designed a house, which was then erected on his lot. While he has again made all the mortgage payments on the house, Mrs. Harper is obligated thereunder. But see Wimmer v. Wimmer, 287 Md. 663, 414 A.2d 1254 (1980). Mrs. Harper also testified that four hundred of the five hundred dollar down payment on a previous house the parties acquired was provided by her mother and that the'-proceeds from the sale of that house were used to help finance the house built in 1967. The chancellor, in concluding that the lot and house were marital property as defined in Secs. 3-6A-01 (e) and 3-6A-04 of the Cts. Art. of the Maryland Code, stated:

"Fourth, the Court resolves the question of ownership of real property located at 1206 Louis Avenue, Annapolis, Maryland, pursuant to Section 3-6A-04 of the Courts and Judicial Proceedings Article of The Annotated Code of Maryland. The said real property consists of the parties’ marital home and two adjacent lots.
The Respondent contends that the lot upon which the home is situated and the home itself should not be considered as marital property. The Respondent argues that he acquired the lot itself prior to his marriage and that, with respect to the house itself, he contends that because he alone made the financial contributions, drew up the plans and physically constructed it himself, the house should not be considered marital property for the purpose of determining ownership and ordering a sale with an equitable distribution of the proceeds. The Respondent also contends that the two adjacent lots acquired during his marriage should not be considered as marital property since he made the sole financial contributions toward their purchase.
The Court finds that the Respondent’s position is not legally tenable. As concerns the lot upon which the house is situated, the evidence in this case clearly established that the said lot was acquired by the Respondent under an installment contract of purchase prior to his marriage but that he completed payments and gained an unencumbered title to the lot during his marriage to the Complainant. Similarly as concerns construction of the house itself, the evidence has shown that the Respondent designed and built it during his marriage. With regard to the two adjacent lots, it is undisputed that these lots were acquired by the Respondent during his marriage. In making a determination of ownership of real property under the applicable statutes upon granting a decree of divorce, the Court is guided by several factors including the contributions, both monetary and nonmonetary, made by each party to the well-being of the family; the value of the property interests of each spouse; the circumstances contributing to the estrangement of the parties; the duration of the marriage; the age and physical condition of the parties; and how and when the specific marital property was acquired. In this case, it is true that the Respondent provided the bulk of financial contributions toward acquiring the real property in question, however, the Complainant, as a wife and mother of some twenty-nine (29) years, made substantial nonmonetary contributions toward the marriage and the family during the time the said real property was acquired. Furthermore, this Court notes that the estrangement of the parties stemmed from the Respondent’s cruel and abusive conduct toward the Complainant resulting in a divorce a mensa for constructive desertion. The length of the marriage in this case is considerable, spanning twenty-nine years of the parties’ lives. The Court has also weighed the other factors mentioned above and concludes that the real property in question is marital property in which each spouse is entitled to a one-half share. For this reason the Court shall order a sale in lieu of partition of the said real property with an equitable distribution of the proceeds as prayed for by the Complainant.”

The thrust of appellant’s argument on this issue is that since he acquired the lot, upon which the house was built, before the marriage, and since the house constituted a permanent improvement thereto, both the house and lot do not meet the statutory definition of marital property and thus the chancellor erred in concluding that this property was marital property. We disagree.

With respect to the lot, while Mr. Harper had equitable title thereto prior to the marriage, see Kinsey v. Drury, 146 Md. 227, 126 A. 125 (1924), Kingsley v. Makay, 253 Md. 24, 251 A.2d 585 (1969), it is clear that he acquired legal title after the marriage. It would appear, in fact, that since the marriage took place within a year of his execution of the land installment contract, the bulk of payment thereon took place after the marriage. In our view the lot was acquired during the marriage within the meaning of Cts. Art. Sec. 3-6A-01.

With respect to the house built on the lot, after the parties had been married some sixteen years, it constituted a permanent improvement upon the lot; in fact, title in Mr. Harper’s name was never changed although the parties talked about making that change. Having concluded the chancellor was correct in finding the lot to be marital property, it necessarily follows that the house erected thereon after the marriage of the parties would likewise, under the facts present here, be marital property. Indeed, not to conclude thusly would frustrate the very purpose of the marital property distribution act, the preamble of which states:

"The General Assembly declares that it is the policy of this State that marriage is a union between a man and a woman having equal rights under the law. Both spouses owe a duty to contribute his or her best efforts to the marriage, and both, by entering into the marriage, undertake to benefit both spouses and any children they may have.
The General Assembly declares further that it is the policy of this State that when a marriage is dissolved the property interests of the spouses should be adjusted fairly and equitably, with careful consideration being given to both monetary and nonmonetary contributions made by the respective spouses to the well-being of the family, and further, that if there are minor children in the family their interests must be given particular and favorable attention.”

The chancellor committed no error in this regard.

(3)

Sale in Lieu of Partition

As seen above, the chancellor, as part of his decree, determined the house and lot to be marital property, set the parties’ interest at one-half each, and ordered sale in lieu of partition with appropriate distribution to them of the proceeds. Appellant contends that the chancellor erred because the statute permits sale in lieu of partition of any jointly owned property. Cts. Art., § 3-6A-04. He further argues that it is clear only he held title to the property. Furthermore, he argues, the statute prohibits the court from transferring the ownership from one party to another. We agree with appellant. The statute is clear and the chancellor erred in this regard. Upon remand the chancellor should follow the guidelines provided in Sec. 3-6A-05 (b) of the Courts Article.

(4)

The Failure to Make Monetary Award

Appellant’s last assault on the chancellor’s decree is that he failed to consider the "equities, liabilities, and property interests held by each party exclusive of real property.” We have reviewed the record and the chancellor’s opinion and find it difficult to understand how this contention can be made. The chancellor did just exactly what appellant contends he did not do. We do not understand appellant to argue that what the chancellor did was not supported by the record, so as to say he was clearly erroneous, but that he did nothing in this regard.

The chancellor stated in part:

"Third, the Court considers the division of marital personal property. The Complainant contends that the parties have already divided their personal property equally. The Respondent, on the other hand, asserts that the parties acquired certain personal property and savings during their marriage, a disproportionate share of which is presently in possession of the Complainant.
The Court has carefully reviewed the testimony and evidence presented in this case and finds that the personal property acquired during the course of the parties’ marriage has been divided in substantially equal portions between them.”

He then set forth the testimony relative to the personal property and its distribution, finally concluding:

"Clearly, the items and monetary figures shown above indicate that the parties have made an approximately equal distribution of their marital assets. For this reason, the Court will not disturb the distribution that has already been made by the parties.”

We see no error under the circumstances.

Decree vacated only insofar as it provides for sale in lieu of partition and for distribution, otherwise the decree is afñrmed.

Case remanded for further proceedings consistent with this opinion.

Costs to be paid two-thirds by appellant and one-third by appellee.

      . Section 3-6A-01 (e):
      "(e) Marital property. — 'Marital property’ is all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources.”

      . Section 3-6A-04:
      "(a) When granting an absolute divorce or annulment, the court may resolve any dispute between the spouses with respect to the ownership of real property. However, the court may not transfer the ownership of real property from one spouse to the other.
      (b) In accordance with the court’s determination of the ownership of real property, the court may:
      (1) Grant a decree which states what the ownership interest of each spouse is and
      (2) As to any jointly owned property, order a partition or sale in lieu of partition and a division of the proceeds.”

      . See State Roads Commission v. Orleans, 239 Md. 368, 376-377, 211 A.2d 715 (1965), in which the Court of Appeals, in a condemnation case, held that the word "acquire” means to become an owner of real property by obtaining legal title, rather than mere possession.

        See also, Levi, The Tax Consequences of the Maryland Marital Property Act, 9 U. Balt. L. Rev. 12,15-16 n. 17 (1979), discussing the argument that real property owned by a spouse prior to marriage but subject to a mortgage, may be deemed marital property if the mortgage is paid off with marital property funds.


author: Gilbert, C. J.,

text:
    DONNA POWLEY v. JOHN OWENS
    [No. 1625,
    September Term, 1980.]

      Decided July 10, 1981.

    The cause was argued before Gilbert, C. J., and Moore and Weant, JJ.

      Fletcher P. Thompson, Assistant State’s Attorney for Dorchester County, for appellant.
    No appearance by appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

When Shannon Powley was born on June 22, 1978, fate threw her three fast, hard strikes. The "first strike” on Shannon was that she was born out of wedlock; the "second strike” was that her birth was premature, in that she was delivered after a pregnancy term of five months and 22 days. As a result, Shannon was transported from Dorchester General Hospital to Sinai Hospital in Baltimore City in order to receive the medical care necessary to keep her alive. The "third strike” was that her biological father refused to pay his share, namely $8,375.49, of the medical bill which "w§s just short of $18,000.00.” The third "strike” is vicariously on Shannon because her mother will be called upon to pay the entire bill, thus, depriving the child, at least indirectly, of the benefit that sum would have brought to the home had it not been paid to the hospital.

We are powerless to do anything with respect to the "first strike,” except to note that the Legislature and the courts have made great strides toward removing the social stigma, if any, that attaches to the innocent child born out of wedlock. The two hospitals provided the medical care necessary to sustain young Shannon’s life and, thereby, eradicated "strike two.” The "third strike” took the form of an order signed by the Circuit Court for Dorchester County. We think that "strike” was a "bad call,” and we reverse it for the reasons hereinafter set forth.

I.

— THE FACTS —

On August 26, 1980, the appellee was found, by a jury, in a paternity proceeding held in the circuit court, to be the father of Shannon. The appellant petitioned the circuit court to "order... [the appellee] to pay a substantial portion of the [hospital bill] balance.” On September 25, 1980, the court denied the request but directed the appellee to pay $25 per week for Shannon’s support.

II.

— THE ISSUES ON APPEAL —

Appellant poses two questions for our consideration:

1. Is the father of a child, born out of wedlock, legally required to pay for the medical costs that are incurred in order to keep the infant alive?

2. May the court require the father of such a child to pay for the lying-in expenses of the mother of the child?

III.

— THE LAW —

The General Assembly declared, in Laws 1963, ch. 722, § 1, now codified as Md. Ann. Code art. 16, § 66A:

"The General Assembly declares its conviction that the State has a duty to ameliorate the deprived social and economic status of children born out of wedlock and that the policies and procedures as contained in this subtitle and in § 66 of this article relative to establishing the paternity of such children, determining who shall have their custody or guardianship and who shall be charged with their maintenance and support are socially necessary and desirable, having as their threefold purpose (1) the promotion of the general welfare and best interests of such children by securing to them, as near as practical, the same right to support, care and education as legitimate children; (2) the imposition upon both parents of such children the basic obligations and responsibilities of parenthood and (3) the simplification of procedures.” (Emphasis supplied.)

Section 66H of the same article provides in pertinent part:

"(a)... (1) If the court or jury ... finds against the defendant alleged to be the putative father, the court shall pass an order declaring the defendant to be the father of the child and providing for the support and maintenance of the child. . . . (Emphasis supplied.)
(3) In addition to providing for support and maintenance of the child, the order also may require the defendant to pay all or any part of the mother’s medical and hospital expense for her pregnancy, confinement, and recovery .. . and may award counsel fees to the attorney representing the complainant or petitioner....”

The Court of Appeals, in Dorsey v. English, 283 Md. 522, 529, 390 A.2d 1133, 1138 (1978), declared that "[t]he clear intent of the statute is to impose upon both parents the obligation of parenthood by insuring that illegitimate children will enjoy the same right of support as legitimate children.”

This Court, in Williams v. Williams, 18 Md. App. 353, 356, 306 A.2d 564, 566 (1973), said in dicta that Md. Ann. Code art. 16, §§ 66A-66P was "the exclusive basis in this State for enforcing the obligation of a putative father to support his illegitimate child.”

The trial judge in the instant case brushed aside the appellant’s argument with respect to the application of Md. Ann. Code art. 72A, § 1, which pertains to parent and child. The judge relied upon the dicta in Williams. Id. In so doing, he fell into error. Williams was written without regard to the legislative direction as to the interpretation that must be placed on the noun "child” whenever it appears in the Code. Md. Ann. Code art. 1, § 16 provides:

"The word child or its equivalent shall be construed to include any illegitimate child, except in matters of inheritance, descent or distribution of real or personal property, unless such a construction would be unreasonable.”

The matter now before us concerns the question of support and maintenance of the child. Inheritance and the other testacy or intestacy exceptions found in section 16 are not involved, nor does a reading of Article 72A suggest that to interpret the word "child,” as defined in Article 1, § 16, would be unreasonable.

Md. Ann. Code art. 72A, § 1 delineates the obligation of parents to their legitimate children and prescribes 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.” (Emphasis supplied.) It has been held that the provision of medical care is included within the broad statutorily defined obligation of "support, care, nurture, welfare and education.” Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963); Craig v. State, 220 Md. 590, 155 A.2d 684 (1959).

Judge Thompson, for this Court in State v. Rawlings, 38 Md. App. 479, 481, N. 2, 381 A.2d 708, 709 (1978), called attention to the fact that in deciding that "the word child as used in Art. 72A, § 1 only referred to legitimate children,” we did not consider the effect of the definition of "child” as found in Article 1, § 16.

To satisfy the legislative intent articulated in Art. 16, § 66A of "securing to ... [illegitimate children], as near as practical, the same right to support, care and education as legitimate children,” (Emphasis supplied.), we must conclude that the provision for medical care is implicit within the phrase "support and maintenance” as contained in Article 16, § 66H (a) (1).

Recently in Polk v. Harris, 46 Md. App. 591, 599, 420 A.2d 1004, 1008 (1980), we said that there is "no basis for making any differentiation between the rights of legitimate and illegitimate children as to payments for maintenance and support.” To deny illegitimate children the right to receive medical care from their parents, while recognizing that legitimate children have such a right would be blatantly to ignore the equal protection guarantees of the Fourteenth Amendment as well as the numerous pronouncements by the Supreme Court of the United States. That Court has iterated and reiterated that illegitimate children must be extended the same rights as legitimate children, except where the differentiation serves a valid State purpose. See Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2d 436 (1968).

We think Md. Ann. Code art. 16, §§ 66A-66P must be read together with Md. Ann. Code art. 72A, after applying the definition of "child” as found in Md. Ann. Code art. 1, § 16. When so read, it is clear that a child, irrespective of its legitimacy vel non has the right to support and maintenance from both its father and mother. To the extent that Williams v. Williams, supra, indicates to the contrary, it is expressly overruled.

As a further reason for reversing the judgment of the circuit court, we point directly to Md. Ann. Code art. 16, § 66H (a) (1). That section provides, in pertinent part, that if a defendant is found to be the father of a child born outside the bonds of marriage, "the court shall pass an order” directing the father to provide "the support and maintenance of the child.” We construe the term "support and maintenance” to embrace necessary medical care and treatment. It would be foolhardy, indeed, to order a parent to provide food and shelter from the elements and, at the same time, permit the child to expire for want of medical care.

Our perusal of the record discloses that the second issue stated above was not raised and decided in the circuit court. The proceeding below was directed entirely towards the hospital expenses incurred in connection with the postnatal care of Shannon following her premature birth.

We note that Md. Ann. Code art. 16, § 66H (a) (3) confers upon the chancellor the authority to "require the defendant to pay all or any part of the mother’s medical and hospital expense” incurred as a result of the "pregnancy, confinement, and recovery....” The statute is couched in permissive terms, not mandatory terms as with section 66H (a) (1). The issue then would be whether the trial court abused its discretion in refusing to order the defendant to pay all or part of the hospital expenses of the mother.

The issue is, as we have said, not properly before us, and we do not decide it. Md. Rule 1085.

Judgment reversed and case remanded for further proceedings consistent with this opinion.

Costs to be paid by appellee.


author: Mason, J.,

text:
    STATE OF MARYLAND v. TYRONE HUNT STATE OF MARYLAND v. GEORGE SMITH
    [No. 862,
    September Term, 1980.]
    [No. 863,
    September Term, 1980.]

      Decided July 13, 1981.

      The cause was argued before Moylan, Mason and Couch, JJ.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William R. Hymes, State’s Attorney for Howard County, and A. Gallatin Warfíeld, III, Assistant State’s Attorney for Howard County, on the brief, for appellant.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellees.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to decide whether it is duplicitous under the consolidated theft statutes, Md. Ann. Code, art. 27, § 340 et seq. (Supp. 1980) for the State to charge as one offense in a single count of the charging document a series of thefts from different owners at different times and places. Section 340 (1) (5) provides:

When theft is committed in violation of this subheading pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the value of the property or services aggregated in determining whether the theft is a felony or misdemeanor.

The first and second counts of the criminal information filed against appellee, Tyrone Hunt, reads in relevant part as follows:

FIRST COUNT
That Tyrone Hunt on or about the 8th day of December, 1979, in Howard County, unlawfully did steal the goods and chattels, monies, and properties of Columbia Camera, Inc., B. Bugatch Stores, Inc., Woodward & Lothrop, Inc., The Hecht Company, Susies Casuals, J. Riggings, and Natures Exotics, having a value of Three Hundred Dollars, ($300.00) or more.
SECOND COUNT
That the said defendant on or about the said day, in the said year, at the county aforesaid, unlawfully did steal the goods and chattels, monies and properties of Columbia Camera, Inc., B. Bugatch Stores, Inc., Woodward & Lothrop, Inc., The Hecht Company, Susies Casuals, J. Riggings, and Natures Exotics, having a value of less than Three Hundred Dollars, ($300.00).

A criminal information with similar counts was also filed against appellee, George Smith. The trial court dismissed both criminal informations on the basis of duplicity. The State appeals.

The rule concerning duplicity was lucidly stated in Ayre v. State, 21 Md. App. 61, 318 A.2d 828 (1974):

It is firmly established that only one offense may be charged in a single count. In other words, an indictment charging two or more substantive offenses in the same count is objectionable as being duplicitous. * * * This rule has been recognized in the Maryland Rules of Procedure and the Maryland District Rules. * * * Thus, neither two or more common law offenses nor two or more statutory offenses may be charged in the same count.

Id. at 64-65. (Citations and footnote omitted). This rule regarding duplicity in an indictment or in other charging documents is well established in Maryland jurisprudence. See State v. Carter, 200 Md. 255, 261, 89 A.2d 586 (1952); Kirsner v. State, 183 Md. 1, 5, 36 A.2d 538 (1944); Jackson v. State, 176 Md. 399, 401, 5 A.2d 282 (1939); Simmons v. State, 165 Md. 155, 165, 167 A. 60 (1933); Weinstein v. State, 146 Md. 80, 83, 125 A. 889 (1924); Mohler v. State, 120 Md. 325, 327, 87 A. 927 (1913); State v. Warren, 77 Md. 121, 122, 26 A. 500 (1893); State v. Beers, 21 Md. App. 39, 42 318 A.2d 263 (1974); Maloney v. State, 17 Md. App. 609, 628, 304 A.2d 260 (1973); Morrissey v. State, 9 Md. App. 470, 474, 265 A.2d 585 (1970). See also Maryland Rule 712 a which provides:

a. Offenses.
Two or more offenses, whether felonies or misdemeanors or any combination thereof, may be charged in the same charging document in a separate count for each offense, if the offenses charged are the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

The rationale for the rule forbidding duplicity or "the joinder of two or more distinct and separate offenses in the same count” was succinctly set forth by the Court of Appeals in State v. Warren, supra, at 122 where it said: "The object of all pleading, civil and criminal, is to present a single issue in regard to the same subject matter, and it would be against this fundamental rule to permit two or more distinct offenses to be joined in the same count.”

There are exceptions, however, to the rule that only one offense may be charged in a single count. One such exception is:

When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute.

Ayre v. State, supra at 65 (1974). Consonant with this view, see Bonneville v. State, 206 Md. 302, 307, 111 A.2d 669 (1955); Sturgill v. State, 191 Md. 75, 78, 59 A.2d 763 (1948); Kirsner v. State, supra, at 5-6; Leon v. State, 180 Md. 279, 23 A.2d 706 (1942), cert. denied, 316 U.S. 860 (1940) where the Court of Appeals noted that the particular offense may be established by proof of any one of the acts. Jackson v. State, supra at 401 (1939); Thomas v. State, 173 Md. 676, 686, 197 A. 296 (1938); Reynolds v. State, 141 Md. 637, 640-641, 119 A. 457 (1922); Pritchett v. State, 140 Md. 310, 314, 117 A. 763 (1922); Stearns v. State, 81 Md. 341, 345, 32 A. 282 (1895); Cooper v. State, 44 Md. App. 59, 67, 407 A.2d 756 (1979); Morrissey v. State, supra at 475-476 (1970).

Another exception to the rule that only one offense may be charged in a single count is whether the property is systematically stolen from one owner over a period of time, e.g., a series of embezzlements. See Delcher v. State, 161 Md. 475, 483, 158 A. 37 (1934).

A further exception to the rule that only one offense may be charged in a single count of the charging indictment was expressed in the case of Warren v. State, supra at 122 (1893) where the Court held that "the stealing of several articles of property at the same time, whether belonging to the same person, or to several persons, constituted but one offense.” Accord, Melia & Shelhorse v. State, 5 Md. App. 354, 363, 247 A.2d 554 (1969) where we stated:

And although it is the rule that the stealing of several articles at the same time belonging to several persons may constitute one offense and be charged in one count, it is necessary that the count allege the ownership of each article, and not just generally that the articles belonged to the several owners.

On the other hand see Anderson, WHARTON’S CRIMINAL LAW & PROCEDURE, § 451 (1957) where it states:

If different articles are taken from different owners at different times, the defendant is guilty of separate larcenies. Accordingly, if on the same expedition there are several distinct larcenous takings, as taking the goods of one person at one place, and afterward taking the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings ....

None of the exceptions stated herein is applicable to the facts in this case. Here we are concerned with the State charging appellees in one count with several thefts from different owners at different times and places within the Columbia Mall. The State argues on appeal as it did below that the thefts were committed pursuant to one scheme or continuing course of conduct, and thus it is permissible to charge appellees with the alleged thefts in one count. As we view it, the purpose of section 341 (1) (5) of the theft statute is to permit the State to aggregate the value of all property stolen pursuant to one scheme or continuing course of conduct to determine whether the theft is a misdemeanor or a felony. For example, if a thief steals $50 from 10 people pursuant'to one scheme or continuing course of conduct, he cannot escape felony liability because no single theft exceeds $300. Likewise, an embezzler who pursuant to one scheme or continuing course of conduct peculates a small sum of money over a period of time is judged in light of his total defalcation and not by the amount he takes at a single moment. Of similar import, see the commentary to section 340 (1) (5) which reads, in part, as follows:

The paragraph on aggregation was inserted on the basis that a person who steals property at different times from several persons and places as part of a continuing scheme has engaged in activity which is just as reprehensible as a person who steals an equal amount from a single person and place at one time. It is a marked departure from the common law which requires that the property be stolen from a single person at a single time and place.

REVISION OF MARYLAND THEFT LAWS AND BAD CHECK LAWS 27 (1978).

Although section 340 (1) (5) creates another exception to the rule that only one offense may be charged in a single count of the charging documents, we think it clear that before a series of thefts from different owners at different times and places can be considered as one offense, charged in a single count of the charging document, and the value of the stolen property aggregated, the thefts must be committed pursuant to one scheme or continuing course of conduct. The charging documents in question allege a series of thefts but fail to allege that they were committed pursuant to one scheme or continuing course of conduct. Therein lies the problem. Absent such an allegation, the charging documents merely allege separate and distinct crimes in a single count which makes them duplicitous. Accordingly, we conclude that the trial court did not err in dismissing the criminal informations on the basis of duplicity.

The State further contends that appellees waived their objections to the charging documents by not timely filing their motions to dismiss. Inasmuch as this issue is not "inextricably intertwined” with the dismissal of the charging documents on the basis of duplicity, it is not reviewable on this appeal. See State v. Bailey, 289 Md. 143, 151 (1980).

Judgments affirmed.

Costs to be paid by Howard County.

      . Theft of goods valued at $300.00 or more is a felony; theft of goods valued at less than $300.00 is a misdemeanor. Md. Ann. Code art. 27, § 342(f)(l)(2) (Supp. 1980).