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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.
It behooves those representing a child whose parent has mental health issues to advocate for timely treatment for the parent and the child to determine whether reunification can and should be achieved.
Cover Story:
A look at family law measures in the 2024 session
For the second year in a row, bills to codify courtroom standards for determining child custody and the qualifications for court-appointed child custody evaluators died this General Assembly session. But a number of other family law bills made it through both chambers, including several bills relating to children in need of assistance and legislation that established a grant fund for the Victims of Domestic Violence Program.
6 In the News: Judges limit child support law rule
Someone acting as a child’s parent can’t be ordered to pay child support in North Carolina unless the person is an actual parent or has formally agreed to provide such compensation, the state Court of Appeals ruled last month in a case involving an unmarried same-sex couple.
7
Feature Story: College students are flocking to the Marriage Pact
It’s the stuff of movies: Two friends vow to marry each other if they’re not hitched by a specified future date or age. Well, the Marriage Pact, an annual matching ritual that has become popular on nearly 90 college campuses around the U.S., has turned that dusty cliche into fun. And a few couples have found lasting love.
8 Monthly Memo
A mother of two children cannot take away her ex’s parental status just because the ex is not genetically related to the children, the Missouri Court of Appeals Western District ruled. ... The Massachusetts Appeals Court has ruled that extrinsic evidence could be used to prove the validity of a will signed by the testator’s conservator under the conservator’s mistaken belief that his appointment gave him the power to do so. … The Court of Appeals of Virginia has reversed a trial court’s refusal to modify the spousal support order of a 70-year-old man who voluntarily retired due to the physical demands of his job even though the parties had inadequately planned for retirement. … A Las Vegas lawyer and his wife had been in the middle of a contentious battle for custody of her children from a previous marriage when the woman’s former father-in-law, also an attorney, fatally shot them last week during a deposition hearing in the case, according to authorities and relatives. … The Republican-led Tennessee Legislature has overwhelmingly voted to send GOP Gov. Bill Lee a proposal that would ban marriage between first cousins.
9 Family Law Digest
Parenting with mental illness
An estimated 12% to 45% of adults who seek psychiatric services are parents to minor children.
Numerous studies show that a child’s mental health is connected to their parent’s mental health.
Children whose parents have mental health issues are more likely to have mental health issues themselves and are at a higher risk for developing psychological symptoms like depression, anxiety, and poor social functioning.
Children of parents with mental health conditions are also more likely to have poor general physical health, a mental, emotional, or developmental disability, adverse childhood experiences such as neglect or abuse, and to be living in poverty.
Mental health disorders can be passed down genetically or result from an unstable or unhealthy family environment.
The impact a parent’s mental health has on a child varies widely depending on factors such as the severity and duration of the issue, the child’s age, and the family environment.
A parent’s mental illness can affect a child more severely at certain stages of a child’s development, most notably between infancy and age 5, and at adolescence, when the child is at an important developmental transition and the parent is unable to meet their child’s needs.
Children tend to mimic the behavior of their parents, which makes it even more vital
ERIN KING
LITTLE
Child Advocacy
for parents to prioritize their own mental health to create a healthier environment for their children.
Parents who learn how to prioritize, treat, and address their own mental health struggles will be far better able to help and support their children.
Parents can then focus on their child, creating structure for the child, helping the child to develop positive coping skills when going through a difficult time such as practicing selfcompassion, or finding outside support for the child.
When parents fail to treat their own mental health illness, the risk is not only the adverse effect on the child, but also the loss of custody of the child.
A higher proportion of parents with serious mental illness lose custody of their children than parents without mental illness.
Untreated mental health conditions can lead to unstable housing, and the obverse can also be true -- unstable housing can lead to mental health issues as well.
The lack of good housing can lead to stress, anxiety, depression; emotional and behavioral problems; and worse academic performance in children, which can evolve into an unhealthy and unsafe environment for a child, and ultimately result in the removal of the child from the home.
A parent’s mental health is a
consideration in family court matters involving custody issues.
It is also a condition a juvenile court examines in determining whether a child should be removed from a parent’s care and is a Child in Need of Assistance (“CINA”).
A parent’s mental health issues, and especially the failure to address those issues, can ultimately lead to the termination of the parent’s right to the custody and care of the child. In re Adoption of Jayden G. (“Jayden G.”), 433 Md 50 (2013) (where the mother’s diagnosis of several significant mental health illnesses and her failure to see her psychiatrist and therapist and “enroll in the Abused Persons Program” resulted in her child’s removal and ultimately the termination of her parental rights.)
The child’s best interest is the ultimate consideration in CINA matters. Id. at 96.
A presumption exists in Maryland law that a child’s best interest lies in the care and custody of the natural parent. Id. at 95.
Thus, when a child is removed, the law requires that efforts be made to reunify the child with a parent.
It behooves those representing a child whose parent has mental health issues to advocate for timely treatment for the parent and the child to determine whether reunification can and should be achieved.
Erin King is a staff attorney at Maryland Legal Aid.
Coming off the heels of the passage of major family law legislation during the 2022 General Assembly session, family law-minded legislators did not pass reforms as sweeping in 2024
Child custody, evaluator bills fail in 2024 session
But CINA legislation and domestic violence measures gain passage
B y R achel K onieczny
RKonieczny@TheDailyRecord.com
For the second year in a row, bills to codify courtroom standards for determining child custody and the qualifications for court-appointed child custody evaluators died this General Assembly session.
But a number of other family law bills made it through both chambers, including several bills relating to children in need of assistance and legislation that established a grant fund for the Victims of Domestic Violence Program.
Coming off the heels of the passage of major family law legislation during the 2022 General Assembly session — with the adoption of legislation that raised the minimum age for marriage and prevented criminal defendants from marrying witnesses to gain their silence, to name a few — family law-minded legislators did not pass reforms as sweeping.
Sen. Chris West, R-Baltimore County and primary sponsor of SB 327, said his bill would have extracted the standards that a judge considers in custody matters for the
many individuals who come before the court on a child custody issue pro se.
The custody standards legislation passed in the House but failed in the Senate, with those opposing the bill believing the presumption in divorce cases should be joint custody of children, West said.
But West said these two issues are separate ones.
“The criteria that the judge ought to take into account when making the decision (of which parent is granted custody of the children) is
separate from whether or not there should be a presumption of joint custody,” West said.
West said the bill’s standards are neutral, and that he will reintroduce the bill again next year with the hopes that it will be easier to pass through the Senate.
Also failing to gain full traction this legislative session includes SB 365, which specifies qualifications and training that would be required of individuals in order to be appointed or approved by a court as a custody evaluator.
As co-sponsor of this bill that is a companion bill to a 2022 measure that West introduced that requires judges presiding over child custody cases to undergo certain training, West said the bill’s primary sponsors should “keep the bill as bare bones as possible” and require exactly the same training of the child custody evaluators as is required of judges.
Attorney Michelle Smith, co-chair of the legislative committee of the MSBA and council member of the MSBA Family Law Section, said she hopes to host discussions before the start of next year’s General Assembly session to reach a possible solution on the custody standards legislation that she described as a “perennial bill.”
“It wasn’t a particularly impactful year for family law with the legislation that did pass,” said Smith, who is with Annapolis-based Trainor, Billman, Bennett, Milko & Smith, LLP, of this year’s General Assembly session.
One exception, Smith said, was the passage by both chambers of SB 439, which establishes the Victims of Domestic Violence Program grant fund as a nonlapsing fund in the Governor’s Office of Crime, Prevention, Youth, and Victim Services and authorizes the governor to appropriate $5 million to the fund in the state’s annual budget.
Sen. Sarah K. Elfreth, D-Anne Arundel County and primary sponsor of the bill, said the state funding
“The criteria that the judge ought to take into account when making the decision (of which parent is granted custody of the children) is separate from whether or not there should be a presumption of joint custody,” says Sen. Chris West, D-Baltimore County, in describing an unsuccessful bill he sponsored.
domestic violence programs has always been critical, and is only more critical post-COVID.
“It’s really important to have consistent, dedicated funding to these programs, especially now,” Elfreth said, noting data shows incidents of reported domestic violence having increased significantly in recent years.
Elfreth said the bill’s passage is a “really powerful signal to the governor” that these programs deserve to be funded at $5 million per year, serving those who answer crisis lines, providing funding for emergency housing, and compensating counselors and social workers.
“We’re asking (counselors and social workers) to support survivors in the toughest of human conditions, and they deserve to be paid well and not feel like their future in working with the domestic violence program is in jeopardy every budget year if we don’t have consistent funding,” Elfreth said.
The bill awaits the Gov. Wes
Cover Story
Attorney Michelle Smith, co-chair of the legislative committee of the MSBA and council member of the MSBA Family Law Section, says she hopes to host discussions before the start of next year’s General Assembly session to reach a possible solution on the custody standards legislation that she described as a “perennial bill.”
Moore’s approval.
Other family law-related legislation that passed in both chambers include HB 435, which authorizes a court to modify child support if an obligor becomes incarcerated, and the enrolled HB 833 that establishes a presumption that placement with a child’s parent is in the child’s best interest if the parent is receiving certain substance use disorder treatment and the child is receiving proper care.
Looking back on this year’s General Assembly session and what has been accomplished in prior years, West said he thinks Maryland has comprehensive and noncontroversial family law statutes inscribed into law.
“We’re nibbling around the edges here at this point to try to put things in final form to where everybody can agree,” West said. “We have a great body of family law, both in statute and in court decisions. There’s broad consensus over what we need, and in fact we have in place what we need.”
AP FILE PHOTO
SUBMITTED PHOTO
Judges limit NC child support law rule in IVF case involving same-sex couple
By GaRy D. RoBeRtson
Associated Press
RALEIGH, N.C. — Someone acting as a child’s parent can’t be ordered to pay child support in North Carolina unless the person is an actual parent or has formally agreed to provide such compensation, the state Court of Appeals ruled last month in a case involving an unmarried same-sex couple.
A divided three-judge panel reversed a lower court that declared the ex-partner of the child’s mother, who gave birth in 2016 through in vitro fertilization, as a parent within the state’s child support laws. The local judge directed Tricosa Green, who didn’t give birth, to pay the biological mother about $250 per month and keep covering the child’s health insurance premiums.
The two women have had joint legal and physical custody for years. Child support law establishes that a “mother” and “father” share the primary liability for child support. In 2021, Mecklenburg County District Court Judge J. Rex Marvel wrote that it was appropriate that mother and father apply in this dispute in a “gender-neutral way,” and that “the duty of support should accompany the right to custody in cases such as this one.”
But Marvel’s order, if allowed to stand, would treat unmarried same-sex couples using IVF differently than unmarried heterosexual couples in which the male partner is not the sperm donor, Court of Appeals Judge Donna Stroud wrote in the prevailing opinion.
While state law instructs when statutes can have a gender-neutral interpretation, it doesn’t apply to the child support law, Stroud said. Green does not meet the plain definition of the child’s biological or adoptive mother and had signed no formal financial support agreement, she added.
Marvel’s “attempt to impose one obligation of a mother or father – child support – upon (Green), to go along
The appeals court order, if allowed to stand, would treat unmarried same-sex couples using IVF differently than unmarried heterosexual couples in which the male partner is not the sperm donor.
with the benefit of joint custody already conferred upon her is understandable,” Stroud wrote. “We fully appreciate the difficult issues created by IVF and other forms of assisted reproductive technology, but only the General Assembly has the authority to amend our statutes to address these issues.”
Green and E’Tonya Carter had a romantic relationship and participated in an IVF program in New York, selecting a sperm donor and with Green paying for the process, according to case documents.
Carter gave birth to a girl in 2016 in Michigan, where Green couldn’t be listed on the birth certificate. Their romantic relationship ended and they all moved to North Carolina. Green sought custody, leading to the joint custody agreement in 2019. Then Carter sought child support, saying that Green had acted as a parent since before the child was born.
Marvel’s 2021 support order referred to Carter as the “biological mother” and Green as the “de facto mother” who had “enthusiastically and voluntarily held herself out as a parent,” attending the child’s doctor appointments and providing things like diapers and clothes.
Stroud wrote that someone acting in the place of a parent, like Green, may also be
secondarily liable for support, but a judge can’t order support unless the person “has voluntarily assumed the obligation of support in writing.”
Judge Julee Flood joined in Stroud’s opinion. In a dissent, Judge Toby Hampson said that Marvel’s order should be upheld, citing a 1997 state Supreme Court opinion involving a unmarried heterosexual couple that he said found that a man acting like a father may acquire a duty to support a child.
The majority “effectively holds that — as it relates to an unwed same-sex couple— the duty of support, as a matter of law, does not accompany the right to custody in cases such as this one,” Hampson wrote.
The state Supreme Court could agree to consider an appeal of Tuesday’s 2-1 decision.
The case and Tuesday’s opinions have nothing to do with details of the IVF procedure or frozen embryos. They have received national attention since the Alabama Supreme Court ruled in February that couples whose embryos were destroyed accidentally at a storage facility could pursue wrongful death lawsuits. Alabama’s legislature has since enacted a law shielding doctors from potential legal liability for such destruction.
AP Photo/Michael Wyke
College students are flocking to the Marriage Pact
By leanne italie
Associated Press
It’s the stuff of movies: Two friends vow to marry each other if they’re not hitched by a specified future date or age.
Well, the Marriage Pact, an annual matching ritual that has become popular on nearly 90 college campuses around the U.S., has turned that dusty cliche into fun. And a few couples have found lasting love.
Nearly half a million students have participated since the pact first rolled out at Stanford University in 2017. Born of an economics project by two students there, the pact involves an algorithm that rates matches based on such statements as “I prefer politically incorrect humor” and “I pride myself on telling hard truths.”
Unlike dating apps and services, each student gets just one name, a percentage on the quality of the match and an email address to reach out.
“The idea is, if you think about everybody who goes to your college, surely there’s someone who is a good backup plan for you,” said Liam McGregor, one of the students who came up with the pact. “Not a Prince Charming, you know, not your perfect person necessarily, but maybe somebody whose number you should have.”
The questions, he said, “are selected based on, hey, what do we need to know to have a 50-year relationship with someone? Can we make it a great one?”
Many students do it with friends just for fun and don’t follow up. Others are ghosted after trying to make contact. A tiny fraction land in long-term relationships, even marriage.
Count Max Walker and Melia Summers in that last group. The two were New York University students when they did the pact in fall 2020. It was just a lark for both. He was in New York and she was at NYU’s Abu Dhabi campus. They chatted online for months, then Summers took a semester to study in New York.
Their first physical date, for pizza, was nearly a year after their match. Wedding
The Marriage Pact is an annual matching ritual that has become a popular staple on nearly 90 college campuses around the country. About 500,000 students have done the pact since it first rolled out at Stanford University in 2017.
bells will ring June 29. The quality of the match, according to the algorithm, was 99.65%
Take that, Tinder.
“We liked the same music. We did the same sports. We’re both from rural places,” Summers said. “It was kind of funny, right? It’s someone saying that they can find your, like, ultimate match. I didn’t really know if I was ready for my ultimate match at the time but I thought that was kind of a funny promise. And also, my friends were doing it, and we thought it’d be kind of interesting to do it together.”
The two plan to move to Knoxville, Tennessee, after the wedding so Walker can attend law school there.
McGregor, who runs the pact, said it spread quickly after word got out. Students from 15 other schools tried in the beginning to get in on the Stanford pact because it wasn’t available on their campuses. That’s not allowed. A campusspecific email address is required.
Rather than dwell on physical beauty and personal stats like height and hair color, he said, the Marriage Pact focuses its 50-question survey on core values. Communication styles and conflict
resolution. Smoking and drug habits. And things like: “If you do nothing for an entire day, how do you feel?” On a 1 to 7 scale, “like a lard” is 1 and “like royalty” is 7.
Questions are tailored for each campus since values may vary among students. At Georgetown, questions about politics and ambition are included, for example, whereas the Stanford pact may ask about things like careerism and spontaneity.
Pandemic restrictions kicked in as the pact spread wide to new campuses. “It was just harder to date,” said Katie Richards, who did the pact at Boston College in February 2021.
Richards, now 25, was matched with Miguel Corzo, also 25. Both were seniors. After some time dating long distance after graduation, they now live together in Philadelphia and just marked their third anniversary. He got down on one knee and proposed during the recent eclipse’s totality in Erie, Pennsylvania, offering a diamond ring just as the moon left a glowing ring around the sun.
“We just did the Marriage Pact because our friends did it. We were just like, oh, you know, why not? It’s something to do while everyone’s locked away,” Corzo said.
AP File Photo/Ariel Schalit
Appeals court affirms nonbiological mother’s rights as parent in same-sex divorce
A mother of two children cannot take away her ex’s parental status just because the ex is not genetically related to the children, the Missouri Court of Appeals Western District ruled.
The birth mother had appealed a Platte County Circuit Court decision finding her ex to be a natural mother of the children, arguing that the trial court was wrong because genetic testing excluded the ex from being a biological parent. The appellant also argued the statutory exception for artificial insemination did not apply because she was not inseminated under the supervision of a licensed physician.
The Court of Appeals, however, noted the Missouri Uniform Parentage Act does not require one mother and one father or prohibit two of the same. Therefore, people must be afforded the same opportunities to be deemed a natural parent, no matter their sex. Those opportunities include genetic testing and children being born while the parents are married to each other.
In this case, the two women were married at the time of birth of both children, but blood tests concluded that the respondent and the children were not genetically related. Weighing those factors against each other, in accordance with the statute, the trial court concluded the woman who was not the biological mother had a stronger claim than the biological fathers.
BridgeTower Media
Extrinsic evidence allowed to prove testator’s intent, appeals court says
The Massachusetts Appeals Court has ruled that extrinsic evidence could be used to prove the validity of a will signed by the testator’s conservator under the conservator’s mistaken belief that his appointment gave him the power to do so.
The conservator, David D. Parker Jr., prepared the document — which purported to leave half of decedent Jean Olson’s estate to a pair of charities while distributing the other 50 percent to four nephews and two nieces-in-law — in
Monthly Memo
consultation with Olson several months before her death.
Parker’s appointment decree directed him to establish a financial and estate plan for Olson but did not expressly authorize him to sign a will.
One of Olson’s nephews, objector Anthony Lewandowski, challenged the will, arguing that it was invalid under G.L.c. 190B, §2-502(a), which requires that a will be signed by the testator or by someone else in their name.
A Probate & Family Court judge agreed and dismissed the petition, rejecting Parker’s argument that an exception in the statute applied in the case. The exception allows the use of extrinsic evidence to prove a testator intended an unsigned document to be his or her will.
The Appeals Court reversed.
BridgeTower Media
Virginia court wrongly held husband responsible for retirement planning
The Court of Appeals of Virginia has reversed a trial court’s refusal to modify the spousal support order of a 70-yearold man who voluntarily retired due to the physical demands of his job even though the parties had inadequately planned for retirement.
When imputing his pre-retirement income to calculate support, the trial court emphasized the husband’s voluntary retirement and the parties’ lack of assets.
But Judge Richard Y. AtLee Jr. found no evidence to support the trial court’s decision to place the burden of retirement planning solely on the husband.
“Planning and providing for retirement is not the responsibility of one spouse, and, absent some evidence that supports doing so, a court should not place that burden solely on one party,” he wrote. “While husband had been the primary breadwinner both during and after the marriage, wife, a partner in the marriage, was also responsible for the decisions that the parties made during the marriage, including the decision to not adequately plan for retirement.”
Judges Mary Grace O’Brien and Mary B. Malveaux joined AtLee in reversing and remanding Baker v. Baker BridgeTower Media
Lawyer and wife killed amid custodyfight from prior marriage, family says
A Las Vegas lawyer and his wife had been in the middle of a contentious battle for custody of her children from a previous marriage when the woman’s former fatherin-law, also an attorney, fatally shot them last week during a deposition hearing in the case, according to authorities and relatives.
The coroner’s office in Las Vegas identified the victims as lawyer Dennis Prince and his wife, Ashley. Both were shot multiple times, the coroner’s office said, before 77-year-old Joseph Houston shot and killed himself.
Gunfire erupted just minutes after the deposition hearing began on the morning of April 8 at Dennis Prince’s law firm, Prince Law Group, in the affluent Summerlin neighborhood.
Seven people were in the room at the time of the shooting, police said. The four others, including a court reporter, were able to quickly escape and call police.
At a news conference, Ashley Prince’s parents said their daughter was previously married to Houston’s son and had been trying for years to gain sole custody of their two children. Houston, a lawyer in Nevada since 1974, had been representing his son in the custody battle, court records show.
Julie Page said they will continue their daughter’s fight to win custody of the children, ages 4 and 5.
Associated Press
Tennessee lawmakers send bill to ban first-cousin marriages to governor
The Republican-led Tennessee Legislature has overwhelmingly voted to send GOP Gov. Bill Lee a proposal that would ban marriage between first cousins.
The House cast a 75-2 vote on the bill after the Senate previously approved it without any opposition.
But a particularly vocal opponent, Republican Rep. Gino Bulso, took up most of the debate time, as he argued for an amendment to allow first-cousin marriages if the couple first seeks counseling from a genetic counselor.
Ultimately, lawmakers voted down Bulso’s amendment and approved the ban proposed by Democratic Rep. Darren Jernigan.
“I hope it’s safe to say that in 2024, we can close this loophole,” Jernigan said.
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
DIVORCE; MARITAL SETTLEMENT AGREEMENT; FRAUD OR DURESS
The Appellate Court affirmed the Anne Arundel County Circuit Court’s judgment of divorce that incorporated the parties’ prior marital settlement agreement. Although the husband attacked the marital settlement agreement on several grounds, including that it was unconscionable, the product of duress or fraud, and that he was dependent on wife, the circuit court’s findings rejecting these arguments were supported by the record.
The Appellate Court affirmed the Prince George’s County Circuit Court’s change in legal custody regarding the minor child. Although the mother argued that father’s attorney erred in his preparation of the proposed custody order, none of the provisions contained therein deviated substantively from the court’s oral ruling, and all were within the court’s authority to order.
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to quash subpoenas issued by the husband to two senior executives of a company where the wife worked. Although the non-party subpoena recipients argued the subpoenas should have been directed to the company, the record showed they were probably the only persons with sufficient knowledge to respond to them.
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of the father’s motion to reconsider, after he failed to adhere to filing requirements for in banc review. Although the father argued that the minor child suffered prejudice from the denial, there were no allegations as to specific harm that the minor child incurred because of the court’s decision.
The Appellate Court vacated the Carroll County Circuit Court’s award of Crawford credits, the order awarding husband all net proceeds of the sale of the marital home, and the monetary award.
The Appellate Court affirmed the Baltimore City Circuit Court’s appointment of a woman’s sister as her guardian, and its appointment of an attorney as the guardian of the woman’s property, as supported by the record.
VOLUNTARY IMPOVERISHMENT; MOTHER; POTENTIAL INCOME
The Appellate Court affirmed the St. Mary’s County Circuit Court’s finding that mother was voluntarily impoverished and its finding regarding mother’s potential income.
The Appellate Court affirmed the Baltimore City Circuit Court’s judgment for absolute divorce following upon a greater-than-one-year separation. The undisputed facts showed that husband and wife lived separately and apart, and without cohabitation, for over a year prior to the judgment.
The Appellate Court vacated the Montgomery County Circuit Court’s order requiring the Montgomery County Department of Health and Human Services to pay for Amtrak train tickets and hotel accommodations for mother’s monthly in-person visitation with two children living with relatives in North Carolina. Although the juvenile court had the authority to direct the department to bear expenses in connection with the permanency plan, nothing in the record suggested that those specific accommodations were necessary to serve the minor children’s best interests.
The Appellate Court reversed the Anne Arundel County Circuit Court’s order denying the mother’s motion to alter/ amend the judgment as untimely. The statute requires a motion to alter/amend to be filed within 10 calendar days after entry of judgment. Because the tenth calendar day fell on a weekend, and the next Monday was a federal holiday, the mother’s motion was timely when it was filed before that following Tuesday.
Amaka Ndubueze v. Johnbosco Ikechukwu Alaenyi
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 04 MFLU Supp. 11 (2024)
Divorce; marital settlement agreement; fraud or duress
The Appellate Court affirmed the Anne Arundel County Circuit Court’s judgment of divorce that incorporated the parties’ prior marital settlement agreement. Although the husband attacked the marital settlement agreement on several grounds, including that it was unconscionable, the product of duress or fraud, and that he was dependent on wife, the circuit court’s findings rejecting these arguments were supported by the record
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
FACTUAL AND PROCEDURAL BACKGROUND
EVENTS LEADING TO LITIGATION
On April 19, 1997, Husband and Wife were married. They have one adult child. In the summer of 2019, the party’s relationship began to deteriorate after Wife found out that Husband “was engaging in multiple extracurricular relationships with other women.” Husband testified that Wife was “very agitated” with him and made him move out of the main bedroom into the guest bedroom.
On December 31, 2019, Husband sent a text message to Wife stating: “[I]f you want a divorce, just ask for it.” On February 14, 2020, Husband and Wife entered into a listing agreement with Coldwell Banker Residential Brokerage to sell their marital residence.
This appeal arises from a judgment of the Circuit Court for Anne Arundel County granting appellee, Stephanie Chase Sams (“Wife”), a divorce from appellant, Mark C. Reisinger (“Husband”). The order incorporated a marital settlement agreement signed by the parties on February 26, 2020.
On appeal, Husband presents the following questions for this Court’s review, which we have consolidated and rephrased slightly, as follows:
1. Did the circuit court properly apply the law in concluding that there was no confidential relationship between the parties?1
2. Did the circuit court properly apply the law in concluding the marital separation agreement(s) in this case were not unconscionable?
3. Did the circuit court properly apply the law in concluding that the agreement(s) were not the product of duress?
4. Did the circuit court err in finding that Wife adequately disclosed financial information to Husband prior to the execution of the agreements?
5. Did the circuit court err in excluding evidence and failing to consider that evidence in its findings of facts and legal ruling?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
On February 16, 2020, the parties executed a document titled Absolute Divorce with Consent Separation Agreement (the “Separation Agreement”). They each signed the document and initialed each page. The Separation Agreement provided that the date of separation would be July 6, 2020. It included provisions for tax filings in 2019 and 2020.
The Separation Agreement also provided that the parties would list their marital home for sale and split the proceeds after the home was sold and the remaining mortgage was paid. The party’s rental property, a condo in Ocracoke, North Carolina (the “Vacation Property”), would not be sold, and Wife would assume the mortgage debt after the house was refinanced in her name, retaining full ownership. Husband could use the Vacation Property with specified conditions.
The Separation Agreement further outlined the parties’ division of assets and liabilities, with Wife retaining 49% of the assets and Husband retaining 51%, and Wife assuming 75% of the liabilities, with Husband assuming 25%. Wife would pay for son’s college tuition, room, board, cell phone, and Apple Watch until his college graduation. She also would pay off any student loans that son obtained. The Separation Agreement further addressed provisions for Husband to continue with Wife’s health insurance for a period of time.
The parties agreed that Husband would retain full ownership of his boat and would be responsible for insurance if it was not sold by June 29, 2020. Husband also would retain full ownership of his two vehicles, the Jeep Cherokee and Jeep Commander, which were paid in full, and Wife would retain full ownership and assume the debt in the amount of $31,634.09 of the Tiguan vehicle. Son would retain the Jetta vehicle, and
Wife would assume the debt in the amount of $14,344.82, as well as insurance costs. The Separation Agreement stated that “[b]oth parties agree to keep their individual retirements savings accounts to date with no future benefit from either party as [Wife] is assuming household debt and commitments of $576,302.”2 It further provided that the parties would keep their own life insurance policies and bank accounts. Household contents would be split between the parties.
On February 26, 2020, the parties executed a more detailed, notarized Marital Settlement Agreement (the “Agreement”), memorializing the terms of the previous Separation Agreement. It outlined the previous stipulations from the February 16, 2020 Separation Agreement regarding the distribution of marital property, personal property, health insurance, taxes, and retirement assets, and both parties waived the right to alimony.3 On March 27, 2020, Husband moved out of the marital residence, and both parties relocated their personal property to storage. Husband also changed his driver’s license address to a new Pasadena, MD address.
II.
Complaint
On May 21, 2020, Husband filed a Complaint For Limited Divorce, Alternatively, Absolute Divorce; To Set Aside Marital Settlement Agreement; Motion To Bifurcate And Other Relief. He asserted that he signed the Agreement without “understand[ing] his legal rights” because Wife “coerced and threatened” him through “undue influence, misrepresentation, and concealment of material facts as to the amount and value of property titled in Wife’s name alone.” Husband alleged that he “could not and did not choose to accept the terms of the alleged agreement, and thus did not execute it in a voluntary fashion with full knowledge and meaning of effect.” He further asserted that “Wife took advantage of [his] mental and emotional disability, bullied him, and repeatedly threatened him.” Husband contended that the Agreement should be set aside because the terms were “so unfair and inequitable or unconscionable.” Husband requested that he be awarded a limited or absolute divorce and alimony, and he requested a bifurcated hearing “to determine if the alleged agreement should be set aside.”
On June 25, 2020, Wife filed an answer alleging that Husband “voluntarily entered into the agreement with full knowledge of the contents of the agreement as he had negotiated the terms with extensive review of the financial records.” Wife alleged that Husband “did not sign the documents under duress or undue influence,” and he “was not threatened, nor forced to enter into the [A]greement.” Wife asserted that “there was no confidential relationship between the parties” after they separated, more than seven months before the agreements were signed.
III.
Hearing on the Agreements
On February 21-22, March 31, and April 10, 2023, the circuit court held hearings on Husband’s complaint to set aside the Agreement. Husband testified that he did not have a college degree, but he attended a few years of college. At the time of the hearing, he worked for Prudential Advisors, where he sold “life insurance, long-term care, mutual funds, [and] some annuities.” He held a “Series 6 license and Series 63 license” as a sales associate or financial advisor. He previously worked at
Allstate Financial, where he received “commissions and also some trails.”4 In 2019, his salary was $80,000, and in 2020, his salary was $50,000 or $60,000. At Prudential, he was eligible for a bonus if he “hit a certain production at the end of the quarter,” but he had not earned a bonus since 2020. Prudential had awarded him a signing bonus of “about $29,000,” but Wife “swept that out of the account.”
Husband stated that Wife “controlled 100-percent” of the family finances throughout their marriage. She said that she was a CPA and wanted to keep the household budget to herself.5 She told him not to open the bills when they were delivered; she said to “[k]eep them in a certain spot so they don’t get disorganized or lost.” She took the pay in his account and left an allowance of approximately $200 for gas, food, and other expenses. He had several credit cards and a single checking account to write checks “to the housecleaner on a weekly basis,” as well as for the dry cleaning and “one guy who comes over to the house and some handyman stuff.” Husband asserted that he did not have online access to any shared bank accounts, credit card accounts, or loan accounts.
Wife decided that they should use their income to fund her work 401(k) because she had matching contributions from work. He did not know how much was in it. He knew she had a pension with work, but she refused to discuss details, saying “we’re fine.” Husband testified that Wife completed his personal taxes. In 2020, he asked Wife to see his 2019 tax return several times, but she refused, so he never signed the tax return.
Counsel showed Husband the Agreement from February 26, 2020, signed by both parties. Husband confirmed that the Agreement did not provide for him to receive any of Wife’s pension or retirement accounts. He retained an expert to value Wife’s pension after obtaining counsel and filing for divorce. He was “very blown away” by the value of Wife’s pension, and he would not have signed the Agreement, waiving his right to participate in her pension, if he was privy to the value of her pension.
Husband testified that he had been treated for mental health issues for many years, including in 2019. He experienced depression and “had anxiety from the arguments.” Husband “was being treated for panic attacks where [he] would have complete mental breakdowns.” He was seeing a psychologist monthly for medication management, and he attended weekly therapist appointments. In 2019, he also saw a psychiatrist. In July 2019, Husband suffered a “complete mental breakdown,” with bad panic attacks. That month, Wife discovered on his cell phone sexual text messages and photographs from other women. He and Wife had a bad argument. He then grabbed a bag with a handgun from his house and planned on shooting himself at his office. Husband called his son from his office “to say goodbye.” His son drove to pick up Husband and took him to Annapolis Medical Center. Husband then went to Sheppard Pratt hospital for approximately 12 days. Wife visited him “once or twice.” Following discharge, Husband lived in the guest bedroom of the marital home and reported his depression and anxiety worsening.
Counsel offered into evidence Husband’s psychological evaluation report, written by Dr. Bruce Turnquest, a licensed psychologist, on November 18, 2019. Dr. Turner wrote in the
report that Husband “suffers from continued and significant symptoms of depression and anxiety” that is “related to both external factors (e.g. marital stress) and internal factors.” Dr. Turnquest diagnosed Husband with major depressive disorder, general anxiety disorder, and attention deficit hyperactivity disorder.
In January 2020, Wife told him that she wanted a divorce, and they needed to sell the marital home. In February 2020, he and Wife met with a realtor to discuss selling the marital home. At that point, he and Wife had only discussed selling the marital home; they had not discussed any other assets, debts, retirement plans, or pensions.
On February 16, 2020, Wife “slapped” the Separation Agreement in front of him at the kitchen table. “She was extremely forceful, yelling, [and] very argumentative.” Wife showed him several pictures from his email account or on his cell phone, including “sexual and graphic and salacious photos and conversations.” Wife accused Husband of cheating and asked him to sign the Separation Agreement. Husband asked Wife to look at the document, but “she threw pictures of . . . the texts and the pictures down” and asked how his mother would feel seeing the inappropriate texts and pictures. She said that if he did not sign the Separation Agreement, she would send them to his mother and his employers. Husband did not want that to happen, and he “was going to throw a panic attack,” so he signed the Separation Agreement. He was hyperventilating, crying, and shaking. Husband did not want his parents or employer to see the texts and photographs.6 He had not seen any of the information in the Separation Agreement prior to signing it. He did not contribute anything to the document, nor had he consulted with an attorney. On February 26, 2020, Wife came to the marital home hysterical and mad. She asked Husband to “follow her to get something notarized.” Husband followed Wife to a notary located in a retail shopping center on Bay Ridge Avenue. Wife was holding the Agreement, and he asked to see it, but she said that he could see it when he signed it. Husband then walked out of the building, and Wife followed him to his car, stood behind his car so he could not escape, and began yelling at him.
Husband asked Wife to see the Agreement for a second time, but she refused. Wife then showed him “a text of what she was going to send to [his] employer,” so he decided to go back inside the notary’s office. Husband was crying and his “anxiety was through the roof.” He signed the document because he did not want anything sent to his employer. He was not fit to sign the Agreement.
On approximately March 18, 2020, Husband retained an attorney. He then sent Wife an email stating that he had retained an attorney and asking to terminate the Agreement because he believed that he had been forced into signing it. Wife was mad that he got an attorney involved.
Wife subsequently sent Husband an email asking if he was “going to be the one to tell [their son] that he [would] have to drop out of college because all of the college savings [would] be used on legal fees in a contested divorce” and that it was Husband’s fault. Wife further wrote: “[Y]ou have a sick addiction and threw away your family for sexual pleasures . . . face it and be a man.”
Wife attached a document to the email that asked Husband to sign and affirm that “the written marital settlement agreement,
executed on February 26th, is valid.” Husband did not sign that emailed document.
Husband testified regarding various text messages between him and Wife, which were admitted into evidence. One text message from Wife stated: “[J]ust remember Prudential doesn’t know about your dirty little secret,” which Husband stated referred to his “inappropriate texts and pictures.” Later text messages stated: “[I]f your parents bankroll you I will make sure that [our son] knows that they are at fault for him losing his future as well,” and “someone other than me needs to know how mentally ill you are.” Additional text messages stated: “[Y]our mom would be appalled if you told her the truth. You are a piece of shit and waste of oxygen.” On January 24, 2020, Wife texted Husband that he was “vile” and that “this is how you treat the one person that pays your mortgage, pays for your car, pays the utilities, pays for the food that you eat. You are a vile individual with no morals.”
On February 29, 2002, Wife texted Husband: “Just remember, dear, before you go too far with your insults. Your work doesn’t know what a fucking stupid idiot you are when it comes to money nor your morals?”
Husband testified that, after the separation, Wife drove by the house “all the time.” In May 2020, tacks were placed under the tires of his vehicle. In June 2020, he called the police after his Wife drove by his house “yelling” at him because she thought he was selling the couple’s refrigerator.
With his Series 6 license, he “could sell variable products like mutual funds, variable annuities, variable life,” and with the Series 63 exam, he could sell to states outside Maryland. Husband signed a contract with his current employer, Prudential, during the fall of 2019 and received a signing bonus of approximately $30,000. He stated that Wife took his bonus, but he agreed that he had not traced that missing $30,000.
On February 10, 2020, Husband opened his own checking account, separate from Wife. Two weeks after opening the account, Prudential deposited $19,067.44 into the account.
Husband testified that, at the time he executed the agreements, he “lacked capacity,” stating that he was on “multiple medical drugs.” On February 14, 2020, when the realtor came to the marital home to discuss the future sale, he “thought we were just going to talk about her being potentially hired and then all of a sudden she pulls out some contracts that I never saw before.”
He did not read the contract and did not say anything because, constantly through the years, Wife yelled at him that she was a CPA and knew more than he did. Several weeks later, Husband went to the realtor and asked her “to put things on hold.” The realtor then “tore up the contract.” Husband testified that he never informed his employer, Prudential, that he was suffering from mental health issues.
Counsel for Wife then showed Husband an email from Wife to Husband on February 16, 2020, with a document attached called “absolute divorce with consent agreement.” Husband testified that he had never seen the document before. It was possible that Wife did send him that email, but he never opened it.
On re-direct, Husband identified a bank statement from September 13, 2019, which showed a deposit of Husband’s Prudential bonus of $29,552. The statement also showed a transfer of $21,000 to an account Husband testified was Wife’s account.
Michael Goldberg, a tax attorney whom the court accepted as an expert witness, testified that Husband retained him as an expert in 2020 to review the parties’ asset split and to review Wife’s pension. He opined that the present value of Wife’s pension plan was $2,776,441, with a monthly payment of $9,251.95.
Robert Reisinger, Husband’s father, noticed that Husband and Wife began having marital difficulty in February or March of 2020. He received multiple email communications from Wife in February 2020, which consisted of “anything she could get ahold of to disparage [Husband],” such as photographs and “sexual communications with other women.” She also discussed Husband’s mental health issues.
Ms. Alex Sears, a realtor, testified that she met Husband and Wife at their marital home on February 14, 2020, to discuss listing the parties’ property. The meeting was “one hundred percent professional,” and “[e]verybody was . . . very pleasant.”
Although there were “obvious tensions in the household . . . there was no indication in any way that there was hesitation in, in signing the agreement.” Both Husband and Wife signed the listing agreement during the meeting. Ms. Sears did not recall Husband ever coming to her office to rescind the contract. She never tore up the contract. The parties’ marital home was never listed for sale, however, because the parties never decided on a “list price.”7
Wife testified that she received her undergraduate degree at UNC-Chapel Hill in 1988 and her graduate degree, a Master of Business Administration, from Norwich University in 2004. She was a licensed certified public accountant, working for the International Monetary Fund as a senior risk and controls officer, where she had worked for the past 23 years.
A typical day throughout her marriage involved waking up at 4:30 a.m. to arrive to her office in Washington, D.C., by 5:30 a.m. Later in the afternoon, she would pick up her son from school and “get him to his activities.” Husband “had morning duty with the son.” After waking up their son and taking him to school, Husband “basically set his own schedule for the rest of the day running appointments all day long.”
Beginning in 2016, Wife’s marriage began to break down due to co-parenting and financial struggles. She was “the saver type,” but Husband “was more of a spender,” who “basically put everything on a credit card and worried about how he was gonna pay the credit card off later.”
The parties were “cash-positive” through 2007, until the financial and banking crisis. The Vacation Property in North Carolina was intended as an investment property, but “it’s rented at a loss of about $8,000 a year since [the parties] have owned it.” During Husband’s most financially successful year, he financed a boat in his name alone.
Wife stated that the last time she had marital relations with Husband was 2018. She was suspicious that Husband was still sexually active with other women, however, because “he continued to get his Viagra refilled up through 2019.” In July 2019, Wife noticed through bank statements and credit card statements that Husband had “withdrawn a total of . . . almost $20,000 in cash out of one of the bank accounts” and spent “thousands of dollars [] buying gift cards” for places such as Home Depot and Staples.
On July 6, 2019, Wife saw a text message on Husband’s phone
stating: “[H]ello, my love. I just want to hear your voice.” When Wife confronted Husband, he told her that it was a wrong number. Wife told Husband to spend the night on his boat, which he refused. Husband then gave Wife his phone, where she discovered that he had text messages from multiple women with “a lot of salacious pictures” that Wife stated “were so vile.” Wife spent the night in a hotel, and when she returned, she told Husband to start sleeping in the guest bedroom.
On July 13, 2019, Husband admitted himself to Anne Arundel County Medical Center. Husband then went to Howard County Sheppard Pratt Center for approximately 12 days. During this time, Husband gave his son his phone to hold onto. Wife and son then went through Husband’s phone and learned that he “was engaging in online relationships, multiple of them, with women that were younger than [their] son.” After Husband was discharged, the parties attended two joint therapy sessions for Husband’s sexual addiction. Wife stated that, at that point, the trust issues “were huge.”
Soon after Husband was discharged from the hospital, he obtained employment with Prudential. Husband’s bonus from Prudential was deposited into his Capital One checking account and “was used to pay taxes due.” Wife did not misuse those funds, and approximately $4,000 was set aside in Husband’s boat savings account to offset some of the cost of the boat.
On December 31, 2019, Husband texted Wife: “[I]f you want a divorce, just ask for it.” The next morning, she and Husband began to negotiate a settlement for divorce. They began “dividing the household items” and discussing “who wanted what and what was considered marital property.” Negotiating the settlement for divorce was a smooth process “[f]or the most part” because “it was very obvious who was gonna want what in the house.” By January 11, 2020, she and Husband had “started finalizing what to do with the household items.” Because their “cash flow was so strapped,” they wanted to avoid a costly divorce. Wife approached Husband about pursuing a collaborative divorce, where the parties amicably divide up their marital assets and liabilities, which reduces the legal cost. Husband agreed, so they began figuring out what needed to be divided. At that time, they had approximately $300,000 in equity in the marital home, but the Vacation Property, was “a distressed asset.”
Wife and Husband began drafting the Separation Agreement in a Word document by addressing several topics, including taxes, houses, insurance, retirement, and bank accounts. She and Husband would talk over dinner from January 11, 2020, until the first Separation Agreement on February 16, 2020, to discuss the division of expenses and assets. At the time the first Separation Agreement was executed on February 16, 2020, the parties had approximately $850,000 of debt. She changed the total debt to $790,000 in the final Agreement because:
[Husband] was very worried about cash flow and being -- working with Prudential, the fact that his cash flow was not, not being as good. So we agreed that we would split the house -- the proceeds from the house 50 percent. With [the Vacation Property], we, we came up with two options. There was of course 50/50 option, which meant that both of us would have to contribute to the mortgage and both of us would have to contribute to the loss to bring that, to
bring that whole because it was a vacation rental property and so we had to keep the lights on and we had to keep everything working down there. Ultimately, [Husband] did not want to be -- take responsibility for the debt [at the Vacation Property], and so I just -- I agreed to take that on. That alone was almost a half a million dollars in debt. I agreed to take on the obligations for [son], his tuition, his student loans. [Husband] rode the route of, he’s 18. I’m not responsible for him anymore, so I don’t want to pay for anything related to him. With the cars, we had four cars. Two were paid off. [Husband] took the two that were paid off. I assumed the payments for the two that had notes on them. I’m trying to think of what else. What else was there in debt? The operating loss, the credit -- we split the credit cards. The decision there was to split them. Whoever had taken out the card and it was legal in their name would service that debt going forward.
Wife explained that she “agreed to take on the bulk, almost 80 percent, of the marital debt.”
Wife further explained the process of how her pension allocation was written in the final Agreement:
So this being three years ago, at that point we, we realized that both of us have, you know, 15, 16, 17 years to work in the future to earn money. I’m a salaried employee. I don’t have -- I don’t get bonuses. I get very small raises. There is no profit-sharing at the International Monetary Fund. So I, I, I’m doing good if I get a, a one percent raise a year there. That’s -- I think that’s -- we’re a quasigovernmental agency.
[Husband], on the other hand, is commission-only. He has the potential to earn two and three times the amount of money I did. And so [Husband] traded future cash flow for having cash flow upfront and being able to not have to -- have to pay off this -- all this debt that we had, had built up over time. So the offset was that he would keep his retirement vehicles that he had. He had three at the time. There was a supp. Prudential offered a pension, and he had something else called an RMA that to this day I don’t even understand what it is, but he said it was part of his retirement package.
I get a pension from the IMF. There’s a mandatory contribution to that. I have no say-so or control over how that pension works. And then there was a, an annuity that were dribs and drabs of, you know, money I have accumulated from previous employment then that [Husband] had actually invested for us. So we agreed that we -- both of us would keep our pensions. And so the -- my pension would be the offset to taking on the debt for [son], which we calculated at that time was almost $100,000 over his education ‘cause he was just a freshman at that point in time, plus the negative cash flow from the mortgages and other -- and student loans and everything else that we had.
Wife testified that Husband’s testimony that “he did not have access to bank accounts other than the one checking account with a debit card” was inaccurate; the parties had three joint checking accounts. Husband did not tell her “what he was going to spend or what he had spent or what he had purchased on
his American Express account,” nor his credit card account with Capital One. The reason why she assisted Husband with payments to his credit card accounts was because Husband did not like administrative tasks.
Regarding Husband’s testimony that Wife would take his money and move it into different accounts after he was paid, she stated: [W]e had three joint checking accounts. His commissions came into one particular checking account that was the one tied to his debit card. We paid all of our family bills from a different joint checking account, so of course we had to move his, his income -- his money when it came in from his debit card account to the family bills account in order to pay his -- all of our bills, including his credit card bills.
Husband “always had access to cash,” and she did not assist Husband with purchasing his Jeep Grand Cherokee, his Jeep Commander, or his Volkswagen Jetta. She asserted that, throughout her marriage with Husband, she had never “been able to control, direct or manage [Husband’s] actions or behaviors.” Moreover, since 2004, Wife completed the family’s taxes through TurboTax, which was accessible to Husband through the family computer and was not locked through passwords or any other lock restrictions.
Counsel for Wife showed her the “Proposal for Collaborative Divorce” from January 19, 2020. Wife explained that this proposal was the “first pass of” splitting up “all the other assets and liabilities,” such as tax filings; what we’re gonna do with the house; how we’re going to support our son []; health insurance; let’s see, club memberships. At the, the second page there’s also all the other things that we hadn’t added to this document yet. So that was dealing with the credit cards, with [the Vacation Property], what we were gonna do with the motor yacht, what we were gonna do with the cars, retirements and so forth.
Counsel for Wife then showed her the “Revised, January 2020, Proposal for Collaborative Divorce.” Wife stated that the revised version was “the result of the . . . conversations that we had on the 19th” and was “expanded to talk more about the other assets and liabilities.” Among other things being discussed was how to divide the Vacation Property, how the vehicles would be divided, and what to do with life insurance policies.
Counsel for Wife then showed her the “Proposal for a Collaborative Divorce” from February 9, 2020, which Wife asserted was drafted “between the 20th of January and the 9th of February.” She and Husband were still discussing items and negotiating to get to an agreement on how to divide things, “but the biggest change was that [Husband] did not want to take on any of the debt of the [Vacation] property, so [Wife] had agreed to take on that debt and the negative cash flows.” Moreover, the parties agreed that “[Husband] would keep the boat and if he chose to sell it, then he would just keep the proceeds from the sale for himself,” which they “estimated could be anywhere from ten to twenty thousand dollars given the market at that time.”
The parties agreed to additional changes on February 14, 2020, as follows:
[W]e decided to not split up our retirements -- my retirement, that, that whatever retirement vehicles we had in our name
we would keep. The rationale for that was twofold. One was there was significant debt I was taking on and that needed to be offset somewhere. So I’m taking on current debt for future cash flow. [Husband] was wanting to have more security now and being able to have either access through selling assets or not having to take on debt. And we -- at this point in time we -- I had also uncovered, you know, the $20,000 in cash withdrawals, and so that needed to be offset as well.
We also went over my pension projection. This was -- I’m able to run pension projections at work, and this one was using our separation date of July 6th of 2019 showing that -- at that point in time what my pension would be, and it was considerably less than what [Husband] had been earning on average. So there was definitely an ability for him to deal with his future cash flows.
On February 16, 2020, the changes had been made, so Wife and Husband decided to change the name to “Absolute Divorce with Consent Separation Agreement.”
Counsel for Wife then showed Wife an email from February 3, 2020, where she sent Husband a “Revised Collaborative Divorce Settlement Agreement” from her Comcast email. She asserted that this was only “one illustration of the sending of the agreement via email” because she lost access to that email address in 2021. Wife explained that she regained access to her email account after asking Husband’s counsel for assistance. Wife disputed Husband’s testimony that she “slapped” the Separation Agreement down on February 16, 2020. The day before, Husband had texted her, stating: “I will be ready to talk tomorrow.” The only change Husband requested was a provision that the parties would not publicly discuss the reasons for the divorce.
After the agreement was signed, Wife asked her attorney “to review the document and to then proceed with the divorce filings.” Wife’s attorney added “more legalese boilerplate [language] to the document.” She received the Agreement back from her attorney on February 26, 2020, and she and Husband reviewed it together when he returned home from work. The Agreement needed to be notarized, so both parties drove in separate cars to the notary located on Bay Ridge Avenue. Wife disputed Husband’s testimony that she followed him out of the office, blocked his car, or threatened him. She testified that she had never blackmailed Husband, nor had she coerced Husband to obtain his signature on the agreements. Wife stated that she had never had any phone contact with Husband’s supervisors at Prudential.
Wife testified about her communications with Husband’s parents in February 2020. On February 13, 2020, her intention was to make sure that his parents were aware of the breakdown of the marriage so that he could get emotional support from them. On February 26, 2020, she emailed Husband’s parents because she had found out that Husband was sending gift cards to women, and she felt that he was being conned and she was done helping him. She “wanted to make his parents aware in case they were willing to step in and help.”
During the first six weeks after the parties signed the
Agreement, Husband did not act like he was not going to honor the Agreement. Husband packed up his belongings, and the house was divided. The parties held a yard sale in early March, and Husband was “actively apartment hunting.” Husband also abided by terms of the Agreement, such as closing his bank account, separating his cell phone from the family plan, taking possession of the two Jeeps, and moving out of the marital home. Husband made some repairs on the marital home that were suggested by the realtor, which also was consistent with the Agreement.
Husband further abided by the Agreement by allowing Wife to become responsible for the mortgage, insurance, taxes, and related fees for the Vacation Property. Husband retained the household furnishings that they divided, as well as his “motor yacht.” Wife had “no indication that anything was wrong at that point.” To her knowledge, Husband did not have a history of mental health issues, but he had expressed “anger issues every now and then” and “a little anxiety, but nothing out of the norm.”
On cross-examination, counsel for Husband questioned Wife about her knowledge of Husband’s alleged mental health issues. She admitted that, in the February 13, 2020 letter she wrote to Husband’s parents, she wrote that Husband had “downward spirals of emotional instability since [she] was pregnant with [their son],” and that, after their son went to college, Husband “seemed to slip into depression.” Although she wrote in her letter that Husband experienced “emotional instability,” and that Husband was “very ill mentally,” she “wouldn’t call it that now” because she “was in quite a traumatic state at that point in [her] life” and “very emotional.”
Counsel for Husband then admitted into evidence a payroll statement for Wife showing an annual salary of $189,070 in 2020. Wife confirmed that she had served as an external auditor for the Per Jacobsson Foundation, fundraising chair for the Severn Sailing Association, and the treasurer of the Annapolis Junior League. Wife testified that, throughout their marriage, she and Husband completed their taxes together.
During closing argument, counsel for Husband argued that the Agreement should be overturned because there was unconscionability, nondisclosure, and undue influence. Husband would not have waived his right to receive part of Wife’s pension if she had fully disclosed all her financial assets prior to the execution of the Agreement. He asserted that Wife was the dominant person throughout the marriage because she controlled the finances, had a master’s degree and a CPA license, and she had worked as an auditor in the financial services industry. He argued that, at the time that the Agreement was executed, the parties had negotiated only selling their marital property and had not negotiated any “significant other assets,” such as Wife’s pension, retirement assets, or her salary. Wife had not shown Husband her W-2s, 1099s, or other bank statements prior to the execution of the Agreement. He reiterated that Mr. Goldberg’s assessment that Wife’s pension payment would be “a little over $11,000 per month” at her retirement was “unrebutted” and “un- contradicted.”8
Counsel for Husband argued that Wife’s finding of new documents that showed the party’s negotiations and communications about the Agreement after being “in litigation for three years” was suspect. He contended that there was no
evidence that Wife sent Husband the Agreement prior to the execution, and there was no evidence that the terms of the Agreement were negotiated other than selling the marital home.
Counsel next argued that Husband signed the Agreement under duress. Wife was “aware of and took advantage of” Husband’s mental state. Moreover, Wife blackmailed Husband into signing the Agreement by threatening to send his parents and his employer his communications with other women. Wife only sent Husband “the email with the mutual consent language” after she found out that he had consulted with an attorney because “she kn[ew] she bullied him” and that “the document [wasn’t] fair” because she “took advantage of his mental state.”
Counsel next argued that the court should overturn the Agreement because it was unconscionable due to Wife’s failure to disclose her pension to Husband and because Wife bullied him to sign under duress. Counsel contended that Wife was the superior spouse who had “taken care of the family finances in support of the family,” and given the income disparity, it was unconscionable that he would not receive some alimony.
Counsel argued that the Agreement had to be set aside.
Counsel for Wife first argued that the issue before the court was the validity of the settlement agreement executed on February 26, 2020. Any text messages after that date should not be given any weight. With respect to Husband’s allegation that he did not have the mental capacity to sign the Separation Agreement on February 16, 2020 or the Agreement on February 26, 2020, counsel asserted that this claim was “uncorroborated and self-serving.” Counsel argued that Husband failed to meet his burden to show incapacity, noting that Husband failed introduce “any expert opinion of any physician, psychiatrist, other qualified provider, any therapist of any kind, nor even a lay person opinion” that he “lacked the mental capacity to contract on February 16th and February 26th of 2020.”
Counsel argued that Husband did not meet the “burden of establishing that a confidential relationship existed by clear and convincing evidence.” He stated that the evidence made clear that Husband was not a dependent spouse. Rather, he was “a proven financial professional, selling and supporting complex financial offerings.”
Regarding unconscionability, counsel stated that Husband failed to show procedural and substantive unconscionability, both of which must be shown for a court to decline to enforce a contract. Counsel argued that Husband’s testimony was not believable, noting the inconsistency between his testimony that he met with the realtor to void the contract, but the realtor had no recollection of such a meeting with Husband. Counsel further commented on Husband’s pattern of untruthfulness, including the report by Dr. Turnquist, which attributed to Husband the statement that he earned a Bachelor of Arts in Business Administration, but Husband testified that he did not have such a degree. Because there was no evidence that the agreements executed on February 16 and 26, 2020, were unconscionable due to undue influence, coercion, or duress, the Agreement should be found to be valid and enforceable.
During rebuttal, Husband contended that the court should set aside the Agreement because Wife made misrepresentations that amounted to fraud. Moreover, Husband’s psychological evaluation was sufficient to establish that he was suffering from
mental incapacity when he signed both agreements. Counsel for Husband contended that the Agreement was both procedurally and substantially unconscionable because Wife was in control of the finances and did not fully disclose her full income or pension to Husband, despite taking responsibility for more of the marital debt. Wife’s bullying of Husband to sign both agreements also amounted to duress. Finally, counsel asserted that, even if the court did not find that there was “fraud, abuse, bullying, and blackmail,” it could still overturn the Agreement based on “inadequate disclosure” or “unconscionability.”
The circuit court issued an oral opinion from the bench, denying Husband’s motion to set aside the Agreement. As discussed in more detail, infra, the court held that there was no confidential relationship, unconscionability, or duress, and the parties’ February 16, 2020 Separation Agreement and February 26, 2020 Settlement Agreement were valid and enforceable. The court stated that the hearing sheet would serve as the order of the court.
IV.
Divorce Hearing
On April 17, 2023, the court held an uncontested divorce hearing. Counsel for Wife then asked the court to incorporate without merging the Marital Settlement Agreement in the divorce decree. Husband testified that he did not “agree that [he] entered into or agreed to the terms that are set forth in [the Agreement].”
The court stated that it would sign the judgment of divorce submitted by Husband. On April 17, 2023, the court issued an order granting Wife’s counter-complaint for absolute divorce and incorporating but not merging the Marital Settlement Agreement dated February 26, 2020. This appeal followed.
STANDARD OF REVIEW
The factual findings of a trial court in a divorce case are reviewed by the clearly erroneous standard. Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). A trial court’s factual findings are clearly erroneous when and if there is no competent and material evidence to support it in the record. Innerbichler v. Innerbichler, 132 Md. App. 207, 230, cert. denied, 361 Md. 232 (2000). We consider questions of law, however, under the de novo standard of review. Flanagan, 181 Md. App. at 521.
DISCUSSION
Husband challenges the parties’ Settlement Agreement on several grounds. Before turning to the specific contentions, we note that “separation agreements . . . are generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not contrary to public policy.” Turner v. Turner, 147 Md. App. 350, 403 (2002) (quoting Gordon v. Gordon, 342 Md. 294, 300-01 (1996)); see Md. Code Ann., Family Law (“FL”) § 8-101(a) (2019 Repl. Vol.) (“A husband and wife may make a valid and enforceable deed or agreement that relates to alimony, support, property rights, or personal rights.”). A separation agreement is a contract and “is subject to the same general rules governing other contracts.” Rauch v. McCall, 134 Md. App. 624, 637 (2000), cert. denied, 362 Md. 625 (2001).
“A postnuptial agreement is valid and enforceable, unless the agreement is unconscionable or the byproduct of fraud, duress,
mistake, or undue influence.” Lloyd v. Niceta, 485 Md. 422, 443 (2023). “[S]eparation agreements not disclosing on their face any injustice and inequity are presumptively valid and the burden to prove that their execution was caused by coercion, fraud or mistake is upon the party making the allegation.” Jackson v. Jackson, 14 Md. App. 263, 269 (1972). With that background, we turn to Husband’s specific contentions.
Confidential Relationship
Husband contends that he “was dominated by Wife throughout the marriage and that a confidential relationship existed between the parties,” and the court erred in concluding to the contrary. Wife contends that the circuit court “properly applied the law concluding there was no confidential relationship between the parties” because “Wife was not the dominant spouse during the parties’ marriage.”
A confidential relationship has been described as one “where one party has dominion over the other person, and the relationship is such that the person with greater influence is expected to act in the best interest of the other person.” Brass Metal Prods., Inc. v. E-J Enters., Inc., 189 Md. App. 310, 356 (2009). Maryland law does not presume the existence of a confidential relationship in transactions between husband and wife. Lasater v. Guttmann, 194 Md. App. 431, 459 (2010), cert. denied, 417 Md. 502 (2011). “Absent the presumption of a confidential relationship, Husband bears the burden of establishing that a confidential relationship existed by clear and convincing evidence.” Shih Ping Li v. Tzu Lee, 210 Md. App. 73, 110 (2013), aff’d, 437 Md. 47 (2014).
In Hale v. Hale, 74 Md. App. 555, 564, cert. denied, 313 Md. 30 (1988), this Court explained:
[T]he question of whether a confidential relationship exists between husband and wife [is] a question of fact. Among the various factors to be considered in determining whether a confidential relationship exists are the age, mental condition, education, business experience, state of health, and degree of dependence of the spouse in question. (quoting Bell v. Bell, 38 Md. App. 10, 14 (1977)).
A.
Circuit Court’s Ruling
In addressing whether a confidential relationship existed between the parties, the court noted that, in the context of a husband and wife, the existence of a confidential relationship is not presumed, but rather, it is an issue of fact for the court. The court noted that, “[a]mong the factors to be considered in determining whether a confidential relationship exists between spouses are the age, the mental condition, the education, the business experience, state of health, and degree of dependence upon the spouse -- of the spouse in question.”
The court found that Husband was in his middle 50s, and “he suffered, to some degree, from anxiety, from ADHD, from depression, [and] possible anger issues.” At one point, there was an indication of suicidal ideation. Husband also had high blood pressure and diabetes. Husband is a high school graduate, with some college education.
With respect to Husband’s employment, the court stated:
[H]e had been employed for a number of years in sales positions with Allstate and later Prudential, and had been continuously engaged during that time selling insurance and financial products to clients from his offices here in Anne Arundel County. As Counsel points out, he had at some times passed the Series 6 exam. And another time failed that later. He had passed the Series 65 exam. And that may, obviously, mean more to you all than it does to me, but I do know that there is some sophisticated level of study and preparation that goes into those things because those people who sell those financial products that are enabled by those exams do have a duty that they owe to their clients.
Addressing Husband’s level of dependence upon Wife, the court noted that “[a] confidential relationship can exist between spouses when one spouse is dominant [and] the other one is dependent.” The court found that the evidence demonstrated persuasively that Husband “was generally an independent person who did not rely entirely on [Wife] or any other particular person, for that matter, with regard to the sorts of decisions that are at issue in the negotiation of marital agreements that are the subject of this case.” The court noted that Husband had been in the business of selling insurance and other financial products for a substantial period of time. Husband “devoted significant time, and talent, and treasure to market, and cultivate, and maintain client relationships, and seems to have been very effective at doing that.” The court inferred from that evidence “a level of sophistication on the part of [Husband],” which led to the court’s conclusion that Husband was not dependent on Wife “within the meaning of confidential relationships.”
Although Wife generally managed the couple’s financial responsibilities, Husband was able to make a good income selling financial products, and he “was able to negotiate the purchase and financing of at least two automobiles and a 32-foot boat during the marriage without any assistance from his [W] ife.” Accordingly, the court found that there was not “a dominant dependent relationship between [Wife] and [Husband],” but rather, “the couple, like most couples, divided their labor in the execution of normal marital chores and duties according to their individual aptitudes.” Husband testified that he could have paid bills and done other things for himself, but he chose not to. The court found that there was not “reliable evidence that [] amounted to her controlling him.” The court acknowledged Husband’s mental health difficulties, but it found that these difficulties did not “put him in a dependent position, vis-à-vis, [Wife].”
The court found that the parties had discussed the division of their property due to the dissolution of the marriage for months prior to the execution of the February agreements. It rejected Husband’s assertion “that [Wife] confronted [Husband] like a bolt out of the blue with a take-it-or-leave-it agreement for the very first time on February 16, 2020.” The court stated: We have evidence that in December of 2019 he said, “If you want a divorce, ask for it.” So even if that was the first moment, I know that by that point -- by the time of the February 16th agreement, they had been discussing this for at least six weeks. And I will infer that it had been for some period of time before this.
While I have no doubt that what [Husband] heard on that
day was, sign this or I am going to tell your parents or your employer about what I found on your phone and in our bank records, I am convinced that [Wife’s] motive in sharing some of that information with [Husband’s] parents was more about letting them know that their son needed help than it was about exacting vengeance against him for betrayal of their marriage vows or blackmail, as it has been suggested.
Accordingly, the Court finds with respect to the agreements at issue in this case, [Husband] acted as an independent person who did not entirely rely on [Wife]. Thus, there was no confidential relationship between the parties and the execution of the February 16th and February 26th agreements.
B. Analysis
Husband acknowledges that the court addressed the requisite factors in its ruling, but he argues that the court did not give the evidence sufficient weight. Specifically, he contends that the court’s finding that he was not dependent on Wife was clearly erroneous.
We disagree. The record reflects that the court carefully reviewed the requisite factors. It noted Husband’s mental health issues, but it found that they did not “put him in a dependent position.” The court looked to Husband’s employment, and it found that there was a “level of sophistication” needed to pass the exams and to sell these complex financial instruments. In addition to his employment, Husband negotiated the purchase and financing of two automobiles and a boat during the marriage without any assistance from Wife. Husband and Wife “divided their labor in the execution of normal marital chores and duties according to their individual aptitudes.” Husband said he could have done those things, but he chose not to do them. The court also found that the parties had discussions and negotiations with respect to their property and how to allocate the marital debts. See Bell, 38 Md. App. at 13-14 (in a marital settlement agreement dispute, the Court affirmed the circuit court’s finding that no confidential relationship existed between husband and wife, noting that wife had negotiated several changes in the agreement).
Based on all the evidence, the court found that Husband acted as an independent person who did not rely entirely on Wife, and therefore, there was no confidential relationship between the parties. Based on the record, we cannot conclude that the circuit court’s factual findings in this regard were clearly erroneous.
II.
Disclosure of Financial Information
Husband next contends that Wife failed to disclose financial information to him and “concealed significant assets” prior to the execution of the agreements, and the court erred in not considering this evidence. Specifically, he contends that Wife did not disclose the value of her retirement accounts, including her pension, she refused to share her income or tax returns, and she did not include bank account balances in either of the agreements.
Wife contends that “the trial court correctly found [her] financial disclosure to Husband was sufficient due to Husband’s participation, his access to the parties’ bank accounts, financial details and the contents of the iterated drafts (that
included pension information) leading to the February 16, 2020 Agreement.” Wife argues that “exhaustive disclosure to Husband was provided.” She notes that the Proposal for a Collaborative Divorce, dated January 20, 2020, and introduced into evidence, provided that Wife had a pension and 50% of Wife’s pension payment was $4,560.98.
In Cannon v. Cannon, 384 Md. 537, 574 (2005), the Supreme Court of Maryland explained the standard for financial disclosure, as follows:
The purpose behind a requirement of disclosure or knowledge is “so that he or she who waives can know what it is he or she is waiving.” [Hartz v. Hartz, 248 Md. 47, 56-57(1967)]. If this is proven by the enforcing party and insufficiently rebutted by the attacking party, there can be no overreaching and the attacking party must resort to other common law contract defenses to attack the validity of the antenuptial agreement.
The court rejected Husband’s argument that Wife did not provide adequate disclosure. The court found that the parties had negotiated prior to the time the Agreement was signed. It noted that Husband filed his taxes jointly with Wife in 2019 and signed the tax return, affirming that the information was accurate, so he had “some knowledge of [Wife’s] income” prior to signing the Agreement. The court found that his testimony that he trusted Wife was “not a reason to believe that he was working with any less knowledge than he wanted to have.” With respect to Wife’s pension assets, although they were significantly more than Husband’s, she took on 85% of the marital debt and college tuition costs for the parties’ son, while Husband only took on 15% of the marital debt, which could explain the pension waiver.9
Although early documents showed a situation where Husband would receive up to $4,560.98 a month as half of Wife’s pension, the negotiations ultimately resulted in the February 16, 2020 Settlement Agreement, where the parties agreed that they would “keep their individual retirement accounts to date with no future benefit from either party” because Wife was “assuming household debt and commitments of $576,302.”10
The court noted that whether it was “a good deal” was not before the court. The court was within its discretion to accept the evidence by Wife that there was full disclosure and it did not abuse its discretion in rejecting Husband’s argument that Wife failed to sufficiently disclose assets prior to Husband’s signing of the Agreement.
III.
Unconscionability
Husband next argues that the Agreement was unconscionable. He asserts that the court erred in finding no procedural or substantive unconscionability.
Wife contends that “the trial court’s finding [that] the marital agreements are not unconscionable is correct.” She asserts that the court’s findings are “supported by iterations of the agreements reflecting the parties’ discussions, negotiations, and exchanges, including Wife’s agreement to accept 85% of the marital debt and sole responsibility for the parties’ son’s college costs and debts.”
A.
Circuit Court’s Ruling
With respect to the issue whether the Agreement was unconscionable, the court found that the parties had been discussing divorce for some time, and there was no procedural unconscionability. The court also found that there was no reliable evidence to suggest that the parties’ February 16 and February 26, 2020 agreements “were shockingly unfair, or unjust,” and accordingly, it “decline[d] to fin[d] substantive unconscionability in this case.”11 The court rejected Husband’s argument that the agreement distributed the marital estate in a way that would shock the conscience. With respect to the argument that the waiver of alimony was unconscionable, the court disagreed, noting that it could deny Husband alimony based on a finding that he was self-supporting.
B. Analysis
Unconscionability encompasses both procedural and substantive unconscionability. Walther v. Sovereign Bank, 386 Md. 412, 426-27 (2005). Accord Lloyd v. Niceta, 255 Md. App. 663, 684-86 (2022), aff’d, 255 Md. 422 (2023); Freedman v. Comcast Corp., 190 Md. App. 179, 207-09 (2010). “The burden of establishing the presence of both is on the party challenging the . . . agreement.” Lloyd, 255 Md. App. at 686 (quoting Stewart v. Stewart, 214 Md. App. 458, 478 (2013)). “Procedural unconscionability can be found when one party lacks meaningful choice in the formation of the contract; substantive unconscionability is found when the terms are ‘so one-sided as to shock the conscience of the court.”’ Id. at 685-86 (quoting Shih Ping Li, 210 Md. App. at 112).
Maryland courts can “void a separation agreement when its terms are so unjust and unfair as to be unconscionable.”
Williams v. Williams, 306 Md. 332, 342 (1986). “[A] basic aspect of unconscionability is that it must ‘shock the conscience’ of the court when it considers the terms and results at the time the contract is entered.” Cannon, 384 Md. at 580. “Although the question of whether a contract is unconscionable is a question of law and subject to de novo review, the factual findings of the trial court that inform its judgment are subject to the clearly erroneous standard.” Doyle v. Fin. Am., LLC, 173 Md. App. 370, 391 (2007); see Md. Rule 8-131(c). The court found that the parties had discussions regarding the divorce for some time, and there was no procedural unconscionability. The court further found that the Agreement was not “shockingly unfair or unjust,” and therefore, the court declined to find substantive unconscionability.
The record supports these findings. As indicated, the record supports the court’s findings that there were negotiations between the parties, and although Husband waived his right to Wife’s retirement funds, this could be explained by Wife’s agreement to assume 85% of the total marital debt. Wife “took the substantial financial burdens that [Husband] owed” while Husband “walked away with zero debt,” as well as the title of two vehicles that were already paid off. The court did not err in finding that the Agreement was not unconscionable.
IV. Duress
Husband contends that the court erred in rejecting his argument that he “signed the Agreements under duress,” asserting that
the court’s analysis was “woefully short and deficient on this important issue.” He argues that he had no meaningful choice whether to sign the Agreement because Wife bullied him with threats to inform his parents and employer about his interactions with other women online and his mental health challenges. Wife contends that “the trial court properly found the Marital Agreements were not the product of duress.” She argues that Husband failed to offer any corroboration for his claim of duress.
A. Circuit Court’s Ruling
In addressing Husband’s argument that he signed the agreements under duress, the court stated: [Husband] put on a lot of argument today about the text messages that were in evidence, about [Wife] belittling him through the words of -- with some, let’s just say, less than ideal language. That language, while I don’t want to approve of it, does not shock the Court, again, because this is often, unfortunately, how divorcing people communicate. Emotions are raw, feelings are hurt. Does it look good? No, it doesn't look good. Does it rise to duress? No, I don’t think so, even in considering the fact that [Husband] does have some mental health concerns, was struggling, I think, with some guilt of his own based on the conditions that existed at the time surrounding the dissolution of the marriage. Again, it doesn’t look good, but I don’t think it amounts to bullying.
I find that there was some horse trading. Again, back to that issue for a moment. While I acknowledge that [Wife’s] pension assets are -- add up to a little bit more than $3 million, or at least that is what we think at the time they were. And [Husband] had much less than that. She was taking on the marital residence, she was taking on the [Vacation P] roperty, she was taking on college debt for [the parties’ son] -- or college. I don’t know if it resulted in debt.
There was an apportionment of the martial debt or of debt, let’s just say, whereby [Wife], again, with the dominant income, at very least, took on 85 percent-ish of that debt. And [Husband] would have taken on 130,000 or about 15 percent of that debt. And I find that that is, obviously, a benefit to him and might explain an alimony waiver, a pension waiver, and what they did as far as their real property going forward.
Is the agreement a little bit one-side? Yes, I think it is. I mean, I am not sitting up here on an ivory tower where I can’t recognize that it is one-sided. But I believe that [Husband] may have negotiated better for himself had he gotten an attorney -- the right kind of attorney involved sooner. He may have negotiated more effectively for himself had he not been under the stress. I am not -- I am intentionally not calling it duress, but under the stress of his own actions, which I say, in large part, contributed to the estrangement of the parties.
Yes, [Wife] did say, why should I support you if you are in love with somebody else? And I don’t think that emotion -the emotion behind that is wrong or unfamiliar to any of us
B. Analysis
The test for duress includes “two elements: ‘(1) a wrongful act or threat by the opposite party to the transaction, . . . and (2) a state of mind in which the complaining party was overwhelmed by fear and precluded from using free will or judgment.’” Food Fair Stores, Inc. v. Joy, 283 Md. 205, 217 (1978) (quoting Plechner v. Widener College, Inc., 418 F. Supp. 1282, 1294 (E.D. Pa. 1976)).
As this Court has explained: Duress which permits avoidance of a contract consists of the use of coercion, the victim’s loss of the ability to act independently and the entry by the victim into the contract. 17 C.J.S. Contracts § 168 (1963). The burden of proving each and every one of these elements remains with the person seeking to set aside the contract.
Blum v. Blum, 59 Md. App. 584, 595 (1983). A finding of duress is reviewed for clear error. Bell, 38 Md. App. at 18.
Here, in addressing the claim of duress, the circuit court noted Husband’s arguments that Wife’s text messages to him were belittling. The court acknowledged that the language was “less than ideal,” but it noted that “this is often, unfortunately, how divorcing people communicate” when “[e]motions are raw, feelings are hurt.” The court found, however, that the text messages did not amount to bullying or “rise to duress.”
Based on the record, we cannot conclude that the circuit court’s factual findings in this regard were clearly erroneous.
V. Excluded Evidence
Husband’s final contention is that the “court erred in excluding evidence” of Wife’s “pattern[s] of abusive, threatening and bullying behavior[s]” throughout the course of litigation. Among the evidence he alleges was excluded was a poster stuck to his driveway that contained Husband’s inappropriate texts and pictures of women, a letter that Wife sent to a woman she thought was Husband’s girlfriend, and a phone call Wife allegedly had her lawyer make to a woman who was staying at Husband’s house to watch his dog.
Wife contends that “claims of materials that were excluded by the trial court [are] false.” She asserts that these items “were never offered by Husband as evidence at the hearing.”
Husband did not cite to pages of the record in his initial brief in support of his claim that evidence was improperly excluded, and he did not address in his reply brief Wife’s assertion that the materials were not introduced into evidence. It is not this Court’s job to search the record to find evidence in support of Husband’s claim. Ruffin Hotel Corp. of Maryland v. Gasper, 418 Md. 594, 618 (2011) (“[A]ppellate courts cannot be expected to either (1) search the record on appeal for facts that appear to support a party’s position, or (2) search for the law that is applicable to the issue presented.”). Husband states no valid claim for relief in this regard.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Husband also lists as a question whether the court erred “in concluding that Wife was not the dominant spouse in the parties’ relationship.” Because that is part of the analysis involved in the issue whether there was a confidential relationship, we combine the two questions.
2 Under the “Retirement Savings” section of the February 16, 2020 Separation Agreement, it stated:
Both Parties will reach full SS retirement age at 67 – 13 years of earning potential.
As both parties are fully employed, both have access and means to accumulate retirement savings over the next 13 years.
Both parties agree to keep their individual retirement savings accounts to date with no future benefit from either party as [Wife] is assuming household debt and commitments of $576,302 based on:
[Wife] assumes 75% of existing marital debt; [Wife] commits to support their son until college graduation at an estimated cost of at least $94,000 plus repay student loans of $20,041 over the next three years; and A gift of $32,000 from [Wife’s] father to purchase a new car that was used to cover household bills during 2019 when [Husband’s] income declined thus leaving her with a note on the Tiguan[;]
$38,000 was taken out of college savings in the last 8 months to cover monthly expenses due to [Husband’s] drop-in income – See attached[;]
In the past 24 months [Husband] has withdrawn $19,501 in cash from bank accounts with no support for how the cash was spent; however, there is evidence of illicit sexting that included requests for cash gift cards[;]
Sometime between May and July 2019, [Husband] sent a laptop to an online chat account.
3 With respect to “Retirement Assets,” the Agreement stated that the parties waived any legal right to any
retirement account, including a pension plan, and the parties had “received full disclosure of any and all pension, 401K, annuity, and profit sharing plans for each party and have received full disclosure from the other.”
4 Husband explained that “trails” come from commissions, such as “life insurance and mutual funds and annuities [that] have some partial income based on the residual.”
5 A Certified Public Accountant (“CPA”) is “[a]n accountant who has sustained the statutory and administrative requirements to be registered or licensed as a public accountant.” CPA, BLACK’S LAW DICTIONARY (11th ed. 2019).
6 Even though he signed the Separation Agreement, Wife still sent some of his texts and pictures to his parents that evening.
7 Husband subsequently testified that the house was in the process of foreclosure.
8 Mr. Goldberg testified that Wife’s present value of her pension was $2,776,44, which amounted to $9,251.95 per month “based on the statement that was available at the time.”
9 As Wife asserts, the evidence in the record shows that the parties negotiated with respect to retirement assets.
10 Husband contends that the court should have disregarded the documents showing prior negotiations
because Wife found them during the hearings. He asserts that her testimony that they showed prior negotiations was not credible. The credibility of a witness, however, is for the trial court, not the appellate court. See Smith v. State, 415 Md. 174, 185 (2010) (“Because the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.”).
11 The court then found that neither of the agreements were “adhesion contracts,” which “exists when the parties are of such disproportionate bargaining power, that the party of the weaker bargaining strength could not have negotiated for variations in the terms of the adhesion contract.” The contracts in this case, however, were not adhesion contracts because they were the product of discussion and negotiation by the parties, and “modifications made along the way.” Whether the end result was a good deal was not the issue.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s change in legal custody regarding the minor child. Although the mother argued that father’s attorney erred in his preparation of the proposed custody order, none of the provisions contained therein deviated substantively from the court’s oral ruling, and all were within the court’s authority to order.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
did not live far from each other. By agreement, no child support was calculated during the mediation.
The Superior Court of the District of Columbia found that the agreement was in the best interest of the child and ordered that it be deemed a final order that addressed all the parties’ issues relating to child custody, visitation, and child support. The superior court incorporated and merged the agreement into its final order.
Notwithstanding the terms of the custody order, Mother and Father “honestly never followed the order,” by mutual agreement. From approximately 2015 through mid- 2022, D. spent most of his time with Father, who at some point during that time period moved to Virginia. Before the start of the 2022/23 school year, however, Mother, at her request and with Father’s agreement, obtained primary physical custody of D., and D. had lived with her in Prince George’s County since then “more or less full time.”
Appellant Diana Johnson (“Mother”) and appellee Omar Hargrove (“Father”) each moved to modify a 2015 custody order, which had granted them joint legal custody and alternating two-week periods of physical custody of their minor child. Following a hearing, the Circuit Court for Prince George’s County found no material change of circumstances to warrant a change in physical custody but did find a material change of circumstances to warrant a change in legal custody, from joint legal custody to joint legal custody with tie-breaking authority to Mother on issues relating to religion and to Father as to all other decisions.
Mother, pro se, noted an appeal of the circuit court’s order, asking us to consider whether the circuit court erred or abused its discretion in entering a proposed order prepared by Father’s attorney, when, in her view, the proposed order advanced Father’s interests and did not accurately reflect the facts as presented at the custody modification hearing.1 For the reasons that follow, we affirm the order of the circuit court.
FACTS AND LEGAL PROCEEDINGS
Mother and Father, who never married, had a son, D., in 2012.2 Following mediation in Washington, D.C., in April 2015, Mother and Father reached a negotiated agreement regarding custody of D., by which they would share joint legal custody of the child, with each parent to have physical custody of him for alternating two-week periods. At the time, Mother and Father considered the arrangement practical because D. was not yet school-aged, and the parents
In April 2023, in case Johnson v. Hargrove, No. C-16FM-23-003109 (Md. Cir. Ct. Montgomery County Nov. 22, 2023), Mother petitioned for enforcement of the D.C. custody order and for contempt, after Father removed D. from his school during Mother’s period of custody and purportedly refused to return him to Mother’s home.3 Mother also moved for sole custody of D., with visitation with Father. Following a hearing on April 26, 2023, the circuit court granted Mother temporary custody until further order by the court and issued an order requiring Father to show cause why Mother should not retain temporary custody.
In May 2023, Father filed his own motion to modify custody, in case Johnson v. Hargrove, No. C-16-FM-23-003843 (Md. Cir. Ct. Montgomery County Nov. 3, 2023), seeking sole custody of D., with periodic, supervised visitation with Mother.4 Father asserted that D. had lived with him for “85% of his life,” and Father believed that D. preferred living with him, “where his best interests are a priority.” Father further requested that Mother be ordered to pay him child support.
Father requested an emergency hearing on the matter of custody, stating that: Mother abused D. and had cut off his communication with Father; D. did not feel safe in Mother’s home; and D. felt like a burden to Mother’s family. Following a hearing on May 24, 2023, the circuit court, finding that the matter was not deemed an emergency, denied the motion and ordered the case to proceed in due course.
The circuit court held a merits hearing on Mother’s and Father’s competing motions on July 3, 2023.
In his opening statement, Mother’s attorney explained that in April 2023, Father had removed D. from Prince George’s
County and enrolled him in school in Virginia, without Mother’s permission. And, since the filing of his custody modification motion, Father had been harassing Mother with unfounded petitions for protective order.
Mother, counsel continued, believed Father should be held in contempt for disregarding the prevailing D.C. custody order. Mother further sought a modification of that custody order, asking for primary physical and sole legal custody (or at least a tie- breaking provision) of D. Father’s attorney explained in his opening statement that for the first eight years of his life, D. had lived with Father, visiting with Mother sporadically, notwithstanding the D.C. custody order. Since 2022, when D. began living with Mother, Mother had not always been available to the child, returning him to Father “for an extended period of time” when she had elective cosmetic surgery, for example.
Mother and Father had adequately co-parented until April 2023, when Mother said she wanted to have D. baptized, and Father disagreed because D. had not had enough of a religious education to be able to make a knowledgeable decision about baptism. According to Father, counsel concluded, Mother then became angry and threatened to cut off D.’s contact with Father and to punish him physically.
The circuit court then questioned why a modification of custody was required, rather than just a ruling about which party would have decision-making authority because, given the distance between the parents’ homes, “whoever decides where the child goes to school is going to have the child.” In other words, the court continued, “the only issue here is who needs to make the decision regarding where this child is going to go to school.” The court noted that the prevailing two-week alternating schedule would be better suited to summer breaks. Mother testified that when it became apparent that D. was not doing well in school while in Father’s custody, she and Father agreed that D. would live with her during the 2022/23 school year. In April 2023, however, Father removed D. from his Prince George’s County school and registered him at a Virginia school without her knowledge or permission; this occurred around the same time Father and Mother were disagreeing about having D. baptized.5 As a result, Mother notified the police, who suggested she petition for an emergency custody order. D. was returned to Mother after he had attended about six school days in Virginia.6 Since then, Father had filed three protective orders against her, but only one was granted, pendente lite, prior to a July 2023 hearing that had not yet occurred. Mother did not believe she and Father were effective at co-parenting D., particularly after Father had made false allegations against her about abuse. Moreover, she had provided D.’s health insurance since his birth, and she had made the majority of decisions about his care and upbringing. Prior to the change to her physical custody, Mother said she had picked D. up from Father’s home every weekend, and the child had spent his summers with her. Mother acknowledged that she physically disciplined D., but she said Father had never indicated a problem with that parenting choice.7 Mother further acknowledged that during a recent trip she had taken to Jamaica, D. had not attended school for approximately one week because her older son,
who was supposed to take him, had not done so.
Father testified that D. had lived primarily with him from 2016 until approximately July 2022. He asserted that he had only agreed to let D. move in with Mother at the start of the 2022/23 school year because one of her other sons had died, and Mother said she wanted to spend more time with D. Nonetheless, D. had expressed a desire to live with Father.8
Father argued that it was in D.’s best interest to live with him because he put his children first, whereas Mother often left D. home alone without adequate food and interfered with D.’s communication with Father. Father believed himself to be the better parent to make education decisions for D. because he had been doing so for most of the child’s life, although he acknowledged that D. did not do particularly well in school while living with him.
Regarding the parents’ disagreement about the baptism, Father stated that he had not intended to interfere with the event but that he had picked D. up on a Friday and was not inclined to drive him back to Maryland the next day to have the child at Mother’s in time for the Sunday baptism. Father told Mother she was free to come get D., but Mother declined and began threatening Father. That was when, and why, Father had enrolled D. in school in Virginia.
The circuit court did not find any willful violation of the D.C. custody order by either party, and, therefore, denied Mother’s petition for contempt. The court found Father’s testimony credible that he had been the primary decision maker and caretaker of D. until Mother asked for more access after the death of her older son. The court further found that Mother, although happy with D.’s then-current school in Maryland, was not opposed to the Virginia school in which Father had enrolled D. The court added that the child had been “yanked back and forth between schools . . . due to conflict between the parties,” but that much of that frustration could be alleviated by giving one of the parents tie-breaking authority over decisions relating to D.
The prevailing D.C. custody agreement essentially provided a 50/50 split in physical custody between the parents, the court continued, but the parents had agreed to deviations from the agreement, and the court “[didn’t] want to disturb that. So long as this child is in school, obviously, you can’t comply with the order. But when the child is outside of school, then you comply with whatever it is in that order that you two agreed to.” To clarify, Father’s attorney added, “that means that nine months out of the year, mom will be on an every other weekend visitation schedule, which will give her about 4.3 [nights] . . . per month for nine months.”
Considering the guiding factors in determining the best interest of the child in a custody matter,9 the court did not find a material change of circumstances to warrant a change in physical custody because the parties had agreed to the terms of physical custody and to deviations from the D.C. agreement. Because Mother and Father were at an impasse about decisions regarding schooling and were unable to communicate effectively, however, the court found a material change of circumstances to warrant a change in legal custody. The court therefore awarded Mother and Father joint legal custody, but with tie-breaking authority to Father because the
court found Father to have a better relationship with D. and because D. had stated a strong desire to live with Father. The court gave Mother tie-breaking authority on issues of religion. After discussion about the number of overnights each parent would have with the child (the court settled on 105 overnights with Mother) and each parent’s income, the circuit court set Mother’s child support obligation at $1,219 per month (that amount credited Mother with her payment of D.’s health insurance premiums). The court then asked Father’s attorney to prepare a proposed order for signature. Mother’s attorney did not object.
Following the hearing, Father’s attorney submitted a proposed written order to the circuit court. Mother’s attorney moved to strike the proposed order, asserting that Father’s attorney had made erroneous additions or representations, which were non- reflective of the court’s oral ruling. Father countered that the motion was premature, as the order had been merely proposed and had not been signed by the circuit court. Moreover, the provisions about which Mother complained were statutory in nature and proper in any event. The circuit court denied Mother’s motion. In its written custody and support order, the circuit court granted Mother’s request to register the 2015 D.C. Superior Court custody order. The court further ordered that Mother and Father would have joint legal custody of D., with Mother to have tie-breaking authority on issues of religion and Father to have tie-breaking authority on all other issues, including where to enroll D. in school. The court ordered that physical custody would remain the same as set forth in the 2015 custody, but when the parents could not follow the custody schedule “due to significant distance between them and the child’s school location, the child shall remain with the parent closest to the school the child attends on all school days.” The circuit court’s order also set forth a specific holiday schedule that deviated from the D.C. custody order. The court further ordered Mother to pay Father child support in the amount of $1,219 per month, effective June 1, 2023, through a wage withholding order. Mother moved for a new trial and requested the exercise of the court’s revisory power in relation to the order. Mother claimed that because the court had made a finding that neither party had abused D., it had no factual predicate to change custody from Mother to Father. The circuit court made further errors of law, Mother continued, when it did not permit the parties to undertake closing arguments to address case law on the best interest of the child standard. Finally, Mother argued that the circuit court was biased against her and had prejudged the matter before hearing all the evidence. The court denied Mother’s motion by order entered on August 10, 2023. Mother, pro se, filed a timely notice of appeal.
DISCUSSION
In her informal brief, Mother argues that, after the circuit court requested that Father’s attorney prepare the proposed order on the custody modification, his counsel “disregarded so many facts and evidence within the case” and “drafted the order on his own terms [and] added verbiage contrary to
a foreign custody order that was submitted for enforcement of contempt.” In Mother’s view, Father’s attorney’s proposed order prejudiced both her and “the proper administration of [j] ustice” and served to “advance the interest of his client.”
In support of this argument, Mother points to what she claims are factual discrepancies and “false testimony” put forth by Father and his attorney at the custody modification hearing, including the amount of time D. had resided with each parent and Father’s asserted custody of his two daughters when only one was in his care. Mother further avers that Father’s attorney intentionally presented the proposed order to a judge other than the one who presided over the hearing, thereby deceiving the hearing judge “without consideration to the best interest of [her] child.”
Father did not file an appellate brief.
I. STANDARD OF REVIEW
In considering a motion to modify custody, the circuit court must engage in a two- step process. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). First, the court must determine whether there has been a material change in circumstances, which is a change that affects the welfare of the child. Id. If such a change is found, “‘the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.’” Id. (quoting McMahon v. Piazze, 162 Md. App. 588, 594 (2005)). “The light that guides the trial court in its determination, and in our review, is the best interest of the child standard, which is always determinative in child custody disputes.” Santo v. Santo, 448 Md. 620, 626 (2016) (cleaned up).
When reviewing a circuit court’s ruling in child custody cases, we utilize three interrelated standards:
“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 sound 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.” Kadish v. Kadish, 254 Md. App. 467, 502 (2022) (quoting In re Yve S., 373 Md. 551, 586 (2003)).
II. ANALYSIS
To the extent that Mother argues that Father’s attorney erred in his preparation of the proposed custody order, we restate: [O]ne of the most fundamental tenets of appellate review: Only a judge can commit error. Lawyers do not commit error. Witnesses do not commit error. Jurors do not commit error. The Fates do not commit error. Only the judge can commit error, either by failing to rule or by ruling erroneously when called upon, by counsel or occasionally by circumstances, to make a ruling.
DeLuca v. State, 78 Md. App. 395, 397-98 (1989). That is because “‘error’ is a precise term of art in the appellate context.” Id. at
398 (quoting Ball v. State, 57 Md. App. 338, 359 (1984)). Trial attorneys “‘cannot, by definition, commit error; their conduct can do no more than serve as the predicate for possible judicial error.’” Id. (quoting Ball, 57 Md. App. at 359). Our inquiry, therefore, will focus not upon whether Father’s attorney acted inappropriately in drafting the proposed custody modification order, but upon whether the circuit court committed reversible error in entering the proposed order. And, upon consideration of Mother’s arguments as set forth in her brief, we perceive no such error on the part of the circuit court.
Mother claims that Father presented factually incorrect evidence at the custody modification hearing, which affected the court’s ruling, but we point out that both Mother and Father were represented ably by counsel, and each parent testified at length in relation to her or his custody modification request. To the extent that Mother now avers that the court accepted factually inaccurate statements from Father and his attorney—such as that a child abuse investigation was pending when it had been ruled out in June 2023, asserting that D. had spent most of his life with Father when it was “impossible” for Father to have had D. for eight years, and stating that Father had custody of both his daughters when he later testified that only one daughter lived with him—we respond that she was given every opportunity to adduce her own evidence and cross-examine Father vigorously on his testimony. And, despite Mother’s claims of the circuit court’s many instances of disregard for the “facts,” it was precisely the role of the court as fact-finder to consider the testimony presented and determine whose evidence was the more credible. As we explained in Yacko v. Mitchell, 249 Md. App. 640, 679 (2021): It is well-established in Maryland that when weighing the credibility of witnesses and resolving conflicts in the evidence, the fact-finder has the discretion to decide which evidence to credit and which to reject. The fact finder may believe or disbelieve, credit or disregard, any evidence introduced, and a reviewing court may not decide on appeal how much weight must be given to each item of evidence. We accord significant deference to the circuit court’s factual findings and limit our analysis to whether competent evidence supports the court’s findings. (cleaned up).
Moreover, the alleged factual discrepancies Mother points to were unlikely to have affected the court’s ruling on what it deemed the sole issue before it—where D. would attend school. On that issue, Mother agreed that D. had spent a good portion of his life in Father’s care, that D. preferred to live with Father, and that she had no problem with the Virginia school D. would attend if D. lived with Father. Mother’s argument appears to center more on her dissatisfaction with the court’s ultimate ruling that, in practice, gave Father physical custody of D. during the school year, than on any legitimate error made by the court in its fact-finding or ruling. We find no clear error in the court’s fact-finding.10 At the close of the hearing, the court asked Father’s attorney to prepare a proposed order.11 Counsel did so, but Mother moved to strike the proposed order, on the ground that it
added representations that were not reflective of the court’s oral ruling on the custody modification. The court denied the motion and entered the order as proposed by Father’s attorney. Mother continues to assert that the order, prepared by Father’s attorney, prejudiced her and advanced Father’s interests. We disagree.
Mother, in her brief, does not specify in what manner Father’s attorney’s proposed order deviates from the court’s oral ruling, but in her motion to strike the proposed order, submitted through counsel, the purported “erroneous additions or representations” in the proposed order all related to the child support provisions, as follows:
• “That th[e] [circuit court] Ordered [Mother]’s child support to be $1,090.00 per month, not $1,219.00.”
This assertion is demonstrably false. The court, after calculating child support based on Mother’s and Father’s asserted income and Mother’s credit for the payment of D.’s health insurance premiums, stated, “So I’m showing Mom’s child support is 1,219.” Father’s attorney agreed, “That’s what I have as well, Your Honor.” Neither Mother nor her attorney responded.
• “That th[e] [circuit court] never made a ruling of arrearages in this matter, but [Father]’s Counsel included language as if it was.”
This is not an accurate statement. The order makes no mention of an arrearage, except to the extent that it imposed child support beginning on June 1, 2023, which was the first full month following Father’s May 24, 2023, petition for modification of custody and child support.
• “That [Father]’s Counsel’s Proposed Order included child support to begin starting June 1, 2023, prior to the parties’ hearing. That no such determination was ever placed on the record.”
Father made his request for child support on May 24, 2023, and, pursuant to Md. Code, § 12-101(a)(3) of the Family Law Article (“FL”), “the court may award child support for a period from the filing of the pleading that requests child support.”
• “That [Father]’s Counsel’s Proposed Order included language for a Wage Withholding Order, but no such ruling or request was granted.”
Once a child support award is made, the parent to whom it is awarded may request that the sum be paid through an earnings withholding, and, pursuant to FL § 10-121(a), “[a]ny order under this Part III of this subtitle[, Child and Spousal SupportEarnings Withholding,] that is passed on or after July 1, 1985 shall constitute an immediate and continuing withholding order on all earnings of the obligor that are due on or after the date of the support order.”
Assuming that these are the arguments Mother continues to assert in her appeal, we find no error on the part of the circuit court in accepting and entering Father’s proposed order. None of the provisions contained therein deviate substantively from the court’s oral ruling, and all were within the court’s authority to order.
Finally, Mother appears to argue error or abuse of discretion in the fact that a judge other than the hearing judge signed the proposed order. In her view, Father purposely submitted the order to another judge to advance his own interests.
Indeed, Judge Judy Woodall conducted the custody modification hearing, while Judge April Ademiluyi entered the written order on behalf of the court. It is unlikely, however, that Father submitted the proposed order to a particular judge. It is more likely that he uploaded the proposed order to MDEC, Maryland’s electronic filing system, as required. And, while Judge Woodall heard argument on the parents’ custody
modification motions on July 3, 2023, Judge Ademiluyi presided over the off-the-record disposition hearing on July 19, 2023, which Mother’s attorney declined to attend. There is nothing untoward in Judge Ademiluyi signing the order that came before her at disposition.
ORDER OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 An interlocutory order depriving a parent of an important decision-making right with respect to the parent’s child can be appealable under Md. Code, § 12-303(3)(x) of the Courts & Judicial Proceedings Article. In re K.L., 252 Md. App. 148, 183 (2021).
2 Mother had five other sons, and Father also had two daughters.
3 In a District Court for Prince George’s County petition for protective order, Father alleged that he had picked D. up from school because Mother had cut off his communication with the child and threatened to beat D. if he contacted Father. The court denied the petition on the ground that Father did not meet his burden of proof. Father apparently also filed two petitions for protective order in Virginia, which were denied.
4 By order entered June 20, 2023, the circuit court consolidated cases Johnson v. Hargrove, Nos. C-16-FM-23-003109 and C-16FM-23-003843, (Md. Cir. Ct. Montgomery County Nov. 2023).
5 Father asserted that he did not have a problem with D. being baptized, but he wanted to make sure it was D.’s decision and that the child understood what baptism entailed. Mother said she did not believe she was required to come to an agreement
with Father about religious decisions.
6 According to Mother, D.’s school grades were better when he was living with her and attending Maryland schools, although she acknowledged she liked the school D. had attended briefly in Virginia.
7 Father denied using physical discipline with D.
8 Mother agreed that D. “would do whatever it take[s] to be with his dad[.]”
9 For the non-exclusive factors a court should consider in its best interest analysis in a custody matter, see Taylor v. Taylor, 306 Md. 290, 304-11 (1986), and Montgomery County Dep’t of Soc. Services v. Sanders, 38 Md. App. 406, 420 (1978).
10 Mother does not, in her brief, make any specific argument how, or even that, the circuit court actually abused its discretion in modifying custody to give Father tie- breaking authority in all matters other than religion. Had she done so, we would have found no abuse of discretion, generally for the reasons as set forth by the court in its oral ruling.
11 The court did not request a consent order by both parties.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to quash subpoenas issued by the husband to two senior executives of a company where the wife worked. Although the non-party subpoena recipients argued the subpoenas should have been directed to the company, the record showed they were probably the only persons with sufficient knowledge to respond to them.
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.
OVG’s Chairman and Chief Executive Officer. Appellant Bodie is President of Business Development and also Mr. Leiweke’s daughter. Appellants inform us that OVG employs thousands of people around the world, one of whom is Ms. Bernstein.
On April 6, 2023, counsel for the husband filed two identical subpoenas, one addressed to Leiweke and one addressed to Bodie, seeking 17 categories of documents including pay stubs and other documents that relate to Ms. Bernstein’s work schedule and hours worked since 2019, her compensation, compensation structure, salary, income, bonuses, and fringe benefits since 2019, and documents pertaining to the value of OVG. On appellants’ motion, the court struck the three requests relating to the value of OVG but denied all other relief, which is what led to this appeal by Leiweke and Bodie. Appellants make two basic complaints: (1) that the subpoenas are overbroad and impose an undue burden on them, and (2) the subpoenas should have been directed at OVG, Ms. Bernstein’s employer, not them.
This is a divorce case, but the only issue before us is a discovery dispute – whether the Circuit Court for Montgomery County erred in declining to quash certain discovery subpoenas issued on behalf of the husband and served upon two co-employees of the wife’s corporate employer who had supervisory authority over her and had knowledge of her duties, compensation, and work schedule. In a protective order, the court did quash three document requests but declined to strike the others. The two co-employees, Timothy Leiweke and Francesca Bodie, appellants here, complain that (1) the document requests were far too broad and onerous and (2) they should have been directed to the wife’s corporate employer Oak View Group, LLC (hereafter OVG) rather than the two coemployees.
Some background is necessary. The parties – Craig Bernstein [hereinafter appellee] and Randi Bernstein [hereinafter Ms. Bernstein] were married in 2011. They have two children, one 12 years old, one nine years old. The parents separated in January 2023, and both of them have filed for divorce. The children are with the mother (Ms. Bernstein). Most of the property issues were resolved by prenuptial and postnuptial agreements, but several issues remain, including child custody, child support and visitation, any monetary award, the disposition of some personal property, and some retirement issues.
Ms. Bernstein is the Senior Vice President and General Counsel to the Global Venue and Business Development unit of OVG which, we are informed by appellants, is the largest developer of sports and live entertainment venues in the world. Appellant Leiweke is
As a prelude to their argument, appellants point out, correctly, that a ruling on a motion to quash a subpoena is reviewed for whether the ruling constitutes an abuse of the court’s discretion, which has been defined in several ways but generally as existing when “no reasonable person would take the view adopted by the court.” Metheny v. State, 359 Md. 576, 604 (2000); Floyd v. Balt. City Council, 241 Md. App. 199, 208 (2019).
With respect to overbreadth, appellants cite cases holding that a subpoena is unduly burdensome if it is overbroad, seeks information irrelevant to the proceeding, or is procurable by other means. Their point seems to be that the pleadings in the case deal with personal family matters – support issues, divorce matters –in which appellants, as nonparty individuals, have no interest but seek discovery of not only every document received or created by them but also all documents received or created by Ms. Bernstein during her employment with OVG. Those kinds of documents, they argue, should be sought from Ms. Bernstein, not from them. Appellee responds that he tried to get that information from Ms. Bernstein but was thwarted by her attorney who claimed that she was not authorized to provide it. OVG, he added, filed a separate action in Federal court to preclude him from accessing information related to her compensation.
According to appellee, OVG, Ms. Bernstein’s employer, is the largest developer of sports and entertainment venues in the world; it employs thousands of people throughout the world, and Leiweke and Bodie are “two of its most senior executives.” He argues that they have the resources to maintain protracted litigation and have engaged in an “unrelenting game” to obstruct
the dissemination of Ms. Bernstein’s compensation, benefits and work hours.
We have, in the record extract, the relevant pleadings, various motions, the subpoenas, the court’s final order, and ten blank pages. There is no indication in those documents that the court ever held a hearing in this case, nor has any transcript of a hearing been filed. The documents (except for the blank pages) speak for themselves, but appellants’ allegations of burden or why, as the direct supervisors of Ms. Bernstein, they would not be the most knowledgeable representatives of OVG to respond to the discovery requests are set forth only in their brief.
Appellants’ only response, in their brief, is that even if the Court credits those assertions. that information “can be gleaned from other sources through less burdensome means.” They do not identify any other source.
On the record before us, it is abundantly clear that Leiweke and Bodie are the proper persons to respond to the subpoenas and probably, based on the record before us, they are the only persons with sufficient knowledge to respond to them.
Appellee has alleged that Leiweke and Bodie signed Ms. Bernstein’s employment contracts, that Ms. Bernstein informed him that they had conversations with her regarding her compensation, annual bonuses, and deferred compensation, and that she had deleted electronic correspondence from them regarding her compensation. None of that has been denied by appellants, and none of it appears to have been tested by evidence to the contrary.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of the father’s motion to reconsider, after he failed to adhere to filing requirements for in banc review. Although the father argued that the minor child suffered prejudice from the denial, there were no allegations as to specific harm that the minor child incurred because of the court’s decision.
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..
primary physical custody to Mother, and an access schedule for paternal visitation. The Consent Order further provided that if Mother decides to relocate from the State of Maryland, “she will notify Plaintiff/Father thirty (30) days in advance of her intention to do so.”
In the instant appeal, the Appellant, Chris DeLeon (“Father”) asks us to reconsider his Notice for In Banc Review, which was denied by the Circuit Court for Montgomery County after Appellant did not comply with Md. Rule 2-551(c). He argues that he was entitled to an in banc review of the court’s decision to grant in part Appellee, Brandey Pruso’s (“Mother”) Motion to Dismiss Appellant’s Motion to Modify Custody. In bringing this appeal, Appellant presents one issue for appellate review, which we have rephrased: Did the circuit court err by denying Appellant’s Motion for Reconsideration after the Appellant failed to timely file his Memorandum for In Banc Review?1
For the reasons outlined infra, we affirm the decision of the court to deny the Motion to Reconsider.
FACTUAL & PROCEDURAL BACKGROUND
The parties in this appeal are the parents of a minor child, born on May 12, 2014. On July 15, 2014, Appellant filed a Complaint for Emergency Custody in the Circuit Court for Montgomery County. On that same day, the court awarded him emergency custody of his son. The next day, Appellee filed her own Emergency Motion for Immediate Custody. The court granted her motion in part and awarded the parties joint legal custody and instituted an access schedule for Father. Following further litigation in the circuit court, the parties reached a Consent Custody and Child Support Order on January 27, 2015, which provided sole legal custody of the minor child to Mother,
On May 1, 2019, Mother filed a Line of her Notice of Intent to Relocate to Chicago on June 8, 2019. Father filed his Opposition to Mother’s Notice of Intent to Relocate and Request for Stay and Request for Hearing, which was denied by the court. Next, Father filed multiple Motions to Modify Custody and a hearing on the Motion was set. The parties jointly stipulated to dismiss the custody hearing on December 7, 2020. Subsequently, Father filed another Motion to Modify Custody, Visitation, Child Support and Request for Hearing on August 17, 2021. This Motion closely resembled the previous Motions to Modify that Father had filed. Father alleged that there had been a material change in circumstances to warrant a modification of the custodial arrangement because he had not seen his son for seven years. He also included allegations of intimidation during the pendency of the ongoing custody case. In response, Mother filed a Motion to Dismiss [Father]’s Motion to Modify Custody. In her Motion to Dismiss, Mother argues that Father’s Motion to Modify should be dismissed because Maryland does not have home state jurisdiction over the minor child, there has been no material change in circumstances, and the motion fails to state a claim upon which relief can be granted. Father filed an Amended Opposition to the Motion to Dismiss on December 18, 2021. The court held a hearing on the Motion to Dismiss on January 14, 2022. The court granted the Motion to Dismiss in part, but denied it as to child support and the court dismissed the Motion to Modify as to all custody and visitation issues. The court reasoned that “Maryland is not the home state for the minor child” and “[t]he child and one parent no longer live in the state and that substantial evidence is not available in the state concerning the child’s care, protection, training, and personal relationships.” The court continued that Father’s Motion to Modify was “deficient based upon…the conclusory allegations made in the claims” and “[h]e sets forth no facts as to a material change in circumstances affecting the welfare of the child and a modification of custody can only occur if there has been a material change in circumstances affecting the welfare of the child.”
Following the decision by the court, Father filed a Notice for In Banc Review on January 18, 2022. The court appointed the three-judge panel on March 8, 2022.2 On April 6, 2022, the court sua sponte dismissed Father’s Notice for In Banc Review for “failure to comply with Md. Rule 2-551(c).” The Order was
dated April 6 but entered by the Clerk’s Office for Montgomery County on April 8, 2022. On April 8, Mother filed a Motion to Dismiss Plaintiff’s In Banc Review, citing the failure of Father to file a Memorandum pursuant to Rule 2-551(c). Father filed his Memorandum for In Banc Review on April 11, 2022. Father filed his Opposition to Mother’s Motion to Dismiss In Banc Review on April 18, 2022, and requested that the court not dismiss the in banc review. On April 20, 2022, the court granted the Motion to Dismiss and again dismissed Father’s Notice for In Banc Review without prejudice.
On May 3, 2022, the court entered a Child Support Consent Order that resolved all issues in dispute between the parties. In that Order, the parties agreed that “no further custody related issues, including but not limited to, contempt, enforcement, or modification will be filed in Maryland, unless home state jurisdiction transfers back to Maryland.” Approximately three months later, on July 12, 2022, Father filed a Motion to Reset the In Banc Hearing. The court denied the Motion to Reset on August 2, 2022. Father filed an Amended Motion to Reset the In Banc Hearing and a Motion to Reconsider, on July 27, 2022, and August 24, 2022, respectively. Mother filed a Motion to Dismiss the Motion for Reconsideration on September 8, 2022. On September 27, 2022, the court denied Father’s Motion for Reconsideration and dismissed it with prejudice.3 The court ruled that Mother’s Motion to Dismiss Father’s Motion for Reconsideration was denied as moot.4 Father filed a Notice of Appeal on October 26, 2022, to the denial of his Motion for Reconsideration.
DISCUSSION
I.
In Banc Review Parties’ Contentions
Father argues that the court erred by dismissing his Notice for In Banc Review. Father’s first contention is that the Maryland Rules do not require a mandatory dismissal of the in banc appeal if the appealing party does not timely file their Memorandum. Instead, in the instance where a Memorandum is untimely, the Rules provide a discretionary authority to dismiss the in banc appeal. Father argues that the court should have considered the best interests of the minor child and accepted the late filing of Father’s memorandum. Next, Father argues that this matter is appealable and properly before this Court because he did not obtain in banc review pursuant to Rule 2-551(h). Father asserts that the Order dismissing Father’s Motion for Reconsideration is properly before this Court for review. Father asks this Court to vacate the decision of the court and either remand the matter for in banc review, remand the case for a trial on the merits, or remand the case back to the court for their decision of how best to proceed. On appeal, Mother does not argue that the procedural defect warranted dismissal of Father’s Motion for Reconsideration but, rather, contends that the May 3, 2022, Child Support Consent Order resolved all pending issues in the case concerning jurisdiction. Mother states that “[Father] acquiesced to the Court’s ruling on jurisdiction over custody by subsequently negotiating a reduction of his child support obligation, dismissing his remaining claims with prejudice, and stipulating that Maryland does not have jurisdiction over
custody-related issues.” In the alternative, Mother argues that should we reach the issue of jurisdiction, the court “properly declined to exercise subject matter jurisdiction for Appellant’s requested custody modification pursuant to the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).” Finally, Mother asks us to affirm the decision of the court.
In his Reply Brief, Father argues that the Child Support Consent Order “did not waive subject matter jurisdiction of the custody matter in Maryland.” Furthermore, Father asserts that parties are unable to “confer subject matter jurisdiction by consent”. Finally, Father argues the Consent Order only included provisions to not file further custody related issues in Maryland “unless home state jurisdiction transfers back to Maryland.”
B. STANDARD OF REVIEW
“[W]here an order [of the trial court] involves an interpretation and application of Maryland constitutional, statutory or case law, our Court must determine whether the court’s conclusions are legally correct under a de novo standard of review.” Mayor and City Council of Baltimore v. Thornton Mellon, LLC, 478 Md. 396, 410 (2022) (internal citation and quotations omitted). “Because an interpretation of the Maryland Rules is appropriately classified as a question of law, we review the issue de novo to determine if the court was legally correct in its rulings on these matters. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 77 (2001) (citing to Calomiris v. Woods, 353 Md. 425, 434 (1999)).
C. ANALYSIS
Before turning to the merits of the instant appeal, we must first consider whether the issues are properly before us for consideration. As stated supra, following the decision by the court to dismiss Father’s Motion to Modify Custody, Father filed for in banc review. Specifically, Father filed an Amended Motion to Reset In Banc Hearing on July 27, 2022. The court denied that motion on August 2, 2022. Father proceeded to file a Motion to Reconsider on August 24, 2022, twenty-two days later.
Md. Rule 2-535 governs the revisory power of the court following the entry of judgment. Rule 2-535(a) provides that: [O]n motion of any party within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. A motion filed after the announcement or signing by the trial court of a judgment or the return of a verdict but before entry of the judgment on the docket shall be treated as filed on the same as, but after, the entry on the docket.
Father asked the court to exercise its revisory power pursuant to Rule 2-535. Father’s Motion to Reconsider was filed within 30 days following the entry of judgment denying Father’s Amended Motion to Reset In Banc Hearing. This filing put Father’s Motion for Reconsideration squarely under the realm of Rule 2-535. Rule 2-535 authorizes the court to take any action as proscribed by Rule 2-534. Rule 2-534 says
the court may “open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.”
As noted by Mother in her brief, “[w]hen a revisory motion is filed beyond the ten- day period, but within thirty days, an appeal noted within thirty days after the court resolves the revisory motion addresses only the issues generated by the revisory motion.” Syndor v. Hathaway, 228 Md. App. 691, 707-08 (2016) (quoting Furda v. State, 193 Md. App. 371, 377 n. 1 (2010)). We review the decision of the court to deny the motion to reconsider under an abuse of discretion standard. Id. at 708 (citing U.S. Life Ins. Co. in City of N.Y. v. Wilson, 198 Md. App. 452, 464 (2011)). Our review is limited to decide whether the court abused its discretion in denying to revise the judgment, not the judgment itself. Furda v. State, 193 Md. App. 371, 377 n. 1 (2010). The court’s underlying decision to grant Mother’s Motion to Dismiss has not been preserved for our consideration. Therefore, our review is limited to Father’s Motion to Reconsider, and all responses thereto.5
We now turn to consider the parties’ arguments concerning the court’s decision to deny the Motion to Reconsider. We begin our analysis by looking at Md. Rule 2-551, which governs In Banc Review. In relevant part, Rule 2-551 states:
(a) Generally. When review by a court in banc is permitted by the Maryland Constitution, a party may have a judgment or determination of any point or question reviewed by a court in banc by filing a notice for in banc review. Issues are reserved for in banc review by making an objection in the manner set forth in Rules 2-517 and 2-520. Upon the filing of the notice, the Circuit Administrative Judge shall designate three judges of the circuit, other than the judge who tried the action, to sit in banc.
(b) Time for Filing. Except as otherwise provided in this Rule, the notice for in banc review shall be filed within ten days after entry of judgment. When a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice for in banc review shall be filed within ten days after (1) entry of an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534 or (2) withdrawal of the motion. A notice for in banc review filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion. If a notice for in banc review is filed and thereafter a party files a timely motion pursuant to Rule 2-532, 2-533, or 2-534, the notice for in banc review shall be treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it.
(c) Memoranda. Within 30 days after the filing of the notice for in banc review the party seeking review shall file a memorandum stating concisely the questions presented, any facts necessary to decide them, and supporting argument. Within 15 days thereafter, an opposing party who wishes to dispute the questions, facts, or arguments presented shall file a memorandum stating the alternative
questions presented, any additional or different facts, and supporting argument. Any person filing a memorandum under this section who is not required to file electronically under MDEC shall file four copies of the memorandum in paper form.
We proceed to analyze whether Father adhered to the process promulgated by Rule 2-551. The court granted Mother’s Motion to Dismiss Father’s Motion to Modify Custody as to the custody and visitation issues on January 18, 2022. On the same day, Father filed his Notice for In Banc Review. Father complied with Rule 2-551(a) by timely filing his Notice for In Banc Review. Father’s 30-day clock to file an in banc memorandum began to run on January 18, 2022. The 30-day timeline expired before Father filed his In Banc Memorandum. The court entered an Order that dismissed the Notice for In Banc Review for failure to comply with the deadline to file a memorandum as outlined by Rule 2-551(c) on April 8, 2022. Mother filed a Motion to Dismiss Father’s In Banc Review on the same day, arguing that Father failed to file a timely memorandum. Father filed his memorandum shortly thereafter on April 11, 2022.
Rule 2-551(g) governs dismissal of in banc review and says: The panel, on its own initiative or on motion of any party, shall dismiss an in banc review if (A) in banc review is not permitted by the Maryland Constitution, (B) the notice for in banc review was prematurely filed or not timely filed except as provided in subsection (g)(2) of this Rule, or (C) the case has become moot. The panel may dismiss if the memorandum of the party seeking review was not timely filed.
Rule 2-551(g) (emphasis added). This Rule gives the court discretionary authority to dismiss the Notice for In Banc Review if the memorandum is not timely filed. Despite their authority to dismiss the Notice, Father asserts that the court erred by not considering the best interest of the minor child. Father cites to Kadish v. Kadish for the proposition that procedural defects must be resolved with full consideration of the minor child’s best interests. 254 Md. App. 467, 493 (2022). In that case, we considered whether the court erred by imposing sanctions in a child custody case. Id. at 472. On appeal, the Court reiterated that “procedural defects should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.” Id. at 493 (quoting A.A. v. Ab.D., 246 Md. App. 418, 441 (2020), cert. denied, 471 Md. 75 (2020)). After emphasizing the guiding principle of the child’s best interest, we affirmed the court’s decision to impose sanctions while protecting the child’s best interests. Id. at 497. In Kadish, the Mother of the minor child ignored numerous discovery requests and violated numerous court orders. Id. at 499. The Court affirmed the decision of the court to bar Mother from presenting evidence that she failed to produce in discovery while allowing evidence that weighed on the minor child’s best interest. Id. at 501.
The instant case presents a different factual scenario than we contemplated in Kadish. In this case, we are not dealing with a party’s ability to present evidence despite discovery violations but instead whether the court properly denied a Motion to Reconsider after Father failed to adhere to filing requirements for in banc review. Father posits that the minor
child suffered “severe prejudice” when the court dismissed the notice for in banc review. It is unclear how the minor child was prejudiced simply by the dismissal of Father’s notice for in banc review. Without reaching the merits of the jurisdictional questions involved, the court took special consideration of the best interest of the child in the hearing on Mother’s Motion to Dismiss. The record is replete with references to the availability of evidence bearing on the child’s well-being.
Specifically, the court noted that, “any evidence according to the statute[,] substantial evidence regarding the child’s care, protection, training, and personal relationships is no longer available in this state.” The availability of this evidence would be paramount to an analysis of the minor child’s best interest. See Taylor v. Taylor, 306 Md. 290 (1986); Md. Rule 9-204.1(c).
under to file his memorandum. In the Motion to Reconsider, Father argues that the underlying decision of the court is inconsistent by splitting jurisdiction between Maryland and Illinois. As noted by Mother, we agree that the law does allow for one state to have jurisdiction over custodial issues while another state has jurisdiction over child support. See Uniform Interstate Family Support Act; Md. Code Ann., Fam. Law § 10-308. Indeed, following the decision of the court, the parties consented to the jurisdiction of the Maryland court to modify his ongoing child support obligation. Given these facts, the court did not err in denying Father’s Motion to Reconsider.
FOOTNOTES
Despite stating that the minor child suffered prejudice as a result of Father’s Notice for In Banc review being dismissed by the court, there are no allegations as to specific harm that the minor child has incurred as a result of the court’s decision. Instead, the court properly considered the minor child’s best interest at the hearing on the Motion to Dismiss. Subsequently, Father filed a Notice for In Banc Review. On January 18, 2022, Father’s clock to file his memorandum began. He did not file his memorandum until April 22, 2022, months after it was due to be filed. It was well within the court’s explicit discretionary authority to dismiss the Notice for In Banc Review pursuant to Rule 2-551(g).
1 Appellant presented the issue for review as: Did the circuit court commit reversible error by dismissing Appellant’s Notice for In Banc Review when there was no prejudice to the Court or to the Appellee in his having filed his Memorandum late, especially since Rule 2-551 does not mandate dismissal of a belated Memorandum?
In conclusion, based on all of the above, we hold that the court did not abuse its discretion in denying the Motion to Reconsider. The court acted with statutorily conferred discretionary authority to dismiss the Notice for In Banc Review. Furthermore, Father raised no new substantive arguments in his Motion to Reconsider. Again, the court properly exercised its discretion to deny the Motion. Having dispensed with the Father’s appeal based on Rule 2-551, we decline to reach the Mother’s argument that the May 3, 2022 Child Support Consent Order disposed of the case. We do note that under the Consent Order, Father stipulated that “no further custody related issues” would be filed in Maryland. However, it is far from clear that this stipulation would foreclose Father’s right to litigate his dismissed Notice for In Banc Review and corresponding relief.
Conclusion
2 The panel was later amended on March 11, 2023, after the court discovered a conflict of interest with one of the appointed judges.
3 The Order Granting [Mother]’s Motion to Dismiss [Father]’s Motion for Reconsideration was signed on September 26, 2022, and subsequently entered by the Clerk’s Office on September 27, 2022.
4 In the September 27, 2022 Order, the court ordered
Finally, we will review the operative Motion to Reconsider, filed by Father on August 24, 2022. Father posits that although the memorandum was filed late, it was still filed “two months before the hearing” and that trial counsel had not received an in banc scheduling order. Even if these allegations are true, this does not change the 30-day timeline that Father was
that Father’s Motion for Reconsideration was denied and dismissed with prejudice. The court further ordered that Mother’s Motion to Dismiss Father’s Motion for Reconsideration was granted. However, on November 1, 2022, the court inexplicably entered an Order that denied Mother’s Motion to Dismiss as moot. Despite this procedural hiccup, the record is clear that Father’s Motion to Reconsider, originally filed on August 24, 2022, was denied by the court on September 27, 2022.
Accordingly, we affirm the decision to deny Father’s Motion for Reconsideration.
5 Rule 2-551(h) provides that “[a]ny party who seeks and obtains review under this Rule has no further right of appeal.” In the instant case, Father sought in banc review, but his notice was dismissed. Subsequently, Father filed a Motion to Reconsider, which was denied by the court. This appeal properly follows from that denial.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Carroll County Circuit Court’s award of Crawford credits, the order awarding husband all net proceeds of the sale of the marital home, and the monetary award.
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.
vacation home on Ocean View Lane in Ocean City, Maryland (the “Ocean View property”).
On May 6, 2019, Husband filed a complaint for limited divorce. Wife counter- complained for limited divorce, and Husband filed an amended complaint for an absolute divorce.
The divorce trial spanned eleven days. Over the course of the trial, the court heard testimony from twenty-five witnesses, including five experts, and admitted approximately 300 exhibits. The parties also submitted a Joint Statement Concerning Marital and Nonmarital Property identifying their assets, pursuant to Maryland Rule 9-207. Due to the complex issues and voluminous evidence, the court took the matter under advisement and ordered the parties to submit written closing arguments.
On July 19, 2022, the Circuit Court for Carroll County granted an absolute divorce to appellant, Tamara Miller (“Wife”), and appellee, William H. Miller (“Husband”), by entry of a memorandum opinion and written order. In this appeal, Wife raises a number of challenges to the portions of the judgment distributing marital property. Specifically, Wife presents the following issues, which we have consolidated, rephrased and reordered:1
1. Whether the circuit court erred in calculating Husband’s non-marital interest in the marital home;
2. Whether the circuit court abused its discretion in ordering certain terms of the sales of the marital home and vacation home;
3. Whether the circuit court erred in awarding Husband all net proceeds of the sale of the marital home;
4. Whether the circuit court erred in awarding Husband Crawford credits.
For the reasons set forth below, we vacate the award of Crawford credits, the order awarding Husband all net proceeds of the sale of the marital home, and the monetary award. We remand to the circuit court for reconsideration of the monetary award consistent with this opinion. We shall otherwise affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on September 6, 2014, and share two minor children together.2 Prior to their marriage, the parties purchased, as joint tenants, an unimproved lot located at 1069 Berberi Road in Westminster (the “Berberi property”). The parties constructed a house on the Berberi property and lived there during their marriage. In 2016, the parties purchased a
On July 19, 2022, the court issued a fifty-two-page Memorandum Opinion regarding the issues of custody, access, support, divorce, and the division of marital property, and a written judgment reflecting its rulings. The court’s order granted, among other things, the following relief: 1) divorce on grounds of a twelvemonth separation; 2) joint physical and legal custody of the children; 3) child support to Wife; 4) a monetary award to Wife in the amount of $207,948; 5) Crawford credits to Husband in the amount of $66,854.58 in connection with the Berberi property; 6) an order directing the sale of the Berberi property and an award of the sale proceeds to Husband; 7) Crawford credits to Husband in the amount of $155,311.42 for the Ocean View property; 8) an order directing the sale of the Ocean View property and a payment to Husband of $104,282 from the gross proceeds and payment to Wife of $224,000 from the gross proceeds, in addition to an equal division of the net remaining proceeds of the sale and payment by Wife to Husband for one half of the mortgage payments paid by him between the date of the divorce and the closing on the sale.
We will include additional facts as necessary in our discussion of the issues presented.
DISCUSSION Standard of Review
“Pursuant to Maryland Rule 8-131(c) where, as here, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.” Friedman v. Hannan, 412 Md. 328, 335 (2010). We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity when conducting divorce proceedings.” Boemio v. Boemio, 414 Md. 118, 124 (2010) (quotation marks and citation omitted). In deciding discretionary matters, “the ‘trial court must exercise its discretion in accordance with correct legal standards.’” Nouri v. Dadgar, 245 Md. App. 324, 343 (2020) (quoting Gordon v. Gordon,
174 Md. App. 583, 626 (2007) (citation omitted). We review a trial court’s legal conclusions under a de novo standard of review. Nouri, 245 Md. App. at 343 (citation omitted). I.
Calculation of Husband’s Nonmarital Interest in the Berberi Property
Wife contends that the trial court erred in calculating Husband’s non-marital interest in the Berberi property as 71.06% of the gross value. She argued at trial that the proper percentage of Husband’s nonmarital interest was 46.36% of the fair market value. In her brief, Wife asserts that the trial court erred in failing to apply Husband’s nonmarital share to the net equity value, rather than the gross fair market value. Husband contends that the trial court’s calculation of his nonmarital interest in the total fair market value of the Berberi property was not erroneous. When resolving disputes as to the distribution of marital property, courts must utilize a three-step process. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). First, courts must identify which property is marital. Md. Code (2019 Repl. Vol.) § 8-203(a) of the Family Law Article (“FL”); Abdullahi, 241 Md. App. at 405. Second, the court must determine the value of the marital property. FL § 8-204(a); Abdullahi, at 405. Third, the court may adjust any inequities in the ownership interests of marital property by granting a monetary award to either party. See FL § 8-205(a)(1)-(2); Abdullahi, at 405-06. In Maryland, “marital property” is defined as “property, however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1). Marital property does not include assets “(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.” FL § 8-201(e)(3).
In Grant v. Zich, 300 Md. 256, 276, n.9 (1984), the Supreme Court of Maryland set forth the method for calculating nonmarital and marital interests in property, illustrated by the following example:
A husband and wife acquired real property for a purchase price of $40,000. The wife contributed a down payment of $10,000 from property that she acquired prior to the marriage. The remaining $30,000 was financed by a mortgage signed by both the husband and the wife. One-quarter of the value of the property is the wife’s nonmarital property and threequarters of the value of the property is marital property.
If, at the time of the dissolution of the marriage, the property has appreciated in value to a fair market value of $60,000 and the mortgage indebtedness has been reduced to $20,000 by the payment of $10,000 of marital funds, the following division would be appropriate. One-quarter of the $60,000 fair market value of the property, or $15,000, would be the wife’s nonmarital property, not subject to equitable distribution. From the remaining $45,000, $20,000 representing the unpaid mortgage balance, would be deducted leaving $25,000 as the net value of the marital property subject to equitable distribution.
See also Scott v. Scott, 103 Md. App. 500, 516 (1995) (explaining the “Grant v. Zich” formula as [Fair Market Value – Nonmarital Property – Unpaid Mortgage Balance] = Net Value subject to equitable distribution).
Based on the evidence Husband presented, the court determined that the parties purchased the Berberi property for $671,641.49, and that Husband expended a total of $477,247.45 in initial acquisition costs.3 Husband therefore acquired a 71.06% nonmarital interest in the home.
The court accepted the parties’ agreement that the Berberi property had a fair market value of $885,000. The court correctly calculated Husband’s nonmarital share in the Berberi property as 71.06% of the $885,000 fair market value, leaving a total marital share of 28.94%. Accordingly, the fair market value of the property ($885,000) was reduced by Husband’s nonmarital share ($628,881), and the unpaid mortgage balance ($232,480), resulting in a net marital value of $23,639 subject to equitable distribution.
We see no error in the trial court’s application of the Grant v. Zic formula or its determination that Husband’s nonmarital share of the Berberi home was 71.06% of the property’s fair market value. II.
Challenges to the Terms of Sale of the Berberi and Ocean View Properties
Wife argues that the trial court abused its discretion in appointing Husband to sell the Berberi property rather than a trustee. She maintains that she is entitled to a remand to determine the financial harm to her caused by Husband “acting in his own selfinterest through self-dealing with a [r]ealtor friend and decisions made by [r]ealtor who was within the sole employ of Husband.” She also argues that the trial court abused its discretion in appointing a real estate agent to sell the Ocean View property, rather than a trustee, and in requiring the parties to sell that property at a price recommended by the real estate agent. Husband contends that Wife waived these issues by failing to request the appointment of a trustee or a sale in lieu of partition. Husband further asserts that Wife’s challenges to the sales of the Berberi and Ocean View properties are moot because those properties have been sold. We agree with Husband on both points.
An issue is moot if “there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Powell v Md. Dep’t of Health, 455 Md. 520, 539-40 (2017) (citation and quotation marks omitted). With respect to real property, an issue is moot when the subject property has been sold and the relief requested has “become impossible.” Silver v. Benson, 227 Md. 553, 559 (1962).
Based on Husband’s representation that the Berberi and Ocean View properties have been sold, Wife’s challenge to the orders regarding the procedures of those sales is moot.
Even if the properties had not yet been sold, we would conclude that these issues were waived. At trial, Wife requested that the court order the parties to engage a mutually agreed upon realtor to list the Berberi property for sale at an initial asking price to be determined by the realtor. Wife did not request that the court appoint a trustee to sell the Berberi property or the Ocean View property. The court explained its reasoning for ordering that Husband select a realtor of his choice for the Berberi property: Both parties seek sale of this asset. In his rebuttal closing, Husband expresses willingness to have the [c]ourt select a realtor to accomplish the sale on specified terms. The [c] ourt declines to do so and, owing to difficulties in getting
listing agreements testified to at trial, will instead [o]rder that [Husband] shall select a realtor of his choice with sale to occur on terms set forth in the accompanying Order. Because Wife did not request the appointment of a trustee for the sales of the Berberi and Ocean View properties, her argument that the court erred in failing to order trustee sales for those properties is waived.
III.
Award of Berberi Sale Proceeds to Husband
In its written order, the trial court awarded “all net proceeds” of the sale of the Berberi property to Husband, stating: “In consideration of [Husband’s] non-marital contributions to [the Berberi property] and the Crawford Credits awarded to [Husband,] [Husband] shall retain all net proceeds of [the] sale of [the Berberi property].”
“Maryland courts have no authority to transfer the ownership of personal or real property from one party to the other.” Prahinski, 75 Md. App. at 139 (vacating order that attempted to improperly transfer ownership of parties’ joint properties to husband (citing FL § 8-202(a)(3)). In making an equitable distribution of marital property, “the trial judge may either grant a monetary award to adjust the equities of the parties, or, in the case of property owned by both of them, order that the property be sold and the proceeds divided equally.” Brewer v. Brewer, 156 Md. App. 77, 114 (2004) (quoting Pleasant v. Pleasant, 97 Md. App. 711, 720 (1993)); see also Ward v. Ward, 48 Md. App. 307, 311 (1981) (holding that the trial court erroneously awarded wife $10,000 in lieu of the undivided one- half interest she was entitled in jointly owned property, which the statute “flatly forbids”).
By awarding Husband all net proceeds of the sale of the Berberi property, instead of ordering that the net proceeds of the sale of the property be divided equally between the parties pursuant to the formula provided in Section I of this opinion, the court improperly transferred full ownership of that property to Husband. Accordingly, we vacate the written order awarding Husband all net proceeds of the sale of the Berberi property and remand for entry of an order providing for equal distribution of the net proceeds. Because the trial court presumably relied on the erroneous award of the sale proceeds of the Berberi property to Husband in determining the monetary award to Wife, the monetary award must also be vacated and remanded.
IV.
Award of Crawford Credits to Husband Wife argues that the circuit court erred in awarding Husband Crawford credits in the amount of $222,166 ($66,854.58 for the Berberi property and $155,311.42 for the Ocean View property) because Husband used marital funds to pay the expenses for both properties prior to the parties’ divorce. Husband contends that the payment of mortgage expenses from marital funds during the parties’ separation did not preclude an award of Crawford credits, and the trial court’s award of Crawford credits to him for both properties was not error.
The term “Crawford credits” refers to an award of credits or contribution to a spouse for payment of the mortgage, insurance, tax, and other carrying costs for jointly owned property made during the time the parties are separated, up until the divorce.
See Crawford v. Crawford, 293 Md. 307, 311 (1982) (holding that wife was entitled to deduct payments she made on the mortgage, taxes, and insurance from the proceeds of the sale of the house before splitting them).
“Generally, one co-tenant who pays the mortgage, taxes, and other carry charges of jointly owned property is entitled to contribution from the other[.]” Id. at 309.
An award of Crawford credits is an equitable remedy within the sound discretion of the trial court. Turner v. Turner, 147 Md. App. 350, 407 (2002). “There are many reasons why such an award is not mandatory. For example, debt payments are often made with marital funds, contribution is an equitable principle” and “requiring contribution could create the very inequity which the act was designed to prevent.’” Id. (quotation marks and citation omitted); see also Woodson v. Saldana, 165 Md. App. 480, 493 (2005) (noting that, because an award of Crawford credits is discretionary, it is not accurate to say that a spouse who pays the mortgage and other carrying costs that preserve the property is entitled in all cases to receive such credits). Ultimately, “the court must exercise its discretion to determine whether Crawford credits are warranted” and “the test involves whether the total disposition is equitable.” Flanagan v. Flanagan, 181 Md. App. 492, 541 (2008) (quotation marks and citations omitted).
In Caccamise v. Caccamise, 130 Md. App. 505, 525 (2000), this Court set forth four exceptions that often preclude contribution in divorce cases: “(1) ouster, (2) agreements to the contrary; (3) payment from marital property; and (4) an inequitable result.” In that case, however, the source of the funds used to make payments on the parties’ properties during their separation was not the basis of the contribution argument on appeal. We affirmed the trial court’s decision awarding the husband full contribution for payments made toward the parties’ condominium, but 40% of the payments made on the martial home where husband and daughter lived while the wife obtained other housing, concluding that the trial court “had sufficient evidence before it to make the most efficient determination as to whether the appellant was deserving of contribution, and how much.” Id. at 524-25.
This Court has recognized that an award of Crawford credits is not required where mortgage payments and related expenses are made from marital funds. See, e.g., Prahinski v. Prahinski, 75 Md. App. 113, 141 (1988) (holding that the trial court did not err in denying husband’s request for reimbursement of costs he paid from marital funds to maintain the parties’ rental properties during their separation); Wassif v. Wassif, 77 Md. App. 750, 766 (1989) (affirming an award of credits to husband for mortgage payments made during the use and possession period after the divorce, but not prior to the divorce); Broseus v. Broseus, 82 Md. App. 183, 193-94 (1990) (holding that contribution was not appropriate for mortgage payments made during the marriage that were “admittedly made from marital funds”); Lemley v. Lemley, 102 Md. App. 266, 299 (1994) (finding no error in the trial court’s denial of husband’s request for contribution where the parties were married at the time the mortgage payments were made and the payments were made from marital funds).
As to Husband’s request for Crawford credits for payments made to maintain the Berberi and Ocean View properties, the court ruled:
It is undisputed that since the parties’ separation in October, 2018, Husband has paid all expenses associated with both [the Berberi property and the Ocean View property].
FOOTNOTES
1 Wife phrased the questions as:
1. Did the [c]ourt err in awarding Crawford Credits for payments made from marital funds for Berberi Road?
2. Did the [c]ourt err in using an incorrect formula for determining Appellee’s non-marital ownership for Berberi Road?
3. Did the [c]ourt err in appointing Appellee to sell Berberi Road?
4. Did the [c]ourt err in awarding Appellee 100% of the proceeds to Berberi Road?
5. Did the [c]ourt err in awarding Crawford Credits for
Evidence at trial demonstrated these expenses including not just the mortgage payments, taxes and insurance but all utilities, upkeep and maintenance at both properties. Indeed, the record was replete with numerous demands made by Wife that various items in need of repair or bills that were due would be attended to or paid by Husband. Husband does not seek Crawford credits for all such expenses, but, rather, seeks such credits for post-separation mortgage expenses for the properties. As of November 1, 2021, these claimed credits total $222,166 ($66,854.58 for Berberi Road and $155,311.42 for Ocean View as set forth on Exhibits C and D to his written closing). Wife disputes that Husband should receive Crawford credits for the reasons set forth in her closing. Upon giving consideration to all evidence, the [c]ourt has determined to grant Husband’s request for Crawford credits accounting from October, 2018 to date of sale of the property and will Order payment of same at time of settlement.
(Emphasis in original).
It was undisputed at trial that Husband paid all mortgage payments and carrying costs for the Berberi and Ocean View properties from his New Windsor bank account, which the parties agreed was marital property. Indeed, Husband concedes in his brief that all mortgage expenses were paid from marital funds.
payments made from marital funds for Ocean View Lane?
6. Did the [c]ourt err in appointing a real estate agent to sell Ocean View Lane?
7. Did the [c]ourt err in requiring the parties to sell Ocean View Lane for the price recommended by the real estate agent?
2 Neither party challenges the judgment with respect to custody and child support.
3 Wife challenged a portion of Husband’s acquisition costs at trial, but, on appeal, she does not challenge the trial court’s factual finding as to those costs.
It is unclear from court’s ruling whether, in awarding Crawford credits to Husband, the court considered that Husband’s payments for the expenses associated with the Berberi and Ocean View properties were made from marital funds. For that reason, we vacate the award of Crawford credits to Husband and remand for reconsideration of that award in light of the court’s reconsideration of the monetary award. On remand, the determination of the monetary award remains within the sound discretion of the trial court, consistent with the terms of this opinion.
BY APPELLEE AND 25% BY APPELLANT.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s appointment of a woman’s sister as her guardian, and its appointment of an attorney as the guardian of the woman’s property, as supported by the record.
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.
times a week.
Ms. Bradshaw resided with her adult daughter, Tanisha Brown, minor son, and granddaughter until February 3, 2023. Ms. Brown testified that she had taken care of her mother, and her mother’s son, since Ms. Bradshaw had a stroke 13 years earlier. Ms. Brown managed Ms. Bradshaw’s medical conditions from home.
Issues that Led the Hospital to File for Guardianship
In December 2022, Ms. Bradshaw was admitted to a Johns Hopkins health system hospital “with seizures and missed dialysis.” Prior to that, she had been admitted to a MedStar hospital “for failure to thrive.”
This appeal arises from an order by the Circuit Court for Baltimore City appointing a guardian for the person and property of appellant, Tanya Bradshaw, a woman who suffers from moderate cognitive dysfunction, among other things. Appellee, Johns Hopkins Bayview Medical Center (the “Hospital”), filed a petition for guardianship after Ms. Bradshaw was admitted to the hospital, and the doctors determined that she was not capable of living in an independent environment or effectively managing her affairs. The court appointed Ms. Bradshaw’s sister, Nicole Bradshaw,1 as guardian of the person, and attorney Adam Zimmerman as guardian of Ms. Bradshaw’s property. On appeal, Ms. Bradshaw presents the following questions for this Court’s review:
1. Did the circuit court err in finding that no less restrictive alternative was available that was consistent with Ms. Bradshaw’s welfare and safety when Ms. Bradshaw could receive support from and live with her daughter, who was a certified nurse’s aide, and receive support from her sister, whom the court appointed as her guardian?
2. Did the circuit court err in appointing a guardian of the property when there was no evidence that she failed to manage her assets and, in fact, no evidence that she has assets that require proper management?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Bradshaw was born on July 11, 1972. She was 50 years old at the time of the proceedings below. Ms. Bradshaw suffers from a seizure disorder, end-stage renal disease, diabetes, hypertension, heart disease, left-side weakness as a result of a prior stroke, visual impairment, and moderate cognitive dysfunction. She takes multiple prescription medications, and she needs dialysis three
On February 3, 2023, a week after she was discharged from a skilled nursing facility, Ms. Bradshaw was admitted to the Hospital after “three witnessed seizure[s].”2 While Ms. Bradshaw was hospitalized, at the Hospital, two internal medicine physicians, Dr. Amy Yu and Dr. Venkat Gundareddy, evaluated her. Both physicians opined, to a reasonable degree of medical certainty, that Ms. Bradshaw had “a disability that prevents [her] from making or communicating any responsible decisions concerning [her] person” and her property.
The Baltimore City Department of Social Services (“BCDSS”) attempted to reach Ms. Brown to discuss Ms. Bradshaw’s medical condition, but it was not able to reach her “on a consistent basis.”
Nicole Bradshaw was the person that the Hospital could rely on to have a conversation when needed.
On February 24, 2023, the Hospital filed a Petition for Guardianship of Ms. Bradshaw, an alleged disabled person, in the Circuit Court for Baltimore City.3 The Hospital alleged that Ms. Bradshaw had been admitted as a patient on February 3, 2023. The Hospital attempted to call Ms. Brown several times, without success. After the Baltimore City Police performed a wellness check on Ms. Brown, and they found her at her home, the Hospital spoke to her about being “cooperative with them in making medical decisions for [Ms.] Bradshaw.” The petition alleged that Ms. Bradshaw’s aunt and cousin advised that Ms. Brown “was physically neglecting [Ms.] Bradshaw as well as financially exploiting her.” Both family members agreed that Ms. Bradshaw needed a guardian.
The petition further alleged that Ms. Bradshaw suffers from moderate cognitive dysfunction causing a loss of higher intellectual functioning, as well as the inability to take charge of and manage her property and affairs. . . . [B]ecause of the aforementioned conditions, [Ms. Bradshaw] does not appear capable of living in an independent environment or effectively managing her affairs; consequently, she requires the appointment of a Guardian of her Person to consent to necessary protective services which would include
consenting to her placement in an appropriate supervised care setting or nursing care facility and consenting to necessary medical care. There is no less restrictive form of intervention available that is consistent with her welfare and safety other than the appointment of the Guardian of the Person. . . . [A]s a result of the aforementioned condition, [Ms. Bradshaw] is a disabled person within the meaning of the Annotated Code of Maryland, Estates and Trusts Article, Sections 13-201(c) and 13-705(b), as she lacks sufficient understanding and capacity to make or communicate responsible decisions concerning the management of her property and personal affairs because of physical or mental disability and disease.
The petition requested that the court appoint a Guardian of the Person of Tanya Bradshaw and a Guardian of the Property of Tanya Bradshaw.
The Hospital attached physician’s certificates from Dr. Amy Yu and Dr. Venkat Gundareddy.4 Dr. Yu certified that Ms. Bradshaw had the following physical diagnoses: “ESRD [end-stage renal disease], DM [diabetes], prior CVA [stroke] with residual left sided weakness, depression, HTN [hypertension], CAD s/p PCI (2010) [coronary artery disease with percutaneous coronary intervention], moderate cognitive dysfunction and seizure disorders.” Dr. Gundareddy certified that Ms. Bradshaw had the following physical diagnoses: “[p]rior stroke leading to left sided weakness, high blood pressure, coronary heart disease, seizures, [and] end stage renal disease on dialysis.” Both doctors further certified that Ms. Bradshaw “does have a disability that prevents [her] from making or communicating any responsible decisions concerning [her] person” and her property, and she “has a demonstrated inability to manage [her] property and affairs effectively because of a physical or mental disability.”
On March 3, 2023, the court appointed counsel from Maryland Legal Aid for Ms. Bradshaw. That same day, the court issued an order requiring Ms. Bradshaw and the interested persons named therein to “show cause . . . why the relief prayed in the foregoing Petition should not be granted.”
On March 15, 2023, Ms. Bradshaw, through counsel, answered the Hospital’s petition for guardianship and the show cause order, asking the court to deny the petition. In her Pre-Hearing Statement, counsel checked the box stating that Ms. Bradshaw had not expressed a position that counsel could share regarding the need for guardianship or the availability of a reasonable alternative to guardianship.
BCDSS also answered the Hospital’s petition, stating that Nicole Bradshaw was “willing and able to act as Guardian of the Person for [Ms.] Bradshaw” and that she had completed and passed the required guardianship training. BCDSS further asserted that “[t]he Court would need to find ‘good cause’ to pass over a family member before authorizing an agency of the State to make decisions for [Ms. Bradshaw],” and in this case, “such good cause does not exist.”
B.
Guardianship Proceeding
On March 23, 2023, the circuit court held a virtual guardianship hearing. Counsel for Ms. Bradshaw waived her right to a jury trial. The court accepted both Dr. Yu and Dr. Gundareddy as expert
witnesses.
Dr. Yu testified that she evaluated Ms. Bradshaw on February 22, 2023, three weeks after Ms. Bradshaw was admitted to the hospital. Dr. Yu was concerned about Ms. Bradshaw’s medical condition. She assessed Ms. Bradshaw’s cognitive function by administering the “Montreal Cognitive Assessment” test, on which Ms. Bradshaw scored a 10 out of 30, indicating moderate cognitive dysfunction. Dr. Yu testified that Ms. Bradshaw could not take care of her “critical medical conditions by herself,” such as attending dialysis appointments or taking her seizure medication. Ms. Bradshaw did not have a “full understanding about her medical condition[s]” and could not make her own decisions on whether she needed dialysis or other medical treatments.
Dr. Gundareddy testified that he evaluated Ms. Bradshaw on February 23, 2023, the day after Dr. Yu’s evaluation. He testified that Ms. Bradshaw had “multiple medical conditions,” including “history of stroke” and weakness, an “issue with her memory,” “seizure history,” and “kidney failure.” Dr. Gundareddy evaluated Ms. Bradshaw’s cognitive function using a test called the “Mini Mental State Examination,” on which she scored a 16 out of 30. During the test, Ms. Bradshaw had “significant issues with retaining memory,” and she was unable to recall three objects that he had shown her earlier after only “five to ten minutes.” Dr. Gundareddy testified that, “without adequate supervision with her memory issues, she would be someone who would not be able to thrive normally in the community.”
Dr. Gundareddy further opined that Ms. Bradshaw lacked an “understanding of what is needed for her medical condition,” and she did not have “a full understanding of what the consequences are of missing some of her treatments.” Those consequences included seizures, electrolyte imbalances, respiratory distress, and death. Missing dialysis treatments can lead to difficulty breathing, irregular heart rhythm, and “other side effects of building up toxins in the system.” In his professional opinion, “Ms. Bradshaw needs a guardian to superintend her care and supervise to make sure she gets the treatment she needs.” While in the hospital, Ms. Bradshaw had not “refused receiving dialysis” or “refused to take her medications.”
The court admitted both physician’s certificates into evidence. In both certificates, the physicians asserted that, in their professional opinions, and within a reasonable degree of medical certainty, Ms. Bradshaw has “a disability that prevents [her] from making or communicating any responsible decisions concerning [her] person” and her property. Both physicians further stated that Ms. Bradshaw’s “mental diagnosis put her at high risk of not [being] compliant with her medications,” which Dr. Gundareddy stated “can cause acute worsening of her symptoms.” Dr. Yu noted that Ms. Bradshaw will “need 24 hours supervision and assistance with ADLs/iADLs [the activities of daily life and the instrumental activities of daily living].” Dr. Yu further wrote that Ms. Bradshaw was “[o]nly oriented to person and place, not to time and situations.” Dr. Gundareddy wrote that Ms. Bradshaw is “[o]riented to self, person, place[,] but not to time,” and that “[s] he is forgetful and cannot recollect things after a short interval.” Both physicians asserted that Ms. Bradshaw needed supervision and monitoring to manage her finances, transportation needs, communication, and medication.
Renita Somerville, the BCDSS social worker assigned to Ms.
Bradshaw’s case, testified that Ms. Bradshaw required a guardian of her person and of her property, stating that Ms. Bradshaw required “supervision in an assisted living type of facility, supervision with her activities of daily living as well as her medical treatment.” Ms. Bradshaw also needed “someone to consent to the medical treatment and superintend her care.” Ms. Somerville recommended Nicole Bradshaw to serve as Ms. Bradshaw’s guardian of her person because she was easier to “get in touch with” than Ms. Brown.
Ms. Somerville stated that Ms. Bradshaw needed a guardian of her property “[t]o manage her finances . . . to be able to pay for an assisted living facility” and to manage and apply for “any other benefits that she may be entitled to.” Ms. Sommerville noted, however, that Nicole Bradshaw did not want to be guardian of Ms. Bradshaw’s property.
Ms. Brown testified that she had been Ms. Bradshaw’s caregiver for 14 years. She asserted that, on Tuesdays and Thursdays, a home health aide, social worker, and nurse visited her house to care for Ms. Bradshaw. On Mondays, Wednesdays, and Fridays, Ms. Bradshaw attended dialysis appointments. Ms. Brown stated that she recently had arranged for MTA Mobility to transport Ms. Bradshaw to her dialysis appointments. Ms. Brown testified that she was willing to assist Ms. Bradshaw with the help that she needed. She typically was home with Ms. Bradshaw, other than when Ms. Bradshaw was at her dialysis appointments. Because of Ms. Brown’s difficulty with accessing the virtual hearing during her direct examination, counsel for Ms. Bradshaw proffered to the court the rest of her testimony. Counsel stated:
Ms. Brown is willing to have Ms. Tanya Bradshaw return to her home to provide care and assistance for Ms. Bradshaw in her home. And that Ms. Bradshaw was previously residing with Ms. Brown in the past and they are a family unit, the two of them as well as Ms. Brown’s daughter and Ms. Bradshaw’s son.
On cross-examination, Ms. Brown stated that she did not know how many times Ms. Bradshaw had been hospitalized in the last several years.
Nicole Bradshaw testified that she was interested in being Ms. Bradshaw’s guardian “because [she] would want [a] family member to continue to be in her life and have some say-so.” She was an employee of the Maryland State Department of Education and worked in-person for eight hours a day. On March 6, 2023, Nicole Bradshaw completed the orientation program to receive her guardianship certification, but she did not complete the guardianship training.
Nicole Bradshaw was not aware that Ms. Bradshaw had missed her dialysis appointments until the social worker informed her. Although she had not seen Ms. Bradshaw in a couple of years, she spoke to Ms. Brown “quite often” and had assisted with paying for transportation for Ms. Bradshaw to attend her dialysis appointments. Regarding her knowledge of Ms. Brown administering Ms. Bradshaw’s medication, she stated that Ms. Bradshaw would occasionally “spit the medicine out” after Ms. Brown walked away. In closing argument, counsel for the Hospital stated that, because it was “clearly inappropriate” for Ms. Brown to be appointed as guardian, and based on counsel’s belief that Nicole Bradshaw did not want to be appointed as guardian, he asked the court to appoint “the Department of Social Services for
person and Adam Zimmerman for property.”5
Counsel for Ms. Bradshaw argued that Ms. Bradshaw did not need a guardian because there were less restrictive alternatives available, including having Nicole Bradshaw manage Ms. Bradshaw’s transportation needs. Counsel asserted that Ms. Bradshaw could manage her communication, her medication, and her finances, as long as she had supervision and assistance. Ms. Bradshaw was “a good client for the Supported Decision Making act because she [could] receive the support that she” needed while still “functioning under a less restrictive option than a guardianship.” Finally, counsel argued that the court should preserve Ms. Bradshaw’s “family unit,” which included her daughter and sister, who were “willing to support her and provide the assistance that she requires.”
The court then asked about the discharge plan. Ms. Somerville stated that her office was recommending that Ms. Bradshaw move to an assisted living facility where she could “get the assistance and supervision” required to “prevent frequent hospital readmissions and missed dialysisappointments,” as well as get “the proper care that she needs to maintain her health.”
C. Court Ruling
At the end of the testimony and arguments of counsel, the court ordered that Ms. Bradshaw needed a guardian. It appointed Nicole Bradshaw as Ms. Bradshaw’s guardian of the person. The court stated:
So based on the physician’s certificates, the testimony that we’ve heard from Dr. Yu as well as both of the physicians in this matter, as well as hearing from Ms. Bradshaw and Ms. Brown, it is very clear that Ms. Brown does love her mother and that is clear from the testimony of Ms. Bradshaw as well as Ms. Brown.
I don’t believe that that is the point of issue at this court. I do believe that Ms. Brown is making all the efforts that she just can in her -- as best as she can and in the best of her abilities to take care of her mother. I just do not believe, based on the testimony as well as the indications of the physician’s position, and I think very, what I think was very compelling to this Court and very persuasive is the missed dialysis.
So of all of these things, not only the number of missed dialysis, the fact that she was treated and cared for and found herself back in the hospital, those were very, very persuasive on the Court. So it’s not that I don’t believe that Ms. Brown is making every effort to take care of her mother, I just don't believe that she has the full capacity to do so.
I do not believe that I want to take it out of the hands of the family. I think that Ms. [Nicole] Bradshaw through her testimony has testified that she is willing to work in conjunction with Ms. Brown and it would be in fact a family member.
Now understanding that the priority would go to the adult child, which would be Ms. Brown, and the sister would be under that, the Court is finding that, I believe, Ms. [Nicole] Bradshaw is best qualified of those persons to serve.
And that the Court has considered and makes a finding that of good cause to go outside of that priority and to go into lower priority.
And I believe so based on the testimony regarding the factors, the length, the nature and the length of the relationship. I know that Ms. [Nicole] Bradshaw has in fact indicated to the court that she hasn’t had a lot of contact with her sister, but she's had a lot of contact with Ms. Brown.
She’s demonstrated through conversations with Ms. Brown regarding the medications and helping her to understand the further steps that she has to take in order to do that. So I think Ms. [Nicole] Bradshaw has shown that she would be capable of still having Ms. Brown as an important part in her consideration in making decisions.
She’s expressed to me why she’s interested in being a guardian. She is in good health. Her children are adult children. She works hours at responsible jobs. She’s [in] good health and able to make those decisions. I do not believe that she has any indications of her financial position and I think someone guarding the property would be most appropriate.
I've not heard a lot of testimony about her property and how it is taken care of, but it looks like there are benefits that could be, that would probably be needed for Ms. Bradshaw and I think someone has to assist in helping that. Of course, at any point in time where the family believes that they could take over those issues once all of those things are taken in hand, taken into consideration, they can always come back to the court to ask for a reconsideration of that.
So the Court finds good cause that a person of lower priority other than Ms. Brown at this point would be suitable and available, and for those reasons the Court is going to appoint Ms. Nicole Bradshaw as the guardian of the person.
The court found that Ms. Bradshaw’s disability was not solely based on a physical disability. It ordered Nicole Bradshaw to complete the guardianship training within 120 days.
The court then stated:
I do find by clear and convincing evidence that the Petitioner has in fact demonstrated that Ms. Tanya Bradshaw does lack sufficient understanding to make, communicate responsible decisions regarding her person and that that lack of capacity is caused by her mental disability and disease.
I do not find that there is a less restrictive form of intervention that is available. Based on the testimony, she currently has inhouse nursing. She currently has therapists. She currently has people that are coming to Ms. Brown’s home who I do believe and we find from the physician’s certificates and their testimony that that is not appearing to keep her away from hospitalizations, and due to her current diagnosis and according to her current conditions that continuing on that course would result more than likely in increased
hospitalizations and a decrease in her health, namely based on the fact that she does need dialysis.
She does have seizures, she suffers from strokes, and as well as the fact that she has a heart issue that is seemingly not being stabilized by her constant failures to get the treatment and in the medication she has outside.
So I do not believe that there is a least restrictive form of intervention that is available and consistent with her welfare and safety. I further find that the proposed guardian of Nicole Bradshaw is a fit and proper person to be appointed.
I do find based on the testimony that she is capable of carrying out the responsibilities and willing as a guardian and that no one of higher priority is available to serve based on my ruling and finding of good cause of a lower priority.
The court added that Nicole Bradshaw is “authorized to consent to any medical procedure that involves a substantial risk to the life of [Ms. Bradshaw] and the withholding or withdrawing of any medical procedure that involves substantial risk” to Ms. Bradshaw’s life. It stated that, pursuant to the Surrogate decision making statute, Md. Code Ann., Health-General Art. (“HG”) § 5-605 (2018 Repl. Vol.),6 Nicole Bradshaw “must obtain court approval for changing the classification of the abode of [Ms. Bradshaw]” and must “file an annual report with the Trust Clerk within 60 days.” See § 5-605(a)(2).
Regarding Ms. Bradshaw’s property, the court ordered an attorney, Adam Zimmerman, as the guardian of Ms. Bradshaw’s property. The court explained:
I also find by [a] preponderance of the evidence that the Petitioner has demonstrated that Ms. Bradshaw lacks the sufficient capacity to manage her property and affairs effectively and this lack of ability is caused by her physical and mental disability. She may be entitled to property or benefits that require proper management and for those reasons I’m going to find that the proposed guardian of Mr. Adam Zimmerman is a fit and proper person to be appointed. That he will be capable of carrying out those responsibilities of the guardian and no one of higher priority is available.
The court made an additional finding that Mr. Zimmerman was excused from the guardianship training and from giving bond. On March 23, 2023, the court issued a written order, memorializing its ruling from the bench. This appeal followed.
STANDARD OF REVIEW
In Matter of Meddings, 244 Md. App. 204, 220 (2019), this Court set forth the appropriate standard of review in adult guardianship cases, as follows:
[I]n reviewing whether a circuit court properly decided to appoint a guardian for an adult, we adopt a tri-partite and interrelated standard of review. Factual findings will be reviewed for clear error, while purely legal determinations will be reviewed without deference, unless the error be harmless. As to the ultimate conclusion of whether an adult guardianship is appropriate, the circuit court’s decision
will not be disturbed unless there has been a clear abuse of discretion.
Id. “A decision will be reversed for an abuse of discretion only if it is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re J.J., 231 Md. App. 304, 345 (2016) (quoting In re Yve S., 373 Md. 551, 583–84 (2003)).
DISCUSSION
Ms. Bradshaw contends that the court erred in appointing both a guardian of her person and a guardian of her property. We will address both contentions, in turn.
I.
Guardian of the Person
“[G]uardianship proceedings implicate one of the most fundamental values of our society.” James B. Nutter & Co. v. Black, 225 Md. App. 1, 16 (2015), cert. denied, 446 Md. 220 (2016). As the Supreme Court of Maryland has explained: [A] court of equity assumes jurisdiction in guardianship matters to protect those who, because of illness or other disability, are unable to care for themselves. In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility [A]ll the parties here should be reminded that appointment to that position rests solely in the discretion of the equity court and the administering of that office as it pertains to both the person and property of the ward is subject to judicial control.
Kicherer v. Kicherer, 285 Md. 114, 118–19 (1979).
Pursuant to Md. Code Ann., Estates & Trusts Art. (“E&T”) § 13705(a) (2017 Repl. Vol.), “[o]n petition and after any notice or hearing prescribed by law or the Maryland Rules, a court may appoint a guardian of the person of a disabled person.” A “disabled person” is defined as an individual who “has been judged by a court to be unable to provide for the person’s daily needs sufficiently to protect the person’s health or safety for reasons listed in E&T § 13-705(b) of this title; and . . . as a result of this inability requires a guardian of the person.” E&T § 13-101(f)(2).
E&T § 13-705(b) provides that “[a] guardian of the person shall be appointed if the court determines from clear and convincing evidence that:
1. A person lacks sufficient understanding or capacity to make or communicate responsible personal decisions, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs; and
2. No less restrictive form of intervention is available that is consistent with the person’s welfare and safety. In Meddings, 244 Md. App. at 225, we noted that a “circuit court may grant to a guardian of a person only those powers necessary to provide for the demonstrated need of the disabled person.” See E&T § 13-708(a)(1) (2019 Repl. Vol). The “court may appoint a guardian that has ‘the same rights, powers, and duties that a parent has with respect to an unemancipated minor child;’ ‘the right to custody of the disabled person to establish the disabled person’s place of abode within and without the State;’ or ‘the power to give necessary consent or approval for: medical or other professional
care, counsel, treatment, or service.”’ Id. at 226 (quoting E&T § 13-708(b)(1)–(2), (9)(i)).
Ms. Bradshaw does not dispute that the requirements of E&T § 13-705(b)(1) were satisfied, i.e., that she lacks capacity to make personal decisions. She contends, however, that the court erred in finding, pursuant to E&T § 13-705(b)(2), that there was no less restrictive form of intervention available that was consistent with her welfare and safety. Ms. Bradshaw contends that there was a less restrictive alternative to guardianship under either: (1) the Supported Decision Making Act, E&T §§ 18-101 to 18-109 (2022 Repl. Vol), or (2) the Surrogate decision making statute, HG § 5-605 (2018 Repl. Vol.). Ms. Bradshaw asserts that many of the court’s findings of fact underlying the finding that no less restrictive alternative existed were clearly erroneous. Specifically, she states that the record does not support a finding that she failed to take her medication, that she missed dialysis appointments, or that she has an unstable heart condition.
A.
Supported Decision Making
The General Assembly passed the Supported Decision Making Act in March 2022.7 2022 Maryland Laws Ch. 631 (S.B. 559). A “supporter” is “an individual selected by an adult to provide support in making, communicating, or effectuating the adult’s own life decisions.” E&T § 18-101(d). The supporter may “provide support to the adult in making decisions in areas of the adult’s choosing, including:
1. Gathering information;
2. Understanding and interpreting information;
3. Weighing options and alternatives to a decision;
4. Understanding the consequences of making or not making a decision;
5. Participating in conversations with third parties with the adult's explicit authorization; and
6. Providing the adult with support and advocacy in implementing a decision.
E&T § 18-104(c)(1)–(6).
The purpose of the Supported Decision Making Act is to assist adults by:
1. Obtaining support for the adult in making, communicating, or effectuating decisions that correspond to the will, preferences, and choices of the adult; and
2. Preventing the need for the appointment of a substitute decision maker for the adult, including a guardian of the person or property.
E&T § 18-102(a).
Adults enter into a supported decision making agreement voluntarily, and the agreement does not “[a]uthorize the supporter or supporters to act on behalf of the adult.” E&T § 18-107(b)(9) (ii)(1). The adult still holds all decision making power, and the supporter may not make decisions on behalf of the adult. E&T § 18-105(c). A person under guardianship may enter into a supportive decision-making agreement with a supporter, but the agreement “does not supplant the authority of a guardian of the adult.” E&T § 18-104(b)(1)(i)–(ii).
B. Surrogate Decision Making
Pursuant to HG § 5-605, a person authorized to be a surrogate “may make decisions about health care for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent . . . or whose health care agent is unavailable.”8 The individuals available to serve as a surrogate, in order of priority, are as follows:
i. A guardian for the patient, if one has been appointed;
ii. The patient’s spouse or domestic partner;
iii. An adult child of the patient;
iv. A parent of the patient;
v. An adult brother or sister of the patient; or
vi. A friend or other relative of the patient who meets the requirements of paragraph (3)9 of this subsection. HG § 5-605(a)(2)(i)–(vi). A surrogate decision maker “shall base [health care] decisions on the wishes of the patient and, if the wishes of the patient are unknown or unclear, on the patient’s best interest.” HG § 5-605(c)(1).
C. Analysis
Ms. Bradshaw contends that the court erred in granting a guardianship because it made clearly erroneous factual findings that led to its finding that there was no less restrictive alternative to guardianship that was consistent with Ms. Bradshaw’s welfare and safety. As explained below, we disagree. In Meddings, 244 Md. App. at 208–09, this Court addressed a similar issue involving a disabled patient with schizophrenia and atrial fibrillation. In that case, we concluded that the court’s rejection of the proposed less restrictive alternatives was not clearly erroneous. Id. at 227–33. Accordingly, we held that the decision to appoint a guardian was not an abuse of discretion. Id. at 233.
As the appellee hospital argued in Meddings “the issue isn’t whether a less restrictive form of intervention exists, rather, the issue is ‘whether a less restrictive alternative was available and consistent with [the adult’s] own welfare and safety needs.’” Id. at 223. That is, “the availability of a form of intervention less restrictive than a guardianship is insufficient alone to defeat a petition for guardianship” because “[t]he form of intervention also must be ‘consistent with the person’s welfare and safety.’” Meek v. Linton, 245 Md. App. 689, 714 (2020) (quoting Meddings, 244 Md. App. at 224).
Here, the Hospital argues that neither supported decision making or surrogate decision making is an appropriate alternative for Ms. Bradshaw because neither are consistent with her welfare and safety. With respect to a supported decision-maker, the Hospital argues that this alternative “is designed for adults who can make responsible decisions with the appropriate support,” and both Dr. Yu and Dr. Gundareddy stated in their testimony and physician’s statements that Ms. Bradshaw “was not capable of making decisions regarding her person or property regardless of the level of support.” With respect to a surrogate decision maker, the Hospital asserts that this is not an appropriate alternative for Ms. Bradshaw because it only offers a “temporary solution” for her “long-term healthcare issue[s],” and the General Assembly
“did not intend” for a surrogate to replace guardianship, which is evidenced by the fact that “[a] guardian for the patient” is ranked as first priority to be chosen as a surrogate decision maker. The circuit court agreed with the Hospital that a lesser restrictive alternative to guardianship was not consistent with Ms. Bradshaw’s welfare and safety. It found that, although Ms. Brown loved her mother, she was not capable of adequately caring for her. The court noted that Ms. Bradshaw had missed dialysis treatments, which it found very persuasive in support of the argument that a guardian was needed. It also noted that Ms. Bradshaw “continues to be hospitalized,” despite that she had “inhouse nursing . . . therapists[, and] people that [were] coming to Ms. Brown’s home.” The court stated that, due to Ms. Bradshaw’s “current conditions[,] that continuing on that course would result more than likely in increased hospitalizations and a decrease in her health, namely based on the fact that she does need dialysis.” These facts were supported by the record. Dr. Yu testified that, based on Ms. Bradshaw’s medical records, she was admitted to a MedStar hospital “for failure to thrive” in December 2022. Ms. Bradshaw later was admitted to a Johns Hopkins hospital because of her seizures and missed dialysis appointments. Ms. Bradshaw’s medical records also indicated that she was admitted to the Hospital on February 3, 2023, after “three witnessed seizure[s],” only one week after being discharged from a skilled nursing facility. Moreover, Dr. Gundareddy testified that Ms. Bradshaw’s medical history indicated that she was admitted to a Johns Hopkins Health System hospital in 2022 because “she had missed quite a few number of dialysis sessions.” The social worker also testified that Ms. Bradshaw had missed dialysis appointments. We acknowledge, as Ms. Bradshaw contends, that there was no specific evidence to support the court’s finding that she had “a heart issue that is seemingly not being stabilized by her constant failures to get the treatment and in the medication she has outside.” There was evidence in the record, however, that Ms. Bradshaw has coronary heart disease, and Dr. Gundareddy testified that missed dialysis treatments can cause electrolyte imbalances that could cause Ms. Bradshaw “to go into irregular heart rhythm.” More importantly, however, the court’s decision made clear that the missed dialysis appointments, reoccurring hospitalizations, and seizures were the primary basis for granting guardianship. Based on this record, we cannot conclude that the court erred or abused its discretion in determining that a guardian of the person was the least restrictive alternative that was consistent with Ms. Bradshaw’s welfare and safety.
II.
Guardian of the Property
Pursuant to E&T § 13-201(a), the court, “[o]n petition, and after any notice or hearing prescribed by law or the Maryland Rules,” “may appoint a guardian of the property of a minor or disabled person.” The court must make two findings before appointing a guardian for a disabled person:
1. The person is unable to manage effectively the person's property and affairs because of physical or mental disability, disease, habitual drunkenness, addiction to drugs, imprisonment, compulsory hospitalization, detention by a foreign power, or disappearance; and
2. The person has or may be entitled to property or benefits which require proper management.
E&T § 13-201(c). Upon appointment and qualification, a guardian is vested with “title to all property of . . . the protected person that is held at the time of appointment or acquired later.” E&T § 13-206(c)(1)(i). A guardian is required to “utilize [the] powers conferred to perform services, exercise discretion, and discharge the guardian’s duties for the best interest of the . . . disabled person[.]” E&T § 13-206(c)(1)(iii). “[T]he fundamental duty of a guardian of property is to preserve the property in the guardianship estate for the benefit of the ward and other persons with an interest in that property.” Seaboard Sur. Co. v. Boney, 135 Md. App. 99, 112 (2000), cert. denied, 363 Md. 206 (2001).
There are a couple of relevant distinctions between a guardian of a person and a guardian of property, apart from the focus of the guardian’s duties. In civil cases generally, the fact to be proved must be shown by a preponderance of the evidence, and contrary to the statute addressing a guardian of the person, nothing in the statute providing for a guardian of the property suggests to the contrary. In re Rosenberg, 211 Md. App. 305, 316 (2013). Moreover, “there is no statutory requirement that a circuit court consider any less restrictive alternatives to a guardianship of the property.” Id. at 321.
that Ms. Bradshaw needs a guardian of the property “to manage her finances” was not supported by any additional explanation, as she stated that she was “not quite sure what [Ms. Bradshaw’s] income is exactly.” She asserts that the only evidence regarding her finances came from Nicole Bradshaw’s testimony.
The Hospital contends that “[g]ranting guardianship of Ms. Bradshaw’s property was not an abuse of discretion.” It asserts that, although there was more information at the guardianship proceeding regarding Ms. Bradshaw’s inability to manage her medical conditions than her property, there was “plenty of information” for the court to conclude by a preponderance of the evidence that Ms. Bradshaw requires a guardian of the property. The Hospital contends that “the evidence of Ms. Bradshaw’s cognitive dysfunction and significant memory issues is relevant to her ability to manage her finances as well as her healthcare.” It further asserts that the testimony from Nicole Bradshaw is sufficient for the court to have found that Ms. Bradshaw “has or may be entitled to property or benefits which require proper management.” E&T § 13-201(c)(2). Moreover, the Hospital argues that, because both physicians and the social worker testified that Ms. Bradshaw required institutional care, the evidence was “sufficient for the court to infer that Ms. Bradshaw’s living expenses will increase once she is residing in a facility,” and “as a result, she may be entitled to government benefits.”
FOOTNOTES
1 To avoid confusion, we will refer to Ms. Bradshaw’s sister, Nicole Bradshaw, by her full name
Ms. Bradshaw contends that the circuit court abused its discretion when it appointed a guardian of her property. She asserts that “the record is virtually devoid of evidence” regarding her capacity to manage her property, or even what property she owns. Ms. Bradshaw argues that neither Dr. Yu nor Dr. Gundareddy testified to her ability to manage her property, and the only medical evidence in the record was the physician’s certificates. She further contends that the physician’s certificates provide contradictory evidence because they state that Ms. Bradshaw can manage her finances with “supervision and monitoring,” but both physicians also checked the box which states that Ms. Bradshaw, “does have a disability that prevents [her] from making or communicating any responsible decisions concerning [her] property and has a demonstrated inability to manage [her] property and affairs effectively because of physical or mental disability.”
Ms. Bradshaw further argues that Ms. Somerville’s testimony
2 The Hospital alleged in its petition that a blood test revealed that Ms. Bradshaw had not been taking her seizure medication.
3 See Md. Code Ann., Estates & Trusts Art. (“E&T”) §§ 13-201(a) and 13-705(a) (2017 Repl. Vol.); Md. Rules 10-201 and 10-103(b) (2).
Based on the record here, we cannot conclude that the circuit court abused its discretion in appointing a guardian of the property, pursuant to E&T § 13-201(a)(1), for Ms. Bradshaw. The court determined that the Hospital had demonstrated by a preponderance of the evidence “that Ms. Bradshaw lacks the sufficient capacity to manage her property and affairs effectively and this lack of ability is caused by her physical and mental disability.” The court also considered Nicole Bradshaw’s testimony that Ms. Bradshaw had “life insurance and everything,” and Ms. Bradshaw told her daughter “what she want[s] done with her money because she likes to shop too.” (Emphasis added.). Nicole Bradshaw further indicated that Ms. Bradshaw received “a check” for her minor son. Thus, the court found that Ms. Bradshaw “may be entitled to property or benefits that require proper management.” E&T § 13-201(a)(2). The court’s decision in this regard was well within its discretion.
E&T § 13-705(a) states: “On petition and after any notice or hearing prescribed by law or the Maryland Rules, a court may appoint a guardian of the person of a disabled person.” Md. Rule 10-201 governs petitions for guardianship of the person of an allegedly disabled person.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
E&T § 13-201(a) states: “On petition, and after any notice or hearing prescribed by law or the Maryland Rules, the court may appoint a guardian of the property of a minor or disabled person.” Md. Rule 10-103(b)(2) governs petitions for guardianship of the
property of an allegedly disabled person.
4 Md. Rule 10-202(a) states, in part:
(1) Generally Required. If guardianship of the person of a disabled person is sought, the petitioner shall file with the petition signed and verified certificates of the following persons who have examined or evaluated the alleged disabled person: (A) two physicians licensed to practice medicine in the United States, or (B) one such licensed physician and one licensed psychologist, licensed certified social worker-clinical, or nurse practitioner.
5 Nicole Bradshaw later clarified that she was willing to serve as Ms. Bradshaw’s guardian of the person.
6 The Surrogate decision making statute, Md. Code Ann., Health-General Art. (“HG”) § 5-605 (2018 Repl. Vol.), allows for “authorization of a surrogate” to make healthcare decisions “for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent in accordance with this subtitle or whose health care agent is unavailable.” Guardianship is listed as the first priority, under HG § 5-605(i).
7 The term, “supported decision making,” “means a process by which an adult, with or without having entered a supported decision-making agreement, utilizes support from a series of
relationships in order to make, communicate, or effectuate the adult’s own life decisions.” E&T § 18-101(b).
8 “Unavailable” includes situations where a health care provider cannot determine if there is a health care agent or surrogate decision maker, or where the health care agent or surrogate decision maker is unresponsive to requests, incapacitated, or unwilling to make decisions regarding health care. See Surrogate decision making statute, Md. Code Ann., HG § 5-605(a)(1)(iii) (2018 Repl. Vol..
9 HG § 5-605(a)(3) states:
A friend or other relative may make decisions about health care for a patient under paragraph (2) of this subsection if the person: (i) Is a competent individual; and
(ii) Presents an affidavit to the attending physician stating:
1. That the person is a relative or close friend of the patient; and 2. Specific facts and circumstances demonstrating that the person has maintained regular contact with the patient sufficient to be familiar with the patient’s activities, health, and personal beliefs.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 04 MFLU Supp. 46 (2024)
Voluntary impoverishment; mother; potential income
The Appellate Court affirmed the St. Mary’s County Circuit Court’s finding that mother was voluntarily impoverished and its finding regarding mother’s potential income.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
that Father would have full custody of J until the hearing on the Final Protective Order.5 The court issued a Final Protective Order on September 13, 2018, effective until September 12, 2019, ordering custody of J to remain with Father.
On August 28, 2018, Father filed a petition for modification of custody, requesting that Mother’s access to J be supervised based on allegations that Mother had physically abused J. On December 14, 2018, the court issued an order suspending Father’s child support payments to Mother.
In this appeal, Tekneca Mason (“Mother”), appellant, challenges an order of the Circuit Court for St. Mary’s County ordering her to pay John A. Mason, Jr. (“Father”), appellee, monthly child support, support arrearages, and attorney’s fees, as well as to pay a portion of the best interest attorney’s fees. Mother has filed an informal brief1 presenting the following issues,2 which we have consolidated and rephrased as follows:
1. Did the circuit court err in finding that Mother was voluntarily impoverished and imputing income to her?
2. Did the circuit court abuse its discretion in ordering Mother to pay child support and arrearages?
3. Did the circuit court abuse its discretion in ordering Mother to pay attorney’s fees and best interest attorney’s fees?
4. Did the circuit court err in striking Mother’s child support and custody request?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties are divorced and share one minor child together, “J,” born in 2007.3 Pursuant to a consent order entered on August 13, 2018, the parties had agreed to share physical and legal custody of J.4 That same day, however, Father sought and obtained an Interim Protective Order, awarding him full custody of J, based on allegations that J had been beaten with a belt while in the custody of Mother. On August 15, 2018, the court issued a Temporary Protective Order, which provided
On October 21, 2019, the court issued a consent order, providing that J would continue to reside with Father, and Mother would have alternating weekend access once she relocated to her new residence. Following a review hearing on September 22, 2020, the court issued a consent order continuing the parties’ agreement that J continue to reside with Father and that Mother have alternating weekend access. On July 9, 2021, Mother filed a petition for contempt, alleging that Father had denied her weekend access and phone communication with J. Following multiple service of process issues, the contempt hearing was scheduled for October 8, 2021, and rescheduled to January 3, 2022.
On October 22, 2021, Father filed a petition for contempt, alleging that Mother had neglected J, violated the terms of the consent order requiring that she be home with J while J was at her residence, and subjected J to child abuse in the care of Mother’s older children, who had jeopardized J’s safety.
Father also filed a petition for modification of access and child support, requesting that Mother’s access be supervised and that he be awarded child support, attorney’s fees and costs. Father further requested that the court appoint a best interest attorney.
The court appointed Joshua S. Brewster as J’s best interest attorney and ordered the parties to each pay $500 into Mr. Brewster’s trust account as an initial contribution for his fees. Mother filed a motion to strike the best interest attorney, which the court denied.
On December 28, 2021, Father filed a supplemental petition for modification of access and support, requesting sole legal custody, child support, and supervised access for Mother. On February 18, 2022, Mother filed a petition for contempt on grounds that Father had unjustifiably denied and interfered with her visitation with J since June 2021.
During the proceedings, the parties engaged in continuous discovery disputes, resulting in multiple motions to compel by both parties, and requests for sanctions filed by Father for Mother’s failure to provide discovery responses. Father also moved to compel Mother to file a long form financial
statement, which the court granted, and Mother submitted the long form financial statement on April 1, 2022.
On May 9, 2022, the court held a status hearing on all pending motions. The court noted that the parties had filed thirteen pleadings since mid-February. Mother advised the court that she wished to withdraw all pending motions and pursue access and custody at the merits hearing for custody. Father argued that Mother had submitted incomplete interrogatory responses and failed to produce requested documents related to income, specifically bank statements, tax returns, W-2s and 1099s.
Mother argued that she had no money, and she was disabled and receiving Temporary Cash Assistance (“TCA”).6 She stated that she had produced all documents in her possession, and she was unable to access her employment records from work because she had filed for workers’ compensation due to a work injury. The court ordered Mother to provide all requested documents that were in her control, or constructively in her control, to Father before the hearing on May 23, 2022.
On May 19, 2022, Mother filed a Counter-Complaint for Custody and Child Support. Father filed a motion to strike the counter-complaint on grounds that the counter- complaint was untimely and failed to set forth the relief sought. Following a hearing before a magistrate on September 2, 2022, the magistrate issued a Report on September 6, 2022, recommending that the circuit court grant the motion to strike the counter-complaint. The magistrate found that Mother’s counter-complaint had been filed seven months after Father’s complaint, trial was scheduled for September 9, 2022, and Mother’s counter- complaint could delay the litigation. Mother filed exceptions to the magistrate’s findings, requesting that the issue be addressed at the merits hearing on September 9, 2022.
On September 9, 2022, the court held an evidentiary hearing on the issues of custody and access. The parties agreed to draft a consent order reflecting the agreement regarding custody and access, and to address the issue of child support at a subsequent hearing. The court ordered Mother to produce any outstanding financial information not previously produced to Father in advance of the next hearing.
At a hearing on December 21, 2022, the parties agreed on the record to modify the draft consent order. On January 4, 2023, the circuit court entered a Consent Order memorializing the parties’ agreement regarding custody and access. This consent order provided that Father would have primary physical custody of J and that the parties would share joint legal custody, with Father having tie breaking authority. The order further provided that Mother would be entitled to access J’s school and medical records, and she and J “may speak daily if they both agree to do so.” Pursuant to the order, Mother would have visitation with J every other Saturday from 12:00 p.m. to 8:00 p.m., or on Sunday from 10:00 a.m. to 6:00 p.m., in the event J had a previously scheduled school or extra- curricular activity on Saturday. The parties agreed that Mother was not permitted to bring J to her residence, and she could bring only her two other minor children and her parents with her when visiting J. The consent order also contained provisions governing the exchange of contact information,
school portal access, travel documents, and outstanding discovery.
On January 6, 2023, the court held an evidentiary hearing on the issue of child support. Father’s counsel argued that Mother had failed to produce additional financial information in advance of the hearing, as ordered by the court. Mother stated that she was ready to proceed with the child support hearing, and she had previously produced all documents and tax information to Father.
Father’s counsel questioned Mother regarding her purchase of a vehicle, and she testified that she applied to obtain financing of a vehicle through Carvana in April 2021. On the financing application, which Father offered into evidence, Mother reported annual income of $42,078.00. Father also offered into evidence a February 2022 Bank of America account statement for an account ending in 99, in Mother’s name. Mother denied that she was the account holder of the Bank of America account, and she testified that the bank account belonged to her daughter, “H,” who was nine years old. Mother acknowledged that her name appeared on the signature card for the bank account and H’s name did not appear on the bank statement or records. Mother objected to the admission of the Bank of America account documents into evidence on the ground that the bank account was not her account, but her daughter’s account. The court admitted the documents over Mother’s objection.
Mother testified that she had not made deposits or withdrawals from the Bank of America account. Father’s counsel offered into evidence a signature card and statement for a Bank of America account ending in 82, containing Mother’s name and H’s name. The court also admitted, over Mother’s objection, copies of checks made payable to Mother in the amounts of $476, $680, and $120, which had been deposited in the account ending in 82 between September and November, 2022. Father’s counsel further questioned Mother regarding a PNC Bank account statement dated March 19, 2022 to April 20, 2022. Mother testified that the PNC account belonged to her and her other daughter, and the account had been closed. Mother objected to the admission of the PNC statement on the ground that she was unsure whether that PNC bank statement belonged to the account she shared with her daughter. The court admitted the evidence over Mother’s objection. Mother’s interrogatory responses, responses to requests for production of documents, and financial statements also were admitted into evidence without objection.
Mother testified that she had received checks from Ms. Payne, a woman she helped with shopping, doctor’s appointments, and paying bills. Mother testified that she did not work for Ms. Payne, but she volunteered her services. Mother confirmed that she had not paid any child support to Father in the preceding four years, during which time Father had custody of J.
Mother testified that she had worked at the Charles County Nursing and Rehabilitative Services until she suffered a back injury and stopped working in September 2021. She reported the income she earned from that job on her financing application for Carvana. She did not disclose her bank accounts on her financial statement because the accounts
were closed. Mother reported on her financial form that she did not pay rent because she was not paying rent at the time she completed it. At some point in 2022, Mother paid rent of $150.00 per month, which was decreased to $83.00 per month. Mother confirmed that she did not list her monthly car payment to Carvana of $291.00 per month or her auto insurance payments of $105.00 per month on her financial statement. Mother testified that she took cruise vacations in 2019 and 2022 and vacationed in Ocean City. Her sister paid for her cruise in 2022.
The child support merits hearing was continued to May 11, 2023. At the hearing, Mother confirmed that she had sought a protective order against Father after the previous hearing for photographing her license plate, investigating her credit, and tracing her car to Carvana. The petition for a protective order had been denied. The court admitted the petition for a protective order without objection.
Father testified that he paid child support to Mother prior to 2019, including during the time that J was living with him. He paid $309.46 per month for J’s health insurance, and J’s orthodontist provided him with an estimate of $5,300 for the cost of braces. He had incurred attorney’s fees since the filing of Mother’s petition for contempt in 2021, and he was requesting an award of child support, some payment toward J’s orthodontic bills, and attorney’s fees.
In closing, Father’s counsel argued that Mother had failed to cooperate in discovery, forcing him to obtain information regarding her finances by subpoena. He argued that the evidence showed that Mother had the ability to pay child support based on her reported income of $42,078, and he requested $580 per month in child support, pursuant to the Child Support Guidelines. He further argued that Father was entitled to an award of attorney’s fees.
Mother argued to the court that she had been out of work since 2017, and though she returned to work briefly, she stopped working in 2018 due to a “back issue.” Mother stated that she did not have any income because she could not work, and she had been waiting for disability payments.
The court issued an oral opinion at the conclusion of the evidence and argument. After reviewing the evidence in light of the factors set forth in Dillon v. Miller, 234 Md. App. 309 (2017), the court found that Mother was voluntarily impoverished. It estimated Mother’s potential income to be $42,000.78 for purposes of the Child Support guidelines.
The court determined Father’s income to be $90,096, based on current pay stubs. Using the Child Support Guidelines in effect at the time Father filed his motion for modification of support, the court calculated the appropriate amount of child support to be $580 per month. The court ordered the child support to be retroactive to November 1, 2021. With respect to orthodontia expenses, the court ordered that the expenses be divided between the parties, with 32 percent to be paid by Mother and 68 percent to be paid by Father. The court further ordered Mother to provide any evidence of health insurance to Father and that Father submit the insurance to the orthodontist. The court determined that an award of attorney’s fees of $2,000 was appropriate. On May 23, 2023, the court entered a written order setting forth these findings,
as well as on order for the payment of $2,200 in fees to the best interest attorney, to be paid, in part, by both parties. This appeal followed.
MOTION TO DISMISS
Father initially argues that Mother’s appeal should be dismissed as untimely because she states in her informal brief that she is appealing from orders entered on May 22, 2022 and September 6, 2022, yet she filed this appeal on June 16, 2023. He argues that this appeal violates Md. Rule 8-202(a), which requires that a notice of appeal be filed within 30 days following entry of the judgment or order from which the appeal is taken unless otherwise provided by Rule or law.
Although Father is correct that Mother’s informal brief states that she is appealing the orders of May 22, 2022 and September 6, 2022, Mother’s appeal pertains to issues addressed in the May 23, 2023 order, which is a final judgment. Mother’s appeal filed on June 16, 2023, was filed within thirty days of the May 23, 2023 judgment, and it is timely with respect to that judgment. Accordingly, we deny Father’s motion to dismiss and address the merits of Mother’s challenges to the May 23, 2023 judgment regarding child support and attorney’s fees.
STANDARD OF REVIEW
Maryland Rule 8-131(c) sets forth this Court’s standard of review:
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
A trial court’s factual findings are not clearly erroneous if supported by competent evidence. St. Cyr v. St. Cyr, 228 Md. App. 163, 180 (2016). Ordinarily, we review child support orders for abuse of discretion, and orders involving an interpretation of Maryland statutory law under a de novo standard of review. Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013) (citation omitted).
DISCUSSION I.
Voluntary Impoverishment
Mother argues that the circuit court erred in finding her voluntarily impoverished and imputing income to her because she “is receiving State assistance, (TCA) and Housing, medically disabled and unable to work.” She asserts that the court ruled on May 9, 2022 that she was “medically disabled, receiving State assistance” and that “child support was STAYED and no longer an issue in this case.”
Father argues that the circuit court made no evidentiary rulings at the hearing on May 9, 2022, and therefore, there are no rulings from that hearing for this Court to consider. Father further argues that the court’s finding at trial of voluntary impoverishment was supported by the evidence.
The circuit court hearing on May 9, 2022 was a status hearing. The parties did not submit evidence and the court did not
make any rulings of law. During a discussion of the Father’s request for Mother’s outstanding discovery responses, the circuit court judge stated that child support was “no longer an issue.” Father’s counsel explained to the court that Father was seeking to modify child support. The court clarified its statement by explaining: “The only stay in child support I meant was your client doesn’t owe anything at this time because he has custody. If you want to bring up the subject two weeks from now, you may.”
The trial judge’s statements during the status hearing addressed preliminary matters prior to trial. The evidentiary rulings properly before this Court on appeal are the circuit court’s findings of fact and rulings of law during the child support merits trial in 2023, which included the circuit court’s finding of voluntary impoverishment.
In every child support determination, a court must ascertain each parent’s “actual income” or “potential income … if the parent is voluntarily impoverished.” Md. Code Ann., Fam. Law (“FL”) § 12-201(i) (2023 Supp.). A parent is voluntarily impoverished when he or she “has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.” Goldberger v. Goldberger, 96 Md. App. 313, 327, cert. denied, 332 Md. 453 (1993). Accord Dillon v. Miller, 234 Md. App. 309, 319 (2017) (quoting Durkee v. Durkee, 144 Md. App. 161, 182 (2002)).7 In determining whether a parent is voluntarily impoverished, a court should consider several factors, including:
1. [the parent’s] current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. the relationship of the parties prior to the divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld [child] support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party.
Goldberger, 96 Md. App. at 327 (quoting John O. v. Jane O., 90 Md. App. 406, 422 (1992), abrogated on other grounds by Wills v. Jones, 340 Md. 480, 494 (1995)). A court must consider the mandatory factors in its analysis, but is not required to “articulate on the record its consideration of each and every factor.” Long v. Long, 141 Md. App. 341, 351 (2001) (quoting Dunlap v. Fiorenza, 128 Md. App. 357, 364 (1999)). “A circuit court’s finding of voluntary impoverishment will be affirmed if, after viewing the record in the light most favorable to the prevailing party, it is supported by any competent, material evidence in the record.” Dillon, 234 Md. App. at 319. In this case, the court considered each of the required factors and made express findings on the record. In addressing Mother’s physical condition, the court noted that the first time it heard Mother was unable to work because of a disability
was in her closing argument. She provided no evidence in discovery or at trial to support her claim of disability. There was no evidence regarding Mother’s level of education, and with respect to the timing of any change in employment or other financial circumstances, the court found that the petition for child support was filed on October 22, 2021, and there was testimony that Mother was employed for a period of time in 2021 by Asbury and Charles County Nursing and Rehabilitation Services, as evidenced by the verification of employment and income submitted to Carvana. The court also noted that Mother was doing odd jobs and assisting others to obtain income that was paid to her in cash and by checks. The court found that the parties had a strained relationship and were not cooperative with one another. The court stated that there was no testimony regarding any efforts to obtain retraining. Though Mother had not withheld child support, there was a period of time that Father continued to pay child support while J was in his care, and Mother made no efforts to repay any of those funds or otherwise apply them towards the care of J.
The court explained that it did not find Mother’s testimony credible that other individuals had given her money to deposit into her bank account and that those funds were used to pay others’ bills. The court also noted that, contrary to Mother’s contention in closing that she suffered from a disability, it heard evidence that Mother had taken trips and she was obtaining income from others by assisting them. Based on the court’s consideration of evidence that Mother was earning some income and taking vacations, and the court’s findings regarding Mother’s lack of credibility, we conclude that the circuit court’s finding that Mother was voluntarily impoverished was supported by the evidence.
Once a court determines that a parent is voluntarily impoverished, “the court must determine the party’s potential income.” Petitto v. Petitto, 147 Md. App. 280, 317 (2002). A court’s determination of “potential income” necessarily involves some degree of speculation. Id. at 318 (citation omitted). Where the potential income calculated by the circuit court is “realistic, and the figure is not so unreasonably high or low as to amount to abuse of discretion, the court’s ruling may not be disturbed.” Id. (cleaned up).
In determining Mother’s potential income, the court noted that the relevant factors were set forth in FL § 12-201(m), i.e., age, physical and behavioral condition, educational attainment, special training or skills, literacy, residence, occupational qualifications and job skills, employment and earnings history, record of efforts to obtain and retain employment, criminal record, and any other employment barriers.8 The court referenced its previous findings regarding voluntary impoverishment, and it stated that it was placing the “most weight” on Mother’s employment and earnings history in determining potential income. The court imputed income to Mother based on the verified income of $42,000.78 provided in Mother’s application to Carvana. The record supports the court’s finding regarding Mother’s potential income. II.
Award of Child Support and Arrearages Mother argues that the circuit court abused its discretion in
awarding monthly child support of $580.00 and arrearages of $11,000 on the grounds that she is receiving State assistance (TCA), is disabled and unable to work. She does not challenge the court’s calculation of support based on the Child Support Guidelines, nor does she challenge the court’s calculation of arrearages. Rather, she contends that the order was improper because it was based on an improper finding of involuntary impoverishment. As indicated, we have rejected that argument, and therefore, we cannot conclude that the court abused its discretion in its rulings regarding child support.
III.
Attorney’s Fees and Best Interest Attorney’s Fees Mother contends that the circuit court abused its discretion in awarding Father $2,000 in attorney’s fees.9 She asserts that Father’s argument that she was noncompliant with discovery requests was false because she provided all requested financial documents to Father. She further contends that Father was responsible for denying her access and communication with J based on an unsubstantiated complaint to the Department of Child Services.
FL § 12-103(b) authorizes a court to award costs and counsel fees in an action for the modification of child support after considering: “(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.” A court’s decision to award attorney’s fees in family law cases is reviewed for abuse of discretion. Sang Ho Na v. Gillespie, 234 Md. App. 742, 756 (2017) (citing Steinhoff v. Sommerfelt, 144 Md. App. 463, 487 (2002)).
With respect to the financial status of each party, the court noted the financial statements submitted by the parties and pointed out the number of hearings and orders required to address Mother’s discovery responses, ultimately resulting in the court’s finding of voluntary impoverishment. In considering the parties’ needs, the court stated that the Father’s income was twice as much as Mother was able to earn. The court found that there was substantial justification for bringing the case because the parties were unable to come to an agreement and exchange basic information. The court explained that Mother’s “failure to produce information was something that substantiated an attorneys’ fees award of some amount.” The court decided that an award of $2,000 “was reasonable under the circumstances.” Given the circuit court’s consideration of the statutory factors and findings as to the parties’ financial resources, we perceive no abuse of discretion in the court’s order awarding Father $2,000 of the $37,981 he incurred in attorney’s fees, which were due, in large part, to Mother’s failure to produce requested financial information.
Mother also contends that the circuit court abused its discretion in ordering her to pay $600 of the best interest attorney’s fees because she was denied the opportunity to respond to the request and the best interest attorney “spent near zero time with [J].” Mother had received a waiver from Family Services in the
amount of $500 for the best interest attorney fees. On December 27, 2022, the best interest attorney filed a petition requesting payment of his fees in the amount of $2,200, less the $500 that he was awaiting from Family Services. Mother did not file a response to the best interest attorney’s petition for payment. On May 23, 2023, the circuit court entered an order providing for the payment of Mr. Brewster’s fees as follows: (1) that the $500 previously paid by Father and held in escrow be paid to Mr. Brewster; (2) that Mr. Brewster be permitted to apply the $500 from Family Services towards the amount of $2,200; (3) that Father pay $600 towards the remaining balance; and (4) Mother pay $600 towards the remaining balance.
FL § 1-202(a)(l)(ii) authorizes the court to appoint a best interest attorney to represent the minor child, and subsection (a)(2) provides that the court may “impose counsel fees against one or more parties to the action.” In considering whether to award counsel fees for a best interest attorney, the factors set forth in FL § 12-103(b) are relevant to the analysis. Meyr v. Meyr, 195 Md. App. 524, 555–56 (2010). We conclude that the court’s analysis of the factors under FL § 12-103(b) in determining an award of attorney’s fees applies equally to the best interest attorney’s fees. We perceive no abuse of discretion in the court ordering Mother to pay $600 of the best interest attorney’s fees, and ordering Father to pay $600, in addition to the $500 he paid previously. IV.
Mother’s Child Support and Custody Requests
Mother argues that the circuit court abused its discretion by striking her “[c]ustody and child support request” on the grounds that it was untimely and completed on a pre- printed form. The record does not support this contention.
Following a hearing before a magistrate on September 2, 2022, the magistrate issued a Report on September 6, 2022, recommending that the circuit court grant Father’s motion to strike Mother’s counter-complaint. Mother filed exceptions to the magistrate’s findings, requesting that the issue be addressed at the merits hearing on September 9, 2022. At the custody hearing on September 9, 2022, the parties reached an agreement as to the issues of custody and access, and their agreement was memorialized in a Consent Order entered by the court on January 4, 2023.
As a general rule, “no appeal lies from a consent order.” Barnes v. Barnes, 181 Md. App. 390, 411 (2008). The rationale for the rule is that “‘[t]he availability of appeal is limited to parties who are aggrieved by [a] final judgment,’” and “[a] party cannot be aggrieved by a judgment to which he or she acquiesced.” Id. at 410 (quoting Suter v. Stuckey, 402 Md. 211, 224 (2007)).
In this case, the circuit court did not strike Mother’s countercomplaint. Rather, the counter-complaint became moot once Mother agreed to resolve the parties’ custody and access issues, and the Consent Order was entered by the court. Thus, even if the June 2023 appeal was timely as it relates to this issue, which it is not, the contention in this regard is without merit.
FOOTNOTES
1 Mother filed an informal brief pursuant to this Court’s March 9, 2021 Administrative Order permitting informal briefing in family law cases in which the appellant is a self-represented litigant. See Maryland Rule 8-502(a)(9). Father is represented by counsel.
2 The issues presented by Mother are as follows:
Issue 1: Did the trial court abuse[] its discretion applying child support arrearages of $11,000, and child support on a monthly basis of $580.00 a month to the appellant?
Issue 2: Did the trial court abuse[] its[] discretion by applying a ruling against the appellant on the premise that the appellant is voluntary impoverished and imputation of appellants income[?]
Issue 3: Did the trial court abuse[] its[] discretion by applying attorney’s fees of $2000.00 to the Appellant to be paid to the Appellee’s attorney[?]
Issue 4: Did the trial court abuse[] its[] discretion by awarding Best Interest Attorney’s Fees against the Appellant[?]
Issue 5: Did the trial court abuse[] its[] discretion striking the Appellant[’]s child support and custody requests[?]
3 In the interests of privacy, we refer to the minor child by the initial J.
4 Though the parties have an extensive litigation history, we focus on the procedural history relevant to our discussion of the issues on appeal.
5 The court continued the hearing on the Final Protective Order
until September 13, 2018, to allow Mother to obtain counsel, and it extended the Temporary Protective Order until that date.
6 TCA “provides cash assistance to families with dependent children when available resources do not fully address the family’s needs and while preparing program participants for independence through work.” https://dhs.maryland.gov/blog/ weathering-tough- times/temporary-cash-assistance, archived at https://perma.cc/WTH2-C7D3.
7 The legislature codified this definition by amending Md. Code Ann., Fam. Law (“FL”) § 12-201(i) (2023 Supp.) during the 2020 session. 2020 Md. Laws Ch. 384 (S.B. 847). The current statute, effective July 1, 2022, states that voluntary impoverishment means “a parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” FL § 12-201(q).
8 While this litigation was pending, the legislature amended the list of factors set forth in FL § 12-201(m), and those factors are applicable to cases filed on or after July 1, 2022. See 2021 Md. Laws ch. 305 (H.B. 1339). Father filed the petition for modification of support and access and the supplemental petition for modification and support in 2021. Though the court’s utilization of the § 12-201(m) factors was not required here, § 12201(m) incorporates the factors set forth in Goldberger, 96 Md. App. at 328.
9 Father incurred total attorney’s fees of $37,981.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s judgment for absolute divorce following upon a greater-than-one-year separation. The undisputed facts showed that husband and wife lived separately and apart, and without cohabitation, for over a year prior to the judgment.
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.
all rights and claims between them which may arise by reason of [the parties’] absolute divorce or the death of either.” The Agreement provides, in relevant parts, that the parties renounce all rights to each other’s present or future property; that in the event of divorce the parties waive all claims to spousal support or monetary award as an adjustment of the equities; that there shall be deemed no marital property; and that neither party would have any claim whatsoever to the other’s estate unless they were married at the time of death.1
The parties lived together as husband and wife until Wife moved out of the marital home in January of 2013, and they continued to associate in the years that followed. During the ten years that followed their separation, Husband “would frequently stay over [at Wife’s house] on Christmas Eve and New Year’s Eve.” The parties last resided overnight in the same household on December 31, 2020. There are no children of the marriage.
This case comes to us as a pro se appeal from a judgment for absolute divorce following upon a greater-than-one-year separation. In his informal brief, Frederick William Besche (“Husband”) asks us to “reverse the judgement [sic]” of divorce of the Circuit Court for Baltimore County. He contends that “the trial court improperly awarded a judgement [sic] of absolute divorce” to Deborah Besche (“Wife”), “despite the fact that [he has] been 100% loyal to, and supportive of [his] wife in every way imaginable during the thirty-plus years of [their] marriage.” Husband alleges, some ten years after his separation from his wife, that Wife’s pursuit of a no-fault divorce was motivated by a desire to deprive him of her estate under the terms of their antenuptial agreement, and he characterizes her action as a “fraud.”
Husband does not dispute the facts asserted by Wife that provide the legal grounds for the judgment of absolute divorce. Neither does he challenge the enforceability of the antenuptial agreement, which disposed of all questions of spousal support or monetary award as an adjustment of the equities. We conclude, therefore, that the issues Husband raises on appeal may be summed up as one: Whether the trial court erred as a matter of law when it granted the judgment of absolute divorce?
We discern no error and affirm the judgment of the circuit court.
BACKGROUND
Husband and Wife were married on May 18, 1991, after entering into an Antenuptial Agreement (the “Agreement”) on May 11. The Agreement purported to “finally determine
Complaint for Divorce and Retention of Counsel
On June 6, 2022, Wife filed a Complaint for Absolute Divorce on the grounds of a one-year separation. She asked the court to affirm the validity of the Agreement and to uphold the division of property defined therein. Counsel for Husband, A. David Zerivitz, Esq., filed an answer consenting to the divorce on June 9, and an uncontested divorce hearing was set for September 15.
On September 8, 2022, however, Husband filed a motion to postpone the hearing because he had rejected the settlement agreement. On September 9, he wrote to the court to withdraw his consent to the divorce, asserting that he had given it under duress from his attorney. In this letter, Husband alleged that Wife was “fraudulently pursuing a no-fault divorce,” “solely for the purpose of depriving him of a valuable possession,” which he describes as “her multi-million-dollar estate” that he would inherit if she predeceased him during their marriage.
On September 14, Husband submitted a memorandum to the court, stating that he had fired Mr. Zerivitz that same day and requesting the immediate removal of his appearance from the proceedings. In this memorandum, Husband expressed his opposition to the divorce, but suggested that if it were granted, he should be awarded $200,000.00.2
Mr. Zerivitz filed a motion to withdraw his appearance the following day, September 15, which the court did not grant until October 5. Also on September 15, 2022, Magistrate McBee convened the scheduled uncontested hearing and
acknowledged Husband’s withdrawal of consent. The court scheduled a contested hearing for absolute divorce for January 30, 2023, and Jennifer Anderson, Esq., entered her appearance for Husband.
On January 9, 2023, Husband filed a motion to postpone the contested hearing on the grounds that he “had to discharge [his] current lawyer,” which the court denied the following day. Husband signed an affidavit on January 12, acknowledging his “knowing and voluntary request” for Ms. Anderson to withdraw from the case and “be stricken effective immediately,” and expressing his belief that it would “not unfairly prejudice either party.” Ms. Anderson attached Husband’s signed consent to her motion to withdraw her appearance.
On January 26, Husband submitted a second motion3 to postpone the divorce hearing on the grounds that the court had failed “to make reasonable and acceptable accommodations for victims of narcolepsy,” with attachments detailing his multiple ailments. The court denied the motion on January 30, stating that it was “unclear why a postponement is a reasonable accommodation.”
Contested Hearing for Divorce
The Honorable Ruth Ann Jakubowski duly held the divorce hearing on January 30, 2023, at which Wife was represented by counsel and Husband appeared pro se. Husband’s recently-terminated counsel, Ms. Anderson, attended to “confirm with [Husband],” before the court, “that [Husband] still want[ed] to terminate [her], [did] not want [her] to represent him, and that he [was] going to go forward pro se.” Husband affirmed that Ms. Anderson’s withdrawal was, “what I want” and responded “Yeah, yeah” when the judge asked if he was prepared to represent himself. The judge emphasized that she could not represent Husband or give him legal advice, and he replied, “Okay[,]” declining the judge’s suggestion that he “rehire [Ms. Anderson] for today’s proceeding.” The judge explained to Husband:
The only thing that’s in front of me today is [Wife]’s pleading for divorce, that’s it. If she can prove grounds for divorce, which is a one year separation, I will grant her a divorce. You have not filed anything to counter that other than withdrawing your consent, so you will be allowed to question [Wife] on the grounds for the separation. Understood? That’s it. Because this I can advise you of. Under Maryland law, if you have been separated for one year or more, regardless of what the other person says, if they want to stay married, don’t want the divorce, it doesn’t matter. I can grant a divorce under Maryland law if they have been in fact separated for one year, whether or not you want the divorce.
(Emphasis added.) As Husband hesitated, the judge emphasized: “That’s the law.” Husband replied, “I know.” Wife testified that the couple had separated in January of 2013, when she “left the home” “because [she] was told to.” She stated that “during [the subsequent] 10 years [Husband] would frequently stay over on Christmas Eve and New Year’s Eve[,]” but they had not stayed under the same roof overnight since December 31, 2020. Wife averred
that there was no hope of reconciliation. She entered into evidence the Agreement, the contemporaneous “assets and liability summaries, and the tax returns and documents” that are referenced and incorporated in the Agreement. She explained that pursuant to the Agreement, both parties waived all rights to alimony or monetary award. Wife further testified that she and Husband did not hold “any jointly titled assets at all whatsoever that were acquired during the marriage[.]”
Husband conceded that he “didn’t sleep over during the period that we’re talking about,” attributing it Wife’s “ refus[al] to allow [him]” to do so. He attempted to crossexamine Wife to elicit her reasons “for not allowing [him] to stay in [her] home[.]” However, the judge sustained Wife’s objection, deeming the question irrelevant to her testimony concerning their separation since December 31, 2020. The court limited Husband’s own testimony to matters already testified to by Wife, including the duration of the marriage, their separation, and the prenuptial agreement. As the court stated:
[the] things that [Wife] testified to as it relates to the duration of the marriage, she testified as to when you were married, where you were married, and how long you lived together and when you were separated. And you’ve heard her testify that you were separated continuously since December 31st, 2020.. . . And she also testified about the pre-nup agreement, which was admitted into evidence along with the documents that went with it, which I have also admitted into evidence. That’s the only thing you can talk about in terms of anything you want to tell me as to why you don’t think she’s entitled to a divorce on the grounds of two years separation.
In his case-in-chief, Husband disputed Wife’s claim of continuous separation, insisting that he and Wife, “have lived together under the same roof continuously during that period of time[,]” except for the fact that “if [he] tried to stay overnight she could call the police or something.” Emphasis added. Likewise, he claimed that he and Wife “function 100 percent as husband and wife in every way, except I wasn’t allowed to stay overnight.” Husband testified that during the period in question, he visited Wife “every Saturday, every Sunday. [He] played with the dogs, [they] went to restaurants together, [they] had dinners with friends.” Husband asserted that “[i]f she ever had a problem, [he] would go up there, [he]’d bring [his] tools, and help her saw a door in half or whatever, whatever she needed[,]” and “when she had an emergency, [he came] barreling to her side.” Husband described himself as “a superb husband” and “always 100 percent loyal.”
Judgment of Absolute Divorce
That same day, January 30, 2023, the judge rendered the following ruling:
The Court has considered the papers that were filed in this case, I’ve considered the testimony of [Wife], as well as the testimony of [Husband]. And based on the
circumstances, I do find sufficient grounds to grant a divorce. I do find based on the fact that the parties have been separated for one year, that there are sufficient grounds, more than one year. There are sufficient grounds to grant a divorce and I will grant a divorce.
The judge signed the Judgment of Absolute Divorce from the bench, based upon “testimony having been taken” and “evidence having been considered[,]” and found that the Agreement “resolve[d] all issues pertaining to property and support[.]” The Order incorporated the terms of the Agreement, denied spousal support and monetary award to both parties per the parties’ “express waivers[,]”and ordered each party to pay their own attorneys’ fees and costs. Husband noted this timely appeal.
DISCUSSION
A. Parties’ Contentions
Husband contends that “the trial court improperly awarded a judgement [sic] of absolute divorce to [his] wife, despite the fact that [he] ha[d] been 100% loyal to, and supportive of [his] wife in every way imaginable during the thirtyplus years of [their] marriage.” Husband and Wife do not contest the dispositive facts of the case; Husband does not challenge the existence or validity of the parties’ antenuptial agreement, the fact that Wife moved out of the marital home in 2013, the fact that Husband and Wife last slept under the same roof on December 31, 2020, nor the fact that they have not had sexual relations in the intervening time. Husband explains that “[b]eginning around 2010, the bloom had gone off the rose” and he “suggested [to Wife] that maybe, to promote marital tranquility, and to make our marriage more bullet-proof, she could use a small fragment of her financial reserves to buy a nice house in the suburbs, with much more outdoor room for the dogs to enjoy.”4 He elaborates:
So around 2012, my wife found a nice house in a quiet neighborhood in Cockeysville, and moved into it. We never separated in any way shape or form, and distance did make the heart grow fonder. The facts are that I drove up to her house in Cockeysville virtually every single Saturday and Sunday during those ten years between 2012 and 2022 to have lunch together, to walk the dogs together, to go to the Towson Mall together, to enjoy watching TV series together, and so forth, as one would expect in a normal marriage.
Husband acknowledges that “one of the deciding factors for the granting of a divorce has to do with whether one of the spouses has not stayed overnight for at least a year.” However, he claims that because he and Wife “have not had sex for at least 20 years and maybe 30 years,” it is entirely irrelevant whether or not he had stayed overnight with Wife. Finally, Husband accuses Wife of “manufacturing whatever story that she feels she has to, in order to be granted an absolute divorce, for no other reason than to defeat the terms of [their] antenuptial agreement” and “doing everything
possible to make sure that her blood relatives get all of her financial assets after her demise[.]” Notably, Husband does not contest the validity of the Agreement, describing it as “still-valid, signed and sealed[.]”
Wife asserts that she “testified to all facts required for the court to grant an absolute divorce on the grounds of a oneyear separation[,]” and her “testimony was unrefuted.” She states that “pursuant to Md. Code Family Law §7-103(a)(4), the court may decree an absolute divorce on the grounds of a 12-month separation when parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce[,]” and the circuit court was “correct in awarding the divorce to [her] on this ground as a matter of law.”
Wife also contends that the hearing was procedurally fair, as “[Husband] stated he wanted to represent himself and confirmed he understood that the judge could not represent him or give him legal advice” at the January 30, 2023 contested divorce hearing, where he also requested his attorney’s appearance be stricken.
Addressing Husband’s “numerous” allegations articulated in his briefs, Wife emphasizes that he did not raise them before the circuit court and that they are not pertinent to the legal analysis of divorce. She observes that some of the events he cites occurred more than twenty years ago and contends that Husband neglected to raise these objections “in a timely manner and in the appropriate forum.” Wife argues, that fundamentally, “[Husband] takes issue with [Wife] having a right to be granted a divorce over his objection, even if the facts satisfy the elements set forth in the relevant statute.”
B. Standard of Review and Legal Framework
Where an action has been tried without a jury, this Court “review[s] the case on both the law and the evidence,” and we will “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). We “review[] de novo a lower court’s interpretation of a contract, as well as its interpretation and application of Maryland statutory and case law.” Lloyd v. Niceta, 485 Md. 422, 440 (2023) (citations omitted).
At the time of the parties’ divorce hearing and judgment on January 30, 20235, Maryland Code (1984, 2019 Repl. Vol.) Family Law Article (“FL”) § 7-103 recognized grounds for absolute divorce in a “12–month separation, when parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce[.]” FL § 7-103(a)(4) (effective October 1, 2018 to September 30, 2023). The statute departs from the previous requirement that the separation supporting a nofault divorce be “voluntary,” as stipulated in FL § 7-103 up until September 30, 2011.6 Further, under FL § 7-104: In and of itself neither of the following is a defense to or a bar to a divorce:
1. an unaccepted offer of reconciliation by a spouse; or 2. a rejected attempt at reconciliation by a spouse.
FL § 7-104(a). Therefore, it is clear that one party can effect the separation that leads to a no-fault divorce under FL § 7-103(a) unilaterally.
The nature of the separation required under FL § 7-103(a)(4) at the time that this case was decided is explained in our 2014 opinion in Bergeris v. Bergeris, in which we addressed the term “separate and apart without cohabitation[.]” Bergeris v. Bergeris, 217 Md. App. 71, 76 (2014). We held that the clause “‘[s]eparate and apart’ means that the parties cannot live under the same roof during the required statutory period. This is a requirement even if the parties have discontinued having sexual relations.” Id. (citing Callahan & Ries, Fader’s Maryland Family Law at § 4–4[9][5] (5th ed. 2011).
We next explained that the clause “‘[w]ithout cohabitation’ means that there must be no sexual relations between the husband and wife living separate and apart with the intention and for the purpose of establishing this particular ground for divorce.” Id. Therefore, under the statute in effect when the court decided this action, “[t]he separation contemplated by the statute does not occur until the parties both cease living in the same house and cease having sexual relations.” Id. However, we have also described “‘cohabitation’ as a term that embraces more than a sexual relationship alone” and “connotes the mutual assumption of the duties and obligations associated with marriage.” Bergeris, 217 Md. App. at 77-78 (quoting Ricketts v. Ricketts, 393 Md. 479, 484 n.1 (2006)). In Gordon v. Gordon, the Supreme Court of Maryland formulated a non-exhaustive “list of factors to consider in determining whether a relationship constitutes cohabitation” to guide the interpretation of separation agreements that restrict the parties’ conduct with new partners. Gordon v. Gordon, 342 Md. 294, 308 (1996). Emphasizing that “no one factor serves as an absolute prerequisite for cohabitation[,]” the Court directed courts to consider the indicia:
1. establishment of a common residence;
2. long-term intimate or romantic involvement;
3. shared assets or common bank accounts;
4. joint contribution to household expenses; and
5. recognition of the relationship by the community. Id. at 308-09. Additionally, the Court clarified that a “common residence is not established merely by time spent together, but rather, requires that both parties treat the residence as their home.” Gordon, 342 Md. at n.10.
C. Analysis
As we explain above, the controlling statute at the time of the judgment from which Husband appeals was satisfied so
long as Husband and Wife lived “separate and apart without cohabitation” for at least twelve months. FL § 7-103(a)(4). The terms “separate and apart” denotes, that “the parties cannot live under the same roof during the required statutory period.” Bergeris, 217 Md. App. at 76 (citing Callahan and Ries, at § 4–4[9][5]). Husband concedes that he and Wife have not spent the night under the same roof since January 1, 2021, more than two years before the circuit court granted their divorce.
The statute also requires that the divorcing parties eschew cohabitation. FL § 7- 103(a)(4). Generously construed, Husband makes a legal argument that he endeavored to continue a cohabitation arrangement, but Wife refused him. He asserts that he would have continued to spend nights at Wife’s house at least once a year, “except I was not allowedyou know, if I tried to stay overnight she could call the police or something.” However, Maryland divorce law ceased to include a “voluntariness” requirement for separation under FL § 7-103 as of September 30, 2011. Neither is “an unaccepted offer of reconciliation” a defense to a divorce. FL § 7-104(a)(1). Therefore, the bare fact that Wife and Husband shared no overnight visits for over two years is sufficient to establish the requirement that the parties live ‘separate and apart’ for the statutory period.
Moreover, interactions between the parties in the two years preceding the circuit court’s judgment fail to demonstrate a single one of the Gordon factors considered by Maryland courts to be indicia of cohabitation. Gordon, 342 Md. at 30809. Husband and Wife abandoned a shared residence some ten years prior. Husband declares that “[the parties] have not had sex for at least 20 years[.]” Neither party asserts that they have common bank accounts, and Husband indicates that Wife used “her financial reserves” to buy her house. Finally, although Husband claimed that during his weekly visits to Wife’s home, “[they] went to restaurants together, [they] had dinners with friends[,]” he does not assert that the community recognized them as cohabitants.
Here, the circuit court granted the January 2023 judgment of divorce on the then- controlling statutory requirement of a “12–month separation, when parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce[.]” FL § 7-103(a)(4). The undisputed facts show that Husband and Wife did indeed live separately and apart, and without cohabitation, for over a year prior to the judgment. Therefore, we find no error in the court’s finding of “sufficient grounds to grant a divorce[,]” and we affirm its judgment. JUDGMENT
FOOTNOTES
1 The Agreement provides, in relevant parts:
5. Except as otherwise provided in this Agreement each party renounces any interest by way of curtesy, dower, homestead or similar rights in and to any property of the other now owned or hereafter acquired by either party[.] . . .
* * *
10. [T]he parties mutually release, waive and surrender any and all rights and claims to alimony and support[.] . . .
11. Each party waives and releases his or her right to claim a monetary award as an adjustment of the equities and rights of the parties concerning marital property . . . in the event the proposed marriage is terminated by an absolute divorce. Each party agrees that for the purposes of this Agreement, this Marriage and any absolute divorce there shall be deemed to be no marital property[.] . . .
* * *
15. Except as otherwise expressly provided in this Agreement, each party waives and releases all rights and claims that he or she may have to share or participate in any capacity whatsoever in the estate of the other party upon such other party's death[.] . . . Notwithstanding the foregoing, the parties expressly agree that in the event of the death of the other while still married to the other, the surviving party shall be entitled to family allowance as provided by Maryland Code, Estates and Trusts, Section 3-201.
2 In his letters to the circuit court and his briefs to this Court, Husband asserts a number of claims that are not cognizable in the present action, and from which he derives his demand for a monetary award. See, e.g., Husband’s allegation that Wife: replace[d] at least seventeen (17+) original, historic, circa 1920, wooden-framed windows (containing irreplaceable period glass) with CHEAP VINYL WINDOWS that do not come remotely close to conforming to the architectural historic standard for windows as described within the Guilford
covenant. So [he] will never be able to sell this house until all of those 17 windows are replaced with extremely expensive Covenant-compliant windows that have been preapproved by the Guilford Association, well before their installation by a preapproved vendor.
(Emphasis removed).
3 Husband also emailed the judge to explain the motion and to tell the judge that she, the judge, “may have engaged in a conspiracy with the plaintiff’s attorney.”
4 In quoting Husband’s appellant’s brief, throughout, we amend capitalization to reflect the conventions of formal writing and promote readability.
5 In October 2023, during the pendency of this appeal, a revision to the statute governing the grounds for absolute divorce took effect. FL § 7-103. Under the revised provisions: The court may decree an absolute divorce on the following grounds: (1) 6-month separation, if the parties have lived separate and apart for 6 months without interruption before the filing of the application for divorce[.] FL § 7-103(a)(1). Further:
(b) Parties who have pursued separate lives shall be deemed to have lived separate and apart for purposes of subsection (a)(1) of this section even if: the parties reside under the same roof; or the separation is in accordance with a court order. FL § 7-103(b).
6 See Aronson v. Aronson, 115 Md. App. 78, 95–96 (1997) (In 1997, interpreting the concept of voluntariness pursuant to Family Law § 7-103(a), a court could grant an absolute divorce on the grounds of voluntary separation. This could occur “if the parties voluntarily have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and there is no reasonable expectation of reconciliation.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s order requiring the Montgomery County Department of Health and Human Services to pay for Amtrak train tickets and hotel accommodations for mother’s monthly in-person visitation with two children living with relatives in North Carolina. Although the juvenile court had the authority to direct the department to bear expenses in connection with the permanency plan, nothing in the record suggested that those specific accommodations were necessary to serve the minor children’s 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.
had the authority to direct the Department to bear expenses in connection with the permanency plan, and that it did not abuse that discretion when it ordered the Department to pay Mother’s travel expenses. However, we also hold that the juvenile court abused its discretion in specifying that the Department provide a particular type of transportation and accommodation in its order. We therefore vacate the juvenile court’s order to the extent that it directed the Department to provide Amtrak tickets and hotel accommodations for Mother’s in-person visitation in the State of North Carolina.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal consolidates two child in need of assistance (“CINA”) cases, involving minor children Z.A. and K.P. The minor children have a common mother (“Mother”) and different fathers; K.P.’s father is deceased and Z.A.’s father has not participated in the minor child’s CINA matter. Since February 2020, the minor children have lived in North Carolina in the care of J.B., a cousin of Z.A.’s father, and her husband, D.B. This appeal concerns an order facilitating Mother’s in-person visitation with the minor children pursuant to the juvenile court’s permanency plan of reunification with Mother.
On February 22, 2023 (the “February 22 order”), the Circuit Court for Montgomery County, sitting as a juvenile court, directed the Montgomery County Department of Health and Human Services (“the Department”) to provide Mother with monthly in-person visitation. At a permanency planning review hearing held on June 9, 2023, the juvenile court ordered the Department to pay for Amtrak train tickets and hotel accommodations for Mother’s monthly in-person visitation with Z.A. and K.P. in North Carolina. The juvenile court issued a written order reiterating this order on June 13, 2023 (the “June 13 order”). The Department appealed, presenting us the following question:1 Did the juvenile court exceed its authority and err as a matter of law by ordering the Department to make specific expenditures in order to facilitate Mother’s visits in North Carolina?
Mother and K.P. filed briefs in opposition.2
For the reasons discussed below, we answer the Department’s question partly in the negative. We hold that the juvenile court
The Department initiated both CINA cases at issue in this appeal on July 9, 2019, due to indications of neglect when Z.A. tested positive for PCP at birth on July 5. Z.A., K.P., and three of their siblings—A.A., K.A., and T.P.—were placed in the custody of the Department for placement in licensed foster care pending placement in kinship care. Mother did not contest the CINA petition and agreed to submit to substance abuse treatment and undergo a psychological evaluation. The juvenile court found all five children to be CINAs on July 23, 2019, and, following the completion of a home study, Z.A. and K.P. were placed with J.B. and D.B. in Creedmoor, North Carolina.
In June 2022, at which point the children had been placed in foster care for thirty- five months, the juvenile court changed the children’s permanency plans from reunification to adoption. The orders changing the permanency plans came before us in a consolidated matter captioned In re Z.A., A.A., K.A., K.P., T.P., No. 715, 715, 716, 717, 718, 719, Sept. Term, 2022. In an unreported opinion, we affirmed the juvenile court’s orders. 2022 WL 17247604 (Md. Ct. Spec. App. Nov. 28, 2022). The Department subsequently initiated guardianship proceedings for Z.A., K.A., K.P., and K.A., seeking to end Mother’s parental rights.
Mother submitted to a second psychological and cognitive evaluation in January 2023, which showed “no indications that [Mother] suffers from a psychiatric disorder or cognitive disability that would impair her ability to parent her children.”
The examiner recommended that Mother continue to participate in mental health and substance abuse treatment programs and case management support. Mother’s therapists reported in February that she had made “steady progress” in her mental health treatment.
In February 2023, the Department withdrew its guardianship petition for K.P., who had refused to consent to adoption, and subsequently withdrew its guardianship petitions for the three other minor children. The juvenile court held a permanency
plan hearing on February 27, 2023, and changed Z.A. and K.P’s permanency plans to concurrent plans of reunification with Mother and custody and guardianship to the children’s current caregivers. The juvenile court’s permanency plan review hearing order entered on February 22 provided that “the Department shall provide [Mother] monthly in-person visits in North Carolina” with Z.A. and K.P.
The Department and Mother arranged for Mother to travel to North Carolina by train for two in-person visits with Z.A. and K.P., and to stay in a hotel room while there, at the Department’s expense. At a permanency planning review hearing held on June 9, 2023, Mary Peyton, the Department’s assigned social worker, testified that the parties agreed in March that the Department would pay for these two visits, and that Mother agreed that any future visitations would be at her own expense. Peyton further testified that the Department and J.B. had reached an alternative arrangement for J.B. to take the minor children to visit Mother in Maryland during the summer.
Mother’s counsel told the court that Mother had not agreed to the arrangement described by Peyton. Peyton reviewed a written summary of the March meeting; she testified that it did not capture everything discussed between the parties. The juvenile court ruled that its February 22, 2023 order did not limit the Department to paying for only two visits, and that any agreement reached by the parties to that effect was inconsistent with the order. The court continued Z.A. and K.P.’s existing permanency plans and ordered weekly virtual visitation. It also ordered monthly unsupervised in-person visits in North Carolina without overnights, with the Department to pay for train tickets and a hotel room. The Department objected to the provision of the order directing it to pay for train tickets and a hotel room, citing separation-of-powers concerns. The court denied the objection and entered a written order dated June 13, 2023 reiterating that “[t]he Department shall provide Amtrak tickets and pay for the hotel room for [Mother.]” The Department timely appealed. We will supply additional facts as necessary to support our analysis.
STANDARD OF REVIEW
The Department argues that the juvenile court committed legal error and presents a question of law. When we consider questions of law, the standard of review is de novo. See, e.g., Clickner v. Magothy River Ass’n Inc., 424 Md. 253, 266 (2012) (“Questions of law . . . require our non-deferential review.”).
DISCUSSION
THE LEGISLATURE HAS AUTHORIZED A JUVENILE COURT TO ISSUE ORDERS TO A LOCAL DEPARTMENT OF SOCIAL SERVICES TO ACT IN THE BEST INTERESTS OF CHILDREN IN THE DEPARTMENT’S CARE.
A. Parties’ Contentions
The Department argues that the separation of powers doctrine prevents a court from ordering an agency to take an action that lies within the agency’s sole discretion. It points to our case law, suggesting that it stands for the principle that juvenile courts overreach in ordering local departments to pay specific funds to specific private parties, and argues that such an order violates
general principles of separation of powers under the Maryland Constitution.
The appellees respond that the authority offered by the Department pertains to a separate statutory scheme related to private placements for minor children committed to the State’s care. As such, they argue, separation of powers concerns only applied in a context where the juvenile court had strayed outside of its statutory authority.
B. Analysis
1. A court may order an administrative agency to expend funds where authorized by the legislature.
The Department argues that a court overreaches when it orders a local department to pay specific funds to a specific private party. The Department relies in part upon our holding in Maryland State Department of Health & Mental Hygiene v. Prince George’s County Department of Social Services. 47 Md. App. 436 (1980) [hereinafter Linda G.], cert. denied sub. nom. Tom and June G. v. Dept. of Health, 290 Md. 714, 723 (1981).
In Linda G., the Maryland Department of Health and Mental Hygiene (“DHMH”) appealed an order of the Circuit Court for Prince George’s County, sitting as a juvenile court, directing it to pay for the cost of mental health services at a privately owned hospital. Id. at 438. We held that the relevant statutory provision, Maryland Code, Courts & Judicial Proceedings Article (“CJP”) § 3-820, “empower[ed] the court to commit a child to the custody of DHMH[, but did] not confer upon the court any right to mandate the specific terms of the commitment.” Id. at 445. We further opined that CJP § 3-820 placed significant discretion in DHMH to determine the manner in which it would provide mental health care for children committed to its custody, noting, “The indiscriminate expenditure of State funds for private placement at the instruction of courts will undermine the State budget, imperil the State’s financial structure, and defeat the Legislature’s intent to promote and provide mental health services with impartiality to all citizens of the State.” Id. at 448.
The Department also cites In re Demetrius J., 321 Md. 468 (1991), in which the Supreme Court of Maryland (then the Court of Appeals) reached substantially the same conclusion as we did in Linda G. in reviewing a juvenile court’s order to place a minor child adjudicated delinquent in a private facility. Reasoning that “[t]he plain language of the statute places these matters within the sound discretion of DJS[,]” the Court held that “CJ § 3–820, considered in the light of other relevant statutes, does not authorize the court, in committing a delinquent child to the custody of the Department of Juvenile Services, to order that the child be placed in a specific private facility at the expense of the Department.” Id. at 475, 481.
We do not read Linda G. or Demetrius J. to hold that a court can never direct an executive agency to render payment to a private entity, nor that that principle applies throughout the CINA statutes codified under Title 3, Subtitle 8 of the Courts & Judicial Proceedings Article (“Subtitle 8”). Both cases turned upon statutory interpretation, and concerns about judicial intrusion upon executive control over the budget arose in both cases where the court had strayed outside of its statutory authorization under CJP § 3-820. Even if we took these
cases to establish that juvenile courts may not “intrude upon agencies’ discretion in the delivery of services” in general, as the Department suggests, that would be irrelevant if the legislature authorized the juvenile courts to direct local departments with respect to a specific matter. In short, where the executive alleges judicial intrusion, the crux of our analysis will be whether the legislature intended to authorize that intrusion.
In Linda G., DHMH had broad discretion to administer its budget with respect to mental health care because the legislature intended to grant it broad discretion, not simply by virtue of its status as an executive agency. See 47 Md. App. at 445–48. Tellingly, the Supreme Court of Maryland recognized in In re Adoption/Guardianship of Dustin R., 445 Md. 536 (2015), the holding of Linda G. was later abrogated by statute. CJP § 3-820 was amended to empower courts to “permit[ ] the court to name the type of facility but generally bestow[ed] no authority on the court to specify a particular facility.” Dustin R., 445 Md. at 580 n.17 (quoting Demetrius J., 321 Md. at 476). Thus, after the legislature clarified that it intended to authorize courts to specify private facilities with greater particularity, such orders came within the scope of judicial authority regardless of their potential impact on local departments’ budgets.
In exercising the judicial power, courts frequently must order the executive branch to take certain actions. We assume that virtually all such orders require the executive to expend at least some resources. The Department has not pointed to legal authority that convinces us that there is a general, free-standing limitation upon courts that prevents them from ordering the executive to spend sums of money. Linda G. and Demetrius J. were decided with reference to a statute completely apart from the provisions at issue in this matter, and there is no indication that the legislature’s intent in enacting CJP § 3-820 has any bearing upon them. Rather, here, we consider whether the juvenile court acted within its authority pursuant to the relevant statutes governing permanency planning, as we do below at Section II.
2. A juvenile court does not violate the separation of powers principle solely by ordering an agency of the executive branch to make a specific expenditure.
The Department contends, in the alternative, that the juvenile court’s order was violative of separation of powers principles under the Maryland Declaration of Rights. The Department is correct that courts may not intrude upon an administrative agency’s sole discretion. However, it is the legislature’s prerogative to determine the boundaries of that discretion.
In Linda G., our holding that the juvenile court exceeded its mandate rested in part on separation of powers concerns: What the juvenile court order in the instant case did was to invade the Executive department by directing the Secretary of DHMH to pay out monies for a purpose not funded by the Legislature nor requested by the Executive. Furthermore, the court intruded on the Legislative Branch by directing the funding of Linda’s private hospital confinement. Thus, the juvenile court committed a “double play,” by impinging upon the powers of the Executive and the Legislative Branches. The “double play,” however, is a “double error.” The order directing the infringement is null and void inasmuch as the court was without the authority
to enter it.
47 Md. App. at 452. The Department suggests that the June 13 order for it to pay for Amtrak tickets and a hotel room implicated similar separation of powers concerns.
To the extent that our holding in Linda G. rested upon separation of powers principles,3 it does not apply here. In Linda G., we held that the juvenile court intruded upon the role of the executive in the context of a case in which the court had stepped outside of its statutory grant of jurisdiction. See Section II.1 of this opinion. As we discuss at length below, there is no such issue here, as the juvenile court was within its statutory authority to issue its June 13 order to the Department.
The Supreme Court in Dustin R. more directly addressed the separation of powers concerns present in the case before us. DHMH argued that the juvenile court violated its authority to direct “administration of its programs and budget by ordering services without regard to the funds appropriated to pay for such services or [DHMH]’s regulations governing the provision of such services[.]” Dustin R., 445 Md. at 578. The Court declined to consider that argument, reasoning, “Absent any argument by DHMH that the statutes at issue are unconstitutional or that the General Assembly improperly delegated authority to the juvenile court, we discern no basis on which to conclude that the juvenile court violated the separation of powers in this case, where it acted according to express statutory authority.” Id. at 580. The Court further stated that “the issue is not whether the juvenile court improperly exercised judicial power to the detriment of the executive branch, but instead the issue is one of statutory interpretation, i.e., whether the General Assembly delegated the authority to the juvenile court to act as it did in this case.” Id. at 579. We thus perceive no issue of judicial intrusion on the executive’s prerogatives where the court acts within its statutory authority.4 And, as discussed below, the juvenile court acted within its authority in this case in ordering North Carolina visitations at the Department’s expense as part of permanency plan. However, that merely establishes that the statute granted the circuit court discretion to order the Department to act where necessary to facilitate the permanency plan; we still must determine whether the court appropriately exercised that discretion. We proceed to consider whether the court acted within the scope of its statutory grant of authority in ordering the Department to pay for train tickets and a hotel room to facilitate Mother’s visitation.
II. ALTHOUGH A JUVENILE COURT HAS DISCRETION UNDER CJP § 3-823 TO ORDER THE DEPARTMENT TO UNDERTAKE ACTIONS TO BENEFIT CHILDREN IN THE DEPARTMENT’S CARE, IN THIS CASE THE COURT ABUSED ITS DISCRETION BY SPECIFYING THE MANNER IN WHICH THE DEPARTMENT HAD TO ACT.
A. Parties’ Contentions
The Department contends that the juvenile court acted outside its statutory authority by ordering it to pay for Mother’s travelling expenses, and, in support, points to its own duty— imposed by statute and regulation—to determine how services are to be provided. The appellees respond that the juvenile court is directed by statute to ensure that the Department makes
reasonable efforts towards reunification of minor children and their parents. They argue that CJP § 3-802 empowers a juvenile court to direct the local department to provide services “to the child, the child’s family, or the child’s caregiver,” where the department is authorized by law and when necessary to advance and protect the best interests of the minor child.
B. Analysis
We do not agree with the Department’s proposition that a juvenile court categorically must leave the details of permanency planning to a local department. Rather, we hold that orders facilitating permanency planning are discretionary and, therefore, are reviewed for abuse of discretion. We reach that conclusion by interpretation of the statutes controlling the juvenile court’s authority in CINA permanency planning. Here, as in all exercises of statutory interpretation, our objective is to determine the legislature’s intent. Tidewater v. Mayor of Havre de Grace, 337 Md. 338, 344 (1995). We first consider the plain language of the statute, and its role in the broader statutory scheme; if we find that the plain text is unambiguous, our analysis ends. See id. at 345; Gov’t Emps. Ins. Co. & GEICO v. Ins. Com’r, 332 Md. 124, 132 (1993) (“When, in that scheme, two statutes, enacted at different times and not referring to each other [ ] address the same subject, they must be read together, i.e., interpreted with reference to one another, and harmonized, to the extent possible, both with each other and with other provisions of the statutory scheme.” (cleaned up)).
CJP § 3-803(b)(1)(i) grants juvenile courts jurisdiction over “[c] ustody, visitation, support, and paternity of a child whom the court finds to be a CINA.” CJP § 3-802(c)(1) circumscribes the court’s authority in exercising that jurisdiction, providing, “In all judicial proceedings conducted in accordance with [Subtitle 8] . . . , the court may direct the local department to provide services to a child, the child’s family, or the child’s caregiver to the extent that the local department is authorized under State law.” The Department cites this provision and various provisions of the Code of Maryland Regulations (COMAR) as authority that it alone has discretion to determine how it shall provide services ordered by the court.5 However, these regulations merely specify the requirements governing how a local department must develop a permanency plan for the court’s review; they are altogether silent on the court’s authority to review or revise that plan. They establish, if anything, that the Department must consider its own budgetary limitations, not that the juvenile court’s power is restricted by those limitations. As such, we conclude nothing in COMAR limits courts from directing the specifics of a permanency plan. Further, we conclude that there is nothing in the statutes generally delegating authority to the Department to administer its programs that purports to circumscribe juvenile courts’ authority. For example, Maryland Code Annotated, Family Law Article (“FL”) § 5-525, pertaining to out-of-home placement and foster care, provides the terms under which “the [Social Services Administration] shall establish a program of out-of- home placement for minor children[.]” Id. at (b)(1). Though it speaks to the standards the Department must meet in making reasonable efforts to reunify families, subject to court determination, id. at (e)(1), FL § 5-525 is unhelpful in determining the boundaries of
judicial authority in the CINA context.
The plain text of CJP § 3-823 empowers a juvenile court to determine the permanency plan and not merely to rule upon its adequacy. It is true that, as the Department notes, local departments and their staff are responsible for much of the development of permanency plans. However, the legislature has stated that final authority over the plan rests with the juvenile court. CJP § 3-823 provides that “the court shall . . . [d] etermine the child’s permanency plan[.]” Id. at (e)(1)–(e)(1)(i) (emphasis added). Where a plan has been established, upon review, the court may “take necessary measures to protect the child” and “[c]hange the permanency plan if a change in the permanency plan would be in the child’s best interest[.]” Id. at (h)(2)(vi)–(vii). Taken together, CJP §§ 3-802(c)(1) and 3-823 empower the circuit court not merely to request that a local department make sufficient efforts towards developing and facilitating a permanency plan, but also to direct what that plan shall be. Consequently, under CJP § 3-802 a juvenile court may issue an order directing the Department to act to facilitate the permanency plan.6
Neither do we conclude that the juvenile court’s jurisdiction over child custody, pursuant to CJP §§ 3-803(b) and 3-823(c) (2), becomes more limited when a local department becomes involved. See Santo v. Santo, 448 Md. 620, 636–37 (2016) (“trial courts have broad discretion in how they fashion relief in custody matters”); Gordon v. Gordon, 174 Md. App. 583, 638 (2007). It is true that the Department is not a party to a custody proceeding in its role providing services in CINA matters. However, absent legislative intent to the contrary, we read CJP § 3-802(c)(1)’s grant of jurisdiction to juvenile courts over custody of CINAs to include the same degree of discretion in issuing orders that the court finds to be in the best interest of the child.
Thus, where the circuit court finds that the best interests of the child require a local department to take certain action, the court has authority to issue an order to effectuate that action. The Department argues that ordering a local department to expend funds or take specific measures is inherently outside the boundaries of the court’s authority. We see no support for such a bright-line rule in Subtitle 8, nor is it necessary to impose one insofar as we are empowered to do so. The circuit court’s order that a child in need of assistance be committed to a local department—crucially, on terms that the court considers appropriate—is discretionary. See In re Yve S., 373 Md. 551, 574 (2003).
We are sensitive to the policy considerations that the Department invokes in support of its argument. The Department’s need for broad discretion to protect child welfare, and need to control its own budget, are compelling policy interests. However, we approach statutory grants of authority as we would any other question of statutory interpretation. In this regard we consider the legislature’s policy goals in interpreting the plain text of its enacted statutes. See Johnson v. State, 467 Md. 362, 372 (2020) (“The plain language ‘must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim or policy of the Legislature in enacting the statute.’” (quoting State v. Johnson, 415 Md. 413, 421, 2 A.3d 368 (2010) (emphasis added))).
As K.P. notes, the legislature expressed its policy objectives
for the CINA statutory scheme: “the opening section of the CINA subtitle establishes that the juvenile court ‘may direct the local department to provide services to a child, the child’s family, or the child’s caregiver’ and further that the court ‘shall exercise [this] authority . . . to protect and advance a child’s best interests.’” See CJP § 3-802(c)(1), (2) (West 2023). There is nothing in the text of the statutory scheme suggesting that the legislature saw protecting local departments from judicial intrusion as a primary policy goal. On the contrary, Subtitle 8 firmly places final authority to direct permanency planning in the hands of the juvenile court. CJP § 3-816.1 and § 3-823 place juvenile courts in a supervisory role over local departments in establishing and reviewing permanency plans.
The Department stresses that courts are directed to consider whether funds are available in its determination of whether a local department took reasonable efforts towards reunification.
See In re Shirley B., 419 Md. at 26–27. While that is an accurate statement of the law, it is an issue of the merits upon review of a juvenile court’s finding that a local department failed to make reasonable efforts. Further, the Department’s budgetary concerns would, perhaps, be an appropriate consideration in an abuse of discretion review but that issue is not before us today.
The sole issue the Department raised on appeal is whether a juvenile court is prohibited from directing the Department to take specific measures or expend specific funds as a matter of law. The Department did not challenge a factual finding that it failed to put forth reasonable efforts to facilitate the permanency plan, nor does it specifically argue that the circuit court abused its discretion apart from exceeding its statutory authority.
To the extent that we need to consider whether the circuit court abused its discretion, though, we do not conclude that the juvenile court abused its discretion in ordering the Department pay costs incidental to Mother’s visitation. A court abuses its discretion where it exercises discretion in a “manifestly unreasonable” manner, “or exercised on untenable grounds, or for untenable reasons.” Jenkins v. City of College Park, 379 Md. 142, 165 (2003) (emphasis omitted). An abuse of discretion occurs when the court’s decision is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” McLennan v. State, 418 Md. 335, 353–54 (2011) (quotation marks and citations omitted).
As discussed above, the juvenile court had discretion to issue orders facilitating the reunification plan that are in the minor children’s best interest. Whether it was in the children’s best interest for the Department to pay for Mother’s visitation was not at issue at the June 9, 2023 review hearing. What was discussed was interpretation of the juvenile court’s prior order. The juvenile court had already ordered on February 22, 2023 that “the Department shall provide [Mother] monthly inperson visits in North Carolina.” The parties disputed whether the Department and Mother had agreed that the Department
would pay for only two visits to North Carolina, or whether the Department’s agreement to pay was open-ended. The court made no finding as to what the parties agreed but ruled that “there was nothing in [the February 22] order that said the Department only paid for two visits,” and that any agreement to limit the Department’s obligation to two visits, if such agreement existed, was “inconsistent with [the court’s] order.” In any case, the court made clear that determining the existence of an agreement between the parties to pay for more than two visits was irrelevant to determining the meaning of the February 22 order.7
As the Department had already assented without objection to providing Mother monthly visitation out of its budget at the February hearing, the court merely reiterated that order, and specified the manner of transportation and accommodation, on June 9. We perceive nothing manifestly unreasonable or untenable in the order to pay Mother’s transportation expenses. It was not “well removed from any center mark” that we might imagine for the juvenile court to hold that the Department’s obligation to “provide” out- of-state visitation, as specified in the February 22 order, included providing travel and a hotel room. McLennan, 418 Md. at 353–54.
However, nothing in the facts presented to the juvenile court at the June 9 review hearing suggested that it was in the minor children’s best interest that Mother’s visitation had to be accomplished specifically by train, or that Mother must stay in a hotel while visiting the minor children in North Carolina.
As the Department mentioned at oral argument, the price of Amtrak tickets might rise sharply, making it more practicable to provide transportation by car or plane, or a hotel room might be less suitable than a motel or staying with a relative. We observe that the Department paid for train tickets and a hotel room to facilitate two of Mother’s visits to North Carolina prior to the June 9 hearing. Presumably, at the June 9 hearing the court specified “Amtrak” and “hotel” simply because the Department had made those accommodations in the past. But, significantly, for the juvenile court to have acted within its discretion in this instance, it would have had to establish a nexus between the best interests of the minor children and requiring the Department pay for Amtrak tickets and a hotel room, specifically. Nothing in the record suggests that those specific accommodations were necessary to serve the minor children’s best interests. Thus, we conclude that while the juvenile court acted within its discretion in ordering the Department to facilitate Mother’s visitation, it abused its discretion by imposing specific requirements for how the visitation was to occur. We therefore affirm the June 13 order to the extent that it directed the Department to pay for Mother’s travel expenses for monthly inperson visitation in North Carolina and vacate the order to the extent that it specified that the visitation had to be accomplished by travel via Amtrak and hotel accommodation.
FOOTNOTES
1 In her brief, Mother phrased the question presented as follows: Did the court’s order directing the department to pay for Ms. B’s transportation costs related to visitation constitute a proper order within the court’s authority?
K.P. phrased the question as follows: Did the juvenile court properly exercise its statutory duty to ensure that the Department made reasonable efforts to reunify K.P. and his mother when it ordered the Department to pay for K.P.’s mother travel to visit him and his brother in North Carolina once a month, after the Department had relocated K.P. to North Carolina and then provided no in-person visits with his mother for three years until the court ordered it to do so?
2 Z.A. filed a line joining “K.A.’s” brief (presumably, K.P.’s) on December 22, 2023, and did not participate in oral arguments.
3 We note, as the Supreme Court did in Dustin R., 445 Md. at 580 n.17, that our discussion of separation of powers principles in Linda G. was dicta. The core of our holding in Linda G. was that the juvenile court acted outside its statutory authority. See 47 Md. App. at 441–48.
4 The Department cites In re Roger S., 338 Md. 385 (1995); In
re W.Y., 228 Md. App. 596 (2016); In re Nicholas B., 137 Md. App. 396 (2001); and In re Darius A., 47 Md. App. 232 (1980), as support for its argument that improper orders to a local department implicate separation of powers concerns. We note that each one of these cases rested upon a finding that the juvenile court acted outside of its statutory authority. We discuss In re Shirley B., 419 Md. 1 (2011), cited by the Department in support of the same, below.
5 The Department directs our attention to COMAR 07.02.11.13(B)(11), 07.02.11.14(A), and 07.02.11.14 (B)(1).
6 Because we find that the court acted within its statutory authorization regarding transportation costs generally, we do not consider whether the juvenile court could have issued the June 13 order under color of common law parens patriae authority, as proposed by Mother.
7 The Department appears to suggest that it is problematic the court took no testimony and received no evidence as to the agreement between the parties before issuing its ruling at the June 9 hearing. Even if the court were required to hold an evidentiary hearing as to the content of the parties’ agreement, here it merely clarified the scope of its own prior order without approaching any questions of fact regarding what the parties agreed to.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Anne Arundel County Circuit Court’s order denying the mother’s motion to alter/amend the judgment as untimely. The statute requires a motion to alter/amend to be filed within 10 calendar days after entry of judgment. Because the tenth calendar day fell on a weekend, and the next Monday was a federal holiday, the mother’s motion was timely when it was filed before that following Tuesday.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
On August 9, 2021, the circuit court entered a custody order, incorporating the parties “Parental Agreement” (the “Agreement”). The Agreement provided that Mother would have primary physical and sole legal custody. Father was to have visitation in Mother’s home every Saturday from 8:30 a.m. to 2:00 p.m., and every other Friday and Sunday from 8:30 a.m. to 2:00 p.m., plus certain seasonal holidays. The Agreement further provided for overnight stays after six months, if Father acquired his own apartment and he provided Mother the opportunity to view the apartment, and the names of and the opportunity to meet his roommates. The Agreement also required Father to pay $1,000 a month in child support and an additional $200 a month toward arrearages until $3,000 has been paid.
Mother subsequently filed a petition for contempt, alleging Father failed to comply with the visitation order as he is “[a] lways late or no show,” and he failed to disclose his military service and military income before and during trial. Father filed a petition for contempt, alleging Mother denied him visitation. The court denied both contempt petitions.2
The circuit court for Anne Arundel County entered a judgment granting Amaka Ndubueze (“Mother”) and Johnbosco Alaenyi (“Father”) an absolute divorce. The court further granted Mother primary physical custody of the parties’ minor child, with the parties to have joint legal custody of the child with tiebreaking authority to Mother and set forth the terms of Father’s visitation with child. Mother presents the following three issues on appeal, which we have rephrased for clarity:1
I. Whether the circuit court erred when it denied Mother’s motion to alter/amend the judgment because it was untimely filed.
II. Whether the circuit court erred in granting Father visitation with child without allowing Mother to know the location of the visits.
III. Whether the circuit court erred in denying Mother’s request for attorney fees because of discovery violations by Father.
For the reasons that follow, we shall reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father married in 2018, and a daughter was born to them the following year. On November 12, 2020, Mother filed a complaint seeking primary physical and sole legal custody of their daughter and child support. Father responded by filing an answer and a counterclaim for joint, physical and legal custody.
Father filed a complaint for absolute divorce and sought modification of the Agreement. Mother subsequently filed a motion to modify visitation and child support. During litigation, the parties entered into a consent order to waive the division of marital property and alimony. Both parties filed motions to compel discovery.
A hearing was held on May 2, 2023, at which both parties, who were represented by counsel, testified. On May 17, 2023, the circuit court entered a written judgment of absolute divorce. The court awarded Mother primary physical custody and joint legal custody, with tie-breaking authority to Mother. Father was granted visitation every other weekend from Friday afternoon to Monday morning, and during stated seasonal breaks and holidays. Father was to pay Mother $1,188 in child support. The court denied Mother’s request for attorney fees.
On the same day the court entered its judgment, Mother filed a notice of appeal. Mother subsequently filed a motion to alter/ amend the judgment, which the trial court denied as untimely filed, which is the subject of this appeal.
DISCUSSION I.
Mother argues that the circuit court erred in denying her motion to alter/amend the judgment because, contrary to the circuit court’s ruling, it was timely. Father responds that the circuit court properly denied Mother’s motion to alter/amend the judgment because she filed her notice of appeal before she filed her motion to alter/amend, and therefore, the circuit court
no longer had jurisdiction to hear her motion. We agree with Mother. We, therefore, reverse the court’s ruling and remand for consideration of her motion to alter/amend. We explain.
The circuit court entered a final divorce judgment on May 17, 2023. Mother filed a motion to alter/amend on May 28, 2023.
Pursuant to Md. Rule 2-534, “on motion of any party filed within ten days after entry of judgment,” the court may amend its findings and judgment. Here, the tenth calendar day -- May 27
her notice of appeal before her motion to alter/amend judgment does not affect the jurisdiction of the circuit court. Indeed, this is because of the “savings clause” contained in Md. Rule 8-202(c), which provides that: “If a notice of appeal is filed and thereafter
FOOTNOTES
-- was a Saturday and the next weekday was Monday, May 29, which was Memorial Day, a Court holiday. Therefore, the tenday deadline fell on the next business day, which was May 30, 2023. Accordingly, the motion to alter/amend was timely filed.
1 In her informal brief, Mother phrased her issues on appeal as:
a party files a timely motion pursuant to Rule . . . 2-534 . . . , the notice of appeal shall be treated as filed on the same day as, but after, the entry of a notice withdrawing the motion or an order disposing of it.” As a result, the circuit court had jurisdiction to decide Mother’s motion to alter/amend the judgment.3
2 Mother later filed a motion for contempt, which the court declined to hear, and an amended petition for contempt, which she voluntarily dismissed.
Issue 1. Denial of motion to amend or alter judg[]ment and new trial request based on new evidences and other reliefs stated in the motion filed 5/28/2023. Or denials of motions with impactful evidence.
Issue 2. Courts denial of the parental rights and requests. Issue 3. The denial of attorney fees for discovery and other related causes.
See Md. Rule 1-203(a)(1) (if the period of time prescribed is more than seven days, weekends and holidays are counted, except where the last day falls on a weekend or holiday, and then the last day is the next business day). The circuit court, however, denied her motion as untimely, stating that it was “docketed 26 days after judgment was entered[.]” The court erred in finding that the motion was untimely.
Father’s argument is without merit. The fact that Mother filed
Accordingly, we shall reverse the circuit court’s order denying Mother’s motion to alter/amend judgment and remand for the circuit court to consider her motion. Following its decision on Mother’s motion to alter/amend, the circuit court shall transmit its decision to this Court. We shall retain jurisdiction
3 Although it does not affect our decision, for clarity we shall point out that Father incorrectly states in his appellate brief that Mother also filed a motion to alter/amend on July 28, 2023. On that date, Mother filed a motion asking the court to respond to her earlier motion to alter/amend. She did not file a motion to alter/amend.
to decide the remainder of the issues presented in this appeal following the circuit court’s decision on remand. Accordingly, we stay this appeal pending the circuit court’s decision. We hold the assessment of costs in abeyance until after our opinion following the circuit court’s decision on remand.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY DENYING MOTION TO ALTER/AMEND
JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT TO CONSIDER APPELLANT’S MOTION TO ALTER/AMEND JUDGMENT. APPEAL STAYED. ASSESSMENT OF COSTS HELD IN ABEYANCE.
