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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.
3 Child Advocacy: Do reporting laws for child abuse protect children?
Recent news reports on child fatalities in Maryland call into question whether there is a correlation between these fatalities and the effectiveness of child welfare law. One area of child welfare law that may be instructive to review is the onset of the process when the local department receives a report of child abuse or neglect.
4 Cover Story: Md. lawmakers pass bill to codify child custody factors
After more than a decade of debate, Maryland legislators have codified the factors a court considers in making custody determinations, a bill lawmakers and advocates say eases the burden for self-represented litigants. Plus a look at the fate of other family law proposals during the 2025 Maryland General Assembly session.
6 In the News: State’s top court upholds ruling on pendente lite appeal
An interlocutory order denying pendente lite alimony and child support is not appealable as an order for the payment of money, the Maryland Supreme Court ruled earlier this month.
7 Feature Story: Critics fear fetal rights bills a prelude to outlawing abortions
A new Kansas law and a bill advancing in Florida outline policies backed by abortion opponents that critics see as moves toward giving embryos and fetuses the same rights as the women carrying them. Critics of the measures say their ultimate goal is to end abortion nationwide.
8 Monthly Memo
A wife who helped pay off the mortgage but was never a titleholder is not entitled to the proceeds of the judicial sale of the home. That’s according to the U.S Court of Appeals for the 8th Circuit, which has agreed with the federal district court in Minnesota that the wife will not receive half of the proceeds after the government sought to sell the home to enforce federal tax liens. ... Where a husband sued his former wife for malicious prosecution, after an ex parte protective order she obtained was dissolved, the circuit court erred when it dismissed the lawsuit, the Virginia Court of Appeals ruled. … Men in Greece will be barred from having children via surrogacy if they are single or in a same-sex relationship, the country’s justice minister said, asserting that it’s intended to eliminate legal ambiguity over the concept of inability to carry a pregnancy. … Tennessee’s public schools could be required to teach that the keys to a successful life include following a proper sequence of events: high school, job or higher education, marriage and then children. … A Missouri foster mother has been charged with child abuse and endangerment as authorities investigate whether she traded an adopted daughter to someone in Texas for a monkey and mistreated other children in her care.
Do reporting laws for child abuse protect children?
A recent article in The Baltimore Banner reported that, based on data provided by the state for a federal report, 83 children died from maltreatment in Maryland in 2023.
The Department of Human Services claims the data reported is unreliable due to an antiquated system, and that the number of such deaths is far fewer.
Any number of child fatalities from caregiver maltreatment is of great concern; an increase in such deaths should be promptly addressed.
The focus of The Banner story was on the data and the department’s lack of transparency; those concerns are relevant, but they don’t explain the high number of child fatalities.
These child fatalities call into question whether there is a correlation between these fatalities and the effectiveness of child welfare law.
One area of child welfare law that may be instructive to review is the onset of the process when the local department receives a report of child abuse or neglect.
The statute provides that any person who suspects child abuse or neglect should report it; however, it specifies “mandatory reporters,” including health care practitioners, police officers, educators and human services workers acting in a professional capacity, who have the additional obligation to file an oral and a written report within specific
KING ERIN
Child Advocacy
timelines.
For example, a 7-year-old boy repeatedly comes to school with poor hygiene, dirty clothes, a need for food, and a physical injury that he claims is the result of being struck by his mother; his teacher should file a report to the department.
When a local department receives a report, it determines the level of risk of harm to the child.
Since July 2013, cases which the local department determine to be “low risk” are assigned an alternative response, or AR, instead of an investigative response, or IR.
In both types of responses, AR and IR, the local department must see the child and primary caregiver within 24 hours of receiving a report of physical abuse and within five days of receiving a report of neglect.
However, in an AR, unlike an IR, the local department is relieved from the obligation to determine “the nature, extent, and cause of the abuse or neglect;” the caseworker does not ask for any information concerning the reason that the report was made and does not verify whether abuse or neglect occurred.
Thus, having already determined the risk of abuse or neglect is low by having
assigned the case to AR, the local department’s focus is the provision of remedial or supportive services, not investigation, although continued assessment of risk will occur.
A recent study investigating the effectiveness of AR focuses on the timing of the decision to assign a case to AR, suggesting that such assignment should not occur until some investigation, including a review of court records and interviews of people involved, has been completed to determine whether the case should be investigated in the traditional manner.
Available data does not allow for any analysis to determine whether there is a correlation between the use of AR and the increase in children’s death.
More precise and detailed data around children’s deaths is needed to determine whether and how such deaths might be prevented. Such data should examine whether and when the family first had contact with the child welfare system, including all reports of child abuse or neglect related to the child in question.
Maryland’s high rate of child fatalities from mistreatment is unexplained; the statistics highlight the need for increased and accurate, detailed data to understand which parts of the system impact those statistics, so that Maryland’s most vulnerable children will be better protected.
Erin King is a staff attorney at Maryland Legal Aid.
Md. lawmakers pass bill to codify child custody factors
By Rachel Konieczny RKonieczny@TheDailyRecord.com
After more than a decade of debate, Maryland legislators have codified the factors a court considers in making custody determinations, a bill lawmakers and advocates say eases the burden for self-represented litigants.
The Maryland General Assembly passed SB 548/HB 1191 during this year’s session, a longtime priority for the Maryland State Bar Association’s family law section, in addition to several other family law bills impacting custody, confidential communications between spouses, and protective orders. All of the measures are awaiting signature by Gov. Wes Moore to become law.
Sen. Chris West, R-Baltimore County and co-sponsor of SB 548, said that despite legislators’ focus on addressing the state’s budget deficit this session, lawmakers passed this “important legislation.”
“Maryland has never had any provision in state law which sets forth the factors that a court needs to consider when deciding how to award custody of a child,” West said in an interview with The Daily Record. “Those factors have been developed over the decades, but through court decisions, not because they’re embodied in statute. The attorneys who practice family law are well familiar with those court decisions … but self-represented litigants have nowhere to turn to learn what the courts will be paying attention to when deciding custody issues, other than through intuition.”
West said the bill puts the standards and factors used in child custody matters in readable, understandable language without changing the standards.
Laure Ruth, public policy director of the Maryland Network Against
“Not only will it be good for litigation cases, but also for people who end up settling so they understand what they’re supposed to be considering as co-parents,” says Michelle Smith, a family law attorney who is chair of the MSBA family law section’s legislative committee.
Domestic Violence, said a majority of states have already codified custody factors, but Maryland’s new legislation now gives parents a statute to reference.
“It’s always unpredictable in Annapolis, but we were really delighted about the custody factors bill,” Ruth said. “Even if that had been the only bill (that passed) this year, it would have been a huge victory.”
Michelle Smith, chair of the MSBA family law section’s legislative committee, said her research showed that Maryland was one of only eight states to not have codified custody factors. Smith said the bill’s factors are child-centered, and clear and specific as to what the court is supposed to consider.
“Not only will it be good for litigation cases, but also for people who end up settling so they understand what they’re supposed to be considering as co-parents,” Smith said. “Even mediators will benefit from understanding what they are supposed to be helping people figure out when they come up with a settlement plan and they don’t have attorneys. It’s just going to streamline things in a really fabulous way that will have a beneficial effect for children.”
The General Assembly also passed HB 241/SB 142, which establishes that a spouse or former spouse may disclose confidential communications between spouses that occurred during the marriage in
SUBMITTED PHOTO
“It’s always unpredictable in Annapolis, but we were really delighted about the custody factors bill,” says Laure Ruth, public policy director of the Maryland Network Against Domestic Violence.
a criminal matter where one spouse is charged with a crime against the other.
Ruth said the bill will allow state’s attorneys to pursue domestic violence cases more aggressively.
State legislators also passed a multifamily adjustment bill, or HB 275, which creates a mathematical calculation to account for instances where parents are paying child support in accordance with a custody order and simultaneously where a parent owes a legal duty of support but is not subject to a child support order.
Smith said HB 275 modernizes child support guidelines to take into consideration the fact that many families are now blended families.
Also passed by legislators this session is HB 533/SB 273, which authorizes a judge to consider whether a military protection order has been issued against a respondent when
SUBMITTED PHOTO
Sen. Chris West, D-Baltimore County, says the bill puts the standards and factors used in child custody matters in readable, understandable language without changing the standards.
determining whether to grant a temporary peace or protective order. Additionally, the legislation requires a law enforcement officer in certain circumstances to notify a law enforcement agency that an individual may have violated a military protection order.
Smith said the bill aims to address the fact that it can be difficult to coordinate between military and civilian jurisdictions, particularly because the two have no shared databases and different jurisdictions.
Ruth added that the bill also helps to increase communication between the military and civil courts when issuing peace and protective orders.
“Hopefully that’s going to increase safety for victims to have some more open doors between the military and the civil side of the court system,” Ruth said.
HB 929/SB 721, also passed this
session. The legislation allows for an individual to consent to the issuance of a permanent protective order, which Smith says is a necessary fix to the previous statute that did not authorize consent to a protective order.
Not passed by legislators this session was a bill West sponsored in prior years — SB 25, which would have specified certain qualifications necessary for an individual to be appointed as a custody evaluator.
“This bill was to require that custody evaluators receive exactly the same education as the judges so that everybody is basically singing from the same sheet of music,” West said, adding that the Maryland Judiciary, which has opposed the bill, recently developed an educational program for judges and a separate program for custody evaluators. The program begins this summer.
In the News
Md. Supreme Court: Order denying pendente lite alimony and child support is not appealable
By Rachel Konieczny RKonieczny@TheDailyRecord.com
An interlocutory order denying pendente lite alimony and child support is not appealable as an order for the payment of money, the Maryland Supreme Court ruled earlier this month.
In a per curiam order, the high court concluded the Maryland Appellate Court correctly dismissed Jennifer Adelakun’s appeal contending the Howard County Circuit Court erred in denying her requests for pendente lite alimony and child support from her former husband, Adeniyi Adelakun. The court indicated that an opinion with its reasons for the ruling will follow at a later date.
The high court heard arguments in the case Friday, with counsel for Jennifer Adelakun arguing that the trial court’s order is immediately appealable, while Adeniyi Adelakun contended the court can determine that the needs of the parties’ three children are being met.
“Although we disagree with the Court’s decision, we’re heartened by the outpouring of amicus support at the certiorari and merits stage,” Elizabeth Pittman, counsel for Jennifer Adelakun, said in an email. “We hope that the General Assembly will fix this anomaly next session.”
Thomas McKeon, counsel for Adeniyi Adelakun, did not immediately respond to a request for comment.
In a reported September 2024 opinion, the Maryland Appellate Court dismissed Jennifer Adelakun’s appeal contending the Howard County Circuit Court erred in denying her requests for pendente lite alimony and child support from her former husband.
During oral argument, Pittman drew a distinction between a pendente lite alimony and child support order and other orders for payment required by one party to another.
The Maryland Supreme Court, in a per curiam order, upheld the Maryland Appellate Court’s ruling.
“The interpretation that this court should adopt is one that’s harmonious with the broader statutory scheme, as well as with the case law interpreting the statute in other contexts, and that a holding that allows there to be more opportunities to lose access to support than to receive it cannot be consistent with all of the intent of the General Assembly regarding the presumption of child support,” Pittman said Friday.
McKeon said on Friday that this is not a case where children are not receiving the support they need.
“I think the mother in this case has a solution looking for a problem,” McKeon said Friday. “There are procedural and statutory safeguards, particularly as it relates to child support, so that there isn’t an award of
zero child support.”
Justice Peter Killough on Friday agreed with McKeon that there has been no finding in the case that the needs of the children are not being met, citing the children’s private school tuition being paid in advance, a prepaid vacation trip and the Adelakuns’ 12,000-square-foot-home with staff.
Jennifer Adelakun previously testified that she earned $520 per month from a daycare center she owned, though the family’s 2021 amended tax return showed gross receipts from her law firm, from which she stopped practicing in December 2021, were nearly $1 million plus a profit of $109,000, according to the appellate court.
THE DAILY RECORD/FILE PHOTO
Critics fear fetal rights bills a prelude to outlawing abortions
By Kate Payne and John hanna Associated Press
A new Kansas law and a Florida bill outline policies backed by abortion opponents that critics see as moves toward giving embryos and fetuses the same rights as the women carrying them.
The Kansas Legislature’s Republican supermajorities last week overrode Democratic Gov. Laura Kelly’s veto of a bill to require that child support payments cover embryos and fetuses and to grant an income tax break for a pregnancy or stillbirth. In Florida, lawmakers are advancing a bill that would permit parents to seek civil damages for the wrongful death of an embryo or fetus.
Following the U.S. Supreme Court’s overturning of Roe v. Wade, anti-abortion activists across the country are pushing measures to enshrine the rights of fetuses, with the ultimate goal of ending abortion nationwide. Lawmakers pitching the proposals describe them as support for new parents or vulnerable families.
“This bill is about being compassionate to pregnant women,” Kansas Republican state Rep. Susan Humphries said Thursday.
Pregnancy Justice, which advocates for pregnant people, found that as of last year, at least 17 states had laws on the books giving fetuses the rights of people in criminal or civil law. Also, in most states, including Florida and Kansas, a person can face criminal charges for causing the death of a fetus, other than through an abortion.
Georgia and Utah offer income tax breaks for fetuses, and Kansas will soon allow parents to claim an extra dependent child tax deduction on their personal income taxes for the year a child is born and a deduction for a stillbirth.
Also like Georgia, Kansas will start a divorced or single parent’s obligation to pay child support “from the date of conception.” Its new law takes effect July 1.
“It really is common sense, to provide support for women,” said Republican state Sen. Kellie Warren, a supporter of the Kansas measure.
The Texas Senate approved a child support proposal earlier this month, and lawmakers introduced proposals this year in Missouri, Montana, Pennsylvania and Virginia, according to an Associated Press analysis using the bill-tracking software Plural.
The bill advancing in Florida would allow parents to file lawsuits over the wrongful death of a embryo or fetus at any stage of pregnancy, and juries could award monetary damages for the wages a fetus would have earned, according to the bill’s sponsor.
The bill has cleared the full House and was approved by its second Senate committee Thursday, though its third and final committee hearing has yet to be scheduled.
Florida is among six states that do not allow lawsuits over the wrongful death of a fetus, according to a legislative analysis. Kansas already has a law like the one Florida is considering.
In Florida, sponsoring Republican Sen. Erin Grall told her colleagues the measure “is not about abortion.”
“It’s not a secret. Everybody in the room knows where I stand on life,” Grall said. “To me this is about parity in our civil justice system.”
Critics see both the Florida and Kansas proposals as part of an effort to move from allowing states to ban abortion — as the U.S. Supreme Court did in its 2022 Dobbs decision — to outlawing abortion across the nation as a violation of a fetus’ or embryo’s constitutional rights.
Mary Ziegler, a University of California, Davis law professor who’s published six books in the past 10 years on abortion law and the history of U.S. abortion policy, said this year’s Florida measure aligns with a “pretty well-defined and very public playbook” to build a legal framework for a national abortion ban.
“It’s about setting a precedent for recognizing fetal rights in one context being used to recognize fetal rights constitutionally,” she said.
Florida considered a similar wrongful death measure last year, but it failed amid
The Maryland Supreme Court, in a per curiam order, upheld the Maryland Appellate Court’s ruling.
concerns about an Alabama Supreme Court ruling that frozen embryos can be considered children under state law. In vitro fertilization services stopped in Alabama until that state’s governor signed a law to protect them — a step taken in other GOP-controlled states.
Concerns about IVF services still linger among some lawmakers in the Florida state capital of Tallahassee, as well as among doctors and abortion rights advocates.
Democratic state Rep. Allison Tant took to the House floor to debate against the Florida bill, which she says “imperils” the fertility services that made her a mom.
“IVF pregnancies are inherently fragile and risky,” Tant said. “We are going to see lawsuits like we’ve never seen.”
Reproductive rights advocates in Florida also worry that wrongful death lawsuits could target health care providers who offer abortions, family and friends who help a loved one obtain an abortion, or fertility clinics whose clients experience a miscarriage.
In Texas, a man filed a wrongful death lawsuit against three women he said helped his now-ex-wife obtain medication for an abortion, though he later settled the case.
Florida’s proposal specifies that it does not authorize a cause of action against a mother for the death of her unborn child, or against a health care worker if they provided “lawful” medical care.
Non-titleholding wife gets no proceeds from tax-lien home sale
A wife who helped pay off the mortgage but was never a titleholder is not entitled to the proceeds of the judicial sale of the home. That’s according to the U.S Court of Appeals for the 8th Circuit, which has agreed with the federal district court in Minnesota that the wife will not receive half of the proceeds after the government sought to sell the home to enforce federal tax liens.
Ronald Byers’ home, which he shares with his wife, Deanna, is in Wayzata. However, Deanna was never on the title. Ronald acquired the property by personal representative’s deed in 1990. Ronald and Deanna married two years later. Throughout their marriage, Ronald was the sole titleholder to the property.
Deanna and Ronald agreed that the government could sell the property to satisfy the tax liens; however, they maintained that Deanna was entitled to half the proceeds of the sale because it was of the marital homestead. The government maintained that it was entitled to all the sale proceeds.
The district court determined that Deanna lacked a property interest in the home, and the appeals court agreed. The panel affirmed that Deanna’s property interest in the homestead was merely contingent, and that it only vested upon the owner’s death.
BridgeTower Media
Va. appeals court says man can sue former wife for malicious prosecution
Where a husband sued his former wife for malicious prosecution, after an ex parte protective order she obtained was dissolved, the circuit court erred when it dismissed the lawsuit, the Virginia Court of Appeals ruled. None of the three arguments raised by the wife provided a valid ground for the circuit court to sustain the demurrer, the appeals court said.
After a juvenile and domestic relations district court dissolved an ex parte protective order previously entered against Jason Mitchell Craft, he sued his former wife, Sarah Rebecca Stallard. Stallard filed a demurrer to the amended complaint. She argued that Craft had failed to state a claim for malicious prosecution on three grounds. The Boutetort
Monthly Memo
County Circuit Court granted Stallard’s demurrer and denied Craft’s motion to amend.
But Craft did not need to allege how Stallard’s statements were false, the appeals court said. Instead, he had to allege that a reasonable person would have believed that the standard for the issuance of a protective order was not met based on the facts known to Stallard. Because Stallard’s first argument for the demurrer did not specifically address an element of a malicious prosecution claim, it did not provide a valid ground for the circuit court to sustain the demurrer.
The case is Craft v. Stallard.
BridgeTower Media
Greece to impose surrogacy limits
Men in Greece will be barred from having children via surrogacy if they are single or in a same-sex relationship, the country’s justice minister said, asserting that it’s intended to eliminate legal ambiguity over the concept of inability to carry a pregnancy.
Giorgos Floridis said the proposed changes will be submitted to parliament soon as part of broader civil code reform.
Greece legalized same-sex marriage last year — the first Orthodox Christian-majority country to do so. The marriage equality law was opposed by Greece’s powerful Orthodox Church and conservative groups. Parliament approved civil partnerships for gay couples in 2015.
In contrast to growing consensus in support of same-sex marriage, Europe’s legal landscape for surrogacy varies widely. Many countries prohibit all forms of the practice or impose restrictions.
Associated Press
Tennessee bill would teach students to hold off on kids before marriage
Tennessee’s public schools could be required to teach that the keys to a successful life include following a proper sequence of events: high school, job or higher education, marriage and then children.
It’s a proposal advancing inside the state’s Republican-dominant Legislature and similar to others moving in several states this year.
In Tennessee, the Senate passed the legislation 25-5 last month. It has several
steps remaining in the House.
Republican proponents argued the so-called success sequence could help lift people out of poverty by delaying life events, such as getting married before having children. Democratic opponents raised concerns that the instruction could indoctrinate students about matters that should be personal choices while making students who have a single parent feel bad about themselves.
Republicans have brought forward similar proposals in other states, including Texas, Kentucky, Mississippi and Ohio, according to an Associated Press analysis using the bill-tracking software Plural. In Utah, the governor has already signed a bill.
Associated Press
Foster mom is charged as authorities probe whether girl was traded for monkey
A Missouri foster mother has been charged with child abuse and endangerment as authorities investigate whether she traded an adopted daughter to someone in Texas for a monkey and mistreated other children in her care.
The 70-year-old woman from Winfield has been jailed on $250,000 bond since her arrest. The Associated Press is not identifying her in an effort not to identify her child.
No attorney is listed for the woman in online court records. The 1,500-person town Winfield is about 45 miles northwest of downtown St. Louis.
Lincoln County prosecutor Mike Wood said Wednesday that the woman had been a foster or adoptive parent to around 200 children over a span of well over a decade. His office wrote in seeking a cash-only bond that authorities had received information that some of those children suffered physical and emotional abuse similar to the teen at the center of the case.
In February, a deputy who was working as a school resource officer in Missouri was contacted about the girl missing classes, the probable cause statement said. While investigating, the deputy was told of a rumor that the girl was traded for an exotic animal to someone in Texas.
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court affirmed the Howard City Circuit Court’s award to mother of sole legal and primary residential custody of the parties’ minor child, requirement that the parties share equally all costs of his private school education and its order requiring father to contribute $100,000 toward mother’s attorneys’ fees.
CHILD SUPPORT; ATTORNEY’S FEES; ABUSE OF DISCRETION
The Appellate Court vacated the Prince George’s County Circuit Court’s order requiring mother to pay father $1,400 in attorney’s fees. Because the circuit court stated that that it did not think mother had “the ability to pay,” it ordered that these fees would be paid by giving father a credit toward them on his child support obligation. This was error.
CHILD SUPPORT; LOANS; GIFTS
Beril Iz-Duzyol v. Okan Duzyol
Nos. 1171, September Term 2024
Argued before: Arthur, Graeff, Battaglia (retired; specially assigned), JJ.
Opinion by: Battaglia, J
Filed: Feb. 18, 2025
The Appellate Court affirmed the Montgomery County Circuit Court’s award of $4,299.99 monthly in child support by mother to father. Although mother argued the support should have been reduced because father received money from his brother, the trial court did not abuse its discretion in relying on promissory notes and repayment evidence to find the money was a loan, and not a gift.
INTERLOCUTORY APPEAL; SEPARATION AGREEMENT; COLLATERAL ORDER
The Appellate Court dismissed the interlocutory appeal challenging the Montgomery County Circuit Court’s recission of the voluntary separation agreement on the ground that wife had materially breached the agreement. Considering the strict requirement that the order must be “completely separate from the merits,” and the overlap between the material breach of the voluntary separation agreement and a custody decision at a full merits hearing here, the collateral order doctrine was not satisfied.
PHYSICAL AND LEGAL CUSTODY; CHILD PREFERENCE; BEST INTERESTS
In re: M.M.
No. 432, September Term 2024
Argued before: Arthur, Ripken, Harrell, JJ.
Opinion by: Ripken, J.
Filed: Feb. 18, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s ruling that the child was not a child in need of assistance and awarding primary physical custody and sole legal custody to mother. The court concluded that, in addition to the child’s preference, the evidence demonstrated that her interest would be best served by granting custody to mother.
The Appellate Court vacated the Prince George’s County Circuit Court’s order requiring husband to pay half of wife’s unsecured credit card debt as part of a monetary award. The credit cards were not used to acquire marital property, so the credit card debt is not marital debt.
The Appellate Court affirmed the Baltimore County Circuit Court’s alteration of the child’s permanency plan to include adoption. The court was presented with ample evidence from which to conclude, based on the statutory factors, that changing the child’s permanency plan was consistent with his best interests.
ATTORNEY'S FEES; SETTLEMENT AGREEMENT; COURT ORDER
The Appellate Court reversed the Montgomery County Circuit Court’s refusal to award attorney’s fees where it was not expressly reserved in the parties’ settlement agreement. Because the circuit court previously reserved the fee issue in two court orders, that superseded the absence of an express reservation in the parties’ settlement agreement.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s finding that husband’s petition for contempt, based upon wife moving to dissolve their jointly-owned company, was filed in bad faith and without a substantial basis.
REPORT AND RECOMMENDATION; EXCEPTIONS; IRREGULARITY
The Appellate Court reversed the Baltimore County Circuit Court’s denial of husband’s motion to extend his time to file exceptions to the magistrate judge’s report and recommendations regarding custody and child support modification. The clerk’s failure to serve the magistrate’s recommendations on MDEC constituted an irregularity. Husband is entitled to be heard on his exceptions.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard City Circuit Court’s award to mother of sole legal and primary residential custody of the parties’ minor child, requirement that the parties share equally all costs of his private school education and its order requiring father to contribute $100,000 toward mother’s attorneys’ fees.
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..
and treatment. In the summer of 2019, soon after R. was born, the family moved together to Baltimore, Maryland.
When the COVID-19 Pandemic struck in early 2020, the family moved to Clarksville, Maryland to live with Father’s parents. The parties were, for the most part, able to work from home during this time. Mother, however, was scheduled for an in-service rotation at the hospital, which would require her to work in-person for one week.3 The couple had retained their apartment in Baltimore, so Mother moved back into the apartment during her rotation and isolated there for two weeks after.4
This appeal comes to us from the Circuit Court for Howard County following a judgment of absolute divorce ending the marriage between Appellant (“Father”) and Appellee (“Mother”).1 After a five-day trial, the court awarded Mother sole legal and primary residential custody of the parties’ minor son, R. Among other support obligations, the court ordered that the parties share equally all costs of R.’s private school education. Lastly, the court ordered Father to contribute $100,000 toward Mother’s attorneys’ fees. Here, Father challenges the custody, support, and attorneys’ fees awards.
On appeal, Father presents ten questions for our review.2 For clarity, we have consolidated those questions into four, which we rephrase as:
1. Did the trial court abuse its discretion in limiting the opinion of one of Father’s expert witnesses?
2. Did the trial court err in awarding Mother primary residential and sole legal custody?
3. Did the trial court err in ordering the parties to contribute equally to their minor child’s private school education?
4. Did the trial court abuse its discretion in awarding Mother attorneys’ fees?
For the reasons below, we answer each question “no” and affirm the circuit court’s judgment.
BACKGROUND
The parties met in New York, New York in 2016 and were married there two years later. Both parties are well educated and well employed. Father is a financial professional who, while living in New York, worked on Wall Street. Mother is a medical doctor, an oncologist, who specializes in breast cancer research
The parties had disagreements immediately following their separation about whether Mother would have in-person contact with R. During this time, Mother repeatedly asked to see R. Each time, Father refused. Mother provided evidence that she was never exposed to COVID-19, as no one who tested positive for the virus was allowed into the hospital. Father refused to let her see R. Mother suggested that they could meet outdoors and remain 50 to 60 feet apart. Father refused. Mother suggested that she could see R. from a balcony or through a window. But still, Father refused. Indeed, Father threatened to call the police if Mother tried to see R. before her “quarantine” period was over.
After three weeks, Mother recovered R. from Father, and the two of them moved in with her parents in North Potomac, Maryland. From then on, Mother would not allow R. to leave her home with Father unless there was an agreement in writing. Although the parties’ separation had not initially been for the purpose of ending their marriage, by this point it was clear that the relationship was over. Father filed for a limited divorce on June 25, 2020, just after R.’s first birthday. Mother filed a crosscomplaint for a limited divorce, and the parties both eventually amended their complaints to seek an absolute divorce.
The parties’ marriage lasted two years. They have been litigating their divorce more than twice as long. The parties were able to settle most of their financial issues in early 2024, so the only remaining contested issues at trial were custody, support, and attorneys’ fees.
In April 2024, the court held a five-day bench trial where it heard from both parties, several collateral witnesses, and two experts. Father wanted a shared, 2/2/5 physical custody schedule and joint legal custody with tie-breaking authority granted to him. Mother also wanted shared physical custody, but on a schedule that would continue the current schedule from the most recent Pendente Lite Order entered in November 2023. Under this schedule, Father had custody of R., in Week One, from Thursday afternoon’s pick up from school until Friday morning’s return to school. In Week Two,
Father had custody of R. from Monday afternoon’s pick up from school until Tuesday morning and from Friday afternoon’s pick up from school until Monday morning. Mother had custody of R. at all other times for his regular schedule. She also sought joint legal custody with tie-breaking authority granted to her.
The parties detailed many of the disputes that had arisen over the course of the litigation. In August 2020, the court had ordered them to consult with a child development expert. The parties engaged the National Family Resiliency Center (“the NFRC”) and worked jointly with a parent counselor, Elaine Drewyer. They worked with her for almost a year until Father unilaterally terminated the NFRC’s services because he believed Ms. Drewyer was biased against him. Father also accused Ms. Drewyer of having ex parte communication with Mother’s attorney based on an entry in Ms. Drewyer’s invoice. At trial, Mother explained that this notation was a billing error.
Mother testified that, even while working with the NFRC, the parties worked painstakingly and for lengthy periods of time on seemingly inconsequential issues. For example, they spent hours over several sessions trying to agree on whether R. would be with Mother for Mother’s Day. Only after involving attorneys did Father email Mother, five days before Mother’s Day, that “of course” R. could be with her on Mother’s Day.
The parties also testified about conflict they had had about R.’s education and extracurricular activities. They agreed to enroll R. in a private preschool and split the tuition. But then Father enrolled R. in a second program without Mother’s knowledge or consent. They had signed R. up for swim lessons. But Father signed R. up for a second program without Mother’s agreement and then stopped taking R. even while Mother took R. to the sessions on her weekends.
Despite their history, however, the parties both agreed that the other is a fit parent. Likewise, the consensus among the collateral witnesses was that both parties love R. and are fit parents. Yet Mother also testified that, based on their history, she believes she and Father “cannot coparent [and] cannot coordinate.” At the conclusion of trial, the court held the matter sub curia.
On July 5, 2024, the court issued a twenty-five-page written opinion granting a judgment of absolute divorce. The court awarded sole legal and primary physical custody to Mother. Among other support obligations, the court also directed that the parties contribute equally to the cost of R.’s private school education. Finally, the court ordered that Father contribute $100,000 to Mother’s attorneys’ fees.
Father timely noted this appeal. Additional facts will be supplied as needed.
DISCUSSION
I. Expert Testimony
Before trial began, the court first had to resolve a discovery dispute. Father had engaged Dr. Katherine Killeen as an expert witness. In October 2020, Dr. Killeen had observed Father’s interactions with R. and prepared a report of her findings. Father disclosed this report during discovery and designated Dr. Killeen to testify as an expert witness at trial. However, a few months before trial and long after the discovery period had closed, Father, without informing Mother, contacted Dr. Killeen
again and engaged her to observe himself and R. to prepare a new report. This report was disclosed to Mother just five weeks before trial. Accordingly, she moved in limine to exclude the supplemental report and to bar Dr. Killeen from testifying about it or anything she observed while generating it.
The court found that Mother was prejudiced by the late disclosure and limited Dr. Killeen’s opinion and testimony to her original report. The court acknowledged that the prejudice could be cured by a postponement, but it found that delaying the trial was not in R.’s best interest. Father ultimately chose not to call Dr. Killeen as a witness, and her original report was admitted into evidence by stipulation.
On appeal, Father contends that the court erred in limiting the scope of Dr. Killeen’s report and testimony. In his view, the court should have looked past his discovery violation because Dr. Killeen’s supplemental report was based on more recent observations and R.’s best interests would have been served by admitting it. We disagree.
A. Legal Framework
“Normally, we evaluate a trial court[’s] discovery sanction in a civil case through a well-defined lens—abuse of discretion.” A.A. v. Ab. D., 246 Md. App. 418, 441 (2020). That said, “before we look through that lens in a child custody case, we must be satisfied that the court has applied the best interests of the child standard in its determination.” Id. In a child custody case, the trial court’s broad discretion “to exclude evidence is not only measured by the potential prejudice to the parties, but is constrained by a court’s absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child.” Kadish v. Kadish, 254 Md. App. 467, 495 (2022).
Before excluding evidence as a sanction, “the court should take a proffer or otherwise ascertain what the evidence is that will be excluded, and then assess whether that evidence could assist the court . . . in its determination of the best interests of the child.” A.A., 246 Md. App. at 448–49. We then review any discovery sanction imposed after the court completes this assessment for an abuse of discretion. Id. at 449.
B. Analysis
Initially, we observe that the court’s sanction was permissible under the Maryland Rules and was not disproportionate to Father’s violation. Discovery sanctions are meant to alleviate the surprise or prejudice a party suffers when their opponent fails to follow the discovery rules. See Ross v. State, 78 Md. App. 275, 286 (1989). Father engaged Dr. Killeen to create a supplemental report in October 2023 but did not inform Mother until four months later. Mother only learned of the supplemental report when it was disclosed to her just five weeks before trial, leaving her with no time to depose Dr. Killeen or meaningfully rebut her new report if Mother had wanted to do so.
The record reflects that the court took a proffer of the proposed evidence before opening statements and considered the issue through the first day of trial. The court ultimately determined that the supplemental report would not assist it in its determination of R.’s best interests. The court observed that, contrary to Father’s argument, Dr. Killeen’s supplemental
report was “not the only recent information” about R.; it was merely the most recent opinion from an expert witness. The court, over the course of the five-day trial, would still hear many recent observations from the parties and their witnesses about Father’s interactions with R. and his fitness as a parent. Indeed, after hearing all the evidence, the court ultimately concluded that Father is a fit parent.
Moreover, the court imposed a limited sanction designed to ensure that it remained as well-informed as possible as to R.’s best interests. The court did not completely exclude Dr. Killeen as a witness. It made clear that she could still testify as to the findings and observations related to her original 2020 report. That report was admitted into evidence by the parties’ agreement, but Father chose not to have Dr. Killeen testify.
We conclude that the circuit court excluded Dr. Killeen’s supplemental report only after determining that it would not be useful in determining R.’s best interests. The sanction was permissible under the Maryland Rules and was proportionate to Father’s violation. Therefore, the circuit court did not abuse its discretion in limiting Dr. Killeen’s opinion and testimony.
II. Custody
Father next contends that the court erred in awarding Mother sole legal and primary physical custody of R. He argues that the court violated his due process rights by relying on statements made by Ms. Drewyer contained within his expert witness’s notes when he did not have the opportunity to cross-examine Ms. Drewyer. Relatedly, Father contends the court should not have dismissed his expert’s recommendation because she was the court-appointed custody evaluator. He also disputes many of the facts on which the court based its decision. Lastly, Father argues that the court did not sufficiently explain the reasoning behind its custody decision. None of these arguments have merit.
A. Legal Framework
Custody decisions “are governed by the best interests of the child.” Gordon v. Gordon, 174 Md. App. 583, 636 (2007). “Although courts are not limited to a list of factors in applying the best interest standard in each individual case,” Azizova v. Suleymanov, 243 Md. App. 340, 345 (2019), precedent provides a checklist of more than twenty non-exhaustive factors that, if applicable to the case, a court must consider when making custody determinations.
Specifically, in Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, this Court laid out several factors to be considered in determining the best interests of a child: (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; (10) prior voluntary abandonment or surrender.
38 Md. App. 406, 420 (1977) (internal citations omitted). Later, in Taylor v. Taylor, 306 Md. 290, 304–11 (1986), the Supreme
Court of Maryland set forth the following factors, several of which overlap with those laid out in Sanders: (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’ requests; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factors as appropriate.
In determining whether joint custody is appropriate, “the most important factor” is the “capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.” Id. at 304. “[T]here is nothing to be gained and much to be lost by conditioning the making of decisions affecting the child’s welfare upon the mutual agreement of” parents who are “severely embittered” and whose “relationship [is] marked by dispute, acrimony, and a failure of rational communication[.]” Id. at 305.
Even so, “none of the major factors in a custody case has talismanic qualities, and no single list of criteria will satisfy the demands of every case.” Santo v. Santo, 448 Md. 620, 630 (2016) (cleaned up). Instead, the court examines “the totality of the situation in the alternative environments[.]” Best v. Best, 93 Md. App. 644, 656 (1992). The test ultimately “begins and ends with what is in the best interest of the child.” Azizova, 243 Md. App. at 347.
Our appellate courts “practice a limited review of a trial court’s decision concerning a custody award.” Wagner v. Wagner, 109 Md. App. 1, 39 (1996). This practice involves three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, factual findings are reviewed for clear error. In re R.S., 470 Md. 380, 397 (2020). Second, we review whether the court erred as a matter of law without deference, under a de novo standard of review. Id. Finally, ultimate conclusions of the court, “when based upon sound legal principles and factual findings that are not clearly erroneous, will stand unless there has been a clear abuse of discretion.” Id.
Findings of fact are not clearly erroneous “[i]f there is any competent material evidence” to support them. Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md. App. 267, 275 (1992). Further, “[t]he burden of demonstrating that a court committed clear error falls upon the appealing party.” Christian v. Maternal-Fetal Med. Assocs. of Md., LLC, 459 Md. 1, 21 (2018). Moreover, an abuse of discretion occurs where “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) (cleaned up).
B. Analysis
Father first protests the circuit court’s reliance on statements made by Ms. Drewyer that appear in his expert witness’s notes. He failed to preserve this issue, though.
Under Maryland Rule 2-517(a), “[a]n objection to the admission of evidence shall be made at the time the evidence
is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” Dr. Maureen Vernon was Father’s witness at trial. The court had appointed her previously to perform a custody evaluation, though no formal order of appointment was ever entered. At trial, the court accepted Dr. Vernon as an expert in child custody evaluation and as a psychologist with expertise in child development. On cross-examination, she testified, without objection, about her conversation with Ms. Drewyer and how Ms. Drewyer had described Father as “aggressive” and “high conflict.” Mother then offered, into evidence, Dr. Vernon’s notes from her conversation with Ms. Drewyer. Father did not object. By failing to object to either Dr. Vernon’s testimony or the admission of her notes, Father has waived the right to challenge them on appeal.
Also on the topic of Dr. Vernon, Father challenges the court’s rejection of her custody recommendations. He contends her opinion should have been given more weight because of her role as the court-appointed custody evaluator. Father cites no case holding that the trial court was required to credit Dr. Vernon’s opinion simply because she was the custody evaluator. He also ignores that her opinion was eviscerated by Mother’s expert.
Dr. Robert Simon was Mother’s witness at trial. The court accepted him as an expert in custody evaluations and forensic psychology. Dr. Simon testified that the errors in Dr. Vernon’s report were “both numerous and critical,” and he opined extensively on them. For example, Dr. Simon explained that it was the “consensus opinion of the child custody community” that the tests Dr. Vernon selected for her evaluation “are junk science.” Dr. Simon also heavily criticized Dr. Vernon’s lack of notes and record keeping.5 In his view, this rendered the conclusions in her report unreliable.
Generally, a “trial judge need not accept the testimony of any expert.” Quinn v. Quinn, 83 Md. App. 460, 470 (1990).
“An expert’s opinion has no greater probative value than the soundness of the reasons given for the opinion.” Goicochea v. Goicochea, 256 Md. App. 329, 354 (2022) (cleaned up). Further, “[w]here there are two experts, the trier of fact must evaluate the testimony of both of them and decide which opinion, if any, to accept.” Id. (cleaned up).
Here, the court agreed with Dr. Simon. It observed that Dr. Vernon’s recommendations “generally lacked the type of factual and logical support that would be expected for well-founded recommendations” and that “[o]ddities” in her work rendered her opinions and recommendations unreliable. Indeed, the court concluded that
Dr. Vernon’s recommendation on legal custody “could only be made by someone who did not have any understanding of the parties in this matter.” Its decision to reject her recommendation was reasonable, logical, and explained in detail. See Goicochea v. Goicochea, 256 Md. App. at 355. The court was not clearly erroneous in crediting Dr. Simon’s opinion as to the reliability of Dr. Vernon’s opinion.
Father next takes issue with the court’s findings of fact. He flags several facts discussed in the court’s opinion that he claims are contradicted by his testimony. For example, he asserts that he never refused to let Mother see R. from a balcony while she was isolating during her in-service rotation. Father
acknowledges, however, that the court did not fabricate these facts from whole cloth. Rather, it pulled them from Mother’s testimony. Thus, in essence, Father challenges the court’s decision to credit Mother’s testimony over his and resolve conflicting evidence in her favor.
Just as when dealing with competing expert witnesses, “the [fact-finder] has authority to decide which evidence to accept and which to reject.” Hall v. State, 119 Md. App. 377, 393 (1998). The court here expressly found that Mother’s testimony was more credible than Father’s testimony. “It is not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020). Ultimately, the court’s findings of fact were based on Mother’s testimony and, therefore, supported by “competent material evidence” despite Father’s opposing evidence. See Fantasy Valley Resort, Inc., 92 Md. App. at 275. Thus, they are not clearly erroneous.
Father also complains that the court relied on Ms. Drewyer’s statements about him but did not discuss, in its opinion, the “misconduct” he alleged concerning ex parte communications between her and Mother’s attorney. Father points to an entry in the bills from Mother’s attorney that show an email and phone call between counsel and Ms. Drewyer before he terminated Ms. Drewyer’s services. “Trial judges are not obligated to spell out in words every thought and step of logic.” Meek v. Linton, 245 Md. App. 689, 730 n.6 (2020) (cleaned up). In other words, the court was not required to expressly reject Father’s attack on Ms. Drewyer’s impartiality before relying on her statements. And in any event, the court made clear that it did not accept Ms. Drewyer’s statements as proof of any “issues in the marriage or even post-separation[.]”The court merely observed that her notations were consistent with other evidence of “Father’s less than collaborative behaviors.”
Finally, Father does not dispute that the court considered the appropriate custody factors when making its decision. Instead, he argues that the court did not explain why Mother maintaining primary physical custody was in R.’s best interests. Not so.
The court first analyzed the custody factors laid out in Best, 93 Md. App. at 655– 56, almost all of which equally favored both parties. The court found that Mother and Father are both fit parents who deeply love their son. The court also noted that both parties could provide for R.’s necessities (and beyond), and they live in close enough proximity to permit ample access with both parties. The court recognized that the circumstances of their separation created high conflict and neither party was blameless for their inability to coordinate a routine access schedule. The court observed, however, that Father struck first in this area, which it found was important. The court also concluded that Mother’s restrictions on Father’s access “were based more on fear that [he] would again withhold [R.] from her and not on an agenda against Father.”
After reviewing the relevant factors, the court found that Father’s proposed custody schedule was not in R.’s best interest as he begins his formal education because it requires several mid-week transitions. Based on the evidence, the court noted that R. “does best with structure and routine.” For that reason, the court also agreed that Father’s concerns with Mother’s
proposed custody schedule were well-founded because the days
R. was with him varied significantly week to week. As a result, it adapted the schedule to address his concerns: Father would have custody of R. every other week from Friday, starting after school, until Tuesday morning at the start of school, and in the alternative every other week, from Monday after school until Tuesday at the start of school. The court observed that this schedule will allow for the consistency of days, as Father suggested, because R. would be in his custody every Monday.
At bottom, the record reflects that the court considered the appropriate factors. Although nearly all of them favored the parties equally, the court found that Father’s history of depriving Mother of access to R. was “cruel” to her and “contrary to the best interests of the child.” This tipped the scale towards awarding Mother primary residential custody. Even so, the court still acknowledged Father’s concerns with the custody schedule and adapted it in response. The court did not act “without reference to any guiding rules or principles.” See In re Adoption/Guardianship No. 3598, 347 Md. at 312. Consequently, it did not abuse its discretion.
III. Child Support
Father next contends that the court abused its discretion in ordering that he pay fifty percent of R.’s private school tuition and expenses. According to him, the court failed to consider the factors required to prove a specific need for private school. Under the circumstances here, however, it did not need to do so.
A. Legal Framework
Under Md. Code Ann., Fam. Law (“FL”) § 12-204(i)(1), “by agreement of the parties or by order of court,” the tuition and costs for attending a 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 action incomes[.]”
When determining whether a child has a particular educational need to attend a special or private elementary or secondary school, a court should consider the following nonexhaustive list of factors: (1) the child’s educational history, such as the number of years the child has attended the particular school; (2) the child’s performance in the private school; (3) whether the family has a history of attending a particular school; (4) whether the parents had made the decision to send the child to a particular school prior to their divorce; (5) any particular factor that may exist in a specific case that might impact the child’s best interest; and (6) the parents’ ability to pay for the schooling. Witt v. Ristaino, 118 Md. App. 155, 169–71 (1997). Although “allocating the cost proportionately may be appropriate in many cases,” the trial court has discretion to determine whether another division is appropriate. Id. at 174.
B. Analysis
Father asserts that the court erred because it failed apply the Witt factors. This is a curious argument because, as the circuit court found, private schools were the “only considered choices” for R.’s future education. The parties’ disagreement was limited
to which private school R. would attend. Indeed, during closing argument, Father’s attorney stipulated that he would pay 50% of the expenses if R. continued at the private school Father had selected. At no point during trial did either party suggest public school was even an option, let alone a preferred choice.6
As for the division of costs, this is an above guidelines7 case. The parties’ combined adjusted income exceeds $15,000 per month. Father earns more than $34,000 per month, and Mother earns more than $17,000 per month. In above guidelines cases, the trial court “need not use a strict extrapolation method to determine support, but may employ any rational method that promotes the general objectives of the child support Guidelines and considers the particular facts of the case before it.” Ruiz, 239 Md. App. at 425 (cleaned up). Here, the parties agreed to divide the costs of R.’s private school tuition equally, not in proportion to their adjusted actual income. Because this is an “above guidelines case,” the circuit court had discretion to allocate the costs in line with their agreement.8 See id.; Witt, 118 Md. App. at 174.
In short, because the court relied on the parties’ apparent agreement that R. did and should continue to attend private school, it did not need to apply the Witt factors to find that he needed to attend private school to address this expense. There was no dispute on this point, and no dispute that the parties could and would split the costs evenly. Thus, the court did not err in ordering them to do so.
IV. Attorneys’ Fees
Finally, Father contends that the court erred in awarding Mother $100,000 in attorneys’ fees. His attack is two-pronged. First, he argues Mother’s invoices for attorneys’ fees should not have been admitted into evidence. Second, he argues the court did not properly apply the relevant statutory factors. His arguments are unavailing.
A. Legal Framework
In cases involving custody or child support, “[t]he court may award to either party the costs and counsel fees that are just and proper under all the circumstances[.]” Md. Code Ann., Fam. Law (“FL”) § 12-103(a). Before doing 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.” FL § 12-103(b). “Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.” FL § 12-103(c). Substantial justification “relates solely to the merits of the case against which the judge must assess whether each party’s position was reasonable.” Davis v. Petito, 425 Md. 191, 204 (2012).
“The trial court has significant discretion in applying the § 12-103(b) factors to decide whether to award counsel fees and, if so, in what amount.” David A. v. Karen S., 242 Md. App. 1, 39 (2019) (cleaned up). “We will affirm a finding of bad faith or substantial justification unless it is clearly erroneous or involves an erroneous application of law.” Id. at 38. We also assess the
reasonableness of the amount of attorneys’ fees awarded. Id. at 40. “Reasonableness is a factual determination within the sound discretion of the court, and the party requesting fees has the burden of providing the court with the necessary information to determine the reasonableness of its request.” Id. (cleaned up).
Ultimately, we will not reverse an award of attorneys’ fees “unless [the] court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Id. at 23 (cleaned up).
B. Analysis
Father first contends that Mother’s invoices for attorneys’ fees should have been excluded from evidence because they were not disclosed during discovery. Not so.
Although his attorney at trial objected on that basis to their admission, Mother’s counsel assured the court that they had been disclosed to Father’s prior attorneys. The court believed her and admitted the invoices, implicitly finding that there had not been a discovery violation. There is nothing in the record to suggest the court’s admission of the invoices was erroneous.
The court also did not err in awarding Mother a contribution towards her attorneys’ fees. Mother presented evidence showing that she had incurred over $300,000 in attorneys’ fees over the course of the litigation. Upon hearing this at trial, the court remarked that it was “shocked” at the amount. Even so, looking at the fees overall, the court expressly found that, “considering the circumstances” they were “fair and reasonable.”
The court then found that, although “both parties were justified in pursuing child custody and child support, the manner in which [Father] litigated was, in large part, not justified.” The court highlighted the numerous subpoenas Father issued seeking collateral evidence “that, in several instances, was not relevant to the case and when relevant, was in some instances, quite overblown considering the length of the marriage and the issues at hand.” For example, Father subpoenaed substantial
JUDGMENT
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FOOTNOTES
records of Mother’s parents, including their small business financial records, their personal financial records, and their EZ Pass travel records. He also subpoenaed a variety of preschools and recreational programs to which R. may have applied. He even subpoenaed pharmaceutical companies that worked with Mother’s employer but with which Mother had no affiliation.
The court also pointed to Father’s filing criminal charges against Mother’s father, which caused significant stress to Mother and her family and, ultimately, were not pursued by the State. Father also filed an additional civil suit against Mother. At trial, Mother testified that Father had vowed to “destroy” her through litigation. Based on his scorched-earth litigation strategy throughout the case, the court believed Father did make that vow. The court determined that Father’s “aggressive litigation . . . was out of proportion to the outcome [he claimed he] sought.” The court found that Mother was justified in defending against Father’s “overblown” litigation tactics. See David A., 242 Md. App. at 35–36 (observing that one of the “important policy considerations” that FL § 12-103 promotes is “disincentivizing parties from engaging in conduct that produces protracted litigation”).
Finally, the court considered the financial status and the needs of the parties. It observed that Father’s resources outpace Mother’s; he earns annually more than 66% of the parties’ combined income. The court fashioned an award that it found to be within Father’s means. Contrary to Father’s argument on appeal, the court was not required to explain with mathematical precision how it calculated its award or limit it to the fees attributable to Father’s unjustified actions. See id. at 41. The record reflects that the court considered the factors required by FL § 12-103(b), which is all it needed to do. See id. Its findings, including the amount of fees awarded, were reasonable and supported by the evidence. The court’s decision was neither arbitrary nor clearly wrong.
CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 For the parties’ privacy, we use only their initials on the cover page of this opinion. For the same reason, we refer to them as Father and Mother in the body of the opinion. We likewise refer to the parties’ son, a minor, as “R.” This initial was chosen at random and may or may not correspond to his actual name. For all involved, we mean no disrespect in using these conventions.
2 Father phrased his questions as follows:
1. In its rulings on legal custody, physical custody, and attorney[s’] fees, did the trial court err or abuse [its] discretion in disregarding and omitting Mother’s gross misconduct on multiple counts: witness tampering, perjury about witness tampering, and withholding key evidence?
2. In its rulings on legal custody, physical custody, and attorney[s’] fees, did the trial court violate Father’s right to due process or abuse [its] discretion in relying on a key witness to justify its rulings?
3. In its rulings on legal and physical custody, did the trial court err or abuse [its] discretion in basing its rulings on key factual findings that are clearly erroneous?
4. In its rulings on legal and physical custody, did the trial court err or abuse [its] discretion in disregarding and omitting key evidence that contradict the court’s stated findings?
5. In its rulings on physical custody, did the trial court err or abuse [its] discretion in failing to articulate specific reasons the ordered custody schedule is in the child’s best interest?
6. In awarding attorney[s’] fees to Mother, did the trial court err or abuse [its] discretion in admitting Mother’s attorney[s’] fees invoices into evidence?
7. In awarding attorney[s’] fees to Mother, did the trial court err or abuse [its] discretion in failing to articulate how the court calculated the $100,000 award?
8. In awarding attorney[s’] fees to Mother, did the trial court err or abuse [its] discretion in basing its rulings on key factual findings that are clearly erroneous?
9. In awarding attorney[s’] fees to Mother, did the trial court err or abuse [its] discretion in disregarding and omitting key evidence that contradict[s] the court’s stated findings?
10. In its ruling on child support for private school costs, did the trial court err or abuse [its] discretion?
3 Mother was scheduled originally for a two-week rotation. One of her colleagues volunteered to take over Mother’s second week so that she could return home to her newborn child.
4 The record suggests that the parties originally agreed that Mother would isolate during her rotation, but they debate the specifics of their agreement and whether it remained intact when Mother’s rotation began. Mother insists she told Father before her rotation that she no longer believed isolation was necessary or appropriate. Father insists that Mother changed her mind only after her rotation began. The timing of when Mother withdrew her agreement is irrelevant to our analysis.
5 Dr. Vernon took notes while performing her evaluation, but, at some point, her email was “hacked,”
and her notes were lost. Dr. Simon also criticized Dr. Vernon’s failure to immediately disclose this to anyone.
6 Father now claims that he “was actively considering public school” for R. As proof, he cites to a single sentence in an email chain in which he tells Mother he is “open to considering” other public or private schools and asks if she is too. Father did not testify at any point that he was considering enrolling R. in public school. Generally, “a passing reference to an issue, without making clear the substance of the claim, is insufficient to preserve an issue for appeal, particularly in a case with a voluminous record.” Concerned Citizens of Cloverly v. Montgomery Cnty. Plan. Bd., 254 Md. App. 575, 603 (2022). Even if we were to take up Father’s argument, we disagree that the court erred in requiring him to pay for half of R.’s tuition and expenses because the Witt factors are “non-exhaustive” and need not be listed expressly. See Witt, 118 Md. App. at 169–70. The record reflects that the court “heard evidence and considered several relevant factors relating to [R.’s] enrollment in private school—most notably the parents’ consent agreement to continue with private school and their ability to pay.” See Ruiz v. Kinoshita, 239 Md. App. 395, 430–31 (2018). That was enough for the court to order them to split the costs evenly.
7 The current Guidelines now provide for combined incomes up to $30,000 per month.
8 In any event, Father is not the parent disadvantaged by the equal split of R.’s private school tuition. Because Mother earns less than Father, Mother is the one who would have benefitted from a proportional payment. Nonetheless, Mother has not challenged the court’s tuition split on appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s order requiring mother to pay father $1,400 in attorney’s fees. Because the circuit court stated that that it did not think mother had “the ability to pay,” it ordered that these fees would be paid by giving father a credit toward them on his child support obligation. This was error.
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..
denied on March 15, 2024. This timely appeal followed.
QUESTIONS PRESENTED
Mother presents the following four questions for our consideration, which we have rephrased slightly:
I. Did the trial court violate Mother’s due process rights by displaying judicial bias, preventing full cross-examination and the presentation of critical evidence, and making coercive remarks pressuring her to settle, all of which deprived her of a fair and impartial custody hearing?
II. Did the trial court err in determining the best interest of the child in the ruling on custody and child support order?
This appeal arises out of a child custody dispute. Candice Dease (“Mother”), the appellant, and Derick Houser (“Father”), the appellee, are the parents of one child, whom we shall refer to as A.B., born in January 2022.1 Mother and Father have never been married to each other. Mother lives in Camp Springs, Prince George’s County, Maryland. Father has two other children from a prior relationship. He lives with those children, his wife, M.M., and his mother-in-law, in Ashburn, Virginia.2
On September 14, 2022, Father filed a petition for custody. In that and later amended petitions, he sought sole legal and physical custody of A.B., with reasonable access and visitation to Mother. Father also requested attorney’s fees and costs. Mother filed a countercomplaint seeking primary physical custody, sole legal custody, and child support. A merits hearing on Father’s petition and Mother’s counterclaim was held on September 14, 2023. On September 25, 2023, the court entered a custody and child support order based on an equal division of physical custody. On the same date, Mother filed a motion to stay, which was denied, and a motion for reconsideration. On December 7, 2023, the court held a hearing on the motion for reconsideration and two petitions for contempt filed by Father. Mother was found in contempt and the hearing was continued to January 4, 2024. Thereafter, the court granted in part and denied in part Mother’s motion for reconsideration and determined that Mother had purged the contempt. On January 26, 2024, it entered a new custody and child support order. Four days later, Mother filed a motion for new trial, which the court
III. Did the trial court abuse its discretion by denying Mother’s motion to reconsider in part despite relevant evidence, failing to correct the clerical errors that improperly awarded Father additional overnight visits contrary to the court’s transcript, and disregarding the child’s best interest by abruptly changing the child’s established routine after pressuring Mother into an immediate decision compromising the fairness of the proceedings?
IV. Did the trial court abuse its discretion in denying Mother’s motion for new trial by failing to properly address significant procedural errors and potential judicial bias, which deprived Mother of the right to a fair custody trial?
For the reasons set forth below, we shall vacate the circuit court’s order with respect to child support and attorney’s fees but affirm the order in all other respects.
FACTS AND PROCEEDINGS
Sadly, this custody dispute has a drawn-out history. To place the issues in context, we shall set forth the procedural and factual background in some detail. As noted, a merits hearing on Father’s petition for custody and Mother’s counterclaim was held on September 14, 2023. Father appeared with counsel and Mother proceeded in proper person. At the time of the hearing, a pendente lite order was in place.
In opening statement, Father’s attorney asserted that Mother had denied Father access to A.B. since October 2022, in violation of the pendente lite order. Mother responded that she was trying to “create a consistent and stable environment” for A.B. She acknowledged that she did not abide by the pendente lite order, explaining that it did not allow for a “transition period” “from like smaller visits to overnight visits[.]” In addition, Father
had not “been involved in [A.B.’s] life for almost a year[,]” he had not “developed a bond” with the child, and Mother had filed a motion to reconsider the pendente lite order. Mother maintained that when she learned that her motion to reconsider the pendente lite order had been denied, she told Father that she “would start with the first half of the order” and would not “go straight to overnights because that made no sense.”
The court questioned Mother about when she would want Father to see A.B.:
[Mother]: I actually – we tried to come to a settlement and I actually said two days out of the week. We could try to do two days out of the week. You know, first few visits it would be supervised. After that –
THE COURT: Supervised? Why does he need to be supervised?
[Mother]: The reason why I said initially supervised is because my son does not know him. In order –THE COURT: Well, he doesn’t know him because of what you did. [Mother]: I didn’t do anything.
THE COURT: You stopped him from seeing him.
[Mother]: I didn’t stop him from seeing him. He stopped coming –
THE COURT: Ma’am, you just told me that yourself. You just finished – [Mother]: I didn’t say that I stopped coming –
THE COURT: – saying that.
[Mother]: I did not say that I stopped him from seeing him.
THE COURT: My mouth is moving.
[Mother]: I’m sorry.
THE COURT: You just said that yourself. I’m very concerned. I don’t know if you want to have this trial –[Mother]: I do.
THE COURT: – but this is – okay. Very well.
Father’s Direct Examination
Father testified that his relationship with Mother began in 2021 and ended around March or April 2022. He works Mondays through Fridays as a site supervisor for Allied Universal, where he performs security and personnel management functions. He has “control” over his shifts, can change his hours at any time, and his “schedule is definitely flexible.” He testified that he wanted an alternating weekly schedule with A.B. He also sought sole legal custody because it had been “an ongoing kind of power struggle” with Mother, who had been uncooperative and unwilling to come to an agreement on what was best for A.B. In addition, Mother had a “history of disobeying the court” and “not being able to compromise” and “set aside” past feelings or transgressions. In support of his claim for attorney’s fees, Father produced an invoice and testified that he owed a total of $20,584.94 and had already paid $7,679.33 toward that amount.
Father testified that before he filed his petition for custody, there was no “solid” custody arrangement between the parties.
From the time A.B. was born, Mother “was very hesitant” about Father’s “getting him” because “she didn’t know the activities and whereabouts and things of my family and COVID was kind of very prevalent . . . so he never came over to my established residence when he was born.” Mother began to allow visits after Father moved into his own apartment in July 2022. Initially, A.B. would be with Father once or twice a week for six to a
maximum of eight hours. Father had asked for overnight visits but Mother had said “she feels as though [A.B.’s] too young to be spending the night over my house.” Father testified that his access with A.B. ended “shortly after I filed paperwork for custody” in September 2022. The last time Father had seen A.B. was in October 2022, at his own father’s funeral.
According to Father, Mother was “inquisitive” when it came to A.B.’s being with people she did not know. Father wanted to foster relationships between his family members and A.B. but Mother “was kind of imposing and wanting to set the lead as far as him meeting my family[.]” On one occasion, against Father’s wishes, Mother took A.B. to a function held by Father’s family. Father had planned to take his wife and children to the event, but did not do so because he “didn’t want any drama to happen[.]”
Father testified that Mother did not want his wife, M.M., whom he married on May 26, 2023, to be around A.B. Mother had become “upset” when he told her he was “getting back in a relationship” with M.M. and that he was leaving one of his jobs so he could spend more time “with the kids.” Father read from the following text message Mother had sent him: 50/50 would mean he would be exposed to that on a regular basis, and that would not be in his best interest, especially when he doesn’t have to be. And [M.M.] is manipulative and malevolent in her actions. She knew what she was doing, that little bit of happiness you had without her was too much for her, and she wiggled her self [sic] back in like a parasite. I do not approve of her ways, and she can not [sic] be within 10 feet of my son until I see otherwise.
But anyway, I’m ok with some other options when it comes to joint custody that we can certainly discuss. Not sure if you’ll approve, but I think it’s doable. And you will always be able to visit [A.B.] anytime. And if you want him to come around with just you and your daughters so you can get that time with all your kids alone, I’m ok with that 100%.
Father testified that Mother had not complied with the pendente lite order, which gave him short visits that would increase over time, gradually working up to overnight visits. (A.B. has a bedroom in Father’s house in Virginia.) On a number of occasions, Father attempted to set up visits, but Mother refused. He described his communications with Mother as “[s] trained and uncooperative.” He testified that, after the pendente lite hearing, Mother refused his requests for visits because she did not yet have “an official order.” From the time of A.B.’s birth in January 2022, Father had not spent a single overnight, holiday, or birthday with him. Father expressed his feeling that it was not in A.B.’s best interest to be away from him for so long or to be away from other “parts of his family.” Father had not received constant updates on what A.B. was doing, did not have access to his medical records, and did not know the address “to where he’s being watched.” Father testified that he had asked to go to A.B.’s medical appointments but was not given an address or other information. He claimed that Mother told him in text messages that A.B.’s medical information was “restricted” and “even if I did want to go to a doctor’s visit, I could not access his information.” Father believed that A.B. had health insurance coverage through Medicare or Medicaid.
Mother’s Cross-Examination of Father
Mother cross-examined Father. At one point, she asked him about the parties’ failure to agree on a custody arrangement for A.B. After some questioning, the judge interjected and the following occurred:
THE COURT: So I’m going to ask again, are you sure we can’t work this out?
[Mother]: I don’t think – I don’t know if we can or not, honestly speaking. I think I’ve been trying to, but –[Father’s Counsel]: Your Honor, we also offered a two-twothree schedule. [Mother]: And that’s never going –[Father’s Counsel]: And – [Mother]: That’s not true. THE COURT: What –
[Father’s Counsel]: That is – we offered to do a two-twothree. So, you know, Monday, Tuesday, Wednesday and that was turned down as well.
[Mother]: That’s not true. She never offered that. And secondly, again, my main thing has always been a transition because he’s been – he hasn’t been involved for a whole year and yet he keeps saying that it’s my fault, but he actually has chosen not to be around.
[Mother]: – but still, I know that it’s still like a lot of – THE COURT: Sit down.
[Mother]: – concern for me.
THE COURT: We’re going to work this out. I’m not – I don’t think this is necessary. Go sit down.
At that point, the judge excused Father from the witness stand. His attorney advised the court that Father had offered “to do a step up” but Mother wanted “to step up until [A.B.’s] three[.]” Mother then stated, “I would like to testify.” She continued, “I don’t want to try to work things out. I would like to testify if I’m able to do so because that’s what we’re here for.” The following colloquy then occurred:
THE COURT: Okay. But you’re not – I’m telling you, this is not – who is this person supporting you?
[Mother]: This is my mom.
THE COURT: Okay. Do you understand what I’m saying to her?
UNIDENTIFIED SPEAKER: As far as what you –
THE COURT: That she’s not going to like my answer if she insists on not doing anything. So if you want to do that, go ahead.
[Mother]: I do want to testify.
THE COURT: Okay. I’m trying to – [Mother]: I want to.
THE COURT: – warn you – [Mother]: I know.
THE COURT: – I have listened to his testimony and I don’t believe that to be true. What I’m saying to you now is that this seems like something that can be worked out rather than go through this arguing thing because if I end up making a decision, you probably aren’t going to like it whereas I can sit here and work something out with the three of you and get a schedule going. He needs to be here with his father sometime. You have to agree with that.
[Mother]: I do agree with that –
THE COURT: Okay. Then we need – [Mother]: – but I also –THE COURT: – to get something going.
[Mother]: I also feel like – I also feel like my concerns – THE COURT: What are your concerns?
[Mother]: – in regards to – well, he stated that he actually does not use any type of illegal substances, but he does.
[Father’s Counsel]: Objection. THE COURT: Okay. But you –[Mother]: But he does and during that same day –
THE COURT: Ma’am, you don’t know that because you don’t live with him. [Mother]: I have it in a text message.
THE COURT: He told you in a text message – [Mother]: Yes.
THE COURT: – “I’m doing drugs?” [Mother]: He –
THE COURT: “I’m doing illicit drugs?” [Mother]: – said he did an edible, yes.
THE COURT: A what?
[Mother]: An edible.
THE COURT: That’s not even illegal anymore. [Mother]: It’s not illegal now, but it was –
THE COURT: Okay. But it’s not anymore. [Mother]: – and then that same day his daughter fell down the steps, so that’s a lot of –
[Father’s Counsel]: Your Honor, objection. THE COURT: Okay. But kids fall. [Mother]: That’s true –THE COURT: Okay.
THE COURT: – but you don’t need any more testimony and you don’t need –
[Father’s Counsel]: Okay.
THE COURT: – any more witnesses.
[Father’s Counsel]: Okay. Thank you, Your Honor.
THE COURT: You need to convince me why this man just should not be a part of his child’s life.
[Mother]: But I didn’t say that.
THE COURT: Okay. But so what I’m telling you is let’s figure out a time now and you’re saying, “No, no, no. I have to testify.” So go on. All right. Swear her[] in, please.
Mother’s Testimony
Mother testified that she is “the primary parent for our son and I have been . . . doing an amazing job and I have also had [Father] involved in our son’s life.” She lives in a three- bedroom home, works full time as a medical billing coding specialist, and is pursuing a bachelor’s degree.
Mother acknowledged that she and Father do not agree on things. She denied that Father ever had visits with A.B. two to three times per week for six to eight hours. She claimed that Father only had A.B. by himself on three occasions for about four hours. She denied that Father ever watched A.B. “every day, Monday through Friday while I went to work[.]” According to Mother, after A.B. was born, Father was “very inconsistent” in visiting A.B. He would say he was coming over but then would not show up. Mother “set boundaries” by asking Father to tell her exactly what days he was coming because “he wanted complete flexibility.” Mother stated that Father’s schedule didn’t really allow for certain things. So I’m like, I’m trying to be reasonable with you and flexible with you, but if you’re telling me you can’t give me any type of consistency for our son at all, we need to do this a different way.
Later, Mother testified:
[Father] was being – he was inconsistent, but he was at least trying to come and see our son maybe like once, twice out of the month. He would say he was coming about six to seven times, but he would only come like once or twice out of the month.
Mother testified that her main job was “being a mother and making sure that [A.B.’s] developmental milestones are completely uninterrupted by any type of inconsistencies.” She claimed that Father had “been offered to spend Thanksgiving” with A.B., but Father declined because it was not enough time. She testified that Father “started not to come around” when he got back together with M.M. After then, he started to have an issue with going to Mother’s house. Nevertheless, she “pushed” for Father “to have those visits with [A.B.] by himself.”
The judge asked Mother, “what do you think would be the ideal situation for your son regarding access with his father?”
Mother responded that the first two or three visits should be supervised because A.B. does not know his father. After that, there would need to be a transitional period in which Father would be with the child for “a few hours” and then the hours would be extended. Mother thought the transitional period should last for three to four months so as not to be “a developmental shock” to A.B. Mother stated that “the end goal was not 50/50, week on/week off.” She suggested that, because the parties live an hour apart, A.B. should spend the weekdays with her and Fridays, Saturdays and Sundays with Father. When questioned by the court, Mother said she would be okay with Father’s picking up A.B. at school on Thursday and then bringing him back to Mother’s house on Sundays.
Mother requested sole legal custody. The judge responded:
I’m going to tell you both, I – it’s a rare thing. Somebody has to be a bad parent for me to say one of you has sole physical – sole legal custody. It doesn’t make sense. You created him. That’s who you picked and that’s who you picked and now you all have to do this thing jointly for the next 17 years. So neither one of you all is going to get that, so go ahead.
* * *
– I’ve heard everything. I don’t think either one of you is a bad parent. I think that you are a little bit too clingy and won’t let it go and it’s time to let him be with his father more often and I actually agree with you that now that it’s been so long that you can’t just go, “Whoop, go over there and stay.” So I understand that, but your timeline is a little bit off. That’s all.
After Mother’s direct testimony, Father’s lawyer began to cross-examine her. After asking a few questions, the judge told counsel to sit down and said, “[t]his is just not necessary.” The court then proceeded to announce its ruling.
The Court’s
Ruling
The court found that both parties are fit and that there was no evidence about character or reputation that would preclude either of them from having custody of A.B. The court stated that “[t]he willingness of the parents to share custody is a little bit iffy, but I think that we’ll be able to work that out once the Court makes an order.” As for each parent’s ability to maintain the
child’s relationship with the other parent, siblings, relatives, and any other people who may psychologically affect the child’s best interest, the court found that Mother “has a different [sic] time with that.” The court found that Father has two other children living in his household and that Mother has none, and that the preference of the child was “not applicable.” As for the capacity of the parents to communicate and share decisions affecting the child’s welfare, the court said, “I think once the court has an order for you, I think you’ll be able to do that.”
The court determined that each parent has the ability to maintain a stable and appropriate home for the child and recognized that the one hour distance between the parties’ homes is “a little bit difficult.” In announcing its ruling, the court asked Mother for her income and Mother said she earns $52,000 a year. Counsel for Father advised the court that Mother had not produced any documentation to show her income, but the judge responded, “[s]he said it was 52,000. I know she didn’t like [sic] to me. Fifty-two thousand. Okay.” After some discussion between the judge, counsel, and Mother, the court determined that Mother’s monthly income is $4,333. The court found that Father’s monthly income is $4,680.
The judge recognized that Father “now has a job where he has more flexibility[.]” With respect to the relationship between the child and each parent, the court found that Mother has a relationship with the child but Father has been separated from his one-year- old child for eleven months, “so he hasn’t seen the child at all.” The court also found there was no impact on state or federal assistance. The court found that both parents have the ability to meet the child’s needs regarding education, socialization, culture and religion, and mental and physical health; and the ability to consider and act on the needs of the child as opposed to their own needs and desires. The court also found that both parents have the ability to protect the child from the adverse effects of any conflicts between the parties. With respect to the history and efforts of one parent to alienate or interfere with the child’s relationship with the other parent, the court found that Mother “has done that consistently for 11 months.” The court found that A.B. had not been exposed to any domestic violence. As for parental responsibilities, the court found that they could not be observed as to Father because Mother had “refused to permit him that opportunity.” The court also found that each party had the ability to co-parent the child without disruption to his social and school life and noted that there was no “school life” for A.B. given that he was one year old.
After making those findings, the court awarded joint legal custody without tie- breaking authority. As for physical custody, the court decided to “move slowly to get [A.B.] back with his father but not at a snail’s pace.” The court set forth a detailed schedule stating the dates and times for visits with Father and a holiday and summer schedule.
Father asked to have A.B. added to his health insurance and the court granted that request, although Father did not know the cost of a family plan. Mother advised the court that she had “the option” to be on “Wellpoint,” which she described as “an insurance kind of like through the state[.]” The cost for that coverage was $73 a month for both Mother and A.B. The judge suggested that Father’s health insurance coverage was
“probably better,” but Mother said that with “state insurance” there would not be any co-pays and “[e]verything is covered[.]”
The judge responded, “[a]ll right” and then immediately questioned counsel about whether the number of overnight visits had been calculated. The court decided that Mother should pay Father for the cost of gas for a one way trip to drop off or pick up the child. Later, the court determined that, for the first month, Mother would drop off and pick up A.B. at a specified restaurant at Tyson’s Corner. As for taxes, Father was to claim the child as a dependent in even years and Mother in odd years.
Child Support and Attorney’s Fees
The court determined that Father would be responsible for child support in the amount of $453 per month, to be paid through “Child Support.” As for Father’s request for attorney’s fees, the judge ruled as follows:
Okay. And so attorney’s fees, I would have to – I don’t think that she has the ability to pay which is one of the factors that she would be able to pay him the attorney’s fees, but I do think that there needs to be some kind of –
had ordered a transcript of the hearing. Counsel for Father advised the court that Mother was not allowing the visitation that had been ordered. Mother explained:
The first – the first, like she said on Saturday [A.B.] was supposed to go to a birthday party. He wasn’t able to; he actually was diagnosed with RSV. I actually reached out to [Father] and let him know. I actually gave him a doctor’s note that said he couldn’t be around any household with children until he didn’t have a fever for 24 hours. It had in a doctor’s note. I actually have a doctor’s note right here. So that’s what happened with the first visit.
The second visit there was – how do I explain it? That second visit he brought his wife and a whole discombobulation happened, and I took my son back home, because it was just – it got out of portion [sic]. He blocked my car and wouldn’t let me leave. It was just – it was too much, so I took my son home.
Counsel for Father stated that Mother had an issue with Father’s wife and did not want her around the child. Mother responded that she did not “have a problem at all with [Father’s] wife being around my child[,]” but she also questioned why Father would bring his wife to the exchange and stated that she did not trust or like M.M. Father’s counsel and Mother engaged in an extensive exchange on the record. The judge then interjected and stated on the record:
I’m going to give him a credit of $1,000 – of $1,400, I’m sorry, on the attorney’s fees. So that gives you time – that’s what I’m going to do. Three months’ credit. So that gives you time to sign up for child support so it’ll start coming out of his pay.
So three months he’s not paying child support. That gives you time and that’s for the penalty on the attorney’s fees. That gives you time to go down and set it up.
September 25, 2023 Hearing
On September 25, 2023, the court entered a written child custody and support order. On the same day, the court held a hearing at which Mother advised the court that there were provisions in the written order that were inconsistent with the court’s oral ruling. As alleged by Mother, the errors included the following:
1. the time for Father’s Sunday visits was changed from 10 a.m. to 7 p.m. to 10 a.m. to 2 p.m.,
2. the time for the visit on October 13th was changed from starting on Saturday at 10 a.m. to starting on Friday at 10 a.m.,
3. the court’s written order provided that Father would include A.B. on his health insurance coverage even though at the hearing the court said “fine” after Mother stated that her insurance cost $73 and had no co-pays or co- insurance, and
4. the court’s written order provided that from December 26 to 29th, the child would be with the parent who did not have him for Christmas.
Mother could not recall the details of the visitation schedule following the Christmas holiday but advised the court that she
Okay. I’m back. I don’t – this is not The Jerry Springer Show, so I’m not going to sit through that. I done left, gone to the bathroom and came back, and you all still going.
The judge continued:
[Mother], I gave you a specific order. I did not tell you that you get to make changes to the order and tell them who can come and who cannot. You are literally wanting me to find you in contempt, and I will. So he needs to get on that schedule, and this needs to happen. It’s none of your business who is with him when he’s with his father, short of somebody is hurting him, and that’s the end of that.
Father advised the court about problems he had encountered with Mother’s not telling him immediately that A.B. was in the hospital. He also said that he waited almost three hours in a parking lot for Mother to drop off A.B. but she never answered his calls or communicated about the child’s whereabouts. The judge then addressed Mother as follows:
THE COURT: I don’t know why this is so difficult. I don’t understand this. If you had a child in the hospital, I don’t know why their father wouldn’t need to know that immediately. And immediately does not mean two days later; it means immediately.
[Mother]: Listen, he wants to –
THE COURT: My mouth is still moving, and I’m done. I am done with this. You need to get on that schedule, and it’s what the order says until you bring me the transcript that says something different. We’re following the order that I just signed and that’s that.
And if you don’t follow it, you will be held in contempt and be subject to incarceration.
Is everybody clear? All right. Thank you. Parties are excused.
December 7, 2023 Hearing
On December 7, 2023, the court held a hearing on two petitions for contempt filed by Father and a motion for reconsideration of the September 25, 2023 order filed by Mother. One contempt petition pertained to Father’s claim that he was denied access to A.B. pursuant to the pendente lite order and the other, filed on October 25, 2023, pertained to Father’s claim that, with the exception of one visit that took place on October 1, 2023, he was denied access to A.B. under the court’s September 25, 2023 custody order. Both parties were represented by counsel, but Mother’s attorney advised the court that he had been retained two days prior, and his appearance was limited to the contempt petitions and “the motion to modify argument.” The court and the parties agreed to proceed first on the two petitions for contempt and thereafter on Mother’s motion for reconsideration.
Father testified that he did not have visitation with A.B. on any of the dates set forth in the pendente lite order. Mother stipulated to that fact. Father asserted that he had asked Mother between two and five days in advance about visits with A.B. and that she then waited until the last day before or the day of the scheduled visit to tell him that the child was not coming. After the September 25, 2023 order was entered, Father had one visit with A.B. on October 1, 2023. On other dates when visits had been ordered to occur, Father appeared at the agreed pick-up location, but Mother never appeared with the child. Father described the various reasons Mother had given for denying the visits, stating:
There have been instances where she has said that the order is not correct, and that she was given instruction not to – to wait until she got the transcript. Then she said the transcript is incorrect. So therefore she’s not following it. And then also there have been several times where she just says, [A.B.] is not coming. And then also outside of [A.B.] is not coming, I finally got a text message basically stating that his behavior is different and he is not coming with me, basically, after the visit on October 1st.
Father testified that he had asked Mother for information about who watches A.B. when she does not and for A.B.’s medical and “shot” records but she did not provide any of that information. According to Father, Mother tried to get him to deviate from the court order. She claimed that A.B.’s demeanor had changed after his visit with Father, that “the order is unreasonable,” and that “basically it’s not within [A.B.’s] best interest for him to basically spend overnight visits as fast as he has, and a child should not split 50/50 in different households.”
Father testified that his attorney’s fees for the period November 5 through 29 were $11,618.96. The court took judicial notice that the rate for paralegals at Father’s lawyer’s firm was $175 per hour, and the rate for attorneys was $400 per hour. The court found those rates to be “reasonable.”
Mother testified that she did not abide by the first six visits provided in the magistrate’s report and recommendation that was later adopted by the court. She claimed that she had used a service in the courthouse for self-represented individuals and was told that the magistrate’s recommendation was “not an official order until it’s signed.” With that information, she
filed a motion to reconsider. She believed that filing the motion relieved her of any obligation to follow the visitation schedule. When she received the signed pendente lite order, an overnight visit was set to occur on September 9th, but it did not take place. Mother explained:
Well, I did – [Father] did reach out to me to get the visit and I did say, well, since he didn’t do that overnight visit, would it be okay for us to do the short visit? Like, I’m okay with doing the short visit, but he hasn’t had any overnights yet and my son does have – I don’t want to say adjustment issues, but he does have adjustment issues.
So I did ask [Father] if we could just start from the beginning of the order, and he said no. He wanted to start from where we were. And from that point, I just didn’t want him to be – again, you know, just traumatized spending the night with someone. He hasn’t been able to spend the night with anyone since he was born. He’s only spent the night with me, so I just didn’t want to just – . . . uproot him.
At the hearing on September 25, 2023, Mother raised the issue of certain discrepancies between the court’s ruling on the record and the written order. Notwithstanding that the judge told her to follow the written order until she obtained the transcript, Mother testified that a visit scheduled for September 27th did not occur because
A.B. was still recovering from being sick, and I think that I agreed to 7:00 a.m. for my son because I was trying to make it easier for [Father]. I know he said that at that time worked much easier for him. But like I said, it really did change his routine. So that’s what I was, you know, trying to keep, like, his routine the same.
Mother testified that once she received the transcript and confirmed there were discrepancies, she tried “to figure out what [she] was supposed to do” because she did not want A.B. to have too many changes in his routine because he has “adjustment issues.” When asked to explain why visits did not take place, Mother stated:
Yes. So it did not take place after that because I did notice a little bit of change in [A.B.’s] behavior. And like I said, I know that those upcoming visits were about to be those overnights that were not in the ruling. So I just did not know what I was supposed to do at that point And I wanted to make sure that, you know, like I said, his routine wasn’t interrupted[.]
Mother asked that A.B. “not be uprooted from his routine right now” and that the parties “[j]ust start from the beginning, just so [A.B.] could get those smaller visits in there, because I do not want him to – this to affect him.” The parties calculated that Father had missed twelve overnight visits and nineteen day visits with A.B. Mother’s counsel acknowledged that Mother had “frustrate[d] the visitation schedule to a large degree,” but asked the court to spread out additional visits with Father “over the next few months.” The court responded:
Here’s the problem. First of all, I’m not starting over. I’m not doing that because she’s going to do something else. I don’t believe her. I don’t believe she didn’t understand because she stood in this courtroom and we had long – I remember her so well. I asked her if she wanted an attorney. You know,
you should have an attorney. She said no, she was going to represent herself.
And I had already made her pay some attorney fees for not doing what she was supposed to do, and she didn’t care. And I know she doesn’t care, because to this day, she still saying –. . . “my son.” And the problem is . . . it’s not her son. It’s their son, and the son has a right to a father and he has a right to his sisters and this is outrageous to me.
And I wish, honestly, that I could just lock her up. I really wish, but I know that contempt, they say you can’t do that with contempt in family cases, but I would, because I think she’s playing games with me.
Mother interjected saying the judge’s statements were “not true” and that she was “absolutely not” playing games. The judge told Mother, “[s]top talking” and this exchange followed:
THE COURT: I don’t think I can give him nineteen days in a row because he is going to miss his mother. I don’t think she’s a bad mother. I don’t think that. But she is being selfish, thinking about herself and not the child. That’s what’s happening, and it can’t happen again.
I’m going to be very clear about this. I don’t want any misunderstandings. He’s going to pick up that child today, and the child is going to stay with him until Saturday. That’s it. And then he’s going to continue picking up that child on the weekends.
What time can you pick him up on the weekends?
[Father]: I can probably – I started a new job, so I can probably get him about 5:00 or 6 o’clock.
THE COURT: In the evening? [Father]: Yes, ma’am. Six o’clock in the evening. THE COURT: On Friday? [Father]: Yes.
THE COURT: All right. So now we’re back to Friday until Sunday at 10 o’clock, and that’s it. And if he misses one day, I’m going to find that she’s actually being abusive to this child by not permitted [sic] him to have contact with his father and that’s going to be the end of the conversation. She can go visit him supervised at a center. I am done.
The court ruled that Father would have A.B. for the Christmas holiday and that make-up visitation would be added to Father’s summer visits so that he would have the child for one week and then Mother would have the child for four days until the missed days were made up. The court set a new hearing to consider Mother’s motion for reconsideration of the September 25, 2023 order, specifically to correct any errors that might have occurred with respect to dates and times. At the conclusion of the hearing, the judge stated: If the record is not clear, I found her in contempt. . . . And she can avoid jail time by purging, and we figured out a schedule for her to purge, which is what we just did.
The court also awarded attorney’s fees to Father for the petition for contempt. The judge asked Father’s counsel to “figure out which part [of the attorney’s fees] is for the contempt[,]” and said, “[a]nd then he can get credit on his child support.”
January 4, 2024 Hearing on Mother’s Motion to Reconsider
At the hearing on Mother’s motion to reconsider the court’s September 25, 2023 order, Mother appeared in proper person and Father was represented by counsel. At the start of the hearing, the judge asked Father’s counsel if Mother had “purged” and done “what she was supposed to do[.]” Counsel replied that Mother had followed the court’s order and there had been no problems with visitation since the last court hearing.
As a preliminary matter, Mother asked the court to reconsider its ruling on child support. She argued that, prior to the custody and child support order, Father had paid child support inconsistently, and, if the court had considered that, perhaps it would not have ordered her to pay a portion of Father’s attorney’s fees. The court denied Mother’s request on the ground that Mother had failed to produce financial documentation in discovery.
In her motion to reconsider, Mother argued that there were discrepancies between the court’s ruling on the record during the September 14, 2023 hearing and the written order entered on September 25, 2023. The court reviewed the written order line by line. It agreed to make a number of changes, including that Thanksgiving visits would end at 7
p.m. on the Friday after the holiday; that visits on each parent’s birthday would end the following day at 8 a.m.; that if visits for A.B.’s siblings’ birthdays fall on a Saturday, the parties will exchange Saturday visits; that weekend visits would be from 10 a.m. Friday to 4 p.m. on Sunday; and that certain notice would be provided before travel. The parties and the court agreed to eliminate Father’s Wednesday visits and extend his time with A.B. on Sundays from 4 p.m. to 8 p.m. The court also clarified that the parent picking up the child would be required to drive to the other parent’s home. In addition, the court ruled that the non-custodial party could call A.B. at 11 a.m. on Saturdays.
At that point, Mother expressed concern about the schedule and suggested that she have A.B. Monday through Friday with Father picking him up and having him from Friday to Sunday. Mother stated that the proposed schedule would not work because the child’s “routine that he has is set with me, it’s not set with his father.” The judge responded:
But it would be. It would be if he’s that, because it doesn’t really matter what the routine is, kids adjust very quickly. So if you’re saying you prefer that you get Friday to Monday.
Mother expressed her opposition to that schedule, repeatedly saying that that plan “does not make sense” because Father works Mondays through Fridays, and she is able to keep up with the child’s routine because she works from home. Eventually, the judge stated:
Okay. So we’re back to where I started. That’s perfectly fine. He’ll be with his father Monday through Friday on this one less schedule change and with you Friday to Monday and the rest of the holiday stuff with [sic] stay.
Mother protested and after some conversation with the judge, the following colloquy occurred:
THE COURT: Okay. So I’m just going to do that, Monday through Friday with dad. Let her know what time he wakes up and what time he goes to bed. And he will be with you
Friday to Monday. And this resolves the problem. [Mother]: I think –
THE COURT: I’m not spending another 40 minutes –[Mother]: I think that –[Father’s Counsel]: That’s beginning June 2nd, right? * * *
THE COURT: Yeah, beginning June 2nd. All right. [Mother]: I – Your Honor – Your Honor –THE COURT: I’m not going to go through this again. We’ve been talking about the same schedule for 30 minutes.
[Mother]: Your Honor – Your Honor, if it’s going to be like that, then we could just do the four day/four day. And we can just do that and the reason I say that is because my main reason for asking for that is so that when he actually starts school he wouldn’t have to readjust because I would –THE COURT: Okay. And I’m saying fine, so he will be with this side of the family Monday through Friday, we’ve got to change the times, and with you Friday to Monday. And if Monday is a holiday, with you Friday to Tuesday.
[Mother]: I don’t think that that – I don’t think a change like that should happen. I really don’t think that that is beneficial THE COURT: Why? It’s not beneficial? It’s the same schedule you just told me to give him.
[Mother]: Right, but that was based on the fact that this had been his routine, this had been his routine –
THE COURT: That’s not been over six months now, we’re at new routines. That’s not the routine he was in before. We have new routines.
So you’re going to have to make a decision in the next two minutes. He’s either going to do it – the schedule you said but opposite of what you said, or we’re keeping the four day/four day, and we’ll see you when he comes to school. Those are the choices and you’ve got two minutes to decide. I’m not going to spend this time explaining to you that what you offered was perfectly fine when it was with you, but suddenly it’s not perfectly fine when it’s that side of the family. He’s got two families, that’s the bottom line.
[Mother]: That’s perfectly fine. THE COURT: Okay.
[Mother]: We’ll just keep it the four day/four day. That’s what I would decide.
THE COURT: Okay. I thought that might work. Okay. So can you get me the new order, ma’am?
[Father’s Counsel]: Yes, Your Honor. * * *
THE COURT: Okay. Anything else?
[Mother]: No. I just really – I really wanted like the for – I don’t know, I just – it’s like we took like the – we were required to take like a parenting course and talked about what would be the best schedule for like a toddler. It just doesn’t seem like it’s being child focused, it seems like it’s more –
THE COURT: Okay. Okay.
[Mother]: – I understand what you’re saying – but it feels like there’s no child focus at all.
THE COURT: You’re right. Okay. I’m – okay, this is the final. We’re going to go with what you said, since you feel it’s not child focused. Monday through Friday with dad, Friday
through Monday with mom. That’s it.
[Mother]: No, no, Your Honor –
THE COURT: That’s it – [Mother]: – Your Honor – THE COURT: – stop talking – [Mother]: – please –
THE COURT: – I am done. [Mother]: – please –
THE COURT: No, ma’am.
[Mother]: – please – THE COURT: I’m done.
[Mother]: Please.
THE
COURT: Monday through Friday with dad starting June and Friday to Monday with mom, if Monday is a holiday, mom gets Monday and it’s Friday to Tuesday. All right.
Thereafter, the judge advised the parties that in light of the change in the schedule, they would need to recalculate child support starting in June.
On January 26, 2024, the court entered a written order reflecting, among other things, its decision that, beginning on June 1, 2024, Father would have A.B. Monday through Friday, and Mother would have him from Friday through Monday. The order also provided that Father would pay child support in the amount of $453 per month beginning on October 1, 2023, and that beginning on June 1, 2024, he would pay child support in the amount of $262 per month via a wage withholding order. The order provided that Father would receive a credit of $1,400 toward his attorney’s fees from Mother, “which shall translate in that same amount less toward Child Support payments in total. As such, [Father] shall not begin his Child Support payments for three (3) months[.]”
Mother’s Motion for New Trial
Four days after the January 26, 2024 order was entered, Mother filed a motion for new trial and to alter or amend the order. She argued that the court had violated her right to fairness in the proceedings; that the court had erred in failing to admit an exhibit she had offered; that the court had repeatedly insisted that she “settle” the case as the court’s decision would not be in her favor; that the court’s decision was made before Mother gave any testimony; that the court had denied her an opportunity to cross-examine witnesses listed on Father’s witness list; that the court had erred in determining that she had alienated A.B. from Father; that the court had erred in refusing to review evidence that one of Father’s daughters had fallen while Father was under the influence of a substance that was illegal at the time; that the court had erred in failing to award child support arears; that the court’s “hasty” decision on January 4, 2024 could impact A.B.’s “development and further impose unnecessary adjustment for the minor child”; and that some clerical errors remained in the court’s order of January 26, 2024. After a hearing on March 15, 2024, the circuit court denied Mother’s motion for new trial and to alter or amend.
STANDARD OF REVIEW
In an action tried to the court, we “review the case on both the law and the evidence.” Md. Rule 8-131(c). We “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.” Id. In reviewing a child custody case, “Maryland appellate courts
apply three different but interrelated standards of review[.]” In re Adoption of Cadence B., 417 Md. 146, 155 (2010). The Maryland Supreme Court has described these standards as follows:
When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule 8-131(c) applies. Second, if it appears that the 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. Finally, when the appellate court views the ultimate conclusion of the court founded upon some legal principles and based upon factual findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion.
In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (cleaned up) (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)).
We review a trial court’s custody determination for abuse of discretion. Santo v. Santo, 448 Md. 620, 625-26 (2016). In Santo, the Court explained:
This standard of review accounts for the trial court’s unique “opportunity to observe the demeanor and the credibility of the parties and the witnesses.” [Petrini v. Petrini, 336 Md. 453, 570 (1994).]
Though a deferential standard, abuse of discretion may arise 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.’” In re Adoption/ Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal citations omitted). Such an abuse may also occur when the court’s ruling is “‘clearly against the logic and effect of facts and inferences before the court’ or when the ruling is ‘violative of fact and logic.’” Id. (internal citations omitted). Put simply, we will not reverse the trial court unless its decision is “‘well removed from any center mark imagined by the reviewing court.’” Id. at 313 (citation 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.” Ross v. Hoffman, 280 Md. 172, 178 (1977). Id.
As with custody determinations, visitation orders generally are “‘within the sound discretion of the trial court, not to be disturbed unless there has been a clear abuse of discretion.’” Brandenburg v. LaBarre, 193 Md. App. 178, 186 (2010) (quoting Barrett v. Ayres, 186 Md. App. 1, 10 (2009)).
DISCUSSION
I.
Mother contends the circuit court violated her due process rights by displaying judicial bias, preventing full crossexamination and the presentation of critical evidence, and making coercive remarks pressuring her to settle, all of which deprived her of a fair and impartial custody hearing. These contentions are not properly before us. Ordinarily, we will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court[.]” Md. Rule 8-131(a). A party must object in the trial court to preserve issues
of judicial bias for appellate review. Md. Rule 8-131(a); Joseph v. State, 190 Md. App. 275, 289 (2010); Acquah v. State, 113 Md. App. 29, 60 (1996).3
With respect to Mother’s assertions that the trial judge “demonstrated bias and coercion,” “presented confirmation bias,” “create[ed] a[n] impartial atmosphere,” and made remarks that were “coercive, and to some extent threatening,” the record makes clear that Mother did not ask the trial judge to recuse herself. A timely motion for recusal is one that is made “as soon as the basis for it becomes known and relevant” and not “one that represents the possible withholding of a recusal motion as a weapon to use only in the event of some unfavorable ruling.”
Conwell L. LLC v. Tung, 221 Md. App. 481, 516 (2015) (internal quotation marks and citations omitted). For that reason, “‘a litigant who fails to make a motion to recuse before a presiding judge in circuit court . . . waiv[es] the objection on appeal.’” Id. at 516-17 (quoting Halici v. City of Gaithersburg, 180 Md. App. 238, 255 n.6 (2008)); see also Braxton v. Faber, 91 Md. App. 391, 407 (1992) (stating that “it is incumbent upon counsel [during trial] to state with clarity the specific objection to the [allegedly biased] conduct . . . and make known the relief sought” when challenging a trial court for bias).
The same holds true with respect to Mother’s assertion that the trial judge did not allow a full and fair presentation of the case, limited Mother’s ability to cross-examine witnesses, and ended cross-examination of Mother by Father’s counsel. Trial judges “have wide latitude to establish reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Pantazes v. State, 376 Md. 661, 680 (2003). To preserve an objection to a limitation on cross-examination, a party must proffer what the witness’s testimony would have been. See, e.g., Grandison v. State, 341 Md. 175, 207 (1995) (“Control over the extent and scope of cross-examination rests within the discretion of the trial judge, and his [or her] ruling will not be overturned absent an abuse of discretion.”).
To the extent that Mother maintains she was prevented from presenting a witness, she failed to proffer the identity of the witness and the witness’s anticipated testimony. At the hearing on her motion for new trial, Mother suggested that she was not permitted to cross-examine witnesses who had been identified by Father. Those witnesses were not called by Father and Mother acknowledged that she had not subpoenaed them for trial. As to Mother’s other claims, she failed to raise them in the trial court. As a result, these issues have been waived and are not properly before us. Md. Rule 8-131(a).
Finally, Mother argues that she had evidence in the form of a text message to show that, on one occasion, Father was under the influence of an edible substance and was impaired when one of his daughters fell down some stairs. She takes issue with the trial judge’s statement that the substance allegedly taken by Father was no longer illegal. At no point, however, did Mother actually produce a copy of the text message, mark it as an exhibit, and attempt to have it admitted in evidence. Accordingly, the issue has been waived. Md. Rule 8-131(a).
Mother contends the trial court erred in its ruling on custody and child support because it made an erroneous best interest of the child decision. In support, she argues, among other things, that the court should have based its custody determination “on what was in the best interest of the child at that time, and not what occurred over a year ago” and that the custody decision should have focused on stability. Mother also challenges the trial court’s award of child support and its decision to give Father a credit against his child support obligation to cover attorney’s fees. In addition, she argues that the trial court’s award of attorney’s fees to Father was made without good cause and was an abuse of discretion.
Custody Determination
Custody and visitation decisions are governed by the best interest of the child standard. Gordon v. Gordon, 174 Md. App. 583, 636 (2007). In assessing the child’s best interest, the court is to consider the relevant guiding factors set forth in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978), and Taylor v. Taylor, 306 Md. 290 (1986). Although “[t]he best interest standard is an amorphous notion, varying with each individual case,” a fact finder should “evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.” Sanders, 38 Md. App. at 419. Courts “are not limited to a list of factors in applying the best interest standard in each individual case,” Azizova v. Suleymanov, 243 Md. App. 340, 345 (2019), but cases beginning with Sanders and Taylor have provided a checklist of more than twenty non-exhaustive factors, many with significant overlap, that a court must consider when making custody determinations. Those factors include: (1) the fitness of the parents; (2) the character and reputation of the parties; (3) the desires and prior agreements of the parents; (4) the potential of maintaining natural family relations; (5) the child’s preferences; (6) material opportunities affecting the future life of the child; (7) the child’s age, health and sex; (8) where the parents live and the opportunity for visitation; (9) the length of the child’s separation from the parents; (10) either parent’s voluntary abandonment or surrender; (11) the parents’ capacity to communicate and reach shared decisions affecting the child’s welfare; (12) the parents’ willingness to share custody; (13) the established relationship between the child and each parent; (14) potential disruption to the child’s social and school life; (15) the demands of each parent’s employment; (16) the age and number of the children; (17) the sincerity of each parent’s request for custody; (18) the financial status of the parents; (19) the impact the custody decision may have on any party’s state or federal assistance; (20) the benefit to the parents in maintaining the parental relationship with the child; and (21) any other consideration the court determines is relevant to the best interest of the child. See Jose v. Jose, 237 Md. App. 588, 599-600 (2018) (citing Taylor, 306 Md. at 304-311, and Sanders, 38 Md. App. at 420). Although the trial court must consider the relevant factors, it is not required to articulate on the record its analysis of each factor. Long v. Long, 141 Md. App. 341, 351 (2001); see also Prahinski v. Prahinski, 75 Md. App. 113, 136 n.6 (1988) (“[A] trial court is not required to articulate each step in
its thought process[.]”). The “mere lack of an explicit discussion of each of the factors on the record by the trial court does not necessarily mean that the trial court erred[.]” Long, 141 Md. App. at 351. In addition, when considering the Sanders-Taylor factors, “no one factor serves as a prerequisite to a custody award.” Santo, 448 Md. at 629. The trial court “should examine the totality of the situation in the alternative environments and avoid focusing on any single factor” to the exclusion of all others. Best v. Best, 93 Md. App. 644, 656 (1992). Contrary to Mother’s assertion, the court did not impose a time limitation or constraint in considering the child’s best interest. Moreover, the court was not required to give special weight to stability over other relevant required considerations. As explained in our discussion of the court’s decision-making at the September 14, 2023 hearing, the court in fact gave consideration to the required factors and articulated its findings with regard to custody on the record. It is not our function to retry the case or reweigh the evidence. Kremen v. Md. Auto. Ins. Fund, 363 Md. 663, 682 (2001).
Several of Mother’s arguments are not properly before us. As stated previously, ordinarily we will not decide any issue “unless it plainly appears by the record to have been raised in or decided by the trial court[.]” Md. Rule 8-131(a). Mother maintains that the trial court’s decision was based on incomplete evidence but fails to direct our attention to any specific item of evidence that was excluded. As noted, Mother’s documentation pertaining to her claim that Father allegedly used an edible form of marijuana was not presented at trial. Mother also points to the court’s decision to cut short her cross-examination of Father and the court’s statement that Mother did not need any further testimony or witnesses. The record does not show that Mother lodged an objection to these rulings or that she proffered any evidence that she was unable to present or witnesses that she wished to call. On the record before us, we cannot conclude that the trial court abused its discretion in its assessment of A.B.’s best interests or in its ultimate custody determination.
Child Support and Attorney’s Fees
As set forth above, the trial court awarded Father $1,400 toward his attorney’s fees. It ordered that the fees would apply as a credit against Father’s child support obligation, which was set to begin on October 1, 2023, so that for three months, the payments he would be making for child support would not go to support but to attorney’s fees. Mother contends the trial court’s decision to award attorney’s fees was “without good cause,” and the court abused its discretion in ordering the credit against Father’s child support obligation. We agree.
In two motions to compel discovery, Father sought attorney’s fees under Rule 1- 341(b).4 In considering that request, the court stated that it did not think Mother had “the ability to pay”;5 nevertheless, it proceeded to order her to pay Father $1,400 in attorney’s fees.6 The court ordered that these fees would be paid by giving Father a credit toward them on his child support obligation. This was an abuse of discretion.
A child’s parents are his ‘“natural guardians”’ and owe the child a ‘“legal, statutory obligation of support.”’ Walker v. Grow, 170 Md. App. 255, 265 (2006) (quoting Lacy v. Arvin, 140 Md. App. 412, 422 (2001)). “A parent owes this obligation . . . to the child
regardless of whether the child was the product of a marriage.” Id. (cleaned up). Maryland courts have conventionally imposed an obligation on parents to provide for their children, while conferring “perfect right[s]” to children to receive such support and maintenance. Middleton v. Middleton, 329 Md. 627, 632 (1993) (cleaned up) (quoting Carroll Cnty. Dep’t of Soc. Servs. v. Edelmann, 320 Md. 150, 170 (1990)). This policy is codified in Maryland’s child support guidelines, Maryland Code, Family Law Article (“FL”) §§ 12- 201 through 12-204.7 The guidelines are designed to ensure that, when parents live apart, parental income, and thereby enjoy[s] the standard of living, [that] he or she would have experienced had the child’s parents remained together.” Voishan v. Palma, 327 Md. 318, 322 (1992).
A circuit court does not have the authority to “select, at its complete discretion, which of its orders should be deemed child support.” Goldberg v. Miller, 371 Md. 591, 603 (2002). It is bound by the “Legislature’s plan for calculating the amount and character of a child support award.” Id. at 603-04. By way of the child support guidelines, trial courts are directed through “specific descriptive and numeric criteria” in order to determine a parent’s child support obligations. Voishan, 327 Md. at 322 (quotation marks and citation omitted). For that reason, we shall remand to the circuit court the issues of attorney’s fees, child support, and child support arrears arising from the three months A.B. was deprived of child support.
We note that the court ordered that Father shall provide medical and dental coverage for A.B. At the hearing below, no evidence was presented to show the cost or any other details about either parent’s medical or dental insurance benefits. Mother spoke about the possibility of purchasing coverage from Wellpoint, but gave the cost of coverage for both her and the child. On remand, in determining child support, the court shall consider the medical and dental insurance coverages available for A.B. The court may also consider the cost of transportation between the parties’ homes. FL § 12-204(i)(2).
Mother also contends that the circuit court erred by denying her request for child support retroactive to January 30, 2023, the day she filed her counterclaim for custody. In support, she cites FL § 12-101(a)(1), which provides that “[u]nless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support.” Subsection (a)(3) provides that “[f]or any other pleading that requests child support, the court may award child support for a period from the filing of the pleading that requests child support.” FL § 12-101(a)(3) (emphasis added). In her counterclaim, Mother checked a box stating that Father was not making regular child support payments. She included a handwritten note stating that, in October 2022, Father started helping but she was not sure he would be consistent with that. In her counterclaim, Mother requested custody and child support, but did not request pendente lite child support. Nor did the court’s pendente lite order address child support. The court was permitted, but was not required, to award child support from the date of Mother’s counterclaim. The record does not disclose that the trial court abused its discretion in deciding not to award Mother child support from the date she filed her counterclaim.
Lastly, Mother challenges the trial court’s decision that the parties alternate claiming A.B. as a dependent on their tax returns. She maintains that the decision should be “made by the parents, as it is determined by the [Internal Revenue Service] based on custodianship,” and therefore the issue is “outside the judge[’s] jurisdiction.” We disagree. We review a circuit court’s allocation of tax dependency exemptions for abuse of discretion. See Reichert v. Hornbeck, 210 Md. App. 282, 348 (2013). In Reichert, we held that “when both parents share joint physical custody of the child on an essentially 50/50 basis,” the tax exemption must be allocated “to the parent with the highest adjusted gross income[.]” Id. at 346. We distinguished such a situation from “instances where the parents share joint custody but one parent still attains primary physical custody and care of the child for more than one-half of the calendar year[.]” Id. at 345. In those cases, a court still has the discretion to allocate the tax exemption. Id. In the case at hand, the circuit court’s ruling did not reflect the analysis required by Reichert and did not address whether a waiver under 26 U.S.C. § 152(e)(1)(B) and (2) would be required. We note that, when a trial court’s order requires one parent to execute a waiver of their right to claim the child as a dependent, it must do so explicitly. Wassif v. Wassif, 77 Md. App. 750, 761 (1989). As allocation of a tax dependency exemption is part of the child support calculus, on remand, the circuit court, in considering child support, may revisit the allocation issue.
III.
Mother contends the trial court abused its discretion by denying her motion to reconsider in part despite relevant evidence; failing to correct the clerical errors that improperly awarded Father additional overnight visits contrary to the court’s transcript; and disregarding the child’s best interest by abruptly changing the child’s established routine after pressuring Mother into an immediate decision compromising the fairness of the proceeding. The standard for review of the denial of a motion for reconsideration is abuse of discretion. U.S. Life Ins. Co. v. Wilson, 198 Md. App. 452, 464 (2011) (citing Wilson-X v. Dep’t of Hum. Res. ex rel. Patrick, 403 Md. 667, 674-75 (2008)).
The hearing on January 4, 2024 was scheduled to address Mother’s motion to reconsider the court’s September 25, 2023 custody and child support order. In her motion,
Mother pointed out what she described as “clerical errors” in that order, by which she meant that the order differed from the court’s oral ruling from the bench. One alleged error was the court’s oral statement that Father’s visits would begin on Saturdays whereas the written order provided for his visits to begin on Friday. The court rejected Mother’s argument on the ground that the court’s original intent was that the visits begin on Friday, and therefore the court’s oral statement was a mistake. Given that the oral statement was a misstatement of what the court actually intended to award, the court did not abuse its discretion by denying the motion for reconsideration.
Mother avers that the court did not recite the best interest of the child standard in making its ultimate custody decision. However, as we already have stated, the judge considered the factors in Sanders and Taylor and took them into account in deciding custody. Mother maintains that the proceedings
on January 4, 2024 were unfair and that the trial judge made statements that were “inappropriate,” “unethical,” “abrupt,” and indicated her frustration. Again, as already stated, Mother did not ask for the judge to recuse herself or otherwise raise her concerns at the hearing and, as a result, they are not properly before us. Md. Rule 8-131(a). We note, moreover, that, although at times the court sounded abrupt, that was only after it had afforded Mother a long period of time to argue what custody/ visitation schedule was in A.B.’s best interest, and Mother had repeatedly changed her position.
Mother also takes issue with the custody schedule adopted by the court and set forth in the January 26, 2024 order. Again, we note that our function is not to retry the case or reweigh the evidence. Kremen, 363 Md. at 682. The record reveals that the trial judge considered the parties’ preferences as to a custody schedule, and as noted, Mother changed her mind over the course of the hearing. At first, Mother sought a schedule by which A.B. would be exchanged between his parents every four days. She later sought a schedule of Monday through Friday with one parent and Friday through Monday with the other parent, saying that would satisfy her concerns about routine and stability; she then amended that preference by saying stability only would be achieved if she were the parent with custody of A.B. from Monday through Friday. Our review of the record shows that the court clearly considered the parties’ wishes and the best interest of A.B. and did not abuse its discretion in adopting a custody schedule by which A.B. would be with Father from Monday to Friday and with Mother from Friday to Monday.
Lastly, Mother points out that the court did not enter a written order finding her in contempt. While that is true, we note that as a general rule, we do “not entertain moot controversies.” Bradford v. State, 199 Md. App. 175, 190 (2011). Mother acknowledged that she violated the pendente lite order and had frustrated the process. After finding Mother to be in contempt for the very conduct Mother acknowledged intentionally engaging in, the circuit court set forth a visitation schedule that covered the time leading to the next hearing and ruled that Mother could purge the contempt by following that schedule. Mother abided by that schedule, and at the January 4, 2024 hearing, the court found that she had purged the contempt.
As Mother was found to have purged the contempt, there is no longer a controversy nor is there an effective remedy that we can grant with respect to the circuit court’s failure to enter an order. Id. (“A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.” (quotation marks and citation omitted)).
IV.
Mother’s final contention is that the trial court abused its discretion by denying her motion for new trial. She argues that the court “fail[ed] to properly address significant procedural errors and potential judicial bias,” thus depriving her of the right to a fair custody trial.
“The decision whether to grant a motion for a new trial is within the sound discretion of the trial court.” Exxon Mobil Corp. v. Albright, 433 Md. 303, 349 (2013) (quotation marks and citations omitted). Thus, we review the denial of such a motion for abuse of discretion. Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329 (2012). An abuse of discretion occurs where ‘“no reasonable person would take the view adopted by the [circuit] court”’ or the circuit court ‘“acts without reference to any guiding rules or principles.”’ Das v. Das, 133 Md. App. 1, 15-16 (2000) (cleaned up) (quoting North v. North, 102 Md. App. 1, 13-14 (1994)).
In support of her contention, Mother argues that the trial judge was not fair and impartial; was biased; “unjustly limited [her] ability to challenge important evidence due to the court’s lack of patience”; and made a custody determination that was not in A.B.’s best interest. As explained above, Mother did not file a motion to recuse or otherwise raise the issue of the judge’s partiality, unfairness, or bias below. Nor did she object to the judge’s decisions pertaining to cross-examination, identify any witnesses that she wished to call at the hearing, or proffer their testimony. As a result, those issues are not properly before us. Md. Rule 8-131(a). In addition, we have already determined that the trial judge properly considered the Taylor and Sanders factors, articulated her findings with regard to custody on the record, and properly considered the best interests of A.B. There is nothing in the record before us to show that the trial court abused its discretion in denying Mother’s motion for new trial.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED AS TO AWARD OF CHILD SUPPORT AND ATTORNEY’S FEES ONLY AND OTHERWISE AFFIRMED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID ONE-HALF BY THE APPELLANT AND ONE-HALF BY THE APPELLEE.
FOOTNOTES
1 Mother is proceeding on appeal in proper person. Father did not file a Brief.
2 M.M. is not the mother of Father’s other children.
3 These rules apply to Mother even though for much of this case she has been proceeding in proper person. The rules of procedure in Maryland apply to all parties, whether they are represented by counsel or not. Tretick v. Layman, 95 Md. App. 62, 68 (1993). “No different standards apply when parties appear pro se.” Id. at 86.
4 Rule 1-341 provides, in part, that:
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 the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.
The Rule contains specific requirements regarding a verified statement in support of a request for attorney’s fees.
5 At the hearing on September 14, 2023, counsel for Father advised the court that it had not received anything in discovery to show Mother’s income. Mother provided the judge with some unidentified documents that were neither marked nor admitted in evidence. From those documents and Mother’s verbal statements, the court concluded that Mother was paid $25 per hour for a forty-hour work week, or $52,000 per year, which made her monthly income $4,333.32.
6 The circuit court did not make any of the required findings for an award of fees under Rule 1-341. Before awarding sanctions under Rule 1-341, the circuit court “must make two separate findings that are subject to scrutiny under two related standards of appellate review.” Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 267 (1991). The court must first “make an
evidentiary finding of ‘bad faith’ or ‘lack of substantial justification.’” Talley v. Talley, 317 Md. 428, 436 (1989) (quotation marks omitted) (quoting Legal Aid v. Bishop’s Garth, 75 Md. App. 214, 220 (1988)). The court must make “an explicit finding that a claim or defense was ‘in bad faith or without substantial justification[,]”’ and the record must reflect “the basis for those findings.” Zdravkovich v. Bell Atl.-Tricon Leasing Corp., 323 Md. 200, 210 (1991) (quoting Md. Rule 1-341). That is, the circuit court must set forth “‘some brief exposition of the facts upon which the finding is based and an articulation of the particular finding involved[.]’” Id. (quoting Talley, 317 Md. at 436). We review that determination under a clearly erroneous standard. Toliver v. Waicker, 210 Md. App. 52, 71 (2013). Second, “if a court finds a claim was pursued in bad faith or without substantial justification, it then has to determine whether to award sanctions.” Garcia v. Foulger Pratt Dev., Inc., 155 Md. App. 634, 677 (2003). We review that determination for an abuse of discretion. Id.
7 With certain exceptions that do not appear to apply here, in a proceeding to establish child support, the court must use the child support guidelines and adhere to the schedule set forth in FL § 12-204(e). See FL § 12-202(a)(1). “Income statements of the parents shall be verified with documentation of both current and past actual income” pursuant to FL § 12-203(b) (1). The trial court must first determine the adjusted actual income of each parent and the expenses incurred on behalf of the child for work-related childcare, extraordinary medical expenses, school, and transportation between the homes of the parents. FL § 12-204(g)-(i). The court also must note, among other things, the cost of providing health insurance for the child. FL § 12-204(h)(1) (“Any actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.”). After all of the required findings of fact are made, the court must use the guidelines to calculate the parents’ child support obligations.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 31 (2024)
Child
support; loans; gifts
Beril Iz-Duzyol v. Okan Duzyol
Nos. 1171, September Term 2024
Argued before: Arthur, Graeff, Battaglia (retired; specially assigned), JJ.
Opinion by: Battaglia, J
Filed: Feb. 18, 2025
The Appellate Court affirmed the Montgomery County Circuit Court’s award of $4,299.99 monthly in child support by mother to father. Although mother argued the support should have been reduced because father received money from his brother, the trial court did not abuse its discretion in relying on promissory notes and repayment evidence to find the money was a loan, and not a gift.
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..
having continued to pay the monthly stipend to Mother. Mother filed a Petition for Contempt on June 8, 2023, because the children had not been returned to her home.
On March 4, 5, and 15, 2024, a trial on Father’s Motion to Modify and Mother’s Petition for Contempt was held before Judge J. Bradford McCullough of the Circuit Court for Montgomery County. During the trial, the Court heard from Mother, Father, and Father’s brother, who provided sums of money to Father. The trial judge admitted bank statements of Father, as well as various documents related to the money provided by Father’s brother and also entertained the “deposition testimony of Court Evaluator Jeanine Bensadon, LCSW-C and her Custody Evaluation, the testimony of Dr. Gail Bleach, and the testimony of the children” to find and determine not only a material change in circumstances supporting a change in custody, but also to grant Father’s motion to modify while denying Mother’s petition for contempt.
In this family law case we are called upon to determine whether an award of child support to Father by Mother should have been reduced because Father had received sums of money from his brother which the trial judge did not include in Father’s income, after characterizing them as “family loans” or, in the alternative, gifts. We also have been asked to decide whether the trial judge erred in giving tie-breaking authority to the Father, after having awarded joint legal custody to the parties.1
Beril Iz-Duzyol, Appellant (“Mother”), was married to Okan Duzyol, Appellee (“Father”), on June 1, 2001. After having two children, a daughter, born in 2008 and a son, born in 2011, they were divorced in Fairfax County, Virginia in 2014. Mother moved to Montgomery County, and the parties, in 2016, consensually modified their custody arrangements in Fairfax County, with Mother continuing to have primary physical custody and Father being ordered to pay $1,237 monthly in child support. Father subsequently moved to Montgomery County in 2018, after which, in October 2018, he filed a request to register the Fairfax judgments in Montgomery County; they were enrolled at the end of the month. The parties continued to litigate against one another throughout 2019.
In December of 2022, however, the children left Mother’s home and moved in with Father. Earlier that month, Father had lost his job and remained unemployed until February of 2024; in March of 2024 Father’s income was determined to be $156,000 annually.
Father filed to modify child support in April of 2023, after
The trial judge ruled that the children should reside primarily with Father, with Mother having prescribed access, while the parties were to have joint legal custody, with Father having tiebreaking authority. Mother was to pay Father $4,299.99 monthly in child support, effective March 15, 2024, with an additional $1,000 to be added monthly until the arrearage of $21,499.50 would be satisfied.
Mother essentially challenges that Father’s yearly income was only the $156,000 from the job he secured in February of 2024 in the computation of child support. She argues that Father received various amounts of money from his brother that were gifts and within the judge’s discretion to add to the yearly income attributed to Father for child support purposes. The trial judge, however, never had to determine the exact amount that Father’s brother provided to Father, because the judge found that the payments were “family loans” or gifts, which he excluded from Father’s income.
While Mother alleged at trial and before us that the trial judge was not only wrong in his determination that the payments were “family loans,” she also argued that the trial judge should have attributed monies provided to Father by his brother as income, before the date of his motion to modify on April 30, 2023, as well as two amounts, $29,000 on September 11, 2023 and $100,000 on October 6, 2023. At the oral argument in this case, Counsel for Mother acknowledged that the amount the trial judge should have attributed to Father on a yearly basis was the $129,000 after the motion to modify was filed.
Because we agree with the trial judge that the amounts provided by the brother to Father did not constitute income to Father, we need not wade into the quagmire that the amounts
provided by the brother were greater than $129,000.
Mother also challenges the Court’s award of “blanket” tiebreaking authority to Father, arguing that the Supreme Court’s2 opinion in Santo v. Santo, 448 Md. 620 (2016), does not support an award with such broad parameters. Although the question before us appears to implicate the judge’s determination of joint legal custody, counsel for Mother confirmed at oral argument that Mother is not challenging the award of joint custody, but rather that Father was given such broad tie-breaking authority: She requests that they continue to have joint legal custody. She objects to him having tie-breaking authority, and I guess that’s an inference that she would rather if they just can’t decide, that she have a court or a mediator or someone else decide it. But not that he gets to decide every issue because she says he should not be given tie-breaking authority.
For the reasons that follow, we shall hold that Judge McCullough did not err in his computation of Father’s income for child support purposes nor in his award of tie- breaking authority to Father.
STANDARD OF REVIEW
In reviewing a child support determination, “[w]e will not disturb the trial court’s discretionary determination . . . absent legal error or abuse of discretion.” Smith v. Freeman, 149 Md. App. 1, 20 (2002). See also Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020). Whether gifts should be included in a parent’s actual income for child support purposes is “within the sound discretion of the trial court, taking into account the totality of the circumstances.” Petrini v. Petrini, 336 Md. 453, 462 (1994). See also Frankel v. Frankel, 165 Md. App. 553, 587 (2005) (“Awards made under FL 12-204(b) will only be disturbed if there is a clear abuse of discretion.”). “[W] here 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.” Walker v. Grow, 170 Md. App. 255, 266 (2006).
A trial court’s custody determination is also reviewed for an abuse of discretion. Santo, 448 Md. at 625. In reviewing awards of tie-breaking authority within a custody determination, courts have adopted an abuse of discretion standard. See, e.g., Kpetigo v. Kpetigo, 238 Md. App. 561, 584 (2018) (holding that a trial court’s decision to award tie- breaking authority was not an abuse of discretion). “Though a deferential standard, abuse of discretion may arise 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.’” Santo, 448 Md. at 625-26 (citing In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)).
DISCUSSION
Child Support
With respect to the child support computation issue, Judge McCullough made the following findings of fact and conclusions of law:
Mother claims that Father’s brother has been giving Father
vast amounts of money that should be treated as income to Father. Father demurs, claiming that the money he has received from his brother have been loans, evidenced by promissory notes and that part of that money (albeit a relatively small amount) has been repaid.
In Petrini v. Petrini, 336 Md. 453 (1994), the Supreme Court of Maryland considered “whether a trial court can consider non-cash gifts to a parent in determining the amount of that parent’s actual income for the purpose of calculating his child support obligation pursuant to Maryland’s Child Support Guidelines.” 336 Md. at 457. In that case, John and Debra Petrini were parties in a divorce case where child support was one of the issues being litigated. “Although the court found John’s take-home income to be only $14,063.00. . ., it found that his mother allowed her son to reside in one of her homes rent-free, that she paid the expenses relating to his ileostomy bag, and that she paid Eddie’s [a minor child of John and Debra] health insurance premiums,” Id. at 458 (emphasis added) (footnote omitted). The court placed a value on each of those items, and thus increased John’s actual income “for purposes of computing the amount of his child support obligation under the statutory guidelines.” Id. at 458-59 (footnote omitted).
In that omitted footnote, the Supreme Court remarked that the circuit court “did not factor in all the monetary contributions that John’s mother made to subsidize her son’s living expenses,” omitting, for example, “the clothing, gas, food, and credit card payments that the mother made for her son.” Id. at 459 n. 3 (emphasis in original). The Court “was unsure for how long and to what extent these ‘gifts’ would continue. Nor did it consider numerous cash gifts which the mother made to John on a regular and continuing basis.” Id. The Supreme Court was asked to consider what “gifts” a circuit court may include as part of a parent’s actual income, for child support purposes. The Court explained that the “types of ‘gifts’ that may be includable as part of a parent’s income in a particular case is within the court’s discretion, and should only be reversed if it acted arbitrarily in exercising its discretion or if the judgment on the matter was clearly wrong.” Id. at 462 (emphasis added) (citations omitted). That discretion is codified at Md. Code Ann., Fam, Law §12-201(b)(4): “Based on the circumstances of the case, the court may consider the following items as actual income: (i) severance pay; (ii) capital gains; (iii) gifts; or (iv) prizes.” (emphasis added).
The Court noted that the General Assembly “purposely did not define with pin-point precision what it intended the term ‘gifts’ to encompass.” To the contrary, the legislature “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.” Id. at 463. Here, the Court finds that the payments Father received from his brother were a hybrid between pure arms-length loans and gifts from a family member. There were indicia of true loans, including documentation ordinarily found as part of a loan. On the other hand, repayment was sporadic. In essence, these were what the Court finds to be a form of
a family loan, where repayment is expected, but not strictly enforced. Given that finding of fact, and given that the loans are not ongoing (see Petrini, 336 Md. at 459 n.3) and not made on a regular basis, the Court exercises its discretion not to treat the payments as income to father, even if they were determined to be gifts. They are not taken into account in determining Father’s income.
Judge McCullough’s findings of fact are supported by the record. The first issue before us is whether Judge McCullough abused his discretion in initially determining that the sums provided by Father’s brother were “family loans,” i.e., “a hybrid between pure arms-length loans and gifts from a family member” and alternatively, that such monies, even if gifts, should not be included as income as gifts, based on the evidence adduced in the case.
Mother, however, argues that the monies paid to Father by his brother were gifts and not loans and that the court abused its discretion in not including the monies in Father’s income in its calculation of child support. Father argues that there was substantial evidence in the record to support the court’s finding that the monies were family loans.
Income for child support purposes is governed by Section 12-201(b) of the Family Law Article, Maryland Code (1984, 2019 Repl. Vol., 2023 Supp.). Child support obligations are divided proportionately between the parties based on their “adjusted actual incomes.” Section 12-204(a)(1) of the Family Law Article. Under Section 12- 201(b)(1),(3) of the Family Law Article, “actual income” is defined as income from any source to include sixteen categories of income.3 Section 12-201(b)(3) of the Family Law
Article. In contrast, the next provision in the Statute includes four items that may be included as income for child support purposes at the trial judge’s discretion, “[b]ased on the circumstances of the case”:
(4) Based on the circumstances of the case, the court may consider the following items as actual income:
(i) severance pay;
(ii) capital gains; (iii) gifts; or (iv) prizes.
Section 12-201(b)(4) of the Family Law Article. The consideration of whether a gift should be treated as income, thus, is at the discretion of the trial judge. Petrini, 336 Md. at 462. Loans are not included in the lists of mandatory or discretionary income items, ostensibly because, unless forgiven, a loan creates an obligation to repay. See C.I.R. v. Tufts, 461 U.S. 300, 307 (1983) (“When a taxpayer receives a loan, he incurs an obligation to repay that loan at some future date. Because of this obligation, the loan proceeds do not qualify as income to the taxpayer.”). Appropriate documentation of a loan is not dispositive; it is, however, indicative of a loan. Howard v. Hobbs, 125 Md. 636, 637 (1915).
While a loan comes with an obligation to repay, a gift does not involve consideration. Park Station Ltd. Partnership, LLLP v. Bosse, 378 Md. 122, 131 (2003). A gift is “something that is voluntarily transferred by one to another without compensation.” Petrini, 336 Md. at 463. It is a “voluntary transfer of property to another made gratuitously or without
consideration.” Id.
In the present case, Judge McCullough initially determined that the payments Father received from his brother “were a hybrid between pure arms-length loans and gifts from a family member.” He found indicia of “true loans,” those being promissory notes from Father to the brother admitted into evidence. The trial judge also relied on repayment evidence, also admitted into evidence, to reflect that reimbursement was expected, albeit sporadic. Judge McCullough’s findings were supported by the record.
The nature of the monies provided by the brother to Father could be considered “family loans” because repayment was expected and documented; he did not abuse his discretion.
Judge McCullough alternatively determined that even if the payments were to be considered gifts, he would exercise his discretion to exclude the payments from Father’s income, because the brother’s payments to Father were not ongoing and not made on a regular basis, relying on Petrini v. Petrini, 336 Md. 453 (1994). In that case, the Supreme Court addressed whether the trial court appropriately included as income, to determine Petrini’s child support obligation, medical expenses paid by his mother and the cost of his living in her home rent free. Id. at 464. The trial court also, however, had not included as income monies given to Petrini the duration of which was unknown. Id. at 459 n.3. The Supreme Court in Petrini affirmed the trial court’s inclusion of the rental cost and the medical expenses, but did not address the trial court’s exclusion of questioned duration amounts because the latter were not in issue.
A case after Petrini has found and determined that amounts paid by third parties to a parent in a child support context should not be included as income, because they were not gratuitous, as the gifts in Petrini were. In Allred v. Allred, 130 Md. App. 13, 19, 21 (2000), we held that the trial court erred by imputing as gift income to Mrs. Allred, the rent and utilities paid by her live-in boyfriend, because the payments were made for his own use and were, therefore, not gratuitous.
In Frankel v. Frankel, 165 Md. App. 553, 588-89 (2005), we had the opportunity to interpret Petrini and found that gifts from relatives who are not obligated to support the child were properly excluded from income. In another case before this court, we employed the distinction between regular and ongoing payments from a third party that could be considered income, though gifts, although income was not determined where payments abruptly ended. Reynolds v. Reynolds, 216 Md. App. 205, 224 (2014) (“Importantly, the Petrini Court noted that the gifts in that case had no definite end . . . Unlike the ongoing series of gifts in Petrini, the payments from Wife’s father in the present case had ceased abruptly ”).
In the present case, Judge McCullough did not err in excluding the brother’s contributions from Father’s income for child support purposes because the payments were not regular and ongoing, as they ended in October of 2023. It is also important to note that, as in Frankel, Father’s brother had no obligation to support the children. Thus, Judge McCullough did not err in either of his alternative rulings.
Tie-Breaking Authority
The trial judge made various findings relative to the best
interests of the children and legal decision making:
Having reviewed the evidence in this case-and having the considered the factors outlined in Sanders and Taylorthe Court finds that giving Father primary residential or physical custody of the children, subject to the access schedule outlined in the Order accompanying this Opinion, is in the best interest of the children. The Court agrees with Court Evaluator Bensadon: Both parties love the children, and the children love both parties. However, it was further noted by the children that Mr. Duzyol provides added stability in contrast to Ms. Duzyol who seems to be entrenched in her anger at Mr. Duzyol to which she has exposed the children resulting in them feeling conflicted as they love both parties.
(Custody Evaluation, p. 7) (cleaned up). This observation is corroborated by other evidence in the case, including the testimony of Dr. Bleach and the Court’s interviews with the children. At pages 6-8 of his Closing Argument, Father compares the relative fitness of the parties as parents. The Court largely agrees with Father’s position. While the Court finds that Mother is a fit parent, the Court also specifically finds that Father is more fit. The Court’s findings regarding character and reputation mirror those regarding fitness of the parents.
Both parents claim to desire primary physical or residential custody of the children, although Mother’s desire seems not to be entirely sincere, given her statements to Father (and as otherwise reflected on page 7 of the Custody Evaluator Report). The children strongly prefer to live primarily with Father. Given the support and encouragement Father provides the children—and particularly the positive support he provides Ayla regarding her academic efforts (in contrast to the negativity sometimes exhibited by Mother)—the material opportunities affecting the future lives of the children are best met by giving Father primary physical custody. The parents live very close to one another, which provides excellent opportunity for visitation. The ages of the children, and particularly their state of emotional maturity and development, strongly suggest that their interests are best served by giving Father primary physical custody. The remaining Sanders factors provided no guidance to the Court.
Father contends that the parties “have no capacity to communicate and reach shared decisions.” (Father's Closing Argument, p. 9). He then recounts numerous instances where the parties have faced difficulties in trying to communicate and reach shared decisions. (Id. pp. 9-12). The Court agrees that the parties have had difficulty in these areas, but the Court also finds that they are willing to share legal custody and finds that the parents can overcome those difficulties. The Court has already touched on the fitness of the parents, the relationship established between each child and each parent, the preference of the children, and the geographic proximity of the parental homes. The Court agrees with Father’s assessments about the demands of parental employment, the sincerity (motivation) of parents’ requests, the financial status of each party, and the impact
on state or federal assistance. (Id. pp. 13-14). The Court adopts those assessments as the Court’s findings.
The Court also finds that joint legal custody would benefit the parents and that benefit would inure to the best interests of the children. Being involved in shared decision making will keep both parents invested and engaged in the wellbeing of their children and that feeling of engagement will inure to the benefit of the children. Thus, the Court awards joint legal custody, with tie-breaking authority given to Father in case of impasse. The Court finds that he is better able to navigate and deal with the friction between the parents and has exhibited more maturity, is less self- centered, and has exhibited more willingness to place the interests of the children over his own interests.
When joint legal custody has been determined, the option of giving “tie-breaking” authority in situations in which parents have difficulty communicating and negotiating in the best interests of the children is governed by Santo v. Santo, 448 Md. 620 (2016). See also Shenk v. Shenk, 159 Md. App. 548 (2004) (for an earlier discussion). In that case, the trial judge determined, and the Supreme Court of Maryland affirmed, that tie-breaking authority was consistent with joint legal custody, because the parents must try to work together to decide issues affecting their children. . . . We require that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children. . . .
. . . The requirement of good faith communication between the parents helps to ensure the parent with tie-breaking authority does not abuse the privilege of being a final decision-maker.
Santo, 448 Md. at 633-34.
Mother, however, though recognizing that Santo afforded trial courts discretion to include tie-breaking authority “to account for the parties’ inability to communicate,” Santo, 448 Md. at 646, argues that the trial judge did not sufficiently make findings and issue determinations based appropriately on those findings to award tie-breaking authority; we disagree. Judge McCullough’s findings were supported by the record and he considered the appropriate Taylor and Sanders factors.4
Most importantly, though, Mother challenged that Father received tie-breaking authority for all decisions which she argues was not permitted by Santo. We disagree, because Santo did not preclude the award of broad tie-breaking authority to one parent.
Since Santo, this court has upheld an award of joint legal custody with one parent having broad tie-breaking authority. In Kpetigo v. Kpetigo, 238 Md. App. 561, 585-86 (2018), the trial court had found that both parents were fit but they suffered from communication issues due to the father’s hostile behavior. The trial judge had also found that the father’s actions were motivated more by his anger toward the other parent than what was in the children’s best interests. Id. at 587. Based on these findings, the trial court awarded tie-breaking authority to one parent, and we held this was not an abuse of discretion. Id.
In the instant case, the trial court made sufficient findings to support Father’s broad tie-breaking authority, which were
supported by the record.
The trial court also recognized and adopted the Santo “guardrails” and was careful to emphasize that “the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children” and that “[w]hen, and only when the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call.” As a result,
Judge McCullough did not err in giving broad tie-breaking authority within the stated parameters of Santo
CONCLUSION
We conclude that the trial court did not abuse its discretion in excluding payments from Father’s brother in income for child support purposes. The trial judge also did not err in granting sole tie-breaking authority to Father.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The questions presented by the Appellant are:
1) Where Appellee’s income for two years consisted solely of “loans” or “gifts” from Duzyol’s brother, did the trial court err or abuse its discretion in failing to include these monies in its child support calculations?
2) Did the trial court err or abuse its discretion when it awarded joint legal custody to the parties, with tie breaking authority given to Appellee in the event of an impasse?
2 At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals to the Supreme Court of Maryland. The name change took effect on December 14, 2022. See also Md.
Rule 1-101.1(a) (“From and after December 14, 2022, any reference in these Rules, or, in any proceedings before any court of the Maryland Judiciary, any reference in any statute, ordinance, or regulation applicable in Maryland to the
Court of Appeals of Maryland shall be deemed to refer to the Supreme Court of Maryland ...”).
3 The sixteen categories of income identified as actual income in Section 12-201(b)(3) of the Family Law Article (1984, 2019 Repl. Vol., 2023 Supp.) include:
(i) salaries; (ii) wages; (iii) commissions; (iv) bonuses; (v) dividend income; (vi) pension income; (vii) interest income; (viii) trust income; (ix) annuity income; (x) Social Security benefits; (xi) workers’ compensation benefits; (xii) unemployment insurance benefits; (xiii) disability insurance benefits; (xiv) for the obligor, any third party payment paid to or for a minor child as a result of the obligor’s disability, retirement, or other compensable claim; (xv) alimony or maintenance received; and (xvi) expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business to the extent the reimbursements or payments reduce the parent’s personal living expenses.
4 Taylor v. Taylor, 306 Md. 290 (1986); Montgomery County v. Sanders, 38 Md. App. 406 (1977).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 36 (2024)
Interlocutory appeal; separation agreement; collateral order
The Appellate Court dismissed the interlocutory appeal challenging the Montgomery County Circuit Court’s recission of the voluntary separation agreement on the ground that wife had materially breached the agreement. Considering the strict requirement that the order must be “completely separate from the merits,” and the overlap between the material breach of the voluntary separation agreement and a custody decision at a full merits hearing here, the collateral order doctrine was not satisfied.
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..
Consequently, we do not need to address the second and third questions in this opinion.
BACKGROUND
Iris Chan and Waipan Chan were married in 2011. They are the parents of two daughters born in 2013 and 2018. The circuit court made oral findings that beginning in September 2022, the parties began discussions about entering into a voluntary separation agreement. Ms. Chan, who was represented by counsel, presented a draft agreement to Mr. Chan, who was not represented by counsel. A final voluntary separation agreement was executed by the parties in December 2022.
In January 2023, Ms. Chan filed a complaint for absolute divorce in the Circuit Court for Montgomery County, and Mr. Chan filed an answer to the complaint as a pro se litigant. After a hearing on February 22, 2023, the voluntary separation agreement was incorporated, but not merged, into the judgment of absolute divorce, which was entered on March 8, 2023.
Iris Chan, Appellant, has appealed an interlocutory order by the Circuit Court for Montgomery County that rescinded the voluntary separation agreement which had been incorporated into her judgment of divorce from Waipan Chan, Appellee. In her brief and at oral argument, Ms. Chan argued that the circuit court decision was immediately appealable under the collateral order doctrine.
The circuit court order rescinding the voluntary separation agreement is not a final order. Therefore, the focus of this opinion is whether this order is immediately appealable under the collateral order doctrine.
Ms. Chan presents the following questions for review:1
1) Does the Appellate Court have jurisdiction to hear this interlocutory appeal pursuant to the collateral order doctrine?
2) Did the circuit court erroneously rescind the voluntary separation agreement of the parties?
3) Did the circuit court erroneously find that the main goal of the voluntary separation agreement was for the parties to continue to reside together until the end of the 2023-2024 school year?
Under the first question, we hold that the circuit court’s recission of the voluntary separation agreement was not appealable as a collateral order, and we dismiss this appeal.
The circuit court determined that, under the voluntary separation agreement, the parties had agreed to continue living in the marital home together for an additional one- andone-half years until the end of the 2023-24 school year. It is Mr. Chan’s position that the purpose of this provision was so that one daughter could continue a gifted-and- talented program at her current school which concluded at that time. Instead, Ms. Chan moved out of the marital home in January 2023, one month after she had signed the voluntary separation agreement. In addition, on March 17, only nine days after the judgment of divorce was entered, Ms. Chan filed as a separate legal action a complaint requesting that the court appoint a trustee to sell the marital home, even though she had agreed to continue to reside there under the terms of the voluntary separation agreement. In addition, Ms. Chan stopped allowing the children to spend overnight visits with Mr. Chan in April 2023. Then, Ms. Chan moved to Howard County in August 2023 and enrolled the children in new schools without consulting Mr. Chan even though the parties had joint legal custody.
In response to these actions, Mr. Chan obtained legal counsel and filed a motion to find Ms. Chan in contempt of court for violating the terms of the voluntary separation agreement, or in the alternative, to rescind the agreement. The circuit court held a contempt hearing on June 13, 2024, and issued oral findings of fact at a separate proceeding on July 8. These findings of fact addressed the parties’ incomes and whether certain items of marital property were jointly or separately titled. The court also considered the timeline of Ms. Chan’s decisions to move out of the house, move the children, and deny visitation to Mr. Chan.
In a written pendente lite order, the circuit court rescinded the voluntary separation agreement on the grounds that Ms. Chan had materially breached the agreement. In addition, the circuit court ordered a hearing be held on the merits for custody and the division of marital assets. In an oral ruling, the circuit court judge stated this would be a full merits hearing and specified that child custody will be determined, child support will be finally adjusted, marital property will be divided, and attorney’s fees will be determined. In the interim, the pendente lite order set forth temporary terms for custody, visitation, and child support.
Ms. Chan timely filed a notice of appeal, and the circuit court granted her motion to stay proceedings on the merits until this appeal is decided. After briefing by the parties, this court heard oral arguments on January 10, 2025.
DISCUSSION
Subject to certain exceptions, a party may appeal only from a final judgment rendered by a trial court. Md. Code Ann., Cts. & Jud. Proc. Art. (“CJ”) §12-301 (2020 Repl. Vol.). Generally, “[t]he right to seek appellate review . . . must await the entry of a final judgment, disposing of all claims against all parties.” Shoemaker v. Smith, 353 Md. 143, 165 (1999). To constitute a final judgment, the trial court’s determination must either decide and conclude the rights of the parties involved or deny a party the means to prosecute or defend rights and interests in the subject matter of the proceeding. Nnoli v. Nnoli, 389 Md. 315, 324 (2005) (citing Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)).
We look to whether any future order was to be issued or whether any further action was to be taken in a case to determine whether an order or ruling is a final appealable judgment. Id. An order that is not a final judgment is an interlocutory order and ordinarily is not appealable unless it falls within one of the limited exceptions. Id.
There are three limited exceptions to the final judgment rule under which interlocutory orders may be appealed in Maryland: (1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted under Maryland Rule 2- 602; and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine. Salvagno v. Frew, 388 Md. 605, 615 (2005).
Neither party here asserts the circuit court’s recission of the voluntary separation agreement was a final judgment. Nor does Ms. Chan argue that there is an exception provided specifically by Maryland statutes or rules.2 Instead, Ms. Chan argues that this court has jurisdiction under the collateral order doctrine.
To fall within the very limited collateral order doctrine exception, four requirements must be met. The order must (1) conclusively determine the disputed question, (2) resolve an important issue, (3) be completely separate from the merits of the action, and (4) be effectively unreviewable on appeal from a final judgment. See, e.g., Ehrlich v. Grove, 396 Md. 550, 563 (2007). Based upon the facts before us, the issues considered by the circuit court in rescinding the voluntary separation agreement are not completely separate from the merits, and the order therefore fails the third prong of the collateral order doctrine.
Ms. Chan does not cite to any authority to specifically
establish that the order and the merits are completely separate, but instead merely offers conclusory statements that the issues are separate. Ms. Chan does, however, cite to Clark v. Elza more generally to establish that the collateral order doctrine applies. In Clark v. Elza, 286 Md. 208 (1979), there was a personal injury complaint for damages ensuing from an automobile accident. The parties made an oral agreement prior to trial, but the plaintiffs subsequently refused to execute a release. The defendants filed a motion to enforce the settlement agreement, which the court denied.
The Supreme Court held that the enforceability of the settlement agreement had absolutely nothing to do with the merits of the tort action because the circuit court relied on the settlement agreement being an executory accord and not a substituted contract in holding it unenforceable. The Court noted that this is a factual question that speaks to whether the parties intended to create an executory accord or a substitute contract. Id. at 214-15. This issue clearly had nothing to do with the merits of the underlying automobile accident tort claim.
Ms. Chan argues this case is akin to Clark v. Elza because both cases deal with a circuit court decision not to give effect to a settlement agreement. She quotes Clark’s discussion of the four factors but only relates Clark to the first factor in the present case before concluding that “based on the holding of the Supreme Court in Clark,” this court has jurisdiction to hear this appeal.
In response to Ms. Chan’s reliance on Clark, Mr. Chan cites to Pattison v. Pattison, 254 Md. App. 294 (2022). In Pattison, the husband moved to enforce a marital settlement agreement, and the circuit court granted his motion. Id. at 299, 305. The Appellate Court of Maryland held that the circuit court’s interlocutory order granting the husband’s motion to enforce was not appealable under the collateral order doctrine. Id. at 309. In so holding, the court relied on the fourth prong as not being satisfied to determine that the interlocutory order was not appealable. Id. at 310. The parties had both argued, and the court did not determine one way or the other, that the first three prongs were met. Id. at 309. On the third prong, the parties argued that “the issue regarding the enforceability of the agreement, which mainly addressed the disposition of the parties’ property, was separate from the ultimate question whether a divorce should be granted.” Id. Our third prong, however, is distinguishable from the third prong in Pattison. While the disposition of property may have been completely separate from whether a divorce should have been granted, here the issues are much more intertwined.
We are not convinced by Ms. Chan’s contention that the issues concerning whether the voluntary separation agreement should be rescinded are completely separate and distinct from issues at the merits trial which, she concedes, would include a custody determination. Here, the ultimate question is not whether a divorce should be granted, as in Pattison, but rather how child custody should be determined, how marital property will be divided, how much child support the parties will pay, and whether attorney’s fees should be awarded, all of which were contemplated by the rescinded voluntary separation agreement. In the agreement, the parties agreed that they would live together in the marital home until the end of the 2023-2024
school year. After the parties no longer resided together, Ms. Chan was to have primary physical custody with Mr. Chan having visitation every other weekend. The parties were to have joint legal custody. Once Ms. Chan moved out of the marital home, the circuit court determined that the custody provisions in effect after the 2023-2024 school year should have been followed.
In rescinding the voluntary separation agreement due to Ms. Chan’s material breach, the circuit court had to consider whether these custody provisions were being honored and found that they were not. To determine that the voluntary separation agreement was materially breached, the court considered that Ms. Chan left the marital home, moved the children with her, and enrolled them in a different school without consulting Mr. Chan. Moreover, she then denied Mr. Chan overnight visitation with the children.
The hearing on the merits will reconsider the issue of custody, and, relevant to this consideration, are Ms. Chan’s denials to Mr. Chan of the decision-making power and visitation time the parties had agreed to which the circuit court found to be material breaches of the agreement. Furthermore, in deciding to rescind the voluntary separation agreement, the circuit court addressed facts related to marital property. Similar findings of fact will need to be addressed at the hearing on the
merits to determine the division of marital property to replace the division agreed upon in the rescinded agreement.
The collateral order doctrine is a “very narrow exception” to the rule that appeals to this court must be based on a final order, and “the four requirements of the [doctrine] are very strictly applied ” County Commissioners for St. Mary’s County v. Lacer, 393 Md. 415, 428 (2006). See also Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues 50 (3d ed. 2018). In light of a very strict application of the third requirement that the order must be “completely separate from the merits,” and the overlap between the material breach of the voluntary separation agreement and a custody decision at a full merits hearing, we must hold that the collateral order doctrine is not met here.
CONCLUSION
This appeal does not satisfy the test required for an appeal under the collateral order doctrine. The third requirement is not met because, in deciding to rescind the voluntary separation agreement, the circuit court had to consider the current custody arrangement and violations thereof. The order, therefore, is not completely separate from the merits. Because the third prong is not met here, the collateral order doctrine is not satisfied. This appeal is dismissed.
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mr. Chan presents the questions as follows:
1) Does this Court have appellate jurisdiction where the circuit court’s order that rescinded the parties’ voluntary separation agreement is not a final judgment and is not immediately appealable under the collateral order doctrine?
2) Was the trial court’s decision to rescind the parties’ voluntary separation agreement legally correct?
2 Section 12-303 of the Courts and Judicial Proceedings Article provides certain instances in which a party may appeal from an interlocutory order. The only potentially relevant situation here is under 12-303(3)(x) which provides that a party may appeal from an order “[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” Section
12-303 was not raised by either party and is therefore not analyzed in this opinion. Neither parent here claims to have been deprived of the care and custody of their children nor has the original custody arrangement been significantly changed. See In re Karl H., 394 Md. 402, 430 (2006) (“In determining whether an interlocutory order is appealable, in the context of custody cases, the focus should be on whether the order and the extent to which that order changes the antecedent custody order.”). Here, the pendente lite order issued by the court on June 12, 2024, generally kept the same custody and visitation arrangement with slight variations in an altered holiday schedule, changed dropoff/pick-up hours, and added Zoom access twice a week for Father. The crux of the custody arrangement remains the same that the parents share legal custody with Mother having primary physical custody and Father having visitation every other weekend.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 39 (2024)
Physical and legal custody; child preference; best interests
In re: M.M.
No. 432, September Term 2024
Argued before: Arthur, Ripken, Harrell, JJ.
Opinion by: Ripken, J.
Filed: Feb. 18, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s ruling that the child was not a child in need of assistance and awarding primary physical custody and sole legal custody to mother. The court concluded that, in addition to the child’s preference, the evidence demonstrated that her interest would be best served by granting custody to mother.
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..
was physically abusing M.M. and that M.M. had arm bruises. In response, [the Department] transported M.M. to Johns Hopkins Hospital, where M.M. was examined. The exam was “diagnostic for abuse,” and hospital notes described M.M. as having a “clearly inflicted pattern of injury.”
Subsequently, the Department petitioned the circuit court, asserting that M.M. was a CINA and requesting an Order of Shelter Care to provide for M.M.’s safety. The court then conducted a hearing and ordered M.M. to be placed with relatives.
Then, in March of 2021, the court placed M.M. with Father. Mother was permitted four hours of unsupervised visitation each week. Subsequently, the court also granted Mother access to M.M. for overnight visits while M.M. remained under Father’s primary care.
This is the second appeal arising from a Child in Need of Assistance (“CINA”)1 proceeding in the Circuit Court for Baltimore City. The first appeal resulted in a remand to the circuit court for further proceedings. On remand, the court ruled that the involved child, M.M.,2 was not a CINA and awarded primary physical custody and sole legal custody to M.M.’s mother (“Mother”). M.M.’s father (“Father”) filed this timely appeal. For the reasons to follow, we shall affirm.
ISSUES PRESENTED FOR REVIEW
Father presents the following issues for our review:3
I. Whether the circuit court abused its discretion in its in-camera interview with M.M.
II. Whether the circuit court abused its discretion in awarding sole legal and primary physical custody to Mother.
III. Whether the circuit court erred in its analysis of the custody factors.
FACTUAL AND PROCEDURAL BACKGROUND
M.M. was born in February of 2012. For the first eight years of M.M.’s life, the child lived with Mother, who was the sole caregiver. Father had occasional contact with M.M. pursuant to an informal agreement.
In July of 2020, the Baltimore City Department of Social Services (“the Department”) removed M.M. from Mother’s home after Father made a report of physical abuse. We summarized the facts regarding the Department’s involvement and the proceedings that led to the first order of custody in the previous appeal:
In July of 2020, when M.M. was eight years old, [Father] called the Baltimore City Police Department, alleging that [Mother]
In May of 2022, the court held an adjudicatory hearing. Therein, the court ruled in favor of Department allegations and found that M.M. had been abused and neglected. The court then held a disposition hearing to determine whether M.M. was a CINA and whether the existing custody arrangement should be modified.
Recognizing uncertainty related to the source of M.M.’s injuries, the court found that the injuries had occurred while M.M. was in Mother’s care but declined to find that Mother had inflicted them. The court acknowledged Mother’s partial rehabilitation and her willingness to engage in anger management classes and family therapy and described Father as an asset to the family, noting that he had acted “above and beyond” to help M.M. The court accepted the parties’ shared assertion that M.M. wanted to spend equal time with each parent. Even so, the court found that Mother and Father had not engaged in family therapy and that they continued to have an antagonistic relationship. Ultimately, in August of 2022, the court found M.M. to be a CINA and ordered Mother and Father to share custody. The court indicated that declining to find M.M. a CINA would place M.M. in “a very frustrating” and “very unfriendly” situation and that awarding sole custody to either parent would not be in M.M.’s best interest. The court also placed M.M. under an Order of Protective Supervision, enabling the Department to have access to M.M. on an announced and unannounced basis and to provide services related to family therapy.
In re M.M., No. 1028, Sept. Term 2022, slip op. at 1–3 (Md. App. Ct., Apr. 17, 2023) (“In re M.M. I”) (paragraph breaks added, footnotes omitted). Father filed an appeal from the August 2022 custody order (the “First Appeal”).
The First Appeal and Remand
In the First Appeal, we held that the court abused its discretion in finding M.M. to be a CINA because Father was able and willing to care for her.4 In re M.M. I, slip op. at 7– 8. We further held that, because the court had sustained allegations of abuse sufficient to support a CINA finding against Mother, the court erred in awarding Mother shared custody of M.M. without making a specific finding that there was no likelihood of further abuse or neglect while in Mother’s care.5 Id. at 13–14. Accordingly, we vacated the disposition order and remanded the matter to the circuit court with instructions to decide whether to (a) determine a custody arrangement in M.M.’s best interest in the CINA case; or (b) dismiss the CINA case and allow the parents to pursue a custody determination outside of the CINA proceedings. Id. at 14. The court proceeded with the former option and scheduled a custody hearing.
Evidence Adduced at Custody Hearing
The custody hearing took place on four separate dates that spanned a six-month period between September of 2023 and March of 2024. When the hearing began, M.M. was eleven years and seven months old, and had just started the sixth grade. At the outset of the hearing, and again at the end, the Department advised the court that it had no concerns with respect to M.M.’s safety while in the custody of either parent, and that it would defer to the court on the issue of custody.
At the request of counsel for M.M., and over Father’s objection, the court conducted two in-camera interviews of M.M., on the first day of the hearing and again four months later, on the third day of the hearing. Both Mother and Father testified and were represented by counsel. Father called three witnesses: M.M.’s fifth grade teacher, a Department social worker, and the father of K., Mother’s fourteen-year-old son.
Mother’s Testimony
Mother testified that she had been M.M.’s sole caregiver from her birth in 2012 until July of 2020, when the CINA proceedings began. She and Father lived together for a month after M.M.’s birth. Mother said that Father was “there more” when M.M. was an infant, but, when she and Father “started to have issues” and the “police and court started to get involved[,]” Father “wasn’t . . . present at all.”
Mother testified that three protective orders were issued in her favor against Father. The first was in 2013, following an encounter with her at her father’s house. According to Mother, Father came to the house, started “arguing, yelling, and screaming[,]” and broke a screen door in an attempt to force it open. In 2016, Mother secured a second protective order after Father showed up at her apartment, “bang[ed]” on her door, ignored requests made by security personnel for the apartment building to leave the premises, and then physically assaulted Mother. The third protective order was issued in July of 2023, after an incident at M.M.’s day camp where Father began “threatening, yelling, and screaming in [Mother’s] face.” The court took judicial notice of the district court cases that resulted in the final protective orders issued in 2016 and 2023.6
According to Mother, Father did not see M.M. from the time she was one year old to the time she was six. When M.M. was six
or seven years old, Father “started to come back around more often to see her.” Mother said, “[m]aybe once or twice a year [Father] would . . . call and talk to [M.M.] on the phone or ask to see her. And when he would, he would see her maybe for an hour[,] then leave.”
Mother stated that she has two other children: K., who was fourteen years old when the hearing began, and V., who was then eight years old.7 Mother explained that V. is not her biological child, but had been in her care since the child was four months old.8 She considers V. to be one of M.M.’s and K.’s siblings.
K.’s father has sole legal custody and primary physical custody of K. Mother has overnight visitation every other weekend.
V. lived with Mother until two weeks before the custody hearing for M.M. began.
At that time, there was a change in V.’s guardianship, from Mother to Mother’s father.9 V. had since been staying with Mother’s father at night, but Mother still picked V. up from school and V. would stay at her house for several hours. Mother stated that the guardianship order allows V. to “stay with [her] from time to time[,]” and that V. still has a bedroom and belongings at her house.
Mother testified that M.M., K., and V. refer to each other as “brother” and “sister[,]” and she described the relationship between them as “really, really good[.]” She said, “[t]hey roughhouse just like they always have. They [are] always playing together. They ride bikes together.” When they are not all at her house, they “tag” each other in online games “so that they can all play together.”
Mother is a self-employed nail technician. Her salon is located in the same building in which she lives. Mother testified that she works by appointment, and that her schedule does not interfere with her ability to care for M.M.
Mother stated that M.M. has five to eight friends in Mother’s neighborhood. M.M. and those friends go to the playground after school or sit outside together. According to Mother, M.M. has no interaction with friends outside of school when she is with Father.
Mother speaks with M.M.’s teachers “regularly,” either in person or by text message. She monitors M.M.’s grades and attends PTA meetings. Mother went on “many” school field trips with M.M. and has been “very present” at M.M.’s after-school programs and theater classes.
Mother described the relationship between her and M.M. as “very loving[,]” “playful,” and “amazing.” She said, “we always find ways to just find fun.” They take their dog on long walks, cook together, pray together, participate in a “parent and child” fitness class, and do each other’s hair and makeup. They share an interest in artistic pursuits such as drawing and painting.
Mother stated that she was willing to share custody with Father, but that his lack of “consistent transportation” made shared custody impossible. She testified that she was willing to communicate with Father on issues regarding M.M., but that she and Father did not communicate well. She said, “if it’s not his way, it’s no way[,]” and that there was “always . . . some type of argument between [them], even when [the communication is] just supposed to be about M.M.” She did not “feel safe” in her interactions with Father because “they always lead to a rant, a
rave, [and] arguments[.]”
Mother testified that, because Father does not allow M.M. to have her phone with her while at his house, she does not hear from M.M. for the entire week that M.M. is with Father. On school days, Mother goes to M.M.’s school to talk to her to “make sure she’s doing okay.” Mother said, “[b]ut outside of that, [M.M.] has no communication with myself or her brothers.”
Mother stated that “[o]ne of the most important” concerns she had about M.M. being in Father’s care was that there was “always an issue with his transportation[,]” and that, as a result, M.M. was “always late” for school. When Mother testified in her case, on the last day of the hearing in March of 2024, she indicated that Father had recently been having M.M. transported to school each day by Uber.10 Mother was concerned that, because Father “demanded” that M.M. not bring her phone to his house, M.M. had no way to contact anyone during the thirty-five-minute trip from Father’s house to school in the event of a “situation” or an “emergency.”
Father’s Testimony
Father testified that, prior to the initiation of the CINA matter, in July of 2020, there was no formal custody arrangement. M.M. lived “principally” with Mother, while Father’s contact with M.M. was “extremely sporadic.” Father acknowledged that there were periods in which he had no contact with M.M. because of a protective order. He said that he “had just been able to come back into M.M.’s life” in 2020.
Father stated that, from February of 2021 to August of 2022, he had custody of M.M. from Sunday evening to Friday evening, and Mother had custody from Friday evening to Sunday evening.11 Father testified that “having all of that time together” was “new” for him and M.M., and they “made a lot of progress[].”
Father became concerned that Mother was having an “adverse influence” on M.M., and he reported Mother to the Department for “misbehaviors” and “misdeeds[.]” As an example of such behavior, he said that Mother gave M.M. a cell phone and told her not to tell him about the phone.
Father had taken M.M.’s phone from her on several occasions “as discipline or punishment.” He said, “[a] part of M.M.’s biggest struggle at home in staying focused with her responsibilities is that [she] would rather be on the phone.” At one point, he intentionally broke M.M.’s phone in front of her because he was “really angry that day,” and “really tired of the issues that [they] were having about the phone.” According to Father, M.M. did not need a phone to communicate with Mother while in his care because she could use his phone; Mother could call or text him if she wanted to talk to M.M. He added that M.M. had a tablet computer with “Google Voice[12] connected to it[,]” which she could use to make calls to Mother as long as she was connected to the internet, but he acknowledged that there were periods of time in the preceding year when he did not have internet service at his house.
Father is employed as a case manager for an organization that provides services to individuals dealing with substance abuse issues or mental health challenges. He stated that his work hours are from 8:30 a.m. to 5:00 p.m. Father said that his job gives him flexibility that allows him to pick M.M. up from
school, but that he also had a “couple [of] arrangements in place[.]” Father stated, “initially, when M.M. gets out of school at 2:40 [p.m.], she has aunts and a cousin that will pick her up from school.” He added that, while
M.M. was waiting for the cousin to pick M.M. up, or for Father to get there from his place of employment, M.M. was permitted to go to Mother’s house.
Father said the trip from his home to M.M.’s school takes between thirty-five and forty-five minutes, and that it was “quite challenging” for him to get M.M. to school on time. When he was asked if he was aware that M.M. was tardy twenty-eight times in the preceding year while in his custody, he replied, “that wouldn’t surprise me[.]” Father denied that M.M. had been absent from school six times while in his custody, but he admitted that she missed two days of school in September of 2023 because his car was “in the shop” for two weeks. When asked why he did not arrange for M.M. to be taken to school by Uber, Father said that, on one of those days, he either had “connection issues” caused by the trees around his house, or “it might [have] been [his] card.” Father said, “[a]nd the other day[,] I just had quite a busy day that day, and it would [have] been too challenging[.]” He did not ask Mother for help getting M.M. to school because “the ability to communicate with [Mother] is almost non-existent” and there was “nothing to motivate [him] to reach out” to Mother to “help [him] get through [his] challenges with M.M.”
Counsel for Mother asked Father if he was seeking sole legal custody so he could remove M.M. from her current school and transfer her to a school closer to where he lived. Father responded, “As a sole reason, no.” Counsel for M.M. asked Father whether he would change M.M.’s school if he was granted “full” custody. He responded, “I think that it would be most important for me to speak with M.M., her teachers, and her therapist, and make the best decision based on that and not just be impulsive.”
Father testified that, after the custody arrangement was changed to an alternating- week schedule in August of 2022, M.M.’s behavior was “different,” and there was a “shift” in his relationship with her. He said that it was “extremely difficult to maintain any type of daily routine with M.M.” and that it was a “constant struggle for which parent’s authority is the one that she needs to be following or that she should follow.”
In Father’s opinion, the alternating-week custody arrangement was “very, very challenging” and “hasn’t worked out” because there was “no cooperation between” him and Mother. He added that going back and forth between homes was a “burden on M.M.” because “there’s a different routine” when she is with Mother. Father stated: [E]very time that [M.M.] come[s] back with me, there’s a startover. There’s a getting back acclimated to [her] 9:30 [p.m.] bedtime. There’s the study time re-acclimation. There’s the time to eat. There’s the cleaning up time. It’s getting it all re-acclimated, and it’s a[n] ongoing thing week after week after week after week.
On “numerous” occasions during the 2022–2023 school year, M.M.’s teacher called him on Monday or Tuesday of his custody week to report that M.M. had “a behavioral problem” at school. Father testified that it was “extremely difficult” to get M.M.
involved in extracurricular activities such as sports and martial arts because Mother “made clear” that he should not schedule anything during her parenting time. He said that, during one of Mother’s custody weeks, M.M. did not attend an after-school program in which she was enrolled.
Father told the court that he should have “full” physical and legal custody of M.M. In his view, Mother did not provide M.M. with the “routine” and “support” that are needed to be a “successful student.”
Father’s Witnesses
K.’s father testified about his experience parenting a child with Mother. Pursuant to a court order, he and Mother had joint legal custody and shared physical custody of K. on a split-week basis. According to K.’s father, the custody arrangement was not successful.
He stated that Mother transferred K. to a different school two or three times without consulting him. He said that K. did not participate in extracurricular activities because Mother would not bring K. to the activity during her parenting time, and that, during the COVID-19 pandemic, when school was being held virtually, K. was not logged into his virtual classroom “a lot of times” while the child was in Mother’s care.
In 2022, the court granted a motion to modify custody filed by K.’s father and awarded him sole legal custody and primary physical custody of K. Mother has visitation every other weekend, and for two consecutive weeks in the summer. According to K.’s father, since custody was modified, communication with Mother had been “great.”
Nakia Bright, the Department caseworker assigned to M.M.’s case, testified that, after M.M. was placed in Father’s care in February of 2021, she performed an evaluation of Father’s home and found it to be appropriate. On cross-examination, Ms. Bright stated that there was a “brief period” of time when Father’s house had no electricity. During that time, Father arranged for M.M. to reside temporarily with her paternal aunt. In March or April of 2023, Mother notified Ms. Bright that Father was living in a hotel. Father told Ms. Bright that the lease on the house he had been living in had expired, and the home he was moving to was in the process of being repaired. According to Ms. Bright, Father stayed in a hotel for approximately three weeks.
Father’s last witness was Katelyn Fisher, who was M.M.’s fifth grade teacher in the 2022–2023 school year. She testified that M.M. was “incredibly smart” and “very much advanced for her age[,]” but she “lack[ed] certain social-emotional skills for a fifth[-]grader.” She said that M.M. displayed a bi-weekly “behavioral pattern” of “outbursts in class where she would just get up and . . . say things that were not in line with academics.” M.M. became “upset throughout the day[,]” made “negative” and “insult[ing]” comments to other students, and ate pencil lead in class. Ms. Fisher tried to discuss M.M.’s behavior at lunchtime, but M.M. “usually wouldn’t want to talk.” According to Ms. Fisher, M.M. “would usually just want to eat her lunch and then fall asleep.”
Ms. Fisher communicated with Father at least once a month to discuss M.M.’s academic progress and behavior, and how he could help and support M.M. In a letter addressed “to whom
it may concern,” which Ms. Fisher prepared in May of 2023, at Father’s request, she wrote: “One thing I must note is that through my conversations with [Father] I have witnessed and seen the outpouring of support and best interest of his child at length. Every note and detail [Father] and I have discussed has been implemented and fully developed to great effect.”
Ms. Fisher could not recall any interactions she had with Mother. She called Mother the first week of school but “couldn’t get ahold of her voicemail[.]” After that, she stopped trying to communicate with Mother.
In-Camera Interviews with M.M.
Prior to the first day of the hearing, counsel for M.M. filed a motion requesting that the court interview M.M. in camera, because “testifying on the witness stand about her desires for custody, in front of her parents, would be unduly burdensome for her emotionally and developmentally.” Father filed an opposition in which he objected to M.M. being interviewed in camera or testifying in open court because it would subject to her “unnecessary stress and strain[.]”
The court addressed the motion for an in-camera interview at the beginning of the first day of the hearing. Father objected to M.M. being interviewed by the court that day, and instead proposed that it take place on a day when M.M. was scheduled to see her therapist, to help M.M. “process” the experience. The court overruled the objection, noting that M.M.’s appointed counsel had expressed no reservation or objection to the interview. Counsel for M.M. was present during both interviews, which were recorded. The other parties observed the interviews remotely as they occurred from another location within the courthouse.
M.M. was eleven years old at the time of the first interview during the hearing on September 12, 2023. M.M. had recently started sixth grade in a new school. M.M.’s older half-brother, K., who was then in high school, had attended the same school. M.M. told the court that she liked her teachers and she liked the school, which she described as “really cool.” She said that everybody at the school was “nice” and that it was “generally better” than the K-8 school she had attended from kindergarten through fifth grade.
M.M.’s current school is located within a two-minute walk from Mother’s house.
M.M. said that it takes “about an hour” to get to school from Father’s house, and that, when she stays with Father, she is late for school “most of the time.” When the court asked M.M. whether she would prefer to look for another school or stay at her current school, M.M. said that she wanted to stay at her current school. M.M. responded affirmatively when the court asked if she had lots of friends at school, and M.M. named her “best friend” in the school. Her other “best friend,” who goes to different school, lives “down the street” from Mother’s house. She has known one of her best friends since she was in kindergarten. She enjoys talking to or exchanging text messages with her friends after school. When the court asked M.M. if she had any “issues” with her brothers, M.M. said, “No. I love my brothers. They’re so adorable.”
M.M. told the court that she loves to paint and create art. The court asked M.M. whether she was interested in participating in
after-school activities. M.M. responded, “Not really Sports are not my thing. It’s just not.”
The court asked M.M. about her preference for custody. M.M. said that she loves Father “very much” and wants to be able to see him, but that she preferred to live with Mother:
THE COURT: So, M.M., if you had, you know, if you had your choice, how would you kind of see or envision where you [would] stay?
M.M.: I want to stay with my mom most of the time and be able to see my dad. It would be - -
THE COURT: Right. No, that’s a tough choice for a kid to make. M.M.: Yeah.
THE COURT: You’ve kind of grown used to that, and you said that you kind of - -
M.M.: I want to be with my mom more. THE COURT: Be with your mom more. M.M.: Yeah.
THE COURT: Okay. Is there anything in particular that, you know, the reason why you want to stay with your mom more [than] with your dad?
M.M.: I just love my mom. And I’ve known her for like most of my life. THE COURT: Okay.
M.M.: I want to stay with her.
THE COURT: Okay. And do you get along with your dad? . . .
M.M.: Yeah. I love my dad very much.
THE COURT: [Are] there any challenges, you know, going to his house as opposed to staying with your mom?
M.M.: Well, his house is far out. So, like it’s far away.
THE COURT: Okay. And does some of that have to do with . . . you have friends in the neighborhood with your mom or - -
M.M.: Yeah. Most of my friends are in the city. (Unintelligible) my school is closer and it’s inside the city, so I prefer that. ‘Cause when I have to go home it takes a while. A little later in the interview, the court again asked M.M. about her preference:
THE COURT: . . . I hate to put it this way, because life, you know, sometimes [you have to] make a choice, but if you had to make a choice would you prefer to stay with your dad or your mom?
M.M.: Probably my mom.
THE COURT: Okay. But you’d certainly want to visit your dad? M.M.: Yeah.
THE COURT: And have either of them . . . pressured you to tell me or to say that or - -
M.M.: No.
THE COURT: This is what you want - -
M.M.: Just living with both of them together. I know how I feel about both of them.
At the request of counsel for M.M., the court conducted a second interview four months later, during the third day of the hearing on January 30, 2024. Due to a technical issue, the parties had difficulty hearing M.M.’s responses, so the court summarized her statements.
During the second interview, M.M. “expressed a great deal of satisfaction” with her school and said that her teachers were more supportive and helpful than those at her previous school. She found it “very convenient and very nice” that the school was located less than half a block from Mother’s house.
M.M. told the court that things had been “fine” since the first interview, but there had “been some challenges more recently.” She “went into great lengths about the difficulty in getting to and from school” under the alternating-week custody arrangement, and she “elaborated that staying with [Father] has resulted in her going to her aunt’s house as well.” She said that Father “didn’t have a car that would allow him to take her to school on a timely basis[,]” and that, when she is with Father, she takes an Uber or her aunt takes her to school. M.M. had recently started to stay with the aunt during Father’s custody week so that she could get to school on time.
M.M. told the court that she feels “a little bit more isolated” when staying with Father. Her friends do not live near Father, and she had not been able to make friends in Father’s neighborhood because there are not many children there. She cannot call or text her friends because Father does not like her to have a phone, so she does not bring it to his house.
As she had in the first interview, M.M. told the court that she would prefer to stay with Mother. When the court asked her to explain her reasons, M.M. said that Mother was “easier to get along with[,]” while Father has “greater expectations” of her.
Court’s Findings and Custody Order
On April 10, 2024, the court issued a written opinion and order. At the outset, the court made a finding, pursuant to FL section 9-101, that there was no likelihood of future child abuse or neglect in Mother’s care. The court stated:
On the contrary, this court is convinced that [Mother], like [Father], cares deeply for [M.M.]. Any past allegations or concerns regarding . . . abuse or neglect have been alleviated. Since the initial allegations were raised, Mother has participated in several programs to help address the concerns raised by the Department. This included attending anger management, parenting classes and therapy. The result of this, along with the testimony received throughout the course of this hearing provided substantial evidence that there is [] no likelihood for further abuse or neglect.
The court proceeded to explain in detail the reasoning behind its custody decision by considering the relevant factors under Taylor v. Taylor, 306 Md. 290 (1986). The court found that both parents were fit, both were sincere in their requests for custody, and that neither parent’s job or financial status was a significant factor. The court evaluated the location of each parent’s home relative to M.M.’s school and social life, finding there was a “material distance” that raised concerns. The court also found that there were “clearly some differences” in M.M.’s relationship with each parent. The court determined that the balance of factors weighed against a shared custody arrangement and in favor of granting Mother primary custody.
Ultimately, the court concluded: (1) M.M. was not a CINA; (2) there was no likelihood of further child abuse or neglect by Mother; and (3) it was in M.M.’s best interest for Mother to be granted sole legal custody and primary physical custody. Father was granted visitation every other weekend during the school year, and alternating weeks during the summer. The parties were ordered to participate in mediation to work out an agreement regarding holiday visitation.
Additional facts will be incorporated as they become
DISCUSSION
On appeal, this Court reviews a child custody decision under “three interrelated standards of review.” J.A.B. v. J.E.D.B., 250 Md. App. 234, 246 (2021). First, “[w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8- 131(c)] applies.” Id. (quoting In re Yve S., 373 Md. 551, 586 (2003)). Factual findings “are ‘not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” Gizzo v. Gerstman, 245 Md. App. 168, 200 (2020) (quoting Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019)). In reviewing the court’s factual findings, we view the evidence in the light most favorable to the prevailing party. Lemley v. Lemley, 109 Md. App. 620, 628 (1996). Furthermore, we “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Gizzo, 245 Md. App. at 200 (quoting Md. Rule 8-131(c)).
Next, “if it appears that the [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.” J.A.B., 250 Md. App. at 246 (quoting Yve S., 373 Md. at 586).
Finally, “[o]n the ultimate issue of which party gets custody . . . we will set aside a judgment only on a clear showing that the [trial court] abused [its] discretion.” Gizzo, 245 Md. App. at 201 (quoting Viamonte v. Viamonte, 131 Md. App. 151, 157 (2000)). “An abuse of discretion may occur 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, or when the ruling is clearly against the logic and effect of facts and inferences before the court.” Id. (citing Santo v. Santo, 448 Md. 620, 625–26 (2016)). “An abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.” B.O. v. S.O., 252 Md. App. 486, 502 (2021) (quoting Wilson v. John Crane, Inc., 385 Md. 185, 199 (2005)).
I. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN INTERVIEWING M.M.
A. Party Contentions
Father contends that the court erred in interviewing M.M. during the hearing because she was “just” twelve years old and, in Father’s view, did not have the maturity or capacity to evaluate what was in her best interest. Father asserts that the court violated what he claims are “well-established principles and guidelines for interviewing children” by asking M.M. which parent she would prefer to live.
M.M., through counsel, maintains that the interviews were developmentally appropriate and conducted in an appropriate manner. Mother filed a line adopting M.M.’s arguments but did not submit a separate brief. The Department did not submit a brief.
B. Analysis
In a disputed custody case, “a child’s preference to live with one parent over the other is a factor that ‘may’ be considered[.]”
The desires of the child are consulted, not because of any legal rights to decide the question of custody, but because the court should know them in order to be better able to exercise its discretion wisely. It is not the whim of the child that the court respects, but its feelings, attachments, reasonable preference[,] and probable contentment.
Leary v. Leary, 97 Md. App. 26, 48 (1993) (quoting Ross v. Pick, 199 Md. 341, 353 (1952)), abrogated on other grounds by Fox v. Wills, 390 Md. 620 (2006). Accord Karanikas v. Cartwright, 209 Md. App. 571, 591 (2013).
It is “axiomatic” that the court has discretion to conduct an interview of a child in a custody matter. C.M., 258 Md. App. at 66. In exercising its discretion, the court should be mindful of the possibility of “severe psychological damage to the child.” Marshall v. Stefanides, 17 Md. App. 364, 369 (1973). “[T]here is no specific age of a child at which [his or her] wishes should be consulted and given weight by the court”; rather, “[t]he matter depends upon the extent of the child’s mental development.” Leary, 97 Md. App. at 48 (quoting Ross, 199 Md. at 353). “When a child is of sufficient age and has the intelligence and discretion to exercise judgment as to his or her future welfare, based upon facts and not mere whims, those wishes are one factor that, within context, should be considered by the trial judge in determining custody.” Id.
Here, there is nothing in the record to indicate that M.M. was not “of sufficient age” or that she lacked “intelligence and discretion to exercise judgment” as to her future welfare. To the contrary, M.M.’s former teacher described her as “incredibly smart” and “very much advanced for her age.” The circuit court described M.M. as a “very thoughtful” and “well-adjusted teenager” and attributed the ability to have “meaningful and instructive” conversations with her to her age. Furthermore, there is nothing in the record to suggest that an interview by the court would subject M.M. to the possibility of “severe psychological damage.” See Marshall, 17 Md. App. at 369. Counsel for M.M. requested that the court conduct an interview. Mother did not object to the interviews; nor did the Department. Although Father claimed that it would create “unnecessary stress and strain” for M.M., and he requested that any interview take place on a day when M.M. was scheduled to see her therapist, there is no indication that the therapist expressed any concerns. The decision to speak with M.M. about her preference regarding custody was an appropriate exercise of the court’s discretion.
Father cites no legal precedent to support his contention that the court violated “well-established” principles by inquiring as to M.M.’s preference to live with Mother or with Father. As argued in the brief filed on behalf of M.M., the court has discretion as to the content of a child interview. C.M., 258 Md. App. at 66; see also Karanikas, 209 Md. App. at 588. Moreover, as stated above, one of the factors a court may consider is the child’s preference “to live with one parent over the other[.]” C.M., 258 Md. App. at 66. The court did not abuse its discretion in asking M.M. about her preferred custody arrangement.
II. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN AWARDING SOLE LEGAL CUSTODY AND PRIMARY PHYSICAL CUSTODY TO MOTHER.
A. Party Contentions
Father maintains that the court based its custody determination on findings that were not supported by the evidence. While Father recites several of the court’s findings in this section of his brief, the only one he appears to challenge is the finding that Mother is fit to have custody. He claims that the finding was erroneous because the court had previously sustained allegations of abuse and neglect, and, according to Father, his evidence demonstrated that Mother’s home lacks “structure[,]” and she does not help M.M. with her schoolwork or support her participation in extracurricular activities. Father argues that the only conclusion supported by the evidence is that Mother is not a capable and fit parent, and therefore, the court abused its discretion in awarding her primary physical and sole legal custody.
M.M. and Mother maintain that the evidence supports the court’s ultimate custody determination.
B. Analysis
A previous finding of abuse or neglect by a parent does not necessarily compel a finding that a parent is unfit to have custody.13 See Gizzo, 245 Md. App. at 203 (evidence of a parent’s past conduct is “only relevant insofar as it [may be] predictive of future behavior and its effect on the child.”) (quoting Azizova, 243 Md. App. at 357). Here, the undisputed evidence before the court established that Mother had complied with all Department requirements, including participation in anger management, parenting classes, and therapy. The Department advised the court that it had no concerns about M.M.’s safety while in Mother’s care. Based on our review of the record, we cannot conclude that the court’s finding—that there was no likelihood of further abuse or neglect while the child was in Mother’s care—was clearly erroneous.
Moreover, although Father claimed that Mother was uninvolved in M.M.’s academic life and did not promote her involvement in extracurricular activities, Mother’s testimony tended to establish otherwise. In sum, viewing the evidence, as we must, in the light most favorable to Mother, as the prevailing party, we conclude that the court’s finding that Mother was fit to have custody was not clearly erroneous.
III. THE CIRCUIT
COURT DID NOT ERR IN ITS ANALYSIS OF THE CUSTODY FACTORS.
A. Party Contentions
Father’s third and final contention is that, in making its custody determination, the court focused “exclusively” on M.M.’s stated preference to live with Mother.14 M.M. and Mother maintain that the court properly considered all relevant factors in making its custody determination and did not rely solely on M.M.’s wishes.
B. Analysis
“When a court makes a custody determination, it is called
upon to make a prediction about the custody arrangement that is in the child’s best interest.” In re T.K., 480 Md. 122, 156 (2022). “[T]he fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child the child will be better off in the future.” Azizova, 243 Md. App. at 344–45 (internal quotation marks and citation omitted). Although a trial court is “not limited to a list of factors in applying the best interest standard in each individual case,” the Maryland Supreme Court and this Court have discussed various factors that are relevant to a custody determination. Id. at 345 (citing Taylor v. Taylor, 306 Md. 290 (1986); Montgomery Cnty. Dept. of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977)).15
“While the court considers all the . . . factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor[.]” Karanikas, 209 Md. App. at 590 (quoting Sanders, 38 Md. App. at 420).
We are satisfied that the court did not base its custody determination solely on M.M.’s stated preference. The court listed the factors as articulated in Taylor, 306 Md. at 304–311, and made findings as to the factors relevant to this determination: Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare. The court found that the parents’ capacity to communicate was “compromised.” The court noted that “[w]hile both [p]arents appear intent on doing what is in their daughter’s best interest,” it was “abundantly clear that input or compromise between them was dismissed or ignored.”
Willingness of Parents to Share Custody. The court remarked that, although there were “moments in which the parents appeared to be open to [c]o-[p]arenting with shared decision making[,]” it became apparent over the course of the hearing that it was “not likely” because of their communication problems. The court found that “both Mother and Father are ultimately unwilling to share custody.”
Fitness of Parents. The court found, despite the differences in the parties’ approach to parenting, that they were “both fit parents who love their daughter and want what is in her best interest.”
Relationship Established Between the Child and Each Parent. The court commented that there were “clearly some differences” in M.M.’s relationship with each parent. The court stated:
[w]hile it might be inviting to account for the difference . . . as resulting from one parent being more lax in household rules while the other is a perceived disciplinarian, this does not consider the other subtle differences between the parents. Based on the [c]ourt’s consultation with [M.M.], it was clear that [her] preference is to remain with Mother. This was based on several factors which can help inform the [c]ourt’s finding regarding the relationship between parent and child. School choice, friends, and availability of a cell phone, all contribute to [M.M.’s] preference to be with Mother. This is
not to say that [M.M.] does not love both her parents, but this relationship is manifested in different ways between the two.
Preference of the Child. The court noted that it had several “meaningful and instructive” conversations with M.M., in which M.M. said that she wanted to live with Mother. The court found that M.M. came to that decision on her own, that there was no pressure on her to do so, and that the decision was not “arbitrarily or capriciously made.” The court noted that in its conversations with M.M. she “made it clear [that] she loved” Father, but that Mother “provided more of the structure and opportunities she was interested in.”
Potential Disruption of Child’s Social and School Life. The court noted that M.M. wanted to remain with Mother because she “enjoyed her school, its proximity to [Mother’s] house, and the friendships she’s developed over the past year. [M.M.] seemed genuinely happy with her school, and to remove her from that environment would clearly affect [her] in an adverse way.”
Geographic Proximity of Parental Homes. The court found that, although the parents “do not live terribly far from one another,” there is a “material distance” in that they live in separate school districts, and, therefore, M.M. would have to transfer to a new school if Father were granted primary custody. The court further found that M.M.’s “friends and support network appear to be centered around [Mother’s] house[,]” which weighed in favor of Mother.
Demands of Parental Employment. The court noted that Mother is self-employed and works from home, which gives
her “some flexibility over her hours[,]” and that “Father’s employment varies but appears stable and allows for sufficient time off in which to accommodate” M.M.’s needs. The court found that “[w]ork obligations do not interfere with either [parent’s] ability to care” for M.M.
Age and Number of Children. The court found that, because of M.M.’s age, it was able to have “meaningful and instructive conversations with her.”
Sincerity of Parents’ Request. The court found that both parents “clearly wanted” custody of M.M.
Financial Status of the Parents. The court found that the parties’ respective financial status was not a “significant factor” as both were employed and had the means to provide for M.M.’s needs.
The court expressed that it would not “defer” to M.M.’s preferred custody arrangement but would take it into account. Through considering many relevant factors, the court determined that M.M.’s friends and support network were centered around Mother’s home,16 and that removing M.M. from her current school and surrounding environment would have an adverse effect. The court concluded that, in addition to M.M.’s preference to reside with Mother, the evidence demonstrated that M.M.’s interest would be best served by granting custody to Mother.
Based on our review of the record, we find no error in the court’s findings, no error of law in the analysis of the relevant factors, and no abuse of discretion in the court’s decision to grant primary physical custody and sole legal custody of M.M. to Mother. Therefore, we affirm the order of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 A CINA is a “child who requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and
(2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code (2001, 2020 Repl. Vol.), Cts. & Jud. Proc. § 3-801(f) (“CJP”).
2 To protect the identity of the minor child, we refer to the child using initials.
3 Rephrased from:
I. Whether the juvenile court erred in its in-camera interview with [M.M.].
II. Whether the evidence adduced at trial supports the juvenile court’s finding that the best interests of [M.M.] are served by awarding Mother sole legal and primary physical custody.
III. Whether the juvenile court erred by focusing almost exclusively on a single factor (i.e. the expressed preference of the child) rather than taking
all factors into consideration, contrary to the dictates of well-established case law.
4 CJP section 3-819(e) provides:
If the allegations in the petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a child in need of assistance, but, before dismissing the case, the court may award custody to the other parent.
5 Section 9-101 of the Family Law Article, which governs child custody and visitation, provides: “if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.” Md. Code (1984, 2019 Repl. Vol), Family Law Article (“FL”) § 9-101(a). Absent a finding that there is no likelihood of further child abuse or neglect by the party, “the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological,
psychological, and emotional well-being of the child.” FL § 9-101(b).
6 The court was not asked to take judicial notice of the 2013 case.
7 To protect the minor children’s identities, we refer to them using randomly selected initials.
8 According to an order of the court dated May 23, 2022, V. is Mother’s nephew, and had been in her care since 2016. Mother was granted custody and guardianship of V. in 2019.
9 No evidence was presented regarding the circumstances leading to the modification of the guardianship order.
10 Uber is “a technology company that, inter alia, uses an app to match up potential riders with drivers seeking customers for prearranged transportation.” Anoush Cab, Inc. v. Uber Techs., Inc., 8 F.4th 1, 9 (1st Cir. 2021).
11 It is not clear when Mother began having weekend visitation. Following a hearing held on February 22, 2021, the court signed an order of shelter care pursuant to which M.M. was placed in the care and custody of Father, and Mother was granted unsupervised visitation twice a week for two hours at a time. On May 23, 2022, the court entered an order pursuant to which Mother was granted unsupervised, overnight visits coordinated by the Department. The court noted that the Department suggested that Mother have overnight visitation from Friday to Sunday.
12 “‘Google Voice’ is a [computer] program that ‘gives [the user] a phone number for calling, text messaging, and voicemail.’” Beckwitt v. State, 249 Md. App. 333, 349 n.8 (2021) (internal citation omitted), aff’d, 477 Md. 398 (2022).
13 The court did not make a finding that Mother physically abused M.M., as Father contends. Rather, the court found that the injuries to M.M. had occurred while she was in Mother’s care, however, because the source of the injuries was uncertain, the court declined to find that Mother had inflicted them. In re M.M. I, slip op. at 2.
14 Father suggests that the court erred in failing to expressly accept or reject the evidence he presented. We do not agree. “[E]ven where the trial court must issue a statement explaining the reasons for its decision, the court need not articulate every step of the judicial thought process in order to show that it has conducted the appropriate analysis.” Gizzo, 245 Md. App. at 195–96 (internal citations omitted).
15 These factors, originally set out in Sanders, 38 Md. App. at 420, and Taylor, 306 Md. at 304–11, include:
(1) The fitness of the parents;
(2) The character and reputation of the parties;
(3) The requests of each parent and the sincerity of the requests;
(4) Any agreements between the parties;
(5) Willingness of the parents to share custody;
(6) Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest;
(7) The age and number of children each parent has in the household;
(8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
(9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;
(10) The geographic proximity of the parents’ residences and opportunities for time with each parent;
(11) The ability of each parent to maintain a stable and appropriate home for the child;
(12) Financial status of the parents;
(13) The demands of parental employment and opportunities for time with the child;
(14) The age, health, and sex of the child;
(15) The relationship established between the child and each parent;
(16) The length of the separation of the parents;
(17) Whether there was a prior voluntary abandonment or surrender of custody of the child;
(18) The potential disruption of the child’s social and school life;
(19) Any impact on state or federal assistance;
(20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child;
(21) Any other consideration the court determines is relevant to the best interest of the child.
Azizova, 243 Md. App. at 345–46 (internal citations omitted).
16 Father asserts that the court’s finding that M.M.’s support network is centered around Mother’s home is not supported by the evidence. We disagree. Mother testified that M.M. has several friends in her neighborhood. M.M. told the court that one of her best friends lives down the street from Mother, and that she enjoyed “family time” with K. and V. while at Mother’s house.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s order requiring husband to pay half of wife’s unsecured credit card debt as part of a monetary award. The credit cards were not used to acquire marital property, so the credit card debt is not marital debt.
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..
he was employed as a mechanic by Vector Management.
Mr. Graham testified that he was the primary caregiver of the children, and that during Ms. Graham’s deployment abroad, he was solely responsible for getting the children to school, caring for them after school, and feeding them. However, Ms. Graham testified that Mr. Graham has a drinking problem, which is why she was seeking a divorce. She testified that Mr. Graham has “had multiple DUIs,” including one that resulted in a “head- on collision” with two teenagers on March 10, 2023.
During the marriage, Ms. Graham accumulated $107,791.00 in credit card debt through purchases of gasoline, building materials for the marital home, dining out, and by paying for their eldest daughter’s college expenses. Mr. Graham and the parties’ eldest daughter were also authorized to use the credit cards, but Ms. Graham was the sole party to the credit card agreement. This was because Ms. Graham’s “credit was better.” Additionally, as a member of the armed services, Ms. Graham had a Thrift Savings Plan (TSP) Account worth $92,515.00.
Appellant, Kenton Graham (“Mr. Graham”), appeals an order, by the Circuit Court for Prince George’s County, that he pay half of appellee Afeia Graham’s (“Ms. Graham”) unsecured credit card debt as part of a monetary award. Mr. Graham also appeals the denial of his motion to reconsider his request for alimony. He presents three questions,1 which we have rephrased and consolidated as follows:
1. Did the circuit court err in ordering Mr. Graham to pay half of Ms. Graham’s unsecured credit card debt because the credit card debt was not “marital debt”?
2. Did the circuit court abuse its discretion in denying Mr. Graham’s motion to reconsider his request for alimony? For the reasons that follow, we reverse the judgment of the circuit court on both grounds and remand for further proceedings consistent with this opinion.
BACKGROUND
Mr. Graham and Ms. Graham were married in a civil ceremony in Hampton, Virginia, on August 8, 2001. The parties have two children from the marriage, one of whom was twenty-two years old at the time of trial, and one of whom was sixteen years old. Shortly after the marriage, Ms. Graham joined the United States military and was initially stationed in Williamsburg, Virginia. Her military service required the parties to move several times, meaning that Mr. Graham frequently had to find new employment. Mr. Graham’s work history includes operating a mobile tire service, catering for events, DJing, and buying and selling cars. Mr. Graham has also been employed as a mechanic by Enterprise Rental Car, and at the time of the trial
At the time of the trial in this case, the parties had separated. Mr. Graham was living in his car while Ms. Graham continued to reside in the marital home with their youngest daughter.
Ms. Graham filed a Complaint for Absolute Divorce, Child Custody, Support and Other Relief against Mr. Graham on October 3, 2023. At trial on June 12, 2024, Ms. Graham asked that the court split the marital property evenly between herself and Mr. Graham, except for her retirement account, which she asked to be offset by Mr. Graham’s business earnings. The court ultimately awarded primary physical custody of the parties’ minor child to Ms. Graham, awarded joint legal custody to the parties, with neither side having tiebreaking authority, and granted liberal access with the child to Mr. Graham. The court awarded the “marital portion” of Ms. Graham’s military pension to Mr. Graham and ordered that both the TSP account and the equity in the marital home be split evenly between the parties, but permitted Ms. Graham to buy out Mr. Graham’s portion of the equity in the marital home within six months of the judgment. The court also found that the unsecured credit card debt was marital debt, and ordered the parties to split it evenly. Additionally, the court ordered Mr. Graham to pay $535 per month in child support.2 These rulings were re-stated in the Judgment of Absolute Divorce entered on July 16, 2024.
After the court announced its ruling from the bench, Mr. Graham inquired about alimony, which the court had not ruled on. The court stated that it did not rule on alimony because Mr. Graham had not made a request for alimony during the presentation of his case. The court advised Mr. Graham that, if he could show the court where in the trial transcript he
requested alimony, the court would reconsider its ruling. Mr. Graham thereafter filed a motion for reconsideration on July 10, 2024, attaching as an exhibit an excerpt of the trial transcript purportedly showing where he requested alimony. The court summarily denied this motion on July 29, 2024.
Mr. Graham filed a timely notice of appeal on August 13, 2024.
STANDARD OF REVIEW
Maryland Rule 8-131(c) permits us to review cases that have been tried without a jury on both the law and the evidence. McCleary v. McCleary, 150 Md. App. 448, 456-57 (2002). Under Md. Code Ann., Fam. Law (FL), § 8-205(a), whether to grant a monetary award is generally a decision within the sound discretion of the trial court. Id. In making this decision, the court must follow a three-step process:
First, for each disputed item of property, the court must determine whether it is marital or non-marital. Second, the court must determine the value of all marital property. Third, the court must determine if the division of marital property according to title will be unfair; if so, the court may make an award to rectify the inequity. Collins v. Collins, 144 Md. App. 395, 409 (2002) (citations omitted).
On review of a court’s determination as to marital property, “it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). “Findings of this type are subject to review under the clearly erroneous standard embodied by Md. Rule 8-131(c); we will not disturb a factual finding unless it is clearly erroneous.” Id. However, whether a purchased item meets the definition of “property” is a question of law that we review de novo. See Deering v. Deering, 292 Md. 115, 125 (1981) (defining “property” as “everything which has exchangeable value or goes to make up a man’s wealth”).
“[T]he ruling on a motion for reconsideration is ordinarily discretionary.” Wilson-X v. Dep’t of Human Resources, 403 Md. 667, 674-75 (2008). “[T]he standard of review in such a circumstance is whether the court abused its discretion in denying the motion.” Id. “An abuse of discretion occurs where no reasonable person would take the view adopted by the trial court ... or when the court acts without reference to any guiding principles, and 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.” Sibley v. Doe, 227 Md. App. 645, 658 (2016).
DISCUSSION
I. The
Circuit Court
Erred in Finding that Ms. Graham’s Unsecured Credit Card Debt is Marital Debt
Mr. Graham argues that the circuit court erred as a matter of law in finding that Ms. Graham’s unsecured credit card debt is marital debt. He contends that this was an error of law because the credit cards were only used to purchase gasoline, for dining out, for their elder daughter’s college expenses, and for other household expenses. In his view, these should not be considered “property” for purposes of determining marital debt.
In response, Ms. Graham argues that the credit cards were used to make purchases that maintained and supported the daily needs and expenses of the family unit, of which Mr. Graham was a part. Therefore, she argues, the circuit court correctly found that the credit card debt is marital debt.
“[A] ‘marital debt’ is a debt which is directly traceable to the acquisition of marital property.” Schweizer v. Schweizer, 301 Md. 626, 636-37 (1984). “Conversely, a ‘nonmarital debt’ is a debt which is not directly traceable to the acquisition of marital property.” Id. A court may not order one spouse to pay the sole, nonmarital credit card debt of the other. See Md. Code Ann., FL § 4-301(b).3 Thus, the primary question to be answered here is whether Ms. Graham’s credit cards were used to acquire “marital property.” If not, then Mr. Graham could not be ordered to pay any portion of the credit card debt.
Marital property is defined at Md. Code Ann., FL § 8-201(e), which states:
(1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage.
(2) “Marital property” includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.
(3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property:
(i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or (iv) directly traceable to any of these sources. There is no dispute in this case that the credit card purchases were made by one or both parties during the marriage. Thus, the only question is whether the credit card was used to purchase “property.”
“The term property, ‘when considered in a broad sense, is a term of wide and rather comprehensive signification It has been stated that the term embraces everything which has exchangeable value or goes to make up a man’s wealth— every interest or estate which the law regards of sufficient value for judicial recognition.’” Deering, 292 Md. at 125 (quoting Diffendall v. Diffendall, 239 Md. 32, 36 (1965)). “Property is an ‘interest or estate which the law regards of sufficient value for judicial recognition.’” Reese v. Dep’t of Health and Mental Hygiene, 177 Md. App. 102, 153 (2007) (quoting Dodds v. Shamer, 339 Md. 540, 548 (1995)). “Generally, the common law concept of property refers to the right and interest a person has in an object, which extends beyond ownership and possession to include the lawful, unrestricted right of use, enjoyment, and disposal of the object.” Id. “A protected property interest can take a number of forms and is not ‘uniform.’” Id. (quoting Dodds, 339 Md. at 549).
Under this definition, the credit cards were not used to purchase “property” during the marriage. The parties used the credit cards to pay for gasoline, food when dining out, their eldest daughter’s college expenses, and materials that were used to renovate the bathroom, kitchen, siding, and roofing of the marital home. Food from a restaurant, gasoline, and a college education do not have “exchangeable value,” Deering, 292 Md. at 125. Unlike items such as furniture, appliances or motor vehicles, which would undoubtedly meet this definition,
food from a restaurant and gasoline are items that are quickly exhausted and not capable of a secondary exchange. Additionally, a college education is not a tangible item that can be exchanged either. Similarly, building materials that have already been used to renovate parts of the house are not exchangeable, because they have become fixed parts of the home.4 Therefore, the credit cards were not used to acquire marital property, so the credit card debt is not marital debt. The circuit court erred in finding otherwise and in ordering Mr. Graham to pay any portion of the credit card debt.
Based on the erroneous premise that Mr. Graham would pay half of the credit card debt, the circuit court awarded him half of the equity in the marital home, half of Ms. Graham’s TSP account, and “the marital portion” of Ms. Graham’s military pension. Since we are vacating the court’s order that Mr. Graham pay half of the credit card debt, we remand to allow the court to revisit the monetary award in light of the FL § 8-205 factors.5
II. The Circuit Court Abused its Discretion when it Summarily Denied Mr. Graham’s Motion for Reconsideration Despite Evidence of a Transcription Error in the Trial Record
Mr. Graham argues that the circuit court abused its discretion in refusing to consider his request for alimony. Ms. Graham, however, argues that the court did not err because Mr. Graham never requested alimony.
In his counter-complaint, Mr. Graham clearly included a request for alimony. He also contends that he made a verbal request for alimony during the trial. However, when it announced its oral ruling from the bench, the court did not include any decision on alimony. When the court asked if there were any questions, Mr. Graham asked about alimony. In response, the court stated that it had not heard Mr. Graham make a request for alimony at any point during the presentation of his case. The court advised Mr. Graham that if he could produce the trial transcript and show the court where he requested alimony, then the court would reconsider its ruling.
Mr. Graham followed the court’s advice and diligently filed a motion for reconsideration, including as an exhibit an excerpt of the trial transcript that included the following remarks from Mr. Graham:
So all I am asking for is whatever I deserve for being in this relationship for 25 years. I would like all the money. I would like the percentage of the house. I just need a start, Your Honor. I don’t have nothing. I don’t have no one in my corner, nothing.
So I just need a start to start over back because I give my family my whole 25 years.
Mr. Graham underlined the words “all the money” to point out the court reporter’s transcription error. He contends that he requested alimony, but that the word alimony was recorded as “all the money” due to his Jamaican accent.
While Mr. Graham’s request was recorded as being for “all the money,” court reporters are not infallible. They are human, and sometimes they make mistakes. Where a party alleges an error or omission in the trial transcript, he “must establish that the missing material rendered his appeal meaningless, i.e., that he was deprived of meaningful appellate review.” Wilson v. State, 334 Md. 469, 477 (1994). “To accomplish this, he has to show that the omission is not inconsequential, but is ‘in some manner’ relevant to the appeal.” Id. He must also “be diligent in his attempt to reconstruct the missing testimony.” Smith v. State, 291 Md. 125, 138 (1981).
First, Mr. Graham acted diligently, filing his motion for reconsideration less than a month after the court’s ruling. Additionally, the alleged error in the trial transcript is not inconsequential. On the contrary, the allegedly errant portion of the transcript involved an issue that goes to the very heart of this appeal, i.e., whether Mr. Graham made a request for alimony.
Nowhere else in the transcript does Mr. Graham ask for “all the money.” In fact, when viewed in context of his surrounding statements, his request for “all the money” seems out of place. For example, Mr. Graham stated, “So all I am asking for is whatever I deserve,” “I just need a start,” and “I don’t have nothing.” These statements do not appear to be motivated by greed, like a request for “all the money.” Rather, it appears that Mr. Graham was in a dire situation following his separation from Ms. Graham, and was simply asking for enough money to help get him back on his feet.
This reading of the transcript is also supported by the fact that Mr. Graham was living in his car at the time of the trial, that he could afford no more than $500 for rent, and that he actually included a request for alimony in his counter-complaint. Thus, it is far more likely that Mr. Graham requested alimony, and the court reporter mistakenly recorded this request as one for “all the money,” than it is that Mr. Graham actually requested “all the money.” By denying his motion for reconsideration in spite of this evidence, the circuit court abused its discretion. On remand, the circuit court should consider Mr. Graham’s request for alimony, and explain its reasoning for granting or denying that request.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY IS REVERSED. CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS ARE TO BE PAID BY APPELLEE.
FOOTNOTES
1 Mr. Graham phrased his questions as follows:
1. Did the judge err in defining Appellee’s unsecured credit card debt as “marital debt” when there is no evidence that ties the debt to the acquisition of specific marital property?
2. Did the judge err in ordering that Appellant pay half of Appellee’s unsecured credit card debt for which Appellee was solely liable?
3. Did the judge err in refusing to consider Appellant’s request for alimony after Appellant pointed out that the Judge had not heard him correctly?
2 In its oral ruling from the bench, the circuit court announced that Mr. Graham’s child support obligation would be $598 per month, but that figure was changed to $535 per month in the Judgment of Absolute Divorce.
3 A husband is not liable:
(1) for a tort that is committed:
(i) separately by his wife; and
(ii) without his participation or sanction; or
(2) on a contract made by his wife in her own name and on her own responsibility.
4 To the extent a party could show that building materials used in the renovation increased the value of a marital home, that debt could potentially be “marital.” No such evidence exists here.
5 A remand for reconsideration of the monetary award is particularly appropriate here since we are also remanding for reconsideration of Mr. Graham’s request for alimony. See St. Cyr v. St. Cyr, 228 Md. App. 163, 198 (2016) (“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.’” ‘“Therefore, when this Court vacates one such award, we often vacate the remaining awards for reevaluation.’”) (quoting Turner v. Turner, 147 Md. App. 350, 400 (2002)).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s alteration of the child’s permanency plan to include adoption. The court was presented with ample evidence from which to conclude, based on the statutory factors, that changing the child’s permanency plan was consistent with his best interests.
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..
where the Department made contact with Mother’s current husband, Mr. V., who reported that M. was “in the process of being adopted by a family friend” who lived in Utah. Mother and Father thereafter provided a notarized letter indicating that M. had been adopted by a non- relative in Utah on July 7, 2022. The Department quickly discovered that the letter was fraudulent and that M. was actually in the physical custody of a different family friend, who lived in Maryland. On July 13, 2022, M. was sheltered by the Department and placed back in the care of Mr. and Ms. B.
The following day, the Department filed a petition in the juvenile court requesting that M. be declared a child in need of assistance (“CINA”).2 In August 2022, the juvenile court granted the Department’s petition and found M. to be a CINA.
This appeal arises from a judgment, entered in the Circuit Court for Baltimore County, sitting as the juvenile court, in which the court altered the permanency plan of a child, M., to include adoption. M.’s mother, Ms. V., noted an appeal from that judgment, presenting a single question for our review: Did the juvenile court commit error when it changed M.’s permanency plan to include adoption as a goal?
Finding no error, we affirm.
BACKGROUND
M. was born in November 2020 to Ms. V. (“Mother”) and Mr. M. (“Father”).1 Following his birth, M. was sent to live with his paternal great aunt, Ms. B., and her husband, Mr. B. M. remained in Mr. and Ms. B.’s care until, on June 30, 2022, Mother and Father showed up at Mr. and Ms. B.’s home with the police and took M. Up to that point, Mother and Father had not participated in M.’s care.
On July 6, 2022, the Baltimore County Department of Social Services (the “Department”) received a report that M.’s medical needs were not being met. At the time, M. had been diagnosed with “a genetic disorder, cognitive limitations, a seizure disorder, and behavioral concerns that include[d] banging his head against the wall.” According to M.’s medical providers, M.’s medical needs had been well managed up to that point. M.’s medical providers reported that M. had several upcoming appointments and that they had been unable to get in contact with Mother or Father regarding those appointments.
On July 8, 2022, the Department attempted to contact Mother, but her phone was disconnected. When the Department contacted Father, he reported that M. “was with his sister[.]” The Department then made an unannounced visit to Mother’s home,
In September 2022, Ms. B. passed away. M. remained in Mr. B.’s sole care. In January 2023, the juvenile court adopted a permanency plan that included reunification with Mother and Father.
In October 2023, the juvenile court held a permanency planning review hearing. Following that hearing, the court ordered that M.’s permanency plan be changed to reunification with Mother and Father concurrent with placement with a relative for custody and guardianship.
In March 2024, a permanency plan review hearing was held before a magistrate. Following that hearing, the magistrate recommended that M.’s permanency plan be changed to include five concurrent plans: reunification with Mother and Father; custody and guardianship by a relative; custody and guardianship by a non-relative; adoption by a relative; and adoption by a non-relative. Mother and Father filed exceptions.
The juvenile court held a hearing on Mother’s and Father’s exceptions. According to the evidence presented at that hearing, M. continued to have “complex medical needs” and “extremely limited verbal capacity[.]” M. was diagnosed as “nonverbal” and was currently learning sign language. M. had also been diagnosed with epilepsy and had been prescribed seizure medication. M. had been issued orthopedic shoes to assist with walking stability and had been receiving physical therapy.
M. continued to live with Mr. B., who was taking good care of M. Mr. B. had spoken with the Department “regarding his ability to provide long term care to [M.,]” and Mr. B. had “provided the Department with a potential support that can assist him with caring for [M.] in the event reunification does not occur.” The Department noted that Mr. B. had “a network of family and community[,]” including “two neighbors who support Mr. [B.] during the week with caring for [M.]” The Department also noted that it had identified two individuals, K.E. and B.F., “to become
restricted foster parents as a long-term placement resource for [M.]” At the time, K.E. and B.F., who were family members of one of Mr. B.’s neighbors, had “been building a bond with [M.] by allowing him to attend overnight visits at their home Thursday through Saturday.”
Since M.’s birth, neither Mother nor Father had “participated in any of [M.’s] medical appointments, provided medical intervention, or daily care for his needs.” Mother was determined to have “a serious, pervasive, and persistent neurodevelopmental disorder which presented in early childhood.” Mother, who was thirty-four years old at the time, possessed language skills, literacy, and comprehension “equivalent to that of a 7-8-yearold[,]” and her cognitive functioning fell “below 99% of others.” Mother’s “adaptive deficits” were determined to be “notably below others,” such that Mother would “likely require lifelong support and monitoring[.]” Despite those limitations, Mother had remained communicative with the Department and had participated in supervised visitation with M. The Department planned “to expand visitation in a broader community setting to support [Mother] caring for [M.] in a larger environment.” Mother admitted that “her current residence is not appropriate for [M.] to live, and she is currently looking for housing.” Mother’s parenting evaluation revealed that she did “not currently have the [p]arental [c]apacity but may gain parental capacity in the future.”
Father had been diagnosed with several psychiatric disorders for which it was recommended that he engage in psychotherapy and medication management. The Department was unable to confirm whether Father was receiving the appropriate care for his mental health issues. Father admitted that his current residence was not suitable for M. Father had been in contact with the Department and had been engaging in supervised visitations with M. Like with Mother, Father’s parenting evaluation revealed that he did “not currently have the capacity to [p]arent” but that “he could gain the capacity in the future.”
Mr. B., who was seventy-two years old at the time of the exceptions hearing, testified that he had been caring for M. “since the day after he [was] born.” Mr. B. stated that he “do[es] everything for [M.],” including making sure M. “gets to all his doctors’ appointments, mak[ing] sure he gets to school on time, things of that sort.” Mr. B. added that he would continue caring for M. if he were to obtain custody and guardianship. Mr. B. stated that he had several neighbors who assisted him in caring for M. When asked about
K.E. and B.F., the two individuals the Department was investigating as a long-term resource, Mr. B. stated that he had provided their names to the Department after the Department told him that he “was too old to take care of M.” and that the Department “needed someone that was younger” who could provide long-term care. Mr. B. noted that
K.E. and B.F. currently took care of M. “on the weekend” and that they had a “very nice” relationship with M.
At the conclusion of the hearing, the Department argued that the court should adopt the magistrate’s recommendation of a “five-way” permanency plan that included reunification with Mother and Father, custody and guardianship by a relative, custody and guardianship by a non-relative, adoption
by a relative, and adoption by a non-relative. The Department insisted that the plan would allow the Department to “continue to assess, assess caregivers, assess the child, assess the parents[.]” The Department noted that Mr. B. had “been a God send to this child” and that the Department did not want to minimize “the effect that his care and love has had on the child and on the situation as a whole.” The
Department made clear that, if it were to move forward with adoption, there would be a “serious discussion” regarding a liberal contact agreement between Mr. B. and M.
Mother argued that the court should reject the five-way plan and instead adopt a plan of reunification with a concurrent plan of custody and guardianship to Mr. B. Mother noted that Mr. B. had proven he was capable of caring for M.
M.’s counsel argued that reunification was not viable and that the court should change M.’s permanency plan to adoption only. Counsel noted that, presently, Mr. B. was sharing custody of M. with K.E. and B.F. Counsel explained that, though the parties should work “to figure out a situation that Mr. [B.] remains as involved as possible with [M.],” granting custody and guardianship of M. to Mr. B. would “not provide the permanence and stability . . . that a three-year-old child with special needs is going to require[.]”
In the end, the juvenile court denied Mother’s and Father’s exceptions and adopted the magistrate’s recommended “five way” permanency plan. The court praised Mr. B. and the job he had done in caring for M. since M.’s birth. The court found that Mother and Father were not capable of caring for M., and the court noted its concerns regarding “the behavior that took place in this case” and “the parents’ limitations[.]” The court found it “very concerning” that M. had been in formal care for approximately two years. The court found that “it’s in the best interest of this minor child that options be maintained[,]” though the court was “surprised” that the permanency plan included reunification because the court could “not see how it is possible that these parents will be able to reunify at the present time[.]”
This timely appeal followed. Additional facts will be supplied as needed below.
STANDARD OF REVIEW
Appellate review of a juvenile court’s decision regarding child custody involves three interrelated standards. First, any factual findings made by the juvenile court are reviewed for clear error. In re Yve S., 373 Md. 551, 586 (2003). Second, any legal conclusions made by the juvenile court are reviewed de novo. Id. Finally, if the court’s factual findings and legal conclusions are not erroneous, the court’s ultimate conclusion will be disturbed only if there is an abuse of discretion. In re J.J., 231 Md. App. 304, 345 (2016). “A court abuses its discretion 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.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 625-26 (2016)).
DISCUSSION
Parties’ contentions
Mother contends that the juvenile court erred in changing
M.’s permanency plan to include adoption because the evidence did not support such a change. Mother argues that the evidence demonstrated that M.’s permanency plan should have included only reunification and a concurrent plan of custody and guardianship with Mr. B. Mother argues that, because Mr. B. had been M.’s sole caregiver and because he remained a suitable caretaker, the court’s inclusion of adoption by a non-relative contradicted M.’s best interests.
The Department contends that the juvenile court acted within its broad discretion in including concurrent plans of adoption. The Department notes that M.’s complex medical needs will likely necessitate care beyond the age of eighteen, that Mother and Father lacked the capacity to parent, and that “practical limitations” impeded Mr. B.’s ability to remain a longterm caregiver for M. The Department argues that, under the circumstances, the court committed no abuse of discretion in including adoption in M.’s permanency plan.
Analysis
When a child is declared a CINA and removed from the care of a parent, the juvenile court is required to hold a hearing to determine a permanency plan for the child. Md. Code, Cts. & Jud. Proc. § 3-823(b)(1). “The permanency plan is intended to ‘set[] the tone for the parties and the court’ by providing ‘the goal toward which [they] are committed to work.’” In re D.M., 250 Md. App. 541, 561 (2021) (quoting In re Damon M., 362 Md. 429, 436 (2001)). Ordinarily, a permanency plan prioritizes reunification with the parent or guardian, but the plan could include, in descending order of priority, placement with a relative for adoption or custody and guardianship, placement with a non-relative for adoption or custody and guardianship, or, for children of a certain age, another planned permanent living arrangement. Cts. & Jud. Proc. § 3-823(e)(1). Once a permanency plan is set, the court must hold periodic review hearings to determine the continued appropriateness of the current permanency plan. Cts. & Jud. Proc. § 3-823(h). “At the review hearing, the court shall . . . [c]hange the permanency plan if a change in the permanency plan would be in the child’s best interest[.]” Cts. & Jud. Proc. § 3- 823(h)(2)(vii).
When determining a permanency plan, or when considering a change to a permanency plan, the court must give primary consideration to the best interest of the child. Cts. & Jud. Proc. § 3-823(e)(1); see also Md. Code, Fam. Law § 5-525(e)(1). In addition, the court must consider the following factors:
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time. Fam. Law § 5-525(f)(1); see also Cts. & Jud. Proc. §
3-823(e)(2).
Ultimately, “the juvenile court judge is given broad statutory authority to act in the best interest of the child.” In re D.M., 250 Md. App. at 566 (citation and quotation marks omitted). “Thus, we will reverse the juvenile court’s order as an abuse of discretion only if we determine the order is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id. (quoting In re Shirley B., 419 Md. 1, 18-19 (2011)).
Against that backdrop, we hold that the juvenile court did not abuse its discretion in changing M.’s permanency plan to include adoption. The court was presented with ample evidence from which to conclude, based on the above statutory factors, that changing M.’s permanency plan was consistent with his best interests. Regarding the first two factors, it was virtually beyond dispute that Mother was unable to provide a safe and healthy home for M., who was afflicted with severe physical and developmental disabilities that would likely persist. Moreover, there was no indication that Mother and M. had any meaningful attachment or emotional ties. M., who was three years old at the time of the exceptions hearing, had never been in Mother’s care for any notable period, and Mother had never provided for M.’s medical or daily care needs.
Regarding the third, fourth, and fifth factors, all of which concern M.’s current placement, there was little question that Mr. B., with whom M. had lived since birth, had done an excellent job caring for M. and had developed a strong bond with M. Thus, were
M. moved from that placement, the potential for some emotional or developmental harm to M. was not insignificant. That said, it was clear that M. was developing bonds with other individuals in his life, including K.E. and B.F., whom Mr. B. himself had identified as a long-term resource and who had been caring for M. a portion of every week. It was reasonable for the Department to consider others, including K.E. and B.F., as potential adoptive sources, particularly given that Mr. B., who was seventy-two years old at the time of the exceptions hearing, was already relying on those sources to care for M., and given that M. needed, and would likely continue to need, intensive and constant care. Moreover, as the Department and M.’s counsel made clear at the exceptions hearing, the Department was actively working to ensure that, whatever M.’s long-term care plan ended up being, the plan would include Mr. B., and the Department would make sure that Mr. B. and M.’s emotional bond would be preserved as much as possible.
The final factor, the potential harm to M. by remaining in State care, also mitigated in favor of the court’s “five way” plan. Because M. had already been in State care for two years at the time of the court’s decision, it was imperative that the court implement a plan that would achieve permanence for M. quickly. See Cts. & Jud. Proc. § 3-823(h)(5) (“Every reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.”). Although it was reasonable for the court to conclude that M.’s best interests would be served by granting custody and guardianship to Mr. B., it was also reasonable for the court to conclude, for the reasons previously discussed, that M.’s interests would best be served if the Department were permitted to investigate other
viable alternatives, including K.E. and B.F. As such, the court exercised sound discretion in changing M.’s permanency plan so that all viable alternatives could be investigated concurrently.
Mother contends that, because Mr. B. was a relative and had proven to be a suitable caretaker, it was against M.’s best interest for the court to include a non-relative as an adoption resource, particularly given the priority the statute gives to family members. Mother argues, therefore, that the court erred in including that option in M.’s permanency plan.
We disagree. To be sure, Mr. B. has clearly been an excellent resource and has developed a strong and meaningful bond with M., and the statutory framework concerning permanency plans does favor placement with a relative over placement with a nonrelative. Nevertheless, those facts do not compel the conclusion that the court abused its discretion in determining that it was in M.’s best interest to have adoption by a non-relative as an option in his permanency plan. As discussed, M. suffered from serious physical and developmental disabilities that likely necessitated care beyond the age of maturity. Mother had never cared for M.,
who was three years old at the time of exceptions hearing, and it did not appear that Mother would be able to care for M. at any point in the foreseeable future. Although Mr. B. was worthy of consideration as a long-term resource, his age and reliance on outside help raised reasonable concerns about his ability to continue to provide the level of care M. required. In fact, Mr. B. was not the only person caring for M.; M. was spending at least two days per week with K.E. and B.F., whom Mr. B. himself had identified as a viable long-term resource. Finally, the court’s “five way” plan did not preclude custody and guardianship with Mr. B. or even reunification with Mother and Father; it merely permitted the Department to explore viable alternatives to those arrangements. Given those circumstances, we cannot say that the court’s decision to include adoption in M.’s permanency plan was “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re D.M., 250 Md. App. at 566 (citations and quotation marks omitted).
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS
FOOTNOTES
1 Father is not a party to the instant appeal.
2 Section 3-801(f) of the Courts and Judicial Proceedings Article of the Maryland Code defines “child in need of assistance” as “a child who requires
court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Montgomery County Circuit Court’s refusal to award attorney’s fees where it was not expressly reserved in the parties’ settlement agreement. Because the circuit court previously reserved the fee issue in two court orders, that superseded the absence of an express reservation in the parties’ settlement agreement.
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..
Faraces requested an order awarding them sole legal and primary physical custody of D.C., as well as an award of reasonable attorneys’ fees and costs incurred in attempting to obtain discovery responses and preparing the motion for sanctions. On September 28, 2020, the court declined to impose the sanctions requested but in its order reserved on the issue of attorneys’ fees.
This appeal arises from an order denying a request for an award of attorney’s fees in litigation between two sets of grandparents over the custody of a minor child. For the reasons to be discussed, we shall affirm in part, reverse in part, and remand for further proceedings.
FACTS AND LEGAL PROCEEDINGS
On March 15, 2020, the parents of a two-year-old child, D.C., died in an automobile accident. On March 20, 2020, D.C.’s maternal grandparents, Melanie Cross and Joseph Cross (collectively, “the Crosses”), the appellees in this matter, filed an action in the Baltimore County Circuit Court, in which they sought an order granting them joint legal custody and shared physical custody of D.C.1 The complaint named the deceased parents as the only adverse parties. The Crosses alleged that they knew “of no other party who have or could claim a superior right of access and/or custody” to D.C. and that there were “no individuals who could object” to the requested relief. On the same date, the court issued an order awarding the Crosses temporary physical and legal custody of D.C.
On April 6, 2020, D.C.’s paternal grandparents, Juliet Farace and Michael Farace (collectively, “the Faraces”), filed a motion to intervene, which the court granted. The Faraces then filed a counterclaim against the Crosses in which they sought primary physical custody and shared legal custody of D.C.
On September 2, 2020, the Faraces filed a motion for a judgment of default on their counterclaim, as a sanction, pursuant to Maryland Rules 2-432 and 2-433, for the Crosses’ failure to respond to requests for discovery. In addition, the
On July 12, 2021, the Faraces filed a second motion for discovery sanctions against the Crosses. They alleged that Melanie Cross had provided “incomplete and improper” answers to interrogatories and had failed to respond to requests for productions of documents, and that Joseph Cross had not responded to discovery at all. The Faraces again requested a judgment of default in their favor on their counterclaim, an order awarding them joint legal custody and primary physical custody of D.C., and an award of attorneys’ fees incurred in an effort to obtain discovery responses and in preparing the second motion for sanctions. They also requested that Ms. Cross be compelled to “fully and completely respond” to the interrogatories served upon her. On September 15, 2021, the Faraces filed a “[r]enewal” of their second motion for sanctions. The court did not rule on the second motion for sanctions or the renewed motion prior to entry of the final judgment.
On April 6, 2022, the Faraces filed a “Motion for Counsel Fees, Costs, and Suit Money” pursuant to § 12-103 of the Family Law Article (“FL”) of the Maryland Code. They alleged that the Crosses had not acted in good faith during the proceedings, and that, as a result, they had incurred substantial attorneys’ fees. The Faraces requested an order of attorneys’ fees in excess of $100,000. The court did not rule on that motion prior to entry of the final judgment. However, it appears that this motion became moot when the court subsequently granted the motion to compel on October 3, 2022, as the grounds for the motion to compel overlapped with the grounds for the second motion for sanctions.
On September 27, 2022, the Faraces filed a “Motion to Compel and/or For Immediate Sanctions[.]” They alleged that the Crosses had failed to respond to requests to correct purported deficiencies in responses to discovery, and that, as a result, their ability to prepare for trial was significantly hampered. They requested an order compelling the Crosses to correct the deficiencies as well as an award of attorneys’ fees pursuant to Maryland Rule 2-433(a)(3).
On October 3, 2022, the court granted the motion to compel. In addition to ordering the Crosses to provide comprehensive responses to discovery, the court awarded attorneys’ fees in an amount to be determined:
[The Crosses] shall pay [the Faraces’] reasonable expenses resulting from the filing of [the motion to compel], including attorney’s fees, as a result of their failure to provide comprehensive [a]nswers to [i]nterrogatories or responses to the [request for production of documents], counsel for [the Faraces] to submit a separate [m]otion outlining said fees for consideration by the [c]ourt.
The Crosses later filed a motion to vacate the award of attorneys’ fees on grounds that the motion to compel was filed after the close of discovery and without good faith efforts to resolve the dispute. That motion was denied.
On November 9, 2022, the Faraces filed a third motion for sanctions. They alleged that the Crosses violated the order of October 3, 2022, by “again provid[ing] insufficient responses” to discovery. The Faraces claimed that, as a result of the Crosses lack of compliance with the court’s order and refusal to respond to discovery, they had incurred attorneys’ fees of approximately $27,198.00. The motion was supported by itemized bills for legal services from March of 2020 to October of 2022. The court denied the Faraces’ third motion for sanctions.
On August 16, 2023, a week before the trial date of August 22, 2023, counsel for the Faraces wrote a letter to the court: At this time, the parties are making final edits to a Custody Agreement which we anticipate will resolve issues related to the minor child. However, the [Faraces] are still pursuing attorney fees in this matter and I’m unsure if this will be heard next week. In addition, in conjunction with the attorney fees are two motions that have not been ruled on. In particular, a Motion for Counsel Fees, Costs and Suit Money and Request for Hearing which was filed on April 6, 2022 as well as a Motion for Protective Order filed on or about November 23, 2022 on behalf of the [Crosses].[2] These motions, I believe, do have a significant bearing on attorney fees in this matter. The purpose of this correspondence is to request a brief conference call or [Z]oom meeting with your Honor to address these pending issues prior to next week. The court held a teleconference with the parties on August 16, 2023. On August 17, 2023, the court sent a follow-up letter to the parties:
As a follow-up to our teleconferences on August 16, 2023, you have advised me of issues regarding the open claim for attorney’s fees by the Faraces. As I explained, the [c]ourt had previously been advised of a global settlement of this matter. As a consequence, the trial set to begin on August 22 had been removed from the [c]ourt’s docket. * * *
I have reached out to [the mediator] . . . to ascertain her availability to schedule another mediation session in the hope of resolving this remaining issue. Absent that, the [c] ourt will have to make a decision regarding the rescheduling of this matter either for a fully contested trial or motions proceeding.
As I advised you in our teleconference, please be cognizant of the fact that the [c]ourt has discretion regarding an award of attorney’s fees in a family law matter. Counsel should have serious discussions with their clients as to whether they wish to put the entire resolution of this very important matter at risk.
On August 31, 2023, the parties signed the custody agreement. The agreement made no mention of attorney’s fees. On September 15, 2023, counsel for the Faraces wrote to the court to advise that the parties had executed a custody agreement but “remain[ed] at an impasse as to the language proposed in a [c]onsent [o]rder regarding the reservation of attorney’s fees.” Counsel asked the court if the mediator was available for another mediation session.
On September 21, 2023, the court responded: I have had the opportunity to discuss this matter with [the mediator] and review the transcript of the settlement of the matter, which was placed on the record . . . at the mediation, a copy of which is attached hereto. Based on [the mediator’s] recollection and the transcript, we are both satisfied that the matter was concluded in its entirety during the mediation. As such, the [c]ourt will decline to hear the parties on the issue of attorney’s fees, as that issue is not reserved and, therefore, all parties will be responsible for their own fees.[3]
On November 15, 2023, the Faraces filed a motion requesting an award of costs and fees in the amount of $24,692.00 which, they alleged, were incurred in litigating the motion to compel that the court had granted on October 3, 2022. The Faraces reminded the court that it directed them to submit a separate motion outlining the fees claimed, for the court to consider. Attached to the motion for costs and fees were itemized billing statements for services provided from March of 2020 to October of 2022.
On November 21, 2023, the court entered an order which incorporated the parties’ custody agreement. The parties were awarded shared physical custody of D.C., as detailed in the agreement; and joint legal custody, with tie-breaking authority to a designated third- party. Ms. Farace was named as the guardian of D.C.’s property.4 The order further provided, without further explanation, that the claims for attorneys’ fees were denied. The Faraces noted this timely appeal.
QUESTIONS PRESENTED
Rather than make a frontal attack on the circuit court’s ruling, the Questions Presented portion of the Faraces’ brief presents three procedural questions for review:
I. Did the [c]ircuit [court] err in denying the Faraces’ request for attorneys’ fees on the basis of his ex parte communications with the mediator and independent investigation of adjudicative facts, without conducting an evidentiary hearing or providing the Faraces[] with an opportunity to respond?
II. Did the [c]ircuit [court] err in relying on the unverified transcript of the parties’ oral mediation agreement and in finding that it supported his finding of waiver without the need for any additional evidentiary support?
III. In the event of a remand, should the [trial judge] be disqualified from hearing any further proceedings on attorneys’ fees as a result of the personal knowledge obtained from his ex parte communications and independent investigation of adjudicative facts?
Although we will later speak to these issues, probing inquiries
from the Court at oral argument, coupled with statements in the briefs of the parties and the circuit court’s September 21, 2023 ruling, have led us to consider three more questions to appropriately resolve this appeal5:
1) If the Faraces are neither parents nor de facto parents, can they claim attorneys’ fees under FL § 12-103?6
2) Is a request for an award of attorneys’ fees as a sanction for failure to comply with discovery rules waived where the parties subsequently enter into a settlement agreement that contains no express reservation or waiver of such a claim?
3) Alternatively, if an interlocutory court order reserves a ruling on entitlement to a fee award requested as a sanction for a violation of discovery, or grants a request for fees but reserves on the amount to be awarded, do these reservations survive a subsequent settlement agreement that contains no express reservation of a claim for fees?
We answer no to question one, yes to question three and find it unnecessary to resolve question two. As to the Faraces’ “Questions Presented” issues, they are essentially moot.
STANDARD OF REVIEW
“Maryland generally adheres to the common law, or American rule, that each party to a case is responsible for the fees of its own attorneys, regardless of the outcome.” Friolo v. Frankel, 403 Md. 443, 456 (2008). “Under the American system, courts can award attorneys’ fees only if authorized by contract, statute, or rule.” Bessette v. Weitz, 148 Md. App. 215, 236 (2002).
A ruling on a request for attorneys’ fees “will not be reversed unless a court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Collins v. Collins, 144 Md. App. 395, 447 (2002) (quoting Petrini v. Petrini, 336 Md. 453, 468 (1994)). “[A]n exercise of discretion based upon an error of law is an abuse of discretion.” Brockington v. Grimstead, 176 Md. App. 327, 359 (2007), aff’d, 417 Md. 332 (2010). Abuse of discretion is also said to occur when a ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result[.]” North v. North, 102 Md. App. 1, 13 (1994) (quotation marks and citation omitted).
DISCUSSION
1. The Faraces are not authorized to receive the substantial attorneys’ fee award claimed under FL § 12103.
Before we discuss the Faraces’ procedural questions, this Court must necessarily examine underlying issues of law. The first question is the very power of the circuit court under the circumstances of this case to award attorneys’ fees under the Family Law Article.
Section 12-103(a)(1) of the Family Law Article provides for an award of counsel fees in any case in which a person applies for an order concerning custody “of a child of the parties[.]” (Emphasis added.) A plain reading of the statute would suggest that a grandparent would not ordinarily be a “parent” entitled to this remedy. In response to questioning during oral argument regarding the application of that statute to a custody dispute between third parties, the Faraces filed a notice of supplemental citation to David A. v. Karen S., 242 Md. App. 1, 26-28 (2019),
which they offer as authority for the proposition that a grandparent may be awarded fees pursuant to FL § 12-103.7 In that case, however, the grandparent was eligible to recover attorney’s fees and costs under FL § 12-103 only because of her status as a de facto parent of the child. Id. at 28. To establish status as a de facto parent, the proponent must show:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
E.N. v. T.R., 474 Md. 346, 352 (2021) (quoting Conover v. Conover, 450 Md. 51, 74 (2016)).
Neither Ms. Farace nor Mr. Farace claim to be a de facto parent of D.C., however, and the record on appeal does not support such a conclusion.8 Accordingly, we hold that the court did not abuse its discretion in denying the Faraces’ motion for costs and attorneys’ fees filed pursuant to FL § 12-103. See City of Frederick v. Pickett, 392 Md. 411, 424 (2006) (“[C]onsiderations of judicial economy justify the policy of upholding a trial court decision which was correct although on a different ground than relied upon.” (quoting Robeson v. State, 285 Md. 498, 502 (1979))).9
2. Express reservation by the court on an issue regarding an award of fees as a sanction for discovery violations supersedes any effect of the absence of an express reservation of a claim for fees in the parties’ settlement agreement.
Given our conclusion with respect to fees sought under the Family Law Article, we turn next to the remaining claims for attorneys’ fees as a sanction for discovery violations pursuant to the Maryland Rules. The question of whether such a claim is waived if not expressly reserved in the parties’ settlement agreement was touched upon in the circuit court’s ruling, the briefs of the parties, and, more extensively, at oral argument.
The legal effect of the absence, in a settlement agreement, of an express reservation of the right to attorneys’ fees is a question that has divided courts around the country. Some conclude that, in the absence of an express reservation, the issue of attorneys’ fees must be deemed to have been waived and subsumed in the negotiated agreement. Ramires v. AGDG Car Wash Corp., 210 N.Y.S.3d 498, 500 (N.Y. App. Div. 2024). A greater number of courts appear to regard the lack of an express reservation of fees as not fatal to a subsequent fee award. See, e.g., Ritzenthaler v. Fireside Thrift Co., 113 Cal. Rptr. 2d 579 (Cal. Ct. App. 2001); Warrington v. Vill. Supermarket, Inc., 746 A.2d 61 (N.J. Super. Ct. App. Div. 2000); Keister v. Keister, 458 So. 2d 32 (Fla. Dist. Ct. App. 1984).
The lone Maryland case that touches on these issues is
Pinnacle Group, LLC v. Kelly, 235 Md. App. 436 (2018). There, the Court held that language in the settlement agreement that provided for a general waiver of all claims did not preclude a claim for attorneys’ fees where the agreement also contained an unambiguous provision stating that the right to petition for an award of costs and fees was not waived. Id. at 457-48. Obviously, this decision does not resolve the issue before us. Although it would eliminate any factual dispute, rather than enter uncharted waters on this legal issue, we believe the better course is to focus on the two orders at issue – orders that appear to expressly reserve the possibility of a fee award.
In our view, reservation of a fee issue in a court order must necessarily supersede the absence of an express reservation of the right to seek fees in the parties’ settlement agreement. In this case, the reservation in the September 28, 2020 order only promises a determination by the court as to whether any fee should be awarded. The October 3, 2022 order contemplates a determination of the amount of the fee to be awarded. In our opinion, the case must be remanded for the circuit court to address the issues contemplated by these “judicial reservations.”
3. The procedural issues raised by the Faraces are moot.
Even if the Faraces were correct in their procedural challenges, viz., the alleged ex parte communication, independent investigation by the court without an evidentiary hearing, and the reliance on the unverified transcript of the
mediation proceeding, it would not permit a fee claim by nonparents under the Family Law Article. As to the two fee claims for asserted discovery violations, the Faraces are getting what they asked for – a right to be heard on whether they are entitled to a fee on one claim and a determination of the amount of the award under the other. In other words, the procedural issues presented in the Questions Presented are essentially moot.
The Faraces also assert that, in the event of a remand, the circuit court judge should be disqualified because he had personal knowledge of the facts that will be in dispute in a subsequent proceeding and could have his impartiality questioned. It appears that the Faraces’ contentions are aimed at the “waiver” of fees. However, as a factual matter, that issue is no longer in this case. Moreover, the Faraces have made no showing that would rebut the circuit court judge’s impartiality.
For all of these reasons, we will affirm the circuit court’s denial of attorneys’ fees claimed under the Family Law Article. To the extent the circuit court denied a fee claim that was the subject of the order of October 3, 2022 and declined to address the fee issue that was the subject of the September 28, 2020 order, those rulings are reversed and remanded for further proceedings consistent with this opinion. Finally, we reject the Faraces’ contention that the circuit court judge should be disqualified from resolving the fee issues remaining on remand.10
MOTION TO STRIKE APPENDIX TO APPELLEES’ BRIEF DENIED.
ORDER DENYING APPELLANTS’ CLAIM FOR ATTORNEYS’ FEES AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THE CIRCUIT COURT FOR HARFORD COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. PARTIES TO PAY THEIR OWN COSTS.
FOOTNOTES
1 The action was styled as a “Complaint for Establishment of Custody.”
2 Contrary to counsel’s statement that the court had not ruled on the Crosses’ motion for protective order, the record reflects that the court granted that motion on December 6, 2022.
3 The transcript made no mention of a “global” settlement or of attorneys’ fees.
4 On February 3, 2022, Ms. Farace filed a separate action, in which she sought an order of guardianship as to D.C.’s property. On February 13, 2024, an order was entered in that case, appointing Ms. Farace as the permanent guardian of D.C.’s property.
5 Because these controlling issues are questions of law for the most part, they eliminate any difficulties created by the Faraces’ factual challenges to the circuit court decision.
6 After oral argument, both counsel filed supplemental authorities on the question. Even if they had not, because the issue affects the power of a court to award fees in the absence of legal authority, as well
as the standing of the Faraces to seek fees under the statute, we may raise the question sua sponte.
7 The Faraces’ notice of supplemental citation includes citations to two other cases, neither of which is relevant to the issue of their standing to assert a claim for attorneys’ fees pursuant to FL § 12-103 or of the court’s power to award such fees in a case like this one.
8 According to pleadings filed by the Faraces, D.C. did not live with them, and their involvement in his life consisted of “regular visitation, vacations, and some overnights[.]”
9 It matters not whether the failure of the Faraces to satisfy the language of FL § 12-103 is viewed as their lack of standing or the court’s inability to grant such relief. The result would be the same.
10 The Faraces filed a motion to strike an appendix to appellees’ brief because the email and letter were not included in the record. The documents are clearly relevant to the issues as framed by the appellants’ brief and help show that the circuit court judge did not act arbitrarily. The motion is denied.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 60 (2024)
Contempt;
bad faith;
clearly erroneous Kasimier Jarosz v. Donnamarie Jarosz
The Appellate Court affirmed the Anne Arundel County Circuit Court’s finding that husband’s petition for contempt, based upon wife moving to dissolve their jointly-owned company, was filed in bad faith and without a substantial basis.
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..
2017. Pursuant to the parties’ property settlement agreement, which was incorporated into the Judgment of Absolute Divorce, the parties became equal shareholders of a government contracting business (“the Company”) that they created during the marriage.
Donnamarie Jarosz, appellee, filed a motion for sanctions in the Circuit Court for Anne Arundel County against her exhusband, Kasimier Jarosz, appellant, seeking an award of attorney’s fees and costs that she incurred in defending a petition for contempt that he filed. The court granted the motion, finding that the petition was filed in bad faith and without substantial justification. It ordered Mr. Jarosz to pay Ms. Jarosz the sum of $9,733.50.
On appeal, Mr. Jarosz presents three questions for this Court’s review,1 which we have consolidated and rephrased into the following two questions:
1. Did the circuit court err in finding that Mr. Jarosz’s petition for contempt was filed in bad faith and without substantial justification?
2. Did the circuit court abuse its discretion in awarding fees and costs to Ms. Jarosz?
Ms. Jarosz has moved to dismiss the appeal as moot, based on events that occurred after the appeal was filed. Specifically, she filed a notice of satisfaction in the circuit court, in which she stated that she was “deeming payment of zero dollars ($0.00) as full satisfaction” of the judgment.
For the reasons set forth below, we shall deny the motion to dismiss, affirm the portion of the judgment finding that the petition was filed in bad faith and without substantial justification, and vacate as moot the portion of the judgment awarding sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Divorce, Contempt Petitions, and Motion for Sanctions
The parties were married in 1990. They divorced in February
In March 2022, the parties filed petitions for contempt against one another, alleging violations of the terms of the property settlement agreement related to the Company. On September 13, 2022, the court issued a consent order, dismissing with prejudice the parties’ respective petitions for contempt. The order provided that, because substantially all of the Company’s contracts were terminated and there were no longer sufficient assets to sell the Company, “the parties shall promptly and reasonably cooperate in a voluntary dissolution and winding up of [the Company] in accordance with Virginia corporate law.” The court ordered that the documents necessary to initiate a voluntary dissolution of the Company were to be filed within 30 days of the court’s order, i.e., October 13, 2022.
The parties disagreed on the terms for the voluntary dissolution.
On October 13, 2022, the deadline for filing for voluntary dissolution, Ms. Jarosz filed, in the Circuit Court for Fairfax County, Virginia, a Shareholder Petition for Judicial Dissolution. She alleged that the Company’s two directors were “deadlocked on voluntary dissolution” and were “unlikely to be able to break the deadlock without judicial intervention.” On October 15, 2022, Mr. Jarosz was served with a summons and complaint in a separate federal civil action filed by Ms. Jarosz on October 11, 2022, alleging dereliction of duty, corporate waste, and selfdealing. On October 17, 2022, counsel for Ms. Jarosz emailed counsel for Mr. Jarosz asking whether he would accept service of a Virginia petition for shareholder dissolution.
On October 18, 2022, Mr. Jarosz filed a petition for contempt against Ms. Jarosz, alleging that she was in violation of the provision in the consent order that required the parties to “reasonably cooperate” in the voluntary dissolution process. He alleged that she refused to reasonably cooperate in the voluntary dissolution by disingenuously advising that she would not join in the authorization and filing of the Articles of Dissolution absent the inclusion of unnecessary and superfluous commitments by the Defendant to, among other things, personally relinquish his security clearance and to agree to the preservation of the parties’ claims or causes of action against each other in respect to [the Company] (thus attempting to “end around” their settlement of and express dismissals with prejudice of numerous such causes of action against each other in the
Consent Order entered only weeks before).
A hearing was scheduled for March 30, 2023. On March 29, 2023, the parties filed a stipulation to dismiss with prejudice the October 18, 2022 contempt petition.
On April 18, 2023, Ms. Jarosz filed a motion for sanctions, pursuant to Maryland Rule 1-341, alleging that the petition for contempt had been filed and prosecuted in bad faith.2 She requested an award of $57,461.45 in attorney’s fees and costs that she incurred in responding to the petition for contempt and preparing for the hearing. Ms. Jarosz attached two verified declarations to her motion, each with numerous supporting exhibits, including various email communications showing that Mr. Jarosz acquiesced in the filing of a petition for judicial dissolution and agreed that judicial dissolution was consistent with the September 2022 consent order.
On May 4, 2023, Mr. Jarosz filed a response to the motion for costs and fees, attaching an affidavit of Mr. Jarosz’s corporate attorney, as well as several additional exhibits. He alleged that Ms. Jarosz waived her right to move for sanctions because she first requested sanctions in her answer to the contempt petition, but then she stipulated to a dismissal. He contended that he filed his contempt petition with substantial justification because Ms. Jarosz “brazenly refused to cooperate in the voluntary dissolution . . . leaving a judicial dissolution as the only option for winding up the business.” Mr. Jarosz also challenged the amount of the attorney’s fees that Ms. Jarosz requested as “beyond overreaching.”
On May 19, 2023, the Circuit Court for the County of Fairfax, Virginia, issued an order for judicial dissolution of the Company. It appointed a receiver to wind up and liquidate the Company’s business and affairs.
II.
Hearing on Rule 1-341 Motion
On June 23, 2023, the circuit court held a hearing on Ms. Jarosz’s motion for sanctions. Ms. Jarosz’s attorney argued that Mr. Jarosz’s contempt petition was pursued without substantial justification because he “knew the premise of the contempt petition was false and he encouraged the very conduct that he then turned around and challenged.” He contended that the petition also was filed in bad faith “to extract benefits in separate litigation pending in Virginia.” He pointed to an October 12, 2022 email from Mr. Jarosz’s counsel stating that the Board should file for judicial dissolution of the Company, noting that Ms. Jarosz filed the petition only after Mr. Jarosz expressly endorsed the course of action. Counsel argued that Mr. Jarosz had unclean hands, pointing to additional emails attached to his declaration that showed that Mr. Jarosz had agreed that judicial dissolution was the “appropriate way to implement” the consent order directing the parties to dissolve the Company because the parties were deadlocked on the terms and conditions of voluntary dissolution.
Counsel for Ms. Jarosz argued that suing for contempt and seeking incarceration after agreeing to judicial dissolution was “downright abusive,” and the petition was filed in an attempt to obtain concessions from Ms. Jarosz with regard to the Virginia petition for judicial dissolution. Counsel explained that, although the parties agreed to seek voluntary dissolution in the
September 2022 consent order, they did not agree to waive their rights to impose conditions on the voluntary dissolution under Virginia law. Because the parties disagreed on the appropriate conditions, there was a deadlock and “[b]oth sides agreed that judicial dissolution was appropriate and that’s what w[as] pursued.”
Counsel asserted that the timing of certain events after Ms. Jarosz petitioned for judicial dissolution evidenced Mr. Jarosz’s bad faith. Specifically, Mr. Jarosz filed his contempt petition just a few days after being served in a separate damages case filed by Ms. Jarosz and one day after counsel requested that he accept service in the judicial dissolution action. Counsel concluded by stating that Mr. Jarosz had endorsed judicial dissolution multiple times since the September 2022 consent order.
Counsel for Mr. Jarosz argued that Ms. Jarosz did not have any evidence to prove that Mr. Jarosz acted without substantial justification or in bad faith, noting that neither Mr. Jarosz nor his corporate attorney were there to offer testimony. He asserted that “you can’t win a case on affidavits.” He also argued that, in stipulating to dismiss the petition for contempt, Ms. Jarosz did not reserve the right to pursue the Rule 1-341 sanctions she requested in her answer.
Counsel argued that the September 2022 consent order did not provide for the parties to add terms and conditions to an agreement for voluntary dissolution, and Ms. Jarosz did not reasonably cooperate in the dissolution process. Rather, counsel for Ms. Jarosz “created the deadlock” to force judicial dissolution, and Mr. Jarosz did not waive contempt by agreeing to judicial dissolution.
In rebuttal, counsel for Ms. Jarosz noted the court was holding a motions hearing, not a trial, and he stated that verified affidavits, with attached documents, were proper evidence. The hearing concluded with a discussion of the reasonableness of the requested attorney’s fees.3
III.
Court’s Ruling and Entry of Judgment
On July 18, 2023, the court issued a memorandum opinion. It noted that Mr. Jarosz alleged in the petition for contempt that Ms. Jarosz contravened the consent order “by filing for judicial, rather than voluntary, dissolution” of the company, and Ms. Jarosz argued that Mr. Jarosz supported and encouraged judicial dissolution, agreeing that it would comply with the consent order. The court found that Mr. Jarosz “did encourage [Ms. Jarosz] to petition for judicial dissolution, consistent with the terms of the Consent Order from September 9, 2022,” and it found that Mr. Jarosz’s petition for contempt “was filed in bad faith and without substantial justification.” The court awarded attorney’s fees to Ms. Jarosz, albeit in a reduced amount of $9,733.50. The court issued a separate order that day, ordering that Mr. Jarosz pay Ms. Jarosz $9,733.50 within 60 days, or that amount would be entered as a judgment against him.
IV.
Appeal and Post-Appeal Events
On August 17, 2023, appellant noted this appeal.
On September 20, 2023, Ms. Jarosz filed a Request for Entry of Judgment, stating that Mr. Jarosz had failed to pay the
amount ordered by the court, and he had not filed a motion to stay the order pending appeal. On October 6, 2023, the court granted the unopposed request and entered a judgment against appellant. On October 10, 2023, appellant filed a motion to stay enforcement of the judgment, which the court granted.
Ms. Jarosz states in her brief that, subsequent to the entry of judgment, she offered to forgive any payment obligation and mark the judgment satisfied to end the litigation and its attendant cost to defend the appeal. Mr. Jarosz, however, “declined that offer.” She then filed a Notice of Satisfaction of Judgment, advising the court that, although Mr. Jarosz had not paid any money, she was “deeming payment of zero dollars ($0.00) as full satisfaction of the October 6 judgment and excusing any further obligation thereunder by [Mr. Jarosz].” On January 12, 2024, the court issued a notice certifying that the judgment was satisfied. Ms. Jarosz asserts that she forgave the debt in an effort “to spare her depleted coffers the cost of this appeal,” and she argues that, because Mr. Jarosz no longer owes any money, there is no longer any controversy between the parties, the case is moot, and we should dismiss the appeal.
DISCUSSION
Before addressing Mr. Jarosz’s contentions that the circuit court erred in finding that he filed the contempt petition in bad faith and without substantial justification and ordering that he pay Ms. Jarosz $9,733.50 in attorney’s fees, we must address two preliminary issues. First, we address whether there is an appealable order before us. Second, we address whether events that occurred after the appeal was noted have rendered this appeal moot.
I. Appealable Order
The Court of Appeals “has often stated that, except as constitutionally authorized, appellate jurisdiction ‘is determined entirely by statute,’” and “‘therefore, a right of appeal must be legislatively granted.’” Gruber v. Gruber, 369 Md. 540, 546 (2002) (quoting Kant v. Montgomery Cnty., 365 Md. 269, 273 (2001)); Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997), cert. denied, 522 U.S. 1053 (1998). Subject to limited exceptions, a party may appeal only “from a final judgment entered in a civil or criminal case by a circuit court.” Md. Code Ann., Cts. & Jud. Proc. (“CJ”) § 12-301 (2020 Repl. Vol.).
The appeal here is from the July 18, 2023 order, which was entered as a judgment on July 19, 2023 (“the July 2023 order”), requiring Mr. Jarosz to pay Ms. Jarosz $9,733.50. The parties characterize this appeal as a statutorily-permitted interlocutory appeal from an order for the payment of money. See CJ § 12303(3)(v) (Supp. 2024). If that were the case, the order would not be appealable because an interlocutory award of counsel fees imposed as a sanction under Maryland Rule 1–341 (formerly Rule 604 b) is not immediately appealable pursuant to CJ § 12303(3)(v) as an order “for the payment of money.” Simmons v. Perkins, 302 Md. 232, 232-36 (1985).
The order is appealable, however, as a final judgment. It resolved the remaining open claim in the case. See FutureCare NorthPoint, LLC v. Peeler, 229 Md. App. 108, 119 (2016) (an
order is a final judgment if (1) it is “intended by the court as an unqualified, final disposition of the matter in controversy,” (2) it “adjudicate[s] or complete[s] the adjudication of all claims against all parties,” (3) it is “set forth and recorded in accordance with Rule 2–601[,]” and (4) it is “set forth on a separate document signed by the judge or clerk”).
The parties appear to believe that the final judgment in this case was the October 6, 2023 order, which entered judgment against Mr. Jarosz. We disagree. Pursuant to Maryland Rule 2-648(a), the circuit court may enforce a judgment by entering a money judgment “[w]hen a person fails to comply with a judgment mandating the payment of money, the court may also enter a money judgment to the extent of any amount due.”
Here, the language in the court’s July 2023 order, stating that the amount awarded would be “entered as a judgment” if not paid, did not take away from the finality of the July order, but rather, it provided that, if Mr. Jarosz did not pay the money awarded, the court would enforce the obligation to pay (pursuant to Rule 2-648) by entering a money judgment against Mr. Jarosz. In other words, the court, via its order, issued an enforceable judgment on the merits of the attorney’s fees issue. At that point, if Mr. Jarosz did not pay the money, the court, upon request, would enforce the judgment by imposition of a money judgment.
The Alabama Court of Civil Appeals addressed a similar issue in Ex parte State Department of Human Resources, 47 So. 3d 823, 828 (Ala. Civ. App. 2010). In that case, a juvenile court issued an August 2009 judgment that the State Department of Human Resources (“DHR”) pay $9,902 to a litigant within 30 days. Id. The appellate court held that the order was to pay an enforceable judgment, even though it provided that, if DHR failed to pay as directed, “then said sum [would] be reduced to a judgment . . . from which execution may lie.” Id. at 827-28. The appellate court concluded that “the juvenile court intended that DHR’s failure to comply would result in [a] further enforcement action,” but that did “not render the August 2009 judgment nonfinal.” Id. at 828.
Similarly, here, the circuit court’s July order awarding sanctions constituted a final judgment. The provision regarding enforcement of that judgment as a money judgment did not affect the finality of the judgment. Accordingly, the appeal here was from a final judgment.
II.
Mootness
We next address Ms. Jarosz’s contention that we should dismiss this appeal as moot due to events that occurred after the appeal was filed. She argues that, because the judgment had been deemed satisfied with no payment and Mr. Jarosz no longer owes any money, there is no longer any controversy between the parties, the case is moot, and we should dismiss the appeal.
Mr. Jarosz disagrees that the appeal is moot. He contends that Ms. Jarosz’s “gratis entry of a satisfaction of judgment” does not preclude an appeal of the court’s underlying reasoning for the sanctions order, and the validity of the court’s “bad faith” finding is still an existing controversy. He asserts that, although he declined to end the litigation by marking the judgment
satisfied, he proposed to resolve the appeal by filing a joint stipulation to vacate the July 2023 order imposing sanctions and finding bad faith. He contends that Ms. Jarosz’s solution was an attempt to preserve the court’s finding of bad faith.
“A case is moot when there is no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.”
Sutton v. FedFirst Fin. Corp., 226 Md. App. 46, 68 (2015) (quoting Prince George’s Cnty. v. Columcille Bldg. Corp., 219 Md. App. 19, 26 (2014)), cert. denied, 446 Md. 293 (2016). “This Court does not give advisory opinions; thus, we generally dismiss moot actions without a decision on the merits.” Id. (quoting Green v. Nassif, 401 Md. 649, 655 (2007)).
There are several situations, however, where an issue that may appear to be moot need not be dismissed under the mootness doctrine. For example, “mootness will not preclude appellate review in situations where a party can demonstrate that collateral consequences flow from the lower court’s disposition.” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 352 (2019). Additionally, there are exceptions to the mootness doctrine where a situation is capable of repetition yet evading review or is an issue of public concern. Id. Accord Trusted Sci. & Tech., Inc. v. Evancich, 262 Md. App. 621, 64143, cert. denied, 489 Md. 253 (2024). With respect to the public concern exception, “we must be persuaded that there exists an ‘urgency of establishing a rule of future conduct in matters of important public concern’ which ‘is both imperative and manifest.’” Green, 401 Md. at 656 (quoting Hagerstown Reprod. Health Servs. v. Fritz, 295 Md. 268, 272 (1983)).
The situation relevant here that weighs against dismissal under the mootness doctrine is the potential for collateral consequences from the sanction order. In D.L., the Supreme Court of Maryland held that D.L. faced collateral consequences from her involuntary admission to a psychiatric facility, and therefore, her appeal was not moot, even though she had already been released from the facility. 465 Md. at 381. In Droney v. Droney, 102 Md. App. 672, 682 (1995), this Court explained that, even if the consequences of a contempt order cannot be remedied, the defendant is entitled to seek exoneration by having the contempt finding set aside.
Here, the monetary sanction has been eliminated, but the question is whether there are collateral consequences from the court’s order. Specifically, the question is whether the court’s determination that Mr. Jarosz acted in bad faith and without substantial justification precludes dismissal under the mootness doctrine. We conclude that it does.
In Fleming & Associates v. Newby & Tittle, 529 F.3d 631, 635 (5th Cir. 2008), the court addressed, as we do, “an award of attorneys’ fees that, regardless of our decision, will never be paid.” In that case, the trial court issued an order sanctioning plaintiff’s counsel. Id. at 636. The parties subsequently settled their dispute, and the plaintiffs moved to dismiss all claims, stating that all parties would bear their own costs for attorney’s fees. Id. Despite an agreement among the parties not to collect sanctions after the settlement, the court imposed $15,214.45 in attorney’s fees. Id. On appeal, plaintiffs argued, among other things, that the settlement made any appeal of the sanctions moot. Id. at 637.
The court first noted that, if an appeal is rendered moot by circumstances outside the person’s control, the court typically vacates the judgment under equitable principles. Id. at 638. Accord Bd. of Supervisors of Fairfax Cnty. v. Ratcliff, 842 S.E.2d 377, 379 (Va. 2020) (holding that “[w]hen a prevailing party voluntarily and unilaterally moots a case, preventing an appellant from obtaining appellate review, vacatur of lower court judgments is generally appropriate.”). See also Camreta v. Greene, 563 U.S. 692, 712 (2011) (alterations in original) (“The equitable remedy of vacatur ensures that ‘those who have been prevented from obtaining the review to which they are entitled [are] not . . . treated as if there had been a review.’”) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)); Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 75 (1997) (stating agreement with the proposition that “[i]t would certainly be a strange doctrine that would permit a [party] to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment”). The court vacated the award of attorney’s fees as moot. Fleming & Assocs., 529 F.3d at 640. It declined to vacate the entire order, however, noting that there were two components to the court’s order: (1) a finding of sanctionable conduct; and (2) a compensatory award. Id. at 639-40. Although the settlement mooted the appeal of the compensatory sanctions, the court held that the nonmonetary portion of the sanctions was appealable because there were “residual reputational effects on the attorney.” Id. at 640.
Other jurisdictions similarly “have considered reputational harm to be a cognizable injury when determining whether the appeal of a sanctions order is justiciable.” Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 133 (3d Cir. 2009) (rejecting argument that appeal of sanctions was moot based on settlement of case). Accord Martinez v. City of Chicago, 823 F.3d 1050, 1053 (7th Cir. 2016) (prosecutor could appeal nonmonetary sanction even though office had paid the monetary sanction because finding of misconduct could impact attorney’s professional standing).
We agree with the reasoning in those cases. In the circumstances here, where the court awarded monetary sanctions based on a finding of bad faith, Ms. Jarosz cannot unilaterally moot Mr. Jarosz’s appeal by agreeing to forgive any payment obligation, where the bad faith finding remains. Accordingly, we address the merits of the appeal as it pertains to the finding that the petition for contempt was filed in bad faith and without substantial justification.
III.
Merits of Sanction Order A.
Parties Contentions
Mr. Jarosz contends that the court erred in finding, as part of its analysis under Maryland Rule 1-341, that he filed his petition for contempt in bad faith and without substantial justification. He asserts that there was “no ‘competent material evidence’” to support the court’s finding, stating that the court improperly relied on pleadings and counsel’s argument without receiving substantive evidence. He argues that, even assuming evidence had been proffered, the facts were insufficient to support the court’s findings. He asserts that there was substantial
justification to file the contempt petition because Ms. Jarosz failed to reasonably cooperate in the voluntary dissolution of the Company in accordance with the September 2022 consent order.
Ms. Jarosz contends that the record contains substantial evidence supporting the court’s finding that Mr. Jarosz filed his contempt petition in bad faith or without substantial evidence. She asserts that Mr. Jarosz did not challenge the authenticity of the documents verified by affidavit and attached to her motion for sanctions, and these documents show that Mr. Jarosz actually encouraged her to file for judicial dissolution.
After encouraging that action because the parties were at an impasse in their negotiations for voluntary dissolution, Mr. Jarosz filed a contempt petition premised on a completely contrary position, and therefore, Mr. Jarosz acted in bad faith. Ms. Jarosz asserts that the court was “within its sound discretion to sanction Mr. Jarosz” because his conduct was vexatious and wasteful of the court’s time and resources.
B.
Applicable Law
We begin by discussing the relevant law on sanctions. Md. Rule 1-341(a) provides:
Remedial authority of court. — 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 the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it.
Bad faith “exists when a party litigates with the purpose of intentional harassment or unreasonably delay.” Toliver v. Waicker, 210 Md. App. 52, 71 (quoting Barnes v. Rosenthal Toyota, Inc., 126 Md. App. 97, 105 (1999)), cert. denied, 432 Md. 213 (2013).
“In analyzing whether an attorney lacked substantial justification to file a claim, the issue is ‘whether [the attorney] had a reasonable basis for believing that the claims would generate an issue of fact.’” Id. (alteration in original) (quoting RTKL Assocs. Inc. v. Baltimore Cnty., 147 Md. App. 647, 658 (2002)). Before awarding sanctions under Rule 1-341, the circuit court “must make two separate findings that are subject to scrutiny under two related standards of appellate review.” Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 267 (1991). Accord Garcia v. Foulger Pratt Dev., Inc., 155 Md. App. 634, 67677 (2003); Barnes, 126 Md. App. at 104-05. The court first “must make an evidentiary finding of ‘bad faith’ or ‘lack of substantial justification.’” Talley v. Talley, 317 Md. 428, 436 (1989) (quoting Legal Aid v. Bishop’s Garth, 75 Md. App. 214, 220 (1988)). This determination is reviewed under a clearly erroneous standard. Toliver, 210 Md. App. at 71. Second, “if a court finds a claim was pursued in bad faith or without substantial justification, it then has to determine whether to award sanctions.” Garcia, 155 Md. App. at 677. This determination is reviewed for an abuse of discretion. Id.
As indicated, we are concerned in this appeal only with the
first step. In that first step, the court must make “an explicit finding that a claim or defense was ‘in bad faith or without substantial justification.’” Zdravkovich v. Bell Atl.-Tricon Leasing, Corp., 323 Md. 200, 210 (1991) (quoting Md. Rule 1-341). Accord URS Corp. v. Fort Myer Constr. Corp., 452 Md. 48, 72 (2017); Talley, 317 Md. at 436; Garcia, 155 Md. App. at 676. The record must reflect “the basis for those findings.” Zdravkovich, 323 Md. at 210. As the Supreme Court of Maryland has explained, “‘some brief exposition of the facts upon which the finding is based and an articulation of the particular finding involved are necessary for subsequent review.’” Id. (quoting Talley, 317 Md. at 436).
Accord Fowler v. Printers II, Inc., 89 Md. App. 448, 487 (1991) (without factual findings, “it is impossible for an appellate court to review the circuit court’s decision”), cert. denied, 325 Md. 619 (1992).
C. Analysis
Here, there is no dispute that the court made an explicit finding of bad faith and lack of substantial justification. In support, it found, based on the motion, response, attached exhibits, and arguments of counsel, that “[Mr. Jarosz] did encourage [Ms. Jarosz] to petition for judicial dissolution, consistent with the terms of the Consent Order from September 9, 2022.” The record more than adequately supports the factual finding.
In a verified declaration submitted with the motion for sanctions, Ms. Jarosz’s counsel submitted documentation demonstrating that Mr. Jarosz was in agreement that Ms. Jarosz should file a petition for judicial dissolution because the parties could not agree on the terms of a voluntary dissolution. In an October 6, 2022 email, counsel for Mr. Jarosz4 suggested to counsel for Ms. Jarosz that the parties either agree to file for judicial dissolution or try to get an agreement on the voluntary dissolution. In an October 10, 2022 email from Mr. Jarosz’s counsel, he stated that the parties were deadlocked in their efforts to agree on the term of a voluntary dissolution, “so an involuntary dissolution by the court is needed.” (Emphasis added). Counsel for Mr. Jarosz subsequently sent an email stating that it was Mr. Jarosz’s “position that that the Board should petition the [Fairfax County] Circuit Court for a judicial dissolution of the company . . . given that the shareholders agree that dissolution is in their best interests but have been unable to agree on a specific resolution for dissolution.” (Emphasis added). The email stated that: “This course of action is consistent with the terms of the Consent Order that was entered by the Circuit Court last month.” (Emphasis added). Finally, Mr. Jarosz’s own evidence, an affidavit from his counsel, which was attached to his Opposition to [Ms. Jarosz’s] Motion to Dismiss Petition for Contempt, stated that he advised counsel for Ms. Jarosz “that because the totality of the add-ons were not acceptable, the parties should proceed promptly with a request for a judicial dissolution of the Company, rather than continue to dispute the unnecessary inclusion of the [Ms. Jarosz’s] proposed add-ons.”5 (Emphasis added).
Mr. Jarosz contends that pleadings are not evidence, and Ms. Jarosz did not offer any evidence to satisfy her burden of proof. The court, however, did not rely on just the pleadings here.
Rather, there were more than ten verified exhibits attached to Ms. Jarosz’s motion, including the email correspondence discussed above. To the extent Mr. Jarosz argues that the court improperly considered this email correspondence because it was not admitted as evidence on the record at the motions hearing, we are not persuaded.
Rule 2-311(c ) provides that: “A party shall attach as an exhibit to a written motion or response any document that the party wishes the court to consider in ruling on the motion.” Rule 2-311(d) states that “[a] motion or a response to a motion that is based on facts not contained in the record shall be supported by affidavit and accompanied by any papers on which it is based.” Here, the email correspondence considered by the court was properly verified by the declaration of counsel for Ms. Jarosz, which was attached to the motion for sanctions. The court properly considered these exhibits as evidence. See Washington Mut. Bank v. Homan, 186 Md. App. 372, 390-91 (2009) (court properly relied on attached exhibits and signed verified statements when ruling on motion as they were part of
the record). Accord MCB Woodberry Dev., LLC v. Council of Owners of Millrace Condo., Inc., 253 Md. App. 279, 308 (2021) (“[T]here are cases in which the allegations of the pleadings, exhibits incorporated therein, and other matters capable of being noticed judicially, supply evidence from which bad faith may be discernable as a matter of law.”). The evidence in the record showed that Mr. Jarosz was in agreement that Ms. Jarosz should file for judicial dissolution. He did not offer any rebuttal evidence or challenge the authenticity, or the substance, of the email correspondence that was properly before the court. The court’s explicit finding that Mr. Jarosz filed his petition for contempt in bad faith and without a substantial basis was not clearly erroneous. We affirm its finding in this regard.
As indicated, because Ms. Jarosz excused payment of the sanction and the court issued a notice of satisfied judgment, any issue regarding the propriety of the sanctions award has become moot. Accordingly, we will vacate the judgment requiring Mr. Jarosz to pay Ms. Jarosz sanctions in the amount of $9,733.50.
MOTION TO DISMISS THE APPEAL DENIED. JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AWARDING SANCTIONS VACATED AS MOOT.
OTHERWISE AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The questions presented in appellant’s brief are:
1. Was there sufficient competent material evidence to support the trial court’s finding that the appellant’s petition for contempt was filed in bad faith and without substantial justification?
2. Did the trial court err in finding that the appellant’s petition for contempt was filed in bad faith and without substantial justification where the allegations of the petition supported appellant’s claim that appellee had failed and refused to comply with the plain terms of the subject order?
3. Did the trial court abuse its discretion when it awarded fees and costs in the absence of factual or legal support for its finding that the appellant’s petition for contempt was filed in bad faith and without substantial justification?
2 Md. Rule 1-341 provides:
(a) Remedial authority of court. — 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.
3 Because the amount of attorney’s fees is not in dispute, we need not discuss the hearing testimony on this issue in detail.
4 Mr. Jarosz’s counsel at that time was different from the one representing him on appeal.
5 Ms. Jarosz directs us to additional evidence showing that Mr. Jarosz ultimately consented to judicial dissolution and even filed his own petition for judicial dissolution with a Virginia court. These actions occurred after the filing of the petition for contempt, however, and therefore, we will not consider them in our analysis. See Kelley v. Dowell, 81 Md. App. 338, 343 (substantial justification inquiry must be limited to review of evidence at the time of the filing), cert. denied, 319 Md. 303 (1990).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 66 (2024)
Report and recommendation; exceptions; irregularity
The Appellate Court reversed the Baltimore County Circuit Court’s denial of husband’s motion to extend his time to file exceptions to the magistrate judge’s report and recommendations regarding custody and child support modification. The clerk’s failure to serve the magistrate’s recommendations on MDEC constituted an irregularity. Husband is entitled to be heard on his exceptions.
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..
method to notify the clerk. Appellant proceeded pro se and did not file an address change request with the court until May 30, 2024. However, Appellant attempted to submit an address change request on May 10, 2024, but contends that he encountered technical difficulties on MDEC.
On April 9 and 10, 2024, Appellant and Appellee, appeared before Magistrate Carrie Polley (“Magistrate”) for a custody and child support modification hearing. On April 30,1 the Magistrate issued her Recommendations by certified mail to Appellant, Appellee, and Appellee’s counsel. The Magistrate did not serve the Recommendations to either party through MDEC, however, the clerk E-filed the document on April 30, 2024.
Appellant filed exceptions to the Recommendations through MDEC on May 15, 2024, at 12:03 a.m. At 9:47 a.m. on May 15, 2024, the circuit court entered an order modifying the October 2020 Judgment. At 11:58 p.m. on May 16, 2024, Appellant filed a motion titled “Motion to Extend Time to File Exceptions.”
This matter is an appeal arising from a child custody dispute in the Circuit Court for Baltimore County. Patrick V. Redgate (“Appellant”) contends that the circuit court erred in denying his Motion to Extend Time to File Exceptions (“motion to extend time”) because the circuit court failed to serve the Magistrate’s Report and Recommendations (“Recommendations”) electronically through MDEC. For reasons that we will outline, we reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
On October 30, 2020, the circuit court entered a Judgment of Absolute Divorce for Appellant and Amy E. Redgate (“Appellee”), awarding joint legal custody and shared physical custody of their children. On March 30, 2023, Appellant filed a motion for Modification of Custody. On June 1, 2023, the Appellee filed a Complaint to Modify Custody and Child Support. The parties entered settlement negotiations in 2023. On August 9, 2023, Appellant’s counsel moved to withdraw his appearance. On August 30, 2023, the court granted counsel’s motion to withdraw with Appellant’s consent to proceed pro se and the clerk served Appellant with a Notice to Employ New Counsel, warning him that without legal counsel, he faces the risks of dismissal, judgment by default, and assessment of court costs against him. The notice stated that Appellant must “inform the clerk of any change of his address” but did not advise him on the appropriate
On May 17, 2024, the circuit court issued an order denying Appellant’s motion to extend “as untimely filed. An Order has already been signed, 16 days after the Magistrate’s recommendations were issued, and the Motion is therefore untimely.” Appellant timely appealed and both parties submitted informal briefs to this Court.
II. QUESTIONS PRESENTED
Appellant presents the following issues which we rephrase as follows:2
1. Whether the circuit court abused its discretion in denying Appellant’s Motion to Extend Time to File Exceptions because the court served the Recommendations by mail.
III. STANDARD OF REVIEW
We review a trial court’s discretionary rulings for abuse of discretion. An abuse of discretion occurs where “no reasonable person would take the view adopted by the [circuit] court” or the circuit court “acts without any guiding rules or principles.” Das v. Das, 133 Md. App. 1, 15-16 (2000) (citing North v. North, 102 Md. App. 1, 13-14 (1994)).
IV. DISCUSSION
A. Appellant’s Motion to Extend Time
A motion to extend time is governed by Rule 1-204(a)(3). The court may, “on motion filed after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect.” Md. Rule 1-204(a)(3). The court may extend the time prescribed to a party for doing an act required by court rules or an order of court, if the motion to do so is filed
within the period prescribed for doing the act. In re Timothy C., 376 Md. 414, 428 (2003). However, this Court liberally construes pleadings filed by pro se litigants. See Mitchell v. Yacko, 232 Md. App. 624, 643 (2017); Huertas v. Ward, 248 Md. App. 187, 207 (2020).
Here, the actions within the specified time frame under Rule 1-204(a) required that Appellant submit exceptions to the Magistrate’s recommendations. Appellant was required to file exceptions by May 13, 2024, before the court entered judgment on the matter. Once the trial court signs and dockets an order, parties may contest the judgment by filing a motion for a new trial under Rule 2-533; a motion to alter or amend a judgement under Rule 2-534; or a motion to revise a judgment under Rule 2-535(a); to revise a judgment based on fraud, mistake, irregularity under Rule 2-535(b); or revise based on clerical mistakes under Rule 2-535(d).
Appellant should have submitted a motion under Rule 2-535(b) requesting that the court exercise revisory power and control over the judgement in the case of irregularity. “Despite whatever deficiencies the motion might have had, the motion did enough to communicate to the court” and to the opposing party, the remedy being requested. See Huertas, 248 Md. App. at 207. In this case, the substance of the Appellant’s motion to extend time was an irregularity in the service of the Magistrate’s report and recommendations. Accordingly, his motion to extend time should properly be considered a motion pursuant to Rule 2-535(b).
B. Irregularity
“An ‘irregularity’ within the context of the rule at issue, ‘is a failure to follow required process or procedure.’” Mercy Med. Ctr., Inc. v. United Healthcare of the Mid- Atlantic, Inc., 149 Md. App. 336, 375 (2003). “Irregularities warranting the exercise of revisory powers most often involve a judgment that resulted from a failure of process or procedure by the clerk of a court, including, for example, failures to send notice of a default judgment, to send notice of an order dismissing an action, to mail a notice to the proper address, and to provide for required publication.” Thacker v. Hale, 146 Md. App. 203, 219-20 (2002).
In this case, the time frame under Rule 1-204(a) would have been to file his motion prior to his filing of his exceptions to the Magistrate’s recommendations. Appellant was required to file exceptions by May 13, 2024. However, the clerk did not serve the Magistrate’s recommendations through MDEC. Instead, the clerk served the Recommendations by certified mail that were sent to Appellant’s former address. Appellant alleges that he did not receive the mailed copy of the Recommendations and, consequently, filed his exceptions on May 15, 2024, at 12:03 a.m.
C. Service of Process in MDEC Counties
Our analysis of whether there was an irregularity brings us to review whether Maryland Rule 20-205 requires the clerk to serve a magistrate’s recommendations through MDEC and whether the clerk’s error constitutes an irregularity.
The Appellant’s arguments are centered on the delivery of the Magistrate’s recommendations to the parties. With that in mind, an analysis of the proper procedure is in order. Circuit courts may refer matters to a standing magistrate and the magistrate will draft a report and recommendations to guide the circuit court’s
final judgment. See Barrett v. Barrett, 240 Md. App. 581, 586 (2019); Md. Rule 9-208(a)(1)(G).3 Following a hearing and upon the development of a magistrate’s findings, the magistrate must “prepare written recommendations, which shall include a brief statement of the magistrate’s findings and shall be accompanied by a proposed order.” Md. Rule 9-208(e)(1). The magistrate must notify the parties of their recommendations “either on the record at the conclusion of the hearing” or, as in this case, “by filing the written recommendations and proposed order with the clerk, who promptly shall serve the recommendations and proposed order on each party as provided by Rule 20-205 in MDEC counties or Rule 1-321 in Baltimore City until it becomes an MDEC county.”4 Id. The Committee note also states that “Rule 20-205 (c) requires that the clerk in a MDEC county serve certain individuals, including persons entitled to service who are not registered users of MDEC, in the manner set forth in Rule 1-321.”
Generally, the clerk must send a copy of any order, ruling, or notice made outside a trial or hearing to all parties entitled to service under Rule 1-321. Md. Rule 1-321(a). Service by mail may apply “[e]xcept as otherwise provided in the Maryland rules or by order of the court.” Id. “Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address.” Id. (emphasis added).
Accordingly, Title 20 of the Maryland Rules governs electronic filing in jurisdictions where MDEC is implemented. See Md. Rule 20-102(a)(1). All Maryland Rules remain applicable to MDEC Counties, however, “[t]o the extent there is any inconsistency, the Rules in [Title 20] prevail.” Md. Rule 20-102(c) (emphasis added). “[J]udges, judicial appointees, clerks, and judicial personnel, shall file electronically all submissions in an MDEC action,” Md. Rule 20-106(a)(2), unless “the State Court Administrator exempts [magistrate’s reports and recommendations] from the requirements of electronic filing,” Md. Rule 20-106(c)(2)(E), users encounter an MDEC system outage, unexpected events such as loss of power or computer failure, or for other good cause shown. Md. Rule 20-106(b)(1)-(3). Title 20 also permits MDEC counties to serve parties by mail under specific circumstances:
The clerk is responsible for serving writs, notices, official communications, court orders, and other dispositions, in the manner set forth in Rule 1-321, on persons entitled to receive service of the submission who (A) are not registered users, (B) are registered users but have not entered an appearance in the MDEC action, and (C) are persons entitled to receive service of copies or tangible items that are in paper form.
Md. Rule 20-205(c).
If a party wishes to contest the magistrate’s findings or recommendations, they may file exceptions with the clerk within 10 days after recommendations are placed on the record or served. Md. Rule 9-208(f). Three additional days are added to the 10-day period if service is made by mail to the parties’ addresses on file. See Md. Rule 1-203(c). “[I]f exceptions are not timely filed, the court may direct the entry of the order or judgment as recommended by the magistrate.” Md. Rule 9-208(i)(1)(B).
Appellant asserts that the circuit court abused its discretion in denying his motion because the court failed to comply with the electronic service requirements under Title 20 of the Maryland
Rules. Appellee contends that the Baltimore County Circuit Court practice requires magistrates to mail their recommendations to the parties and properly denied Appellant’s motion because he filed his request outside of the 10-day window under Maryland Rule 9-208(f) (2024).5
Determining “[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). However, when the issue presented involves the interpretation and application of the Maryland Rules, we review the issue de novo. See Shealer v. Straka, 459 Md. 68, 80 (2018). We apply the same principles used in statutory construction to interpret the rules. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 78 (2001). “The principal aim of interpreting the Maryland Rules is to ascertain . . . [the Rules Committee’s and the Supreme Court’s] intent from the statutory language, reading pertinent parts of the [rule’s] language together, giving effect to all of those parts if we can, and rendering no part of the [rule] surplusage.” Id. at 78-79 (citations omitted). If the rule’s plain language “‘is unambiguous and clearly consistent with the rule’s apparent purpose, our inquiry’ ordinarily ends and we apply the rule ‘as written without resort to other rules of construction.’”
Zadeh v. State, 258 Md. App. 547, 574 (2023) (quoting State v. Bey, 452 Md. 255, 265 (2017)) (cleaned up).
Appellant argues that Maryland Rules 20-201(f) and 20-205(d) (1)6 required the Magistrate to serve the Recommendations electronically because Baltimore County is an MDEC County and Appellant is an MDEC user. Appellee does not raise any ambiguity in the language of the rules but contends that “[w] hile Baltimore County is an MDEC jurisdiction, the Baltimore County Circuit Court practice requires magistrates to mail their recommendations to the parties.” This practice is inconsistent with the Maryland Rules.
First, Appellant’s reliance on Rule 20-201(f) is misplaced. Very few sections of this rule apply to all MDEC users. The plain language of Rule 20-201(a) 7 specifically precludes the application of section (f) to judges, judicial appointees, clerks, and judicial personnel.
Second, we do not find any ambiguity in the language of the rules nor does Appellee contest the language in Rule 9-208(e) (1), Rule 20-205, or any other relevant provisions. Rule 9-208(e) (1) clearly states that the clerk “shall serve the recommendations and proposed order on each party as provided by Rule 20-205 in MDEC counties.” Title 20 governs electronic filing which applies to new actions filed in an MDEC county, Md. Rule 20-102(a), unless “persons entitled to receive service of the submission are not registered users, are registered users but have not entered an appearance in the action, or are persons entitled to receive service of copies of tangible items that are in paper form.” Md. Rule 20-205(c). If a party falls under one of the above exceptions, the clerk in a MDEC county must serve the party in the manner set forth in Rule 1-321. See id. Under Rule 1-321(a), service upon a party “shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the [ ] party, or if not stated, to the last known address.”
The plain language of Rule 20-205(c) is consistent with the apparent purpose of Title 20, which is to guide counties in the administration and statewide implementation of MDEC. In 2014, Maryland launched a successful pilot implementation
of MDEC which counties across the State adopted in phases. See Honorable Matthew J. Fader, Chief Justice, Administrative Order on the Administration and Expansion of Maryland Electronic Courts Statewide, Supreme Court of Maryland (Oct. 31, 2024). “The statewide implementation of MDEC is complete with the adoption of MDEC in Baltimore City on May 6, 2024.” Id. “MDEC drives efficiencies in monitoring, managing, and maintaining” centralized and unified systems that are essential to the Judiciary for “short- and long-term reliability, responsiveness, communication, uniformity of processes, and data compilation.”
Id. On February 19, 2019, Baltimore County adopted MDEC as the circuit court’s case management system. See Honorable Matthew J. Fader, Chief Justice, Administrative Order on the Administration and Expansion of Maryland Electronic Courts Statewide, Supreme Court of Maryland (Oct. 22, 2022).
Moreover, Appellant cites to Barrett in support of his argument which Appellee contends is factually inapplicable. 240 Md. App. 581. We disagree with Appellee. In Barrett, the clerk’s office placed paper copies of the magistrate’s report and recommendations, notice regarding filing exceptions, and the certificate of service in the courthouse mailboxes assigned to the party’s attorneys. Id. at 584-85. The circuit court entered judgment on February 6. Id. at 585. The next day, appellant filed his exceptions, a motion for leave to file exceptions, and a motion to alter, amend, or revise the court’s judgment as an abuse of discretion because the court’s service of the report and recommendations was an improper method of service under Rule 20-106(b) or Rule 1321(a). Id. at 585-86. Appellant contended that “the rules required the magistrate to serve him electronically; by hand-delivery to his counsel; by leaving a copy at his counsel’s office or home; or by mailing a copy to his counsel’s office.” Id. at 586. The appellee filed for divorce two months after Wicomico County transitioned to MDEC. Id. at 590. The Court found that the circuit court clerk “uploaded the Report to MDEC but did not ‘E-file’ the report pursuant to Rule 20-205(d)(1), which requires ‘judges, judicial appointees, clerks, and judicial personnel’ to ‘file electronically all submissions in an MDEC action.” Id. The Court held that “because this was an MDEC action and [appellant’s] attorney was a registered MDEC user, it is unclear why the Report was not served electronically through the MDEC system.” Id.
The Court in Barrett directly addressed the issue before us— whether the circuit court, sitting in an MDEC County, was required to serve the Magistrate’s recommendations through MDEC. Despite Appellee’s contentions, a minor factual difference in the method of service does not diminish the analysis and holding in Barrett. Like Barrett, Baltimore County adopted MDEC as the court’s case management system effective February 19, 2019. Appellant and Appellee’s initial divorce proceeding commenced on May 29, 2019, nearly three months after Baltimore County transitioned to MDEC. Furthermore, the issue before us arose following the Magistrate’s hearing on April 10, 2024. Pursuant to Rule 9- 208(e)(1) and the provisions in Title 20, the circuit court was required to file the Recommendations through MDEC. Title 20 contains several exceptions when service may be proper by delivery or certified mail. However, Appellee’s contentions that the Baltimore County Circuit Court practice requires magistrates to mail their recommendations to the parties is unpersuasive. The court may supplement MDEC service with certified mailings, but
the court may not substitute MDEC service unless an exception unequivocally applies.
Moreover, the record is unclear whether an exception applied to the MDEC service requirements. Regardless, the clerk failed to mail the Recommendations in accordance with Rule 1-321(a). Appellant put the clerk on notice of his new address in his most recently stated pleading on October 14, 2023. Therefore, we hold that Rule 20-205(c) required the clerk to serve court communications through MDEC.
V. CONCLUSION
We find that the circuit court abused its discretion to deny Appellant’s motion to extend time. The motion alleged an
JUDGMENT REVERSED. CASE REMANDED TO
irregularity on the part of the clerk by serving the Appellant by mail instead of through MDEC. The motion should have been treated as a motion to revise under Rule 2-535(a) because it alleged an irregularity in the service of the magistrate’s report and recommendations. The clerk’s failure to serve the Magistrate’s recommendations on MDEC and mail the Recommendations to Appellant’s address most recently stated in his October pleading constituted an irregularity. Appellant is entitled to be heard on his exceptions. For those reasons, we vacate the court’s order denying the motion to extend time and the Order of May 15, 2024. We remand to the circuit court with instructions to hold a hearing on the Appellant’s exceptions to the Magistrate’s Report and Recommendations filed with the clerk on April 30, 2024.
THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 The parties disagree on the date that the Recommendations were mailed. Appellant asserts that the Recommendations were issued on April 30. Appellee contends that the Recommendations were issued on April 29. The Magistrate noted in the certificate of service that the Recommendations were issued on April 29 and mailed via third-class, postage to the parties and counsel’s addresses on file. However, the clerk of the court entered the Recommendations on April 30. Entry of a court's order occurs when the circuit court “enters a record on the docket of the electronic case management system used by that court.” Md. Rule 8-202(f); Won Sun Lee v. Won Bok Lee, 240 Md. App. 47, 65 (2019). Therefore, the service date is on the day that the clerk docked the Recommendations, April 30, 2024, and the deadline for filing exceptions was on May 13, 2024.
2 In his brief, Appellant framed the question as follows:
1. Did the circuit court err in denying Appellant’s Motion to Extend Time to File Exceptions, where the court failed to serve the Magistrate’s Report and Recommendations electronically on Appellant, a registered MDEC user, as required by Title 20 of the Maryland Rules?
3 “If a court has a full-time or part-time standing magistrate for domestic relations matters and a hearing has been requested or is required by law,” modification of an existing order or judgment as to custody and child access disputes “shall be referred to the standing magistrate.” Md. Rule 9-208(a)(1)(G).
4 “‘MDEC County’ means a county in which, pursuant to an administrative order of the Chief Justice of the Supreme Court posted on the Judiciary website, MDEC has been implemented.” Md. Rule 20-101(n) (2024). Baltimore City was the last jurisdiction to implement MDEC and adopted the case management system on May 6, 2024. See Administrative Order on
Expansion of Maryland Electronic Courts (Oct. 31, 2024) (noting that “[a]ll appellate and trial courts shall utilize MDEC as their integrated case management system”). All circuit courts in Maryland utilize MDEC and Rule 9-208(e)(1) (2025) reflects this change by removing the text stating “. . . in MDEC counties or Rule 1-321 in Baltimore City until it becomes an MDEC county.” Additionally, Rule 20-101(n) now states that the “‘MDEC Start Date’” means the date specified in an administrative order of the Chief Justice of the Supreme Court posted on the Judiciary website from and after which a county first implements MDEC.”
5 Rule 9-208 has been revised and went into effect on January 1, 2025. However, we note that several rules in Titles 1, 9 and 20 were revised and went into effect on January 1, 2025. Because the issue presented in this case occurred in April and May 2024, we refer to the rules effective until December 31, 2024.
6 Appellant is representing himself pro se and made a good faith effort in drafting his legal argument. However, he cites to the wrong subsection of Rule 20-205 in support of his position that Title 20 required the clerk to serve the Recommendations electronically on MDEC. Appellant cites to Rule 20-205(d)(1) which states that “[o]n the effective date of filing, the MDEC system shall electronically serve on registered users entitled to service all other submissions filed electronically. . .” Because Subsection (d)(2) states that “[t]he filer is responsible for serving. . .” and Subsection (c) states that “[t]he clerk is responsible for serving. . .” we find that Rule 20-205(c) is the rule that requires the clerk to file court orders and communications through MDEC.
7 Rule 20-201(a) states “[s]ubject to section (l) of this Rule, sections (b), (c), and (e) of this Rule apply to all filers. Sections (d), (f), (g), (h), (j), (k), and (l) of this Rule do not apply to judges, judicial appointees, clerks, and judicial personnel.”
