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The Holly Court's Discussion of
Emancipation in Maryland
"We
pass, accordingly, to a consideration of the question whether the
appellants were emancipated.
The early case of Mercer v. Walmsley, 5 H & J 27 (1820)
makes plain that emancipation of an infant must emanate from the parent
and not the child, saying at page 34:
".
. . the right of the father to the services of the daughter, during
minority, depends not on her. Let her design to leave him be ever so
determined, she has no legal right so to do, or when from under his
roof, she has no right to form a determination never to return; and if
such a determination is made, still the father has a right to compel her
return, and have the benefit of her services. Nor is it clear to me,
that even with the consent of the father, that she should permanently
leave his protection, would the case be materially different; for as no
contract between the father and minor daughter would be binding, a
stipulation or understanding that she should permanently leave him, and
shift for herself, would be nugatory. But that is not the case now
before the Court."
Bullett
v. Worthington, 3 Md. Ch. 67 (1851), expressed a similar view, the Court saying at page
71:
".
. . the services were rendered whilst the son lived with the father, and
during his minority. Under such circumstances, and, indeed, even though
the son did not live with the father, still, being a minor, the father
was entitled to his services, and could maintain an action for them, unless,
by some act of his own, he had divested himself of his
control over him." (Emphasis added)
Greenwood
v. Greenwood, 28 Md. 369, 381 (1868) although recognizing that a father is entitled
to the custody of his minor children and to the value of their labor
during minority, declared that such right may be destroyed "by some
act of his own." The Court in Greenwood went on to say at
384: "In what manner and by what acts this can be done must depend
on the special circumstances of each case."
Malone v. Topfer, 125 Md. 157, 93 Atl. 397 (1915), and Lucas
v. Maryland Drydock Co., 182 Md. 54, 31 A. 2d 637 (1943) recognized
the doctrine of emancipation resulting from the forfeiture of parental
rights by reason of abandonment or mistreatment.
Bradford v. Futrell, 225 Md. 512, 171 A. 2d 493 (1961),
discussing tangentially the question of emancipation, said at 520 [497]:
"Whether
the entering of a dependent child into the military service constitutes
an emancipation falls under the general principle that whether
emancipation has occurred in a given case is a factual question."
We
distill from those decisions the following general principle:
emancipation of a minor may not be achieved by the voluntary
action of the child but may result (a) from abandonment or mistreatment
by the parent, or (b) from a voluntary relinquishment of parental
rights.
In the subject case there is not the slightest evidence of neglect,
misconduct or abandonment by the parents of either Holly or Josiah. We
turn, accordingly, to the question whether emancipation of either or
both has occurred by reason of voluntary relinquishment of parental
rights.
The case of Parker v. Parker, 94 S.E.2d 12, 13 (S. Car., 1956)
stated what we believe to be the proper test governing determination of
the emancipation issue in a given case:
"Emancipation
during minority results not from any act of the child alone, but
primarily from agreement of the parent, which may be either express or
implied. It may be either partial or complete. If partial, it frees the
child for only a part of the period of its minority, or from only a part
of the parent's rights, or for some special purpose, such as the right
to earn and spend its own wages. If complete, it completely severs the
parental relationship so far as legal rights and liabilities are
concerned. Whether or not a minor child has been emancipated depends
upon the peculiar facts and circumstances of each case, and is,
therefore, generally a question for the jury. Emancipation of a minor
child is never presumed, and the burden of proof is upon him who alleges
it."
The
trial judge concluded from the evidence that "* * * the facts in
this case are not sufficient to establish that there was, in fact,
emancipation." The trial judge's conclusion upon this factual issue
must stand unless our examination of the record shows that it was
clearly erroneous. Maryland Rule 1086. Thus, if there is any competent,
material evidence directly or by reasonable inference tending to justify
that conclusion, we must affirm. Carling Brewing Co. v. Belzner,
15 Md. App. 406, 413, 291 A. 2d 175, 179 (1972).
No testimony by the parents of either appellant was presented to the
trial judge. We are left, accordingly, to an examination of the record
to determine whether emancipation must be implied as a matter of law. We
think not.
Common to the claims of both is the circumstance that they undertook to
pursue studies at the nursing school for three years and to bind
themselves thereafter for two years of service as nurses at [***15]
the Provident Hospital.
Further Evidence as to Josiah
Mary Ann Josiah was born in Antigua on January 8, 1952. She was a
citizen of the West Indies, in the United States on a student visa. Her
parents continued to lend her financial support whenever she needed it
after her arrival in Maryland. She came to the United States in April,
1971 with a plan to live with an aunt in Takoma Park and to attend
Howard University in Washington, D. C. The decision to attend nursing
school in Baltimore was made after arrival. She commenced her classes in
September, 1971. She was not qualified for permanent residence in the
United States.
Josiah's parents had provided her with funds for her upkeep both
initially and in the subsequent course of her schooling. This
circumstance alone prevents us from a declaration that the conclusion of
the trial judge was clearly erroneous as to Josiah. Rule 1086.
Further Evidence as to Holly
The issue as to Holly is not so clear cut. Joann Holly was born in
Pennsylvania on April 6, 1953. She came to Baltimore in September, 1971
to become a nursing student at the Helene Fuld School of Nursing in
Baltimore. Her parents at all times were residents of Pennsylvania. She
had a Pennsylvania driver's license. She registered to vote in Maryland
-- after the accident. When asked about her future plans at the time she
came to Baltimore in September, 1971 she replied, "Well, I was
planning to stay here for at least the next five years. I didn't know
what I was going to do after that."
The testimony showed she was self-supporting without financial
contributions by the parents subsequent to her arrival within this
State. Her stay in Maryland prior to the accident and injury had been of
only about two months duration. We do not regard these circumstances as
conclusively establishing emancipation for the full period of her
minority. Nor do they demonstrate as a matter of law, the voluntary
relinquishment of all parental rights. Although the issue is close, we
cannot declare, as a matter of law, that the evidence shows a voluntary
relinquishment of all parental rights and obligations. We must recognize
that the contractual undertaking with the nursing school was voidable
during infancy. We must recognize also that the parents may have, during
the minority of their child, required her to return to Pennsylvania. The
trial judge was not required to assume that parental control had been
fully relinquished; or parental responsibility ended.
Because we conclude that the decision of the trial judge was not clearly
erroneous, we do not reach the interesting question whether the
emancipation of a minor child encompasses the right to acquire a
domicile of choice.” |
