Adams v. Adams , 196 A.2d 915 ( 1964 )

MYERS, Associate Judge.

As result of a suit filed by the former wife of appellant seeking support and maintenance for their minor daughters, the trial court on February 21, 1961, entered an order, with consent of the parties, awarding custody of the two minor children to their mother, appellee, with reasonable rights of visitation for the father, and directing appellant to pay for the support of the children during their minority. Payment was to be made through the clerk’s office of the Domestic Relations Branch.

Less than a month later appellee petitioned for consent to take the children to England for three months for a visit to their maternal grandparents. On June 8, 1961, judicial approval for such visit was given on condition that the children he returned to this jurisdiction not later than July 17, 1961. Instead of taking the children to England, however, the mother took them to Tangier, Morocco, where she married a native of Iraq resident in Morocco and has continued to reside there with the children since that time.

When the children were not brought back to this jurisdiction, the trial court found the mother in contempt and sentenced her to thirty days in jail and a fine of $10 per day until the children were returned. At the same time the father was directed to continue his payments for the children through the clerk’s office, which payments were to be held in escrow until further order of the court. An appeal was taken by the mother from this order.

We held¹ that due to the conduct of the mother in departing from this jurisdiction with the children, thus “making herself immune from process of any court of this jurisdiction and depriving such courts of all control over the children,” any further order respecting the children or their mother could not be enforced. We declined to pass upon the merits of her appeal and ruled that unless the children were returned to this jurisdiction within ninety days, the appeal would stand dismissed. As neither the mother nor the children returned within that time (or thereafter), the appeal of the mother was dismissed.

Following the filing of a motion in the trial court by the father in 1962 to reduce or eliminate the monthly support payments he had been ordered to make and to transfer to him the unused accumulated funds in the custody of the court, a new order was issued March 6, 1963, overruling his motion, appointing a trustee under bond, and directing the clerk of the court to turn over and transfer to the trustee all funds held under the original support order of February 21, 1961. This was done and the funds are now on deposit in the name of the trustee. The present appeal is by the father from this order.

Appellant asserts, inter alia, that the trial court lacked jurisdiction to make such a ruling, that it abused its power and acted arbitrarily, and, as there was no showing of present need for support of the minor children, the payments should have been terminated.

The posture of the case has not changed since we ordered the mother to return the minor children to this jurisdiction. The father has continued to make the payments as ordered, but they could not be utilized by the mother and legal custodian. Our courts are still without power to enforce their orders for the benefit of the children.

By disobedience, deliberate and wilful, to the agreed terms and conditions, of the custody award and of the order approving a short trip to England, the mother has not only placed the children where they are not accessible to their father but has arrogated to herself their full control. After seeking the aid of the court to secure support for the children and accepting custody conditioned upon the right of the father to see and associate with his minor daughters, appellee thereafter, by removing the children from this jurisdiction, completely negated the order of custody and deprived both the father and the court of their respective right, duty and obligation to exercise continued supervision of the children and provide for their welfare.

In view of the situation created by the mother, we are of the opinion that the circumstances of the present case carry it beyond the general rule that a father’s duty to support his minor children is undiminished by any controversy between the parents or the delictum of the mother.² Here we have no showing of any distress or destitution or real want of any kind by the children. The father has been complying' with the support order, but the payments have been accruing, unexpended. As the mother has had no use of these sums for the care of the children, it must be assumed that she has been providing for them from her own resources, for which she is not entitled to reimbursement from the funds on hand here.

There is nothing in the record before us to indicate that termination of the support order would in any way penalize the children. At any time they are returned to this jurisdiction, the courts will be open to them for resumption of their supervision and care as parens patriae and will consider their needs in the light of their father’s ability to pay. Now, however, the mother should not be permitted to dictate from Morocco the terms of support to meet her own ideas of compliance with the orders of court. To make the funds available to her would only further aid and encourage her in continued rebellion against the court’s proper authority. She has shown no respect to date for the edicts of the court, and there is little expectation she will do so in the future; and in view of her past conduct, little reliance can be placed on any statements now made by her by way of affidavit or otherwise.

As the support payments heretofore contributed by the father have not been utilized for the maintenance of the children, and as appellee is not entitled to be reimbursed from these funds for the support she has been presumably providing them, we hold that the payments should be forthwith terminated.³

We are further convinced that the trial court was without authority to appoint a trustee to take over the accumulated support payments made by the father through the clerk’s office. These monies represent contributions for specific periods for current support and cannot be kept, when not used for that purpose, for anticipated future needs of the children. We are not dealing with a problem of modification or remission of unpaid support instalments,⁴ but with fully-paid support payments which were not used for the specific purpose designated in the order of support. We hold that they should be returned to the father as lawful owner of monies not distributed for the children’s maintenance at the times designated.

Accordingly, it is our ruling, for the reasons stated, that

(a) the order of February 21, 1961, be modified to terminate any future support payments for the two minor children, until further order of the court;

(b) the order filed March 6, 1963, be modified to vacate and set aside the appointment of Paul M. Conway, Esq., as trustee, with directions to him to make an accounting of all funds that have come into his possession and to transfer all such funds to the Chief Deputy Clerk, Domestic Relations Branch; and

(c) the Chief Deputy Clerk, Domestic Relations Branch, shall then pay over said funds, so received from the aforesaid trustee, to appellant Thomas William C. Adams upon his written receipt therefor.

Reversed with instructions.

1 . Adams v. Adams, D.C.Mun.App., 184 A.2d 213.

2 . Britt v. Britt, D.C.Mun.App., 153 A.2d 644; Edmonds v. Edmonds, D.C.Mun.App., 146 A.2d 774.

3 . The custody order embodying support as approved by both parents and by the court was geared to meet the children’s needs in the District of Columbia and not in a foreign land where their maintenance requirements might be understandably different

4 . Kephart v. Kephart, 89 U.S.App.D.C. 373, 193 F.2d 677, cert. denied 342 U.S. 944, 72 S.Ct. 557, 96 L.Ed. 702.