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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: The benefits of open adoption for foster youth
Despite advanced technological resources available for family finding, open adoptions allow the stability of a forever family while providing valuable information to adoptees about their origins and ongoing contact with biological relatives, without the need for intermediary assistance.
4 Cover Story: Child custody bills to be re-introduced in 2025 session
For the third year in a row, child custody will be a major focus of family lawminded legislators this coming General Assembly session. Proposed legislation would codify the standards that a judge considers in custody matters and codify courtroom standards for the qualifications for court-appointed child custody evaluators.
6 In the News: Maryland high court to take up 3 family law cases
Among the cases being heard by the court is one in which the trial court ordered child support over the express objection of the parents and another that will determine whether an order denying pendente lite child support and alimony is appealable.
7 Guest Column: The role of ‘financial independence’ in divorce
Columnist Morgan E. Foster explores the issue of how family law practitioners can encourage clients to achieve the best financial outcome, while also promoting financial independence.
8 Monthly Memo
Texas has sued a New York doctor for prescribing abortion pills to a woman near Dallas, launching one of the first challenges in the U.S. to shield laws that Democrat-controlled states like Maryland passed to protect physicians after Roe v. Wade was overturned. ... A Minnesota woman who lost her bid in federal court to be released from a tribal court’s jurisdiction in her divorce from a tribal member has appealed her case to the U.S. Court of Appeals for the 8th District. … Japan’s refusal to recognize same-sex marriage is unconstitutional, a high court ruled earlier this month, the latest victory for the LGBTQ+ community to add pressure on the reluctant government. … A probate commissioner has ruled against Rupert Murdoch’s effort to change his family’s trust to give one of his sons control of his media empire and ensure Fox News maintains its conservative editorial slant. … The father of a 3-year-girl killed by her mother’s boyfriend while in legal custody of the state of Missouri has reached a $14 million wrongful death settlement with Great Circle, a former state foster care case management contractor.
9
Child Advocacy
The benefits of open adoption for foster youth
On Nov. 23, Baltimore City held its annual National Adoption Day event, celebrating and recognizing families created through adoption.
Since its inception in November 2000, National Adoption Day celebrations have been held on the Saturday before Thanksgiving in more than 400 communities throughout the United States.
“Adoption is a legal process that permanently transfers parental responsibility from a child’s birth parents to their adoptive parents. After reunification, it is the next most secure permanency option for children in foster care,” according to the Annie E. Casey Foundation.
Despite this permanent transfer of parenting responsibilities, many adoptive families maintain communication with birth parents through open adoptions.
Open adoptions allow for the exchange of information between adoptive and birth families and, often, ongoing contact between the adopted child and his birth family.
In recent decades, open adoptions have become the preferred option, where approximately 95 percent of private agency adoptions, were open to various degrees.
Historically, for the first adoptions in the U.S., courts did not seal adoption records. Instead, the sealing of court records occurred in the middle of the 20th century in an effort to protect children from the outdated stigma of “illegitimacy.”
In the 1970’s, adoptees and birth parents began to advocate for open adoptions to get information; research came to light outlining the potential negative effects of closed, confidential adoptions.
Studies have shown that adoption information is important to at least twothirds of adopted people.
Benefits cited by adopted teenagers
CHRISTOPER
Child Advocacy ZIEMSKI
participating in a Texas-Minnesota study of adoptees include understanding reasons for their adoption, identifying where certain personal traits may have come from, receiving information that aids their identity formation, and providing additional supportive adults in their lives.
In some adoptions, there are formal Post Adoption Contact Agreements. PACAs often result from direct communication between the adoptive and birth families through mediation, where the agreement details are discussed by the parties with the facilitation of a private or court-appointed mediator.
PACAs are voluntary agreements between the birth parents and prospective adoptive parents which outline contact and information the birth parents will receive after the adoption is finalized.
The advantage of a PACA is that it sets forth the terms and contractual rights of parties.
In Maryland, PACAs are governed by the Family Law Article §5-308, which authorizes an adoptive parent or prospective adoptive parent to enter into a written agreement that allows for post-adoption contact between the birth parent or other relative of the adoptee and the adoptee or adoptive parent.
While a PACA is a legally enforceable agreement, failure to comply with a condition of the PACA is not grounds to set aside an adoption order.
Instead, a court may refer the parties to mediation to try to resolve the dispute, or the court may enforce or modify the written agreement as long as it is in the adoptee’s best interest.
A PACA should be clear, concise, and use plain language to reduce
misunderstandings by the parties. It should explicitly state the type and frequency of contact and information to be provided.
Contact on holidays or milestones, such as birthdays, graduations, and cultural days of significance, are frequently included in the agreement.
A PACA should include provisions that allow the adoptee child to have input about the scheduling and mode of contact when the adoptee is able to communicate his own preferences.
While open adoptions are largely preferred and recognized as beneficial, technological innovations have also made secretive, closed adoptions more difficult and a relic of the past.
Genetic testing companies, social media, and powerful online research tools have made finding biological families much easier.
The Mutual Consent Voluntary Adoption Registry is a “listing of adult adoptees, birth parents and birth siblings that are looking to reconnect.”
In Maryland, adoptees can also utilize Post-Adoption Search Contact and Reunion Services (“PASCRS”) to reconnect with their birth relatives. This service utilizes a search process in which “efforts are made to identify, locate and engage the sought individual” through the adoption court record.
Once a record is located, a trained confidential intermediary identifies people with whom contact is sought and attempts to engage them if there is mutual consent to contact.
Despite advanced technological resources available for family finding, open adoptions allow the stability of a forever family while providing valuable information to adoptees about their origins and ongoing contact with biological relatives, without the need for intermediary assistance.
Christopher Ziemski is a staff attorney at Maryland Legal Aid.
Child custody bills to be re-introduced in 2025 session
By Rachel Konieczny RKonieczny@TheDailyRecord.com
For the third year in a row, child custody will be a major focus of family law-minded legislators this coming General Assembly session.
Proposed legislation would codify the standards that a judge considers in custody matters -- factors that are currently in case law but not in statute — and codify courtroom standards for the qualifications for court-appointed child custody evaluators.
This year, legislators and those familiar with the bills hope the
two measures will pass thanks to a more collaborative approach between the bills’ drafters and those who oppose or question portions of the proposed legislation.
Sen. Chris West, R-Baltimore County and co-sponsor of the child custody evaluators legislation, said the bill seems like a “no brainer,” but that it faces opposition from the Maryland Judiciary.
To help the bill gain passage, West said, drafters of the measure modeled the legislation after the Maryland Judiciary’s newly passed rule that prescribes the type of
training custody evaluators should receive.
“The theory of this bill is you want the evaluator, who’s going to be making recommendations to the judge, to have the same training as the judge,” West said in a phone interview.
But members of the Maryland Judiciary, in past years, have opposed that notion, testifying that the bill would have a variety of unintended consequences, including causing significant delays and roadblocks to petitioners obtaining protective orders.
THE DAILY RECORD/FILE PHOTO
Maryland lawmakers once again will consider bills that would make changes to procedures under which custody decisions are made in divorce cases.
“Under this bill, the court would have to appoint custody evaluators in these cases, given that they involve ‘physical, sexual, or psychological abuse of an intimate partner or former intimate partner’ as outlined in the bill,” wrote the Maryland Judicial Conference of the Maryland Judiciary in testimony last session. “That mandate is not feasible, given the volume of cases … In short, this bill runs counter to the Judiciary’s mission to provide fair, efficient and effective justice for all.”
Meanwhile, the bill to codify the factors a judge considers in custody cases has faced opposition of its own in years past.
West said the bill got caught up last year because it does not contain a presumption as to which parent should be granted custody of the child. Rather, opponents of the bill believe there should be a presumption of joint custody.
“Why are we going to tell the courts to presume something? The facts ought to govern,” West said, noting that which parent is awarded custody of the child should depend on the facts of the individual case.
The child custody factors bill is intended to assist self-represented parents of Maryland children who might not understand the cases they have to review and the factors that they have to prove in court in order to have the right custody decision made by the judge, said Michelle Smith, co-chair of the legislative committee of the Maryland State Bar Association and council member of the MSBA family law section.
“It levels the playing field for everybody, all of the participants — pro-se litigants as well as lawyers,” Smith said of the bill.
Smith, who is with Annapolis-based Trainor, Billman, Bennett, Milko & Smith, LLP, said the MSBA family law section has “given quite a bit of thought” between legisla-
SUBMITTED PHOTO
“It levels the playing field for everybody, all of the participants — pro-se litigants as well as lawyers,” family law practitioner Michell Smith says of the custody factors bill.
tive sessions to the idea that there should be a presumption of joint custody between parents. While the MSBA is opposed to the presumption of joint custody, Smith said her group may have to consider the position of some legislators who want the presumption of joint custody.
“This is a pretty complex legal analysis that has to happen because the standard in Maryland has always been the best interest of the child without a presumption, rebuttable or otherwise,” Smith said. “This is definitely one of the more weighty issues that I think will be coming up in this session.”
Still, West said, the bill is needed and would make it simple for someone to print out a copy of the statute and know the child custody factors the judge is going to be focused on, derived from numerous court decisions.
“Your average layman who comes into court has no idea what those court decisions are, how to look them up or find them, and they sort of go in clueless so they’re not aware of exactly what the judges are going to be considering when making the decision,” West said. “They can present their case but if
“The theory of this bill is you want the evaluator, who’s going to be making recommendations to the judge, to have the same training as the judge,” says Sen. Chris West of a bill to set standards for custody evaluators.
they leave something critical out or focus on something which is not one of the required criteria, then they probably don’t do themselves the best that they can.”
“It’s like a consumer protection statute,” West added, noting that in up to 75% of child custody cases, at least one spouse lacks legal representation.
Also on the minds of family lawminded legislators is potential legislation that would enable a court to award certain items of personal property used during family time together to one party, Smith said.
Though it has no sponsor yet, Smith said the issues “seem small and minor but can be impactful to families.”
On the child custody bills, Smith said she’s hoping the MSBA family law section and legislators can collaborate with the bills’ opponents.
“We are hoping we can collaborate with those opponents in order to craft something that satisfies everybody and works and is in the best interest of Maryland children,” Smith said. “We’re hoping to take a collaborative approach as opposed to continuing to oppose one another.”
SUBMITTED PHOTO
In the News
Maryland high court to take up 3 family law cases
By Rachel Konieczny RKonieczny@TheDailyRecord.com
The Maryland Supreme Court late last month said it will hear five cases, three of which are family law matters.
The family law cases are: Todd A. Pattison v. Deborah Pattison; In the Matter of the Marriage of Houser; and Jennifer Adelakun v. Adeniyi Adelakun.
In Houser, the high court is set to decide five issues this term, including whether the trial court abused its discretion when the court ordered child support over the express objection of the parents, and whether the appellate court’s decision that parents cannot privately agree to waive child support has a chilling effect on parents’ rights to enter into agreements that they believe to be in their children’s best interest.
The case centers on Erica Hall Houser and Nicholas Houser, who submitted a child support agreement proposing that the father, Nicholas Houser, would have no child support obligation.
The appeals court found that the Anne Arundel County Circuit Court correctly applied the child support guidelines, which are optional only when the court finds that application of the guidelines would be unjust or inappropriate.
The appellate court also found that the circuit court did not err in determining that Nicholas Houser owed child support and in finding that the parents “had no constitutionally protected liberty interest in agreeing that Father had no obligation to provide child support for their son.”
In Pattison, Deborah Pattison and Todd Pattison signed a voluntary separation and property settlement agreement, which the Maryland Appellate Court found did not form a contract between them because
The three cases to be considered by the Maryland Supreme Court cover a variety of family law issues, including whether a trial court abused its discretion by ordering child support over the express objection of the parents.
Todd Pattison did not sign the agreement by the deadline.
The appeals court found that because the condition precedent that the agreement must be signed by a certain date was not ambiguous and because the agreement was not signed within the time required, a valid contract was not formed between the parties.
The high court will determine whether the trial court erred in holding that the Pattisons’ voluntary separation and property settlement agreement signed by both parties was valid and enforceable.
In Adelakun, the Maryland Supreme Court will determine whether an order denying pendente lite child support and alimony — or child support and alimony that is only valid while the matter is under litigation — is appealable.
Jennifer Adelakun requested pendente lite alimony and pendente lite child support from Adeniyi Adelakun after the two filed a complaint for absolute divorce in the Howard County Circuit Court.
The Maryland Appellate Court held that an interlocutory order denying pendente lite alimony and child support is not a final judgment and is not appealable as an order for the payment of money. Although interlocutory orders to pay alimony and child support are appealable orders, the appeals court cited a statute that provides a right to appeal only from orders that require a party to pay a specific sum of money to another person.
Because the order denying the pendente lite request for alimony and child support was not such an order, the order is not appealable, the court found.
MARIA SESTITO/THE DAILY NEWS VIA AP
The role of ‘financial independence’ in divorce
Recently, there has been a trend of celebrity women speaking out in favor of financial independence for women (Reese Witherspoon, Judge Judy and Michelle Obama, to name a few). In Judge Judy’s words “once women give up financial independence to a mate, it’s over, because there’s no equality anymore.”
A common theme in these remarks is this: When women give up their financial independence, they give up freedom, autonomy and open themselves up to the risk of being “trapped” in a marriage or relationship where they are financially dependent on their partner.
Of course, this phenomenon is not unique to women. Increasingly, men too give up their careers to serve as the stay-at-home spouse, but conventional wisdom assumes (and statistical data appears to back this up) that financial dependence is more common among women than men.
This question of financial independence often rears its head during divorce, and many attorneys are rightfully conflicted about how to address this issue when advising clients (particularly clients who are the financially dependent spouse).
For example, in order to maximize the financially dependent spouse’s entitlement to alimony or child support, that spouse should earn minimal income. There are plenty of family law attorneys who tell their financially dependent clients: Don’t get a job (or get one that pays minimally).
Similarly, the financially dependent spouse may be legally incentivized to maximize their “reasonable needs” by failing to trim back on their household budget post-separation. These strategies make sense if the goal is to maximize an alimony or child support award.
However, in life – in the real world – the issue is far more complex. For example, court-awarded alimony or child support is likely to cease
Morgan E. Foster
immediately if the payor spouse dies. Or, if the payor spouse loses their job, or simply elects to stop paying, it may be months before the recipient spouse can receive any financial relief through a court order.
Furthermore, by reducing spouses’ earning capacity (and maximizing their financial footprint) these strategies compound the financially dependent spouse’s reliance on their spouse to live. Even after the marriage ends, this can create feelings of inferiority by the dependent spouse and superiority by the provider spouse – enforcing or perpetuating potentially damaging power dynamics that existed during the marriage.
So, how can we encourage clients to achieve the best financial outcome, while also promoting financial independence?
If possible, negotiating an up-front, lump-sum alimony award (potentially paid out of an adjustment in the division of existing assets) provides one way of accomplishing this. Such a strategy allows the payor to get alimony “over with” (which often appeals to clients who “just want to be done”) and also allows the recipient spouse to have
autonomy and authority over the entire alimony amount.
Another way attorneys can address these two competing motivations is to bring in a financial adviser (a CDFA –Certified Divorce Financial Analyst –if possible) to advise the recipient (or payor) spouse on their options.
Financial advisers often instruct clients on the wisdom of reducing monthly cost outlay and investing assets wisely, to create a more sustainable long-term financial picture. These specially trained financial advisers often can advise on planning for long-term financial needs, like college or retirement, and can weigh in on whether a particular financial settlement proposal allows the litigant to meet his/her long-term needs.
This takes some of the pressure off the attorney, who can still educate the client about his/her legal position but need not venture into advising on financial decision-making. Vocational Consultants (often used as expert witnesses in family law cases) can also assist a recipient spouse in determining what their realistic earning capacity is, and what education or certifications they need to re-enter the workforce.
In short, simply advising a financially dependent client on how to maximize their alimony or child support award is only part of the picture. If attorneys wish to serve their clients’ longterm needs, we should always make sure the client looks beyond their immediate concerns toward achieving long-term financial independence.
We can also help clients put a team in place who will stay with them long after litigation is concluded -and they have paid our final legal bill -- to ensure they continue to have necessary financial expertise beyond their divorce.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess.com.
Texas’ abortion pill lawsuit a new challenge to interstate telemedicine
Texas has sued a New York doctor for prescribing abortion pills to a woman near Dallas, launching one of the first challenges in the U.S. to shield laws that Democrat-controlled states like Maryland passed to protect physicians after Roe v. Wade was overturned.
Such prescriptions, made online and over the phone, are a key reason that the number of abortions has increased across the U.S. even since state bans started taking effect. Most abortions in the U.S. involve pills rather than procedures.
The lawsuit accuses New York Dr. Maggie Carpenter of violating Texas law by providing the drugs to a Texas patient and seeks up to $250,000. No criminal charges are involved.
Texas bars abortion at all stages of pregnancy and has been one of the most aggressive states at pushing back against abortion rights.
In 2023, Maryland enacted into law interstate shield legislation to protect providers, patients, and those who help others access abortion from the reach of out-of-state investigations and lawsuits.
Associated Press
Tribal jurisdiction over non-member’s divorce appealed to the 8th Circuit
A Minnesota woman who lost her bid in federal court to be released from a tribal court’s jurisdiction in her divorce from a tribal member has appealed her case to the U.S. Court of Appeals for the 8th District. Attorneys for the former wife, who was not a tribal member, and her former husband sharply disagree about whether jurisdiction was supported.
Robert and Kristin Tix were married in 2008 in Minneapolis. Robert is an enrolled member of the Prairie Island Mdewakanton Dakota Indian Community, but Kristin is not a member. They decided to divorce in 2022, separately filing petitions for dissolution. While Kristin filed a summons and petition in Hennepin County District Court, Robert, on the same day, filed his petition in the Court of the Prairie Island Mdewakanton Dakota Community.
The Hennepin County District Court issued an order deferring jurisdiction to
Monthly Memo
the tribal court. Kristin appealed to federal court, arguing that her contacts were insufficient to support the Tribal Court’s exercise of jurisdiction. However, Judge Katherine Menendez concluded that PIIC’s exercise of jurisdiction was supported.
BridgeTower Media
Court rules against Japan’s ban on same-sex unions
Japan’s refusal to recognize same-sex marriage is unconstitutional, a high court ruled earlier this month, the latest victory for the LGBTQ+ community to add pressure on the reluctant government.
Friday’s decision by the Fukuoka High Court in southern Japan marks the eighth victory out of nine rulings since the first group of plaintiffs filed lawsuits in 2019.
The rulings can still be appealed to the Supreme Court, but lawyers and plaintiffs say the overwhelming 8-1 wins are already enough and the government should quickly take action.
Friday’s verdict comes at a time the main obstacle to recognition, Japan’s conservative Liberal Democratic Party, was forced into leading a minority government after its major election loss in October. The LDP is likely to have to compromise more on liberal policies pushed by the opposition parties such as marriage equality, which is largely supported by the general public.
Associated Press
Murdoch’s move to change family trust denied
A probate commissioner has ruled against Rupert Murdoch’s effort to change his family’s trust to give one of his sons control of his media empire and ensure Fox News maintains its conservative editorial slant.
A probate commissioner in Nevada concluded that Murdoch, 93, and his son, Lachlan Murdoch, had acted in “bad faith” in their endeavor to amend the irrevocable trust.
The trust divides control of the company equally among four of Rupert Murdoch’s children — Prudence, Elisabeth, Lachlan and James — after he dies. Lachlan Murdoch has been the head of Fox News and News Corp since late last year, when his father stepped down.
The elder Murdoch has argued that to preserve his businesses’ commercial value for all his heirs, the trust must be changed to allow Lachlan Murdoch to maintain Fox News’ conservative bent.
In his 96-page opinion, Nevada Probate Commissioner Edmund J. Gorman Jr. of the Second Judicial District Court characterized the plan to change the trust as a “carefully crafted charade” to “permanently cement Lachlan Murdoch’s executive roles” inside the empire “regardless of the impacts such control would have over the companies or the beneficiaries” of the family trust.
Associated Press
Father settles for $14M in wrongful death foster care caser
The father of a 3-year-girl killed by her mother’s boyfriend while in legal custody of the state of Missouri has reached a $14 million wrongful death settlement with Great Circle, a former state foster care case management contractor.
Before its 2023 merger with KVC Missouri, a Kansas City-based juvenile psychiatric health provider, the troubled St. Louis County nonprofit was the subject of an FBI raid, abuse charges against multiple employees (including its CEO) and the closure of its residential treatment program in Webster Groves.
The 2019 suit involved the March 2016 death of Aubrey Harvey, 3, at her Barnhart home while in the care of William Allen Harris, who admitted to being high on heroin and then beating and drowning the girl in the bathtub.
Harris is serving a 26-year prison sentence on a conviction of felony abuse or neglect of a child resulting in death.
The suit outlines how Great Circle’s violations of the Missouri Child Welfare Manual resulted in Harris having close contact with Aubrey despite a November 2015 court order that prohibited Harris from having unsupervised contact with both Aubrey and her 1-year-old sister unless he had a clean drug screen and attended parenting classes.
BridgeTower Media
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Harford County Circuit Court’s identification and valuation of marital property. The circuit court failed to address the evidence that husband had withdrawn over $10,000 from the parties’ joint checking account several days prior to their separation, failed to address wife’s entitlement to a share of husband’s retirement benefits and miscalculated the amount husband owed in temporary alimony.
The Appellate Court vacated the Prince George County Circuit Court’s modification of father’s child support obligation. The circuit court needed to render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce father’s rental income, and then subtract that amount from his gross monthly rental income in order to determine his actual income from rent.
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of the parental rights of mother and father as to their two minor children. The circuit court did not abuse its discretion in the termination of father’s parental rights, and abundant evidence supported the juvenile court’s decision to terminate mother’s parental rights.
The Appellate Court affirmed the Baltimore County Circuit Court’s order that the subject of a petition for guardianship (Eric) was not required to appear at the show cause hearing. He was not named in the show cause order, voluntarily waived his right to be present at the evidentiary hearing, was not subpoenaed and was not compelled to testify.
The Appellate Court vacated the Prince George’s County Circuit Court’s custody determination awarding joint legal custody. The trial court erred by failing to consider the factors related to the best interest of the child in making its child custody determination.
The Appellate Court affirmed the Baltimore County Circuit Court’s order changing the children’s permanency plans away from reunification with mother, after she pleaded guilty to first-degree child abuse resulting in severe physical injury and was incarcerated.
ABSOLUTE DIVORCE; POST-TRIAL MOTIONS; APPEAL
Thearone Richardson Jr. v. Sarletta Richardson
No. 1970, September Term 2023
Argued before: Wells, C.J., Reed, Battaglia (retired; specially assigned), JJ.
Opinion by: Wells, C.J.
Filed: Nov. 4, 2024
The Appellate Court dismissed the husband’s appeal of the Baltimore County Circuit Court’s judgment of absolute divorce. Both of husband’s post-trial motions were filed too late. As a result, he was obligated to file his appeal within 30 days after the judgment of absolute divorce, which he did not do.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s protective order granting daughter full custody of her halfsiblings for the duration of the protective order and restricting father’s access to a one-hour visitation twice a week. The evidence presented at the final protective order hearing was sufficient to establish that father physically or mentally abused his minor children by a preponderance of the evidence.
The Appellate Court affirmed the Washington County Circuit Court’s award of joint legal and physical custody with tie-breaking authority to mother. The parties asked the court to award custody in a manner that deviated from the terms of their parenting agreement, and the court’s decision to split parenting time and to award tie-breaking authority to mother was altogether reasonable and appropriate on this record.
MODIFICATION; CUSTODY; BEST INTERESTS
Michael Keneke Curtis v. Skylar Elizabeth Batliner
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to modify custody to grant father primary physical custody. The circuit court carefully considered the best interests of the minor in finding that primary physical custody should remain with mother.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Harford County Circuit Court’s identification and valuation of marital property. The circuit court failed to address the evidence that husband had withdrawn over $10,000 from the parties’ joint checking account several days prior to their separation, failed to address wife’s entitlement to a share of husband’s retirement benefits and miscalculated the amount husband owed in temporary alimony.
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.
BACKGROUND
Pre-Trial Proceedings
On June 11, 2019, Wife, through counsel, filed a “Complaint for Absolute Divorce And For Other Appropriate Relief,” alleging desertion, cruelty of treatment, and excessively vicious conduct. Among other things, Wife requested an absolute divorce, alimony, all of the family use property, a determination and valuation of marital property, a monetary award, and a “transfer or award of an equitable amount/share/interest in the marital portion” of Husband’s interest in any pension plan or retirement account, “as well as award any survivor benefits, survivor annuities, pre-retirement death benefits, special allowances, early retirement subsidies, to which [Wife] may be entitled as the former spouse” of Husband.
On January 4, 2024, the Circuit Court for Harford County granted Sonja Testerman (“Wife”), appellant, an absolute divorce from Randall Testerman (“Husband”), appellee. Among other things, the court also granted Wife a monetary award of $10,000, ordered the sale of the marital home and directed that the parties split the proceeds therefrom, denied Wife’s request for an interest in Husband’s retirement benefits, denied Wife’s request for a survivor interest in Husband’s retirement plan, and denied Wife’s request for attorney’s fees. Wife appealed and presents eleven “issues” for our review. We recast, as follows, the only issues Wife raises which are properly before this Court:
1. Whether the circuit court erred in its identification and valuation of the parties’ marital property.
2. Whether the circuit court erred in denying Wife any interest in Husband’s retirement benefits and denied her request for a survivor interest in his retirement plan.
3. Whether the court erred in its calculation of temporary alimony arrears and in its denial of Wife’s request for indefinite alimony.
4. Whether the court erred in denying Wife’s request for attorney’s fees.
For the reasons to be discussed, we shall vacate the judgment (other than the judgment of absolute divorce) and remand for further proceedings consistent with this opinion.1
Husband, through counsel, filed an Answer to Wife’s Complaint, requesting that the court award him an absolute divorce from Wife pursuant to his counter complaint, and asking that “the remaining relief in [his] Counter Complaint for Absolute Divorce be awarded as requested[.]” (Husband, however, did not file a counter-complaint.) In his Answer, Husband also urged the court to deny the “remaining relief requested” in Wife’s complaint.
In March 2020, the court granted the requests of counsel to strike their respective appearances for Wife and Husband. From that point on, the parties represented themselves.
By order dated December 23, 2020, the court ordered Husband to pay Wife $600 per month in temporary alimony beginning December 1, 2020. In December 2022, Wife filed a petition for contempt alleging non-payment of the temporary alimony. After a hearing on April 20, 2023, the court found that Husband owed Wife $1,200 in temporary alimony and, consequently, found him in contempt. The court, however, found that Husband had a “present inability to pay[,]” and provided that Husband could purge the contempt by “paying his outstanding alimony obligations at the time of the divorce trial[.]”2
Trial
The merits trial began on January 2, 2024. The court, recognizing the parties’ self- represented status, began by asking the parties to clarify what each was seeking in the case. Wife confirmed that she was requesting an absolute divorce, indefinite alimony, the sale of the marital home and the division of the proceeds therefrom,3 a determination and valuation of marital property, a determination of personal property, an equitable portion of Husband’s pension and death benefits,
a monetary award, and reasonable attorney’s fees. Husband asked the court to deny all relief requested by Wife. He also confirmed that he had not filed a counter-complaint for divorce or other relief. Husband, however, told the court that he would like to keep the marital home and requested that Wife’s interest be transferred to him.
The court then informed the parties that it would take a recess to enable Husband to complete a financial statement and Wife to update hers.4 Before doing so, the court also reviewed Maryland Rule 9-207, which provides that when a monetary award is at issue in a divorce proceeding, the “parties shall file a joint statement listing all property owned by one or both of them.” Neither party had completed the Rule 9-207 joint statement in this case, which should have been filed with the court at least ten days before the trial date. Rule 9-207(c). Although acknowledging that it could sanction the parties for their failure to submit the joint statement, the court chose instead to give them the opportunity to complete it. The court then gave the parties the Rule 9-207(b) joint statement form and carefully explained how it should be completed.
After a nearly two-hour recess, the hearing resumed. Because the parties did not reach an agreement on the properties to be listed on the joint statement—or the value of the properties identified—the court stepped in “to try and extrapolate” from their respective forms a document that represented the parties’ position.
As we summarize in the table below, the parties agreed that certain property was marital property, but they disagreed as to the fair market value (“FMV”).
The court also reviewed items of property that the parties agreed were not marital property. In addition, the form included items the parties could not agree were marital or non-marital, including a “pool bar,” hot tub, and miscellaneous personal property.
After assisting the parties with the completion of the Rule 9-207 statement, the court gave the parties time to review it. They both agreed that it was “an accurate extrapolation or summary of the parties’ positions[ ]” and signed it. The court then heard their testimony.
Wife testified that she was then 57 years old and Husband 59 years old. The parties married on July 22, 1989, and had two children together, both now in their thirties. Husband and Wife separated twice in the early 1990s, but they reconciled each time after a brief separation. Wife claimed that Husband assaulted her many times (at least thirty) during their marriage.
Wife acknowledged that “for many, many years, [Husband] never hit” or “abused” her. But in 2016, following Husband’s
back surgery, Wife claimed that “he wasn’t the same anymore.” Wife related that during the surgery Husband “died on the table[ ]” and, although they ultimately revived him, “he had severe brain damage” and once home from the hospital he “became aggressively angry all the time.” She claimed that Husband accused her of having an affair, something she denied.
During an argument in March 2019, the parties, in Wife’s words, engaged in “physical violence with each other.” Husband sought a protective order, alleging that on or about March 12, 2019, Wife had punched, slapped, shoved, and threatened him and had come after him with a knife. Upon Wife’s consent, the court granted Husband a final protective order. At the divorce hearing, in discussing the incident, Wife admitted that she had grabbed a knife “to protect” herself because Husband was “slamming [her] against the walls[]” and she “thought he was going to kill” her. On March 16, 2019, the police served Wife with the protective order and escorted her from the marital home, which she was barred from entering during the order’s one-year duration. This date marked the beginning of the parties’ final marital separation.
Wife related that Husband worked for thirty-two years, throughout much of their marriage, for Chrysler, but he hurt his back in 2012 and retired on disability. She claimed that he then began receiving both workers’ compensation and a pension from Chrysler. Wife submitted a copy of a statement, with the caption “advice of deposit non-negotiable,” reflecting a payment made on November 1, 2019 to Husband from State Street Retiree Services totaling $2,913.81 (after deductions for federal tax and VEBA Health). She testified that this deposit was Husband’s monthly retirement benefit from Chrysler. In addition, from 2012 until February 2, 2022, Husband received $618 per week in workers’ compensation.
Husband admitted that he is presently receiving a pension, stating that he received $2,944.00 per month. He confirmed that the workers’ compensation payments of $618 per week ended January 2, 2022. When the court asked him why those payments were terminated, Husband related that he had received a letter telling him to look for a job, but because he is “disabled” he cannot work and has not worked since 2012. He has, however, applied for Social Security Disability and was awaiting a hearing on that matter.9
In addition, Husband claimed that, because Chrysler had fired him “illegally two or three times” they “owe [him] a lot of back pay money.” He maintained, however, that he did not know how to “go forward to get any of this straightened out.”
Wife also claimed that Chrysler owed Husband money for “back pay,” asserting that he had won a legal action “through the Public Review Board” against Chrysler and the “Union” in 1992 and 1998 and was awarded $169,000 plus interest. According to Wife, “Chrysler and the Union told” Husband “that he’ll collect it when he retires[,]” but Husband has “not done anything to get that money.” When asked by the court if she had any documents to support her assertions, Wife replied that she did not personally have any, but they were at the marital home. Although she encouraged him to file the necessary paperwork before they separated, Wife asserted that Husband “just wouldn’t do it[,]” noting that after his surgery in 2016 “his mind wasn’t right.” Her attempts to move things forward were
unsuccessful without Husband’s cooperation.
Wife requested that the court award her attorney’s fees, testifying that she had borrowed $3,000 from her brother to pay her lawyer and still owed $1,200. She submitted copies of the invoices from her attorney to support her claim.
Wife also reiterated her request for a share in Husband’s pension, as well as a $1,900 monthly “death benefit pension” in the event he predeceases her. In addition, she wanted to secure what she called the “non-transferable death benefit” of $65,000 that she claimed is in her name. In other words, it appears that she wanted to prevent Husband from removing her as the beneficiary of that benefit.
Wife testified that on March 13, 2019—just days before she was ordered to leave the marital home—Husband transferred $10,643.15 from their joint checking account to “a new account” he opened in his name only. She submitted a bank statement reflecting a “funds transfer debit” on March 13, 2019 in the amount of $10,643.15. There was no evidence as to where the money was transferred. Husband claimed that the money in the joint account was “from [his] Workman’s Comp injuries.” Husband did not address the large withdrawal on March 13, 2019 and Wife did not cross-examine him about it.
While Husband worked at Chrysler throughout most of the marriage, Wife primarily stayed at home raising the children and tending to the house.10 Wife described their standard of living as middle class.
Around 1987, Wife began working with Husband’s parents who had an ice cream truck business. She and Husband then began running their own ice cream truck. Wife created all the routes, purchased supplies, ran events, and the like. Wife estimated that her net annual income from this business at about $35,000. In 2001 or 2002, after fifteen years running this business, the business folded when “the economy tanked” and the cost to run it became “financially infeasible.” After that, Wife worked part-time—at a place whose name she could not remember—“pulling parts that would come in.” The last time Wife was employed, in any capacity, was 2002.
When the court inquired as to why she was not currently employed, Wife explained that when she “first got kicked out of the house,” she was “an emotional wreck” because it was unexpected. Although she had applied for jobs, she did not receive any call backs, and then COVID-19 surfaced. She also related that she has “a sciatica issue” and, more recently, a dog bit her left hand and she no longer has full use of that hand. About ten years ago, Wife shattered two vertebrae in her neck, which still gives her “problems.” She has not applied for social security disability because she “never thought about it.”
Although she acknowledged that she had been capable of working between 2002 and 2019, she claimed that she did not because she was taking care of Husband who had “all kinds of physical problems” and “multiple surgeries.” Since leaving the marital home, Wife had been living at her brother’s house while the brother was working overseas. She has been asked to leave, however, because the brother is in the process of gutting his house to remodel it.
When the court asked Wife whether she believed she had “the ability to be either wholly or partially self-supporting[,]” Wife replied that she did not know. When asked if there was
“any type of education or training” that she believed she could “undertake which might enable [her] to find some type of employment[,]” Wife responded that she “can run a business.”
Wife requested alimony, but more than the temporary $600 monthly allowance. Rather, she requested half of Husband’s income. She also sought payment for back alimony which, by her calculations, totaled $16,200. Although the order requiring Husband to pay Wife $600 monthly in temporary alimony directed that the payments begin December 1, 2020, Wife wanted to collect from the date of separation.11
Wife also requested a vehicle, specifically the PT Cruiser. When she acknowledged that the vehicle was titled in Husband’s name, the court informed her it had no authority to transfer title to her name, but it could be considered in any monetary award given that the parties agreed it was marital property.
Wendy Testerman, the parties’ 32-year-old daughter, testified on behalf of Wife.12 She currently lives at the family home and lived there at the time of her parents’ separation. She reported that she had lost her job in April 2021 and was presently unemployed. Wendy did not pay her father rent, but she contributed to the household by purchasing “necessities,” such as toilet paper, food, dish soap, and pet food.
Wendy had a good relationship with her mother and, until recently, also with her father. Due to a domestic violence incident, Wendy obtained a protective order against her father. The final protective order, issued on December 18, 2023 and effective through March 18, 2024, directed him not to abuse, threaten to abuse, harass, or contact Wendy.
Wendy had observed “some of” the argument between her parents in 2019 that led to Husband obtaining a protective order against Wife. “Throughout [her] life,” Wendy had also witnessed, on numerous occasions, Husband verbally and physically abuse Wife.
Faith Fells, Wife’s niece, also testified on behalf of Wife. Ms. Fells had witnessed Husband’s verbal abuse against Wife. Although she never witnessed Husband physically abuse Wife, in March 2019 (after the domestic violence incident between the parties), Ms. Fells observed bruises on Wife’s body which Wife said were inflicted by Husband.
Because Wife has had no vehicle since the separation, Ms. Fells transports her “everywhere.” Ms. Fells had also given wife $2,100 to help with her expenses.
Husband called his brother, Joseph Testerman, to testify on his behalf.13 Joseph related that the parties’ boat, which Wife claimed was worth $35,000, had no value. The boat was “wooden,” it “was rotten[,] the “inside was buckled[,]” and “the planks were upended.” The boat “wouldn’t even float.” In 2002, Joseph spent $3,800 to have the boat towed from his mother’s property, where it had sat for fifteen or twenty years, to a salvage yard. Their attempts to sell it were fruitless, as “[n] obody wanted it.” Joseph could not even “give it away.” It had to be moved from his deceased mother’s property, which was to be sold. Husband later reimbursed Joseph for the towing expense. Husband testified that he purchased the boat from Wife’s mother in the early 1990s for $2,500.
Husband valued the marital home at $120,000 and submitted a copy of a “Home Value Estimator” obtained online reflecting a value of $192,224. Husband believed $120,000 was the
appropriate value in light of needed repairs that he estimated would cost $18,000 to $22,000. He pointed out that the Home Value Estimator did not take into account the interior of the house.
Husband also submitted real estate listings for houses in his neighborhood that had sold in 2023, and he noted that one home—slightly larger than his—had sold in April 2023 for $155,000. Another, also slightly larger, had sold for $160,717. Husband reiterated that, due to “damages” in his home, the “whole house” needs to be “redone.” He submitted photographs of the kitchen, bathroom, the gutters on the house, and a backyard out-building to support his claim concerning the required repairs. He indicated that his disability prevented him from performing the repairs himself.
Husband purchased the marital home in 1995, at a time when the parties were separated. The home was titled only in Husband’s name until about 2010 when Wife’s name was added. The mortgage is and always has been in Husband’s name only, and he has made all the mortgage payments. At the time of the hearing, the outstanding mortgage principal was $48,000.
Because Husband wanted to keep the house, he requested that Wife’s interest in the home be transferred to him. He did not believe that Wife should retain any interest in the home because, he claimed, he had taken out a second mortgage ($34,000) on the house in 2000 to finance the ice cream business for Wife and he was the one who had repaid that loan. He had also made the mortgage payments throughout the parties’ separation.
Husband submitted photographs (exterior and interior) of the ice cream truck, which Wife valued at $35,000 and Husband at $1,500. Husband claimed that Wife had operated the business for three seasons, and the truck has been sitting in the backyard for over twenty years and had not been driven “at all[]” during that time period. When the truck was purchased in 2000, Husband installed a “rebuilt engine” in it. He did not know how many miles were on it, and claimed it is “scrap metal now.” Husband asserted that Wife “can have that ice truck[,]” and “almost everything in that house.”
As for a hot tub/Jacuzzi that Wife valued at $3,000 and Husband claimed had no value, Husband testified that he had gotten “it free on eBay” and he fixed it up. He also asserted that when they separated, he offered Wife his van, but she declined to take it. As for the PT Cruiser, Husband related that he purchased it for his daughter in 2019.14
Husband admitted that he had stopped making the temporary alimony payments after the contempt hearing in April 2023. His apparent reason was that his workers’ compensation benefits had ended, and he had medical problems to deal with.
Husband admitted that he had once assaulted his wife “back maybe in 1990[,]” but denied ever doing so again. He also denied ever hitting his daughter.
The Court’s Rulings
On the third day of trial, after the parties made closing statements, the court announced its decision in open court.15 We summarize the court’s rulings.
Divorce
The court granted Wife an absolute divorce after finding
sufficient evidence to support her claim of cruelty of treatment and excessively vicious conduct at the hands of Husband.
Temporary Alimony Arrears
The court found that the April 20, 2023 order of the court determined that Husband owed Wife $1,200 in temporary alimony as of the date of the order, but shortly thereafter Husband paid her $600. The court further found that the parties agreed that Husband had not paid Wife any temporary alimony for the past seven months. The court, therefore, determined an arrears of $4,800 ($600 plus $600 x 7 months) which the court awarded to Wife and reduced to a judgment.
Marital Property Identification & Valuation
Marital Home. The court noted that, on the joint property statement, Wife claimed the home was worth $180,000 and Husband $120,000. The court found that, based on the $192,000 on-line “appraisal” Husband had submitted into evidence and the $22,000 in repairs he testified were needed, the house had a market value of $170,000, but after looking at the photos Husband had submitted, the court ultimately determined that the fair market value of the house was $135,000. After subtracting the outstanding mortgage of $48,000, the court concluded that there was approximately $87,000 in equity in the house—$43,500 for each party.
Boat. Wife claimed, without any supporting evidence, that the boat was worth $35,000 while Husband maintained it was worthless. The court found that Wife “has tended to overvalue particular items[,]” and noted that, given the testimony of Husband and his brother Joseph, it was satisfied the boat had no value.
PT Cruiser. The court accepted Husband’s assertion that the vehicle, titled in his name, was worth $800.
Ice Cream Truck. The court concluded that the vehicle was jointly owned and rejected Wife’s claim that it was worth $35,000. The court accepted Husband’s value of $1,500.
Canoe Trailer. The court found that the trailer is joint property and agreed with the $700 value asserted by Husband.
Tractor. The court found that the tractor is joint property with a value of $500.
Jeep Wrangler. The court found that the vehicle is joint property. It rejected Wife’s value of $6,000 and rejected Husband’s value of zero. The court concluded that the vehicle had a $500 value.
Tiffany-Style Lamps. The parties agreed that the lamps are marital property, but they disagreed on value. Wife asserted a value of $2,000 and Husband $20. The court noted that it had seen the photographs of the lamps, and it found they had a total value of $50.
Miscellaneous Property. The court combined a host of personal property items, mostly household goods, that the parties had agreed is marital property. Wife valued the property at $50,000, Husband at $5,000. The court, “having seen photographs of the interior of the home,” accepted Husband’s valuation.
The parties did not agree whether the pool bar, hot tub, and
certain other “miscellaneous personal property” were marital or not. Wife claimed that these items were jointly owned and had a total value of $40,600 and Husband claimed he owned them, and they either were worth nothing or he was unsure of the value. The court found that Wife did not establish that the items were marital property and, therefore, did not include them in its calculations.
The court completed a “marital property identification and valuation” form, marked as Court’s Exhibit 5, which summarized its findings and read as follows:
Monetary Award & Alimony
The court addressed, together, Wife’s request for alimony and a monetary award. In doing so, the court first reviewed the factors set forth in Family Law § 8-205(b), which a court must consider when determining whether to grant a monetary award.17 We summarize the court’s findings as to each factor.
The contributions, monetary and nonmonetary, of each party to the well-being of the family. The court found that Husband was the primary monetary contributor and Wife the primary non-monetary contributor.
The value of all property interests of each party. As to this factor, the court referred to Court’s Exhibit 5, which we summarized above.18
The economic circumstances of each party at the time the award is to be made. The court found that “neither party is in a particularly good financial situation.” The court noted that Husband receives about $2,900 a month in retirement from Chrysler, and that he had previously received workers’ compensation benefits and, although he had a “pending Social Security Disability Claim,” the court could not “speculate” on the outcome of that claim. Wife, the court noted, was currently unemployed and living with a relative. “So neither party at this time,” the court found, “is in a particularly good economic circumstance[.]”
The circumstances that contributed to the estrangement of the parties. The court found that the parties’ estrangement was attributed “mostly to [Husband’s] behavior.”
The duration of the marriage. The parties married in 1989. They had two very brief separations during the marriage.
The age of each party. Wife was 57 years old, Husband 59.
The physical and mental condition of each party. The court found that Wife had suffered an injury to her left hand following a dog bite and accepted her testimony as to “other physical impairments.” The court found that Husband had
“suffered a serious injury to his back while working at Chrysler in 2012, which prevented any employment by him since that time.” As for the parties’ mental condition, the court found that both Husband and Wife “are undergoing a great deal of stress as a result of the separation.”
How and when specific marital property or interest in [certain] property [such as a pension, family use property, and real property used as the parties’ principal residence when they lived together] . . . was acquired, including the effort expended by each party in accumulating the marital property or the interest in [certain] property . . ., or both. The court found that it had already addressed this factor in its marital property determination.
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. The court expressly considered this factor as we discuss below.
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 [certain] interest[s] in property . . . , or both. The court did not address any additional relevant facts.
Before announcing its decision on a monetary award, the court turned to the factors set forth in Family Law § 11106(b) relative to alimony. Many of those factors overlap with the factors the court is required to consider in determining a monetary award. In making an alimony determination, however, the court must also consider the following:
(1) the ability of the party seeking alimony to be wholly or partially 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; ***
(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 [monetary and family use] award[s] made . . . ;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits[.]
Fam. Law § 11-106(b).
The court found that Wife, “despite her physical ailments,” is “quite capable of finding some type of part-time employment.”19 “[B]ased on her age,” the court found that Wife, then 57 years old, was not likely able to obtain “sufficient education and/or training” to improve her employability. The court found that the parties’ standard of living was “very modest . . . very much at the lower end” of middle class. As for the ability of Husband to meet his own needs while meeting the needs of Wife, the court found
that Husband was no longer receiving the $618 weekly workers’ compensation benefits, meaning his monthly income had been “almost cut in half” since temporary alimony was awarded. The court noted that the parties had not reached an agreement on alimony.20
“Based on all of these factors,” the court denied Wife’s request for “permanent” alimony and granted her a monetary award of $10,000, which it reduced to judgment.
The Marital Home & Personal Property
The court rejected Husband’s request that the marital home be transferred to him, finding that such a transfer “would be very unfair and very inequitable” to Wife. The court, therefore, ordered the sale of the home, directing that the proceeds be split evenly between the parties, but the temporary alimony arrearages of $4,800 and the $10,000 monetary award owed to Wife would be deducted from Husband’s share of the proceeds. The court directed that the trustee to be appointed to sell the home would also sell the personal property absent an agreement between the parties as to the disposition of the personal property.
When Husband inquired about credit for the mortgage payments he had made on the marital home throughout the parties’ nearly five-year separation—which the court had not addressed—the court responded that it would not reconsider its decision.21
Wife’s Share of Husband’s Retirement Benefits
“Based on [its] other decisions,” the court denied Wife’s request for any interest in Husband’s retirement. Wife then inquired as to her request to remain (or be named) the beneficiary under Husband’s “survivor benefits.” The court responded that it did not believe it had the authority to order Husband to do that, noting that Wife did not offer “sufficient evidence” on that issue.
Attorney’s Fees
“[B]ased on [its] review of everything,” the court denied Wife’s request for attorney’s fees. The court noted that, although Husband and Wife were initially represented by counsel, after the attorneys withdrew from the case in March 2020, the parties represented themselves. Consequently, the court concluded that “each party should be responsible for whatever attorney’s fees that they had.”
STANDARD OF REVIEW
We review the rulings of a circuit court sitting without a jury, “on both the law and the evidence.” Md. Rule 8-131(c). We review a trial court’s factual findings under the clearly erroneous standard of review and determine whether the court’s findings are supported by substantial evidence in the record. Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). “‘When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.’” Plank v.
Cherneski, 469 Md. 548, 569 (2020) (quoting MAS Assocs., LLC v. Korotki, 465 Md. 457, 475 (2019)). We review the ultimate decision to grant a monetary award for an abuse of discretion. Abdullahi v. Zanini, 241 Md. App. 372, 407 (2019).
DISCUSSION
THE MONETARY AWARD MUST BE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS
Before granting a monetary award, a trial court must complete a three-step process. “First, the court must categorize each disputed item of property as marital or non-marital.” Wasyluszko v. Wasylusko, 250 Md. App. 263, 279 (2021) (citation omitted). “Second, the court must determine the value of all marital property. Finally, 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 the marriage happened to be titled.” Id. (cleaned up). The court here engaged in this process. Wife, however, asserts that the court made mistakes in doing so.
A. The Court’s Identification and Valuation of Marital Property
Wife asserts that the circuit court erred in its identification and valuation of marital property. Specifically, Wife claims that the court erred in failing to recognize that Husband had “liquidated and or destroyed/divested parts” of the parties’ property, including “drain[ing]” their joint bank account. Wife also maintains that the court erred by accepting Husband’s “undervalued” estimate of the parties’ possessions, instead of doing its “own due diligence” by utilizing “standard legal resources such as the Kelly Blue Book” or “a simple internet search” to determine the value.
We agree with Wife that the court erred in failing to address the evidence she submitted (her testimony and copy of the bank statement) that Husband had withdrawn over $10,000 from the parties’ joint checking account several days prior to their separation. Husband testified that the funds were his workers’ compensation benefits. But workers’ compensation benefits are deemed marital property. Lookingbill v. Lookingbill, 301 Md. 283, 289 (1984); Queen v. Queen, 308 Md. 574, 579 (1987). Thus, Wife satisfied her initial burden of production related to her claim that Husband intentionally dissipated marital assets. Omayaka v. Omayaka, 417 Md. 643, 656-57 (2011). The court’s failure to consider whether Husband dissipated these funds requires us to vacate the monetary award and remand for further proceedings. In addition, a remand is necessitated by what appears to us to be a mathematical mistake—or at least a lack of clarity—in the court’s calculation of Husband’s total marital property as reflected on the Court’s Exhibit 5. See footnote 16, supra.
We disagree, however, with Wife’s contention that the court erred in accepting Husband’s value of certain marital property rather than undertake its own independent research regarding valuation. It is the responsibility of the parties to present evidence to the court from which the court can determine the value of their property. Murray v. Murray, 190 Md. App. 553,
570-71 (2010) (The party asserting a marital interest in property must produce evidence as to its identity and value.) Given that Wife presented little to no evidence as to the value of specific marital property, such as the ice cream truck, the PT Cruiser, the Tiffany lamps, and the boat, we cannot say that the court erred in accepting Husband’s valuation.
B. Wife’s Share of Husband’s Retirement Benefits
Wife asserts that the court gave “no regard” to her marital share of Husband’s “income and benefits,” including his pension, the “survivor benefits from Chrysler,” his workers’ compensation benefits, and “the Chrysler Public Review Board Settlement.” She claims that, because she was married to Husband throughout most of his employment with Chrysler, she has “acquired the survivor benefits” consisting of $65,000 in death benefits and $1,900 monthly upon his death. She also asserts that Husband’s “PRB Settlement” is “still pending” and the court erred in failing to consider this “significant amount of money[.]” And she maintains that the court erred in accepting Husband’s assertion that his weekly workers’ compensation payments were terminated.
First, we agree with Wife that the court erred in failing to address her entitlement to a share of Husband’s retirement benefits. The evidence clearly established that Husband’s Chrysler pension was in “pay status,” i.e., Husband had been receiving a monthly retirement check from Chrysler since 2012. Moreover, the evidence demonstrated that the parties were married throughout most of Husband’s tenure with Chrysler. Thus, there was sufficient evidence before the court to classify his retirement income (or a significant portion thereof) as marital property.22 Deering v. Deering, 292 Md. 115, 128 (1981) (“[A] spouse’s pension rights, to the extent accumulated during the marriage, constitute a form of ‘marital property’ subject to consideration” in a divorce proceeding.) In fact, and likely in this case, pension benefits “may well represent the most valuable asset accumulated by either of the marriage partners.” Id. at 122-23. That is not to say, however, that the law “require[s] an equal division of marital property” or “contemplate[s] a decretal award so harsh as to force a wage earner spouse to liquidate his or her pension interest in order to satisfy it.” Id. at 131. Rather, a court must consider all relevant statutory factors, including any alimony award. Id. Here, the court awarded Wife a $10,000 monetary award and denied her request for alimony. Not only is it unclear to us how Husband’s vested retirement factored into its monetary award and alimony decisions, but the court’s perfunctory denial of Wife’s claim to an interest in the Chrysler pension is concerning given the parties’ lengthy marriage and the likelihood that the pension “may well represent the most valuable asset accumulated by either of the marriage partners.” Id. at 122-23. As for Wife’s complaint that she is entitled to survivor’s benefits under the Chrysler pension plan, Wife may re-raise that issue upon remand, although we stress that it is her evidentiary burden to produce evidence of the existence and availability of such benefits.
Wife also asserts that the court erred in failing to address “the PRB Settlement that is still pending[.]” Because we are remanding this case, the parties may produce evidence as to the value of the PRB Settlement. We note that Husband and Wife
both testified as to a significant “back pay” award Husband had won against Chrysler during the marriage, which he had not yet collected. We reiterate that the parties, not the court, have the responsibility to produce evidence as to the value of marital property.
Finally, as to the termination of the workers’ compensation payments, Husband testified that the payments had ceased in 2022. Wife did not challenge that testimony at trial, and in fact, she acknowledged that she “had a document where he said he lost it on February 2, 2022.” Wife testified that she did not know why the benefits were terminated, and merely asserted that they “should never have been.” In light of the evidence on this issue, we discern no error in the court’s factual determination that the payments had ceased.
C. Temporary Alimony Arrears and Denial of PostDivorce Alimony
Wife asserts that the court erred in calculating the temporary alimony arrears to be $4,800. She states that the court erred in finding that the parties had agreed that Husband paid her $600 subsequent to the April 20, 2023 contempt order that required him to pay temporary alimony totaling $1,200. Wife maintains that the transcript does not support a finding that Husband paid her $600 after the contempt order was filed.
We agree with Wife that the court miscalculated the amount Husband owed in temporary alimony. Husband testified that he had paid Wife “everything [he] was supposed to pay all the way up until” April 2023. Although it is not our role to delve through the record, we see no support for the court’s finding that Husband paid $600 following the April 20, 2023 contempt order. Moreover, Husband admitted that he had not paid Wife anything between the contempt order and the divorce trial, which began on January 2, 2024. The court found “that’s seven months at $600.” May through December 2023, however, consists of eight months, not seven. Therefore, we calculate the temporary alimony arrears at $6,000: $1,200 (per the April 2023 contempt order) plus $4,800 (eight months x $600).
Wife also argues the December 2020 order directing Husband to pay Wife $600 monthly in temporary alimony was issued in error because she did not agree to that amount and, she claims, it should have been fifty percent of Husband’s income. Consequently, she maintains that the “owed back pay was severely underestimated, let alone compensation for contempt.” We shall not revisit the court’s December 2020 order establishing $600 monthly temporary alimony nor the court’s April 2023 contempt order as neither issue is properly before this Court.
In addition, Wife seems to contend that the court erred in denying her request for indefinite alimony. She states that the court erred in failing to hold “an alimony hearing” and that the court “failed to provide a support formula for [her] to live similarly to the lifestyle [she] enjoyed during” the marriage.
The court, however, did consider Wife’s request for alimony and addressed factors set forth in FL § 11-106(b). The court found that Wife is capable of working, that the parties’ standard of living during the marriage was quite modest, and that Husband’s income was reduced to nearly half upon the termination of his workers’ compensation benefits, thus limiting
the ability of Husband to meet his own needs if he were required to pay alimony. Although those findings may be sustainable, our vacation of the monetary award mandates that the court reconsider its decision regarding alimony. See Turner v. Turner, 147 Md. App. 350, 400 (2002) (“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.”); accord Wasyluszko, 250 Md. App. at 283.
D. Denial of Attorney’s Fees
Wife maintains that the court erred in denying her request for attorney’s fees given that she had no income and Husband “has all the financial means[.]” Because we are remanding this case for the court’s reconsideration of the monetary award (including Wife’s request for a share of Husband’s retirement benefits) and alimony, the circuit court may also reconsider Wife’s request for attorney’s fees. Id.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY DATED JANUARY 4, 2024, OTHER THAN GRANT OF ABSOLUTE DIVORCE, VACATED. JUDGMENT FOR TEMPORARY ALIMONY ARREARAGES IN FAVOR OF APPELLANT TO BE AMENDED FROM $4800 TO $6000. CASE REMANDED TO
THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 Husband noted a cross appeal. This Court struck the pro se brief Husband filed on April 15, 2024 when counsel for Husband subsequently filed an informal brief on Husband’s behalf. Counsel’s brief, however, is a mere cursory response to the issues raised by Wife and it does not raise any cross-appeal issues on behalf of Husband. After the filing of counsel’s brief, Husband, pro se, filed a paper with this Court stating that his lawyer had informed him he could no longer represent him in this appeal and asking for a continuance.
Husband’s paper did not include a certificate of service and it does not appear that Husband served a copy of his motion on Wife. See Rules 1-321(a) and 1-323. In addition, Husband’s counsel has not filed a line with this Court withdrawing his representation. Consequently, Husband’s pro se request for a continuance is denied.
2 We note that the validity of this purge provision is not before us on appeal.
3 Wife initially stated that she would like the marital home. The court, however, informed her that, absent a release from the mortgage holder (which Wife did not have), it could not transfer title to the marital home to her. She then stated she would like the home sold, with the proceeds divided between the parties.
4 Maryland Rule 9-202(e) provides, in part, that, “[i]f spousal support is claimed by a party and either party alleges that no agreement regarding support exists, each party shall file a current financial statement in substantially the form set forth in Rule 9-203(a).” Wife filed a financial statement on July 25, 2019. Husband did not file a financial statement prior to trial.
5 The marital home was identified as 711 Plater Street, Aberdeen, Maryland, and both parties agreed there was an outstanding mortgage of $48,000. The home was the only marital property that the parties claimed was burdened by a lien, encumbrance, or debt.
6 Wife asserted that the boat was titled in both names; Husband was unsure.
7 Wife asserted that the ice cream truck was titled in both names; Husband was unsure.
8 Wife asserted that the canoe trailer was titled in both names. Husband claimed that canoe trailer was his, a gift from his brother, and when pressed as to how it was titled, stated that he “imagined” it was titled in his brother’s name.
9 Husband submitted a letter dated October 24, 2023 from an attorney advising him that his case had been appealed to the Hearings Unit of the Social Security Administration and it could take six to twelve months before his case would be heard by an Administrative Law Judge.
10 Wife testified that in 1992 she received a $12,000 settlement from a car accident, which she used to purchase, for the family, “a mobile home, a car, and the furniture.” They later sold the mobile home for $4,000 and used the money to remodel the family home on Plater Street. Husband dis-
agreed, saying that the car was a gift from his parents and that his parents had gifted him $4,000 for the Plater Street house.
11 The court informed Wife that it could only “backdate a temporary alimony to the date the complaint was filed[,]” which in this case was June 2019.
12 To avoid any confusion with her mother, we shall refer to Ms. Testerman by her first name.
13 To avoid any confusion with appellee, we shall refer to Mr. Testerman by his first name.
14 The record does not disclose the model year or condition of the PT Cruiser. Similarly, there is no evidence concerning the existence or value of the van at the time of trial.
15 The same date, January 4, 2024, the court filed its written judgment.
16 It is unclear to us how the court reached $62,375 as the total value of Husband’s share of the marital property. When we add the numbers the court inserted in Husband’s column, the total we reach is $48,425 – $13,950 less than the court’s total.
17 The court must also consider these same factors when transferring an ownership of an interest in “a pension, retirement, profit sharing, or deferred compensation plan, from one party to either or both parties.” Fam. Law § 8-205(a)(2)(i). Likewise, the court must consider these factors when transferring an ownership interest in family use property and real property jointly owned by the parties and used as the parties’ principal residence when they resided together. Fam. Law § 8-205(a)(2)(iii).
18 The court actually referred to Court’s Exhibit 3, but it is clear that it meant to refer to Court’s Exhibit 5.
19 It is not clear from the record before us why the court found that Wife was capable or working “part-time” versus full-time.
20 Although a factor to be considered, the court did not explicitly address Husband’s retirement benefits or Wife’s lack thereof.
21 Although Husband had made it clear to the court that he had made all the mortgage payments, including all payments during the separation, he did not explicitly request credit for them. Rather, he requested that Wife’s interest in the house be transferred to him. On cross-examination by Wife, however, Husband did testify that “[t]he only thing” he was “claiming is the mortgage payments” that he “made from 2019,” asserting that Wife should be accountable for her share of those payments given that her name was also on the title to the house. In any event, Husband makes no argument in his “Informal Reply Brief” that the court erred in denying his contribution claim.
22 Pursuant to FL § 8-204(b)(1),“[t]he 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.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George County Circuit Court’s modification of father’s child support obligation. The circuit court needed to render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce father’s rental income, and then subtract that amount from his gross monthly rental income in order to determine his actual income from rent.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
in January 2013 in Nigeria but, after moving to Maryland, also married in Prince George’s County on November 25, 2013. The relationship became strained.3 One child, M., was born to the parties on January 6, 2015. According to Okoji, Agbara was angry because he did not want children. Following an argument that resulted in police intervention, Okoji and Agbara separated on October 16, 2016. Thereafter, M. resided with Okoji in the marital home.
On June 13, 2017, Agbara filed a complaint for shared physical and sole legal custody of M., asserting that Okoji had denied him access to M. since the separation. Okoji filed a counter-complaint for limited divorce, sole legal and physical custody, and child support on July 14, 2017. Thereafter, Agbara filed a supplemental complaint for absolute divorce on the ground of adultery on August 4, 2017.
Appellant, Emmanuel Agbara, appeals the modification by the Circuit Court for Prince George’s County, of his child support obligation to appellee, Evelyn Okoji, and the denial of his motion to modify custody.1 He presents four questions,2 which we have rephrased and reordered as follows:
1. Did the circuit court err when it used an annualized income of $164,000 to calculate Agbara’s child support arrears?
2. Did the circuit court abuse its discretion when it decided to maintain the same alimony award as was originally ordered for purposes of calculating Agbara’s alimony arrears?
3. Did the circuit court abuse its discretion when it denied Agbara’s motion to modify custody on the ground that there was no material change in circumstance?
4. Did the circuit court abuse its discretion when it attributed approximately half of Agbara’s rental income to his monthly actual income for purposes of calculating his modified child support obligation?
For the following reasons, we will vacate the modified child support award and remand for further proceedings, but otherwise affirm the judgment of the circuit court.
BACKGROUND
Okoji and Agbara are both originally from Nigeria, where they met in 2012. The parties were lawfully married
The circuit court held a trial in the divorce action on May 7 and 8, 2018. Agbara testified that between the date of the parties’ separation and the trial, Okoji permitted him very limited visitation with M. Okoji asserted that it was because she was afraid of him, and unsure how to contact him because he had told her not to call him. Agbara also produced three recent paystubs and his 2017 W-2 form documenting gross income of $105,417.80. His paystubs showed first quarter gross income of $41,328.97. The paystubs reflected that Agbara’s first quarter income included overtime pay in addition to regular earnings. Okoji produced a financial statement indicating gross monthly wages of $2,101.60, and she also stated that she works 40 hours per week at $14 per hour.4
The circuit court ultimately filed a written order granting absolute divorce on June 15, 2018 based on the one-year separation, rather than on grounds of adultery. Based on the child support guidelines, the court calculated that Agbara would have to pay $2,331 per month in child support if Okoji had sole custody of M., and $2,164 per month if the parents had joint custody. Since the mortgage payment on the marital home was $2,200 per month, the court declared, “that’s his child support.”5 The court then found that permanent alimony was unnecessary, and ordered limited alimony payments of $1,000 per month for the first year and $500 per month for the next year. Finally, the court declined to award Agbara primary physical custody of M. Instead, the court ordered an increase in Agbara’s access to M., adding that Okoji could face contempt of court if she continued to withhold access. Additionally, the court granted Okoji and Agbara joint legal custody of M., with
Okoji having final decision-making authority on educational issues and Agbara having final decision-making authority on medical issues.
Agbara appealed the Judgment of Absolute Divorce (“JAD”) on June 29, 2018, arguing that the circuit court erred in calculating the amount of its award of child support to Okoji, and that the circuit court erred by awarding primary physical custody to Okoji in light of evidence that Okoji had denied M. medical care and denied Agbara access to M. Regarding the child support award, Agbara specifically argued that the circuit court erred in estimating his annual income by multiplying his 2018 first quarter’s gross income by four, rather than referring to his documented 2017 actual gross income, because the first quarter income contained pay for irregular overtime and other extra pay.
On July 29, 2019, in an unreported opinion, this Court affirmed the circuit court’s custody ruling but vacated the child support and alimony awards, and remanded the case to the circuit court for further proceedings consistent with the opinion. As for the circuit court’s custody ruling, this Court held that “[g]iven the record before us and the deference owed to the circuit court, we conclude that the court did not abuse its discretion in awarding primary physical custody to Wife.”
As for the circuit court’s child support ruling, this Court found that the circuit court failed to decide the issue of alimony before determining Agbara’s child support obligation, and did not adjust the parties’ incomes to reflect payment of that alimony to Okoji when it calculated the amount of child support. On remand, this Court instructed the circuit court to consider any alimony award to Okoji as part of her income, and to reduce Agbara’s income by the amount of such alimony payment.
This Court also found that the circuit court erred factually in calculating both Okoji and Agbara’s actual monthly income. First, the circuit court stated that Agbara’s monthly income, based on annualized income of $164,000, was $13,776. However, $164,000 divided by twelve equals $13,666.67, creating an overstatement of Agbara’s income by approximately $109 per month. Additionally, in calculating Okoji’s yearly income, the circuit court multiplied her first quarter income by three and then divided by twelve to reach a monthly income of $1,778. However, the proper calculation would have been to multiply Okoji’s first quarter income by four and then divide the total by twelve.6 For these reasons, this Court vacated the child support award and remanded with instructions for the circuit court to recalculate the numbers correctly.
However, in its 2019 opinion, this Court rejected Agbara’s argument that the circuit court erred in including his first quarter overtime and other extra pay in its annualization of his income to $164,000, explaining that “[i]t is often necessary to calculate child support based on currently existing circumstances, even though the court and the parties are aware that there is a possibility that the conditions might change in the future.” This Court noted that “[i]f Husband experiences a significant reduction in the income as calculated by the court, he will be entitled
to file for a downward modification of his child support obligation.”
On August 8, 2023, Agbara moved to modify child support and custody. Agbara argued that his current income was not as calculated in the JAD, and therefore he asked that the circuit court recalculate his child support obligations at his current income level. Additionally, in his Motion for Contempt, to Allow Access, Modify Custody, and for Ancillary Relief, Agbara asked that Okoji be found in contempt of the JAD for barring all access to M. since January 27, 2020.7
The circuit court held its first motions hearing on October 25, 2023.8 Agbara testified that he had not seen M. since January 2020. He further testified that although he attempted to contact Okoji continuously to see M., Okoji did not respond to any of the text messages over a two-year period. Agbara was scheduled to pick up M. for visitation on June 19, 2020, but was not able to pick up the child because Okoji kept the child strapped in the car. Agbara also testified about one of M.’s doctor’s appointments that he attended, where he claims Okoji “dragged the child to the female bathroom” to keep the child from going to Agbara and meeting his new wife.
Okoji also testified at the October 25 hearing. She denied preventing Agbara from seeing M. She further testified that M. did not go to Agbara for the June 2020 visitation because M. refused to do so, not because she strapped him in the car. Okoji also claimed that Agbara does not respond to her phone calls or text messages. Following this hearing, the circuit court entered a Pendente Lite Access Order on November 3, 2023, in which the court ordered that Agbara have supervised access on November 18 and December 2, 2023, visitation on December 16, 2023, and January 6, 2024, and visitation from January 19, 2024, to January 21, 2024. The trial judge described this as a “dress rehearsal for my custody determination.”
The supervised access on November 18 and December 2, 2023, went smoothly. When asked how M. reacted during the supervised visits, Agbara testified that the child was “excited,” that they played games together, and that the child shared what he was learning in school. However, the scheduled visitations for December 16, 2023, and January 6, 2024, did not go as planned. Both parties claimed that the other did not show up for pick up on December 16. Regarding the January 6 visitation, both parties testified that they sat in a police station all day. Agbara attributed this to Okoji not letting the child go to him, but Okoji testified that the child did not want to go to him. Finally, Agbara did not show up to pick up M. for his overnight visitation on January 19, because Okoji did not let him have the child for nine hours on January 6.
On March 8, 2024, the circuit court ruled on the motions. First, as to the issue of custody, the court found that there was no material change in circumstance because “Plaintiff’s contention that Defendant Mother has withheld access to M. is long standing in this case and dates back as far as the complaint for custody and related relief filed in 2017.” Finding no material change in circumstance, the
court’s inquiry stopped there, and the court reiterated the terms and conditions of the JAD as they relate to custody in its order.
Regarding the issue of child support, the circuit court found that “there has been a material change since the last child support order was given effect.” Thus, in addition to recalculating Agbara’s prior child support obligations in accordance with this Court’s instructions, the circuit court also reduced Agbara’s child support payments going forward by adjusting both his and Okoji’s monthly adjusted actual income. Specifically, the court determined Agbara’s monthly adjusted actual income by adding $3,000 in monthly rental income to the monthly income reported on Agbara’s 2023 W2 form. The court arrived at the $3,000 figure by attributing approximately half of the $3,550 generated from Agbara’s Maryland property and the $2,300 generated from his Florida property to his monthly income. Based on the new monthly adjusted actual incomes, the circuit court ordered that effective April 1, 2024, the new child support payment was calculated at $2,004 per month.
Agbara filed a timely notice of appeal on April 5, 2024.
STANDARD OF REVIEW
“Child support orders ordinarily are within the sound discretion of the trial court. Likewise, the question of whether to modify an award of child support is left to the sound discretion of the trial court, so long as the discretion was not arbitrarily used or based on incorrect legal principles.” Walker v. Grow, 170 Md. App. 255, 266 (2006) (quotations and citations omitted). “[W]here the order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Id. (quotations and citations omitted).
“This court reviews child custody determinations utilizing three interrelated standards of review.” Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). Those standards of review are as follows:
When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8–131(c)] applies. [Second,] if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon 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. (quoting In re Yve S., 373 Md. 551, 586 (2003)). “We recognize that ‘it is within the sound discretion of the [trial court] to award custody according to the exigencies of each case, and ... a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion.’” Id. at 171 (quoting In re Yve S., 373 Md. at 585-
DISCUSSION
I. It was not Error for the Circuit Court to Use an Annual Income of $164,000 to Calculate Agbara’s Child Support Arrears
Agbara argues that the circuit court erred in using an annualized income of $164,000 when it recalculated his past child support obligations to ascertain how much he owed in child support arrears. Instead, he contends that the court should have retroactively modified his child support obligations for 2018, 2019, 2020, 2021, 2022, and 2023 to reflect the actual income shown on his W-2 forms from each of those years.
Agbara mischaracterizes the 2019 opinion of this Court. He asserts that his actual income for 2018 was $117,906, a difference of $46,094 from the $164,000 figure the circuit court used when it originally calculated his child support obligations. He claims that this inflated income figure was the basis for this Court’s vacating his support obligations in its 2019 opinion. This is an incorrect reading of the opinion, which clearly stated, “We agree with Husband that his child support obligation must be recalculated but for reasons that differ from those he presents.”
This Court rejected Agbara’s argument that the circuit court erred in calculating his child support obligations based on an annualized income of $164,000, reasoning that “[i]t is often necessary to calculate child support based on currently existing circumstances, even though the court and the parties are aware that there is a possibility that the conditions might change in the future.” This Court further explained that if Agbara wanted a reduction in his child support obligations, he could “file for a downward modification of his child support obligation.” Thus, this Court did not disturb the circuit court’s finding that Agbara’s annual income was $164,000 at the time of the child support award. Rather, this Court only vacated the award and remanded to the circuit court to correct simple mathematical errors, like dividing 164,000 by twelve.
On remand, the circuit court made the mathematical corrections ordered by this Court and recalculated both Okoji and Agbara’s monthly incomes accordingly from 2018 to 2023 to determine how much Agbara currently owes in child support arrears for those years. Agbara, however, argues that the court should have retroactively modified his support payments for those years based on the actual annual incomes shown in his W-2 forms.
A circuit court considering a motion to modify child support “may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” Md. Code Ann., Fam. Law § 12-104(b); see also Petitto v. Petitto, 147 Md. App. 280, 309 (2002) (“Family Law § 12-104(b) specifically limits retroactive modification of a child support award to the date of filing for a modification”). This does not mean, however, that a court cannot make an award apply retroactively to the date of the filing of the motion to modify. “The decision to
make a child support award retroactive to the filing of the [motion to modify] is a matter reserved to the discretion of the trial court.” Petitto, 147 Md. App. at 310. However, “the court is not required to make a modification retroactive to the date of filing of the relevant complaint.” Id. (emphasis added).
Here, Agbara filed his Motion to Modify and/or Reduce Child Support on August 8, 2023. Under Section 12104(b), the circuit court was prohibited from retroactively modifying his child support obligation prior to August 8, 2023. Thus, the court correctly used a base monthly income of $13,667 to calculate Agbara’s child support arrears for that period. The circuit court could have made its modification retroactive to August 8, 2023, but was not required to do so. Instead, the court decided to make its modification effective April 1, 2024. It was not error for the court to decline to make its modification retroactive to August 8, 2023, since such a decision was within the discretion of the court.
II. The Circuit Court Did Not Abuse its Discretion when it Decided to Maintain the Same Alimony Award After Considering Evidence from Both Parties of Changed Economic Circumstances
Agbara argues that the circuit court failed to consider both his and Okoji’s changed economic circumstances when considering a spousal support award. He points out that, compared with his actual documented income, the model income of $164,000 had been overstated by 39%. Additionally, he asserts that Okoji’s economic circumstances have improved since the JAD, pointing to her improved skills, steady employment, and the fact that she drives a Toyota SUV. Agbara also points to a Fidelity investment account worth over $25,000 that he claims Okoji controls.
This Court will not disturb an alimony award “unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.” Boemio v. Boemio, 414 Md. 118, 124 (2010) (quoting Solomon v. Solomon, 383 Md. 176, 196 (2004)). We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Id. at 124-25 (quoting Tracey v. Tracey, 328 Md. 380, 385 (1992)). “Thus, absent evidence of an abuse of discretion, the trial court’s judgment ordinarily will not be disturbed on appeal.” Id. at 125 (quoting Solomon, 383 Md. at 196).
During the 2018 divorce trial, the circuit court found that permanent alimony was unnecessary, and awarded $1,000 per month for one year and $500 per month for the next year. On appeal, this Court vacated the child support award “[b]ecause of the factual and legal errors in the court’s child support decision-making process.” Additionally, because alimony and child support “involve overlapping evaluations of the parties’ financial circumstances,” this Court also vacated the alimony awards so that the circuit court, on remand, could appropriately weigh the alimony awards into its calculation of child support. St. Cyr v. St. Cyr,
228 Md. App. 163, 198 (2016). This Court stated that it was giving the circuit court on remand the ability to re-evaluate both forms of economic relief. However, this Court did not require the circuit court to change its alimony award. This Court only said that the circuit court should permit the parties to present evidence as to changed economic circumstances.
Agbara fails to show that the circuit court abused its discretion in maintaining the same amounts for alimony as were originally awarded in the JAD. The court considered testimony regarding the financial posture of both parties. Agbara testified that he works for Inova Health System as a registered nurse and earns an annual income of $105,464.42. Okoji testified to an annual income of $32,181.27. Agbara also testified that he makes $3,550 in rental income from his Maryland properties and $2,300 in rental income from his Florida properties. When asked whether she took $30,000 from a joint investment account, Okoji responded, “I don’t know.” When asked about $3,000 of nontaxable income listed in her 2023 W-2 form, Okoji stated that she did not know what it was. Okoji also testified that she was taking Continuing Medical Education (CME) classes to dispense medication, and that she works with young children with intellectual disabilities.
The circuit court considered this evidence and, in calculating Agbara’s arrears, decided to maintain his alimony obligations at the same levels they were before. In the absence of any evidence that the circuit court abused its discretion, we will affirm its calculation of alimony.
III. The Circuit Court Did Not Abuse its Discretion in Determining, Based on the Testimony and Exhibits Admitted into Evidence, that Agbara Failed to Prove a Material Change in Circumstance to Modify Custody
Agbara argues that the circuit court erred in denying his motion to modify custody because, according to him, an incident on January 6, 2024, where Okoji allegedly refused to release M. to Agbara for a court-ordered visitation, shows that an award of primary physical custody to Okoji does not serve M.’s best interest.
This Court’s review of a circuit court’s determination whether to modify a child custody order is highly deferential, and “we will set aside a judgment only on a clear showing that the [trial court] abused [its] discretion.” Gizzo v. Gerstman, 245 Md. App. 168, 201 (2020) (quoting Viamonte v. Viamonte, 131 Md. App. 151, 157 (2000)). “An abuse of discretion may occur when no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles, or when the ruling is clearly against the logic and effect of facts and inferences before the court.” Id. When determining whether to modify custody, “a trial court employs a two-step process: (1) whether there has been a material change in circumstances, and (2) what custody arrangement is in the best interests of the children.” Santo v. Santo, 448 Md. 620, 639 (2016). “‘The threshold—but not paramount—issue is the existence of
a material change,’ and so ‘there can be no modification of custody unless a material change of circumstance is found to exist.’” Velasquez v. Fuentes, 262 Md. App. 215, 247 (2024) (quoting Wagner v. Wagner, 109 Md. App. 1, 29 (1996)). The burden is on the moving party to show a material change in circumstances since entry of the final custody order. Gillespie v. Gillespie, 206 Md. App. 146, 17172 (2012).
After considering the testimony and exhibits admitted into evidence, the circuit court found that there has been no material change in circumstance. Having found no material change in circumstances, the court went no further, and stated that the terms and conditions of the JAD were reiterated and refreshed in its order. In its explanation as to why it found no material change in circumstance, the court noted that Agbara’s contention that Okoji has withheld access to M. is long standing in this case and dates back as far as the complaint for custody and related relief filed in 2017.
There is nothing in the record to suggest that the court abused its discretion in so deciding. The circuit court heard testimony from both parties during its hearings on the motions. Agbara testified that Okoji has withheld access to M. since January 2020, that she does not respond to his text messages, that she moved and has hidden her new address from him, and that when he has arrived to pick up M. for multiple court-ordered visitations, Okoji has either not shown up, or has refused to let M. go with Agbara. Okoji, on the other hand, testified that she has never refused access to M., that Agbara does not respond to her text messages, that her address is hidden as part of a state-run address confidentiality program, and that M. refuses to go with Agbara for visitations because M. is afraid of Agbara, not because she is refusing to let him go. Additionally, both sides produced hundreds of photos and text messages purporting to support their versions of events.
In a situation like this, “[t]he trial judge who ‘sees the witnesses and the parties, [and] hears the testimony ... is in a far better position than the appellate court, which has only a [transcript] before it, to weigh the evidence and determine what disposition will best promote the welfare of the [child].’” Gizzo, 245 Md. App. at 201 (quoting Viamonte, 131 Md. App. at 157). The circuit court has the “unique opportunity to observe the demeanor and the credibility of the parties and the witnesses.” Id. (citations and quotations omitted). As the circuit court stated in its decision, Agbara’s contentions date back almost a decade to the filing of his original complaint for custody. Thus, as “[t]he selection of a custodial parent who would serve the child’s best interests ‘was neither easy nor clearcut’ here, [] it was one ‘for [the trial judge] to make in the exercise of [her] discretion.’” Gizzo, 245 Md. App. at 206 (quoting Bienenfeld v. Bennett-White, 91 Md. App. 488, 502-03 (1992)).
IV. The Circuit Court Abused its Discretion When it Failed to Subtract “Ordinary and Necessary Expenses” from Gross Rental Income Before
Including that Income in its Child Support Calculation
Agbara argues that the circuit court applied an impermissible formula to calculate his income from rent when it applied approximately half of all rents collected to Agbara as rental income without first subtracting the rental expenses required to produce that rent. In support of this argument he points to Md. Code Ann., Fam. Law § 12-201(b) (2), which states, “For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, ‘actual income’ means gross receipts minus ordinary and necessary expenses required to produce income.” (emphasis added).
In Reichert v. Hornbeck, this Court held that it was “error for the circuit court to calculate [a payor’s] child support obligations by including the gross rent he received for his condominium without subtracting ‘ordinary and necessary expenses required to produce [that] income[.]’” 210 Md. App. 282, 327, n.12 (2013) (quoting Md. Code Ann., Fam. Law § 12-201(b)(2)).
In the case at bar, it is not clear that the circuit court actually subtracted the ordinary and necessary expenses required to produce Agbara’s rental income before applying that income to its calculation of his child support obligations. The circuit court’s entire analysis of this issue is as follows:
This court does not find credible the testimony of Mr. Agbara that his rental properties generate no revenue. His testimony was that his Maryland property generates rental income of $3550.00 and that his Florida property generates $2300 in rental income. This court attributed approximately half of this amount to his monthly income and found $3000.00 in monthly rental income to Mr. Agbara.
Based on the figures provided, Agbara’s gross monthly rent is $5,850. In finding $3,000 in monthly rental income, the court also implicitly found $2,850 in ordinary and necessary expenses. However, it is unclear where the court came up with that figure. The court did not explain why it found $2,850 in ordinary and necessary expenses. Instead, it appears that the court arbitrarily decided to treat approximately half of Agbara’s gross rent as ordinary and necessary expenses.
“An abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court[ ] … or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court [ ] … or when the ruling is violative of fact and logic.’” Bacon v. Arey, 203 Md. App. 606, 667 (2012) (quoting Beyond Sys., Inc. v. Realtime Gaming Holding Co., LLC, 388 Md. 1, 28 (2005)) (emphasis added). “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.” Malin v. Mininberg, 153 Md. App. 358, 415 (2003) (emphasis added).
Here, the circuit court abused its discretion when it
decided to attribute approximately half of Agbara’s gross monthly rent to his monthly income. On remand, the circuit court should render a specific factual finding as to what amount constitutes the ordinary and necessary expenses required to produce Agbara’s rental income, and then subtract that amount from his gross monthly rental income of $5,850 to determine his actual income from rent. Since the circuit court failed to do that in this case, its modified child support award should be vacated.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY IS AFFIRMED IN PART AND VACATED IN PART. CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS ARE TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
FOOTNOTES
1 Okoji did not file a brief before this Court.
2 Agbara phrased his questions as follows:
1. On remand, which income, annualized income or actual income as documented on a W-2 form, should be used to recalculate support awards in the instant case?
2. Is it permissible to substitute a formula for income from rent which does not permit the calculation of actual income from rent and did the circuit court err in using a formula which did not determine the difference between gross receipts and ordinary and necessary expenses required to produce income?
3. Should the circuit court continue a spousal ward [sic] where the grounds for the award were never true in the first place and the ex-spouse is self-sufficient five years after a divorce?
4. Did the circuit court abuse its discretion by not finding a refusal by a custodial parent to release a minor child to a non-custodial parent at a police sta-
tion for nine hours for a court-ordered visitation as a denial of access?
3 For example, Okoji claimed that shortly after they married, Agbara told her that she was not as beautiful as he had initially thought and that he did not love her.
4 Prior to the start of the hearing on May 8, Agbara filed a supplemental complaint for absolute divorce based on a voluntary one-year separation.
5 Agbara was to pay the mortgage, water bill, and gas bill for the marital home in lieu of child support until August 31, 2018, when Okoji was required to vacate, and $2,200 per month by earnings withholding thereafter.
6 By only multiplying her first quarter income by three, the circuit court excluded three months of Okoji’s income, understating her income by one quarter.
7 Agbara also asked the circuit court to award him makeup visitation for the denial of access, and that he be awarded sole legal and physical custody of M.
8 The court held two additional motions hearings on February 20 and 21, 2024.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of the parental rights of mother and father as to their two minor children. The circuit court did not abuse its discretion in the termination of father’s parental rights, and abundant evidence supported the juvenile court’s decision to terminate mother’s parental rights.
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.
2021
The Circuit Court for Baltimore County, sitting as a juvenile court, terminated the parental rights of Ms. J. (“Mother”) and Mr. L. (“Father”) as to their two minor children, E.L. and E.E.L. The parents appeal separately but raise the same arguments – that the circuit court erred in terminating their parental rights because they had made much progress in the several months before their rights were terminated, and the Department of Social Services for Baltimore County failed to provide adequate reunification services.
We shall affirm the judgments of the juvenile court.
BACKGROUND FACTS 2018
On February 26, 2018, E.L. was born to Ms. J. and Mr. L., an unmarried couple.1 At the time of birth, both E.L. and Mother tested positive for prescribed methadone, and Mother also tested positive for benzodiazepines, cocaine, heroin, suboxone, and tetrahydrocannabinol (“THC”). E.L. was treated for about a month in the neonatal intensive care unit (“NICU”) for withdrawal symptoms and then discharged to Mother, who was residing at Safe Harbor, a substance abuse treatment program for new mothers. About two weeks later, Mother was discharged from the program because of her inability to care for her child and refusal to participate in substance abuse treatment. Because Father was then incarcerated for possession of a controlled dangerous substance and was unavailable to care for E.L., the Department of Social Services for Baltimore County (the “Department”) placed six-week-old E.L. under a shelter care order with his maternal great aunt, Ms. L. E.L. was subsequently declared a child in need of assistance (“CINA”) 2, and Ms. L. was granted custody and legal guardianship of him.
On October 21, 2021, about three and a half years after E.L.’s birth, E.E.L. was born to Mother and Father. Both E.E.L. and Mother tested positive for cocaine, fentanyl, and prescribed methadone, with Mother again testing positive for THC. Father was incarcerated at the time of E.E.L.’s birth.3 E.E.L. remained in the NICU for more than two weeks for respiratory issues and severe withdrawal symptoms. At about that time, Temiloluwa Kolawole became the family’s assigned social worker for the Department. E.E.L. was found to be a CINA and committed to the custody of the Department, which placed him in foster care upon his release from the NICU until he could be placed with Mother in a mother-baby substance abuse treatment program. Under the CINA order, both parents were granted liberal supervised visitation with E.E.L., according to the guidelines of Mother’s treatment program and Father’s penal institution. Among other things, Mother was ordered to comply with recommended treatment program(s) and maintain contact with the Department; Father was to provide releases.
Around the time E.E.L. was released from the NICU, E.L. was re-entering foster care as his legal guardian, Ms. L., advised the Department that her adverse health conditions would not permit her to continue to care for E.L. E.L. was subsequently placed in foster care while the Department explored options for placing him with Mother.4 At this time, Mother did not have a relationship with E.L. and had not seen him for three years.
On December 10, 2021, Mother entered a mother-baby substance abuse treatment program at Chrysalis House where E.E.L. joined her. However, because Chrysalis House accepted no more than a mother and one child, the Department continued to look for a treatment program that would accept Mother and both children.
2022
On January 25, 2022, Mother and E.E.L. transitioned to Brentwood, a mother-baby substance abuse treatment program that would allow Mother to have both E.L. and E.E.L. live with her. This was short-lived because, within nine days of placement, Brentwood discharged Mother from the program because of her inability to keep E.E.L. safe. Specifically, Mother was frequently observed falling asleep while holding E.E.L.; once lost track of E.E.L. and did not know where to find him; and during a virtual psychiatric evaluation, Mother’s screen went black while E.E.L. could be heard crying in the background, and when a facility staff member entered Mother’s room as requested by the psychiatrist, E.E.L. was found alone in his bouncy chair on Mother’s bed. Although the program
recommended that Mother enter an inpatient psychiatric hospital, Mother refused. Because she was not amenable to the proposed discharge plan, Mother left the program for a shelter and E.E.L. entered temporary foster care.
About a month later, near the end of February 2022, E.L. was placed in foster care with a different maternal great aunt, Ms. R.J., who hoped to care for both children. Once E.L. was in her care, however, she determined that she could not manage both children. Four-month-old E.E.L. was subsequently placed in foster care with Ms. K.W. The children have remained in these foster care placements ever since. During this time, Mother signed a service plan with the Department.
From the date of the children’s foster care placements until the end of 2022, the Department made efforts to reunite Mother with her children. The Department twice referred Mother to a family recovery support program and once to Home Builders –both intensive reunification programs. She was dismissed from each of the programs for lack of compliance. The Department scheduled a hair follicle test for the end of March 2022, but Mother rescheduled for the next day and then did not show up. The Department referred her to many inpatient psychiatric providers near her home. Mother, however, self-enrolled in other programs from which she was unsatisfactorily discharged as she continued to deny her need for substance abuse treatment. During this time, the Department had more limited contact with Father, who was incarcerated, but Ms. Kolawole had reached out to Father’s mother a few times, who had contact with Father, and to Father’s DOC case manager, who expressed concern about in-person visitation taking place at the facility. Ms. R.J. facilitated some virtual visits between Father and E.L.
During 2022, Mother missed seventeen and attended nine visits with the children, with the Department providing her with bus passes and cab services. During one of the visits, Mother was slurring her words, sweating profusely, fell asleep while feeding E.E.L., and appeared to be intoxicated. Ms. Kolawole was also concerned about Mother’s comprehension as Mother would forget their conversations, and even when Ms. Kolawole wrote down certain information as requested by Mother, she still would not understand or retain the information. The Department eventually paused visitation until Mother agreed to a two-day before visit confirmation because of her frequent no-shows, considering that the children were being transported to and from visits from long distances, Baltimore County and Harford County.
Following a hearing, a permanency plan order was issued in September 2022, providing for the children’s reunification with parents. Pursuant to the order, parents were ordered to, among other things, provide releases, obtain and maintain employment, stable housing, and submit to substance abuse treatment.
Near the end of 2022, Dr. Aaron Noonberg, Ph.D., specializing in clinical psychology and neuropsychology, completed a court ordered “fitness to parent” evaluation of Mother. During Dr. Noonberg’s evaluation, he noted that she fell asleep more than fifty times, and when awake, she frequently slurred her words and appeared intoxicated. He administered a cognitive test that resulted in an IQ of 57 but noted that the results were
unreliable due to having to wake Mother up dozens of times during the test. She stated that she had multiple sclerosis, and Dr. Noonberg diagnosed her with post-traumatic stress disorder, unspecified bipolar disorder, unspecified anxiety, and severe opioid use disorder. He concluded in his report that Mother “cannot safely and reliably be responsible for a child or anyone else at this time[.]”
2023
Following a permanency plan review hearing in early February 2023, the court changed both children’s permanency plan from reunification to reunification concurrent with adoption by a relative for E.L. and a non-relative for E.E.L.5 Around this time, Father was released from prison and ordered to serve the remainder of his prison sentence in home detention. Upon his release, he quickly contacted Ms. Kolawole and provided contact information for his case manager and signed release forms. Although the Department wanted to facilitate in-person visits between Father and the children, due to the conditions of his release (home detention and daily scheduled substance abuse groups), the Department set up virtual visits instead. About ten days following his release, however, Father tested positive for illegal substances and was reincarcerated. He remained so until September 2023.
Mother did not have contact with the Department or her children from November 2022 until the middle of February 2023, when she contacted the Department and sought bus passes to visit her children but then did not appear for visits.
In April 2023, the Department filed petitions for guardianship and to terminate the parental rights of parents, both of whom filed objections. About this time, Mother self- enrolled in Priceless Hearts, a drug-addiction inpatient treatment program. Although the Department confirmed her enrollment, they could not confirm her progress or treatment plan because Mother did not sign required releases until September 2023.
Mother did not resume visitations with the children until early September 2023, with the Department assisting with cab rides. Ms. Kolawole observed that during the visits, Mother was often overwhelmed, was unable to provide care for both children at the same time, and had difficulty doing minor tasks, in one instance spending over twenty minutes to change a diaper. Both children expressed initial confusion about who Mother was and her role in their lives.
Around this time, Father was released from prison, and he again immediately contacted Ms. Kolawole. He lived with his mother; obtained employment; enrolled in ARTS, an addiction and recovery treatment program; and signed release forms. Through the ARTS program, Father attended group meetings four times a week; individual therapy every other week; and participated in medication management and psychiatry services. The Department initially found scheduling visits between Father and the children logistically challenging because there were allegations of intimate partner violence, and the Department did not want to remove the oldest child from school for the visits. It was finally arranged for Father to visit each child separately, but not on days of Mother’s visits. The Department supervised the visits between Father and E.L. while E.E.L.’s foster mother, Ms. K.W., supervised the visits between Father and E.E.L. It was noted that when
Father’s visitations resumed, E.E.L. began exhibiting unusually aggressive behavior, biting and hitting children and throwing objects. In November, E.E.L. was suspended for a week from his daycare due to his behavior. Although the Department did not have a formal service plan with Father, Ms. Kolawole testified that he had “quite a good understanding of what was required of him” and that was why, when he was released from prison, Father enrolled in substance abuse treatment and mental health programs, and found employment and stable housing.
2024
When Ms. Kolawole left the Department near the end of January 2024, Gina Malphrus became the family’s case worker and children’s adoption social worker. At that time, Mother was still enrolled at Priceless Heart. Although Mother eventually signed a release form, Priceless Heart never provided the Department with the requested information. Mother, however, was reportedly doing well in the program, and Mother felt the program was helping her.
Prior to Ms. Kolawole’s departure, Father was in compliance with the ARTS program, but she had concerns about Father’s lack of understanding of child development and that he appeared “easily confused.” Although he was responsive to taking a parenting class, she did not refer him to any classes. E.E.L.’s foster mother, Ms. K.W., also expressed concerns about Father’s understanding of child development, as he often looked to her for direction about what to do during visits. She noted that she occasionally needed to repeat instructions for him. She noticed that he asked the same questions in short periods of time and had to be repeatedly reminded to supervise E.E.L. – for example, on several occasions, he left E.E.L. at a dining table by himself; Father did not notice when E.E.L. ran away while they were standing in line at a restaurant; and on another visit, Father wore an exposed knife on his belt where E.E.L. could reach it.
March 2024 – TPR Hearing
On March 27 and 28, 2024, the juvenile court held a two-day contested hearing on the merits of the Department’s petitions for guardianship. Both of the Department’s assigned licensed social workers testified: Ms. Kolawole, who was involved from November 4, 2021, until she left the Department on January 23, 2024, and Ms. Malphrus, who was involved after Ms. Kolawole’s departure. The parties stipulated that Ms. Kolawole was an expert in social work, child welfare, and neglect, and Ms. Malphrus was an expert in social work, child welfare, and adoptions. Additionally, both parents and foster mothers, Ms. K.W. and Ms. R.J, testified at the hearing. The Department’s records for both children were admitted as business records with no objection.
Ms. Malphrus testified about the children’s current situation. E.L. was six years old and has been living with his foster mother, Ms. R.J., his maternal great aunt, for the past two years. Ms. Malphrus testified that E.L. is “doing great” and appears to be comfortable in the home. She described the interactions between Ms. R.J and E.L. as “warm, genuine,” and “very positive.” E.L. attends kindergarten and has an individualized education plan and receives weekly speech
services. He sees several medical specialists, including a pediatric gastroenterologist and a dermatologist. He also receives occupational therapy to address his delayed gross motor skills. He was evaluated and referred for therapeutic services at Kennedy Krieger and diagnosed, inter alia, with ADHD, anxiety disorder, and attachment disorder.
Ms. Malphrus testified that E.E.L. was two and a half years old and had been with his foster mother, Ms. K.W., almost since birth. Ms. Malphrus described him as a “very happy” child with “incredibly high energy[.]” She testified that E.E.L. is “comfortable” in his foster home and wants “to be as close . . . as possible” to his foster mother. He attends a local community day care, receives Infants and Toddlers services, and attends biweekly speech therapy for treatment of a significant (twentyfive percent) speech delay. He exhibits some behaviors that he and his foster mom are working on – they participate in parentchild interaction therapy so she can help him learn how to manage his behavior. He was diagnosed at birth with reactive airway disease and has been diagnosed with adjustment disorder, which are monitored by his primary care physician and his current therapist, respectively. E.E.L.’s foster mother testified that she and E.E.L. are “very bonded,” he calls her “mommy,” and he “likes routine That’s where he feels secure.”
Ms. Malphrus testified that, since her engagement, both parents had scheduled weekly, supervised visitations with the children. Of the nine visits scheduled with Mother, she attended only three. The Department canceled once because the child was ill; Mother canceled once because of an emergency dental visit; and Mother missed four visits. According to Ms. Malphrus, the visits go well and are closely supervised in a small room – the visits initially took place in a larger room, but Mother had trouble managing both children and requested a smaller room. Ms. Malphrus has observed, however, that even in the smaller room, Mother still struggles to manage both children at the same time, and also noted that it takes Mother a very long time to do minor tasks. Father visits each child separately and had eight visits scheduled with E.L., of which he attended five, and nine visits with E.E.L., of which he attended four – the Department had canceled one of the visits with E.E.L. because the child was ill. Father visits E.L. at a Department facility with the Department support staff supervising, and he visits E.E.L. in the child’s community with the foster mother supervising. Father has not provided the Department with verification of employment, nor has he provided verification of his mental health and substance abuse treatment programs.
Ms. Kolawole testified that Mother had not been able to address her substance abuse issue when not in an intensive inpatient facility and noted that all visitations have been supervised. Mother was given a spreadsheet prepared by E.L.’s foster mother containing E.L.’s doctor appointments, but Mother never appeared for any of them. The Department provided Mother with a taxicab to attend an appointment, but she failed to appear for the cab. It is unclear whether Father was given the spreadsheet, but he also had not participated in any of the children’s doctor appointments.
Ms. Malphrus opined that both children’s needs are being addressed effectively by their respective foster mothers. When asked whether there were services that the Department could
offer to the parents that could bring about lasting change in the near future so that the children could be placed with the parents, Ms. Malphrus replied there was not. She opined that, in the circumstances, it was in the best interests of both children that the parents’ rights be terminated so they can be adopted. She testified that Mother remains in a residential treatment facility, and Father has been incarcerated throughout the majority of the children’s lives. She opined that neither parent has demonstrated that they can care for their children, communicate effectively, or remember things of concern. She opined that it is “very emotionally traumatic” for the children not to have permanency, which is critical for healthy development and growth.
Both parents’ testimony focused on their achievements in the several months preceding the TPR hearing. Mother testified that, although she has abused drugs for about twenty-five years and has been in about ten different programs for substance abuse, in the past year she has maintained stable housing, attended intensive outpatient behavioral health and substance abuse treatment through Priceless Heart, and tested “clean” on every drug test. She introduced into evidence lab results between December 18, 2023, and February 5, 2024, showing that she tested negative for illegal drugs. Through Priceless Heart, she has stable housing, to which she contributes $100 a month; daily individual therapy; and has completed a parenting class and taken a second parenting class but has not yet passed that test. She also introduced a letter from her psychiatrist stating that she has been a client since enrolling at Priceless Heart in March 2023 and she was last seen in March 2024; she is scheduled for bi-weekly appointments, which she attends regularly; her prognosis is “good”; and the program recommends that she continue at her current level of care and work toward continued stabilization of her substance abuse recovery and mental health disorders. Mother does not have a car but she recently found employment with Honeygrow, a restaurant chain, where she will begin training. She admitted that she had not provided the Department any documentation regarding her employment. She currently is taking gabapentin, Seroquel, clonidine, Adderall, methadone, Topomax, and clonazepam.
Father admitted that while incarcerated, he had two or three virtual visits with E.L. but had no contact with E.E.L. He testified that since his release from prison, he has maintained stable housing – upon his release he lived with his mother and in the last month, he began renting a basement, two-bedroom apartment for $750 a month. He admitted that he failed to advise the Department of his move to the apartment. Within a month of his release from prison, he began employment with a roofing company but admitted that he never provided verification of his employment to the Department, although it was requested. He testified that his wages vary depending on the weather, but he averages about $2,800 a month before taxes. The court admitted into evidence his 2023 W-2 form showing $4,060 in wages. He stated that he did not ask to attend his children’s medical appointments because he did not know if he had the time, stating that between working and taking substance abuse classes “it’s hard.” He testified that he has ADHD and bipolar disorder and takes his prescribed medications of suboxone
and Zoloft on a regular basis. He testified that he graduated from the ARTS drug treatment program but was still involved with the program for mental health treatment and medication management. He testified that he feels bonded to his children. He understood that his children had “a lot of disabilities” but testified that he did not “think it’s really disabilities. I just think they need more attention. They need – they need a father and a mother. They’re so confused. That once they get that, you know, it will all work out.”
In closing, both the Department and children’s attorney argued that, although the parents have made some progress toward reunification, particularly in the recent several months, it was in the interest of both children to terminate their parents’ rights because their progress was insufficient to meet the children’s needs. After hearing evidence and argument, the juvenile court agreed. Ruling from the bench, the court summarized the testimony, finding credible the testimony of the social workers and the foster mothers. The court found that each of the children have “significant issues” and the foster mothers, who have no other persons in the house besides themselves and the child, are effectively managing the children’s needs. The juvenile court then addressed each of the factors in Md. Code Ann., Family Law Article (“FL”) § 5-323, concluding that the Department had met its burden by clear and convincing evidence that the parents were unfit to remain in a parental relationship with their children. The court further found, perhaps gratuitously, that exceptional circumstances existed that made it contrary to the best interest of the children to continue the parental relationship. The court subsequently entered a written order reflecting its ruling from the bench.
Both parents separately appealed the juvenile court’s order. We shall provide below additional facts where necessary to address the questions raised.
DISCUSSION Standard of Review
We apply “three different levels of review” to a juvenile court’s findings in a CINA proceeding. In re Adoption/ Guardianship of Jasmine D., 217 Md. App. 718, 733 (2014). We apply the clearly erroneous standard to factual findings; reviewing matters of law for error, unless the error is harmless; and apply the abuse of discretion standard to the juvenile court’s ultimate conclusion. In re Ashley S., 431 Md. 678, 704 (2013) (citing In re Yve S., 373 Md. 551, 586 (2003)). “Abuse of discretion has been said to occur 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.” Alexis v. State, 437 Md. 457, 478 (2014) (cleaned up). See also In re Shirley B., 419 Md. 1, 19 (2011) (“‘[Q]uestions within the discretion of the trial court are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.’” (quoting In re Yve S., 373 Md. at 583)).
TPR Law
“When the State petitions to terminate parental rights
without a parent’s consent, the court’s paramount consideration is the best interests of the child.” In re Adoption/Guardianship of H.W., 234 Md. App. 237, 247 (2017). FL § 5-323 governs nonconsensual termination of parental rights and gives a juvenile court the right to terminate a parent’s rights when either of two circumstances exist:
If, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child’s objection.
FL § 5-323(b) (emphasis added). “[U]nfitness and exceptional circumstances are two separate inquires[,]” and either one may serve as an independent basis for an order terminating parental rights. In re Adoption/Guardianship of C.E., 464 Md. 26, 54 (2019).
The statute lists factors that a juvenile court must consider before determining a parent is unfit or exceptional circumstances exist, but the statute states that the juvenile court “shall give primary consideration to the health and safety of the child” when considering whether terminating a parent’s rights is in the child’s best interests. FL § 5- 323(d). The statutory factors a court shall consider include:
(i) all services offered to the parent before the child’s placement . . . ; (ii) the extent, nature, and timeliness of services offered . . . ; and (iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances, condition, or conduct to make it in the child’s best interests for the child to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with: 1. the child; 2. the local department to which the child is committed; and 3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child’s immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period; whether:
the parent has abused or neglected the child . . . and the seriousness of the abuse or neglect;
1. A. on admission to a hospital for the child’s delivery, the mother tested positive for a drug as evidenced by a
positive toxicology test; or B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and 2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article; the parent subjected the child to: 1. chronic abuse; 2. chronic and life- threatening neglect; 3. sexual abuse; or 4. torture; the parent has been convicted, in any state or any court of the United States, of: 1. a crime of violence against: A. a minor offspring of the parent; B. the child; or C. another parent of the child; or 2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and the parent has involuntarily lost parental rights to a sibling of the child; and (4)(i) the child’s emotional ties with and feelings toward the child’s parents, the child’s siblings, and others who may affect the child’s best interests significantly; the child’s adjustment to: 1. community; 2. home; 3. placement; and 4. school; the child’s feelings about severance of the parent-child relationship; and the likely impact of terminating parental rights on the child’s well- being.
FL § 5-323(d). “[A]lthough the juvenile court must consider every factor in FL § 5-323(d), it is not necessary that every factor apply, or even be found, in every case.” In re Jasmine D., 217 Md. App. at 737. In addition to the above statutory factors, a juvenile court “may consider [other] parental characteristics [such] as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child.” In re H.W., 234 Md. App. at 24849 (quotation marks and citations omitted).
Juvenile Court’s Ruling
Here, the juvenile court analyzed each of the above four statutory factors. As it must, the court began by noting that the children’s health and safety was its primary consideration. Regarding the first factor, the court noted that there were essentially no social services agreements between the Department and the parents. The court found that the Department had provided reunification services to the parents from the outset, and the services that proved the most helpful were visitation and transportation, noting that Father’s incarceration during most of the children’s lives caused him to receive fewer opportunities for services but that his incarceration was within his control, particularly his reoffending.
As to the second factor, the court found both parents have been absent for a significant period of the children’s lives, but they have had more recent contact with their children, although even that contact has not been regular or consistent. The court noted that neither parent had made any financial contribution to the welfare of the children, nor had the Department asked them to do so. The court noted that both parents had “significant” disabilities due to substance abuse
and mental health issues that prevented them from properly caring for their children for extended periods of time. The court noted that, during Mother’s testimony, she had difficulty understanding and answering the questions, “slurred” her words, and appeared extremely tired, all of which worsened as the hearing went on. The court noted that Father was better at understanding and responding to questions than Mother, but it was “not to say” his understanding and responses were good. The court added that both children’s foster mothers testified that the children had very rigorous schedules and significant needs. Mother was still not independently taking care of herself and while Father was able to do so, between work and counseling sessions, he had little time for much else. The court noted that the statutory period of additional services had passed (eighteen months from the date of placement), but regardless, the experts, who the court found credible, testified that no additional services would bring about lasting parental adjustment within a reasonable time frame.
As to the third factor, the juvenile court found that both children had suffered prenatal abuse as they tested positive for substances at birth. The court noted there was “loose” testimony about “significant” domestic violence, but Mother refused to testify about it and little factual evidence was presented. The court understandably reached no conclusion on that question.
As to the fourth factor, the court found that the children had strong emotional ties to their foster mothers and community and are happy and doing “well” in their current homes despite having “significant issues.” The court expressed concern about uprooting the children, who were doing well in their homes and community.
After weighing all of the above factors, the juvenile court found that termination of their parental rights was in the best interest of the children because the parents were unfit and exceptional circumstances existed.
Father’s Appeal
Father argues that the juvenile court erred in terminating his parental rights because the Department did not make reasonable efforts toward reunification. Specifically, he argues that the Department never presented him with a service agreement; never offered rehabilitative services while incarcerated or services to address any alleged parental shortcomings, such as inadequate understanding of child development and cognitive concerns; and never offered services for past substance abuse, housing, or employment. He also argues that the juvenile court abused its discretion in finding him unfit or that exceptional circumstances existed to terminate his parental rights where he had made recent gains, pointing out that he has stable housing and employment, completed his substance abuse program, was addressing his mental health issues, and had good visits with his children, particularly where termination of his parental rights would mean that the children would not grow up in the same household.
We are not convinced that the Department failed to fulfill its reunification efforts for Father under the circumstances. While a CINA proceeding requires a juvenile court to make ongoing findings of the reasonableness of the Department’s efforts, a
guardianship proceeding requires a juvenile court only to examine “the extent, nature, and timeliness of services offered” by the Department to facilitate reunification and whether the Department and the parents have “fulfilled their obligations[.]” FL § 5-323(d)(1). When a parent is incarcerated for an extended period of time, a court may determine that “any provision of services toward reunification would have been futile” because “no amount of services would have alleviated th[at] primary obstacle[.]” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 54-55 (2017)
The juvenile court was unwilling to fault Father’s incarceration against the Department for the purposes of providing services where Father has been essentially incarcerated for nearly all of his children’s lives, except the preceding six months. We do not disagree with this conclusion. The evidence also supports not faulting the Department for not providing additional services to Father relating to housing, employment, and treatment, for soon after his release from prison the second time, he found housing, employment, and enrolled in a substance abuse treatment program. The Department cannot be faulted for not providing services where none were needed.
The most useful service the Department did provide was visitation, but in the three months prior to the TPR hearing, Father missed almost half of the scheduled visits with his children. Father also did not attend any of his children’s medical appointments and in his testimony suggested that he did not because it was too difficult given his full-time employment and the effort required to maintain his sobriety and mental health. It is clear that Father was unable to balance his own needs with those of his children, including their serious medical and developmental limitations.
Although, at the time of trial, Father was doing well with his sobriety and had obtained stable housing and employment, the time and effort required to establish and maintain those significant anchors were just in their beginning stages, while his children have significant, predictably long-term needs of their own. Ms. Malphrus opined that there were no services that the Department could offer to the parents that could bring about lasting change in the foreseeable future so that the children could be placed with the parents. Under these circumstances, we are not persuaded that the juvenile court’s determination that the Department’s reunification services were reasonable was clearly erroneous.
We further find that the juvenile court, after considering all the factors enumerated in FL § 5-323(d), did not err in concluding that Father was unfit to care for the children or that exceptional circumstances existed so that it was in the children’s best interest to terminate his parental rights. At the time of the TPR hearing, E.L. was six years old, and E.E.L. was two and a half years old, having essentially spent all their lives in foster care. Father has never had custody of either child, and he has never managed a visit with both children at the same time. Moreover, all his visits have been supervised. As stated above, his visitations since his release from prison have been inconsistent, with him missing close to half of all visitations scheduled. During his testimony, Father minimized the children’s substantial medical and behavioral issues. There
is nothing to suggest that the court erred in concluding that Father was unlikely to care for the children safely within a reasonable time period. Father presciently testified that he could not take on the added time and energy to attend their doctor appointments while managing his own life.
We are mindful that the Maryland Supreme Court in In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 501 (2007), recognized that a child’s childhood is finite and that time is of the essence when it stated “that children have a right to reasonable stability in their lives and that permanent foster care is generally not a preferred option[.]” “A critical factor in determining what is in the best interest of a child is the desire for permanency in the child’s life.” In re Adoption of Jayden G., 433 Md. 50, 82 (2013). “Long periods of foster care are harmful to the children and prevent them from reaching their full potential.” Id. at 83 (cleaned up). While Father argues that the children have the “right” to be raised together, he also concedes, as he must, it is not the law in Maryland. Maintaining Father’s parental rights under these circumstances would have placed the children’s status in a state of suspended animation until a future date that may never occur. Despite Father’s recent successes, the juvenile court found that this was “too little[,] too late[.]” Under the circumstances, we find no abuse of discretion in the termination of Father’s parental rights.
Mother’s Appeal
Mother argues that the circuit court erred in terminating her parental rights because she had made “substantial and material changes to her circumstances” by the time of the TPR hearing. She points out that, for the year preceding the TPR hearing, she had been drug free and enrolled in Priceless Hearts intensive inpatient treatment program and, as part of her treatment, she pays $100 per month toward her housing; attends individual and group counseling; and has a “good” prognosis. She further points out that her visits with the children are good, and she has an emotional bond with them. Lastly, she argues that the Department failed to make reasonable efforts toward reunification by failing to obtain records “that were necessary in assessing . . . whether or not [she was a fit parent] and whether or not exceptional circumstances” existed.
On the record before us, we find no abuse of discretion in the termination of her parental rights. We agree with the juvenile court that, while it is commendable that Mother mhad been drug free for a year with the support of an intensive inpatient treatment program, continued successful enrollment is not demonstrative of her capability to care for the children. The children have essentially not resided with Mother since birth and cannot reside with her in her current living situation. As both experts testified, Mother has difficulty managing both children at the same time.
We also agree with the juvenile court’s finding that the Department provided Mother with reasonable reunification services. The Department referred her to numerous inpatient substance abuse and mental health facilities, provided her with visitation and transportation, encouraged her to attend the children’s doctor’s appointments, and provided her with a parental fitness evaluation, and more. Additionally, the Department secured a smaller visitation room when Mother requested it because handling both children in a larger room was difficult for her, and the Department changed its communication to written form at Mother’s request to account for Mother’s seeming cognitive disabilities.
We likewise find no merit in Mother’s argument that the Department failed to provide reasonable reunification efforts because it failed to retrieve her treatment records or provide a second referral to evaluate her fitness to parent. We note that Mother introduced evidence at the TPR hearing of her compliance with her mental health and substance abuse treatment programs. We cannot conclude that the Department obstructed her ability to assert her case. Moreover, given all the factors the court weighed in deciding to terminate her parental rights, we fail to see how a second parental fitness evaluation would have changed the outcome.
Implicit in the court’s findings and conclusions was the ability of the court to judge the credibility of the witnesses and to observe their conduct and appearance before the court. Indeed, the court observed that, at trial, Mother slurred her words, appeared tired, and had difficulty understanding and responding to the questions posed, all of which grew worse as the hearing proceeded.
Accordingly, we find abundant evidence to support the juvenile court’s decision to terminate Mother’s parental rights to both E.L. and E.E.L.
Exceptional Circumstances
Both parents challenge the juvenile court’s finding of “exceptional circumstances,” as provided by FL § 5-323(b), to likewise support its decision to terminate their respective parental rights to E.L. and E.E.L. Each assert that the court erred in not providing specific findings of fact to support its conclusion of the existence of such statutory exceptional circumstances. We agree that the court did not elaborate. But we likewise conclude, even disregarding the court’s unexplained findings of exceptional circumstances, its findings, by clear and convincing evidence, of unfitness of the respective parents supports its ultimate ruling that their parental rights be terminated, and the Department’s petition be granted. It is clear from the record that the juvenile court gave “primary consideration to the health and safety” of E.L. and E.E.L.
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
FOOTNOTES
1 Mother and Father have an older child together, who is in the custody and guardianship of that child’s paternal grandmother. That child is not subject to this appeal.
2 A “child in need of assistance” is “a child who requires court intervention because:
(1) [t]he child has been abused, has been neglected . . . ; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code Ann., Courts & Judicial Proceedings Article (“CJP”) § 3-801(f). “CINA” is the acronym for “child in need of assistance.” CJP § 3-801(g).
3 During the years between E.L.’s and E.E.L.’s birth, Father was in and out of prison. In November 2018, Father was arrested for possession of a controlled and dangerous substance, theft, and second-degree assault. In February 2019, Father was arrested for first- and second-degree attempted murder, armed robbery, reckless endangerment, and possession of a dangerous weapon with the intent to injure. Mother was the victim in that case. At E.E.L.’s birth, Father was serving a five-year sentence for fourth-degree burglary, second-degree assault, and possession of paraphernalia.
4 Because neither parent disputes that the Department followed the correct procedures, we need not recount that Ms. L.’s guardianship of E.L. was rescinded and E.L. was placed in foster care pursuant to a shelter care order, after which he was again declared a CINA.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s order that the subject of a petition for guardianship (Eric) was not required to appear at the show cause hearing. He was not named in the show cause order, voluntarily waived his right to be present at the evidentiary hearing, was not subpoenaed and was not compelled to testify.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
for Eric. Ms. Moss arranged to have Eric evaluated for his disability and sign two powers of attorney documents and a medical directive.3 Ms. Moss hired Eric’s long-term physician and a licensed clinical social worker4 to evaluate whether Eric had the capacity to understand and sign the documents. Both the physician and social worker determined that Eric has the capacity to execute all three documents. Additionally, Ms. Moss conducted an in-person capacity assessment of Eric, in the presence of two paralegals. Ms. Moss and her two paralegals also determined that Eric has the capacity to execute legal documents. Eric signed the three documents as a less restrictive alternative to guardianship. In March and April of 2023, Eric’s physician and the licensed clinical social worker completed the medical certificates that Mr. Self requested for the guardianship petition. Eric then refused Mr. Self’s request to permit additional examinations from experts chosen by Mr. Self.
This matter is an appeal arising from a Petition for Guardianship of Eric Self (“Eric”)1 brought by the Appellant, Douglas Self (“Mr. Self”), in the Circuit Court for Baltimore County. On appeal, Mr. Self argues that the circuit court erred in determining that an “Order for Remote Hearing” did not compel Eric to appear at the show cause evidentiary hearing on September 18, 2023. Additionally, Mr. Self contends that Section 9-113 of the Maryland Courts and Judicial Procedure statute compelled Eric to testify at the show cause hearing. For reasons that we will outline, we affirm the judgment of the Circuit Court for Baltimore County. We will set forth such facts as are necessary to address the issues raised on appeal.
I. Factual Background
Mr. Self and Ms. Dean were married parents of Eric. In 2010, the Circuit Court for Baltimore County granted a judgment of absolute divorce to Mr. Self and the Appellee, Carla Dean (“Ms. Dean”). The divorce decree awarded shared custody of their son, Eric, and he split an equal amount of time living with Mr. Self and Ms. Dean. Mr. Self and Ms. Dean’s custody agreement expired in 2022 when Eric graduated high school and turned 18 years old, reaching the age of majority.2 Not long after graduating high school, Eric chose to sever his relationship with Mr. Self. Eric is now 21 years old and lives with Ms. Dean. Eric was diagnosed with autism spectrum disorder as a child. Mr. Self’s counsel sent a letter asking Ms. Dean to allow Eric to be examined for guardianship purposes and to continue the 2010 split custody arrangement. After receiving Mr. Self’s request, Ms. Dean retained Ms. Lindsay Moss as counsel
On July 13, 2023, Mr. Self filed a petition for guardianship of Eric in the Circuit Court for Baltimore County. Mr. Self’s petition asserted that Eric is an alleged disabled person under Md. Code Ann., Estates & Trusts § 13-705(b)(1) and requested that the circuit court appoint two health care professionals that specialize in autism disorder to examine or evaluate Eric pursuant to Md. Rule 10-202(a)(3). Ms. Dean, as an interested person,5 received notice of the guardianship petition and timely objected on August 23, 2023. Ms. Dean is the only interested party that objected to Mr. Self’s petition for the appointment of health care professionals. The circuit court served a Show Cause Order on Ms. Dean requiring her to appear at a hearing scheduled for August 24 and show cause why Eric should not be examined or evaluated. On August 24, the circuit court held a 15-minute remote hearing where the parties agreed to resume the evidentiary show cause hearing on September 18, 2023.
On September 6, Mr. Self’s counsel filed a Motion for Remote Proceeding or to Appear Remotely. The circuit court denied Mr. Self’s motion as moot, stating that the case is scheduled to proceed via Zoom.
On September 8, the circuit court issued four Orders for Remote Hearing and four Notices of Remote Trust Hearing to counsel for Mr. Self, Ms. Dean, Eric, and the Baltimore County Department of Social Services. Each “Notice of Remote Trust Hearing” provided a Zoom invitation and directions for the parties and participants to join the Zoom hearing. The “Order for Remote Hearing” explained that the evidentiary hearing will be conducted remotely on September 18 at 9:00 a.m. using Zoom for Government. The order stated that “the parties and their counsel shall attend the hearing using the Zoom for
Government video conference and appear on camera during the entirety of the hearing.” The order further stated:
ORDERED, that no later than September 15, 2023, all exhibits and witness lists must be pre-filed. In addition:
• The parties or their counsel shall file a list containing the names, email addresses, and phone numbers of the attorneys, parties and witnesses (if any) who will attend the hearing.
• All persons must use their real names (not aliases) while online to ensure they will not be prevented from entering the hearing.
• Counsel shall ensure that witnesses are familiar with the rules for remote testimony ORDERED, that all witnesses will be sworn or affirmed by either the clerk or Judge prior to commencement of their testimony. In addition:
a. Witnesses, counsel and other attendees who testify must participate via video-conference connection.
b. Witnesses, counsel and other attendees, if any, must wear appropriate attire and present themselves as they would if they were appearing in a physical courtroom.
c. The witness is to ensure that there will be no interruptions or distractions for the duration of their appearance at the remote hearing; and it is further
ORDERED, that except as otherwise provided for in this Order, hearings conducted pursuant to this Order shall be conducted to the same standards as hearings in a courtroom and in accordance with the Maryland Rules of Procedure and Evidence.
On September 15, Mr. Self filed his witness list that named Eric as a witness. On September 18, the circuit court held a remote hearing to evaluate Mr. Self’s request for court appointed health care professionals. Mr. Self attempted to call Eric as a witness indicating that the September 8 order required Eric to attend the hearing despite Eric voluntarily waiving his appearance, pursuant to Estates & Trusts Article § 13-705(e) (1)(i), through his counsel. The court asked Mr. Self’s counsel if he filed anything, such as a trial subpoena, to compel Eric’s appearance. Mr. Self’s counsel admitted that he had not and argued that a trial subpoena was unnecessary to compel Eric’s appearance because the court entered an Order for Remote Hearing mandating that all parties shall attend the hearing. Mr. Self’s counsel further argued that issuing a subpoena to compel Eric’s attendance would duplicate the court’s existing order. Counsel for Eric and Ms. Dean argued that Mr. Self was required to issue a trial subpoena to compel Eric to attend and testify at the hearing. The circuit court explained that the Order for Remote Hearing: [W]as one of those orders that was generated as a result of COVID. Indicating at that time that prior to COVID, all of these hearings were essentially in person in court. The COVID Pandemic caused the court to essentially change its way of functioning, and it’s clear from the Order of Remote Hearing. Which is generated as a matter of course. It doesn't change from case to case that this would be conducted via remote electronic participation using Zoom for government.
And that - that is the context where the parties and Counsel shall attend the hearing, using the Zoom for government. Essentially interface as opposed to coming directly to court. As in most situations even regarding a Notice of Hearing or a Notice of Trial, but to say in a non-guardianship case that - that is this essentially serves as notice, even regardless of whether it says Order.
The circuit court further explained that:
In terms of practice, I think that it’s always a practice to summons or subpoena someone to actually appear in court. Even appearing in court, I believe in a guardianship matter, that the, in this case, [Eric], can make the decision as to whether he’s going to testify and if he says, even though I’m here, I’m not going to testify, and that becomes a matter for the court to decide. Whether he should or is otherwise protected. I think he has the ability to do that. I think he has the ability to do that through Counsel. This is a matter that’s routinely done in court, when you have an alleged disabled person and Counsel for that alleged disabled person, waives a presence at trial. So, I’m – I’m there’s an objection that I’m hearing even though it’s not maybe stated in that sense. So, I’m going to – I’m going to basically sustain that objection. Mr. Self’s counsel responded “okay. . . In that case, Your Honor, we have no further witnesses.” Mr. Self effectively ended his case-in-chief.
After reviewing the totality of evidence presented, the circuit court found that Ms. Dean appeared and showed cause as to why appointing healthcare professionals to evaluate or examine Eric should not be permitted. The circuit court issued an order denying Mr. Self’s request for the appointment of two health care professionals and dismissing the guardianship petition.
II. Questions Presented
Mr. Self timely appealed and presents the following issues which we rephrase as follows:6
1. Did the circuit court abuse its discretion in finding that the Order for Remote Hearing acts as a notice and did not compel Eric to appear at the September 18 show cause hearing?
2. Does Md. Code Ann., Courts & Judicial Procedure § 9-113 compel an adverse witness to testify at a hearing absent a subpoena?
III. Standard of Review
The parties do not agree on the appropriate standard of review. Mr. Self asserts that the question presented is one of law and should be reviewed de novo. Conversely, Ms. Dean argues that the circuit court’s ruling amounts to an exclusion of evidence. Ms. Dean suggests that we apply the prescription set forth in Rule 5-103 that “error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling” and the substance was made known to the court by offer on record or was apparent from the context within which the evidence was offered. Md. Rule 5-103(a)(2). Further, we would view the admission or exclusion of evidence as a function of the trial court and treat the court’s decision with great latitude, reversing only “upon finding that
the trial judge’s determination was both manifestly wrong and substantially injurious.” Angelakis v. Teimourian, 150 Md. App. 507, 525 (2003). However, we disagree with both parties. For reasons we will outline, the appropriate standard of review is abuse of discretion.
IV. Discussion
A. Adult Guardianship Proceedings
Mr. Self contends that the circuit court abused its discretion in finding that Eric had the right to waive his presence at the show cause hearing because the circuit court issued an Order for Remote Hearing mandating that the parties attend. The circuit court found that the Order for Remote Hearing is a standard order that was generated during the COVID-19 pandemic to notify parties that a hearing will be held on Zoom for Government. The circuit court further explained that Eric, as the alleged disabled person, has the ability to waive his presence through counsel which is a matter routinely done in court.
Title 10 of the Maryland Rules and Maryland Estates & Trusts Article §§ 13-701 to 13-713 govern adult guardianship proceedings for disabled persons. A petition for guardianship of a person ordinarily must be supported by two medical certificates. Md. Rule 10-202(a)(1); Md. Code Ann., Est. & Trusts § 13-705(c)(2). The medical certificates must be completed by either two physicians licensed to practice medicine in the United States or by one licensed physician and a licensed psychologist, a licensed certified social worker-clinical, or a nurse practitioner. Md. Rule 10-202(a)(3)(A); Est. & Trusts § 13705(c)(2)(i)-(ii). The court will hold a show cause proceeding when such certificates are not provided because the petitioner has been unable to access or examine the alleged disabled person. Md. Rule 10-202(a)(3)(A).
If a petition for guardianship is filed without medical certificates and “alleges that the disabled person is residing with or under the control of a person who has refused to permit examination or evaluation,” and that the alleged disabled person “may be at risk unless a guardian is appointed,” the court shall delay issuance of a show cause order. Md. Rule 10-202(a)(3) (A). The court shall instead issue an order directing “the person who has refused to permit the disabled person to be examined or evaluated to appear personally on a date specified in the order and show cause why the disabled person should not be examined or evaluated.” Id. That order shall be served on the person objecting to the petition for guardianship of the alleged disabled person. Id. If, after the show cause hearing, the court finds that examinations are necessary, it shall appoint either (i) two physicians or (ii) one physician and one of the approved health care providers to conduct the examination or evaluation and file their reports with the court. Md. Rule 10- 202(a)(3) (B). If the two healthcare providers certify that the person is disabled, the petition proceeds as if the certificates had been filed with it. Id. Otherwise, the circuit court must dismiss the petition. Id.
Mr. Self filed a petition for guardianship, alleging that Eric lives with Ms. Dean, refused to be examined by medical professionals, and requested the circuit court to appoint
two medical professionals to examine Eric. Ms. Dean, as an interested person, objected to Mr. Self’s petition for guardianship and the court issued an order directing Ms. Dean to appear on August 24, 2023, and show cause why Eric should not be examined or evaluated. Eric was not named in the show cause order, which only required Ms. Dean to present evidence showing that Eric should not be examined. The court set the show cause hearing to continue on September 18, 2023, for an evidentiary hearing. Through his counsel, Eric voluntarily waived his right to be present at the evidentiary hearing.
1. Alleged Disabled Person’s Right to Waive Presence at a Guardianship Hearing
An alleged disabled person has the right to appear at guardianship hearings unless the person knowingly and voluntarily waived their right to be present or cannot attend because of physical or mental incapacity. Est. & Trusts § 13705(e)(1)(i); see also Matter of Jacobson, 256 Md. App. 369, 388 n.5 (2022) (noting that the alleged disabled person named on the show cause order voluntarily waived her right to appear through her attorney at the show cause hearing). Waiver may not be presumed from nonappearance but shall be determined based on factual information supplied to the court by counsel or a representative appointed by the court. Est. & Trusts § 13-705(e)(1)(ii). It is the role of the alleged disabled person’s attorney to explain the proceedings to their client, advise the client of their rights, advocate the client’s position, and protect the client’s interest. In re Lee, 132 Md. App. 696, 718 (2000). Section 13-705(e) ensures that an alleged disabled person has the right to be heard before enduring a loss of fundamental rights while providing the alleged disabled person with the choice to waive their appearance. Id. at 7- 18-19 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
2. Compelling Witness Attendance at Show Cause Hearings
We next consider Mr. Self’s contentions that Eric’s right to waive his presence is limited by the Order for Remote Hearing or by a trial subpoena. The parties agree that Eric generally has the right to waive his presence at guardianship hearings pursuant to Section 13-705(e)(1)(i). However, Mr. Self asserts that he did not need to file a subpoena because the Order for Remote Hearing satisfied the need.
Mr. Self argues that Eric’s right to waive his presence is limited by the Order for Remote Hearing or by a trial subpoena. Although Mr. Self is correct that a trial subpoena may compel Eric to appear and testify, Mr. Self admits that he did not request or serve a subpoena to compel Eric’s attendance. Nevertheless, he insists that there was no need to issue a trial subpoena because the Order for Remote Hearing compelled Eric to appear at the evidentiary hearing. Ms. Dean counters that the Order for Remote Hearing is an administrative order, similar to a scheduling order, and if this Court should find that an order setting a hearing date extinguishes an alleged disabled person’s fundamental right to waive their presence our decision would render the intent of Section 13-705(e)(1) (i) of the guardianship statute meaningless. We agree with the
circuit court’s conclusion that the general practice to compel a witness is by issuing a subpoena and Eric has the ability to waive his presence through counsel, which is a matter routinely done in court.
The Maryland Rules require that parties obtain a subpoena to compel witnesses to attend and provide testimony at court proceedings before a magistrate, auditor, or examiner. Md. Rule 2-510(a)(1)(A)-(B); Pleasant v. Pleasant, 97 Md. App. 711, 733 (1993). A subpoena is “a written order or writ directed to a person and requiring attendance at a particular time and place to take the action specified therein.” Md. Rule 1-202(cc). The party requesting a subpoena must complete the required forms that include the name and address of the person to whom it is directed, the name of the party that requested to have it issued, the date, time, and place where attendance is required, and a notice to designate the person to testify. Md. Rule 2-510(c).
A witness served with a subpoena under Rule 2-510 is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse. Md. Rule 2-510(j); see also Evans v. Howard, 256 Md. 155, 159 (1969). The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. Md. Rule 2-510(j). If court is in session, the witness shall be taken immediately before the court. Id. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness’s appearance at the next session of the court that issued the attachment. Id.
Next, the Order for Remote Hearing is a separate document issued to parties in advance of a hearing date. To navigate unprecedented circumstances resulting from the COVID-19 Pandemic, a significant number of judicial proceedings shifted from in-person hearings to remote Zoom hearings.7 The Supreme Court approved Title 21 of the Maryland Rules, effective July 1, 2023, to set forth procedures for remote electronic participation in judicial proceedings. Md. Rule 21101, et seq. Specifically, Chapters 100 and 200 of Title 21 govern remote electronic participation in civil cases and authorize circuit courts to conduct remote electronic proceedings in either evidentiary or non-evidentiary matters. Md. Rule 21-101, et seq.; 21-201(a)(1).
Title 21 is silent on procedural standards for entering an order authorizing remote hearings in trial courts. Instead, the Rules permit a circuit court administrative judge or a presiding judge to determine what matters may be held virtually. The county administrative judge, by administrative order entered as part of the court’s case management plan, may direct circuit courts to conduct remote electronic participation for specific categories of proceedings, in whole or in part, unless otherwise ordered by the presiding judge in a particular case. Md. Rule 21-103(a)(2), 21-201(a). However, if a court permits or requires remote electronic participation on its own initiative in a proceeding that is subject to participation but is not subject to an administrative order, the court shall notify the parties in writing of its intention to do so and afford them a reasonable opportunity to object. Md. Rule 21-103(b).8
The circuit court properly addressed the issue of whether the Order for Remote Hearing compelled Eric to testify. Mr. Self
argued that the order mandates that all parties shall attend the hearing. Mr. Self’s argument ignores the context of the order that explains how the parties are to appear. The full sentence in the order mandates that “the parties and their counsel shall attend the hearing using the Zoom for Government videoconference and appear on camera during the entirety of the hearing.” (emphasis added). The circuit court explained that:
[The Order for Remote Hearing] doesn’t change from case to case that this would be conducted via remote electronic participation using Zoom for government. And that - that is the context where the parties and Counsel shall attend the hearing, using the Zoom for [G]overnment. Essentially interface as opposed to coming directly to court. As in most situations even regarding a Notice of Hearing or a Notice of Trial, but to say in a non- guardianship case that - that is this essentially serves as notice, even regardless of whether it says Order.
The Order for Remote Hearing is a routine court order which is distinct from a subpoena. The order lacks specific features required in subpoenas that are necessary to compel witness attendance. These features include identifying the names and addresses of the parties compelled to attend, a notice to designate the person to testify and a notice to the intended witness that failure to appear will result in a fine, body attachment or contempt of court. The Order for Remote Hearing merely directed the parties to attend the hearing using Zoom for Government, as opposed to attending the hearing in person at the courthouse. Put another way, the order to appear via Zoom for Government is no different from an order directing the parties to appear for a hearing at a designated courtroom at the courthouse.
We are not persuaded that a routine order for remote hearings, absent a subpoena, supersedes statutory rights provided to alleged disabled persons under Section 13- 705(e) (1)(i). The order for remote hearing generally states that parties must attend the hearing on Zoom for Government on September 18, 2023. Mr. Self does not cite, and we have not found, any authority suggesting that a routine court order alone waives, revokes, or modifies the guardianship statute that serves to protect fundamental rights of alleged disabled persons.
We find that the circuit court did not abuse its discretion in determining that the Order for Remote Hearing does not compel witness attendance. Without a proper subpoena, Eric rightfully waived his presence at the show cause hearing and the circuit court accurately found that Eric was not compelled to attend and testify. The trial court did not abuse its discretion by not ordering Eric to testify.
B. The Adverse Witness Statute: Md. Code Ann., Courts & Judicial Procedure § 9-113
Intertwined in the issues, Mr. Self urges this Court to find that the adverse witness statute under Md. Code Ann., Courts & Judicial Procedure § 9-113 compelled Eric to testify as a witness at the show cause hearing. Mr. Self further contends that the circuit court’s decision to disallow counsel the right to call Eric to testify was wrong as a matter of law. Mr. Self’s interpretation of Section 9-113 is misplaced, and he fails to
offer any case law in support of his argument.
Statutory interpretation is a question of law that requires an appellate court to apply a de novo standard of review. See Bittinger v. CSX Transp. Inc., 176 Md. App. 262, 273 (2007). We first look to the plain language of the statute, giving it its natural and ordinary meaning. Bottini v. Dep’t of Fin., 450 Md. 117, 187 (2016). When the statutory language is clear, unambiguous and expresses a plain meaning, we will give effect to the statute as it is written. Id. at 187-88. If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends. Id. at 188.
Section 9-113 provides that in civil cases, “a party . . . may be called by the adverse party and interrogated as on crossexamination.” Md. Code Ann., Cts. & Jud. Proc. § 9- 113 (1974) (emphasis added). The purpose of this rule is to construct a method for parties to call a person as an adverse witness, examine the witness using leading questions and impeach the witness’s testimony. Proctor Elec. Co. v. Zink, 217 Md. 22, 32 (1958). Section 9-113 prevents the repetition of testimony by permitting a party to call an opposing party as a witness. Takoma Park Bank v. Abbott, 179 Md. 249, 259 (1941). The nature and scope of the adverse witness statute must be strictly construed and does not alter the common law except as explicitly provided. Williams v. Wheeler, 252 Md. 75, 79 (1969) (citing Mason v. Poulson, 43 Md. 161, 177 (1875)).
In Williams, the Maryland Supreme Court explained that the statute mitigates some of the harshness of the common law by permitting a party who calls an adverse witness to use leading questions on direct examination for the purpose of contradicting and impeaching the witness, as if the witness had been called by the adverse party. Id. We also recognize that circuit courts may prohibit parties from calling witnesses as an “adverse witness” if the person does not fall within the ambit of the adverse witness statute. See Keefover v. Giant Food, Inc., 83 Md. App. 306, 309-10 (1990). Nevertheless, a party may still call the person as a witness to be questioned under direct examination but must exclude leading questions. Id. at 310. While the statute permits counsel to call an adverse witness to the stand, statutory permission to examine an adverse witness does not compel the witness to be present to testify at trial for the purpose of such examination. The only accepted means to secure the presence of an adverse witness is to file a subpoena.
Mr. Self’s interpretation of Section 9-113 asks this Court to establish a new mechanism to compel witness testimony. We decline to interpret the statute in this manner. First, the plain language of the statute asserts that a witness “may be called by the adverse party and interrogated as on cross examination.” Md. Code Ann., Cts & Jud. Proc. § 9113. The plain language of the statute merely provides a party with the opportunity to call an adverse witness to the stand and use cross-examination techniques to interrogate the witness. See Williams, 252 Md. at 79; Nottingham Vill., Inc. v. Baltimore County, 266 Md. 339, 309 (1972); Proctor Elec. Co., 217 Md. at 32-33.
Furthermore, in Lee, we addressed a similar issue where the appellant contended that the trial court erred in denying appellant’s request under Maryland Rule 10-205(b)(1)9 that two doctors who prepared the physician certificates of the guardianship petition, and were in court, be permitted to testify. 132 Md. App. at 714. Rule 10-205(b) permits an interested party the right to request the presence of the physicians who prepared the medical certificates to testify at trial. Id. The appellant timely requested for the doctors to appear at trial under Rule 10-205(b)(1) and the doctors appeared as requested. Id. at 715. However, the trial court excused the doctors from testifying over the appellant’s objection. Id. The Appellate Court of Maryland10 determined that the trial court erred in excusing the physicians from testifying after their presence had been properly requested by the appellant under Rule 10-205(b)(1). Id. (emphasis added).
Unlike Lee, Mr. Self failed to compel Eric’s attendance properly by requesting, filing, and serving a subpoena under Rule 2-510 before the hearing on September 18.11 The circuit court is not under any obligation to compel Eric to testify absent a subpoena. As a result, the circuit court did not excuse or disallow Eric’s testimony but proceeded without Eric’s testimony because Mr. Self had failed to compel Eric’s attendance and testimony.
Mr. Self adds that he was prejudiced because the circuit court prohibited Mr. Self from calling Eric as an adverse witness.12 This argument ignores the circuit court’s reasoning in denying Mr. Self’s request. In fact, Mr. Self did exercise his right under Section 9-113 to call Eric as a witness at the hearing on September 18. However, the circuit court determined that Eric retained the right to waive his appearance and that the Order for Remote Hearing acted as a hearing notice that did not compel Eric to attend the hearing. As opposed to Mr. Self’s reading of Section 9-113, the plain language of the statue and common law interpretations do not provide any indication that Section 9-113 compels an adverse witness to be available to testify when a party fails to secure the witness’s presence by filing a subpoena. We find that the circuit court did not abuse its discretion.
V. Conclusion
We find that the circuit court properly held that the Order for Remote Hearing is a routine court order that did not compel Eric to attend the show cause hearing. Absent clear language compelling a witness to appear and testify, the Order for Remote Hearing may not hold the same authority as a subpoena. Additionally, Section 9-113 provides a party the opportunity to call an adverse witness to be examined using leading questions. The statute does not compel a witness to testify absent a trial subpoena. Therefore, a subpoena was required to compel Eric to attend and testify at the show cause hearing. For those reasons, we affirm the decision of the Circuit Court of Baltimore County.
FOOTNOTES
1 Eric and his father, Douglas Self, share the same last name. Throughout the opinion we will refer to Eric Self as “Eric” for clarity. We mean no disrespect by the lack of formality.
2 Eric’s birthday is October 1, 2003. Eric turned 21 on October 1, 2024.
3 Eric gave power of attorney to his mother, Ms. Dean.
4 Maryland Rule 10-202(a)(3)(A) refers to a licensed clinical social worker as “licensed certified social worker-clinical.” The statute provides that “[i]f the petition is not accompanied by the required certificate and the petition alleges that the disabled person is residing with or under the control of a person who has refused to permit examination or evaluation by a physician, psychologist, licensed certified social worker-clinical, or nurse practitioner. . .” Md. Rule 10-202(a)(3)(A) (emphasis added). For clarity, we will refer to a licensed certified social worker-clinical as a “licensed clinical social worker.”
5 In connection with a matter for guardianship of the person or the authorization of emergency protective services, “interested person” means the minor or the disabled person; the guardian and heirs of that person . . . a person holding a power of attorney of the minor or disabled person; and any other person designated by the court. Md. Rule 10-103(f)(1). Unless the court orders otherwise, the petitioner shall mail by ordinary mail and by certified mail to all other interested persons a copy of the petition and show cause order and a “Notice to Interested Persons.” Md. Rule 10-203(b)(2).
6 In his brief, Mr. Self framed the question as follows:
1. Did the Circuit Court err when it sustained Eric Self and Carla Self’s objection and refused Appellant’s call to have Eric Self testify at the hearing on 9/18/23?
7 “To promote the fair and effective administration of justice when holding court proceedings remotely, the Maryland Judiciary has established [] guidelines and recommendations when [Maryland Rules 21-101, et. seq] are invoked.” Maryland Judiciary, Remote Hearings and Proceedings, https://www.mdcourts.gov/remotehearings (Nov. 2023). The guidelines and recommendations for remote hearings in Maryland circuit courts can be found on the Maryland Judiciary’s website. Maryland Judiciary, Guidelines for Remote Hearings in the Maryland Trial Courts, https://www.mdcourts.gov/sites/default/files/ import/eservices/pdf/remotehearingsguidelin re.pdf. Although the guidelines are not mandatory for circuit courts to implement, they are a resource to help parties navigate remote evidentiary and non-evidentiary matters. See id. Among several other recommendations, the guidelines explain that the preferred platform for remote proceedings is Zoom for Government; all persons must use their real names (not aliases) while online to ensure they will not be prevented from entering the hearing; circuit courts may implement a method for pre-filing exhibits and witness lists; and that hearing participants and witnesses may be required to present themselves as if they were appearing in a court room. Id.
8 Effective April 4, 2022, the Honorable Ruth A. Jakubowski, Administrative Judge on the Circuit Court
for Baltimore County, approved the Circuit Court’s Resumption of Normal Operations.
Honorable Ruth A. Jakubowski, Circuit Court for Baltimore County Resumption of Normal Operations, Baltimore County Government (April 4, 2022), https:// www.baltimorecountymd.gov/files/Documents/Circuit/ ResumptionofNormalOper ation.pdf. As Maryland courts adjusted to resuming operations post-pandemic, Judge Jakubowski listed proceedings that would continue to be held remotely. Id. Guardianship hearings remained remote with the exception of subpoena hearings. Id. However, this was not a circuit court administrative order. The Resumption of Normal Operations was added to the Baltimore County Circuit Court’s COVID-19 policies in response to Chief Justice Joseph M. Getty’s Fifth Administrative Order Lifting the COVID-19 Health Emergency as to the Maryland Judiciary issued on March 28, 2022. Id.
9 Rule 10-205(b)(1) stated that:
“A physician’s or psychologist’s certificate is admissible as substantive evidence without the presence or testimony of the physician or psychologist unless, not later than 10 days before trial, an interested person who is not an individual under a disability, or the attorney for the alleged disabled person, files a request that the physician or psychologist appear. If the trial date is less than 10 days from the date the response is due, a request that the physician or psychologist appear may be filed at any time before trial.”
Rule 10-205(b)(1) was amended on December 4, 2007, and rewritten as Rule 10-205(b) stating:
(b) Guardianship of Alleged Disabled Person. When the petition is for guardianship of the person of an alleged disabled person, the court shall set the matter for jury trial. The alleged disabled person or the attorney representing the person may waive a jury trial at any time before trial. If a jury trial is held, the jury shall return a verdict pursuant to Rule 2- 522(b)(2) as to any alleged disability. Each certificate filed pursuant to
Rule 10-202 is admissible as substantive evidence without the presence or testimony of the certifying health care professional unless, not later than 10 days before trial, an interested person who is not an individual under a disability, or the attorney for the alleged disabled person, files a request that the health care professional appear to testify. If the trial date is less than 10 days from the date the response is due, a request that the health care professional appear may be filed at any time before trial.
This rule permits an interested party or the alleged disabled person to request the physician’s presence in court. This is not an alternative to obtaining a subpoena. However, the circuit court may not prohibit a physician from testifying when a party properly requests the physician to appear.
10 On December 14, 2022, the Court of Special Appeals was renamed the “The Appellate Court of Maryland.” The change in name does not affect precedential value of opinions. See Governor Larry Hogan, Governor’s Proclamation Declaring the Result of the Election of November 8, 2022, For Constitutional Amendments, (Dec. 14, 2022), https:// www.courts.state.md.us/sites/default/files/import/reference/pdfs/proclamation2022 1213.pdf.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s custody determination awarding joint legal custody. The trial court erred by failing to consider the factors related to the best interest of the child in making its child custody determination.
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.
the merits hearing on January 23, 2024, and entered its child custody and support order on February 22, 2024. Father timely filed his appeal.
At the merits hearing, the court heard from Father, Father’s mother, and Mother. The parents’ testimony often conflicted, and this section portrays the competing narratives in parallel. Father submitted screenshots of the parties’ discordant text message communications and documents relating to his earnings and spendings. We provide brief background on the family members and then describe in detail their disputes.
This appeal arises from a custody determination of E.D., the five-year-old son of Eric Drewery (“Father”) and Kayla Hawkins (“Mother”), entered by the Circuit Court for Prince George’s County. The trial court awarded joint legal custody and, to Mother, primary physical custody. Father presents the following questions for review, which we have restated1:
I. Did the trial court err by failing to consider the factors related to the best interest of the child in making its child custody determination?
II. Did the trial court err in its determination of E.D.’s health insurance costs?
We answer yes to the first question and no to the second. We vacate the order of the trial court and remand for further proceedings consistent with this opinion.
BACKGROUND
Father filed a complaint for custody on January 26, 2023, and Mother filed a complaint for custody in a separate action on April 13, 2023. At Father’s motion, the cases were consolidated by way of an order entered by the clerk on June 7, 2023. In his complaint, Father requested joint legal custody and a week-on/ week-off schedule. In her complaint, Mother requested joint legal custody with tie-breaking authority and primary physical custody with access to Father.
After a series of filings by the parties, there was a pendente lite hearing before a magistrate on September 25, 2023, and the court entered a pendente lite custody order on October 6, 2023. The parties attended Alternative Dispute Resolution on October 23, 2023, which did not succeed. The court held
The parties never married, and they are the parents of E.D., who was born in February of 2018. At the time of the merits hearing, E. D. was nearing his sixth birthday. Father works as a math teacher at Robert Goddard Montessori and supplements his income with Airbnb and Turo. As a teacher, he makes about $70,000 per year, and Turo and Airbnb2 netted him $1,200 and $14,000 per year respectively. Since July of 2023, after moving out of Mother’s residence, he resides in a three-bedroom townhouse at 2622 Lewis and Clark Avenue in Marlboro, Maryland with his partner Erin Huntington and their twins, who were less than a week old at the time of the hearing. He keeps a second residence at 9111 Erfurt Court in Laurel, Maryland. Both houses are about fifteen minutes from E.D.’s school.
Mother is an assistant principal at J.P. Ryon Elementary School. She earns about $91,000 per year and works Monday through Friday from 8:15 a.m. to 3:45 p.m. Since 2016, she has resided at 6971 Walker Mill Road in Capitol Heights, Maryland. E.D. has lived in Capitol Heights his entire life, except the time spent with his father since his parents separated. E.D.’s school and activities are “19 minutes” from Mother’s home. Her job is about 30 to 40 minutes from her home.
Mother and Father’s relationship
Mother and Father dated from 2014 through 2021 and cohabitated for about six years. Father stated that the relationship “just ran its course” around July of 2022 because the parties “weren’t seeing eye to eye.” Mother stated it ended in September 2021 because of “a lot of infidelity” and “a few incidents of abuse.” She identified one event in 2018 when Father “chased [her] down the hallway,” and though she was “able to get the door closed,” despite E.D. being asleep on the bed, “Mr. Drewery punched a hole through the door.” Then, in 2021, after an incident where Father “hit [Mother] in the face and slammed [her] on the bed in front of [E.D.],” she began “repeatedly asking Mr. Drewery to move out, . . . which he refused for a year.”
Summary of prior custodial arrangements
The original custody agreement between Mother and Father was 50/50, with Father caring for E.D. on Mondays and Wednesdays, Mother on Tuesdays and Thursdays, and weekends alternating. Father testified that the arrangement initially involved him “picking [E.D.] up and taking him to school every morning” regardless of whose day it was. Later, Mother’s parents took E.D. to school whenever he was with her. Father stated that all of the “back and forth” in the wake of their relationship provided for communication issues.
Generally, Father and Mother would exchange E.D. at school, but pick-ups and drop-offs also occurred at Royal Farms or Wawa near Mother’s house or at the Gold’s Gym in Bowie, which the parties considered a middle location. Father stated that he abided by the custody schedule and compromised with Mother on various occasions, like vacations, family reunions, and work, but that she did not return the favor. On November 28, 2023, Mother told Father that she needed to meet 35 minutes early to exchange E.D.; Father described these requests as happening “pretty often.”
As a result of the pendente lite order, Father and Mother switched to a “2/2/5” schedule where one parent cared for E.D. on Monday and Tuesday, the other took Wednesday and Thursday, and responsibility alternated each weekend. That agreement continued until the hearing in January 2024. Father requested, and the judge ordered, that the parents communicate using the OurFamilyWizard parenting app. Father said that after using the app, “things ha[d] gotten a little better.” He admitted that he had not been responding to all the messages Mother sent him but claimed they did not all need a response. For Father, the arrangement had “ups and downs as far as . . . clothing, exchanging clothes, and location on pickups . . . when the child is not in school.” Mother described the state of affairs under the pendente lite order as “up and down” due to “a lack of communication.” She stated that communicating with Father is “draining” because “he’s responsive when it’s an argument, but when we’re trying to solve something, he does not respond.” She said that the communication issues prevent her from being able to plan E.D.’s schedule.
At one point, Father asked when the parties could sign up for a parenting app and commit to writing their tentative agreement to a week-on/week-off custody arrangement. Mother replied, “I’m never putting in writing shit you come up with on some app you found from someone. Try again.” She then challenged Father, “Take me to court.” Father said that Mother’s threats to sue for custody had a negative impact on their ability to communicate regarding E.D.’s care.
School
E.D. is a kindergartener at Robert Goddard Montessori, which he has attended for three years. Neither Mother’s nor Father’s residences are in the school zone for E.D.’s school, but the Laurel home, which Father leases but does not occupy, is. E.D.’s attendance of Robert Goddard concerns Mother. She worries that E.D. may enroll only on special permission due to Father’s employment there, and that if Father were to leave,
E.D. would be out of zone and have to attend a different school. Father contends he maintains the Laurel address both because it is a three-year lease and because it is in the school’s zone, so it allows E.D. to continue there. Mother noted that the school has her address listed as E.D.’s residence.
Expenses and activities
Father testified that when E.D. is in his care, he covers all expenses, including “clothing, supplies, shoes, transportation, activities, [and] health insurance,” as well as “daycare, medicine, and stuff for his room.” Father said that he has reimbursed Mother for various things. He submitted annotated lists of money transfers ranging mostly from $20 to $100 made to Mother since 2019 that were mostly for “daycare” and “groceries.” Mother explained that many payments were for portions of a house bill: for example, “if we had a . . . grocery bill of $200, he would provide $40,” and that the money Father sent her was for his groceries, not for hers or E.D.’s.
Mother stated that she pays for all of E.D.’s extracurricular activities, including swimming, t-ball, and soccer, but that Father contributed half of the cost for football and basketball; they have had “quite a few disagreements” on things like devices, clothing, and scheduling; that she takes E.D. to the majority of his practices, but that Father began to take him to football and to a couple weeks of t-ball in June of 2023; that she plans all of E.D.’s special events, including birthday parties and his baptism; that they had collaborated on some Christmas gifts, but that until Father provided $7.50 towards a copay in December of 2024, he had provided nothing otherwise.
Regarding football: according to Father, Mother was hesitant about E.D. starting football because she wanted him to be consistent with soccer, which he had played the previous year. Mother did allow E.D. to play football after Father explained that soccer was a two-season sport, meaning that he could continue when football ended, and that playing diverse sports would make E.D. a better overall athlete. Father said that Mother gave permission for E.D. to register for football after the registration date passed, but Father brought E.D. to the first practice, and after Mother spoke to the coach, who was a childhood friend, the football league let E.D. register. Father stated that football was good for E.D. because he started the season out shy but made new friends. Mother stated that she became aware of the football registration after Father sent her a text informing her that E.D. was registered and that he had a great first practice.
There were disputes as to who would claim E.D. and his expenses on their taxes. Mother had claimed the child tax credit since E.D. was born. She said that Father had begun to feel entitled to some of the money from the child tax credit because he started to contribute nominal amounts to E.D.’s upbringing. Mother stated that during 2023, dentists discovered many cavities in E.D.’s mouth and he required four dental procedures. Father did not contribute anything to the costs, which were over $1,000, and told mother that the money needed to come out of the “tax money,” but Mother did not know what that referred to. Father stated that he told Mother to “get the
taxes that she filed without the permission of the father.” He explained that Mother would file taxes and they “would split the childcare aspect of the taxes.” But since they lived apart, “she filed the taxes without [his] knowledge.”
Healthcare and doctors’ appointment
Father testified that although he has been to some of E.D.’s doctors’ appointments, it is typically Mother’s responsibility because she handles scheduling. He stated that he wants to “have input” and “to be in communication” so that they can make joint decisions. On cross examination, Father admitted that the last time he took his child to an appointment was to the dentist in September of 2023, and before that was the dentist in September of 2022. Mother testified that she takes E.D. to all of his appointments and could only recall two that Father had taken him to since 2018. She stated that she sends Father all of the scheduling information in writing the day she receives the information, but that Father typically does not respond, even after follow-up. Father’s unresponsiveness resulted in Mother’s cancelling appointments to avoid being charged for no-shows. She resorted to scheduling all of E.D.’s doctors’ appointments on her days.
Father stated that both parents provide health insurance for E.D. He claimed that he pays “about $508” for insurance through Kaiser Permanente and that his son’s portion is “about $276,” but provided evidence that contains neither of those numbers.3 He stated that he began including E.D. on his Kaiser Permanente policy in January of 2024 because he “wanted all of his kids to be on the same insurance.” Prior, Mother paid for E.D.’s health insurance and did not ask for contributions from Father. Mother stated that she pays all the copays, but that Father, in December, provided half a copay. She also stated that she pays $230 per month for E.D.’s health insurance, has done so his entire life, and that Father has never contributed.
Summer Camp
The parties disagreed about a summer camp that E.D. attended in 2022. According to Father, at Father’s sister’s recommendation, the parties agreed to send E.D. to the camp and to each cover a certain amount of two-week sessions, but Father ended up paying for all of the sessions. Father described E.D. as initially thrilled about camp, but said that after a stay with his mother where she decided unilaterally that he was not to go to the camp, E.D. became less enthusiastic. Father took issue not only because he felt the camp, which he paid for, was educational, entertaining, and good for E.D., but because it was supposed to function as a no-interaction exchange site. Mother testified that she and Father “had preliminary discussions about the camp” where he provided her the brochure. She said that they “never came to an agreement on payment . . . because [they] weren’t even in agreement on the sessions that E.D. would attend.” Mother explained that as an assistant principal, she has summers off, so she was working from home. At some point, Mother learned that Father agreed to pay for all the sessions. Regarding E.D.’s not attending summer
camp, Mother explained that she kept him home because of a field trip and that she informed Father of the situation but that he was unresponsive.
Relationship with E.D.
Father described his relationship with his son as “very good.” He stated that E.D. is “very attached, very playful, [and] very energetic,” and that they “do a lot of activities together.” Father coached E.D.’s football team. E.D.’s typical day at his father’s house includes waking up, brushing his teeth, calling his mother, eating breakfast, going to school, coming home, doing homework, going to the kids’ club at the gym, and getting into bed around 8:30.
Mother described E.D. as brilliant, amazing, smart, attentive, considerate, respectful, and happy. She said that he loves food and making people laugh and that he’s a “really good kid.” She is “really close” with E.D. They bond over board games and cooking. They “spend a lot of time in the kitchen and [they] talk.” Mother described E.D.’s relationship with his father as “playful.”
Kimberly Brandy, Father’s mother, testified that Father’s parenting style is loving and patient and said Mother was a good parent. Although she and Mother had argued in the past, Ms. Brandy prayed for Mother and Father to be able to coparent without drama.
Parties’ support systems
Father stated that he sometimes leaves E.D. in the care of his mother, his brother and his brother’s wife, or his partner. He described E.D.’s relationship with his family as “very strong, well loved,” and said that since they spoil him, E.D. asks to go see them all the time. Father’s mother took care of E.D. while Father’s other children were being born, and said that E.D. displayed no signs of distress and rather was excited about having a brother and sister. E.D. is able to communicate with his mom through his iPad when he is with his grandmother. Father stated that his family members only watch E.D. “sparingly.” Mother was not concerned necessarily about Father’s family caring for E.D., but she worried that he would spend too much time “consecutively . . . between [Father’s] mother’s house and [Father’s] brother’s house.” She stated, “It’s not that I don’t want him to spend time with them. It’s the amount of consecutive time that he spends where he’s in their care and not in Mr. Drewery’s care.” She said that Father’s family wouldn’t harm E.D., but that they don’t communicate with her.
Mother testified that her support system is her immediate family, including her mother, her father, and her brother, and that she has a pretty large family that lives fairly close to her. She stated that her parents do pick-up and drop-off on her days, and that a cousin sometimes steps in. Father has no problems with E.D. being with Mother’s support system.
Electronic device disagreements
Problems arose regarding E.D.’s electronic devices around July of 2023. Father became aware that Mother had placed AirTags in E.D.’s backpack without Father’s knowledge,
which caused Father to believe Mother was trying to track his whereabouts using the AirTags and E.D.’s iPad. The parties seem to agree that as a result, E.D. would have a separate iPad for each house. Father described an event where Mother tried to throw E.D.’s iPad and cell phone into Father’s car. After Father placed them on the ground, Mother “tried to scream that [Father] was cussing at her and trying to pull off on her.” Father did not want E.D. to have a cellphone because he didn’t think that a five-year-old needed one.
Mother testified that she placed the AirTag in E.D.’s backpack after, in the summer of 2023, following a t-ball game, E.D. “was placed into an Uber with two other minors.” She stated that she attempted to address the issue with Father, but that he was unresponsive. As to the incident that Father described, Mother told another story. She said that although E.D. had had the same iPad since 2020, Father decided that he didn’t want him to have the iPad, so Mother tried to send E.D. off with a phone. Mother didn’t have any contact information for the second iPad, and her only way to contact E.D. was through the phone or the original iPad. Mother said that when Father picked up E.D., he “threw the phone out of the car” and sped off, having “pointed his fingers in [Mother’s] face.”
Father said that Mother accuses him of preventing E.D. from calling her and interfering with the calls, but that the interferences result from occurrences like E.D. asking for breakfast during the call. Father stated that although the order from the pendente lite hearing is for both parents to have communication, he has “probably received maybe three phone calls since the order was put in place.” Mother said that Father can call E.D. when he likes. She stated that prior to the pendente lite hearing, she had trouble contacting E.D. in the morning and that when they would connect, he would seem distracted by his father or others talking to him. She said the problems substantially abated since the pendente lite hearing, but also addressed problems with Father through OurFamilyWizard on November 3, 2023, a month after the hearing, messaging, “Good morning. To date, I have three occurrences of you or others interfering with my access phone calls with Eric. Per the temporary order that should not take place.”
Parties’ custody requests
Father requests joint legal custody and a week-on/week-off schedule for physical custody. He thinks this schedule would give E.D. more time to spend with each family, including his brothers and sisters. It would reduce communication conflict by being less constrictive and requiring fewer exchanges. Father testified that Mother did not want to commit to weekon/week-off because she didn’t want her parents to have to take E.D. to and from school. Father testified, “growing up, my father wasn’t present in my life and the man that was my stepfather passed away. So I just wanted to, you know, I vowed to make sure that I was always in my son’s life and that’s why I’m here.” He stated that he has no concerns about Mother’s ability to care for their son, but her aggression and anger made communication difficult, especially when plans do not go as Mother expects them to.
Mother requested joint legal custody with tie-breaking
authority and primary physical custody with reasonable access to Father on the weekends. She based this on her history of having to make decisions without support from Father, whom she stated was often non-responsive, unwilling to collaborate, and argumentative. She pointed to a seven- month period in 2018 and 2019 where Father was basically absent from E.D.’s life. Mother said she would not entrust Father with E.D.’s safety and health.
Resolution of Hearing
Towards the end of the hearing, which ran longer than intended, counsel for Mother moved to submit written closings or to postpone closing arguments. The following conversation then took place:
THE COURT: No, you don’t have to do a closing.
[COUNSEL FOR APPELLEE]: We don’t have to do a closing?
THE COURT: You don’t have to. The Court is pretty much understanding (indiscernible) both parties are doing very good at (indiscernible) the parties are requesting access, financials. So if you want to finish up and (indiscernible) take about a couple of minutes (indiscernible). (Indiscernible).
[COUNSEL FOR APPELLEE]: (indiscernible)? Okay. Then I believe (indiscernible).
[COUNSEL FOR APPELLANT]: No, I never know. I get—
THE COURT: No, I understand. But yet, I can, you know, I can (indiscernible) process these things very quickly. (indiscernible) All right?
After Mother’s counsel proceeded with redirect examination, and the court asked Mother a short series of questions, it made the following ruling:
THE COURT: All right. So we’re here on the gentleman’s complaint for custody as well as the lady’s complaint of custody. Both cases have been consolidated on the current case number. I’ve been able to judge both the demeanor and credibility of the parties as well as their witnesses. And based on their testimony, although the parties have what could be referred to as a tumultuous relationship, the Court believes that its [sic] in the best interest of the minor child that they be awarded joint legal custody and share physical custody, with primary residential custody granted to the defendant during the school year, with the gentleman having access.
The court detailed the custody arrangement, and then went on:
THE COURT: The parties’ communication will continue in the OurFamilyWizard app. Phone calls will only be made in case of emergency or if a party is running late for a drop off or pickup. The parties will refrain from using any disparaging language about the other party in front of the minor child, and will make at least a good faith effort to prevent others from making such remarks in the presence of the minor child.
And to be clear, the parties will consult each other on all major decisions involving the child including, but not limited to, decisions regarding medical treatment, education, religious upbringing, and shall attempt to reach
With regard to child support, based on the gentleman’s resources of income, the $14,000 earned from the Airbnb, the $1,200 earned form Turo, and his salary of $70,000 and with the lady indicating she had a salary of $91,000, the recommended support giving the lady credit for health insurance.
I’ve not given the gentleman credit for health insurance, the lady has been providing insurance for the minor child and has done so for the entirety of the child’s life. There’s no indication that the gentleman’s been denied an access or use of that insurance, so I am going to give the lady credit for these calculations of $230 towards that. E-211.
Father’s counsel contested the inclusion of the $230 on grounds that there was no proof. The court responded:
THE COURT: Well, [Mother has] testified to the amount and by all indications she has been providing such for the minor child. The gentleman agreed. And the Court finds the lady’s testimony sufficient for these calculations.
She indicated the exact amount just for the child, not including her, was $230, and the Court has used that in its calculations.
After providing Father credit for 117 overnights, the court awarded Mother $628 in child support based on the shared custody model.
Additional facts will be supplied as necessary.
DISCUSSION
The child custody determination challenge
Father first contends that the trial court abused its discretion by awarding primary physical custody to Mother without considering any of the factors related to the best interests of the child. He argues that he presented a variety of reasons to grant coequal physical custody of the child, but that the court failed to consider the precedential factors related to child custody decisions, and instead awarded primary physical custody to Mother and minimal visitation to Father without any basis for its decision. Father argues that the deviation from the status quo was an abuse of discretion. He also points out that the court granted primary custody to the parent with less time to spend with the child and that the court refused to grant tiebreaker authority to either parent despite its acknowledgement of the couple’s communication problems.
Mother responds that the court indicated it considered the best interest of the child after observing the demeanor and credibility of the parties and describing the relationship as “tumultuous.” She states that no case law supports the proposition that the court should honor the “status quo.” She argues that since the court’s decision was not one that no reasonable person would adopt, the court did not abuse its discretion.
The Supreme Court of Maryland ruled in Taylor v. Taylor, 306 Md. 290 (1986), and reiterated in Santo v. Santo, 448 Md. 620, 639 (2016), that in child custody cases “a trial court should carefully set out the facts and conclusions that support the
solution it ultimately reaches.” The trial court failed to consider the factors relevant to the best interest of the child and its decision does not appear to be supported by the facts on the record. We vacate the decision of the trial court and remand for further proceedings consistent with this opinion.
The standard of review
We apply three interrelated standards of review to child custody orders. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012) (citing In re Yve S., 373 Md. 551, 586 (2003)). Scrutinizing factual findings, the clearly erroneous standard of Rule 8-131(c) applies. Id. “[I]f 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.” Id. As to an “ultimate conclusion” founded upon sound legal principles and factual findings that are not clearly erroneous, we disturb only for abuse of discretion. Id. Since the trial court “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.” Id. at 171 (quoting In re Yve S., Md. at 586). Judicial discretion is “a composite of many things,” including “conclusions which are drawn from objective criteria” and “sound judgment exercised with regard to what is right under the circumstances.” Gunning v. State, 347 Md. 332, 352 (1997). “Abuse” arises when discretion exercised is “manifestly unreasonable, . . . on untenable grounds, or for untenable reasons.” Id. Further:
A proper exercise of discretion involves consideration of the particular circumstances of each case. As Chief Judge Bond observed in Lee v. State, 161 Md. 430, 441 (1931), “the discretion being for the solution of the problem arising from the circumstances of each case as it is presented, it has been held that the court could not dispose of all cases alike be a previous general rule.” Hence, a court errs when it attempts to resolve discretionary matters by the application of a uniform rule, without regard to the particulars of the individual case.
Id.
The best interest standard
“Child custody and visitation decisions are among the most serious and complex ndecisions a court must make, with grave implications for all parties.” Gizzo v. Gerstman, 245 Md. App. 168, 199 (2020) (quoting Conover v. Conover, 450 Md. 51, 54 (2016)). In Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, we lamented that “there is no such thing as ‘a simple custody case’”, they “are like fingerprints because no two are exactly the same.” 38 Md. App. 406, 414 (quoting Mullinix v. Mullinix, 12 Md. App. 402, 412 (1971)). We echoed Justice Bernard Botein’s declaration that “[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders.” Sanders, 38 Md. App. at 414 (quoting Justice Bernard Botein, Trial Judge 273, Simon & Schuster (1952)).4
Custody has legal and physical components:
Legal custody carries with it 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. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.
Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality “shared” or “divided” custody. Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.
Taylor, 306 Md. at 296-97 (footnotes and citations omitted). “Proper practice in any case involving joint custody dictates that the parties and the trial judge separately consider the issues involved in both joint legal custody and joint physical custody, and the trial judge state specifically the decision made as to each.” Id. at 297.
The court’s primary objective in any custody case is to determine what arrangement serves “the best interests of the child.” Gizzo, 245 Md. App. at 199. “Rights of father and mother sink into insignificance before that.” Ross v. Hoffman, 280 Md. 172, 176 (1977) (quoting Kartman v. Kartman, 163 Md. 19, 22 (1932)). Since the best interest of the child is “of transcendent importance” and “the sole question,” it is “not considered as one of many factors, but as the objective to which virtually all other factors speak.” Taylor, 306 Md. at 303. “Assessing the child’s best interest requires the court ‘to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.’” Gizzo, 245 Md. App. at 199 (quoting Domingues v. Johnson, 323 Md. 486, 499 (1991)). The challenge is heightened when neither parent is unfit, Bienenfeld v. Bennett-White, 91 Md. App. 488, 503 (1992), because “[i]t may well be that no matter what the ultimate decision, an injustice to at least one of the parties will occur.” Hadick v. Hadick, 90 Md. App. 740, 745 (1992).
Our Supreme Court warned that “[f]ormula or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made.” Taylor, 306 Md. at 303. Child custody determinations proceed “by careful examination of facts on a case-by-case basis.” Bienenfeld, 91 Md. at 503. “Present methods for determining a child’s best interest are time-consuming, involve a multitude of intangible factors that ofttimes are ambiguous.” Sanders, 38 Md. App. at 419. “There can be very little constructive or useful precedent on the subject of custody determinations, because each case must depend upon its unique fact pattern.” Id.
Over the last century, this Court and the Supreme Court of Maryland have developed a “non-exhaustive delineation
of factors a court must consider when making custody determinations.” Azizova v. Suleymanov, 243 Md. App. 340, 345 (2019); see e.g, Taylor, 306 Md. at 308-11; Sanders, 28 Md. App. at 420. In Azizova, we reproduced the consolidation from Fader’s Maryland Family Law:
(1) The fitness of the parents;
(2) The character and reputation of the parties;
(3) The request of each parent and the sincerity of the requests;
(4) Any agreements5 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,6 relatives, and any other person who may psychologically affect the child’s best interest;
(7) The age and number of children each parent has in the household;
(8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
(9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;
(10) The geographic proximity of the parents’ residences and opportunities for time with each parent;
(11) The ability of each parent to maintain a stable and appropriate home for the child;
(12) Financial status of the parents;
(13) The demands of parental employment and opportunities for time with the child;
(14) The age, health, and sex of the child;
(15) The relationship established between the child and each parent;
(16) The length of the separation of the parents;
(17) Whether there was a prior voluntary abandonment or surrender of custody of the child;
(18) The potential disruption of the child’s social and school life;
(19) Any impact on state or federal assistance;
(20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child;
(21) Any other consideration the court determines is relevant to the best interest of the child.
243 Md. App. at 345-46 (quoting Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(a), at 5-9 to 5-11 (6th ed. 2016)); cf. Reichert v. Hornbeck, 210 Md. App. 282, 305 (2013) (“Courts are not limited or bound to consideration of any exhaustive list of factors in applying the best interests standard, but possess a wide discretion concomitant with their ‘plenary authority to determine any question concerning the welfare of children within their jurisdiction[.]’” (quoting Bienenfeld, 91 Md. App. at 503)). Further factors are “encouraged” for consideration:
(1) the ability of each of the parties to meet the child’s developmental needs, including ensuring physical safety; supporting emotional security and positive self-image; promoting interpersonal skills; and promoting intellectual and cognitive growth;
(2) the ability of each party to meet the child’s needs
regarding, inter alia, education, socialization, culture and religion, and mental and physical health;
(3) the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties;
(4) the history of any efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent;
(5) any evidence of exposure of the child to domestic violence and by whom;
(6) the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties;
(7) the ability of each party to co-parent the child without disruption to the child’s social and school life;
(8) the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and
(9) the child’s possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child.
Azizova, 243 Md. App. at 346-47.
The “status quo”7 is only a relevant factor in a custody determination insofar as it bears upon the maintenance of some particular arrangement related to a factor that the court determines is in the best interest of the child. See Gillespie, 206 Md. App. at 171 (“[I]n the ‘best interest’ determination, . . . the question of stability is but a factor, albeit an important factor, to be considered.” (quoting McCready v. McCready, 323 Md. 476, 482 (1991))); Conover v. Conover, 450 Md. 51, 85 (2016) (holding that de facto parents have standing to contest custody or visitation and “allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships”).
We note that the role the “status quo” serves in the “final” custody determination following a merits hearing should not be confused with its effect on a pendente lite determination or in a petition for a change of custody. Since a pendente lite order serves to “provide some immediate stability pending a full evidentiary hearing” and prevent further trauma to the child from “the separation that engenders the dispute,” “to the extent possible, the courts look to avoid any further unnecessary immediate disruptions in the child’s life.” Frase v. Barnhart, 379 Md. 100, 111 (2003). But a “pendente lite order is not intended to have long-term effect and therefore focuses on the immediate, rather than any long-range, interests of the child.” Id. “As a result, . . . it does not bind the court when it comes to fashioning the ultimate judgment.” Id. Thus the status quo does figure more prominently in a pendente lite analysis than in any other custody order, but with an eye only toward providing or maintaining the child’s immediate stability in light of the impermanence of the order and the dearth of
facts before the court, and the pendente lite order holds no import in any subsequent decision of the court. Required for a change of custody, on the other hand, is a change in conditions affecting the welfare of the child, and the reason for the rule is that “the stability provided by a 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.” Johnson v. Domingues, 82 Md. App. 128, 133 (1990), rev’d on other grounds, Domingues v. Johnson, 323 Md. 486 (quoting Levitt, 79 Md. App. 394, 398 (1989)). The court does not maintain the status quo of itself, but rather the conditions which are beneficial to the child. And the showing of a change in circumstances also serves to prevent a “disappointed parent” from “relitigat[ing] questions of custody endlessly upon the same facts.” McCready, 323 Md. at 481. Pendente lite and change in custody analyses both warrant consideration of the “status quo” of a child’s custody arrangement serving both substantive and procedural ends that are not relevant in an initial “final” custody determination. See Frase, 379 Md. at 112 (“Because the court retains continuing jurisdiction over the custody of minor children, no award of custody or visitation, even when incorporated into a judgment, is entirely beyond modification, and such an award therefore never achieves quite the degree of finality that accompanies other kinds of judgments.”).
Generally, no one factor is determinative, but sometimes certain factors are more useful. For example, while “the ‘capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare’ is relevant to a shared physical custody analysis, it is especially important in determining whether joint legal custody is appropriate.” Jose v. Jose, 237 Md. App. 588, 601 (2018) (citing Taylor, 306 Md. at 304). We use this principle because: When the evidence discloses severely embittered parents and a relationship marked by dispute, acrimony, and a failure of rational communication, there is nothing to be gained and much to be lost by conditioning the making of decisions affecting the child’s welfare upon the mutual agreement of the parties. Even in the absence of bitterness or inability to communicate, if the evidence discloses the parents do not share parenting values, and each insists on adhering to irreconcilable theories of child-rearing, joint legal custody is not appropriate.
Id. at 601 (quoting Taylor, 306 Md. at 305). Our Supreme Court cautioned that “[t]o elevate effective parental communications so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex and holistic task.” \ 448 Md. 620, 629 (2016). However, “‘[r]arely, if ever,’ is a joint legal custody award permissible, . . . ‘and then only when it is possible to make a finding of a strong potential for such conduct in the future.’” Id. at 620 (quoting Taylor, 306 Md. at 304); cf. Kpetigo v. Kpetigo, 238 Md. App. 561, 585 (2018) (“Although often preferable to vesting sole legal custody in one parent, joint legal custody can be challenging . . .”).
Rule 2-522(a)
Rule 2-522(a) prescribes that “[i]n a contested court trial, the judge, before or at the time judgment is entered, shall
prepare and file or dictate into the record a brief statement of the reasons for the decision and the basis of determining any damages.” We explained that “a trial court is not required to articulate each step in its thought process,” Prahinski v. Prahinski, 75 Md. App. 113, 136 n.6 (1988); and that “[a] judge is presumed to know the law and to properly apply it,” Campolattaro v. Campolattaro, 66 Md. App. 68, 80 (1986); but that though factual and legal findings may be “spare,” they may not be “so summarily articulated as to prevent us from adequately assessing the cogency of [the court’s] conclusion or the reasonableness of its remedy.” Patriot Cons., LLC v. VK Electrical Servs., LLC, 257 Md. App. 245, 270 (2023). The rule requires that a court’s opinion “should reflect consideration of the relevant issues and the reasoning supporting the [court’s] independent decisions on those issues.” Kirchner v. Caughey, 326 Md. 567, 573 (1992).
“At minimum, [Rule 2-522(a)] mandates that the court state an objective to be served . . . and then detail the facts furthering the objective.” Boswell v. Boswell, 352 Md. 204, 223 (1998). Since the “resolution of a custody dispute continues to be one of the most difficult and demanding tasks of a trial judge,” the decision “requires thorough consideration of multiple and varied circumstances, full knowledge of the available options, including the positive and negative aspects of various custodial arrangements, and a careful recitation of the facts and conclusions that support the solution ultimately selected.” Taylor, 306 Md. at 311; see also Boswell, 352 Md. at 223 (stating custody disputes require “findings of fact in the record stating the particular reasons for [the court’s] decision”). If the court “does not make appropriate factual findings based on the evidence presented or relies on one factor to the exclusion of all other,” the court’s custody order is subject to reversal. Boswell, 352 Md. at 224. The requirement that “a trial court should carefully set out the facts and conclusions that support the solution it ultimately reaches” applies especially where a court awards joint custody to parents who cannot communicate effectively. Santo, 448 Md. at 631. Reiterating Taylor, the Santo court stated that “no ‘robotic recitation that a custody award proposed by a custody court is in the “child’s best interest” serve[s] as a replacement for the serious consideration’ of the facts and circumstances of each case.” Id.
In Domingues v. Johnson, our Supreme Court observed that “a determination of custody requires an element of prediction.” 323 Md. 486 at 499. The Supreme Court further observed that a change in custody may involve a recalibration of that prediction. Id. at 500. These observations underscore the need for a trial court to undertake an analysis of the factors to be considered as the basis for its prediction of what is in the child's best interest. An analysis of the factors to determine custody informs the parties and the court of the circumstances that supports a court’s award of custody. A party seeking a change in custody can look at those factual findings to allege that there has a been a change in circumstance. Without such findings, a party might find itself in the untenable position of having to litigate matters that the court has already considered. Further, a court can look at the findings to understand the basis of any previous order.
Failure to consider the best interest factors
The following oration comprises the entirety of the trial court’s findings of fact and justification for its legal conclusions based upon the evidence presented at trial: I’ve been able to judge both the demeanor and credibility of the parties as well as their witnesses. And based on their testimony, although the parties have what could be referred to as a tumultuous relationship, the Court believes that it’s in the best interest of the minor child that they be awarded joint legal custody and share physical custody, with primary residential custody granted to the defendant during the school year, with the gentleman having access.
This summary articulation of the factual and legal conclusions does not satisfy the requirements of Rule 2-522(a) imposed in Taylor and Santo. Although the court’s description of the parties’ relationship as “tumultuous” is accurate, it does not constitute “appropriate factual findings based on the record presented” required under Boswell. If it can be argued that this statement comprises a consideration of factors related to the best interests of the child, then it fails for it “relies on one factor to the exclusion of all others.” Boswell, 352 Md. 224. Although the trial court may have considered this one factor to have been dispositive, it is necessary to consider it in light of the other factors to assure that there has been a “thoughtful, painstaking consideration of the relevant issues.” See e.g., Santo, 446 Md. at 642. Further, the record reflects that this case is one where the parents do not communicate effectively. Thus, the requirement that a trial court explain its decision to award joint custody applies in greater force.
We are cognizant of the high degree of deference shown to a trial court’s decision in a contested custody case. But given the import of the decision on both the child and the parents, in light of the declaration in Boswell that a court that does not articulate its decision leaves itself open to challenge and recognizing that a proper consideration of the facts and law in this case may lead a trial court to enter an order similar to the one we vacate, we cannot find that the trial court properly exercised its discretion. The record before us contains an imperfect but cooperative arrangement between the parents on the one hand, and many signs that the parents will be unable to communicate effectively enough to justify an award of joint legal custody without at least tie-breaking authority granted to Mother on the other.
Health insurance payments award challenge
Father next appeals the trial court’s acceptance of Mother’s unsupported testimony as to health insurance payments and rejection of Father’s testimony supported by documentation. He avers that abuse lies in the court’s decision to credit Mother and not credit Father “for no other reason than what had happened in the past” when “child support is being awarded prospectively.” Mother argues that her testimony as to her health insurance payments was uncontested and that the trial court’s decision was sound, considering that Father did not provide any reasons for providing E.D. with a second healthcare plan other than that he wanted E.D. to be on his family plan.
STANDARD OF REVIEW
Child support orders are generally “not to be disturbed unless there has been a clear abuse of discretion.” Walter v. Gunter, 367 Md. 386, 392 (2002). “As long as the trial court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm [the child support order], even if we may have reached a different result.” Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020) (quoting Malin v. Mininberg, 153 Md. App. 358, 415 (2003)).
“When the trial courts findings are supported by substantial evidence, the findings are not clearly erroneous.”
Collins v. Collins, 144 Md. App. 395, 409 (2002) (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 230(2000)).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 529-30 (2003) (quoting Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 451 (2002)).
Relevant law
A child’s parents are his “natural guardians” and owe the child a “legal, statutory obligation of support.” Walker v. Grow, 170 Md. App. 255, 265 (2006) (quoting Lacy v. Arvin, 140 Md. App. 412, 422 (2001). “A parent owes this obligation . . . to the child regardless of whether the child was the product of a marriage.” Id.
Family Law § 12-202(a)(1) contains the general rule that “in any proceeding to establish or modify child support, . . . the court shall use the child support guidelines.” A court must adhere to the schedule contained in § 12-204(e) unless the parties’ combined adjusted actual income exceeds $30,000,8 in which case the court has broad discretion to determine appropriate child support, see Ruiz v. Kinoshita, 239 Md. App. 395, 425 (2018), or where the presumption of correctness of the award in the schedule is “rebutted by evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” Fam. Law § 12-202(a)(2)(i)-(ii). We described how to use the guidelines:
[T]he court first must determine the adjusted actual income of each parent, F.L. § 12-201(d), as well as the expenses incurred on behalf of a child for work-related child care, extraordinary medical expenses, school, and transportation between the homes of the parents. F.L. § 12-204(g)-(i). The court must also make note of preexisting child support obligations actually paid, alimony awarded, and the cost of providing health insurance for a child. F.L. § 12-201(d). Having made those findings of fact, application of the guidelines is a straightforward mathematical exercise. Gates v. Gates, 83 Md. App. 661, 666-67 (1990). Reuter v. Reuter, 102 Md. App. 212, 235 (1994). Section § 12204(h)(1) requires that “[a]ny actual cost of providing health insurance coverage for a child whom the parents are jointly and severally responsible shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.”
An aggrieved party may challenge a child support award on several grounds. It may “allege the numbers obtained in
the court’s preliminary fact-finding were not supported by evidence and were clearly erroneous.” Reuter, 102 Md. App. at 235 (citing Md. Rule 8- 131(c)). It may claim “the calculations were performed incorrectly.” Id. (citing Tannehill v. Tannehill, 88 Md. App. 4, 16 (1991)). Or it may aver that the court abused its discretion by making an award inconsistent with the guidelines or that that the court failed to justify departure from the guidelines with the findings required under Family Law Article § 12- 607(a)(2). Id.
In Collins, the appellant argued that the award of $228 per month to the mother for her son’s healthcare was erroneous, considering the mother testified only to paying $40 per month. 144 Md. App. at 440. On appeal, we credited the trial court for being thorough, but we were “unable to find any evidentiary evidence to [the mother] paying $228 in conjunction with health insurance premiums,” so we remanded “for a determination on the correct amount spent . . . on health insurance premiums.” Id.
Analysis
We review the trial court’s finding as to Mother’s healthcare payments for clear error and the decision to credit Mother and not Father for abuse of discretion. The court’s findings were supported by evidence, and the court justified its decision to credit mother and not father for health insurance payments. The trial court found “sufficient” Mother’s testimony that she pays $230 per month for E.D.’s health insurance and has done so his entire life. In Collins, we found no evidentiary support for the court’s assessment of health insurance costs, and the number testified to differed from the one the court used. 144 Md. App. 440. But here, Mother attested to $230, and that is the number the court used in its calculation.
Father’s contention that his documents settle the matter fails because the documents are inconclusive of the cost of E.D.’s health insurance. He argues that his printout from the PGCPS Employee Self-Service portal and his Benefits Confirmation and Summary from the Board of Education of Prince George’s County are dispositive that he pays “approximately $276” per month for E.D.’s health insurance. We note that the trial court is not obligated to accept as true the statements contained in a piece of evidence. In any event, the documents do not state with clarity Father’s premiums; rather they show Father’s “coverage health insurance deductions” for medical, dental, and vision insurance are respectively $227.50, $23.78, and $1.80, summing $253.08. As such, they do little to prove he pays $276 per month for E.D.’s health insurance. The documents also reveal that Father selected for his policy an “Employee + 1” option and included only E.D. as a covered dependent, which contradicts his testimony that he “wanted all of his kids to be on the same insurance.” That Father’s testimony differs from his evidence in two ways provides ground for the court to find his testimony unreliable and him incredible.
In crediting Mother and not Father, the court explained that “the lady has been providing insurance for the minor child and has done so for the entirety of the child’s life.” It found “no indication that the gentleman’s been denied an access or use of that insurance.” The court’s reasoning is sound that the health insurance policy Mother provided for E.D. was satisfactory and
that Father’s purchase of a second policy would not be required prospectively. The finding of the trial court as to Mother’s payments is not clearly erroneous, and its decision to credit Mother but not Father is not arbitrary.
The vacatur of the child custody award, however, mandates the same treatment of the child support award. After making factual findings and considering them in light of the required factors, the court’s custody order may differ from its previous
one. Further, at a second hearing, the parties are likely to produce new evidence as to their current incomes and the appropriate amount for child support. A different child custody arrangement may affect the calculation of child support. Even if the order is substantially the same, other changed financial circumstances since the previous order may impact the child support calculations.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY IS VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
FOOTNOTES
1 Questions one and two have been consolidated for efficiency. The “status quo” is a factor to be considered along with the others in light of the child’s best interest.
1. Did the Trial Court Abuse Its Discretion By Failing to Consider Any of the Relevant Caselaw Factors in Its Award of Primary Physical Custody to Mother?
2. Did the Trial Court Abuse Its Discretion by Altering the Status Quo and Awarding Father Minimal Custody, Even Though the Factors Overwhelmingly Favored Him?
3. Did the trial Court Abuse Its Discretion by Accepting Mother’s Unsupported Testimony as to Health Insurance Payments but Rejecting Father’s Testimony Supported by Documentation?
2 Turo is a car sharing program. Airbnb is a short-term rental program.
3 Father provided a pay stub that indicated pre-tax deductions of $1.80 for Vision Active, $227.50 for Med Kaiser Active and $423.78 for Dental Active for the pay period running from December 16, 2023, to December 29, 2023. He did not provide a pay stub or other information that would indicate how much of the premium would be allocable to covering E.D.
5 “Prior agreements between the parties may be entitled to weight, see Breault v. Breault, 250 Md. 173, 180 (1968), but they should be considered in light of the circumstances when they were entered into along with the totality of the circumstances surrounding the requested modification.” Jose v. Jose, 237 Md. App. 588, 607 (2018).
6 “[I]t is ordinarily in the best interest of a child to be raised with his or her siblings.” Sider v. Sider, 334 Md. 512, 533 (1994) (citing Hadick v. Hadick, 90 Md. App. 740, 748 (1992)).
7 Father’s assertion that “the trial court abused its discretion by altering the custodial status quo” essentially duplicates the contentions argued in the first part of his brief and is supported by no particular cases. “It ‘is not our function to seek out the law in support of a party’s appellate contentions.’” See Collins v. Collins, 144 Md. App. 395, 438 (2002) (quoting Anderson v. Litzenberg, 115 Md. App. 549, 578 (1997)); see also Orioian v. Allstate Ins. Co., 62 Md. App. 654 (1985) (argument deemed waived because appellants cited no authority in their brief to support their position).
8 “In an ‘above guidelines case,’ considered to be one in which the parties’ combined adjusted income exceeds $15,000 per month—the highest level of income specified in the child support guidelines set out in F.L. § 12-204(e)— the trial court enjoys significant discretion in determining the amount of the basic child support award.” Ruiz v. Kinoshita, 239 Md. App. 395, 425 (2018) (citing Karanikas v. Cartwright, 209 Md. App. 571, 596 (2013)). The guidelines were amended in 2020, effective October 1, 2021, with a new schedule that provided guidance for parties with significantly higher combined income than before. 2020 Maryland Laws Ch. 383 (H.B. 946).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s order changing the children’s permanency plans away from reunification with mother, after she pleaded guilty to first-degree child abuse resulting in severe physical injury and was incarcerated.
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.
Preliminarily, the Department moves to dismiss Ms. M.’s challenge to the constitutionality of the waiver, i.e., Ms. M.’s first question, arguing that the waiver is neither a final judgment nor the kind of order that warrants an interlocutory appeal. The children do not move to dismiss this portion of Ms. M.’s appeal but offer the same argument, i.e., that the waiver is not appealable, as a basis for denying Ms. M.’s constitutional challenge.
We disagree with the Department and the children that the waiver is not appealable. Nonetheless, we decline to reach Ms. M.’s first question because the constitutional challenge Ms. M. raises to the waiver is not preserved. On Ms. M.’s second question, we answer “no” and affirm the judgment of the juvenile court.
The Circuit Court for Baltimore County, sitting as a juvenile court, adjudicated L.R., M.B., and K.B. (“the children”)1 in need of assistance (“CINA”) after ten-year-old
L.R. suffered severe burns2 at home and did not receive necessary medical treatment for two-and-a-half months. In the home at the time were Ms. M. (the children’s mother) and Mr. B. (the father of M.B. and K.B.). The children were then committed to the Department of Social Services (“DSS” or “the Department”), where they remained, while the Department fulfilled its statutory obligation to make reasonable efforts toward reunifying them with Ms. M.
More than four years after the burns, and as a result of them, Ms. M. and Mr. B. were convicted of first-degree child abuse of L.R., resulting in severe physical injury. Mr. B. was convicted by way of a jury verdict, while Ms. M. pled guilty. For these convictions, Mr. B. and Ms. M. received prison sentences. Following Ms. M.’s guilty plea, the Department moved for waiver of its reasonable-efforts obligation and eventually recommended that the children’s permanency plans be changed away from reunification with Ms. M. The juvenile court granted the Department’s waiver motion (“waiver”) and changed the children’s permanency plans as the Department recommended. Ms. M. then noted this timely appeal.3 Here, Ms. M. presents multiple questions for our review,4 which we have consolidated as follows:
1. Did the juvenile court violate Ms. M.’s constitutional rights when it waived DSS’s obligation to provide reasonable efforts to reunify her with M.B., K.B., and L.R. solely on the basis that she pled guilty to first-degree child abuse of L.R.?
2. Did the court err or abuse its discretion when it changed M.B.’s. K.B.’s, and L.R.’s permanency plans away from reunification with Ms. M.?
FACTUAL AND PROCEDURAL BACKGROUND
The children came to the Department’s attention on September 4, 2019, when it received a report that L.R., a thenten-year-old who has autism and is non-verbal, had
“profound burns” on her chest and back. At the time, L.R. lived with her mother, Ms. M., her stepfather, Mr. B., and her half siblings, M.B. and K.B. Ms. M. and Mr. B each blamed the other for causing L.R.’s injuries. But both admitted L.R. had not received medical care for her injuries in the two-and-a-half months after she sustained them.
L.R.’s father, Mr. S., had visited L.R. in late August 2019, saw her burns, but did not seek any medical care for her. As a consequence, the Department removed L.R., M.B., and K.B. from the home and petitioned that they be sheltered and adjudicated children in need of assistance.
In February 2020, the children’s cases came before the juvenile court for adjudication and disposition on the Department’s amended CINA petitions. By that time, Mr. B. and Ms. M. had been indicted for first-degree child abuse of L.R., resulting in severe physical injury, among other charges, and were being held pretrial. Before the juvenile court, Ms. M. neither admitted nor denied the alleged facts but agreed that the Department could prove them. The juvenile court then sustained the allegations and, moving to disposition, found all three children to be in need of assistance.
Respondent [L.R.] is autistic and non-verbal; she sustained extensive intentional [second-] and [third-] degree burns of at least 25% of her body when she received a severe hot water burn in June of 2019. No medical care was sought for her until CPS became involved in September[] 2019. The burns and lack of treatment have resulted in permanent scarring and disfigurement. [Ms. M.], mother of the Respondents,
blames [Mr. B.], father of [M.B.] and [K.B.], for causing the injuries and [Mr. B.] claims [L.R.] was in the care of [Ms. M.] when the injury occurred. Neither sought medical attention for her. [Mr. S.]. father of [F.S. and L.R.], claims he became aware of the injuries in late August, but thought that she had received medical treatment. He is transient and unable to care for the children. Both [Mr. B.] and [Ms. M.] have been indicted on first[-]degree child abuse charges and are incarcerated.
The juvenile court also committed the children to the care and custody (and limited guardianship) of the Department.5 The court did not permit Ms. M. to visit the children, but indicated it would reconsider the matter after Ms. M’s release.
Thereafter, and while Ms. M.’s and Mr. B’s criminal cases were pending, Ms. M. made some progress toward reunification. In July 2020, she was released from pretrial incarceration on bail. Thereafter, she maintained contact with the Department, had visits with the children, attended school meetings, completed parenting classes, and engaged in mental health services.
On May 26, 2023, the Department moved for waiver of its obligation to provide further reasonable efforts toward the children’s reunification with Ms. M.6 This followed Ms. M.’s January 2023 guilty plea to first-degree child abuse of L.R., resulting in severe physical injury. Relying on Sections 3-812(b) (2) and (d) of Maryland’s Courts & Judicial Proceedings Article (“CJP”),7 the Department argued that waiver was mandatory if the juvenile court were to find, by clear and convincing evidence, that Ms. M. had been convicted of first-degree child abuse resulting in severe physical injury. Ms. M.’s sentencing (scheduled for July 28, 2023, at the time the Department filed the motion) was subsequently postponed.
On September 15, 2023, the cases came before a magistrate for a permanency plan review hearing. According to the Department’s September 3, 2023 Report, M.B. and K.B. had been in their current foster home since January 28, 2022, felt safe there, were enjoying it, and had bonded with their foster parents. They felt close to F.S. and continued to visit with L.R. They were in good health and continued to address their mental health issues through therapy and medication. L.R. had been in a medical-level group home, which was age-appropriate with all-female peers, since August 25, 2022. She appeared happy there, interacted with the others, and had a one-on-one staff member to assist her with the activities of daily living. She was receiving medication for mental health issues. Ms. M. was reported to have had another child in December 2022. She continued to visit M.B., K.B., and L.R., to have consistent contact with the Department about them, and to participate in meetings about them. She wanted the Department to look into placing M.B. and K.B. with friends and relatives and provided their names to the Department.
Based on the evidence before him, the Magistrate recommended that M.B.’s and K.B.’s permanency plans be changed from reunification to a concurrent plan of reunification and adoption by a non-relative. He also declined to recommend that Ms. M. have unsupervised visits with the children. Ms. M. noted exceptions to the Magistrate’s recommendation, challenging the recommended plan change and the fact that visitation was recommended to be supervised going forward.
In December 2023, Ms. M. was sentenced to 20 years’ imprisonment, with all but five years suspended, for firstdegree child abuse of L.R., resulting in severe physical injury. That same month, Mr. B. was found guilty by a jury of the same charge. In January 2024, he was sentenced to 25 years in prison.
On March 7, 2024, the cases came before the juvenile court for hearing on the Department’s waiver motion, Ms. M.’s exceptions from the September 15, 2023 permanency plan review, and to again review the children’s permanency plans.8 The juvenile court took these matters up one by one.
With regard to its waiver motion, the Department argued that granting it was mandatory. Citing CJP § 3-812, the Department explained that a local department may ask that its obligation to make reasonable efforts toward reunification be waived if a parent has been convicted of a crime of violence against the child or any other minor child of the parent. It added that child abuse in the first-degree is a crime of violence. It concluded that because Ms. M. had been convicted of firstdegree child abuse of L.R., resulting in severe physical injury, the court should waive the Department’s obligation to make efforts toward reunifying M.B., K.B., and L.R. with Ms. M.
In opposition, Ms. M. (through counsel) mentioned, but did not elaborate on, the constitutionality of the statute on which the Department relied for relief.
[MS. M.’S COUNSEL]: Okay. So, I’m going to start with what I always start with. I think it’s unconstitutional to not make efforts to place a child back with a parent. But as a practical matter, so long as my client is incarcerated, the Department is making -- there’s no efforts the Department can really make, so long as she is incarcerated.
Later, after the children (through counsel) agreed with the Department, the juvenile court asked Ms. M.’s counsel more about her position.
[THE COURT]: Okay. And, [Ms. M.’s counsel], what part of the Constitution is violated, in your opinion?
[MS. M.’S COUNSEL]: I believe the Constitution, just generally, says the parents have a right to raise their children, unless there’s some extraordinary reason why not.9 In granting the waiver request, the juvenile court noted that Ms. M. had not identified any constitutional right that was being violated by it.
[THE COURT]: I do find that there -- and I have not been presented with a specifical [sic] Constitutional element that would preclude this, but I do not think this rises to any kind of Constitutional right that’s being violated on either one of these two people, so I will deny, I guess Ms. -- not her motion, but what she had to say, [Ms. M.’s counsel], relative to the Constitutional -- some type of Constitutional breach of rights.
The juvenile court then turned to Ms. M.’s exceptions to the Magistrate’s recommendations from the September 15, 2023 permanency plan review hearing. Ms. M. had excepted from the Magistrate’s recommendation that the children’s plans be changed away from reunification, as well as the recommendation that Ms. M.’s visitation with the children be supervised. Ms. M. wanted instead for the plans to remain reunification.
Explaining its decision, the juvenile court said,
I am denying the Exceptions. I read the Court reports. It is, I think, impossible to regard these people as responsible parents, so, I’m not going to do so. Again, I’ll deny the Exceptions, and I’ll sign the plan as initiated or written by the Magistrate here.
The juvenile court then turned to the permanency plan review hearing that had been scheduled before it for March 7, 2024. The juvenile court learned that neither Ms. M., nor Mr. B., were in a position to care for L.R., K.B., or M.B., nor was Mr. S. in a position to care for L.R. Both Ms. M. and Mr. B remained incarcerated, serving the five- and twenty-five-year sentences, respectively, that they had received. Mr. S. continued to live in another state and was unable to care for L.R., although he expressed a willingness to continue to work toward reunification with L.R. M.B. and K.B. resided together in the foster home they had been in for two years and were doing well. They had bonded with their foster parents and enjoyed sibling visits. L.R., who had resided in medical treatment group homes since shortly after entering care, had a strong bond with the staff at her current group home and was generally happy there. She had been diagnosed with depression, though, and was undergoing some medication changes in conjunction with treating that.
The Department added that two relatives had been identified as possible alternatives for the children’s placement. One was M.B.’s and K.B.’s paternal grandmother, who they visited in December 2023. The Department was concerned about the paternal grandmother’s ability to manage M.B.’s and K.B.’s behavioral issues. The other relative was Ms. M.’s fiancé, Mr. Kv. B.,10 who was the father of Ms. M.’s fifth child and caring for that child. The Department indicated it would not consider placing M.B. and K.B. with Mr. Kv. B. because it would not be making reunification efforts as to Ms. M. and because of Ms. M.’s “extraordinary child abuse” of L.R.11
Ms. M. opposed any plan change that took the children away from a family member. Thus, she urged the juvenile court to retain reunification as the permanency plan, and if not that, that the court adopt custody and guardianship with, or adoption by, a family member. She wanted her children to be raised in the same household with Mr. Kv. B. She added that M.B. and K.B. had changed for the worse while in foster care, that “[t]here are no boundaries with this [foster] family,” and that it was “not a suitable home.”
The juvenile court then heard from the CASA12 volunteer for M.B., K.B., and L.R. He pointed out that M.B. and K.B. had been in their foster home for almost three years and that he had visited with them fifty-five times since they had been in foster care. He added that “. . . each move out of foster care has been traumatic, and the children act out even more aggressively with each move.” As to M.B.’s and K.B.’s current foster home, the CASA volunteer said,
So, the most recent move, which has lasted three13 years, the children have, in fact, had issues. The foster parents have, in fact, tried to address those issues. They are in a loving household. It’s structured; it’s safe. The kids, in my opinion, are doing much better than when they first came into foster care.
The CASA volunteer was similarly satisfied with L.R.’s progress and placement, having visited L.R. twelve times. He said,
Each time I go, I see the burns on her, but I will say that she is also in a very safe environment, with children of her age peers. Her medications are addressed faithfully by the staff. She’s fed, she’s groomed, she’s doing very well there. Like any 15-year-old, she’s into electronics, has discovered Taylor Swift. And she’s got her moments where she’s extremely happy and she’s got her moments where she’s -maybe shows her depression.
At the conclusion of the hearing, the juvenile court ruled on the various requests the parties had made in regard to permanency planning. It explained:
I am going to order, with regard to the [B.] children, a sole plan of adoption, as asked for by the Department. Additionally, with regard to L.R., we can do, I guess, the triway -- three-way plan, which will be inclusive of a sole plan of custody with -- concurrent with adoption, concurrent with reunification with the natural father, [Mr. S.]. I am convinced, based upon the review of the reports in the file, and most recently the reports from the lead CASA supervisor, who has 55 visits with [M.B. and K.B.], and then the 12 visits with L.R., that he comes at this from an unbiased perspective.
I understand the parents have strong opinions. However, I cannot forget they have both been convicted of Child Abuse in the 1st-Degree and they have whatever interests they have. But taking -- I do think there’s clear and convincing evidence to support this and I do that.
Thereafter, the juvenile court issued four Permanency Planning Review Hearing Orders: two (one for K.B. and M.B., another for L.R.) pertaining to the September 15, 2023 review and two (one for K.B. and M.B., another for L.R.) pertaining to the March 7, 2024 review. In the orders pertaining to the March 7, 2024 review, and for all three children, the juvenile court waived the Department’s reasonable-efforts obligation,14 finding (via two checkboxes) that the Department was “not required to provide reunification services because . . . the parents have been convicted . . . of a crime of violence. . .” Specifically, the juvenile court said:
The local department is not required to provide reunification services because one of the following circumstances exists:
The parent has been convicted[15] in any court of the United States of a crime of violence, as defined in the Criminal Law Article of the Annotated Code of Maryland 14101 or of aiding, abetting, conspiring or soliciting to commit the crime against the Respondent, the other parent of the Respondent or an individual that resides in the household of the parent. [Ms. M.] was convicted of First[-]Degree Child Abuse, Severe Physical Injury, of [L.R.] on 1/24/23 in the Circuit Court for Baltimore City.
(Emphasis added.) Thus, for L.R., the waiver was based on Ms. M.’s having been convicted, on January 24, 2023, of firstdegree child abuse, resulting in severe physical injury, of L.R. For M.B. and K.B., the waiver was based on Ms. M.’s having been convicted of first-degree child abuse, resulting in severe
physical injury, of L.R., who was another child residing in M.B.’s and K.B.’s household.
The juvenile court also changed the children’s permanency plans. L.R.’s permanency plan was changed from “[r] eunification with parent(s)” to a tripartite plan of reunification with her father, custody and guardianship with a relative, and guardianship by a non-relative. Similarly, M.B.’s and K.B.’s permanency plan was changed from “[r]eunification with parent(s)” to a unitary plan of adoption by a non-relative.16
Five days later, on March 12, 2024, the juvenile court issued an “Amended Order” in each child’s case, granting the Department’s waiver motions because Ms. M. had been convicted of crimes of violence. No amended or additional notice of appeal was filed thereafter.17
We will add additional facts below as needed.
THE DEPARTMENT’S DISMISSAL MOTION
Preliminarily, the Department moves to dismiss Ms. M.’s appeal to the extent that she challenges the juvenile court’s waiver of the Department’s reasonable-efforts obligation. The Department focuses on the March 12, 2024 Amended Order and argues that because it “left the March 7, 2024 ‘custody order and permanency plan unchanged,’” the March 12, 2024 Amended Order is not subject to interlocutory appeal.18
Ms. M. opposes dismissal of her challenge to the waiver, noting that the waiver and the permanency plan changes were both part of the juvenile court’s March 7, 2024 written orders. She notes that a juvenile court’s decision to waive the Department’s reasonable-efforts obligation is subject to interlocutory appeal and that appeal extends to interlocutory rulings that “control and are inextricably bound to the order” under review. She adds that the juvenile court’s waiver was “directly intertwined with the court’s decision to fully eliminate reunification with [Ms. M.] as a permanency plan.”
We agree with Ms. M. and deny the Department’s dismissal motion. The waiver and permanency plan changes that Ms. M. challenges took effect on March 7, 2024 because it was then that the juvenile court issued (and docketed) the Permanency Planning Review Hearing Orders setting forth its unqualified decisions on these matters. Md. Rule 2-601(a)(4) (“. . . a judgment is effective only when . . . set forth [in a separate document as per Rule 2-601(a)(1)] and entered as provided in [Rule 2-601(b)).”); Hiob v. Progressive American Ins. Co., 440 Md. 466, 486 (2014) (Rule 2-601(a) requires a document, a docket entry, and that the document “. . . ‘set forth’ an unqualified decision of the court as to which party has prevailed and what relief, if any, is awarded.”). In the Permanency Planning Review Hearing Orders here, via checkbox, the juvenile court ruled that “[t]he local department is not required to provide reunification services because one of the following circumstances exists.” Via a second checkbox, as above, the juvenile court then recounted Ms. M.’s (and Mr. B.’s) convictions for child abuse in the first degree of L.R. In those same orders, the juvenile court went on to change the children’s permanency plans away from reunification with Ms. M.19
Moreover, the Permanency Planning Review Hearing Orders (from the March 7, 2024 review) are what Ms. M. appealed from, not the March 12, 2024 Amended Order.20 To
secure appellate review in this Court, an appellant must file a notice of appeal “. . . within 30 days after entry of the judgment or order from which the appeal is taken.” Md. Rule 8-202(a). Here, Ms. M. filed her notice of appeal immediately after the Permanency Planning Review Hearing Orders (from the March 7, 2024 plan review) were docketed. She did not file a notice of appeal after the March 12, 2024 Amended Order was docketed.
Finally, having noted a timely appeal of the Permanency Plan Review Hearing Orders, Ms. M. was entitled to challenge the waiver ruling in those orders on an interlocutory basis. To be sure, “a juvenile court’s order waiving a department’s obligation to provide reasonable reunification efforts, while leaving a custody order and permanency plan unchanged,” is not subject to interlocutory appeal. In re C.E., 456 Md. 209, 226 (2017). But when a waiver is included in the same order as an appealable plan change,21 and the waiver and plan change are “intertwined,” the waiver is subject to interlocutory appeal as well. Davis v. Att’y Gen., 187 Md. App. 110, 123 (2009) (because order vacating an enrolled judgment is subject to interlocutory appeal, appellant may also appeal other “intertwined” rulings included in the same order).
Here, the reasonable-efforts waiver and the plan changes were “intertwined” and included in the same order. In the Permanency Planning Review Orders, the juvenile court waived the Department’s reasonable-efforts obligation because Ms. M. and Mr. B. had been convicted of child abuse in the first degree of L.R. Those convictions (and the prison sentences that followed) were also part of what motivated the juvenile court to conclude that reunification was no longer in the children’s best interest. Given that these permanency plan changes were subject to interlocutory appeal, the waiver that accompanied them (and prompted them, in part) was also subject to interlocutory appeal.
To the extent that the Department relies on the March 12, 2024 Amended Order in an attempt to overcome this conclusion, we hold that the March 12, 2024 Amended Order could not have had such an effect. See In re Emileigh F., 355 Md. 198, 202-03 (1999) (“After an appeal is filed, a trial court may not act to frustrate the actions of an appellate court. Postappeal orders [that] affect the subject matter of the appeal are prohibited.”). Because it tends to separate the waiver from the plan changes, the Department’s reading of the March 12, 2024 Amended Order would render the waiver unappealable on an interlocutory basis. Such a reading would frustrate (if not eliminate) Ms. M.’s interlocutory appeal of the waiver. Whatever the March 12, 2024 Amended Order said, it was the March 7, 2024 Permanency Planning Review Hearing Orders that waived the Department’s reasonable-efforts obligation. We will not read the March 12, 2024 Amended Order in a fashion that frustrates Ms. M’s ability to appeal that waiver.
DISCUSSION
I. Because Ms. M. did not preserve her constitutional challenge to CJP § 3-812, we decline to address it.
“Ordinarily, [we will not take up an issue] unless it plainly
appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Md. Rule 8-131(a). Preservation is particularly important for constitutional issues. Krause Marine Towing Corp. v. Ass’n of Md. Pilots, 205 Md. 194, 223 (2012) (“[o]n matters of such import and significance as constitutional questions, we cannot overstress the necessity of fully preserving the issue below. The trial court should be given not only the opportunity to rule, but also the assistance of counsels’ arguments and memoranda in reaching its result.” (quoting Hall v. State, 22 Md. App. 240, 245 (1974))).
The Department and the children urge that we decline to take up Ms. M.’s constitutional challenge to the waiver. The Department argues that Ms. M.’s argument, consisting of three sentences, was too vague to preserve the challenge for appellate review. The children point out that the juvenile court should not have had to “. . . extrapolate [from] counsel’s general statements to make the leap to procedural and substantive due process, equal protection, and basic fairness violations of the specific provisions in CJP § 3-812.”
Ms. M. acknowledges that her argument here regarding the constitutionality of the waiver here is “more detailed” than the argument she made below. Nonetheless, citing State v. Greco, 199 Md. App. 646, 658 (2011), she contends that her constitutional argument is preserved because it is merely a “more detailed version” of the argument she made below. Alternatively, she argues that if we conclude that her challenge is unpreserved, we should take it up anyway because it is “fully briefed and argued,” will aid trial courts in applying CJP § 3-812, and would “ensure a constitutional application of [the statute] that effectuates the best-interests-of-the-child standard.”
We decline to take up Ms. M.’s constitutional challenge to CJP § 3-812, and the interpretive standard suggested by Ms. M. shows why. Ms. M. proposes that we conclude that Section 3-812 is unconstitutional unless it is read to afford some discretion to the juvenile court in deciding whether to waive the Department’s reasonable-efforts obligation. She posits that the juvenile court should have to conclude that further reasonable efforts would be “fruitless” or “futile” before ordering that they be waived. But Ms. M. did not make this argument below. As a result, the juvenile court never made, or was asked to make, such findings. Under these circumstances, we fail to see how taking up Ms. M.’s constitutional challenge now would be “. . . necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Md. Rule 8- 131(a).
Ms. M.’s reliance on State v. Greco does not persuade us either. The issue in Greco, a postconviction case, was whether the State had adequately argued its position below that two appellate cases did not apply retrospectively such that Mr. Greco was entitled to a new trial. State v. Greco, 199 Md. at 658. We concluded that while the argument could have been made “more expansive[ly]” below, id., the circuit court did decide the issue by concluding that the cases did apply retrospectively. Here, by contrast, the juvenile court did not decide the futility/ fruitlessness issue below (one way or the other) because Ms. M. did not raise it. State v. Greco simply does not apply.
II. The circuit court’s consideration of the statutory permanency plan factors was not limited to Ms. M.’s first-degree assault conviction or the waiver of the Department’s reasonable-efforts obligation.
At a permanency plan review hearing, the juvenile court is mandated to “change [a child’s] permanency plan if a change in the permanency plan would be in the child’s best interest[,]” among other determinations. CJP § 3-823(h)(2)(vii). In deciding (or changing) a permanency plan, the juvenile court is directed by CJP § 3-823(e)(2)22 to consider the factors in Maryland’s Family Law Article (“FL”), Section 5-525(f)(1). These 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). In considering these factors, the juvenile court is required to “assess the reality of the children’s circumstances” and “evaluate the parent’s actual history of conduct and behavior[.]” In re Ashley S., 431 Md. 678, 711 and 719 (2013). The court must also “[e]valuate the safety of the child and take necessary measures to protect the child.”
CJP § 3-823(h)(2)(vi). “[I]f there are weighty circumstances indicating that reunification with the parent is not in the child's best interest, the court should modify the permanency plan to a more appropriate arrangement.” In re Cadence B., 417 Md. 146, 157 (2010).
In reviewing a juvenile court’s decision to change a permanency plan, we employ three familiar and interrelated standards. In re C.E., 464 Md. 26, 47 (2019). Factual findings are reviewed for clear error, which exists only when no “competent material evidence exists in support of the trial court’s factual findings.” In re Ryan W., 434 Md. 577, 593–94 (2013) (citation omitted). The interpretation of statutes and constitutional provisions, i.e., questions of law, are reviewed de novo. In re C.E., 456 Md. at 216. “If it appears that the [juvenile 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.” In re Yve S., 373 Md. 551, 586 (2003) (cleaned up).
The “ultimate decision” regarding changing a child’s permanency plan is reviewed for abuse of discretion. In re Ashley S., 431 Md. at 704. “[T]o be reversed the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable.” In re C.E., 464 Md. at 48 (cleaned up). Ms. M., as the appellant here, bears the burden of establishing an abuse of discretion. See Environmental Integrity Project v. Mirant Ash Mgmt., LLC, 197 Md. App. 179, 194 (2010).
Ms. M. contends that the juvenile court did not give adequate consideration to the required factors in overruling her exceptions, and later, in changing the children’s permanency plans away from reunification. She contends that the juvenile court’s reasoning was inadequate and that it impermissibly focused on her first-degree child abuse conviction and the reasonable-efforts waiver the Department requested.
The Department and the children disagree with Ms. M.’s assessment, maintaining that the juvenile court properly considered the statutory factors. Thus, they argue, the juvenile court considered that neither Ms. M. nor Mr. B. were able to offer a safe and stable home for the children because they were incarcerated; that although the children were able to visit with Ms. M. before her incarceration, and M.B. and K.B. enjoyed these visits, M.B. and K.B. were bonded to their foster parents and L.R. was receiving “positive treatment” at her group home. The juvenile court also considered that the children had been out of Ms. M.’s care for four and a half years, that M.B. and K.B. had been in their current foster home for two years. Prior placement disruptions “had been traumatic” for them. At their current foster home, they “were doing much better than when they first came into foster care.” L.R., while continuing in a group home, had struggled with behavioral issues and had been diagnosed with depression.
We do not agree with Ms. M. that the juvenile court improperly focused on her conviction and the reasonableefforts waiver to the exclusion of the other relevant evidence before it. To be sure, the juvenile court must consider all of the statutory factors in deciding whether to change a child’s permanency plan, but it is not required to weigh those factors equally. In re D.M., 250 Md. App. 541, 565 (2021) (affirming change of permanency plan where juvenile court “placed significant weight” on one of the statutory factors). Nor, as Ms. M. acknowledges, was the juvenile court required to engage in an exercise of form over substance in its consideration of the factors. Id. at 563 (“The mere incantation of the ‘magic words’ of a legal test, as an adherence to form over substance, is neither required nor desired if actual consideration of the necessary legal considerations are apparent in the record.” (cleaned up)). Here, the juvenile court’s consideration of the statutory factors reflected the “reality of the children’s circumstances[,]” the parents’ “actual history of conduct and behavior[,]” and the measures taken to protect the children:
• FL § 5-525(f)(1)(i): The child's ability to be safe and healthy in the home of the child's parent Ms. M. voiced her “strong opinion” that she be able to place the children with a family member. The court acknowledged Ms. M.’s “strong opinion” but stated that it “could not forget” about Mr. B.’s and Ms. M.’s child abuse convictions.
• FL § 5-525(f)(1)(ii): The child's attachment and emotional ties to the child's natural parents and siblings
Here, the court considered the Department’s and CASA’s reports (that the juvenile court was “convinced” by) describing the children’s successful visits with Ms. M. and each other).
• FL § 5-525(f)(1)(iii): The child's emotional
attachment to the child's current caregiver and the caregiver's family
• FL § 5-525(f)(1)(iv): The length of time the child has resided with the current caregiver
• FL § 5-525(f)(1)(v): The potential emotional, developmental, and educational harm to the child if moved from the child's current placement
For these three factors, the court considered the Department’s and CASA’s reports describing that M.B. and K.B. had found some much needed permanency with their current foster parents, with whom they had been placed for more than two years, and that L.R. was doing well in her medical-level group home where she had been for more than a year.
• FL § 5-525(f)(1)(vi): The potential harm to the child by remaining in State custody for an excessive period of time
The court considered the Department’s and CASA’s reports detailing the children’s having been in foster care for more than four years and the behavioral problems M.B. and K.B. had displayed in having to move placements prior to their finding permanency in their current foster home, where they had been placed for more than two years. Given that the juvenile court had evidence that LR. was doing well in her group home, it considered whether that placement was harming L.R. Ultimately, although the juvenile court considered Ms. M.’s “strong opinion” that she could offer the children a safe home, the court was not required to weigh her wishes more than the other factors, or without regard to the parents’ own circumstances. Ms. M. and Mr. B were incarcerated for firstdegree assault against L.R., and would be for some time. During her incarceration and thereafter, Ms. M. would not have the Department’s help in reunifying. That reality was also their children’s reality. When Ms. M.’s incarceration started, the children had been in care for a long time, having been removed from the home after the assault. While in the Department’s care, M.B. and K.B. (and L.R. to a lesser extent) had found permanency in their placements. The juvenile court considered all of this in deciding that permanency plan changes were in the children’s best interest.
III. The juvenile court did not abuse its discretion in changing the children’s permanency plans.
Ms. M. next contends that because there was insufficient evidence to support the plan changes that the juvenile court ordered, doing so amounted to an abuse of discretion. Specifically, Ms. M. argues that the evidence before the court showed that she had made “significant strides in remedying the issues” that brought the children to the court’s attention. She concluded that her conviction and sentence, standing alone, “did not demonstrate that reunification no longer remained in the children’s best interests[,]” and that the children “could be safe and healthy in her care.” She adds that it was an abuse of discretion not to order the Department to explore placing the children with Mr. Kv. B., the father of her fifth child.
The Department and the children disagree with Ms. M.’s assessment, maintaining that the juvenile court did not abuse
its discretion when it changed the children’s permanency plans. They point out that, by the time the juvenile court changed the children’s permanency plans away from reunification, the children had already been in foster care for four years and Ms. M. had four years left to serve on her sentence.
Regarding Mr. Kv. B., it was not clear that the children had met him. He had not attended, or testified at, any of the children’s prior hearings. Under these circumstances, Ms. M.’s wish to continue with reunification would simply have put the children further away, rather than closer, to permanency.
For largely the same reasons that we outlined above, we disagree with Ms. M. Even if Ms. M. had made significant strides in remedying the issues that brought the children to the Department’s attention (and offered “strong opinions” about where the children should be placed), the juvenile court was not required to weigh Ms. M.’s strides or her opinions more heavily than—or to the exclusion of—the other permanency plan factors. Nor was the juvenile court required to disregard the reality of the children’s circumstances. The reality was that even if Ms. M. had made significant strides toward addressing the issues that necessitated the Department’s intervention, Ms. M. was now incarcerated, serving what was left of a fiveyear sentence, and the Department would not be required to offer reunification services to her prior to or after her release. Under these circumstances, the juvenile court was well within its discretion to afford less weight to Ms. M.’s efforts and her “strong opinions” about where the children should be placed.
Indeed, the juvenile court said, “I understand the parents
have strong opinions. However, I cannot forget they have both been convicted of Child Abuse in the 1st-Degree and they have whatever interests they have. But taking -- I do think there’s clear and convincing evidence to support this and I do that.”
Nor did the juvenile court err by declining to order that the Department explore Mr. Kv. B., the father of Ms. M.’s fifth child, as a placement resource for the children. To be sure, when determining a child’s permanency plan, the juvenile court must consider, consistent with the child’s best interests, a variety of placement options “in descending order of priority.” CJP § 3-823(e)(1)(i). But Ms. M. identifies no authority for the proposition that when considering a change of plan away from reunification, the juvenile court must select any one option over and above the child’s best interest. Indeed, “the bedrock of CINA permanency planning is the ‘best interests of the child’ standard.” In re M., 251 Md. App. 86, 123 n.10 (2021) (citations omitted).
Here, because Ms. M. points to no evidence suggesting that it would have been consistent with the children’s best interest to place them with Mr. Kv. B., we cannot conclude that it was an abuse of discretion for the juvenile court to decline to do so.
Although Mr. Kv. B. was Ms. M.’s fiancé, and the father of Ms. M.’s fifth child, there was no evidence that Mr. Kv. B. had any interest in raising M.B., K.B., or L.R. Nor is there any evidence that he had even met the children or attended any of their hearings. Under these circumstances, the juvenile court was well within its discretion not to adopt a permanency plan that would have placed the children with Mr. Kv. B.
THE DEPARTMENT OF SOCIAL SERVICE’S MOTION TO DISMISS DENIED. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY ONE- THIRD BY THE DEPARTMENT OF SOCIAL SERVICES AND TWO-THIRDS BY APPELLANT.
FOOTNOTES
1 M.B., K.B., and L.R. have a teenage sibling (or half sibling), F.S., who is also committed to the Department. F.S.’s case is not before us.
2 L.R. was found to have “extensive intentional [second-] and [third-] degree burns of at least 25% of her body” and “permanent scarring and disfigurement” resulting from lack of medical care.
3 Mr. B. and L.R.’s father, Mr. S., did not note appeals.
4 As stated in Ms. M.’s brief, her questions are:
1. Did the court violate mother’s constitutional rights when it waived DSS’s obligation to provide reasonable efforts to reunify her with her children solely on the basis that she pled guilty to first-degree child abuse?
2. Did the court err when it changed all children’s permanency plans away from reunification with mother?
a. Did the court make inadequate findings in support of changing the plans?
b. Did the court impermissibly treat the CJP § 3-812(b) reasonable-efforts waiver as compelling plan changes?
c. Did insufficient evidence support changing the plans?
d. Should the court have allowed mother to make a childcare plan while she remained incarcerated in furtherance of reunification or, at least, have directed DSS to vet mother’s fiancé as a potential permanent placement?
5 These dispositional orders, including that the children be found to be in need of assistance, mirrored what the Department had recommended. Ms. M. agreed with the Department’s recommendations.
6 The Department filed a similar motion as to Mr. B. in January 2024.
7 Sections 3-812(b)(2) and (d) provide that:
(b) In a petition under this subtitle, a local department may ask the court to find that reasonable efforts to reunify a child with the child’s parent or guardian
are not required if the department concludes that a parent or guardian:
(2) Has been convicted, in any state or any court of the United States, of:
. . .
(i) A crime of violence against that child or any minor offspring of the parent.
. . .
(d) If the court finds by clear and convincing evidence that any of the circumstances specified in subsection (b) of this section exists, the court shall waive the requirement that reasonable efforts be made to reunify the child with the child’s parent or guardian.
CJP §§ 3-812(b)(2) and 3-812(d).
8 On March 7, 2024, the juvenile court had four Department reports before it: (1) September 3, 2023 Court Report; (2) October 5, 2023 Court Report Addendum; (3) December 26, 2023 Court Report pertaining to K.B. and M.B.; and (4) February 23, 2024 Court Report pertaining to M.B. and K.B. There is some discrepancy regarding whether a fifth report, that being a March 5, 2024 Court Report Addendum pertaining to L.R., was admitted. The March 7, 2024 transcript indicates that this report was not admitted, the juvenile court sustaining Ms. M.’s objection to the late filing of this report. The corresponding order indicates that this report was admitted, however. No one makes an issue of this discrepancy, and we proceed as if the transcript (March 5, 2024 addendum not admitted) controls. Cf. Turner v. State, 181 Md. App. 477, 491 (2008) (“[w]hen there is such a discrepancy between the transcript and the docket entries, absent any evidence that there is error in the transcript, the transcript controls.”) (citation omitted).
9 Ms. M.’s counsel also argued that waiver of reasonable efforts was not mandatory at that time. Specifically, Ms. M.’s counsel asserted that because Ms. M. was then incarcerated, there was little the Department could do in terms of reasonable efforts, and that as a result, it was premature to waive reasonable efforts so long as Ms. M. was incarcerated. The juvenile court did not make findings either way in this regard.
10 Ms. M. identified him as “Kv. B.” in her appellate brief. We adopt this moniker to distinguish him from M.B.’s and K.B.’s father. We mean no disrespect in doing so. To the Department, Ms. M. had identified Mr. Kv. B. as a resource for M.B. and K.B. In her appellate brief, Ms. M. contended that the Department should have considered Mr. Kv. B. as a resource for all three children.
11 Regarding permanency, the juvenile court also heard from the children’s counsel (who agreed with the Department), Ms. M. and Mr. B. (who disagreed), and counsel for Mr. S., who suggested that reunification between Mr. S. and L.R. remain an option.
12 CASA stands for “court-appointed special advocate.” Per the website of Maryland’s CASA association, a CASA volunteer is a “court-appointed, trained, and committed adult who represents and advocates for a child’s best interest in the child protection program.” See https://www.marylandcasa.org/get-involved (last visited October 25, 2024).
13 It appears that the CASA volunteer misspoke as to the length of time M.B. and K.B. had been in their current fos-
ter home. According to the Department, K.B and M.B. had been there since January 28, 2022, or a bit longer than two years by the time of the March 7, 2024 hearing.
14 The juvenile court did not waive reasonable efforts in the orders pertaining to the September 15, 2023 hearing. Instead, in those orders, the juvenile court found that the Department had made reasonable efforts to finalize the children’s permanency plans.
15 The only variance between this language in L.R.’s order and that in K.B.’s and M.B.’s is that in the latter, the juvenile court spoke to the convictions of both parents, stating, “The parents have been convicted . . .” (emphasis added) and including findings about Mr. B.’s conviction.
16 For the September 15, 2023 review, which the juvenile court also conducted on March 7, 2024 after hearing Ms. M.’s exceptions, the juvenile court changed M.B. and K.B.’s plans to a concurrent plan of reunification with a parent and adoption by a non- relative. L.R.’s plan (from the September 15, 2023 review) was changed to a concurrent plan of reunification with a parent and custody and guardianship with a relative and guardianship by a non-relative. Following the March 7, 2024 plan review that the juvenile court conducted anew that day, L.R.’s plan specified Mr. S. as the reunifying parent (as part of a tripartite plan), a change that prompted Ms. M.’s appeal because it took reunification with her off the table.
17 At least three of the documents we discuss below were issued by the juvenile court with all three children’s names and case numbers on them. Thereafter, a copy of each document was docketed in each child’s case. These documents are (1) Ms. M.’s notice of appeal; (2) the Order of March 11, 2024; and (3) the Amended Order of March 12, 2024. For simplicity, we refer to these items in the singular even though they were docketed in more than one case. For example, we will say, “. . . the notice of appeal was filed[,]” rather than the “notices of appeal were filed.” This is so even though, in reality, three notices of appeal were filed, one in each of the children’s cases. If there is an instance in which these items were not treated identically, case to case, we will say so and refer to them separately.
18 The March 12, 2024 Amended Order corrected a March 11, 2024 order that provided a different reason for the waiver.
19 Specifically, on March 7, 2024, after delivering its oral rulings, the juvenile court issued four permanency hearing review orders. Two pertained to the permanency plan review hearing originally held on March 7, 2024, before the juvenile court: one for M.B. and K.B., and another for L.R. The third order—issued on March 7, 2024— pertained to the September 15, 2023 hearing for K.B. and M.B. originally held before the Magistrate. The fourth—issued on March 8, 2024—pertained to the September 15, 2023 hearing for L.R. 20 Ms. M. appealed from all four Permanency Planning Review Hearing Orders by filing a notice of appeal on March 7, 2024. Regarding the Permanency Planning Review Hearing Order issued in L.R.’s case as to the September 15, 2023 review, which order was filed on March 8, 2024, i.e. a day after Ms. M.’s notice of appeal, we deem Ms. M.’s notice of appeal as to that order to have been filed on March 8, 2024 after the order was filed. Md. Rule 8-602(f) (“ [a] notice of appeal filed after the announcement or signing by the trial court of a ruling, decision, order, or judgment but before entry of the ruling, decision, order, or judgment on
the docket shall be treated as filed on the same day as, but after, the entry on the docket.”)
21 Neither the Department nor the children challenge the appealability, on an interlocutory basis, of the permanency plan changes in the Permanency Plan Review Hearing Orders. A plan change that works a “meaningful shift in direction vis-à-vis” a parent’s ability to regain care and custody of their children is subject to interlocutory appeal. In re Joseph N., 407 Md. 278, 292 (2009); CJP § 12-303(3)(x) (permitting
interlocutory appeal of an order that “. . . depriv[es] a parent . . . of the care and custody of his child, or changing the terms of such an order[.]”). Here, the change away from reunification with Ms. M. was such a change.
22 This statute provides that “[i]n determining the child's permanency plan, the court shall consider the factors specified in § 5-525(f)(1) of the Family Law Article. CJP § 3-823(e)(2).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 59 (2024)
Permanency; reunification; conviction
Thearone Richardson Jr. v. Sarletta Richardson
No. 1970, September Term 2023
Argued before: Wells, C.J., Reed, Battaglia (retired; specially assigned), JJ.
Opinion by: Wells, C.J.
Filed: Nov. 4, 2024
The Appellate Court dismissed the husband’s appeal of the Baltimore County Circuit Court’s judgment of absolute divorce. Both of husband’s post-trial motions were filed too late. As a result, he was obligated to file his appeal within 30 days after the judgment of absolute divorce, which he did not do.
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.
Mr. Richardson, now representing himself, filed two postjudgment motions on September 14, 2023: (1) a motion to reconsider, under Rule 2-535 and (2) a motion to alter or amend the judgment, under Rule 2-534. Neither of these motions were filed within the time limits prescribed by the respective Rules: 30 days from the date of judgment, in the case of the motion to reconsider1 and 10 days from the same date, in the case of the motion to alter or amend. In other words, under the Rules, if Mr. Richardson wanted the court to reconsider its decision, he had until September 13, 2023 to make that request. In the case of the motion to alter or amend, he had until August 24, 2023 to make that request. As noted, he filed both motions on September 14, 2023.
Appellant Thearone Richardson, Jr., appeals from a judgment of absolute divorce that the Circuit Court for Baltimore County granted his wife, appellee Sarletta Richardson. For the reasons that follow, we must dismiss the appeal because Mr. Richardson filed his notice of appeal beyond the 30-day time limit.
A brief recitation of the procedural history of this case will illustrate why we are compelled to dismiss. Through her attorney, Ms. Richardson filed an amended complaint for absolute divorce on December 4, 2017. Mr. Richardson, through his attorney, answered on July 7, 2021. With counsels’ assistance, the parties entered into a consent agreement which they acknowledged on the record in open court on June 21, 2022. Part of the agreed upon division of marital property included Ms. Richardson receiving a 30% share of her husband’s pension, with some adjustments.
The parties hired an attorney to draft the Qualified Domestic Relations Order (QDRO) which would accomplish the transfer of funds. But for reasons that animate this appeal, Mr. Richardson refused to sign the QDRO. As a result, Ms. Richardson moved the circuit court to accept the QDRO as negotiated. The court held a hearing to address the parties’ concerns in this regard on May 2, 2023. We do not have a transcript of that hearing, but the docket sheet shows that an order—presumably the QDRO—was “to be submitted by counsel.” This supposition is supported by the fact that on August 3, 2023, the court granted Ms. Richardson an absolute divorce and incorporated but did not merge the QDRO as originally drafted. Both the judgment of absolute divorce and the QDRO were docketed on August 14, 2023. That is the date that the appeals clock started running.
Equally important, even if the motion to reconsider was timely filed, it would not have stopped the clock for Mr. Richardson to file his appeal. Johnson v. Francis, 239 Md. App 530, 541 (2018) (A motion for reconsideration filed more than ten days, but within 30 days, after entry of a judgment or order may still be considered by the trial court, pursuant to Rule 2-535, but it does not toll the running of the time to note an appeal.) Mr. Richardson was still required to file his appeal no later than September 13, 2023. He filed his notice of appeal on December 12, 2023.
On the other hand, the case law is clear that had Mr. Richardson timely asked the court to alter or amend the judgment, that would have stopped or “tolled” the time to appeal, but only until the court ruled on the motion. Pickett v. Noba, Inc., 114 Md. App. 552, 557(1997) (“If the motion [under Rule 2-534] is filed within ten days of judgment, it stays the time for filing the appeal; if it is filed more than ten days after judgment, it does not stay the time for filing the appeal.”). The circuit court ruled on November 9, 2023, denying both motions. This means that even if he had timely filed the motion to alter or amend, Mr. Richardson was required to file his appeal no later than December 9, 2023. Again, Mr. Richardson filed his notice of appeal on December 12, 2023.
We realize that these rules might seem complicated and perhaps confusing, but they are the guidelines that every litigant, whether they are represented by an attorney or not, must follow and the Court must enforce. Consequently, we conclude that both of Mr. Richardson’s post-trial motions were filed too late. As a result, he was obligated to file his appeal within thirty days after the judgment of absolute divorce, which he did not do. Under Rule 8-202(a), a “notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” If not filed timely, “the appellate court acquires no jurisdiction, and the appeal must
be dismissed.” HIYAB, Inc. v. Ocean Petroleum, LLC, 183 Md. App. 1, 8 (2008) (quoting Houghton v. County Comm’rs of Kent County, 305 Md. 407, 413 (1986)). Since July 1, 2018, Rule 8-602(b)(2) has expressly mandated dismissal if “the notice of appeal was not filed with the lower court within the time prescribed by Rule 8-202.” Because Mr. Richardson’s notice of appeal was more than 60 days beyond the time limit, we are compelled to dismiss the appeal.
APPEAL DISMISSED. APPELLANT TO PAY THE COSTS.
FOOTNOTES
1 Mr. Richardson did not allege fraud, irregularity, or mistake under Rule 2-535(b) which would have permitted him to file the motion “at any time.” In his
motion to alter or amend, he asks the court to consider what he deems additional evidence about how his pension should have been divided, which he claims his attorney did not present to the court. See Docket Entry of 9/14/23.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s protective order granting daughter full custody of her half-siblings for the duration of the protective order and restricting father’s access to a one-hour visitation twice a week. The evidence presented at the final protective order hearing was sufficient to establish that father physically or mentally abused his minor children by a preponderance of the evidence.
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.
abuse: 1) that Father “pulled L. by her hair in anger” in April 2023, 2) that Father “pulled L. out of the front door of her home” in June 2023, and 3) that Father caused “emotional and mental distress to both children by refusing to allow them to return to their primary residence with” Daughter. At the hearing regarding the temporary protective order, Daughter testified about the incidents of physical abuse described in the petition for a protective order and also testified that, on multiple occasions, Father had made threats against C., specifically, “to tie [C.]’s left arm down to his side so that he is forced to use his right hand.” Daughter also described a phone call with the minor children after Father removed them from her care, during which “they were crying and distraught that they wouldn’t come home.” Daughter testified that she heard Father tell the children that “they cannot come back” to Daughter’s home. Daughter also testified that she believed the children were in danger in Father’s care. The circuit court issued a temporary protective order at the conclusion of the hearing.
This appeal arises out of the entry of a final protective order by the Circuit Court for Anne Arundel County against appellant, J.S1. (“Father”). Appellee L.S. (“Daughter”) obtained the final protective order on behalf of her two minor half-siblings, L. and C., who are Father’s children. Based on the testimony and evidence presented at the hearing, the circuit court issued a final protective order against Father, granting Daughter full custody of L. and C. for the duration of the protective order and restricting Father’s access to L. and. C. to a one-hour visitation on Tuesdays and Thursdays from 7:00 p.m. until 8:00 p.m.
Father presents three questions for our review, which we have rephrased:2
I. Did the circuit court commit reversible error by not informing Father of a perceived right to counsel in a protective order proceeding and failing to inquire whether Father desired to seek counsel?
II. Did the circuit court commit reversible error by admitting audio-video recordings in violation of the Maryland Wiretap Act?
III. Did the circuit court commit reversible error by concluding by a preponderance of the evidence that J.S. had abused the minor children?
For the reasons explained below, we answer these questions in the negative and affirm.
BACKGROUND
On July 26, 2023, Daughter filed a petition for a protective order on behalf of L. and C., her two minor half-siblings who are Father’s children. The petition referenced three acts of alleged
The circuit court held a final protective order hearing on August 2, 2023. Father appeared without counsel. When the circuit court explained to Father the procedure for the hearing, he replied, “Yes ma’am.” The hearing began, and Daughter’s counsel conducted direct examination of Daughter’s first witness. After Father’s crossexamination, the following exchange took place between him and the circuit court:
[FATHER]: Your, Your Honor, I would have a lawyer representing me, if that was possible, in a week. I’ve called –
THE COURT: Well, if –
[FATHER]: Multiple lawyers.
THE COURT: If you would like to seek a postponement, I don’t think it would be granted in the middle of the trial, and I’m not the postponement Judge.
[FATHER]: Okay.
THE COURT: But…I’m happy for you to try. [FATHER]: I would like my kids returned to me. THE COURT: Okay.
[FATHER]: I have custody of them.
THE COURT: Do you want to continue the case or ask for a postponement?
[FATHER]: I’ll continue the case.
The hearing proceeded after this exchange.
At the hearing, K.S., who is Daughter’s sister and Father’s daughter, testified that she witnessed Father pull the hair of L. so hard that L. cried. She also testified that afterward, L. got into bed with her, appeared scared, and complained that her “head hurt.”
K.S. also described the children’s demeanor as “upset” when she communicated with them through the FaceTime application after Father removed them from Daughter’s care.
K.S., who lived with Father, testified that she installed a camera
in her bedroom “for [her] health reasons,” and that Father was aware of this.
Daughter attempted to introduce an audio-video recording of the incident, in which Father pulled L. up from the ground by her hair, causing L. to cry, to get in bed with K.S., and to cover herself with a pillow (“Video 1”). Father objected to the introduction of Video 1, but the circuit court overruled the objection and permitted Daughter’s counsel to play Video 1, which was recorded by the camera inside K.S.’s bedroom at Father’s residence. Video 1 showed L. standing in the doorway to a bedroom and Father pulling her hair. Father’s voice could be heard in Video 1.
Father objected to the admission of Video 1 when Daughter’s counsel moved for its admission. He argued that Video 1 was recorded in his home, but he was not aware that the camera had been installed in his home. The circuit court admitted Video 1 over Father’s objection. After admitting Video 1, the circuit court advised Daughter’s counsel: “You may wish to block out the sound of these videos, because we do have wiretap laws.”
After Daughter’s counsel objected to a line of questioning by Father, he stated that he “would have a lawyer representing [him], if that was possible, in a week. I’ve called multiple lawyers.” The circuit court explained that, “[if Father] would like to seek a postponement, I don’t think it will be granted in the middle of the trial, and I’m not the postponement Judge But, I’m happy for you to try.” When the circuit court followed up and asked whether Father wanted “to continue the case or ask for a postponement,” he stated that he wanted to continue.
After Father’s cross-examination of K.S., the circuit court noted that an employee of the Department of Social Services (“DSS”) was present in the courtroom. The circuit court asked Daughter’s counsel if she intended to call the DSS employee as a witness. She replied, “I don’t think, actually, either of us are calling her as a witness.” The circuit court excused the DSS employee.
Daughter testified at the final protective order hearing. According to Daughter, she lived at her mother’s house in Baltimore County for over twenty-five years. She testified that L. and C. had been living with her at that Baltimore County address since March 2020, and that, prior to March 2020, L. and C. lived with Father in Anne Arundel County. She also testified that, prior to L. and C. living with Father, there had been DSS involvement. L. had been removed from Father’s care and custody to be placed in the care and custody of Daughter. She explained that C. resided with Father and C.’s mother during the first few months of his life prior to being placed in the care and custody of Daughter. According to Daughter, while L. and C. resided with her and her mother, Father would visit the minor children during the week, after work, and, more recently, he had been taking them on day trips and for entire weekends. She testified that Father would take the minor children on day trips to visit their mother, who was undergoing a drug treatment program. She also testified that L. and C.’s mother had been granted limited access to the minor children pursuant to a custody order unrelated to this case. Daughter’s counsel played another audio-video recording (“Video 2”). The audio portion of the recording includes Father telling the minor children that he is coming to see them, and L. can be heard crying. Daughter’s counsel moved for the admission of Video 2. The circuit court admitted Video 2 after Father did not object. Daughter’s counsel played another audio-video recording
(“Video 3”). Video 3 includes audio of K.S. and Father arguing, with K.S. saying, “I’m not coming in demanding nothing. I’m coming in and saving the f*****g kids, because they obviously don’t want to stay with you.” Daughter’s counsel moved for the admission of Video 3. The circuit court admitted Video 3 after Father did not object. Daughter then played another audio-video recording (“Video 4”). Video 4 includes audio of Father saying, “No, gee. Yeah, here’s [L.] calling you mommy again.” It also includes video of Father pulling L.’s hair. Daughter’s counsel moved for the admission of Video 4. The circuit court admitted Video 4 after Father did not object.
Daughter essentially repeated her prior testimony from the temporary protective order hearing regarding Father’s physical and mental abuse of the children. She testified that Father tried to pull L. out of a doorway by her arm “rather aggressively, and to the point where she turned and latched onto [Daughter’s] grandmother, and she said – she was scared.” Daughter also stated that Father “threatened to tie [C.'s] left hand down to force him to use his right hand.” According to Daughter, Father was “very angry” and would yell. She testified that she never suffered any physical abuse from Father, but “definitely mental and verbal [abuse].” She also testified that the children were afraid of Father, and that she believed that they were in imminent danger in Father’s care.
Daughter asked the circuit court to grant a final protective order with the same terms as the temporary protective order–not to abuse or threaten to abuse, harass, or contact [L. and C.], to grant Daughter custody of L. and C., and to require Father to surrender his firearms.
On cross-examination by Father, Daughter testified that she lived at her mother’s home, and that she shares a room with her boyfriend. After Daughter’s counsel objected to a line of questioning, the following exchange occurred:
[FATHER]: -- once again, I would have hired a lawyer –
THE COURT: Okay, but you didn’t and we’re here, so you need to continue.
[FATHER]: Well, will you give me five days to do it, or seven days –
THE COURT: I can’t do that, sir…. If you want a postponement, you should have asked at 1:30. After this exchange, Father stated that he had no further questions for Daughter. Daughter rested her case.
The circuit court informed Father that he had an opportunity to present his case and suggested that he testify first because “it gives a lot more context to hear from the person who is the respondent in the case than third parties, but it’s up to you, the order in which you wish to call your witnesses.” Father decided to testify as a witness. He began by attempting to discuss a DSS report completed by the DSS employee who had previously been excused by the circuit court. Daughter’s counsel objected to any reference to the DSS report because the DSS employee was no longer present to testify, and there was no stipulation between the parties that the DSS report should come into evidence. The circuit court sustained the objection regarding the DSS report and informed Father:
Okay. So, sir, her objection is, and she’s correct, that that is not a document that is admissible in evidence. The worker, case worker, who was here, could have testified about what she said in that report if you wished, but you both said you
did not wish to call her, and she’s gone now. So, it’s not admissible.
The circuit court sustained Daughter’s objections to Father’s attempts to discuss the contents of the DSS report.
During his testimony, Father testified that he has small kids, that they sometimes do not listen, and that he tries to make them listen as well as he can. He acknowledged being “a little upset” and picking up L. by her hair. He did not consider this to be abusive behavior and stated that it was “out of character” for how he reprimands his children. He said he would “usually try to talk to them or have a time-out chair.” He also acknowledged “not claiming to be anything super special,” but that he “tr[ies] to keep [his] kids with discipline.” He also denied “hit[ting] [his] kids,” but he acknowledged that C. might have gotten a “pop on the butt . . . as all kids deserve” in the six months preceding the hearing regarding the final protective order. According to Father, although he had court-ordered custody of L. and C., they typically slept at Daughter’s mother’s house as a matter of convenience and so that Father could work and provide support for the minor children. He explained that, after Daughter filed a petition for custody of L. and C., he “kept the kids with [him] because [he] has custody of the kids, and [he believed] they [were] going to use situations against him.”
Father called his sister as a witness. When asked if she had ever seen Father be abusive to his children, she said, “No. No. I’ve seen him yell at them.” When asked if she thought Father had ever been abusive to his children at any time, she said: I do not. I do not, which, I’ve been around [Father] a lot with his children. As I said, L[.] lived with me for almost a full year. The only reason she stopped is because I had eye surgery. And I’ve never seen him do anything. You know, yes, he corrects her if she does something wrong, but it’s not physical. I’ve never seen anything physical abuse.
Father also called C.J. as a witness. He is married to Father’s older sister, who was not identified by name. C.J. testified that he had never seen Father be aggressive with his children. According to C.J., Father “has always looked out for his children, always had their care in mind -- and their future in mind.”
After considering the testimony and other evidence presented and hearing closing arguments, the circuit court explained: So, the standard for the Court is whether abuse occurred, and abuse is defined as a physical or a mental injury of a child under circumstances that indicate the child’s health or welfare is harmed or at substantial risk of being harmed by, in this case, a parent. So, mental abuse, for one thing, is very hard to pin down. The statute also defines mental abuse as an observable, identifiable, and substantial impairment of a child’s mental or psychological ability to function caused by an intentional act or series of acts, regardless of whether there is an intent to harm the child.
I do think that in this case, the [F]ather’s bringing the children to his home and denying them the benefit of being in the home where they’ve slept for years before that with his approval, given the videos I saw about their reaction to being withheld from what is, I guess, a surrogate parent, your daughter, is an act of mental abuse. They’re obviously distraught. Also, the pulling up your daughter by her hair is physical abuse. That’s not an appropriate way to discipline a child. She was obviously
afraid, in pain, and the like. That’s not a swat on the butt. It’s abusive, and the father admitted that.
It’s clear to the Court that the reason for the change was that [Father] was just upset about the petition for custody being filed, and I think his actions were inappropriate and didn’t account for the children’s mental health. So, I am going to grant the final protective order on the same terms as were set forth in the temporary order, which means, until there is a hearing on the custody case, which, sir, is a different case. That will determine the final custody and would supersede this.
The circuit court entered a final protective order, which specified that Father committed the following act of abuse by a preponderance of evidence: “Statutory abuse of a child (physical),” with the following “description of harm”: “JUNE 2023 CHILD PULLED BY ARM OUT OF DOOR.” The final protective order provides that Father not abuse or threaten to abuse L. and C., awards Daughter custody of L. and C. for the duration of the protective order, which was effective through August 2, 2024, and restricts Father’s access to L. and. C. to a one-hour visitation on Tuesdays and Thursdays from 7:00 p.m. until 8:00 p.m. The final protective order prohibits Father from visiting Daughter’s residence and the children’s childcare providers and also requires Father to surrender to law enforcement all firearms that he owns. This appeal followed.
STANDARD OF REVIEW
Generally, appellate courts do not opine on abstract propositions or moot questions. State v. Ficker, 266 Md. 500, 506–07 (1972). A case is considered moot when there is no longer an existing controversy between the parties at the time it is before the court. Coburn v. Coburn, 342 Md. 244, 250 (1996). Although the final protective order expired approximately one month before appellate arguments, the appeal is not moot.
When a party can demonstrate that collateral consequences flow from a lower court’s disposition, mootness does not necessarily preclude appellate review. D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 352 (2019). In Piper v. Layman, this Court explained, in allowing the appeal, that there are two collateral consequences for a person against whom a final protective order has been granted and thus, the person “has an interest in exoneration even if the period of the protective order has expired without incident.” 125 Md. App. 745, 753 (1999). First, a judicial determination that a person has abused their children creates a lasting stigma and a final protective order “is a permanent record of the court.” Id. at 752–53. Second, if the petitioner seeks another protective order against the respondent parent, the court has the discretion to consider the prior order. See Coburn, 342 Md. at 250. If another petition is filed, a judge might assume that Father had previously committed “some sort of assault” on the minor children. This information would be properly considered by the court because “one act of abuse may not warrant the same remedy as if there is a pattern of abuse between the parties.” Id. at 258.
Also, according to section 4-506(j) of the Family Law Article (“FL”), if another act of abuse is committed by “the same respondent” against “the same person[s] eligible for relief” within one year after the expiration of a prior protective order, the court can issue a second final protective order that will be in effect for a term of two years. There may also be employment, security
clearance and licensure issues as a result of the issuance of a protective order. Piper, 125 Md. App. at 753.
Under section 4-506 of the Family Law Article, a court may issue a final protective order if “the judge finds by a preponderance of the evidence the alleged abuse has occurred[.]” FL § 4-506(c)(1)(ii). The petitioner bears the burden to establish by a preponderance of the evidence that the alleged abuse has occurred. Piper v. Layman, 125 Md. App. 745, 754 (1999). “If the court finds that the petitioner has met the burden, it may issue a protective order tailored to fit particular needs that the petitioner has demonstrated are necessary to provide relief from abuse.” Id. (quoting Ricker v. Ricker, 114 Md. App. 583, 586 (1997)). On review of the issuance of a final protective order, an appellate court “accept[s] the facts as found by the hearing court unless it is shown that its findings are clearly erroneous.” Id. See also Md. Rule 8-131(c) (providing that this Court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous”).
A trial court’s factual findings are not clearly erroneous so long as they are supported by substantial evidence. Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). See also Mills v. Mills, 178 Md. App. 728, 734–35 (2008) (“[I]f substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.”). We are deferential to the factual findings of the trial court, which had the “opportunity to gauge and observe the witnesses’ behavior and testimony” throughout the protective order proceeding. Barton v. Hirshberg, 137 Md. App. 1, 21 (2001) (quoting Ricker, supra, 142 Md. App. at 592). For this reason, we also “leave the determination of credibility to the trial court[.]” Id. This Court considers the evidence produced at trial in the light most favorable to the prevailing party. Mills, 178 Md. App. at 734–35. “As to the ultimate conclusion, however, we must make our own independent appraisal by reviewing the law and applying it to the facts of the case.” Piper, supra, 125 Md. App. at 745–55.
DISCUSSION
Father raises three arguments on appeal. First, he argues that the circuit court committed reversible error by failing to inform him of a perceived right to counsel and failing to inquire whether he desired to seek counsel before proceeding with the hearing regarding the final protective order. Second, he argues that the admission of Video 1, Video 2, Video 3 and Video 4 violates Maryland’s Wiretap Act. Third, he argues that the evidence presented at the final protective order hearing was insufficient to establish that he physically or mentally abused his minor children by a preponderance of the evidence. For the reasons explained below, we conclude that the circuit court did not commit reversible error and affirm the circuit court.
I. The circuit court did not commit reversible error by not advising Father of a right to counsel and not inquiring whether he wanted to seek counsel before proceeding with the final protective order hearing.
Unlike criminal defendants, Father did not have “the right to counsel [as] guaranteed in criminal cases under the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.” In Re Adoption/Guardianship
of Chaden M., 189 Md. App. 411, 425 (2009) (internal citations omitted). He also fails to point to any statutory or other legal authority that may guarantee a right to counsel for a party to a protective order proceeding. Given the absence of any legal authority providing a right to counsel in a protective order case, the circuit court did not err by not advising Father of a perceived right to counsel.
Father raises a related issue regarding his expressed desire to postpone the protective order hearing for him to obtain counsel. Rule 2-508(a) provides, “On motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Under this Rule, “the trial court has wide latitude in determining whether to grant a continuance.” Shpak v. Schertle, 97 Md. App. 207, 225 (1993). The denial of a postponement request “will not be reviewed on appeal” absent an abuse of discretion or a showing that the trial court acted arbitrarily. Id. (quoting Thanos v. Mitchell, 220 Md. 389, 392 (1959)). An abuse of discretion means “‘discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006) (quoting Jenkins v. City of College Park, 379 Md. 142, 165 (2003)). Father does not point to any statute or rule that mandates a continuance in protective order proceedings for respondents to obtain counsel. That is presumably because there is no such authority. See Touzeau, 394 Md. at 670 (“In the present [custody] case, there was no statute or rule requiring that the trial judge grant [appellant]’s motion for continuance.”). The circuit court’s refusal to postpone this matter was not “manifestly unreasonable.” Id., 394 Md. at 669. Father did not request a postponement at the beginning of the hearing. Rather, he acquiesced to starting the hearing without an attorney. When the circuit court offered Father the opportunity to request a postponement in the middle of the first witness’s testimony, he expressly declined. Indeed, he did not request a postponement until the court had already heard the testimony of two witnesses and admitted four exhibits into evidence. Under the circumstances, the circuit court was well within its discretion to deny Father’s request.
See id., 394 Md. at 654 (affirming the lower court’s decision to deny a postponement request, for the purpose of obtaining counsel, in a contested custody case).
II. The circuit court did not commit reversible error by admitting Video 1, Video 2, Video 3 and Video 4.
A. The circuit court properly admitted Video 1.
Under section 10-401, et seq. of the Courts and Judicial Proceedings Article (the “Maryland Wiretap Act”), it is unlawful for a person to “[w]illfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication….” Maryland Wiretap Act § 10-402(a)(1). The Maryland Wiretap Act “requires consent from all parties before a conversation may be taped or otherwise intercepted in the absence of a court order authorizing law enforcement officials to conduct a wiretap.” Miles v. State, 365 Md. 488, 508 (2001). Significantly in this case, the Maryland Wiretap Act does not apply to video surveillance. In this case, after admitting Video 1, the circuit court advised Daughter’s counsel: “You may wish to block out the sound of these videos, because we do have wiretap laws.” Daughter’s counsel responded: “Well, I know that, and for this one, I think it’s fine. But yes, I’m aware, thank you.” The circuit court properly addressed the implications of the Maryland Wiretap Act by pointing out the applicability of the statute, instructing Daughter’s counsel to “block out the sound of these videos,” and effectively admitting Video 1 without the audio portion.
Even if the circuit court erred by admitting Video 1, any error was harmless. “‘It has long been the policy in this State that this Court will not reverse a lower court[’s] [erroneous evidentiary ruling] if the error is harmless.’” Barksdale v. Wilkowsky, 419 Md. 649, 657 (2011) (quoting Flores v. Bell, 398 Md. 27, 33 (2007)). To prove reversible error, an appellant must show that the error prejudiced the outcome of the case. Flores, 398 Md. at 33. Father “must show more than that prejudice was possible; [he] must show that it was probable.” Gillespie v. Gillespie, 206 Md. App. 146, 169 (2012) (quoting Flores, 398 Md. at 33). “[A]n error in evidence is harmless if identical evidence is properly admitted.” Id. (quoting Barksdale, 419 Md. at 663). Even if the circuit court erred by admitting Video 1, any error was harmless because testimony and other admissible evidence were sufficient to prove abuse by a preponderance of the evidence.
K.S. witnessed the incident depicted in Video 1 and testified regarding her observations. She testified that Father pulled up L. from the ground by her hair, causing L. to cry, become scared, complain that her head hurt, and take out her ponytails.
Daughter also testified as to what she witnessed, specifically that in June of 2023, Father “grabbed L. by the arm and tried to pull her out the door to leave, and she turned and grabbed onto [her] grandmother…so [Father] wouldn’t pull her.” According to Daughter, Father grabbed L. “aggressively” during this incident, and L. appeared to be scared of him.
Daughter testified that Father threatened to tie C.’s “left arm down to his side so that he is forced to use his right hand.” Daughter and K.S. described their observations of the children’s emotional distress caused by Father’s refusal to return them to Daughter. K.S. testified that the children were “very upset,” crying, screaming, and asking to return to Daughter’s home when she spoke with them on FaceTime after Father took them with him. Daughter also testified that during two calls with the children after Father removed them from her care, “they were distraught, and crying, and screaming that they wanted to come home.” Daughter also testified that L. has
expressed being fearful of Father.
B.Father waived appellate review of the admission of Video 2, Video 3 and Video 4.
Under Rule 2-517(a), “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.” In this case, Father argues that the circuit court admitted Video 2, Video 3 and Video 4 into evidence in violation of the Maryland Wiretap Act. The circuit court’s admission of Video 2, Video 3 and Video 4 is not preserved for appellate review. The circuit court specifically asked Father whether he objected to the admission of Video 2, Video 3 and Video 4. The following exchanges occurred:
[DAUGHTER’S COUNSEL]: Okay. I’ll move to admit Exhibit 2.
THE COURT: Do you have any objections to Exhibit 2?
[FATHER]: I do not.
THE COURT: Okay. It’s admitted.
[DAUGHTER’S COUNSEL]: Okay. I’m going to admit Exhibit 3.
THE COURT: Do you have any objection to video three?
[FATHER]: I do not.
THE COURT: It’s admitted. * * *
[DAUGHTER’S COUNSEL]: Okay. I move to admit Exhibit 4.
THE COURT: Any objection to Exhibit 4? [FATHER]: No.
THE COURT: Okay. It’s admitted.
Father’s objection to the admissibility of Video 1 is no substitute for an objection to the admissibility of Video 2, Video 3 and Video 4. To preserve an issue for appellate review, Rule 2-517(a) requires an objection to the introduction of evidence “at the time the evidence is offered.” See Fireman’s Fund Ins. Co. v. Bragg, 76 Md. App. 709, 719 (1998) (“When a party has the option of objecting, his failure to do so is regarded as a waiver estopping him from obtaining review of that point on appeal…Each party must make it clear that he or she has an objection to the particular evidence.”) (citing Phil J. Corp. v. Markle, 249 Md. 718, 725 (1968)). Father did not preserve appellate review of the admissibility of Video 2, Video 3 and Video 4 because, instead of objecting to the admission of the videos, he affirmatively stated that he did not object.
III. The circuit court did not commit reversible error by concluding that Father committed the alleged abuse by a preponderance of the evidence.
Father contends that there was insufficient evidence to establish that the alleged abuse occurred by a preponderance of the evidence. Section 4-501(b)(1) of the Family Law Article defines “abuse” as follows:
(i) an act that causes serious bodily harm;
(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm;
(iii) assault in any degree;
(iv) rape or sexual offense under § 3-303, § 3-304, § 3-307, or § 3-308 of the Criminal Law Article or attempted rape or sexual
offense in any degree;
(v) false imprisonment;
(vi) stalking under § 3-802 of the Criminal Law Article; or (vii) revenge porn under § 3-809 of the Criminal Law Article.
FL § 4-501(b)(1).
The Family Law Article also specifies that “[i]f the person for whom relief is sought is a child, ‘abuse’ may also include abuse of a child, as defined in Title 5, Subtitle 7 of this article.” FL § 4-501(b)(2)(i). Section 5-701 of the Family Law Article defines abuse of a child as “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). Of particular importance to this matter is the exclusion included in Section 4-501(b)(2)(ii) of the Family Law Article, which provides that:
Nothing in this subtitle shall be construed to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.
FL § 4-501(b)(2)(ii). See also FL § 5-701(b)(2) (providing that child abuse “does not include the physical injury of a child by accidental means”).
K.S. testified that she witnessed Father pull the hair of L. so hard that L. cried. She also testified that afterward, L. got into bed with her, appeared scared, and complained that her “head hurt.” K.S. also described the children’s demeanor as “upset” when she communicated with them through the FaceTime application after Father removed them from Daughter’s care. Daughter testified at the final protective order hearing regarding Father’s abuse of the children. She testified that Father tried to pull L. out of a doorway by her arm “rather aggressively, and to the point where she turned and latched onto [Daughter’s] grandmother, and she said – she was scared.” Daughter also stated that Father “threatened to tie the [C.'s] left hand down to force him to use his right hand.” According to Daughter, Father was “very angry” and would yell. She also testified that the children were afraid of Father, and that she believed that they were in imminent danger in Father’s care.
Father testified that he has small kids, that they sometimes do not listen, and that he tries to make them listen as well as he can.
He acknowledged being “a little upset” and picking up L. by her hair. He did not consider this to be abusive behavior and stated that it was “out of character” for how he reprimands his children. He said he would “usually try to talk to them or have a time-out chair.” He also acknowledged “not claiming to be anything super special,” but that he “tr[ies] to keep [his] kids with discipline.” Although he denied “hit[ting] [his] kids,” he acknowledged that C. might have gotten a “pop on the butt . . . as all kids deserve” in the six months preceding the hearing regarding the final protective order. Father called his sister and C.J. as witnesses. They both testified that Father had never engaged in any abusive behavior towards the minor children. We recognize that “[r]easonable corporal punishment, by definition, is not child abuse.” Charles Cnty. Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 303 (2004). Whether corporal punishment is reasonable “depends not simply on the misbehavior of the child and the amount of force used in the punishment from the parent’s perspective, but also on the physical and mental maturity of the child[.]” Id. at 299.
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). See also Md. Rule 8-131(c) (providing that this Court “will give due regard to the opportunity of the trial court to judge the credibility of the witnesses”). The circuit court relied on this testimony and the other evidence presented at the hearing to reach its findings regarding physical abuse. We conclude that the trial court did not err in finding that the alleged physical abuse occurred.
CONCLUSION
Father did not have a guaranteed right to counsel for a protective order proceeding.
The circuit court did not abuse its discretion when it did not postpone the hearing regarding the final protective order. The circuit court properly admitted Video 1; even if it was error to admit Video 1, any error was harmless. Father did not preserve the admissibility of Video 2, 3 and 4 for appellate review. There was sufficient evidence for the circuit court to find that Father committed physical acts of abuse against the minor children. For these reasons, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
FOOTNOTES
1 To protect the privacy of the parties, we refer to them by their initials in the caption and as “Father” and “Daughter” in the body of this opinion. To protect the privacy of the minor children, we refer to them by the first letter of their respective names. We also refer to witnesses by their initials to further protect the privacy of the parties and the minor children.
2 Father presented the questions for review as follows:
1. Did the Circuit Court err by failing to inform Appellant of his right to counsel, and failing to inquire whether Appellant desired to seek counsel before proceeding in a matter in which Appellant faced allegations of child abuse and loss of custody of his Minor Children?
2. Did the video evidence admitted into evidence by the Circuit Court at trial, over objection of Appellant, violate the Maryland Wiretap Act?
3. Did the Circuit Court err in finding by a preponderance of the evidence that Appellant had committed child abuse?
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Washington County Circuit Court’s award of joint legal and physical custody with tie-breaking authority to mother. The parties asked the court to award custody in a manner that deviated from the terms of their parenting agreement, and the court’s decision to split parenting time and to award tie-breaking authority to mother was altogether reasonable and appropriate on this record.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
On October 21, 2023, the couple agreed on and memorialized a parenting plan (“Agreement”). The Agreement granted Mother sole physical custody of A and B but gave both parents joint legal custody of the children. That arrangement also covered information sharing between Father and Mother, A and B’s schooling, the parents’ visitation schedule during the school year, the parents’ birthdays, the holidays, and finally, the parents’ financial and other additional agreements. Under the Agreement, Mother would have A and B from Monday to Thursday and every other Friday, and Father would have the children every Thursday evening and drop them off at school on Friday mornings. Additionally, the Agreement gave Father visitation with the children every other weekend from Friday evening to Monday morning. That schedule would remain in place for A and B’s winter, summer, and spring breaks. The Agreement also acknowledged the parents’ child support case and stated that forthcoming hearings would resolve that obligation.
Ashley N. Poole (“Mother”) and Antonyo C. Wilson-Thompson (“Father”) became embroiled in a custody battle over their two children. Mother sought sole legal and physical custody and Father sought joint legal and physical custody. The Circuit Court for Washington County granted the parties joint legal and physical custody and gave Mother tie-breaking authority and, although not before it, the court terminated Father’s child support obligations. Mother appeals and asks us to reverse those decisions. We affirm the first and reverse the second.
I. BACKGROUND
For eight years, dating back to around 2014, Father and Mother were involved romantically and lived at Mother’s home with Mother’s child from a previous relationship. The couple never married but had two children of their own—A, born on February 15, 2017, and B, born on July 26, 2019.1 Three years after B’s birth, in 2022, the couple separated.
After the couple split, Father began making child support payments to Mother. Father also met Keshia Simmel (“Fiancée”) and moved in with her. Like Mother, Fiancée has children from a prior relationship. Since separating, Father and Mother attempted to share custody of A and B, but after some disputes, litigation ensued.
Mother filed a Complaint for Custody of A and B on June 14, 2023. In the Complaint, she sought sole legal and primary physical custody of the children with visitation for Father. Father filed an Answer and asked the court to dismiss Mother’s Complaint. He also filed a counterclaim that sought joint legal and physical custody of A and B.
The parties were scheduled for a pendente lite hearing before a family magistrate on February 13, 2024. Mother didn’t appear; Father did. At the hearing, the magistrate acknowledged the parties’ Agreement and the fact that Father and Mother had followed it generally. Father, however, asked for shared physical custody by alternating parenting time with Mother week to week, a request the magistrate denied. Given the Agreement and the fact that both parties had signed it, the magistrate ordered Father and Mother to continue abiding by it and noted that Father could raise custody at the merits hearing. The court then issued a Custody and Visitation Pendente Lite Order enforcing the magistrate’s recommendations.
The circuit court held a merits hearing on March 7, 2024. This time, both parties were present. After opening statements, the court heard testimony from Mother, Father, and Fiancée. Both parties participated fully and directly—the court gave both an opportunity not only to be heard but to respond to the other, and the court witnessed the parents’ demeanor as it heard their disagreements (which included rather blunt and colorful characterizations of the other and admissions of things they had said and that the children had overheard). The parties introduced documentary evidence to which neither party objected. Importantly, both parties asked the court to modify the custody terms of the Agreement, specifically those related to parenting time. They did not present an agreed upon set of terms for the court to approve, however. The parties agreed on most things, and commendably so, but both wanted the court to deviate from the terms of the Agreement in its ultimate order and asked the court to resolve their differences.
After the merits hearing, the court granted Father and Mother joint legal and physical custody and awarded Mother tie-breaking authority. The court stated that Father was to have A and B every other week, beginning on Thursday evening and ending the following
Thursday evening. The court also incorporated the informationsharing provision, the holiday schedule, the parents’ birthday provisions, and the financial and additional agreements provisions from the Agreement. Finally, the court terminated Father’s child support obligation other than his obligation to repay arrears. Mother subsequently noted a timely appeal.
We add additional facts as appropriate below.
II. DISCUSSION
Mother presents two issues for our review, which we restate as follows: (1) whether the circuit court abused its discretion by awarding Father and Mother joint legal and physical custody and awarding tie-breaking authority to Mother; and (2) whether the circuit court erred as a matter of law by terminating Father’s child support obligations.2 As to the first question, we hold that the circuit court did not abuse its discretion. As to the second, we hold that the circuit court erred by terminating child support on this posture.
A. The Circuit Court Did Not Abuse Its Discretion In Its Custody Ruling.
Appellate courts “review a trial court’s custody determination for abuse of discretion.” Santo v. Santo, 448 Md. 620, 625 (2016). A trial court abuses its 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.’” Id. at 625–26 (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997). An abuse of discretion may also occur where the trial court’s ruling is “clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic.” Id. at 626 (internal quotations omitted). Nevertheless, this standard is deferential, and we won’t reverse a trial court decision unless that decision is “well removed from any center mark imagined by the reviewing court.” Id. (internal quotations omitted). As in all child custody disputes, the best interest of the child guides our review, as it did the trial court’s determination. Id.
Mother argues on appeal that once she and Father entered into a parenting agreement, “the agreement conclusively resolved the issue of custody, and the litigation should have concluded with the entry of a consent order.” Father hasn’t filed a brief, so we don’t know his response. But Mother’s suggestion that the circuit court failed to enforce a uniformly agreed set of terms misapprehends the case the circuit court decided. Although the Agreement resolved many of the issues that couples bring before courts in custody disputes, both parties asked the circuit court to modify portions of the Agreement relative to parenting time. Moreover, Mother doesn’t identify any specific deviations from the Agreement or explain why the court erred in ruling as it did. Ultimately, though, the parties asked the court to award custody in a manner that deviated from the terms of the Agreement, and the court’s decision to split parenting time as it did and to award tie-breaking authority to Mother was altogether reasonable and appropriate on this record.
1. The pendente lite order.
Although Mother didn’t ask the circuit court to enforce the Agreement as written at the merits stage, she seems to be arguing that the Agreement had some sort of preclusive effect (although, again, it’s not clear what). In fact, the parties were seeking deviations from the Agreement even at the pendente lite phase. And although,
as we’ll discuss, the family magistrate followed the Agreement at that point, that decision didn’t bind the circuit court to follow it, especially where the parties asked for deviations.
Child custody cases often begin with a pendente lite determination. Frase v. Barnhart, 379 Md. 100, 111 (2003). A pendente lite ruling serves as a temporary resolution, pending a ruling on the merits, that affords immediate stability for the parties’ children. Id. It is not meant to have a permanent effect—it remains subject to a full evidentiary hearing and final resolution of the dispute. Id. And a pendente lite order does not bind the circuit court when it makes its final resolution. Id.
In this case, a family magistrate held a pendente lite hearing and the court issued an order on February 13, 2024. The magistrate recognized the Agreement, noting a paragraph in it that claimed the custody dispute was effectively resolved. The magistrate also recognized that Father’s request for shared physical custody, an alternating week-to-week schedule with Mother, deviated from the Agreement.
Nobody filed exceptions to the magistrate’s recommendation. But as the magistrate recognized, the pendente lite recommendation was subject to the pending merits hearing, which was less than a month away on March 7, 2024. In other words, the pendente lite order acknowledging Father and Mother’s Agreement remained in effect until the merits hearing but did not bind the circuit court nor compel a particular result at the merits hearing. See Kerns v. Kerns, 59 Md. App. 87, 97 (1984) (recognizing that even though pendente lite order awarded parent custody, that award was “by virtue of a temporary, pendente lite order to remain effective only until there could be a final adjudication of the custody dispute” (emphasis in original)).
2. Taylor-made custodial findings.
After the merits hearing, the circuit court granted Father and Mother joint legal and physical custody. The court also awarded Mother tie-breaking authority in connection with any decisions regarding A and B for which she and Father can’t agree. Nevertheless, Mother argues these were erroneous decisions that warrant reversal. We disagree.
There are two kinds of custody: legal and physical. “Legal custody carries with it 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.” Taylor v. Taylor, 306 Md. 290, 296 (1986). Joint legal custody grants both parents an equal voice in making those decisions, and neither parent has rights superior to the other. Id. Joint legal custody also takes “multiple forms,” one of which is joint legal custody with a tie-breaking provision. Id. at 303. This approach allows the parents to decide matters affecting their children together, but if they can’t, the parent awarded tie-breaking authority makes the final call. Santo, 448 Md. at 632–33.
Physical custody, also called parenting time, is “the right and obligation to provide a home for the child and to make the day-today decisions required during the time the child is actually with the parent having such custody.” Taylor, 306 Md. at 296. Joint physical custody “may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.” Id.
When a circuit court determines custody, particularly whether to award joint or sole legal custody, it considers the “Taylor factors,” as first enumerated by the Maryland Supreme Court in Taylor v. Taylor: (1) the parents’ capacity to communicate and reach shared decisions affecting the children’s welfare; (2) the parents’ willingness to share custody; (3) the parents’ fitness; (4) the relationship established between each child and each parent; (5) the children’s preferences; (6) the potential disruption of the children’s social and school lives; (7) the geographic proximity of the parental homes; (8) the demands of each parent’s employment; (9) the age and number of the children; (10) the sincerity of the parents’ requests; (11) the parents’ financial statuses; (12) the impact on state and federal assistance; and (13) the benefit to the parents. J.A.B. v. J.E.D.B., 250 Md. App. 234, 255–56 (2021). The court does not weigh these factors equally—the parents’ capacity to communicate with each other and reach shared decisions affecting the children’s welfare is the most important factor. Taylor, 306 Md. at 304.
In this case, the circuit court analyzed the factors properly when granting Father and Mother joint legal and physical custody and awarding Mother tie-breaking authority:
• The fitness of the parents: “Both parents appear fit. They appear to be interested sincerely [in] the [wellbeing] of their children. They are involved in their lives. It is clearly evident that the [Mother] has taken steps to address the difficulties academically and behaviorally that [A] has. [Father] has also taken steps to make sure that the children have a place where they can have the proper accommodations when they are at his home and he clearly demonstrates an interest [and] desire to be involved in their life to a greater extent than [has] already occurred. And he has regularly been involved with them since this parenting plan was put in place.”
• The request of each parent and the sincerity of the request: “As I indicated both parents are sincere in their request. I think they are sincere that they want what is best for the wellbeing of their children.” During the merits hearing, Mother detailed A’s medical issues and how Mother had to take A to numerous medical appointments. Because of these issues, Mother said that too much change is detrimental for A, but she acknowledged that the children need a relationship with Father.
• Any agreements between the parents: “Obviously, there was an existing parenting plan. The testimony before the Court was that that is generally been working. The Court places great reliance on the fact that there is a plan in place. It was agreed to and that, that it has been working.”
• The willingness of the parents to share custody: “There has been expressions of desire to act as co-parents. There has also been indications before the Court today that both parents believe that it is important for the children to have a good relationship with the other parents and they have taken acts to foster that relationship and to maintain that relationship.”
• 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: “[T]he Court finds that the parents take satisfactory steps in these regards and are making efforts to keep their children involved with the other parents as well as to integrate the children with their stepsiblings.” For example, A
and B share a room with Fiancée’s daughter when they stay with Father.
• The age and number of children: “[Mother] has an 18-year-old son. [Fiancée] has an 11-year-old daughter and a 13-year-old son.”
• The ability of the parents to communicate and to reach shared decisions affecting the child’s welfare: “It exists. I think it’s fair to say that it could be strengthened. There is evidence before the Court and admissions from the parties that they do have difficulty communicating. That there is a preference that they communicate directly with one another only and not with significant others. And that they prefer that those communications preferably be by text message or something that is not as volatile. The Court will tell you that there is an App called App Close. A-P-P C-L-O-S-E. That is specifically for people in co-parenting relationships. It facilitates communications. And I’m going to order you to communicate with that manner. I assume you both have smart phones.”
• Parental employment and opportunities for time with the child: “There’s been testimony before the Court that both parents are able to accommodate the children’s schedule, get them to appointments. There’s testimony that [Father] is willing to provide transportation to schools and to appointments. That will be expected. It is important that the children receive the care that they need to address their issues. So, you may be driving up and down 70 a lot but that needs to occur.”
• The relationship established between the child and each parent: “The Court finds that it’s a well-established relationship.” There was also no testimony to the contrary. The circuit court weighed the evidence carefully and we see no abuse of discretion in its decision to award joint custody with a tie breaker to Mother under these circumstances. Even so, Mother asserts that because the parties had reached an Agreement, the court needed to justify the deviation and explain how deviating from that Agreement was in the children’s best interest. We disagree for a number of reasons.
First, the court weighed the relevant factors in a manner consistent with the best-interests standard. The court highlighted, for example, that Father and Mother sought custody sincerely and that both wanted “what is best for the wellbeing of their children.”
In assessing the parental employment and opportunities for time with the children, the court noted that Father would be “expected” to transport the children to school and medical appointments and that this obligation would burden Father, as he “may be driving up and down [Interstate] 70 a lot, but that needs to occur.” And in light of the testimony about A’s extensive medical history, including how A benefits from consistency, the parenting time allocation, with each parent having one full week with the children at a time, seems consistent with A’s best interest.
Second, even if these parents struggle to communicate (and some of their exchanges during the merits hearing suggest as much), the court still had ample evidence to support its decision to award joint custody with a tiebreaker. Because parents’ ability to communicate is the most important factor under Taylor, “[o]nly where the evidence is strong in support of a finding of the existence of a significant potential for compliance with this criterion should joint legal custody be granted.” Id. at 307. The court acknowledged that communication was a weakness for the parties in this case, finding it “fair to say
that [this factor] could be strengthened.” The record nonetheless supported the court’s finding that the parents had that potential. The court identified a solution, an app called App Close that “is specifically for people in co-parenting relationships . . . [to] facilitate[] communications,” and directed them to use it. The court also pointed out that Father and Mother’s Agreement had “been working,” and credited Father’s testimony that communication between him and Mother had been “good since this court and stuff started.”
The court had a sufficient basis to find that these parents have the potential to communicate well enough to manage joint legal and physical custody.
Third, both parents sought deviations from the terms of the Agreement and the circuit court wasn’t bound at the merits stage, by virtue of the magistrate’s pendente lite recommendation, to enshrine the Agreement exactly as written. Frase, 379 Md. at 111. The court didn’t abuse its discretion by considering the parties’ requested deviations from their earlier Agreement—deviations motivated, they claimed, by the experience of trying to implement the Agreement— and resolving their differences.
Fourth, the court’s decision to award Mother tiebreaking authority was grounded amply in the evidence adduced at the merits hearing. Mother testified about A’s extensive medical history and her role in ensuring that A received the appropriate treatment. In awarding Mother tie-breaking authority, the court cited the fact that Mother had “taken the lion share of the work up until this point with seeing to [the children’s] medical, dental needs and appointments,” and therefore afforded Mother’s contribution greater weight. Santo, 448 Md. at 646 (“[A] court . . . ruling on a custody dispute may, under appropriate circumstances and with careful consideration articulated on the record, grant joint legal custody to parents who cannot effectively communicate together regarding matters pertaining to their children . . . [and] include tie-breaking provisions in the joint legal custody award.”).
In sum, the record supports the circuit court’s weighing of the relevant custody factors, we see no abuse of discretion in the court’s decision to award joint legal custody with tie-breaking authority to Mother and to allocate parenting time as it did, and we affirm the custody portion of the judgment.
B. The Circuit Court Erred in Terminating Father’s Child Support Obligation.
One more issue remains. In addition to the custody rulings, the circuit court terminated child support and directed Father to “follow up with DSS to confirm termination.” Mother argues that the court lacked jurisdiction over the child support case and could not terminate Father’s support obligation. We reach the same conclusion as Mother but for different reasons: (1) Father did not file a motion to modify his support obligations; and (2) the court did not have statutory authority to terminate Father’s support obligations without one. This issue turns on questions of statutory construction that we review de novo. Kpetigo v. Kpetigo, 238 Md. App. 561, 569 (2018); Walter v. Gunter, 367 Md. 386, 392 (2002) (“[W]here the order involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of
review.”).
The relevant statute contains two provisions for modifying a child support award:
(a) “The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance”; and (b) “The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” Md. Code (1988, 2019 Repl. Vol.), § 12-104 of the Family Law (“FL”) Article. Neither provision authorized a change in child support in this case on this posture.
Under FL § 12-104, a circuit court may not retroactively modify a child support obligation to a date before a support obligor—in this case, Father—files a motion to modify that support. Id. We examined this statute’s legislative history in Harvey v. Marshall, 158 Md. App. 355 (2004), aff’d, 389 Md. 243 (2005), and held that the General Assembly, “in using the term ‘modify’ in FL section 12-104 simply followed the language of the Federal statute, intending to prohibit, inter alia, the courts from wiping out an arrearage accrued during periods before the filing of a motion for modification.” Id. at 370. As such, there is no statutory or case law authority to modify a child support order without a petition for modification.
Here, there is no record of Father ever moving to modify or terminate the existing child support order. To be sure, the circuit court entered that child support order before determining custody. But the statute required Father unambiguously to file a motion to modify the child support order before the court could consider modifying it. This is important because the child support can’t be modified without the moving party demonstrating first that there has been a material change in circumstances. Because Father never filed a motion to modify, this prerequisite wasn’t (and couldn’t be) met, and the circuit court lacked the authority to modify the existing child support obligation. See O’Brien v. O’Brien, 136 Md. App. 497, 509 (2001), rev’d on other grounds, 367 Md. 547 (2002) (recognizing that because parent never moved to modify child support order against him, circuit court could not retroactively modify order, and parent could not unilaterally stop paying child support until filing and succeeding on motion).
In addition, the circuit court’s order states that the child support was “terminated,” but the statute provides no authority to terminate support altogether. The Maryland Supreme Court addressed this in Wills v. Jones, 340 Md. 480 (1995), noting that if the circuit court in that case intended to terminate the father’s child support obligation, it lacked statutory authority to do so. Id. at 486. The Court reasoned that theoretically, a court could relegate one’s child support obligation to $0 a month if that obligor’s income was low enough, such as when an obligor is incarcerated. Id. at 487. But even in those situations, the obligation remained: even though that person would not be paying anything, the support order would not be eliminated but would remain subject to a change in future circumstances that might warrant an increase. Id. The statute does not contain any provision that would justify terminating an obligor’s child support obligation entirely.
For these reasons, we reverse the portion of the circuit court’s order terminating Father’s child support obligation.
FOOTNOTES
1 We refer to the children as “A” and “B” to protect their privacy.
2 Mother listed the Questions Presented in her brief as follows:
I. Whether the trial court erred as a matter of law in disregarding the parties’ parenting plan agreement.
II. Whether the trial court erred in modifying the child support order issued in a separate case not before the court.
Father did not file a brief.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s refusal to modify custody to grant father primary physical custody. The circuit court carefully considered the best interests of the minor in finding that primary physical custody should remain with mother.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
that Father would also have custody of A. at least two additional weekends during the school year, provided he give Mother notice at least seven days in advance. Father would have primary custody of A. during the summer break, with Mother having custody one weekend per month from Friday at 5:00 p.m. to Sunday at 5:00 p.m. and at least two additional weekends, provided she give notice to Father at least seven days in advance.
The Agreement also set forth a schedule for holidays and stated that the parties agreed “to meet each other at a mutually agreed upon half-way point between their residences to exchange the minor child.” The parties agreed that Father would pay Mother $800.00 per month in child support and would continue to make payments for Mother’s Honda CRV in the amount of $300 per month until the note was paid in full. The Agreement was incorporated into a judgment of absolute divorce docketed on November 30, 2020.
This appeal arises from an order issued by the Circuit Court for Montgomery County granting in part, and denying in part, a Petition for Modification of Custody, Child Support, and Other Relief filed by appellant, Michael Keneke Curtis (“Father”). On appeal, Father presents the following questions for this Court’s review, which we have rephrased slightly, as follows:
1. Did the court abuse its discretion in failing to award Father primary physical custody of the minor child?
2. Did the court abuse its discretion in denying Father’s motion to alter and/or amend the modification order?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Marital Agreement and Petition to Modify
Father and appellee, Skylar Elizabeth Batliner (“Mother”), married on July 1, 2016, and separated on November 16, 2019. They are the parents of one minor child, A., born in August 2016.1
On August 6, 2020, the parties entered into a Marital Settlement Agreement (the “Agreement”), which settled all matters “arising from their marital relationship,” including custody and child support. The Agreement provided for joint legal, and shared physical, custody of A. pursuant to an agreed upon schedule. During the school year, the Agreement provided for A. to be primarily in the care and custody of Mother, with Father having custody one weekend every month from Friday at 5:00 p.m. to Sunday at 5:00 p.m. The parties agreed
On May 8, 2023, Father filed a Petition for Modification of Custody, Child Support and Other Relief, alleging “a material change in circumstances concerning the welfare of the minor child.” He alleged that, since the Agreement, Mother had become “transient,” lacked “appropriate stable housing,” and was “unable to provide appropriate care” for A. Father noted that Mother had remarried after the parties’ divorce, and she was abused by her new husband. She then moved back in with Father in the late summer of 2022, and A. began attending Wolfe Street Academy, the school zoned for Father’s residence. Mother now intended to move from Baltimore to Virginia Beach with A. to live with a friend. Father argued that it was in the best interest of A. to continue attending Wolfe Street Academy and for Father to have primary custody of A. He asserted that he was able to provide A. with stability and predictability because he had stable housing and employment. Father requested that the court award him primary physical custody of A., with the parties to maintain joint legal custody. Father also requested that Mother pay child support and Father’s attorney’s fees associated with the petition to modify.
On July 21, 2023, Mother filed an answer to Father’s petition for modification, admitting the allegation that there had been a material change in circumstances. She denied, however, that she had unstable housing, was unable to care for A., and that it was in the best interest of A. for Father to have primary physical custody. The court scheduled a hearing on the petition for modification.
II.
Hearing on Petition for Modification A. Father’s Testimony
On January 2 and 3, 2024, the court held a hearing on the petition
to modify. Father described A. as “very active, very curious, very kind, and respectable.” He testified that he has a “normal parental bond” with A. and talked to him four to five times per week.
Father stated that, in negotiating the Marital Settlement Agreement, he agreed to Mother having primary physical custody of A. during the school year because Father had an untreated medical condition that Father “didn’t understand” and was living with friends and family members to help pay off debt. He “didn’t feel like [he would] be the best parent at that time.” At the time of the hearing, however, this medical condition, sleep apnea, had been treated and resolved.
In October 2021, while employed at T. Rowe Price, Father purchased a house in Baltimore, where he resided at the time of the hearing. He chose the house “because of its close proximity to Wolfe Street Academy,” which at the time was ranked as one of the top five schools in Baltimore City.
At the time of the Agreement, Mother was renting a house in Virginia Beach and living with a friend. She resided there until March 2021, when she moved in with her sister. Sometime before August 3, 2021, Mother remarried and moved in with her new husband, J. T. Father learned of the marriage via Facebook. A. attended his first year of school in Shenandoah, Virginia. Father testified that A. witnessed domestic violence during the time of Mother’s marriage to J.T., stating that Mother told him of an incident on A.’s first day of school involving physical abuse between Mother and J.T. While A. was in the back seat of a car waiting to be dropped off at school, J.T. “opened the car door and attempted to pull [Mother] out, [and] she responded by punching him in the face.”
Mother resided with J.T. until August 2022, when she fled to a women’s shelter in Virginia to escape domestic violence in the marriage. Mother stayed at the shelter for approximately one month.
Mother then moved to Baltimore, with A. and her other son, G.,2 to stay with Father. A. attended Wolfe Street Academy for his entire first-grade year. Mother and Father were not in a romantic relationship at the time, Mother was not employed, and she was pregnant with her third child, Am., the daughter of J.T. Am. was born in October 2022, while Mother resided in Baltimore with Father. Father testified that he supported Mother while she, A., G., and Am. lived with him. He preferred that Mother not work “[w]hile pregnant” and “shortly thereafter.” Father deducted $500 from his child support obligation in exchange for her living in his home. He sometimes paid for her and the children’s clothing, as well as baby furniture and gear, and he provided groceries and transportation. Father also paid for a babysitter to assist Mother with childcare. In general, A. had a “good relationship” with his younger siblings.
Father testified that the plan was for A. to remain at Wolfe Street Academy after his first-grade year. Mother, however, relocated to Chesapeake, Virginia in April 2023. Father offered to buy Mother a house in Baltimore or pay rent “as long as she resided within a reasonable distance . . . in Maryland.” Father gave Mother “close to $2000 for a security deposit. . . [t]he last week of April 2023.” He testified that it would be in A.’s best interest to “see both of his parents, as well as his siblings,” and Mother living close by would be a way to accomplish that.
Prior to Mother relocating, Father and Mother had an argument, and Mother asked that he confirm that she was permitted to take A. wherever she went. Father confirmed that she could take him, and “the next day she made plans to move to Chesapeake.” A. went
with Mother to Chesapeake in April, but he returned to stay with Father in May to finish the remainder of the school year at Wolfe Street Academy. A. often stayed with his paternal grandmother, Ruth Curtis. Father testified that A. spent overnights with his grandmother “[b]ecause he has a relationship with his nana,” not for childcare purposes.
Father discussed his daily routine with A. from May until July 2023, during the time A. was in Father’s custody. Father would walk A. to school and “try to get as much work done before he came back.” After school, Father and A. would usually go to the library. Father prepared A.’s meals and arranged his hygiene. Father and Mother agreed that yelling or corporal punishment did not “work with either of [them],” so generally he used a “timeout” to discipline A. A. had some “school behavioral issues” and “accidents” while he attended Wolfe Street Academy.
Mother communicated “sparingly” with A. from May until July 2023, and she did not visit him during that time. Mother requested to see A., but Father was only “amenable to her seeing [A.] . . . at a home that was neither [his] nor hers.” He proposed that Mother see A. at his mother’s residence or at the home of Mother’s sister. Mother opposed this arrangement, even though she had previously agreed to meeting at A.’s grandmother’s house for custody exchanges.
A. visited Mother the weekend of July 7, 2023. Sometime that weekend, Father sent Mother an email informing her that he would have to delay A.’s pickup. A., however, was “not made available” to him when he contacted Mother “a couple of times” to regain custody. In an email dated August 7, 2023, Father asked Mother when A. would be available for pickup to attend a summer camp that A. was registered for in Baltimore. Mother did not give “a clear or concrete answer” about A. attending summer camp, and
A. did not attend the non-refundable camp that summer.3 Sometime after July 7, 2023, Mother requested that Father attend mediation, but Father was not sure “what specifically [they would] be talking about,” and he did not attend. Father did not regain care and custody of A. after A’s July 2023 visit with Mother.
Father did not see A. on his birthday, August 3, 2023, but he did not specifically ask to see A. Father also did not express any concerns regarding A. starting school in August. Father’s first visit with A. after July 2023 was in October, when Father stayed in a hotel 10 minutes from Mother’s new residence. He next visited A. in November. Father attempted to arrange for visitation over Thanksgiving, but Mother and her boyfriend, Timothy Russell, who Mother relied on for transportation, were “under the weather.” Father next saw A. on December 20, 2023, for an extended visit over the holiday.
Father testified that he did not have concerns about Mother’s personal ability to care for A., but he was concerned that she was dependent on other people because she did not have employment or transportation of her own.4 Father was concerned about “what would happen to [A.],” if something happened to Mother’s partner, Mr. Russell.
Father testified that he maintained contact between A. and his family, and he was “[s]omewhat” in contact with Mother’s side of the family. A. visited with Father’s extended family on Christmas Day and Memorial Day 2023. Father reached out to Mother’s extended family to arrange for visitation while he had custody of A. Mother did not have any contact with her family while A. was in her care. Although the parties had joint legal custody of A., Father testified that Mother did not include him in all the decisions, including “[u]
nilaterally moving to Chesapeake, Virginia” and deciding not to have A. vaccinated for COVID-19.5 Father testified that Mother did not inform him of her spring 2021 move from Norfolk, her move to Shenandoah, or her move to Chesapeake in April 2023.
On September 19, 2023, after Mother had already enrolled A. in school in Chesapeake, Virginia, Father received an email communication from Mother with information about A.’s school, teacher, and school documents. On November 14, 2023, Mother emailed Father regarding an altercation at school involving A. Father testified that A. had told him about the altercation prior to Mother sending the email. Father stated that the “pattern” for communication was that A. notified him of events at school, and he “might get an email later on from [Mother] saying that’s what happened.” Father did not communicate with the school about the altercation, but he discussed the matter with A. and “consoled him about it.”
Father testified that he was listed only as an emergency contact for school, and he was not authorized to pick up A. from school or access his school records. Father was not registered for ParentVUE, the communications portal for A.’s school, despite Mother advising him that ParentVUE was the platform used for school communication.
At the time of the hearing, Father worked for Tibit, LLC, and he made more than $180,000 annually. A. was listed as a dependent on Father’s health, vision, and dental benefits. Father worked from 7:00 a.m. to 3:00 p.m. most days, but he could choose his own hours. He also had the ability to work from home. Father stated that, if he were granted primary physical custody of A., he would allow Mother to have access to him. The current distance between Father and Mother was 240 miles, the same distance as when the Marital Settlement Agreement was entered as an order in November 2020.
With regard to visitation arrangements after A. moved to Chesapeake with Mother, Father stated that Mother did not make it easy for him to see A. on his birthday. Although she did not decline visitation, “she didn’t respond or didn’t respond in a timely manner, which would have the same effect,” and she then proposed an arrangement that she knew Father would not accept. Father admitted, however, that Mother informed him of the plan for A.’s birthday and suggested that he visit afterward, but he did not.
B.
Testimony of Robert Guth
Robert Phillip Guth, Jr., the fiancé of Mother’s sister, Cali Delamater, testified next. He had known Mother and Father for approximately eight years. He had a bond with A. in the past, but he had not seen him as much as he would like because Mother did not respond to his calls or texts. He had not seen A. since summer 2023. Mother lived with Mr. Guth and her sister for approximately two months in Front Royal, Virginia. Mother moved out to live with J.T., and after a month or two, Mother “cut off contact” with her sister and Mr. Guth. Mr. Guth did not have concerns about A. living with J.T., but he did have concerns about G., Mother’s second child. Mother had shown him concerning bruises and burns on G. Mother told him that the burns were caused by a new hot water heater. Mother moved out of the residence because J.T. was “abusive, verbally, and physically.”
Mr. Guth met Mr. Russell, Mother’s then-partner, two times. Mr. Guth made a joke that Mr. Russell did not like, and Mr. Russell “started stepping into [his] face.” Mr. Guth “apologized to make it easier for” everyone to “get along.” Mr. Guth believed that he would
be able to see A. in the future when Mother “decides that she’s either comfortable with this guy enough or moves on to another.” If A. was in Father’s care,
Mr. Guth did not see any issues visiting him, even with the distance, because he could pick up A. and drop him off at A.’s paternal grandmother’s house.
Mr. Guth expressed concerns about Mother maintaining primary custody of A. because “she’s all over the place, the kids aren’t regimented . . . and there was no routine.” Mother was unable to resolve conflict with a conversation, and instead, “whenever she’s proven wrong or whenever she gets mad, she just yells” or hangs up the phone. He believed she needed a therapist to help her. Mr. Guth testified that it would be in the best interest of A. for Father to have primary custody.
On cross-examination, Mr. Guth admitted that Mother’s sister had blocked Mother’s calls, had told Mother to “kill herself,” and that he had called Mother a “whore” in the past. He also conceded that, based on stories from Mother, he previously had “said it was dangerous to leave [A.] with [Father].” Mr. Guth said that he no longer had safety concerns about A. being in the care of Father, but he stated that he was not “super close with him.”
C.
Testimony of Paternal Grandmother
Ruth J. Curtis, A.’s paternal grandmother, testified that she had a very close bond with A. and had consistently been in his life. She noted that Father and A. were also “very close,” and Mother was “a very loving mother,” who “really does care for [A.].”
Ms. Curtis testified about an altercation that involved J.T. A. was “traumatized” by the incident. The next day, when she and Father drove with A. past the path leading to J.T.’s residence, A. “started shaking” and saying that he did not “want to go there.” A. also began to “shy away” from Ms. Curtis. Ms. Curtis offered for Mother and A. to stay in a hotel with her and Father after the incident.
Ms. Curtis also learned from Mother that CPS was investigating the residence in December or January of 2022 because G. had been burned by water. Ms. Curtis contacted a sheriff from Prince William County, Virginia, as well as a battered women’s program, in an effort to assist Mother. Ms. Curtis testified that Mother had told her that J.T. “had attacked her while she was pregnant” and did not assist her with any household work.
Since July 2023, Ms. Curtis had seen A. two times. A. often had cold symptoms when he visited, more so than when he resided with Father. When A. visited, he liked to sleep with her in her king size bed, bathe in the jacuzzi tub, go to church, cook, and “just have fun.” A. had stayed with Ms. Curtis from June 17 until July 2 or 3, 2023.
If Father were awarded primary physical custody, Ms. Curtis would be able to assist him however he needed. She was not employed at the time, had her own car, and could stay with Father and A. “[i]f he ha[d] to take care of any business.” If A. had any event at his school, she “would definitely show up for it.” She had a history of supporting both Father and Mother. Ms. Curtis struggled with her recommendation for primary physical custody, stating:
I’ve fought with this a long time, and I do believe this child should be with the mom. But there’s been some things that I just don’t want to choose because either way a child in a way should be with their parents It’s hard I’ve battled with this because I don’t
want to do this to any woman. But when you have to look upon the child, then you have to counter [to] do just that.
Ms. Curtis testified that A. “would be better off with his dad in one location, one school . . . [where h]e can have activity or extracurricular activity instead of . . . four and five hour drives Something more meaningful.”
Since the divorce in 2020, Mother’s communication with Ms. Curtis was limited to arranging for pickup of A. because Ms. Curtis’s home was the midpoint between the parties. She also met Mother at other locations, including Mother’s residence, to facilitate custody exchanges. Ms. Curtis had interacted with Mother’s other children during custody exchanges. Ms. Curtis acknowledged that she and Mother had discussed Mother’s concerns with regard to the methods of discipline Father used during the time they were married.
D.
Mother’s Testimony
Mother testified that she lived in Chesapeake, Virginia, with her boyfriend, Timothy Russell, and her children, seven-year-old A., twoyear old G., and one-year old Am. Mr. Russell also had an 11-year-old daughter, O., from another relationship, who resided at the home on alternating weekends. At the time of the hearing, Mother had lived with Mr. Russell for almost a year.
J.T. is Am.’s father. She and J.T. were separated, but not yet divorced, at the time of the hearing. G.’s father, B., is someone Mother had known since preschool. Their romantic relationship lasted approximately three months. Mother was not in contact with B. and did not seek child support from him. B. had been exhibiting symptoms of “schizophrenia” and told Mother “he didn’t want to be a part of [G.’s ] life.” When B. told Mother that he did not want Mother to have G. and “wanted to sacrifice [G.] in the woods before [his] first birthday,” she left. B.’s family did not wish to have contact with Mother or G. Neither B. nor J.T. had any current relationship with A.
After the parties divorced in 2020, Mother lived in Norfolk, Virginia, with A., and she gave birth to G. Mother then moved in with her sister in Front Royal, Virginia, from May 2021 to July 2021. Mother moved out of her sister’s residence because there were “a lot of altercations happening between [her] and [her] sister’s fiancée, Robert Guth, such as him name-calling and saying inappropriate things around the children that [she] didn’t like.”
In the summer of 2021, Mother moved in with J.T., in Shenandoah, Virginia. A. primarily was in Mother’s care, and Father did not often ask for visitation. Mother informed Father that she was moving in with J.T. “one to two weeks” before the move and Father was concerned that A. was moving out of Mother’s sister’s house. At the time she moved in with J.T., they had been dating for approximately one month. After Father learned that she and J.T. had married, Father asked if she “would like him to sign papers releasing custody so that [J.T.] would have the opportunity to adopt him if [she] saw fit.” In August 2022, Mother moved out due to domestic violence. Near the end of their relationship, J.T. cut off Mother’s “modes of transportation and access to finances,” and during that time, her Honda CR-V “went missing.” Mother engaged law enforcement to get it back, but she was unsuccessful. Mother moved to a battered women’s shelter in Luray, Virginia. Father was supportive of Mother’s move to the shelter, but he did not offer to take A. while she was there. A. and Mother stayed at the shelter for approximately one
month before moving in with Father in Baltimore. Mother had not reached out to J.T.’s family or pursued divorce on the “advice of the women’s shelter.”
Mother resided with Father in Baltimore from the early fall of 2022 until April of 2023. Mother was not employed while she resided with Father, and she agreed that Father could deduct $500 from her monthly child support payment to pay for her rent and utilities.6 Mother gave birth to Am. while she resided with Father in 2022. Mother described her typical day while she resided with Father. She would wake up with her younger son, G., then get A. ready for school, and prepare breakfast. Sometimes A. would eat breakfast provided by the school if they were running late. Typically, she walked him to school, but on occasion, Father would walk him there. After school let out at 2:30 p.m., A. would come home, change into “relaxed clothes,” eat a snack, complete his homework, and then have free time. Mother described A.’s relationship with his siblings, as follows:
[F]or [G.] and [A.], they are best friends and also sworn enemies sometimes. They fight and then they love each other. And they are very rough and tumble. With [Am.], that is [A.’s] probably favorite person in the world. And what he calls her sissy bean He wants to be involved in every step of the process with her. Sometimes t[oo] involved and I have to kind of tell him to be careful when he tries to pick her up and things like that.
In the evenings, the kids would play at the house, hang out, read, watch movies together, and have dinner. Sometimes they would run errands. Mother was still “getting the hang of being a mom to [her] . . . daughter and navigating life with the three babies.” At bedtime, Mother would bathe the boys together, read them a book, maybe sing a song, and then tuck them in. The boys had separate bunk beds, but they often slept in the same bed by choice. Mother drove a Ford Expedition while residing with Father.
Mother decided to leave Father’s house and move to Chesapeake in April 2023 because Father was making repeated sexual advances to her that made her “extremely uncomfortable.” Starting soon after Mother moved in with Father, and while she was pregnant with Am., Father would ask Mother “to do sexual favors for him and make threats as though he would no longer let [her] live with him if [she] didn’t.” Mother informed Father that she would be finding another place to live because his home was not a “healthy environment” for her and the children, and she did not want them to witness her and Father fighting about it.
There was a lot of “back and forth” with regard to Mother’s decision to move out. Father at one time “was okay” with her moving and offered to pay a down payment on a new place. He then, however, told Mother that he wanted her to stay in Baltimore and would pay for her to rent a separate apartment close by. Mother stated that Father “would be in full control of [where she lived]” and that if she tried to leave the area, Father would attempt to take A. from her.
In April 2023, the parties discussed Mother’s plans to move. They decided that it would “make more sense” to let A. finish out the school year at Wolfe Street Academy, and she would take him to her new residence as soon as the school year ended. On the day that Father knew Mr. Russell was driving to Baltimore to pick up Mother and her other children, Father left the house, stopped responding to Mother’s calls, and removed all the car seats from the home. Father also left A. at the house, so A. ended up going with Mother and Mr. Russell to Chesapeake. Because Father would not respond to her
calls, Mother attempted to enroll A. in school in Chesapeake. The parties eventually agreed that
A. would return to Baltimore to finish the school year, and A. would return to live with Mother “[a]s soon as he was out of school.” After A. returned to Baltimore, Mother stated that she and Father discussed her having extra time with A. over the summer, since A. spent the remaining part of the school year with Father, during her assigned custody period.
In June 2023, after school let out, Mother reached out to Father over email and telephone in an attempt to speak to A. and arrange for visitation. Father informed Mother that she could see A. at his mother’s house or at her sister’s house, and A. could not go to Mother’s residence because Father felt it was unsafe. Father denied Mother’s offer to meet Mr. Russell and see her new residence. Mother did not see A. from April 2023 until early July 2023, but she did maintain telephone contact with him. Although Mother considered “rotat[ing]” the schedule based on Father’s concerns about “moving [A.] around” and “not knowing” about her new partner and their home, she “very quickly decided that that was definitely not in [A.’s] best interest at all” because Father was “making it very difficult for [her] to have access” by limiting the visitation locations.
In early July 2023, Mother arranged for visitation with A. She could not recall “an exact agreement” as to the length of the visit, but she was willing to keep A. for as long as Father agreed. Father did not seem to have “much interest in trying to get [A.] back . .
. other than [to attend] the summer camp.” Regarding the camp, Mother stated that she never got a response on the schedule, and Father “wasn’t willing to give [her] a date that [she] would be getting him back.” On July 8, 2023, Mother sent Father an email stating that A. wanted to stay with Mother longer and requesting permission to keep him. Father agreed. In a subsequent communication exchange in September 2023, Mother waited more than a week to respond to Father’s request for visitation because she “had to come up with a good schedule to figure out what would be the best routine.”
Mother’s residence in Chesapeake had three bedrooms, two and a half bathrooms, a playroom, living room, “decent size kitchen,” and a “bonus room” for the dog. A. shared a room with G. There was a yard in the back, but Mother did not “really have the kids play back there” because the surrounding neighbor’s yards were overgrown and the children preferred to play at the playground. After school, A. liked to play with his friends in the neighborhood and at the park.
On Mother’s Day 2023, A. was staying with Ms. Curtis, but no one in Father’s family arranged for A. to have either an in-person or remote visit with Mother. When Mother called Ms. Curtis’s home in an attempt to speak to A., Ms. Curtis advised that she would have A. call Mother back, but “it never happened.”
Mother testified that she had visited A.’s school to meet his teacher, for school events and orientation, and for a parent-teacher conference. Mother and Mr. Russell currently had a “shared vehicle,” and Mr. Russell’s parents and her great-uncle Bob lent the family an extra vehicle when needed.
A. enjoyed reading and science experiments. Outside the home, the family enjoyed walking the dog to the neighborhood gas station, and going to amusement parks, the botanical gardens, and local holiday events. In the summer, the children often went to Mr. Russell’s parents’ backyard swimming pool and trampoline.
With regard to disciplining A., Mother testified that she typically put him in “time out, quiet time” to “stop and redirect,” and she waited
for A. to “calm down before doing any type of discipline.” Mother had observed Father “yelling, sending [A.] to his room, and pulling his ear” when disciplining A. She worried that this discipline was “too physical,” and she did not want A. to “feel like he’s at risk of being physically injured if he makes a mistake.” When she discussed her concerns with Father, he stated that she was “being too soft on [A.].”
A. was scheduled to see a therapist and a psychiatrist because he had “experienced a lot of change,” and “it would be good for him to have someone to talk to” and monitor his emotional state. Mother consulted with Father about A. seeing a mental health professional, and he agreed to the plan of care but discussed getting a second opinion on certain issues.
Mother provided A.’s current school with the existing custody information and confirmed with the school that Father had the right to call “anytime he wants.” Father had not informed Mother of any difficulties accessing the school portal prior to his testimony at the hearing. Mother also testified that she sent an email, which was admitted into evidence, to Father inquiring about the exact dates of the summer camp he registered A. to attend, and she did not consent to paying for any of the camp.
Mother had three sisters. Her two younger sisters had not seen A. since the divorce in 2020 because they lived far away and were not close with family. They had never met G. Mother stated that she was in good physical health, but she “struggled with depression and anxiety.” She had seen therapists in the past to get help, but she was not currently under the care of a mental health provider. She did not take any medications. Mother testified that she had never been the subject of a child protective proceeding.
E.
Father’s requested relief
At the end of the hearing, Father requested the court to award him primary custody during the school year, with Mother having visitation in accordance with Father’s original schedule set forth in the Marital Settlement Agreement. Mother would then have custody during the summer months. Father withdrew his request for child support.
III.
Circuit Court’s Ruling
On February 27, 2024, the circuit court issued an oral opinion regarding Father’s petition for modification of custody. Because the issue on appeal involves the court’s award of physical custody, we will discuss the court’s ruling in that regard.
The court ruled that “it remain[ed] in the best interest of [A.] that the current order remain largely as it currently stands.” The court modified the order, however, to provide that Father have custody of A. for the entire summer, with Mother getting one week of vacation time with A. instead of multiple weekends.7
In explaining its ruling, the court detailed the changes in Mother’s life since the divorce, including having two additional children, as well as different residences with different romantic partners, two of whom were violent. It found that there had been a material change in circumstances based on Mother’s “relationship and residential instability.”
The court then addressed the best interest of A., stating that it
had “considered all of the factors that are outlined in Taylor v. Taylor and Montgomery County Department of Social Services v. Sanders and considered each and every one of them.” The court stated that, in a modification, it was not “required to engage in the entire analysis and put it all on the record,” and it was sufficient to say that it had “considered each and every one of th[e] factors and [it was] very familiar with th[em].” The court stated that its “remarks about the best interest of the child will touch on the factors among those which the [c]ourt in this case deems to be most relevant.”
The court stated that, based on the evidence, it was convinced that Mother is a good mother, she loves her children, and A. loves her. The court expressed concern, however, about Mother’s judgment, noting that she had placed “herself and by extension [A.] in dangerous situations.” The court also stated that Mother appeared to have low self-esteem, noting her testimony that she suffered from depression and anxiety. It stated that Mother required therapy, and that would be a condition of its order.
The court next considered A.’s stability, noting that he had been “bounced around . . . from residence to residence, from school to school,” from a male figure in the household to another male figure in the household. The court stated its concern with having “this child in a situation where he’s in danger.” The court ultimately found, however, that Mother had been in a “good relationship” for more than a year, and there were “no safety concerns there.”8 The court referred to photographs of Mr. Russell with Mother and the children, and it noted that Mr. Russell’s daughter had “a very good relationship with [A.].”
The court stated that A. was in school and “one of the worst things” that it could do was “to move him out of that school . . . in the middle of the school year.” Noting that A. was in second grade, the court found that it was not good for “a child of that age to get bounced around again to another school.” The court also found that it was in A.’s best interest to maintain the relationships he had with his siblings.
The court found that it was in the best interest of A. that “the current order remain largely as it currently stands,” with A. to remain with Mother during the school year. The court did slightly modify the order with regard to summer custody. It changed the order from giving Father primary custody in the summer with Mother having one weekend per month, plus two additional weekends, to giving Father custody for the entire summer, with Mother having only one week of visitation instead of multiple weekends. The court noted the challenge of the geographic distance between the parties, stating that if they lived closer to each other, it “would likely consider a week on/ week off situation, but that’s not practical under the circumstances.”
The court modified the summer visitation to allow A. to “have an extended time with Father” and to limit “the amount of back and forth.”
The court also ordered Mother to participate in mental health treatment to support her in caring for A. and in her “relationship issues” with other family members. The court noted that mental health treatment would also assist Mother in her decision making and judgment “so that . . . [A.] will be less likely to be put in harm’s way.”
The court ordered Mother to “provide written verification to Father on a monthly basis of her participation in mental health therapy.” On March 6, 2024, the clerk entered the court’s signed Contempt and Custody Modification Order.
IV.
Motion to Alter and/or Amend
On March 8, 2024, Father filed a Motion to Alter and/or Amend the Contempt and Custody Modification Order pursuant to Maryland Rule 2-534.9 Father reasserted allegations that he previously made and further stated that he found out after the hearing that Mother was pregnant with Mr. Russell’s child. He alleged that she had been pregnant since November 2023 and “intentionally concealed” the pregnancy from Father and the court.10 Father argued that Mother’s new pregnancy was “of major concern . . . as it continue[d] to show [Mother’s] rash and reckless decision-making.” Father also alleged that Mr. Russell had a “possible criminal history,” involving charges of grand larceny and statutory burglary, which he discovered from a search of the Virginia Case Search database. The database search results were attached as exhibits.
Father argued that he was the “only stable party.” Based on Mother’s instability, need for mental health treatment, poor judgment, Mr. Russell’s “questionable history,” and Mother’s recent pregnancy, Father argued that it was in the best interest of A. to grant Father “primary and residential physical custody of [A.] with reasonable access visitation to [Mother] starting the summer of 2024.”
Mother filed an opposition to Father’s motion to alter or amend, noting that such a motion was “not a vehicle to re-litigate a case.” She stated that the alleged criminal charges filed against Mr. Russell were 13 years old, they were disposed of by a nolle prosequi, and Father did not show how the dated charges were relevant to the custody determination. She also noted that Father provided “no compelling reason” for not offering the records at the modification hearing. Moreover, Father’s motion to amend was based on facts not in the record, but Father failed to file an affidavit related to those facts, in contravention of Rule 2-311.11
On April 5, 2024, the court issued an order denying Father’s Motion to Alter and/or Amend the Contempt and Custody Modification Order.12
This appeal followed.
DISCUSSION
Father contends that the circuit court abused its discretion in failing to award him primary physical custody of A. He argues that the court did not properly articulate the factors it considered in its decision to allow A. to remain primarily in Mother’s custody. Father also argues that the court “made the [Mother] the focus of the decision rather than [A.’s] best interest.” Additionally, Father contends that the court abused its discretion in failing to grant his motion to alter or amend in light of the additional evidence he presented regarding Mother’s pregnancy and Mr. Russell’s criminal history.
Mother did not file a brief in this appeal.
I.
Standard of Review
This court engages in “a limited review of a trial court’s decision concerning a custody award.” Wagner v. Wagner, 109 Md. App. 1, 39, cert. denied, 343 Md. 334 (1996). We apply three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, we review factual findings for clear error. In re R.S., 470 Md. 380, 397 (2020). Second, we review whether the court erred as a matter
of law without deference, under a de novo standard of review. Id. Finally, ultimate conclusions of the court, “when based upon ‘sound legal principles’ and factual findings that are not clearly erroneous, will stand, unless there has been a clear abuse of discretion.” Id.
Father’s contentions here involve the court’s ultimate custody determination. In reviewing a custody decision, “an appellate court does not make its own determination as to a child’s best interest.”
Gordon v. Gordon, 174 Md. App. 583, 637 (2007). The circuit court has broad discretion because it sees the witnesses and hears the testimony, and therefore, it “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. at 586.
We review a custody decision under the abuse of discretion standard. Gordon, 174 Md. App. at 638. “There is an abuse of discretion where no reasonable person would take the view adopted by the [circuit] 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 decision 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.” Cousins v. State, 231 Md. App. 417, 438, cert. denied, 453 Md. 13 (2017).
II.
Request to Modify Custody
Trial courts employ a two-step process when considering a request to modify child custody. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). They first determine the threshold question whether “there has been a ‘material’ change in circumstance.” McMahon v. Piazze, 162 Md. App. 588, 594 (2005). “[I]f the court determines there has been a material change in circumstance, then it proceeds to consider the best interests of the child.” Jose v. Jose, 237 Md. App. 588, 599 (2018).
Here, there is no dispute that there was a material change of circumstances. The challenge here is the court’s decision regarding the best interest of A.
Several factors guide the court’s consideration of the best interest of the child. Id. In Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 420 (1977), this Court set forth the following factors: 1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) potentiality of maintaining natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.
(Internal citations omitted).
Later, in Taylor v. Taylor, 306 Md. 290, 304-11 (1986), the Supreme Court of Maryland expanded on the factors enumerated in Sanders. The Taylor factors include: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6)
potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ requests; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factors as appropriate.
While the factors set out in Sanders and Taylor are instructive to a trial court’s custody determination, “no one factor serves as a prerequisite to a custody award.” Santo v. Santo, 448 Md. 620, 629 (2016). Indeed, this Court has emphasized that “[u]nequivocally, 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), cert. denied, 467 Md. 693 (2020).
Father’s primary argument in his brief is that the court failed to articulate the relevant factors that led to the court’s best interest determination. At oral argument, however, counsel conceded, appropriately, that the court did not have to explicitly address each factor on the record. See generally Long v. Long, 141 Md. App. 341, 351 (2001) (“[M]ere lack of an explicit discussion of each of the factors on the record by the trial court does not necessarily mean that the trial court erred.”). Father asserts, however, that the court failed to consider the best interest of A. and instead focused on Mother. We disagree.
The court here specifically stated that it “considered each and every” factor outlined in Taylor and Sanders, and in considering the best interest of A., it would “touch on the factors among those which [it] deems to be most relevant.” Our review of the record shows that the court carefully considered the best interests of A. in finding that primary physical custody should remain with Mother.
The court indicated that several factors weighed in favor of Mother maintaining primary physical custody of A., including that Mother was a “good mother,” there was no dispute she loved her children, and A. loved her. Although the court noted Mother’s past instability and exposure of A. to dangerous situations, it found that, at the time of the hearing, “things [we]re in order,” Mother was in a “good relationship” with Mr. Russell, and there were “no safety concerns” or evidence that Mr. Russell was violent. The court noted the need for A. to have stability, stating that it would be detrimental for A. to “get bounced around again to another school” and “one of the worst things” it could do was disrupt A.’s current school enrollment mid-year. Noting the challenge of the geographic proximity of the parental homes, the court modified the order to allow Mother one week of vacation time during the summer, instead of multiple weekends, to reduce “the stress and strain on [A.] to have frequent changes between the parties.”
The court also considered A.’s positive relationship with his siblings, noting that it was in A.’s best interest that those relationships be “maintained in a healthy state.”13 The court was “cautiously optimistic” that Mother’s relationship with Mr. Russell was “a positive thing for [A.].”
To be sure, the court did discuss Mother’s choices and need for therapy. We disagree, however, that the court improperly made Mother the focus of the decision instead of A.’s best interests. The court made clear that its decision to require Mother to undergo monthly mental health treatment was so she would be “supported in her caring for [A.],” finding that monthly therapy would “be beneficial to her to in her decision making and her judgment so that . . . [A.] will be less likely to be put in harm’s way.” The court
specifically noted: “Again, what I’m doing is for the best interest of [A.].” (Emphasis added). The record reflects that the court did not improperly consider Mother’s interests above A.’s in ordering mental health treatment. Rather, it required Mother to attend therapy in the best interests of A.
Father also contends that there was no evidence that Mother’s past history of exposing A. to an unstable and violent environment had changed. We disagree. The court found that Mother had been in a “good relationship” with Mr. Russell for “over a year,” and there were no current safety issues. Although Mother testified that she was considering moving again to a better neighborhood, she stated that, if they did decide to move, they “would be staying in the same area, so . . . [A.] could go to the same school.” Mother also testified that A. had a daily routine at their current residence and that “everything [wa]s very happy and functioning well.” The court noted that the evidence showed that Mr. Russell’s daughter had “a very good relationship with [A.].”
The court was in the best position here to assess the evidence and determine what disposition would best promote the welfare of A. In re Yve S., 373 Md. at 586. As indicated, we afford substantial deference to circuit court decisions regarding custody modifications. Wagner, 109 Md. at 32. On this record, we cannot conclude that the court abused its discretion in its assessment of the best interest of A. nor in its decision to deny Father’s request for primary physical custody of A.
III.
Motion to Alter and/or Amend
Father next contends that the court “erred by failing to grant the Motion to Alter and/or Amend” based on the discovery of “additional evidence critical to the issues raised in the case as well as the articulated concerns raised by the Court.” He asserts that the court’s failure to review its order in light of evidence of: (1) Mother’s pregnancy with a third child from a third domestic partner since the divorce; and (2) Mr. Russell’s criminal background was an abuse of discretion.
We review the denial of a motion to alter or amend judgment filed
pursuant to Md. Rule 2-534 for an abuse of discretion. Spaw, LLC v. City of Annapolis, 452 Md. 314, 362- 63 (2017).14 In the circumstances where a circuit court is addressing a motion to alter or amend based on evidence that could have been, but was not, presented at trial, the discretion of the trial judge is more than broad; it is virtually without limit. What is, in effect, a post-trial motion to reconsider is not a time machine in which to travel back to a recently concluded trial in order to try the case better with hindsight. The trial judge has boundless discretion not to indulge this all-toonatural desire to raise issues after the fact that could have been raised earlier but were not or to make objections after the fact that could have been earlier but were not. Losers do not enjoy carte blanche, through post-trial motions, to replay the game as a matter of right.
Shini Ping Li v. Tzu Lee, 210 Md. App. 73, 97 (2013) (quoting Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002)), aff’d, 437 Md. 47 (2014).
Here, the court did not abuse its discretion in denying Father’s motion to alter or amend. Father contends that the court should have considered the criminal charges brought against Mr. Russell because they were relevant to the court’s concern with Mother’s history of abusive partners and exposure of A. to domestic violence. Father, however, provides no explanation for why he did not present this evidence at the modification hearing. The court was well within its discretion to deny Father’s attempt to re-litigate the custody determination based on information that could have been explored earlier. Schlotzhauer v. Morton, 224 Md. App. 72, 85 (2015), aff’d, 449 Md. 217 (2016) (“When a party requests that a court reconsider a ruling solely because of new arguments that the party could have raised before the court ruled, the court has almost limitless discretion not to consider those [arguments].”). Moreover, Father’s contentions regarding Mr. Russell’s criminal history and Mother’s new pregnancy were “based on facts not contained in the record,” but they were not supported by affidavit as required by Maryland Rule 2-311(d). We perceive no abuse of discretion in the court’s decision to deny Father’s motion to alter or amend.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 We use initials for the minor child to protect the child’s privacy.
2 G. was born in 2021 after Mother started a brief relationship with a former classmate following the parties’ divorce. G.’s father was not involved in his life.
3 Mother filed a Petition for Contempt and Enforcement on November 1, 2023, alleging that Father failed to pay $1,500 in child support. Father testified that he did not pay child support in July 2023, because A. “was completely in [his] care for the month of June,” and Mother “mentioned that [Father] would not have to [pay] for the months that [A.] [wa]s with [him]. He did not pay the full amount in August 2023 because he deducted half the cost of the non-refundable camp, $250.00, from the support obligation. The court ultimately denied Mother’s Petition for Contempt and Enforcement as moot.
4 Pursuant to the Agreement, Father continued to make a $300 monthly payment for Mother’s vehicle. Mother’s husband, J.T., however, sold the vehicle without his consent.
5 Mother initially opposed vaccination, but later agreed that Father could have A. vaccinated for COVID-19. When Father took A. to CVS to get vaccinated, however, the vaccine was out of stock. A. had still not received the vaccine when the hearing took place.
6 Mother testified that, subsequent to the divorce, she was briefly employed at a 7- Eleven and a Dollar Tree, but she “had to quit due to childcare issues.” She also took occasional babysitting jobs if she was permitted to bring her children along. Mother had not renewed her child care accreditations since she stopped working. Mother received foods stamps, WIC, and Medicaid. She had $1650 in income from child support and benefits, although she indicated on her financial statement that she had no income.
7 The court made this modification due to the geographic distance between the parties and the “stress and strain on [A.] to have frequent changes between the parties.”
8 The court noted that there was no evidence that Mr. Russell was violent.
9 Rule 2-534 provides as follows:
In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgement to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial. A motion to alter or amend a judgment filed after the announcement or signing by the trial court of a judgment but before entry of the judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.
10 Father attached a screenshot of Mother and Timothy Russell’s birth registry as an exhibit to the motion.
11 Rule 2-311(d) provides as follows:
Affidavit. — A motion or a response to a motion that is based on facts not contained in the record shall be supported by affidavit and accompanied by any papers on which it is based.
12 Father did not request a hearing on his motion to alter and/ or amend.
13 Mother testified A. and G. “love[d] each other” and were “best friends” despite occasional sibling conflict, and Am. was A.’s “favorite person in the world.” She testified that A. and G. had separate bunk beds, but they preferred to sleep together.
