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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
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3 Child Advocacy: Foster youth deserve and are entitled to placement in least restrictive, licensed settings, commentator writes
4
Cover Story: New mortgage assumption law is a boon in divorce, but it’s not for everyone
6 In the News:
Qualified immunity shields social worker in foster placement case
7 In the News:
Remand ordered to review interpretation of separation agreement
8
Monthly Memo
Name change order remanded to review child’s best interests … SC appeals court finds adultery justified unequal division of marital estate … Lottery winnings not a reason to vacate divorce judgement … Adoption ruling sent back to juvenile court for review
Commentary: Foster youth are entitled to placement in least restrictive, licensed settings
There is a shortage of licensed foster care placements in Maryland, especially for teenagers.
As a result, local departments of social services have been utilizing unlicensed, short-term placements, such as hotels and room rentals, for children without foster care placements and requiring youth to remain hospitalized beyond medical necessity.
DSS has even temporarily approved overnight stays for some teenagers in the DSS office building, providing a cot for a bed and vending machines for food while awaiting appropriate placement.
In the fall of 2023, after multiple placement disruptions, a teenager in foster care was placed in a hotel with a one-to-one aid.
In the summer of 2024, after residing nine months in a hotel, that youth was required to stay at the DSS office building until a licensed placement was located.
The youth ran away as opposed to staying in the office building.
Another teenager in foster care, who has been psychiatrically hospitalized since March 2026 and medically cleared for discharge since April 2026, remains at the hospital while DSS seeks an appropriate placement.
She has been rejected by all appropriate in-state placements and at least one out-of-state residential treatment center due to her developmental and mental health needs.
In response to numerous similar cases, Maryland legislators introduced several bills during the 2026 legislative session designed to protect foster youth and ensure they are housed in the least restrictive, most appropriate setting.
One such bill, Maryland House Bill (“HB”) 1559, a bipartisan bill, was signed by Governor Wes Moore on April 28, 2026, and went into effect on June 1, 2026.
WEAVER SHANNON
Child Advocacy
Now codified under Family Law § 5-525, this new law prohibits the placement of youth in foster care in unlicensed settings.
It defines “unlicensed settings” to include hotels, motels, short-term rentals, shelters designed to meet the needs of homeless or runaway youth, office buildings, and other nonresidential environments.
The law therefore prohibits placing youth in foster care in hotels and office buildings.
The law also addresses the ongoing concern that Maryland foster children with significant medical and mental health needs remain hospitalized after they are medically ready for discharge, resulting in pediatric hospital overstays, while DSS seeks appropriate placement for these youth.
“Pediatric hospital overstay patient” is defined as a “patient under the age of 22 years who remains in an inpatient unit or emergency department of a hospital for more than 48 hours after being medically cleared for discharge or transfer.”
The law provides for “pediatric hospital overstay coordinators” within the Department of Human Services who “shall act in the best interest of a pediatric overstay patient by coordinating between hospitals, relevant state agencies and programs, and providers of mental health and substance use disorder services.”
Additionally, the coordinators are directed to advocate on behalf of pediatric overstay patients; review policies and procedures and make recommendations to better serve pediatric overstay patients; maintain data on each pediatric overstay patient, including length of stay, services needed,
and placement options being sought for the patient; and report data collected to the Maryland DHS Secretary.
Finally, the statute provides that DHS (through its local DSS office) “shall ensure that a pediatric hospital overstay patient who is a child committed to the care and custody of the Department of Human Services is transferred to and treated in the least restrictive setting when clinically indicated and when possible.”
Child welfare advocates should ensure that their clients’ placements comply with these provisions.
While these provisions are significant in addressing the concerns of appropriate foster care placements, the dearth of licensed, appropriate placements for Maryland’s youth in foster care must continue to be addressed.
Continued efforts must be made to recruit, support, and retain kinship caregivers and foster parents equipped to meet the needs of teenagers and youth with special medical and therapeutic needs.
While a family setting is usually preferable to congregate care, a variety of different types of placements such as group homes, independent and semi-independent living programs, and short-term treatment centers should be retained for youth who require, or prefer, these settings over traditional foster care.
In addition to the law established by HB 1559, appropriate, licensed placements must be created and maintained to ensure that youth in foster care remain out of unlicensed settings and pediatric hospital overstays.
All youth in foster care should be placed in the least restrictive setting where their physical, emotional, and developmental needs are supported.
Shannon Weaver is a Supervising Attorney at Maryland Legal Aid.
New mortgage assumption law
is a boon in divorce, but it’s not for everyone
Submitted
By Hope Keller Special to The Daily Record
Thanks to a new Maryland law, a divorcing spouse who wants to keep the marital home now has an option
the
besides refinancing -- a boon considering interest rates have more than doubled over the last five years.
A soon-to-be-ex-spouse can now assume the existing mortgage and keep the same interest rate, if they
qualify for the mortgage on their own. Of course, the other spouse must find a new home and pay today’s higher interest rate.
“It’s easier than if whoever was staying in the home had to refinance
photo
Ferrier Stillman is a partner at Tydings & Rosenberg in Baltimore and co-chair of
firm’s family law and health care practice groups.
and the other party also had to go out and get a mortgage,” said Ferrier Stillman, a partner at Tydings & Rosenberg in Baltimore and co-chair of the firm’s family law and health care practice groups.
Stillman emphasized that it’s too soon to say how much of an impact the new law will have, since it took effect only in October.
“I think it’s too soon to know whether it will be a big help, but my estimation is that it will be,” she said.
The law applies to mortgage loans issued on or after Oct. 1, 2025, as well as retroactively to mortgages issued before that date if the divorce decree was entered on or after Oct. 1, 2025. The law applies only to conventional mortgage loans and not to federally backed loans, such as FHA or VA mortgages, or to mortgages issued by major national banks, such as Bank of America or Wells Fargo.
What’s possible
Samantha Kravitz, a principal in Offit Kurman’s family law practice group in Bethesda, cautioned that while mortgage assumption sounds great, it’s not always possible.
“If you’re doing a buyout where one spouse is keeping the house and buying out the other spouse’s interest, the cash has to come from somewhere,” Kravitz said. “In an ideal world, they have a pot of money and they can just pay it. (But) most people don’t have that luxury, and so they would have to refinance to get cash out of the house.”
Workarounds are possible, Kravitz noted. She gave the example of a couple that jointly owns a house and a business: The spouse who is bought out of the business can use that money to help buy out the other’s interest in the house.
“We can get creative and use different offsets to make it happen,” she said.
Working with the lender
Whether borrowers receiving spousal support can count that in-
come toward qualification for a mortgage depends on the bank, Stillman said.
“Every financial institution can essentially set whatever standards they want,” she said. “In Maryland cases, typically banks want to see both an agreement that alimony has to be paid for a certain amount (of time) and then it having been paid for a certain amount of time.”
Kravitz emphasized that the person seeking to assume the mortgage must contact the lender to fully understand the process.
“I have found the mortgage lenders really want to be cooperative, and it is more of a known process now,” she
said. “I’m seeing clients reach out and then get this whole long email list of instructions from the lender explicitly laying out the timeline and what’s required. That’s really helpful information when negotiating an agreement.”
The new law helps make a difficult period less stressful, Stillman noted.
“Just in general, it is complicated for parties going through a divorce to access banking services and to access credit, so this makes it easier,” she said. “It hopefully saves a lot of time that you might spend trying to convince a bank or a mortgage company (to give you a loan). You can point to the law and it’s going to save time and money and frustration.”
Submitted photo
Samantha Kravitz is a principal in Offit Kurman’s family law practice group in Bethesda.
Qualified immunity shields social worker in foster placement case
Bridgetower Media Newswires
COLUMBIA, SC — Even assuming the placement of a foster teenager with a known history of sexual misconduct into their home created a serious risk of harm, plaintiffs failed to identify clearly established law recognizing a constitutional right belonging to the biological children of foster parents under those circumstances. As a result, the social worker was entitled to qualified immunity from liability under 42 U.S.C. § 1983, the 4th U.S. Circuit Court of Appeals has found, affirming summary judgment in favor of the South Carolina Department of Social Services employee.
The case arose after South Carolina foster parents agreed to accept placement of a 16-year-old foster child in their home. Before accepting the placement, the foster mother sought information about the teenager’s background and informed state officials that the family would not accept children with histories of sexual aggression or sexual trauma. According to the record, the social worker disclosed that the teenager should not have access to computers or the internet because he had been “preyed upon” by an adult, but did not reveal information indicating that he had previously engaged in inappropriate sexual conduct involving other children. Internal records reportedly included warnings that the teenager should not be around younger boys because of “uncontrollable sexual urges.”
After moving into the home, the teenager allegedly exposed the foster parents’ young sons to pornography, masturbated in front of one of them, and encouraged sexual conduct. The state later removed the foster child from the home. Acting through their guardian ad litem, the boys sued the
social worker under Section 1983, alleging she violated their substantive due process rights by knowingly placing a dangerous foster child into their household without disclosing critical information about his history.
The central issue on appeal was not whether the placement decision was negligent or even reckless, but whether existing constitutional law clearly established that children living in a foster home possess a federal due process right to be protected from harm caused by a foster child placed there by the state. The plaintiffs relied heavily on prior 4th Circuit precedent recognizing that foster children themselves may possess substantive due process protections when the state places them in dangerous foster-care settings.
The court concluded those precedents did not resolve the question presented. It noted that earlier decisions involved duties owed by the state to foster children in state custody, not duties owed to the biological children of foster parents. Because plaintiffs were never in state custody and no controlling precedent had extended constitutional protection to children in their position, the court held that a reasonable social worker would not have been on notice that the place-
ment violated a clearly established constitutional right.
Rejecting the argument that the alleged violation was so obvious that no closely analogous precedent was required, the court stressed that substantive due process claims generally require clear legal authority before government officials can be held personally liable.
Finding no such authority from the Supreme Court, the 4th Circuit, or South Carolina’s highest court, the panel affirmed the district court’s judgment and held that qualified immunity barred the claims against the social worker.
C.L.G. v. South Carolina Department of Social Services (Lawyers Weekly No. 003-012-26, 9 pp.) (Per Curiam) Appealed from the U.S. District Court for the District of South Carolina, at Columbia (Sherri A. Lydon, J.) ARGUED: Robert James Butcher, CAMDEN LAW FIRM, PA, Camden, South Carolina, for Appellants. Michael Hart Montgomery, MONTGOMERY WILLARD, LLC, Columbia, South Carolina, for Appellees. ON BRIEF: Deborah J. Butcher, FOSTER CARE ABUSE LAW FIRM, PA, Camden, South Carolina, for Appellant. U.S. Court of Appeals for the Fourth Circuit Unpublished.
BridgeTower Media Newswire
The 4th U.S. Circuit Court of Appeals is seen in Richmond, Va.
Remand ordered to review interpretation of separation agreement
Bridgetower Media Newswires
BOSTON, MA Where a Probate & Family Court judge declined to hold a husband in contempt of a divorce judgment, the judge did not abuse her discretion, but a remand should be ordered because the judge erred in her interpretation of the parties’ separation agreement.
“… The wife contends that portions of the judgment are based on an erroneous interpretation of the parties’ separation agreement (agreement). Specifically, she argues that the judge erred in (1) concluding that the agreement is ambiguous and therefore allows alimony payments related to certain stock options to be made upon liquidation rather than upon vesting, and (2) declining to hold the husband in contempt for failing to pay alimony based on the value of the stock options upon vesting. Although we conclude that the judge did not abuse her discretion in declining to find the husband in contempt, we agree that the judge erred in her interpretation of the agreement and remand the case for a redetermination of the husband’s alimony arrears owed to the wife from the vested stock options. …
“At the time of the divorce, the husband worked for the company AvroBio, Inc. (AvroBio). AvroBio granted him approximately one million restricted stock units (RSUs) at various times during his employment. In 2023, the husband sold AvroBio RSUs for $425,212.04. …
“On appeal, the wife contends that the judge erred by concluding that the agreement was ambiguous and by allowing the value of the husband’s ‘stock options/RSU’s’ to be determined at the time he chose to liquidate them, rather than when they vested. We agree. …
“The key provision of the agreement requires the husband to pay the wife a percentage of the value of his RSUs
A Massachusetts court remanded a divorce case for a review of a separation agreement.
when they are ‘received,’ which is specified as occurring ‘upon vesting if no further event is needed for the Husband to liquidate the asset.’ Although the agreement does not specify every possible ‘further event’ that might delay the husband’s ability to liquidate his RSUs, this does not create ambiguity. Accordingly, the judge’s decision to reform the agreement to allow valuation of the RSUs upon liquidation overlooks the parties’ express choice to treat RSUs as received ‘upon vesting,’ except if some condition precedent to permissible liquidation has yet to occur. …
“Furthermore, because at the time of the agreement the parties anticipated that the husband would be granted AvroBio RSUs, the agreement also requires the husband to provide information ‘to verify the number and strike price of such options/RSU’s and the vesting schedule, terms and conditions, and he shall also provide [the wife] with the grant award notification (if any) and relevant stock option agreement and/or plan.’ There would be little reason to include a provision allowing the wife to verify the schedule, terms, and conditions of the vesting of the AvroBio RSUs if they were not to be included in the
husband’s gross income until whenever he chose to liquidate the assets.
“Because the language is clear that, in the absence of circumstances not present here, the RSUs were to be treated as part of the husband’s gross income upon vesting, the judge’s interpretation was erroneous. …
“Nevertheless, the judge did not abuse her discretion in declining to find the husband in contempt for having paid alimony based on the value of the RSUs upon liquidation. … The judge’s conclusion that the wife did not show clear and convincing evidence of clear disobedience was within the range of reasonable alternatives and, therefore, not an abuse of discretion. …
“Paragraph 2 of the contempt judgment dated October 15, 2024, is vacated. The case is remanded for redetermination of the husband’s alimony arrears owed to the wife as of the date his RSUs vested, consistent with the parties’ separation agreement dated April 1, 2016. The contempt judgment is otherwise affirmed.”
Mackay v. Ford (Lawyers Weekly No. 81-068-26) (8 pages) (Docket No. 25-P-303) (July 8, 2026).
Name change order remanded to review child’s best interests
DETROIT, MI Where a plaintiff mother has challenged the trial court orders awarding the defendant father parenting time and changing the minor child’s last name, a remand is necessary for the trial court to consider the child’s best interests specifically in addressing the defendant’s request to change the child’s surname and to evaluate whether a power of attorney is required during the defendant’s out-of-state parenting time.
“In an appeal by right, plaintiff-appellant/cross-appellee, Christina Francesca Repp, challenges the trial court’s: (1) award of parenting time to defendant-appellee/cross-appellant, Adam Joseph Repp; and (2) decision to change the minor child’s last name. In a cross-appeal, defendant argues that the trial court erred by failing to award joint legal custody and physical custody and by apportioning most of the travel burden on defendant. We affirm in part, vacate in part, and remand for further proceedings. …
“On appeal, plaintiff argues that the trial court erred by: (1) awarding substantial parenting time to defendant, and (2) changing the child’s last name. We disagree with plaintiff’s first argument, but we agree with her second argument.…
BridgeTower Media Newswires
SC appeals court finds adultery justified unequal division of estate
COLUMBIA, SC The South Carolina Court of Appeals held that a husband was entitled to a larger share of the marital estate and an award of attorneys’ fees after obtaining a divorce on the ground of his wife’s adultery, while affirming the family court’s visitation schedule and other rulings.
The parties disputed the family court’s equal division of marital property, denial of attorneys’ fees and custody-related rulings following the dissolution of their 17-year marriage. The husband argued that the property division failed to account for the wife’s
Monthly Memo
adultery, his role as the children’s primary caregiver and his diminished earning capacity following retirement.
The Court of Appeals agreed that the family court erred in denying the husband’s request for attorneys’ fees without applying the governing statutory and common-law factors. Conducting its own analysis, the court concluded that an award was appropriate. Although the parties had similar incomes at the time of trial, the husband was retired, relied primarily on Social Security benefits and faced significantly lower future earning potential, while the wife remained employed. The court also emphasized that the husband prevailed on several significant issues, including obtaining a divorce based on adultery, primary custody of the children, the marital home and a contempt finding against the wife. It therefore awarded him $15,000 in attorneys’ fees. ...
BridgeTower Media Newswires
Lottery winnings not a reason to vacate divorce judgment
PROVIDENCE, RI Where a defendant moved to vacate his divorce judgment after his ex-wife cashed a winning $4 million lottery ticket, a Family Court judge’s denial of that motion should be affirmed because the divorce judgment is not void for want of jurisdiction.
“A seemingly routine, straightforward, nominal divorce on the grounds that the parties had lived separate and apart for a period of at least three years became contentious when the plaintiff … cashed a winning $4 million lottery ticket on November 4, 2020. The defendant … appeals from the Family Court’s denial of his motion to vacate the final judgment of divorce. The defendant moved to vacate the judgment based on his belief that the plaintiff had bought the winning lottery ticket prior to entry of the final judgment on October 8, 2020.
“The defendant’s sole basis for challenging the decision of the Family Court is that the entry of final judgment is void and must be vacated. The plaintiff suggests that the final judgment is not void because the Family Court had ju-
risdiction to enter it, even if it did so untimely.…
BridgeTower Media Newswires
Adoption ruling sent back to juvenile court for review
BOSTON, MA Where (1) a mother agreed to her child’s adoption, executing a written consent form as required by G.L.c. 210, §2, (2) when the planned adoption fell through and the child became the subject of a care and protection petition in the Juvenile Court, the mother filed a motion to revoke her consent on the ground that she had not understood the paperwork she had signed, (3) a Juvenile Court judge denied the motion, determining that the Juvenile Court lacked jurisdiction because the mother consented to adoption before the care and protection proceeding had commenced, and (4) the motion judge likewise declined, on jurisdictional grounds, to entertain the mother’s motion to approve an open adoption agreement, a remand should be ordered because the Juvenile Court possessed jurisdiction to hear and decide both matters.
“Relevant to the disposition of this appeal, critical amendments to cc. 119 and 210 of the General Laws went into effect in 1993. Chapter 303 of the Acts and Resolves of 1992 inserted subparagraph (4) into G.L.c. 119, §26(b), and amended paragraph (b) of G.L.c. 210, §3, to permit entry by Juvenile Court judges of decrees dispensing with the need for consent to adoption of children named in care and protection petitions. ... Soon thereafter, the Legislature amended G.L.c. 210, §1, by adding the following language, which remains in effect today: ‘The district or juvenile court may, if it appears necessary or convenient, exercise the powers authorized by [c. 210], but only in respect to a pending proceeding before such district or juvenile court.’ ...
“The sentence of G.L.c. 210, §1, quoted above gave the Juvenile Court jurisdiction to inquire whether the mother’s consent to Zula’s adoption under G.L.c. 210, §2, was valid. …
BridgeTower Media Newswires
Family Law Digest
SEAN W. LEDBETTER V. TIFFANY S. LEDBETTER
Contempt; purged; sanctions
No. 324, September Term 2025
Argued before: Nazarian, Arthur, Zic, JJ.
Opinion by: Arthur, J.
Filed: June 12, 2026
The Appellate Court vacated the Prince George’s County Circuit Court’s contempt order. The written order of June 6, 2025, which purports to hold husband in contempt, to reserve the imposition of sanctions against him and to give him 10 days to purge his putative contempt, even though he had purged his contempt more than two months earlier, is vacated.
The Appellate Court affirmed the Howard County Circuit Court’s indefinite alimony award. This court finds no error in the circuit court’s determination that an unconscionable disparity exits and, therefore, the award of indefinite alimony to wife in the amount of $1,715 per month was not erroneous.
The Appellate Court affirmed the Prince George’s County Court’s child support award. Although father argued the award did not consider his child-related expenses, he failed to produce evidence of the actual expenses incurred on the child’s behalf.
The Appellate Court affirmed the Prince George’s County Circuit Court’s denial of aunt’s motion for an order seeking special immigrant juvenile status of her niece, nunc pro tunc, to a date before the minor turned 21, when she became ineligible for such status. The court’s denial of aunt’s motion was not a clerical error that can be corrected nunc pro tunc. And even if entry of the order nunc pro tunc were proper, the minor is not substantively eligible for a special immigrant juvenile status predicate order.
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s monetary award and its refusal to award alimony to husband. In both decisions, the circuit court weighed the appropriate factors.
Family Law Digest
BRANDON KINSEY V. SAMANTHA CROUSE
Material change; custody; modification
No. 0521, September Term 2025
Argued before: Zic, Ripken, Eyler, James (retired, specially assigned), JJ.
Opinion by: Ripken, J.
Filed: April 28, 2026
The Appellate Court affirmed the Baltimore City Circuit Court’s modification of custody and change to the physical and legal custody of the parties’ minor children. The court did not err when it found that the evidence demonstrated changed circumstances affecting the children’s welfare, including the parties’ poor communications; father’s DUI collision with one of the children in the vehicle, of which he failed to notify mother; the periods of withholding access to the children by father and his family and an altercation following father’s release that resulted in the issuance of a final protective order.
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s order allowing father to serve mother via alternative service. Father proved adequately that mother acted to evade service and that he made unsuccessful, good-faith attempts at service.
The Appellate Court vacated the Montgomery County Circuit Court’s custody and child support order. The trial court did not make sufficient findings of fact to properly calculate the appellant’s income from his rental property and gambling. The Appellate Court also vacated the $70,000
fee award to wife and remanded for reconsideration of the appropriate amount of fees consistent with the recalculated income.
The Appellate Court affirmed the Baltimore County Circuit Court’s order that mother’s husband have no unsupervised contact with three minor children, after he was charged with attempted sexual abuse of a child involving indecent communication, attempt to communicate indecent language and indecent language, and pleaded guilty to indecent language.
JOSEPH NEIL V. AMANDA WATROBA Default judgment; service; proof
No. 1947, September Term 2024
Argued before: Reed, Shaw, Eyler, James (retired; specially assigned), JJ.
Opinion by: Reed, J.
Filed: April 27, 2026
The Appellate Court affirmed the Anne Arundel County Circuit Court’s denial of father’s motion to vacate a default judgment that adjudicated him the father of a child born to mother, with a resulting order to pay child support, on the basis of defective service. The court did not err or abuse its discretion by concluding that father failed to rebut the presumption that he was served.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 7 (2026)
Contempt; purged; sanctions
Sean W. Ledbetter v.
Tiffany S. Ledbetter
No. 324, September Term 2025
Argued before: Nazarian, Arthur, Zic, JJ.
Opinion by: Arthur, J.
Filed: June 12, 2026
The Appellate Court vacated the Prince George’s County Circuit Court’s contempt order. The written order of June 6, 2025, which purports to hold husband in contempt, to reserve the imposition of sanctions against him and to give him 10 days to purge his putative contempt, even though he had purged his contempt more than two months earlier, is vacated.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
On November 27, 2024, while the contempt motion was pending, Mr. Ledbetter moved to recuse Judge ShaRon Kelsey, the circuit court judge who had presided over the case. In that motion, Mr. Ledbetter argued, among other things, that Ms. Ledbetter and her parents were friends with Judge Sheila Tillerson Adams, the former administrative judge of the circuit court, and with Judge Adams’s husband; that Ms. Ledbetter was employed by Judge Adams’s husband; and that Judge Kelsey was “expected to know” Judge Adams “by virtue of their service” on the circuit court. In addition, Mr. Ledbetter asserted that in earlier proceedings Judge Kelsey had “admonished and chastized” [sic] him; that she had been “hostile” and “rude”; that she had accused him of being “dishonest” but had taken “no punitive action” against Ms. Ledbetter when, he said, Ms. Ledbetter also “had been dishonest”; and that Judge Kelsey had made other rulings with which he disagreed.
On December 17, 2024, Judge Kelsey denied the motion to recuse.
The Circuit Court for Prince George’s County entered an oral order purporting to hold appellant Sean W. Ledbetter in civil contempt because of his failure to comply with an order compelling him to respond to post-judgment discovery. Before the court signed a written order embodying its oral ruling, Mr. Ledbetter purged his contempt by responding to the discovery requests. He also appealed, challenging the contempt order and the circuit court judge’s decision not to recuse herself.
For the reasons stated herein, we shall vacate the portion of the written order holding Mr. Ledbetter in contempt. We decline to consider any other issues, because they are moot.
Factual and Procedural Background
Mr. Ledbetter and appellee Tiffany S. Ledbetter were divorced in the Circuit Court for Prince George’s County in 2020. Since the divorce, the parties have engaged in an extensive amount of post-judgment litigation concerning matters such as their child’s private school tuition, qualified domestic relations orders and a retirement benefits order, their respective obligations on a joint line of credit, and a monetary award that was entered as a judgment against Mr. Ledbetter.
In an order docketed on October 1, 2024, the circuit court compelled Mr. Ledbetter to respond to discovery in aid of execution on a judgment against him. On October 28, 2024, after Mr. Ledbetter failed to comply with that order, Ms. Ledbetter moved that he be held in contempt.
The court conducted a hearing on pending motions, including the contempt motion, on January 9, 2025. The court orally pronounced its rulings in open court on March 14, 2025.
In its oral ruling, the court found Mr. Ledbetter in contempt. As an apparent sanction, the court purported to sentence him to jail from 6:00 p.m. on Friday, March 28, 2025, until 6:00 p.m. on Sunday, March 30, 2025. The court ordered that he could purge his contempt by responding to the outstanding discovery by March 27, 2025. The court did not embody its decision in a written order at that time.1
Mr. Ledbetter purged his contempt on March 26, 2025, by responding to the outstanding discovery. On that date, he filed what he called a “notice of compliance” to inform the court that he had complied with the order compelling discovery.
Although he had purged his contempt by complying with the order compelling discovery, Mr. Ledbetter noted an appeal on April 14, 2025. When he noted his appeal, the court had not yet embodied its contempt ruling in a written order.2
On June 6, 2025, the court entered a lengthy written order that reflected its earlier rulings, including the ruling by which it held Mr. Ledbetter in contempt. The order purported to “reserve[]” the imposition of sanctions and to permit Mr. Ledbetter to purge his contempt by “answering all discovery requests” within 10 business days. The order did not note that Mr. Ledbetter had answered the discovery requests more than two months earlier.3
Questions Presented
Mr. Ledbetter raises three questions, which we quote:
1. Whether the Circuit Court erred in holding Ledbetter in contempt.
2. Whether Judge Kelsey should have granted Ledbetter’s motion for recusal because her impartiality could fairly be questioned.
3. Whether Judge Kelsey’s decisions in the proceedings are tainted with bias.
We decline to reach these issues, because the only appealable order in this case—the order holding Mr. Ledbetter in contempt—is largely moot.
discussion
In general, a party can appeal only from a final judgment. Maryland Code (1974, 2020 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article. “[A] ruling must ordinarily have the following three attributes to be a final judgment: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court acts pursuant to Maryland Rule 2-602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; [and] (3) it must be set forth and recorded in accordance with Rule 2-601.” Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. at 298 (further citations omitted). No one contends that the order from which Mr. Ledbetter appealed is a final judgment.
One statutory exception to this so-called final judgment rule is contained in section 12-304(a) of the Courts and Judicial Proceedings Article. Section 12-304(a) permits a person to appeal from an interlocutory, or non-final, order that adjudges the person in contempt. Section 12-304 authorizes the appeal in this case. See supra n.2.
“On an appeal from a final judgment, an interlocutory order previously entered in the action is open to review by the Court unless an appeal has previously been taken from that order and decided on the merits by the Court.” Md. Rule 8-131(d). That rule, however, “ordinarily does not apply when a party exercises the right to an immediate appeal of an interlocutory order under a statute, a rule, or the collateral order doctrine.” Maryland Bd. of Physicians v. Geier, 225 Md. App. 114, 140 (2015) (emphasis in original). Thus, a permissible interlocutory appeal, such as an appeal from an order adjudging a person in contempt, ordinarily is not “‘a final decision to which may be added other matters for
appeal[.]’” See Snowden v. Baltimore Gas & Elec. Co., 300 Md. 555, 560 n.2 (1984) (quoting United States v. Fort Sill Apache Tribe of State of Okl., 507 F.2d 861, 863 (Ct. Cl. 1974)); Maryland Bd. of Physicians v. Geier, 225 Md. App. at 140. Thus, the only issue before us is the ruling by which the court held Mr. Ledbetter in contempt.
That order is largely moot. In fact, the order was moot before the written order was entered and before Mr. Ledbetter noted his (premature) appeal. See supra n.2.
“Generally, a case is moot . . . ‘when the court can no longer fashion an effective remedy.’” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 351-52 (2019) (quoting In re Kaela C., 394 Md. 432, 452 (2006)). Even if the court erred in holding Mr. Ledbetter in contempt, we can do nothing to relieve him of the principal consequences of that decision: he had already relieved himself of those consequences by purging his contempt and thereby avoiding the sanctions that the court had threatened to impose. To that extent, the propriety of the contempt is moot.
To the extent that the recusal issue is subsumed in the contempt order, it is arguably before us. See Snowden v. Baltimore Gas & Elec. Co., 300 Md. at 560 n.2. For purposes of the present case, however, that issue is moot as well. Again, even if Judge Kelsey should have recused herself from the decision about whether to hold Mr. Ledbetter in contempt, we can do nothing to relieve him of the principal consequences of that decision: he had already relieved himself of those consequences by purging his contempt and thereby avoiding the sanctions that the court had threatened to impose.4
At oral argument, Mr. Ledbetter argued that an appellate court has the discretion to consider moot issues in certain limited circumstances. For example, a court may decide a moot issue if it is capable of repetition but will evade review or if it involves a question of public concern. D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. at 352. We decline to exercise our discretion to review the moot issues in the circumstances of this case.
An issue, however, is not moot if it has collateral consequences. Id. Mr. Ledbetter arguably faces some collateral consequences insofar as the written order of June 6, 2025, purports to hold him in contempt, to reserve the imposition of sanctions against him, and to give him 10 days to purge his putative contempt even though he had purged his contempt more than two months earlier. We vacate that portion of the order, which the court should never have entered. The rest of the order remains intact.
ORDER OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY DATED JUNE 6, 2025, VACATED INSOFAR AS IT PURPORTS TO HOLD APPELLANT IN CONTEMPT, TO RESERVE THE IMPOSITION OF SANCTIONS, AND TO GIVE HIM 10 DAYS TO PURGE HIS CONTEMPT. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE EVENLY DIVIDED BETWEEN THE PARTIES.
FOOTNOTES
1 The oral ruling is not a proper order of civil contempt. In an order of civil contempt, a court does not “sentence” a party to a term in jail. Instead, a court may order that a party be jailed until the party purges the contempt by coming into compliance with the court’s orders. See generally Breona C. v. Rodney D., 253 Md. App. 67, 73-75 (2021). In those circumstances, the party is said to hold the keys to the prison because the party must be released upon compliance with the court’s orders. See, e.g., State v. Roll, 267 Md. 714, 729 (1973). A fixed sentence is associated with a finding of criminal contempt, which must be accompanied by the procedural safeguards in Maryland Rules 15-203, 15-204, and 15-205.
2 Under section 12-304 of the Courts and Judicial Proceedings Article of the Maryland Code (1974, 2020 Repl. Vol.), Mr. Ledbetter had the right to take an interlocutory appeal of the order adjudging him in contempt. His appeal was, however, premature, because it had not yet been “set forth” in a separate written document “and recorded in accordance with Rule 2-601.” Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. 289, 298 (2015). Despite its premature nature, the appeal is properly before us because the court eventually entered a written order (more or less) embodying the contempt ruling. See Md. Rule 8-602(f) (“[a] notice of appeal filed after the announcement or signing by the trial court of a ruling, decision, order, or judgment but before entry of the ruling, decision, order, or judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket[]”).
3 Because the order did not impose an immediate sanction, it appears, on its face, not to have been a proper order of civil contempt. See generally Breona C. v. Rodney D., 253 Md. App. at 73-75. Arguably, however, the court simply intended to stay its order for 10 days.
4 Our opinion should not be read to imply or suggest that Judge Kelsey had an obligation to recuse herself. Generally, judges must recuse themselves when a reasonable person with knowledge and understanding of all the relevant facts would question their impartiality. Matter of Russell, 464 Md. 390, 402 (2019). “[T]here is[,]” however, “a strong presumption in Maryland . . . that judges are impartial participants in the legal process[.]’” Id. at 403 (quoting Jefferson-El v. State, 330 Md. 99, 107 (1993)). To overcome this presumption, the party requesting recusal “‘bears the ‘heavy burden’” of proving that the trial judge has a personal bias or prejudice against the movant, or personal knowledge of disputed evidentiary facts[.]’” Attorney Grievance Comm’n v. Blum, 373 Md. 275, 297 (2003) (quoting Attorney Grievance Comm’n v. Shaw, 363 Md. 1, 11 (2001)); see Jefferson-El v. State, 330 Md. at 107. The bias, prejudice, or knowledge must come from an extrajudicial source; information gathered from filings, and opinions formed during trial, do not give rise to “‘personal bias[.]’” See, e.g., Jefferson-El v. State, 330 Md. at 107. A judge’s “‘duty to preside when qualified is as strong as [the] duty to refrain from presiding when not qualified.’” Matter of Russell, 464 Md. at 403 (quoting Jefferson-El v. State, 330 Md. at 107). The recusal decision “is discretionary,” “and the exercise of that discretion will not be overturned except for abuse.” Jefferson-El v. State, 330 Md. at 107 (citations omitted). “‘Like all legal issues, judges determine appearance of impropriety—not by considering what a straw poll of the only partly informed man-in-the-street would show—but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.’” Boyd v. State, 321 Md. 69, 86 (1990) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)) (emphasis in original).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s indefinite alimony award. This court finds no error in the circuit court’s determination that an unconscionable disparity exits and, therefore, the award of indefinite alimony to wife in the amount of $1,715 per month was not erroneous.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
in Prince George’s County on October 12, 1994. They had one child together, a daughter, born on November 13, 2003. Beginning in 2017, the parties lived together with their daughter in a rented home in Laurel. Husband moved out of that home in December 2017 and lived in one of his business’s offices.
This case returns to us following litigation concerning alimony and attorneys’ fees stemming from the dissolution of the marriage between appellant, Waltere Koti (“Husband”), and appellee, Audrey Theodora Leonard Koti (“Wife”). In a previous appeal, we were unable to determine the factual basis for income imputed to Husband and, therefore, vacated an award of indefinite alimony and attorneys’ fees and remanded the case to the Circuit Court for Howard County for further explanation. Koti v. Koti (“Koti I”), No. 724, Sept. Term, 2023, 2024 WL 1615220 (Apr. 15, 2024). Following remand to the circuit court and additional hearings the court entered an order on March 12, 2025 awarding Wife indefinite alimony in the amount of $1,715 per month and ordering Husband to pay $10,000 towards Wife’s attorneys’ fees. Husband filed a timely appeal.
On appeal, Husband presents five questions for our review, which we have consolidated into two and rephrased as follows:1
I. Whether the circuit court erred in awarding Wife indefinite alimony.
II. Whether the circuit court erred in ordering Husband to pay $10,000 towards Wife’s attorneys’ fees.
For the following reasons, we affirm.
BACKGROUND
Factual Background
We recounted the following facts in Koti I: The parties were married in a civil ceremony
On March 7, 2018, Husband filed a complaint . . . seeking an absolute divorce. Wife filed a countercomplaint for absolute divorce . . . in which she also sought a limited divorce. A pendente lite order was entered on October 16, 2018 that, among other things, granted Wife use and possession of the family home and ordered Husband to pay her $2,600 per month for “pendente lite undifferentiated family support.” After a hearing on January 14, 2019, the court entered a “Limited Divorce Consent Order” pursuant to which Wife was granted a limited divorce. The parties agreed, and the consent order provided, among other things, that Wife would have use and possession of the family home.
Koti I, 2024 WL 1615220, at *1. Additionally, the Consent Order provided that Husband would pay the rent and utilities for the family home as well as an additional $500.00 in undifferentiated family support. Id. at *1-2.
We went on to recount that:
On April 7, 2021, Husband filed a complaint for absolute divorce on the ground of voluntary separation. Following a hearing on pendente lite alimony, Husband was ordered to continue making the payments required by the consent judgment of limited divorce and to pay an additional $1,000 per month for pendente lite alimony. Wife testified that Husband never paid the full $1,000, but instead paid half that amount. In September or October 2022, Husband stopped making payments to Wife for undifferentiated family support and pendente lite alimony. Wife filed a petition for contempt and, after a hearing on March 23, 2023, Husband was found to be in contempt. As a purge, Husband was ordered to pay Wife $2,800 by April 7, 2023, which he did.
Id. at *2.
The First Trial and Appeal
On April 13, 2023, a hearing on the Complaint for absolute divorce was held. As we recounted in Koti I, the court made the following findings of fact with respect to Wife: 2
Wife was a high school graduate. From 1995 to April 2003, she worked at Kaiser Permanente as a customer service representative. She was terminated from that job because she was not answering enough calls. Thereafter, she worked for one year in a customer service position at the Motor Vehicle Administration (“MVA”). In 2008, Wife earned some credits from Howard County Community College toward a nursing degree, but did not graduate because she could not get through the required math courses. Wife did occasional babysitting and worked for a temporary employment agency known as Adecco. Wife stopped working temporary jobs when the parties’ daughter was in second or third grade because the child’s grades were slipping and she was “acting up.” The parties decided Wife should stay home, take care of the child, and ensure her homework was completed.
After the parties separated in 2017, Wife worked at Walmart and had a seasonal job with the United Postal Service. In December 2021, Wife fell and broke her ankle, requiring surgery. She wore a boot on her foot until August 2022 and lost her job because she could not stand as her work required.
Wife worked for a temporary staffing agency known as First Team from about September 2022 through March 2023. In September 2022, Wife purchased a Volvo for $33,000. Shortly after purchasing the car, it was involved in an accident. It remained in a repair shop from October 2022 to the time of the April 13, 2023 hearing because, according to Wife, there was a problem with the insurance. Wife was several months behind on the car payments of $404 for the Volvo. A few weeks prior to the hearing, wife began working at Walmart where she earned $15 an hour. She experienced trouble with transportation to and from work because bus service was not available to accommodate her work hours.
Wife had a male friend who lived at the family home “from time to time.” One morning Husband showed up at the house and saw the man there. After that, Husband reduced the monthly payments of $1,500 required by the consent judgment of limited divorce and the pendente lite alimony order. Later, in September or October 2022, he ceased making payments to Wife.
Shortly before the April 13, 2023 hearing, Wife received notice that she had to move out of the family home because the landlord planned to sell it. . . . Id. at *2-*3.
Regarding Husband, we explained the circuit court’s findings of fact as follows:
Since about 1996, Husband has owned an insurance, title, and tag business known as First Insurance Agency. The business has
two locations, one in Elkridge and another in Baltimore City. There are two individuals who work as independent contractors for First Insurance Agency. Husband testified that they are not employed full time, but work a couple of times per month “when they have the time to come.” They are paid on commission and receive half of the fee charged for tag and title work. Wife claimed that one of those independent contractors was Husband’s girlfriend, [Ms. Enow,] but Husband denied that claim.
With respect to the insurance portion of his business, Husband sells policies on behalf of Maryland Automobile Insurance Fund (“MAIF”) and Progressive Insurance Company (“Progressive”). He is paid a commission of about ten percent on the premiums. . . .
Husband’s business is also licensed to provide title and tag services for the MVA. Clients pay the fees required by the MVA plus a fee ranging from $70 to $100 for the services provided by First Insurance Agency. . . .
Id. at *3.
As to his income, we observed in Koti I that: Husband testified that his business fluctuates, [] his income cannot be determined, and [] he did not “have a salary[.]” . . . Just prior to trial, he produced Form 1120S, a federal return for an S Corporation, which showed that in 2022 his business had gross sales of $115,672 and deductions of $79,022. Husband testified that in 2022, his business earned between $60,000 and $64,000 from the tag and title portion of the business. As to the insurance part of his business, he receives 1099 forms for each insurance company. . . . Husband paid rent of about $1,236 per month for the Elkridge business office and $375 plus utilities each month for the Baltimore City location. Other expenses included the two independent contractors, advertising, the cost of bonds, workers’ compensation insurance, general liability insurance, errors and omissions insurance coverage, automobile insurance, telephone and internet service, and Comcast service in the Baltimore location. In 2022, Husband paid his independent contractors in cash and, in 2022, he paid them $33,450.
Id. at *3.
The circuit court delivered its decision on the record at a hearing on May 2, 2023. Therein, the court awarded Husband an absolute divorce. As we recounted in Koti I:
Husband was ordered to pay indefinite alimony in the amount of $2,000 per month beginning on May 1, 2023, and to pay $10,000 toward Wife’s outstanding attorneys’ fees. In reaching its decision, the court found that if Wife worked full time at Walmart and earned $15 per hour, her aftertax income would be “approximately $2,100.00 per month,” and her expenses were $4,349 per month. The court found that H usband’s testimony about
his finances and the income portion of his financial statement were not credible, that he “significantly co-mingled” the funds for his business with his personal funds, and that “it’s impossible to say with certainty what his actual income is as it runs through both of those types of accounts and is difficult to ascertain.” The court considered that First Insurance Agency’s 2022 “gross sales were listed as $115,672.00” and that Husband “took $79,022.00 in deductions leaving ordinary business income of $36,450.00.” The court noted that there was no documentation to support the expenses listed, except for the rent on Husband’s office. The court determined that Husband’s “income is more along a minimum of $85,000.00 per year, which is about $7,059.91 per month,” and attributed to him after-tax income of “about $6,000 per month.” . . . The court concluded that the parties’ living standards were unconscionably disparate. Id. at *4.
Husband appealed and we concluded that, “from the record before us, we are unable to determine the factual basis for the court’s decision to impute to Husband annual income in the amount of $85,000.” Id. at *6. We noted that “[i]t is unclear whether the court declined to credit some of” Husband’s purported tax deductions. Id. Similarly, we concluded that “[i]t is unclear from the record . . . how the court calculated Husband’s expenses to be $2,822 per month” and noted that “the court did not appear to include Husband’s tax debts in assessing the alimony factors.” Id. at *7. Accordingly, we vacated and “remand[ed] the case to the circuit court for further consideration of Husband’s income and the award of attorneys’ fees.” Id. at *1.
The Second Trial
Upon remand, the circuit court held hearings on December 13, 2024 and February 6, 2025. Several factual developments since the first trial were highlighted. Wife testified that she continues to work at Walmart, where she currently earns $15.30 per hour. Although she had previously been scheduled to work 40 hours per week, Wife explained that for the last six months, Walmart cut her hours to around 24 to 32 hours per week. Wife testified that, two weeks before the February 6, 2025 hearing, she had begun searching for another job to supplement her income but has not yet found one. Because of her previously broken ankle, which required surgery and a plate in her right ankle, Wife explained that she was only applying to positions that would allow her to sit, such as security positions.
Regarding her living situation, Wife testified that after having to leave the marital home, she lived in a hotel for a while. According to Wife, the hotel was becoming “too costly,” so she had to start asking Husband for additional money. Thereafter, Husband found a room for rent in a townhouse with a shared bathroom for the cost of $700 per month. Wife went to look at the room and thought it was dirty, so she told Husband she did not want to live there. Nevertheless, Husband “gave the guy the money” so she was “stuck there.” Wife stated that she does not feel safe in the home and that she
does not use the common areas of her residence, such as the kitchen, “because it’s infested with bugs.” Wife testified that she would prefer living in a one bedroom or studio apartment which, according to her research, would cost between $1,400 and $1,600 per month.
According to the parties, Husband continues to not pay Wife the full court ordered alimony payment. According to Husband, “[based] on [his] tax returns, [he] cannot afford” the alimony payments previously ordered by the circuit court. Husband stated that his income “fluctuates” and that it cannot be discerned by looking at his business and personal bank accounts. Rather, according to Husband, “the key way” to determine his income is by looking at his tax returns.
Husband testified that he lives in his Elkridge office. According to Wife, however, although Husband previously lived in one of his offices, he currently lives in a house with Ms. Enow. Husband initially denied living with Ms. Enow or even knowing where she lives but later admitted that he “visit[s] her once in a while.” Both Husband’s 2023 tax return and Husband’s Financial Statement reflected the $1,200 expense for the rent associated with his Elkridge office. Additionally, Husband testified that he has outstanding tax debt owed to both the Internal Revenue Service (“IRS”) and the State. At the time of the hearing, Husband was paying off his debt to the State but was not making payments on the debt owed to the IRS.
The Circuit Court’s Opinion and Order
On March 12, 2025, the circuit court, by written opinion, ordered Husband to pay Wife $1,715 per month in indefinite alimony and $10,000 towards Wife’s attorneys’ fees.
The circuit court explained that, since the first trial, “[t] here have been some changes to the parties’ circumstances.” Specifically, the circuit court found:
For [Wife], she no longer has a car at all and relies on public transportation and Uber/Lyft rides to get around. Just after the 2023 hearing, she had to leave the prior residence and was staying at a hotel for a period of time. [Husband] has only been paying about $1000.00 per month for alimony. [Husband] obtained a room for [Wife] to rent in a home with many other individuals. [Wife] testified that she does not like this space as it is not clean, and she does not feel comfortable or safe in the open spaces with all the other individuals that live there. There are 12-14 other people who live there, and they fight with each other which has resulted in police response. The rent is $700 per month and is more affordable, however, she explained that the accommodations are less than desirable.
Finding that Wife “has no physical or mental infirmity that prevents her from working full time,” the circuit court concluded “it continues to be appropriate to impute full-time income to [Wife].” Based on the pay rate of $15.30 per hour, the circuit court calculated Wife’s gross pay to be $2,650 per month. Regarding debts owed, the circuit court found that Wife has $30,000 in debt for the Volvo she previously owned, $600 in credit card debt, and a $38,925.02 balance owed for attorneys’ fees.
The circuit court found Husband’s testimony regarding his finances not credible and concluded that some of the deductions claimed on his 2023 tax return were not verifiable. Specifically, the court found that, despite Husband claiming business expenses of $78,000 per year, his verified business expenses only amounted to $34,242.80. Accordingly, the court imputed to Husband an annual income of $82,095.20 instead of the $38,244 claimed. After going through each factor set forth in Maryland Code (1984, 2019 Repl. Vol.), § 11-106 of the Family Law Article (“FL”), the circuit court concluded that indefinite alimony was warranted because, “[a]lthough [Wife] can partially support herself, it is unlikely she will become fully self supporting.” The court reasoned that, at the time of the hearing, Wife was “58 years old and has some physical limitations,” has generally worked parttime earning minimum wage, and was unable to advance in community college due to her difficulties in math. Additionally, the court concluded that, even if she worked full time, Wife’s after-tax income would be approximately $2,100 per month, while “Husband earns significantly more making their standard of living unconscionably disparate.”
Finally, in assessing whether to award attorneys’ fees, the court found that Husband had incurred $8,125 in attorneys’ fees while Wife had incurred $38,925.02 in attorneys’ fees. The court concluded that “[b]oth parties were reasonable in prosecuting and defending this action[,]” but noted that Wife’s attorneys’ fees have increased as “Husband has continuously fought against paying alimony in this long-term marriage, during which [W]ife worked limitedly outside the home and worked generally for minimum wage.” The court concluded that Wife’s attorneys’ fees were reasonable and ordered Husband to pay $10,000 towards the attorneys’ fees incurred by Wife. Husband noted a timely appeal. We shall include additional details as necessary in our forthcoming analysis.
STANDARD OF REVIEW
We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Tracey v. Tracey, 328 Md. 380, 385 (1992) (citing Rock v. Rock, 86 Md. App. 598, 611-12 (1991)). Accordingly, “[a]n alimony award will not be disturbed upon appellate review unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.” Tracey, 328 Md. at 385 (citing Brodak v. Brodak, 294 Md. 10, 28-29 (1982)). The trial court’s underlying factual findings, however, are reviewed for clear error. See Roginsky v. Blake-Roginsky, 129 Md. App. 132, 143 (1999) (“A trial court’s finding of unconscionable disparity [sufficient to warrant an award of indefinite alimony] is a question of fact [reviewed] under the clearly erroneous standard contained in Md. Rule 18-131(c).”).
Similarly, “[w]e review an award of attorney’s fees in family law cases under an abuse of discretion standard.” Sang Ho Na v. Gillespie, 234 Md. App. 742, 756 (2017) (citing Steinhoff v. Sommerfelt, 144 Md. App. 463, 487 (2002)).
DISCUSSION
I. The circuit court did not err in awarding Wife indefinite alimony in the amount of $1,715 per month
A. The parties’ contentions
Husband argues that the circuit court erred in awarding Wife indefinite alimony. In so doing, Husband first challenges the circuit court’s determination of his income. According to Husband, the deductions claimed on his 2023 IRS tax return are presumptively valid, therefore, Wife bore the burden of rebutting the validity of said deductions. Husband cites three cases in support.3
Further, Husband contends that, because the circuit court concluded that “it is impossible” to ascertain how much income he derives from the tag and title portion of his business, a finding of income based on that lack of evidence is erroneous. Next, Husband contends that the court erred in balancing the FL § 11-106 factors because it improperly weighed Husband’s ability to pay, Wife’s capacity for selfsupport, the standard of living of the parties during their marriage, the circumstances leading to the estrangement of the parties, and the age and health of the parties. Finally, Husband contends that indefinite alimony was improper here because Wife is voluntarily underemployed, and no unconscionable disparity exists.
Wife counters that, in determining Husband’s income, the circuit court was not restricted to rely solely on Husband’s tax return. According to Wife, the court was permitted to discredit some of Husband’s purported business expenses when determining his income. Further, Wife argues that the court properly awarded indefinite alimony because she is incapable of supporting herself, noting that the court based its calculation of her income on full-time work, thereby undercutting Husband’s argument that Wife is voluntarily underemployed. Finally, Wife asserts that the court properly found that she is unable to obtain additional training that would allow her to obtain a higher paying job.
B. The law of alimony
In Maryland, alimony may be awarded in one of two modes: for a fixed term, referred to as rehabilitative alimony, or for an undefined term, referred to as indefinite alimony. Walter v. Walter, 181 Md. App. 273, 281 (2008) (citing Tracey v. Tracey, 328 Md. at 391). Since the adoption of the Maryland Alimony Act in 1980, the principal function of alimony has been the “rehabilitation of the economically dependent spouse.” Whittington v. Whittington, 172 Md. App. 317, 335 (2007) (quoting Karmand v. Karmand, 145 Md. App. 317, 327 (2002)). Because of this, rehabilitative -- rather than indefinite --alimony is generally favored. Solomon v. Solomon, 383 Md. 176, 194 (2004).
In making an alimony determination, FL § 11-106(b) governs:
In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including: (1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution defined in § 19301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
Although indefinite alimony is generally disfavored, our statutory and decisional law recognizes that “rehabilitative alimony alone may not be appropriate in every case.”
Solomon, 383 Md. at 195 (citation omitted). Pursuant to FL § 11-106(c), a circuit court may award indefinite alimony when it finds that one of two circumstances has been shown:
(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
(2) even after the party seeking alimony will have made as much progress toward becoming selfsupporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
A circuit court’s finding in subsection (c) “is a secondlevel fact . . . that necessarily rests upon the court’s firstlevel factual findings on the factors, listed in [subsection (b)].” Whittington, 172 Md. App. at 337). The provisions in subsection (c) “serve as a restraint upon the doctrine of rehabilitative alimony; they exist to protect the spouse who is less financially secure from too harsh a life once single again.” Tracey, 328 Md. at 392 (citation omitted). “The determination of unconscionable disparity ‘requires the application of equitable considerations on a case-bycase basis, consistent with the trial court’s broad discretion in determining an appropriate award.’” Innerbichler v. Innerbichler, 132 Md.
We start our analysis by reviewing the circuit court’s determination of Husband’s income. As an initial matter, we find no error in the circuit court’s conclusion that Husband’s testimony regarding his income was not credible. The circuit court found that:
[Husband’s] income and expenses continue to be unclear. [Husband’s] testimony regarding his finances, both personal and business, lacked candor. [Husband] produced some records to support expenses, however, [he] appears to account for his expenses twice. In regard to his income, . . . he continues to commingle business accounts and personal accounts. . . . One example . . . is his rent. [Husband] lists his rent as $1273.00 on his Financial Statement. He testified that he lives at his [Elkridge] office. In regard to his business expenses, he lists the rent of his office to be $1273.00 as well and accounts for that against his income. [Husband] denies living with Ms. Enow, his employee. He denies having a relationship with her as well, however, his testimony on this point lacked credibility. Initially he said he was not with her the night before the hearing but later admitted he was.
Additionally, Husband inflated his expenses by including his court ordered alimony payment, which he admitted to not paying in full. Finally, the circuit court noted that there were gaps in the financial documentation provided by Husband, namely months of missing bank statements and no evidence to support certain claimed business deductions. In sum, there was ample evidence to support the circuit court’s credibility determination.
We similarly find no error in the circuit court’s decision to impute to Husband an annual income of $82,095.20. The court found that, despite Husband claiming his business expenses amount to $78,000 per year, his verified business expenses amounted to $34,242.80. The circuit court summarized the verified business expenses as follows:
7. Rent#2 $1200/mo 4 $14,400.00/yr Total $2853.57/mo $34,242.80/yr
The court went on to explain that certain of Husband’s alleged business expenses were not verified: [Husband] testified that he had expenses for advertisement and supplies, however, no verification was provided for these expenses. There were 1099[s] for tax year 2023 produced [by Husband] for Lara Motors LLC for $2,542.00 and [Ms.] Enow for $29,945.00, however, it is unclear how these individuals were paid since there is no verification by way of check, money order, or other form of payment to verify the 1099. Although [Husband] testified that he pays Ms. Enow in cash, his credibility is at issue and with no verification of how this money is paid as asserted in the 1099, the Court does not find the expense credible. Further, it does not seem credible that a business owner, who has owned their business for almost 30 years, would not track these types of expenses to the tune of $48,821.44 (the difference between the alleged business expenses and the verifiable expenses).
The circuit court noted that Husband’s income is “convoluted.” From the evidence provided by Husband -nine months’ worth of commission reports -- the circuit court discerned the following: (1) $14,310.15 in commissions from Progressive; (2) $58,877.63 in commissions from MAIF; and (3) an unknown amount in fees for tag and title services. The circuit court concluded that “it is impossible to say how much” income Husband derives from the tag and title portion of his business because “[t]here is no commission report . . . and the income is deposited into three separate accounts.” The court, however, did not impute an arbitrary amount to Husband for the tag and title income. Rather, the circuit court’s determination of Husband’s income relied principally on his 2023 IRS tax return and its rejection of certain business expenses reported therein:
The only semi-solid source of income information from [Husband], is the 2023 U.S. Income Tax Return for First Insurance Agency. . . This is the tax return that shows $78,094 in total deductions, which the Court does not accept as valid based on the above discussions. The Court assesses the valid deductions as $34,242.80. This leaves ordinary business income as $82,095.20 instead of $38,244. This is equivalent to a monthly income of $6,841.26.
Unlike in Koti I, it is clear the basis of the circuit court’s income determination. We find no error in the circuit court’s findings of fact and ultimate conclusion regarding Husband’s income. Although Wife bore the burden of establishing the statutory criteria for an award of indefinite alimony, it was not, as Husband contends, Wife’s burden to prove Husband’s income. See Turner v. Turner, 147 Md. App. 350, 389 (2002) (“The party seeking indefinite alimony bears the burden of satisfying the statutory criteria.”). The circuit court was well within its discretion to discredit certain of Husband’s claimed business expenses for lack of evidence, especially given its determination that Husband lacked credibility. As such, we find no error in the circuit court’s imputation to Husband of $82,095.20 in annual income.
We also find no error in the circuit court’s reduction of Husband’s purported expenses. Specifically, the circuit court concluded: [Husband’s] monthly personal expenses are inflated. [Husband] lists his current expenses as $4,915.00. He lists his rent as $1,273 but also lists his rent as a business expense and his business income is therefore reduced by the expense. Therefore, the Court will not double count it as a personal expense. He also lists $2000 in alimony which he is currently not paying in full. The Court will not count this as an expense when evaluating what his ability to pay is. [Husband’s] expenses are assessed at $1642.00 per month.
Husband contends that, by not crediting his rent payment as a personal expense, the circuit court “ignore[d] basic tax and business principles.” We disagree. Although Husband is correct that “[t]he rent is a legitimate business expense that reduces the business’s gross income, which then passes through to” him, that does not mean he also gets to deduct that cost as a personal expense. The court credited the rent as a valid business deduction when calculating Husband’s income. Husband, therefore, is not paying that rent as a personal expense and the court properly disregarded it when calculating his expenses. Husband does not challenge the circuit court’s determination that he improperly included the alimony payment as a personal expense and we discern no error. Accordingly, we conclude that there was no error in the court’s assessment of Husband’s personal expenses as $1,642.
2. FL § 11-106(b) factors
Next, we consider Husband’s contention that the circuit court improperly weighed certain FL § 11-106(b) factors. In a thorough and well-reasoned opinion, the circuit court analyzed each of the factors delineated in FL § 11-106(b). Relevant here, Husband challenges the circuit court’s findings with respect to: (1) Wife’s capacity to become self-supporting, (2) the standard of living of the parties during their marriage; (3) the circumstances leading to the estrangement of the parties; (4) the age and health of the parties; and (5) the ability of Husband to pay. We address each challenge in turn. Regarding Wife’s ability to become self-supporting, the circuit court concluded:
ABILITY OF THE PARTY SEEKING ALIMONY TO BECOME SELF-SUPPORTING: [Wife] has worked on and off during the marriage at entry level jobs, generally earning minimum wage or close to that. She has not kept any position for an extended period of time, however she has worked at Wal-Mart earning $15.30/hour since prior to the first hearing in May of 2023. With Wal-Mart, there have been times when she was working 40 hours per week, but she is currently only getting 2432 hours per week. Full time at [Wife’s] current rate of pay would render a gross weekly income of $612.00 or $2,650.00 per month. After taxes, [Wife] would bring home approximately $2,000 per month. This [] income would not allow
her to be fully self-supporting. [Her] current expenses are $2815.00. The current expense for housing is $700 per month for the bedroom in the crowded home. This living arrangement is not commensurate to when the parties were married. The $1600.00 [Wife] estimates for a one-bedroom or efficiency apartment is not unreasonable when also considering that her housing needs to be near a bus line or close enough to walk to work, otherwise, her transportation costs will significantly increase. Her expenses in evaluating her need for alimony will be assessed at $3715.00. If [Wife’s] take home pay is $2,000 per month her actual need is $1,715.00 per month.
Also relevant here, the circuit court concluded: THE TIME NECESSARY FOR THE PARTY SEEKING ALIMONY TO GAIN SUFFICIENT EDUCATION OR TRAINING TO ENABLE THAT PARTY TO FIND SUITABLE EMPLOYMENT: [Wife] is 58 years old and has a high school education. When the parties’ child was young and began school, [Wife] took classes at Howard Community College to go into healthcare and nursing, however she had difficulty with the math, even with tutoring, and abandoned the plan. [Wife] discussed one of her positions of working in a call-center and being terminated as she did not meet ‘production expectations.’ [Wife] appears to have a limited skill set to be able to obtain further education or training to better position herself in the job market.
We find no error in these determinations. Although Wife testified that she currently works only 24 to 32 hours per week, that fact is not indicative of her being voluntarily underemployed. To be sure, the circuit court credited Wife’s testimony that her schedule was reduced, not because of a personal choice, but because Walmart reduced the hours of all employees. What is more, as Wife aptly notes, the court imputed to her annual income based on a full-time schedule. Further, there was ample evidence to support the court’s determination that education or training would be unlikely to better position Wife in the job market. Indeed, Wife testified that, although she had previously pursued a nursing degree, she was unable to complete it because she was unable to pass a math course. In such circumstances, we find no error in the circuit court’s finding that Wife is unable to become self-supporting.
Husband next challenges the circuit court’s finding that: THE STANDARD OF LIVING THAT THE PARTIES ESTABLISHED DURING THE MARRIAGE: The parties appeared to live a very modest lifestyle. In their early years they lived with a friend with limited income as Husband started his own business. They both seemed agreeable to the modest lifestyle for Husband to develop his own business. After developing their business, the parties lived in a home they rented that was spacious.
According to Husband, the court’s alimony award “implicitly
attempts to maintain a standard of living that was never truly established by the parties’ combined efforts[.]” We disagree. The circuit court’s conclusion is amply supported by the record and it properly concluded that Wife’s current living situation -- in a crowded townhome in which she feels unsafe -- does not meet the standard of living established during the parties’ marriage. The imputation to Wife of additional living expenses to cover the rent for a modest studio or one-bedroom apartment, therefore, maintains, rather than contravenes, the standard of living established during the marriage. There is no error in the circuit court’s conclusion. Next, Husband contends that the circuit court erred in balancing the finding that:
CIRCUMSTANCES THAT CONTRIBUTED TO THE ESTRANGEMENT OF THE PARTIES:
Husband left the family home in 2017, and the parties have remained separated since then. [Husband] was visiting Chicago to visit Ms. [Enow] who later moved to Maryland and allegedly is an agent for [his] business. [Wife] admits that she was drinking heavily and was depressed during this time period. The Court believes both of these things contributed to the demise of the marriage.
Husband does not appear to take issue with the circuit court’s factual determination, but instead avers that “this factor should have been considered in the broader equitable assessment.” The circuit court credited the testimony of both parties with respect to this factor and properly concluded that both parties contributed to deterioration and eventual end of the marriage. We, therefore, find no merit to the contention that the circuit court did not properly consider this factor in making its alimony determination.
Finally, Husband contends that the circuit court erred in its analysis of the age and health of the parties and his ability to pay. The court’s relevant conclusions are as follows:
AGE OF EACH PARTY: Wife is now 58 years old and Husband is 62 years old.
PHYSICAL AND MENTAL CONDITION OF EACH
PARTY: Husband appears to be in good physical and mental health, however he asserts that he has prostate cancer. The documentation [Husband] provided in support of this does not confirm this or a treatment regimen. Wife is now in better health than at [the] time of [the] original divorce proceedings however due to her prior foot injury, she still has difficulty standing for extended periods of time.
THE ABILITY OF THE PARTY FROM WHOM ALIMONY IS SOUGHT TO MEET HIS OR HER OWN NEEDS WHILE MEETING THE NEEDS OF THE OTHER PARTY: As discussed above, it remains unclear what Husband’s income is. The only semi-solid source of income information from [Husband] is the 2023 [tax return] which reflects $113,483 in total assets. . . . This is the tax return that shows $78,094 in total deductions, which the Court does not accept as valid business expenses based on the above discussions. The
Court assesses the valid deductions as $34,242.80. This leaves ordinary business income as $82,095.20 instead of $38,244.00. This is a monthly income of $6,841.26.
[Husband’s] monthly personal expenses are inflated. [Husband] lists his current expenses as $4,915.00. . . . [Husband’s] expenses are assessed at $1642.00 per month. With [Husband’s] income assessed at $6,841.26, he has excess income of $5,199.26 per month.
It is noted that [Husband] has been paying approximately $1000 per month in alimony. He stated he still gives his daughter some money but did not testify as to how much. At the time of the last hearing, it was $300 per month. With [Wife’s] need being $1715 per month, [Husband] has sufficient excess income ($5199.26) to pay that amount.
THE FINANCIAL NEEDS AND RESOURCES OF THE PARTIES INCLUDING INCOME AND ASSETS, ANY AWARD UNDER THE MARITAL PROPERTY ACT, THE NATURE AND AMOUNT OF FINANCIAL OBLIGATIONS OF EACH PARTY, AND THE RETIREMENT ASSETS OF EACH PARTY
a. Wife has no significant assets. Her car that she previously had was repossessed. She has some furniture from the home; however, it is in storage and she may lose it since she cannot pay the storage fee. Wife has limited income that varies but traditionally has been a minimum wage earner.
b. Husband does not appear to have assets outside of his business, but his income is significantly greater than [W]ife’s.
c. The Court finds [Husband] has the ability to pay alimony. Taxes would have to be paid from his income so the court considers [Husband’s] take home to be about $6,000 per month. He has left over income after he pays his limited expenses.
d. [Husband] has the ability to pay $1715 per month.
Husband contends that he is in poor health—suffering chronic back pain and having a high risk of prostate cancer. Because of this alleged poor health, Husband asserts that he is unable to work for many more years, diminishing his ability to pay. Based on the income reported on his 2023 tax return, Husband argues that the circuit court’s alimony award will “make[e] him the impoverished party.” We are unconvinced. First, the circuit court properly considered Husband’s age and health but concluded that the proffered evidence did not establish that Husband currently has prostate cancer. Considering Husband’s risk of being diagnosed with prostate cancer in the future in determining his health would be speculation. Second, as discussed above, the circuit court properly imputed to Husband a higher income than reported. We, therefore, reject Husband’s argument concerning his ability to pay alimony in the amount of $1,715
per month based on business deductions properly rejected by the circuit court. In sum, we conclude that the circuit court properly weighed the challenged FL § 11-106(b) factors and did not err in making its alimony determination.
3. Indefinite alimony
Similarly, we discern no error in the circuit court’s conclusion that indefinite alimony was proper. The circuit court’s relevant determinations are as follows: DUE TO AGE, ILLNESS, INFIRMITY, OR DISABILITY, THE PARTY SEEKING ALIMONY CANNOT REASONABL[Y] BE EXPECTED TO MAKE SUBSTANTIAL PROGRESS TOWARD BECOMING SELF-SUPPORTING: [Wife] is 58 years old and has some physical limitations. Throughout adulthood, she has worked part-time and generally earned minimum wage. When she attended community college, difficulties in math prevented her from moving forward. Although she can partially support herself, it is unlikely she will become fully self supporting. EVEN AFTER THE PARTY SEEKING ALIMONY WILL HAVE MADE AS MUCH PROGRESS TOWARD BECOMING SELF-SUPPORTING AS CAN BE REASONABLY EXPECTED, THE RESPECTIVE STANDARDS OF LIVING OF THE PARTIES WILL BE UNCONSCIONABLY DISPARATE: Even if Wife works full time at minimum wage, her gross income would be $612 per week or $2650 per month. Federally she would pay 12% in taxes. After taxes, she would bring home approximately $2100 per month. Her income does not meet her expenses. Husband earns significantly more making their standard of living unconscionably disparate.
In arguing that indefinite alimony was improper, Husband contends that Wife is voluntarily underemployed and that his health and proximity to retirement age warrant a different result. Further, Husband contends that no unconscionable disparity exists.
As addressed previously, Husband’s argument that Wife is voluntarily underemployed is meritless because the circuit court imputed to Wife a full-time salary. Further, as we have previously indicated, Husband’s health and proximity to retirement age were properly weighed by the circuit court when determining his ability to pay. Husband’s health and age have no bearing on whether Wife can “reasonably be expected to make substantial progress toward becoming self-supporting[.]” FL § 11-106(c)(1). Because the circuit court did not err in determining Wife’s expenses, we discern no error in its conclusion that Wife cannot reasonably be expected to become self-supporting.
Similarly, we conclude that the circuit court did not err in finding an unconscionable disparity. As discussed, the circuit court’s income and expense determinations for both parties were not erroneous. As such, Husband’s monthly income is $6,841.26—more than double the pre-tax monthly income imputed to Wife of $2,650. Wife’s current income does not allow her to have even a modest apartment. Although
Husband claims to live in his Elkridge office, there was also evidence that he stays, at least sometimes, at Ms. Enow’s home. Notably, the court found Husband’s testimony regarding his relationship with Ms. Enow to be uncredible. Accordingly, we find no error in the circuit court’s determination that an unconscionable disparity exits and, therefore, conclude that the award of indefinite alimony to Wife in the amount of $1,715 per month was not erroneous.
II. The circuit court did not err in ordering Husband to pay $10,000 toward attorneys’ fees incurred by Wife.
A. The parties’ contentions
Husband next contends that the circuit court erred in ordering him to pay $10,000 toward Wife’s attorneys’ fees. According to Husband, because the circuit court improperly imputed a higher income to him, his financial resources were improperly assessed. Further, Husband asserts that he had substantial justification in maintaining the proceeding because he has merely sought an accurate determination of his income and equitable outcome. Given the previous remand ordered by this Court due to an insufficient basis provided for the circuit court’s determination of Husband’s income, Husband contends that ordering Husband to pay a portion of Wife’s attorneys’ fees is improper. Wife counters that the circuit court’s award of attorneys’ fees was proper because significant litigation costs have been incurred because of Husband’s actions, namely his failure to provide all financial documents and his failure to keep a proper accounting of his finances.
B. The law of attorneys’ fees
The award of attorneys’ fees in alimony cases is governed by FL § 11-110.5 In relevant part, that statute requires circuit courts to consider two factors prior to ordering the payment of attorneys’ fees: “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 11-110(c).
C. Analysis
Regarding attorneys’ fees, the circuit court’s opinion provides:
Having considered all factors required in FL § 7-107; FL § 11-110, the Court now addresses the matter of attorney’s fees:
Husband incurred: $8,125 . . .
Wife owes: $38,925.02 . . .
Both parties were reasonable in prosecuting and defending this action. Wife has no assets and [H]usband’s assets appear limited. Both parties
have incomes, however, Wife’s income is limited even when she is working full-time. The fees incurred are reasonable. Wife’s attorney’s fees have continued to rise over time as Husband has continuously fought against paying alimony in this long-term marriage, during which [W]ife worked limitedly outside the home and worked generally for minimum wage.
It is reasonable in light of these circumstances, and taking the factors into account, as well as the other provisions for support, [Husband] shall pay $10,000 directly to [Wife’s attorney] as contribution toward [Wife’s] reasonable counsel fees. Since [Husband] does not appear to have any assets, he can the fees monthly at a rate of $400 for 25 months. His excess income allows for this amount to be paid monthly.
We discern no abuse of discretion in the circuit court’s award of attorneys’ fees.6 First, the court properly considered the financial resources and needs of both parties. As discussed previously, there was no error in the circuit court’s calculation of both parties’ respective incomes and expenses. Compared to Husband’s income, Wife’s income is modest, illustrating a clear financial need on Wife’s part and financial resources available to Husband. Further, the circuit court’s order that Husband pay monthly properly accounts for both Husband’s lack of assets and his excess monthly income.
Second, the circuit court properly determined that both parties had sufficient justification to prosecute and defend this action. The court, however, also considered Husband’s consistent fight against paying the court ordered alimony. Our review of the record leads us to conclude that such a conclusion was reasonable and not erroneous. To be sure, Husband was previously held in contempt for failing to make complete alimony payments to Wife. Further, the difficulties in assessing Husband’s income identified in Koti I appear to largely be the product of Husband’s failure to provide all necessary financial documents to support his claimed income. In such circumstances, we see no abuse of discretion in the circuit court’s order that Husband pay $10,000 toward attorneys’ fees incurred by Wife.
CONCLUSION
For the foregoing reasons, we conclude that the circuit court did not err in awarding Wife indefinite alimony in the sum of $1,715 per month. Further, we conclude that the circuit court did not err in ordering Husband to pay $10,000 toward attorneys’ fees incurred by Wife. We, therefore, affirm the judgments of the circuit court.
JUDGMENTS OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Husband phrased the questions as arguments as follows:
1. The circuit court erred in determining appellant’s income as $82,095.12 instead of $38,244, disregarding appellant’s 2023 tax returns and IRS-recognized deductions.
2. The circuit court erred in finding appellee cannot support herself.
3. The circuit court erred in awarding alimony despite appellee’s gainful employment or ability to be gainfully employed.
4. The circuit court erred in granting indefinite alimony.
5. The circuit court erred in awarding appellee attorney’s fees.
2 The circuit court expressly incorporated the findings of fact made in Koti I into its decision on remand that is the subject of the present appeal.
3 Husband predominantly relies on a case cited as “Otte v. Otte, 168 Md. App. 83, 895 A.2d 1133 (2006).” Wife contends that the case is unreported. We are unable to locate any such case—reported or unreported. Additionally, Husband cites “Jackson v. Jackson, 252 Md. App. 327, 449 A.2d 455 (1982).” The correct case name associated with the Maryland Appellate Reports citation is Jackson v. State, 52 Md. App. 327 (1982), overruled by Huggins v. State, 479 Md. 433 (2022). This criminal case has no bearing on the issues presented in this case. Finally, Husband cites Wills v. Jones, 340 Md. 480 (1995) for the proposition that “[a] self-employed person’s income is their net profit, not gross receipts.” Wills did not involve the calculation of a self-employed party’s income and is, therefore, inapposite. Accordingly, we do not discuss these three cases further.
4 In his Financial Statement, Husband lists his rent as $1,273 per month, however copies of the rent checks for the Elkridge office indicate that he was paying only $1,200 per month in rent.
5 In addition to an award of indefinite alimony, the first trial, which was the subject of Koti I, also resulted in the entry of an absolute divorce which was not appealed. To the extent that the award of attorney’s fees is also predicated on litigation concerning the judgement of divorce, we note that the factors to be considered in making an award of attorneys’ fees in a divorce case are the same as those delineated in FL § 11-110. See FL § 7-107(c).
6 Husband does not challenge the reasonableness of the attorneys’ fees incurred by Wife. Accordingly, we do not address the reasonableness of such fees here.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Court’s child support award. Although father argued the award did not consider his child-related expenses, he failed to produce evidence of the actual expenses incurred on the child’s behalf.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married in July of 2021 in Prince George’s County, Maryland. They share one child, E., who was born in September 2021. Mother, Father, E., and Mother’s son from a previous marriage resided in a house in Oxon Hill, which the parties purchased three months before their wedding. Both parties were employed during the marriage, with Father working as a middle school teacher and Mother working as an analyst for a government contractor.
In May of 2025, the Circuit Court for Prince George’s County entered an order granting a judgment of absolute divorce to appellant Bruce A. Carrington (“Father”) and appellee Danielle Carrington1 (“Mother”). As part of the divorce decree, the court ordered that Father and Mother share legal and physical custody of their child, to whom we shall refer as “E.” Based on the court’s evaluation of the parties’ incomes and expenses with respect to E., the court ordered that Father pay child support to Mother. Father filed a motion to alter or amend the judgment within ten days of the court’s order, seeking revision of the judgment on the issue of child support based on: 1) his contention that the court miscalculated Father’s income; 2) his contention that the court failed to credit non-documentary evidence of child-related expenses; and 3) his request that the court reopen and consider additional evidence regarding Father’s expense for health insurance attributable to E. The court conducted a hearing on the motion, and revised the judgment based on Father’s income. However, the court declined to reconsider the judgment in terms of crediting Father’s evidence concerning E.’s daycare and health insurance costs or to reopen the evidence concerning health insurance costs. Father filed the subject appeal, presenting the following issues for our review:2
I. Whether the circuit court erred in calculating child support without crediting Father’s child-related expenses.
II. Whether the circuit court abused its discretion in partially denying the motion to alter or amend. For the reasons to follow, we shall affirm the judgment of the circuit court.
In December of 2023, Mother filed a complaint for absolute divorce, seeking joint legal and primary physical custody of E., as well as child support. In March of 2024, Father filed a separate complaint seeking joint legal and shared physical custody of E. The circuit court consolidated the two cases. In June of 2024, both parties filed financial statements pursuant to Maryland Rule 9-203 (hereinafter, “9-203 statement”), which identified their income and child-related expenses. In his financial statement, Father identified his monthly expense for E.’s daycare as $810.00, and $169.25 as the monthly cost for E.’s health insurance. Mother also identified her cost for childcare expenses as $810 per month. In November of 2024, as the scheduled date for trial on the merits approached, Mother filed an updated financial statement reflecting a decrease in childcare expenses to $650 per month. Father did not update his financial statement.
On November 21, 2024, a settlement conference was conducted that led to a resolution of several issues in the case, including marital property, alimony, attorney fees, and use of the Our Family Wizard Program to facilitate communication between the parties.
December Hearing
The matter proceeded to a hearing on the merits that commenced on December 10, 2024. The parties placed the terms of the agreement on the record, and the court indicated that issues remaining to be decided were legal and physical custody, as well as child support. Father testified that in 2024, he had earned an income of approximately $89,000 for the year. He further testified that as a schoolteacher, he was a ten-month employee, which meant that a percentage of his paycheck would be placed in a “summer account” so he would be paid the same amount in the summer as he would during the school year. Although in some years Father had taken on summer employment with the school for additional income, he did not do so every year.
Father further testified that he had enrolled E. at a Montessori preschool program for daycare in the Fall of 2024.
During cross-examination, he claimed that the monthly cost of this program was $800 per month. Father did not provide any documentary evidence of this expense during the entirety of the hearing.
Father also testified on direct examination that he did not detect any information that had changed in the financial statement that he submitted in June of 2024. However, during cross-examination, Father acknowledged that several of the figures listed in his financial statement had in fact changed.3 In addition, he admitted that he could not recall how he had calculated the cost of health insurance for E., which he had identified in his financial statement. Father asserted that the county he worked for had a breakdown that could demonstrate the difference in health insurance for a sole individual compared with a covered child. However, he was unsure what amount was attributable to E., and he did not have the documents reflecting that amount with him at the December 2024 hearing.4
April Hearing
The parties appeared for a second day of the merits hearing on April 17, 2025. Mother testified that she believed E.’s health insurance was being covered by Father. She explained what the cost would be if E. were enrolled in Mother’s health insurance and provided an exhibit documenting that potential expense. Mother also testified concerning her costs to enroll E. in a daycare program, as well as her costs from the prior program in which E. was enrolled. She provided exhibits demonstrating these costs, including her contract with the new program, invoices reflecting payments made, and payment histories.
During closing arguments, Mother’s counsel noted that Father did not produce any documentation regarding the daycare expenses he had referenced in his testimony. Counsel further argued that in examining Father’s bank statements, no expenses for daycare appeared. Counsel also maintained that Father had not provided any documentation to show the cost of E.’s health insurance.
Initial Order
The court held a virtual hearing on April 18, 2025, at which the court gave a ruling on the record.5 On May 2, 2025, the court entered an order granting the parties an absolute divorce and granting them joint legal and physical custody of E. The court also ordered that Father pay child support based on the court’s assessment of Father’s income as $4,180 bi-weekly.
Motion to Alter or Amend
Within ten days of the court’s entry of the order, Father filed a motion to alter or amend the judgment. He sought revision of the amount of child support based on the court’s inflated calculation of his income. He further asserted that the court should have accepted Father’s testimony that he paid $800 per month for E.’s daycare expenses. Finally, he asserted that he paid health insurance expenses for the child in the amount of $71.48 bi-weekly and requested that the court reopen the judgment to receive this additional evidence, which he attached as an exhibit to his motion.
Father requested that the court recalculate child support to include these figures.
Mother opposed the motion. She claimed that Father did not provide any reason why the court should receive additional evidence that Father could have presented at trial. She further argued that the court was not required to accept Father’s financial statement as evidence of his expenses.
Hearing on Revisory Motion
The court conducted a hearing on Father’s revisory motion on July 31, 2025. Mother asserted, and Father agreed, that the evidence adduced at the trial demonstrated that Father’s gross monthly income was $7,896 as demonstrated by Father’s pay stubs. Father claimed that the court should have credited his testimony that he did not work every summer and therefore should not have included the sum he earned during the summer; in Father’s view, this evidence would support his position that he received a monthly income of $6,570. Father also argued that the court should have given him credit for the daycare expense of $810 that he identified in his financial statement. Father requested the court reopen the evidence to allow him to submit evidence relating to the health insurance costs for E. As a reason for why he should be permitted to present evidence after the conclusion of the hearing and the court’s ruling, Father asserted that the basis was to promote fairness. Mother argued that the court should not allow Father to present new evidence regarding the daycare expenses or health insurance expenses, as he had this information available at the time of the merits hearing. She asserted that it was unfair to her for Father to be given a second chance to present this evidence, given that the evidence Father presented during the merits hearings—in particular, his bank statements—did not reflect any payments for daycare costs.
Father responded that Rule 2-534 allows the court broad discretion to reopen evidence. He asserted that Father should not be penalized by his counsel’s failure to introduce the evidence, and that it would be “appropriate” for the court to consider expenses Father was actually paying.
The court granted the revisory motion in part relating to Father’s income, which the court modified to reflect $7,896 per month. The court indicated it would adjust the child support order accordingly based on the guidelines. In relation to the daycare costs, the court found it would be unfair to Mother to accept the figure represented by Father— particularly because Mother identified issues that she would have addressed in impeachment had Father presented the evidence during the course of the trial. The court indicated that the same reasoning applied to the question of whether to reopen the evidence of the health insurance and declined to allow reopening on either issue.
On August 14, 2025, the court entered an order granting in part the motion to alter or amend to correct Father’s monthly income and correspondingly revised the child support obligation. The order reflected the court’s denial of Father’s request to present additional evidence of his daycare expenses and health insurance expenses. This timely appeal followed.
DISCUSSION
Father filed a Rule 2-534 motion to alter or amend the judgment of absolute divorce within ten days of its entry, thereby extending the time for noting an appeal until “30 days after entry of . . . an order . . . disposing of [the] motion[.]” Md. Rule 8-202(c). See Kamara v. Edison Bros. Apparel Stores, Inc., 136 Md. App. 333, 336 (2001); see also Ireton v. Chambers, 229 Md. App. 149, 153 (2015) (indicating that when party filed a revisory motion and the circuit court revises its earlier ruling, the revised ruling becomes the final judgment). Accordingly, Father’s appeal is timely as to both the underlying child support judgment and the court’s subsequent ruling on his Rule 2-534 motion. The appeal therefore encompasses both (i) the court’s initial child support calculation based on the evidence admitted at trial and (ii) the court’s partial denial of Father’s post-judgment requests asking that the court revise that calculation and open the judgment to receive additional evidence. We shall address each issue in turn.
I. the circuit court did not err in calculating child suPPort without crediting Father’s child-related exPenses.
A. Party Contentions
As we understand his argument, Father contends that, in declining to credit him for childcare and insurance costs incurred on E.’s behalf, the circuit court erroneously disregarded evidence of those expenditures introduced at trial. With respect to childcare, Father posits that both he and Mother testified that E. attended a Montessori school while in his care. Although Father concedes that he did not introduce bank statements showing the $800 per month in tuition payments he purportedly made, he maintains that the court “should . . . have reasonably assumed that [Father], with 182 nights of the year, has childcare costs while he’s at work as an educator.” Father further asserts that the parties’ testimony established that he covered E.’s health insurance costs and that he introduced pay stubs showing that health, dental, and vision insurance premiums were deducted from his paycheck.6 He concludes that the omission of these expenses from the child support calculation indicates that the court “failed to use the Maryland Child Support Guidelines[.]” Mother asserts that Father failed to introduce competent evidence substantiating his claimed expenses and that the court was not permitted to assume or speculate about such costs. With respect to insurance costs, Mother characterizes Father’s claimed expenses for E. as “imprecise and speculative,” noting that, when asked how he arrived at those figures, Father testified that he lacked supporting documentation and could not explain how the amounts were calculated. As to childcare expenses, Mother maintains that Father’s representations regarding his alleged payments were contradicted by bank statements from August through November 2024 that were presented at trial. Accordingly, Mother concludes that Father “failed to meet his burden to establish his purported child-related expenses to be included in the calculation of child support[,]” and thus, the trial court
correctly determined child support based on the available evidence and did not abuse its discretion in declining to reopen evidence after judgment.
B. Standard of Review
This Court recently described the standard of review applicable to child support determinations as follows: The trial court’s decision as to the appropriate amount of child support involves the exercise of the court’s discretion. A court can abuse its discretion when it makes a decision based on an incorrect legal premise or upon factual conclusions that are clearly erroneous. However, where the child support order involves an interpretation and application of Maryland statutory and case law, the Court must determine whether the trial court’s conclusions are legally correct under a de novo standard of review.
Houser v. Houser, 262 Md. App. 473, 490 (2024) (brackets, internal quotation marks, and citations omitted), aff’d sub nom. Matter of Marriage of Houser, 490 Md. 592 (2025). “We will not disturb the trial court’s determination as to child support, absent legal error or abuse of discretion.” Jackson v. Proctor, 145 Md. App. 76, 90 (2002).
C. Analysis
In calculating child support, trial courts must apply the guidelines set forth in the Maryland Code (1989, 2019 Repl. Vol.), sections 12-201 through 12-204 of the Family Law Article (“FL”). FL § 12-202(a)(1). See also Guidash v. Tome, 211 Md. App. 725, 737 (2013) (“Use of the guidelines to determine child support is mandatory[.]”). The amount of child support calculated by applying the guidelines is presumptively “the correct amount of child support to be awarded.” FL § 12202(a)(2)(i). See also Matter of Marriage of Houser, 490 Md. at 598 (citing FL § 12-202(a)(2)(i)). That presumption may be rebutted, however, “by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” FL § 12-202(a)(2)(ii).
In essence, “the guidelines require that the court determine the parties’ monthly actual income, calculate the basic support amount, add certain child-related expenses to the basic support amount, and then allocate the total between the parents.” Guidash, 211 Md. App. at 745. The expenses courts are required to add to the basic support amount include both “actual child care expenses incurred . . . due to employment[,]” FL § 12-204(g)(1), and “[a]ny actual cost of providing health insurance coverage for a child[.]” FL § 12-204(h)(1). The adjective “actual” refers to “[s]omething real, in opposition to constructive or speculative[.]” Shenk v. Shenk, 159 Md. App. 548, 554 (2004) (internal quotation marks and citation omitted).
The burden of proving the existence and amount of actual insurance costs and childcare expenses “is on the spouse seeking them.” Ruiz v. Kinoshita, 239 Md. App. 395, 437 (2018); see also Shenk, 159 Md. App. at 554 (“The burden of proof as to the existence of the prerequisites to entitlement is upon the spouse who seeks actual child[]care expenses.”). When the proponent meets that burden, such
costs and expenses “shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.” FL § 12-204(g)(1), (h) (1). Conversely, a court generally should not include in its child support calculation childcare expenses or insurance costs based on evidence that is speculative, uncertain, or hypothetical. Cf. Shenk, 159 Md. App. at 554–55 (2004) (holding that the trial court erred by including hypothetical full-time child-care expenses in its child support calculation where the evidence showed that the wife worked, at most, part-time, rendering the award “speculative and improper”).
As an initial matter, we note that the circuit court’s omission of Father’s claimed childcare expenses and health insurance costs from the court’s initial support calculation does not necessarily mean that it “failed to use the Maryland Child Support Guidelines[.]” If the court discredited Father’s evidence that he actually incurred those expenses, the exclusion of those expenses and costs would simply reflect a determination that Father failed to meet his burden of proving the factual predicates necessary for their inclusion.
The parties’ testimony that E. attended the Montessori school while in Father’s care did not provide a sufficient evidentiary basis for the court to credit Father for workrelated childcare expenses. To carry his burden, it is not sufficient that Father merely establish that E. attended daycare. Rather, Father was required to produce evidence of the actual childcare expenses incurred on E.’s behalf. See FL § 12-204(g)(1). Absent such evidence, any award of childcare expenses would have been speculative rather than “actual.” See id.
Father’s paystubs were likewise insufficient evidence from which the court could determine the actual cost of health insurance for E., as they reflected Father’s undifferentiated family health insurance premium, rather than the “actual cost of providing health insurance coverage for [the] child[.]” FL § 12-204(h)(1). As explained in Fader’s Maryland Family Law:
This cost has been defined as the cost of adding the child(ren) to existing coverage or the difference between self-only and family coverage. This is the number the court can allocate. It cannot allocate the whole cost, nor can it guess at the percentage of the whole cost. Evidence must be presented.
Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 6-15(a) (7th ed. 2021) (citations and internal quotation marks omitted). Thus, the pay stubs, in failing to show the cost of insurance specifically for E., do not suffice. See id.; FL § 12-204(h)(1).
Father asserts that his financial statement filed prior to trial qualified as evidence demonstrating that Father paid $800 per month in childcare costs and differentiating the specific cost of health insurance attributable to E., which he contends the trial court should have found to be credible. We disagree with Father’s contention that the circuit court was required to accept the premises in the financial statement. See Goicochea v. Goicochea, 256 Md. App. 329, 340 (2022) (quoting Md. Rule 8-131(c)) (“When an action is tried without a jury, the appellate court reviews the case based on the law and the evidence and will give due regard to the opportunity
of the trial court to judge the credibility of the witnesses.”) (internal quotation marks omitted). Therefore, the trial court is afforded significant deference in evaluation of all, part, or none of the evidence. See id. Moreover, “[a]lthough it is not uncommon for a fact-finding judge to be clearly erroneous” when affirmatively persuaded of something, it is “almost impossible for a judge to be clearly erroneous when he or she is simply not persuaded of something.” Omayaka v. Omayaka, 417 Md. 643, 658–59 (2011) (brackets and emphasis omitted) (quoting Bricker v. Warch, 152 Md. App. 119, 137 (2003)).
Father’s June 2024 Rule 9-203 statement itemized E.’s monthly daycare and health insurance expenses as $810 and $169.25, respectively.7 However, during crossexamination, Father acknowledged that there were multiple changes to his financial status that were not reflected in the statement.8 Moreover, while Father testified that he had enrolled E. at the Montessori school in September of 2024— after the filing of his financial statement—he attested that E.’s tuition remained $800 per month. As Mother noted in closing argument, Father’s bank statements did not reflect these expenses. In addition, Father did not provide any testimony concerning how he determined the cost of health insurance attributable solely to E. During cross-examination, he admitted that he could not recall how he had calculated the cost of health insurance for E. identified in his financial statement. Father asserted that the county he worked for had a breakdown that could demonstrate the difference in health insurance for a sole individual compared with a child. However, he was unsure what amount was attributable to E., and he did not present documents reflecting that amount with him at the December 2024 hearing; nor did he bring such documents to the continuation of the merits hearing in April of 2025. While there was minimal evidence which, if credited, would have provided an adequate evidentiary basis for the court to include Father’s alleged childcare and health insurance costs, that evidence was subject to a weight and credibility determination by the trial court. See Goicochea, 256 Md. App. at 340; Omayaka, 417 Md. at 658–59.
An additional obstacle to the review of Father’s argument is that the record before us does not reflect what, if any, weight the court afforded that evidence. This is the result of Father’s failure to provide this Court with a transcript of the April 18, 2025 disposition hearing, at which the court announced its ruling and presumably explained its reasoning. Compare Md. Rule 2-522(a) (“In a contested court trial, the judge, before or at the time judgment is entered, shall prepare and file or dictate into the record a brief statement of the reasons for the decision[.]”), with Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (“[T]here is a strong presumption that judges properly perform their duties[.]” (internal quotation marks and citations omitted)).
As the appellant, Father bore the burden of “put[ting] before this Court every part of the proceedings below which were material to a decision in his favor.” Lynch v. R. E. Tull & Sons, Inc., 251 Md. 260, 262 (1968). See also Kovacs v. Kovacs, 98 Md. App. 289, 303 (1993) (“A party asserting that error was committed . . . bears the burden of showing, by the record, that the error occurred.” (emphasis added)), cert. denied,
334 Md. 211 (1994). To satisfy that burden, it was incumbent upon Father to request “a transcription of any portion of any proceeding relevant to the appeal . . . that contains the ruling or reasoning of the court[,]” and to ensure the transcript’s inclusion in the record on appeal. Md. Rule 8-411(a)(2). See also Md. Rule 8-413(a) (“The record on appeal shall include . . . the transcript required by Rule 8-411[.]”).
As Father has failed to produce a transcript of the April 18 disposition hearing, we are unable to meaningfully review the court’s exclusion of the alleged expenses at issue from its child support calculation. Accordingly, we must reject Father’s claim of error.9 See Kovacs, 98 Md. App. at 303 (“The failure to provide the court with a transcript warrants summary rejection of the claim of error.”).
ii. the circuit court did not aBuse its discretion in Partially denying the motion to alter or amend.
A. Party Contentions
Father also challenges the circuit court’s partial denial of his motion to alter or amend. Specifically, he claims that the court erred by declining to reopen the case to receive additional evidence concerning his work-related childcare expenses and E.’s health insurance costs. As we understand his argument, Father also appears to assert that, in denying his revisory motion, the court failed to reconsider the evidence admitted at trial in the form of Father’s Rule 9-203 statement.
Mother posits that the court did not abuse its discretion in denying the motion to alter or amend. With respect to Father’s first argument, Mother responds that the circuit court “appropriately denied [his] request to introduce additional evidence” on the grounds that such evidence “could have been presented at trial” and reopening the case would have been unfair to Mother. As to Father’s second argument, Mother maintains that in recalculating child support in response to his motion to alter or amend, the court properly “determined the facts to [be] include[d] into the Maryland Child Support Guidelines” based on the evidence presented at trial.
B. Standard of Review
When considering a timely motion to alter or amend under Maryland Rule 2-534, “the discretion of the trial judge is more than broad; it is virtually without limit.” Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002). In addition to arguing the intrinsic merits of an issue, an appellant seeking review of the denial of a revisory motion under Maryland Rule 2-534 “must also make a strong case for why a judge, having once decided the merits,” should then have exercised its discretion in revisiting them. Id. at 484–85. When a party appeals the denial of a Maryland Rule 2-534 motion to alter or amend, the standard of review is whether the circuit court abused its discretion in declining to revisit the judgment. See Halstad v. Halstad, 244 Md. App. 342, 349 (2020) (citing Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015)).
A court abuses its discretion “‘where no reasonable person would take the view adopted by the [circuit] court’ or where the court acts ‘without reference to any guiding rules or principles.’” Johnson v. Francis, 239 Md. App. 530, 542
(2018) (quoting Powell v. Breslin, 430 Md. 52, 62 (2013)), cert. denied, 463 Md. 155 (2019). “An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is violative of fact and logic.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal quotation marks and citations omitted). To be reversed, the decision under consideration must be “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Rose v. Rose, 236 Md. App. 117, 131 (citation omitted), cert. denied, 459 Md. 417 (2018).
C. Analysis
Maryland Rule 2-534 provides that for judgments decided by a court, upon receipt of a motion filed within ten days of a judgment’s entry, the court may, inter alia, open the judgment to receive additional evidence, adjust its findings, and amend the judgment. As is evident from the use of the word “may,” the decision to grant or deny a Rule 2-534 motion is committed to the broad discretion of the trial court. See, e.g., Renbaum v. Custom Holding, Inc., 386 Md. 28, 45 n.15 (2005) (citation omitted) (“Rule 2-534 grant[s] trial courts wide discretion to open a judgment, receive additional evidence, and amend or alter the judgment and findings.”).
A trial court’s discretion is particularly wide, and the movant’s burden especially great, in the context of motions to alter or amend. In Steinhoff, 144 Md. App. at 484, this Court explained: With respect to the denial of a [m]otion to [a] lter or [a]mend, . . . the discretion of the trial judge is more than broad; it is virtually without limit. What is, in effect, a post-trial motion to reconsider is not a time machine in which to travel back to a recently concluded trial in order to try the case better with hindsight. The trial judge has boundless discretion not to indulge this all-too-natural desire to raise issues after the fact that could have been raised earlier but were not[.]
We further explained that post-trial motions do not provide blanket authorization for parties unsatisfied with the outcome “to replay the game as a matter of right.” Id. We clarified that a party’s burden in making a post-judgment motion is more onerous than at trial:
That a party, arguendo, should have prevailed on the merits at trial by no means implies that he should similarly prevail on a post-trial motion to reconsider the merits. A decision on the merits, for instance, might be clearly right or wrong. A decision not to revisit the merits is broadly discretionary. The appellant’s burden in the latter case is overlaid with an additional layer of persuasion. Above and beyond arguing the intrinsic merits of an issue, he must also make a strong case for why a judge, having once decided the merits, should in his broad discretion deign to revisit them.
Id. at 484–85.
Here, Father asserts that the circuit court abused its discretion in declining to revise the judgment using the
undocumented evidence presented in his Rule 9-203 statement for daycare costs, and in declining to reopen evidence to admit evidence regarding health insurance costs. The court, after hearing the parties’ arguments, stated the following in relation to whether to reconsider the daycare costs:
[T]his is a slippery slope because if it wasn’t presented during the trial - - during the merits hearing - - to now go back and open it - - as pointed out by [Mother’s] counsel, there were things that [Mother’s counsel] would have addressed, . . . i.e.[,] the absence of transactions on the bank statement to support it. They would have tried to impeach the allegations.
So when I say it’s a slippery slope, I’m not trying to do anything that’s fundamentally unfair to [Father]. But on the flip side, it would be fundamentally unfair to just take this number and accept it without considering that [the] number is not being agreed to or consented to by [Mother], and she would have . . . assailed or attacked [the number], presumably, based on [the fact that] she’s a[n] officer of the court, that’s what she’s saying she would have done, presumably, if it was presented during the trial.
So that’s a slippery slope to just start opening doors and going back and revisiting things [Father’s motion to reopen evidence is suggesting] we would have, could have, should have presented this daycare calculation. And now, [Mother] is saying, well, if you had, I would have done this . . . that would render the trial useless. Why would we do that? Why would we do the trial if we’re just going to come back and consistently revisit it and reopen the door?
[The] request is denied as to the inclusion of the daycare calculation.
The court continued, applying the same reasoning to whether to reopen the evidence regarding the health insurance costs:
It’s the same thing. I’m not saying that legally, [Father is] not entitled to it. But if you don’t present it during trial, to come back and open the door and revisit now, I take full responsibility for anything I dropped the ball on. And that should not be impugn the parties, and I’d be more than willing to rectify and fix it.
But if you didn’t present it to the court, then I can’t come back and consider it now. And so the motion is denied[.]
The court in this case explained its reasoning in declining to accept the numbers Father posited in his Rule 9-203 statement as to the daycare costs, and indicated that the same reasoning applied to its decision not to reopen the evidence as to the health insurance costs—because it would have been unfair to do so when Mother asserted that she would have disputed those numbers. We cannot say that no reasonable person would have taken this view. See Johnson, 239 Md. App. at 542 (citation omitted). Nor can we say that this ruling was clearly against “the logic and effect of facts and inferences before the court,” see In re Adoption/Guardianship No. 3598, 347 Md. at 312, or that the ruling was “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” See Rose, 236 Md. App. at 131 (citation omitted).
We further observe that Rule 2-534 permits a party to present additional evidence that may persuade “the trial judge to enter a different, more appropriate judgment.” Renbaum, 386 Md. at 46. However, the Rule does not suggest an intention to afford litigants a second opportunity to introduce evidence that was known and available to them at trial but which they neglected to offer. This Court has recognized that a court does not abuse its discretion in denying a Rule 2-534 motion to reopen a case to receive additional evidence that was available to, but not offered by, the movant during the underlying proceeding. See Rock v. Rock, 86 Md. App. 598, 623–24 (1991) (concluding that the court did not abuse its discretion in denying the appellant’s Rule 2-534 motion where the evidence proffered in support of the motion was available, but not offered, at an earlier exceptions hearing).
In applying the foregoing principles, we discern no abuse of discretion in the circuit court’s refusal to receive the health insurance rate sheet into evidence.10 Father acknowledges that, although the document was available at trial, his attorney failed to introduce it. That the oversight may have been that of counsel does not provide a valid basis for excusing such. See Bland v. Hammond, 177 Md. App. 340, 358 (2007) (quoting Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962)) (“Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”). Under these circumstances, we cannot say that the court’s denial of Father’s request to reopen the judgment to receive the health-insurance rate sheet was “well removed from any center mark” or “beyond the fringe of what [we] deem[] minimally acceptable.” Rose, 236 Md. App. at 131 (citation omitted). Thus, the circuit court did not abuse its discretion in partially denying Father’s motion to alter or amend.
JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 In the judgment of absolute divorce, the court restored Mother’s maiden name of Johnson.
2 Rephrased from:
1. Was the trial court’s denial of credit for healthcare costs and work-related childcare[] expenses, even after post-judg[] ment motions, undisputed testimonies of [Father] and [Mother], a reversible error of the court, when Rule 8-604 gives authority to the court to modify when an error is material to the separable part of [j]udg[]ment?
(Emphasis omitted).
3 Father acknowledged that: the number identified as the mortgage payment number was “a little off”; that the costs for the water bill and electric bill had changed since he submitted the financial statement; the cost identified for cable was no longer being paid; the cost identified for pets and boarding no longer existed; and that some of the cost identified as a monthly credit card payments likely included some of the expenses reflected by other categories such as food and clothing.
4 Father also did not attempt to provide these documents when he was recalled as a rebuttal witness on the second day of the hearing, which took place in April of 2025.
5 A transcript of this hearing was not acquired.
6 Father raises two related arguments in passing. First, Father asserts that he “suffere[d] the offense [of] ineffective assistance of counsel.” Although ineffective assistance of counsel claims are generally reserved for defendants in criminal cases, Maryland courts have also considered such claims when reviewing child in need of assistance and guardianship proceedings in which parties enjoy a statutory right to counsel. See, e.g., In re J.R., 246 Md. App. 707, 757–60, cert. denied, 471 Md. 272 (2020). Those statutes do not, however, extend to the divorce and child support proceeding at issue. See Das v. Das, 133 Md. App. 1, 29 (“The right to counsel does not apply to a simple action for divorce.”), cert. denied, 361 Md. 232 (2000). Because Father was neither statutorily entitled to representation at trial nor under threat of incarceration, he cannot prevail on a claim of ineffective assistance of counsel.
Second, in his reply brief, Father challenges the veracity of the evidence of Mother’s work-related childcare expenses, arguing that E. has not attended the daycare in which Mother testified to having enrolled her. Because Father raised this issue for the first time in his reply brief, we decline to consider it. See Gazunis v. Foster, 400 Md. 541, 554 (2007) (“[A]ppellate courts ordinarily do not consider issues that are raised for the first time in a party’s reply brief.”); Anderson v. Burson, 196 Md. App. 457, 476 (2010) (“We shall decline to address any of the issues raised by [the appellant] for the first time in their reply brief.”).
7 The long and short forms of Father’s Rule 9-203 statements respectively differ in expressing the amount of E.’s health insurance expense as $169.25 or $169.24 per month.
8 See supra n.3.
9 While we are mindful of Father’s pro se status, it does not excuse his failure to comply with the relevant Maryland Rules. See Dep’t of Labor, Licensing & Regul. v. Woodie, 128 Md. App. 398, 411 (1999) (“It is a well-established principle of Maryland law that pro se parties must adhere to procedural rules in the same manner as those represented by counsel.”); Tretick v. Layman, 95 Md. App. 62, 68 (1993) (“The principle of applying the rules equally to pro se litigants is so accepted that it is almost self-evident.”).
10 On appeal, Father asserts that the circuit court also abused its discretion in refusing to admit bank statements which he contends reflect payments made to the Montessori school. We note that the health insurance rate sheet was the only “additional evidence” attached to Father’s revisory motion or referenced by counsel at the hearing thereon. Given that the bank statements were neither presented nor proffered to the circuit court, it could not have erred by failing to consider them. See Cochran v. Griffith Energy Serv., Inc., 191 Md. App. 625, 663 (“Facts outside the record cannot be argued to or considered by the trial court, and thus have no influence on its judgment. Accordingly, an appellate court must confine its review to the evidence actually before the trial court when it reached its decision.”), cert. denied, 415 Md. 115 (2010).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s denial of aunt’s motion for an order seeking special immigrant juvenile status of her niece, nunc pro tunc, to a date before the minor turned 21, when she became ineligible for such status. The court’s denial of aunt’s motion was not a clerical error that can be corrected nunc pro tunc. And even if entry of the order nunc pro tunc were proper, the minor is not substantively eligible for a special immigrant juvenile status predicate order.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
“very difficult[.]” She provides that she had limited access to food and necessities because she didn’t have sufficient financial support from her parents. She states that her father spent all his time either at his job as a police officer or out drinking with his friends, and that her mother would often leave the Minor and her sister alone to take care of themselves. The Minor says that she had to make the food, do the laundry, clean the house, and make sure her sister went to school and did her homework. The Minor states that she went to school when she could, and that on the only route available to her to the school she would often be harassed by MS-13 gang members.
In 2021, the Minor decided to leave El Salvador and enter the United States because her situation at home and the harassment from MS-13 gang members had not changed. Specifically, the Minor was aware of a girl who lived near her in El Salvador who was taken and believed to be killed by MS-13 gang members. The Minor feared that this could happen to her as well if she remained in El Salvador.
The instant appeal arises out of Appellant’s Petition for Custody and [Special Immigrant Juvenile Status “SIJS”] Predicate Findings for the Minor1 in the Circuit Court for Prince George’s County, and her subsequent Motion to Expedite Hearing for petitions for SIJS findings because the Minor would soon be turning twenty-one. Appellant is the Minor’s Aunt. The Circuit Court for Prince George’s County denied Appellant’s Emergency Motion to expedite. Thus, on April 16, 2025, Appellant filed a Motion for Order Nunc Pro Tunc, requesting equitable relief, which the circuit court also denied. On June 10, 2025, Appellant filed the instant, timely appeal to the circuit court’s denial of the Motion for Order Nunc Pro Tunc
In bringing this appeal, Appellant presents two questions for appellate review, which we consolidate and rephrase as follows:
I. Did the circuit court err in denying Appellant’s Motion for Order Nunc Pro Tunc, concerning Appellant’s Petition for Custody and for SIJS predicate findings?
Factual & Procedural Background
The Minor in this case was born on November 25, 2003, in El Salvador. The Minor describes her life in El Salvador as
Once in the United States, the Minor first lived with her uncle in Virginia. In 2022, she went to live with her Aunt Amparo Trejo (“Appellant”) in Maryland. The Minor states that since she has been in the United States, her parents have not made much of an effort to communicate with her. The Minor provides that Appellant is “wonderful, kind, [and] loving[,]” that Appellant makes her feel safe and motivated and is more of a mother figure for the Minor than her biological mother. The Minor states that she graduated from high school in May 2024.
On October 10, 2024, Appellant filed a Petition for Custody and [Special Immigrant Juvenile Status “SIJS”] Predicate Findings for the Minor in the Circuit Court for Prince George’s County. Specifically, Appellant alleges that the Minor’s parents abandoned and neglected her and that the Minor would suffer severe discrimination and harassment if she had to return to El Salvador. On November 21, 2024, Appellant filed a Motion to Expedite Hearing for petitions for SIJS findings because Minor would be turning twenty-one on November 25, 2024, which would render her ineligible for a SIJS predicate order of factual findings. On November 22, 2024, the Circuit Court for Prince George’s County denied Appellant’s Emergency Motion to expedite. On April 16, 2025, Appellant filed a Motion for Order Nunc Pro Tunc. On May 15, 2025, the Circuit Court denied the Motion for Order Nunc Pro Tunc. On June 10, 2025, Appellant filed the instant, timely appeal to the court’s denial of the Motion for Order Nunc Pro Tunc 2
A. Parties’ Contentions
Appellant raises four arguments in her brief on appeal.3 First, Appellant argues that the circuit court erred by treating the delay in this case as jurisdictional rather than procedural. Specifically, Appellant argues that because the petition was filed before the Minor’s twenty-first birthday, the circuit court had jurisdiction.
Specifically, Appellant argues:
Because the petition was timely filed before the youth turned [twenty-one], the issue was procedural. Maryland courts possess equitably powers to correct procedural lapses nunc pro tunc[.] (Pickeral v. Fed. Land Bank of Balt., 177 Md. 601 (1940); Kiser v. State Roads Comm’n, 153 Md. 76 (1927); Kellum v. Smith, 151 Md. App. 515 (2003)).4
Next, Appellant argues that the circuit court had equitable power to enter a nunc pro tunc SIJS Order. Specifically, Appellant argues that the Minor was substantively eligible for a SIJS predicate order, and that it was only denied because of counsel’s delay and the court’s refusal to expedite. Therefore, Appellant concludes that “[e]quity demands correction so that the child is not deprived of SIJS protection solely due to attorney error.”
Third, Appellant argues that the Circuit Court’s denial of nunc pro tunc equitable relief deprives the Minor of the “best interests of the child” standard that was “designed to protect her.”
Finally, Appellant argues that the Circuit Court’s denial of nunc pro tunc relief “defeats Congress’s intent [in creating SIJS] by leaving a substantively eligible youth unprotected.”
Based on these four arguments, Appellant requests that this Court reverses and remands this case with instructions for the circuit court to enter the custody and SIJS predicate orders nunc pro tunc as of November 22, 2024.
Notably, no Appellee brief has been filed in this case.
B. Standard of Review
This Court recognizes that “[t]rial courts are vested with the common law authority to correct certain errors nunc pro tunc.” Cave v. Elliot, 190 Md. App. 65, 77 (2010) (citing Sapero & Sapero v. Bel Air Plumbing & Heating Contractors, 41 Md. App. 251, 259 (1979)). Nunc pro tunc means “now for then” in Latin, meaning “a thing is done now, which shall have the same legal force and effect as if done at the time when ought to have been done.” See Short v. Short, 136 Md. App. 570, 578-79 (2001) (citations omitted). “Nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake.” Id. The purpose of a nunc pro tunc order is “to correct a clerical error or omission as opposed to a judicial error or omission.” Cave, 190 Md. App. at 78 (citing In re Timothy C., 376 Md. 414, 430 n. 10 (2003) (citations omitted); see also State v. Johnson, 228 Md. App. 489, 512 (2016). On numerous occasions this Court has referred to the Wisconsin Supreme
Court case, Bostwick v. Van Vleck, 106 Wisc. 387 (1900), which set out “[t]he test to be applied in determining whether an error in a judgment is of judicial character, or a mere clerical mistake which may be corrected in the court where it was made at any time, saving intervening rights of third parties and with due regard to equitable concerns,” as being: Whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error. If the difficulty is found to be of the latter character, it may be remedied as a mere clerical mistake, which will not have the effect to change the judgment pronounced in the slightest degree, but merely to correct the record evidence of such judgment.
Id. at 385-86.5 In other words, “to determine whether relief can be granted nunc pro tunc, we must distinguish whether there was a judicial or clerical error in properly entering the entry for judgment.” Short, 136 Md. App. at 579; see also id. at 580 (concluding that the Motion for Entry of Judgment Nunc Pro Tunc was properly denied because if there was any error, it was more likely a judicial error than a clerical error).
C. Analysis
Here, the circuit court did not err by denying Appellant’s Motion for Order Nunc Pro Tunc. First, the alleged error, of not entering the order, was not merely clerical. See e.g. Short, 136 Md. App. at 579. Entry of the requested order would not simply “supply omission in record of action really had but omitted through inadvertence or mistake[,]” but would actually “supply omitted action[.]” This is not the purpose of nunc pro tunc orders. See id. In other words, the court’s denial of Appellant’s motion was not a clerical error that can be corrected nunc pro tunc. Rather, Appellant urges the court to use its nunc pro tunc power to completely change the outcome the court reached, which is improper. See id. at 578-79.
Even if entry of the order nunc pro tunc were proper, which it is not, Appellant’s argument would still fail because the Minor is not substantively eligible for a SIJS predicate order. Federal law defines a Special Immigrant Juvenile as an immigrant “who has been declared dependent on a juvenile court […] or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court[,]” and whose reunification with one or both of their parents is “not viable due to abuse, neglect, abandonment, or a similar basis” under State law. 8 U.S.C. § 1101(a)(27)(J). To be eligible for SIJ status, a petitioner must: (1) be under 21 years of age at the time of filing the petition; (2) be unmarried at the time of filing and adjudication; (3) be physically present in the U.S.; (4) be the subject of a juvenile court order that meets the requirements in 8 C.F.R. § 204.11(c); and (5) obtain consent from the Secretary of Homeland Security to classification as a SIJ. 8 C.F.R. § 204.11(c).
In Appellant’s underlying Motion for Order Nunc Pro Tunc, Appellant concedes that her Emergency Motion was not
requested within the requisite time constraints and argues that the Minor should not be penalized because: Due to untimely filed the Emergency Motion to Expedite Hearing which was requested a few days before the Minor reached 21 years old due to unforeseeable circumstances, the emergency hearing was denied, and [the Minor] has since reached the age of 21. The failure to file the Emergency motion to Expedite Hearing within the necessary time frame was through no fault of [Appellant] or [the Minor], but the fault of counsel in not filing the emergency motion at least 30 days before the age-out. [Appellant] should not be penalized for counsel’s mistake. See, e.g. Kiser v. State Roads Comm’n, 153 Md. 76 (1927) (standing for the proposition that courts may issue nunc pro tunc orders if the delay was caused by others besides the petitioner, e.g. the court, or clerical errors)[.]6
However, on appeal Appellant argues that prong (1) is satisfied because the “Minor” was not yet 21 years old when Appellant’s Petition for SIJS findings was filed. Regardless of Appellant’s conflicting arguments concerning prong (1), the Minor would not have been eligible for an SIJSpredicate order because she cannot satisfy prong (4). For prong (4)’s purposes, a “juvenile court” is a court located in
the U.S. that “has jurisdiction under State law to make judicial determinations about the dependency and/or custody and care of juveniles.” 8 C.F.R. § 204.11(a). 8 C.F.R. § 204.11(c) (i) provides that a juvenile court “must have made at least one of the following judicial determinations related to the petitioner’s custodial placement or dependency[:]”
(A) Declared the petitioner dependent upon the juvenile court; or
(B) Legally committed to or placed the petitioner under the custody of an agency or department of a State, or an individual or entity appointed by a State or juvenile court.
Here, the Minor has not received either of these kinds of orders. Appellant sought entry of a custody order over the Minor, but one was never entered. Thus, prong (4) for SIJ status could not be satisfied for the Minor. Additionally, the “best interests of the child” standard does not overcome the statutory requirements of 8 C.F.R. § 204.11(c).
Therefore, irrespective of any alleged errors by Appellant’s counsel in this case, the Minor would not have been substantively eligible for SIJS status.
conclusion
Accordingly, we affirm the judgment of the Circuit Court for Prince George’s County.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 We refer to her as “the Minor” to protect her identity because she was a minor at the outset of this case.
2 Notably, this is a final judgment, reviewable by this Court because with this denial, all claims against all parties were disposed of. See e.g. Silbersack v. ACandS, Inc., 402 Md. 673, 678 (2008) (internal citations omitted).
3 The Court has identified several issues with the cases cited in Appellant’s brief. Of the seven cases cited in Appellant’s brief, three of them do not exist. Each of these citation irregularities will be addressed in turn in footnotes. Additionally, Appellant’s brief notably makes many legal assertions without providing citations to support them. For example, the “Standard of Review” section does not contain a single citation.
4 We strike the portions of Appellant’s brief as it pertains to this argument because the three cases cited as support do not exist.
5 While not binding on this Court, this case was acknowledged as persuasive support in the following cases: Doser v. Doser, 106 Md. App. 329, 346-47 (1995); Short, 136 Md. App. at 579; In re Timothy C., 376 Md. at fn. 10.
6 As previously noted, this case does not exist.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s monetary award and its refusal to award alimony to husband. In both decisions, the circuit court weighed the appropriate factors.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Husband is retired, having enjoyed a long career in government and politics. He receives monthly retirement income from the entities in which he served, the Texas state government and the U.S. Congress, as well as monthly Social Security income.
After retiring from government service, he pivoted to the haven of many former government servants, lobbying. At the time of the proceedings in the circuit court, he reported but a sole lobbying client. Husband nets about $4,000 per month from representation of this client, within an asserted gross monthly income of $7,000. Husband had some health concerns that he believed led to a significant decrease in the number of his clientele, which impacted adversely his income. He has also a side business selling Congressional service rings, but claimed that he does not receive presently income from that venture.
This appeal concerns sequelae from a divorce action between William Sarpalius (“Husband”), appellant, and Jennifer Sarpalius (“Wife”), appellee, in the Circuit Court for Queen Anne’s County. Appellant presents the following questions for our consideration:
1. Did the Trial Court err when [the judge] failed to recuse herself after showing clear bias in her Order of [13 May] 2025?
2. Did the Trial Court err when it made findings regarding the marital property and the amount of the monetary award awarded to [Husband]?
3. Did the Trial Court err when it failed to award [Husband] any alimony despite [Wife’s] significantly higher income and other factors favoring [Husband]?
4. Did the Trial Court err when it failed to award [Husband] attorneys’ fees?
For reasons we shall reveal, we affirm the judgment.
BACKGROUND
The parties were married in 2004 in Louisiana. They separated in April 2023 while living in Maryland. They have lived since separate lives. At the time of trial, Husband was seventy-seven years old. Wife is nineteen years his junior.
Husband met Wife when his lobbying firm accepted as a client her then-employer, CHRISTUS Health. He described the first ten years of their marriage as “magical,” but opined ultimately that Wife’s regular work travel and their lack of intimacy led to the collapse of the marriage. Wife ripostes that the decay of the marriage was caused by Husband’s extramarital affairs, emotional and physical abuse, and financial irresponsibility.
Over the course of these proceedings, Husband provided to the court and to Wife three varying financial statements. In the statement submitted on 15 September 2023, he listed his gross monthly income as $8,167. On 9 September 2024, Husband filed a financial statement in which he listed his updated gross monthly income as $7,781. In his 10 February 2025 statement, he disclosed a gross monthly income of $12,028.39, which included $3,702.99 and $1,459 gross retirement income from the state of Texas and the U.S. Congress, respectively.
Husband claimed that his gross monthly income increased from September 2023 to February 2025 because his sole lobbying client increased its monthly payment by $2,000 in 2023. He could not account for the additional $2,000 discrepancy. He could not explain either why his gross monthly income decreased from September 2023 to September 2024 when he had received allegedly an increase in lobbying income.
Husband admitted that he filed the February 2025 statement reflecting the increased income after Wife’s counsel confronted him during a deposition with loan applications completed for the purchase of a Land Rover vehicle and garden tractor, and financing the replacement of the HVAC system for the former marital home, all of which applications indicated that he claimed a gross monthly income of $14,000, leading to a gross annual income of $180,000.
Wife is a Certified Public Accountant (“CPA”), who worked in finance in the healthcare field for much of her career. At the time of trial, she was the relatively new Chief Financial Officer of the University of Texas Medical Branch (“UTMB”). Wife lists her gross monthly income as $43,750. Wife asserts that she was the primary monetary and non-monetary contributor throughout the marriage.
Husband and his first wife bought the marital home in 1996 for $538,000. He received the home in settlement when they divorced. He put Wife’s name on the deed on 8 June 2005. Wife alleged that her name is the only name on the mortgage because they refinanced the home soon after their marriage when Husband did not have a good credit score. The parties agreed that the house is worth about $1,830,000. They spent about $100,000 on improvements to the property over the years.
Husband lived alone in the former marital home after the parties separated. During that time, he funded personally the HVAC overhaul, the removal of several trees, and the purchase of the new John Deere lawnmower/tractor. Since the separation, Wife paid the mortgage, insurance, and taxes for the house. As he was living on the property, Husband paid the other household expenses and utilities. He testified that he would like to stay in the home and that he would be able to maintain it on his own. Husband did not provide documentation to the court of his ability to pay for the mortgage and upkeep of the marital home. He hoped to use his portion of the marital property division to buy Wife’s interest in the house. Wife requested rather that the court order a judicial auction sale of the marital home.
A Fidelity Brokerage Investment Account (x2957) is Husband’s and Wife’s only joint account. Its contents were frozen at the beginning of the proceedings. Wife paid the mortgage and all shared bills out of this joint account at first, but she started using her own funds for these payments when Husband moved his retirement income to a separate account in his name. Husband stopped making payments towards the mortgage in April 2023.
Husband alleged that Wife’s Fidelity Rollover IRA (x7639) is marital property. Wife testified that the account contains money from retirement accounts with her former employers Memorial Hermann and CHRISTUS Health that she contributed to prior to the marriage. Her employment with Memorial Hermann was entirely pre-marital. Wife worked for CHRISTUS Health for six years before the marriage and two years after the marriage. Wife’s current employer, UTMB, offers presently an unfunded deferred compensation plan, but there is no guarantee that she will receive any benefit from this plan as it is awarded at the discretion of the UTMB president. Wife accepted the job at UTMB while married to Husband, but did not start that employment until after they separated.
Eric Rollinger was qualified as Wife’s expert witness in accounting, financial forensics, taxation, tracing, and valuation. He was retained to determine what portion, if any, of Wife’s rollover IRA was non-marital property. Rollinger valued the non-marital portion of the rollover IRA at $461,575 and the marital portion at $985,126.
According to Rollinger, the CHRISTUS Health account contained both marital and non-marital funds. When determining the value of this particular account, he reported that he used a “conservative” estimate based on the maximum contribution amount Wife could have made during the two years she worked at CHRISTUS Health while married to Husband, with a growth rate informed
by the S&P 500.
Rollinger determined that the account from Memorial Hermann was entirely non-marital because Wife contributed to that prior to the marriage. He admitted that he did not use exact numbers supplied by the account, relying instead on Wife’s statements as to her salary and the maximum possible contribution amounts in order to calculate a “conservative” estimate as to what portion of the account might be marital or non-marital.
Robert Carter was qualified as Husband’s expert witness in forensic accounting and tracing analysis. Carter disputed the formula that Rollinger used to calculate the non-marital property in the rollover IRA. He acknowledged that Rollinger used conservative numbers that benefitted Husband, but stated that Rollinger’s conclusion as to the value of the non-marital portion of the account was flawed inherently because he did not use Wife’s actual contribution amounts in the calculation.
Carter took issue also with Rollinger’s use of the S&P 500 to calculate the growth rate. He questioned the fact that, although Wife acknowledged receiving a statement from the rollover IRA, dated 30 September 2004, she did not provide that statement for review by the court or either party’s expert. Carter admitted that it was likely that Wife had some pre-marital funds in the rollover IRA, but concluded nonetheless that the entirety of the account must be considered marital property because any non-marital portion was not traced specifically.
On 18 March 2025, the court filed a Judgment of Absolute Divorce, ordering Wife to pay Husband a monetary award of $700,000 within ninety days and denying Husband’s request for alimony. In a separate order issued on the same date, the court ordered the sale of the marital home within sixty days, specifying that the net proceeds were to be split evenly between the parties. Husband lodged a timely appeal. Soon thereafter, Husband filed motions to stay enforcement with the circuit court and this Court, each of which were denied.
The circuit court held a separate hearing on attorneys’ fees on 22 April 2025. Stephen Krohn was qualified as Wife’s expert witness in family law, attorneys’ fees, and billing practices. He testified that the fees charged by Wife’s counsel and expert witness (Rollinger) were reasonable generally, while those charged by Husband’s counsel and expert witness (Carter) appeared, at times, to be excessive and unnecessary. On the same date, the court denied Husband’s request for attorneys’ fees. 1 Husband filed an amended notice of appeal on 30 April 2025.
On 12 May 2025, Husband filed in the circuit court a second motion to stay enforcement of the judgment, which was denied the following day. In response to that denial, Husband filed a motion to recuse the trial judge, alleging that the denial of his motion to stay enforcement was predicated on the judge’s reliance on extrajudicial facts, thus demonstrating the judge’s bias against Husband. The court denied the motion to recuse on 23 May 2025. Husband filed a second amended notice of appeal. Additional factual matter will be supplied as relevant to our analysis of Husband’s questions.
STANDARD OF REVIEW
We review the rulings of a circuit court sitting without a jury “on both the law and the evidence[,]” giving “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c); Friedman v. Hannan, 412 Md. 328, 335 (2010). We review the court’s factual findings for clear error. MAS Assocs., LLC v. Korotki, 465 Md. 457, 474-75 (2019). Finally, we review the court’s legal conclusions under a non-deferential standard of review. Nouri v. Dadgar, 245 Md. App. 324, 343 (2020).
The recusal decision, the decision to grant a monetary award, and the amount of that award, are reviewed for abuse of discretion. See Conner v. State, 472 Md. 722, 738 (2021) (explaining that “the decision to recuse oneself ordinarily is discretionary and will not be overturned except for abuse” (quotation marks and citations omitted)); Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008) (stating that “the ultimate decision regarding whether to grant a monetary award, and the amount of such an award, is subject to review for abuse of discretion”). We review the court’s findings as to the determination of what does and does not constitute marital property under a clearly erroneous standard. See Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). Finally, decisions as to alimony and attorneys’ fees awards will not be disturbed “unless [the award] is arbitrary or clearly wrong.” Gravenstine v. Gravenstine, 58 Md. App. 158, 182 (1984) (citing Lopez v. Lopez, 206 Md. 509, 520-21 (1955)); see also Solomon v. Solomon, 383 Md. 176, 196 (2004).
DISCUSSION
I. THE COURT DID NOT ERR IN DENYING HUSBAND’S MOTION TO RECUSE
Husband argues that the hearing judge abused her discretion in denying his motion to recuse. He contends that the judge did not maintain impartiality when she issued the order denying Husband’s second motion to stay enforcement, basing the denial, seemingly, on a social media post by Husband that was not in evidence.
In his second motion to stay enforcement, filed on 12 May 2025, Husband asserted that it would be difficult for him to facilitate the sale of the marital home within sixty days of the judgment because he “had previously scheduled surgery on May 7, 2025, that could not be delayed and now has lifting and driving restrictions.” The following day, the court denied the motion to stay enforcement because the court “learned that [Husband] had posted on social media an Estate Moving Sale being held on May 10, 2025[.]” Therefore, the judge found “disingenuous” Husband’s asserted reasons for why he was unable to sell the marital home within the prescribed time. Husband filed the motion to recuse on May 15 in response to the court’s adverse decision on this motion, which the court denied.
“[T]here is a strong presumption . . . that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified.” Jefferson-El v. State, 330 Md. 99, 107 (1993). When assessing a motion to recuse,
courts must determine “‘whether a reasonable member of the public knowing all the circumstances would be led to the conclusion that the judge’s impartiality might reasonably be questioned.’” Surratt v. Prince George’s Cnty., 320 Md. 439, 465 (1990) (quoting In re Turney, 311 Md. 246, 253 (1987)).
Husband asserts that the hearing judge’s reliance on the social media post that Husband placed in a public Facebook group “demonstrated bias and a lack of impartiality that may be evidence that her decisions were already tainted and will taint any future decisions she may need to make in this case.” Husband contends also that the judge’s issuance of the denial sua sponte, and without further argument or an evidentiary hearing, is further evidence of her bias.
The judge’s consideration of the Facebook post in articulating her decision is, at best, unconventional. The record contains no explanation for how the judge came to discover the post. We do not condone the use of extrajudicial information in this way. We note, however, that Husband does not challenge on appeal the denial of his second motion to stay enforcement. Instead, he challenges the denial of his motion to recuse, arguing that the judge’s decision on the motion to stay enforcement demonstrated bias. Although the judge’s seeming reliance on a social media post is questionable, it alone does not demonstrate necessarily bias against Husband. He has not pointed to any additional evidence of how the judge was prejudiced against him in her rulings, including or preceding the denial of the second motion for stay. Husband failed to satisfy the “‘heavy burden to overcome the presumption of impartiality.’” Karanikas v. Cartwright, 209 Md. App. 571, 579 (2013) (quoting Att’y Grievance Comm’n v. Blum, 373 Md. 275, 297 (2003)).
We understand that Husband was disappointed in the outcome of his motion and, more broadly, the case at hand, but “[t]he fact that a court rules in favor of one party over the other does not automatically mean that the judge is biased or prejudiced against the losing party.” Hill v. Hill, 79 Md. App. 708, 716 (1989) (citing Tidler v. Tidler, 50 Md. App. 1, 12 (1981)); see also Koffley v. Koffley, 160 Md. App. 633, 645 (2005) (“Rare are the cases in which a Family Division judge should grant a motion for recusal on the ground that, as a result of prior rulings in an ongoing domestic relations case, the judge has become ‘prejudiced’ against the party who has moved for the judge’s recusal.”). Accordingly, we hold that the court did not abuse its discretion in denying the motion to recuse.2
II. MONETARY AWARD
Husband asserts that the court calculated incorrectly the monetary award to him and that it is inequitably low. Specifically, he contends that the court erred when it: (1) determined that Wife’s rollover IRA is partially marital property and that Wife’s deferred compensation plan with UTMB is non-marital property, (2) miscalculated the parties’ incomes by comparing Wife’s net monthly income against Husband’s gross monthly income, and (3) did not allow Husband to purchase from Wife her interest in the marital home, using funds to be received presumably by him from the division of marital property.
Courts must utilize a three-step process when determining the division of marital property in divorce proceedings. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019); Md. Code Ann., Family Law Article (“Fam. Law”) §§ 8-203–205. First, the court “shall determine which property is marital property[.]” Fam. Law § 8-203(a). Second, the court “shall determine the value of all marital property.” Fam. Law § 8-204(a). The third step requires the court to “decide if the division of marital property according to title would be unfair. If so, [the court] may make a monetary award to rectify any inequity ‘created by the way in which property acquired during marriage happened to be titled.’” Flanagan, 181 Md. App. at 519-20 (quoting Doser v. Doser, 106 Md. App. 329, 349 (1995)); Fam. Law § 8-205(a). “The ‘function [of the monetary award] is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title.’” Alston v. Alston, 331 Md. 496, 506 (1993) (quoting Herget v. Herget, 319 Md. 466, 471 (1990)).
Fam. Law § 8-205(b) requires a court to consider each of the following factors before making a monetary award:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
“Although the court is not required to recite each factor in making a monetary award, appellate courts must be able to discern from the record that these factors were weighed.” Hart v. Hart, 169 Md. App. 151, 166-67 (2006). If the decision does not reflect that the court considered these statutory factors, any determination as to the monetary award will be vacated. Quinn v. Quinn, 83 Md. App. 460, 465 (1990).
a. DETERMINATION OF MARITAL PROPERTY
Husband asserts error in the trial court’s application of step one of the three-step analysis required for the division of property. See Fam. Law § 8-203(a). Specifically, he alleges
the court labeled erroneously portions of Wife’s rollover IRA and the entirety of the unfunded deferred compensation plan offered by UTMB as non-marital property.
i. Wife’s Rollover IRA
Husband contends that the court erred in finding that Wife’s rollover IRA consisted of partially non-marital contributions. He acknowledges that the account contains funds from retirement accounts Wife contributed to prior to their marriage, but relies ultimately on Carter’s expert opinion that Wife’s rollover IRA must be considered entirely marital property because any non-marital portions were not traced specifically. He directs our attention to Wasyluszko v. Wasyluszko, 250 Md. App. 263 (2021), for the proposition that “a non-marital portion of a retirement account [cannot] be proven without direct tracing.”
In Wasyluszko, Mr. Wasyluszko challenged the court’s determination that his retirement accounts were entirely marital. Id. at 269-79. In support of his contention, he provided the court with his personal calculations as to the pre-marital contributions and subsequent growth of those contributions, arguing that the contributions themselves and the growth of the accounts amount to non-marital property. Id. We agreed with his assertion that the pre-marital contributions were non-marital property, but disagreed that the growth income was also non-marital. Id. at 269-72. We did not credit Mr. Wasyluszko’s calculations, finding instead that the growth of the non-marital contributions could not be traced directly. Id Wasyluszko emphasized direct tracing and shied away from arbitrary calculations made by a lay party, but did so with an important caveat. As explained in a footnote, “we do not rule out the possibility that a similar theory could prevail if supported by a more sophisticated analysis and expert testimony[.]” Id. at 271 n.3.
In the record before us, Wife employed Rollinger, an expert in accounting, financial forensics, taxation, tracing, and valuation, who calculated the amount of the pre-marital contributions and their growth using conservative estimates that favored Husband. Although Rollinger admitted that he was not able to trace directly the actual amounts of the pre-marital contributions and the growth thereof, he used a substitute formula based on information supplied by the Wife and applied otherwise his knowledge and expertise. The court was permitted to accept and weigh that against the testimony of Husband’s expert witness, Carter. See Qun Lin v. Cruz, 247 Md. App. 606, 629 (2020) (“When weighing the credibility of witnesses and resolving conflicts in the evidence, ‘the factfinder has the discretion to decide which evidence to credit and which to reject.’” (quoting Hollingsworth & Vose Co. v. Connor, 136 Md. App. 91, 136 (2000)).
In Wasyluszko, we left ajar the door for the possibility of a “source of funds” formula, accompanied by expert testimony and analysis. The court did not err in accepting Rollinger’s calculations instead of requiring strictly direct tracing. Husband alleges further that the court erred when it did not order the parties to execute a Qualified Domestic Relations Order (“QDRO”) to facilitate the division of the marital portion of Wife’s rollover IRA. We disagree. Under the Employee Retirement Income Security Act of 1974 (“ERISA”),
a QDRO need only be used when dividing contributions kept in an employer-sponsored retirement plan. See also Eller v. Bolton, 168 Md. App. 96, 106-11 (2006). The IRA at issue is a rollover account maintained privately by Wife and, as such, may be divided by the parties after the divorce without need of a QDRO. Accordingly, the court did not err in not requiring the parties to use a QDRO to divide the account.
ii. Wife’s Deferred Compensation Plan With UTMB Husband alleges that the court erred in not giving him an “if, as and when” interest in Wife’s deferred compensation plan. Prior to the parties’ separation, Wife accepted a job with her current employer, UTMB. The offer of employment included enrollment in a deferred compensation plan. Wife testified that, at the time of the hearing, there was no value in the deferred compensation account and that she was not guaranteed to receive any money from the plan as it was to be distributed only at the discretion of the President of UTMB. Wife did not begin her employment with UTMB until June 2023, about two months after the parties’ separation. We discern no clear error in the court’s finding that Husband is not entitled to an “if, as and when” interest in Wife’s deferred compensation plan. The parties separated prior to the beginning of Wife’s employment. Although Wife was offered the job before their separation and Husband expressed apparent excitement about that employment, any potential compensation Wife might receive through this plan would be achieved through actions taken entirely after the actual demise of the marriage. See Fam. Law § 8-201(e) (1) (“‘Marital property’ means the property, however titled, acquired by 1 or both parties during the marriage.” (emphasis added)); see also Alston, 331 Md. at 507 (“Where one party, wholly through his or her own efforts, and without any direct or indirect contribution by the other, acquires a specific item of marital property after the parties have separated and after the marital family has, as a practical matter, ceased to exist, a monetary award representing an equal division of that particular property would not ordinarily be consonant with the history and purpose of the statute.”).
At the time the divorce was granted, there existed no evidence that the UTMB President had acted or, if so, what the details of such action were. As such, the court did not err in categorizing Wife’s deferred compensation plan as non-marital property.
b. VALUE OF MARITAL PROPERTY AND MONETARY AWARD
Husband asserts error in the court’s application of steps two and three in the division of property analysis, arguing that it calculated incorrectly the parties’ incomes and considered inequitably Wife’s net monthly income against his gross monthly income when determining the amount of the monetary award. See Fam. Law §§ 8-204(a), 8-205.
The circuit court found Wife’s monthly income to be $22,973.97. A review of Wife’s most recent financial statement from 10 February 2025, indicates that this number reflects her net monthly income, while her gross monthly income is $43,750.
Husband’s financial picture proved to be more difficult for the trial judge to discern. He submitted three separate financial statements across the proceedings below. His initial financial statement of 15 September 2023 showed a gross monthly income of $8,167.92. In an amended financial statement on 9 September 2024, Husband listed his gross monthly income as $7,781.09. In his most recent financial statement, submitted on 10 February 2025, he claimed a gross monthly income of $12,028.39. Husband listed, however, his monthly income as $14,000 and his annual income as $180,000, as sworn on several loan applications from 2023 and 2024.
The court appeared to consider the number listed on Husband’s loan applications, $14,000, as his gross monthly income, and the income listed in his 10 February 2025, financial statement, $12,028.39, as his net monthly income. Although the court referred specifically to net and gross incomes for Husband, it made no similar delineation for Wife’s income, stating only that her monthly income was $22,973.97. Thus, when considering factor one of Fam. Law § 8-205(b) for the purposes of calculating the value of the monetary award, the court used Wife’s monthly income of $22,973.97 and Husband’s monthly income of $14,000.
Husband takes issue with the court’s attribution of a $14,000 gross monthly income to him based on the information provided on the loan applications, instead of the figure provided in his financial statement. The evidence of record, however, indicates that Husband was not forthcoming about his income and, at first, offered the court a monthly income that was significantly lower than the number he provided on the loan applications. He alleged that his one lobbying client increased its monthly payment by $2,000 in 2023. This does not explain why his monthly income decreased on his 2024 financial statement. Nor does it account entirely for the fluctuation in monthly income between his 2023 and 2025 financial statements. The court had reason to doubt Husband’s disclosures as to his actual income and, as such, did not err in relying on the number in the loan applications when calculating the monetary award. The court conducted a thorough analysis and clearly considered each of the eleven factors listed in Fam. Law § 8-205(b). Its parsing of the parties’ respective income was justified by its lack of conviction in some of the conflicting evidence before it regarding Husband’s finances.
We recognize that the court compared the $14,000 it attributed to Husband as his gross monthly income to the $22,973.97 net monthly income reported by Wife when calculating the monetary award. Despite this seeming facial comparison of apples to oranges, we will not disturb the court’s calculation. Husband’s failure to provide initially the court with an accurate reporting of his income required the court to rely on which portion of Husband’s shifting evidence it found credible. The court used a gross monthly income of $14,000 for Husband, which it determined was likely a lower amount than Husband was receiving actually each month. Because of the incomplete picture Husband painted of his financial situation, the court did not err in comparing his gross monthly income against Wife’s reported net monthly income. The court did the best it could with the conflicting evidence it was given.
To the extent the court could be found to have erred in its comparison of the income amounts, the error was harmless. The difference between the $14,000 gross monthly income and the $12,028.39 net income amount attributed to Husband by the court is minor relatively in the scheme of things. Had the court compared Wife’s $22,973.97 net monthly income to Husband’s $12,028.39, it would have reached likely the same or similar outcomes.
Husband claims further that the court credited incorrectly Wife with the payment of the mortgage and updates to the home. He argues that the court “inferred” that the mortgage payments and home improvements were not paid using joint marital funds. We can find no such inference being drawn in the court’s decision. The court noted only that Wife “has maintained the mortgage payments and undertook some renovations and updates.” At no point does the court indicate that the entirety of the mortgage and all updates were paid for solely by Wife. The court does specify, however, that Wife “has solely paid the mortgage” since the parties’ separation, a finding that is supported by the evidence.
Finally, we discern no clear error in the court’s determination that Wife’s work travel benefited considerably the relationship as it allowed her to be the primary financial earner for a majority of the marriage. Although Husband argues Wife chose not to find employment closer to their shared home and that this impacted the health of their relationship, it cannot be denied that the income Wife received as a result of her out-of-state employment contributed greatly to the stability and, indeed, comfortability of their financial situation.
Based on the foregoing, the court did not err in determining the value of the marital property or its calculation of the monetary award. We affirm the monetary award of $700,000 to Husband.
c. DISTRIBUTION OF MARITAL PROPERTY
Husband contends that the court erred when it did not grant him the opportunity to buy out Wife’s interest in the marital home, in the face of his expressed desire to remain in the home after the divorce and offering to use the portion of funds acquired through the division of marital property to buy out her interest.
Under Fam. Law § 8-205(a)(2)(iii), the court may facilitate the transfer of ownership interest in the principal residence used by the parties by:
1. ordering the transfer of ownership of the real property or any interest of one of the parties in the real property to the other party if the party to whom the real property is transferred obtains the release of the other party from any lien against the real property;
2. authorizing one party to purchase the interest of the other party in the real property, in accordance with the terms and conditions ordered by the court; or 3. both.
This does not require the transfer of the marital home to either party, even if one of the parties remonstrated his or her desire to keep the home and the financial ability to buy out the other party. It allows merely for the transfer or purchase of the property at the court’s discretion. Fam. Law § 8-202(b)
(2), on the other hand, gives the court the authority to order the sale of the marital home.
Here, the court chose not to order the transfer or purchase of ownership interest in the property to or by either party, ordering instead the sale of the marital home. Husband cites no authority that compels the court to do otherwise. As Fam. Law § 8-205(a)(2)(iii) is discretionary and Fam. Law § 8-202(b) (2) vests the court with the authority to order the sale of the home, the court did not abuse its discretion in its choice.
In any event, this argument was conceded by Husband at oral argument to be moot because the house has been sold at a court-ordered auction on 2 January 2026.
III. ALIMONY
Husband contends that the court erred clearly when it did not award him alimony, indefinite or otherwise. Fam. Law § 11-106(b) states that a court must consider “all the factors necessary for a fair and equitable award,” including the following twelve factors:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
The court “is not required to employ a formal checklist, mention specifically each factor, or announce each and every reason for its ultimate decision.” Crabill v. Crabill, 119 Md. App. 249, 261 (1998). Its conclusion must exhibit, however, “consideration of all necessary factors.” Simonds v. Simonds, 165 Md. App. 591, 605 (2005) (quotation marks and citation omitted).
“After considering the twelve factors, the trial court must then decide whether to grant rehabilitative or indefinite alimony.” Id. We note that, should alimony be awarded, “the guiding principle [is] that [it] be temporary and rehabilitative[.]” Karmand v. Karmand, 145 Md. App. 317, 328 (2002). Although the statute prefers temporary alimony, Fam. Law § 11-106(c) provides:
(c) The court may award alimony for an indefinite period, if the court finds that:
(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
Husband maintains that the court’s alimony determination is unfounded because of the mathematical misattribution and comparison of the parties’ incomes. As we have determined already, the court’s calculation and comparison of the parties’ incomes was not infected with clear error, and the court was permitted to use these numbers when reaching its decision as to alimony.
Husband contends further that the court did not consider adequately whether he was entitled to indefinite alimony based on the parties’ “unconscionably disparate” incomes. The court contemplated explicitly, however, each of the factors necessary when assessing an award of alimony under Fam. Law § 11-106(b), and found permissibly that, after the sale of the marital home, the distribution of assets, and the monetary award, Husband would be able to support himself without financial assistance from Wife. Indeed, the court’s analysis of the alimony award is more thorough than the law requires. See Crabill, 119 Md. App. at 261.
After reaching this conclusion, the court was not then required to turn to an assessment of Husband’s eligibility to
receive indefinite alimony. Fam. Law § 11-106(c) states simply that a “court may award alimony for an indefinite period” if a certain set of circumstances are met; it does not compel the award of this extraordinary relief. As the court concluded that alimony was not warranted in this case when applying the twelve-factor test outlined in Fam. Law § 11-106(b), it was not required then to exercise its discretion to consider indefinite alimony. Accordingly, we affirm the court’s decision not to award alimony, indefinite or otherwise, to Husband.
IV. ATTORNEYS’ FEES
Husband alleges finally error in the court’s decision not to grant his request for attorneys’ fees. Fam. Law § 11-110 states, in pertinent part:
(b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
(c) Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and
(2) whether there was substantial justification for prosecuting or defending the proceeding.
Husband’s sole argument is that the court’s assessment of his request for attorneys’ fees is flawed fatally because it was based on an incorrect comparison of the parties’ incomes. As we have determined earlier, the court did not err in this regard. Thus, we need not iterate further on that subject here. As we stated in Doser v. Doser, “[t]he factors underlying awards of alimony, monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.” Doser, 106 Md. App. at 335 n.1. It should come as no surprise, then, that, for the reasons discussed above, we find no reversible error in the court’s determination as to attorneys’ fees.
JUDGMENT OF THE CIRCUIT COURT FOR QUEEN ANNE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Wife withdrew her request for attorneys’ fees at the conclusion of the April 22 hearing.
2 None of the trial judge’s conduct or rulings in the ongoing proceedings following rejection of the recusal motion are before us in this appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 7 (2026)
Material change; custody; modification
Brandon Kinsey v. Samantha Crouse
No. 0521, September Term 2025
Argued before: Zic, Ripken, Eyler, James (retired, specially assigned), JJ.
Opinion by: Ripken, J.
Filed: April 28, 2026
The Appellate Court affirmed the Baltimore City Circuit Court’s modification of custody and change to the physical and legal custody of the parties’ minor children. The court did not err when it found that the evidence demonstrated changed circumstances affecting the children’s welfare, including the parties’ poor communications; father’s DUI collision with one of the children in the vehicle, of which he failed to notify mother; the periods of withholding access to the children by father and his family and an altercation following father’s release that resulted in the issuance of a final protective order.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
care. The court further established a physical access schedule in which Father had primary physical custody of the children, with Mother having visitation on alternating weekends from Friday evenings through Sunday evenings.3
The 2021 Order contained additional provisions concerning drop-offs and exchanges and parental access to the children when the children were in the other parent’s care.
In August of 2022, Mother filed a petition to modify custody. However, this petition was not served.4 Subsequently, in May of 2023, Mother filed an amended motion to modify custody. She asserted that since the entry of the 2021 Order, circumstances had materially changed. She sought an order granting her sole legal and physical custody of the children and requiring Father’s access to be supervised. Father answered the petition and filed his own counter-motion to modify custody. A modification hearing was set before a judicial magistrate, who heard testimony on December 1, 2023, and on February 9, 2024.
Appellant, Brandon Kinsey (“Father”), appeals from a decision of the Circuit Court for Baltimore City that denied Father’s exceptions to a magistrate’s recommendation that child custody be modified. The court issued an order granting appellee Samantha Crouse’s (“Mother”) motion to modify custody and changed the physical and legal custody of the parties’ children. Father filed a timely appeal. In an informal brief, he presents the following issue for our review: 1,2
Whether the circuit court erred in accepting the magistrate’s findings that a material change in circumstance had occurred since the entry of the 2021 custody order.
For the reasons to follow, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties have two children, whom we shall refer to as A., born in 2016, and B., born in 2018. In 2021, the Circuit Court for Baltimore City issued an order determining legal and physical custody of the minor children (“the 2021 Order”). The 2021 Order provided that Mother and Father would share joint legal custody of the children, with Father having tie-breaking authority on educational matters and medical
On August 12, 2024, the magistrate issued a forty-four-page report detailing the testimony of both parties, examining whether a material change in circumstances had occurred, as well as the best interests of the children under the applicable law. The report also explained the basis for the recommendations to the circuit court. From this report, we elicit the following facts.5 See Okafor v. Ojih, 268 Md. App. 508, 511 (2026).
The magistrate described the extensive history between the parties that constituted a material change in circumstances. First, the magistrate noted that the parties agreed that there had been issues with communications since the 2021 Order. Father described the parties’ relationship as “miserable[,]” and the testimony and evidence demonstrated an inability to respectfully co-parent, as reflected by vitriol, rudeness, and other inappropriate language. The magistrate observed that the parties’ co-parenting relationship was riddled with significant challenges that extended beyond poor communication:
The parties have had issues far beyond rude text messages. Mother testified that there have been several periods of time where Father or his family have withheld access to Minor Children from her, including from October 2021 through April of 2022, and again from September 2022 through May 2023. In October 2021, Mother testified that Father was arrested for Driving Under the Influence and Child Endangerment after being involved in a car accident with Minor Children in the vehicle. Paternal Grandparents, with whom Father has
lived since prior to the entry of the June 2021 Order, began withholding Minor Children from Mother following this accident. Mother stated that she was never notified that Minor Children were in the car when Father got into the accident, and that she was blocked from all contact with Father, Paternal Grandparents, and Minor Children immediately following the incident. After it was clear to Mother she had been blocked, Mother drove to Father’s home and arrived with police in order to see Minor Children but testified that Paternal Grandparents would not open the door for the police. Mother testified that this period of withholding came to an end only after she filed a Petition for Contempt, and Father was found to be in contempt of the June 2021 Order in April 2022.
Shortly thereafter, Mother testified that in June 2022 she conducted an exchange of Minor Children with Paternal Grandfather at a new location. Around this time Mother testified that she received an alert from a third-party app that Father had been arrested again. As Minor Children were not in school and Father was incarcerated, Mother kept Minor Children in her home and continued to care for them for the duration of summer 2022. Having not heard from Father as the start of the school year approached, Mother enrolled Minor Children in school in Maryland. However, in September 2022 during the first week of Minor Children’s enrollment, Mother went to pick Minor Child up from school and Father and Paternal Grandfather were waiting there. Mother testified that after she realized they were trying to take Minor Child, she and Father got into a physical altercation where Father slammed her head against a car. Police were called, and eventually Father and Paternal Grandfather were able to leave with Minor Children. Mother called . . . her mother[] as a witness who, although not present at the September 2022 incident, saw Mother shortly after the incident. [Maternal Grandmother] testified that Mother sustained injuries as a result of this altercation in the head and neck area, describing parts of her body as swollen and that Mother had a limited range of motion in her shoulders, unable to raise her arms normally. [Maternal Grandmother] admitted that she did not see any medical records, CT or MRI scans regarding the alleged injuries sustained at the September 2022 incident. Mother testified that she sought and was granted a Final Protective Order as a result of this altercation. Mother also pursued criminal charges following this incident but testified that ultimately no charges were filed.
Father and Paternal Grandfather’s account of this September 2022 incident differs greatly from Mother’s testimony. Father testified that he was released from jail the Friday before the incident. Paternal Grandfather testified at this time Minor
Children had been with Mother for three months, and that he had not had contact with them during this entire period. Upon his release, Father and Paternal Grandfather drove to Mother’s home immediately to pick up the children. When Father arrived at Mother’s home, he called the police to try to regain access to Minor Children, but Mother allegedly told the officers she would rather go to jail herself than return Minor Children to Father. Ultimately, the police did not go inside Mother’s home, and Father left. Father then went to his sister’s home in Baltimore and began to call schools near Mother’s home to determine if and where Minor Children were enrolled. The following Monday, Father went to unenroll Minor Children from their Maryland schools and return them to Delaware. Father was able to pick up [A.] without issue, but in route to the daycare to retrieve [B.] the altercation with Mother occurred. Father testified that Mother opened up Paternal Grandfather’s car door, grabbed Minor Child, and began running up the street with their son in her arms “like a football.” Paternal Grandfather chased and eventually caught Mother. Paternal Grandfather testified that he tried to grab Minor Child, who was yelling and screaming. Father then caught up with the pair and there was a short skirmish to try to get Mother to release Minor Child. Father recalled that once Mother realized that law enforcement had arrived on the scene, the altercation ended. Father claims it was at this time Mother first told the officers that Father had assaulted her. Father denied striking Mother. Paternal Grandfather also testified that Father never hit or choked Mother. After over an hour of speaking with the officers, Father was eventually permitted to leave the scene with Minor Children. Father testified that while the situation was being sorted out, Mother was walking around, smoking a cigarette, and had no visible injuries resulting from the incident. Paternal Grandfather also did not recall Mother having any visible injuries and stated that no ambulances were called to the scene. Paternal Grandfather believes that Minor Children’s demeanor has changed as a result of this incident, particularly when they talk about Mother. Father reported that both Minor Children were enrolled in therapy due to the trauma of this event but are no longer attending.
Mother testified that following the September 2022 incident, her regular visitation was again denied. Mother attempted to contact both Father and Paternal Grandfather, but later found out that Father had been arrested again shortly after the incident. Mother testified that, once again, she was denied access with Minor Children until she filed another Petition for Contempt against Father in April 2023[.]
(citations to exhibits in the record omitted).
The magistrate, in the report, further outlined the evidence regarding the parties’ co-parenting relationship. Mother asserted that Father had been charged in at least one more DUI case since the 2021 Order in addition to the DUI when one of the children was in the car. She was concerned regarding periods of incarceration, Father’s drinking, and whether it was Father or Father’s parents who primarily parented the children. Father acknowledged spending approximately six months total incarcerated since the entry of the 2021 Order. Father denied having a problem with alcohol.
In addition to the protective order Mother obtained against Father following the September 2022 incident, Mother had previously obtained another protective order against Father in 2021 following an incident where she was visiting a friend in Carroll County, and Father texted her the address of her location. At that time, Mother found a tracking device attached to the car. The magistrate also described evidence of hostility between the parties at custody exchanges. Further, there was competing evidence between the parties regarding Mother’s ability to obtain information regarding the children’s education. Mother testified that she had generally been unable to obtain information from the school regarding the children’s education, and until the first modification hearing, had not been told by Father what platform to use to review the educational information. Father asserted that there was nothing preventing Mother from signing up for the educational platform and claimed that although there were times he had not communicated with Mother about the children’s school, these were due to periods of his incarceration or due to protective orders.
In light of these circumstances, the magistrate found that there was a material change in circumstances since the entry of the 2021 Order, stating the following:
It is clear to this Magistrate from the testimony and evidence presented that there have been major disruptions in the schedule outlined in the June 2021 Order, resulting in the parties being out of compliance with its terms more often than they have been abiding by it. Furthermore, the parties clearly have issues communicating with each other and sharing information relevant to the wellbeing of Minor Children. Therefore, based on the testimony and exhibits presented to the Court, this Magistrate finds that these interruptions and communication deficits have resulted in a material change in circumstance requiring the Court to proceed to the best interest analysis regarding physical custody, visitation, and legal custody.
Having found a material change in circumstances, the magistrate next examined the best interest factors used for determining physical and legal custody. The magistrate first examined physical custody by evaluating the factors identified in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977).6 The magistrate reviewed the evidence concerning each of the factors. The magistrate observed that the children were doing well in their current environment and that “both parents offer Minor Children some sense of stability, with plenty of familial support, and a general loving and caring environment.” However,
the magistrate noted a concern in leaving primary physical custody with Father based on Father’s actions since the entry of the 2021 Order, and his family’s “minimization of these actions.” The magistrate expressed the following: Father appears to believe that he alone has the authority to enforce or ignore the June 2021 Order as he sees fit. Furthermore, his disdain for Mother and her status as an equal parent has not been hidden from Minor Children. Father failed to provide any rational reason why there have been frequent and long-lasting periods of withholding of parental access from Mother, other than an alleged fear that Mother would keep Minor Children in her custody if he allowed visitation to occur. Additionally, Father testified he felt Mother should have been more grateful to him when he “allowed” her to resume visitation with Minor Children, which is not a privilege he has the power to grant or deny as the June 2021 Order dictates the parties’ visitation schedule.
The magistrate indicated that Father’s October 2021 arrest for a DUI with one of the minor children in the car, coupled with Father’s insistence that he did not have a drinking problem, demonstrated poor judgment. This concern was compounded by the fact that Father’s family denies that Father has a problem with alcohol or consumes alcohol around the children. The magistrate further observed that Father had also exhibited poor judgment when he told his parents to deny Mother access to the children during his incarceration. The magistrate noted that although the children had established stability in Delaware, that stability appeared to be due to the paternal grandparents rather than Father.
Based on the evidence and the evaluation by the magistrate of the factors, the magistrate determined that it was in the children’s best interest to transition to Mother’s residence during the school year, with Father having parenting time on alternating weekends from Friday evening through Sunday evening.
The magistrate then turned to evaluation of legal custody in light of Taylor v. Taylor, 306 Md. 290, 296 (1986). The magistrate considered that the parents’ ability to communicate and reach shared decisions affecting the children’s welfare was “the most important factor” in determining whether legal custody could be shared.
The magistrate reviewed the evidence concerning the parties’ communications regarding decision-making. Father testified that he was heavily involved in arranging medical care and education for the children, including a series of autism evaluations for one child, while he did not perceive Mother as being involved in these events. According to Mother, she had a history of attempting to obtain educational information from Father and the children’s school without success. In addition, Mother indicated that Father would not inform her of educational events until the last minute when it was too late to attend, and that Father only informed her of one of the autism evaluations.
Similarly, in relation to the children’s medical needs, Father testified that he and his parents take the children to receive
pediatric, dental, and mental health care. Mother testified that she only learned of where the children were receiving care through the court proceedings, and that Father refused to provide her details when she tried to have conversations on the subject. As recently as a few weeks before the final modification hearing, the parties continued to struggle to communicate about the children’s needs. For instance, in late January of 2024, Father took the children to an urgent care facility where they were diagnosed with the flu, and informed Mother of this the following day. The magistrate noted that “Father described Mother as ‘ungrateful’ when he shared this information with her and expressed that although he knows it is his obligation to share information about Minor Children with Mother, he would like Mother to be more respectful and gracious when he does.” After one of the children began running a 105-degree fever while in Father’s care, Father recalled calling Mother to report the fever, at which time Mother became upset with him. Mother recalled Father informing her that he would put the child in an ice bath to lower the child’s temperature, which Mother believed would be dangerous. She asked Father to take the child to the hospital instead, but he refused. Mother contacted the paternal grandfather by phone, and he clarified that Father was using a lukewarm bath to cool the child down rather than an ice bath.
The magistrate found that based on the evidence, the parties did not appear to have the capacity to communicate effectively, stating the following:
It is clear to this Magistrate that the parties are currently not communicating effectively. Mother maintains that Father does not keep her informed about legal custody decisions he makes. Father testified that when he reaches out to Mother to discuss legal custody decisions, she usually does not listen to what he has to say. Father believes that Mother thinks she is always right and does not want to engage in a conversation, so when he has communicated in the past, he provides only what information he believes he is required to convey under the June 2021 [order] and leaves it at that. Father further testified that Mother does not reach out or ask about medical or educational issues relating to Minor Children. Father stated that he would give Mother updates if she asked him, pointing to the fact that he gave her updates during the recent incident after Mother became aware of Minor Children’s illnesses and called for updates. Father reiterated, however, that the communication surrounding this recent illness was indicative of his testimony that Mother does not listen to anyone else’s opinions and insists things be done her way. What Father neglects to realize with his approach, is that Mother often is several steps behind in coming to him to request information only after being notified by a third party to ask. In other words, this Magistrate wonders if Mother had not been alerted by the school that Minor Children were absent, would Father ha[ve] shared this information with her at
all. This Magistrate finds Mother’s testimony in regard to inquiring about Minor Children’s school absences rather than Father’s offering of this information to be credible given the testimony presented.
It is clear to this Magistrate that, whether it be through personal animosity or different parenting styles, the parties thus far have been unable to effectively communicate about legal custody decisions for Minor Children. Despite this animosity, Minor Children are healthy and appear to be doing well in school. Both parties should continue to monitor [A.’s] school and any behavioral challenges and seek further mental health treatment and educational assessments if necessary. It is important that both parents be a part of any such future assessments in order for [A.’s] mental health professionals to benefit from both parents’ observations. Although the parties need to improve their communication for the sake of Minor Children, it is this Magistrate’s recommendation that the parties maintain joint legal custody of Minor Children. However, as this Magistrate recommends a change in the physical custody arrangement, this Magistrate further recommends that Mother have tiebreaking authority for educational decision[-]making. Before Mother exercises her tie-breaking authority, she must engage Father in at least three separate good faith attempts to discuss[] with Father to reach a joint resolution. Accordingly, the recommendation of this Magistrate is that the Amended Motion to Modify, as it relates to legal custody, be granted.
In light of the recommendations to change custody, the magistrate recommended that child support be recalculated. The magistrate also recommended a proposed order modifying custody that reflected the recommendations.
Father filed pro se exceptions to the report. Later, after counsel appeared on Father’s behalf, the court permitted counsel to file a supplemental brief on Father’s behalf, consolidating and summarizing the grounds for his exceptions. Father asserted that the magistrate’s recommendations should be denied because there was not a material change in circumstances justifying the modification of the custody arrangement. He claimed the changed circumstance was primarily his October 2021 DUI, which he asserted led to the other circumstances, yet was not a material change because he was remorseful, the situation was resolved, and the children were doing well in school. Father conceded that communication issues between the parties were “ongoing[,]” and he posited that the magistrate’s recommendations addressing that topic should be retained.
Father next argued that the magistrate’s best interest analysis was incorrect because Father believed he was a fit and proper parent, and because the magistrate’s conclusion that Mother had a history of stability was clear error. Mother opposed Father’s exceptions. A hearing was held on Father’s exceptions in March of 2025. On April 29, 2025, the court
held a hearing at which it issued an opinion. The court noted that in reviewing the magistrate’s recommendations, it had reviewed the recordings of the evidentiary hearings. The court outlined the applicable legal standards and indicated that after exercising its own independent judgment, the court agreed with the magistrate that a material change in circumstances had occurred and it was in the children’s best interest to change physical custody and tie-breaking authority. The court highlighted as factors constituting a material change: the parties’ deteriorating communications and interactions, the periods during which Father and his family withheld the children from Mother, Father’s DUI and incarcerations of which he did not inform Mother, and the altercation between the parties that resulted in a final protective order being issued against Father. The court clarified that the interruptions to the custody schedule and communication deficits between the parents resulted in a material change in circumstances.
The court then outlined the standards used to determine what custody arrangement would serve the children’s best interest. The court observed that in accordance with those standards, the magistrate had “appropriately evaluated the child[ren’s] life chances in each of the homes competing for custody and then predicted with whom the child[ren] would be better off in the future.” The court found that the magistrate’s conclusions and recommendations were well-supported by the evidence, and in exercising its own independent judgment, the court found the recommendations to be correct. The court denied Father’s exceptions. A written order modifying custody in accordance with the magistrate’s recommendations was entered the following day.
This timely appeal followed.7
DISCUSSION
the circuit court did not err in accePting the magistrate’s Finding that a material change in circumstances occurred since the entry oF the 2021 order.
A.
Party Contentions
Father contends that the magistrate, and later the circuit court, erred in determining that a material change in circumstances had occurred sufficient to modify custody. He claims the only facts the magistrate identified as a change were the DUI and related incidents, which he claims were stale because they occurred several months before the recommendations were issued. Per Father, a modification cannot be based on past conduct unless the children’s present welfare is negatively affected—which he claims was not the case here. Father argues that because the events underlying the change in circumstances were old and not ongoing, the court clearly erred in finding a material change in circumstances, and the order granting the custody modification must be reversed.
Mother did not file a brief in this case.
B.
Standard of Review
When evaluating custody determinations, this Court utilizes “three interrelated standards of review.” Velasquez
v. Fuentes, 262 Md. App. 215, 227 (2024) (quoting Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012)). “First, ‘when reviewing a magistrate’s report, both a trial court and an appellate court defer to the magistrate’s first-level findings (regarding credibility and the like) unless they are clearly erroneous.’” Id. (emphasis and brackets omitted) (quoting McAllister v. McAllister, 218 Md. App. 386, 407 (2014)). Second, if the circuit court erred as to matters of law, “further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” Id. (quoting In re Yve S., 373 Md. 551, 586 (2003)). Finally, if the ultimate conclusion of the circuit court was founded upon sound legal principles and based upon factual findings that are not clearly erroneous, a reviewing court will disturb the circuit court’s decision “only if there has been a clear abuse of discretion.” Id. (quoting Gillespie, 206 Md. App. at 170). “‘While the circuit court may be “guided” by the magistrate’s recommendation, the court must make its own independent decision as to the ultimate disposition, which the appellate court reviews for abuse of discretion.’” Id. at 227–28 (brackets omitted) (quoting McAllister, 218 Md. App. at 407).
C. Analysis
When evaluating a request to modify custody, trial courts must engage in a two-step process. Velasquez, 262 Md. App. at 246. “‘First, the circuit court must assess whether there has been a “material” change in circumstance.’” Id. (quoting Gillespie, 206 Md. App. at 170, in turn quoting Wagner v. Wagner, 109 Md. App. 1, 28 (1996)). Second, if a circuit court finds that there has been a material change, “the court proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. (further citation omitted). Although evaluation of a petition to modify custody is a two-step process, those two steps “are often interrelated” because consideration of the materiality of a change necessarily implicates consideration of the child’s best interest. Gillespie, 206 Md. App. at 171 (citing McCready v. McCready, 323 Md. 476, 482 (1991); see also Caldwell v. Sutton, 256 Md. App. 230, 270 (2022) (“Evidence bearing upon materiality necessarily relates to the best interests of the children.”) (citation omitted).
“A material change [in] circumstances is a change in circumstances that affects the welfare of the child.” Gillespie, 206 Md. App. at 171 (citation omitted). “[T]he test of materiality is whether the change is in the best interest of the child.” McMahon v. Piazze, 162 Md. App. 588, 596 (2005) (citing McCready, 323 Md. at 482). If a circuit court finds “that an existing provision concerning custody or visitation is no longer in the best interest of the child and that the requested change is in the child’s best interest, the materiality requirement will be satisfied.” Id. “In analyzing the best interests of the child, we are guided by the factors articulated” in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977) and in Taylor v. Taylor, 306 Md. 290 (1986). Kadish v. Kadish, 254 Md. App. 467, 504 (2022).8
Determination of whether a material change in circumstances has occurred is an inherently fact-specific inquiry that depends on the unique circumstances of each
case. See Domingues v. Johnson, 323 Md. 486, 500 (1991). The Supreme Court of Maryland has declined to adhere to bright-line pronouncements in matters concerning child custody, holding that changes in custody depend “upon the circumstances of each case.” Id. at 500–
01. The Court further stated that creation of absolute rules in relation to custody would be “inappropriate” because the decision-making process in such cases “flows in large part from the uniqueness of each case, the extraordinarily broad spectrum of facts that may have to be considered . . . , and the inherent difficulty of formulating bright-line rules of universal applicability in this area of the law.” Id. at 501. To determine that a modification is required, a trial court need not find “that the changes have already caused identifiable harm to the children.” Id. at 499. All that is required for a determination that a change is material is that “changes have occurred which, when considered with all other relevant circumstances, require that a change in custody be made to accommodate the future best interest of the children.” Id.
Here, the circuit court indicated that it had reviewed not only the exceptions and the magistrate’s recommendations; it had also reviewed the recordings of the hearings held before the magistrate. The court agreed with the magistrate that the evidence demonstrated changed circumstances affecting the children’s welfare, as exemplified by the parties’ poor communications; Father’s DUI resulting in a collision with one of the children in the vehicle, of which he failed to notify Mother; the periods of withholding access to the children by Father and his family; and the altercation following Father’s release that resulted in the issuance of a final protective order. The court agreed that those interruptions and communication deficits had resulted in a material change.
We see no error with respect to these findings described by the magistrate and the circuit court, which were supported by evidence from the record and are therefore not clearly erroneous. See Velasquez, 262 Md. App. at 227.
Moreover, we do not agree with Father’s assertion on appeal that his underlying DUI was, as a matter of law, too old to have been considered by the magistrate as part of the changed circumstances. Rather, the DUI and its subsequent cascading impacts on the parties—including deterioration
of communications and lengthy periods during which Father and his family withheld the children from Mother— are part of the fact-specific inquiry that reflects the unique circumstances of the case. See Domingues, 323 Md. at 500. In addition, that the children were healthy and doing well in school was not a bar to the circuit court determining that modification of custody was required, because a trial court need not find “that the changes have already caused identifiable harm to the children.” See id. at 499.
Here, the magistrate and circuit court’s findings centered on circumstances where the parties had a deteriorating ability to communicate, even about matters involving the children’s best interest; and Father had driven under the influence with one of the children in the car, and thereafter demonstrated a pattern of withholding the children from Mother. That pattern started in 2021 shortly after Father’s DUI incident, and had repeated and continued until as recently as April of 2023, when Mother filed a petition for contempt. We see no error with respect to the magistrate’s finding or with the circuit court’s conclusion that, based on its review and independent exercise of discretion, the magistrate’s recommendations were correct.
Father asserts that the circuit court abused its discretion in reviewing and accepting the magistrate’s report and recommendations without adequate exercise of its independent judgment. This argument is without basis. See McAllister, 218 Md. App. at 408 (“We need go no further than to state that the court reviewed each exception and provided a cogent and incisive rationale for each of the conclusions it reached.”). Here, the court reviewed each of Father’s exceptions and explained the basis of its own review, which additionally included review of the arguments at the exceptions hearing, the evidentiary hearings held before the magistrate, the applicable law, and the magistrate’s forty-fourpage report. The court then provided its own summary of the facts that constituted the material change in circumstances and explained that based on its review of the best interest standards, the magistrate’s recommendations were correct. The court therefore gave ample basis for supporting the magistrate’s conclusions and denying Father’s exceptions. See McAllister, 218 Md. App. at 408. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 Rephrased and consolidated from:
FOOTNOTES
I. The circuit court erred in finding a material change in circumstances where the evidence relied upon consisted solely of stale events from 2021-2022 and no current deterioration was shown.
II. The circuit court failed to conduct a meaningful independent review of the magistrate’[]s report and the filed exceptions[.]
2 Mother did not file a brief in this action.
3 In the 2021 Order, the court initially provided Mother with alternating weekend access to the children from Thursday evenings through Sunday evenings; however, once the children began attending school, the access was to shift. In the 2021 Order, the court also provided for holiday and summer visitation access.
4 After Mother filed her initial petition to modify custody, Father’s parents filed a motion to intervene in the case, which was granted. They later withdrew as parties and were removed.
5 We note that Father does not contest the magistrate’s underlying factual findings; rather, he asserts that the magistrate, and later the circuit court, erred in determining that the circumstances as described by the magistrate and testified to by the parties constitute a material change, and that both abused their ultimate discretion in weighing the best interest factors.
6 The magistrate indicated that the preferences of the children or prior voluntary abandonment would not be considered because evidence as to those factors was not adduced during the hearings.
7 In May of 2025, Father also filed a motion to revise the judgment under Maryland Rule 2-535 within ten days of the order’s entry. After Father noted his appeal, the circuit court denied the revisory motion. Despite the notice of appeal being filed before the disposition of the revisory motion, the notice of appeal is nonetheless effective. See Edsall v. Anne Arundel Cnty., 332 Md. 502, 508 (1993) (“[A] notice of appeal filed prior to the withdrawal or disposition of a timely filed motion under [Maryland] Rule 2-532, 2-533, or 2-534, is effective. Processing of that appeal is delayed until the withdrawal or disposition of the motion. The trial court retains jurisdiction to decide the motion notwithstanding the filing of the notice of appeal.”).
8 The ten non-exclusive factors identified in Sanders serve as a guide for trial courts to evaluate the best interest of the children at issue. 38 Md. App. at 420. These factors were expanded upon in Taylor to identify thirteen factors, some of which overlap with the Sanders factors, that are particularly appropriate for consideration of joint custody. 306 Md. at 304–11. The Taylor factors include the following:
(1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; and (13) benefit to parents.
Kadish, 254 Md. App. at 504 (citing Taylor, 306 Md. at 304–11).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Queen Anne’s County Circuit Court’s order allowing father to serve mother via alternative service. Father proved adequately that mother acted to evade service and that he made unsuccessful, good-faith attempts at service.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
divorce. He asked the circuit court to grant him legal and primary physical custody of the children (none of whom had yet reached the age of majority) and child support, both pendente lite and permanently. A month later, Mother filed a counter-complaint for absolute divorce, or, in the alternative, limited divorce. In her counter-complaint, Mother sought sole legal and physical custody of the children pendente lite and permanently and asked the court to grant her pendente lite and permanent child support.
Theresa Randolph, known formerly as Theresa Lord (“Mother”), and Andrew Lord (“Father”) are the parents of two minor children, A.L. and D.L., and one adult child, G.L. (the “children”). Mother, who now lives in Hawaii but lived in Washington State during the events that precipitated this appeal, has primary physical custody of the minor children and Father, who lives in Maryland, has custody of the minor children during their summer and Christmas recesses from school.
By order of the Circuit Court for Queen Anne’s County, Mother is required to reimburse Father for the full cost of the minor children’s round trip air travel for the summer and Christmas recesses. In February 2025, Father filed a contempt petition alleging that Mother hadn’t reimbursed him for the children’s 2024 summer and Christmas air tickets and asking the circuit court to order her to do so. The same day, he filed a motion for alternative service on the ground that Mother had evaded his earlier attempts to serve her personally. The circuit court granted Father’s motion and issued a show cause order in response to his petition. After a show cause hearing, and based on the magistrate’s recommendations, the circuit court ordered Mother to reimburse Father for the children’s air tickets without finding her in contempt. On appeal, Mother argues that the court granted Father’s motion for alternative service improperly and abused its discretion by overruling her exceptions to the magistrate’s recommendations. We affirm.
I. BACKGROUND
Mother and Father married in September 2004. Fifteen years later, in October 2019, Father filed for absolute
The parties appeared before a magistrate for a pendente lite hearing on February 20, 2020. On March 23, 2020, the circuit court entered an order adopting the magistrate’s recommendations to grant the parties joint legal and shared physical custody on a pendente lite basis and to reserve issues related to child support for the pending trial on the merits. After a two-day trial, on September 29, 2020, the circuit court entered a Judgment of Limited Divorce (“JLD”) granting the parties joint legal custody and Mother primary physical custody. The court granted Father visitation every other weekend and ordered him to pay Mother $2,132 in monthly child support starting on October 1, 2021. On October 18, 2021, the court entered a Judgment of Absolute Divorce (“JAD”) that didn’t disturb the JLD as it related to custody and child support.
On March 18, 2022, Mother married an active-duty member of the United States Army. Three days later, she filed a Motion to Modify Custody and Child Support, alleging that a material change in circumstances warranted a modification of custody and child support in the best interest of the children. In her motion, Mother explained that shortly before the two were married, her new husband received orders to report to Joint Base Lewis-McChord in Washington State for active-duty service on or before April 16. She stated that the Department of Defense had authorized her, A, D, and G to relocate to Washington State and had scheduled their relocation for April 1, 2022, and she anticipated that her husband would be stationed in Washington State for at least three years. Mother asked the circuit court to modify custody, to award the parties joint legal custody and Mother primary physical custody of the children, to grant Father “reasonable access to the [c]hildren given their relocation to Washington State,” and to modify child support as appropriate. In his answer, Father requested joint legal and primary physical custody of the children also and asked the court to modify the parties’ child support obligations both pendente lite and permanently.
After a pendente lite hearing on Mother’s Motion to Modify Custody and Child Support, the magistrate recommended
that the court deny Mother’s request to relocate the children pending the merits hearing on the motion and, if Mother relocated to Washington State pending the merits hearing, to grant Father primary physical custody on a pendente lite basis. The circuit court ratified the magistrate’s findings and adopted the magistrate’s recommendations in a pendente lite order entered August 16, 2022. It held a hearing on the merits a week later and entered an order a week after the hearing.
In its August 30 Order Modifying Child Custody and Support (the “August 2022 Modification Order”), the circuit court again granted the parties joint legal custody of the children and Mother primary physical custody. It granted Mother’s request to relocate the children to Washington State but ordered that Father have custody of the children for the “summer recess” from “one week after school closes for the school year to one week before the school year commences” and the “Christmas recess” from “the day after school closes for the Christmas break until two days before school resumes.” The court ordered also that Mother “reimburse Father 100% of the costs for round trip air travel for the summer recess and Christmas recess.”
Finally, the circuit court’s order increased Father’s monthly child support obligation to $3,161 starting on September 1, 2022. Father appealed from the modification order on October 19, 2022, challenging only the circuit court’s calculation of child support. This Court vacated the order on June 2, 2023.1 On remand, in a Memorandum Opinion and Order entered August 18, 2023 (the “August 18 Order”), the circuit court recalculated child support and ordered Father to pay $2,128 monthly, retroactive to the date of his appeal. The order clarified also that each party should provide the other with any receipt for reimbursement “within [thirty] days of purchase” and that each party should reimburse the other within forty-five days of receiving a receipt.
A series of contempt petitions followed. Father filed his first petition on December 7, 2023, asking the circuit court to issue a show cause order and to hold Mother in contempt because she’d failed to reimburse him for airline tickets he purchased for A, D, and G to travel to Maryland for the 2023 summer and Christmas recesses. Father alleged that he had provided Mother with receipts for the tickets but that she hadn’t reimbursed him within forty-five days as mandated by the August 18 Order. The court issued an order six days later requiring Mother to show cause why it should not hold her in contempt, provided that Father served a copy of his contempt petition and the show cause order on her personally by January 5, 2024. The show cause order stated also that the court would dismiss Father’s contempt petition without prejudice if he didn’t file an affidavit of service or request to reissue by January 16, 2024.
On January 16, Father filed a Request to Reissue Show Cause Order and a Motion for Alternative Service (the “January 2024 Motion”). He explained in his motion that Mother was residing “on a military installation that is secured, guarded, and not open to the public.” Accordingly, his attorney sent his contempt petition and show cause order, return receipt requested, to Mother’s last known address on the installation. However, he alleged, Mother had “merely refused to accept service or respond to the postal authorities
since December 28, 2023.” He attached to his motion a copy of a United States Postal Service (“USPS”) tracking receipt showing that USPS had attempted to deliver the petition and order on December 28 unsuccessfully and had left a notice of the attempt at Mother’s home, but that as of January 1, she hadn’t contacted USPS to reschedule the delivery. Father concluded that although Mother hadn’t yet been formally served “due to her actions and the limitations of accessing a military installation[,] on information and belief [she] not only [had] actual notice of [the contempt petition],” but also was in possession of it because his attorney had forwarded a copy to Mother and her counsel through MDEC and regular mail that hadn’t been returned. And because Mother was in possession and “well aware of” the contents of the contempt petition and show cause order but was “taking advantage of her residency within a military installation to avoid formal service,” Father asked the circuit court to authorize service by regular mail.
The court granted the January 2024 Motion on January 17, 2024, finding that Father had demonstrated good faith efforts to serve Mother but that his efforts had been unsuccessful “due to [Mother’s] evasion.” The court ordered Father to serve Mother by regular mail and either email or any “social media contact for [Mother] which is reasonably anticipated to give actual notice.” Ultimately, though, Father dismissed his first contempt petition voluntarily on March 28, 2023, stating that Mother “had made several payments” towards the cost of the children’s 2023 tickets, such that, “on information and belief, a finding of contempt [was] no longer viable.”
Father filed a second petition for contempt on August 21, 2024. He explained in this petition that he’d purchased the children’s air tickets for the 2024 summer recess for $2,228.60 and forwarded the receipts to Mother. He alleged that Mother had failed again to reimburse him for the tickets within forty-five days, as required, and he asked the circuit court to issue a show cause order, to hold Mother in contempt, and to order Mother to pay his attorney’s fees. After some delay, the court issued a show cause order on January 10, 2025, but on February 19, before the scheduled show cause hearing, the court dismissed the petition without prejudice for lack of service.
A day later, on February 20, 2025, Father re-filed his contempt petition and added the allegation that he’d purchased the children’s tickets for the 2024 Christmas recess at a total cost of $4,443.84 and sent Mother receipts for those tickets, but Mother had failed again to reimburse him. Between the summer tickets and the Christmas tickets, he alleged, Mother owed him a total of $6,662.44. That same day, Father filed a Motion for Alternative Service (the “February 2025 Motion”). He reiterated the difficulty of effecting personal service on Mother given that she resided on a military installation that was inaccessible to the public, and he pointed out that Mother had “previously evaded service” and directed the court’s attention to its January 2024 order permitting alternative service by regular mail and email or social media. Father stated further that his counsel had attempted to serve Mother with his August 2024 contempt petition by certified mail, return receipt requested, after the circuit court issued its January 2025 show cause order, and
Mother had refused again to accept it. He attached a USPS receipt showing that USPS had attempted to deliver the August 2024 petition and January 2025 show cause order to Mother on January 28, 2025 and had left a notice at Mother’s home, but that as of February 2, Mother hadn’t contacted USPS to reschedule the delivery. Based on these allegations, Father asked the court to allow service of the February 2025 Motion by regular mail, email, and text.
On February 24, the circuit court granted the February 2025 Motion and issued a show cause order setting an inperson hearing for April 29, 2025. In its Order Regarding Alternative Service, the court found again that Father had demonstrated good faith efforts to serve Mother that were unsuccessful “due to [Mother’s] evasion.” It authorized service by regular mail and via email or any “social media contact for [Mother] which [was] reasonably calculated to give actual notice.” Father filed an Affidavit of Service two days later in which his counsel affirmed that he’d served Mother with Father’s most recent contempt petition and the court’s most recent show cause order via regular mail to her last known address in Washington State, via email to her last known email address, and via text message. Father attached to the Affidavit of Service screenshots of the text messages, sent on February 21, and a copy of the email sent by his counsel to Mother on February 26 with the contempt petition and show cause order attached. Mother didn’t respond to the contempt petition or the show cause order.
The circuit court held the scheduled show cause hearing on April 29, 2025. Father and his counsel appeared before the magistrate, as did Mother’s counsel and Mother’s husband. Mother didn’t attend the hearing. Her counsel, who had entered a limited appearance on her behalf the evening prior because her counsel of record wasn’t available for the hearing, argued first that the circuit court had granted the February 2025 Motion improperly. Counsel for Mother asserted that alternative service wasn’t appropriate because Father hadn’t demonstrated a good faith attempt to serve Mother with the February 20 contempt petition before he filed the February 2025 Motion, as was required under the Maryland Rules. Father’s reliance in the February 2025 Motion on unsuccessful attempts to serve Mother with previous petitions, Mother’s Counsel contended, wasn’t sufficient, and the circuit court erred in allowing alternative service of the pending contempt petition based on those prior attempts.
Second, Mother’s counsel argued that Mother had received “no actual notice” of the contempt petition or the show cause hearing. Counsel confirmed that the email address listed in Father’s Affidavit of Service was Mother’s correct email address and that the physical address to which Father’s counsel stated he’d mailed a copy of the petition and order was correct also. But Mother’s counsel maintained that Mother denied receiving a copy of the documents via regular mail, email, or text message and claimed that she had heard about the show cause hearing only from a friend who worked at the courthouse. Based on these assertions, Mother’s counsel asked the court for a postponement to give her time to prepare a defense.
Father’s counsel opposed the postponement on Father’s behalf. Counsel asserted, as he affirmed in his Affidavit of
Service, that he had served Mother properly in February in accordance with the circuit court’s alternative service order by email, by text message via the parenting app that Father used to communicate with Mother, and by regular mail, which hadn’t been returned. The magistrate declined to revisit the alternative service order and noted that Mother had received actual notice of the contempt petition and show cause hearing consistent with the order with ample time to prepare a defense but had “sat on her laurels . . . and waited until the last moment to retain counsel” for the hearing. Thus, the magistrate denied Mother’s request for a postponement.
The hearing proceeded, with Father testifying first. He testified that he purchased air tickets for the children to travel to Maryland for the 2024 summer and Christmas recesses and provided Mother with receipts showing the costs of those tickets. These receipts, which he introduced into evidence, demonstrated that Father paid a total of $6,232.45 for the children’s 2024 air tickets. He claimed that as of the date of the hearing, Mother hadn’t reimbursed him for the tickets.
On cross-examination, Mother’s counsel questioned Father about his child support obligations. Specifically, Mother’s counsel asked Father if he was behind on his child support payments. Father denied that he was. He testified that he received a “credit” from the court after his successful appeal and after the court issued its August 18 Order indicating that he’d been overpaying child support since October 2022, “for a period of [eleven] to [thirteen] months” and a total of “between [$]11,000 and [$]13,000” in excess payments. Father began deducting $500 from his monthly payments until sometime around summer 2024 when, by his own calculation, he’d exhausted his credit. According to Father, he then resumed paying the full $2,128 in monthly child support due under the August 18 Order. Mother’s counsel questioned Father about the specific amounts he’d paid in child support each month between August 2023 and April 2024, but Father wasn’t able to recall or confirm the exact payment amounts.
Counsel for Mother asked Father also about expenses outside of child support for which the court had ordered him to reimburse Mother. Father confirmed that he had made the payments—which related mainly to the children’s participation in sports—as required, but when asked about several specific reimbursement requests, he couldn’t confirm from memory that he’d received the requests or made the requested payments. He testified that he’d disagreed with Mother in the past about whether he was required to reimburse her for certain expenses but that he didn’t recall ever not reimbursing her for a required expense, and he said that to his knowledge, he didn’t owe her money for any unreimbursed expenses. Mother’s husband testified at the show cause hearing as well. He testified that he had paid and continued to pay certain of the children’s expenses, including for food and other personal care items, sports, and G’s car insurance. He stated that the children were listed on his health, medical, and dental insurance plans. On crossexamination, he testified that he received a $200 monthly stipend from the Army because he’d listed the children as his dependents and that he paid the monthly rent and utilities for the family’s on-base housing. Finally, he testified that Mother
worked forty hours per week at the military hospital on base, but he couldn’t confirm her salary.
On May 20, 2025, about a month after the show cause hearing, the magistrate issued their Magistrate’s Report, Recommendations and Findings of Fact (the “Magistrate’s Recommendations”). Although the magistrate recommended that the circuit court deny Father’s petition for contempt and request for attorney’s fees, they recommended nevertheless that the court order Mother to reimburse Father $5,304.50 for the children’s travel expenses as required under the August 2022 Modification Order within forty-five days.2 The magistrate credited Father’s testimony that he was current on his payments for child support and all other court-ordered expenses, and the magistrate concluded that “[t]aking into consideration [Mother’s husband]’s testimony regarding [Mother’s] full-time employment and her lack of a monthly mortgage or rental payment, [forty-five] days should give [her] sufficient time to reimburse [Father] for the flights.”
Mother filed exceptions to the Magistrate’s Recommendations. The circuit court held an exceptions hearing on August 15, 2025. Six days later, the court entered an order overruling Mother’s exceptions. On September 4, 2025, it entered another order approving the Magistrate’s Recommendations.3 On September 10, Mother filed a Motion to Vacate Enforcement and Strike Illegal Order Requiring 100% Reimbursement for Children’s Transportation Expenses. The court denied the motion in an order entered September 18, 2025. Mother appealed from the circuit court’s August 15 and September 18 orders.
II. DISCUSSION
Mother presents several questions for our review, which we condense into two:
1. Did the circuit court violate Maryland Rule 2-121 when it granted Father’s February 2025 Motion requesting alternative service?
2. Did the circuit court abuse its discretion when it overruled her exceptions to the Magistrate’s Recommendations? 4
First, we hold that the circuit court didn’t violate the Maryland Rules when it granted Father’s February 2025 Motion. Second, we hold that the circuit court didn’t abuse its discretion when it overruled Mother’s exceptions. 5
A. The Circuit Court Didn’t Violate Maryland Rule 2-121 When It Granted Father’s Motion For Alternative Service Because Father Proved Adequately That Mother Acted To Evade Service And That He Made Unsuccessful, Good-Faith Attempts At Service.
Mother argues first that the circuit court violated Maryland Rule 2-121 when it granted Father’s February 2025 Motion. “A court’s interpretation of the Maryland Rules is [a] matter of law to be reviewed de novo.” Nolan v. Nolan, 259 Md. App. 488, 494 (2023).
“It is fundamental that before a court may impose upon a defendant a personal liability or obligation in favor of the plaintiff or may extinguish a personal right of the defendant
it must have first obtained jurisdiction over the person of the defendant.” Lohman v. Lohman, 331 Md. 113, 125 (1993). And before the court can obtain jurisdiction over a defendant, the plaintiff must notify the defendant of the proceedings against them through service of process. Id. at 130. The Maryland Rules governing service of process in civil actions apply with full force in connection with petitions for constructive civil contempt. Flanagan v. Dep’t of Hum. Res., 412 Md. 616, 624 (2010) (citing Reamer v. Reamer, 246 Md. 532, 535 (1967)). Rule 15-206, which outlines the procedures a plaintiff must follow to initiate a constructive civil contempt action, requires specifically that the plaintiff serve a copy of the contempt petition and the court’s show cause order on the defendant “pursuant to Rule 2-121.” Md. Rule 15-206(d).
Maryland Rule 2-121 provides that typically, to initiate an in personam action in Maryland, a plaintiff must serve the defendant with process in one of three ways: (1) by delivering a copy of the summons, complaint, and associated filings into the hands of the defendant directly; (2) by leaving a copy of these materials at the defendant’s home “with a resident of suitable age and discretion”; or (3) by mailing a copy of the same by certified mail. Md. Rule 2-121(a). But the rule allows for exceptions when the defendant evades service or when the plaintiff’s attempts at service under Rule 2-121(a) prove otherwise unsuccessful. See Md. Rule 2-121(b)–(c). Under Rule 2-121(b), if the plaintiff proves by affidavit that the defendant “has acted to evade service,” the court may permit service by regular mail. Id. And under Rule 2-121(c), if the plaintiff proves by affidavit “that good faith efforts to serve the defendant” according to Rule 2-121(a) “have not succeeded” and that service according to Rule 2-121(b) “is inapplicable or impracticable,” the court may allow service by “any other means . . . that it deems appropriate in the circumstances and reasonably calculated to give actual notice.” Id. at 2-121(c).6
Mother contends that the circuit court granted Father’s February 2025 Motion improperly because Father failed to establish that he made any attempt to serve her with the February 2025 contempt petition before moving for alternative service. She asserts that Father’s reliance on his unsuccessful attempts to serve her with his earlier contempt petition under Maryland Rule 2-121(a) and on the court’s order permitting alternative service of his December 2023 contempt petition was insufficient to justify allowing alternative service of the February 2025 Motion. Instead, Mother argues, Father needed to establish unsuccessful, good faith attempts to serve her with the specific contempt petition for which he was requesting permission to serve her by alternative means. We hold that the circuit court didn’t violate Rule 2-121 when it granted Father’s February 2025 Motion.
Mother attempts to read into Maryland Rule 2-121 a condition not required by its plain language. Rule 2-121(b) requires a plaintiff to convince the circuit court only “that a defendant has acted to evade service,” not that the defendant has acted to evade service of the pending complaint. Md. Rule 2-121(b). Likewise, to justify service by “any other means of service that it deems appropriate in the circumstances and
reasonably calculated to give actual notice,” Rule 2-121(c) requires a plaintiff to establish only “that good faith efforts to serve the defendant pursuant to [Rule 2-121(a)] have not succeeded and that service according to [Rule 2-121(b)] is inapplicable or impracticable.” Id. at 2-121(c). Rule 2-121(c) doesn’t require specifically, as Mother asserts, that a plaintiff make unsuccessful, good faith attempts to serve the defendant with the pending complaint under Rule 2-121(a) before the circuit court can order service by alternative means.
Father satisfied the requirements of Maryland Rules 2-121(b) and 2-121(c) in his February 2025 Motion. First, he provided proof that Mother attempted to evade service. See Md. Rule 2-121(b). His motion stated that his counsel “mailed, certified, return receipt requested, the [January 2025] Show Cause Order and [the associated August 2024] Petition” to Mother’s last known address on Joint Base Lewis-McChord in Washington State, but that Mother had “merely refused to accept service or respond to the postal authorities.” In addition, Father attached to the motion a USPS tracking receipt showing that the postal service attempted to deliver the documents to Mother’s home by certified mail on January 28, 2025 but left a notice because no authorized recipient was able to sign for them. The receipt revealed also that as of February 2, 2025, Mother hadn’t reached out to USPS to schedule redelivery of the documents. Finally, the February 2025 Motion directed the circuit court’s attention to its January 2024 order permitting alternative service of his December 2023 contempt petition, which the court issued based on almost identical allegations of Mother evading service. In summary, Father provided proof that Mother thwarted his attempt to serve her with a contempt petition less than three weeks before he filed the February 2025 Motion and that the court had allowed him to serve her by alternative means before based on nearly identical allegations. In light of this history, there was no practical reason for the court to require Father to make a futile attempt to serve Mother with the February 2025 petition under Rule 2-121(a) when Rule 2-121(b) didn’t require it to do so.
Second, the allegations in the February 2025 Motion combined with the attached USPS tracking receipt provided sufficient proof of an unsuccessful, good faith attempt to serve Mother by certified mail. See Md. Rule 2-121(a). True, Father didn’t allege that he attempted either of the other two methods of service allowed under Maryland Rule 2-121(a). But he did explain that Mother’s residence on a military installation not accessible to the public made it impossible to deliver the documents into Mother’s hands directly or to leave them at her home “with a resident of suitable age and discretion.” Id.7 And although Father didn’t prove necessarily that service by regular first-class mail under Rule 2-121(b) was “inapplicable or impractical” because he alleged that he sent Mother his previous contempt petition by regular mail that wasn’t returned to him, see id. at 2-121(c), that defect was inconsequential because the court ordered him to serve Mother by regular mail and email or “other social media contact for [Mother] which [was] reasonably calculated to give actual notice.” The circuit court didn’t err when it authorized alternative service of the February 2025 Motion.
B. The Circuit Court Didn’t Abuse Its Discretion When It Overruled Mother’s Exceptions To The Magistrate’s Recommendations.
Mother argues second that the circuit court erred when it overruled her exceptions to the Magistrate’s Recommendations because (1) the magistrate’s determination that Father’s compliance with the court’s February 27, 2025 Order Regarding Alternative Service provided her with adequate notice of the allegations in his February 2025 contempt petition violated her right to due process under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights; (2) the magistrate abused their discretion when they denied her motion to postpone the show cause hearing; (3) the magistrate failed to consider her “unclean hands” argument adequately; and (4) the magistrate failed to consider the best interest of the children.
“Exceptions to the recommendations of a [magistrate] warrant an independent consideration by the trial court.” Kierein v. Kierein, 115 Md. App. 448, 453 (1997). The “ultimate disposition” of the case is committed to the circuit court’s discretion, although the court defers to the magistrate’s findings of fact “where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous.” Wenger v. Wenger, 42 Md. App. 596, 602 (1979). We review a trial court’s decision to overrule a party’s exceptions to a magistrate’s recommendations for abuse of discretion and reverse only if we find such abuse. See id. at 597–98, 601 (declining to reverse circuit court’s ruling on parties’ exceptions to magistrate’s recommendations because the ruling was “not . . . an abuse of discretion”). A court abuses its discretion when it exercises that discretion “‘in an arbitrary or capricious manner’” or “‘acts beyond the letter or reason of the law,’” when “‘no reasonable person would take the view adopted by the trial court,’” or when the court “acts without reference to any guiding rules or principles.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006) (cleaned up) (first quoting Garg v. Garg, 393 Md. 225, 238 (2006); then quoting In re Adoption/Guardianship No.3598, 347 Md. 295, 312 (1997)).
1. The magistrate didn’t violate Mother’s due process rights when they determined that she had adequate notice of the allegations in the contempt petition to defend against them at the show cause hearing.
In its order overruling Mother’s exceptions, which it grounded in the magistrate’s factual findings and the record developed at the show cause hearing, the circuit court “concluded that [Mother] was served and on notice of the proceedings on the petition for contempt.” Mother challenges this conclusion and argues that the magistrate violated her due process rights under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights when they determined that she had adequate notice of the allegations in Father’s February 20, 2025 contempt petition to defend against them at the April 29, 2025 hearing. Although we review the circuit court’s ultimate decision to overrule Mother’s exceptions for abuse of discretion, see Wenger, 42 Md. App. at 597, 601–02,
whether an action of the court deprived a party of their right to due process is a question of law that we review de novo.
See Regan v. Bd. of Chiropractic Exam’rs, 120 Md. App. 494, 509 (1998), aff’d, 355 Md. 397 (Md. 1999) (“The question of whether a party is deprived of the right to due process involves an issue of law and not of fact. As such, the standard of review applied by an appellate court is de novo.”).
The Fourteenth Amendment prohibits state actors from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. As interpreted by the Supreme Court of Maryland, Article 24 confers coextensive due process rights. See Pitsenberger v. Pitsenberger, 287 Md. 20, 27 (1980) (explaining that “Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning”). “At ‘[t]he core of due process is the right to notice and a meaningful opportunity to be heard.’” Roberts v. Total Health Care, Inc., 349 Md. 499, 509 (1998) (quoting LaChance v. Erikson, 522 U.S. 262, 266 (1998)).
Mother asserts that the magistrate deprived her of that right. She contends that despite having “no actual notice” of the contempt proceedings initiated by Father’s February 2025 petition and the circuit court’s subsequently issued show cause order, the magistrate “compelled [her] to defend herself at a hearing that has resulted in a $5,304.50 judgment against her.” According to Mother, the magistrate “dismissed all of [her] representations regarding the lack of notice” improperly and “proclaimed that she ‘sat on her laurels’ without any evidence to support such a proclamation.” We hold that Father’s compliance with the circuit court’s order allowing alternative service provided Mother with sufficient notice of the contempt proceedings and that the magistrate afforded Mother a meaningful opportunity to be heard at the show cause hearing as required by the Fourteenth Amendment and Article 24. See Roberts, 349 Md. at 509.
The fact that Mother’s counsel and husband attended the April 2025 show cause hearing on her behalf renders hollow her assertion that she had “no actual notice” of the contempt proceedings. In reality, then, she’s arguing that she didn’t receive actual notice of the show cause hearing and the allegations in Father’s contempt petition with adequate time to prepare a defense. But that argument fails as well. On February 27, 2025, Father filed an Affidavit of Service representing that his attorney had served Mother with the order for alternative service, contempt petition, and show cause order via email, text message, and first-class mail. He attached copies of the text messages and the email to the affidavit.
True, at the show cause hearing, Father’s counsel indicated that the texts were sent via the parenting app Father and Mother used to communicate. And, as Mother asserts correctly, a party to an action may not serve another party with process. See Md. Rule 2-123(a) (“Service of process may be made . . . by a competent private person, 18 years of age or older, including an attorney of record, but not by a party to the action.”). But Father’s counsel was an appropriate person to effect service under the Maryland Rules. See id. The Affidavit of Service and attachments demonstrated that Father’s counsel did serve Mother via email from his professional
email address and via regular mail in February of 2025. Mother’s counsel and Mother’s husband confirmed at the show cause hearing that the email and physical addresses to which Father’s counsel reported having sent the documents to effect service on Mother were correct and belonged to her, and Father’s counsel stated that the documents sent by regular mail hadn’t been returned to him. The magistrate didn’t err in concluding that Father had complied with the circuit court’s order that he serve Mother via regular mail and email. Mother’s due process rights weren’t violated by Father’s compliance with the alternative service order two months before the show cause hearing, and we agree with the circuit court that Mother received actual notice of the contempt proceedings with ample time to prepare a defense. The court didn’t abuse its discretion when it overruled Mother’s exceptions with regard to service. See Wenger, 42 Md. App. at 597, 601–02.
2. The circuit court didn’t abuse its discretion when it overruled Mother’s exceptions to the magistrate’s denial of her motion to postpone the show cause hearing.
Next, Mother contends that the circuit court abused its discretion when it overruled her exceptions to the magistrate’s denial of her oral motion to postpone the show cause hearing. The circuit court concluded that the magistrate’s denial of her motion to postpone was proper because the purpose of the motion was merely “to delay the proceedings.” Mother takes issue with this characterization and with what she describes as the magistrate’s “steadfast refusal to allow a reasonable amount of time for [her] to secure and prepare a defense” as required under the rules governing contempt proceedings. See Md. Rule 15-206(c)(2) (“The scheduled [show cause] hearing date shall allow a reasonable time for the preparation of a defense.”). She argues that the magistrate’s refusal to postpone the hearing was an abuse of discretion. See Touzeau, 394 Md. at 669 (“Absent an abuse of . . . discretion we historically have not disturbed the decision to deny a motion for continuance [or postponement].”) We find no abuse in either the magistrate’s denial of Mother’s motion, see id. at 675–78, or in the circuit court’s decision overruling Mother’s exceptions to that denial. See Wenger, 42 Md. App. at 597, 601–02.
Maryland Rule 2-508 provides that “[o]n motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-508(a). As noted above, the decision to continue or postpone a trial or hearing is discretionary. Touzeau, 394 Md. at 669. “We have found that it would be an abuse of discretion,” for example, “for a trial judge to deny a continuance when the continuance was mandated by law, or when counsel was taken by surprise by an unforeseen event at trial, when he had acted diligently to prepare for trial ” Id. (citations omitted). The instant case presented no such “‘exceptional situations.’” See id. at 671 (“‘[I]n some exceptional situations, refusal to grant a continuance has been held to be reversible error.’” (quoting Plank v. Summers, 205 Md. 598, 605 (1954)); see also Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 233–34, 250 (2011) (finding an “exceptional circumstance that warranted a continuance” where plaintiff
requested a two-day postponement of trial “so that he could observe an Orthodox Jewish holiday”).
If a circuit court elects to proceed by ordering the parties to appear for a show cause hearing, Rule 15-206(c) requires only that the court schedule the hearing on a date that allows “a reasonable time for the preparation of a defense.” Md. Rule 15-206(c)(2). As we explained above, the court concluded properly that Mother was served with the contempt petition and show cause order and received notice of the show cause hearing two months before the hearing was scheduled to occur. Although Mother didn’t retain counsel until the eve of the hearing, the April 29, 2025 hearing date gave her a reasonable time to do so and to prepare a defense to Father’s contempt petition. See id. So the magistrate’s refusal to postpone the hearing beyond that date wasn’t contrary to law. See Touzeau, 394 Md. at 669. Moreover, and for the same reasons, this case presented no issue of undue surprise. Id. Father argued nothing at the show cause hearing that he hadn’t argued already in his February 2025 contempt petition, with which he served Mother well in advance of the hearing. Because the magistrate, in denying Mother’s motion, and the circuit court, in overruling her exceptions to that denial, both acted reasonably, in a manner that wasn’t arbitrary or capricious, and with reference to the appropriate guiding rules and principles, id., we find no abuse of discretion.8
3. The circuit court didn’t abuse its discretion when it overruled Mother’s exceptions to the magistrate’s decision on unclean hands because unclean hands wasn’t a viable defense to Father’s claim.
Third, Mother asserts that the circuit court erred when it determined that “the Magistrate’s ruling on the ‘unclean hands’ issue was proper” and abused its discretion in overruling her exceptions to the magistrate’s unclean hands ruling. Again, we review the circuit court’s ultimate decision to overrule Mother’s exceptions for an abuse of discretion. See Wenger, 42 Md. App. at 597, 601–02. A decision whether to deny requested equitable relief based on unclean hands is likewise a discretionary decision that we review for abuse.
See Hicks v. Gilbert, 135 Md. App. 394, 401 (2000) (“[W]e disturb a trial court’s decision to invoke the [unclean hands] doctrine only when the court abuses its discretion.”); Turner v. Turner, 147 Md. App. 350, 420 (2002) (holding that the circuit court didn’t abuse its discretion when it denied a party’s request for equitable relief based on unclean hands).
The unclean hands doctrine denies relief to a party whose equitable claim arises from their own inequitable conduct. Hicks, 135 Md. App. at 400–01 (2000) (citation omitted). Its purpose isn’t to protect the parties or to punish the wrongdoer, but to “protect the courts from having to endorse or reward inequitable conduct.” Adams v. Manown, 328 Md. 463, 474–75 (1992) (citing Space Aero Prods. Co. v. R.E. Darling Co., 238 Md. 93, 120 (1965). Consequently, for the doctrine to apply, “the alleged misconduct must be connected with the transaction upon which the claimant seeks relief.” Id. at 475. In other words, “[t]here must be a nexus between the misconduct and the transaction, because ‘[w]hat is material is not that the plaintiff’s hands are dirty, but that he dirties them in acquiring the right he now asserts.’” Hicks, 135 Md.
App. at 400–01 (quoting Adams, 328 Md. at 476). “‘It is only when the plaintiff’s improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this conduct.’” Schneider v. Schneider, 96 Md. App. 296, 306 (1993) (quoting Adams, 328 Md. at 476), rev’d on other grounds, 335 Md. 500 (1994); see Turner, 147 Md. App. at 360, 414, 420 (holding that the circuit court denied properly wife’s claims for equitable relief based on husband’s alleged misappropriation of funds from the family business because it found that wife “previously aided her husband in diverting funds” from that business).
At the show cause hearing, Mother, through counsel, raised unclean hands as a defense to Father’s contempt petition. She asserted that Father “[didn’t] have clean hands” because, as she alleged, he was behind on his child support payments. Because Father didn’t have clean hands, she argued, he shouldn’t be entitled to equitable relief in the form of a contempt finding or an order that she reimburse Father for the children’s air tickets. The magistrate disagreed and concluded that the unclean hands doctrine wasn’t a viable defense to this contempt petition. The magistrate determined also that the status of Father’s child support payments was relevant to “whether or not [Mother] had the ability to pay” and to comply with the court’s order or whether she had disobeyed the order willfully, and they let Mother’s counsel question Father about his child support payments and other expenses for which he was required to reimburse Mother. At the exceptions hearing, Mother asserted again that unclean hands “is a defense to contempt” and that it applied to Father’s claims. In its order overruling Mother’s exceptions, the circuit court determined that “the Magistrate’s ruling on the ‘unclean hands’ issue was proper.”
On appeal, Mother argues that the court’s determination was erroneous and that the magistrate concluded incorrectly that the unclean hands doctrine wasn’t a viable defense to Father’s claims. Although the circuit court adopted the magistrate’s recommendation that it not find Mother in contempt, she asserts that the magistrate and circuit court should have applied the unclean hands doctrine to deny Father’s request for an order that she reimburse him for the children’s air tickets. To establish inequity on Father’s part, Mother directs us to his testimony that after the court found that he’d been overpaying child support for nearly a year, he started deducting $500 per month from his child support payments until, by his own calculation, he’d exhausted the $11,000–$13,000 “credit” the court had granted him. Mother argues that the required nexus between Father’s alleged misconduct and his requested relief was present here because his obligation to pay child support and her obligation to reimburse him for the children’s air tickets both arose from the circuit court’s child support order. Consequently, she concludes, the unclean hands doctrine applied. We hold that the magistrate didn’t abuse their discretion by ruling that it didn’t.
First, we note that despite Father’s testimony about his self-calculated deductions from his court-ordered child support payments, the magistrate didn’t find that he’d engaged in any misconduct or inequity. Rather, the magistrate credited Father’s uncontroverted testimony that he was
“current on his child support” and had “paid his portion of all the expenses that . . . he [was] court-ordered to pay.”
The circuit court didn’t find this factual determination to be clearly erroneous and didn’t abuse its discretion in overruling Mother’s exceptions to the magistrate’s unclean hands ruling in finding that Father’s hands weren’t unclean.
Second, and even if the magistrate and circuit court had found that Father engaged in some misconduct or inequity, the nexus required to establish an unclean hands defense wasn’t present. See Hicks, 135 Md. App. at 400–01. Sure, as Mother points out, her obligation to reimburse Father for the children’s air tickets and Father’s obligation to pay child support both arise from the JAD, as modified by the August 2022 Modification Order. But Father’s deductions from his child support payments weren’t “‘the source, or part of the source, of his equitable claim’” for reimbursement, such that they would bar that claim. Schneider, 96 Md. App. at 306 (quoting Adams, 328 Md. at 476). Although Mother asserts that “[a]n obligation to pay an ongoing monthly amount of child support should be superior to an obligation to reimburse a party for expenses” and that the purpose of child support “is to meet the ongoing needs of the children,” she didn’t argue at either the show cause hearing or the exceptions hearing— and doesn’t argue now—that Father’s deductions from his child support payments rendered her unable to comply with her obligation to reimburse him for the children’s air tickets. In fact, the magistrate found that based on her fulltime employment and her husband’s payment of her family’s monthly housing expenses, forty-five days “should give [Mother] sufficient time to reimburse [Father] for the flights.” The circuit court found no clear error in that finding, either. This case is a far cry from Turner, where we held that the circuit court denied the plaintiff’s claims for equitable relief under the unclean hands doctrine properly because she’d actively participated in the defendant’s misconduct, 147 Md. App. at 420, and more akin to what the magistrate described aptly as the “two wrongs make a right theory.” We hold that the magistrate didn’t abuse their discretion when they ruled that the unclean hands doctrine wasn’t a viable defense to Father’s claims and that the circuit court didn’t abuse its discretion when it overruled Mother’s exceptions to the magistrate’s unclean hands ruling.
4. Neither the magistrate nor the circuit court erred by failing to consider the best interest of the children.
Mother’s final contention is that the magistrate and circuit court failed to consider whether ordering her to reimburse Father for the children’s air travel tickets was in the children’s best interest. She argues that the court’s adoption
JUDGMENT
of the magistrate’s recommendation that it order her to reimburse Father $5,304.50 for the tickets within forty-five days was improper because it demonstrated that the court was unconcerned with her ability to “provid[e] resources for the children and ensur[e] that [she had] the funds necessary to support their needs” and failed to factor in Father’s acknowledgement that he wasn’t paying his court-ordered child support. We disagree.
As an initial matter, we note that Mother didn’t raise this issue in her exceptions to the Magistrate’s Recommendations and, as a result, the circuit court didn’t consider it at the exceptions hearing or in its order overruling Mother’s exceptions. Even if she had raised it, though, Mother’s contention is meritless. The magistrate, in their recommendations, did consider Mother’s ability to reimburse Father for the tickets. The magistrate credited Mother’s husband’s testimony that Mother worked full-time in hospital administration and that he covered all monthly housing expenses for the family via his military employment, then found that forty-five days “should give [Mother] sufficient time to reimburse [Father] for the flights.” As we’ve discussed already, the circuit court didn’t find this factual determination to be clearly erroneous, nor did it find clear error in the magistrate’s decision to credit Father’s uncontroverted testimony that he was “current on his child support.”
Moreover, to the extent Mother contends that the court was required to conduct a full best interest analysis before ordering her to reimburse Father for the tickets as required under its August 2022 Modification Order, that argument also fails. It’s true that in matters involving custody and child support, “‘the child’s best interest is of paramount importance.’”
Houser v. Houser, 262 Md. App. 473, 496–97 (2024) (quoting Guidash v. Tome, 211 Md. App. 725, 742 (2013), aff’d, 490 Md. 592 (Md. 2025)). In addition, by statute, the court is required to conduct a best interest analysis when determining or modifying custody or visitation. See FL § 9-201(a) (2025 Cum. Supp.) (listing factors for courts to consider “in determining what legal custody and physical custody is in the best interest of a child”); id. § 9-202(a) (permitting modification of a child custody or visitation order “if the court determines . . . that [modification] is in the best interest of the child”). But this wasn’t an action to modify custody. It was a contempt action in which Father requested an order from the court for Mother to comply with her pre-existing obligations under the August 2022 Modification Order. The court ran the proper analysis (or at least unchallenged analysis) in 2022 and found that the Modification Order—including the provision requiring Mother to reimburse Father for the children’s air tickets— was in the children’s best interest. We find no error and affirm.
FOOTNOTES
1 Lord v. Lord, No. 1416, Sept. Term 2022 (Md. App. June 2, 2023).
2 The magistrate concluded that because G had reached the age of majority by the time Father purchased his Christmas tickets, Mother “was under no legal obligation” to reimburse Father for those tickets. The magistrate subtracted the cost of G’s Christmas tickets from the $6,232.45 in total costs demonstrated in the receipts Father introduced into evidence at the hearing to arrive at the $5,304.50 figure.
3 At Father’s request, the circuit court entered a judgment against Mother on December 1, 2025 in the amount of $5,304.50.
4 Mother phrases her Questions Presented as follows:
I. Did the circuit court err in compelling Appellant to trial without notice of the Appellee’s Complaint against her?
A. Did the circuit court violate the Maryland Rules and Appellant’s due process rights under the United States Constitution and the Maryland Declaration of Rights?
B. Was the circuit court’s denial of Appellant’s Request for a Postponement an abuse of discretion?
II. Is Unclean Hands a Defense to Appellee’s Contempt Petitions?
A. Is “unclean hands” a defense to an equitable claim?
B. Must the circuit court consider the best interests of the children?
III. Did the Circuit Court Err in Enforcing an Order That is Contrary to Law?
On February 25, 2026, a week before oral argument in this case, Father filed a Line with this Court representing his intent not to file an Appellee’s brief and asking the Court to withdraw his counsel’s appearance. Father didn’t file a brief and his counsel didn’t attend the March 4, 2026 oral argument. It was, of course, Father’s right not to participate in the appeal. That said, counsel must withdraw by motion and cannot do so by line. See Md. Rule 8-402(f) (requiring an attorney to strike their appearance before this Court by written motion according to Rule 2-132); Md. Rule 2-132(b) (“[An] attorney wishing to withdraw an appearance shall file a motion to withdraw.”). Because Father’s counsel never filed a proper motion to withdraw, they remain in the case.
5 In addition, Mother asks us to decide whether the circuit erred “in enforcing an order that violates the law.” Specifically, she argues that the provision of the court’s August 2022 Modification Order requiring her to “reimburse Father 100% of the costs for round trip air travel for the summer recess and Christmas recess” violated Md. Code (1999, 2019 Repl. Vol.), § 12-204(i) of the Family Law Article (“FL”) (2025 Cum. Supp.), which allows the court to divide “any expenses for transportation of [a] child” between the parents’ homes “in proportion to their adjusted actual incomes” when awarding child support. Id. § 12-204(i)(2). She asks that the provision “be determined to be unenforceable, and that it be stricken from any and all future orders.” That question isn’t before us. The time to challenge the propriety of the August 2022 Modification Order expired thirty-one days after it issued. See Md. Rule 8-202(a) (“[T]he notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.”). That time is long past.
6 The phrase “reasonably calculated to give actual notice” also embodies the “due process minimum requirement” for methods of effecting service of process. Guen v. Guen, 38 Md. App. 578, 584–85 (1978).
7 Additionally, Mother indicates in her brief that her counsel had “filed a letter with the court in November stating that she would not accept service for [Mother], and that [Mother] must be served according to the Maryland Rules.” Although this letter isn’t in the record, nothing in the record contradicts Mother’s statement, either.
8 Mother argues as well that the circuit abused its discretion when it decided not to hold a prehearing conference. Maryland Rule 15-206(c) provides that “[u]nless the court finds that a petition for contempt is frivolous on its face, the court shall enter an order providing for (i) a prehearing conference, or (ii) a hearing, or (iii) both.” Id. at 15-206(c)(2). The rules commit this decision entirely to the circuit court’s discretion, and because the April 29, 2025 date scheduled for the show cause hearing allowed Mother a reasonable time to prepare a defense, the court didn’t abuse that discretion when it elected to hold a show cause hearing only.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s custody and child support order. The trial court did not make sufficient findings of fact to properly calculate the appellant’s income from his rental property and gambling. The Appellate Court also vacated the $70,000 fee award to wife and remanded for reconsideration of the appropriate amount of fees consistent with the recalculated income.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
For the following reasons, we vacate and remand the portions of the Circuit Court for Montgomery County’s February 26, 2024, Custody and Child Support Order concerning the amount of child support and arrearages and the payment of attorney’s fees.
Factual & Procedural Background
The Appellant and Appellee married on April 24, 2004. They are the parents of four minor children. The parties separated in May of 2020. The parties entered into a Marital Settlement Agreement (the “Agreement”) on April 10, 2021. The parties were divorced on February 9, 2022.
Donald Wright, the Appellant, and Jacqualene Wright, the Appellee, were divorced in early 2022. On October 13, 2022, the Appellant filed for a modification of custody. A hearing on the issue of custody was heard over a five-day trial in December of 2023. Judge Acosta requested a proposed order and findings of facts from both parties. On February 21, 2024, the Circuit Court for Montgomery County released its custody and child support order along with findings of fact and conclusions of law. The court ordered that the Appellee would continue to have sole residential and legal custody. The court ordered that the Appellant pay a higher amount of child support to the Appellee based on a recalculation of the Appellant’s income. The court also awarded attorney’s fees to the Appellee. On March 13, 2024, the Appellant appealed those orders.
In bringing his appeal, Appellant presents four questions for appellate review, which we rephrase as follows:
I. Did the trial court err as a matter of law in its interpretation of the parties’ Marital Settlement Agreement by including the children’s expenses in calculating child support fees?
II. Did the trial court abuse its discretion in determining that the parties had the ability to pay for the children’s private school tuition?
III. Did the trial court err in its determination of the Appellant’s income?
IV. Did the trial court err in its award of attorney’s fees to the Appellee?1
The Appellee is an administrative assistant who had an annual income of approximately $45,000. The Appellant used to work at Wells Fargo, where his annual income was above $800,000. He was terminated from Wells Fargo in October of 2020. When the Agreement was signed, the Appellant’s income was treated as $100,000 annually. The Appellant then became self-employed, working for Wright Wealth Management. In June of 2021, he reported his income as between $100,000 and $200,000 to Wells Fargo. At trial in December of 2023, he claimed his income was only $1,000 a month.
As part of the separation, the court appointed Dr. Gina Santoro as an independent custody evaluator. She sent in her summary of findings and recommendations on March 1, 2021. Dr. Santoro said that the Appellant “ha[d] engaged in a pattern of domestic abuse of [the Appellee] and the minor children including physical abuse, emotional abuse, and economic abuse.” She provided specific examples about the Appellant’s behavior, including “criticism, coercion, and control” of the Appellee and the children, behavior that is “vindictive and punitive,” “harsh corporal punishment with the children,” and “frequent and intense anger.” She also determined that her findings supported the concerns raised by the Appellee, which included that the Appellant has been coercive, critical, and controlling of the Appellee and absent or uninterested towards the children, but not the concerns raised by the Appellant, which included accusations that the Appellee had mental health issues and was unable to parent the children independently. Based on her findings, Dr. Santoro recommended that Ms. Wright have sole legal and physical custody of the minor children. She recommended that the Appellant have phased parenting time in coordination with therapy.
The Marital Settlement Agreement developed after Dr. Santoro’s report gave the Appellee sole legal and physical
custody of the children. In Section V, the Agreement set out that the Appellant would pay $2,100 a month to the Appellee in child support. That section continued to read that:
The minor children’s private school expenses, work-related childcare expenses, and uncovered and/or unreimbursed medical/dental/therapy/ orthodontia expenses are not included in [the Appellant’s] child support obligation of $2100. The parties agree that said expenses shall be paid by [the Appellee] and may be paid from the custodial accounts described in Paragraph VIII.E. of this Agreement. The parties will reassess the obligation for payment of orthodontiaat [sic] the time that child support is recalculated (said recalculation is more fully discussed below).
The parties agree to exchange their prior year tax returns, W-2s, K-1s, 1099s, year-end pay stubs and similar tax reporting documents (for their personal returns and for any business in which either has an interest) on April 16, 2023 and April 16, 2025, to determine whether a modification of child support is warranted. In determining Donald’s income for 2021, the parties agree that any debt forgiveness associated with his prior employment with Wells Fargo shall not be considered as “actual income” under Maryland Code, Family Law Article, Section 12-201, for purposes of calculating child support. The parties shall also consider and exchange documentation related to the costs for the minor children’s workrelated childcare, health insurance, extraordinary medical expenses and additional expenses, i.e. education, pursuant to Maryland Code Section 12201. After the exchange of documents, the parties will calculate child support using the extrapolated Child Support Guidelines.
If child support is modified, the new child support amount will become effective January 1, 2023 (and January 1, 2025 respectively). If the parties are unable to agree upon the new child support amount which is to be effective January 1, 2023 or January 1, 2025, they will submit their dispute to mediation, with a mutually agreed upon mediator, within 20 days of either party’s written request.
The Agreement transferred six custodial accounts held for the benefit of the children to the Appellee. The Agreement said the Appellee shall “use said accounts for the sole and exclusive benefit of the minor children, including for the purposes set forth in Section V above.”
Months after the divorce, the Appellant filed for a modification of custody on October 13, 2022. The Appellant requested physical and legal custody of the minor children, along with a modification of child support. The Appellee filed a Motion for a Custody Evaluator, which was granted and led to a second custody evaluation report from the court custody evaluator, Ms. Marilennis Cruz LCSW-C. This second report, completed in March of 2023, also recommended that the Appellee retain sole legal and physical custody and recommended therapeutic interventions for the Appellant.
The case was heard in a five-day bench trial before the Honorable Carlos Acosta of the Circuit Court for Montgomery County between December 11 and December 18, 2023. Judge Acosta requested a proposed order and findings of facts from both parties. On February 21, 2024, Judge Acosta released his custody and child support order along with findings of fact and conclusions of law.
Judge Acosta first ruled on the custody of the parties’ children. Analyzing multiple factors, the trial court noted that the experts in the case found the Appellee “to be a fit and proper parent who has positive relationships with the children” while there was “no testimony to support [the Appellant’s] fitness as a parent.” The court custody evaluator found the Appellee’s request for custody to be sincere, but did not find the Appellant’s request for custody to be sincere. The trial court concluded there was a material change in circumstances affecting the welfare of the children. The court ordered that the Appellee would continue to have sole residential and legal custody and limited the Appellant’s access to the children’s school events and activities.
Regarding the Appellant’s motion for contempt against the Appellee, the trial court denied it. There was no show cause order so as a matter of law the Appellee could not be held in contempt. Even if the court could have considered the issue, the court said that there was no credible evidence the Appellee “intentionally acted contrary to the terms of the parties’ marital settlement agreement.”
When ruling on Child Support, the findings of fact included that the “parties agreed the children’s medical expenses and school expenses would be included in the intended recalculation.” Relying on the Appellee’s Financial Statement, and other factors described below the court ordered the Appellant to pay $9,270.00 per month in child support.2
Judge Acosta said that the Appellant’s claim of an income of $562 a month was not credible, noting that would mean he was earning less than minimum wage. He found that the Appellant’s income had increased since the Agreement was signed. This was based on a review of credit card statements that showed the Appellant spending significant funds on multiple trips around the country and his ability to pay a high credit card bill every month. Judge Acosta determined that the Appellant had three sources of income. The first source was rental receipts from a beach home on the Eastern Shore of Maryland, which generated $117,132 in income.
The second source was from gambling. This was based on his bank account records, and Judge Acosta said the total amount of gambling income deposits, along with another rent payment, was $114,118.03. Judge Acosta also noted that these payments stopped when the trial court entered an order allowing for the Appellee to compel discovery.
The third source of income was his income from Wright Wealth Management, which the court calculated to be $24,099.99. Putting these sources together, the court concluded that the Appellant’s income for the eleven months before trial was $255,420.02, which was a monthly average of $23,220. The court said that this monthly average income was “more credible and reliable” than the Appellant’s proposed income “considering [the Appellant’s] lifestyle, lack of debt, and the ability to fund very valuable financial assets.” This
was the income the court used to calculate the Appellant’s child support payment.
Judge Acosta then turned to the children’s tuition at private school.3 He found that the children had attended a private Catholic school prior to the divorce and one older child graduated to public school while another graduated to a different private school. Judge Acosta noted concern about disrupting any of the children’s education, since they were all doing very well in school. Regarding the ability of the parties to pay for private tuition, Judge Acosta concluded the parties had the ability to fund private school education because the Appellant “owns real estate which he values at least 4.8 million according to his last two filed financial statements, as well as significant funds in his financial account” and the Appellee “has funds in her investment account exceeding one million dollars.” The court concluded that there was a particular educational need for the children to remain at private school and those expenses should be apportioned based on the parties’ incomes.
The Appellee also made a request for attorney’s fees. First, Judge Acosta found the fees the Appellee requested to be fair and reasonable. Judge Acosta then found that there was an absence of justification for the Appellant to bring, maintain, or defend the proceeding. Even if there was not lack of justification, the trial court said that based on the financial statuses of the parties, the award of the fees would be just and proper. Judge Acosta therefore ordered that the Appellant pay $70,000.00 to the Appellee for her attorney’s fees. On March 13, 2024, the Appellant timely appealed the circuit court’s orders on child support and attorney’s fees.
standard oF review
In reviewing whether the evidence was sufficient in an action tried without a jury “an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). If the trial court’s findings of fact are supported by substantial evidence, then they will not be clearly erroneous. Abdullahi v. Zanini, 241 Md. App. 372, 413 (2019) (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000)). On appeal, we look at the evidence in the light most favorable to the prevailing party. Goss v. C.A.N. Wildlife Tr., Inc., 157 Md. App. 447, 456 (2004) (quoting GMC v. Schmitz, 362 Md. 229, 234 (2001)); see also Ryan v. Thurston, 276 Md. 390, 392 (1975) (“The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party . . . .”).
discussion
Interpretation of
Marital Settlement Agreement
A. Parties’ Contentions
On this first issue, the Appellant argues that the circuit court erred by construing the Marital Settlement Agreement so that the Appellant had to pay additional expenses he
believes the Agreement excluded from his child support payments.4 The Appellant specifically objects to paying for the minor children’s medical and school expenses, which the trial court included in its recalculation of child support. Relying on the Maryland canons of contract construction, the Appellant claims that the Agreement “plainly states that [the Appellee] has the obligation to pay Additional Expenses.”
The Appellant argues Section V of the Agreement means that only the obligation for orthodontia would be reassessed for modification.
The Appellee argues that additional language in Section V shows that all of the children’s additional expenses should be reconsidered when reevaluating child support. Looking at the plain text, the Appellee argues that the documentation Section V says would be considered and exchanged is for the purpose of recalculating child support. Alternatively, the Appellee argues that the trial court was still permitted to modify the Agreement if it was in the best interests of the children. The Appellee argues that the trial court properly considered the Appellant’s increased income and the children’s expenses and modified the child support accordingly.
B. Standard of Review
“The interpretation of a contract, including the determination of whether a contract is ambiguous, is a question of law reviewed without deference.” Adventist Healthcare, Inc. v. Behram, 488 Md. 410, 432 (2024) (citing Spacesaver Sys., Inc. v. Adam, 440 Md. 1, 7 (2014)).
“When the trial court’s order involves an interpretation and application of Maryland statutory or case law, the appellate court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.”
Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 388 (2019) (quoting Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 72 (2004)) (quote cleaned up).
A trial court’s decision about a modification of child support “will not be disturbed on appeal unless the court acted arbitrarily or its judgment was clearly erroneous.” Lieberman v. Lieberman, 81 Md. App. 575, 595 (1990) (citing Tidler v. Tidler, 50 Md. App. 1, 9 (1981)). Similarly, the amount the trial court determines as an appropriate award will not be disturbed “absent legal error or abuse of discretion.” Ruiz v. Kinoshita, 239 Md. App. 395, 197 A.3d 47 (2018) (quoting Ware v. Ware, 131 Md. App. 207, 240 (2000)).
Maryland appellate courts have consistently taken the position “that an appellee is entitled to assert any ground adequately shown by the record for upholding the trial court’s decision, even if the ground was not raised in the trial court, and that, if legally correct, the trial court’s decision will be affirmed on such alternative ground.” Unger v. State, 427 Md. 383, 405 (2012).
C. Analysis
The parties’ Agreement determined the level of child support owed by the Appellant to the Appellee. Under Section V of the Agreement, the Appellant would pay $2,100 a month in child support to the Appellee. Section V then lists that a series of expenses are not included in the Appellant’s obligation of $2,100, which was the children’s “private school
expenses, work-related childcare expenses, and uncovered and/or unreimbursed medical/dental/therapy/orthodontia expenses.” The Appellant claims that the specific mention of orthodontia payments when child support is recalculated precludes the trial court from making the Appellant pay for any other expenses.
Section V also makes it very clear that modification of child support would occur in the future, since it sets out times for modifications on April 16, 2023, and April 16, 2025. That paragraph lays out in more detail the exchange of documentation about expenses the parties needed for the calculation of child support. Section V says the parties shall “consider and exchange documentation related to the costs for the minor children’s work-related childcare, health insurance, extraordinary medical expenses and additional expenses, i.e. education . . . .” This is additional explicit and specific language about an exchange of documents related to these other expenses that would be used for a recalculation of child support. The Appellant argued that these documents would be exchanged so the Appellant “stays apprised” of any additional expenses “given its potential impact on the Custodial Accounts.” However, the full phrase in the Agreement is that the parties would “consider and exchange documentation” about the costs. The use of the verb “consider” shows an intent to rely on the documentation about child care and education related to the future reconsideration of child support payments. Therefore, the contract supports the argument that all of the children’s expenses were still on the table at the time child support was recalculated.
The trial court followed this interpretation and ruled that the “parties agreed the children’s medical expenses and school expenses would be included in the intended recalculation.” When the trial court recalculated child support it added onto the basic child support obligation work-related childcare expenses, extraordinary medical expenses, and additional expenses that constituted the children’s tuition. The amount of these expenses came from the Appellee’s financial statement.
The Appellant also points to language in the Agreement that the Appellant claims “plainly states that [the Appellee] has the obligation to pay Additional Expenses.” The Appellant argues Section V means that only the obligation for orthodontia would be reassessed for modification and therefore adding on the medical expenses and school expenses was in error. While the argument above shows that the reconsideration of expenses kept open future obligations for future expenses, the interpretation of the contract was not binding on the trial court based on Maryland case law and the trial court was permitted to modify child support independently from the terms of the Agreement.
The Maryland statutory codes set out that courts have discretion to modify child support payments. “The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.” Md. Code, Fam. Law § 8-103(a) (emphasis added). “Unlike certain other aspects of a marital relationship that can be the subject of an agreement,
however, provisions relating to the welfare of minor children are, by statute, subject to court modification.” Guidash v. Tome, 211 Md. App. 725, 740 (2013) (quoting Ruppert v. Fish, 84 Md. App. 665, 674 (1990)); see also id. (“[C]hild support, regardless of any parental agreement, is always subject to court modification.”); Walsh v. Walsh, 333 Md. 492, 504 (1994) (citing Stancil v. Stancil, 286 Md. 530, 535 (1979)) (describing that “agreements between the parents were not binding on a court ordering child support.”).
A parent “may not waive or bargain away a child’s right to receive support.” Guidash, 211 Md. App. at 739–40; see also Stambaugh v. Child Support Admin., 323 Md. 106, 111 (1991) (“[T]he duty to support one’s minor children may not be bargained away or waived.”). Based on this principle, a court “may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” Md. Code Fam. Law § 12104(a); see Damon v. Robles, 245 Md. App. 233, 240 (2020) (citing same); Leineweber v. Leineweber, 220 Md. App. 50, 60 (2014) (citing same).
In Guidash v. Tome, 211 Md. App. 725 (2013), the parties had a separation agreement that stated that “the parties expressly agree that there shall be no child support in this matter.” 211 Md. App. at 731. The court said, “the provision in the Separation Agreement that purported to deprive the circuit court of the authority to address Joseph’s need for child support in the light of a change in material circumstances is void as violative of the clearly-established public policy of this State.” Id. at 741. This was because:
Unlike certain other aspects of a marital relationship that can be the subject of an agreement, however, provisions relating to the welfare of minor children are, by statute, subject to court modification. Md. Fam. Law Code Ann. § 8–103(a) provides that “[t]he court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.
Id. at 740 (quoting Ruppert v. Fish, 84 Md. App. 665, 674 (1990)). Therefore, “a court may modify an award of child support at any time if there has been shown a material change in circumstances that justify the action.” Id. (internal quotations and citations omitted).
Here, when ruling on the issue of custody, the trial court found “there’s been a material change in circumstances affecting the welfare of the children.” The court identified material changes related to the expert witnesses’ testimony about the Appellant’s abusive behavior, his poor relationship with his children and the Appellee, and his poor communication with the same, along with a change to his income from when the Agreement was signed. At the time the Agreement was formed, the Appellant had recently left Wells Fargo and had a significant decrease in salary. The Appellant’s income when making the Marital Settlement Agreement was $8,333 a month. Using this income meant the child support was lower than it would have been at the Appellant’s old salary, and the parties had agreed to
recalculate these expenses in 2023 and 2025 as a result. The trial court’s recalculated monthly income was $23,220. The Appellant’s monthly income increased by over 170%, which would be a material change in circumstances. See Petitto v. Petitto, 147 Md. App. 280, 295, 307 (2002) (describing an approximately 50% increase in monthly income from $5,917 to $9,176 as a “material change[] in circumstance”). As a result, given the material change in circumstances, the court was permitted to modify the award of child support and disregard the Marital Settlement Agreement in favor of the facts presented before the court. We address the calculation of the Appellant’s income in greater detail below, but the fact that it increased was sufficient for the court to find a material change in circumstances. The trial court was permitted to ignore Section V of the Agreement and determine the amount of child support owed independently.
The Appellant’s final argument is that the trial court erred in including medical expenses and school expenses in its calculation. Trial judges are permitted to look at additional obligations to look beyond the basic child support obligations. Maryland code specifically states that “actual child care expenses . . . shall be added to the basic obligation and shall be divided between the parents.” Md. Code, Fam. Law § 12-204(g)(1). The Maryland family law statutes outline the expenses that should be considered in child support calculations, which includes “extraordinary medical expenses” and “any expenses for attending a special or private elementary or secondary school to meet the particular education needs of the child.” Md. Code, Fam. Law § 12-204(h)–(i). This section goes on to say that “[a]ny extraordinary medical expenses incurred on behalf of a child shall be added to the basic child support obligation.” Id. at § 12-104(h)(2). Additionally, “any expenses for attending a special or private elementary or secondary school to meet the particular educational needs of the child” “may be divided between the parents in proportion to their adjusted actual incomes.” Id. at § 12-104(i)(1). Therefore, many of the expenses described in Section V, including “minor children’s private school expenses, work-related childcare expenses, and uncovered and/or unreimbursed medical/dental/therapy/ orthodontia expenses” can be considered and added to the basic child support obligation under the family law statutes.
Here, the trial court examined the financial statement of the Appellee and found that there were additional child support obligations that should be divided between the parents. This included $1,665 a month in extraordinary medical expenses and $3,407 in monthly tuition for the children’s schools on top of the basic $5,549 obligation from a total income of $27,553 with four children. It was within the trial court’s discretion to respond to the material change in circumstances and determine that additional childcare expenses should fall within the child support obligation. Section V of the Agreement does not control the court when it comes to the determination of child support. Accordingly, we affirm the decision of the trial court that the Appellant should pay for the children’s additional expenses. While we remand on the issue of the total amount of child support, as discussed below, that relates to the determination of the Appellant’s income and the total amount of child support due. We do not
disturb the determination of the Appellant’s responsibility for additional expenses, independent of the parties’ Agreement, in this ruling.
Parties’ Ability to Pay for Private School Tuition
A. Parties’ Contentions
The Appellant contends that the trial court erred by considering the value of the Appellant’s assets in determining that he had the ability to pay for private school tuition. The Appellant argues that the value of a party’s assets cannot be considered as available resources to pay child support or private school expenses. The Appellant claims that absent a finding of voluntary impoverishment or an insufficient income to maintain the child’s standard of living, the trial court could not use the Appellant’s assets to determine whether he could pay for private school tuition.
The Appellee claims the trial court properly exercised its discretion in determining that the parties had the ability to continue to pay for private school. The Appellee argues that the court was permitted to look at the parties’ assets when making this decision because it is separate from the issue of child support but went towards the common law factors to determine if the child has a particular educational need for private school. As a result, the trial court did not err in analyzing the Appellant’s assets.
B. Standard of Review
“Ordinarily, child support orders are within the sound discretion of the trial court.” McMorrow v. King, 264 Md. App. 708, 720 (2025) (quoting Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013)) “Nonetheless, where the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Id. (quoting Reichert, 210 Md. App. at 316).
C. Analysis
When calculating child support, the trial court may include particular educational expenses. Md. Code, Fam. Law § 12204(i). The statute provides:
(i) By agreement of the parties or by order of court, the following expenses incurred on behalf of a child may be divided between the parents in proportion to their adjusted actual incomes:
(i) any expenses for attending a special or private elementary or secondary school to meet the particular educational needs of the child; or
(ii) any expenses for transportation of the child between the homes of the parents.
Id. In Witt v. Ristaino, this Court set out a list of nonexhaustive factors for the trial courts to consider when determining whether a child has a “particular educational need” to attend a private school. 118 Md. App. 155, 169–70 (1997). Those factors include (1) the child’s education history, (2) the child’s performance while in the private school, (3) the family’s history or tradition in attending a particular school, (4) whether the parents chose the school prior to the divorce, (5) any particular factor that may impact the child’s best
interest, and (6) the parents’ ability to pay for the schooling. Id. at 170–71. The final factor of the parents’ ability to pay is what the Appellant takes issue with here. In Witt, the court said this is not the primary factor but “it is vital for a court to consider whether a parent’s financial obligation would impair significantly his or her ability to support himself or herself as well as support the child when the child is in his or her care.” Id. at 171.
The trial court, after ruling on the child support amount, turned to the children’s tuition at private school. The court cited all of the factors from Witt and stated that the court had considered the factors. The court then on the record discussed the children’s history at private school, noting that the court was “concerned about potential disruption to their education setting in consideration of the evidence.”
Judge Acosta then continued on to discuss the ability to pay for private school tuition, where he said, “The parties have the ability to fund private school education. [The Appellant] owns real estate which he values at least 4.8 million according to his last two filed financial statements, as well as significant funds in his financial accounts.” The assets of the Appellant were used to weigh in favor of an ability to pay for private school, not the amount of child support itself.
In Petrini v. Petrini, the Supreme Court of Maryland said that the child support statutes “afforded trial courts the latitude to consider all the relevant circumstances in a particular case before making any determination about what should be considered in calculating a parent’s support obligation.” 336 Md. 453, 463 (1994). They listed examples like “a parent’s actual ability to pay the specified child support award, any lack of liquidity or marketability of a party’s assets, the fact that a parent’s take-home income is not an accurate reflection of his or her actual standard of living, and whether either party is voluntarily impoverished.” Id. at 464. That is what the trial court was doing here. It was considering the relevant circumstance of the additional assets held by the Appellant and looking beyond just the Appellant’s takehome income in the same manner as the court did when recalculating the Appellant income. The Appellant’s assets were a proper, relevant circumstance when analyzing the Appellant’s ability to pay for private school.
The Appellant argues the trial court was not permitted to look at his assets in making this determination, relying on Barton v. Hirshberg, 137 Md. App. 1 (2001). In that case, the appellant Barton argued that the circuit court erred in failing to consider the appellee Hirshberg’s total assets as opposed to just his income. Id. at 15–16. The court looked to the child support guidelines set out in the family law statute, which use an income shares model to determine child support obligations. Id. at 16–17. The court needed to determine the kind of discretion a court could use if the adjusted actual income exceeded the statutory guidelines. Id. at 17 (citing Md. Code, Fam. Law § 12-204(d)–(e)).5 At higher income levels, the legislative judgment was that judicial discretion was better than a fixed formula to maintain a constant standard of living for children. Id. at 18 (quoting Voishan v. Palma, 327 Md. 318, 328 (1992)). The court rejected Barton’s argument that the trial court erred in not analyzing Hirshberg’s assets. Id. at 19. The court then wrote:
Our holding in this case should not be interpreted to mean that the assets of a party will never come into play when making a determination regarding child support. For example, if a parent voluntarily decreases his or her income in order to avoid support payments, a court may find that a parent has become voluntarily impoverished, and impute income based on assets readily adaptable to income production. Alternatively, in instances where the income of a parent is not adequate to provide support to a child sufficient to meet the standard of living established during the marriage, and the parent has assets that could be converted into income-producing assets, a court might look to the parent’s assets to determine above-theguidelines support. We do not agree, however, that the mere ownership of non-income-producing assets alone constitutes a basis for reliance upon those assets in determining child support.
Id. at 20. The court noted that Hirshberg was not voluntarily impoverished and there was no evidence the child would experience a decrease in his standard of living, so the court had no need to look at his assets. Id. at 20–21.
Here, there was also no finding by the trial court that the Appellant was voluntarily impoverished. The Appellee argues that the Appellant’s case falls into the second category outlines in Barton, that the income is not adequate to meet the standard of living. We disagree with that application, since the calculated monthly income was still well above the child support obligation assigned by the court, even including the tuition amount.6
As a result, neither of the categories outlines in Barton apply in this case. But Barton does not bar the trial court’s actions here because the analysis of a parties’ assets differs here. In Barton, Hirshberg’s assets were used to try to impute additional income to the party to determine the proper amount of child support. That is not the case here, where the assets were used to determine the Appellant’s ability to pay for child support while performing the analysis of that factor under Witt. The amount of child support was set based on the guidelines and Appellee’s expenses, as described above. The assets were not used to alter this amount, but rather to determine that the Appellant would still be able to pay the amount the trial court assigned to him.
Barton is not controlling in this case and the trial court was permitted to reference the Appellant’s assets in coming to its decision, especially in a case where the Appellant has not been particularly forthcoming in stating his income. As we describe in more detail in the next issue, the trial court found that the Appellant’s financial statement and the “suggestion he’s learning [sic] less than minimum wage is not credible.” The independent custody evaluator had noted that the Appellant had previously engaged in economic abuse against the Appellee and the children. The trial court was permitted to look beyond just the income of the Appellant to his assets in order to evaluate his ability to pay for child support. The trial court’s decision was not that those assets must be converted into income-producing assets or that they would need to be sold or otherwise used to pay for child support. Instead, it
was a consideration for the court to weigh in a case where the Appellant was not forthcoming about his income.
We hold there was no error in looking at the Appellant’s assets when determining whether he had the ability to pay for his children’s private school education.
Determination of Appellant’s Income
A. Parties’ Contentions
The Appellant argued that the trial court erred in how it calculated his income.7 The Appellant argues that the trial court improperly calculated his income based on his gambling earnings and rental income. Regarding the gambling income, the Appellant alleged that the trial court ignored evidence of a lack of gambling winnings and transfers back into gambling venues that meant his “actual income” from gambling was significantly less. Regarding the rental income, the Appellant argued that the trial court failed to include deductions from fees and expenses and therefore overestimated his income resulting from the rental properties.
The Appellee argued that the trial court properly considered all of the relevant circumstances to determine the Appellant’s income. The Appellee argues that there was no clear error because there was substantial evidence in the record to support their calculation of the Appellant’s income, which the trial court adopted. Regarding the gambling income, the Appellee argues that the Appellant did not provide evidence that the deposits were transfers and should not be considered evidence of his income. Regarding the rental income, the Appellee argues that the expenses were properly divided between personal and rental use based on the Appellant’s personal use of the house.
B. Standard of Review
The determination of the Appellant’s income was a finding of fact by the trial court. Findings of fact must be supported by substantial evidence, or else they will be clearly erroneous. Abdullahi, 241 Md. App. at 413 (quoting Innerbichler, 132 Md. App. at 230). We look at the evidence in the light most favorable to the prevailing party, which in this case was the Appellee. Goss, 157 Md. App. at 456 (quoting GMC, 362 Md. at 234).
C. Analysis
The division of basic child support obligations are proportional based on the parents’ “adjusted actual incomes.” Md. Code, Fam. Law § 12-204(a)(1). “‘Actual income’ means income from any source.” Md. Code, Fam. Law § 12-201(b)(1). The Appellant’s income was used to determine the amount of child support he owed under the child support guidelines. See Md. Code, Fam. Law § 12-204.
The Appellant’s first argument that the circuit court erred is that the court relied on the Appellant’s bank statements from 2023 when it should have relied on his tax returns from 2022. We have previously rejected the argument that a trial court is required to use income tax returns to produce income. In Tanis v. Crocker, we held that Family Law § 12-203(b) “does not require that a parent’s income tax returns be considered in order to resolve a dispute concerning that parent’s income.” 110 Md. App. 559, 572 (1996). This means the trial court was permitted to look beyond the Appellant’s tax returns to
determine his income. As for the argument that the trial court was bound by the Agreement to look at documents from 2022 instead of 2023, as we discussed above “agreements between the parents were not binding on a court ordering child support.” Walsh, 333 Md. at 504 (citing Stancil, 286 Md. at 535). The trial court was permitted to look beyond the Appellant’s tax records.
When the trial court examined the Appellant’s financial statement it concluded that the “suggestion he’s learning [sic] less than minimum wage is not credible.”8 The Appellant’s assertions of his low income did not comport with the high amounts of spending shown in the record.9 Because the Appellant’s statements could not be relied on, the Appellee argued it was proper to look at income from the Appellant’s company, his income from renting his beach property, and his income from gambling. The trial court adopted this argument in determining the Appellant’s income.10 The Appellant does not challenge the calculation of his income from his company, Wright Wealth Management, which was calculated to be $24,099.99. We now turn to the income from his rental property and income from gambling in turn.
Rental Property Income
The next source of income was money made from rentals at a beach home on the Eastern Shore of Maryland, which generated $117,132 in income. The trial court noted that the beach home is used by the Appellant as a personal vacation home and an income generating asset. The trial court calculated the income value by taking the total amount generated from the rental invoices, decreased by his expenses from his 2022 tax return, but not including depreciations, mortgage interests, or cleaning services as expenses.
The Appellant’s argument on the income from his rental property is that the trial court erred in not deducting additional expenses, including the cleaning expenses and mortgage interest. The Appellant agreed that the depreciation amount could be deducted, since it is not an expense. Additionally, the Appellant argued the trial court erred in finding that the property was for personal use.
The first issue is whether the trial court properly determined the beach house to be a personal vacation home. Whether a dwelling unit is used as a residence changes the types of expenses an owner can deduct from the property. See Topic no. 415, Renting residential and vacation property, Internal Revenue Service, https://www.irs.gov/taxtopics/tc415. A dwelling unit is considered to be a residence if it is used for personal purposes for the greater of fourteen days or 10% of the total days it is rented to others at a fair rental price. Id.
Regarding the rental property income, there was sufficient evidence, looking at the evidence in the light most favorable to the Appellee, to show that the Appellant was in the Rehoboth Beach area beyond the IRS maximum for personal use. The Appellant’s credit card statements show numerous charges across multiple trips for various purchases in Rehoboth Beach, Delaware and Ocean City, Maryland between April 2023 and September 2023. These purchases occurred across twentytwo days in 2023. There was no evidence presented that the Appellant had stayed at a different hotel or rental property and looking at the evidence in the light most favorable to
the Appellee it was reasonable to assume that the Appellant was using his own residence. At least for one stretch, August 4 through August 7, 2023, the beach house was being rented by another party, so those four days must be excluded from the total, leaving eighteen days of personal use. Since that amount of personal use is greater than fourteen days, to avoid being a residence, the property would need to be rented for 180 days during the year (so that the eighteen days of use is 10% of the total days it is rented). The beach house was only rented for 91 days based on the evidence presented so the Appellant’s personal use means that the beach house needs to be considered a residence. Based on the available evidence, the Appellant could not claim the beach house was a shortterm rental property since it was also used as a residence. The expenses would then need to be divided between the rental and personal use. Therefore, all of the expenses cannot be deducted from the rental property and the trial court was within its discretion to split the rental costs.
However, the trial court’s findings completely deducted the cleaning fees 11 and mortgage fees without weighing the time between the rental use and personal use. If the court chooses to use the rental income as a measure of the Appellant’s income, then it needs to properly weigh the amount of time it was rented against the time it served as a personal residence when deducting expenses like the mortgage interest. We conclude the trial court did not make sufficient findings of fact to properly calculate the Appellant’s income from his rental property and vacate the determination of the Appellant’s income coming from that source.
Gambling Income
Judge Acosta, examining the Appellant’s bank account records, determined the total amount of gambling income deposits, along with another rent payment, was $114,118.03. This calculation came from the Appellant’s Chase Bank statements where there were specific transfers of funds noted coming from gambling venues into the account. The Appellee pointed to eight deposits into the account that totaled to $114,188.03. The Appellant argues the trial court erred in adopting these numbers because the calculation did not include transfers into these gambling venues. The bank records also showed a $12,500 payment to Barstool and a $25,000 payment to American Wagering during the same time period.12 Additionally, the Appellant testified that “[t]here typically has not been any gambling winnings.”
Under the family law statute, “[f]or income from selfemployment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, ‘actual income’ means gross receipts minus ordinary and necessary expenses required to produce income.” Md. Code, Fam. Law § 12-201(b)(2). Money won from gambling would most likely fall within the category of royalties, which means we need to look at the gross receipts minus the ordinary and necessary expenses required to produce income. The Appellee’s numbers were the gross receipts with the money taken out of the gambling websites. The necessary and ordinary expenses would be the transfers into the gambling venues, so that the actual income is the profit a person makes off of the betting websites.
Here, the Appellee’s numbers that the trial court adopted did not include any transfers into the betting venues. The Appellee argued that the $37,500 described in payments to the betting websites described above were not included in the calculation because they were not deposits or disbursements but were instead labeled as a “Card Purchase” and a “Wire Transfer.” Using the meaning of “actual income” as gross receipts minus expenses, we would need to subtract the money put into these websites from the money taken out of them to determine if there was any income from gambling. Gambling winnings, which would be the income someone makes from gambling, is not equivalent to taking money out of an account from a betting website. If someone deposits and then immediately takes out $100, that should not be considered “actual income.”
While the Appellant’s testimony that there have not been any winnings is undermined by the trial court’s findings about the lack of his credibility and underreporting of his income, there is still a lack of evidence presented about what his gambling record looks like and whether $114,188.03 is an accurate reflection of the Appellant’s income from gambling. There is not substantial evidence to support the conclusion of $114,188.03 as income from gambling, especially where on the record there are deposits into gambling websites that could be further expenses. As a result, we hold that the trial court erred in its calculation of the Appellant’s income using the gambling winnings and also remand for further proceedings on this issue. Gambling winnings are an appropriate form of income that may be used to calculate the Appellant’s “actual income,” but the evidence presented here was not supported by substantial evidence and was therefore erroneous. On remand, the trial court shall determine the Appellant’s net gambling income, if any, by calculating gross receipts transferred out of betting venues into the Appellant’s accounts and subtracting the ordinary and necessary expenses required to produce that income—namely, the funds transferred from the Appellant’s accounts into those same venues during the relevant period. See Md. Code, Fam. Law § 12-201(b)(2). The court shall not limit its analysis to a subset of months that captures only withdrawals from betting accounts without the corresponding deposits into them. To the extent the Appellant had net gambling losses, those losses shall not be counted as income. To the extent the Appellant had net gambling gains, those gains shall be included in his actual income. The court shall also consider any tax returns available at the time of the remand proceedings, which may shed additional light on the Appellant’s gambling activity and overall income.
On the issue of the Appellant’s actual income, we will vacate the trial court’s order and remand for further proceedings to determine his actual income.
Award of Attorney’s Fees to Appellee
A. Parties’ Contentions
The Appellant argues that if the child support is vacated, then the attorney’s fee award should also be vacated. He argues that the awards are interrelated and therefore vacating one award should mean we simultaneously vacate the attorney’s fees award on remand.
The Appellee argues that the award of attorney’s fees is separate from the determination of child support and therefore it should not be vacated. The trial court had determined that the Appellant lacked substantial justification to bring and maintain this proceeding. Based on that determination, the trial court was obligated to give the Appellee child support.
B. Standard of Review
In a child custody proceeding, “[a]n award of attorney’s fees will not be reversed unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” David A. v. Karen S., 242 Md. App. 1, 23 (2019) (quoting Petrini v. Petrini, 336 Md. 453, 468, 648 A.2d 1016 (1994)); see also Ridgeway v. Ridgeway, 171 Md. App. 373, 386 (2006) (quoting Broseus v. Broseus, 82 Md. App. 183, 200 (1990)) (stating same).
C. Analysis
Maryland code permits the circuit court to award “the costs and counsel fees that are just and proper under all the circumstances” in a modification of child custody case. Md. Code, Fam. Law § 12-103(a)(1). To do so, the court shall consider “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.” Id. at § 12-103(b). If the court finds there was an absence of substantial justification and does not find good cause to the contrary, “the court shall award to the other party costs and counsel fees.” Id. at § 12-103(c).
The circuit court here found that there was an absence of justification for the Appellant to bring, maintain, and/or defend the proceeding. Elsewhere in the trial court’s ruling, when analyzing the fitness of the parents, Judge Acosta said there was:
. . . no testimony to support [the Appellant’s] fitness as a parent. Instead, multiple witnesses “all expressed concerns about [the Appellant’s] abusive behavior, continuous disparagement of [the Appellee] to the children, his poor relationship with the children, his lack of insight, and the detrimental impact these behaviors had on the children and their emotional well-being.
Additionally, the Appellant’s claim of contempt against the Appellee was denied by the trial court, and Judge Acosta noted that there was “no credible evidence” that the Appellee did any of the actions the Appellant accused her of, such as blocking him from contacting the children or attending their activities. The court found that in reviewing the financial status of the parties, the award of fees was “just and proper.” As a result, the court ordered the Appellant to pay the Appellee $70,000.00 of the Appellee’s attorney’s fees.
In St. Cyr v. St. Cyr, 228 Md. App. 163 (2016), this Court said:
[A] court’s determinations as to alimony, child support, monetary awards, and counsel fees involve overlapping evaluations of the parties’ financial
circumstances. The factors underlying such awards “are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.” Turner v. Turner, 147 Md. App. 350, 400 (2002). “Therefore, when this Court vacates one such award, we often vacate the remaining awards for reevaluation.” Id. at 401 (collecting cases); see also Hiltz v. Hiltz, 213 Md. App. 317, 322 n.3 (2013) (citing Doser v. Doser, 106 Md. App. 329, 335 (1995)); Murray v. Murray, 190 Md. App. 553, 572 (2010).
Because we are remanding this case for a reevaluation of the amount and duration of alimony, we will also vacate the interrelated orders regarding child support, the monetary award, and counsel fees.
St. Cyr, 228 Md. App. at 198 (citations altered). The Appellee argues that, notwithstanding any error in the child support calculation, the attorney’s fee award is independently compelled and cannot be disturbed. We agree in part. The trial court rested its fee award on two separate grounds: first, an absence of substantial justification for the Appellant to bring and maintain the proceeding, Md. Code, Fam. Law § 12-103(c); and second, the financial disparity between the parties, Md. Code, Fam. Law § 12-103(b). These grounds must be analyzed separately. The trial court’s finding of an absence of substantial justification rested on the Appellant’s conduct throughout these proceedings—his unsupported claims of fitness for custody, his unsubstantiated contempt petition, and the unrebutted evidence of abusive behavior toward the Appellee and the children. None of those findings are disturbed by this opinion. Because the absence-of-justification finding is untethered to the income calculation errors we identify above, the statutory mandate of § 12-103(c) remains operative: upon such a finding, “the court shall award to the other party costs and counsel fees.” That the amount of the Appellant’s income may be recalculated on remand does not deprive the fee award of its statutory foundation. Nevertheless, the second ground— the financial disparity between the parties—is inextricably tied to the Appellant’s recalculated income. The specific amount of attorney’s fees the court awarded, $70,000, was informed by its view of the parties’ relative financial circumstances, which in turn depended on the income figures we now vacate. We therefore vacate the fee award and remand for reconsideration of the appropriate amount of fees consistent with the recalculated income, while making clear that the trial court’s finding of an absence of substantial justification stands and continues to support a mandatory fee award under § 12-103(c) on remand.
conclusion
Accordingly, we vacate and remand the portions of the Circuit Court for Montgomery County’s February 21, 2024, Custody and Child Support Order concerning the amount of child support and arrearages and the payment of attorney’s fees.
FOOTNOTES
1 The Appellant’s questions, as originally presented, were:
I. Did the trial court err as a matter of law by ignoring the express language of the Agreement and construing it to require the Appellant to pay for expenses that the parties agreed would be paid by the Appellee, which interpretation was contrary to its plain meaning, contrary to contract principles, and unsupported in the record?
II. Did the trial court err as a matter of law by looking to the value of assets held by the parties in determining their ability to pay for private school tuition?
III. Did the trial court err by adopting wholesale the Appellee’s Proposed Conclusions and err as a matter of law in determining the Appellant’s income by (a) basing it on 2023 financial information instead of 2022 as required by the Agreement, (b) using “gross receipts” instead of “actual income” as required by the Code, and (c) improperly treating transfers as gambling income?
IV. Given that the child support award must be vacated, does the related attorneys’ fee award also need to be vacated?
2 Based on this order, since the Appellant had only been paying $2,100 in child support during the thirteen months of pending litigation, Judge Acosta calculated his arrears to be $93,210.00.
3 Witt v. Ristaino set out non-exhaustive factors for determining whether a child has a “particular educational need” to attend a private school. 118 Md. App. 155, 169–70 (1997). Those factors include (1) the child’s education history, (2) the child’s performance while in the private school, (3) the family’s history or tradition in attending a particular school, (4) whether the parents chose the school prior to the divorce, (5) any particular factor that may impact the child’s best interest, and (6) the parents’ ability to pay for the schooling. Id. at 170–71.
4 The Appellant also argued that the Appellee did not properly plead her request to modify child support because the Appellee never filed a motion to modify child support under Md. Code, Fam. Law § 12-104(a). Here, the Appellee’s Second Amended Answer sought the modification of child support. “[I]f a claim for relief is placed in the answer, the trial court can still adjudicate that claim as if it had been properly designated as a counterclaim, ‘if justice so requires.’” Lasko v. Lasko, 245 Md. App. 70, 78 (2020) (citing Md. Rule 2-323(g)) (finding that the answer in the case sufficiently set forth a claim for a monetary award when it said that the defendant “be granted all relief to which she may be entitled pursuant to the Family Law Article of the Annotated Code of Maryland”). Therefore, the request in the answer would have been sufficient. Beyond the answer, the Appellant’s own Petition to Modify Custody requested a modification. Additionally, the Agreement set out that modifications to child support would occur in 2023 and 2025 when they are reassessed. The trial court had the authority to determine whether the child support needed to be modified.
5 At the time Barton was decided, the maximum income in the statutory guidelines was $10,000 per month. The current statute has a maximum income of $30,000 per month. Md. Code, Fam. Law § 12-204(d)–(e).
6 The Child Support Guidelines show that the additional monthly expense for tuition was $3,407.08 a month. Given the difference in income, the Appellant was responsible for 84.3% of that total. His recommended child support came in at a total of $9,270, which was still well below his monthly income of $23,220. While this number may change on remand, as discussed in the issues below, the amount owed for tuition being added in still had the child support amount being less than in monthly income.
7 We address here whether the Appellant’s income arguments were preserved, finding that they are. Ordinarily, we will only decide issues when “it plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8–131(a). At oral arguments, the Appellant’s counsel said that she could not find a specific citation for preserving arguments relating to the rental income, but acknowledged that these arguments were in post-trial submissions. She acknowledged the issue as “potentially vulnerable for preservation purposes.” At trial, there was no objection to the Appellee’s conclusion in her oral closing arguments about these income amounts regarding gambling and the rental property. Instead, in the Appellant’s proposed findings of fact and law, the Appellant made arguments about both the rental income and gambling income. On the rental income, the Appellant had proposed a different level of expenses and proposed a rental income of $43,666.00. On the gambling income, the Appellant argued that the Appellee mischaracterized the withdrawals from accounts as income. These are the arguments that the trial court then considered when coming to its final verdict, and that the Appellant now argues makes before this Court. Therefore, these arguments should be preserved since the contention was raised in the arguments and passed upon by the trial court. Zellinger v. CRC Dev. Corp., 281 Md. 614, 620 (1977). We find that the Appellant’s proposed findings of fact and law sufficiently preserved this argument for our review.
8 The Appellee cites to five different potential incomes. First, the 2020 Agreement set out the actual income at $100,000. Second, the bank account applications from the Appellant reported an annual income between $100,000 and $200,000 in June of 2021. Third, the financial statement submitted for this case asserted a monthly income of $562.00 a month. Fourth, during closing arguments, the Appellant argued he only makes $23,000. Lastly, in the Appellant’s proposed findings of fact, he concluded that his income for 2022 “was, at most, $29,940.00.”
9 The Appellant’s Bank of America checking account had $293,512.53 in total spending between December 2022 and October 2023. The evidence showed these accounts were paid off every month. This comes out to a monthly average of $26,682.00, which was above the monthly average of $23,220 determined by the trial court. While this fact does weigh in favor of the Appellant’s income being higher than the trial court’s calculation, for the reasons discussed below the trial court did not have sufficient facts to support its conclusion, which is why we remand for further fact-finding.
10 The Appellant argued the trial court erred because it adopted the Appellee’s findings of fact verbatim on this issue and others. Trial courts are permitted to adopt the statements of facts and law developed by one of the parties. See Green v. Taylor, 142 Md. App. 44, 59 (2001) (“We see no error in the court’s adopting Plaintiff’s Memorandum as a method of elaborating on his factual findings and legal reasoning.”); see also Horne v. Horne, No. 483, Sept. Term 2022, 2023 WL 8519343, at *3 (Md. Ct. Spec. App. Dec. 8, 2023), cert. denied, 487 Md. 42 (2024) (“[W]e note that it is a common and widely accepted practice in Maryland (and elsewhere) for trial courts to review and rely upon proposed findings of fact and conclusions of law submitted by the parties.”).
11 Regarding the Appellant’s cleaning fees, the Appellee argues any error was harmless. The cleaning fees were $215 per contract, which totaled to $2,795 across the thirteen rentals in evidence. Given that the trial court deducted $29,338 in expenses, the Appellee argues the difference of $2,795 would have been harmless.
We agree with the Appellant that there was evidence showing that the cleaning fees were included in the total rent, as shown by the invoices entered into evidence. The Appellant then claims the cleaning fees directly related to the necessary and ordinary expense of a rental property. As we vacate on the calculation already, the trial court can analyze the leases further on remand to determine whether the cleaning fees should have been deduced as a necessary and ordinary expense.
12 The Appellant asks us to look at evidence outside the record, referring to hypothetical bank statements that had $50,000 more in transfers into the betting websites. As those statements are not in the record, the trial court cannot be considered to have been in error for not considering it, and we cannot consider those facts in this analysis. See Floyd v. Baltimore City Council, 241 Md. App. 199, 216 (2019) (quoting Massey v. State, 173 Md. App. 94, 125 (2007)) (“In a bench trial, the court may not rely on facts that are not in the record.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s order that mother’s husband have no unsupervised contact with three minor children, after he was charged with attempted sexual abuse of a child involving indecent communication, attempt to communicate indecent language and indecent language, and pleaded guilty to indecent language.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
children.2 The parties entered into a Consent Order in July 2019, which granted Mother full legal custody and provided that the children would reside primarily with Mother during the school year and with Father during the summer. The consent order also provided that Father would pay $800 per month. The court granted Father a downward deviation of $203 per month from the amount recommended by child support guidelines due to Mother’s anticipated relocation to Georgia as a result of the military deployment of her husband, Mr. Vanbenthuysen.
Appellant Brieanna Vanbenthuysen (previously Burkindyne and Engle) (“Mother”) and Appellee Alexander Engle (“Father”) are parents to three minor children. Father initiated proceedings to modify custody based on criminal charges and related allegations against Mother’s husband, David Vanbenthuysen (“Mr. Vanbenthuysen”). Around the same time, Mother filed a motion to modify child support based on the parties’ changed income.
Mother now appeals the resultant order for modification of custody and child support, wherein the Circuit Court for Baltimore County ordered that Mother’s husband have no unsupervised contact with Mother’s minor children and denied Mother’s motion to modify child support.
Mother presents two questions for our review, which we have rephrased as follows:
1. Did the circuit court abuse its discretion when it ordered that Mr. Vanbenthuysen cannot have unsupervised contact with the minor children?
2. Did the circuit court abuse its discretion when it found there was no material change in circumstances justifying a modification of child support?1
We shall answer both questions in the negative, and therefore affirm.
BACKGROUND
Mother and Father married in June 2014 and divorced in November 2018. The parties are parents to three minor
In September 2023, Mr. Vanbenthuysen was subject to criminal charges in a court-martial proceeding before the Third Judicial Circuit of the United States Army Trial Judiciary in Fort Benning (formerly Fort Moore from 2023–2025), Georgia. Mr. Vanbenthuysen was charged with attempted sexual abuse of a child involving indecent communication, attempt to communicate indecent language, and indecent language, based on messages he allegedly sent in September 2022. Mr. Vanbenthuysen pleaded guilty to count three, indecent language. As a result, counts one and two were dropped, and Mr. Vanbenthuysen was sentenced to 159 days confinement and a Bad Conduct Discharge3 from the military.
Based on what he viewed as a material change in circumstances, Father filed a motion to modify custody in July 2024. Therein, Father alleged in relevant part that Mother was dismissive of Mr. Vanbenthuysen’s mental health issues to the detriment of the minor children; that Mother did not intervene when Mr. Vanbenthuysen had employed “inappropriate and unreasonable” corporal punishment; and that Mother’s reason for relocation to Georgia—namely, her husband’s military employment—was no longer a relevant factor and thus should be reassessed. Father also argued that he had materially changed his circumstances such that he was better suited to have custody of the minor children. As a result, Father asked for joint legal and physical custody of the children, where the children would reside primarily in Maryland, and for a resultant reallocation of child support.
Meanwhile, in February 2024, Mother filed a petition for contempt alleging that Father had failed to pay a portion of ordered child support. Father responded in April 2024 denying these allegations. This dispute was resolved by a Consent Order in July 2024, wherein Father was ordered to pay $1,980 for medical expenses and attorney fees. Mother then filed a motion for modification of child support on May 9, 2024, based on the parties’ changed income since the July 2019 order. Father responded, denying any substantial change in the parties’ income.
The circuit court held a hearing on both issues over three days, from September 16 to 18, 2025.
Mother testified at the hearing that she and Mr. Vanbenthuysen separated in 2023 and that he removed his belongings from her home in January 2024. However, a private investigator employed by Father submitted evidence that Mr. Vanbenthuysen still appeared to reside at the home as of May 2025. Additionally, Mother produced a cell phone bill during discovery, which Father entered into evidence at the hearing, that indicated Mother and Mr. Vanbenthuysen stayed in frequent contact. Mother also testified that Mr. Vanbenthuysen remained in frequent contact with the children via telephone and was “still more of a father than [Father] is to those children[.]”
In a Decision and Order dated October 21, 2025, the circuit court found that Father demonstrated a material change in circumstances sufficient to support an inquiry into the custody agreement. The court noted that Father had materially improved his circumstances such that he “seems to be more capable of being an effective parent than he previously was.” However, the court also noted that Mother and Father continued to struggle with communication and “seem to be unwilling to put aside their animosity towards each other and their need to score parenting points against the other to be effective co-parents.” The court expressed concern specifically with the charges in the military courts against Mr. Vanbenthuysen.
The court found that the charges to which Mr. Vanbenthuysen admitted were “sufficiently concerning” to support a minor change in custody. Based on its analysis of the relevant factors, the court granted joint legal custody to both Mother and Father, granting Mother tie-breaking authority, and placed restrictions on Mr. Vanbenthuysen’s interactions with the minor children, ordering that any such conduct be supervised. The court also noted that although the statutory factors listed in Maryland Code, Family Law (“FL”) § 9-201 did not take effect until after the hearing4, the outcome would have been the same under this analysis.
The court then denied Mother’s motion to modify child support, finding that Mother failed to establish “a sufficient legal or factual basis for the relief requested.”
Mother now appeals. Mother does not challenge the award of joint legal custody to Father, but challenges the restrictions on unsupervised contact between Mr. Vanbenthuysen and the minor children and the denial of her motion to modify custody.
DISCUSSION
Standard of Review
When reviewing a child custody decision, we examine the circuit court’s factual findings for clear error, while any errors of law will generally require remand for further proceedings unless the error was harmless. See In re Yve S., 373 Md. 551, 586 (2003). We review the trial court’s ultimate conclusions in child custody determinations for abuse of discretion. Id. “[C]hild support orders are within the sound discretion of the trial court.” Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013). The decision to modify a child support order is
likewise within the trial court’s broad discretion, provided the decision is not arbitrary or based on incorrect legal principles. Walker v. Grow, 170 Md. App. 255, 266 (2006).
The trial court’s findings “are not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (internal quotations omitted). The trial court does not abuse its discretion unless “no reasonable person would take the view adopted by the [trial] court,” or “when the court acts without reference to any guiding rules or principles[.]” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal quotations omitted).
“The light that guides the trial court in its determination, and in our review, is ‘the best interest of the child standard,’ which ‘is always determinative in child custody disputes.’” Santo v. Santo, 448 Md. 620, 626 (2016) (quoting Ross v. Hoffman, 280 Md. 172, 178 (1977)). “[A]n appellate court does not make its own determination as to a child’s best interest; the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.” Gordon v. Gordon, 174 Md. App. 583, 637–38 (2007).
I. The circuit court properly exercised its discretion when it ordered that any contact between Mr. Vanbenthuysen and the minor children must be supervised.
A. The Parties’ Contentions
Mother asserts that the circuit court erred when it found that Mr. Vanbenthuysen’s criminal charges constituted a material change in circumstances, and that the court was not at liberty to rely solely on these charges to measure parental fitness, drawing an analogy to Davis v. Davis and its progeny, wherein our Supreme Court held that a parent’s adultery was not by itself a measure of parental unfitness but instead “should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.” 280 Md. 119, 127 (1977).
Mother further argues that the circuit court drew an improper comparison between the circumstances in this case and those in Jacob R. v. Nadine Q., 141 A.D.3d 772 (N.Y. App. Div. 3d Dep’t 2016), a New York case where the court held that a “report concerning sexual abuse of the child in the mother’s household and the arrest of the mother’s boyfriend constituted a change in circumstances compelling an inquiry into the best interests of the child[.]” 141 A.D.3d at 773. Mother submits that the court should not have relied on this case to support the proposition that “allegations of a sexual nature against a parent’s spouse” constitute a material change in circumstances that warrants an inquiry into the best interests of the children.
B. Analysis
When evaluating a request for modification of custody, courts employ a two-step analysis. “First, the circuit court must assess whether there has been a ‘material’ change in circumstance.” McMahon v. Piazze, 162 Md. App. 588, 593–94 (2005) (citing Wagner v. Wagner, 109 Md. App. 1, 28 (1977)). If the court finds that there has been a material change in
circumstances, “the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. at 594.
This court has recognized, however, that these two considerations are often interrelated. “In the more frequent case, . . . there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child. Thus, the question of ‘changed circumstances’ may infrequently be a threshold question, but is more often involved in the ‘best interest’ determination[.]”
McCready v. McCready, 323 Md. 476, 482 (1991).
The circuit court has broad discretion in determining child custody “so that it may accomplish the paramount purpose of securing the welfare and promoting the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 302 (1986). In Taylor, our Supreme Court set forth a non-exhaustive list of criteria courts must consider in child custody determinations, incorporating much of a similar non-exhaustive list contemplated by this court in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978). The Sanders factors include: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. at 420.
The Taylor factors include: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; and (13) benefit to parents. 306 Md. at 304–11.
As the circuit court noted, the Sanders-Taylor factors were codified in FL § 9-201, which took effect on October 1, 2025, shortly after the hearing on the issues in this case. The statute further requires that “[t]he court shall articulate its findings of fact on the record or in a written opinion, including the consideration of each factor listed [in the statute] and any other factor that the court considered.” FL § 9-201(b). At the time of the hearing and the circuit court’s order in this case, FL § 9-201 had not yet taken effect. Accordingly, we assess the circuit court’s ruling based on the case law that applied at the time. Prior to the effective date of FL § 9-201, the court was required to assess the Sanders-Taylor factors on the record, along with any other factors the court found relevant.
“When considering the Sanders-Taylor factors, the trial court should examine ‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing any single factor to the exclusion of all others.” Jose v. Jose,
237 Md. App. 588, 600 (2018) (quoting Best v. Best, 93 Md. App. 644, 656 (1992)).
Here, the circuit court found that there had been a material change in circumstances primarily based on criminal charges in a court-martial proceeding against Mother’s husband, Mr. Vanbenthuysen, and his subsequent Bad Conduct Discharge from the military. Mr. Vanbenthuysen was charged with three violations of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 9345 : (1) Attempted Sexual Abuse of a Child Involving Indecent Communication, (2) Attempt to Communicate Indecent Language, and (3) Indecent Language. In support of Count One, the Statement of Charges alleged that Mr. Vanbenthuysen “did, at or near Fort Benning, Georgia,[] between on or about 21 September 2022 and on or about 29 September 2022, attempt to commit a lewd act upon a child who had not attained the age of 16 years, by intentionally communicating to [redacted] indecent language,” the substance of which was then detailed, “with an intent to gratify the sexual desire of Staff Sergeant David C. Vanbenthuysen.”
In support of Count 2, the Statement of Charges alleged that Mr. Vanbenthuysen “did, at or near Fort Benning, Georgia, between on or about 21 September 2022 and on or about 29 September 2022, attempt to in writing, communicate to [redacted] a child he believed to be under the age of 16 years, certain indecent language,” then detailing the substance of the communications, “and that such conduct was of a nature to bring discredit upon the armed forces.”
Finally, in support of Count Three, the Statement of Charges alleged that Mr. Vanbenthuysen “did, at or near Fort Benning, Georgia, on or about 28 September 2022, communicate, in writing, to [redacted] certain indecent language,” then detailing the substance of the communications, “and that such conduct was of nature to bring discredit upon the armed forces.”
Mr. Vanbenthuysen pleaded guilty to Count Three. As a result, Counts One and Two were dropped, and Mr. Vanbenthuysen received a Bad Conduct Discharge from the military. In her brief, Mother characterizes Mr. Vanbenthuysen’s misconduct as “sending an explicit text message to an adult,” and implicitly reinforces this assertion by comparing Mr. Vanbenthuysen’s conduct to the “adultery” contemplated in Davis. This effort to underplay the allegations against Mr. Vanbenthuysen does Mother no credit. The circuit court found “the conduct to which [Mr. Vanbenthuysen] admitted . . . sufficiently concerning” to support an inquiry into the best interests of the children. This is a reasonable conclusion based on evidence in the record, and thus the circuit court’s findings are not clearly erroneous, nor did the circuit court abuse its discretion in so finding.
The court relied not only on the New York case Jacob R. v. Nadine Q., 141 A.D.3d at 772, but also on Azizova v. Suleymanov, 243 Md. App. at 347. In Azizova, citing to our Supreme Court’s decision in Boswell v. Boswell, 352 Md. 204 (1998), this court opined that, when assessing “whether a particular issue related to a parent presents harm to the health and welfare of a child or affects the child’s development, and whether there is a nexus between the parental issue and
any adverse impact on the child’s overall well-being[,]” 243 Md. App. at 347, courts are not required to “sit idly by and wait until a child is actually harmed by liberal unrestricted visitation. If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child’s future best interests and restrict visitation.” Id. at 350 (quoting Boswell, 352 Md. at 236).6
The court here noted that “[t]he Court is not ‘flipping’ custody because that is not warranted under the circumstances. The Court is imposing restrictions on Mother’s husband’s interactions with the parties’ children and modifying legal custody based on the consideration of the [Sanders-Taylor] factors listed below.” The court then laid out and analyzed all of the factors contemplated by the courts in Sanders and Taylor. In relevant part, the court found:
1) Fitness of the parents
• Both parties are fit parents
• Court has some concerns about the children interacting substantially with Mother’s husband that may affect her ability to be a fit parent
• Factor favors relatively minor adjustment to custody arrangement for protection of children
2) Character and reputation of the parties
• Parents are inherently decent people who do not interact well with each other
• Mr. [Vanbenthuysen] has a “bad conduct” discharge from the United States Army
• Factor favors relatively minor adjustment to custody arrangement for protection of children […]
8) Residences of parents and opportunity for visitation
• Mother resides in Georgia
• Father resides in Maryland
• Both have suitable homes
• Court has concerns about Mother’s husband having substantial interaction with children
• Limited opportunity for visitation
• Joint physical custody not practical
• Factor favors relatively minor adjustment to custody arrangement for protection of children
The court also noted that the Sanders-Taylor factors weighed in favor of granting Father an increased role in legal custody.
Ultimately, the court found that the factors supported a relatively minor change in the custody arrangement: the court concluded that it was in the children’s best interest “for Mother to continue to have primary physical custody with specific restrictions on her husband’s interactions with the children, specifically that Mother not allow him to have unsupervised contact with the children. The Court also concludes that it is in the best interests of the children for Mother and Father to have joint legal custody, with Mother having tie-breaking authority.”
Accordingly, we hold that the circuit court did not abuse its discretion when it modified the custody agreement to restrict contact between the minor children and Mr. Vanbenthuysen.
II. The circuit court properly exercised its discretion when it did not modify child support.
A. The Parties’ Contentions
Mother argues that child support should be modified based on material changes to the parties’ financial situations and the needs of the children. Mother submits that the circuit court erred by failing to make sufficient findings on the record to support the denial of a modification, and that such findings were required under Ley v. Forman, 144 Md. App. 658 (2002).
Father responds that the burden was on Mother to prove a material change in circumstances, and she failed to do so. Thus, the court was not required to proceed past that step in its analysis.
B. Analysis
“Parents of a minor child are jointly and severally responsible for the child’s support, care, nurture, welfare, and education[.]” Matter of Marriage of Houser, 490 Md. 592, 607 (2025) (citing FL § 5-203(b)(1)) (internal quotations omitted). “Because the obligation is to support the child, Maryland courts have long recognized that the right to child support is a right held by the minor child—not a right held by the parent to whom the child support is paid.” Id. “[I] t is presumed that the parent in whose custody the child resides fulfills his or her obligation of support directly; the other parent’s support obligation then must be translated into dollars and paid to the custodial parent, for the child’s benefit.” Knott v. Knott, 146 Md. App. 232, 248 (2002) (internal citations omitted).
FL § 12–104(a) provides that a court has discretion to modify an award of child support if there has been “a material change in circumstances, needs, and pecuniary condition of the parties from the time the court last had the opportunity to consider the issue.” Petitto v. Petitto, 147 Md. App. 280, 306 (2002) (quoting Kierein v. Kierein, 115 Md. App. 448, 456 (1997)). “The ‘material change of circumstance’ requirement limits the circumstances under which a court may modify a child support award[.]” Wills v. Jones, 340 Md. 480, 488 (1995). The change must be “relevant to the level of support a child is actually receiving or entitled to receive” and “of a sufficient magnitude to justify judicial modification of the support order.” Id. at 488–89. The party seeking the modification has the burden of proving that a material change of circumstance has occurred. Leineweber v. Leineweber, 220 Md. App. 50, 62 (2014).
“[A]lthough the court has the power to modify [child support] provisions, . . . it ought not do so unless it finds (1) that the provision in question does not serve the child’s best interest and (2) the proposed modification does.” Ruppert v. Fish, 84 Md. App. 665, 676 (1990). “A trial court’s decision to modify a child support award will not be disturbed on appeal unless the court acted arbitrarily or its judgment was clearly erroneous.” Petitto, 147 Md. App. at 307 (internal quotations omitted).
Here, the circuit court denied the motion to modify child support because the court found that Mother did not establish “a sufficient legal or factual basis for the relief requested.” The court did not elaborate, which Mother
interprets as impermissible under Ley, 144 Md. App. at 665. In Ley, this court held that the trial judge erred in concluding there was a material change in circumstances based on “approximations and estimates” instead of making specific findings of fact regarding the parties’ incomes. Id. Pursuant to FL § 12–104(a), a court may modify a child support order only if there has been a material change in circumstances, and our case law elaborates that the burden to prove such a change is on the party seeking the modification. Leineweber, 220 Md. App. at 62. Here, the circuit court found that Mother presented insufficient evidence to show a material change in circumstances at all. Because the court found no material change in circumstances, there was no change in
circumstances upon which to elaborate. Thus, the circuit court did not err when it did not elaborate further on its decision not to modify the existing child support order. Accordingly, the circuit court did not abuse its discretion when it elected not to modify child support.
CONCLUSION
We hold that the circuit court properly exercised its discretion in ordering that any contact between Mr. Vanbenthuysen and the minor children must be supervised, and in electing not to modify child support. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 Mother phrased her questions as follows:
FOOTNOTES
1. The trial court abused its discretion when ordering the minor children to have no contact with David Vanbenthuysen (step-father).
2. The trial court abused its discretion in not modifying child support.
2 The parties are biological parents to two of the minor children, while the parties agreed as part of their July 2019 Consent Order that Father would be considered the de facto parent to Mother’s child from a previous relationship.
3 A Bad Conduct Discharge is a punitive discharge from the military imposed by sentence of a court-martial. See Manual for Courts-Martial United States (2024 ed.) R.C.M. 1003(8)(C).
4 FL § 9-201 took effect on October 1, 2025, while the hearing in this case took place from September 16-18, 2025. As we will discuss below, FL § 9-201 codifies into statute substantially the same factors our courts previously considered through their origin in case law.
5 Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934 provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. As used in the preceding sentence, the term “crimes and offenses not capital” includes any conduct engaged in outside the United States, as defined in section 5 of title 18, that would constitute a crime or offense not capital if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, as defined in section 7 of title 18.
6 Azizova and Boswell primarily hold that a circuit court abuses its discretion when it bases its custody or visitation determinations on personal beliefs, biases, or stereotypes rather than the child’s best interest.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 7 (2026)
Default judgment; service; proof
Joseph Neil v. Amanda Watroba
No. 1947, September Term 2024
Argued before: Reed, Shaw, Eyler, James (retired; specially assigned), JJ.
Opinion by: Reed, J.
Filed: April 27, 2026
The Appellate Court affirmed the Anne Arundel County Circuit Court’s denial of father’s motion to vacate a default judgment that adjudicated him the father of a child born to mother, with a resulting order to pay child support, on the basis of defective service. The court did not err or abuse its discretion by concluding that father failed to rebut the presumption that he was served.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
court to award her sole legal and physical custody of B, order Appellant to pay child support, and award attorneys’ fees.
On January 30, 2014, a private process server filed a return of service averring that she personally served Appellant on January 14, 2014, at his place of employment, located at 100 White Marsh Park Drive, Bowie, Maryland. The person served was a Black male, approximately 30 years old, who was 6’1” tall and weighed approximately 225 pounds. Appellant did not file an answer.
On May 14, 2014, Appellee filed a request for an order of default against Appellant. The court entered an order of default five days later.
On July 21, 2014, the same private process server averred that she personally served Appellant with the trial subpoena for the default hearing at his home in Chevy Chase, Maryland. Her affidavit of service described the person served as a Black male, 5’9” tall, weighing 190 pounds.
In 2024, Joseph Neil (“Appellant”) filed—in the Circuit Court for Anne Arundel County—a motion to vacate a 2014 default judgment that adjudicated him the father of a child born to Amanda Watroba (“Appellee”) and ordered him to pay child support. Appellee opposed the motion and moved for fees under Rule 1-341. The circuit court held a hearing, denied the motion, found that Appellant maintained the proceeding without substantial justification, and awarded Appellee attorneys’ fees. Appellant now appeals, presenting five questions,1 which we combine and rephrase as two:
I. Did the circuit court err or abuse its discretion by denying the motion to vacate?
II. Did the circuit court err or abuse its discretion by awarding Appellee attorneys’ fees?
For the following reasons, we answer “No” to these questions and affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The 2014 Judgment
On December 13, 2013, Appellee, through counsel, filed a complaint for custody and related relief in the circuit court. She provided an address for Appellant in Chevy Chase, Maryland. She alleged that she and Appellant were the parents of a daughter, B, born that same month. Since her birth, B had lived with Appellee. Appellant had “expressed no interest in the minor child” and had “ignore[d] [Appellee’s] pregnancy.” Appellee asked the
On July 25, 2014, a family law magistrate held a default hearing which Appellee attended with counsel, and Appellant did not attend. The magistrate heard testimony and admitted evidence bearing upon paternity, the parties’ income, and custody and made the several pertinent findings, including that the parties were in a relationship for 2 months, ending March 13, 2013. Notably, the magistrate further found, based upon Appellee’s testimony “as to the parties’ relationship and her testimony that she was not with anyone else when the child was conceived,” that Appellant was B’s father.
Appellee was employed, earning $2,025 per month, and incurred monthly expenses totaling $541.67 for daycare and $62.90 for B’s health insurance. Appellant was a personal trainer and owned two businesses serving individuals and corporate clients, including Comcast, Pepco, Kaiser Permanente, and Sunrise Senior Living. He maintained two apartments—one in Largo, Maryland and one in Chevy Chase, Maryland—,and owned 4 cars. Based upon financial and business records and expert testimony from a witness in the field of personal and corporate wellness, the court found Appellant earned $100,000 annually.
The magistrate recommended that sole custody be awarded to Appellee; that Appellant be adjudicated B’s father; and that he be ordered to pay $1,569 per month in child support. The magistrate further recommended an award of $4,000 in attorneys’ fees. The court entered a default judgment consistent with those findings on September 4, 2014 (“the 2014 Judgment”). No appeal was taken from that judgment.
The Motion to Vacate
Nearly a decade later, on March 6, 2024, Appellant filed a verified motion to revise and vacate the 2014 Judgment under Rule 2-535(b), which empowers the court to “exercise revisory power and control over [a] judgment [at any time] in case of fraud, mistake, or irregularity.” The basis for his motion was a defective service.
Appellant asserted that discrepancies in the physical description of him on the return of service for writ of summons and that the trial summons supported his position that he was not served with either. He alleged that in 2014 he was 5’9” tall and weighed 185 pounds. In contrast, the January 14, 2014, affidavit of service described him as 6’1” and 225 pounds. The return of service also stated he had been served at his place of employment, but he alleged the address where he was alleged to have been served was a Sport Fit gym and that he never was employed by that business. He also denied having been served with the trial subpoena for the default hearing, which provided a description more consistent with his physical attributes.
Had he been served, Appellant asserted he would have contested paternity and would have contested the evidence of his income, which he alleged was much lower than the income found by the court.2He asserted that he and Appellee met while she was employed at the mall, that she was seeing multiple men at that time, that they had one sexual encounter, and that they never spoke again after that day.
Appellee opposed the motion to vacate and requested an award of attorneys’ fees under Rule 1-341. She asserted that Appellant worked with clients at the Sport Fit gym where he was served. She attached to her opposition evidence that in 2020, Appellant was aware of B, spent time with her, pressured Appellee to “cancel” the child support case, and told B he would be able to spend more time with her if he and Appellee were able to “sort out” the child support matter.
The Evidentiary Hearing
On August 19, 2024, the circuit court held a consolidated hearing on Appellant’s motion to vacate and Appellee’s request for fees. The court directed the parties to first present evidence on the issue of whether Appellant was served in 2014.
Appellant testified that when he had been involved in court cases in the past, he had been served with a subpoena by the sheriff directing him to appear in court on a particular day. He said he learned about the child support order in this case when he appeared in the Circuit Court for Prince George’s County relative to a different child support case and learned that a portion of his payments in the Prince George’s County case were being diverted to pay the child support arrears in this case.
He testified that he did not have contact with Appellee between 2013 and 2020, when she reached out to his mother. He then met with Appellee and B, along with his mother. Appellee informed him at that time that she had filed a child support case against him. Appellee told Appellant that she would “end it.”
He testified that in 2013 and 2014, he taught classes once or twice a week at the Sport Fit gym in Bowie, but never was employed directly by the business. He was part of a group called “Men of Zumba” and hosted Zumba parties at that location.
He was shown pictures of himself from social media in that time frame and acknowledged that because he is a body builder, his “weight is deceptive.” He claimed that he did not remember where he was living in July 2014 when the trial subpoena was served but acknowledged having lived at the Chevy Chase address at some point. He also acknowledged that he did not appear in court for another child support case despite having been served, resulting in a body attachment being issued for him.
Appellee testified that she only spoke to Appellant once during her pregnancy—when she ran into him at the gym when she was 11 weeks pregnant. She did not contact him during the pendency of her child custody and child support case, instead letting her attorney handle all communications.
Appellee’s counsel moved for judgment, arguing that Appellant was not credible in his assertion that he was not served in 2014.
Appellant’s counsel responded that the discrepancy between the descriptions of the person served in the first affidavit of service and the second affidavit of service was evidence that Appellant was not served. Counsel emphasized that it was the same process server and that there was no evidence that Appellant’s height or weight changed in the interim.
Counsel for Appellee replied that individuals dress differently when they are at the gym and when they are at home, which could explain the process server’s different estimates of Appellant’s weight. Given Appellant’s testimony that his weight can be “deceptive,” the weight discrepancy, standing alone, was not evidence that he was not served. The 4-inch height discrepancy, in counsel’s view, was a “non-issue.”
The Court’s Ruling
The court ruled in favor of Appellee. It explained that there was a “presumption of regularity” when a return of service is filed. The process server stated that she served Appellant, personally, at two different locations. The evidence established that the first location—a Sports Fit gym in Bowie— was a place he taught classes in 2014 and the second location–an apartment in Chevy Chase—was a place he had lived, though he could not remember the dates of his residency there. The court reasoned that Appellant would “have to be one of the unluckiest persons in the world if at two different times” a process server mistakenly served someone other than him and that person accepted service on his behalf.
The court did not credit Appellant’s testimony. It emphasized that Appellant claimed not to know about the child support case until 2023 despite having discussed it with Appellee in 2020. The court reasoned that the discrepancies between the physical descriptions of the person served in the affidavits of service were “within the standard deviation[.]” The disparity between the descriptions also supported an inference, in the court’s view, that an individual was not intentionally impersonating Appellant. The court found Appellant had “not come close to meeting [his] burden of proof that … was fraud, mistake or irregularity[,]” and denied the motion to vacate with prejudice.
The court then turned to the request for attorneys’ fees. Appellee testified briefly about the fees paid to her attorney to defend against the motion to vacate. The court ruled that
Appellant filed his motion to vacate without substantial justification and awarded Appellee all her fees.
On November 6, 2024, the court entered an order to this effect. This timely appeal followed.
DISCUSSION
I.
Ordinarily, this Court reviews a “circuit court’s decision whether to grant a motion to revise a judgment pursuant to Rule 2-535(b) under an abuse of discretion standard.” Peay v. Barnett, 236 Md. App. 306, 315 (2018). “The existence of a factual predicate of fraud, mistake, or irregularity, necessary to support vacating a judgment under Rule 2-535(b), is a question of law.” Wells v. Wells, 168 Md. App. 382, 394 (2006). “If the factual predicate exists, the court’s decision on the motion is reviewed[,]” see, id., to determine “whether the trial court erred as a matter of law or abused its discretion in denying the motion.” In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 475 (1997).
The terms “fraud, mistake, or irregularity” as used in Rule 2-535(b) are “narrowly defined and strictly applied . . . in order to ensure finality of judgments.” Pelletier v. Burson, 213 Md. App. 284, 290 (2013) (quoting Thacker v. Hale, 146 Md. App. 203, 217 (2002)). A mistake “refers only to a ‘jurisdictional mistake.’” Peay, 236 Md. App. at 322 (citing Chapman v. Kamara, 356 Md. 426, 436 (1999)) (further citation omitted). A jurisdictional mistake typically occurs “when a judgment has been entered in the absence of valid service of process; hence the court never obtains personal jurisdiction over a party.” Chapman, 356 Md. at 436 (internal citation and quotation marks omitted)).
In this case, Appellant asserted he was not served with process. “The determination [of] ‘[w]hether a person has been served with process is essentially a question of fact.’” Wilson v. Md. Dep’t of Env’t, 217 Md. App. 271, 286 (2014) (quoting Harris v. Womack, 75 Md. App. 580, 585 (1988)). A return of service filed with the court is prima facie evidence of proper service that, if unrebutted, is sufficient grounds for exercising personal jurisdiction over the person served. Maryland courts recognize that “a proper official return of service is presumed to be true and accurate until the presumption is overcome[.]” Weinreich v. Walker, 236 Md. 290, 296 (1964).
Significantly, “the mere denial of personal service by him who was summoned will not avail to defeat the sworn return of the official process server.” Id.; see Wilson, 217 Md. App. at 285 (stating that “a mere denial of service is not sufficient” to overcome “the presumption of validity” arising from a return of service). When a denial of service “‘is not supported by corroborative testimony or circumstances . . . the attempted impeachment of the official return must fail.’” Weinreich, 236 Md. at 296 (quoting Weisman v. Davitz, 174 Md. 447, 451 (1938)). Consequently, “the return of service of process is presumed to be true and accurate and a mere denial by a defendant, unsupported by corroborative evidence or circumstances, is not enough to impeach the return of the official process server[.]” Ashe v. Spears, 263 Md. 622, 627-28 (1971).
Here, the record contains a facially valid return of service showing that Appellant was personally served by hand-delivery on January 14, 2014, at 8:20 p.m., at a Sport Fit gym in Bowie. The
only evidence presented to rebut the presumption of regularity was that Appellant was not “employed” by the Sport Fit gym and that the process server described him as 4 inches taller and 40 pounds heavier than he testified that he was at that time.3The evidence established, however, that Appellant taught classes at the Sport Fit gym and that, by his own admission, his weight was “deceptive” because he was extremely muscular. The court reasoned that the difference in the descriptions of Appellant’s physical features in the affidavit of service filed for the original complaint and the affidavit of service filed for the trial summons did not support a finding that two different people were served, but rather reflected normal deviations in perception of height and weight by the process server.4The court also noted that the discrepancies militated against any suggestion that the same individual was impersonating Appellant to commit fraud on the court or that the process server falsified the returns.
Appellant contends the court failed to consider the “obvious” possibility that the process server made a mistake and served the wrong person at the gym. It was Appellant’s burden, however, to overcome the presumption that service was made. He presented no evidence to show he was not present at the Sport Fit gym on January 14, 2014, or to show that an individual other than him mistakenly accepted service on his behalf. Absent such evidence, his speculation does not amount to corroborative evidence. On this record, the court did not err or abuse its discretion by concluding that Appellant failed to rebut the presumption that he was served.
Having concluded Appellant did not make a threshold showing of mistake under Rule 2-535(b), the court did not need to reach the issue of whether Appellant had a meritorious defense to the complaint. Likewise, the court was not required to address waiver. Appellant draws upon a two-part test for waiver from our decision in Peay, 236 Md. App. at 330-31.
In Peay, the circuit court found the defendant had not been properly served because a process server left the summons and complaint at the defendant’s apartment with the defendant’s sister, who did not reside in the apartment. Id. at 323. The circuit court nevertheless ruled that the defendant failed to diligently move to set aside the default judgment and denied her motion to vacate it. Id. at 323-24. On appeal, we held that where a defect in service of process occurs, the “diligence and good faith test” is inapplicable, and thus, the circuit court erred by denying the motion to vacate on that basis. Id. at 324. We nevertheless remanded the case to the circuit court for a determination of whether the defendant implicitly waived her right to object to the trial court’s personal jurisdiction over her. Id. at 327-331.
Here, in contrast, because the court concluded there was no defect in service and denied the motion to vacate, there was no need for the court to consider if denial was also appropriate on the alternative ground that Appellant’s subsequent conduct amounted to an implicit waiver of his right to object to the court’s personal jurisdiction over him. 5
II.
Maryland Rule 1-341 sets forth “the remedial authority of the court in any civil action to require a party to pay an opposing party’s attorney’s fees for unjustified proceedings.” Christian v. Maternal-Fetal Med. Assocs. of Md., LLC, 459 Md. 1, 18 (2018). It states:
In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.
Md. Rule 1-341(a). Before awarding attorneys’ fees, the circuit court must make two findings: “(1) that the party’s conduct during a proceeding was without substantial justification or done in bad faith; and (2) that the party’s action warrants the assessment of fees.” Charles v. Charles, 265 Md. App. 631, 658 (2025) (citing Christian, 459 Md. at 20-21). “We review the first finding for clear error or error in the application of the law.” Id. “We then apply an abuse of discretion standard to the second finding that the party’s bad faith or lack of substantial justification warranted a grant of attorneys’ fees.” Id.
In her motion for fees, Appellee asserted that Appellant made demonstrably false allegations in his motion to vacate, including stating he had no knowledge of B’s birth until 2023, that he had no knowledge of the child support case until 2023, and that he had not spoken to Appellee since 2013. The evidence
at the hearing further established that Appellant’s allegation that he never was employed by the Sports Fit gym was, at best, disingenuous as the evidence established he taught classes at that gym in 2014.
The trial court ruled the motion was “specious” because beyond the mere denial that he was served, Appellant produced no evidence to satisfy his burden to impeach the return of service. Concluding the case represented a quintessential unjustified proceeding, it determined to award Appellee all her fees.
Appellant contends this was error for two reasons. First, he contends there was no evidence of bad faith on Appellant’s part. Second, he argues that because the court failed to permit him to fully present his case demonstrating his meritorious defense to the income determination in the child support calculation, it denied him the opportunity to show good faith.
The short answer to Appellant’s contentions is that the trial court based its ruling on lack of substantial justification, not bad faith. Because there was competent and material evidence in the record to support the trial court’s finding that Appellant was unjustified in moving to vacate the judgment based on nothing more than a discrepancy in the physical description of him in the affidavit of service, the court’s finding was not clearly erroneous. The court also did not abuse its broad discretion by determining that an award of fees was justified.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS
FOOTNOTES
1 The questions as posed by Appellant verbatim are:
1. Did the Circuit Court error by failing to hear all evidence relevant to the Motion to Vacate?
2. Did the Circuit Court error by determining that Mr. Neil could not “be an ostrich in the sand”?
3. Did the Circuit Court error by determining that inconsistent affidavits of service are by law more reliable?
4. Did the Circuit Court error by determining that inconsistent affidavits of service are to be taken at face value for service verification but for no other description or purpose?
5. Did the Circuit Court error by awarding attorneys’ fees?
2 Appellant alleged that his income was determined to be just $25,980 in a child support case in Prince George’s County around the same time.
3 We note that Appellant did not corroborate this with proof of his height or weight, such as his driver’s license.
4 Appellant argues in his brief that Rule 2-121 requires a description of the person served and, consequently, that the description should be entitled to great weight. He is mistaken.
Rule 2-126 governs the return of service. It requires that the process server include “a description of the individual served and the facts upon which the individual making service concluded that the individual served is of suitable age and discretion” only if service is made under Rule 2-121(a)(2). Md. Rule 2-126(a)(1). Rule 2-121(a)(2) applies when a process server leaves “a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion.” (Emphasis added.) That is not what occurred here. The process server served Appellant directly by hand delivery. Under those circumstances, the return of service was required to include “the name of the person served, the date, and the particular place and manner of service.” Md. Rule 2-126(a)(1).
5 To the extent that the circuit court’s comments that Appellant could “not be an ostrich in the sand” reflected consideration of implicit waiver, it was unnecessary to the court’s ruling.
