Helping transgender clients, children in family law cases. Page 4
Md. top court marital settlement ruling may impact businesses. Page 6
Couple welcomes baby from 30+ year old frozen embryo. Page 7
Vol. XXXVI, No. 8
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3 Child Advocacy: New policy provides luggage for youth in foster care
4 Cover Story: Working with transgender clients and clients with transgender children
6 In the News: Md. Supreme Court rules parents can’t waive child support
A family law ruling filed in late July by the Maryland Supreme Court confirmed marital settlement agreements are contracts, but the decision may ultimately have more of an impact on contract law and business transactions, lawyers say.
7 In the News: Ohio couple welcomes baby from 31-year-old frozen embryo
A baby boy born to an Ohio couple developed from an embryo that had been frozen for more than 30 years in what is believed to be the longest storage time before a birth.
8 Monthly Memo
Maryland mother of two missing children held without bail after she was rearrested and charged with murder in the 2014 disappearance after her pervious case was dropped because of mental health concerns. … Couples flock to Denmark to get married because of the country’s relatively relaxed marriage laws. Copenhagen works to save room for locals. … Rhode Island Supreme Court upholds finds a husband was properly sanctioned for attempting to modify a marital settlement agreement that was incorporated but not merged into their divorce. … Colorado dentist was sentenced to life in prison following his conviction for poisoning his wife’s protein shakes. … A Virginia court affirmed a lower-court ruling that a minor with mental and emotional fragility did not have to testify in open court.
9 Family Law Digest
New policy provides new luggage for youth in foster care
“They lost half my stuff, I’m pretty sure they just threw it away.”
In recent years, this and other similar statements were heard far too often from youth entering foster care or changing placements.
Common practice was to load up the youth’s clothes in garbage or shopping bags for transport.
Not only did this lead to personal belongings mistakenly being thrown away, but it also led to the feeling in some children that their belongings were merely trash, and not important.
“How important can it be if you’re supposed to cram it all into a trash bag?” said one of my clients, “Katie,” who experienced this multiple times.
She added, “it made me feel like me and all my things were just trash.”
In 2024, the Maryland Legislature passed Md. Code Ann., Family Law § 5-505.2, which mandates that “the Department shall provide new luggage to a child in foster care who is entering foster care, moving from one foster placement to another, or exiting foster care.”
It also mandates that the luggage becomes the property of the child and may not be reclaimed by the department or a foster parent.
The stated goals of this legislation are both “to maintain a decentralized supply of new luggage to be used to transport the personal belongings of a child in foster care” and to prohibit the Department from using disposable or trash bags.
The statute does not specify how the department must acquire luggage; it allows the department to accept luggage donations.
The statute requires that the
Child Advocacy CRIST WILL.
department maintain a record of, and yearly report to the General Assembly, the number of instances where trash bags were used, the reason for failure to provide luggage, and the supply and inventory management of their luggage supply.
These statutory requirements are separate from Comfort Cases, which are bags with comfort items given to children entering the foster care system.
The language of this code is nearly identical to D.C. Code § 4-1303.13, which was also passed in 2024.
Similar legislation passed recently in Texas, Illinois, and Oregon, and New York state is currently reviewing a new law to require luggage for foster youth.
Proponents of the bill argued that using a trash bag to move is dehumanizing, and that luggage is more practical and promotes a sense of stability and normalcy during a time of change.
Prior to the law going into effect, some were concerned with the additional administrative burden this would cause the department.
As the policy is so new to Maryland, it is yet to be seen if these concerns will actualize or not.
The Maryland Department of Human Services has detailed how it plans to implement this code through its policy “Trauma Responsive and Appropriate Transport of Children in Care’s Belongings.”
This policy details the necessary
condition and type of luggage, clarifying the need for different typers and sizes necessary for different children.
More importantly, it specifically says that trash bags and other disposable bags may not be used.
There also is a new Luggage Inventory Tracker to be updated monthly.
It is estimated that the cost of this program will be approximately $84,000.
I spoke with Katie, who changed placements again after the implementation of the new policy.
The department gave her a rolling suitcase for her clothing and personal belongings, allowing her to choose the color.
At the same time, the suitcase was not large enough to hold all of her belongings, and she was given a cardboard box to include additional belongings, including her legal documents.
“It’s nice to have my own suitcase, I’m definitely less worried my things will get thrown away,” said Katie.
Katie has put her name on the luggage with puffy paint and put an iron-on decal of a rainbow on the front panel.
Giving youth luggage to transport their belongings will not solve every problem experienced by youth in foster care.
However, the benefits of the policy and the legislation appear to have a positive impact on youth who are moving to new foster care placements. Will Crist is a Staff Attorney at Maryland Legal Aid.
Transgender clients and children in family law cases
By Hope Keller Special to The Daily Record
Three points about transgender people and their families:
• Transgender and nonbinary people make up 4.2% of Maryland’s adult population and 20% have children, UCLA’s Williams Institute
• Nationwide, 26% of transgender people are married, a 2023 KFF study
• Like everybody else, trans people divorce.
But transgender people still face incomprehension in the wider world, as well as within the legal system. To best represent them, lawyers and LGBTQ advocates say, family law attorneys should be familiar with issues particular to the trans community.
“There are requirements of us as members of the bar that ensure there is free and open and fair access to justice, and so I consider it really important as attorneys that we make sure transgender clients that are seeking out representation feel like they can appropriately access the legal system,” said Eva Juncker, a partner at Cipriani & Werner’s Washington metropolitan area offices and co-chair of the firm’s DMV Family Law practice group.
To welcome prospective clients who are transgender, attorneys and their office staff should not presume to know a visitor’s gender identity - and, for example, automatically hand over the key to the men’s or women’s restroom, she said.
“Find out in advance,” said Juncker, who added that at any given time she is working with one or two transgender clients.
She emphasized that attor-
SUBMITTED PHOTO Summer Abel is an attorney in Offit Kurman’s Family Law practice group.
neys likewise should review the boilerplate in the forms they use.
“How gendered are your intake forms?” she asked. “Do you have options for your client to tell you not only their legal name, but their preferred name? How comfortable is your staff in dealing with gender nonconforming or nonbinary clients that walk in the door?”
Juncker laments the turning of the sociopolitical tide, citing the renewed debate over who uses which bathroom.
“At the very beginning of my career, in 1999, this was the cutting-edge civil rights issue,” she said. “I find it ridiculous that we’re still having these conversations in 2025.”
No assumptions
Summer Abel, an attorney in Offit Kurman’s Bethesda-based Family Law practice group, agreed that not making assumptions about prospective clients is
key.
“I think that going into the intake there are very easy things that people can do to prepare to meet with the transgender client,” Abel said. “A big thing that I see is how their children came to be, so not assuming that one (partner) carried or didn’t carry (a child) – or when you’re talking about the division of labor (in a relationship), finding out who has those roles is important, so you don’t want to assume any of that based on outward appearance.”
Abel also pointed to SASI-CALC, a software program used to calculate child support obligations based on Maryland guidelines and individuals’ circumstances.
She noted that the SASI-CALC worksheet offers two options: “You can put the columns as ‘Mother’ and ‘Father,’ ” she said. “But you could make the columns ‘Parent 1’ and ‘Parent 2.’ It’s a re -
ally easy way to just acknowledge that there’s a transgender individual in the family.”
Deadnaming
Juncker said she’s seen opposing counsel deliberately use a transgender client’s dead name, or previous name, in pleadings to get a leg up.
“They’ll do it to try to gain an advantage in the litigation if it’s a custody case,” she said. “You will periodically find someone who believes that just the fact that a parent has transitioned indicates that they are perhaps not a better or appropriate parent, which of course is not supported by the studies or the research.”
In such a situation, Juncker said, informed perspective is crucial.
“Sometimes you have to bring in experts to help the court understand that that’s a red herring, that that’s not the issue.
The issue is the best interest of the child. Let’s focus on how are these two parents parenting the children.”
Transgender children and divorce
Shannon Minter, legal director of the San Francisco-based National Center for LGBTQ Rights (NCLR), said a particularly difficult area of family law involves custody disputes between parents who disagree over the best approach to their transgender child.
“That is such a harmful experience for a child to have your parents disagreeing about your identity and how to raise you, to what kind of counseling or medical care you should get,” he said. “It’s just devastating to these kids; they need both their parents to the extent possible. So family lawyers are in a unique position to try to bridge those conflicts
between parents.”
Minter urged family law attorneys who have clients with transgender children to seek advice from national groups such as NCLR and Glad Law.
“There is a lot of information available now about the best approaches to these young people and how to best work with parents who may not start off being very understanding or supportive,” Minter said.
Like Juncker, Minter encouraged attorneys to seek help from experts.
“It’s important to have genuine experts involved in those cases,” he said. “Sometimes you’ll have guardians ad litem or custody evaluators who are really unfamiliar with this entire area, and they can inadvertently do a lot of harm.”
SUBMITTED PHOTO
Shannon Minter is legal director of the San Francisco-based National Center for LGBTQ Rights.
The Daily Record file photo
Eva Juncker is a partner at Cipriani & Werner’s Washington metropolitan area offices and co-chair of the firm’s DMV Family Law practice group.
In the News
Ruling on marital settlement agreement may impact businesses
By Rachel Konieczny RKonieczny@TheDailyRecord.com
A family law ruling filed in late July by the Maryland Supreme Court confirmed marital settlement agreements are contracts, but the decision may ultimately have more of an impact on contract law and business transactions, lawyers say.
In a 5-2 decision with Justice Steven Gould writing for the majority, the high court found that Todd Pattison did not timely accept Deborah Pattison’s settlement offer in their divorce proceeding when he signed the settlement package documents three days after the date his wife specified the agreement must be executed.
The majority disagreed with Todd that Deborah accepted the terms of the agreement through her signature on September 25, 2020 and that her condition for same-day execution was not part of the agreement, but rather an extrinsic attempt to change its terms. Though the Anne Arundel County Circuit Court granted Todd’s motion to enforce the settlement agreement, citing the agreement’s language and plain terms were definite and reflected the parties’ intent to be bound, both the appellate court and high court ultimately disagreed.
“We have considered all the exhibits in the record, and we determine that, as a matter of law, no contract was formed due to Husband’s failure to adhere to Wife’s deadline, and that the evidence, including the excluded exhibits, does not support the circuit court’s waiver finding,” Gould wrote.
According to the opinion, the proposed marital settlement agreement included a provision that the husband would pay the wife a monetary award of $760,000, to be paid in six installments over two and a half years.
The high court’s ruling means
that Deborah can file for divorce and seek a larger award than what was provided in the proposed agreement, said Susan Elgin, counsel for Deborah Pattison.
“From my perspective, it’s been a simple argument the entire time of offer and acceptance, and not whether there was a valid agreement,” Elgin said in a phone call. “That’s what the [Maryland] Supreme Court found.”
Elgin, who began representing Deborah when the opposing party tried to enforce the agreement, said that because the case came in the context of a marital settlement agreement, it became confused (at the trial court level) as an issue concerning whether marital settlement agreements are enforceable, rather than whether there was an offer and acceptance. She said the decision can apply to any contract.
Thomas Fleckenstein, counsel for Todd Pattison, said the Maryland Supreme Court’s ruling came as a surprise.
“Certainly, we’re disappointed at the prospect of having to go back to the circuit court and potentially starting at square one, but we’ll sort through that with my client and with the circuit court once it gets the case back,” Fleckenstein said.
Both Fleckenstein and Elgin noted that the case is highly fact specific. Fleckenstein said the decision could have more of an impact on contract law than family law cases, although the overall impact of the ruling is “hard to predict.”
In a dissenting opinion written by Justice Peter Killough and joined by Justice Angela Eaves, Killough said the majority incorrectly framed the case through an “offer and acceptance” construct, where Killough says the parties had already negotiated and agreed to all material terms of a settlement, which was reduced to writing that the wife signed.
Killough emphasized that Deborah’s cover letter that directed Todd to sign the agreement on September 25, 2020 was excluded from evidence as hearsay and should not have been considered a condition precedent to contract formation.
“In reversing the trial court’s enforcement of the Settlement Agreement, the Majority has effectively announced a new rule of contract construction: a fully executed, integrated settlement agreement — signed, notarized, and negotiated by counsel — may be set aside if one party can point to any contemporaneous, extrinsic communication arguably conditioning its formation. That departs from Maryland’s objective theory of contracts,” Killough wrote.
Ferrier Stillman, a partner at Tydings who co-chairs the firm’s family law practice group, said the dissent’s argument would leave in limbo settlement agreements.
“I think finality is important, and my disagreement with the dissent is it leaves everything hanging,” Stillman said. “How long is the wife supposed to wait?”
Stillman said the majority’s decision does not change the law but rather emphasizes what many family law attorneys understood the law to be: that marital settlement agreements are contracts.
“I think it’s an important case because it confirms that a contract is contract is contract, and the marital settlement agreement is contract and therefore contractual interpretation applies,” Stillman said. “I think sometimes especially lay people think of a marital settlement in a different way than they might think of a … regular contract or a business contract. This is a good reminder that it doesn’t work that way; that a marital settlement agreement is a binding contract.”
Ohio couple welcomes baby from frozen embryo
By Kimberlee Kruesi
Associated Press
A baby boy born to an Ohio couple developed from an embryo that had been frozen for more than 30 years in what is believed to be the longest storage time before a birth.
In what’s known as embryo adoption, Lindsey and Tim Pierce used a handful of donated embryos that have been frozen since 1994 in pursuit of having a child after fighting infertility for years. Their son was born Saturday from an embryo that had been in storage for 11,148 days, which the Pierces’ doctor says sets a record.
It’s a concept that has been around since the 1990s but is gaining traction as some fertility clinics and advocates, often Christian-centered, oppose discarding leftover embryos because of their belief that life begins at or around conception and that all embryos deserve to be treated like children who need a home.
“I felt all along that these three little hopes, these little embryos, deserved to live just like my daughter did,” said Linda Archerd, 62, who donated her embryos to the Pierces.
Just about 2% of births in the U.S. are the result of in vitro fertilization, and an even smaller fraction involve donated embryos.
However, medical experts estimate about 1.5 million frozen embryos are currently being stored throughout the country, with many of those in limbo as parents wrestle with what to do with their leftover embryos created in IVF labs.
Further complicating the topic is a 2024 Alabama Supreme Court decision that said that frozen embryos
have the legal status of children. State leaders have since devised a temporary solution shielding clinics from liability stemming from that ruling, though questions linger about remaining embryos.
Archerd says she turned to IVF in 1994. Back then, the ability to freeze, thaw and transfer embryos was making key progress and opening the door for hopeful parents to create more embryos and increase their chances of a successful transfer.
She wound up with four embryos and initially hoped to use them all. But after the birth of her daughter, Archerd and her husband divorced, disrupting her timeline for having more children.
As the years turned into decades, Archerd said she was wracked with guilt about what to do with the embryos as storage fees continued to rise.
Eventually, she found Snowflakes, a division of Nightlight Christian Adoptions, which offers open adoptions to donors from people like Archerd. She was also able to set preferences for what families would adopt her embryos.
“I wanted to be a part of this baby’s life,” she said. “And I wanted to know the adopting parents.”
The process was tricky, requiring Archerd to contact her initial fertility doctor in Oregon and dig through paper records to get the proper documentation for the donation. The embryos then had to be shipped from Oregon to the Pierces’ doctor in Tennessee. The clinic, Rejoice Fertility in Knoxville, refuses to discard frozen embryos and has become known for handling embryos
stored in outdated and older containers.
Of the three donated embryos the Pierces received from Archerd, one didn’t make the thaw. Two were transferred to Lindsey Pierce’s womb, but just one successfully implanted.
According to Dr. John David Gordon, the transfer of the nearly 31-year-old embryo marks the longest-frozen embryo to result in a live birth. He would know: Gordon says his clinic assisted in the previous record, when Lydia and Timothy Ridgeway were born from embryos frozen for 30 years, or 10,905 days.
“I think that these stories catch the imagination,” Gordon said. “But I think they also provide a little bit of a cautionary tale to say: Why are these embryos sitting in storage? You know, why do we have this problem?”
In a statement, Lindsey and Tim Pierce said the clinic’s support was just what they needed.
“We didn’t go into this thinking about records — we just wanted to have a baby,” Lindsey Pierce said.
For Archerd, the donation process has been an emotional roller coaster. Relief that her embryos finally found a home, sadness it couldn’t be with her and a little anxiety about what the future holds next, with possibly meeting the Pierces and the baby in person.
“I’m hoping that they’re going to send pictures,” she said, noting that the parents have already sent several after the birth. “I’d love to meet them some day. That would be a dream come true to meet — meet them and the baby.”
Md. mother of 2 missing children held without bail after previous case dropped
ROCKVILLE — A Maryland woman with a long history of severe mental illness has been held without bail after she was recently rearrested and charged with murder in the 2014 disappearance of her two children — almost three years after an earlier case against her was dropped.
A judge dismissed the previous murder charges in 2022 because Catherine Hoggle had been repeatedly found incompetent to stand trial.
Associated Press
Foreign couples flock to Denmark to get married. Copenhagen wants to save room for locals
COPENHAGEN, Denmark — Facing complex bureaucracy at home in Poland, Magdalena Kujawi ń ska and her Colombian fiancé Heinner Valenzuela traveled to Copenhagen to become husband and wife.
“We realized that it’s not that easy to get married in Poland,” the 30-year-old Kujawi ń ska said as the couple waited for their 10-minute ceremony at the Danish capital’s 19th-century City Hall.
“You need a certificate that you are not married,” she said. “We tried to get it from Colombia, but it’s only valid for three months, and it couldn’t get to Poland from Colombia in three months. It was just impossible for us.”
The couple, who live in Krakow, had been engaged for more than three years when Kujawi ń ska heard about Denmark’s relatively relaxed marriage laws from a colleague. Working with an online wedding planner, the couple prepared the necessary documents.
Associated Press
Monthly Memo
Rhode
Island
Supreme Court upholds fee award, sanctions in divorce case
PROVIDENCE, RI -- A Family Court judge appropriately sanctioned a husband for improperly attempting to modify a marital settlement agreement that was incorporated but not merged into their divorce, the Rhode Island Supreme Court has decided.
Plaintiff Sharon Cunningham and defendant Kieran Cunningham’s settlement agreement gave Sharon exclusive use and possession of the marital home to the exclusion of the husband, who needed Sharon’s written consent to enter the property.
The agreement, as modified, also stated that the property would be listed for sale by April 1, 2024, but could not be sold before July 1, 2024, absent Sharon’s agreement.
However, in January 2024, Kieran offered to purchase the home at a price to be determined by appraisal.
Despite Sharon making clear her intent to sell the home in accordance with the marital settlement agreement, Kieran moved to have the marital domicile appraised and subsequently moved to have it inspected and appraised.
A Family Court judge denied the motion while sanctioning the husband and ordering him to pay attorneys’ fees.
BridgeTower Media Newswires
Dentist is convicted of murder, gets life sentence for lacing wife’s shakes
A Colorado dentist was sentenced to life in prison Wednesday in the death of his wife, whose protein shakes he laced with poison before delivering a fatal dose of cyanide.
District Judge Shay Whitaker sentenced James Craig to life with -
out the possibility of parole, the mandatory sentence for first-degree murder in Colorado. He was convicted of murder and other charges earlier in the day by a jury.
Prosecutors had said at trial that James Craiged poisoned his wife Angela Craig over 10 days in March 2023. When those attempts failed, prosecutors said the dentist gave his wife a final dose of cyanide as she was hospitalized in suburban Denver with symptoms that puzzled doctors. She was declared brain dead soon after.
Craig stood in a hushed courtroom Wednesday afternoon as the jury delivered a litany of guilty verdicts on murder and other charges. His sentencing came soon after when Angela Craig’s relatives tearfully testified about the impact of losing her.
Associated Press
Minor not required to testify inopen court during visitation hearing
RICHMOND, VA -- Where credible evidence in the record supported the court’s finding that it was not in a minor’s best interest to testify in open court, based upon her mental and emotional fragility, its decision was affirmed.
Background
Alexandra Mulvey appeals the circuit court’s orders striking her motion to modify visitation and requiring her to pay one-half of the guardian ad litem, or GAL, fees. Mother disputes several evidentiary rulings made by the court and argues that the evidence supported modifying visitation with her child. She also challenges the court’s failure to transfer venue for future proceedings to Louisa County.
BridgeTower Media Newswires
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 MARYLAND APPELLATE COURT: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Montgomery County Circuit Court’s requirement that father “regularly attend Alcoholics Anonymous meetings.” Nothing in the record showed a connection between father’s attendance at Alcoholics Anonymous meetings and the children’s best interests. And the attendance requirement was “exceedingly vague and thus practically unenforceable.”
The Appellate Court affirmed the Anne Arundel County Circuit Court’s order granting wife’s request for an absolute divorce, monetary award, alimony, a portion of husband’s pension and an award of attorney’s fees. Although husband claimed the circuit court erred in finding that husband had dissipated marital funds, calculating the parties’ marital property, and awarding wife a portion of husband’s pension, these arguments were rejected.
CHILD SUPPORT; AGE OF MAJORITY; CALCULATION
Lynda M. Dodds v. Christopher A. Dodds
No. 579, September Term 2024
Argued before: Berger, Zic, Eyler, James (retired; specially assigned), JJ.
Opinion by: Eyler, J.
Filed: June 12, 2025
The Appellate Court vacated the Carroll County Circuit Court’s award of child support, because it did not include one of the parties’ children in its calculations. Although that child would reach the age of majority one week after entry of the judgment, she was not expected to graduate from secondary school until the following month. Moreover, the court could not have been certain that she would graduate as scheduled, and she was entitled to child support until the earlier of her graduation or withdrawal from high school or her nineteenth birthday.
The Appellate Court vacated the Anne Arundel County Circuit Court’s monetary award. Although the parties agreed that wife’s vehicle and Noah’s Ark Investment Plan were marital property, the circuit court wrongly found otherwise. The circuit court also valued erroneously the parties’ MidAtlantic IRA and bank accounts and erred in its dissipation analysis. These errors required that its decisions regarding rehabilitative alimony, child support, and attorney’s fees also be vacated.
The Appellate Court affirmed the Dorchester County’s award of primary physical custody to father. The trial court was not incorrect to favor the stability of the child staying in the Maryland/Virginia area, close to her relatives and her daily routine, over the stability of remaining primarily in her mother’s care, who was moving to Texas.
The Appellate Court affirmed the Montgomery County Circuit Court’s granting of primary physical custody of the minor child to mother. The court’s factual findings were not clearly erroneous, and its custody and visitation award was not a clear abuse of its discretion as it was made in the child’s best interest.
The Appellate Court affirmed the Baltimore County Circuit Court’s award of custody and guardianship of the minor children to grandparents, granting supervised visitation to mother, and closing the CINA cases. Although Mother claimed that she was diagnosed with autism early in the CINA proceedings, she did not identify the extent of her disability or the accommodations she required, and generally failed to follow up with the health care service providers recommended by the Department. Despite this, the Department made reasonable efforts to assist mother in obtaining necessary services and scheduling visitation with the children.
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that the minor was a child in need of assistance and awarding custody to the Prince George’s County Department of Social Services. The evidence presented supports a finding that neither
mother nor father appear willing or able to care for the minor. In addition to the Department’s concerns regarding housing, income and childcare, mother and father’s consistent unwillingness to engage with the Department further supports this finding.
The Appellate Court affirmed the Montgomery County Circuit Court’s monetary award of $150,000 to husband. Although husband sought a monetary award of $376,964.75, representing 50 percent of the total value of the marital property titled to wife, husband’s monetary and non-monetary contributions to the well-being of the family were outweighed by those of wife, his conduct contributed to the estrangement of the parties, his lesser economic circumstance was in large part a function of his refusal to become employed during the marriage, to a great extent the parties’ marital assets were a product of wife’s having worked during the marriage, and husband held title to non-marital assets with significant value and wife did not.
The Appellate Court vacated the Montgomery County Circuit Court’s order requiring husband to pay rehabilitative alimony to wife for five years on a gradually decreasing scale. The record does not show any evidence about how the five-year term bears any relationship to the steps wife would need to take to become employed at or above her most recent income level of $89,000 annually. The fact that wife was employed consistently throughout the marriage and that only three months before the merits hearing she was earning a sum that would make her self-sufficient militates strongly against five years being a reasonably necessary period of time for her to find employment at a self-sufficient earnings level.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s requirement that father “regularly attend Alcoholics Anonymous meetings.” Nothing in the record showed a connection between father’s attendance at Alcoholics Anonymous meetings and the children’s best interests. And the attendance requirement was “exceedingly vague and thus practically unenforceable.”
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..
2015. The only previous judgment governing custody and access was a “Consent Custody Order on the Merits” (“Consent Order”) entered on December 2, 2016. The Consent Order generally granted the parties joint legal custody with Mother having primary physical custody of the children. Relevant to the issues on appeal, Father’s access schedule was delineated as (a) alternate weekends from Friday at 4:00 p.m. until Monday morning, and (b) alternating Thursdays from 4:00 p.m. until the children’s return to school on Friday morning.2 The Consent Order further provided that “neither party shall consume alcohol or any illegal drugs starting 12 hours prior to having the children and continuing for the entire time the children are with that party[.]”
Jesse D. Wertjes (“Father”) appeals a February 6, 2024 judgment issued by the Circuit Court for Montgomery County modifying a 2016 Consent Custody Order entered into by Father and Tabbetha L. Wertjes (“Mother”). Father presents four questions for review, which we have rephrased as follows:
1. Did the court abuse its discretion in ordering Father to refrain from the use of cannabis1 eight hours before and during his visitation access with the children?
2. Did the court err or abuse its discretion in ordering Father to attend Alcoholics Anonymous meetings on a regular basis?
3. Did the court abuse its discretion in reducing Father’s access with the children by eliminating alternating Thursday overnight visitation?
4. Did the court abuse its discretion in awarding Mother $25,000 as a contribution to her counsel fees?
For the reasons stated herein, we shall vacate the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The parties are the parents of three children: an adult daughter and two minor sons born in February 2009 and April
The operative complaint in this litigation is Father’s “Amended Complaint to Modify Custody and Child Support” filed on August 7, 2023. In his amended complaint, Father requested primary physical custody of the parties’ two sons and a reduction in child support as a result of their daughter’s emancipation. He also sought attorney’s fees and costs. Mother’s answer requested that the relief sought in Father’s amended complaint be denied, but she affirmatively requested that Father’s visitation be modified “so that he no longer has the children overnight before school days.” She likewise requested counsel fees and costs.
A four-day trial was held on January 8-11, 2024. On January 18, 2024, the court delivered a comprehensive bench opinion. The court properly noted that the 2016 Consent Order represented the predicate order for evaluating whether a material change in circumstances existed to warrant a modification of custody. The court expressly recognized the parties’ essential requests for relief, i.e., Father’s request for primary physical custody and Mother’s request to eliminate Father’s overnight visitation before school days. The court acknowledged the “two-step process” in custody modification cases, noting that it must first consider whether a material change in circumstances had been proven and, if so, proceeding to a best interest analysis. The court found “several significant and material changes in circumstances” since the entry of the 2016 Consent Order: the children’s ages are “markedly different”; the youngest child is now in school; Father is remarried and has a child from that marriage; Father “no longer lives proximate to the former marital home”; “[t]here have been periods when the children’s relationship with [Father] has been strained”; and the children’s medical conditions “require significant attention.” Having found a material change in circumstances, the court proceeded to address well-established factors that inform a court’s best interests analysis.3
The court ultimately denied Father’s request for primary physical custody, concluding that a change in custody would be “disruptive.” As for Father’s visitation access, the court determined that the access schedule set forth in the 2016 Consent Order should “remain in effect, except that the Thursday overnight visits provided for therein should be discontinued and changed to a dinner visit.” Nevertheless, the court rejected Mother’s request that the Sunday overnight visits be discontinued, reasoning that “Mother has less than [a] stellar record regarding ensuring the children’s attendance at school, and there’s no evidence that the boys have been missing school or been late when [Father] has been the one to take them to school.”
Finally, the court felt compelled to address Father’s “issues with temperament and alcoholism.” The court concluded that it would be beneficial for both Father and the children for Father “to resume attending [Alcoholics Anonymous], and also to complete an anger management program.”4 The court further indicated that it was “continuing the prohibition that [Father] refrain from drinking any alcohol or consuming any marijuana within eight hours” prior to any visitation.5 Finally, as relevant to this appeal, the court awarded Mother $25,000 as a contribution toward her counsel fees. The court reduced its decision to a written “Modification Order” entered on February 6, 2024. Father noted this timely appeal.
DISCUSSION
We review child custody determinations using three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). We recently confirmed these three interrelated standards that have been adopted by our courts: We point out three distinct aspects of review in child custody disputes. 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) (alterations in original) (quoting Yve S., 373 Md. at 586).
I. The Restriction on the Use of Cannabis
The 2016 Consent Order provided that “neither party shall consume alcohol or any illegal drugs starting 12 hours prior to having the children and continuing for the entire time the children are with that party[.]” In its January 2024 bench opinion, the court stated that it was “continuing the prohibition that [Father] refrain from drinking any alcohol or consuming any marijuana within eight hours” prior to and during visitation with the children.
Father’s principal argument is based on the proposition
that, because the 2016 Consent Order prohibited the parties from consuming “alcohol or any illegal drugs” prior to and during visitation, he was authorized to use medically prescribed cannabis, i.e., a legal drug, under the express terms of that Order.6 Thus, Father contends that when the court stated that it was “continuing the prohibition” that Father refrain from consuming cannabis, it “misunderstood the parties’ prior prohibition against the use of ‘illegal’ drugs.” Maryland law is clear that the court may order a parent to abstain from the use of alcohol in exercising his or her custodial rights where such a restriction is reasonably related to the child’s best interest.7
Cohen v. Cohen, 162 Md. App. 599, 612 (2005). Although Cohen only addressed the alcohol prohibition in the circuit court’s order there, we note that the order also required the father to abstain from the “abuse of prescription or non-prescription drugs,” id. at 606, and we see nothing in Cohen to suggest that such a prohibition would be improper as long as the restriction is reasonably related to the child’s best interest. Nevertheless, Father’s point in the case at bar that the 2016 Consent Order prohibited only the consumption of illegal drugs is well taken. We are unclear whether the court intended to “continue the prohibition of use of illegal drugs” from the 2016 Consent Order or whether the court intended to institute a new (and different) prohibition on the use of cannabis within eight hours prior to visitation. In addition, it is unclear whether the court’s prohibition of the use of cannabis includes Father’s use of medically-prescribed cannabis.8 Accordingly, we shall remand to afford the court the opportunity to clarify its intentions in this regard (and make additional findings, if appropriate). In doing so, the court should be cognizant that any restriction in this regard must be reasonably related to the children’s best interests.
II. The Requirement to Attend Alcoholics Anonymous Meetings
In the February 6, 2024 order, the court required Father to “attend Alcohol[ics] Anonymous meetings on a regular basis.” This provision did not appear in the 2016 Consent Order. The court justified this condition because of its concern about Father’s “temperament and alcoholism.” After finding that Father’s “temperament issues do compromise, or at least affect in some degree, his ability to provide appropriate care for the children when they’re with him[,]” the court ordered Father to (1) abstain from alcohol for eight hours prior to visits with the children and while the children are in his care, (2) attend anger management classes, and (3) regularly attend Alcoholics Anonymous meetings. The court found that his attendance at Alcoholics Anonymous meetings would be beneficial to the children.
Father argues that requiring Alcoholics Anonymous attendance as a condition of visitation is improper because such attendance is not related to the best interests of the children, and other provisions in the order effectively protect the children from the effects of Father’s alcohol use, including the use of Sober Link and the requirement that he abstain from alcohol before and during the children’s visits. He notes that there was no evidence that he ever violated the provision in
the 2016 Consent Order requiring that he abstain from alcohol during visits with the children. Additionally, Father argues that the Alcoholics Anonymous requirement has no time limitation, and therefore effectively requires him to attend Alcoholics Anonymous meetings an unspecified number of times per month “in virtual perpetuity.”
A trial court has “broad discretion” to impose a condition on a parent’s visitation and custody rights, “so long as it is in the child’s best interest and there is sufficient evidence in the record to support the condition[.]” Cohen, 162 Md. App. at 608; see also Kennedy v. Kennedy, 55 Md. App. 299, 310 (1983) (A court may “impose such conditions upon the custodial and supporting parent as deemed necessary to promote the welfare of the children. We will affirm the imposition of such a condition so long as the record contains adequate proof that the condition or requirement is reasonably related to the advancement of a child’s best interests.” (citations omitted)).
Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child. Boswell v. Boswell, 352 Md. 204, 236 (1998). In between, a trial judge must determine whether a particular issue related to a parent presents harm to the health and welfare of a child or affects the child’s development, and whether there is a nexus between the parental issue and any adverse impact on the child’s overall well- being. Id. at 235-38[.]
Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019).
We initially note that the requirement that Father regularly attend Alcoholics Anonymous meetings is exceedingly vague and thus practically unenforceable. For example, is Father’s attendance of one Alcoholics Anonymous meeting per month sufficient to comply with the Order? Or one meeting per week? Moreover, it is unclear who would enforce this obligation. Is Father required to report his attendance of meetings to Mother, the court, or some other third party? For these reasons, the provision requiring Father to regularly attend Alcoholics Anonymous meetings cannot be sustained in its current form. As previously noted, a court may properly impose conditions that are reasonably related to a child’s best interest. To that end, Father did not challenge the court’s imposition of Sober Link or attendance of anger management classes. However, although there was evidence in the record to support a finding that Father’s use of alcohol could be detrimental to the children’s best interests, nothing in the record showed a connection between Father’s attendance at Alcoholics Anonymous meetings and the children’s best interests. Both Mother and Father testified that they attended Alcoholics Anonymous meetings several times per week during the entirety of their marriage, and that Father stopped attending the meetings when they separated. A few years after the divorce, Father began attending meetings again for a short time. There was no evidence showing a change in the children’s well-being at times when Father was or was not attending Alcoholics Anonymous meetings. Additionally, there was no evidence concerning the effect attendance at Alcoholics Anonymous meetings had on Father’s temperament. We note that Alcoholics Anonymous is premised on the notion that its members “are no longer able to handle alcohol in any form; they
now stay away from it completely.” Alcoholics Anonymous, Frequently Asked Questions About A.A., 15 (2018), https:// www.aa.org/sites/default/files/ literature/p-2_0824_0.pdf.
In sum, we shall vacate the condition that Father resume attending Alcoholics Anonymous meetings. On remand, the court may order appropriate substance abuse treatment if it determines that such treatment is reasonably necessary to promote the children’s welfare and best interests.9
III. Elimination of Alternating Thursday Overnight Visitation
The 2016 Consent Order provided Father visitation in “alternate weeks from Thursday at 4:00 p.m. until Friday morning to school[.]” In its January 2024 bench opinion, the court eliminated Father’s alternating Thursday overnight visitation, reasoning as follows:
The [c]ourt believes that the current schedule set forth in the 2016 order should remain in effect, except that the Thursday overnight visits provided for therein should be discontinued and changed to a dinner visit. I guess that would be from after school until 7 p.m. when they’re to be returned by him to their mother’s residence. However, the [c]ourt does find that the Thursday overnight visits should continue during the summer months when the school is not a factor.
Father challenges the court’s elimination of his alternating Thursday overnight visitation, arguing that the court “did not explain the rationale for its decision” and that the court’s removal of overnight visitation “contradicted its earlier findings.”
Mother responds that the court had “serious concerns” about Father’s substance abuse and his ability to care for the children. Mother concedes that the court’s elimination of alternating Thursday overnight visitation “was not made relating to the ability of [Father] to get the children to school on alternating Friday mornings,” but asserts that modification of the schedule was appropriate because the court had concerns about Father’s “temperament and self-control and apparent addiction issues.”
Although we are cognizant of the broad discretion afforded to trial courts in custody and visitation matters, we agree with Father that the court’s decision to eliminate the alternating Thursday overnight visitation is illogical when viewed in the context of the court’s other findings.
First, the court rejected Mother’s request that Father’s alternating Sunday overnight visitation be eliminated, reasoning as follows:
In terms of the weekend visits, [Mother has] asked that the children be returned Sunday night instead of coming back on Monday morning. The [c]ourt does not share that assessment. The [c]ourt does not feel that [Father’s] visit should be shortened to Sunday nights, but instead will leave in place the requirement that they be brought to school by him, or that they be taken to their schools on Monday morning. The [c]ourt believes it might not be a bad idea to keep that Sunday overnight in place, since Mother has less than stellar record regarding ensuring the children’s attendance at school, and there’s no evidence that the boys have been
missing school or been late when [Father] has been the one to take them to school. Given his concerns about the absences, he should be permitted, at least in the [c]ourt’s view, some limited opportunity to get them to school on time. Having Sundays overnight on alternate weekends gives him two times per month to be the school morning parent.
In light of the court’s express finding that Mother “has less than [a] stellar record regarding ensuring the children’s attendance at school” and the lack of evidence that “the boys have been missing school or been late when [Father] has been the one to take them to school[,]” we fail to see the logic in eliminating Father’s Thursday overnight visitation. In short, despite the court’s concerns about the children’s “less than exemplary school attendance record,” which it attributed to Mother “not handling that as well as she otherwise could[,]” the court illogically removed a school night visitation with Father. Moreover, the court’s determination that “Thursday overnight visits should continue during the summer months when the school is not a factor[,]” suggests that the court may have eliminated Thursday overnight visitation because it felt that school is a factor. That determination, however, would be contrary to the court’s other findings. We also note that the 2016 Consent Order expressly contemplated a scenario where Father could lose Thursday and/or Sunday overnight visitation: “If a child is late to school on the mornings [Father] is responsible for them, more than two times in any semester, then his Sunday overnight and Thursday overnight access with the children during the school year shall end and revert back to 7:00 p.m. the evening prior.” Because the 2016 Consent Order provided the baseline for the court’s assessment of a change in circumstances to warrant modification of visitation, it was incumbent upon the court to at least address this provision in some manner.
As previously noted, although Mother concedes that the elimination of the alternating Thursday overnight visitation was not related to Father’s ability to get the children to school, she avers that the court’s concerns about Father’s substance abuse and ability to care for the children justified the modification of visitation. The short response to this argument is that the court
otherwise maintained the visitation schedule set forth in the 2016 Consent Order. Thus, any concerns the court had about Father’s substance abuse and ability to care for the children were insufficient to restrict Father’s alternating weekend visitation from Friday afternoons to Monday mornings or the three non-consecutive weeks of annual summer visitation (or any of the other visitation access provided in the 2016 Consent Order). We fail to see how the court’s concerns about substance abuse would relate only to the Thursday overnight visitation. Accordingly, we shall vacate the court’s elimination of Father’s alternating Thursday overnight visitation.
IV. The Award of Attorney’s Fees
Finally, Father challenges the court’s award of $25,000 as a contribution to Mother’s attorney’s fees. Father correctly notes that an award of counsel fees in a child custody proceeding is reviewed for abuse of discretion. See David A. v. Karen S., 242 Md. App. 1, 23 (2019).
The governing statute here is Md. Code (1984, 2019 Repl. Vol.), § 12-103(b) of the Family Law Article (“FL”):
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and
(3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
We initially note that the court understood that it was required to consider the FL § 12-103(b) factors in determining an appropriate award. Although the court properly considered, pursuant to FL § 12-103(b)(3), Father’s lack of success in obtaining primary residential custody, the court should on remand consider, in light of our opinion, whether Mother had substantial justification in requesting elimination of Father’s alternating Thursday overnights. Of course, in determining whether to award counsel fees on remand, the court should again consider “the financial status of each party” and “the needs of each party” as required by FL § 12-103(b)(1) and (2), respectively.10
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY.
FOOTNOTES
1 Although the circuit court used the term “marijuana,” we shall refer to the substance as “cannabis,” in conformity with Maryland statutory language, except where we are directly quoting the circuit court. See, e.g., Md. Code (2002, 2021 Repl. Vol.) § 5- 101(e) of the Criminal Law Article.
2 The Consent Order also provided for holiday and summer visitation.
3 Father does not challenge the court’s finding of a material change in circumstances.
4 Father does not challenge the condition that he complete an anger management program.
5 The court also ordered that Father obtain “Sober Link” and provide the results to Mother at least two hours before visitation. According to its website, Sober Link is an alcohol monitoring system which uses a portable breathalyzer to automatically send testing results to designated individuals. Sober Link, FAQs, https://www.soberlink.com/faqs (last visited May 8, 2025). Father has not challenged this condition, and we were advised at oral argument that this condition has expired.
6 Father apparently has no objection to the restriction that he refrain from smoking cannabis and cigarettes in the presence of the children.
7 Father does not challenge the eight-hour-abstention requirement as it relates to the consumption of alcohol.
8 Father apparently obtained a medical prescription for
cannabis at some point after issuance of the 2016 Consent Order. At oral argument, Mother’s counsel conceded that the 2016 Consent Order did not preclude Father’s use of medicallyprescribed cannabis and that there was no direct evidence that such use affected the children.
9 Father also argues that requiring him to attend Alcoholics Anonymous meetings would violate his right to freedom of religion under the First and Fourteenth Amendments to the United States Constitution. During the testimony concerning Father’s frequent attendance at Alcoholics Anonymous meetings in the past and decision to stop attending meetings, there was no indication that Father had any religious objection. “It is this Court’s well-established policy to decide constitutional issues only when necessary[.] Even if a constitutional issue is properly raised and decided at the trial level, this Court will not reach the constitutional issue if it is unnecessary to do so.” Md. State Bd. of Elections v. Ambridge, 489 Md. 404, 456 (2025) (alteration in original) (citation omitted) (quoting Blake v. State, 485 Md. 265, 305 (2023)). It is not necessary to reach Father’s constitutional argument in this case and we decline to do so.
10 Although the court found that Mother had $478,000 in cash, it also stated that it had considered Mother’s financial statement. We note that her financial statement failed to identify any assets or liabilities. To the extent the court determines that additional financial evidence is required, it may in its discretion receive such evidence.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s order granting wife’s request for an absolute divorce, monetary award, alimony, a portion of husband’s pension and an award of attorney’s fees. Although husband claimed the circuit court erred in finding that husband had dissipated marital funds, calculating the parties’ marital property, and awarding wife a portion of husband’s pension, these arguments were rejected.
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..
Maryland, until “late 2008 or 2009[,]” when Husband began staying at a home he owned in Columbia, Maryland, more frequently. As Wife explained at trial: We were living at my house, and [Husband] wanted to live closer to where he worked, which was in the Silver Spring/Laurel area. And he just -- he didn’t want to do the drive, and he started not coming home. And that -- that was his excuse. That was his reasoning for why; he -- he just -- he didn’t want to drive from Arnold to Laurel, because he drives all day for UPS.
Thereafter, Husband lived in Columbia, and Wife and their child lived in Arnold.
In November of 2022, Wife filed a complaint for divorce. In December of 2022, Father filed a counter-complaint for divorce. In January of 2023, Husband filed a long form financial statement, which listed that his assets totaled $209,983, including $22,321 in an IRA and $182,662 in a savings account. In a footnote, he asserted that the savings account “[i]ncludes $67,000 in premarital inheritance and $2,140 in a joint account with his son.”
Appellee, Rebecca Uebersax (“Wife”), filed a complaint for absolute divorce from appellant, Michael Wolf (“Husband”), in the Circuit Court for Anne Arundel County. Husband filed a counter-complaint for absolute divorce but failed to participate in discovery or appear at trial. The court granted Wife’s request for an absolute divorce and granted her a monetary award, alimony, a portion of Husband’s pension, and an award of attorney’s fees. Husband noted the instant appeal, where he raises four questions, which we have consolidated and rephrased into three1:
1. Did the court err in determining the parties’ marital property?
2. Did the court err in concluding that Husband had dissipated marital funds?
3. Did the court err in awarding Wife a portion of Husband’s pension and retirement benefits?
As we discuss, we answer each question in the negative, and we shall affirm the judgment of the circuit court.
BACKGROUND
In 2004, Husband and Wife married, and Wife gave birth to their only child. Together they lived in Wife’s home in Arnold,
Wife sought discovery from Husband and, in February of 2023, after Husband failed to respond, Wife filed a motion to compel his discovery responses. On March 13, 2023, the court entered an order granting Wife’s motion and ordering Husband’s discovery responses within ten days. On March 27, 2023, Wife filed a motion for sanctions, noting that Husband still had “provided no discovery responses.” The court granted Wife’s motion for sanctions and ordered that Husband provide “full and complete discovery by April 24, 2023[.]” Nonetheless, Husband failed to respond to discovery.
On May 1, 2023, the court held a pre-trial conference, but Husband failed to appear. The court issued a show-cause order ordering that Husband appear for a show cause hearing on January 25, 2024 – the date of the parties’ divorce trial. Nonetheless, on January 25, 2024, Husband failed to appear. Husband’s counsel appeared, but requested that the court strike his appearance:
[W]e’ve been trying very hard through text, e-mail and phone call. [Husband] did not respond to discovery, and at the last pre-trial, he did not show and was held in default.
And then, since that time, I’ve been trying to get him to prepare for trial. He has come to my office a long time ago, but I haven’t seen him, and I have lots of paperwork if you’d like to see, if that evidences the efforts we’ve made. I just don’t think that it’s reasonable, and quite frankly, I think it puts me in a very difficult position to try to represent his side of the case without having discovery, without having information, and I don’t
think it’s appropriate. So I would ask the Court to strike my appearance and allow the case to go forward on a default basis.
The court noted Husband’s counsel’s “extensive attempts” to contact Husband and granted counsel’s request. Wife requested that the court strike Husband’s counter-complaint, which the court granted and thereafter proceeded with trial.
At trial, Wife testified that Husband’s employer, the United Parcel Service (“UPS”) had not yet responded to her subpoena request, but that she believed that Husband was making over $100,000 per year because she knew that UPS “has been giving [him] raises over the years.” She introduced subpoenaed bank statements from Husband’s bank, Tower Federal Credit Union, which included paycheck deposits from May of 2020 to November of 2023. She testified that recently, Husband had not been depositing paychecks into the Tower Federal Credit Union account and that she believed he was banking elsewhere.
Further, Wife noted that since July of 2020, Husband had been regularly withdrawing several thousand dollars from the Tower Federal Credit Union account, sometimes several times a month, but that she had “no idea where that might be going[.]” She introduced evidence of a $99,000 withdrawal in June of 2023, as well as several large wire transfers to his girlfriend, Zorina Crooks. Further, she noted a $50,000 payment to Husband’s counsel in November of 2022. In total, Wife asserted that since 2020, Husband had dissipated over $295,000 in marital funds.
Finally, Wife introduced evidence showing that Husband had over $123,000 in an unclaimed fund account held by the Comptroller of Maryland following the foreclosure of his home in 2019. Wife explained that Husband had allowed his home to go to foreclosure “even though he had hundreds of thousands in the bank and was getting regular paychecks[,]” adding that “[h]e just would not pay his mortgage and it went to foreclosure.” At the conclusion of the hearing, the court granted Wife an absolute divorce from Husband based upon the parties over twelve-month separation. The court found that Husband’s income was what he noted on his financial statement and credited Wife’s testimony that Husband “likely has other bank accounts into which he is currently disbursing his paychecks[.]” Additionally, the court concluded that Husband had dissipated marital funds, but excluded Husband’s payment to counsel and expenditures that were not in “round amounts[,]” in Husband’s bank statements, finding that those were “likely payment of some specific obligation.” The court concluded that Husband had dissipated $237,713 in marital funds. Finally, the court found that the total value of marital property was $449,471.43. The court concluded that division of marital funds based on title would be inequitable and awarded Wife a monetary award of $224,735.71. Further, the court granted Wife a portion of Husband’s pension based upon the formula set forth in Bangs v. Bangs, 59 Md. App. 350 (1984), ordered that any funds “refundable to [Husband] as a result of [Husband’s counsel’s] representation be released to [Wife,]” and awarded Wife alimony and attorney’s fees.
Husband noted the instant appeal. Additional facts will be supplied as necessary.
STANDARD OF REVIEW
“Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). Accordingly, “[f]indings of this type are subject to review under the clearly erroneous standard embodied by Md. Rule 8-131(c); we will not disturb a factual finding unless it is clearly erroneous.” Id. Similarly, “[a] trial court’s judgment regarding dissipation is a factual one and, therefore, is reviewed under a clearly erroneous standard.” Omayaka v. Omayaka, 417 Md. 643, 652 (2011) (cleaned up).
“Under the clearly erroneous standard, this Court does not sit as a second trial court, reviewing all the facts to determine whether an appellant has proven his case.” Lemley v. Lemley, 109 Md. App. 620, 628 (1996). Instead, our role is to review the record, in the light most favorable to the prevailing party, for “the presence of sufficient material evidence to support the [court’s] findings.” Id. To that end, “[i]f there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Fuge v. Fuge, 146 Md. App. 142, 180 (2002).
Moreover, “‘[t]he court has broad discretion in evaluating pensions and retirement benefits, and in determining the manner in which those benefits are to be distributed.’” Woodson v. Saldana, 165 Md. App. 480, 489 (2005) (quoting Welsh v. Welsh, 135 Md. App. 29, 54 (2000), cert. denied, 363 Md. 207 (2001)). Further, “the ultimate decision regarding whether to grant a monetary award, and the amount of such an award, is subject to review for abuse of discretion.” Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). “An abuse of discretion occurs where ‘no reasonable person would take the view adopted by the [trial] court’ or the trial court ‘acts without any guiding rules or principles.’” Li v. Lee, 210 Md. App. 73, 96 (2013) (quoting Das v. Das, 133 Md. App. 1, 15-16 (2000)), aff’d, 437 Md. 47 (2014).
In sum, “‘appellate courts will accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.’” Malin v. Mininberg, 153 Md. App. 358, 415 (2003) (quoting Tracey v. Tracey, 328 Md. 380, 385 (1992)). “As long as the trial court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm it, even if we might have reached a different result.” Id.
DISCUSSION
I. The court did not err in calculating the parties’ marital property.
a. Parties’ Contentions
Husband contends that the court committed clear error by failing to exclude non- marital property, namely, inherited funds from his mother and unclaimed funds from the foreclosure of his home, in its calculation of marital property. Wife responds that there was no testimony or evidence at trial supporting
Husband’s claims of non-marital property, and thus, the court properly determined the parties’ marital property. We agree with Wife.
b. Legal Framework
The purpose of a monetary award is “to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage, strictly in accordance with its title.” Ward v. Ward, 52 Md. App. 336, 339 (1982). Accordingly, “when deciding whether to make an award, the court has broad discretion to reach an equitable result.” Hart v. Hart, 169 Md. App. 151, 160-61 (2006). In exercising that discretion, “the trial court must follow a three-step procedure.” Malin, 153 Md. App. at 428. As stated in Innerbichler: First, for each disputed item of property, the court must determine whether it is marital or nonmarital. Second, the court must determine the value of all marital property. Third, the court must decide if the division of marital property according to title will be unfair; if so, the court may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.
132 Md. App. at 228 (cleaned up).
As set forth in Md. Code Ann., Family Law (“FL”) § 8-201(e) (1), marital property “means the property, however titled, acquired by 1 or both parties during the marriage.” Generally, it does not include property that is either acquired by or “directly traceable” to an inheritance or funds acquired before the marriage. FL § 8-201(e)(3). However, “[p]roperty that is initially non-marital can become marital[.]” Innerbichler, 132 Md. App. at 227. Indeed, “the party who asserts a marital interest in property bears the burden of producing evidence as to the identity of the property.” Id. “Conversely, ‘[t]he party seeking to demonstrate that particular property acquired during the marriage is nonmarital must trace the property to a nonmarital source.’” Id. (quoting Noffsinger v. Noffsinger, 95 Md. App. 265, 283 (1993)).
c. Analysis
Husband challenges only the first step of the three-step analysis in granting a monetary award: the determination of marital property. Specifically, he asserts that the court erred in concluding that the following were marital property: (1) unclaimed funds from the foreclosure of his home, and (2) his Tower Federal Credit Union bank account. In support, he contends that the unclaimed funds were from a foreclosure of a house titled solely in his name, and that the Tower Federal Credit Union bank account included inherited funds from his deceased mother’s estate. However, Husband failed to produce any evidence in support of either of his contentions. He failed to participate in discovery, despite two court orders ordering him to do so, failed to appear at trial, and failed to provide any evidence supporting his assertions that either the unclaimed funds or the Tower Federal Credit Union account were nonmarital property.
Instead, he contends that the court erred in failing to consider his long form financial statement, filed a year prior
to trial, where he included a footnote asserting that the Tower Federal Credit Union account was partially inherited funds. In support, he relies upon Beck v. Beck, 112 Md. App. 197 (1996), however, Beck is inapplicable to the facts before us. In Beck, we held that an adverse party’s admissions in a financial statement filed prior to trial “constitute judicial admissions” and thus, they “may be considered as evidence by trial courts without the necessity of a formal introduction of such statements at trial.” Id. at 205, 208. Beck does not stand for the proposition that a party’s own assertions in a long form financial statement must be considered as evidence when that party fails to appear at trial and fails to provide any evidence in support of his or her claims. Id.
Regarding the unclaimed funds, Husband points to a stipulation filed by Wife following the parties’ divorce, and contends that therein, Wife “already stipulated, on the record, that [Husband’s] unclaimed funds should never have been listed as marital property[.]” Husband misreads the stipulation. Wife acknowledged therein that the unclaimed funds, held by the Comptroller of Maryland in her official capacity, were not subject to garnishment – not that they are not marital property.2 In sum, and in the absence of any evidence or testimony to the contrary, the court did not err in concluding that the unclaimed funds and the Tower Federal Credit Union account were marital property. Accordingly, we are unpersuaded that the court abused its discretion in granting Wife a monetary award.
II. The court did not err in finding that Husband had dissipated marital funds.
a. Parties’ Contentions
Husband asserts that Wife “failed to meet the burden of proof for dissipation” and that there was “zero proof as to the differentiation between living expenses and any alleged dissipation.” Wife responds that she met the prima facie burden showing that Husband had dissipated marital funds and that Husband failed to provide “any documentation to support his long form financial statement” or any “proof that [he] used the funds for the purpose of benefitting the parties’ marriage[.]” We agree with Wife.
b. Legal Framework
“Dissipation occurs when one party ‘spen[ds] or otherwise deplete[s] marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.’” Goicochea v. Goicochea, 256 Md. App. 329, 339-40 (2022) (quoting Omayaka, 417 Md. at 653). At trial, “‘[t]he burden of persuasion and the initial burden of production in showing dissipation is on the party making the allegation.’” Omayaka, 417 Md. at 656 (quoting Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311 (1994)). However, “after that party establishes a prima facie case that monies have been dissipated, i.e. expended for the principal purpose of reducing the funds available for equitable distribution, the burden shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate.” Id. at 656-57 (cleaned up). Finally, “[p]roof that a spouse made sizable withdrawals from bank accounts under his
or her control is sufficient to support the finding that the spouse had dissipated the withdrawn funds.” Id. at 657.
c. Analysis
At trial, Wife asserted that Husband had dissipated over $295,000 in marital funds. In support, she introduced Husband’s Tower Federal Credit Union bank statements showing that Husband made several large transfers, payments, and withdraws from July of 2020 to December of 2023. These included the following:
• July 2020 – deposited $7,000 into his IRA;
• January 2021 – withdrew $2,500;
• February 2021 – withdrew $2,500;
• March 2021 – withdrew $2,500 three times;
• April 2021 – withdrew $2,500 three times;
• June 2021 – withdrew $2,500 two times;
• July 2021 –withdrew $2,500 two times;
• August 2021 – withdrew $2,500 five times;
• September 2021 – withdrew $2,500 five times;
• October 2021 – withdrew $2,500 four times;
• November 2021 – withdrew $2,500;
• December 2021 – withdrew $2,500;
• February 2022 – withdrew $2,500 three times;
• April 2022 – withdrew $2,500 two times;
• May 2022 – withdrew $2,500;
• June 2022 – withdrew $3,500;
• July 2022 – withdrew $2,500 and $3,556.89;
• August 2022 – withdrew $2,500 and $1,401.04;
• September 2022 – withdrew $1,761.43;
• October 2022 – withdrew $2,500;
• November 2022 – withdrew $2,500 three times, withdrew $2,863.78, paid counsel $50,000;
• December 2022 – withdrew $2,500 two times and withdrew $1,482.17;
• January 2023 – withdrew $2,003.50;
• June 2023 – withdrew $99,000 and wired $16,900 to Ms. Crooks;
• September 2023 – withdrew $2,000;
• November 2023 – wired $6,000 to Ms. Crooks;
• December 2023 – wired $5,135 to Ms. Crooks.
On appeal, Husband does not dispute that he made the withdrawals, payments, or wire transfers, nor does he contend (apart from the payment to counsel, which we address infra) that they were for a legitimate purpose. Instead, he asserts that the court erred because Wife “was unable to prove the existence of ‘another’ bank account, [his] employment status, and [his] current monthly income.” He adds that Wife “had no evidence to support what sum of money was going towards [his] day to day living expenses as opposed to his alleged dissipation” and that “[t]here was no claim that [his] bank statements revealed any sort of direct deposits or automatic bill payments as evidence of dissipation[.]” Relying upon his financial statement, he asserts the following in his appellate brief:
Appellant’s Long Form Financial Statement included the following information:
1. That Appellant’s total monthly expenses at the time of filing totaled to $4912.93.
2. That Appellant’s total monthly income at time of filing was $5,694.00.
3. That the money contained in Appellant’s Tower Federal bank accounts included $67,000 in premarital inheritance and $2,140 in a joint account with Appellant’s son.
4. That Appellant planned on retiring in May 2023, at which point his pension would be his sole source of income.
Thus, Appellant produced evidence sufficient to show that expenditures were appropriate.
(Record citations omitted.)
As discussed supra, the court was not required to consider Husband’s financial statement as evidence at trial. Nevertheless, it is unclear how Husband’s financial statement, submitted a year prior to trial and several months prior to several of the challenged withdrawals and transfers, “show that [the] expenditures were appropriate” as he contends. The financial statement does not address any of the expenditures or provide any basis for finding that they were for appropriate purposes.3 Further, Husband’s assertion that Wife was required to prove the existence of his other bank accounts or day to day living expenses after he failed to appear at trial is mistaken. Wife produced evidence demonstrating that Husband “made sizable withdrawals from bank accounts under his . . . control” which the Supreme Court of Maryland has expressly noted “is sufficient to support the finding that the spouse had dissipated the withdrawn funds.” Omayaka, 417 Md. at 657.
Finally, Husband maintains that the court erroneously considered his $50,000 payment to counsel in its dissipation analysis. However, Father’s contention is plainly contradicted by the record. The court expressly noted that, in assessing the amount of dissipated funds, it “did not consider . . . the Fifty Thousand Dollars in attorneys fees that was paid to [Husband’s counsel].”4 Accordingly, and because Husband fails to point to any evidence in the record showing that the withdrawals or expenditures were for legitimate purposes, we disagree that the court’s dissipation findings were clearly erroneous.
III. The court did not err in finding that Wife was entitled to a marital share of Husband’s pension.
a. Parties’ Contentions
Husband asserts that the court erred in awarding Wife a portion of his pension with UPS, explaining that Wife “did not provide any testimony or competent evidence regarding whether [he] was still employed at UPS, when he started working at UPS, whether the pension had vested at the time of the marriage, or what amount [he] had contributed towards said pension during the marriage.” Wife responds that no exact value was needed to award Wife a portion of Husband’s pension. Once again, we agree with Wife.
b. Legal Framework
As noted in Bangs, the court may divide a pension by awarding a “future sum or sums of money equal to a portion of the pension payable in the future if, as and when the pension
is received[.]” 59 Md. App. at 368. Under this “if, as, and when” approach, an exact value is not needed for the court to grant a marital share of a pension. FL § 8- 204(b)(1) (“The court need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan, unless a party has given notice in accordance with paragraph (2) of this subsection that the party objects to a distribution of retirement benefits on an ‘if, as, and when’ basis.”); see also Deering v. Deering, 292 Md. 115, 131 (1981) (noting that under the “if, as, and when” approach, “it is unnecessary to determine the value of the pension fund at all”). Instead, if a party objects to the distribution of retirement benefits on an “if, as, and when” basis, that party is required to give “written notice at least 60 days before the date the joint statement of the parties concerning marital and nonmarital property is required to be filed under the Maryland Rules.” FL § 8-204(b)(2). However, if no such notice is given, “any objection to a distribution on an ‘if, as, and when’ basis shall be deemed to be waived unless good cause is shown.” Id.
c. Analysis
As Husband’s counsel conceded at oral argument, Husband failed to object to the distribution of his pension on an “if, as, and
when” basis at any point prior to trial. Nor has he provided good cause for failing to timely file any such objection. Accordingly, Husband’s objections to the distribution of his pension on an “if, as, and when” basis have been waived. See Caccamise v. Caccamise, 130 Md. App. 505, 523 (2000).
Even had, arguendo, Husband properly given notice objecting to the distribution of his pension on an “if, as, and when” basis, we see no abuse of discretion based upon these facts. The court determined that Wife was entitled to a percentage of Husband’s pension based upon the formula provided in Bangs. Specifically, the court noted that Wife’s marital share was “to be computed by multiplying 50% times a fraction, the numerator of which is 240 months of marriage during [Husband’s] creditable United Parcel Service, Inc., service, divided by [Husband’s] total number of months of creditable United Parcel Service, Inc., service.” Based upon the facts before us, including Husband’s failure to produce any discovery and failure to appear at trial, we cannot say that this was an abuse of the court’s broad discretion. Deering, 292 Md. at 131 (noting that with the “if, as, and when” approach, “[t]he court need do no more than determine the appropriate percentage to which the non- employee spouse is entitled”).
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The questions presented in Husband’s brief are:
1. Did the Circuit Court for Anne Arundel County make a clearly erroneous ruling by including non-marital property when calculating [Wife’s] monetary award?
2. Did the Circuit Court for Anne Arundel County abuse its discretion by granting [Wife] a monetary award based upon clearly erroneous calculations of marital property?
3. Did the Circuit Court for Anne Arundel County make a clearly erroneous ruling by finding that [Husband] had dissipated funds, despite a lack of competent evidence?
4. Did the Circuit Court for Anne Arundel County make a clearly erroneous ruling by granting [Wife] a portion of [Husband’s] pension without any evidence presented regarding the valuation of the pension?
2 See Ridge Lumber Co. v. Overmont Dev., 34 Md. App. 14, 15 (1976) (“[G]overnmental officers and subdivisions of the State are exempt from attachment proceedings where the
money sought to be attached is held by the garnishee in its official capacity.”).
3 We further note that at least one of Husband’s contentions therein – that his pension would be his sole source of income after his planned retirement in May of 2023 – was expressly contradicted by the evidence at trial, which included paychecks dated as late as November of 2023.
4 Neither party challenges whether the court properly ordered that legal fees refundable to Husband shall be paid to Wife towards her monetary and/or fee award(s). Accordingly, we do not address that issue in this appeal. See Health Servs. Cost Rev. Comm’n v. Lutheran Hosp. of Md., Inc., 298 Md. 651, 664 (1984) (“This Court has consistently held that a question not presented or argued in an appellant’s brief is waived or abandoned and is, therefore, not properly preserved for review.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 08 MFLU Supp. 21 (2025)
Child support; age of majority; calculation
Lynda M. Dodds v.
Christopher A. Dodds
No. 579, September Term 2024
Argued before: Berger, Zic, Eyler, James (retired; specially assigned), JJ.
Opinion by: Eyler, J.
Filed: June 12, 2025
The Appellate Court vacated the Carroll County Circuit Court’s award of child support, because it did not include one of the parties’ children in its calculations. Although that child would reach the age of majority one week after entry of the judgment, she was not expected to graduate from secondary school until the following month. Moreover, the court could not have been certain that she would graduate as scheduled, and she was entitled to child support until the earlier of her graduation or withdrawal from high school or her nineteenth birthday.
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..
testimony regarding “specialized medical topics”?
III. Did the circuit court abuse its discretion by restricting Mother’s recross- examination of Father’s expert witness?
IV. Did the circuit court err by failing to make explicit, on-the-record findings that Father abused and/or neglected the parties’ children?
V. Did the circuit court abuse its discretion by awarding Father tie- breaking decision-making authority?
VI. Did the circuit court commit legal error when calculating the child support award?
VII. Did the circuit court abuse its discretion by declining to grant Mother rehabilitative alimony?1
For the reasons that follow, we will vacate the child support award, remand for reconsideration of that issue, and otherwise affirm.
BACKGROUND2
A. Facts
Father and Mother were married on or around June 26, 2014. At that time, Mother had an eight-year-old daughter, S., whom Father adopted in 2018. During their marriage, the parties had two sons together: J., born in 2018, and C., born in 2021.3 J. was diagnosed as an infant with a congenital heart condition, which was surgically repaired when he was approximately one month old and requires that he undergo annual echocardiograms.
On May 1, 2024, the Circuit Court for Carroll County entered a judgment of absolute divorce between the appellant, Lynda M. Dodds (“Mother”), and the appellee, Christopher A. Dodds (“Father”). In its divorce decree, the court granted the parties joint legal and shared physical custody of the two minor children born of their marriage, with tie-breaking authority to Father. It also awarded Mother sole legal and primary physical custody of a third child born to her before the marriage. Finally, the court denied alimony to Mother and ordered Father to pay child support in the monthly amount of $741.
Mother timely appealed and presents four questions for our review, which we have recast as seven and reordered to reflect the chronology of the proceedings:
I. Did the circuit court abuse its discretion by declining to appoint a best interest attorney (“BIA”) to represent the parties’ children?
II. Did the circuit court err by permitting a physician, who was not designated as an expert witness, to give
In June or July of 2020, Mother lost her job as a senior technical analyst with Oracle American, Inc., her employer of the preceding seven years. Rather than seek alternate employment, Mother assumed the role of a stay-at-home parent while pursuing her bachelor’s degree on a full-time basis. Father, in turn, worked full-time as a financial analyst at Northrop Grumman—a position that he retained through trial. The financial strain of transitioning from a dual- to a singleincome household was compounded by the parties’ decision to purchase a new home (“the marital home”) in January or February of 2021. Out of concern for his health, Mother unilaterally elected to withdraw J. from preschool in December of 2021 and homeschooled him through 2023—despite Father’s objections and the opinion of J.’s cardiologist that “it was fine for him to return to [public] school.”
On November 18, 2021, Mother filed a petition for emergency evaluation of Father, alleging, among other things, that he was “gradually exhibiting changes in behavior that. . . creat[ed a] toxic environment in the household and [endangered] the safety and wellbeing of [their] 3 children.” Specifically, she claimed that Father was “abnormally wired[,]” “communicated [with] a
raised voice[,]” and excessively used marijuana. 4 On November 19th, the police transported Father from his parents’ house— where he had been staying since Mother requested that he leave the marital home two days prior—to Howard County General Hospital for a psychiatric evaluation. Father was discharged the following day after a psychiatric evaluator determined that he was at a “[l]ow risk of self-harm and harm to others.”
On December 4, 2021, two weeks after Father’s release from the hospital, he and Mother were involved in a physical altercation, which culminated in their separation. Although their accounts of the incident differ, the parties agree that they engaged in a scuffle as Mother attempted to prevent Father from pulling her vehicle out of the garage.
S. witnessed the fray and called the police, who promptly responded to the scene. After the altercation, Father left the marital home and moved into his parents’ house, where he was still residing at the time of trial. Mother, meanwhile, remained living in the marital home, with Father continuing to pay the mortgage, utilities, and landscaping costs.
While this case was pending in the circuit court, Mother resumed employment. In October of 2022, she was hired as a full-time analyst with MDF Commerce earning $19.23 per hour. After being terminated from that position three months later, Mother obtained part-time employment in March of 2023 as a teacher’s aide and assistant director at the Immanuel Montessori School, where she worked roughly twenty-one hours per week at a rate of $17 per hour. Mother continued in that position through trial.
B. Procedural History
On December 27, 2021, Mother filed a complaint in the circuit court, seeking an absolute divorce and child support, as well as sole legal and primary physical custody of all three children (collectively, “the children”). One month later, Father counterclaimed for divorce, child custody, and child support. Following a pendente lite hearing held on April 28, 2022, the presiding magistrate both recommended that the parties be granted “temporary joint legal and physical custody” of the children and proposed a regular access schedule. (Emphasis retained.) The court adopted the magistrate’s recommendations in a pendente lite order entered on June 13, 2022.5 On August 18, 2022, Mother amended her complaint to include a request for “rehabilitative and/or indefinite alimony[.]”
Trial commenced on December 12, 2023, and proceeded over three consecutive days. When trial could not be completed within that period, the court continued the proceedings to March 19-20, 2024. Over the course of the five-day trial, a total of nineteen witnesses testified. The circuit court announced its findings and rulings from the bench on April 29th. In granting the parties an absolute divorce, it found that their “separation ha[d] been continuous and uninterrupted since December 4, 2021[,]” and that there was “no reasonable hope or expectation” of reconciliation.
Turning to the issue of child custody, the circuit court addressed each of the relevant factors set forth in Taylor v. Taylor, 306 Md. 290, 307-11 (1986), and Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406,
420 (1978).6 It then awarded Mother sole legal and physical custody of S., with reasonable access to Father. In so doing, the court noted that S. would turn eighteen in less than two weeks’ time—which would likely render the issue moot. As to J. and C., the court concluded that their best interests would be served by awarding the parties joint legal custody and shared physical custody, while maintaining the existing access schedule. Having found that “the parties ha[d] difficulty reaching shared decisions concerning the children[,]” the court granted Father tie-breaking authority “[i]n the event that the parties are unable to reach a decision after meaningful discussions[.]”
When calculating child support, the circuit court relied upon the parties’ financial statements, which reflected gross monthly incomes of $2,286 for Mother and $8,560 for Father. It ultimately ordered Father to pay Mother child support “in the amount of $741 per month, beginning May 1, 2024.”7 In distributing the parties’ marital property, the court ordered the sale of the marital home, with the proceeds to be divided evenly.8 However, it granted Mother temporary use and possession of the home and ordered Father to pay the mortgage “[d]uring that use and possession period[.]”9 Additionally, the court awarded Mother one-half of the marital portion of three of Father’s retirement accounts.10 Finally, after reviewing the applicable factors, it declined to make a monetary award or grant alimony. The court memorialized its oral rulings in a written order entered on May 1, 2024.
As noted above, we will include additional facts in our discussion of the issues presented.
DISCUSSION
I.
We first address Mother’s contention that the circuit court erred in denying her motion for appointment of a BIA. She argues that the court was “required” to appoint a BIA given “the significant issues raised concerning [Father’s] parenting fitness.” By declining “to appoint or reconsider the appointment of [a] BIA[,]” Mother maintains, the court “effectively disregarded the extensive evidence[,]” which called into question Father’s “fitness as a custodial parent and his suitability for decision-making authority.”
Father responds that the court “appropriately denied [Mother’s] motion[,]” as “[t]he parties were not in a financial position to pay . . . the significant costs associated with a [BIA].” He also argues that a BIA was unnecessary because the court had access to alternative sources of information relevant to the children’s best interests, including the testimony of Child Protective Services (“CPS”) workers who investigated Mother’s allegations against him. Father similarly asserts that the children’s “special physical, educational, or mental health needs” were adequately addressed through the testimony of the “medical professionals who had treated” them. Finally, Father contends that, given the duration of the trial “and the level of contentiousness . . . , this case was far too much [for] an attorney to take on in a pro bono capacity.”
A. Best Interest Attorney
A BIA is “a lawyer appointed by a court for the purpose of protecting a child’s best interests, without being bound by the child’s directives or objectives.” McAllister v. McAllister, 218 Md. App. 386, 403 (2014) (cleaned up). Section 1-202(a) of the Family Law Article (“FL”) of the Maryland Code (1984, 2019 Repl. Vol.) governs a court’s authority to appoint a BIA and provides, in pertinent part: “In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may . . . appoint a lawyer who shall serve as a [BIA] to represent the minor child and who may not represent any party to the action[.]” (Emphasis added.) As is evident from its use of the permissive verb “may,” “the statute merely authorizes a court to appoint counsel in [contested child custody cases]; it does not mandate such an appointment.” Garg v. Garg, 393 Md. 225, 238 (2006) (emphasis retained). Whether to appoint a BIA thus rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse thereof. See id. (“The decision whether to appoint independent counsel for the child is a discretionary one, reviewable under the rather constricted standard of whether that discretion was abused.”); see also Miller v. Bosley, 113 Md. App. 381, 400 (1997) (“We do not seek to usurp the judge’s discretion to decide whether to appoint counsel for the child That is clearly within his [or her] purview[.]”).
“[T]here is an abuse of discretion where no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding principles.”
Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 418 (2007) (cleaned up). “An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic.” Id. (cleaned up). A trial court does not abuse its discretion, however, merely because we would have reached a different result. See id. at 436 (“[A]n appellate court should not reverse a decision vested in the trial court’s discretion merely because the appellate court reaches a different conclusion.”). Rather, “‘[a]n abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.’” B.O. v. S.O., 252 Md. App. 486, 502 (2021) (quoting Wilson v. John Crane, Inc., 385 Md. 185, 199 (2005)).
Maryland Rule 9-205.1 guides the circuit court’s discretion in deciding whether to appoint a BIA and provides, in part: “In determining whether to appoint an attorney for a child, the court should consider the nature of the potential evidence to be presented, other available methods of obtaining information, including social service investigations and evaluations by mental health professionals, and available resources for payment.” Md. Rule 9-205.1(b). The Rule then sets forth the following “factors, allegations, or concerns” for which appointing a BIA “may be most appropriate”:
1. request of one or both parties;
2. high level of conflict;
3. inappropriate adult influence or manipulation;
4. (4) past or current child abuse or neglect;
5. (5) past or current mental health problems of the child or party;
6. special physical, educational, or mental health needs of the child that require investigation or advocacy;
7. actual or threatened family violence;
8. alcohol or other substance abuse;
9. consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent; 10. relocation that substantially reduces the child’s time with a parent, sibling, or both; or
11. any other factor that the court considers relevant.
Id. Notably, Rule 9-205.1(b) is couched in advisory terms and does not, therefore, expressly require that courts either consider the above-enumerated factors or make on-therecord findings as to each.11
B. Proceedings Below
On September 6, 2022, Mother moved for the appointment of a BIA. In her motion, Mother addressed nine of the eleven factors enumerated in Rule 9-205.1(b), identifying the remaining two as inapplicable. One week later, Father filed an opposition to Mother’s motion, wherein he argued that appointing a BIA would “likely cause undue delay to the final resolution of this matter.” Father also asserted that, because he was “the only employed party . . . and [wa]s solely paying all of the costs associated with the family household . . . [, the] additional cost of a [BIA] [wa]s not substantially justified.”
The circuit court denied Mother’s motion for a BIA without a hearing in an order entered on September 19, 2022. Rather than draft a new order, the court modified an existing one which would have granted Mother’s motion. In so doing, the court added a notation stating: “Based on a review of the court file, the parties are unable to afford a [BIA.]” Undeterred by the adverse ruling, Mother filed a motion for reconsideration on September 29th. In responding to the court’s notation, Mother relied upon the Committee Note to Rule 9-205.1, which states, in relevant part:
A court should provide for an adequate and effective attorney for a child in all cases in which an appointment is warranted, regardless of the economic status of the parties Before asking an attorney to provide representation pro bono publico to a child, the court should consider the number of other similar cases the attorney has recently accepted on a pro bono basis from the court.
(Emphasis added.) Father filed a response to the motion for reconsideration on October 14th, arguing that Mother had “failed to establish a probable evidentiary basis for the need of the appointment of a [BIA] for the children[.]” The court summarily denied Mother’s motion to reconsider in an order entered that same day.
C. Analysis
We discern no abuse of discretion in the circuit court’s refusal to appoint a BIA. Although some of the Rule 9-205.1(b) factors referenced in Mother’s motion may have weighed in favor of a BIA, they did not compel the court to appoint one. Moreover, the motion did not indicate whether or how a BIA would facilitate the presentation of relevant evidence or
otherwise assist the trial court in resolving the issues before it.12 Nor did it so much as mention the “available resources for pay[ing]” a BIA. Md. Rule 9-205.1(b).
In declining to appoint a BIA, the circuit court found that the parties were unable to afford one. The record then before the court reflected that Father had an annual gross income of $99,200 and monthly expenses of approximately $6,205—or $74,460 annually—while Mother had been unemployed since July of 2020. Those undisputed facts adequately supported the court’s finding. In view of the parties’ inability to afford a BIA— coupled with Mother’s failure to demonstrate the need for one—the court acted within its discretion in denying the motion.
The Committee Note to Rule 9-205.1(b), which Mother cited in support of her motion for reconsideration, does not alter our conclusion. Although “‘we read the Rules in light of the Committee notes[,]’” the notes themselves “are not part of the Rules[.]” Gray v. Fenton, 245 Md. App. 207, 212 (2020) (quoting Bijou v. Young-Battle, 185 Md. App. 268, 288 (2009)). See also Md. Rule 1-201(e) (“[C]ommittee notes . . . are not part of these rules.”); Kusi v. State, 438 Md. 362, 387 (2014) (“‘[T] he Committee Note following the Rule lays out the kinds of things a court may do.” (cleaned up) (emphasis retained)). The Committee Note to Rule 9-205.1(b) encourages courts to exercise their discretion to assign pro bono counsel for children in cases where such representation is warranted but would otherwise be financially infeasible. It does not, however, negate the plain language of the Rule, which expressly directs courts to “consider . . . available resources for payment” in determining whether to appoint a BIA. The ability of parents to afford such representation therefore remains a relevant consideration, and the court did not err in taking it into account here.13
II.
Next, Mother claims that the court erred by permitting Dr. Melanie Nies, J.’s pediatric cardiologist, to offer improper lay witness testimony, arguing that her “statements involved specialized medical topics, such as [J.’s] susceptibility to respiratory infections and specific cardiac complications.” “Addressing these complex areas,” Mother maintains, “typically requires expert qualification under Maryland Rule 5-702 to ensure that such assessments are based on comprehensive medical data.”14 In a related vein, she asserts that Dr. Nies’s “testimony was limited by not having access to [J.’s] full medical records, which restricted the scope and clarity of her insights into the complexity of his health status.”
We will not address the merits of Mother’s arguments because they are not properly before us. Maryland Rule 8-131(a) governs the scope of appellate review and provides, in pertinent part: “Ordinarily, an appellate court will not decide any [nonjurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Rule 2-517, in turn, prescribes the method of making objections to the admission of evidence in civil cases. That rule states, in relevant part: “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as
the grounds for objection become apparent. Otherwise, the objection is waived.” Md. Rule 2-517(a). Finally, “[w]hen specific grounds are given at trial for an objection, the party objecting will be held to those grounds and ordinarily waives any grounds not specified that are later raised on appeal.” Klauenberg v. State, 355 Md. 528, 541 (1999). See also Colvin-el v. State, 332 Md. 144, 169 (1993) (“Appellate review of an evidentiary ruling, when a specific objection was made, is limited to the ground assigned.”); Banks v. State, 84 Md. App. 582, 588 (1990) (“[W]hen the grounds for an objection are stated by the objecting party, . . . only those specifically stated are preserved for appellate review; those not stated are deemed waived.”).
During the direct examination of Dr. Nies, Mother’s counsel made over ten specific objections to questions posed by Father’s attorney. At no point, however, did she assert that Dr. Nies’s testimony exceeded the bounds of permissible lay witness testimony.15
Mother’s remaining objections were likewise unrelated to the issue of whether Dr. Nies’s testimony constituted expert testimony subject to Rule 5-702. Finally, although Father’s attorney raised concerns regarding Dr. Nies’s failure to produce all of J.’s medical records, Mother’s counsel never addressed the matter. Because Mother did not object below to Dr. Nies’s testimony on the grounds she now asserts, we hold that she has waived those issues for purposes of appeal. See Perry v. State, 229 Md. App. 687, 709 (2016) (holding that appellant waived the issue of whether a witness’s testimony was “permissible lay opinion” or “impermissible expert testimony” where “nothing in the transcript . . . demonstrate[d] that the court was made aware that the defense objected to [the] testimony because it constituted impermissible expert testimony”), cert. dismissed, 453 Md. 25 (2017); Aron v. Brock, 118 Md. App. 475, 499 (holding that appellant waived his argument that the testimony of two witnesses “constituted improper opinion testimony” by failing to “object below . . . on those grounds”), cert. denied, 346 Md. 629 (1997).
III.
Mother also contends that the circuit court erred by preventing her from eliciting expert testimony from Father’s therapist, Mary Beth Bracone, “regarding [Father’s] mental illness diagnosis and past [pharmacological] treatment.” While Mother acknowledges that “Ms. Bracone [wa]s not qualified to prescribe medications,” she insists that such testimony “could still speak to the likely impacts of treatment cessation on an individual diagnosed with bipolar disorder and anxiety.” She maintains that “[t]he [c]ourt’s insistence on a medical doctor or prescriber to establish this point overlooks [Ms. Bracone’s] qualifications to discuss how untreated mental illness may affect [Father’s] behavior[.]”
A. Proceedings Below
Ms. Bracone was among the witnesses Father called to testify during his case-in- chief. A licensed clinical social worker, Ms. Bracone was accepted by the court—without objection—as an expert in the field of “individual clinical counseling.” On direct
examination, Ms. Bracone testified that Father began seeing her in June of 2021. Ms. Bracone diagnosed Father initially with an adjustment disorder and later with an unspecified anxiety disorder.
After the parties had completed their examinations of Ms. Bracone, the court asked her if she knew whether Father was then “prescribed any medication for any mental illness or disorder[.]” Ms. Bracone answered: “It’s the medical marijuana as far as I know.”16 Turning to counsel, the court inquired: “Any questions in light of the [c]ourt’s questions?” Mother’s attorney answered in the affirmative. She then requested the court’s permission to ask Ms. Bracone whether she and Father had “discussed any other medications” that Father had taken since 2011 to treat “a mental disorder or illness[.]” When the court questioned the relevance of the proposed inquiry, Mother’s counsel proffered that Father’s previously prescribed psychiatric medications were relevant because she believed he might still require such treatment.
During an ensuing bench conference, the following occurred:
THE COURT: Have you identified an expert that is going to testify that [Father] should be taking medication?
* * * [MOTHER’S COUNSEL]: No expert, Your Honor.
THE COURT: Then you won’t be able to call a person to testify.
[MOTHER’S COUNSEL]: Okay. That is fine, Your Honor. But the reason . . . that I am bringing it up is evidence that you have already entered in does talk about medications that he no longer takes.
THE COURT: Okay.
[MOTHER’S COUNSEL]: That is for a mental disorder. And so[,] to your point, I guess I can’t -- I don’t have an expert that will say that he needs to continue to take them. But I do think it is important for the [c]ourt to know that he does have that diagnosis and there is no additional evidence to show he has been cured of that.[17]
The court ultimately precluded Mother’s attorney from asking Ms. Bracone about Father’s psychiatric prescription history, reasoning: “[T]his witness isn’t qualified to say whether he should or shouldn’t be taking medication because she is not licensed to dispense medication.”
B. Expert Witness Testimony
“[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.” State v. Matthews, 479 Md. 278, 306 (2022) (quotation marks and citations omitted). We will not, therefore, disturb a trial court’s decision to exclude expert testimony— either in whole or in part—absent an abuse of discretion. See Rochkind v. Stevenson, 454 Md. 277, 285 (2017) (“[W]e review a trial court’s decision to. . . exclude expert testimony only for an abuse of discretion.”); Streaker v. Boushehri, 230 Md. App. 101, 111 (2016) (“We review the trial court’s decision to exclude
expert testimony for abuse of discretion.”).
As noted above, Maryland Rule 5-702 permits a trial court to admit expert testimony if it “determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” Md. Rule 5-702. In making that determination, the Rule directs courts to assess, among other things, “whether the witness is qualified as an expert by knowledge, skill, experience, training, or education[.]” Md. Rule 5-702(1). With respect to this requirement, “a trial court should consider whether the expert has ‘special knowledge of the subject on which he [or she] is to testify that he [or she] can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate.’” Wantz v. Afzal, 197 Md. App. 675, 683 (quoting Radman v. Harold, 279 Md. 167, 169 (1977)), cert. denied, 420 Md. 463 (2011).
The fact that “a witness has been tendered and qualified as an expert in a particular occupation or profession” does not necessarily mean that he or she “may render an unbridled opinion[.]” Easter v. State, 223 Md. App. 65, 80 (quotation marks and citation omitted), cert. denied, 445 Md. 488 (2015). Even if the trial court finds that a witness possesses sufficient specialized knowledge to testify as an expert in one field, it should not permit him or her to offer expert testimony on a subject for which he or she lacks the requisite qualifications. See Tapscott v. State, 106 Md. App. 109, 132 (1995) (“The trial court . . . should not admit testimony of an expert when that testimony concerns a field inappropriate for the expert.”), aff’d, 343 Md. 650 (1996). In In re Yve S., 373 Md. 551, 613 (2003), the Supreme Court of Maryland explained: [T]he mere fact that a witness has been accepted to testify as an expert in a given field is not a license to testify at will. Such a witness only will be allowed to testify as an expert in areas where he or she has been qualified and accepted. Where a witness who is qualified as an expert in one area strays beyond the bounds of those qualifications into areas reserved for other types of expertise, issues may arise as to the proper admissibility of that testimony.
(Emphasis added.) Accord Johnson v. State, 408 Md. 204, 225 (2009).
C. Analysis
In this case, Mother’s counsel proffered that Ms. Bracone’s testimony regarding Father’s prior psychiatric prescriptions was relevant to his current mental health, effectively intimating that the bipolar disorder purportedly diagnosed in 2011 could only be adequately managed by medication which Father had allegedly discontinued. The court implicitly found that Father’s prescription history was irrelevant without expert testimony establishing that he continued to require such medication— testimony which the court determined Ms. Bracone was not qualified to give.
A medical professional’s competence to offer expert testimony is generally defined by the scope of his or her clinical authority. The Maryland Supreme Court has held, for example, that “[a] witness may not testify to the effect of making a diagnosis concerning mental illness unless he or she
is a physician qualified to make such a diagnosis or prognosis, or unless they are otherwise authorized by statute to make such diagnosis.” In re Yve S., 373 Md. at 615. As a licensed clinical social worker, Ms. Bracone was “allowed. . . to make a mental diagnosis, and therefore, . . . could testify to the same.” Id. She was not qualified, however, to prescribe medications. See Md. Code Ann. (1981, 2021 Repl. Vol.), § 12-101(b) of the Health Occupations Article (defining “authorized prescriber”). Accordingly, to the extent that Mother’s counsel sought to elicit expert testimony regarding Father’s need for psychiatric medication, the court properly prevented Ms. Bracone from offering it. Moreover, Father’s prescription history was not relevant absent competent expert testimony linking his past medication regimen to his present mental health. As Ms. Bracone was not qualified to offer such testimony, the court did not err in precluding her from addressing Father’s previously prescribed medications.
IV.
Next, Mother contends that the circuit court “err[ed] by failing to make explicit findings of abuse, neglect, or child endangerment on the record[.]” In support of that assertion, she relies on the testimony of Gianna Diaz as evidence of Father’s alleged child neglect. In or around June 2023, Father hired Ms. Diaz to watch C. and J. on “Wednesdays and Thursdays from 12:00 to 5:00 p.m.” Ms. Diaz testified, among other things, that she (i) was unaware of any “special conditions the boys might have”; (ii) did not recall having had a conversation with Father regarding “the boys’ medical issues”; and (iii) was not CPR certified. Mother claims that Father’s “failure to communicate [J.’s] medical needs or ensure proper supervision highlights [his] neglectful approach to the children’s safety.” She also argues that Ms. Diaz’s “lack of CPR certification and training amplifies concerns about [Father’s] ability to ensure a safe environment for the children.”18
Father counters that the court did, in fact, consider Mother’s allegations of abuse against him, but “simply did not agree that there was any [such] abuse . . . based on the . . . evidence[.]” He correctly notes that, in announcing its ruling from the bench, the court attributed Mother’s allegations of neglect and abuse to an attempt “to gain . . . some strategic advantage in this case[.]” Thus, Father claims that the court “did not make any findings of abuse or neglect because [it] did not believe there was any.” That determination, Father argues, was adequately supported by the evidence presented.
FL § 9-101(a) provides:
In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
Under Maryland law, child neglect is defined, in pertinent part, as “the leaving of a child unattended or other failure to give proper care and attention to a child by any parent . .
. under circumstances that indicate . . . that the child’s health or welfare is harmed or placed at substantial risk of harm[.]” FL § 5-701(s)(1). Child abuse, in turn, includes “the physical or mental injury of a child under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed by . . . a parent[.]” FL § 5- 701(b)(1)(i)(1). “Abuse” does not include, however, “the physical injury of a child by accidental means.” FL § 5-701(b)(2).
Assuming, as Mother alleges, that Father failed to inform Ms. Diaz of “[J.’s] critical heart condition[,]” neither that omission nor his decision to leave J. and C. in her care rose to the level of child neglect—much less abuse. Ms. Diaz testified that she had worked as a nanny for approximately five years and had undergone a background check before beginning her employment with Father. She also averred that Father’s parents were “usually always there” while she was with J. and C. and that, in the event of an emergency, she would simply speak to them. Although it may have been prudent for Father to advise Ms. Diaz of J.’s and C.’s medical conditions before entrusting them to her care, under these circumstances, the omission of this information did not amount to conduct that placed either child at substantial risk of harm.19 Nor was it necessary for Father to hire a CPR- certified caretaker. Accordingly, the court did not err by declining to find that Father had abused or neglected the children.
V.
Mother’s fifth contention is, to some extent, an extension of her fourth. She challenges the circuit court’s decision to award tie-breaking authority to Father, arguing that, in crediting Father’s account, the court “overlook[ed] key elements in his testimony[.]” According to Mother, the court erroneously disregarded Father’s admissions that he had “engag[ed] in inappropriate behavior in the children’s presence, displayed aggression toward [her] before them, and . . . shown reluctance to provide necessary medical care.” Mother does not argue the first two points with particularity, and we therefore decline to consider them. See Klauenberg, 355 Md. at 552 (“[A]rguments not presented in a brief or not presented with particularity will not be considered on appeal.”). As to the third, she asserts that Father has demonstrated a “lack of parental responsibility” and “expos[ed] [C.] to harm” by disregarding the medical advice of his pediatric allergist, Jennifer Dantzer, M.D., and pediatric gastrointestinal specialist, Kenneth Ng, D.O.
A. Tie-Breaking Authority
“Legal custody encompasses ‘the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.’” Kpetigo v. Kpetigo, 238 Md. App. 561, 584 (2018) (quoting Taylor, 306 Md. at 296). “Joint legal custody,” therefore, means “both parents having an equal voice in making long range decisions of major significance concerning the child’s life and welfare, and neither parent’s rights being superior to the other.” Santo v. Santo, 448 Md. 620, 632 (2016) (cleaned up). “‘[T]he most
important factor’ in deciding whether to award joint legal custody [is] the ‘capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.’”20 Id. at 628 (quoting Taylor, 306 Md. at 304). “[W]hen parents have difficulties communicating and acting in the best interests of their child[,]” it may be appropriate to award joint legal custody with tie-breaking authority to one parent. Kpetigo, 238 Md. App. at 587. In Santo, the Supreme Court of Maryland described this custodial arrangement as follows:
In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide together matters affecting their children. When, and only when[,] the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call. Because this arrangement requires a genuine effort by both parties to communicate, it ensures each has a voice in the decision-making process.
[S]uch an award is . . . consonant with the core concept of joint custody because the parents must try to work together to decide issues affecting their children. We require that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children. Such an award has the salutary effect of empowering both parents to participate in significant matters affecting their children.
448 Md. at 632-33 (emphasis retained) (internal citations omitted). See also Kpetigo, 238 Md. App. at 585 (“Tie-breaking authority proactively anticipates a post-divorce dispute.” (cleaned up)). “We review a trial court’s custody determination for abuse of discretion, and we reverse only when the court’s ruling is clearly against the logic and effect of facts and inferences before the court.” Id. (quotation marks and citations omitted).
B. Proceedings Below
At trial, Father testified to Mother’s belief that J. and C. shared her allergies to “pineapple, seafood, peanut butter[,]” and “lactose.” Father did not share Mother’s conviction, however, having never witnessed either child experience “an allergic reaction of any kind.” According to him, J. and C. routinely ingested these foods without incident while in his care following the parties’ separation. Mother, in turn, testified that she had observed C. and J. develop “red bumps around their face area” after eating peanuts and “breakout” on at least one occasion after consuming cod. She also claimed that C. and J. experienced stomach bloating and diarrhea after drinking milk.
In April of 2023, Mother took C. and J. to see Dr. Dantzer.21 After taking a history from Mother, Dr. Dantzer ordered a blood test to determine whether J. was, in fact, allergic to peanuts, fish, pineapple, or any of several environmental allergens.22 The blood tests were conducted in June, repeated in July, and were negative for peanut, fish, and pineapple allergies. In light of the history that Mother had provided and the possibility of false- negative test results, Dr. Dantzer recommended that J.
undergo “a fish and . . . peanut food challenge[,]” during which she would monitor him after he consumed those foods. She also advised that J. avoid eating fish and peanuts “until the in-office food challenge was done.” Mother did not, however, schedule a “food challenge,” explaining at trial that she “didn’t have time for” the appointment. Instead, she arranged for J. and C. to be evaluated by Dr. Ng in December of 2023.23 On December 26th, J. underwent yet another blood test, which was negative for allergies to, among other things, peanuts, seafood, milk, and wheat.
Father testified that Mother did not notify him of the children’s medical appointments or of the results of either allergy screening. Rather, he learned of them “through . . . notifications of the portal system.” Although J.’s blood tests were negative for food allergies, Father testified that Dr. Ng’s examination of C. revealed “a sensitivity to the . . . protein in cow’s milk.”24 Upon receiving that information, Father “stopped giving [C.] cow’s milk[.]” When asked whether he was “following the recommendations of Dr. Ng[,]” moreover, Father answered: “Yes, I believe so.”
Based in part on the foregoing evidence the court found as follows:
The parties have had sharp disagreements regarding major issues concerning the children. Specifically, medical care and schooling. Many of those disagreements over medical care center on [Mother’s] sometimes overzealousness in seeking medical attention, as contrasted with [Father’s] more wait and see kind of approach.
* * *
[Mother] continues to believe that the children have various food allergies, though the medical testing has not confirmed that. The initial allergy testing for fish, peanuts, dust mites, et cetera, has been negative in general, and the allergist testified that negative test results are good at excluding food allergies. That was Dr. Dantzer’s testimony. Dr. Dantzer recommended a food challenge where she would observe [J.] consume certain foods in her presence, and [Mother] did not schedule that food challenge or . . . follow up with Dr. Dantzer in response to that recommendation.
In making its custody determination, the court ultimately determined that Father was more receptive to and compliant with “physicians’ recommendations and advice” than was Mother.25,26
C. Analysis
Mother claims that Father repeatedly ignored “medical advice regarding dietary restrictions” for C. “despite positive test results for food sensitivities[.]”27 She maintains that Father’s alleged disregard for medical guidance “placed [C.] at risk, which raises concerns about his fitness for making significant decisions about the children’s health.”
At trial, Mother testified that Father had expressly refused to comply with the recommendations of the children’s pediatricians. The court determined, however, that her testimony was not credible because of its “evasive[,]” “rambling[,]” and “nonresponsive” nature, as well as Mother’s attempt to misrepresent
remarks that Father had made to J.’s cardiologist, Dr. Nies.28 Because the trial court had the opportunity to observe Mother’s demeanor on the stand, we will not second-guess its adverse credibility assessment on appeal. See Petrini v. Petrini, 336 Md. 453, 472 n.14 (1994) (“[I]t was well within the court’s discretion to decide which witnesses it found to be credible.”); Michael Gerald D. v. Roseann B., 220 Md. App. 669, 687 (2014) (“It is not our role, as an appellate court, to second-guess [the trial court’s credibility] findings.”).
Although the court found that Mother was not a credible witness, it expressed no such reservations with respect to Father. At trial, Father acknowledged that he had initially defied Mother’s wishes that J. and C. abstain from peanut butter, pineapple, fish, and milk while in his care, explaining that he had never seen them exhibit an allergic or other adverse reaction thereto. Father testified, however, that he stopped serving C. cow’s milk after he tested positive for a sensitivity to it. He also affirmed having otherwise complied with Dr. Ng’s recommendations.
Deferring, as we must, to the court’s credibility finding and viewing the evidence in the light most favorable to Father, we find no fault with the court’s determination that he was comparatively receptive to and compliant with the recommendations of the children’s physicians. See Lemley v. Lemley, 109 Md. App. 620, 628 (“[A]ll evidence contained in an appellate record must be viewed in the light most favorable to the prevailing party below.”), cert. denied, 343 Md. 679 (1996). In any event, the decision to grant one parent tie-breaking authority does not turn on any individual finding or factor. In this case, the court meticulously addressed each of the relevant considerations enumerated in footnote twenty, supra, and concluded that it was in the children’s best interests for Father to have tie- breaking authority. We discern no abuse of discretion in that regard.
VI.
Mother penultimately contends that the circuit court reversibly erred in calculating Father’s child support obligation by failing to include S. as among the parties’ eligible children. Father counters that the court properly excluded S. from its child support calculations, reasoning that she reached the age of majority shortly after entry of the divorce judgment. In her reply brief, Mother maintains that child “support obligations extend to children under [the age of nineteen who are] still enrolled in high school.” Here, she asserts, “[t]he record reflects that [S.] was attending school and residing solely with [her] at the time of judgment[.]” Thus, Mother concludes that the court committed legal error by disregarding S. when fashioning the child support award. We agree with Mother.
A. Child Support
“Ordinarily, child support orders are within the sound discretion of the trial court.” Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013). “[W]here the order involves an interpretation and application of Maryland statutory and case law,” however, we “must determine whether the lower court’s conclusions
are ‘legally correct’ under a de novo standard of review.” Id. (quotation marks and citations omitted).
FL §§ 12-201 to 12-204 set forth the child support guidelines, which (with certain exceptions not here relevant) courts must use “in any proceeding to establish or modify child support[.]” FL § 12-202(a)(1). See also Gladis v. Gladisova, 382 Md. 654, 663 (2004) (“[T]rial courts must adhere to the Legislature’s plan for calculating the amount and character of a child support award.” (cleaned up)). In calculating a child support award, the court must first determine “the amount of ‘basic child support obligation,’ which is done through a table set forth in FL § 12-204(e).” Wilson-X v. Dep’t of Hum. Res., 403 Md. 667, 671 (2008). “[T]he basic child support obligation depend[s] on the parents’ combined [adjusted actual] income and [the] number of children” entitled to such support. Gladis, 382 Md. at 663 (emphasis added). See also Wilson-X, 403 Md. at 671.
Children are generally entitled to child support until they reach the age of eighteen. See Kirby v. Kirby, 129 Md. App. 212, 215 (1999) (“[A] court cannot require a parent to support a child after the child reaches the age of eighteen.”); Quarles v. Quarles, 62 Md. App. 394, 403 (1985) (“A [parent] may not be compelled to support a child after [the child] reaches majority.”). That general rule is, however, subject to exceptions. One such exception is set forth in section 1-401 of the General Provisions Article (“GP”) of the Maryland Code (2014, 2019 Repl. Vol.), which provides, in pertinent part:
(b) An individual who has attained the age of 18 years and who is enrolled in secondary school has the right to receive support and maintenance from both of the individual’s parents until the first to occur of the following events:
* * *
(4) the individual graduates from or is no longer enrolled in secondary school; or
(5) the individual attains the age of 19 years.
GP § 1-401(b).
B. Analysis
In this case, the child support provision of the judgment of absolute divorce provided:
ORDERED, that beginning and effective May 1, 2024, and continuing on the 1st day of each month thereafter, Father shall pay to Mother the sum of Seven Hundred Forty-One Dollars ($741.00) per month for current child support for the parties’ minor children. Plaintiff’s child support payments shall continue until the first to occur of the following: (1) the death of the children or obligor, (2) the marriage of the children, (3) the children’s emancipation, or (4) the children’s arrival at the age of eighteen (18) years, so long as the children shall become emancipated by reaching that age and unless the children are attending high school at the time the children turn eighteen (18), in which event the child support shall continue until the children finish high school or turn nineteen (19), whichever shall first occur[.]
(Emphasis retained.) The divorce decree was accompanied
by a child support worksheet reflecting the court’s calculations. The worksheet lists a combined monthly adjusted actual income of $11,386 but does not include S. among the parties’
children. In determining that the parties’ basic child support obligation was $2,198, the court evidently referred to the table set forth in FL § 12-204(e), rounded the combined income up to $11,400 as required by FL § 12-204(c), and selected the amount corresponding to two children:
(Emphasis added.)
The court erred by failing to include S. among the parties’ minor children when calculating child support. At the time of the court’s judgment, S. was seventeen years old and still enrolled in high school. Although S. would reach the age of majority one week after entry of the judgment on May 1, 2024, the record reflects that she was not expected to graduate from secondary school until the following month. Moreover, while S.’s eighteenth birthday was fixed, the court could not have been certain that she would graduate as scheduled. Because S. was entitled to child support until the earlier of her graduation or withdrawal from high school or her nineteenth birthday, we hold that the court erred by excluding her from among the parties’ children in conducting its child support calculations. Accordingly, we must vacate the court’s child support award and remand for its recalculation.
VII.
Finally, Mother argues that the circuit court erred in denying her request for rehabilitative alimony. She claims that a three-year alimony award was warranted “to facilitate her transition to self-sufficiency” by funding her pursuit of a master’s degree in data analytics. Such an award, Mother maintains, was especially appropriate given the parties’ income disparity and her having purportedly “devoted significant years supporting [Father’s] career, which impeded her own professional development.”
Father responds that, in denying Mother’s alimony request, the court properly considered all relevant statutory factors. In his brief, Father highlights the following findings, which he deems particularly pertinent. First, based on Mother’s employment history, the court found that she was capable of being self-supporting. Second, the court observed that Mother neither specified the amount of alimony she sought nor provided a “plan for why there was a need for that alimony.” Finally, the court found that Father would be unable to meet his own needs and pay child support while also providing for Mother. “Given [its] thorough analysis of the alimony issue,” Father concludes that the court “did not abuse [its] discretion in denying alimony to [Mother].”
A. Alimony
‘“[A] trial court has broad discretion in making an award of alimony, and a decision whether to award it will not be disturbed unless the court abused its discretion.’” Ware v. Ware, 131 Md. App. 207, 228-29 (2000) (emphasis omitted) (quoting Roginsky v. BlakeRoginsky, 129 Md. App. 132, 143 (1999), cert. denied, 358 Md. 164 (2000)). See also Whittington v. Whittington, 172 Md. App. 317, 339 (2007) (“The court had discretion to award no alimony[.]”). In exercising that discretion, courts must consider the following factors:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;[29]
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL
§ 11-106(b). “These factors are non-exclusive, and ‘although the court is not required to use a formal checklist, the court must demonstrate consideration of all necessary factors.’” Simonds v. Simonds, 165 Md. App. 591, 604-05 (2005) (quoting Roginsky, 129 Md. App. at 143). The burden of proving entitlement to alimony, moreover, rests with the party seeking it. See Walter v. Walter, 181 Md. App. 273, 297 (2008) (“[A] decision to grant alimony incident to the grant of an absolute divorce . . . is . . . to be made . . . by
consideration of the factors set forth in FL section 11-106, with the burden of proof on the party seeking alimony.” (emphasis added)); see also Francz v. Francz, 157 Md. App. 676, 692 (2004); Thomasian v. Thomasian, 79 Md. App. 188, 195 (1989).
B. Proceedings Below
In announcing its ruling from the bench, the circuit court addressed each of the relevant factors enumerated above. In so doing, it determined that Mother and Father were forty-two and thirty-nine years old, respectively, and that neither had any relevant physical or mental condition. It further found that, during their nearly ten-year marriage, the parties “had a typical middle[-]class standard of living[,]” though “they struggled financially . . . for a good part of their marriage.” During that time, Father “was the primary financial contributor[,]” while Mother served as the children’s primary caretaker prior to the separation. The court recounted that the parties had separated following an “altercation [that] occurred . . . a few weeks after [Mother] had petitioned . . . to have [Father] committed to a hospital for an emergency medical evaluation.”30
Turning to the parties’ respective financial needs and resources, the court found that Father was employed fulltime with a monthly income of $8,560, while Mother earned $2,286 per month as a part-time teacher’s aide. The court noted, however, that child support would “equalize, to a certain extent, the financial imbalance.” Despite the parties’ disparity in income, the court determined that Mother “ha[d] the ability to be self-supporting[,]” reasoning: “She has, in the past, held down well-paying jobs. She, for the time being, is working at the Montessori School, but has just obtained her degree in data science[.]” The court added that Mother had offered neither evidence nor a plan with respect to “the time necessary for [her] to gain sufficient education or training to enable [her] to find suitable employment.” In addition to noting that the parties had not reached an agreement on alimony, the court found that Father would be unable to meet his own needs while providing for those of Mother:
[T]here was a general request for alimony by [Mother], but no specific amount sought. No plan for why there was a need for that alimony.
I have reviewed both parties’ financial statements, and I find that [Father] would not be able to meet his own needs, particularly with the child support obligation. He is not going to be able to meet his own needs while meeting the needs of [Mother].[31]
C. Analysis
Mother does not dispute the circuit court’s determination that she failed to produce evidence pertaining to “the time necessary for [her] to gain sufficient education . . . to enable [her] to find suitable employment.” FL § 11-106(b)(2). Indeed, although Mother now attributes her rehabilitative alimony request to the pursuit of a master’s degree in data analytics, she made no mention of that academic ambition at trial. The court could not, therefore, have erred by failing to consider it. Mother’s income-disparity argument is also unavailing. In a valid exercise of discretion, the court based its alimony assessment on Mother’s projected earning capacity—rather than her then-current income. See Brewer v. Brewer, 156 Md. App. 77, 121 (“In awarding alimony, the court may impute income to a party if that party is capable of earning more income than he or she is earning at the time of the divorce.”), cert. denied, 381 Md. 677 (2004); Crabill v. Crabill, 119 Md. App. 249, 263 (1998) (“[T]he trial court here properly imputed income to [appellant] based on his experience and ability as a painter.”). Although she was working as a part-time teacher’s aide earning $17 per hour when the court announced its ruling, Mother was scheduled to receive her bachelor’s degree in data science the following month. By Mother’s own assessment, the lack of such a degree had been “holding [her] back” professionally. Specifically, Mother testified that, upon receiving her degree, she would be “more eligible [for] more senior roles . . . in the IT industry.”32 She also expressed a hope to resume full-time employment “at some point.” It stands to reason that the completion of her undergraduate studies, coupled with Father’s increased role in caring for the children, would afford Mother the time and flexibility necessary to realize that goal.33
Based on the foregoing, the court reasonably found that Mother “ha[d] the ability to be self-supporting.” In any event, Father did not bear the burden of proving that Mother could become self-supporting. Rather, the onus was on Mother to prove that she was not. As with custody determinations, moreover, the decision to grant or deny an alimony request does not rest on any single consideration. See Whittington, 172 Md. App. at 341 (“[T]he law does not make any of the factors listed in section 11-106(b) determinative or mandate that they be given special weight.”). Here, the circuit court addressed the relevant statutory factors, made express findings supported by the evidence, and articulated a rational basis for its decision. On the record before us, therefore, we are not persuaded that the court abused its discretion in declining to award rehabilitative alimony.
JUDGMENT REGARDING CHILD SUPPORT VACATED AND REMANDED TO THE CIRCUIT COURT FOR CARROLL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. JUDGMENTS OTHERWISE AFFIRMED. COSTS TO BE PAID 85% BY APPELLANT AND 15% BY
FOOTNOTES
1 Mother raises several other issues in her reply brief. As these matters were not presented in her opening brief, we decline to address them. See Robinson v. State, 404 Md. 208, 216 n.3 (2008) (“An appellate court will not ordinarily consider an issue raised for the first time in a reply brief.”); Anderson v. Burson, 196 Md. App. 457, 476 (2010) (“We shall decline to address any of the issues raised by [a party] for the first time in their reply brief.”), aff’d, 424 Md. 232 (2011).
2 The parties are clearly familiar with the record in this case. Given the number of issues raised and to avoid unnecessary repetition, we will offer only a brief summary of the facts and procedural history here, reserving more detailed accounts for our discussion of the issues. Our recitation of the underlying facts, moreover, is based in part on the circuit court’s unchallenged findings. See Park Plus, Inc. v. Palisades of Towson, LLC, 478 Md. 35, 41 n.3 (2022) (“Neither party has contended on appeal that the court’s factual findings were unsupported by the evidence. Thus, our recitation of the facts . . . is drawn from the circuit court’s factual findings and the documents admitted into evidence.”); Karen P. v. Christopher J.B., 163 Md. App. 250, 254 (2005) (“Our recitation of the facts is based on the findings made by the trial court, and, when express findings were not made, a construction of the evidence most favorable to the court’s decision.”), cert. denied, 390 Md. 501 (2006).
3 To protect the minor children’s privacy, we will refer to the elder daughter by the initial of her first name and to the younger sons by the initials of their middle names, as the initials of their first names are the same.
4 We take judicial notice of the docket entries in Carroll County Circuit Court Case Number C-06-FM-21-000977, as they are available on both MDEC and the Maryland Judiciary website. See Lewis v. State, 229 Md. App. 86, 90 n.1 (2016) (“We take judicial notice of the docket entries . . . found on the Maryland Judiciary CaseSearch website, pursuant to Maryland Rule 5-201.”), aff’d, 452 Md. 663 (2017). That case was dismissed on January 20, 2022.
5 Notwithstanding the access schedule set forth in the pendente lite order, Father elected to forgo further parenting time with S. in September of 2022.
6 These factors are enumerated in footnote twenty, infra.
7 We will address the court’s child support calculations in greater detail below.
8 The court valued the marital home at $735,000, with an outstanding mortgage balance of $484,320.
9 Mother’s use and possession period extended “until the earlier of October 1, 2024[,] or closing on the sale of the marital home.”
10 In addition to a 401k, which the court determined was wholly non-marital, Father had two Johns Hopkins University Applied Physics Lab Pension Plans, the marital portions of which totaled $89,494.93. Father also had a Northrop Grumman savings plan, which the court found was entirely marital and valued at $62,951.73.
11 The advisory nature of these terms is readily apparent
when contrasted with the mandatory language used in the immediately succeeding section. See Md. Rule 9- 205.1(c)(1) (“An order appointing an attorney for a child shall ” (emphasis added));
12 Particularly pertinent is Mother’s failure to identify any evidence that could not otherwise be presented through the testimony of CPS workers and/or mental health professionals. See Md. Rule 9-205.1(b) (“In determining whether to appoint an attorney for a child, the court should consider . . . available methods of obtaining information, including social service investigations and evaluations by mental health professionals[.]”).
13 We further note that in neither of her motions did Mother address the feasibility of pro bono court-appointed counsel.
14 Maryland Rule 5-702 governs the admissibility of expert testimony and provides:
Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine
(1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education,
(2) the appropriateness of the expert testimony on the particular subject, and
(3) whether a sufficient factual basis exists to support the expert testimony.
15 Although Mother’s attorney never raised the issue, the court did sustain one of her objections sua sponte on that ground and precluded Dr. Nies from answering the question:
[FATHER’S COUNSEL]: Do you have any knowledge of fertility meds causing Tetralogy of Fallot?
[MOTHER’S COUNSEL]: Objection, Your Honor. Relevance.
THE COURT: I am going to sustain the objection. Are we going to qualify Dr. Nies as an expert? Because --
[FATHER’S COUNSEL]: No. These were all issues that were brought up in this particular case.
THE COURT: Okay. But the question you just asked Dr. Nies, whether she has any knowledge of fertility drugs causing a certain condition would seem to require expertise to answer that question. I mean, I sustained the objection because I -- what is the relevance of that? [FATHER’S COUNSEL]: The relevance is of prior statements that I intend to cross a witness on that I just wanted to ask that question. Well, I can ask if she has ever addressed it if you want me to do it that way.
THE COURT: . . . I can’t allow the witness to answer that question unless you are going to try to qualify [her] as an expert.
16 Ms. Bracone testified that Father had informed her that he used prescribed medical marijuana to treat his anxiety. According to Ms. Bracone, however, Father stated that he did not use marijuana around the children.
17 It seems that bipolar disorder was the alleged diagnosis to which counsel was here referring.
18 In her reply brief, Mother raises several additional
arguments in apparent support of her assertion that the court erred by failing to find that Father had neglected or abused the children. Just as we will not address issues raised for the first time in a party’s reply brief, neither will we consider supporting arguments first presented therein. See Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 241-42 (2004) (“It is impermissible to hold back the main force of an argument to a reply brief and thereby diminish the opportunity of the appellee to respond to it.”); Dolan v. Kemper Indep. Ins. Co., 237 Md. App. 610, 627 (2018) (“Ordinarily, we do not consider arguments that a party raises for the first time in a reply brief.”); Strauss v. Strauss, 101 Md. App. 490, 509 n.4 (1994) (“A reply brief cannot be used as a tool to inject new arguments.”), cert. denied, 337 Md. 90 (1995).
19 Mother claims that “Maryland standards emphasize that parents must inform caregivers of any health conditions that affect a child’s well-being[.]” She does not refer us, however, to any authority to that effect, and we are aware of none.
20 Other relevant factors courts must consider when making custody determinations include:
(1) The fitness of the parents; (2) The character and reputation of the parties;
(3) The requests of each parent and the sincerity of the requests; (4) Any agreements between the parties; (5) Willingness of the parents to share custody; (6) Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest; (7) The age and number of children each parent has in the household; (8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
. . . (10) The geographic proximity of the parents’ residences and opportunities for time with each parent; (11) The ability of each parent to maintain a stable and appropriate home for the child; (12) Financial status of the parents; (13) The demands of parental employment and opportunities for time with the child; (14) The age, health, and sex of the child; (15) The relationship established between the child and each parent; (16) The length of the separation of the parents; (17) Whether there was a prior voluntary abandonment or surrender of custody of the child; (18) The potential disruption of the child’s social and school life; (19) Any impact on state or federal assistance; (20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child; (21) Any other consideration the court determines is relevant to the best interest of the child.
22 Although Mother testified that Dr. Dantzer “saw all . . . three kids[,]” it is not entirely clear from the record whether
these same tests were ordered and conducted for C.
23 Notably, Mother took J. and C. to see Dr. Ng after the trial had begun.
24 An exchange between Dr. Ng and Father on January 8, 2024 also indicates that C. tested positive for both gluten and wheat allergies.
25 The court’s finding in this regard appears to have been informed, at least in part, by Mother’s “unreasonable reject[ion] or fail[ure] to understand Dr. Nies’[s] opinion that” J.’s cardiac condition was sufficiently stable that it “was safe [for him] to return to school.”
26 The court also found that Mother was “somewhat unreasonable when it came to the doctors’ medical advice.”
27 Mother also asserts that Father “cancel[led] a medically advised wheat challenge without consulting [C.’s] healthcare provider[,] . . . demonstrat[ing] a lack of concern for [C.’s] health[.]” It does not appear, however, that the court was presented with evidence of Father canceling any such appointment before rendering its ruling. As noted above, moreover, Mother admitted at trial on December 13, 2023, that she had not complied with Dr. Dantzer’s recommendation that she schedule “a fish and . . . peanut food challenge” for J. and C.
28 Specifically, Mother claimed that Father had told the pediatric cardiologist that “there would be some benefit” to J. contracting COVID “because it would boost his immune system.”
29 FL § 8-205 governs monetary awards, while FL § 8-208 pertains to the award of possession and use of the family home and family use personal property.
30 The court found that Mother had filed the petition either “in an effort to gain an advantage in the custody litigation or . . . as an act of retaliation against [Father for] what she perceived as [his] wrongful conduct during the marriage.”
31 In arriving at this determination, the court presumably accounted for Father’s obligation to continue paying the mortgage on the marital home during the months that Mother would have exclusive use and possession thereof.
32 Even without her degree, Mother’s employment history demonstrates a history of professional advancement. During her seven-year tenure at Oracle, she was promoted from a customer analyst to a technical analyst and then to a senior technical analyst before being laid off in July of 2020.
33 In announcing its ruling, the circuit court found: “In terms of the parents’ responsibilities and parenting tasks performed, . . . [Mother] was the primary caretaker. At least prior to the separation. But since the separation the parties have essentially shared these responsibilities when the children are with each of them.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Anne Arundel County Circuit Court’s monetary award. Although the parties agreed that wife’s vehicle and Noah’s Ark Investment Plan were marital property, the circuit court wrongly found otherwise. The circuit court also valued erroneously the parties’ MidAtlantic IRA and bank accounts and erred in its dissipation analysis. These errors required that its decisions regarding rehabilitative alimony, child support, and attorney’s fees also be vacated.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
alimony, child support, a dissipation finding, a monetary award, attorney’s fees, and use and possession of the marital home. Husband asked the court to grant the divorce based on their twelve-month separation, order the sale of the marital home, and determine and divide the parties’ marital property. He also asked the court to deny Wife alimony but to transfer the entirety of his interest in the marital home, along with the equity in the home, to Wife. He sought his own monetary award as well. The parties filed a joint statement under Maryland Rule 9-207 on March 8, 2024.
After a four-day trial, the Circuit Court for Anne Arundel County granted Rebekah Sims (“Wife”) an absolute divorce from her Husband, Cedric Sims (“Husband”), and awarded her a monetary award, rehabilitative alimony, child support and child support arrearages, and attorneys’ fees. Husband challenges nearly all the court’s financial decisions, and both sides agree that errors in the calculation of the monetary award require us to vacate that award. Given the interrelated nature of the other financial rulings, we must vacate those as well and remand to the circuit court for further proceedings consistent with this opinion.
I. BACKGROUND
Husband and Wife were married in 1996. The couple have four children, three of whom are emancipated and one of whom is minor. The parties separated in January 2020. Wife filed her complaint for absolute divorce on November 28, 2022. Husband answered on January 10, 2023, and filed a counter-complaint for absolute divorce on March 1. Wife answered the counter-complaint on March 15, 2023. Wife’s grounds for divorce were adultery, desertion, and the parties’ twelve-month separation, and she requested indefinite
The circuit court heard the case over four trial days from March 19 to March 22, 2024. At trial, the court heard testimony from Wife and Husband and Wife’s friend, Tracy Mills. After receiving their testimony, the circuit court issued an oral ruling on June 27, 2024, granting Wife an absolute divorce due to adultery, rehabilitative alimony of $2,500 monthly for three years, monthly child support of $6,313 with arrearages dating back to May 1, 2024, and use and possession of the marital home for three years. Under the ruling, Husband would make payments toward the mortgage on the marital home, along with the home’s insurance, during the three-year period, and after that would transfer his interest in the property to Wife. The court also ordered him to pay the minor child’s tuition expenses. To determine the monetary award, the court totaled the parties’ non-retirement and retirement marital property and assigned each a value. For the non-retirement estate, the court assigned a value of $1,301,525.98. This included assets the court found Husband to have dissipated, which the court valued at $216,866.98. The court valued the parties’ retirement estate at $498,431.62. In reaching these conclusions, the court stated that it did not include any assets that the parties acquired after they separated in January 2020. From there, the court distributed the non-retirement marital property, $843,473.38 to Wife and $458,052.60 to Husband. Wife’s share included the marital home, which the court valued at $788,359, and deducted from Wife’s share of the distribution, amounting to a monetary award of $55,114.38. The court ordered the parties to split their retirement assets equally on an if, as, and when basis. Finally, the court awarded Wife attorneys’ fees totaling $9,548.
The court memorialized these findings in its judgment of absolute divorce. The court specified that the child support arrearages totaled $12,626. After crediting Husband for paying $2,000, the court added the remaining $10,626 to the child support obligation by adding $500 to each monthly payment until the arrears were paid in full. The court also ordered that the minor child’s tuition payments were Husband’s responsibility alone. In addition, for the monetary award, the court specified that the equitable distribution was 65% to Wife and 35% to Husband. The
monetary award was $55,114.38 to Wife, paid by Husband at the rate of $4,592.87 monthly.
Husband filed a timely appeal. We include additional facts as appropriate below.
II. DISCUSSION
The parties present several questions1 that we have recast into four: (1) whether the court erred in its monetary award analysis; (2) whether the court erred in granting Wife rehabilitative alimony; (3) whether the court erred in awarding Wife child support; and (4) whether the court erred in awarding Wife attorneys’ fees. Because we are vacating the monetary award, we must, and do, vacate all four financial awards and remand for further proceedings. We will, however, analyze each issue as guidance on remand.
A. Because The Circuit Court Erred In Executing The Required Three-Step Process, The Resulting Monetary Award Was Erroneous.
In one way, the parties have made this case easier for us: they agree that the circuit court erred in how it reached its conclusions about the monetary award. We agree as well. Multiple standards of review are at play. First, whether property is marital and, if so, its value, are both factual questions that we review for clear error. Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008); Md. Rule 8-131(c) (“[A]n appellate court . . . 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.”). Second, we review the circuit court’s legal conclusions de novo. Flanagan, 181 Md. App. at 521 (citing Shenk v. Shenk, 159 Md. App. 548, 554 (2004)). Third, we review the circuit court’s ultimate decision to grant a monetary award, as well as its amount, for abuse of discretion. Id. (citing Alston v. Alston, 331 Md. 496, 504 (1993)). In doing so, “‘we may not substitute our judgment for that of the fact finder, even if we might have reached a different result . . . .’” Id. at 521–22 (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000)). And although that review is deferential, we emphasize that the “‘trial court must exercise its discretion in accordance with the correct legal standards.’” Id. (quoting Alston, 331 Md. at 504).
Both parties argue, albeit in different ways, that the court erred in assigning marital property, valuing it, and calculating a monetary award. A monetary award requires a three-step process—the circuit court must: (1) identify the marital property under Md. Code (1999, 2019 Repl. Vol.), § 8-203(a) of the Family Law Article (“FL”); (2) value the marital property under FL § 8-204; and (3) determine whether granting a monetary award would be unfair to one party and, if so, consider the statutory factors under FL § 8-205 and grant a monetary award from that consideration. Alston, 331 Md. at 499–500; Flanagan, 181 Md. App. at 519–20; Hoffman v. Hoffman, 93 Md. App. 704, 712 (1992).
In “a proceeding for an annulment or an absolute divorce, if there is a dispute as to whether certain property is marital
property, the court shall determine which property is marital property[.]” FL § 8-203(a). Marital property is any property, “however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1). Property that the parties acquire after their divorce, however, is not marital property. Williams v. Williams, 71 Md. App. 22, 34 (1987) (citing Campolattaro v. Campolattaro, 66 Md. App. 68, 81 (1986), superseded by rule, FL § 9-207; see id. (“Property acquired by a party up to the date of the divorce, even though the parties are separated, is marital property.”). The key word there is “divorce”—so long as they are still married, even if separated or divorcing, property that either acquires is presumptively marital. Williams, 71 Md. App. at 34. Likewise, marital property does not include property that the parties acquired before the marriage, property acquired through an inheritance or gift from a third party, property that the parties have excluded through a valid agreement, or property that the court can trace to any of those sources directly. FL § 8-201(e) (3)(i)–(iv).
After determining which property is marital, the court must value it. FL § 8-204(a). The party seeking the monetary award has the burden of proving the value of each item of marital property, and the circuit court makes the final determination about each item’s value. Williams, 71 Md. App. at 36 (citing FL § 8-205(a)). Valuation is not “an exact science,” and the court is under no compulsion to accept the values the parties present to it. Id.
After identifying the property and valuing it, the court then determines whether to grant a monetary award and must consider eleven factors under FL § 8-205(b). Alston, 331 Md. at 509 (“In making a marital property monetary award, a trial judge must weigh the relevant factors in light of the legislative purpose, and then use his or her sound discretion to arrive at an award that is equitable and in accordance with the statute.”). Those factors are:
1. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. the value of all property interests of each party;
3. the economic circumstances of each party at the time the award is to be made;
4. the circumstances that contributed to the estrangement of the parties;
5. the duration of the marriage;
6. the age of each party;
7. the physical and mental condition of each party;
8. how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
9. the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
10. any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
11. any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
FL § 8-205(b).
The statutory steps build on each other, and if the first two aren’t completed, we normally must vacate the monetary award and remand. See Paradiso v. Paradiso, 88 Md. App. 343, 352 (1991) (remanding partly because court didn’t determine whether property was marital, and if so, assign it a monetary value); see also Freese v. Freese, 89 Md. App. 144, 150 (1991) (“In order to determine the appropriateness of a monetary award, it is necessary for the trial judge to determine what property is marital property and to assess the value of each item.”).
1. The circuit court erred in finding Wife’s 2017 Volvo and retirement asset as nonmarital property because the parties acquired these two assets during their marriage. 2.
The parties married on September 29, 1996, and separated in January 2020. The judgment for absolute divorce that terminated their union was docketed on October 8, 2024. The property they acquired from the date of their marriage to the date of their divorce is marital.
In its oral ruling, the circuit court stated that everything the parties acquired was marital. Although that included property the parties acquired after their separation, the court stated that it would not consider that later-acquired property for the monetary award.
In addition, the court stated in the order for judgment of absolute divorce that “assets, acquired after the date of separation and after February 1, 2020, are deemed not marital, to include: . . . c. [Wife’s] Noah’s Ark Investment Plan [(“NAV”)] d. [Wife’s] 2017 Volvo vehicle . . . .” (emphasis added). For our purposes, the order for judgment of absolute divorce controls any discrepancies. See Estep v. Georgetown Leather Design, 320 Md. 277, 284 (1990) (if a circuit court makes an oral ruling, a litigant may take no appeal from that ruling until it meets all formalities to become a final judgment on the record (citing Doehring v. Wagner, 311 Md. 272, 274–75 (1987))).
In this Court, Husband argues that the court erred in categorizing those two assets as nonmarital property. Wife argues that although the court could have found these two assets as marital, it didn’t need to, despite the parties agreeing that the two assets were marital in the Rule 9-207 statement they submitted to the court. Husband is correct.
As the statute states, step one of the three-step process concerns “a dispute as to whether certain property is marital property . . . .” FL § 8-203(a). Parties can resolve disputes independently about which of their property is not marital and exclude that property from court consideration, even if it meets the marital property definition. Flanagan, 181 Md. App. at 531–32. They can do this by agreement, such as in a Rule 9-207 statement. Id.; FL § 8-201(e)(3)(iii). In this case, the parties had agreed that Wife’s 2017 Volvo and NAV were marital property, but the court found otherwise. The court
relied on Alston v. Alston in bifurcating the assets acquired after the marriage but before the separation date, and the assets acquired after the separation date to the date of divorce. This reliance was misplaced. Alston v. Alston concerned a spouse who won a million-dollar lottery annuity several days before his deadline to answer his wife’s complaint for absolute divorce. 331 Md. at 500–03. The court granted the wife a divorce and a monetary award and divided the parties’ marital property, including the lottery win, equally. Id. at 503. The husband appealed, challenging whether the court should have included the lottery money in the monetary award. Id. at 503–04. Our Supreme Court held that although the lottery proceeds were marital property, that by itself didn’t render them subject to equitable division. Id. at 505, 507–09. The court reasoned that although each case requires an independent assessment, some FL § 8-205(b) factors may be entitled to more weight:
While no hard and fast rule can be laid down, and while each case must depend upon its own circumstances to insure that equity be accomplished, generally in a case such as this the eighth factor should be given greater weight than the others. Where one party, wholly through his or her own efforts, and without any direct or indirect contribution by the other, acquires a specific item of marital property after the parties have separated and after the marital family has, as a practical matter, ceased to exist, a monetary award representing an equal division of that particular property would not ordinarily be consonant with the history and purpose of the statute.
Id. at 507. In that case, the circuit court had found that the husband acquired the lottery ticket by expending his own time, effort, and money. Id. The Supreme Court distinguished that situation from one where a spouse facilitates another spouse to acquire property directly or indirectly. Id. at 507–08. It noted how the husband’s purchase was independent of the wife’s efforts and their lives together, past and present. Id. at 508. Indeed, their marriage was practically over when he purchased the ticket, and the Court held that the circuit court erred in awarding half of the lottery winnings to the wife automatically. Id. at 508–09.
We discussed Alston in Ware v. Ware, 131 Md. App. 207 (2000). Like Alston, the husband in Ware also won the lottery but did not want it included in the court’s monetary award calculation. 131 Md. App. at 213. Although everyone agreed that the winnings were marital property, as in Alston, we emphasized that the Supreme Court “did not announce a rule of law that after-acquired gambling winnings are not marital property or are not subject to a monetary award.” Id. at 217. The errors the Court pointed out in Alston were the circuit court’s failure to assess the FL § 8-205(b) factors, to afford the relevant factors the appropriate weight, and not to differentiate between what was equitable and equal on those facts:
The more, moderate holding that we extract from the Alston opinion is that the trial judge, albeit possessing discretion even under the Alston facts, abused his discretion in two separate regards. He failed to give
proper weight, in a situation such as this involving afteracquired gambling winnings, to the so-called eighth factor. He also mechanistically failed to distinguish an “equitable” distribution from an “equal” distribution. Id. at 218.
These cases teach us that not all marital property necessarily will be subject to equitable distribution when awarding a monetary award. See Alston, 331 Md. at 508–09. But that calculation begins from the understanding that the court first had identified which property was marital. Freese, 89 Md. App. at 150. Where it is unclear that the court completed that step, we have vacated the monetary award and remanded. See id. at 152 (circuit court didn’t complete three-step process entirely, including overlooking husband’s bank account, which contained marital funds, warranting remand); see also Kelly v. Kelly, 153 Md. App. 260, 273 (2003) (circuit court’s exclusion of marital property that should have been considered in step one of the three-step process was improper); see also Hoffman, 93 Md. App. at 717 (while circuit court stated value of marital property and personal property, this Court could not decipher which personal property was marital, if any, as three-step process requires, warranting remand).
Back to this case. In their Rule 9-207 statement, both parties agreed that Wife’s 2017 Volvo was marital property and the parties provided evidence to support this categorization. Husband testified that he purchased the vehicle during the 2016–17 period, during the parties’ marriage and before separation. He also testified that he made monthly payments on the vehicle. Leading up to the trial and during discovery, Husband identified the vehicle in his answers to interrogatories as property that he acquired in May 2017 and in which he had an interest. He also identified that the vehicle’s title was in both his and Wife’s names. And Husband testified that he finalized the monthly payments on the vehicle during the parties’ separation, meaning that the vehicle no longer had any encumbrances, as reflected in the Rule 9-207 Statement.
Wife agreed. She testified that she still drives the vehicle and that it is titled jointly. This evidence leads to only one conclusion: the vehicle was marital property and the circuit court erred in finding otherwise. The only evidence the court received suggesting that this vehicle could be nonmarital was that the vehicle was not fully paid off before the parties separated. But even then, unlike in Alston, Husband continued to make monthly payments on the vehicle even after the parties separated, and because he had no issue transferring his share in the vehicle over to Wife, he facilitated her direct acquisition of the vehicle. Cf. 331 Md. at 507–08. The finding that the vehicle was nonmarital property was clearly erroneous.
As in Alston, the court “must weigh the relevant factors in light of the legislative purpose, and then use his or her sound discretion to arrive at an award that is equitable and in accordance with the statute.” 331 Md. at 509. Drawing an arbitrary line on the date of separation doesn’t account fully for the contributions either party might have made to the property acquired post-separation. Take, for example, the 2017 Volvo. Husband testified that while the family acquired the vehicle in 2017, he made the final monthly payment after the separation date. We faced a similar situation in Gravenstine v. Gravenstine,
58 Md. App. 158 (1984). That case concerned a vehicle the husband purchased for $7,700 after the parties separated. Id at 180. At trial, he testified that he had paid $1,700 as a down payment for the vehicle, financed the remainder, and had paid $3,000 of the vehicle’s debt leading up to the trial. Id. The circuit court found the entire vehicle to be marital property and assigned it the full $7,700 value. Id. We remanded, instructing the circuit court to value the vehicle at $4,700 because there was still a $3,000 debt on the vehicle at the time of trial that had not been satisfied. Id. Applied to the case here, property not yet fully acquired (i.e., paid off) until after separation, like Wife’s 2017 Volvo, can still be marital and calculated into a monetary award analysis.
Wife’s NAV requires a similar analysis. Like the 2017 Volvo, the parties provided ample evidence that this property was marital. The court found that the NAV was nonmarital because it was “acquired after the date of separation and after February 1, 2020 . . . .” But the Rule 9-207 Statement stipulated it as marital. Wife also testified that she began working with Noah’s Ark, which provided the NAV, in December 2019, before the parties separated. She worked there until November 2021, and while there, she contributed to her NAV. There was more than enough evidence for the court to find that the portion of the funds contributed before the separation date was marital. Labeling it otherwise was error, at least in categorical terms.
On remand, the circuit court might yet find that Wife’s NAV is marital, but part of the asset is not subject to equitable distribution. As in Alston, the court could determine that the contributions Wife made after the separation came at a time when “the marriage was, for all practical purposes, over.” 331 Md. at 508. In that circumstance, subject to the court giving due regard to all the relevant factors, the portion of the asset acquired during that time may not be subject to equitable distribution, but this record contains no findings to that effect or a way for us to see that those findings might have been contemplated.
Wife also contends that the court didn’t address other assets that the parties stipulated as marital. These were Husband’s Booz Allen Hamilton Stock Options held in Fidelity Investment #6226 and personal property at Husband’s residence. Like Wife’s 2017 Volvo and NAV, the circuit court should determine on remand whether these assets were marital, if at all, before awarding a monetary award. Hoffman, 93 Md. App. at 713–14.
2. The circuit court erred in valuing other assets.
On remand, the court also should review the valuation of the MidAtlantic IRA asset, the parties’ bank accounts, the total marital property valuation, and the court’s dissipation calculation. Beginning with the parties’ MidAtlantic IRA, the parties agree that the order before us double-counted the MidAtlantic IRA. We agree as well.
a. The circuit court valued erroneously the parties’ MidAtlantic IRA and bank accounts.
Husband listed the MidAtlantic IRA in the Rule 9-207 Statement. Through his trial testimony, he explained that this is a self-directed IRA containing three core investments:
$150,000 in Dark Cubed, a cybersecurity firm; $50,000 in Gatsby Ballpark, LLC (“Gatsby’s”); and $50,000 in Dauphine’s restaurant group (“Dauphine’s”). He added that he could not liquidate those assets until those investments returned the invested value back into the IRA, or in other words, until the assets became profitable. Further, he testified that he does not have any separate investments related to the MidAtlantic IRA. Apart from Dark Cubed, to which Wife testified that the initial investment was for $100,000, she testified to the same amounts as Husband regarding Gatsby’s and Dauphine’s. Notably, however, she did not dispute that Dark Cubed, Gatsby’s, and Dauphine’s were all part of the MidAtlantic IRA. Indeed, she testified that she and Husband made the three investments “through the self-directed IRA.”
The court reached a different conclusion. The court identified Dark Cubed, Gatsby’s, and Dauphine’s as marital property that Husband was to retain and assigned each the values to which Husband testified. The court then found the MidAtlantic IRA valued at $250,000 to be “equally divided and distributed to the parties on an if, as, and when, distribution, including gains and losses.” These two conclusions are inconsistent because Husband could not retain the entire asset while dividing it equally with Wife. By treating the asset this way, the court counted it twice in the marital property valuation. On this record, this decision was clearly erroneous.
In addition, the calculation didn’t assign values to the parties’
BANK ACCOUNT HUSBAND WIFE2
Ally 8989
Ally 4762
USAA 0436
USAA 3981
USAA 5678
USAA 2646
Sandy Spring 0154
USAA 0444
$7825
$7825
$3 $4
$13
$220
$466
$2223
$5000
$25
$14
$221
$466
$2223
$25
$25
Ally 8989 $ 15,775 $ 15,778
bank accounts despite finding that each party’s accounts were marital property. Both parties agree that the court failed to treat these accounts as marital property and asserted values that the court should have used. On remand, the court should value their bank accounts as part of the monetary award analysis:
b. The circuit court erred in its total marital property valuation.
Although the parties agree that the circuit court calculated their marital estate erroneously, Husband and Wife differ on how the court reached its sum. Husband submits what he believes should have been the correct calculation whereas Wife describes a number of errors as “de minimis” and suggests that
we overlook them. Because we are remanding anyway, we will address several items that were excluded from this calculation and warrant recalculation.
The circuit court intended to divide the marital estate into retirement and non-retirement marital property. We glean this from the court’s statement that the parties’ retirement benefits totaling $498,431.62 were to be divided on an if, as, and when basis and distributed on a plus or minus investment experience. This differs from the non- retirement estate, which the court simply divided.
When valuing retirement assets, the circuit court has three options: (1) consider the amount of contributions the earning spouse made to the retirement fund, then award the non-contributing spouse an appropriate share; (2) calculate the asset’s present value, discounting benefits payable in the future for interest, mortality, and vesting; or (3) assign a fixed percentage of the future benefits to the non-contributing spouse and award them that percentage of the future benefits on an if, as, and when paid basis. Deering v. Deering, 292 Md. 115, 130–31 (1981) (citation omitted). Under this last approach, the court need not value the retirement assets unless a party objects to it. FL § 8-204(b).
The court identified the marital retirement assets as: (1) Animal World (401K), valued at $4,048.06; (2) Vanguard IRA, valued at $39,114.38; (3) MidAtlantic IRA, valued at $250,000.06; (4) Fidelity Investment 457b Plan, valued at $44,078.31; (5) Booz
RETIREMENT
ASSET CIRCUIT COURT’S VALUATION FINDING
Animal World (401K) $4,048.06
Vanguard IRA $39,114.38
MidAtlantic IRA
$250,000.06, to be divided if, as, and when
Fidelity Investment 457b Plan $44,078.31
Booz Allen Hamilton Fidelity Investment #6226
$16,496.16
Equitable Life Operations $94,694.65
Dark Cubed
$150,000
Gatsby’s $50,000
Dauphine’s $50,000
CIRCUIT COURT’S TOTAL $498,431.62
Allen Hamilton Fidelity Investment #6226, valued at $16,496.16; (6) Equitable Life Operations, valued at $94,694.65; (7) Dark Cubed, valued at $150,000; (8) Gatsby’s, valued at $50,000; and (9) Dauphine’s, valued at $50,000. This calculation is reflected below
On remand, the court should identify which of the three valuation methods it is employing. The court stated in its oral ruling that the parties should divide equally all their marital retirement assets as of February 1, 2020, on an if, as, and when basis. That means that once payable, Husband and Wife each would get fifty percent of the retirement assets. But then the court valued those assets based on later-acquired dates (after February 1, 2020). The court also included an asset acquired after that date, the Vanguard IRA. In the parties’ judgment of absolute divorce, the court ordered that the parties divide the retirement estate as of February 1, 2020, equally excluding the MidAtlantic IRA, which would be distributed if, as, and when. The oral ruling does not track the order explicitly, insofar as Husband and Wife could get an equal distribution of those assets if, as, and when, but the court was explicit in clarifying that only the MidAtlantic IRA was distributable if, as, and when. On remand, the court should clarify which valuation method it is using and the operative valuation dates.
Additionally, as discussed above, the court considered the MidAtlantic IRA once by distributing it solely to Husband and then as a separate asset to be divided between the parties on an if, as, and when basis. Further, as seen in the table, the court treated that asset as separate from Dark Cubed, Gatsby’s, and Dauphine’s. On remand, that asset shouldn’t be considered twice. Suppose the court uses the present value evaluation method, removing the MidAtlantic IRA from the calculation above reduces the court’s $498,431.62 value to $198,431.56. That then leaves the excluded retirement assets: Wife’s NAV, which the parties valued at $29,302.39 as of December 31, 2023, and Husband’s Booz Allen Hamilton Stock Options held in Fidelity Investment #6226, which Husband valued at $40,188.66 as of March 31, 2024.
With regard to the non-retirement marital estate, the circuit
Subaru in Wife’s and son’s names
Evermay LLC
Advice Lab LLC
Dark Cubed
$1,000
Dissipated asset3
Dissipated asset
$150,000
Gatsby’s $50,000
Husband’s weapons
Kia in Husband’s and son’s names
Wife’s HSA account
Furniture in the marital home
Marital home
$50,000
$7,700
$7,600
$30,000
$788,359
CIRCUIT COURT’S TOTAL $498,431.62
court found that the total value of the parties’ marital property was $1,301,525.98. This marital estate was comprised of the following items that the court identified as marital property: (1) Subaru in Wife’s and son’s name, valued at $1,000; (2) Evermay LLC, which the court found dissipated; (3) Advice Lab LLC, which the court found dissipated; (4) Dark Cubed, valued at $150,000; (5) Gatsby’s, valued at $50,000; (6) Husband’s weapons, valued at $50,000; (7) Kia in Husband’s and son’s names, valued at $7,700; (8) Wife’s HSA account, valued at $7,600; (9) furniture in the marital home, valued at $30,000; and (10) the parties’ marital home, valued at $788,359. This property is reflected below:
Although the court reached the $1,301,525.98 figure from adding those values, the total should have been $1,799,957.60. The gap between $1,301,525.98 and $1,799,957.60 is equal to the value that the court assigned to the parties’ retirement assets: $498,431.62. While the court certainly could distribute the retirement assets separately, the court must consider all marital assets before moving to step three in the monetary award analysis. The parties submit that the court’s inclusion of part of the MidAtlantic IRA, namely the Dark Cubed and Gatsby’s values, led to the $200,000 inflation, resulting in the circuit court’s $1,301,525.98 figure. Although that might account for the $200,000 inflation, on remand, the court may yet need to account for the 2017 Volvo, the parties’ bank accounts, and personal property at Husband’s residence, which, as we noted above, may bear on the total non-retirement marital estate.
c. The circuit court erred in its dissipation analysis.
Husband argues as well that the circuit court erred in finding that he dissipated any assets before February 1, 2020, because he was paying the marital expenses for Wife and their youngest child. He adds that any dissipation the court may have included that occurred after February 1, 2020, was considered wrongly, as the court denied Wife’s dissipation claim after February 1, 2020, and Wife didn’t offer proof supporting dissipation after that date. Wife counters that the circuit court was correct in finding that she established her prima facie dissipation claim and that the burden then shifted to Husband, who failed to prove that his expenditures were appropriate and not dissipation.
“[P]roperty disposed of before commencement of the trial under most circumstances cannot be marital property.” Gravenstine, 58 Md. App. at 177. That said, it “would clearly be against the Legislature’s stated public policy to permit one spouse to squander marital property and render it impossible to make an equitable award of property.” Sharp v. Sharp, 58 Md. App. 386, 399 (1984). A party who has expended marital assets in this way can be found to have dissipated them. McCleary v. McCleary, 150 Md. App. 448, 462–63 (2002) (citation omitted). Dissipation may be found when a spouse expends marital funds for their own benefit “for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp, 58 Md. App. at 401. It also may be found where the alleged dissipator expended marital funds for a principal purpose other than ‘“reducing the amount of funds that would be available for equitable distribution at the time of the divorce.”’ Omayaka v. Omayaka, 417 Md. 643, 652 (2011) (quoting Welsh v. Welsh, 135 Md. App. 29, 51 (2000)). And
dissipation may occur where the marriage is not undergoing an irreconcilable breakdown. Id.
The dissipation claimant has the initial burden of production and the ultimate burden of persuasion. Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311 (1994), (citing Choate v. Choate, 97 Md. App. 347, 366 (1993), disapproved of on other grounds by Welsh, 135 Md. App. at 54). After establishing a prima facie dissipation case, the burden shifts to the alleged dissipator to show that their expenditures were appropriate. Id. ‘“What matters is not that one spouse has, post-separation, expended some of the marital assets, what is critically important is the purpose behind the expenditure.”’ Omayaka, 417 Md. at 654 (quoting Herger v. Herger, 184 Md. App. 83, 96 (2009)). After the alleged dissipator provides evidence that the expenditure was appropriate, it is up to the circuit court to determine whether the dissipation claimant has proven that the alleged dissipator did indeed dissipate marital assets. Abdullahi v. Zainini, 241 Md. App. 372, 418 (2019); see Omayaka, 417 Md. at 656 (“[T]he ultimate burden of persuasion remains on the party who claims that the other party has dissipated marital assets.”).
The standard of proof is a preponderance of the evidence. Jeffcoat, 102 Md. App. at 307. A dissipation claimant may establish prima facie dissipation through proof that the alleged dissipator withdrew sizable funds from bank accounts in their control. Omayaka, 417 Md. at 656–57. But even in those cases, a spouse still retains the right to transfer their own property, even if it leaves the spouse with no means of supporting their family, so long as the spouse does so in good faith and without the intention of avoiding divorce consequences. Oles Envelope Corp. v. Oles, 193 Md. 79, 88 (1949) (citing Feigley v. Feigley, 7 Md. 537, 561 (1855)). Ultimately, the circuit court must decide whether the claimant met their burden. See Abdullahi, 241 Md. App. at 417 (circuit court erred in finding that wife hadn’t made a prima facie dissipation case where husband withdrew $39,000 in one year from bank account).
There may be cases when a spouse dissipated a marital asset fully. In those cases, valuing the property may be difficult, and the circuit court may rely on the property’s value at the time that the spouse dissipated it. Karmand v. Karmand, 145 Md. App. 317, 345 (2002) (citing Hollander v. Hollander, 89 Md. App. 156, 170 (1991)). “To hold otherwise would permit a party who intentionally causes the dissipation to escape the consequences of his actions and would, in most instances, completely deprive the other party from the rightful benefits to which he or she may be entitled.” Hollander, 89 Md. App. at 170. And once the circuit court determines that a spouse dissipated marital assets, the court must consider the dissipated assets as extant marital property and then value it with the other marital property. Sharp, 58 Md. App. at 398–99.
In its order for judgment of divorce in this case, the circuit court, while granting Wife’s claim for dissipation occurring at some point in the marriage, denied Wife’s claim for dissipation occurring after February 1, 2020. In its oral ruling, the court stated that it would calculate the dissipation from the time that the marriage was irreconcilable. As the court put it, Wife tried to reconcile with Husband in January 2020, but he refused. It was then that Husband did not discuss with Wife the funds he used
and on what he spent them, and the court stated that those funds were used for extramarital purposes. The court only identified Evermay LLC and Advice Lab LLC as the dissipated assets, totaling $216,866.98. These findings were clearly erroneous.
Evermay LLC was a company at which Husband worked and later owned for six-and-a-half years. Husband shut the company down in 2018. Wife contends that because Husband testified to shutting the business down with outstanding billing over $270,000, that decision didn’t serve marital purposes and, therefore, constituted dissipation. For our purposes, we must consider whether, given the court’s finding that the dissipation occurred when the marriage was irreconcilable, the decision to shut down Evermay occurred during that time.
It didn’t. The court identified a time period where Wife tried to reconcile with Husband, and he refused. But that occurred in January 2020, when Husband told Wife that he wanted a divorce and left the marital home. Before that, Husband had separated from Wife, but only once. This was in October 2019, when, after revealing his infidelity, Husband informed her that their marriage was over, something he had said before. Although he left for three weeks in November 2019, he returned to the marital home and the parties attempted to reconcile. Wife testified to this, revealing her efforts to be more diligent about Husband’s desires, and both testified to the guidance they received from counselors. The court found as much. But Evermay ceased to exist in 2018, meaning it could not have been dissipated in the manner the court found.
As for Advice Lab LLC, Husband testified that this was a shell company that had no monetary value to it. He doesn’t dispute that it retained a bank account from Sandy Spring Bank with funds in it. Still, the transactions from that account occurred after February 1, 2020—the period after which the court found no dissipation. The bank statement from Sandy Spring as of January 31, 2020, reflected a value of $1,793.38. Without more, this appears to be the only value available for dissipation. We cannot say how the court reached the $216,866.98 figure. And since the court didn’t identify any other dissipated assets, on remand, the court is free to identify which assets were dissipated, if any, and assign to them a monetary value as marital property.
At trial, Wife asked the court to find that Husband had dissipated $547,254.13 and about $200,000 of funds from the Booz Allen Hamilton Fidelity Investment #6226 account. She requested that once treated as extant marital property, the court should assign the dissipated property a value and award half of it to her. Because the court found no dissipation after February 1, 2020, the court will need to reexamine these figures.
First, the $547,254.13 does not line up neatly. Wife came to that total by assigning $281,243.17 to Husband’s affair; $81,306.30 to his travel; $125,468.16 to his dining; $93,613 to cash withdrawals; and $13,028.17 to liquor purchases. But this formulation included expenditures that occurred after February 1, 2020. If, for example, the court excises the travel expenditures that occurred before February 1, 2020, the $81,306.30 for travel drops to $3,308.69. And that reduced figure would include the Nemacolin reservation, which Wife testified occurred during the time the parties were trying to reconcile, and that Nemacolin was where the parties went and spent several days
together. Removing that expenditure would lower the travel figure to $2,588.60 because it was for marital purposes, i.e., their reconciliation.
Second, and in like manner, the $200,000 Fidelity retirement withdrawals are irrelevant. The statements available from that account begin in July 2021 and end in December 2023. Wife identified these statements as proving dissipation, since the money was not spent on their family. But since the circuit court denied her dissipation claim for the period after February 1, 2020, the court disagreed with Wife on that point. And although we are not examining that decision, we include it here to highlight that those withdrawals should not be included in the dissipation calculation, just as the court found. The court will need to explain how, after excluding all these figures, it reached $216,866.98.
On remand, the court may find that by providing evidence of withdrawals occurring before February 1, 2020, Wife established a prima facie dissipation claim. See Omayaka, 417 Md. at 656. In that case, Husband would then need to demonstrate that those withdrawals were appropriate, Abdullahi, 241 Md. App. at 418, and the court should, if inclined to agree with Wife, tie those funds to the alleged dissipation. See Gravenstine, 58 Md. App. at 178 (because $10,000 withdrawn from joint account three years before divorce could not be traced to any property spouses owned at time of divorce, circuit court could not treat funds as extant marital property); see also McCleary, 150 Md. App. at 464–66 (holding circuit court’s dissipation finding clearly erroneous because circuit court did not examine whether expenditures were for familial purposes and included payments for household and family expenses in dissipation calculation).
3. Because the circuit court did not account for various assets and miscalculated the parties’ marital estate, it erred in reaching its monetary award conclusion.
After deciding the scope and value of the marital property, the question, measured against the FL § 8-205(b) factors, is whether a monetary award is appropriate to address inequity between the parties. Hoffman, 93 Md. App. at 712. Although the court intended to award Wife 65% of the non-retirement marital estate (which the court found as $1,301,525.98), it awarded Wife $843,473.38. This award included the equity in the marital home, which the court valued at $788,359. But 65% of $1,301,525.98 is $845,991.89, not $843,473.38. The circuit court’s findings on this matter were clearly erroneous.
Husband argues that the court did not “properly account for [the marital home’s] full allocation to [Wife] in determining the monetary award.” But the court did subtract the value assigned to the marital home from Wife’s monetary award, leaving Husband to pay $55,114.38, not $843,473.38, let alone $845,991.89. This was not an error inasmuch as it reduced the ultimate outlay by the value of the full equity in the house ($843,473.38 minus $788,359 equals $55,114.38). On remand, we emphasize only that it is for the court to consider the FL § 8-205(b) factors based on the evidence, including the parties’ Rule 9-207 statement, and determine what is equitable: “Of course, equal distribution may often be proper, and where that result is equitable and consistent with the legislative purpose, [the] court should not hesitate to make such an award.” Alston,
331 Md. at 509.
B. Given That Some of The Circuit Court’s Findings Were Clearly Erroneous When Awarding Wife Rehabilitative Alimony, The Court Erred.
Our holding regarding the monetary award, on its own, requires us to vacate the circuit court’s alimony award. See Long v. Long, 129 Md. App. 554, 585 (2000) (“Our law weighs alimony and monetary awards against one another.”). But in light of Husband’s challenges to that award, we offer some guidance so that the issues aren’t relitigated from scratch.
As with the monetary award, our review of the alimony award “‘assume[s] the truth of all evidence tending to support the findings of the trial court, and . . . simply inquire[s] “whether there is any evidence legally sufficient to support those findings.”’” Id. at 556– 57 (quoting Skrabak v. Skrabak, 108 Md. App. 633, 650 (1996)). “Yet when the [court’s] stated findings of fact, i.e., the evidence the court accepts as true for controverted issues, conflicts with the ultimate award of [alimony], we must take a closer look. We do so here, and we now question whether the [court’s] findings of fact support [its] conclusions.” Id. at 567.
“Generally speaking, alimony awards, though authorized by statute, are founded upon notions of equity; equity requires sensitivity to the merits of each individual case without the imposition of bright-line tests.” Tracey v. Tracey, 328 Md. 380, 393 (1992) (citation omitted). Indeed, the alimony statute “in its entirety renounces an approach based on rote or formula.” Id. at 389. That said, the statute lists twelve factors that a circuit court must consider before awarding alimony. Welsh, 135 Md. App. at 39 (citing Gallagher v. Gallagher, 118 Md. App. 567, 586 (1997)). Those factors are:
1. the ability of the party seeking alimony to be wholly or partly self-supporting;
2. the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
3. the standard of living that the parties established during their marriage;
4. the duration of the marriage;
5. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
6. the circumstances that contributed to the estrangement of the parties;
7. the age of each party;
8. the physical and mental condition of each party;
9. the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
10. any agreement between the parties;
11. the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under [FL] §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of
the financial obligations of each party; and (iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL § 11-106(b).
This statutory scheme “generally favors fixed-term or so-called rehabilitative alimony.” Tracey, 328 Md. at 391; see Boemio v. Boemio, 414 Md. 118, 142 (2010) (‘“Underlying Maryland’s statutory preference is the conviction that the purpose of alimony is not to provide a lifetime pension, but where practicable to ease the transition for the parties from the joint married state to their new status as single people living apart and independently.”’ (quoting Solomon v. Solomon, 383 Md. 176, 194–95 (2004))); see also Hull v. Hull, 83 Md. App. 218, 222–23 (1990) (“[A]limony . . . when necessary, became essentially short-term and rehabilitative. It was designed primarily to turn the formerly dependent party into one who, after the rehabilitative steps had been taken, achieved for the first time or reachieved financial self-sufficiency.”).
1. The circuit court’s findings under FL § 11-102(b) (2) included findings that were clearly erroneous.
In this case, the circuit court considered the FL § 11-106(b) factors and awarded Wife “rehabilitative alimony in the amount of Two Thousand Five Hundred Dollars ($2,500) per month, for 36 consecutive months” (or three years). To summarize, the court found that:
• Wife, as the party seeking alimony, was wholly selfsupporting, FL § 11-106(b)(1);
• Wife could increase her income significantly with palliative care and hospice training and make a substantial living, considering her income had increased annually by $20,000, FL § 11-106(b)(2);
• Before 2014, the parties had a “humble standard of living” and did not live a “lavish lifestyle,” but after 2014, when Husband took a private sector job and increased his income, the parties’ lifestyle changed as they acquired a new home, a luxury vehicle, and Husband purchased luxury brand items for Wife, FL § 11-106(b)(3);
• The parties were married for twenty-seven years, but separated for more than four of those, FL § 11-106(b)(4);
• Wife worked part-time during the marriage, caring for the home and children, whereas Husband carried the entire financial load and would help care for the children when he worked from home, FL § 11-106(b)(5);
• Husband’s infidelity, a lack of quality time between the parties, and how they outgrew each other caused the parties’ estrangement, FL § 11-106(b)(6);
• Wife was forty-nine years old and Husband fifty-one, FL § 11-106(b)(7); both were “fit physically and mentally,” FL § 11-106(b)(8);
• Husband can meet his and Wife’s needs, FL § 11106(b)(9);
• The parties agreed that their youngest child would attend
private school. They agree as well that Wife worked when that child was born and homeschooled the child until third grade. As the child’s activities increased, Wife stopped working, but she agreed later to return to work. Although there was a dispute whether Husband requested that she return to work full time, there was no dispute that he was okay with her returning if she desired, FL § 11-106(b)(10); and
• Wife’s gross income was $194,529 in 2023, and Husband’s exceeded one million dollars, FL § 11-106(b)(11).
Husband takes issue with the court’s finding on factor two: “the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment.” FL §11-106(b)(2). He argues that because Wife presented evidence to the court showing that “she reached the highest level of education for her profession and stated that additional certifications or training would not increase her income,” she wasn’t eligible for rehabilitative alimony.4 Wife responds that the court considered correctly all the FL § 11-106(b) factors, especially the second factor. We agree with Husband on this factor.
Wife’s testimony about her future earnings contradicts the circuit court’s findings, and the findings aren’t supported by any other evidence in the record. At trial, Wife testified that she had received her certification in hospice and palliative care. She added that those two certifications, which would enable her to provide more complete services, would not increase her income. She testified as well that she had reached the highest level of education possible in the veterinary profession already and that performing surgeries would not increase her income potential. She acknowledged that one of her previous employers had said she could potentially acquire an ownership interest in the company, but she never received any such offer. Not only that, but in her current employment role, Wife had no proprietary interest in the company’s profits. Lastly, Wife testified that she was working the maximum number of hours available to her and that her schedule was typical for veterinarians. On the other hand, Husband testified that Wife could increase her earning potential by conducting surgeries. He argued that based on conversations he had with Wife, he understood those surgeries as a precursor to ownership interests in a veterinary clinic. He surmised that she was reticent to perform those surgeries for fear of making mistakes and risking her license.
Against this record, the circuit court found that Wife could “increase her salary significantly if she had training in palliative care and hospice care ” In awarding her rehabilitative alimony, the court reasoned that the rehabilitative period would allow Wife “to complete additional training and or education in order to increase her salary.” There was no evidence before the circuit court supporting these conclusions. Although the court had the authority to assess witnesses and their credibility, these findings don’t connect back to any evidence admitted in the case. See Long, 129 Md. App. at 581–83 (rehabilitative alimony award inconsistent with factual record where circuit court did not connect projected potential income for wife and ability to retain work with the record); see also Lee v. Lee, 148 Md. App. 432, 444, 446–47 (2002) (noting that while circuit court thought
spouse would benefit economically from taking some college courses, it provided no clue as to why it felt spouse could be self-supporting at end of rehabilitative period or what field of work spouse could engage in to become self-supporting).
The record also doesn’t support findings about the surgeries and ownership interest. The court found that Wife could perform surgeries with additional training and that Wife could earn more by “seeing more animals and or choosing to buy into the practice.” The court also found that Wife was not “opting for her maximum potential with the company.” Again, those findings aren’t grounded in the record. The court could have credited Husband’s testimony over Wife’s. Coviello v. Coviello, 91 Md. App. 638, 655 (1992). But even then, Husband testified only that there was some potential to earn more income through the surgeries and offered no proof that this was attainable, as opposed to a mere possibility. Moreover, the circuit court did not identify why the three-year period it prescribed was sufficient to permit Wife to perform surgeries, to increase how frequently she performed surgeries, and what salary she would attain within the three years that would warrant stopping the alimony or render rehabilitation complete. See Lee, 148 Md. App. at 446–47.
In addition, Husband seemed to anchor his conclusions about the ownership interest on Wife’s conversations with him while the two were still together. Because Wife testified that one of her previous employers provided that potential but that her current employer does not provide her any interest in its profits presently, the circuit court may require further fact-finding on remand to determine if Wife could have a future buy-in potential. Concluding with her work hours, the court did not explain how Wife could see “more animals” despite already working the maximum number of hours she can at her current employer.
This doesn’t mean that the court erred in awarding alimony at all, and this opinion shouldn’t be read as so holding. We note only that the specific occupational bases the court cited in support of this rehabilitative alimony award contradicted the testimony and aren’t supported by the record. Because we are vacating the monetary award, on remand, the court should revisit Wife’s alimony request, and should it grant that award, should ground that award in the record before it.
2.Husband’s remaining contentions are ripe for the circuit court’s FL § 11-106(b) analysis.
Husband asserts that other elements of Wife’s alimony claim compounded the errors he identifies: (1) anticipated expenses for repairs to the marital home; (2) a monthly payment for Wife’s 2017 Volvo and her desire to replace her car every two years; (3) Wife’s charitable contributions; and (4) Wife’s decision to contribute $1,291.66 to her retirement. We take these in turn.
Husband’s first contention fits neatly within the FL § 11106(b) factors, namely FL § 11-106(b)(11): “The financial needs and financial resources of each party, including: . . . (iii) the nature and amount of the financial obligations of each party[.]” FL § 11-106(b)(11)(b)(iii). Wife asserted that she had financial obligations to repair the marital home, $1,388 for herself and $694.44 for the minor child, totaling $2,082.44. These included repairs to the roof, electrical system, and the home’s plumbing.
Husband is correct that Wife did not provide evidence that she had contracted services to address those issues.
But in the context of this trial, the circuit court certainly could have found that such evidence was unnecessary because Wife testified extensively about the repairs to the marital home that she had to complete after she and Husband separated. These included a separate roof repair for the garage, for which she received two price quotes. She also received a quote for the roof of the marital home—the roof she seeks to repair. The circuit court could have found her financial statement request for the roof creditworthy, given her experience with procuring price quotes for the garage roof, repairing that roof, and engaging a contractor to obtain another price quote for the roof of the marital home. Cf Kingsley v. Kingsley, 45 Md. App. 199, 211 (1980) (rejecting contention that future inheritance should have been accounted for in alimony award when court received no evidence as to when inheritance would be distributed). Wife also testified that the home’s faucets were not working and required repairs. On remand, the circuit court may determine that it received enough evidence to address the home repair issues. Either way, these items are best addressed under FL § 11-106(b)(11)(iii), and the court should tie its alimony award, if granted, explicitly to the expenses that Wife asserts.
Husband’s second contention about Wife’s 2017 Volvo is without merit. The circuit court stated explicitly that in calculating Wife’s alimony, it “did exclude the $850 for the car . . . [t]hat was listed on the financial statement and the deficit was reduced to $2,567.95.” This is the same $850 that Husband challenges. Husband’s third contention is that Wife’s charitable giving is “not a reasonable or justified need supporting a claim for alimony.” But this was an appropriate consideration under FL § 11-106(b). On this record, both parties make monthly charitable contributions. On remand, the circuit court should consider Wife’s charitable expense, and if the court finds it reasonable, it should connect that finding to the record before it.
In his fourth contention, Husband argues that Wife’s decision to contribute to her retirement also inflated her monthly expenses when considering her alimony claim. But this was an appropriate expense for the court to consider. As Wife testified, she doesn’t believe she has enough time to build a retirement fund because she worked mostly part-time, and at times not at all, to care for the parties’ children. Husband, the parties’ primary financial resource, was able to build his retirement continuously throughout the parties’ marriage. In pursuing equity, as the statute mandates, the circuit court could have considered this inequity in retirement funds and sought to address it by including this expense in an alimony calculation. See Tracey, 328 Md. at 388 (“[T]he statute itself requires that the trial court weigh all factors relevant to ‘a fair and equitable award.’” (quoting FL § 11-106(b))).
3. The circuit court considered appropriately the mortgage payment under FL § 11-106(b)(11)(ii).
This leaves the mortgage payment obligation on the marital home. Husband claims that the circuit court erred in ordering him to pay the mortgage and that the additional payment
functioned in essence as a separate alimony award. He adds that it stacked the financial burden against him inequitably, given the monetary, alimony, and child support awards. Wife counters that this decision is permitted under FL § 8-208 explicitly and was thus within the circuit court’s discretion. We agree with Wife.
As Wife notes, correctly, the statute authorizes this decision. Section 11-106(b)(11)(ii) recognizes that the circuit court must consider any award it makes under FL § 8-208, and the relevant provision, (c), permits the circuit court to order either or both parties to “pay all or any part of: (1) any mortgage payments or rent; (2) any indebtedness that is related to the property; (3) the cost of maintenance, insurance, assessments, and taxes; or (4) any similar expenses in connection with the property.” In its FL § 11-106(b) analysis here, the circuit court recognized this factor and stated it on the record. The court then ordered Husband to pay the mortgage and insurance on the marital home. During the trial, Husband testified that he had paid the parties’ monthly mortgage payment since they separated and up through the trial date. That is more than three years of payments. In addition, he did not identify any hindrance that would inhibit him from continuing to pay prospectively. Indeed, his income continued to soar from the time he left the marital home, when he earned $502,609.77 annually, to over a million dollars at the time of trial. The court readily could conclude on this record that Husband was able to pay as he has.
Husband asserts that the financial burden of the monetary, alimony, and child support awards made ordering him to pay the mortgage on the marital home inequitable. But the court was authorized to order it, and the record supports that decision. See Knott v. Knott, 146 Md. App. 232, 250 (2002) (“[I]n addition to any order that the noncustodial parent pay direct child support payments, the trial court may order one or both of the parents to contribute to the mortgage on the family home, insurance and taxes.” (citing FL § 8-208(c))). Even the case Husband relies on to push this argument recognized as much. Cotter v. Cotter, 58 Md. App. 529, 542 (1984) (suggesting that on remand, “an award of indefinite alimony would in no way be inconsistent with a monetary award based upon a distribution of the husband’s retirement benefits if, as and when he receives them”), superseded by rule, FL § 9-207.
The question for the court on remand is how to calculate the parties’ relative financial obligations and how to characterize them. The court could, for example, decide to order rehabilitative alimony and include the cost of the mortgage on the marital home in that calculation. There may be other considerations bearing on the fact or amount of an alimony award. The court also could direct Husband to pay the mortgage separately from alimony, or weigh all of that into its calculation of a marital award or, because the minor child lives at home, child support. Each approach has its analytical parameters and limitations depending on what the court seeks to accomplish overall, and the court has broad discretion in how to fashion the ultimate package.
C. Given Our Monetary Award And Alimony Award Decisions, The
Circuit Court Must Recalculate Its Child Support Award.
Husband’s next contention regarding the child support order is twofold. First, he submits that, given the related orders that the court entered (i.e., alimony), the child support order effectively meant that he would pay 100% of the child’s expenses, which would contravene the Income Shares Model. Second, he claims that ordering him to pay arrearages did not account for the payments he made leading up to the judgment of divorce. Wife counters the first by arguing that the court exercised its discretion appropriately in extrapolating the child support guidelines. She responds to the second by contending that Husband received a windfall from the court because she had requested that the arrearages date back to the date of filing her complaint, and the court awarded them for a period shorter than that. As noted above, we must vacate the child support order based on our other decisions, but we offer some observations for remand.
This is an above-guidelines case. The General Assembly created the guidelines, FL § 12-204(e), based on the Income Shares Model, which relies on the understanding that ‘“a child should receive the same proportion of parental income, and thereby enjoy the same standard of living, he or she would have experienced had the child’s parents remained together.”’ Bagley v. Bagley, 98 Md. App. 18, 36 (1993) (quoting Voishan v. Palma, 327 Md. 318, 322–23 (1992)). The Model “establishes child support obligations based on estimates of the percentage of income that parents in an intact household typically spend on their children.” Id.; Voishan, 327 Md. at 327 (“The legislature has clearly enunciated that the policies of the guidelines are those embodied in the Income Shares Model.”).
If the parties’ combined monthly adjusted income is under $30,000 (or $360,000 annually), the circuit court must apply the guidelines. Kaplan v. Kaplan, 248 Md. App. 358, 387 (2020) (citing FL §12-204(e) (amended 2022, 2024)). But where that monthly income exceeds $30,000, the General Assembly “‘left the task of awards above the guidelines to the [trial judge] precisely because such awards defied any simple mathematical solution.’” Id. (quoting Smith v. Freeman, 149 Md. App. 1, 19 (2002)). The court in these cases must “‘balance the best interests and needs of the child with the parents’ financial ability to meet those needs.’” Smith, 149 Md. App. at 20 (quoting Unkle v. Unkle, 305 Md. 587, 597 (1986), superseded by statute, FL § 12-202). We will not disturb its “discretionary determination as to an appropriate award of child support absent legal error or abuse of discretion.” Id.
1. The court must make explicit findings about the minor child’s reasonable expenses.
Husband argues that the circuit court “ignored the underpinning principles of the Income Model Approach to the guidelines” when calculating his child support obligation. We disagree that the court misapplied the principles, but there is a potential error in how the circuit court calculated child support that the court should consider on remand.
Within the Income Shares Model, the court should determine each party’s monthly adjusted actual income, combine them to reach a total monthly income, and if it is within the guidelines, locate the child support obligation and divide it amongst the parties in relation to their share of the combined monthly income. Voishan, 327 Md. at 323 (citations omitted). On the other hand, “[s]everal factors are relevant in setting child support in an above guidelines case. They include the parties’ financial circumstances, the reasonable expenses of the child, and the parties’ station in life, their age and physical condition, and expenses in educating the child.” Walker v. Grow, 170 Md. App. 255, 266 (2006) (cleaned up) (quoting Smith, 149 Md. App. at 20). But in those discretionary cases, like those within the guidelines, the rationale behind the guidelines still controls. Id. (quoting Malin v. Mininberg, 153 Md. App. 358, 410–11 (2003)).
The court here found that the parties’ combined monthly income before taxes was $106,686. Husband contends the appropriate figure was $65,265.34 per month, which reflected the parties’ monthly income at the time of trial. He’s wrong. Husband testified at trial that his income in 2022 and 2023 exceeded one million dollars, respectively. Wife also introduced evidence of Husband’s W-2 forms, which showed that his income before taxes exceeded one million dollars in each of those years. The court relied on that evidence. The court found that Husband’s monthly income was $90,496. That figure times twelve months produces an annual salary of $1,085,952. Husband’s 2023 W-2 reflects that his earned Medicare Wages and Tips amounted to $1,085,948.17. That figure divided into twelve months results in $90,495.68. The discrepancy with the circuit court’s figure comes inferably from the court rounding up to the nearest dollar. So far, so good. The court also found that Wife’s monthly income was $16,190. That figure times twelve months produces an annual salary of $194,280. Wife’s 2023 W-2 reflected that she earned Medicare Wages and Tips totaling $194,276.66. And the court received extensive testimony as to this figure. Dividing that figure by twelve results in $16,189.72. So again, the discrepancy came from the court rounding to the nearest dollar. Accordingly, the court’s finding that the parties’ combined monthly income was $106,686 was correct factually (and arithmetically).
The circuit court then factored in the alimony award as income to Wife, as enumerated in the statute. FL § 12-201(c)(2). This award was $2,500 (which we are vacating), so the court added that amount to Wife’s monthly income and deducted it from Husband’s (because it was his obligation). That adjusted each party’s figures: for Wife, $16,190 to $18,690; for Husband, $90,496 to $87,996. The court then determined the ratio of the combined monthly income: 82.5% to Husband ($87,996 divided by $106,686 and rounded to one decimal place) and 17.5% for Wife ($18,690 divided by $106,686 and rounded to one decimal place).
As we have retraced the circuit court’s path to the child support obligation so far, the court was correct. Where the court may have erred, however, was with the basic child support obligation. The court listed that obligation as $8,293. We cannot say how the court arrived at that number, as its oral ruling doesn’t describe the child’s expenses. Even more, Wife’s
financial statements identify the minor child’s expenses at $9,526.99 initially and
$9,522.05 in her latest financial statement. As Husband points out, this doesn’t account for the mortgage payment, for which he is solely responsible. Nevertheless, using the $8,293 figure, the court did factor in the tuition payment obligation despite Husband’s contentions to the contrary. These payments are the same as what Wife submitted on her financial expenses sheet ($3,019.94 rounded up to $3,020). This obligation added to the $8,293 figure resulted in a total child support obligation equaling $11,313, as the court found. Using each party’s respective share of the combined monthly income, the court determined that Husband’s share was $9,333, subtracted the minor child’s tuition obligation ($3,020) from it, and found Husband’s child support obligation to be $6,313.
On these figures, the court’s math panned out. When we say there was potential error, we note only the absence in the record of how the court reached the $8,293 figure. The court’s broad discretion could readily have led it to that figure. But on remand, the court should connect the ultimate conclusion (as recalibrated in light of all of these decisions) to the evidence before it, and especially to how the figure addresses the minor child’s expenses. See Walker, 170 Md. App. at 289 (“‘[T]he trial judge should examine the needs of the child in light of the parents’ resources and determine the amount of support necessary to ensure that the child’s standard of living does not suffer because of the parents’ separation.’” (quoting Voishan, 327 Md. at 332)). We reiterate that the minor child “‘is entitled to a standard of living that corresponds to the economic position of the parents.’” Id. (quoting Smith, 149 Md. App. at 23). And in light of our alimony analysis, the court should factor in any alimony award, just as it did here. FL § 12-201(b)(3)(xv).
Because this is an above-guidelines case, the court can consider various expenses and weigh them accordingly. 170 Md. App. at 288 (noting that in an above-guidelines case, circuit court may consider discretionary activities such as camp, music lessons, tutoring, and other programs to determine child support). The award should ensure that even with Husband earning significantly more than Wife, the parties share the child’s expenses. See Lee v. Andochick, 182 Md. App. 268, 293 (2008) (court abused its discretion in above-guidelines case by awarding wife more in child support than requested in wife’s financial statement, indicating that court failed to place any child support burden on wife). And in determining the minor child’s expenses, the court should ensure that the child does not get treated differently from their siblings simply because the child is to grow up in a world where the child’s parents are divorced. See Maness v. Sawyer, 180 Md. App. 295, 321 (2008) (no abuse of discretion in above-guidelines case where despite husband carrying heavy debts, circuit court entered child support order against husband to ensure “that the children were not going to suffer because of the financial indiscipline of their parents”); see also Bagley, 98 Md. App. at 38 (“The [parent’s] children are entitled to every expense reasonable for a child of someone with [the parent’s] affluence.”).
2. The circuit court’s decision instituting arrearages starting on May 1, 2024, was an abuse of discretion.
Husband argues here that the arrearages entered as part of his child support obligation didn’t account for the expenses he paid before the circuit court entered its judgment. We disagree, but there is another consideration for the court to address on remand.
Although “retroactive support is allowed, it is by no means mandatory.” Caccamise v. Caccamise, 130 Md. App. 505, 518 (2000). Deciding whether to grant retroactive child support falls within a circuit court’s discretion. Petitto v. Petitto, 147 Md. App. 280, 310 (2002). A court abuses its discretion when its decision is ‘“well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.”’ Sumpter v. Sumpter, 436 Md. 74, 85 (2013) (quoting North v.North, 102 Md. App. 1, 14 (1994)).
Section 12-101(a) mandates that: “Unless the court finds from the evidence that the amount of the award will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support.” FL § 12-101(a)(1) (emphasis added). As for other pleadings that seek child support, a circuit “court may award child support for a period from the filing of the pleading that requests child support.” FL § 12-101(a)(3) (emphasis added). Essentially, “section 12-101(a)(3) leaves to the discretion of the court that which section 12-101(a)(1) makes mandatory.” Chimes v. Michael, 131 Md. App. 271, 295 (2000).
Wife, in her complaint, requested child support “pendente lite and as long as permitted by law, retroactive to the filing in this case . . . .” The court also entered a pendente lite order awarding Wife child support of $1,000 per month. Wife argued before the circuit court that her basis for child support arrearages was that Husband did not start paying child support until the pendente lite order. Even after he started to make the pendente lite child support payments, those payments did not include arrearages that dated back to the filing of her complaint. Nevertheless, and despite Husband’s contentions that he did pay some of the minor child’s expenses after Wife filed her complaint for divorce, the court found that Husband had paid part of the mortgage on the marital home, child support from the pendente lite order, and the minor child’s private school tuition once Wife filed for divorce. As a result, the court declined to order arrearages dating back to the date Wife filed her complaint. Instead, the court ordered that Husband: (1) pay Wife child support arrearages amounting
to $12,626 dating back to May 1, 2024; (2) credited Husband for payments made totaling $2000; and ordered that Husband was to pay $500 monthly in addition to his child support obligation until Husband pays the arrearages in full. The court abused its discretion.
The statute’s language is unambiguous. The court must award the child support retroactively from the date Wife filed her initial pleading unless the court finds that the award would create an inequitable result. FL § 12-101(a)(1). Because the court ordered child support retroactively from May 1, 2024 and not the date Wife filed her complaint, November 28, 2022, it found implicitly an inequitable result. And yet the court didn’t explain why commencing the child support retroactively from the date of Wife’s initial pleading would yield an inequitable result. In light of our other holdings, the court, on remand, may determine that the monetary and alimony awards, if granted, aggregated with the child support award, yield an inequitable result. On that basis, the court may decide to have the child support obligation commence later—if, perhaps, it decides to calculate child support as encompassing (or, perhaps, supplementing) Husband’s obligation to pay the mortgage on the marital home and the home’s related fees. Knott, 146 Md. App. 250.
D. With The Related Pecuniary Awards Vacated, We Vacate Also The Attorneys’ Fees Award.
Husband asserts that the court abused its discretion here by awarding Wife attorneys’ fees. Wife asks us to affirm, reasoning that the court didn’t abuse its discretion. We shall not get to the merits here, however, because the case law on this matter compels us to only one conclusion: where we vacate—as we did here—a monetary award, alimony, or child support, we shall also vacate the attorney’s fees award. Flanagan, 181 Md. App. at 544 (“Because we have vacated the monetary award, the award of attorney’s fees must necessarily be vacated and reconsidered on remand as well.”); Freese, 89 Md. App. at 155 (“Although the award of alimony as made does not constitute an abuse of discretion, we are vacating the alimony award since a change in the monetary award may affect a change in the alimony award.”); St. Cyr v. St. Cyr., 228 Md. App. 163, 198 (2016) (“[A] court’s determinations as to alimony, child support, monetary awards, and counsel fees involve overlapping evaluations of the parties’ financial circumstances.”); Brown v. Brown, 195 Md. App. 72, 122 (2010) (“‘The factors underlying alimony, a monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.’” (quoting Turner v. Turner, 147 Md. App. 350, 400 (2002))).
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY.
FOOTNOTES
1 Husband lists six Questions Presented in his brief:
1. Did the Trial Court err in determining the amount and duration of rehabilitative alimony where the Trial Court determined that Appellee was “wholly self-supporting”?
2. Did the Trial Court err when it ordered Appellant to pay the mortgage for the former marital home?
3. Did the Trial Court err when it compelled Appellant to pay 100% of the child’s calculated expenses for child support, and when it awarded retroactive child support to Appellee?
4. Did the Trial Court err in determining marital property and calculating a monetary award?
5. Did the Trial Court err in including dissipated assets of $216,866.98 in calculating marital property and the monetary award?
6. Did the Trial Court err in determining the attorneys’ fees award?
Wife’s brief frames the issues as eight Questions Presented:
1. Did the Trial Court abuse its discretion or err in awarding rehabilitative alimony to the Wife?
2. Did the Trial Court abuse its discretion in ordering the Husband to contribute toward the mortgage principal, mortgage interest, and property insurance on the marital home?
3. Did the Trial Court abuse its discretion in ordering the Husband to pay the full costs of the private school tuition for the minor child?
4. Did the Trial Court abuse its discretion in ordering the Husband to pay retroactive child support?
5. Was the Trial Court clearly erroneous in the determination of any marital property decisions?
6. Did the Trial Court abuse its discretion in determining the amount of the monetary award?
7. Was the Trial Court clearly erroneous in determining that the Husband dissipated marital assets, and considering the same in the division of marital property and determination of monetary award?
8. Did the Trial Court abuse its discretion in awarding attorney’s fees?
2 Although some of Wife’s values differ, Wife concedes that “the values suggested by the Husband are acceptable to the Wife (Appellant’s Brief, p.23).” The circuit court still must assign the ultimate values. Williams, 71 Md. App. at 36.
3 For the dissipated assets, the circuit court assigned them a total value of $216,866.98.
4 Although Husband seemed to argue in his principal brief that Wife could not get rehabilitative alimony after a finding that she was wholly self-supporting as a matter of law, he clarified in his reply brief and at oral argument that he was arguing only that on these facts, the trial court could not award rehabilitative alimony after finding Wife wholly self-supporting.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Dorchester County’s award of primary physical custody to father. The trial court was not incorrect to favor the stability of the child staying in the Maryland/ Virginia area, close to her relatives and her daily routine, over the stability of remaining primarily in her mother’s care, who was moving to Texas.
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..
of Mr. Garces’ residence, and for one week every other month without a location requirement. On appeal, Ms. Alt challenges the trial court’s adoption of the findings and recommendations by the magistrate and the dismissal of her exceptions.
The parties raise three questions for our review which we have rephrased as follows:1
1) Did the trial court err in dismissing Ms. Alt’s exceptions?
2) Did the trial court abuse its discretion in granting Mr. Garces primary physical custody?
3) Did the trial court abuse its discretion in granting joint legal custody with Mr. Garces having tie-breaking authority?
As explained below, we answer these questions in the negative and affirm the decision of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of a custody dispute between Ms. Katherine Alt, Appellant, and Mr. Hamilton Garces, Appellee. The parties were in a romantic relationship but never married, during which time they had one minor child, S., who was born in 2019. They broke up in 2020 and agreed to a shared custody agreement without a court order.
In 2023, Ms. Alt filed a complaint for custody in the Circuit Court for Dorchester County (“trial court”) because she was planning to relocate with S. to Texas. The complaint sought sole legal custody and shared physical custody under an arrangement whereby S. would fly back and forth from Texas to Maryland every two weeks. Mr. Garces filed a counterclaim and the parties appeared at a hearing before a trial magistrate who issued findings and recommendations. Ms. Alt filed exceptions to the findings and recommendations within the ten-day deadline. However, she did not properly order a transcript as required under the Maryland Rules until seventeen days later. Her exceptions were dismissed both due to her failure to order the trial transcript and because they did not state exceptions with particularity.
The trial court adopted the findings and recommendations of the magistrate. Joint legal custody was granted with Mr. Garces having tie-breaking authority. Primary physical custody was granted to Mr. Garces, with Ms. Alt having reasonable visitation for three weekends per month at a location within two hours
Ms. Alt filed a complaint for custody in the Circuit Court for Dorchester County on October 27, 2023. The complaint requested sole legal custody and primary physical custody with Mr. Garces allowed reasonable visitation. Mr. Garces filed a counterclaim for custody on October 27, 2023, requesting joint legal and joint physical custody. After Mr. Garces discovered that Ms. Alt planned to move to Texas with S., he amended his counterclaim to request sole legal custody and primary physical custody with reasonable visitation for Ms. Alt.
A. The Magistrate’s Findings and Recommendations
At a hearing held on June 12, 2024, the trial magistrate heard from Ms. Alt and Mr. Garces as well as Ms. Alt’s mother, Karen Alt, and Ms. Alt’s former employer, Joanne Brown. When the hearing concluded, the magistrate asked the parties to return the next day for a second hearing where she would place her findings and recommendations orally on the record. She concluded the second hearing by informing the parties about the process for filing exceptions.
The magistrate also issued written findings and recommendations which were filed with the court on July 17. The magistrate found the facts described below to be supported by a preponderance of the evidence.
Ms. Alt and Mr. Garces were never married and have one minor child. Born on October 11, 2019, S. was four years and eight months old at the time of the hearing. When S. was born, the parties resided together in Cambridge, Maryland. Ms. Alt
claims their relationship ended in the summer of 2020 and Mr. Garces claims it ended in December 2020. Either way, Mr. Garces remained living with Ms. Alt and S. for a few months before moving out.
Over the ensuing months, Mr. Garces moved a few times before settling in Annandale, Virginia, in 2022 with his girlfriend. When Mr. Garces first moved to Virginia, Ms. Alt “would not allow him to have parenting time with [S.] in his home in Virginia” because Ms. Alt “raised concerns about stability and a visit in another state to support such denial of parenting time in Virginia.” The magistrate considered these factors significant in light of Ms. Alt’s planned move to Texas.
Sometime after his move, Ms. Alt did allow Mr. Garces parenting time in Virginia, and the parties adopted a weekly schedule whereby Mr. Garces had S. from Tuesday at noon to Thursday afternoon; S.’s maternal grandmother, Karen Alt, had S. from Thursday afternoon to either Friday or Saturday; and Ms. Alt had S. from Friday or Saturday to Tuesday at noon. The parties followed this schedule for over two years. Mr. Garces described the system of care for S. as a “triangle.”
S. is in good health overall, but Ms. Alt testified that “she was concerned about repeated recent mild illnesses of [S.] and felt that the fact that [S.] spent four hours per week in a car for such transport may be playing a part in such repeated illnesses.” The magistrate noted that Ms. Alt’s concern about travel time is relevant to her best interest analysis in that it would be best “to avoid extended travel time due to her age.”
At the time of the hearing, Ms. Alt planned to move to San Benito, Texas, to live with her fiancé, Logan Jones. Ms. Alt met Mr. Jones online in September 2023, became engaged to him in January 2024, and as of the hearing, had plans to marry him in July 2024. Ms. Alt has visited Mr. Jones and testified that the trip takes a minimum of ten and one-half hours one-way from BWI and would cost approximately $1200 per month for one round trip for S. and two round trips for an accompanying parent. She also testified that she did not have the funds to cover the entire amount for these monthly trips. The court entered as an exhibit an unsigned sixth-month lease for an apartment in Texas that listed “Katherine Jones” and S. as occupants, but on which Ms. Alt was not listed as a tenant. When asked about the lease, Ms. Alt was unaware that she was listed with her soon-to-bemarried name, calling it a mistake, and unsure of why the lease was only for six months.
Ms. Alt testified that she would not be able to rely on Mr. Jones for childcare because of his demanding work schedule of five to six days a week from six a.m. to four p.m. Ms. Alt also testified that Mr. Jones had suggested they could live in Maryland together but that she decided it was best for her family to live in Texas and that she intended to become pregnant within the year and have multiple children with Mr. Jones.
Karen Alt testified that she believed “‘it would not be an improved situation’ for [S.] to move to Texas” and that S. “does not like to communicate over the phone or on an electronic device.” While Karen Alt also testified that she believed S. preferred to be with her mother, the magistrate noted that she did not consider this statement in her decision because of the
child’s young age.
Both Karen Alt and Mr. Garces testified that they believed they would be able to continue working together to care for S. In addition, the maternal grandfather of S. lives in Stevensville, Maryland, and Mr. Garces spends time with him and views him as a father figure. Other relatives of S. who live in proximity to Maryland include her paternal grandmother, grandfather, aunt, and uncles who all live in New Jersey. Mr. Garces takes S. to New Jersey to visit about twice a year. The record reflects that S. also has friends in Cambridge and Annandale.
In comparison, Ms. Alt has two cousins and an aunt and uncle in Texas who live about five to six hours from San Benito. S. has never met these relatives. There are no other family or friends in Texas on whom Ms. Alt could rely for childcare or support.
Ms. Alt has been educating S. since her early months. At the time of the hearing, when S. was four years and eight months old, Ms. Alt worked with S. daily on subjects such as reading, writing, math, and languages. Mr. Garces worked with S. on art and music. The magistrate found evidence of the parties’ willingness and ability to communicate in the parties’ weekly texts coordinating lesson plans for S. However, the magistrate also noted that the parties do not agree on S.’s future education. Ms. Alt wants S. to either be homeschooled or to attend private school while Mr. Garces wants S. to attend either public or private school.
Ms. Alt testified about options for private schooling in Texas, including a school connected to her fiancé’s work or a Montessori school close to her new home. However, she did not have clear information on the feasibility of these options including if S. was even able to attend or if they offered the dropin care Ms. Alt desired. Mr. Garces testified that S. could attend a public elementary school two blooks from his apartment when she reached school age in September 2025.
Mr. Garces served in the Marine Corp for four years including seven months in Afghanistan. He testified about his post-traumatic stress disorder (“PTSD”) diagnosis and that he has worked on his anger issues through therapy for one and one-half years. Ms. Alt testified that, during their relationship, Mr. Garces exhibited anger issues including punching holes in walls, screaming and cursing at her, and breaking her phone once when he found out she was in a relationship with someone else. Mr. Garces testified that they would yell back and forth at one another and that Ms. Alt had slapped him and told him to leave the residence which is when he complied and moved out. Ms. Alt is also concerned about Mr. Garces’ use of Ayahuasca2 at retreats, most recently in September 2023 and February 2024. The magistrate noted “[n]o evidence was presented that he had ever done so in the presence of [S.] or when [S.] is in his care.”
The court also heard testimony from Ms. Alt’s former employer, Joanne Brown, the owner of a store in Easton. While Ms. Alt testified that she left her position by mutual agreement, Ms. Brown testified that she fired Ms. Alt. Ms. Brown believed that Ms. Alt failed to properly deposit proceeds from online sales. In addition, she believed that Ms. Alt was improperly using the store address as a return address for Ms. Alt’s own business. The magistrate found Ms. Brown credible but noted
that it was “possible [Ms. Alt] interpreted her departure from employment as a mutual decision.”
After presenting her findings of facts, the magistrate applied the law regarding the effect of a child’s proposed relocation on custody including the Sanders-Taylor factors.3 In addressing the fitness of the parents, the magistrate stated:
I find that both parents provide appropriate care and there is no evidence that either of the parents is unfit.
I am not particularly concerned about the occasional use of psychedelics by [Mr. Garces] alleged by [Ms. Alt] since the testimony was any such use was on a retreat, with [S.] not present, and [Ms. Alt]’s own proposal is for [Mr. Garces] to have parenting time with [S.] 50% of the time, which undercuts the concerns alleged.
In addressing the factor concerning character and reputation of the parties, the magistrate explained:
I have concerns about [Ms. Alt]’s character and credibility. I found Ms. Brown’s testimony credible that she believed that Ms. Alt was responsible for items missing from her store and that [Ms. Alt] was using Ms. Brown’s address as a return address for “formulations” [Ms. Alt] mailed out. I did not find it credible that [Ms. Alt] accidentally put the wrong address on those packages. I also found [Ms. Alt]’s very vague responses to detailed questions about her business to be troubling, as well as her apparent lack of knowledge that her name was not on the Texas lease and that it was only for six months.
The magistrate then addressed the sincerity of the parties’ requests:
[Ms. Alt] is asking for joint legal and physical custody on a 2 week on and 2 week off schedule, with her accompanying [S.] to [Mr. Garces] and returning home and then coming back to [Mr. Garces]’ area and returning to her home in Texas with [S.]. [Mr. Garces] is asking for either sole legal custody or tie breaker authority and primary physical custody.
I am concerned as to the viability of [Ms. Alt]’s proposal, considering her past concerns as to [S.]’s illnesses being due to being in the car for 4 hours per week for visitation transport, the cost for air for for [sic] transportation for [S.] and someone to accompany her to be $1200 per month when the parents jointly earn $3000 ($2300 [Mr. Garces] disability income plus $700 [Ms. Alt]’s net business income), and her plan to immediately have children which will cause issues in allowing her to travel.
Also, it seems odd that [Ms. Alt] would not move into her fiancé’s home in Texas since he had lived there for at least a year and ½, that they would both move to a newly-rented furnished rental home in Texas with a six month lease rather than plan to have [Ms. Alt] and [S.]’s belongings transported to Texas and moved into a new residence. This adds to the concern about the viability and stability of a move to Texas by [Ms. Alt] and [S.].
In evaluating the factor concerning each parent’s ability to
maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest, the magistrate stated: Up to this point, it appears that both parties have cooperated in ensuring that [S.] has time with the other parent and extended relatives. However, I do not see how [S.] will be able to maintain relationships with [Mr. Garces] and the maternal grandmother, in particular, at the level currently in place if [S.] moves to Texas. For at least two years, [Mr. Garces] has had parenting time with [S.] for at least two nights per week and the maternal grandmother has had time with [S.] one or two days per week. For a child of this age, such regular, consistent and timely contact creates close relationships. Electronic communication is not an appropriate substitution for in-person communication, particularly with a Child of this age. For this particular case, the maternal grandmother’s testimony that [S.] is not very communicative on electronic communication, which I believe is typical of a Child of this age, further shows that there will be no way for [S.] to maintain such relationships with a move of this distance. A change to this extensive regular contact with [S.] and both parents and the grandparents would be detrimental to [S.].
Regarding the factor of the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare, the magistrate noted:
From the end of their relationship until recently, the parents have been communicating effectively and I believe co-parenting effectively. Co- parenting necessarily results in compromise. They may not have both agreed on every decision, but they appear generally to be able to resolve issues, as revealed by the schedule in place for the past two years which is developmentally appropriate for a child of this age.
Next, the magistrate considered the geographic proximity of the parents’ residences and opportunities for time with each parent:
In this case, [Mr. Garces] has a very close relationship and strong bonds with [S.]. He had close to equal time with [Ms. Alt], if you do not consider time with the maternal grandmother as time associated with [Ms. Alt]. [S.] has spent substantial periods of time with each parent. The close relatives of [S.], maternal and paternal, with whom [S.] had enjoyed close contact, reside driving distance from Cambridge and [Mr. Garces]’ residence in Virginia. It is not in [S.]’s best interests to have such significant travel time between the two residences and to change the schedule of contact with each parent from the current schedule. [Ms. Alt] could have chosen to agree with Mr. Jones that the two of them would need to live in Maryland when the [sic] married. She chose to agree to move to Texas with Mr. Jones. She is free to move, but [S.] should remain in an area where she has stability and close relationships with her Father and extended family.
In addressing the factor about the ability of each parent to maintain a stable and appropriate home for the child, the magistrate stated:
I believe that the situation before [Ms. Alt] moved to Texas, both parents were providing stable and appropriate homes. I have concerns about [Ms. Alt]’s Texas move. She does not have a community in Texas to support her. For the past two years, [S.] has been with [Mr. Garces] two nights per week and [her grandmother] 1-2 nights per week. There would be no such respite in Texas. Her own testimony is that her fiancé will be working and unable to provide substitute care. She presented no credible information as to any child care options in Texas. I am also concerned that the Texas move is not a long-term move, since there was no adequate explanation as to why [Ms. Alt] and her fiancé are moving to a furnished rental home under a six-month lease rather than to the home of her fiancé.
Of the remaining factors, the magistrate either offered a brief statement of consideration or noted them as not relevant to this case. Based on the analysis referenced above, the magistrate recommended that the parties have joint legal custody with Mr. Garces having tie-breaking authority, that Mr. Garces have primary physical custody, and that Ms. Alt have parenting time for two weeks in July, three weekends per month within two hours of Mr. Garces’ residence to avoid extended travel time for S., and one week every other month at a location chosen by Ms. Alt. In addition, Ms. Alt is responsible for all transportation of S. for her visitation.
B. Ms. Alt’s Exceptions
After delivering her decision orally, the magistrate noted that a written decision would follow but that June 13 was the date that the decision was issued for the purposes of filing exceptions. She also explained that exceptions should be filed within ten days. On June 22, 2024, Ms. Alt filed exceptions to the Magistrate’s Report and Recommendation. The substance of Ms. Alt’s exceptions is contained in the numbered paragraphs listed below:
5. That the Magistrate was clearly erroneous and abused her discretion when she held that it was in the minor child’s best interest to be in the primary care and custody of the Defendant.
6. That the Magistrate was clearly erroneous and abused her discretion when she held that the Plaintiff could only have access with the child while within an area close to the Defendant’s home in Virginia.
7. That the Magistrate was clearly erroneous and abused her discretion when she held that the minor child could not visit with the Plaintiff in Texas where the Plaintiff will be residing with her husband.
8. That the Magistrate was clearly erroneous and abused her discretion when she held that the Plaintiff should not retain primary custody of the minor child as she has had since the child’s birth.
9. That the Magistrate was clearly erroneous and abused her discretion when she made her findings of facts which were inconsistent with her previous findings on or about April 24, 2024 for the pendente lite report and recommendation, despite the same or similar facts were presented.
10. That the Magistrate was clearly erroneous and abused her discretion when she held that an admitted drug[-]using parent was to have primary custody of the minor child, despite there being no findings that the Plaintiff was unfit.
11. That the Magistrate was clearly erroneous and abused her discretion when she held that it was in the minor child’s best interest to be taken away from the Plaintiff when it was not shown that the Plaintiff was an unfit parent.
12. That the Magistrate was clearly erroneous and abused her discretion when she held that the Defendant had a fit and proper home when it was admitted that the minor child did not have her own room and that she was to sleep on the floor while at the Defendant’s home.
13. That the Magistrate was clearly erroneous and abused her discretion when she failed to properly apply the facts to law when determining that [it] is in the minor child’s best interest to not remain in the custody of the Plaintiff.
* * *
16. That with the filing of this request, the Plaintiff has requested the cost of the transcript for this matter by placing an order with the Clerk’s Office of this Court. On the same day, June 22, Ms. Alt requested from the Court the cost of the transcripts from the June 12-13 hearing but did not order the transcripts at this time. On June 25, the judicial assistant to the trial court judge informed Ms. Alt that she had received her transcript request, provided the price estimate of $1,500, and instructed her to send a money order so that the court recording and payment could be sent to the transcriber.
Mr. Garces filed a response to Ms. Alt’s exceptions on June 27 requesting the court deny the exceptions. On July 3, the circuit court issued an order stating: “Plaintiff must comply with Rule 9-208 and provide a transcript or an alternative within 30 days. [Set for hearing] on exceptions after 30 days; the hearing will be vacated prior if no transcript received or additional request made.” On July 10, Ms. Alt filed an opposition to Mr. Garces’ response which indicated that she had requested the cost of the transcript but had not received a transcript in time. She also stated that she did not have the funds for the $1,500 transcript until July 9, after which she sent a money order to the court for the full amount. In this July 10 motion, Ms. Alt requested that the court extend the time allowed for the receipt of the transcript. Ms. Alt also requested that the court give her leave to amend her exceptions should it find them deficient. The court responded to this motion on July 15 by stating:
The Court refers counsel to the Maryland rules governing exceptions. No reason has been given to extend the time in which to file a transcipt [sic].
No other relief sought. Exceptions have not been dismissed and a hearing will be scheduled should a transcript or a legally sufficient pleading be filed upon which the Court had a basis to extend the time frame.
Mr. Garces filed a motion to dismiss the exceptions on July 24, noting that the thirty- day deadline to file transcripts had passed on the previous day and that no transcript had been filed. The court reporter provided the transcript to the court on August 5. That was followed by Ms. Alt filing a motion in opposition to dismissal on August 6 indicating that the transcript was now available. On August 23, 2024, the trial court judge dismissed the exceptions with the following explanation:
Pursuant to Md. Rules 2-541(f)(2), the transcript shall be ordered at the time the exceptions are filed, and the transcript shall be filed within 30 days thereafter or within such longer time, not exceeding 60 days after the exceptions are filed. The court may extend the time for the filing of the transcript for good cause shown. The court may dismiss the exceptions of a party who has not complied with this section. Plaintiff filed Exceptions on 6/22. While Plaintiff claims she requested extension for the filing of the transcript, the record shows otherwise; Plaintiff never requested an extension. Furthermore, according to Md. Rule 2-541(f)(1), exceptions shall be in writing and shall set forth the asserted error with PARTICULARITY. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise. Plaintiff’s assertion that the magistrate was “clearly erroneous and abused her discretion,” coupled with a litany of comments does not comply with the particularity requirement. There is no way for the opposing party to even be on notice what Plaintiff claims.
Ms. Alt responded with a motion to reconsider the dismissal of the exceptions on August 25, 2024, which the court denied on September 3. The trial court judge issued the final custody order on September 16, adopting the recommendations of the magistrate.
Following the filing of the final order, Ms. Alt filed a motion to reconsider, or in the alternative a motion for a new trial on September 24. The trial court judge denied this motion on October 31 with this explanation: Plaintiff basically claims the late filing of transcripts was because the Clerk failed to schedule a hearing upon receipt of the transcripts despite the Court’s July 15 Order. The Exceptions were filed on June 22 and the Court issued an Order on July 15. Transcripts were filed late on August 5. Plaintiff claims that she requested an extension for the filing of the transcript, but she neither requested nor did the Court order an extension. Moreover, until August 22, Plaintiff failed to file a specific argument or specific grounds for the exceptions. Plaintiff did not comply with the rules related to exceptions. Exceptions were denied and this second Motion to Reconsider is denied.
Ms. Alt filed a timely appeal on November 1, 2024.
STANDARD OF REVIEW
The principal consideration in custody cases is the best interests of the child. Ross v. Hoffman, 280 Md. 172, 174 (1977). This standard is “firmly entrenched in Maryland and is deemed to be of transcendent importance.” Id. at 174-75; see Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019) (“Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.”). The best interests of a child may take precedence over a parent’s liberty interest should they be at odds. Boswell v. Boswell, 352 Md. 204, 219 (1998).
Maryland courts have established two sets of potential factors to consider before awarding custody. First, this Court’s decision in Montgomery County Department of Social Services v. Sanders provides ten non-exclusive factors for a trial court to consider when determining custody: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. 406, 420 (1977). A court should assess the totality of the circumstances and not narrow in on one specific factor. Id. at 420-21.
The second set of factors, from Taylor v. Taylor, outline specific considerations for awarding joint custody. 306 Md. 290, 304-11 (1986). Those factors are: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factor that reasonably relates to the issue. Id. These factors do not replace any considerations enumerated by Sanders or any other factors that a trial court might deem important to consider in custody evaluations. Id. at 303.
Appellate courts review child custody awards using three different standards. Davis v. Davis, 280 Md. 119, 125 (1977). First, factual findings are reviewed under a clearly erroneous standard. Id. at 125-26. Second, any errors as a matter of law will typically require further proceedings in the trial court . . . unless the error is determined to be harmless. Id. at 126.
Third, we review the ultimate conclusions in a custody determination under an abuse of discretion standard. Id. “There is an abuse of discretion where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.” Bord v. Baltimore County, 220 Md. App. 529, 566 (2014) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997)). To constitute an abuse of discretion, the conclusions must be
“well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md. App. 1, 14 (1994). An appellate court should not reverse simply because it would have made a different ruling. Id. Lastly, the reviewing court gives “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland Rule 8-131(c).
DISCUSSION
I. The trial court correctly denied Ms. Alt’s exceptions to the magistrate’s recommendations.
Maryland Rule 9-208 governs situations in which family law matters are heard by a magistrate. Upon referral of a matter, the magistrate is authorized to take testimony and to make a report to the court that includes a statement of the magistrate’s findings and a proposed order. O’Brien v. O’Brien, 367 Md. 547, 554 (2002). After a magistrate has heard a case, the parties may take exceptions to their findings and recommendations, thereby requesting that a judge review the exceptions and make an independent judgment.
Maryland Rule 9-208(f) on exceptions provides:
Within ten days after recommendations are placed on the record or served pursuant to subsection (e)(1)(B) of this Rule, a party may file exceptions with the clerk. Within that period or within ten days after service of the first exceptions, whichever is later, any other party may file exceptions. Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.
The rule also provides requirements for the excepting party: At the time the exceptions are filed, the excepting party shall do one of the following: (1) order a transcript of so much of the testimony as is necessary to rule on the exceptions, make an agreement for payment to ensure preparation of the transcript, and file a certificate of compliance stating that the transcript has been ordered and the agreement has been made; (2) file a certification that no transcript is necessary to rule on the exceptions; (3) file an agreed statement of facts in lieu of the transcript; or (4) file an affidavit of indigency and motion requesting that the court accept an electronic recording of the proceedings as the transcript. Within ten days after the entry of an order denying a motion under subsection (g)(4) of this Rule, the excepting party shall comply with subsection (g) (1) of this Rule. The transcript shall be filed within 30 days after compliance with subsection (g)(1) of this Rule or within such longer time, not exceeding 60 days after the exceptions are filed, as the magistrate may allow. For good cause shown, the court may shorten or extend the time for the filing of the transcript. The excepting party shall serve a copy of the transcript on the other party. The court may dismiss the exceptions
of a party who has not complied with this section.
Maryland Rule 9-208(g).
Ms. Alt argues that she correctly filed her exceptions within the ten-day deadline because the exceptions were pled with particularity and she “notified the Court that she had placed an order for [a] transcript with the Clerk of the Court.” Ms. Alt notes that in response to Mr. Garces’ opposition to her exceptions, she filed an Opposition to Defendant’s Response to Plaintiff’s Exceptions on July 10, 2024, attaching as exhibits proof of payment for the transcripts required in this matter.
The trial court judge was correct to deny Ms. Alt’s exceptions because she did not comply with the requirements laid out in Md. Rule 9-208(g) as she did not timely order a transcript when the exceptions were filed. Md. Rule 9-208(g) is clear that “[t] he court may dismiss the exceptions of a party who has not complied with this section.” Md. Rule 9- 208(g) requires that at the time the exceptions are filed, the excepting party order the transcript, make an agreement for payment, and complete a certificate of compliance stating that the transcript has been ordered and the agreement made. Counsel for Ms. Alt did none of these things at the time the exceptions were filed, but instead waited seventeen days and did not order the transcript until July 9. While counsel claims the transcript was ordered within the ten-day deadline to file exceptions, the record reflects that counsel merely requested the cost of the transcript at that time. The proof of payments provided on July 10 were from July 9, not from the date when the exceptions were filed. This delay in payment caused the preparation of the transcript to be delayed until August 5.
Rule 9-208 requires that “[t]he transcript shall be filed within 30 days after compliance with subsection (g)(1) of this Rule or within such longer time, not exceeding 60 days after the exceptions are filed, as the magistrate may allow.” Ms. Alt then contends that the trial judge should have granted her an extension to produce the transcript. On July 3, the trial judge advised counsel by a “ruling on exceptions” that compliance with Rule 9- 208 was required. On July 15, the trial judge again provided counsel with an Order that referred counsel to Rule 9-208 and stated “[n]o reason has been given to extend the time in which to file a transcipt [sic]. No other relief sought.” At this point, the judge also noted that “a hearing will be scheduled should a transcript or a legally sufficient pleading be filed upon which the Court had a basis to extend the time frame.” In the order to dismiss exceptions filed on August 23, the trial court noted, “[w]hile [Ms. Alt] claims she requested extension for the filing of the transcript, the record shows otherwise; [Ms. Alt] never requested an extension.” Therefore, it was within the judge’s discretion to refuse to grant an extension and to dismiss the exceptions because Ms. Alt did not comply with the rule to order the transcript when she filed her exceptions.
The trial judge also denied Ms. Alt’s exceptions on the grounds that they lacked specific detail and particularity. In Lemley v. Lemley, 102 Md. App. 266 (1994), the Appellate Court interpreted the particularity language in the rules regarding exceptions.4 This court explained: “If the court is reasonably able to rule on the exception, and the opposing party is reasonably able to frame a response, then the exception is
sufficiently ‘particular’ to satisfy the requirements of the Rule.” Id. at 276. See also James v. James, 96 Md. App. 439, 449 (1993) (abrogated on other grounds) (explaining that at least one exception was “specific enough to afford [the] appellant sufficient notice to respond and provided the degree of particularity required by law to allow the chancellor to review the findings of the master”).
While Ms. Alt’s exceptions are not exceedingly specific, we do not agree that they were so vague as to render a court unable to rule on them or Mr. Garces unable to respond. She mentions specific facts in at least two exceptions that she felt should have disallowed Mr. Garces from being granted custody. These two exceptions read: “[t]hat the Magistrate was clearly erroneous and abused her discretion when she held that an admitted drug[-] using parent was to have primary custody of the minor child, despite there being no findings that the Plaintiff was unfit” and “[t]hat the Magistrate was clearly erroneous and abused her discretion when she held that the Defendant had a fit and proper home when it was admitted that the minor child did not have her own room and that she was to sleep on the floor while at the Defendant’s home.” It is clear enough from these exceptions that Ms. Alt was arguing that the magistrate incorrectly weighed the factors in establishing custody. Regardless, the trial judge properly dismissed the exceptions for Ms. Alt’s failure to order the transcript when she filed the exceptions.
Mr. Garces argues that if we affirm the circuit court’s denial of the exceptions, we cannot reach the merits of the custody issues here. “A party’s failure to timely file exceptions forfeits ‘any claim that the master’s findings of fact were clearly erroneous.’” Barrett v. Barrett, 240 Md. App. 581, 587 (2019) (quoting Miller v. Bosley, 113 Md. App. 381 (1997)). “The party may still, however, challenge the court’s ‘adoption of the [magistrate’s] application of the law to the facts.’” Barrett, 240 Md. App. at 587 (quoting Green v. Green, 188 Md. App. 661, 674 (2009)).
In response, Ms. Alt argues that “the Trial Court was clearly erroneous and abused its discretion in granting [Mr. Garces] primary physical custody / parenting time of the parties[’] minor child when the testimony heard by the Magistrate supported that the Court follow the Appellant’s request to have primary physical custody of the minor child . . .” Because Ms. Alt did not timely file a transcript and never properly filed a request for an extension, her exceptions were properly dismissed, and we will not review the factual findings of the magistrate for clear error. We limit our review of the merits of this case to whether the magistrate’s application of the law to the facts was properly adopted by the trial court.
II. The trial court did not err in granting Mr. Garces primary physical custody.
Ms. Alt alleges that the trial court abused its discretion in granting Mr. Garces primary physical custody. She argues that the magistrate improperly focused on her relocation to Texas instead of properly evaluating the Sanders factors. In her view, the magistrate did not give enough weight to Mr. Garces’ Ayahuasca use, anger issues, or mental health issues, as well as
the fact that Ms. Alt had been the primary caregiver for S. since birth. She also argues the magistrate was too concerned with Ms. Alt’s alleged theft from her previous employer when there were no charges brought against her and was too focused on the magistrate’s own opinion that travel back and forth from Texas to Maryland would be detrimental to S.
Ms. Alt primarily contends that her move to Texas is not a proper reason to grant Mr. Garces primary physical custody. She cites to Jordan v. Jordan, 50 Md. App. 437, 447 (1982), for the proposition that “[r]elocating as a result of remarriage, employment, and the like cannot of itself render a parent to whom custody has been granted unfit.” Ms. Alt’s reliance on this case is misplaced as this case has been overruled by Domingues v. Johnson, 323 Md. 486 (1991). In overruling Jordan, the Supreme Court of Maryland held that a mother’s move to Texas might constitute a change in circumstance sufficient to justify a change in custody and explained:
Continued custody in the mother, the primary caretaker in fact, certainly offers an important form of stability in the children’s lives. However, permitting the children to remain in an area where they have always lived, where they may continue their association with their friends, and where they may maintain frequent contact with their extended family, also provides a form of stability.
Id. at 502-03.
Ms. Alt further argues that she should remain S.’s primary guardian to provide stability to S. She cites to Levitt v. Levitt, 79 Md. App. 394, 397-98 (1989), quoting Sartoph v. Sartoph, 31 Md. App. 58 (1976) (repudiated on other grounds), for the following: The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not of the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interest.
It is important to distinguish that the cases mentioned above and relied upon by Ms. Alt are custody reconsideration cases. The current situation is not a change of custody case because there had never been an initial custody order issued. In Levitt, this Court stated:
“We are dealing here not with an original award of custody, but with a change of custody. They are quite different situations. They should be different, recognizing the importance of the child’s need for continuity.” Levitt, 79 Md. App. at 397. In a change of custody case, a trial court must first determine if there has been a material change in circumstances that warrant a change in custody. However, in an initial custody determination, this is not required. See Wagner v. Wagner, 109 Md. App. 1, 28 (1996).
The trial court recognized that a status quo was established between the parents that will necessarily be disturbed by Ms.
Alt’s move to Texas. The parties operated under an informal joint custody arrangement since they broke up, about four years ago, with Ms. Alt having primary physical custody three to four days a week, Mr. Garces having custody two days a week, and S.’s maternal grandmother caring for S. on the remaining one or two days. The Supreme Court in Domingues discussed the bases for the principle that an existing custody order ordinarily should not be modified in the absence of a showing of changes affecting the welfare of the children. These bases are: “preventing relitigating of the same issue and, the preservation of stability in custody cases.” Domingues, 323 Md. at 498 (citing McCready v. McCready, 323 Md. 476 (1991). While relitigating issues is not a concern here, the preservation of stability for S. is an important consideration, despite there not being an original custody order in this case.
However, we cannot say that the trial court was incorrect to favor the stability of S. staying in the Maryland/Virginia area, close to her relatives and her daily routine, over the stability of remaining primarily in her mother’s care. Ms. Alt did formerly have S. for more nights of the week than Mr. Garces did. However, S. also spent a substantial amount of time with Mr. Garces and her maternal grandmother. Her routine consisted of rotating between the care of all three.
Insofar as Ms. Alt argues that the trial court was improperly focused on her relocation as opposed to the Sanders factors, this is not supported by the magistrates’ recommendations. Rather, the magistrate considered the effects of Ms. Alt’s relocation within the Sanders factors and weighed them accordingly. The magistrate considered the relocation when discussing the sincerity of the parents’ requests by noting:
I am concerned as to the viability of [Ms. Alt]’s proposal, considering her past concerns as to [S.]’s illnesses being due to being in the car for 4 hours per week for visitation transport, the cost for air[fare] . . . and her plan to immediately have children which will cause issues in allowing her to travel.
In discussing each parent’s ability to maintain the child’s relationships with the other parent and relatives, the magistrate stated:
I do not see how [S.] will be able to maintain relationships with [Mr. Garces] and the maternal grandmother, in particular, at the level currently in place if [S.] moves to Texas . . . A change to this extensive regular contact with [S.] and both parents and the grandparents would be detrimental to [S.].
The magistrate also considered the move under the geographic proximity of the parents’ residences and opportunities for time with each parent:
It is not in [S.]’s best interests to have such significant travel time between the two residences and to change the schedule of contact with each parent from the current schedule.
[Ms. Alt] could have chosen to agree with Mr. Jones that the two of them would need to live in Maryland when the [sic] married. She chose to agree to move to Texas with Mr. Jones. She is free to move, but [S.] should remain in an area where she has stability and
close relationships with her Father and extended family.
Under this factor, the magistrate also noted: “[Mr. Garces] had close to equal time with [Ms. Alt], if you do not consider time with the maternal grandmother as time associated with [Ms. Alt]. [S.] has spent substantial periods of time with each parent.” Contrary to Ms. Alt’s argument, the magistrate did consider the current division of time between the parents but did not come to the same conclusion that stability required granting Ms. Alt primary physical custody.
Lastly, concerning the ability of each parent to maintain a stable and appropriate home for the child, the magistrate noted: I have concerns about [Ms. Alt]’s Texas move. She does not have a community in Texas to support her. For the past two years, [S.] has been with [Mr. Garces] two nights per week and [her grandmother] 1-2 nights per week. There would be no such respite in Texas. Her own testimony is that her fiancé will be working and unable to provide substitute care. She presented no credible information as to any child care options in Texas. I am also concerned that the Texas move is not a long-term move, since there was no adequate explanation as to why [Ms. Alt] and her fiancé are moving to a furnished rental home under a six-month lease rather than to the home of her fiancé.
The magistrate here carefully considered the Sander-Taylors factors and concluded that traveling back and forth to Texas every month was not in the best interest of the child. Ms. Alt is incorrect that the magistrate merely focused on her own opinion that the travel back and forth would be detrimental to the child. The reasons outlined above—most notably the separation from her father and extended family, the lack of support and childcare in Texas, the significant travel time, Ms. Alt’s concern that S.’s illnesses were linked to extensive travel, and the parties’ inability to afford the airfare—all support the magistrate’s conclusion that Ms. Alt’s proposed schedule was infeasible and would be detrimental to S.
Ms. Alt claims that “[a]bsent [her] going to Texas there are no other factors which would prevent the Court from granting [her] primary custody . . . while there are plenty of factors which would prevent [Mr. Garces] from having primary custody.” To the contrary, Ms. Alt’s move to Texas touches on many of the Sander-Taylor factors, as shown by the magistrate’s thorough analysis. We cannot say it was an abuse of discretion to consider Ms. Alt’s relocation through the lens of these factors.
Ms. Alt alleges that the magistrate failed to give adequate weight to the concerns that she raised over granting Mr. Garces primary custody including: Mr. Garces’ occasional use of Ayahuasca, his anger and mental health issues, and adherence to the previous schedule maintained by the parties. We cannot say that the trial court was incorrect in adopting the magistrate’s analysis of these specific facts.
Regarding Mr. Garces’ use of Ayahuasca, there is evidence in the record through Mr. Garces’ own testimony that he has taken Ayahuasca twice in the past few years and never in the presence of S. Ms. Alt does not refute these findings, but rather contends that this should weigh against Mr. Garces receiving
primary custody. The magistrate noted that she was “not particularly concerned with the occasional use of psychedelics by the Father as alleged by the Mother since the testimony was any such use was on a retreat, with the Child not present.” Furthermore, the magistrate noted, Ms. Alt’s own proposal for custody provided for S. to be with Mr. Garces fifty percent of the time. The magistrate felt Ms. Alt’s willingness to have S. in Mr. Garces’ care fifty percent of the time undercut her supposed concern over his rare use of psychedelic drugs. We cannot say that the trial court abused its discretion in finding Mr. Garces a fit parent despite the occasional psychedelic drug use and agree that Ms. Alt’s willingness to propose a fifty/fifty custody plan highlights an insincerity in her concern over his infrequent drug use.
Ms. Alt also argues that Mr. Garces’ anger issues and mental health struggles should prevent him from having primary physical custody of S. Mr. Garces testified that he has been diagnosed with PTSD resulting from his military service. He also testified that he has been in therapy for one and one-half years. The magistrate noted testimony that Mr. Garces had punched holes in walls and screamed and cursed at Ms. Alt. The magistrate also noted that there was testimony that the parties would yell back and forth and that Ms. Alt had slapped Mr. Garces and told him to leave their residence, with which he complied. Insofar as there is evidence of anger on both sides, evidence that Mr. Garces is in therapy for his mental health issues, and no evidence of what impact this may have had on S., we cannot say it was an abuse of discretion to grant Mr. Garces custody.
Ms. Alt also raises concerns over the magistrate’s treatment of issues with her former employer. The magistrate, in considering the character and reputation of the parties, noted: I have concerns about [Ms. Alt]’s character and credibility. I found Ms. Brown’s testimony credible that she believed that Ms. Alt was responsible for items missing from her store and that [Ms. Alt] was using Ms. Brown’s address as a return address for “formulations” [Ms. Alt] mailed out. I did not find it credible that [Ms. Alt] accidentally put the wrong address on those packages.
Ms. Alt contends that these issues were minor as there were no charges brought against her. The magistrate considered the witness testimony as bearing upon Ms. Alt’s character and credibility regardless of whether any charges were brought. This court must “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). The magistrate found the testimony of Ms. Brown credible and explained the rationale of the analysis.
Overall, the trial court did not abuse its discretion in adopting the recommendations of the magistrate on physical custody. The magistrate thoroughly considered the relevant Sanders-Taylor factors and came to a rational and feasible physical custody schedule given the physical distance between the parties after Ms. Alt’s relocation.
III. The trial court did not err in granting Mr. Garces tie-breaking authority.
Ms. Alt argues that the trial court abused its discretion in granting Mr. Garces tie- breaking authority when the only issues in the parties’ abilities to make joint decisions arose after the filing of the current custody dispute. Ms. Alt seemingly takes issue with the use of tie-breaking authority at all, given the parties’ prior ability to communicate and reach shared decisions. She does not argue that she should have been given tie-breaking authority instead of Mr. Garces, but rather, that the trial court was incorrect to give tie-breaking authority to either party. Ms. Alt claims that tie-breaking authority “does not meet the requirements of Taylor as it places greater emphasis on [Mr. Garces] being able to make legal custody decisions should the parties reach [an] impasse in making such decisions.”
The Supreme Court considered the issue of whether tiebreaking authority conforms with the requirements of Taylor in Santo v. Santo, 448 Md. 620 (2016). As recognized in Santo, “the Taylor Court defined joint legal custody as ‘both parents hav[ing] an equal voice in making [long range] decisions [of major significance concerning the child’s life and welfare], and neither parent’s rights [being] superior to the other.” Id. at 632 (quoting Taylor, 306 Md. at 296). The Santo Court rejected the idea that tie-breaking authority does not comport with Taylor’s definition of joint custody “[b]ecause this arrangement requires both parties to attempt to make decisions together” and “require[s] that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children.” Id. at 633-34.
Ms. Alt attempts to distinguish Santo because Ms. Alt and Mr. Garces have been able to make joint decisions in the past, whereas in Santo, the parties were unable to communicate and make joint decisions. This distinction from Santo is irrelevant in two respects. First, Ms. Alt’s contention that the parties “have acted together, from the birth of the minor child to the filing of this matter, in making decisions regarding the health, education, welfare, and religion issues related to the minor child,” is not fully supported by evidence in the record. While the parties certainly were able to reach shared decisions on certain issues in the past, there were also issues which Ms. Alt unilaterally decided, such as her decision to deny Mr. Garces parenting time at his home immediately after his move to Virginia. Also, the parties currently do not agree on future education plans for S. or even on decisions regarding religious training for S.
Second, insofar as the magistrate did note that “[f]rom the end of their relationship until recently, the parents have been communicating effectively and I believe co-parenting effectively,” there is no requirement that the parties’ inability to communicate predate the filing of the custody dispute. Rather, Santo emphasizes, that “[f]or us now to constrain trial courts in fashioning awards in the best interests of the child . . . would be plainly inconsistent with our recognition in Taylor that such courts have ‘broad and inherent power’ as equity courts ‘to deal fully and completely with matters of child custody.’” Santo, 448 Md. at 636-37 (quoting Taylor, 306 Md. at 301). The custody arrangement reached here takes into account the parties’ ability to communicate in the past while giving Mr. Garces flexibility to decide issues in the event of an impasse given the parties’ more recent disagreements and potential difficulties that may arise in
light of the parties’ new geographic distance apart. We will not constrain the trial court’s ability to fashion an award in the best interest of the child, as has been accomplished here.
CONCLUSION
The trial court correctly denied Ms. Alt’s exceptions because she did not order a transcript at the time she filed her exceptions, in violation of Md. Rule 9-208, and the record shows that a request for an extension was never properly filed. The trial court did not err in adopting the magistrate’s recommendation that Mr. Garces have primary physical custody. The magistrate
thoroughly analyzed the Sanders-Taylor factors to conclude that it was in the best interest of S. to remain primarily in Maryland and Virginia where she can most closely continue her daily routine and family relationships. Lastly, the trial court did not abuse its discretion to adopt the magistrate’s recommendation that the parties have joint legal custody with Mr. Garces having tie-breaking authority. Trial courts have broad authority to fashion custody awards, and neither Taylor nor Santo preclude an award of tie- breaking authority where the parties’ disagreements stem primarily from after the filing of their custody dispute.
JUDGMENT OF THE CIRCUIT COURT OF DORCHESTER COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Ms. Alt presented the questions as follows:
1) Was the Trial Court clearly erroneous and committed an abuse of its discretion in dismissing the Appellant’s exceptions?
2) Was the Trial Court clearly erroneous and committed an abuse of its discretion in granting the Appellee primary physical custody parenting time of the parties’ minor child?
3) Was the Trial Court clearly erroneous and committed an abuse of its discretion when granting the Appellee tie breaking authority regarding legal custody?
Mr. Garces presented the questions as follows:
1) Did the trial court have authority to dismiss the Appellant’s exceptions?
2) Was the trial court’s decision to grant Appellee primary physical custody/parenting time of the minor child appropriate?
3) Was the trial court’s decision to grant Appellee tiebreaking authority regarding legal custody of the minor child appropriate?
2 Ayahuasca is a psychoactive beverage containing dimethyltryptamine that produces hallucinations and euphoria and is used chiefly for religious, ritualistic, and medicinal purposes. ALCOHOL AND DRUG FOUNDATION, https:// adf.org.au/drug-facts/ayahuasca/ (last visited June 6, 2025); AMERICAN PSYCHOLOGICAL ASSOCIATION,
https://dictionary.apa.org/ayahuasca (last visited June 6, 2025); MERRIAM-WEBSTER, https://www.merriam-webster. com/dictionary/ayahuasca (last visited June 6, 2025).
3 These factors, collectively termed the Sanders-Taylor factors, are discussed in more detail infra. In short, they are a non-exclusive list of factors which trial courts should consider when determining the best interests of a child pursuant to a custody determination. See Montgomery Cnty. Dep’t of Soc. Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986). In the 2025 Session of the Maryland General Assembly, child custody factors were codified for the first time in Maryland in Senate Bill 548, Chapter 484. While these statutory factors are not applicable in this case, they will be effective as of October 1, 2025, and will thereafter be found in Family Law Article 9-201.
4 Lemley v. Lemley discusses the particularity language of Rule S74A(d). This section has been superseded by identical language in Rule 9-208(f) at issue here. See FADER’S MARYLAND FAMILY LAW 16-3 (Cynthia Callahan & Thomas C. Ries eds., 7th ed. 2021) (“There are numerous references in case decisions to the former ‘S’ rules. The Rules presently in Title 9, Chapter 200 were formerly known as the ‘S’ rules as part of the Maryland Rules of Procedure. Effective 1/1/1997, the transfer was made from ‘S’ to what appears in Title 9, Chapter 200.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s granting of primary physical custody of the minor child to mother. The court’s factual findings were not clearly erroneous, and its custody and visitation award was not a clear abuse of its discretion as it was made in the child’s best interest.
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..
Agreement (“Parenting Plan”). Under the Parenting Plan, which was incorporated but not merged into the Judgment of Absolute Divorce entered in the Circuit Court for Montgomery County, Mother and Father agreed to share physical and legal custody of K, with Father having tie- breaking authority on K’s religious upbringing.3 The parents specifically agreed to a twoweek alternating schedule of physical custody, where the child would live with one parent for two weeks and then the other parent for two weeks. Mother and Father both “agree[d] to maintain this residency arrangement until [K] reaches the age of 12, whereupon the parents may reconsider this arrangement in accordance with the best interests of [K].” They also agreed to live in Montgomery County but “[i]f either parent intends to move from Montgomery County, Maryland, both parents shall meet as far in advance of the move as possible, at least 60 days in advance, and attempt to arrange a plan for [K’s] residence that maintains the agreed-upon time-sharing to the maximum feasible extent.” Aside from living arrangements, the Parenting Plan specified Father would cover K’s health insurance. The Parenting Plan did not address child support.
This case arises from custody litigation between appellant Malick Joof (“Father”) and appellee Aranea Joof (“Mother”) regarding their minor child, K.1 Mother and Father originally shared legal and physical custody, but in August 2023, Mother filed a Complaint for Modification of Custody, Access, and Child Support. After a trial in the Circuit Court for Montgomery County, the court granted Mother primary physical custody of K and ordered Father to pay $1,011 per month in child support. Father then filed this timely appeal. He submits two questions for our review, which we rephrase:2
1. Did the circuit court err in awarding Mother primary physical custody?
2. Did the circuit court err in its determination of the child support award?
For the following reasons, we answer both questions in the negative and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of K, born in September 2020. Mother and Father divorced in March 2022. While in the process of divorcing, they entered into a Marital Settlement Agreement and Joint Supplemental Parenting Plan Tool/
In April 2022, shortly after Mother and Father divorced, Father interviewed for a position with New York City Health and Hospitals. In October 2022, while still living in Maryland, Father began working for New York City Health and Hospitals. Until early November, Father commuted from Maryland to New York for work. But in November 2022, Father moved to New Jersey. At that time, Mother did not have a driver’s license or a car, and she could not afford to pay for daycare on her own. Mother and Father accordingly agreed K would reside in New Jersey with Father Wednesday evening through Monday and with Mother’s sister and family members who live in New York Monday through Wednesday evening. Mother would see the child every other weekend. Both Mother and Father agreed this arrangement was temporary.
Father told Mother his health insurance through New York City Health and Hospitals would not cover K in Maryland. This led to Mother obtaining insurance for K so that K’s health care in Maryland was not interrupted.
In June 2023, Father remarried. When Father moved to New Jersey in 2022, his current wife lived in that area. In July 2023, Father asked Mother to watch K so he could go on a trip, but he did not tell Mother it was for his honeymoon. At that time, Mother did not know Father got married. Regardless, Mother accepted. When Father returned in August 2023, Mother did not allow Father to pick up K without knowing when he would return the child, and Father was unwilling to provide a return date. Additionally, another source of contention was that both
parties claimed they did not have the other’s address. Mother expressed a desire to recommence the two-week custody arrangement from the Parenting Plan, but her request went unresolved because neither party would tell the other where they currently lived.
With all of this as a backdrop, Mother filed a Complaint for Modification of Child Custody, Access, and Child Support (“Complaint”). Mother alleged Father refused to follow the physical custody arrangement in the Parenting Plan. She claimed it would be in K’s best interest for her to have primary physical custody—still sharing legal custody with Father, but with Mother having tie-breaking authority—and receive child support.
After filing her Complaint, the parties continued to bicker about access. Because Father had not seen the child since July, he filed an “Emergency Motion to Compel Access to the Minor Child and [Mother] to Release the Minor Child, and Request for Emergency Hearing” on October 17, 2023 (“Emergency Motion”). Specifically, Father alleged Mother refused to return K and repeatedly denied Father access to him “[s]ince she forcefully took” K in July 2023. Father requested Mother release K to his custody pending the court’s determination of Mother’s Complaint.
The Circuit Court for Montgomery County held an emergency hearing on October 19, ordering Mother to make K available for pickup by Father on October 21 and resume the two-week on/off physical custody arrangement. In February 2024, Father filed a Counterclaim for Modification of Custody, Access, and Child Support (“Counterclaim”). He requested sole legal and physical custody of K, as well as child support.
In April 2024, Mother remarried. At Father’s request, Father briefly met Mother’s new husband as Mother and Father exchanged custody of K. As of December 2024, however, Mother has not met Father’s new wife or Father’s newborn son.
Circuit Court Hearing
On October 16 and 17, 2024, the circuit court held a hearing on Mother’s Complaint and Father’s Counterclaim regarding custody and child support. We briefly discuss testimony relevant to this appeal. Father testified on direct examination about his 2022 employment search, primarily looking for opportunities in New York. In response to questions from the court, Father said he looked for employment in Maryland. Then, on redirect following a break, Father said he looked extensively for employment in the Washington Metropolitan area.
Father testified his relationship with his now-wife was not one of the reasons he moved to New Jersey. On direct examination, Father said he relocated because of employment and his desire to get his Master of Laws degree in New York. He explained the school he now attends, Cardozo School of Law, is the only one in the country offering the securities arbitration program he wanted to study. On redirect, he testified he moved to New Jersey because Mother had family there and K could be close to them, among other reasons.
Mother testified she and Father agreed that K would return to Mother’s physical custody when the child turned three in September 2023. Father, however, disputed this. Mother’s
Exhibit 18 included text messages between Mother and Father from May 2023. Mother texted: “I’ll take [K] but it will take some time for me to found [sic] a daycare near me. I’ll take him no later than September.” Father responded, in part: “I’ll take him then when he finishes an age group at daycare. If he starts at 3 years old then I’ll take him when he turns 4 years Also, he can’t be on my insurance in MD. So that needs to be switched if he goes to MD.” At the hearing, Father testified he did not recall what the text exchange was about except making daycare arrangements.
Mother also testified about K’s dental health and how the child would complain about his teeth hurting, causing difficulty eating. Father testified he did not notice any issues with K’s teeth between November 2022 and July 2023. However, a dentist installed crowns on some of K’s teeth in February 2024.
Mother and Father both testified about perceived difficulties during pick-up and drop-off. Mother testified K cries when leaving her to go with Father but does not cry when returning to Mother. Mother’s current husband also testified that he saw the child “screaming and kicking” during an exchange from Mother to Father. Father testified this is because the pick-ups from Mother to Father are at a park, and K wants to stay at the park, while pick-ups from Father to Mother are not at a park.
Circuit Court Memorandum Opinion and Order
On December 2, 2024, the circuit court issued a 16-page memorandum opinion and order awarding Mother primary physical custody and joint legal custody of K, with Father retaining tie-breaking authority on the issue of the child’s religion. The court granted Father access to K during certain three-day weekends, as well as five consecutive weeks over the summer months. The court additionally ordered the parties alternate Labor Day weekend. Father also received access during alternate spring breaks and Thanksgiving breaks. The court alternated which parent had custody of K during the winter break. Additionally, the court granted Father custody of K for two days on Eid-ul Fitr and three days on Eid ul- Adha.
In its memorandum opinion, the circuit court first determined there was a material change in circumstances due to Father moving to New Jersey, “making it difficult to continue the alternating 2-week schedule, and impossible moving forward, as [K] will be going to school soon and needs to reside primarily in one place.”
The court then considered fourteen factors in making its custody determination: (1) fitness of the parents; (2) who was the primary caregiver; (3) character and reputation of the parents; (4) previous agreements; (5) ability of the parents to maintain family relationships; (6) K’s preference; (7) material opportunity affecting K’s life; (8) K’s age, health, and gender; (9) residences of the parents and opportunity for visitation; (10) parents’ work schedules; (11) parents’ length of separation from K; (12) any prior abandonment or surrender of custody of K; (13) parents’ relationship with K; and (14) parents’ ability to communicate.
The court first found both parents fit, notwithstanding the court’s finding that “[t]he parties have not always acted in [K’s] best interest.” The court also found Mother and Father shared
equal access to K at the time the court authored its opinion.
As to character and reputation, the court found Father lacked credibility for numerous reasons. Specifically, the court did not “credit [Father’s] testimony that he looked [for employment] extensively in Maryland.” The court also opined there was no reason for Father to file his Emergency Motion and “when [he] did, he was not entirely honest.” The court additionally did not “credit the testimony that [Father] did not know what the Def[endant] Exh[ibit] 18 text exchange was about when it is apparent the exchange supports [Mother’s] claim that the parties agreed [K] would be returned at age 3.” Further, the court did not credit Father’s “assertion that he had not considered that the woman he was seriously dating lived in the area when he relocated to New Jersey.” While the court found Mother more credible, it also addressed some of her “fault[s],” such as not prioritizing K’s relationship with Father.
In addressing previous agreements, the court stated:
The parties had an agreement that [K] would stay in Maryland. [Father] thereafter relocated and left [Mother] without sufficient resources to care for [K] on her own. The parties had an agreement that [K] would come back to Maryland at age 3, and [Father] reneged on that agreement once he settled in New Jersey with his new mate, his new job, [his] new school, and his new life.
The court explained it was “without evidence that either party would interfere with family relationships.” It also noted it did not have evidence of K’s preference besides K’s difficulty transitioning away from Mother when Mother returned K to Father’s custody.
The court, in discussing material opportunity affecting K’s life, briefly addressed how K “will have resources whichever place he resides.” And in its discussion of K’s age, health, and gender, the court expressed its concern that Father “contends there was no evidence of dental problems when, once [Mother] sought care for the child, [K] had to have a crown.”
Addressing the residences of parents and opportunity for visitation factor, the court found it “not ideal” for K to travel between Maryland and New Jersey two or three times per month. And in discussing Mother’s and Father’s work schedule, the court found:
Both parents are employed, and both have schedules and assistance at home that would allow them to care for [K]. [Father] works from the office three days a week. He worked from 8:30 a.m. to 4:30 p.m. and is an hour away from his job. [Father’s] spouse is available to help with [K] if needed. [Father] is home two days a week. [Mother] leaves for work between 6 and 6:30 a.m. and gets off around 3:30 p.m. [Mother’s] spouse takes [K] to school and [Mother] picks up.
The court went on to find neither parent voluntarily separated from K as Mother allowed K to go to New Jersey with Father temporarily from November 2022 to July 2023. The court additionally found there was no prior abandonment or surrender of custody as the temporary agreement from November 2022 to July 2023 was not abandonment but rather
“an arrangement made necessary when [Father] left the state of Maryland.” The court further found both parents have a good relationship with the child.
The court lastly addressed Mother and Father’s ability to communicate. Although they contended they cannot communicate, and the court observed evidence of unfriendly communication and even non-responsiveness, the court found Mother and Father “have shown immaturity but have not shown an inability to work together for [K’s] sake.” The court found most of Mother and Father’s difficulty communicating was situational, and [t]here is a big difference between fighting over custody of [K] after there was a significant change in life plans, and consequently, a change in the agreement the parties had, and fighting over his health, education, religion, and other important legal custody decisions on a regular basis. There is no indication the parties are fighting over those major decisions, or that they would be unable to come to agreement moving forward.
After addressing the 14 factors, the court explained its reasoning for granting Mother primary physical custody of K: The court finds it is in [K’s] best interest for [Mother] to have primary residential custody. [K] has lived in Maryland his entire life except for the brief break when [Father] moved to New Jersey. The parties’ agreement stated an intention for [K] to remain here. Both parties can care for the child when he is in their custody. [Mother] has a schedule that allows for her to retrieve [K] and stay with him after school or day care. [K] is bonded to [Mother] and is upset when he is separated from her. [K’s] aunt, who was [K’s] caregiver in New York, has moved here, which, by [Mother’s] credible testimony, was the plan when the parties temporarily agreed for [K] to go with his dad to New Jersey. [Father] has a new baby, a new job, will be studying for the bar exam, and while there is no doubt he will spend as much time with [K] as he can, [Mother] will be well equipped to give [K] the time and attention he needs and deserves.
Because Mother was awarded primary physical custody, and Father was not living in Maryland as of December 2024 when the court authored its memorandum opinion, the court ordered Mother to continue covering K on her health insurance plan. The court additionally awarded Mother child support, ordering Father to pay $1,011 per month.
After the court issued its order and memorandum opinion, Father filed this timely appeal. We will add additional facts when necessary.
DISCUSSION
I. The Circuit Court Did Not Err in Awarding Mother Primary Physical Custody.
A. Parties’ Contentions
Father contends the circuit court erred in awarding Mother primary physical custody of K. Specifically, Father alleges the court made three errors in its custody determination. First,
Father argues the court erred in finding Father lacked credibility because factual findings underlying the court’s credibility determination are not supported by the record. Father also challenged the veracity of Mother and her new husband’s testimony, and the court crediting such testimony.
Second, Father argues the court erred in its analysis of K’s best interest. Father goes through 12 of the 14 factors the court discussed in its memorandum opinion,4 challenging the court’s findings as to each factor and/or facts underlying the court’s findings.
Finally, Father argues the court erred in setting Father’s visitation schedule regarding religious holidays because it is not in K’s best interest. Specifically, Father challenges the court’s schedule for winter break, arguing K celebrating Christmas is “contrary to [K’s] religious practices, even though the [circuit] court did not disturb the parties’ agreement to raise [K] a Muslim.” Father also takes issue with the court awarding him custody of K for “a mere two days” on Eid-ul Fitr and three days on Eid ul-Adha, arguing K will miss important aspects of the holiday because Father’s access “commence[s] after school on the first day, or if on the weekend, at 11 a.m.”
Mother contends the court did not err in awarding Mother primary physical custody of K. First, she argues numerous facts in the record support the court’s finding that Father was not credible. Aside from those facts, Mother also alleges Father’s testimony on other topics was not credible, such as his testimony that he is K’s main caregiver when he has custody and Father’s claim that the child does not cry when he goes back with Father.5
Second, Mother argues the court did not err in its analysis of the best interest of the child. She discusses the factors Father brought up in his brief to this Court, agreeing with the court’s conclusions as to those factors and/or challenging Father’s characterization of facts specific to certain factors.
Finally, Mother contends the court properly exercised its discretion in setting the visitation schedule. She argues the schedule “exposes [K] to the holiday activities of both parents” and “it is in the child’s best interest to be familiar and comfortable with the cultural milieu of each parent.”
B. Standard of Review
“This [C]ourt reviews child custody determinations utilizing three interrelated standards of review.” Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). Specifically: 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 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.
Id. (alteration in original) (quoting In re Yve S., 373 Md. 551,
586 (2003)). Further, it is within the sound discretion of the [court] to award custody according to the exigencies of each case, and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the [court] because only he [or she] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he [or she] is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.
Id. at 585–86.
An abuse of discretion occurs “where no reasonable person would take the view adopted by the trial court” or when the court “acts without reference to any guiding rules or principles.”
Alexander v. Alexander, 252 Md. App. 1, 17 (2021) (cleaned up). “Put simply, we will not reverse the trial court [under the abuse of discretion standard] unless its decision is ‘well removed from any center mark imagined by the reviewing court.’” Santo v. Santo, 448 Md. 620, 626 (2016) (quoting In re Adoption/ Guardianship No. 3598, 347 Md. 295, 313 (1997)). “A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App. 620, 628 (1996).
C.
Analysis
“Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.” Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019). An “appellate court does not make its own determinations as to a child’s best interest; the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.” Gordon v. Gordon, 174 Md. App. 583, 637-38 (2007). We conclude the circuit court did not clearly err as to factual findings or otherwise clearly abuse its discretion in awarding Mother primary physical custody or setting the visitation schedule.
1. We Do Not Disturb the Circuit Court’s Credibility Determinations.
In our review of the circuit court’s decision, we give “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). We give such regard because “[i]t is well established in Maryland that the trial court, which has the opportunity to observe the parties and witnesses, hear testimony, and make credibility determinations, ‘is in a far better position than [the] appellate court . . . to weigh the evidence and determine what disposition will best promote the welfare of the minor.’” Sang Ho Na v. Gillespie, 234 Md. App. 742, 757 (2017) (emphasis added) (quoting Davis v. Davis, 280 Md. 119, 125 (1977)). In assessing the credibility of witnesses, the circuit court is “entitled to accept—or reject—all, part, or none of the testimony of any witnesses, whether that testimony was or was not contradicted or corroborated by any other
evidence.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011) (emphasis in original).
The circuit court found Father lacked credibility, identifying numerous parts of Father’s testimony it did not credit. In some instances, the court explained its discrediting of Father’s testimony was due to a lack of evidence corroborating Father’s testimony and/or the presence of evidence contradicting Father’s testimony. For example, in discussing why it did not credit Father’s testimony that he looked for employment extensively in Maryland, the court explained how “it [was] without evidence, other than [Father’s] contention, that he made any effort to remain in the state of Maryland, and in fact, it is evident that [Father] began looking for a job and school out of state shortly after the parties entered into the parenting plan.” The court also found Mother relatively more credible than Father but noted “she is not without fault.” “It is not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020). Therefore, we will not disturb the circuit court’s credibility determinations.
2. The Circuit Court Did Not Err in Awarding Mother Primary Physical Custody of X or Setting the Visitation Schedule.
“[T]he best interest standard has been espoused by the Court of Appeals[6] as the dispositive factor on which to base custody awards.” Wagner v. Wagner, 109 Md. App. 1, 38 (1996).
Although courts are not limited to a list of factors in applying the best interest standard in each individual case, the cases of the Court of Appeals and of this Court, beginning with Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1997) and Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986), have set forth a non-exhaustive delineation of factors that a court must consider when making custody determinations[.]
Azizova, 243 Md. App. at 345.
The 10 factors this Court outlined in Sanders include: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. at 420.
The factors discussed in Taylor, “with particular relevance to a consideration of joint custody,”7 are: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic
proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factor that reasonably relates to the issue. 306 Md. at 304-11.
“When considering the Sanders-Taylor factors, the trial court should examine ‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing any single factor to the exclusion of all others.” Jose v. Jose, 237 Md. App. 588, 600 (2018) (quoting Best v. Best, 93 Md. App. 644, 656 (1992)).
“The Court of Appeals and this Court have time and time again affirmed custody determinations where the trial judge embarked upon a thorough, thoughtful[,] and well- reasoned analysis congruent with the various custody factors.” Azizova, 243 Md. App. at 347. This is another time. Based upon our review of the record, we conclude the court did not err or otherwise abuse its discretion in determining custody and visitation as the court’s determinations were made with the best interests of K in mind and were not “well removed from any center mark imagined by” this Court. Santo, 448 Md. at 626 (quoting In re Adoption/Guardianship No. 3598, 347 Md. at 313). We need not review the court’s entire analysis of each factor to show the lack of error. Instead, we focus on certain challenges Father makes to the court’s factual findings, or lack thereof, in its memorandum opinion.
Some challenges Father raises are based on the court’s lack of discussion of certain facts, namely, the court not discussing Mother not informing Father she was dating and eventually married her now-husband. However, the court did not need to “articulate every step of the judicial thought process in order to show that it has conducted the appropriate analysis.” Gizzo, 245 Md. App. at 195-96.
Other arguments Father raises in his brief to this Court revolve around factual findings made by the court. The court did not, as Father alleges, “call into question a valid and lawful order of another sitting judge” when it found Father was not “entirely honest” in his Emergency Motion. The court merely made a factual finding as to Father’s honesty, of which there is competent supporting evidence, such as Father not including information in his Emergency Motion about his refusal to tell Mother when he would return K to Mother. The court also made a factual finding that there was an agreement for Father to return K to Mother’s custody when K turned three, and there was competent evidence supporting that finding, too: Defendant’s Exhibit 18.8 Therefore, the court did not clearly err in finding Father was not entirely honest in his Emergency Motion or finding there was an agreement between Mother and Father for Father to return custody of K to Mother when he turned three.
Father additionally mischaracterizes the court’s rationale for awarding Mother primary custody. The court did not, as Father alleges in his brief, suggest he “will not give [K] the time and attention that he deserves” due to Father’s work and bar exam studying schedule. The court remarked that both parents “have schedules and assistance at home that would allow them to care for [K].” The court indicated Mother is relatively better
equipped to meet K’s needs, and this finding was supported by competent evidence. Accordingly, the court did not clearly err on this issue.
As a final matter, the court did not err due to its lack of discussion of K’s religious upbringing. “As various courts have pointed out, intervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.” Kirchner v. Caughey, 326 Md. 567, 575 (1992). Accordingly, this Court held:
a court in a custody proceeding may consider evidence of the religious views or practices of a party seeking custody, along with other factors impacting upon the child’s welfare, to the extent that such views or practices are demonstrated to bear upon the physical or emotional welfare of the child. Absent such a demonstration, courts have no business treading on the constitutionally sensitive grounds of religion.
Bienefeld v. Bennett-White, 91 Md. App. 488, 507 (1992) (emphasis added). There is no evidence in the record indicating Father’s or Mother’s religious views would impact K’s physical or emotional welfare. Therefore, we conclude the court did not err in refraining from discussing the parents’ religious views in its analysis of K’s best interest.
Overall, our review reveals the court’s factual findings in its memorandum opinion were not clearly erroneous, and its custody and visitation award was not a clear abuse of its discretion as it was made in K’s best interest based upon a “thorough, thoughtful[,] and well-reasoned analysis congruent with the various custody factors.” Azizova, 243 Md. App. at 347.
II. The Circuit Court Did Not Err in its Determination of the Child Support Award.
A. Additional Facts
In this case, the court determined Father’s annual income was $93,580. It appears the court then calculated Father’s monthly income to be $7,798 by dividing $93,580 by 12 (the number of months in the year).
The court determined Mother’s annual income based upon paystubs from 14 pay periods presented to the court. Over those pay periods, Mother earned $36,232.69, $3,000 of which was a signing bonus the court “deduced prior to projecting annual income.” The court then determined Mother’s projected annual income was $61,717.75 by determining how much money Mother makes per twoweek pay period and multiplying that amount by 26.9 It appears the court then calculated Mother’s monthly income to be $5,143 by dividing $61,717.75 by 12.
Based upon Mother’s and Father’s combined monthly income, the court calculated their combined monthly adjusted income as $12,941, 60.3% contributed by Father and 39.7% contributed by Mother.10 Based upon that combined monthly adjusted income, the court determined the basic child support obligation was $1,677. Since there were no work- related childcare expenses, health
insurance expenses, extraordinary medical expenses, or additional expenses pursuant to FL § 12-204(l)(1), as well as no cash medical support pursuant to FL § 12-102(c) (3)(ii), the total child support obligation was the same as the basic child support obligation. The court calculated Father’s child support obligation to be $1,011, or 60.3% of $1,677.
B. Parties’ Contentions
Father contends the circuit court erred in its determination of the child support award to Mother. Father first argues the court miscalculated his monthly income. Father’s annual income is $93,580, and the court calculated his monthly income as $7,798. Based upon the court’s monthly income calculation— which Father alleges the court did not explain Father posits his annual income would be $101,374. Father instead contends his monthly income is $7,198.46, calculated by dividing $93,580 by 26 and then multiplying that figure by 2. Second, Father argues the court “made no finding regarding [Mother’s] income but relied on approximations instead.” Because of the court’s error in calculating Father’s monthly income and approximating Mother’s income, Father contends the court departed from Maryland child support guidelines but did not explain the reasons for the departure.
Mother contends the court correctly applied the child support guidelines. Specifically, Mother argues the court properly calculated Father’s monthly income by dividing his annual income ($93,580) by 12. Mother also argues Father’s calculation of his monthly income discussed above is incorrect because he uses “a multiple of the weekly amount, erroneously assuming that there are four weeks in every month.”
C. Standard of Review
“The trial court’s decision as to the appropriate amount of child support involves the exercise of the court’s discretion.” Guidash v. Tome, 211 Md. App. 725, 735 (2013). “Child support awards made pursuant to the [Maryland child support] Guidelines will be disturbed only if there is a clear abuse of discretion.” Gladis v. Gladisova, 382 Md. 654, 665 (2004).
D. Analysis
Maryland Code Annotated, §§ 12-201–204 of the Family Law (“FL”) Article comprise Maryland’s child support guidelines. FL § 12-202(a)(1) states the general rule: “in any proceeding to establish or modify child support . . . the court shall use the child support guidelines set forth in this subtitle.”
Pursuant to FL § 12-204(e), the basic child support obligation—i.e., the base amount due for child support pursuant to FL § 12-201(e)—is determined based upon the combined monthly adjusted actual income of both parents and the number of children. The basic child support obligation is then “divided between the parents in proportion to their adjusted actual incomes” to determine each parent’s respective share of the basic child support obligation. FL § 12-204(a)(1). “Except in cases of shared physical custody, each parent’s
child support obligation shall be determined by adding each parent’s respective share of the basic child support obligation, work-related child care expenses, health insurance expenses, extraordinary medical expenses, and additional expenses under subsection (i) of this section.” FL § 12-204(l)(1).
FL § 12-201(b)(1) defines “actual income” as “income from any source.” Pursuant to FL § 12-203(b)(1), “[i]ncome statements of the parents shall be verified with documentation of both current and past actual income.” “[S]uitable documentation of actual income includes pay stubs, employer statements otherwise admissible under the rules of evidence, or receipts and expenses if self-employed, and copies of each parent’s 3 most recent federal tax returns.” FL § 12-203(b)(2)(i). “In order to establish his or her actual income, a party to a child support case could produce any one, two, or all three of the items listed in [FL] § 12-203(b)(2)(i).” Tanis v. Crocker, 110 Md. App. 559, 572 (1996). As this Court determined in Ley v. Forman, “[t]he clear intention of the legislature requires the trial court to consider actual income and expenses based on the evidence. The court must rely on the verifiable incomes of the parties, and failure to do so results in an inaccurate financial picture.” 144 Md. App. 658, 670 (2002).
“There is a rebuttable presumption that the amount of child support which . . . result[s] from the application of the child support guidelines . . . is the correct amount of child support to be awarded.” FL § 12-202(a)(2)(i). “The presumption may be rebutted by evidence that the application of the guidelines
would be unjust or inappropriate in a particular case.” FL § 12202(a)(2)(ii). “If the court determines that the application of the guidelines would be unjust or inappropriate in a particular case, the court shall make a written finding or specific finding on the record stating the reason for departing from the guidelines.” FL § 12-202(a)(2)(v).
The court did not err in determining the child support award in this case. First, the court properly calculated Father’s monthly income. Although the court did not explain its calculations, Father’s annual income of $93,580 divided by 12 equals a monthly income of $7,798—the same as that listed in the court’s child support calculator. Second, the court properly calculated Mother’s monthly income based upon one of the items constituting suitable documentation of her actual income: her paystubs. See FL § 12-203(b)(2)(i); Tanis, 110 Md. App. at 572. The court, therefore, considered Mother’s “actual income and expenses based on the evidence,” thereby preventing reliance on “an inaccurate financial picture” in calculating child support. Ley, 144 Md. App. at 670.
Because the court properly calculated Mother’s and Father’s actual monthly incomes, and therefore the combined monthly adjusted actual income, the court did not depart from Maryland’s child support guidelines. There is no other evidence in the record to show the court clearly abused its discretion in rendering the child support award in this case.
THE JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY ARE AFFIRMED. APPELLANT TO PAY THE COSTS.
FOOTNOTES
1 To preserve the anonymity of the minor child, we refer to him by the randomly selected letter K.
2 Father’s verbatim questions are:
1. Under Maryland statutory and case law, the best interest of the child standard is the leading consideration in awarding custody. Did the trial court err as a matter of law in awarding Appellee physical custody of [K]?
2. Did the trial court err in its determination of the parties’ income and award of child support?
3 In his brief, Father identifies as Muslim. Part of the Parenting Plan included enrolling K in an Islamic school.
4 Father did not discuss the factors of prior abandonment or surrender, or either parent’s length of separation from K.
5 Father later testified “[t]here are times that [K] cried, and it’s because when I drop him off, I don’t drop him off at a park. When [Mother] drops him off, she drops him off at a park, and he cries to go to the park.”
6 See Md. Rule 1-101.1 (“From and after December 14, 2022, any reference in these Rules or, in any proceedings before any
court of the Maryland Judiciary, any reference in any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of Maryland shall be deemed to refer to the Supreme Court of Maryland, and any reference to the Court of Special Appeals of Maryland shall be deemed to refer to the Appellate Court of Maryland.”).
7 A.A. v. Ab.D., 246 Md. App. 418, 444 (2020).
8 While there is no year shown on the exhibit or messages from Mother confirming, as Father argues in his brief, the texts and Mother’s testimony before the court constitute competent evidence of an agreement between Mother and Father.
9 Specifically, the court divided $33,232.69 (how much Mother made in 14 two- week pay periods, deducing the $3,000 signing bonus) by 14 to determine Mother makes $2,373.76 per two-week pay period. Because there are 26 two-week pay periods in a year (as there are 52 weeks in a year), the court multiplied $2,373.76 by 26 to determine Mother makes $61,717.76 per year.
10 $7,798 divided by $12,941 is 60.258%, and $5,143 divided by $12,941 is 39.74%.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s award of custody and guardianship of the minor children to grandparents, granting supervised visitation to mother, and closing the CINA cases. Although Mother claimed that she was diagnosed with autism early in the CINA proceedings, she did not identify the extent of her disability or the accommodations she required, and generally failed to follow up with the health care service providers recommended by the Department. Despite this, the Department made reasonable efforts to assist mother in obtaining necessary services and scheduling visitation with the children.
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..
I. Was the juvenile court clearly erroneous in finding that the Department made reasonable efforts towards reunification?
II. Did the juvenile court abuse its discretion in awarding the custody and guardianship of the Children to Grandparents and closing the CINA cases?
In this consolidated appeal from the Circuit Court for Baltimore County, sitting as a juvenile court, Ms. F. (“Mother”),1 challenges the court’s decision to grant custody and guardianship of her two minor children—Z.F., born July 2012, and B.F., born April 2016 (collectively, the “Children”)—to their maternal grandparents (the “Grandparents”) and close their cases under the Child in Need of Assistance Statute, Maryland Code (1973, 2020 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), Title 3, Subtitle 8.2 A “child in need of assistance” (“CINA”) is one who requires court intervention because the child has been abused or neglected, or has a developmental or mental disability, and the child’s caretaker is either “unable or unwilling to give proper care and attention to the child and the child’s needs.” CJP § 3-801(f).
Mother argues, among other things, that the court’s finding that the Department of Social Services for Baltimore County (the “Department”) made “reasonable efforts” to finalize the Children’s concurrent permanency plans was clearly erroneous, as the Department failed to “reasonably accommodate” her autism under the Americans with Disabilities Act (the “ADA”), codified at 42 U.S.C. §§ 12101 – 12213.
Mother presents one question for our review, which we have divided into two and rephrased for clarity as follows:3
First, we conclude that the juvenile court was not clearly erroneous in finding that the Department made reasonable efforts toward Mother’s reunification with the Children. We hold that the Department is generally required under the ADA to make reasonable accommodations for parents with disabilities in rendering reunification efforts in CINA cases, as long as the parents make such disabilities, as well as the accommodations they require, known to the Department. Parents of children who are declared CINA have an obligation to comply with their service agreements and court orders requiring them to sign release of information forms regarding necessary educational, medical, mental health, and substance abuse services and treatment. In this case, although Mother claimed that she was diagnosed with autism early in the CINA proceedings, she did not identify the extent of her disability or the accommodations she required, and generally failed to follow up with the health care service providers recommended by the Department. Despite the uncertainty regarding Mother’s disability and her needs, the record establishes that the Department made reasonable efforts to assist Mother in obtaining necessary services and scheduling visitation with the Children.
Second, we hold that the juvenile court did not abuse its discretion in awarding custody and guardianship of the Children to Grandparents, granting supervised visitation to Mother, and closing the CINA cases. Accordingly, we affirm.
OVERVIEW OF CINA PROCEEDINGS
To provide context for our review of the extensive evidentiary record in the underlying cases, we begin with an outline of the statutory framework governing CINA cases.
Upon receiving a complaint of child abuse or neglect, a local social services department must petition a juvenile court to determine whether the child is a CINA. CJP §§ 3-801(f), 3-809(a). Once a CINA petition is filed, a juvenile court “shall hold an adjudicatory hearing” for the purpose of “determin[ing] whether the allegations in the petition . . . are true.” CJP §§ 3-801(c), 3-817(a). If the allegations are found to be true, the court must “hold a separate disposition hearing[,]” either “on the same day as the adjudicatory hearing” or later, to determine
whether the child is a CINA. CJP §§ 3-801(m), 3-819(a).
When a child is declared a CINA and removed from the home, “the local department of social services must develop a ‘permanency plan’ that is ‘consistent with the best interests of the child[.]’” In re M.Z., 490 Md. 140, 147-48 (2025) (citing CJP § 3-823(e)(1)(i)). 4 Reunification with a child’s parents is the “[f]irst and foremost” permanency plan option.5 In re Blessen H., 392 Md. 684, 696 (2006); see In re Yve S., 373 Md. 551, 582 (2003) (noting that “it is presumed that it is in the best interest of a child to be returned to his or her natural parent”). However, if the court determines reunification is unlikely, it may set a concurrent permanency plan following a permanency review hearing and “tak[e] concrete steps to implement both primary and secondary permanency plans, for example, by providing time-limited family reunification services while also exploring relatives as resources.” In re Karl H., 394 Md. 402, 417 (2006) (quoting Code of Maryland Regulations (“COMAR”) 07.02.11.03(B)(16)). Indeed, the court “shall . . . [c]hange the permanency plan if a change . . . would be in the child’s best interest[.]” CJP § 3-823(h)(2)(vii).
The juvenile court reviews the permanency plan at least every six months to determine, among other things, whether “reasonable efforts” have been made to finalize the permanency plan in effect for the child. CJP §§ 3-823(h)(1)(i), (h)(2)(ii). In doing so, the court must “assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” CJP § 3-816.1(b)(5). Since “there is no bright line rule to apply to the ‘reasonable efforts’ determination[,] each case must be decided based on its unique circumstances.” In re Shirley B., 191 Md. App. 678, 710-11 (2010), aff’d, 419 Md. 1 (2011). Additionally, as it is generally not in a child’s best interest to remain without permanent placement for an extended time, “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” CJP § 3-823(h)(5); see In re M., 251 Md. App. 86, 115 (2021); see also In re Jayden G., 433 Md. 50, 83-84 (2013) (generally reviewing Maryland law recognizing children’s need for permanency).
Where reunification is no longer the sole permanency plan for the subject minor child, the juvenile court may achieve the child’s permanency plan by awarding “custody and guardianship to a relative or non[-]relative[.]” CJP §§ 3-819.2(b), (c). An order granting custody and guardianship to a non-parent also “[t]erminates the local department’s legal obligations and responsibilities to the child” and, absent good cause, terminates the child’s CINA case. CJP § 3-819.2(c). Before awarding custody and guardianship to a non- parent, the court must consider:
(i) Any assurance by the local department that it will provide funds for necessary support and maintenance for the child;
(ii) All factors necessary to determine the best interests of the child; and
(iii) A report by a local department or a licensed child placement agency, completed in compliance with regulations adopted by the Department of Human Services, on the suitability of the individual to be the guardian of the child.6
CJP § 3-819.2(f)(1); In re M., 251 Md. App. at 116.
With this statutory framework in mind, we turn now to summarize the relevant facts.
FACTUAL BACKGROUND
During the time relevant to this appeal, Mother and Father were divorced, and Mother had primary physical custody of the Children. Grandmother (Mother’s biological mother) lived with Grandfather (Mother’s stepfather). By the time the Department became involved in the family, Mother and the Children were living together with the Children’s half-sister, L.R. (born October 2008).7
EVENTS LEADING TO THE CINA ADJUDICATION
December 16–19, 2022 Emergency Shelter Placement8
On December 16, 2022, Mother exhibited signs of paranoia, claiming that bombs were in her house and that there were tracking devices on her family’s phones. Mother made the Children and L.R. “stand outside in freezing weather[.]” L.R. “ran away” and contacted Grandmother, who took her to the Greater Baltimore Medical Center (GBMC). A medical assessment at GBMC revealed that L.R. had sustained various assault injuries, including a busted lip and a swollen face and arm. The police took pictures of these injuries and “reported that [Mother] would be charged for the assault[,]” based on an existing protective order prohibiting her from harming L.R. Meanwhile, Mother had called the police to report L.R. missing. When the police arrived, she told them that one of the Children, Z.F., was bleeding, but there was no sign of bleeding. Mother then took Z.F. to GBMC, where he was diagnosed with a common cold.
While at GBMC, a social worker came to discuss a safety plan with Mother, and based on her interactions with Mother, recommended that Mother be taken for a psychiatric evaluation. Mother was subsequently hospitalized at Sinai Hospital, and the Children were placed in emergency shelter care with Grandmother.
On December 19, 2022, the Department filed a CINA petition with a request for continued shelter care. Following a shelter care hearing that same day, the juvenile court granted the request, placing the Children in the Department’s custody pending an adjudication hearing on the CINA petition. The court also granted temporary limited guardianship to both the Department and Grandmother. Mother was granted liberal and supervised visitation “as arranged by [the Department].”
On January 12, 2024, Mother was served with the arrest warrant for the alleged assault of L.R. and, following a bond review hearing that day, remained held without bond. After filing a petition for writ of habeas corpus, she was released under a no-contact order pending resolution of her criminal case.
February
10,
2023 Adjudication and Disposition Hearing
At the adjudication and disposition hearing on February 10, 2023, the parties agreed to present the court with an amended CINA petition, which contained the factual allegations
summarized above. Without admitting or denying the allegations, Mother agreed to a CINA finding and to the commitment of the Children to the Department and their placement with Grandmother. Mother’s counsel told the court: I would like to state that my client, [Mother], has acknowledged that she has had struggles with her mental health history and at the time that the case was sheltered, was having a mental crisis, an episode. My client also acknowledges that she has -- is autistic, and at this time, many of her sensory levels were just overloaded. She takes full responsibility and acknowledgement that she wants to be stable and back on track with doing what she needs to do to focus on her mental health and be -- continue to be a fit parent for her children, including in this matter, B.F. and Z.F.
(Emphasis added).
At the conclusion of the hearing, the juvenile court declared the Children CINA, sustaining all factual allegations in the amended petition by a preponderance of the evidence, and found that “[u]ntreated mental health issues of the mother ma[d]e the home unsafe” for the Children. The court ordered that custody of the Children was with the Department, and granted both the Department and Grandmother a temporary limited guardianship. The court instructed that Mother would have “liberal and supervised” visitation as arranged by the Department. The court also ordered that Mother: (1) cooperate with the Department by providing family background information; signing Release of Information forms regarding educational, medical, mental health, and substance abuse services and treatment that are necessary to provide services to the child and family; (2) allowing scheduled and unscheduled home visits; (3) permitting access to the child, if applicable; (4) comply with service agreements; and maintaining consistent weekly contact with the Department; (5) [f]ollow through with recommendations from Sinai Hospital and enroll in psychiatric and counseling treatment, medication management and domestic violence counseling; (6) [e]nroll in and complete anger management and parenting classes.
With reunification as the sole permanency plan, the court set a review hearing for June 30, 2023, and a permanency planning hearing for December 1, 2023. Micaiah Baker was assigned as the Children’s kinship care social worker.
EVENTS LEADING TO CHANGE OF PERMANENCY GOAL
February 10, 2023 to June 30, 2023
During the initial review period from February 10, 2023, through June 30, 2023, Mother completed court-ordered parenting and anger management classes. Although the “no-
contact” order related to her pending criminal case prohibited visits with the Children, Mother communicated with Grandmother to stay informed of the Children’s wellbeing.9 However, Mother did not sign a release of information form for Bloom Health, her mental health provider at the time, despite repeated requests from Ms. Baker. Mother also claimed to have started working for several different employers but provided no employment verification.
The Children faced some challenges with abiding by rules and structures at Grandmother’s home and at school. Ms. Baker referred them to Kennedy Krieger Institute, where they started therapy in May 2023.
In advance of the June 30, 2023 hearing, the Department recommended that the permanency plan be reunification concurrent with custody and guardianship to a relative. Mother’s counsel opposed, claiming that although Mother’s autism had been “well-stated and well-known[,]” the Department did not offer “any ADA accommodations to further assist [her] . . . with getting forms or whatever else they need.”10 After hearing from the parties, the court continued the sole plan of reunification and found, without objection, that the Department made reasonable efforts to finalize the permanency plan.
June 30, 2023 to December 1, 2023
Throughout the next review period—from June 30, 2023 through December 1, 2023—Mother’s employment and mental health treatment information remained elusive. In June, Mother identified Arts to Heal as her new mental health provider, but Arts to Heal had no active client under her name. Mother then told Ms. Baker that she was receiving mental health treatment from Kindred Treatment Center, but the number she provided was invalid. Subsequent communication with Kindred Treatment Center revealed that Mother was discharged after a single intake session due to multiple “no shows.” Similarly, while claiming to work for a business named “Sweet Bluez,”11 Mother provided no income or employment verification.
Mother’s criminal case concluded in July 2023 with a one-year probation before judgment (“PBJ”), and her counsel confirmed in August that there was no court order prohibiting her contact with the Children. Despite this, Mother did not respond to Ms. Baker’s attempts to arrange visitation. In September 2023, after multiple failed attempts to schedule visits, Ms. Baker notified Mother of a new plan requiring her to confirm availability by Sunday noon each week; however, Mother still had no in-person visits.12
Aside from two brief virtual visits in August and “sporadic phone calls” that ceased by early October, Mother made almost no contact with the Children during this period.
At Grandparents’ home, the Children were “healthy and well cared for.” They regularly attended medical appointments and worked with their individual therapists. Z.F. also showed “positive differences” both at home and school. Although the child still had challenges in understanding and completing his homework, Grandmother “consistently and diligently” worked with him after school. In August 2023, an IEP team meeting was convened for Z.F., attended by IEP chairperson, Grandmother,
Z.F.’s teachers, his therapist, and Ms. Baker; Mother failed to show up.
Around late September 2023, Mother left her residence without informing Grandmother or the Department of her new address. In October, following her repeated failure to report to her probation agent, a bench warrant was issued, and her probation was extended to December 2024.13 A Facilitated Family Meeting (“FFM”) had been scheduled for late October to discuss Mother’s progress and needs, but it was also cancelled the day before due to her unavailability. Grandmother later testified that Mother was “in California for six months and in Georgia for a couple [of] weeks” between late 2023 and early 2024. Mother acknowledged travelling to California and Georgia to seek help from family members, but she denied living outside of Maryland during that time.
Change of Permanency Plan and Mother’s Exception
At the permanency plan review hearing on December 1, 2023, the Department again requested to change the permanency plan to reunification concurrent with custody and guardianship to a relative. The Department’s counsel proffered that Mother had “done very little, close to nothing, [during] this last review period[,]” highlighting the lack of any updates regarding her housing, mental health, and employment. Counsel also proffered that Mother had not responded to the Department’s attempts to contact her regarding a new service plan, even though the previous plan had expired in August 2023. The Children’s counsel joined the Department’s request. In opposing the change of the permanency plan, Mother’s counsel argued that the Department failed to make reasonable efforts to achieve the original permanency plan— the sole plan of reunification. Counsel reiterated that Mother was “diagnosed with autism” and argued that “the Department should be making efforts to give her accommodations through ADA; however, . . . there have not been any ADA accommodations for [her].” Counsel also emphasized that the Department “ha[d] not sent her any employment resources[,]” suggesting that Mother might be “eligible for [Department of Rehabilitation Services (“DORS”)], which is a program that would help people who have mental health illnesses, people with autism.” Later during the hearing, however, Mother stated, “I work for Sweet Bluez. I do have a job[,]” and that she had informed the Department about her employment.14
At the end of the hearing, the magistrate recommended changing the permanency plan to reunification concurrent with custody and guardianship to a relative. He also found that the Department made reasonable efforts to finalize the Children’s permanency plan. Mother filed exceptions to the change of the permanency plan, challenging, among other things, the magistrate’s finding of reasonable efforts, arguing, “there had been no accommodations provided for [Mother], who is [a] utistic, in accordance with the [ADA].”
At the exceptions hearing on March 11, 2024, however, Mother withdrew her exception regarding the Department’s reasonable efforts.
I will withdraw the comment about lack of reasonable efforts because I am acknowledging that Ms. Baker, along with her office and my client, is trying to get the Department connected with that recent eval and I just hope that there can still be some type of additional services given to [Mother]. Some people with autism, some people with extreme mental health, some of the accommodations can simply be just more hours a week of visits or seeing the children more days a week. It’s not something that we are asking that is extreme, like helping her fill out applications or something over the board, just something that is extra than how they would treat an average parent with no limitations. That is all, Your Honor. Thank you.
(Emphasis added). The following exchange then took place:
THE COURT: [Department’s Counsel], do you want to be heard any further or talk about the autism issue?
[DEPARTMENT’S COUNSEL]: Just briefly. It appears that the Department has made efforts on the autism issue. It also appears that [Mother’s counsel] has withdrawn that as an exception (unintelligible).
THE COURT: Is that fair to say, [Mother’s counsel]? Yes.
[MOTHER’S COUNSEL]: Your Honor, it’s a yes at this time.
(Emphasis added). The juvenile court denied Mother’s exceptions and changed the permanency plan to reunification concurrent with custody and guardianship to a relative, but Mother did not appeal.
EVENTS LEADING TO THE CONCLUSION OF CINA PROCEEDINGS
December 1, 2023 to September 24, 2024
In January 2024, Mother’s counsel emailed Ms. Baker, requesting “referrals for mental health providers who specialize in offering mental health services to adults with autism.” Ms. Baker asked Mother to obtain an autism evaluation and provided her with a list of agencies that offer the evaluation. Mother responded that she had received the evaluation from the “Neuroscience Team.” Ms. Baker asked her to sign release of information forms for the Neuroscience Team and Dr. Gabriel Newman, the physician who evaluated her, but Mother did not sign the form for months.
On March 6, 2024, after months of little contact with the Children, Mother requested in-person visits. Later that day, the visits were scheduled for Sundays from 4 to 5 p.m. at Towson Library, based on Mother’s representation that she worked from 5:30 to 6:30 p.m. on Sundays. However, Mother informed Ms. Baker the next day that she could “no longer attend the Sunday
visitation because she works at Towson Mall from 11am –6pm[,]” and the visits were rescheduled to Mondays from 6 to 7 p.m. Grandmother became the primary supervisor for Mother’s visits.
In April 2024, Mother signed her release of information for Dr. Newman, and then on May 14, after multiple attempts to contact Dr. Newman, Ms. Baker finally received his evaluation report. Unfortunately, however, the report only “ha[d] the diagnosis . . . of autism[,]” and did not provide enough information to “ensure the appropriate level of accommodations and intervention[.]” Ms. Baker recommended Mother “reach out to Kennedy Krieger and/or Sheppard Pratt” so that they could “connect her with providers that offer mental health services [for] adults diagnosed with autism[,]” but Mother insisted on reaching out to the Autism Society instead. 15 The Department also contacted Dr. Newman for “the recommendations that were given to [Mother] upon discharge and further record of the details gathered during the autism evaluation[,]” but no such information was ever provided.
Mother’s mental health treatment remained intermittent and unstable. On May 20, her counsel identified Anya Medspa and Behavioral Health Center as her mental health service providers. However, Mother’s probation agent reported that she had been receiving mental health services from Chinyere Kalu since May 21. On June 4, Ms. Kalu informed Ms. Baker that Mother attended only one session and missed the followup. The very next day, Mother reported her appointment with a new therapist, Kaddie Kallon, who “specializes in the services she requires.” Additionally, although Mother’s probation agent referred her to Project Chesapeake, there was no record of her ever following up on this referral.
In June 2024, Mother informed Ms. Baker that she had left Sweet Bluez and was “only working online as a Brand Ambassador while she awaits to receive Social Security Disability.” Ms. Baker sent her an employment resource, “HireUp.” Ms. Baker also submitted referrals on behalf of Mother to various DORS locations and “sent [Mother] housing resources that the DORS website directed the Department to.” Months later, at Mother’s request, Ms. Baker resubmitted a DORS referral and informed her of the resubmission. 16 Ms. Baker also assisted Mother with her developmental disability administration (“DDA”) application. 17 Mother initially missed the scheduled virtual meeting for the application, but Ms. Baker rescheduled the meeting, completed the application with Mother, mailed it, and followed up on its status the following month.
Later in June, Mother informed the Department that she was staying at a shelter named Karis Home.18 To accommodate Karis Home’s 6 p.m. curfew, visits changed to Mondays 3 to 4 p.m. at the Hamilton branch of the Enoch Pratt Library. Less than a month later, however, Karis Home asked Mother to leave after two warnings, citing “a number of instances that [she] inserted herself in arguments . . . without the desire to de-escalate.” Mother’s visitation schedule was then changed to Mondays from 6 to 7 p.m. at Towson Library.
After leaving Karis Home, Mother began “renting a room” at a psychiatric rehabilitation program named New Life Recovery Center, where she resided for the remainder of the CINA proceedings. New Life Recovery Center assisted her with housing and employment and offered group mental health therapy sessions, which Mother attended “four times a week.” Mother also began “actively participating in weekly therapy sessions” at HOME Therapeutic Services (“HOME”). HOME informed Ms. Baker that Mother was diagnosed with “Post traumatic stress disorder, acute F43.11” and recommended “at minimum . . . 6 months to 1 year” of services, with “no prescribed medication or discharge plans at this time.”19
Despite some progress in housing and mental health treatment, Mother’s visitations remained inconsistent. From March through July 2024, Mother attended six out of about twenty scheduled visits. Later in July, Ms. Baker told Mother that visits would stay at one hour per week so that the Department could monitor Mother’s consistency, but Mother cancelled two additional visits in August and September. She also failed to attend any medical, educational, or therapeutic appointments for the Children. Although Ms. Baker provided contact information for the Children’s mental health professionals, Mother did not reach out to them.
In or around August 2024, Ms. Baker sent Mother a new service plan to sign, but Mother refused, highlighting “things that needed to be corrected[.]” For one, Mother noted that the service plan listed Karis Home as her residence. Despite Ms. Baker’s explanation that the Karis Home reference was just part of a “historical visitation plan”—indicating her prior residence— Mother insisted that she did not “want[ ] to sign a service plan that was outdated and had incorrect information[.]” She also took issues with “wording on some of the actions within the service plan”—including the plan’s requirement that she take “prescribed medication as recommended” despite not having prescribed medications at that time.20 Mother never signed the service plan.21
Final Permanency Review Hearing
The final permanency review hearing began on July 9, 2024, and ended on September 24, 2024. Prior to this hearing, the Department submitted a home study report, dated April 19, 2024, which found that Grandparents “can sufficiently meet the financial needs of their household.” The home study highlighted Grandmother as “dedicated, caring, protective, loving, and a reliable caregiver[.]” In addition, despite Grandfather’s old criminal records, the home study found “no concerns” regarding the safety and wellbeing of the Children residing with him. The home study report was admitted into evidence without objection.
The Department also submitted a court report, dated April 24, 2024, and multiple addendums, recommending that “the commitment of [the Children] be rescinded and custody and guardianship be awarded to [Grandmother].” In support of its recommendation, the court report stated that “[s]ince December 17, 2022, [Mother] has not made significant progress to alleviate barriers that brought her children into care” and that the Children “deserve the permanency and stability that [the
grandparents] have and can continue to provide.”
The juvenile court heard testimony from several witnesses who expanded on the facts summarized above. During her testimony, Ms. Baker reiterated that the evaluation report from Dr. Newman was insufficient to determine the “appropriate level of accommodations and interventions” for Mother. She stated that the evaluation report was mostly “contact notes of their sessions, . . . it just has the diagnosis on the paperwork of autism.” When asked why she did not immediately refer Mother to DORS or DDA after receiving Dr. Newman’s report, Ms. Baker testified that she did not know much about those programs and was unsure if Dr. Newman’s diagnosis was sufficient for such a referral.
Ms. Baker identified Mother’s inconsistent visit with the Children as the primary obstacle to reunification, explaining:
[T]he ability to continue to maintain a bond and the parents integrating into the kids’ life and ability to take on the responsibilities that the kids have. Such as for Z.F., he has an IEP and there’s extensive back and forth when it comes to the school and the -- and making sure he gets what he needs.
Ms. Baker explained that Mother’s missed visits were “either from her canceling [or] from her not confirming[,]” even though the Department had been clear that she needed to confirm her availability before each visit. Ms. Baker also noted that Mother did not attend “any doctor’s visits, therapy visits, dental visits, IEP visits, [or] psychiatry visits” for the Children. In addition, she expressed concerns about the Children’s safety in Mother’s care, highlighting “the simple fact that she’s not taking care of her mental health, and she hasn’t been consistently taking care of her mental health in order to make sure that she provides a stable and safe household environment” for the Children.
Grandmother shared Ms. Baker’s concern regarding Mother’s visits, noting that they had been very inconsistent. She emphasized that Mother often failed to confirm her visits as required, stating:
Sometimes [Mother] wouldn’t -- we have a link between me, [Mother], and the social worker, where [Mother] has to like text by a certain time [to confirm the visit]. And if she doesn’t, then there’s no visit for the day. Sometimes she would forget. Sometimes the boys would say, “Well, tell her don’t forget to text for the visit.” Sometimes she just would text and then have the visit.
When asked if she was open to allowing Mother to have unsupervised visits, Grandmother stated that although “that would take away one thing that I have to manage,” she “just d[id]n’t trust it yet.” She further opined, “if it was a little more consistent, I would be a little more comfortable with the visit.”
Grandmother denied having seen “any proof” of Mother’s autism, stating that she had “only been told by [Mother] that she had autism.” She also denied knowing “who [Dr. Newman] is.” Nonetheless, Grandmother acknowledged that Mother had memory and comprehension issues “all the time,” such as “forgetting . . . detailed things that shouldn’t have been forgotten or not able to do like normal things.” She also mentioned
Mother’s “selective memory” problem, explaining: [C]ertain things she’ll say that happened did not happen. And that I have no recollection of it. Also, I checked with my other children to see if they remembered any of it, and they did not remember any of that as well.
She surmised that Mother’s memory issue might have affected her ability to attend or schedule appointments relating to the Children.
Grandmother related that the Children were “doing really well” and “thriving” in her care. She stated that Z.F. was “getting much better in school” and “getting ready to take guitar lessons[,]” while B.F. had started piano lessons. They were also “getting big.” Grandmother confirmed that she and her husband had been taking the Children to various appointments, including “therapy, the doctor, dentist, eyeglass, [and] the psych doctor.”
When asked if the Children’s reaction to Mother was positive, Grandmother initially replied, “I’ll say yes,” but then added, “If I have to say what my observation is, it is a little stressed, and a little uneasy.” Specifically, she described an incident at a library “a couple weeks back,” where “B.F. was doing something and [Mother] raised her voice and he jumped.” Grandmother clarified that she did not think Mother was raising her voice to discipline B.F. Afterwards, B.F. “kept coming over” to Grandmother and “staying more closer [sic]” to her during the visit, while Mother and Z.F. continued playing. Still, Grandmother testified that the Children were missing Mother and had an overall “positive time” during visits.
Grandmother also testified about Mother’s behavior during her May 26, 2024 visit. That day, a woman drove Grandmother and the Children to the visit, “just like . . . a Uber driver[.]” Later, as the woman was speaking to Grandmother in the parking lot, Mother suddenly “started yelling and cursing and went into . . . a rage.” Following the incident, the Children “were upset[,]” with B.F. “wetting the bed for a period of time.”
Mother did not deny her outburst during the visit but claimed that the woman first “verbally attacked” and “threatened” her. Mother testified that she “call[ed] 911 to make sure that nobody tried to say that [she] was out of control” and told Grandmother, “You can’t stop me. You can’t take my visit away from me.”
Mother stated that she is “just [ ] very vocal” and “loud[,]” but denied “screaming or waving [her] hands or anything like that” during the incident.
As for her inconsistent visits, Mother explained that the absence of any “signed service plan or visitation plan” resulted in “consistent back and forth via the emails.” She agreed that the current visitation schedule was from 6 to 7 p.m. on Mondays, but claimed that, without a signed service plan, there were no “rules to abide by, essentially[.]” Mother also emphasized that she had been “compliant with everything . . . except for missing two visits[,]” one of which she attributed to a “business meeting” with her “patent attorneys.” Regarding her failure to attend the Children’s medical appointments, Mother stated that she had not had access to their medical information “over the course of the last year and a half” and, even after gaining the access, “sometimes these doctors’ appointments are . . . rescheduled without [her] knowledge.”
Mother testified that before May 2024, she had never received her autism diagnosis or “any helpful tips or recommendations” from Dr. Newman. Although she found the evaluation report “very helpful” for finding “proper therapeutic services” and “get[ting] the children back[,]” Mother claimed that she “got all the help on [her] own” with employment, housing, and mental health services, except for DORS and DDA. Mother stated that she recently found a job opportunity as “peer recovery specialist” through New Life Recovery Center, explaining that it was “why [she] requested to find out whether or not the Department would be able to help [her] fund it.”
During the hearing, letters from HOME and New Life Recovery Center were admitted into evidence without objection. The letter from HOME, dated September 18, 2024, stated that Mother had been “faithfully meeting with her therapist every Wednesday. . . since July 10, 2024” and scheduled for “weekly 45 minute to 1 hour telehealth therapy appointments.” The letter from New Life Recovery Center, dated September 2024, related that Mother had been attending “psycho- educational group meetings as directed 4 times weekly[.]” The letter also stated that Mother “self-report[ed] a mental health diagnosis of ADHD” but was “not prescribed any medications to address the aforementioned concern” and she had been complaint “with all requirements for services.”
THE JUVENILE COURT’S RULING
On the last day of the final permanency review hearing, the juvenile court announced its ruling on the record.
Reasonable Efforts
The juvenile court found that the Department made reasonable efforts to achieve the permanency plan. Specifically, the court stated, “[w]ith respect to visitation . . . I find that, based on the evidence, [Mother] has not been consistent with the visitation. And I don’t fault or find that the Department failed in its effort to reasonably accommodate that visitation.” The court credited Grandmother’s testimony and found that Mother “left the area . . . [for] around six months during this last review period.” The court stated that Mother’s absence from Maryland “may shed some insight onto why there were no visits, perhaps only one visit, during the early part of this review period up until March of 2024.” The court further found that “[i]n any event . . . the Department made extensive efforts to . . . arrange visits” when Mother was available, but “it seemed that [Mother’s] work schedule or other commitments had a greater priority.”
The juvenile court highlighted the Department’s efforts to assist Mother with housing and employment, such as submitting DORS referrals and the DDA application. The court also found “[w]ith respect to employment verification, the Department attempted repeatedly to get information to verify . . . the employment that [Mother] identified.” Similarly, “[w]ith respect to mental health records, the Department tried repeatedly, January, March, April . . . and May of 2024 to get these records from Dr. Newman[,]” but the records did not contain
“any substantive treatment information.” Still, “even though the Department was unable to get all the necessary records . . . the social worker referred [Mother] to Kennedy Krieger and Sheppard Pratt so that she could get providers who were experienced in providing mental health services to individuals with an autism diagnosis.” The court further noted that Mother “was not cooperative” and “often . . . resist[ed] signing the consent forms.”
The juvenile court pointed out Mother’s “pattern . . . in many instances throughout th[e] review period.” The court observed, “on the one hand, [Mother] is quick to point out her medical challenges, but yet she is able to, it seems, do certain things when she has a desire to do them.” For example, according to the court, Mother was “able to do some work[,]” “able to travel[,]” and “able to e-mail and call the Department and identify what is working for her and what is not.” The court did not find that “the lack of a new written . . . service plan prevented Mother from understanding the services that the Department offered and the expectations that the Department had, including expectations regarding visitation.”
The Children’s Best Interests
Next, the juvenile court turned to consider the Children’s best interests, as directed under CJP § 3-819.2(c), and determined that it was in their best interests to award custody and guardianship to Grandparents, grant supervised visitations to Mother, and terminate the CINA jurisdiction. The court explained:
How are the [C]hildren doing? They’re -- they should be the primary focus here. How are they doing? We’ve talked about the parents and the Department and its role. The boys are doing well in their current placement, where they’ve been since, as I noted, December of 2022. * * *
I don’t find that there’s any current ability to be in a safe and healthy home with Mother. Mother has some untreated mental health issues that have been neglected. And she is just starting to get some form of treatment. But again, we don’t have any substantive treatment information. We just have these letters [from HOME and New Life Recovery Center], and they are just from the most recent time.
The [C]hildren’s attachment and emotional ties to their parents and siblings. That’s another factor under [FL § 5-525(f)(1)]. They seem to at times enjoy visiting with their Mother, and she has brought them books. But there have also been instances where they have been frightened. The Memorial Day weekend incident is one that comes to mind.
[Grandmother] testified about that. [Mother] testified as well. I find that [Mother] became very loud. She began screaming and acting out. This frightened the children to the point where they stood behind their grandmother as if to shield themselves from her behavior. It was unprovoked
behavior. And this is -- this was unhealthy. So the [C]hildren, I’m sure, have some feelings towards [their] Mother. But I don’t find that they have significant attachment and emotional ties to her. With respect to the [C]hildren’s emotional attachment to their current caregiver and caregiver givers [sic], family, their sister, [L.R.] who Mom was found to have assaulted and for whom [Mother] is on probation for that assault, lives with them.
Their older sister is 15. So, the three siblings live together in . . . [G]randmother’s home. They are well cared for. And the [C]hildren appear to have a close bond with both [G]randparents.
The length of time the child or children have resided with the current caregiver [--] They’ve been with the [G]randparents since December 19th of 2022. And that’s been uninterrupted. The potential emotional, developmental, and educational harm to the child if moved from the current placement. I find that there would be significant and substantial harm.
There has been progress as the [C]hildren have received services that they need; therapy, medication management, an IEP with respect to Z.F. They are bonded, as I said, with their [G] randparents and with their sister. And they have the stability that they need. They have the love that they need.
And so the Court finds that it would create great harm if there was a change in their current placement.
The potential harm to the child by remaining in State custody for an excessive period of time [--] It’s often said, and it is true, that foster care is not a long- term plan. These [C]hildren have been in out-of-home placements, albeit with their . . . [G] randparents, for almost two years now, and they deserve permanency. And they can have that with the relief that Department has requested.
The court also noted that it took “all the factors into consideration[,]” including the testimony, court reports, and the home study report on Grandparents’ home.
The court subsequently entered a written custody and guardianship order on September 26, 2024, which was amended on October 18, 2024. In the amended order, the court found: [t]hat the following efforts were made to finalize the [C]hildren’s permanency plan: Case management services provided; foster home placement monitored/maintained; regular visits made;[ 22 ] appropriate referrals, services and assistance provided; treatment/service providers contacted; communication with both parents; visitations arranged; recordsreviewed; and meetings held/attended, and [t]hese efforts were . . . Reasonable[.]
The court also ordered, among other things, that: (1) the
Children “be committed to the sole care and custody” of Grandparents; (2) Mother have weekly supervised visitations with the Children; and (3) “the existing [c]ommitment to the [Department] be rescinded,” terminating the CINA cases. Mother timely noted this appeal.
DISCUSSION Standard of Review
When a party appeals from a custody determination of the juvenile court in a CINA proceeding, we apply “three distinct but interrelated standards of review[.]” In re M., 251 Md. App. 86, 110 (2021) (quoting In re J.R., 246 Md. App. 707, 730-31 (2020)). First, when we review the court’s findings of fact, “the clearly erroneous standard of Rule 8- 131(c) applies.” In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (citation and alterations omitted). “[A] juvenile court’s factual finding ‘is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.’” In re I.Q., 264 Md. App. 265, 310 (2025) (quoting In re M.H., 252 Md. App. 29, 45 (2021)).
Second, we review matters of law without deference to the juvenile court. In re T.K., 480 Md. 122, 143 (2022) (quoting In re Yve S., 373 Md. 551, 586 (2003)). If we find error of law, “further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” In re C.E., 464 Md. at 47 (citation omitted). Finally, as long as the court’s “ultimate conclusion” is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous,” we do not disturb that decision absent a clear abuse of discretion. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010) (citation omitted).
I. REASONABLE EFFORTS Parties’ Contentions
Mother contends that the juvenile court “erred” in finding that the Department made reasonable efforts towards her reunification with the Children. According to Mother, several findings that the court made with regard to the Department’s efforts were “actual duties and not services designed to promote reunification[,]” and “the court’s findings do not demonstrate how they worked to facilitate a permanency plan of reunification of the family.” (Emphasis added). For example, Mother argues that the Department’s visits with the Children at Grandmother’s home were required under COMAR 07.02.11.17(A) and therefore do not qualify as “services.”
Mother further contends that, when considering the Department’s “services” provided to her, they fall short of the “reasonable efforts” requirement. Mother argues that, although she had requested the Department to “accommodate her disability, her autism diagnosis[ ] early on[,]” nothing in the court’s findings demonstrated “accommodations for [her] autism or . . . specifically tailored services to accommodate this disability.” Because “the court can consider factors relevant to determining the best interest of the children” in custody and guardianship cases, Mother argues that the juvenile court should have considered the Department’s failure to provide reasonable
accommodations in finding reasonable efforts. Mother also emphasizes, citing In re James G., 178 Md. App. 543 (2018), that it is incumbent upon the Department, not a parent, to provide services that “pertain to the impediments of reunification.” Id. at 601. Thus, she argues, her failure to “communicate with the [D] epartment and engage in services . . . does not absolve the [D] epartment of its responsibilities to provide reasonable efforts or accommodations under the ADA.”
The Department counters that the juvenile court found that it had made reasonable efforts for Mother’s reunification with Children by “correctly rel[ying] on competent and material evidence[.]” The Department notes that Mother’s counsel withdrew her exception to a reasonable efforts finding at the March 11, 2024 hearing, limiting the relevant review period to “[b]etween March and September 2024[.]” During this time, the Department emphasizes that it made extensive efforts “to encourage visitation, assess Mother’s needs for services and her compliance with mental health treatment, and identify and recommend services to achieve reunification[.]”
Regarding Mother’s ADA-related claim, the Department asserts that “Mother fails to point to any Maryland law requiring the court to make specific findings under the ADA when making a reasonable-efforts finding.” The Department maintains that it did not violate the ADA, as the autism diagnosis from Dr. Newman “did not provide any insight into accommodations or treatment recommendations” and “Mother offer[ed] no details[,]” while “rebuff[ing]” referrals to “well-respected providers . . . which could provide evaluation and treatment of autism[.]” The Department distinguishes James G., where the father “never rejected any help” and “maintained his relationship with his children[,]” but received minimal assistance for reunification, from Mother’s case, in which she demonstrated unwillingness “to receive [the Department’s] help and . . . to be part of [the] [C] hildren’s life.”
Legal Framework
The premise of Mother’s argument is that the Department does not satisfy its reasonable efforts requirement if it fails to meet the ADA’s reasonable accommodations requirement. Before addressing the merits of Mother’s contention, we shall examine: (1) the definition of “reasonable efforts” under the CINA statute; (2) the definition of “reasonable accommodations” under the ADA; and (3) the relationship between “reasonable efforts” and “reasonable accommodations[,]” as interpreted by courts.
“Reasonable Efforts”
The CINA statute defines “reasonable efforts” as “efforts that are reasonably likely to achieve the objectives set forth in [CJP] § 3-816.1(b)(1) and (2).” CJP § 3-801(x). Section 3-816.1(b) (1) requires that a reviewing court make a finding as to whether the local social services department “made reasonable efforts to prevent placement of the child into the local department’s custody.” For children who are placed in the Department’s custody, CJP § 3-816.1(b)(2) specifies that in the review hearings, the juvenile court is required to make findings as to whether the Department made “reasonable efforts” to:
(i) Finalize the permanency plan in effect for the child;
(ii) Meet the needs of the child, including the child’s health, education, safety, and preparation for independence[.]
CJP § 3-816.1 (b)(2)(i) and (ii). The statute directs the court to “require a local department to provide evidence of its efforts before the court makes a finding required under this subsection[,]” CJP § 3-816.1(b)(4), and states that any such finding “shall assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” CJP § 3-816.1(b)(5). The statute further instructs that in making its findings in regard to the Department’s reasonable efforts, the court “shall consider[,]” as relevant to the underlying case(s):
(1) The extent to which a local department has complied with the law, regulations, state or federal court orders, or a stipulated agreement accepted by the court regarding the provision of services to a child in an out-of-home placement;
(2) Whether a local department has ensured that: (i) A caseworker is promptly assigned to and actively responsible for the case at all times; (ii) The identity of the caseworker has been promptly communicated to the court and the parties; and
(iii) The caseworker is knowledgeable about the case and has received on a timely basis all pertinent files and other information after receiving the assignment from the local department;
(3) For a hearing under § 3-823 of this subtitle, whether a local department has provided appropriate services that facilitate the achievement of a permanency plan for the child, including consideration of in-State and out-ofstate placement options;
(4) Whether the child’s placement has been stable and in the least restrictive setting appropriate, available, and accessible for the child during the period since the most recent hearing held by the court;
* * *
(7) Whether a local department has provided appropriate and timely services to help maintain the child in the child’s existing placement, including all services and benefits available in accordance with State law, regulations, state and federal court orders, stipulated agreements, or professional standards regarding the provision of services to children in out-of-home placements.
CJP § 3-816.1(c)(1)-(4) and (7).
We observed in In re Shirley B., that based on the definition of “reasonable efforts” found in the CINA statute, “it is clear that there is no bright line rule to apply to the ‘reasonable efforts’
determination; each case must be decided based on its unique circumstances.” 191 Md. App. 678, 710-11 (2010). We turned for guidance to the following passage from the Supreme Court of Maryland’s decision in In re Adoption/Guardianship of Rashawn H., 402 Md. 477 (2007):
The court is required to consider the timeliness, nature, and extent of the services offered by DSS or other support agencies, the social service agreements between DSS and the parents, the extent to which both parties have fulfilled their obligations under those agreements, and whether additional services would be likely to bring about a sufficient and lasting parental adjustment that would allow the child to be returned to the parent. Implicit in that requirement is that a reasonable level of those services, designed to address both the root causes and the effect of the problem, must be offered—educational services, vocational training, assistance in finding suitable housing and employment, teaching basic parental and daily living skills, therapy to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, counseling designed to restore or strengthen bonding between parent and child, as relevant. Indeed, the requirement is more than implicit. FL § 5-525[(e)], dealing with foster care and out-ofhome placement, explicitly requires DSS to make “reasonable efforts” to “preserve and reunify families” and “to make it possible for a child to safely return to the child’s home.”
In re Shirley B., 191 Md. App. at 711 (quoting In re Rashawn H., 402 Md. at 500). We also observed that it is “clear . . . that there are limits on what the Department must do to satisfy the ‘reasonable efforts’ requirement[.]” Id. The Department’s efforts “need not be perfect to be reasonable, and it certainly need not expend futile efforts on plainly recalcitrant parents[.]” Id. at 712 (quoting In re James G., 178 Md. App. at 601). Recognizing such limitations, the Supreme Court of Maryland has clarified that: The State is not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child. It must provide reasonable assistance in helping the parent to achieve those goals, but its duty to protect the health and safety of the children is not lessened and cannot be cast aside if the parent, despite that assistance, remains unable or unwilling to provide appropriate care.
In re Rashawn H., 402 Md. at 500-01 (emphasis added).
ADA and “Reasonable Accommodations”
Title II of the ADA provides, in pertinent part, that “no qualified individual with a disability shall,[23] by reason of such disability, be excluded from participation in or be denied the
benefit of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. This mandate applies to “any department, agency, . . . or other instrumentality of a State or local government”— including a local social services department. 42 U.S.C. §§ 12131(1)(B). A public entity’s failure to provide a reasonable accommodation may give rise to a claim under Title II. See In re Chavis, 486 Md. 247, 261 (2023).
Notably, “[i]t is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), superseded by statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Rather, “the ADA makes clear that conclusions with respect to disability must be made on an individualized, fact-specific, case-by-case basis.” In re Chavis, 486 Md. at 266. Likewise, “the question of ‘[w]hether an accommodation is reasonable depends on the individual circumstances of each case, and requires a fact-specific, individualized analysis of the [ ] individual’s circumstances and the potential accommodations.’” Id. (alterations in original) (quoting Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 799 (9th Cir. 2017)).
In “[n]early every circuit court, including the Fourth Circuit,” the party claiming an ADA violation bears the burden of “requesting, identifying, or proposing a reasonable accommodation.” Adkins v. Peninsula Reg’l Med. Ctr. (Adkins I), 224 Md. App. 115, 148 (2015) (quoting Bennett v. Kaiser Permanente, 931 F. Supp. 2d 697, 716 n.4 (D. Md. 2013)), aff’d, 448 Md. 197 (2016); cf. In re S.Z.S., 524 P.3d 1209, 1214 (Colo. App. 2022) (“The [d]epartment can accommodate, and the juvenile court can address, only disabilities that are known to them.” (alteration in original) (citation omitted)). Although a “formal request” or “magic phrase[ ]” is not needed, there must be “adequate notice” of the party’s disability and need for an accommodation. Adkins I, 224 Md. App. at 140 (citation omitted); see also J.W. v. Paley, 81 F.4th 440, 450 (5th Cir. 2023) (explaining that “[n]otice beyond merely notice of the disability is required” for failure-to-accommodate claim under Title II of the ADA) (citing Windham v. Harris Cnty., 875 F.3d 229, 236 (5th Cir. 2017)). In assessing the adequacy of this notice, we determine whether the ADA claimant provided the opposing party “enough information . . . to know of both the disability and desire for an accommodation.” Peninsula Reg’l Med. Ctr. v. Adkins (Adkins II), 448 Md. 197, 216 (2016) (citation omitted).
“Reasonable Accommodations” in CINA Proceedings
We cannot find a Maryland appellate opinion in a CINA case that involves a claim against the Department under the ADA, so we look to those jurisdictions that have addressed ADA claims in cases involving their corollaries to Maryland’s CINA statute. It appears that multiple states have recognized the general principle that their state and local social services departments are required under the ADA to make reasonable accommodations for parents with disabilities in rendering reunification efforts in child abuse and neglect cases. See In re H.C., 187 A.3d 1254, 1265 (D.C. 2018) (“We take no issue with [the mother’s] contention that Title II of the ADA . . . entitled
her to reasonable accommodation of her intellectual and psychiatric disabilities in the provision of reunification services and the proceedings to determine the permanency goal for her child.”); accord In re S.K., 440 P.3d 1240, 1248 (Colo. App. 2019) (noting that “while Title II of the ADA is not a defense to termination of parental rights, it applies to the provision of assessments, treatment, and other services that the Department makes available to parents through a dependency and neglect proceeding before termination.”); In re K.L.N., 482 P.3d 650, 658 (Mont. 2021) (“We agree with numerous other courts the ADA requires the Department to make reasonable accommodations for those individuals with disabilities in the reunification services and programs it provides.”); Jessica P. v. Dep’t of Child Safety, 484 P.3d 148, 152 (Ariz. Ct. App. 2021) (noting that the social services department “must provide a disabled parent in a [child neglect proceeding] with reunification services that comply with the ADA.”).
Most jurisdictions that discuss the ADA’s application in child abuse and neglect cases also find that a department of social services’ obligation to make “reasonable accommodations” is consistent, if not synonymous, with the requirement to provide “reasonable efforts” under state law. See In re A.P., 868 S.E. 2d 692, 698 (N.C. Ct. App. 2022) (stating that in permanency planning proceedings, “when a department of social services . . . satisfies th[e] [reasonable efforts] requirement, it complies with the ADA’s mandate that individuals with disabilities be reasonably accommodated.”) (citing In re C.M.S, 646 S.E.2d 592, 595 (N.C. Ct. App. 2007)); In re H.C., 187 A.3d at 1265 (“We consider th[e] requirement of reasonable accommodation [under the ADA] to be entirely consistent with, and perhaps subsumed within, [the social services department’s] general statutory obligation to expend reasonable efforts to make reunification possible.”); In re K.L.N., 482 P.3d at 658-59 (“We conclude . . . the ADA requirements to provide reasonable accommodations are consistent with—and generally subsumed within—the requirements [under Montana’s child abuse and neglect statute] to provide reasonable efforts and to develop an appropriate treatment plan.”).
Among those jurisdictions that view the obligation to make “reasonable accommodations” as commutable with the requirement to provide “reasonable efforts,” some have declared that courts are not required to undertake an independent ADA analysis when determining whether a department properly addressed parents’ disabilities. See In re A.P., 868 S.E. 2d at 698 (holding that compliance with the state statute’s requirement of reasonable efforts necessarily satisfies the ADA’s mandate); Lucy J. v. Dep’t of Health & Soc. Servs., 244 P.3d 1099, 1116 (Alaska 2010) (“[T]he question whether reunification services reasonably accommodated a parent’s disability is already included within the question whether active or reasonable efforts were made to reunite the family.” (internal footnote omitted)); see also In re K.L.N., 482 P.3d at 660 (holding that Montana courts “need not make specific findings under the ADA” to terminate parental rights because “meeting the [reasonable efforts] requirements of the state statutes necessarily requires the Department to have complied with the requirements of the ADA”). Cf. In re S.K., 440 P.3d 1240, 1249 (2019) (noting that
the Colorado statute governing “reasonable efforts” specifically requires compliance with the ADA).
By contrast, the New York Court of Appeals has held that although the state’s social services department “undoubtedly must comply with the ADA,” the “reasonable efforts” requirement does not necessarily require the social services department to make “reasonable accommodations,” and that a court “is not required to determine compliance with the ADA in the course of a permanency proceeding” because “[t]he ADA’s ‘reasonable accommodations’ test is often a time- and fact-intensive process with multiple layers of inquiry” best conducted in “separate administrative or judicial proceedings, if required[.]” Lacee L. v. Stephanie L., 114 N.E.3d 123, 130 (N.Y. 2018); see also In re A.P., 728 A.2d 375, 379 (Pa. Super. Ct. 1999) (holding that inquiry into whether reasonable accommodations have been provided is “untenable” in the context of a permanency proceeding, because “the trial court’s focus is on the child’s best interests” and the ADA “adds nothing to the trial court’s fulfillment of its mandates[,]” including determination of whether reasonable efforts have been made to finalize permanency plan).
All the same, consistent with an ADA claimant’s burden, states generally require parents who seek accommodations for their disabilities in child abuse and neglect cases to inform the department of their specific disability and identify what accommodations are necessary. For example, in In re S.K, the Colorado Court of Appeals instructed that “the parent is responsible for disclosing to the Department and the juvenile court information regarding his or her mental impairment or other disability. And the parent should also identify any modifications that he or she believes are necessary to accommodate the disability.” 440 P.3d at 1248; see also In re Hicks/Brown, 893 N.W.2d 637, 640 (Mich. 2017) (“The Department, of course, cannot accommodate a disability of which it is unaware.”); In re D.R., 521 P.3d 545, 549 (Utah Ct. App. 2022) (holding that the ADA does not require the social services department and courts to explore or identify reasonable accommodations because “individual victims of an illness or disability may experience such a variety of symptoms that a mere diagnosis does not provide a sufficient basis for assessing the accommodations an individual with that diagnosis might need”). Thus, “before a public entity can be required under the ADA to provide reasonable accommodations, the entity must know that the individual is disabled, either because that disability is obvious or more likely because that individual, or someone else, has informed the entity of the disability.” In re S.K., 440 P.3d at 1248 (citing In re Hicks/Brown, 893 N.W.2d at 640); In re Michael A., 81 N.Y.S.3d 146, 149-50 (N.Y. App. Div. 2018) (rejecting the mother’s claim that the social services department failed to provide reasonable accommodations under the ADA where the mother failed to demonstrate that she was entitled to “services that were specifically tailored to individuals with cognitive limitations”).
After examining the relevant Maryland and federal statutes and cases, and considering the various approaches employed in other jurisdictions, we hold that the Department is generally required under the ADA to make reasonable accommodations for parents with disabilities in rendering reunification efforts
in CINA cases, to the extent that such disabilities are made known to the Department. The CINA statute instructs that in assessing the Department’s reasonable efforts, the court “shall consider[,]” among other things, the extent to which the Department “has complied with the law, regulations, state or federal court orders[.]” CJP § 3-816.1(c)(1); see also 42 U.S.C. § 12131(1) (providing that Title II of the ADA covers “any State or local government” and “any department, agency, . . . or other instrumentality of a State or . . . local government”). However, parents who seek accommodations for their disabilities in CINA cases must inform the Department of their specific disability and identify what accommodations are necessary. See Adkins v. Peninsula Reg’l Med. Ctr. (Adkins I), 224 Md. App. 115, 148 (2015) (the party claiming an ADA violation bears the burden of “requesting, identifying, or proposing a reasonable accommodation.”) (citation omitted). Depending on the circumstances, some parents may not be able to identify exactly what accommodations they require, but where, for example, the Department arranges mental health services or rehabilitation services through which necessary accommodations can be identified, it is the parent’s obligation to participate in those programs and provide the Department with all reports and assessments. Keeping in mind the broad purpose of the CINA statute, which “is to ensure that juvenile courts (and local departments of social services) exercise authority to protect and advance a child’s best interests when court intervention is required,” In re T.K., 480 Md. 122, 147, (2022) (citation omitted), we emphasize that the parents remain obligated to comply with the court orders and service agreements. See CJP § 3-802(a) (4) (providing that one of the purposes of the CINA statute is to “hold parents of children found to be in need of assistance responsible for remedying the circumstances that required the court’s intervention”).
We also conclude that the question whether reunification services reasonably accommodated a parent’s disability is already generally included within the question whether the Department met the CINA statute’s “reasonable efforts” requirement. One of the purposes of the CINA statute is, “[e] xcept as otherwise provided by law, to hold the [Department] responsible for providing services to assist the parents with remedying the circumstances that required the court’s intervention[.]” See CJP § 3-802(a)(5). Section 3- 816.1(c) mandates that in making its “reasonable efforts” determination, a court must consider whether the Department “has provided appropriate services that facilitate the achievement of a permanency plan for the child[.]” CJP § 3-816.1(c)(3). As mentioned previously, reunification with the parent or guardian is given the foremost priority under Maryland law. See CJP § 3-823(e)(1)(i); In re Blessen H., 392 Md. 684, 696 (2006); In re Yve S., 373 Md. 551, 575 (2003). Also, FL § 5-525(d)(2)(i), which governs out-of-home placement and foster care, expressly provides: “[a] child may not be committed to the custody or guardianship of [the] [D]epartment and placed in an out-ofhome placement solely because the child’s parent or guardian . . . has a disability[.]” See also FL § 5- 525(a)(2) (“‘Disability’ shall be construed in accordance with the ADA Amendments Act of 2008, P.L. 110-325.”).
Often, a parent’s disability is one of the contributing factors in a parent’s inability to achieve reunification, and thus the Department is required to assist the parent with that disability. 24 See In re Shirley B., 191 Md. App. 678, 692-93 (2010) (finding that the Department made reasonable efforts, where the mother’s “cognitive limitation” was the “primary barrier” for reunification and the Department referred her to DDA, DORS, and other services). As the Supreme Court of Maryland has explained, the services that the Department is required to provide include “those services[ ] designed to address both the root causes and the effect of the problem” such as “therapy to deal with illnesses, disorders, addictions, and other disabilities suffered by the parent or the child, [and] counseling designed to restore or strengthen bonding between parent and child[.]” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 500 (emphasis added). Indeed, the Supreme Court has observed, “when attempting to comply with the Adoption and Safe Families Act of 1997, agencies and the courts[ ] must, at the least, recognize that Congress has also expressed a concern that extra steps be taken to [e]nsure that the disabled are not subject to discrimination, however inadvertent it may be in a given case.” In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 675 (2002) (involving a parent with cognitive limitation).25
Analysis
We apply the foregoing precepts in our analysis of the record on appeal and conclude that the juvenile court was not clearly erroneous in finding that the Department fulfilled its obligations under CJP § 3-816.1(b) to make reasonable efforts to finalize the Children’s concurrent permanency plans. 26 During the review period, the Department provided Mother with numerous services. The record shows that the Department: arranged visits with the Children; referred Mother to DORS and “a portal that DORS offers” for her housing assistance; arranged Mother’s Zoom interview with DDA, submitted her DDA application, and provided her contact information to follow up; sent a new service plan to Mother for her signature; repeatedly attempted to obtain and verify her employment information; repeatedly attempted and ultimately obtained medical records relating to Mother’s autism diagnosis; made “extensive efforts” to obtain Mother’s mental health records and treatment information; and referred Mother to Kennedy Krieger and Sheppard Pratt to connect her with providers “who were experienced in providing mental health services to individuals with an autism diagnosis.”
Mother does not specifically challenge any of these findings. Instead, as noted, Mother’s primary argument is that these efforts did not reasonably accommodate her autism and thus violated the ADA. We disagree.
Although Mother’s counsel told the court that Mother had autism early in the CINA proceedings, the Department tried for many months before it was able to obtain, in May 2024, the treatment note from Dr. Newman that included the diagnosis of autism. Mother also rejected most of the Department’s health treatment service providers, and withheld verification of treatment from her own providers until May and July,
2024—well over a year after the Children were placed in the Department’s custody. As the juvenile court observed, Mother “was not cooperative” and “often . . . resist[ed] signing the consent forms.”
Meanwhile, Mother made no effort to show how her autism imposed a substantial limitation on her engagement in services offered by the Department. The documentation received from Dr. Newman showed only his diagnosis of autism, but did not detail how that diagnosis was made or what accommodations Mother required. Mother does not refute Ms. Baker’s testimony that Dr. Newman’s autism diagnosis was not enough to “ensure the appropriate level of accommodations and intervention[.]”27 Moreover, when the Department recommended that she receive further evaluation at Kennedy Krieger Institute and Sheppard Pratt, Mother did not cooperate, leaving the extent of her disability and need for accommodation unclear throughout the CINA proceedings.
The record shows that Mother did not make any specific request for accommodations during the review period. See Adkins v. Peninsula Reg’l Med. Ctr. (Adkins I), 224 Md. App. 115, 148 (2015) (explaining that under the ADA it is incumbent on the party seeking accommodation to request, identify or propose a reasonable accommodation). To the extent that Mother’s counsel raised her potential eligibility for DORS at the December 1, 2023 hearing, Mother interjected and informed the court and her counsel that that she was already working, thereby obviating the need for a DORS referral at the time. Still, the Department later assisted Mother with DORS referrals and follow- ups. Likewise, in January 2024, when Mother’s counsel requested referrals for mental health providers specializing in adults with autism, the Department—still not having received Dr. Newman’s note at that time—directed Mother to multiple evaluation agencies. Mother, instead, determined she would reach out to the Autism Society, but there is no evidence in the record that she did.
Mother argues on appeal, as she did at the final permanency review hearing, that the absence of a second signed service (or visitation) plan demonstrates the Department’s failure to reasonably accommodate her autism. However, we cannot locate where in the record Mother requested another service plan to accommodate her disability, and she does not provide citation to the record in her brief on appeal. Instead, the record indicates that the Department could not locate Mother—let alone discuss a service plan with her—until March 2024, and even then, she refused to sign another service plan.
Mother relies on In re James G.—a case that is factually dissimilar to hers—in support of her contention that the Department failed to provide reasonable efforts to facilitate reunification. In In re James G., a department case worker testified that the father’s main obstacles to reunification were lack of stable employment and housing, and the Department could not provide housing assistance until he had stable employment. 178 Md. App. at 550-53. Nonetheless, the Department only made “a single referral to one employment program” and did not assist him further when the father “call[ed] back and said that he did go [and] that they say they couldn’t help him.” Id. at 591-92 (alterations in original). On appeal, we concluded
that the juvenile court was clearly erroneous in finding that the Department had made reasonable efforts. Id. at 548. To the contrary, here, the Department offered numerous resources for housing, employment, and mental health treatment—many of which were frustrated or delayed by Mother’s failure to follow through.
We can discern no abuse of discretion in the juvenile court’s determination that the Department made reasonable efforts to achieve the permanency plan. Mother failed to specify the extent of her disability or the accommodations she required, yet the Department made numerous efforts during the relevant review period—from December 2023 to September 2024— to assist with what it could, given what it knew about her disability. Accordingly, we hold that the juvenile court’s finding of reasonable efforts towards Mother’s reunification with the Children was not clearly erroneous.
II.
CHILDREN’S BEST INTERESTS Parties’ Contentions
Mother contends the juvenile court should not have closed the Children’s CINA cases before giving her more time to achieve reunification because she “remained a fit parent and made progress with housing, mental health services, and visitation[.]” And, Mother asserts, “[w]here the evidence showed that [she] was making progress and that it was in the best interest of the children to be reunified with their mother, the court erred in granting custody and guardianship to the grandparents.” Although Mother admits to missing multiple visits with the Children “due to her own requests or cancellations[,]” she claims that the court, in finding no bond or emotional attachment, focused on the “logistics of the visits and [her] inconsistencies.” Mother further argues that the court “ignored” her progress over time. Specifically, Mother notes that during the period under review, she began “working with the [D]epartment to enter a job training program” in September 2024, “obtained stable housing with the New Life Recovery Center in July 2024[,]” and “receiv[ed] mental health treatment since at least July 2024[.]” As such, Mother claims that there would be “no prejudice to any party in waiting to see the results of six more months of therapy[.]”
In response, the Department maintains that Mother did not make “sufficient progress over the past 21 months[,]” and that the “concurrent permanency plans of reunification with Mother or custody and guardianship to the grandparents had been established at the March 2024 hearing.” Quoting CJP § 3-823(h) (5), the Department argues that the juvenile court was required to review and assess the progress that had been made on the concurrent plans, “with the goal of being able to ‘effectuate a permanent placement within 24 months after the date of the initial placement.’”
The Department emphasizes throughout the course of the CINA proceedings, it “unsuccessfully attempted to ensure that Mother received mental health treatment to enable the children to be safe in an unsupervised setting with her, but Mother has not remained for any length of time with one therapist, attended
a recommended treatment provider, or supplied any proof to the court or Department of her prognosis or a treatment regime that would ensure the [C]hildren’s safety.” The Department points out that under FL § 9-101, Mother had the burden to prove to the court that there was no further likelihood of abuse of the Children, and that the court could not grant Mother custody until it could make the requisite FL § 9-101 findings.
The juvenile court did not abuse its discretion, the Department insists, by giving little weight to Mother’s claim that she had recently progressed with her mental health treatment and finding instead that she had neglected her untreated mental health issues. It avers that Mother “did not demonstrate progress but [rather,] a likelihood to switch providers.” The Department refutes Mother’s claim that the court improperly relied on Mother’s inconsistent visits with the Children, and asserts that her failure to visit the Children from August 2023 to March 2024, “demonstrated her lack of commitment to the [C] hildren and their well-being.”
Analysis
The CINA statute requires that the juvenile court consider “[a]ll factors necessary to determine the best interests of the child” before granting custody and guardianship to a non-parent. CJP § 3-819.2(f)(1)(ii). We have long recognized that the best interests of the child is always “the overarching consideration” in custody and visitation determinations. In re I.Q., 264 Md. App. 265, 316 (2025) (quoting Baldwin v. Baynard, 215 Md. App. 82,108 (2013)).28
We review a juvenile court’s custody decision for abuse of discretion. In re R.S., 470 Md. 380, 398 (2020). “[A]n abuse of discretion exists where no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.” In re M., 251 Md. App. 86, 111 (2021) (cleaned up). For the purpose of our review, we recognize that it is within the sound discretion of the [juvenile court] to award custody according to the exigencies of each case, and . . . [s]uch broad discretion is vested in the [juvenile court] because only [the judge] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.
In re Yve S., 373 Md. 551, 585-86 (2003). The juvenile court’s decision “should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” In re R.S., 470 Md. at 398 (quoting In re Adoption of Cadence B., 417 Md. 146, 155 (2010)). Put differently, “we examine the juvenile court’s decision to see whether its determination of the child’s best interests was ‘beyond the fringe’ of what is ‘minimally acceptable.’” In re Ashley S., 431 Md. 678, 715 (2013) (quoting In re Yve S., 373 Md. at 583-84).
Consistent with its statutory obligations, the juvenile court
in the underlying permanency review hearing announced that the Children’s best interests should be its “primary focus.” The court found that the Children did not have any “ability to be safe and healthy” in Mother’s home, citing Mother’s “untreated mental health issues that have been neglected.” See FL § 9-101 and FL § 5-525(f)(1)(i). The court next considered the Children’s “attachment and emotional ties” to Mother and Grandparents, respectively, finding that they “have some feelings towards” Mother but did not have “significant attachment and emotional ties to her[,]” and that they “appear to have a close bond with both [G]randparents.” See FL §§ 5-525(f)(1)(ii)-(iii). The court also noted the length of time that the Children had been living with Grandparents—since December 2022—and found that “there would be significant and substantial harm” if they were removed from Grandparents’ home. See FL §§ 5-525(f)(1)(iv)(v). Finally, as to the “potential harm to the child by remaining in State custody for an excessive period of time[,]” the court noted that “foster care is not a long-term plan” and that the Children “deserve permanency.” See FL § 5-525(f)(1)(vi). We conclude that the court made extensive findings reflecting careful consideration of “[a]ll factors necessary to determine the best interests of the child[,]” as required by CJP § 3-819.2(f)(1)(ii).
Mother challenges the juvenile court’s finding that the Children lacked “significant attachment and emotional ties to her[,]” claiming that the court ignored Grandmother’s testimony that the Children missed her. We disagree. Though acknowledging that the Children missed Mother and had “positive time” during visits, Grandmother also testified that they were “a little stressed, and a little uneasy[.]” She recounted an instance where Mother raised her voice at B.F. and startled the child, who “kept coming over” to Grandmother during that visit. Grandmother further testified that the Children were “upset” after Mother’s outburst at the May 26, 2024 visit. In sum, under our deferential standard of review, there is sufficient evidence to support the court’s factual findings. See In re I.Q., 264 Md. App. at 310.
Mother also claims that the juvenile court ignored her progress over the last few months of the CINA proceedings— especially from July to September 2024—but the record shows otherwise. The court expressly considered a “very recent” report that Mother had begun “some form of therapy, both with HOME and with New Life Recovery” but found that “substantive treatment information” was lacking. The court also noted that she continued to miss visits during the “most recent time period since July.” As the CINA proceedings, which began in December 2022, neared the 24-month “benchmark” set by the General Assembly, In re M., 251 Md. App. at 119, the record reveals that Mother’s efforts remained largely inconsistent and deficient.
Furthermore, although the focus of the underlying review hearing was the period from December 2023 to September 2024, this does not mean that the court must completely disregard Mother’s lack of progress in the past. “Reliance upon past behavior as a basis for ascertaining the parent’s present and future actions directly serves the purpose of the CINA statute.” In re Adriana T., 208 Md. App. 545, 570 (2012) (citations omitted). This principle equally applies to “the inaction of a parent over time.” In re Priscilla B., 214 Md. App. 600, 625 (2013). “To the
extent that inaction repeats itself, courts can appropriately view that pattern of omission as a predictor of future behavior, active or passive[.]” Id. Given Mother’s missed visits and appointments, and her lack of communication regarding her employment, housing, and mental health treatment over nearly two years, awarding custody and guardianship to Grandparents—while allowing Mother to continue with supervised visitations— cannot be said to be “‘beyond the fringe’ of what is ‘minimally acceptable.’” In re Ashley S., 431 Md. at 715.
Finally, we disagree with Mother’s claim that there would be “no prejudice to any party in waiting to see the results of six more months of therapy.” Our law is clear: “a child should have permanency in his or her life.” In re Jayden G., 433 Md. 50, 84 (2013). As the Supreme Court of Maryland emphasized, it is in the child’s best interest “to spend as little time as possible” in the Department’s custody before finding a “permanent home.” Id. “Permanency for children means having ‘constant, loving parents,’ knowing ‘that their homes will always be their home; that their brothers and sisters will always be near; and that their neighborhoods and schools are
familiar places.’” Id. at 82-83 (citations omitted). “[I]t is this ‘emotional commitment’ and a sense of permanency that are absolutely necessary to ensure a child’s healthy psychological and physical development.” Id. at 84.
Overall, the record supports the juvenile court’s finding that Mother failed to make sufficient progress toward reunification over the course of the CINA proceedings. The court found that Mother’s “[u]ntreated mental health issues” made the home unsafe for the Children, and that she only received sporadic mental health services for much of the subsequent 21-month period. Mother was also uncooperative with the Department’s efforts to monitor her progress. In the meantime, Grandparents—especially Grandmother—took care of the Children, addressed their medical and psychological needs, and provided them with a stable home. We hold that the juvenile court did not abuse its discretion in determining that it was in the Children’s best interests to terminate the CINA proceedings and award custody and guardianship of the Children to their maternal Grandparents.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Although Mother testified that she changed her name in 2024, we refer to her as “Ms. F.,” consistent with the circuit court’s record and Mother’s own brief on appeal. We mean no disrespect thereby.
2 The Children’s father was a party in the underlying proceedings, but is not a party to this appeal. He did not attend any hearings in the CINA cases below, except for a brief, unannounced appearance on July 23, 2024.
3 In her appellate brief, Mother presents the following single question:
1. Did the court commit error when it ended Ms. F’s opportunity to reunify with her children and closed the CINA cases by granting custody and guardianship of the children to their grandparents?
4 When the court determines the child’s permanency plan, it must “consider the factors specified in [FL] § 5-525(f)(1)[.]” CJP § 3-823(e)(2). Those factors are:
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
FL § 5-525(f)(1).
5 Consistent with this principle, the CINA statute provides the following hierarchy of placement options in “descending order of priority”: (1) reunification with the parent; (2) placement with a relative for adoption or custody and guardianship; (3) adoption by a non-relative; (4) custody and guardianship by a non-relative; or (5) for a child at least 16 years old, another planned permanent living arrangement that addresses the individualized needs of the child and promotes continuity of relations with individuals who will play a “lasting and significant role in the child’s life.” CJP § 3-823(e)(1)(i).
6 Such a report “shall include a: (i) Home study; (ii) Child protective services history;
(iii) Criminal history records check; and (iv) Review of the proposed guardian’s physical and mental health history.” CJP § 3-819.2(f)(2). A court may not grant custody and guardianship to a non-parent until that report “is submitted to and considered by the court.” CJP § 3-819.2(h).
7 L.R., a child from Mother’s previous relationship, was not a party to the underlying CINA cases.
8 The following facts are based on the factual allegations contained in the Department’s amended CINA petition, filed on February 10, 2023, and sustained by the juvenile court.
9 In addition, at the June 30, 2023 review hearing, the Children’s counsel proffered that Mother “assist[ed] with cooking some meals for the [C]hildren during the week[ ] and also some of the laundry.”
10 Contrary to her counsel’s representation, Mother’s autism was only briefly mentioned once at the February 10, 2023 hearing and appears nowhere else in the record prior to the June 30, 2023 hearing.
11 Although Ms. Baker’s court report, dated November 13, 2023, lists the company as “Blue Sweetz,” all other records list it as “Sweet Bluez.”
12 According to the Department, Mother’s sole in-person contact with the Children during this period was a three-minute encounter in August 2023, at which time she “gave them a hug.”
13 During the final permanency review hearing that is subject to this appeal, the juvenile court took judicial notice of Mother’s violation of probation and extension of her probation.
14 Mother’s counsel stated that Mother’s employment was “new news” to her, despite having spoken with Mother the day before, but acknowledged that counsel might have “heard her wrong.”
15 There is no record indicating whether Mother reached out to the Autism Society.
16 According to Mother, she had a “quick conversation” with a DORS employee, who informed her that she was “not in [its] service area[,]” and her referral needed to be resubmitted. Despite Ms. Baker’s follow-up inquiries, Mother was unable to identify the DORS employee or the specific DORS location to which the referral should be resubmitted.
17 The DDA is a branch of Maryland’s Department of Health. According to its website, the DDA “provides a coordinated service delivery system for people with developmental disabilities” and “partners with people with developmental disabilities and their families to provide leadership and resources to enable these individuals in living fulfilling lives.” Developmental Disabilities Administration, https://health.maryland.gov/DDA/pages/home. aspx (last visited May 19, 2025).
18 Although the Department’s court report stated that Mother was placed at Karis Home via a DORS referral, Mother later testified that she found out about Karis Home through an email from Ms. Baker and was not placed by DORS.
19 Ms. Baker subsequently requested Mother’s evaluation from HOME, but she did not receive it by the conclusion of the CINA proceedings.
20 During the final permanency review hearing, Mother testified that she was prescribed medications for her arthritis and slipped disc. She also acknowledged having “a medical marijuana card” but denied using it.
21 Around the same time, Mother informed Ms. Baker that the Children might be subject to the Indian Children Welfare Act (“ICWA”), indicating that she was a “Blackfoot-Cherokee Indian” through her father (Grandmother’s ex-husband). Ms. Baker spoke with her supervisor, Monique Swain, who also never had experience with ICWA. Following the instructions from her superiors, Ms. Swain emailed the Cherokee Nation to notify them about the Children. At the conclusion of the CINA proceedings, the juvenile court held that ICWA did not apply, finding no “sufficient credible evidence” for Mother’s claim; Mother does not challenge this ruling.
22 Although the juvenile court did not specify what the “regular visits” refer to, Mother claims, and the Department does not contest, that these visits mean the Department’s visits to Grandmother’s home.
23 For purposes of Title II, a “qualified individual with a disability” is: an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.42 U.S.C. § 12131(2); see also 42 USC § 12102(1) (defining “disability” under the ADA).
24 We observe that our published opinions routinely involve at least one parent with a “disability” as defined under the ADA, 42 U.S.C. § 12102, that the Department was required to address in its services plan. See, e.g., In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 727, 730 (2014) (stating that the mother’s drinking problem was the “primary barrier” to reunification and that the Department fulfilled its obligations under the service agreement by providing referrals for doctors and treatment programs); In re Adoption/Guardianship of Amber R., 417 Md. 701, 706 (2011) (stating that the Department made referrals for the parent with history of substance abuse to “drug treatment programs, parenting classes, job skills classes, housing assistance, and supervised visitation assistance” (internal footnote omitted)); In re Adoption/Guardianship of Darjal C., 191 Md. App. 505, 512 (2010) (providing that the Department followed the service plan by referring a parent with multiple mental health issues to a provider who offers “counseling, psychiatric evaluation, and therapy services”); In re Alijah Q., 195 Md. App. 491, 495 (2010) (stating that the service plan required the Department to provide the parent with “referrals for various services,” including in-patient substance abuse treatment and medication management); In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 481, 503 (2007) (noting that the mother was unable to comply with the Department’s services to facilitate reunification “due to her disability and limitations”).
25 Although In re Nos. J9610436 and J9711031 involved a termination of parental rights (“TPR”) proceeding, the Supreme Court of Maryland’s reference to the Adoption and Safe Families Act of 1997 (“ASFA”) applies to the “reasonable efforts” requirement in both the CINA and TPR contexts. In In re James G., we explained the relationship between our CINA statute and the ASFA: Under Title IV–B and IV–E, as amended by ASFA, in order to receive federal funding, a state is required to implement a federally-approved state plan for the delivery of child welfare services, which, in relevant part, must provide that “reasonable efforts shall be made to preserve and reunify families . . . to make it possible for a child to safely return to the child’s home,” if such efforts are consistent with the permanency plan for the child. 42 U.S.C. § 671(a)(15)(B). However, ASFA also mandates that, “in determining reasonable efforts to be made with respect to a child . . . and in making such reasonable efforts, the child’s health and safety shall be the paramount concern.” Id., § 671(a) (15)(A). Therefore, when continuation of reunification efforts is inconsistent with the permanency plan, the state plan must provide for completion of “whatever steps are necessary to finalize the permanent placement of the child. ” Id., § 671(a) (15)(C). 178 Md. App. at 576-77 (alterations in original).
26 We note that Mother claims in her brief on appeal that some of the “efforts” identified by the juvenile court
were “duties” rather than “services” of the Department, and therefore, as we understand her brief, should not have been considered. However, Mother fails to specify which of the Department’s efforts, besides home visits to the Children, she considers “duties” rather than “services.” Regardless, the CINA statute does not support such a distinction. Rather, COMAR 07.02.11.03(B)(60) expressly defines “services provided to facilitate achievement of the child’s permanency plan” to include “[s]upervision of the child’s out-of-home placement to ensure the child’s safety and well- being.”
27 It is established under the ADA jurisprudence that “[i]t is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002); see also In re D.R., 521 P.3d 545, 549 (Utah Ct. App. 2022) (“[I]ndividual victims of an illness or disability may experience such a variety of symptoms that a mere diagnosis does not provide a sufficient basis for assessing the accommodations an individual with that diagnosis might need.”). This is particularly true in the case of autism, which involves “a wide array of diagnostic traits, behaviors, and challenges” and may “vary from person to person.” D.L. ex rel. A.L. v. Walt Disney Parks and Resorts US, Inc., 900 F.3d 1270, 1290 (11th Cir. 2018). As the Supreme Court of Maryland has recognized, “‘autism,’ itself, is not a single disorder but a ‘set of developmental disorders characterized by sustained impairments in social interaction [and] communication,’ and . . . ‘autism,’ and ‘autistic spectrum disorders’ refer to a ‘broad[
] group of pervasive developmental disorders.’” Blackwell v. Wyeth, 408 Md. 575, 630 (2009) (alterations in original) (quoting Institute of Medicine, Immunization Safety Review: Vaccines and Autism, Washington, D.C. (National Academies Press 2004)). Thus, the necessary accommodation for individuals with autism “at one end of the spectrum will differ dramatically from those . . . at the other end[.]” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 394 (2017) (citation omitted). Indeed, federal courts have rejected failure-to- accommodate claims by plaintiffs who, even with the diagnosis of autism, failed to show any impediments. See Preston v. Great Lakes Specialty Fin., Inc., 724 F.App’x 453, 456 (6th Cir. 2018); Manson v. Md. State Bd. of Physicians, No. 1:20-CV-03345-SAG, 2021 WL 2352285, at *4 (D. Md. June 9, 2021) (dismissing a complaint under Title II of the ADA where the plaintiff who had autism failed to demonstrate how his requested accommodation would have “facilitate[d] his equal access to [the defendant’s] programs, services, or benefits”).
28 We also note that where, as here, a child was declared a CINA due to abuse or neglect, the court must “specifically find[ ] that there is no likelihood of further child abuse or neglect” before granting custody or unsupervised visitation to the abusive or neglectful parent. FL § 9-101(b); see In re X.R., 254 Md. App. 608, 627 (2022). Absent such findings, the court may only “approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.” FL § 9-101(b).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s finding that the minor was a child in need of assistance and awarding custody to the Prince George’s County Department of Social Services. The evidence presented supports a finding that neither mother nor father appear willing or able to care for the minor. In addition to the Department’s concerns regarding housing, income and childcare, mother and father’s consistent unwillingness to engage with the Department further supports this finding.
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..
arose surrounding N.H.’s eating and failure to gain weight. The Department also reported that, at that time, Mother mentioned to family members and medical providers “that she heard voices that told her to do things.” Mother reported to N.H.’s pediatrician that she was “having negative thoughts about N.H. that included harming her.” The Department reported that the “Agency worked with the family to address the above listed issues with minimal success.” Mother’s parental rights to N.H. were terminated and the case was closed in January 2019 with custody and guardianship of N.H. granted to relatives.
This appeal arises from an order of the Circuit Court for Baltimore County, sitting as a juvenile court, finding respondent J.E. to be a Child in Need of Assistance (“CINA”) and awarding custody to the Prince George’s County Department of Social Services (“the Department”). Ms. N., mother of J.E. (“Mother”) and Mr. E., father of J.E. (“Father”), appealed the circuit court’s order. On appeal, Mother and Father presented two questions for our consideration, which we have consolidated and rephrased:
1. Whether the circuit court made clearly erroneous factual findings at Adjudication.
2. Whether the circuit court erred as a matter of law in finding that J.E. is a Child in Need of Assistance. For the reasons explained herein, although we find some errors in the court’s factual findings, we shall affirm the circuit court’s ultimate CINA finding.
FACTS AND PROCEDURAL HISTORY
Mother’s history with the Department
In February 2017, Mother’s first child, N.H. was born. Shortly thereafter, the Department initiated a risk of harm assessment regarding concerns about her parents’ ability to care for her. At that time, no father was identified. According to Department reports, “there were specific concerns about the parents’ substance use, domestic violence, and cognitive limitations.” During the investigation, additional concerns
In January 2019, Mother gave birth to her second child, H.N. Five days after birth, H.N. was discharged from the hospital into shelter care and placed in a foster home. The Department’s reports indicate that this removal was based on “ongoing concerns regarding [Mother]’s untreated mental illness and substance abuse, as well as the conditions in the home.” The Department reported that in February 2019, Mother received a psychological evaluation at BTST [Better Tomorrow Starts Today], a mental health agency, and was diagnosed with a schizoaffective disorder. It was then recommended that she complete a fitness to parent assessment. In October 2019, Mother completed a court-ordered psychological parenting evaluation with Dr. Robert Kraft. According to the Department, Dr. Kraft completed the IQ testing with Mother, including the Parent Awareness Skills Survey, which is a clinical tool designed to illuminate strengths and weaknesses and awareness skills a parent accesses in reaction to typical childcare situations. Mother’s performance on the parent awareness skill survey resulted in a standard score of 72, a lower borderline value that is exceeded by 97% of the normative sample population of parents.
Based on this assessment, the Department reported that,
Mother’s cognitive limitations, lack of insight, and lack of adequate knowledge of parenting practices represent significant risk factors for dysfunctional parenting, particularly with very young children. It was recommended that Mother continue receiving individual supportive psychotherapy. Due to her cognitive limitations, Dr. Kraft reported that she is not a good candidate for insight-oriented psychotherapy. It was also recommended that Mother receive one-onone parenting support where a provider could model appropriate parenting practices, complete
a substance abuse evaluation and follow any treatment recommendations.
Mother’s parental rights to H.N. were voluntarily terminated in October 2021 and H.N. was adopted in July 2022.
Mother’s third child, R.N., was born in November 2020 at Franklin Square Hospital. Following his birth, the Department received a substance exposed newborn referral from the hospital after Mother tested positive for marijuana at delivery. The Department conducted a risk assessment and, after a Family Team Decision Making Meeting, determined that R.N. should be taken into Department custody. In the shelter care order, the Department cited Mother’s inability “to provide appropriate care due to her uncontrolled mental health and substance abuse issues.” In May 2022, Father was identified as R.N.’s father. At the time, he was incarcerated. Father briefly engaged with the Department after learning of R.N., and he expressed an interest in reunification. When the Department sent Father release forms for mental health and substance abuse providers, however, he did not respond and never resumed contact. Mother and Father’s parental rights to R.N. were terminated in May 2023.
Mother maintained a contentious relationship with the Department during this period. It is clear from the record that Mother struggled with establishing and maintaining a strong bond with her children during the supervised visitation periods she attended. She often became frustrated and distracted by her anger towards the supervising social workers when they would make suggestions regarding how Mother attended to her children, what she brought to feed them, or how she responded to their needs. At one visit, Mother became angry at H.N. when she referred to her foster mother as “mom.” Mother’s struggle with needing support and guidance while rejecting what she perceived as interference by the Department is evident from the Department’s reports. The Department reported that Mother became easily overwhelmed when supervising both H.N. and R.N., and appeared to favor spending time with H.N.
The Department’s notes also indicate that Mother demonstrated limited knowledge of child development and behavior. During visitation with both H.N. and R.N., Mother often ignored R.N. and lashed out at H.N. for behaviors the Department classified as developmentally appropriate. The Department offered several examples in which Mother was unable to appropriately engage with her children, including one in which she believed two-year old H.N. was saying “a**hole” when she was trying to say “pretzel.” Mother became “fixated on this throughout the rest of the visit, instead of engaging with her children.” Mother continued to become angry and yell at H.N. any time she said the word “pretzel.”
The Department reported that Mother struggled to adapt to her children’s needs during visits, explaining that Mother appears fixated on the plans that she had for the visit and lacks the ability to be flexible with [R.N.] and to engage [R.N.] in varying ways to improve the over all [sic] visit. For example, during a visit in April, [Mother] brought several books to the visit. [R.N.] is mobile and prefers to move around. [Mother] strapped him into a chair in the visitation room to read him books.
Mother “yelled/demanded that [R.N.] is her child and that
she will read all of the books to him,” despite suggestions from her mother and the social worker that other activities may be more appropriate. At another visit, when the social worker suggested that Mother feed R.N. fewer snacks, Mother “began to yell and curse at [the social worker] and would not calm down.” Her “behavior escalated quickly, and administrators and security were called to the room to intervene. She continued to yell and curse at staff. [Mother] was asked to leave the building due to her behavior . . . On her way out, [Mother] damaged the wheelchair accessible door . . . by pushing through the door with excessive force.”
The Department also expressed concerns regarding Mother’s unwillingness to submit to substance abuse and mental health evaluations. Although Mother did complete some substance abuse testing that produced negative results, she did not consistently fulfill the Department’s requests for regular drug testing following R.N.’s birth. Most concerning to the Department, however, was Mother’s unwillingness to share her mental health records. It appears from the record that Mother did engage in mental health treatment with Thrive Behavioral Health at least through 2022. Mother did not, however, agree at any point during this period or beyond to sign the release documents necessary to permit the Department to review her records. Mother allowed Thrive to confirm with the Department that she was receiving ongoing therapy, but the Department was unable to obtain updated evaluations or diagnoses beyond the 2019 report from Dr. Kraft. Mother cited her distrust of the Department as the primary reason for refusing to share her mental health records. The Department’s inability to “collaborate with Mother’s mental health providers to mitigate risk factors for safety,” appears to be a primary reason for continuing to shelter both H.N. and R.N. in the lead up to Mother’s parental rights being terminated.
Removing J.E. from Mother’s custody
On April 23, 2024, Mother gave birth to her fourth child, J.E., at the Baltimore Washington Medical Center (“BWMC”). At the time of J.E.’s birth, Father was incarcerated at the Baltimore City Correctional Center. Following J.E.’s birth, Care Manager Tenesha Ellis (“Ellis”) received a consult for Mother based on Mother “being late to prenatal care, unclear mental health history, incarcerated [father of the baby], and her 3 other children being in foster care.” Medical records note that Mother had first obtained prenatal care at twentyseven weeks. Mother indicated that she “worried about presenting to care because she reports that the other three children were ‘stolen’ by social services/CPS.” It appears from the medical notes that Mother believed that obtaining private insurance, rather than using Medicaid, would provide some protection from Department involvement. She indicated that once she knew she was pregnant, she “had to get good insurance,” which she did. According to Ellis’s notes, Mother also discussed with her obstetrician the possibility of obtaining doula services and having a home birth to avoid the hospital, where two of her children were removed, and expressed concern that naming her child and obtaining a social security number for him would potentially lead to removal. Mother did, however, obtain prenatal care, present
to the hospital to give birth, name her child, and apply for his social security number.
During her consultation with Ellis, Mother confirmed a history of PTSD, anxiety, and depression. According to Ellis’s notes, Mother’s prenatal record indicated that Mother reported to her obstetrician that she was diagnosed with schizophrenia for “hearing voices.” Mother denied this diagnosis when Ellis inquired about it. Mother told Ellis that her mental health conditions are “mild and well controlled without medication or treatment,” and that she had discontinued medication and therapy. When asked about her three other children, Mother denied that they had been put in foster care and indicated that they lived with her mother and that she had no open case with the Department.
Following the consultation, Ellis made a referral to Lauren Smith (“Smith”) at the Department “due to concerns that [Mother] may have an open case as well as active concerns keeping her from being able to properly care for her children at this time.” Ellis also noted “concern for the extreme measures that [Mother] has considered not to have CPS involved,” and “uncertainty about the extent of her untreated mental health.” In reply, Smith told Ellis “to place a hold on the infant’s discharge.” Ellis also noted that Mother “is not aware that this report was made for safety reasons.”
The following morning, Ellis contacted Smith to follow up because Mother was requesting discharge. When she did not receive a response, she contacted the main Department screening line and spoke with Emily Rivera, who reiterated the “need to hold the infant’s discharge as the patient’s rights to her prior children were involuntarily terminated and she cannot leave with this infant.” A short time later Ellis was contacted by Megan Whitman (“Whitman”), who was assigned to Mother’s case. Whitman told Ellis that “the plan is to place this child into foster care as the patient is unable to care for the infant.” Whitman said she would contact Mother to inform her of the plan, but Ellis “shared concerns regarding informing [Mother] via telephone and stated she would talk with the treatment team to develop a plan to inform [Mother] and follow up.” Whitman agreed and said she would come to the hospital the following day with the shelter agreement. Neither Whitman nor any other employee of the Department had seen, spoken with, or evaluated Mother or J.E. when this decision was made.
Following this call, Ellis met with Mother’s treatment team to discuss options for informing Mother that her child would be taken into foster care. When they arrived at the room, however, Mother told them she would be staying an additional night. Ellis, therefore, chose not to inform Mother of the Department’s plan to remove J.E. When Ellis spoke with Whitman, she “was in agreement with the decision not to inform [Mother] based on past experience with [her].” A note was added to Mother’s chart alerting hospital staff not to inform Mother that the Department had been contacted.
The next afternoon, Whitman and another social worker, Faith James, arrived at the hospital. Ellis contacted the security supervisor to “be on the unit on standby” while the Department informed Mother that they would be taking her child into custody. Ellis explained what happened next in her notes:
[Mother] expressed a number of concerns regarding the removal and her history with [the Department]. Unfortunately, [Mother] became argumentative with the worker and refused to allow her to take the infant. She did threaten to harm the worker if she tries to take the infant but did not make any attempts to do so. [Mother] stated a belief that her rights were being violated and requested to call the police. The Security Supervisor informed her there is an Anne Arundel County Police Officer on site and offered to have him come speak with the patient; she agreed. The [Department] Workers exited the room as not to continue to escalate the patient. The officer responded to the unit and tried to calm the patient. The patient was encouraged to attend the court hearing and ensure the judge hears her side of the situation.
During the conversation, [Mother] was very tearful, crying hysterically and hyperventilating. She went to snatch the crib card from the side of the bassinet causing it to shift. At that time, this writer removed the bassinet with the baby in it from the room as a safety precaution. The team attempted to leave the room to allow her time with her mother to calm down.
A short time later [Mother] was heard screaming and crying so a Code Green was called to obtain behavioral health support. [Mother’s care team] responded to the code. Lindsay-Psych CRNP completed an assessment with [Mother], reasoned with her and offered medication assistance to help calm her but [Mother] declined. [Mother’s] mother stepped out prior to the code green but then returned and was able to support [Mother]. So, the code was cleared.
During the Code Green event, Mother spent 110 minutes with nurse practitioner Lindsay Brooke Abbott (“Abbott”), CRNP for a psychiatric evaluation. Abbott wrote: [Mother] was visibly distraught upon initial approach. Continued affective and mood lability. At least at this time, however, [Mother] appears to be appropriately distressed by a highly distressing situation. There is no evidence of acute psychiatric decompensation. She is not floridly psychotic. There is some concern regarding the possibility of an underlying developmental/intellectual disorder. [Mother] generally presents as somewhat childlike. She spoke at length about her desire to raise a family. Spoke at length re: perceived unfairness related to the continued prohibition that she raise her own children . . . [Mother] suggested that, per [the Department], she was previously required to meet with an outpatient psychiatrist. Insisted that this psychiatrist did not find a primary psychiatric disorder. [Mother] reported that her first child
was removed in 2017 on account of concerns regarding lead and mold within her mother’s home. She stated that her second child was removed in 2019 even though she had acquired her own apartment at that time. [Mother] repeatedly endorsed perceived responsibility to her children. Spontaneously demonstrated that she has tattooed all of their names on her left anterior forearm. While agitated/distraught, she made somewhat provocative but also extremely vague statements regarding a desire to harm anyone involved in taking her children away from her.
Abbott further noted that Mother “remained cooperative throughout interview.” She reported “[i]ncreased spontaneous speech. Sometimes LOUD but clearly emotion-driven.” Abbott found that Mother was “neither manic nor hypomanic,” that she expressed no “formal thought disorder,” and that there was no “overt delusional material evident.” For her plan, Abbott wrote: At least at this time, [Mother] appears to be appropriately distressed by a high distressing situation. There is no evidence of acute psychiatric decompensation. She appears to be highly motivated to attend an upcoming hearing related to [the Department] decision for removal. There is no clear indication for inpatient psychiatric treatment on an involuntary basis.
During this time, J.E. was discharged into the custody of the Department.
At the shelter care hearing the following day, the court found that remaining in his home was contrary to J.E.’s welfare and that it was not possible to return him to his home because of the family’s long history with the Department; prior termination of both Mother and Father’s parental rights to their other children; Mother’s diagnosis with Schizoaffective Disorder, Adjustment Disorder, and other personality disorders; Mother’s self-report that she was no longer in mental health treatment; and Father’s incarceration. The court also found that the Department made reasonable efforts to prevent or eliminate the need for J.E.’s removal, citing: “Child Protective Service investigation/risk assessment completed; on-going family services case; referrals made, records reviewed; and Family Team Decision Making meeting held, family members explored.” It was ordered that Mother shall “cooperate with the Department by providing family background information; signing Release of Information forms regarding educational, medical, mental health, and substance abuse services and treatment that are necessary to provide services to the child and family.” An adjudication hearing was scheduled for June 24, 2024.
Following J.E.’s removal, Mother initially attended weekly visits with him. During the visits, the Department reported that Mother “needed guidance on how to hold [J.E.]’s head properly,” and that she “wanted reassurance,” from the Department, but that she was “able to meet [J.E.]’s basic needs during her visit such as feeding, burping, and changing his diaper.” Mother last visited with J.E. on May 30, 2024. Following that visit, Mother stopped attending visits either by not showing up or failing to confirm the visitation time. Mother also declined to attend any
of J.E.’s pediatrician appointments.
On May 24, 2024, Whitman visited Mother’s new apartment to conduct an assessment. Mother’s home was furnished with lamps, tables, a dining room set, couch, and a bed. It also had a bassinette, an infant car seat, and baby formula. According to the Department’s June 10 report, however, it did not appear that Mother was actively living in the apartment because it had “minimal furniture,” and there “was no food in the refrigerator or indications meals were being prepared there.” Mother declined to provide a lease agreement to the Department.
On June 6, 2024, Mother did not attend the scheduled Family Team Decision Making meeting because she “was under the impression that it was an adoptions meeting.” Father, who was still incarcerated, did attend the meeting remotely but told the Department that he had no intention of working with them when he was released. Father also failed to provide any proof of income to the Department. Father was released from incarceration on June 12, 2024, and did attend a supervised visit with J.E. on July 25. According to the Department, Father told the social worker that he did not need assistance with the baby because he has eighteen other children. He did not attend any further visits with J.E. and has remained unwilling to work with the Department.
On June 25, 2024, Mother filed a motion to postpone adjudication because her attorney was ill. A new hearing was schedule for September 17, 2024. Ahead of the hearing, the Department filed its Amended CINA Petition with Request for Commitment. In the petition, the Department included the following allegations in support of its request:1
1. [Mother] planned to have a home birth so Child Protective Services would not know she had another baby. [Mother] . . . contemplated giving a fake name at admissions. [Mother] was also reluctant to name her son due to worries his name would be associated to a social security number and CPS would be notified and ‘steal’ her baby.
2. . . . During the removal process, [Mother] became verbally aggressive towards staff and made threats to physically harm them. Hospital security and Anne Arundel Police needed to assist with the removal process. Once the baby was removed from the room, a code purple was called, indicating [Mother] needed mental health supports.
3. . . .[Mother] appeared delusional regarding how the concerns were reported and presented as hyperverbal. Despite attempts to deescalate the situation, she was adamant “no one was stealing her baby.” Hospital staff assisted with removing the baby from the room. [Mother] attempted to [g]rab the crib but was unsuccessful.
4. . . .BWMC staff reported that [Mother] is “childlike” and needs reminders to feed [J.E.] and attend to his basic needs.
9. [Mother] is diagnosed with Schizoaffective Disorder, Adjustment Disorder with depressed
mood, and other specified personality disorder with schizotypal features. She reported to BWMC that she is no longer in mental health treatment, due to it not being helpful.
10. [Mother] is diagnosed with Borderline intellectual functioning; her cognitive limitations impact her ability to use sound judgment and implement safe parenting practices. In October 2019, [Mother] completed a Psychological Evaluation of Parenting Capacity. Dr. Robert Kraft reported that, “[Mother]’s cognitive limitations, lack of insight and lack of adequate knowledge of parenting practices represent significant risk factors for dysfunctional parenting, particularly with very young child.”
11. The Department also has concerns pertaining to [Mother]’s history of domestic violence. [Mother] has continued to engage with [Father] . . . with whom [Mother has] reportedly ha[d] a history of domestic violence.
12. [Father] . . . is unable to provide care to [J.E.] At the time of [J.E.]’s birth, father was incarcerated at the Baltimore City Correctional Center. Since [Father]’s release from the Baltimore City Correctional Center on June 12, 2024, father has not cooperated with the Department. [Father] has a 2022 2nd Degree Assault conviction (and two subsequent violations of probation). . . . [Father] does not have stable housing and has not provided the Department with employment verification.
The Department also noted in their petition that, [r]easonable but unsuccessful efforts were made to prevent or eliminate the removal of [J.E.] from the home and/or prevent or eliminate the need for a CINA finding on behalf of [J.E.]. Specifically, exploring relatives, facilitating visitation between [J.E.] and parents, making referrals to parents for services, reviewing records, communicating with hospital staff and holding a post-shelter Family Team Decision Making Meeting.
During the September adjudication hearing, the Department called two witnesses, Whitman and Valarie LaSota-Brown (“LaSota-Brown”), supervisor in the Family Preservation Program. Whitman testified that on the day of J.E.’s birth, the hospital called the Department’s screening unit regarding Mother because “[t]hey were reporting concerns regarding [Mother’s] mental health as well as her other three children not being in her care, and great extremes . . . trying to avoid Departmental involvement prior to [J.E.’s] birth.” She explained that Mother had “disclosed that she attempted to have a home birth. When that did not occur, she did consider giving a false name upon admission. She also did not seek prenatal care until 27 weeks. And she was under the impression that if she got private insurance, we would not also be notified.” Whitman also testified that when she spoke to Ellis over the phone, Ellis
informed her that hospital staff “reported that [Mother] was childlike and needed reminders and prompts to feed [J.E.] and attend to his basic needs.”
At the time of J.E.’s removal, Whitman testified that she “coordinated with hospital staff to have security on site . . . purely for safety concerns based on the history that I read throughout the case.” Upon entering Mother’s room, Whitman testified that Mother immediately knew why I was there and became very agitated, started yelling stating that I was trying to steal her child, that she has private insurance so I was violating HIPAA. She also stated that no one was going to take her child, and if I tried to do so, she was going to F me up. She also stated that I was violating her American rights and that she wanted the police to be called due to me stealing her child.
At that time, an Anne Arundel County police officer present on the floor was brought to Mother’s room. Whitman testified that the officer notified her that “he was not able to assist in the removal.” She informed him that Mother “actually requested his services. So, he did go in and speak to her.”
Regarding Mother’s mental health, Whitman testified that “[i]t is disclosed that she has been diagnosed with borderline intellectual functioning as well as schizoaffective disorder, adjustment disorder with depression, mood and other specific mental health, personality disorder.” When asked if she had discussed mental health treatment options with Mother, Whitman testified that Mother told her she “is not in mental health services,” that “she preferred to talk to family and friends and that she did not trust any referrals the Department made.”
Whitman also testified regarding her interactions with Mother and Father since J.E.’s removal. She stated that she tried to engage with Mother to complete a service plan, but Mother told her “absolutely not.” Whitman was not able to confirm where Father was living at the time. She testified that he “disclosed that he was living with his oldest daughter but provided [Mother]’s mother’s address as his.” Whitman testified that she did not make any referrals because the “parents reported they didn’t need any and were not willing to work with myself or the foster care worker.”
Both Whitman and LaSota-Brown testified regarding the Department’s allegations of ongoing domestic violence concerns. Whitman testified that the concerns come “[j]ust from what I read in the history that it continues to be an ongoing concern with all three children.” On cross-examination, LaSotaBrown was asked when the last incident of domestic violence had taken place. She replied, “in 2022,” referencing a “second degree assault from the Maryland Judiciary Search, and in past records from the Department.” LaSota-Brown then clarified that “back in February 2017, there -- it was reported there was domestic violence . . . December 19, 2020, in the past records.” She was not able to recall any details about these reports and was not able to offer any evidence that there have ever been issues of domestic violence between Mother and Father. It was later confirmed that the assault Father was charged with was against his father, and that Mother was not involved in any way.
LaSota-Brown also testified to her impressions of Mother and Father, saying:
After reviewing the records, the history, and the current involvement with the team, with the Department’s long history working with the family, including the parents’ unwillingness to cooperate with the Department, and lack of insight, and concern regarding mental health, lack of mental health treatment, and parenting, I do not feel like the family has demonstrated their ability to be able to provide the care and need that this little child needs.
And it is unclear as to the living, you know, housing, employment. Both parents have stated that they feel like they do not need mental health services. And it’s unstable. So, I would, from my history with the Department, working with families on this case, I would say I would not be in agreement with this child to be returned to these parents, and would be concerned about neglect.
Mother also testified during the hearing. Speaking about her ability to care for J.E., she said, I did every single thing that a very good parent would do with their child. I held him perfectly.
I knew how to take care of my child. I did everything good with my child. I held my child, I fed my child, I burped my child, I changed his diaper. I have done everything good to my child.
She also spoke about her preparations for J.E. to come home from the hospital, saying,
I have prepared everything for him. I had everything that was baby for him for him to be prepared to live in my new apartment that is fit for a child . . . I had a bassinet, I had diapers, bottles. I had baby food, Similac. I had bottles. I had a baby carriage, a car seat. I had a lot of things for my baby that I was ready to take care of.
Mother testified that she was currently financially stable and working part time at Domino’s Pizza. Regarding childcare, Mother testified that her mother would care for J.E. when she was at work and if her mother was not available, “[t]here’s daycare.”2
Speaking about her mental health, Mother denied having any current diagnoses and stated that the treatments she had previously been offered were “not even close to being helpful because they just gave me medicines that made me have all side effects, bad side effects, that really hurt me physically.”
Father did not testify during the hearing, but his counsel argued that the Department had not met its burden with respect to the domestic violence allegation. Father’s counsel also argued that,
[w]ith respect to paragraph 12, there were allegations made that Mr. Edwards has not provided employment verification. Well, he told one of the Department representatives, one of the workers, that he was in a band and that he had regular gigs and as was conceded by the witness,
in a gig economy, it’s probably cash or under the table. So, how is he supposed to provide that employment? He’s told them that he has future engagements, that he makes a significant amount of money to be able to support himself. So, I just don’t believe the Department has met its burden to sustain these allegations by a preponderance of the evidence against the father.
At the close of adjudication, the circuit court found that all facts in the Department’s petition were sustained, and that it was contrary to J.E.’s welfare to remain in his home. The court stated:
There’s nothing documented. There’s nothing confirmed. There’s no visits. This is so very difficult, and aside from the fact, even if there were no history here. If there were no history, we have nothing confirmed on, you know, home living situation. We have nothing confirmed on any kind of day care. We have no prior, you know, no information confirming any employment or any way to support this minor child.
The court also relied heavily on both Mother and Father’s failure to attend visits as well as Mother’s attempts to avoid Department involvement. Of the latter, the court said, “I’m very frightened that this child might be disappeared or otherwise. This is quite a concerning situation considering.”
The court then moved to disposition. During this phase, the Department argued that it was seeking to find J.E. a CINA based on the “concerning history,” and “concerning circumstances surrounding J.E.’s birth,” and well as “the parents’ response post-shelter.” The Department argued that Neither parent has been in any form or fashion been willing to work with the Department. Really this is almost nothing has changed since May of 2023 as far as the Department can tell. We have no employment confirmation. We have no stable housing. We have no indication that J.E. would be safe in his parents’ care. Certainly, they have not demonstrated that they are in any position to be able to provide J.E. the care that he needs as a young five-month-old who has no ability to selfprotect himself.
The Department also argued that Father has been very unwilling to accept the Department’s help despite Ms. Whitman reaching out to him at some point in time . . . Father reported he has 18 other children and is not interested in the assistance from the Department. So, there’s really nothing more that the Department could have done in this case, and parents have postshelter just continued to show that they are in no position to be willing or able to care for J.E. and to give him what he needs.
Counsel for Mother countered that, even in light of the court sustaining all of the allegations in the Department’s petition, that Mother “does not believe that those allegations rise to a level of CINA, does not rise to a level showing that she has neglected or
abused or cannot take proper care of her child, J.E.” Father’s counsel also argued that “[d]espite the allegations in the petition being sustained, we would argue that it doesn’t rise to a finding or the level of a finding of a child in need of assistance.”
At the close of these arguments the circuit court found J.E. was a CINA and ordered that he be committed to the Department. The court also found, that the evidence presented sustained that reasonable efforts to prevent or eliminate the need for removal of the child were made as follows:
A Child Protective Services investigation/risk safety assessment completed; on-going family services case; referrals made, records reviewed; Family Team Decision Making meeting held, family members explored; communicated with hospital staff; facilitated visitation. This timely appeal followed.
STANDARD OF REVIEW
In CINA cases, this court utilizes three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). The Supreme Court of Maryland described the three interrelated standards as follows:
We point out three distinct aspects of review in child custody disputes. 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.
Id. at 586.
DISCUSSION
Parents are vested with a constitutionally protected fundamental liberty interest in the care and custody of their children, without undue interference by the State. Koshko v. Haining, 398 Md. 404, 422 (2007); see also In re Yve S., 373 Md. at 565. Indeed, the United States Supreme Court has explained that “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). This liberty interest, though fundamental, is not absolute. In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 497 (2007). A parent’s liberty interests in the care and custody of their children “must be balanced against the fundamental right and responsibility of the State to protect
children, who cannot protect themselves, from abuse and neglect.” Id.
“The Maryland General Assembly has enacted a comprehensive statutory scheme to address those situations where a child is at risk because of his or her parents’ inability or unwillingness to care for him or her.” In re Adoption/ Guardianship No. 10941 in Juvenile Court for Montgomery Cnty., 335 Md. 99, 103 (1994). Pursuant to this scheme, a child can be found to be a Child in Need of Assistance. CINA cases involve a two-step process. At the adjudication hearing, the court determines whether the allegations raised in the CINA petition have been properly established. CJP § 3-817. Unless a CINA petition is dismissed, the court must subsequently hold a disposition hearing. CJP § 3-819. At this hearing, the court will determine whether a child requires assistance, and if the court makes such a determination, it will then decide the intervention necessary “to protect the child's health, safety, and well-being.” CJP § 3-801(m). If the child is not a CINA, the court must dismiss the case. In Re C.E., 456 Md. 209, 217 (2017); CJP § 3-819(b)(1)(i).
I. The circuit court erred in sustaining some, but not all, facts in the Department’s petition.
A. Amended CINA Petition
Mother argues on appeal that the circuit court erred by sustaining all the facts in the Department’s amended CINA petition because it contained allegations that were not supported by competent evidence. The Department counters that, even if certain facts were misconstrued, such an error was harmless given that the “most material facts” -- concerns regarding Mother’s mental health and fitness to parent -- were amply supported by evidence. “In a contested adjudicatory hearing, the Department must present evidence sufficient to prove the petition’s allegations by a preponderance of the evidence.” In re M.H., 252 Md. App. 29, 43 (2021); CJP § 3-817(c).
Here, the Department presented evidence in the form of medical records, prior Department reports, and witness testimony that in 2019, Mother was diagnosed with various mental health disorders and cognitive and intellectual functioning limitations that “represent significant risk factors for dysfunctional parenting, particularly with very young children.” The Department also presented significant documented evidence and witness testimony that Mother has consistently resisted efforts by the Department to collaborate with her in obtaining renewed evaluations and necessary supports to address concerns related to these diagnoses. The record supports that since at least 2021, the Department has requested that Mother sign “Release of Information forms regarding education, medical, mental health, and substance services and treatment that are necessary to provide service to the child and family,” but that Mother has yet to comply with this request. Mother further reported to BWMC at the time of J.E.’s birth, and confirmed in her testimony during the hearing, that she was no longer in mental health treatment because it was not helpful.
Although Mother’s 2019 diagnoses alone would ordinarily not
support a conclusion that Mother continues to suffer from these disorders today, Mother’s refusal to obtain renewed evaluations over the course of several years makes it reasonable for both the Department and the court to rely on that report in determining Mother’s current mental health status. For this reason, the court did not err in sustaining facts related to Mother’s mental health disorders and cognitive and intellectual limitations.
The Department presented competent evidence to support its allegations regarding Mother’s attempts to avoid Department involvement. Although we agree with Mother that she did not “plan” a home birth, Mother’s efforts to avoid Department detection are substantially supported by her medical records and testimony at the hearing. There is no dispute that Mother did, in fact, consider numerous actions in the hope of preventing the Department from removing J.E., including delaying prenatal care, considering a home birth, contemplating giving a false name at hospital admissions, and expressing reluctance at naming J.E. and applying for his social security number. The court, therefore, did not err in sustaining facts related to these actions.
Finally, the Department presented competent evidence to support its allegation that “BWMC staff reported that [Mother] is ‘child-like’ and needs reminders to feed [J.E.] and attend to his basic needs.” This information is not included in the medical records, as Mother correctly indicates, but Whitman testified during adjudication that when she spoke with Ellis by telephone following J.E.’s birth, Ellis informed her of this concern. The characterization of Mother as “child-like” is also supported by notes related to Abbott’s evaluation of Mother following J.E.’s removal. Although the context of that evaluation is different, it serves as support of hospital staff’s perception of Mother at the time of J.E.’s birth. The court, in hearing this testimony and reviewing the records, did not err in sustaining this fact.
The Department did not, however, present sufficient evidence to support its allegation that “[h]ospital security and Anne Arundel Police needed to assist with the removal process.” Both medical records and testimony confirm that the Department requested that a member of hospital security be present outside Mother’s room when they informed her that J.E. would be taken into custody. No evidence was offered by the Department, however, that this individual was involved in J.E.’s removal. Although it is not disputed that Mother became verbally aggressive towards the staff and that she required behavioral support following J.E.’s removal, there is nothing to suggest security was needed to assist with the removal. Similarly, Anne Arundel County Police were not needed to assist with the removal. All evidence presented by the Department clearly indicates that Mother requested police presence due to her concern that her rights were being violated at the time of the removal. Rather than assisting the Department with the removal, the police officer provided support to Mother. The Department’s mischaracterization of this allegation goes well beyond a “semantic issue,” as the Department classifies it, and the court erred in sustaining it based on the evidence presented. The Department also failed to present sufficient evidence that Mother “appeared to be delusional regarding how the concerns were reported and presented as hyperverbal.” The
Department did not present any evidence that Mother exhibited delusional behavior. The Department cites in its petition that Mother was “adamant ‘no one was stealing her baby.’” Records indicate that Mother frequently referenced the Department stealing and trafficking her children, something Mother also testified to during the hearing. Medical records indicate that Mother was under the impression that obtaining private insurance would protect her from having her child “stolen” due to enhanced HIPAA protections. There is no evidence present in the record, however, that these beliefs rendered Mother “delusional,” particularly given her long history with the Department removing her children. Characterizing these removals as “stealing” is not overtly delusional. Mother shared all of these beliefs with Abbott during her psychiatric evaluation and Abbott concluded that “[n]o overt delusional material [is] evident.” There is also no mention in medical records, nor was any testimony offered, that Mother presented as hyperverbal. There is no doubt that Mother has exhibited a great deal of anger and distrust toward the Department, and that Mother lacked an accurate understanding of how she might prevent Department interference. To characterize this behavior as delusional, especially when no medical professional has made such a finding, is unsubstantiated hyperbole. For these reasons, the circuit court erred in sustaining this allegation.
Finally, the Department failed to present sufficient evidence to support its allegation that Mother and Father have a history of domestic violence. At the hearing, when asked about these concerns, neither Whitman nor LaSota-Brown were able to provide any substantive evidence that domestic violence has been an issue between Mother and Father at any point during their relationship. Both witnesses relied on prior Department reports that also failed to provide any details to back up the allegations. It appears from the record that allegations of domestic violence have been consistently repeated in Department reports without any supporting evidence and that the Department was unable to substantiate them during the hearing. For this reason, the court erred in sustaining this allegation.
Despite the court’s error in sustaining the forgoing unsupported allegations, we hold that this error was harmless. “In the interest of the orderly administration of justice, and to avoid useless expense to the state and to litigants in its courts, it has long been settled policy of this court not to reverse for harmless error.” In re Yve S., 373 Md. at 616. “[T] he complaining party has the burden of showing prejudice as well as error. If prejudice is shown, this Court will reverse.” Id. An error is harmless when it “does not affect the outcome of the case.” Id. at 617. Here, as we will explain below, the allegations properly sustained by the court, along with additional evidence presented during the hearing, are sufficient to support the court’s finding at disposition that J.E. is a child in need of assistance. Although we agree with Mother that the Department’s mischaracterizations of certain facts and allegations within the petition are highly inappropriate, Mother has not shown that these mischaracterizations caused harm severe enough to change the ultimate outcome of the case. We caution the Department, however, to avoid such mischaracterizations in the future.
B. Reasonable efforts to prevent removal
Mother also argues on appeal that the Department failed to make reasonable efforts to prevent J.E.’s initial removal from her custody in the hospital. She contends that none of the efforts listed in the Department’s petition constitute reasonable efforts to prevent this removal. Mother further argues that the Department did not conduct an investigation before deciding to remove J.E. and, in fact, did not even make contact with Mother and J.E. until the time of removal. Instead, the Department instructed the hospital social worker to place a hold on J.E.’s discharge based on its history with Mother, informed the hospital that the plan was to place J.E. in foster care, and instructed the hospital not to inform Mother of this decision. We agree with Mother that the Department did little to nothing to prevent J.E.’s initial removal and, instead presumed without any further investigation that shelter care was appropriate based solely on Mother’s prior history. We hold, however, that the question of whether the Department made reasonable efforts to prevent J.E.’s initial removal was not before the circuit court during adjudication and is not before us now.
Mother’s argument that this issue is preserved for appellate review rests on the contention that the circuit court, during the adjudication hearing, was required to evaluate the Department’s reasonable efforts both before and after the shelter care hearing. The Department counters that this question is not preserved for appeal because, during adjudication, only efforts made since the shelter care hearing are up for review. The Department contends that because the shelter care decision was itself appealable, Mother’s failure to appeal that decision renders her challenge of the Department’s initial reasonable efforts unpreserved. We agree.
Pursuant to CJP § 3-816.1, the circuit court is required to make a finding as to whether the Department has made reasonable efforts to prevent placement of the child into the Department’s custody. This requirement applies independently at each stage of the proceedings -- shelter care, adjudication, and disposition. Id. At each stage, the Department is required to provide evidence of reasonable efforts, and the court is required to make a new finding. “The court’s finding under this subsection shall assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” CJP § 3-816.1(b)(5).
Mother argues that the nature of a shelter care hearing demands that the court make a renewed finding of reasonable efforts to prevent initial removal at adjudication because this is the first hearing where facts are adjudicated and the first opportunity for the court to fully hear evidence of what efforts were made to prevent removal. “[S]helter care is by definition temporary during the pendency of a CINA proceeding and intended to deal with a serious risk to the child’s safety and welfare during that period.” In re O.P., 470 Md. 255, 251 (2020). “Shelter care is not a component of every CINA case. Rather, it involves a separate proceeding in which the juvenile court decides whether to authorize interim protection for a child who may be at risk in the home while the CINA petition is pending.” Id. at 237. During a shelter care hearing, the rules of evidence do
not apply and “reasonable grounds is the appropriate standard for a juvenile court to apply.” Id. at 271.
At a shelter care hearing, a court may continue shelter care only if the court finds that:
(1) Return of the child to the child’s home is contrary to the safety and welfare of the child; and
(2)(i) Removal from the home is necessary due to an alleged emergency situation and in order to provide for the safety of the child, or (ii) reasonable efforts were made but were unsuccessful to eliminate the need to remove the child from the home.
CJP § 3-815(d). Because this determination “is not a ‘step toward the final Disposition’ of a CINA proceeding,” it “runs its course not in the path of the CINA Adjudication, but collaterally, in its own lane, without advancing or hindering the final CINA decision.” In re O.P., 470 Md. at 253. For this reason, it “is effectively unreviewable on direct appeal,” and therefore “reviewable under the collateral order doctrine.” Id.
Here, pursuant to CJP § 3-816.1, the court’s shelter care determination that the Department had made reasonable efforts to prevent J.E.’s initial removal was not up for review during adjudication. The circuit court properly reviewed the Department’s efforts since the shelter care hearing and found that they were adequate. Because a shelter care determination runs collaterally to a CINA proceeding, these two findings exist independent of one another. Mother’s concerns regarding the Department’s lack of reasonable efforts to prevent initial removal should have been raised in an interlocutory appeal immediately following the shelter care order. Because the circuit court was not required to, and did not, review these efforts during adjudication, no finding of reasonable efforts to prevent the initial removal is available for our review. We, therefore, find that this issue is not preserved.
II. Based on properly sustained evidence, the circuit court did not err in findingJ.E. a CINA.
Mother argues on appeal that the court committed legal error when it found J.E. was a CINA because the court’s underlying finding of neglect was unsupported by evidence. At Disposition, the court determines if the child is a CINA.
“Child in Need of Assistance” means a child who requires court intervention because:
(1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and
(2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.
CJP § 3-801(f). The CINA subtitle defines “neglect” as: The leaving of a child unattended or other failure to give proper care and attention to a child by any parent . . . under circumstances that indicate:
(1) That the child’s health or welfare is harmed or
placed at substantial risk of harm; or (2) That the child has suffered mental injury or been placed at substantial risk of mental injury. CJP § 3-801(s)(1).
A. Remaining in Mother and Father’s custody presented a risk of substantial harm to J.E.
Because J.E. was removed from Mother’s custody immediately following his birth, there is little primary evidence to suggest that Mother directly neglected J.E. Maryland courts have held, however, that a finding of whether neglect exists is determined by a “totality of circumstances.” In re J.R., 246 Md. App. 707, 725 (2020). “[N]eglect might not involve affirmative conduct.” In re Priscilla B., 214 Md. App. 600, 625 (2013). Rather, the court may assess “neglect by assessing the inaction of a parent over time. To the extent that inaction repeats itself, courts can appropriately view that pattern of omission as a predictor of future behavior, active or passive.” Id. This is because, “it has long been established that a parent’s past conduct is relevant to a consideration of the parent’s future conduct. Reliance upon past behavior as a basis for ascertaining the parent’s present and future actions directly serves the purpose of the CINA statute.” In re Adriana T., 208 Md. App. 545, 570, (2012). A court need not wait for a child to suffer affirmative abuse or neglect before such a finding can be made. “The purpose of [the CINA statute] is to protect children -- not wait for their injury.” In re William B., 73 Md. App. 68, 77–78 (1987). Therefore, “parents’ ability to care for the needs of one child is probative of their ability to care for other children in the family.” In re William B., 73 Md. App. 68, 77 (1987).
Here, available evidence supports a finding that J.E. was at substantial risk of harm if he was returned to Mother and Father’s custody. Mother’s history with the Department, is well supported. The Department provided reports and records dating back to 2020 that document the Department’s interactions with Mother, her relationship and interactions with her children during visitation, and the Department’s efforts to provide various methods of support to Mother during this period. The record reflects that Mother has been and remains deeply distrustful of the Department and unwilling to productively collaborate with the Department towards completing goals and tasks necessary to permit reunification. This includes Mother’s refusal to provide up to date and complete information related to employment, childcare plans, and stable housing. Although Mother did permit the Department to visit her apartment, the Department reported and testified that the apartment did not appear lived in, and that Mother was unwilling to provide proof that she had a lease at that location. Both past and present attempts to visit and evaluate other residences at which Mother has resided have been either inconsistent or lacking. Father has similarly refused to provide the Department with information related to employment, income, housing, mental health, or substance use.
As the Department suggests on appeal, Mother’s mental health and cognitive limitations raise the most significant concerns regarding J.E.’s safety. As previously discussed, in
2019, Mother was diagnosed with a number of mental health and personality disorders. She was subsequently diagnosed with borderline intellectual functioning and cognitive limitations that “impact her ability to use sound judgment and implement safe parenting practices.” The results of Dr. Kraft’s parenting capacity evaluation indicated that Mother’s “cognitive limitations, lack of insight and lack of adequate knowledge of parenting practices represent significant risk factors for dysfunctional parenting, particularly with very young children.” Because the Department has been unable to obtain an updated evaluation, it is not unreasonable for both the Department and the court to rely on these findings when evaluating the current risk of harm. These concerns coupled with the Department’s history with Mother and Father provide sufficient evidence from which the court could find that returning J.E. to his parents’ care would present a substantial risk of harm.
B. Mother and Father are unable or unwilling to give proper care and attention to J.E.
Mother also argues that the court erred in finding that she was unwilling or unable to offer J.E. proper care and attention. In support of this argument, Mother argues that she had housing with no safety concern, income, a plan for daycare, furniture, toys, and formula for an infant. Mother also testified that she had a plan for transporting J.E. to medical appointments and the support of her mother. She testified that she only stopped attending visits with J.E. because the Department was cancelling the appointments. The Department counters that both parents failed to attend visits despite offers of transportation and flexibility in scheduling, and neither parent attended J.E.’s pediatrician appointments when the Department provided the appointment information. The Department also argues that, although Mother testified that she planned to use daycare, she never presented any concrete plans for childcare. The Department has frequently had trouble getting in contact with Mother and Father for long periods of time, and it remains uncertain where either parent is currently living.
We agree with the Department that the evidence presented supports a finding that neither Mother nor Father appear willing or able to care for J.E. In addition to the Department’s concerns regarding housing, income, and childcare, Mother and Father’s consistent unwillingness to engage with the Department further supports this finding. Even crediting Mother’s testimony regarding her apartment and employment, it remains true that Mother has refused to collaborate with the Department to address its legitimate concerns regarding her mental health. Although Mother’s distrust of the Department and hesitance to submit to mental health evaluation or share her medical records is understandable, her failure to do so creates a barrier to reunification that cannot be overcome. This refusal, then, evinces an unwillingness to do what is necessary to parent J.E. The same can be said for Father’s overt refusal to engage with the Department to address any of its concerns.
Based on the evidence presented and properly sustained during the hearing, the court did not commit legal error by finding that J.E. was neglected pursuant to the CINA statute.
CONCLUSION
For the foregoing reasons, we hold that the circuit court erred in sustained facts found in paragraphs (1), (2), and (11) of the Department’s Amended CINA Petition, but that it properly sustained the remaining allegations. We further hold that, because the properly sustained facts provided an adequate legal basis for the court’s ultimate finding, that the error was harmless. We decline to address Mother’s contention that the Department failed to make reasonable efforts to prevent J.E.’s
initial removal because, we hold that this issue was not preserved for appeal. Finally, we hold that the circuit court did not commit legal error in finding J.E. was neglected pursuant to the CINA statute based on the totality of properly sustained facts presented at adjudication and disposition. Relying on these facts and legal conclusions rendered therefrom, the circuit court did not abuse its discretion in finding J.E. a child in need of assistance.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
FOOTNOTES
1 Paragraphs 6 through 8 outline the Department’s previous encounters with Mother resulting in termination of her parental rights to her three other children. Because these facts are discussed above and are not contested, we do not reproduce them here.
2 The Department presented evidence that Mother’s mother was not a suitable source of childcare because of her own history with the Department.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s monetary award of $150,000 to husband. Although husband sought a monetary award of $376,964.75, representing 50 percent of the total value of the marital property titled to wife, husband’s monetary and non-monetary contributions to the well-being of the family were outweighed by those of wife, his conduct contributed to the estrangement of the parties, his lesser economic circumstance was in large part a function of his refusal to become employed during the marriage, to a great extent the parties’ marital assets were a product of wife’s having worked during the marriage, and husband held title to non-marital assets with significant value and wife did not.
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..
Before the parties were married, Husband owned several pieces of real property. The parties executed a premarital agreement (“Agreement”) that, among other things, provided that each party’s property “shall be, and shall forever remain, their personal estate, including all interest, rents, and profits which may accrue from said property, and said property shall remain forever free of claim by the other.” The Agreement carved out real property Husband owned at 11424 Flowerton Place, in Germantown, stating that it would be marital property. The Agreement prohibited either party from seeking alimony should they divorce.
In August 2004, the parties purchased a house on McFarlin Drive, also in Germantown, which is where they lived until they separated in 2023. Wife contributed $20,000 toward the down payment and Husband contributed $70,500. Over the years, Wife paid $14,386.93 for renovations to the property. In 2015, the parties refinanced the mortgage on that property. As part of that transaction, the property, which had been titled in both parties’ names, was deeded to Wife, and she became the only mortgagor.
In the meantime, in 2005, Husband sold the Flowerton Place property and received $140,752.33 in proceeds. He testified that he used those proceeds (which were marital property) to pay household expenses.
In this divorce action between Kevin Lamont Johnson (“Husband”), the appellant, and Christine Healy-Johnson (“Wife”), the appellee, the Circuit Court for Montgomery County granted Husband a monetary award of $150,000. On appeal, Husband contends the court abused its discretion by making a monetary award that is inequitably low. We disagree and, for the reasons set forth below, shall affirm the court’s judgment.
FACTS AND PROCEEDINGS
The merits hearing in this case was held on November 29 and 30, 2023. The following evidence was adduced.
The parties were married on October 25, 2003, in California. The marriage produced one child, “C,” born in 2006.1 At the time of trial, C was seventeen years old and a senior in high school. Husband was fifty-eight and Wife was fifty-two.
From the time the parties were married until 2020, Husband was unemployed even though he was able to work. When Wife would ask him to get a job and contribute to the parties’ household expenses, he would respond that he “didn’t need to.” Husband’s failure to become employed during most of the marriage was a major issue between the parties. At the time of the merits hearing, Husband was working twenty hours a week as a groundskeeper for the Montgomery County Schools, earning $20 per hour. His monthly gross income from that job was $1,552. He also was receiving rental income of $1,300 per month from a property he owned on Caledonia Court, in Germantown. He had owned another rental property in Germantown, on Demetrius Way, which he sold in 2021. That sale produced $174,000 in net proceeds. Husband testified that, of that sum, $38,000 remained.
Wife is self-employed full-time as a licensed psychologist in private practice. At the time of the merits hearing, she was earning a gross monthly salary of $16,715 and an additional $1,300 per month in rental income from leased office space.2
While the parties were living together, their monthly household expenses totaled $11,806. Husband contributed $1,500 per month toward those expenses and paid $162.50 per
month for health insurance for himself and C. Wife paid all the other household expenses, including the monthly mortgage on the marital home. She paid for her own health insurance.
The parties’ testimony about how responsibilities were allocated during the marriage varied greatly. According to Husband, he and Wife “worked together” and did “a great job” raising C. He transported C to and from elementary school. During the school day, he “putted around,” went to the gym, and tended to his rental properties. He also did household chores, including laundry, grocery shopping, and yardwork. According to Wife, she was C’s primary caretaker. She managed his academics, attended parent teacher conferences and meetings, and took him to extracurricular activities. She did all the grocery shopping. For a time after C was born, she worked three days per week. Husband testified that he cared for C on the days Wife worked. He also claimed to have played a significant role in caring for Wife’s parents by taking them shopping and to appointments. He estimated that he checked on Wife’s parents twice per week.
In 2017, Husband moved into the parties’ guest bedroom. The parties’ sexual relationship ended in 2019. The parties co-existed that way until April 2022, when Wife, in answer to a question posed by Husband during an argument, said she wanted to separate. Tensions in the already-failing marriage escalated after that. According to Wife, Husband became controlling and threatening. He questioned her about her daily activities and sent her video clips from their Ring camera to make the point that he was watching her. He interrupted Wife’s counseling sessions, making it difficult for her to maintain her therapy practice at home. (This was during the pandemic.) In August 2022, Wife sought a protective order against Husband after he broke into her bedroom, “jabbed [her] arm” and insisted that they talk and hug. The protective order was denied.
Wife filed a complaint for absolute divorce on October 13, 2022. Five days later, she and C moved out of the marital home into a rented apartment. Husband continued to reside in the marital home. In June 2023, he agreed to pay the monthly mortgage. He failed to do so, so Wife continued paying it. Husband filed a counter-complaint for absolute divorce, and Wife filed an amended complaint for absolute divorce.
Both parties were represented by counsel at the merits hearing. They filed a Rule 9- 207 Joint Statement of Parties Concerning Marital and Non-marital Property, identifying their assets. At the close of the evidence, the court ordered the parties to submit written closing arguments and took the matter under advisement.
On February 23, 2024, the court issued a memorandum opinion and order granting the parties an absolute divorce on the ground of a sixmonth separation and deciding the distribution of marital property.
Before the merits hearing, the parties identified $20,000 in household furnishings as marital property and agreed to divide that evenly. They also identified as marital property a Maryland 529 College Savings Plan, titled in Wife’s name, but agreed that those funds would be used solely for C’s education. Finally, they agreed that Wife’s $15,705.50 non-marital share of her Variable Universal Life account also would be used solely for
C’s education. Accordingly, none of those assets was included in the court’s identification and valuation of the parties’ assets, which was as follows:
Marital Property Titled in Wife McFarlin Drive home, value $550,000, subject to $187,126 mortgage: net value $362,874
2017 Acura SUV, value $11,500
Ameriprise Retirement account, value $355,850
Variable Universal Life account, total value $31,411, marital portion
$15,705.50
Bank accounts, value $8,000
Marital Property Titled in Husband 2003 Ford Expedition, value $2,000
MCPS pension (non-vested), value $285.83
Bank accounts, value $800
The court found that Wife did not have any non-marital property. It identified and valued Husband’s non-marital property as follows:
Caledonia Court rental property, value $249,700, subject to $38,000 mortgage: net value $211,700
Remaining Proceeds from 2021 sale of Demetrius Way rental property. After receiving net proceeds of $175,000, Husband claimed to have $38,700 remaining.
Thus, as found by the court, the total value of the marital property was $757,015.33, of which $753,929.50 was titled in Wife’s name and $3,085.83 was titled in Husband’s name. The total value of the non-marital property was $250,400, all titled in Husband’s name.
Husband sought a monetary award of $376,964.75, representing 50 percent of the total value of the marital property titled to Wife.3 After assessing the evidence in light of the relevant statutory factors, as we shall discuss below, the court granted Husband a marital award of $150,000. That resulted in Wife’s having $603,929.50 (79.78%) of the marital property and Husband’s having $153,085.83 (20.22%) of the marital property.
In addition, the court awarded Wife attorneys’ fees of $1,375.
Husband filed this timely appeal. We shall include additional facts in our discussion of the question presented.
STANDARD OF REVIEW
We review the rulings of a circuit court sitting without a jury “on both the law and the evidence[,]” giving “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c); Friedman v. Hannan, 412 Md. 328, 335 (2010). We review the court’s factual findings for clear error. MAS Assocs., LLC v. Korotki, 465 Md. 457, 474-75 (2019). Finally, we review the court’s legal conclusions under a de novo standard of review. Nouri v. Dadgar, 245 Md. App. 324, 343 (2020).
A trial court’s decision to grant a monetary award, and the amount of that award, is reviewed for abuse of discretion. Flanagan v. Flanagan, 181 Md. App. 492, 521-22 (2008). “Under that lenient standard, the ruling ‘will not be reversed simply
because the appellate court would not have made the same ruling.’” McAllister v. McAllister, 218 Md. App. 386, 400 (2014) (quoting North v. North, 102 Md. App. 1, 14 (1994)). “Instead, ‘[t] he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” Id. (quoting North, 102 Md. App. at 14).
DISCUSSION
Husband contends the court’s findings on the statutory factors pertinent to granting a monetary award were clearly erroneous and that it abused its discretion by granting him a monetary award of $150,000, which he maintains was “extremely inequitable[.]” Wife counters that the court’s findings were supported by the evidence, it properly assessed the statutory factors, and its decision about the amount of monetary award to grant was not an abuse of discretion.
In Maryland, when granting a divorce and determining the distribution of marital property, a court must employ a threestep process. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). First, it must identify which property is marital. Md. Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”) § 8-203(a); Abdullahi, 241 Md. App. at 405. Second, it must value the marital property. FL § 8-204(a); Abdullahi, 241 Md. App. at 405. Third and finally, it must decide whether distributing the marital property by title would be unfair, and if so, decide the amount of a monetary award to grant to adjust the inequities. See FL § 8-205(a)(1)-(2); Alston v. Alston, 331 Md. 496, 506 (1993) (stating that the purpose of a monetary award “is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title” (quotation marks and citation omitted)); Abdullahi, 241 Md. App. at 405-06. The court’s distribution of marital property need not be equal, but must be “fair and equitable.” Long v. Long, 129 Md. App. 554, 578 (2000).
In deciding whether a monetary award is called for and, if so, the amount, the court must consider the following factors, as relevant, set forth in FL § 8-205(b):
1. the contributions, monetary and nonmonetary, of each party to the well- being of the family;
2. the value of all property interests of each party;
3. the economic circumstances of each party at the time the award is to be made;
4. the circumstances that contributed to the estrangement of the parties;
5. the duration of the marriage;
6. the age of each party;
7. the physical and mental condition of each party;
8. how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
9. the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the
acquisition of real property held by the parties as tenants by the entirety[4];
10. any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
11. any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.”
Abdullahi, 241 Md. App. at 406 (quoting FL § 8-205(b)). Although the court must consider the applicable statutory factors, the factors “‘are not prioritized in any way, nor has the General Assembly mandated any particular weighing or balancing of the factors.’” Brown v. Brown, 195 Md. App. 72, 110 n.19 (2010) (quoting Alston, 331 Md. at 507).
In the case at bar, the court entertained written closing arguments and then issued a thorough eleven page opinion addressing all the issues in the case, including the pertinent FL § 8-205(b) factors. The court stated at the outset of its opinion that it had paid close attention to the witness testimony and was “attuned to the witnesses’ demeanor and whether their testimony was internally consistent, whether it was consistent with or corroborated by the other evidence in the case, and whether it comported with what the Court considered to be common sense.” “Based on the substance of their testimony, and their respective demeanors, [it] found [Wife] to be a more credible witness than [Husband].”
With respect to the first factor, Husband argues that the court “wholly ignored” his significant monetary and non-monetary contributions to the family. The court found that Wife “made substantial monetary and nonmonetary contributions to the well-being of the family and that those contributions outweighed [Husband’s] contributions to the family’s well-being.” On the non-monetary contribution side, the court credited Wife’s testimony that she was C’s primary caregiver and “handled all the ‘basics.’” It considered Husband’s testimony that he cared for C, particularly when Wife was working, but noted that Husband’s own description of his typical day primarily consisted of checking his rental properties, going to the gym, and ‘“plucking around.’” The court found “that [Husband’s] focus was more on himself and his interests than it was on [Wife] or their son.”5
On the monetary contribution side, Husband maintains the court erred by failing to credit him for his significant down payment on the McFarlin Drive home and for his converting the Flowerton Drive property from non-marital to marital property in the Agreement “without any consideration in return.” The Agreement was supported by consideration, however. See Cannon v. Cannon, 384 Md. 537, 556 (2005) (observing that the consideration for a prenuptial agreement is the impending marriage). Moreover, the court was not required to “credit” Husband for the value of the Flowerton Drive property. “[T] he mistaken belief that a contribution of nonmarital property somehow entitles the contributor to get back the property or its value, as if the contribution is deemed to create an indebtedness
for which the contributor should have a lien, is a total distortion of the [Marital Property] Act.” Kline v. Kline, 85 Md. App. 28, 44 (1990). Rather, the gift of non- marital property and its value merely is a factor to be considered by the court in deciding whether to grant a monetary award. Id.
The record shows that the court recognized that Husband contributed $70,500 to the down payment on the family home and that Wife contributed $20,000. The court also recognized that by the terms of the parties’ Agreement, the Flowerton Drive property was marital, and therefore the proceeds of the sale of that property, which Husband alone received, was marital property as well. The court noted Wife’s position that Husband submitted no evidence to show that the proceeds of that sale in fact were used to pay family expenses and to meet the needs of the parties. The court noted that, even if the proceeds were used for marital purposes, that “would be of little significance in analyzing the section 8-205 factors” because the proceeds were marital funds - - not Husband’s funds. Nevertheless, the court took Husband’s testimony into account in its decision making.
The court found that Wife was employed throughout the marriage and that she supported the family financially; at the same time, and for seventeen years of the marriage, Husband refused to work, even though he was capable of doing so. The court considered that, not only did Wife pay the mortgage on the family home throughout the marriage, she continued to pay it after the separation, when she and C no longer were living there and Husband reneged on his agreement to pay it. Ultimately, the court found that “[Wife] made substantial monetary and nonmonetary contributions to the well-being of the family and that those contributions outweighed [Husband’s] contributions to the family’s well-being.”
All of these findings were supported by the evidence in the record and were not clearly erroneous.
With respect to the second factor, the value of all property interests of each party, Husband asserts that the court improperly considered his non-marital property in determining the amount of the monetary award.6 Specifically, he argues that it was an abuse of discretion for the court to take into account that he had received $175,000 in sale proceeds from the Demetrius Way property two years prior to the divorce, when he only had $38,700 of that sum remaining at the time of divorce, and that the court improperly assigned “great weight” to his ownership of the Caledonia Court property, even though it was “a fixed asset with little income[.]”
In the context of FL § 8-205(b)(2), the court must consider “‘the value of all property interests of each party’ . . . , which includes non-marital property.” Flanagan, 181 Md. App. at 534 (emphasis retained) (quoting FL § 8-205(b)(2)). Nonmarital property can be considered by the court as a factor in deciding a distribution of marital property that is equitable. Id. at 532. In addressing Husband’s non-marital property, the court seemed skeptical about the proceeds of the Demetrius Way property, stating that Husband netted $175,000 from the sale of that property but “[h]e claims to have only $38,700 left from those proceeds.” Nevertheless, in calculating the amount of non-marital property titled in Husband’s name, the court only counted $38,700. It did not fashion its monetary award on the assumption that Husband had in his possession more than that
amount of the proceeds of the Demetrius Way property. With respect to the Caledonia Court property, the court merely found it was “valuable nonmarital real property, which enhances his economic circumstances[,]” and valued it at $211,700, after subtracting the debt against it. This finding was not clearly erroneous, and we have no reason to interfere with the court’s weighing of this evidence.
Husband complains that the court gave mere “lip service” to factor three, the parties’ economic circumstances. According to Husband, the court failed to recognize the “substantial disparity” in the respective incomes of the parties and failed to credit his contributions to the care of the family, which he maintains resulted in Wife’s much greater earning capacity. He also points out that he did not seek an award of alimony despite the large disparity in income between the parties. He submits that had the court properly considered these facts, it would have weighed this factor in his favor.
Husband’s argument that the disparity in the parties’ incomes was a direct result of his non-economic contributions to the family is not supported by the record. To the contrary, the court found that Wife’s contributions to the family exceeded those of Husband’s, that Husband had refused to obtain employment for seventeen years, and that his refusal had been a source of strain on the marriage that “aggravated the fractures in the marriage.” As noted above, the period in which Husband contributed some to the care of the parties’ child was long in the past, and the court found that Husband primarily focused on himself, not the family. And although Wife had the greater earning capacity, the parties’ future economic circumstances were not an issue because their Agreement precluded claims for alimony. In deciding a monetary award, a court may consider a spouse’s present earning capacity, but may not consider expected future earning capacity. See Prahinski v. Prahinski, 75 Md. App. 113, 138-39 (1988) (explaining that future earnings are appropriate for consideration in the context of an alimony award rather than equitable property distribution).7 Based on the evidence in the record, the circuit court’s findings about the parties’ relative incomes and economic circumstances were not clearly erroneous.
With regard to the fourth factor, Husband maintains the court placed too much weight on Wife’s evidence regarding the circumstances that contributed to estrangement, under FL § 8-205(b)(4), and in finding Wife to be the more credible witness.
The court credited Wife’s testimony that Husband’s “threatening, abusive, and harassing behavior” contributed to the deterioration of the parties’ relationship. It noted that Wife had asked Husband to move from the McFarlin Drive home after their separation so she could sell it, and he refused. The court also credited Wife’s testimony that Husband had agreed to pay the monthly mortgage on the McFarlin Drive house after she and C moved out, but reneged on that agreement. In their testimony, Wife asserted that she had paid $25,853.85 in mortgage payments since the date of separation, while Husband asserted that that sum was only $20,833.47. The court found that the difference in the parties’ testimony about the amount Wife paid was “not particularly relevant”; but what was relevant was “that [Husband] was living rent-free in a home owned by [Wife] while [Wife] was making mortgage payments.”
Assessing the credibility of the witnesses and resolving conflicts in the evidence is the domain of the trial court. See Keys v. Keys, 93 Md. App. 677, 688 (1992) (“[E]specially in the arena of marital disputes where notoriously the parties are not in agreement as to the facts, . . . we must be cognizant of the court’s position to assess the credibility and demeanor of each witness.”). Under Md. Rule 8-131, “unless the testimony is devoid of merit, we will not substitute our judgment for the trial court’s determination of the credibility of the witnesses.” Keys, 93 Md. App. at 688 (citing Colandrea v. Colandrea, 42 Md. App. 421, 429 (1979)).
Given the evidence presented, we see no basis for setting aside the court’s determinations as to the reasons for the estrangement of the parties. See Oliver v. Hays, 121 Md. App. 292, 310 (1998) (explaining that it is “the exclusive responsibility of the trial court to assess the credibility of witnesses and to resolve conflicts in the evidence”).
After reviewing the evidence and analyzing the statutory factors, the court explained the basis for its decision to grant Husband a monetary award of $150,000:
While [Wife’s] interests in marital property are more valuable than [Husband’s] interest, the [c] ourt also finds that [Wife] made greater nonmonetary and monetary contributions to the wellbeing of the family, and that finding greatly affects the [c]ourt’s decision regarding a monetary award. Indeed, the [c]ourt finds that [Husband] began living separate and apart from [Wife] at least as of 2017 and was pursuing his own interests and was not fully engaged in the wellbeing of the family. The [c]ourt finds, based on the evidence, that [Husband] was largely indifferent about the parties’ marriage. In his Memorandum, at page 7, he describes his testimony: “He testified that the marriage was a marriage and that he does not know what a good or bad marriage is, but it was a marriage and it worked well until the parties had a falling out in August 2022.” The [c]ourt was struck by both the substance and the tone of that testimony. When [Husband] gave that testimony, the [c]ourt thought that [Husband] had not been fully committed to the marriage. That testimony was corroborated by [Wife’s] testimony and that of Mr. Toure. [Mr. Toure was a friend of Wife who helped her and C move out of the marital home and testified at the merits hearing.] The [c]ourt found Mr. Toure’s testimony credible. This lack of commitment contributed greatly toward the parties’ estrangement.
Similarly, [Husband’s] great reluctance to find employment aggravated the fractures in the marriage. [Wife] testified about her frustration with [Husband’s] failure to gain employment and how that failure damaged the marriage. [Husband’s] abusive and threatening conduct, cited above [in the court’s opinion], also greatly contributed to the parties’ estrangement and the
ultimate demise of the marriage. In addition, while [Wife] holds legal title to most of the marital property in this case, [Husband] owns valuable nonmarital real property, which enhances his economic circumstances.
The record demonstrates that the court carefully considered the evidence and the statutory factors. After weighing the evidence of Husband’s lack of commitment to the marriage and family, unemployment, and underemployment, the court determined that he bore much of the responsibility for the estrangement of the parties and the failure of the marriage. For those reasons, the court decided that a less than equal division of the marital property was warranted.
Husband argues that this Court’s holdings in Flanagan, 181 Md. App. 492, Long, 129 Md. App. 554, and Ward v. Ward, 52 Md. App. 336 (1982), support his contention that he should have received a greater monetary award based on the total value of the marital property. We do not agree. These cases are easily distinguishable.
In both Flanagan and Long, we vacated monetary awards that resulted in significantly disproportionate distributions of marital property. In Flanagan, we vacated a monetary award that “resulted in appellee’s entitlement to almost 90% of the value of the marital property,” because the court failed to give any explanation for its decision. 181 Md. App. at 522. In the case at bar, the court gave a detailed analysis of the applicable FL § 8- 205 factors and explained its reasons for granting the monetary award it did. In Long, we vacated a monetary award that granted the wife less than 20% of the marital assets when, inconsistently, the court’s findings on many of the factors actually weighed in the wife’s favor. 129 Md. App. at 577. Here, by contrast, the factors weighed strongly against Husband. Finally, in Ward, the court erred because it made two monetary awards, the cumulative value of which exceeded the total value of the marital property. 52 Md. App. at 342. Nothing along those lines happened in this case.
Moreover, in Flanagan, Long, and Ward, the appealing spouse did not have any non-marital assets. When one spouse has substantial non-marital assets, a disproportionate award of marital property to a spouse with little or no non-marital property may be appropriate. See, e.g., Randolph v. Randolph, 67 Md. App. 577, 587-88 (1986) (noting that an award of more than half of the marital property to wife was not improper where husband owned non-marital property, although the court’s failure to value marital property required remand); Brewer v. Brewer, 156 Md. App. 77, 112 (2004) (finding no error in awarding wife a greater share of the marital property based, in part, on the court’s valuation of husband’s non-marital assets); Melrod v. Melrod, 83 Md. App. 180, 197-98 (1990) (explaining, in the context of a spouse who owned substantial non-marital assets, that the court must consider “whether it would be equitable to award a greater share of marital property to the spouse owning less of the total property and having less wealth”).
In this case, the trial court carefully considered the relevant factors in FL § 8-205(b) and made a decision to grant Husband a monetary award of $150,000 based on findings that were supported by the evidence. Husband’s monetary and non-
monetary contributions to the well-being of the family were outweighed by those of Wife, his conduct contributed to the estrangement of the parties, his lesser economic circumstance was in large part a function of his refusal to become employed during the marriage, to a great extent the parties’ marital assets
were a product of Wife’s having worked during the marriage, and Husband held title to non-marital assets with significant value and Wife did not. The court did not err or abuse its discretion in granting Husband the monetary award it did.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
FOOTNOTES
1 We use the random letter “C” to refer to the parties’ child to protect his privacy.
2 From documents received in evidence, it appears that that income was from a sublease of office space Wife had rented, not rent from a building she owned.
3 We note that 50 percent of the total marital property would be $378,507.67.
4 FL § 8-201(e) defines marital property as follows:
(1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage.
(2) “Marital property” includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.
(3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property:
(i) acquired before the marriage;
(ii) acquired by inheritance or gift from a third party;
(iii) excluded by valid agreement; or (iv) directly traceable to any of these sources.
5 It is worth noting that Husband’s testimony about his nonmonetary contributions to the marriage focused on the period when C was very young.
6 Husband also asserts that the court failed to acknowledge that Wife had $8,000 in her bank account. This is incorrect. The circuit court specifically referenced the $8,000 in Wife’s bank account when it identified the assets titled in Wife’s name.
7 Without doubt, the fact that Husband’s earning capacity was less than Wife’s was a function of his remaining out of the workforce, not by agreement of the parties, for most of the marriage.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Montgomery County Circuit Court’s order requiring husband to pay rehabilitative alimony to wife for five years on a gradually decreasing scale. The record does not show any evidence about how the five-year term bears any relationship to the steps wife would need to take to become employed at or above her most recent income level of $89,000 annually. The fact that wife was employed consistently throughout the marriage and that only three months before the merits hearing she was earning a sum that would make her self-sufficient militates strongly against five years being a reasonably necessary period of time for her to find employment at a self-sufficient earnings level.
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..
II. Did the circuit court err in calculating the value of the marital property and/or abuse its discretion in determining the monetary award?
III. Did the circuit court err in calculating child support?
IV. Did the circuit court abuse its discretion by declining to award Husband attorneys’ fees?
For the following reasons, we answer the first question, “Yes,” and shall vacate the award of rehabilitative alimony and remand for further proceedings. Although we reject Husband’s claims of error with respect to the monetary award and the calculation of child support, we shall vacate those awards for recalculation given the vacation of the alimony award. We shall affirm the court’s denial of Husband’s request for attorneys’ fees.
FACTS AND PROCEEDINGS
Both Husband and Wife were born and raised in Iran. Husband has lived in the United States since at least 1993. Wife, who is ten years younger than Husband, moved to the United States in October 2004, after she and Husband were introduced through family members and became engaged to be married. Prior to moving to the United States, Wife had obtained her master’s degree in graphic arts and was employed by a large newspaper in Iran as the head of advertising.
The parties married in November 2004. They moved into a home in Gaithersburg, Maryland, that Husband had purchased a month earlier.
In the Circuit Court for Montgomery County, Shahram Nakhostin (“Husband”), the appellant, and Shahrzad Nakhostin (“Wife”), the appellee, divorced after a nineteen-year marriage. They resolved custody of and access to their son by consent. The issues of grounds for divorce, marital property, child support, alimony, and attorneys’ fees were decided by the court after a merits hearing. The court granted Husband a divorce, ordered him to pay Wife a monetary award and to transfer a share of his retirement assets to her, directed him to pay child support, ordered him to pay rehabilitative alimony to Wife for five years on a gradually decreasing scale, and denied both parties’ requests for attorneys’ fees.
Husband appeals, presenting four questions for review, which we have reordered and rephrased:
I. Did the circuit court err or abuse its discretion by ordering Husband to pay Wife rehabilitative alimony for five years?
Since 2012, Husband has worked as an engineer for Microsoft. At the time of the merits hearing, he was earning $291,000 annually in salary and bonuses.
Wife learned English and obtained employment working for a small Persian newspaper. She also worked as a lifeguard and taught swimming lessons at a fitness club in Rockville. In 2009, after working for social media and publishing companies, she was hired by Voice of America. She worked there for the next fifteen years, eventually earning $89,000 annually. She was “laid off” in March 2024, three months before the merits hearing.
During the marriage, Wife started a business called VenoArt, LLC, which operated online art auctions. VenoArt contracted with artists to sell their work, retaining 30% of the sales price.
In 2014, the parties’ son, now age eleven, was born.
The parties separated on March 19, 2022, when Wife moved
out of the marital home. The court admitted video evidence1 and credited Husband’s testimony that Wife was physically and verbally abusive to him during the marriage, which, among other factors, led to its dissolution.
Wife filed for divorce on March 28, 2022. Husband filed a counter-complaint for divorce on June 7, 2022. Wife sought a monetary award and a share of Husband’s retirement assets, an award of indefinite alimony based on unconscionable disparity in the parties’ incomes, a child support award, and attorneys’ fees. Husband asked the court to grant him a monetary award and to order Wife to pay child support and contribute toward his attorneys’ fees.
On April 24, 2023, the court entered a consent custody order, incorporating the parties’ custody agreement. The parties agreed to share joint legal custody, with Husband having tiebreaking authority in the case of an impasse, and to share physical custody, with Husband receiving 65% of the overnights and Wife the remaining 35%. The custody agreement did not include child support.
The issues of marital property/monetary award, alimony, child support, and attorneys’ fees were tried over four days in June 2024. In her case, Wife testified and called Husband. In his case, Husband testified, called Wife, and called seven lay witnesses to testify concerning alleged transfers of property made by Wife.
On October 17, 2024, the court issued a detailed memorandum opinion and order. As a threshold matter, the court made credibility findings. It found that Wife evaded answering questions posed by her attorney and opposing counsel, that she was insincere at times, and that she was not credible when she testified about certain messages being deleted from her phone and about the reason she lost her job.
The court found Husband’s testimony more credible, but did not credit his testimony concerning the value of the marital home and other financial information or concerning his allegation that Wife had altered discovery materials he had produced to her. The court found both parties to lack credibility on the issue of compliance with discovery.
The court granted Husband a divorce on the dual grounds of a voluntary separation and cruel and excessively vicious conduct.
The court thoroughly reviewed the parties’ marital and nonmarital property and made detailed findings, the vast majority of which are not challenged on appeal. We will review the findings challenged by Husband in our discussion. In sum, the court determined that there was approximately $2.78 million in marital property, of which $2.49 million was titled in Husband’s name, $229,527 was titled in Wife’s name, and $58,019 was jointly titled. It found that Husband had almost $500,000 in non-marital property titled to him, whereas Wife had $22,000. After assessing the statutory factors, the court ordered Husband to transfer to Wife a 40% share of his retirement assets ($642,725.82) and to pay her$428,626.07 as a monetary award.
The court determined that Wife was not entitled to an award of indefinite alimony because she was currently capable of being fully self-supporting upon obtaining a new job but ordered Husband to pay her rehabilitative alimony for a period of five
years on a gradually decreasing scale: $5,000 per month for the first eighteen months; $3,500 per month for the next eighteen months; and $2,500 per month for the final two years. The court ordered Husband to pay Wife $111 per month in child support. The court denied the parties’ requests for attorneys’ fees. Husband’s motion to alter or amend the judgment, as amended, was denied. This timely appeal followed.
STANDARD OF REVIEW
We review the circuit court’s determinations regarding divorce, alimony, child support, disposition of marital property, and attorneys’ fees for errors of law in applying legal standards, for clear error in factual findings, and for abuse of discretion in the ultimate awards. Malin v. Mininberg, 153 Md. App. 358, 414-15 (2003). Factual findings underlying a circuit court’s decision are not clearly erroneous if supported by competent and substantial evidence. St. Cyr v. St. Cyr, 228 Md. App. 163, 180 (2016); Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). A ruling is an abuse of discretion only when “no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.” Velasquez v. Fuentes, 262 Md. App. 215, 228 (2024) (cleaned up).
DISCUSSION I. Alimony
Because the statutory purpose of alimony is to rehabilitate an economically dependent spouse, Maryland favors alimony for a fixed term. Goicochea v. Goicochea, 256 Md. App. 329, 357 (2022). Nevertheless, in cases where the court finds 1) that the party seeking alimony cannot make substantial progress toward becoming self-supporting due to age, illness, infirmity, or disability, or 2) even after making “as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate[,]” the court may award indefinite alimony. Md. Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”) § 11-106(c).
Before making an award of alimony – whether rehabilitative or indefinite – the court must consider twelve statutory factors:
1. the ability of the party seeking alimony to be wholly or partly self- supporting;
2. the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
3. the standard of living that the parties established during their marriage;
4. the duration of the marriage;
5. the contributions, monetary and nonmonetary, of each party to the well- being of the family;
6. the circumstances that contributed to the estrangement of the parties;
7. the age of each party;
8. the physical and mental condition of each
9. the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
10. any agreement between the parties;
11. the financial needs and financial resources of each party, including:
(i)all income and assets, including property that does not produce income;
(ii)any award made under §§ 8-205 and 8-208 of this article;
(iii)the nature and amount of the financial obligations of each party; and
(iv)the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL § 11-106(b).
In the instant case, Wife sought an award of indefinite alimony based upon unconscionable disparity. The court considered the above factors, making the following relevant findings. Wife worked throughout the parties’ marriage up until three months before the merits hearing, earning $89,000 annually when she lost her job at Voice of America. The court did not credit Wife’s testimony that she was “laid off,” but did not find that she “voluntarily quit,” as Husband had argued. Wife was actively seeking new employment, having applied for forty positions and engaged a recruiter to assist in that effort. The court found that Wife could earn “up to $89,000.00 per year” and that she was “fully capable of becoming wholly selfsupporting . . . at th[at] income level.” Significantly, Wife did not require any additional education or training to enable her to find suitable employment as she was highly educated and had been employed for the entirety of the parties’ nineteen-year marriage.
The court found that the parties’ standard of living during their marriage was “moderate” and that both parties contributed to the well-being of the family in monetary and non-monetary ways. Although the parties had longstanding issues during their marriage, the court found that Wife’s violence toward Husband was “the final blow that led to their separation.”
At the time of the merits hearing, Husband was age sixty-one and Wife was age fifty-one. Both were healthy. Husband had the ability to pay alimony because he earned $24,300 per month, which the court found was $18,463 more than his reasonable monthly expenses. The court found that Wife’s reasonable monthly expenses were $5,767.86.
Based upon those findings, the court rejected Wife’s request for indefinite alimony. The court found that Wife was able to be self-supporting and if she obtained employment at her prior income level of $89,000 per year, the parties’ standards of living would not be unconscionably disparate.2 However, the court concluded that Wife was entitled to an award of rehabilitative
alimony, for a term of five years. As set out above, the alimony payments began at $5,000 per month and decreased to $2,500 per month over that term. The court explained that five years was a “sufficient time for [Wife] to secure suitable employment in her field of experience and become self[-]supporting earning up to $89,000 per year[.]”
On appeal, Husband argues that the court’s finding that Wife was currently able to be self-supporting based upon her education and training should have precluded an award of rehabilitative alimony. He also maintains that the court failed to weigh Wife’s discovery failures, which he alleged prevented him from discovering the value of Wife’s marital and non-marital property, in assessing the parties’ financial statuses.
Although we perceive no error in the court’s findings on the statutory factors, we conclude that the court’s ultimate decision to award Wife rehabilitative alimony for a period of five years must be vacated. We explain.
A party “is self-supporting if the party’s income exceeds the party’s ‘reasonable’ expenses, as determined by the court.” St. Cyr, 228 Md. App. at 186. An award of rehabilitative alimony ‘“must be grounded in a finding that the recipient spouse is not [currently] self-supporting and needs training, education, or other steps to help that spouse achieve financial self-reliance.”’ Id. at 194 (emphasis added) (quoting Karmand v. Karmand, 145 Md. App. 317, 328 (2002)). In other words, ‘“there must be some relation between the length of the award and the conclusion of fact as to the income disparity made by the court.’” Id. (quoting Benkin v. Benkin, 71 Md. App. 191, 204 (1987)).
Here, the court determined that, at the time of the merits hearing, Wife had no income, was incurring reasonable expenses of nearly $5,800 a month, and that if she obtained employment at the same income level she previously enjoyed – $89,000 annually – she would be wholly self-supporting. The court found that Wife did not require additional training or education to obtain employment but did require time to “secure suitable employment” at her prior income level. This finding was not clearly erroneous given that Wife had been unemployed for just three months. The court made no finding, however, about the length of time Wife would need to obtain new employment at (or above) her prior income level, and there was no evidence that five years was a reasonably necessary time frame for that. The evidence showed that Wife had been employed continuously throughout the marriage and that she was actively seeking employment.
To be sure, the court stated that five years was a “sufficient” time for Wife to obtain suitable employment in her field of expertise and to become self-supporting by earning (at least) what she had been paid by Voice of America. A sufficient time could be much longer than the amount of time reasonably necessary to accomplish that, however. The record does not show any evidence about how the five-year term set for rehabilitative alimony award bears any relationship to the steps Wife would need to take to become employed at or above her most recent income level of $89,000 annually. Indeed, the fact that Wife was employed consistently throughout the marriage and that only three months before the merits hearing she was earning a sum that would make her self-sufficient militates
strongly against five years being a reasonably necessary period of time for her to find employment at a self-sufficient earnings level. Accordingly, we must vacate the award of rehabilitative alimony. On remand, the court may, in its discretion, receive additional evidence on the sole issue of Wife’s current employment status and job search to enable it to determine the duration and amount of any award of rehabilitative alimony. We otherwise affirm the court’s findings on the issue of alimony.
II. & III.
Marital Property & Child Support
Our decision to vacate the award of rehabilitative alimony also affects the monetary award and the award of child support. “[A] court’s determinations as to alimony, child support, [and] monetary awards . . . involve overlapping evaluations of the parties’ financial circumstances.” St. Cyr, 228 Md. App. at 198. Consequently, “when this Court vacates one such award, we often vacate the remaining awards for re-evaluation.” Turner v. Turner, 147 Md. App. 350, 400-01 (2002) (collecting cases). Although, for reasons we shall explain, we reject Husband’s claims of error by the court relative to its determination and valuation of the marital property, its grant of a monetary award, and its calculation of child support, we shall vacate those awards solely to permit reevaluation by the court in light of its redetermination of alimony.
Disposition of Marital Property
In a divorce case, the court must follow a three-step process to determine whether a monetary award is appropriate. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 279 (2021). First, the court must determine whether a disputed item of property is marital or non- marital. Id.; FL § 8-203. Second, the court must determine the value of any marital property. Wasyluszko, 250 Md. App. at 279 (citing Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019)); FL § 8-204. Third, “the court must decide if the division of marital property according to title would be unfair, and if so, it may make a monetary award to rectify any inequality created by the way in which property acquired during marriage happened to be titled.” Wasyluszko, 250 Md. App. at 279-80 (cleaned up); FL § 8-205. As part of this third step, the court must consider the eleven factors listed in FL § 8-205(b).3
Husband contends the court erred in the first and second steps, which necessarily affected the third step. Specifically, he challenges the court’s determination and valuation of the parties’ marital property for four reasons: 1) the court clearly erred by adopting Wife’s claims about title and valuation of real property in Iran; 2) the court erred by allowing Wife to opine as to the value of the marital home and by accepting her valuation, rather than Husband’s valuation; 3) the court erred by finding that Wife did not dissipate marital property; and 4) the court erred by finding that the VenoArt, LLC, inventory was nonmarital property. We address each in turn.
1. Real property in Iran
In their Rule 9-207 Statement, the parties agreed that five items of real property in Iran were non-marital but disagreed as to whether Wife had an interest in the property and/or the value of Wife’s interest. As to two properties – a shopping mall and Wife’s late mother’s home – the court found that there was no evidence that Wife had an interest in the property. As to two other properties – an apartment in Tehran and a commercial property in Tehran – the court determined that Wife had an interest in the property and credited Wife’s testimony about the value. As to the fifth property, a mansion in Tehran previously owned by Wife’s late grandfather, the court found that there was no evidence presented by either party as to the value and valued it at $0. Husband does not direct us to any evidence in the record supporting his assertions about the title to or value of these properties, and his argument is merely that the court should not have credited Wife’s testimony about these properties. It is not within our purview on appeal to second guess the circuit court’s credibility findings or reweigh the evidence. See, e.g., Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020) (“It is not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.”); Kremen v. Md. Auto. Ins. Fund, 363 Md. 663, 682 (2001) (“Our function is not to retry the case or reweigh the evidence[.]”).
2. Valuation of the marital home
Husband purchased the marital home, located in Gaithersburg, in October 2004, about one month before the parties married, for $648,888, making a down payment of $129,778. At the merits hearing, Husband testified that the current value of the marital home was less than what he had paid twenty years earlier, valuing it at between $580,000 and $590,000. He was aware that the projected market price on Zillow4 was $900,000 but testified that that value was incorrect. He acknowledged having made numerous improvements to the home but claimed that its condition had deteriorated and that it would require extensive remodeling. Wife opined that the value of the home was $900,000 based upon the Zillow estimate. The court accepted Wife’s valuation, concluding that Husband’s testimony about the current condition of the home lacked credibility.
Husband contends the court erred by accepting Wife’s valuation of the property based upon “improper hearsay” in the form of the Zillow valuation. We perceive no error. Both parties referenced that valuation in their trial testimony, and Husband did not object to Wife’s use of that valuation. Both parties were permitted to opine as to the value of the marital home, and the trial judge was in the best position to assess their credibility and the value of those opinions. See Brown v. Brown, 195 Md. App. 72, 119 (2010) (explaining that owners of property are “presumed to be familiar with its value so that [their] opinion of its value is admissible as evidence” (cleaned up)). The court reasonably disregarded Husband’s testimony that the property had decreased in value and accepted Wife’s valuation, which was consistent with current market conditions.
3.Dissipation
Ordinarily, property disposed of prior to a merits hearing in a divorce case cannot be included in marital property or considered in making a monetary award. Abdullahi, 241 Md. App. at 414. An exception exists, however, for property that has been dissipated, meaning that one party used the marital funds or property for a purpose unrelated to the marriage “at a time where the marriage [wa]s undergoing an irreconcilable breakdown.” Omayaka v. Omayaka, 417 Md. 643, 651 (2011) (cleaned up). The party claiming dissipation has the initial burden of producing evidence to show dissipation and the ultimate burden of proving dissipation. Id. at 656. Here, although both parties alleged that the other dissipated marital property, we are concerned only with Husband’s claim that Wife dissipated marital property.
Husband called seven witnesses who he claimed had engaged in financial transactions with Wife whereby she gave them money and they repaid her by depositing funds in an account she maintained in Iran. The court found that all of the transactions were loans that were repaid and found the evidence equivocal on the issue of whether money was repaid to Wife in the United States or in Iran. The court further found that there was no evidence that Wife benefited from the transactions; that the financial transactions occurred over a very lengthy period of time; most of the transactions predated the breakdown of the marriage; and the evidence showed that Husband was aware of most of the transactions. These findings were not clearly erroneous and supported the court’s determination that Husband did not meet his burden to show that Wife had dissipated marital property. That the court was not persuaded by Husband’s testimony and evidence to the contrary does not render the court’s findings clearly erroneous. See Bricker v. Warch, 152 Md. App. 119, 137 (2003) (“[I]t is . . . almost impossible for a judge to be clearly erroneous when he [or she] is simply not persuaded of something.” (emphasis removed)).
4. VenoArt, LLC inventory
Inventory for Wife’s online art auction business remained in the marital home when Wife moved out. Wife testified that that artwork was owned by her aunt, except for one item that was owned by another individual. Husband claimed that the artwork was owned by VenoArt and was marital property subject to valuation and distribution. The court credited Wife’s testimony about the ownership of the artwork and, consequently, concluded that the artwork was non-marital property. Because there was competent evidence in the record supporting the court’s finding, it was not clearly erroneous.
Child Support
The court ordered Husband to pay Wife $111 per month in child support. In calculating child support, the
court found that Wife’s actual income was $5,000, that is, the amount of monthly alimony the court had ordered Husband to pay. Husband contends the court erred by not including potential income for Wife in calculating child support because, in its ruling on alimony, the court “found that Wife is voluntary[il]y impoverished, and imputed income to [her] of $89,000.” This contention is wholly without merit. The court did not find that Wife “made the free and conscious choice, not compelled by factors beyond [her] control, to render [herself] without adequate resources[,]” FL § 12-201(q), and its opinion makes no reference to voluntary impoverishment. Rather, the court found that Wife no longer had her position with Voice of America and was actively seeking new employment. The court did not err by not imputing income to Wife when it calculated child support.
IV.
Attorneys’ Fees
Attorneys’ fees are allowable by statute in proceedings involving divorce, the disposition of marital property, alimony, and child support. See FL § 7-107 (divorce); FL § 8-214 (disposition of marital property); FL § 11-110 (alimony); FL § 12-103 (child support). Under those statutes, before the court may make an award of fees, it is obligated to consider: 1) each parties’ financial resources and financial needs, and 2) whether there was substantial justification for prosecuting or defending the proceeding. We will not disturb a court’s decision to award or deny attorneys’ fees absent an abuse of discretion. Richards v. Richards, 166 Md. App. 263, 285 (2005).
In the instant case, the court explained that it had addressed the parties’ financial resources and needs in detail in its discussion of the other issues and, based upon those findings, determined that an award of fees was not appropriate here. The court further found that neither party was credible about their compliance with discovery and that “both [p]arties equally contributed to the costs of the other.” On those bases, it denied their requests for attorneys’ fees.
Husband contends the court abused its discretion, pointing us to cases in which the court made a finding that one party engaged in conduct that caused protracted litigation. See Frankel v. Frankel, 165 Md. App. 553, 590 (2005); Brown v. Brown, 195 Md. App. 72, 123 (2010). As explained, however, the court made no such finding in this case, concluding to the contrary that both parties engaged in pretrial conduct that caused the other party to expend more fees. The circuit court was in the best position to assess the parties’ competing arguments regarding discovery compliance.
The court’s finding that Husband’s financial needs did not weigh in favor of an award of fees likewise was amply supported by the record, which showed that his annual income exceeds his total attorneys’ fees by more than $100,000. For all these reasons, the court did not abuse its broad discretion by denying Husband’s request for attorneys’ fees.5
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED, IN PART, AND AFFIRMED, IN PART. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID 75% BY THE APPELLANT AND 25% BY THE APPELLEE.
FOOTNOTES
1 Because Husband has a top-secret security clearance for his job, he installed security cameras in his home office.
2 Wife did not note a cross-appeal on the issue of indefinite alimony.
3 Those factors are:
(1) the contributions, monetary and nonmonetary, of each party to the well- being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property
held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
FL § 8-205(b).
4 Zillow is a commercial website that provides, among other things, an estimated market value for many residential properties. See www.zillow.com.
5 Husband is correct that, by order entered November 20, 2023, the circuit court awarded him fees in association with the filing of his amended and renewed motion to compel and for sanctions for failure to respond, with the amount of those fees “to be determined at the scheduled merits.” A review of the attorney invoices submitted by Husband at trial reveals that his attorneys did not bill any time for the drafting and filing of this motion, however. Because Husband did not adduce any evidence at trial bearing upon these fees, the court did not err by not awarding them.
