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Maryland Family Law Update is a review of events as they a ect the practice of domestic relations in law in the state of Maryland published by e Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
3 Child Advocacy: Sanctions for discovery during guardianship proceedings
In accordance with the juvenile court rules, discovery is often more informal, despite the protracted and complex nature of guardianship proceedings. But the use of permissible formal discovery with appropriate follow-up aided can resolve a case and achieve the ultimate goals – the child’s best interest.
4 Cover Story: Attorneys: Prenups can be dangerous if not crafted carefully
With the high rate of divorce it’s no wonder that prenuptial agreements are increasingly popular nationwide. Not all prenups are created equal, however. Maryland family law practitioners emphasize that a prenup must be precisely crafted, particularly if one partner will be coming into the marriage with fewer assets.
6
Feature Story: Family law attorney balks at turning over notes, wins ruling.
Martha R. Bagley swears she does not get up on her “high horse” often. But the subpoena the Massachusetts attorney received from a fellow member of the family law bar struck her as beyond the pale.
7 Guest column: Valentine’s Day may mean divorce inquiry, not romance
Valentine’s Day is often treated as a “high expectation” holiday; some use the holiday as a benchmark to determine whether to stay in a relationship. Thus, the day may inspire some less romantic gestures for some — like seeking out a divorce attorney.
8 Monthly Memo
A Texas attorney who drugged his wife’s drinks in an attempt to induce an abortion was sentenced to 180 days in jail and 10 years on probation. ... South Dakota has apologized and will pay $300,000 under a settlement with a transgender advocacy group that sued Gov. Kristi Noem and her health secretary last year after the state terminated a contract with it. … Christian Bale broke ground earlier this month on a project he’s been pursuing for 16 years -- the building of a dozen homes and a community center in Los Angeles County intended to keep siblings in foster care together. … A murder victim’s recently obtained emergency protective order against appellant was correctly entered into evidence because it was probative of, among other things, the “strained state” of appellant and the victim’s marriage, the Virginia Court of Appeals has held. … A Connecticut judge dismissed a juror in the trial of a woman accused of helping her boyfriend cover up the murder of his estranged wife, after the panelist likened the case to the novel and movie “Gone Girl.”
Child Advocacy
Sanctions for discovery during guardianship proceedings
Devon, aged 3 1/2, entered foster care because, just after his birth, the hospital contacted the local Department of Social Services advising that neither parent had stable housing, food or supplies for the child, and could not take care of a newborn.
The department filed a guardianship petition to terminate the parental rights of Devon’s parents and free him for adoption because Devon had been in care for almost 4 years, and neither parent was engaged or visiting for the 24 months prior to the filing. FL § 5-323. Mother consented to termination of her parental rights once she and the foster parents reached a post adoption contact agreement (PACA).
The foster parents, however, were unwilling to enter into a PACA with the father, as they were aware of his history, which included threats of violence.
Devon’s counsel served formal discovery on the father, a process not often utilized in such proceedings. These requests were intended to focus the attention of both the father and his counsel on the facts of the case from the father’s perspective, particularly with respect to the requisite factors that the court must consider in a TPR proceeding under FL § 5-323(d) and, thereby, encourage the father also to consent. FL § 5-323(d).
Devon’s counsel served discovery on the father in January. Md. Rule 2-421.
The father’s counsel filed a set of answers to interrogatories after an agreed upon, three-week extension had elapsed, with many responses being incomplete, left blank, or with a broad objection that the “question [was] irrelevant, demands privileged information and [] overly broad.”
Most importantly, the answers to interrogatories were unsigned, and, therefore, did not qualify as a discovery response. Md. Rule 2-421(b).
When a party to a civil action fails to provide a response to a discovery
MARK
STAVE
Child Advocacy
request, the party propounding the discovery is not required to seek to compel a response before asking for sanctions. Md. Rule 2-432.
Devon’s counsel filed a motion for sanctions in late March.
In April, the juvenile court held a hearing on the motion, accepted the representation of the father’s counsel that she had been unable to contact the father, and set another hearing in May.
In May, the court gave the father until the end of that month to produce discovery.
The father failed to produce the discovery, and in June the court considered the child’s motion for sanctions, which requested that the father be prohibited from offering any evidence, testimony or argument related to any issues raised in the interrogatories.
The court was correctly concerned with the tension between upholding the court’s discovery rules and the father’s constitutionally protected parental rights, an issue which would have been carefully weighed if appealed.
The priority for Devon’s counsel was to prevent the father from testifying about matters that could be corroborated or contested only by others’ testimony, thus requiring the court to weigh the father’s word against another’s.
If the father testified about his interactions with the foster parents, his attendance at Devon’s medical appointments, or any provision of economic support to Devon, his testimony would have to be countered with opposing testimony, drawing the case out significantly.
If the requested sanctions prevented the father from testifying or offering his own evidence, but allowed his counsel to examine and cross-examine
witnesses, offer evidence from the department’s record and the court record from Devon’s Child In Need of Assistance case, and to argue with reference to such evidence, both the rules of the court and the father’s parental rights could be properly balanced.
The parties submitted briefs on the matter, and six months after discovery responses were originally due, the court ordered in pertinent part:
“… Father shall be precluded during trial from offering any testimony, document, or other evidence that is responsive to [Child’s] Interrogatories to the Father (propounded on [X/XX/ XX]) if such testimony, document, or other evidence was not: (a) part of the record in the Respondent’s CINA case […] or (b) produced by a party to all parties in either the CINA case or this case.”
After the court’s ruling, the father’s counsel acknowledged to the other parties and the court that her client would not participate in the guardianship proceeding.
In November, a limited trial was held. The father’s counsel withdrew the objection.
The father was not present at the abbreviated trial, and, after proffer of facts by the department and child’s counsel, the court terminated the parental rights of both of Devon’s parents and freeing Devon for adoption.
In accordance with the juvenile court rules, discovery is often more informal, despite the protracted and complex nature of guardianship proceedings. Md. Rule 11-212.
Here, the use of permissible formal discovery with appropriate followup aided in the more expeditious resolution of the case, ultimately achieving the child’s best interest -permanency.
Mark Stave is a staff attorney at Maryland Legal Aid.
Attorneys: Prenups can be dangerous if not crafted carefully
Special to The Daily Record
The numbers aren’t reassuring: Between 40% and 50% of first marriages in the United States end in divorce, with the rate rising to 60% for second marriages and to over 70% for third marriages, according to divorce.com.
No wonder prenuptial agreements are increasingly popular na -
tionwide. A 2022 Harris poll found that 15% of married or engaged respondents had signed a prenup, up from 3% in 2010. Prenups typically lay out the division of assets in case of a divorce or death.
Not all prenups are created equal, however. Maryland family law practitioners emphasize that a prenup must be precisely crafted, particularly if one partner will
be coming into the marriage with fewer assets.
“Prenup agreements are dangerous if they’re not drafted carefully,” said Jeffrey Greenblatt, of Joseph, Greenwald & Laake in Rockville. “Naïve people can get themselves into a pickle if they’re not looking far enough in advance.”
Greenblatt pointed out that the legal measure of whether a Mary -
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“I’ve had attorneys going into prenups or a judge going into a prenup where I’m like, ‘Don’t sign this’ and they signed it anyway,” says Mary Roby Sanders, of Turnbull, Nicholson & Sanders in Towson. “That’s part of the problem with prenups. (Clients say) ‘He’ll never do that.’ But things can change very quickly.”
land prenup is fair is established when the agreement is signed, not at some point in the future.
“If somebody 20 years from now (discovers) they made a really bad deal – they waived alimony and property rights and it turns out that the husband was accumulating millions and millions of dollars in assets – unless (she) can find other reasons, the wife may be stuck,” he said. “It may be unfair now, but it wasn’t unfair at the time (she signed the prenup).”
“Other reasons” can include fraud, coercion or duress, Greenblatt said, adding that in his 50 years of practicing family law he has handled just two cases in which a prenup was declared invalid.
In one, “the guy was a very, very wealthy individual and the woman was not and he sprang the agreement on her the day before the wedding,” Greenblatt said. “He sat her down and said, ‘I need you to sign this.’ So she had no ability to talk to an attorney, no ability to do any due diligence about the agreement, and he said to her, ‘I can’t marry you unless you sign this.’ Talk about duress.”
That said, prenups are rarely overturned in Maryland, even if they provide little to nothing to the economically nondominant partner.
In Cannon v. Cannon (2005), the Court of Appeals (now the Supreme Court of Maryland) upheld a prenuptial agreement that had been set aside by the Frederick County Circuit Court, which called it “draconian.” Under the prenup, which Wendy Cannon signed without benefit of an attorney, she waived alimony, retirement benefits and a monetary award in the event of a divorce and agreed to vacate the family home within 60 days of written notice from her husband.
Using a so-called overreaching test, the court determined that there had been neither unfairness
When presented with a prenup that could leave one partner financially stranded down the road, attorney Thomas Ries, of counsel to Wasserman Family Law in Towson, says he tries to negotiate changes.
or inequity in the result of the agreement or in the manner in which it was procured, writing: “We remain mindful that the basic issue is one of overreaching, not the mere absence of full disclosure.”
Likewise, in Stewart v. Stewar t (2013), the Court of Special Appeals (now the Appellate Court of Maryland) upheld the trial court’s enforcement of a prenuptial agreement even though the prenup did not disclose the value of the future husband’s assets and though the future Mrs. Stewart signed it just four days before the wedding without the help of an attorney.
When presented with a prenup that could leave one partner financially stranded down the road, attorney Thomas Ries says he tries to negotiate changes.
“I end up sending letters to the other lawyer saying, ‘We’d like to propose that the alimony waiver disappear, that it sunset upon the first to occur: they have a child, they adopt a child or they’re married for five years,’” said Ries, who is of counsel with Wasserman Fam -
ily Law in Towson.
Attorneys also advise their clients simply not to sign prenups that could leave them in the lurch years later. But not everyone listens to their lawyer.
“I can tell you that there are agreements that are signed by people who ignore what their attorneys tell them,” Greenblatt said. “If you are representing someone like that, protect yourself and write that person a letter and say, ‘I have recommended that you not sign this agreement.’ And make sure you keep that letter forever. Because at some point in time that person may say, ‘I’m going to sue you for malpractice because you didn’t tell me this.’”
Mary Roby Sanders, of Turnbull, Nicholson & Sanders in Towson, agreed.
“I’ve had attorneys going into prenups or a judge going into a prenup where I’m like, ‘Don’t sign this’ and they signed it anyway,” she said. “That’s part of the problem with prenups. (Clients say) ‘He’ll never do that.’ But things can change very quickly.”
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“Naïve people can get themselves into a pickle if they’re not looking far enough in advance,” says attorney Jeffrey Greenblatt, of Joseph, Greenwald & Laake in Rockville.
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Family law attorney balks at turning over notes, wins ruling
By Kris olson
BridgeTower Media
Martha R. Bagley swears she does not get up on her “high horse” often.
But the subpoena the Topsfield, Massachusetts, attorney received last May from a fellow member of the family law bar struck her as beyond the pale.
The subpoena ordered her to hand over her “entire file” relating to her representation of the now-late John P. Vasiliou, for whom she was appointed as counsel in June 2021 after he became the subject of a guardianship petition.
The subpoena specifically demanded Bagley’s “notes,” which is the type of work product that she had learned in law school she would never need to turn over, she says.
“One of the reasons we use yellow legal paper is so we can grab our notes out of the file,” she says.
The demand was even more surprising, Bagley says, because her appointment postdated the two versions of Vasiliou’s will that his children are now warring over. Now, she has gotten a measure of vindication, with Probate & Family Court Judge Edward F. Donnelly Jr. ruling that while she otherwise needed to produce the contents of the case file, she could remove “documents which constitute opinion work product and record her ‘mental impressions, conclusions, opinions or legal theories.’”
Donnelly’s decision references the U.S. Supreme Court’s 1947 decision that gave rise to the work product doctrine, Hickman v. Taylor. Donnelly added that the Supreme Judicial Court has described the purpose of the doctrine as enhancing “the vitality of an adversary system of litigation by insulating counsel’s work from intrusions, inferences, or borrowings by other parties.”
Moreover, Massachusetts Rule of Civil Procedure 26(b)(3) requires that the party seeking discovery demonstrate that they have a “substantial need of the materials … and that he is unable without due hardship to obtain the substantial equivalent of the materials by
DEPOSITPHOTOS
The subpoena ordered attorney Martha R. Bagley to hand over her “entire file” relating to her representation of the subject of a guardianship petition.
other means,” Donnelly noted. Bagley says to the extent she has information relevant to resolving the will dispute, she remains willing to be deposed. The attorney issuing the subpoena, Marlee S. Cowan of Rubin & Rudman in Boston, declined to comment, citing the ongoing litigation.
But her motion to compel — filed as a last resort — indicates that she believed that once she got the attorney appointed as the special personal representative for the estate, John D. Welch, to sign an authorization waiving the attorney-client privilege on behalf of the estate, she was all set. Cowan thought such a waiver would put Bagley in the clear to produce documents and communications that would otherwise be privileged. Cowan’s motion also evinces some frustration over the difficulty she had getting Bagley to respond to the subpoena, which was initially served by email on May 2.
She notes that her office placed three calls to Bagley’s office in July and August. Each time, Bagley’s receptionist promised a return call, but Cowan never received one. Cowan finally got a response after emailing her a “courtesy copy” of the subpoena on Aug. 14, but only to hear that Bagley had no intention of providing the documents. “Out of professional courtesy to Attorney Bagley, it was preferred to not bring this
issue to the Court’s attention,” Cowan writes.
She adds that before filing the motion to compel, she gave Bagley one last chance to voluntarily provide the requested documents in early September.
Her clients, Vasiliou’s children Tasia and Peter, “have been forced to expend a great deal of time and money chasing down the requested documents in order to adequately defend and prosecute the pending matters, to no avail,” she writes.
Subpoenas for attorneys’ files in the context of a will contest — and contested prenuptial and postnuptial agreements, too — are routine, says Boston family law attorney Regina M. Hurley of Verrill.
“And if a waiver of the privilege is present, as it was here, compliance is likewise routine,” she adds.
The theory is that, if the goal of the probate litigation is to honor Vasiliou’s wishes, one can gain valuable insight into those wishes by getting copies of notes related to conversations with him while he was still alive, Hurley says.
A subpoenaed attorney does not have the option of ignoring the subpoena because they believe a portion of their file to be protected by some form of privilege, Hurley adds.
“If a subpoenaed attorney objects to the subpoena, they need to follow the rules: file an objection and try to work it out with the subpoenaing attorney, and if that isn’t possible, allow the court to rule on it,” Hurley says. “They shouldn’t force a motion to compel.”
Indeed, some attorneys might even disagree with the aspect of Donnelly’s decision that shielded Bagley’s work product containing her “mental impressions, conclusions and opinions,” since the file had been compiled prior to the litigation over the will, according to Hurley.
Bagley now acknowledges that she perhaps made a tactical misstep by not requesting a protective order. But otherwise, she’s glad she did not have to appeal Donnelly’s decision, as she had been prepared to do.
Kris Olson is a reporter with Massachusetts Lawyers Weekly
Valentine’s Day may mean divorce inquiry, not romance
By Maria TallMan
Couples exchange meaningful gifts, get engaged or even get married on Valentine’s Day while others are rushing to the florist or candy shop on their way home from work so they don’t come home empty-handed on the most romantic day of the year. Even young children spend hours preparing Valentine’s Day boxes and cards to exchange with their classmates at school.
Valentine’s Day is often treated as a “high expectation” holiday; some use the holiday as a benchmark to determine whether to stay in a relationship. For instance, if a spouse’s expectation for Valentine’s Day is a romantic date night and a nice gift, and the other spouse forgot for the third consecutive year that it was Valentine’s Day, the first spouse may decide they no longer want to be married to the type of person that forgets Valentine’s Day.
Thus, Valentine’s Day may inspire some less romantic gestures for some — like seeking out a divorce attorney. Even back in 2006, Forbes reported that LegalMatch, an internet service which matches users to attorneys, had experienced a threeyear trend of a spike in searches for divorce attorneys leading up to Valentine’s Day.
Avvo, Inc., an online legal directory, reported in 2014 that “the number of consumers seeking information about divorce on Avvo increases more than 40 percent in the weeks leading up to Valentine’s Day.” Avvo’s vice president of marketing, Leigh McMillan, shared that “the spike is so consistent and so prominent to warrant calling it the ‘Valentine’s Effect.’”
In 2023, The Legal Intelligencer published an article by Rebecca Palmer titled “Valentine’s Day Could be Called Divorce Day … Statistically Speaking,” which reported that
AP Photo/Mindaugas Kulbis
While Valentine’s Day can be stressful on its own, the extra pressure could easily be the final straw for a couple already in turmoil.
there is a 40% increase in divorce inquiries leading up to and following Valentine’s Day.
Palmer, a family law attorney at Rebecca Palmer Law Group in Orlando, suggests the socalled “Valentine’s Effect” may be attributable to residual stress leftover from the holidays. Many couples are motivated to hold off on filing for divorce until after the holiday season because they want to maintain a sense of normalcy for friends and family.
When kids are involved, there is added pressure to preserve the family unit through the holidays. Palmer states, “the holidays, for many couples who haven’t made the final decision to divorce, serve as a ‘last chance’ to work things out. This final attempt during the end of the year usually delays the initiation of a divorce proceeding.”
While Valentine’s Day can be stressful
on its own, the extra pressure could easily be the final straw for a couple already in turmoil.
Jennifer Brandt, a divorce attorney based in Philadelphia, says the “Valentine’s Effect” may be attributable to Valentine’s Day itself: “Valentine’s Day seems to be a natural catalyst for people to evaluate, and in some cases, make a change in their relationship … I see a distinct pattern where people take honest stock of their relationship in the New Year and make the difficult decision to seek divorce by Valentine’s Day.” Whether it is primarily due to residual stress from the holidays, Valentine’s Day itself, or coincidental timing, the Valentine’s Effect has been a prominent societal trend since the early 2000s and it does not appear to be going away anytime soon.
Marina Tallman is an associate in the family law group of Carmody MacDonald in St. Louis.
Texas attorney sentenced for drugging
wife’s drinks to induce an abortion
A Texas man who drugged his wife’s drinks in an attempt to induce an abortion was sentenced to 180 days in jail and 10 years on probation.
Mason Herring, a 39-year-old Houston attorney, pleaded guilty earlier this month to injury to a child and assault of a pregnant person. He had initially been charged with felony assault to induce abortion.
Catherine Herring told authorities her husband in March 2022 began lecturing her on hydration and offering water. She said she became severely ill after drinking from the first cup that appeared cloudy, which her husband explained was perhaps the result of the cup or water pipes being dirty.
Catherine Herring became suspicious and began refusing multiple other drinks her husband offered. She later found in the trash packaging for a drug that contained misoprostol, a medicine used to induce abortion.
She also gave police videos from hidden cameras she installed at her home where her husband was no longer living. One of them showed him mixing a substance in one of her drinks, Catherine Herring said.
Associated Press
South Dakota apologizes, must pay $300K to transgender advocates
South Dakota has apologized and will pay $300,000 under a settlement with a transgender advocacy group that sued Gov. Kristi Noem and her health secretary last year after the state terminated a contract with it.
Attorneys for the Transformation Project announced the settlement. The nonprofit sued last year after the state canceled the contract for a community health worker in December 2022. The contract included a roughly $136,000 state-administered federal grant, about $39,000 of which the group received, according to its attorneys.
The organization alleged the state’s decision “was based purely on national politics,” citing Noem’s statement to conservative media outlet The Daily Signal that the state government shouldn’t participate in the group’s efforts. The outlet
Monthly Memo
had asked Noem about the group and one of its events.
“This settlement marks a significant milestone in our ongoing commitment to civil rights advocacy,” lead attorney Brendan Johnson said. “We commend the resiliency of the LGBTQ community and remain committed to vigorously upholding their rights.”
Associated Press
Actor breaks ground on foster homes he’s fought for 16 years to see built
PALMDALE, Calif. (AP) — Christian Bale broke ground earlier this month on a project he’s been pursuing for 16 years -- the building of a dozen homes and a community center in Los Angeles County intended to keep siblings in foster care together.
The Oscar winner stood with a grin and a shovel full of dirt alongside local politicians and donors in the decidedly non-Hollywood city of Palmdale, 60 miles north and across the San Gabriel Mountains from Los Angeles.
The 12 homes, anchored by the community center, are set to be finished in April of 2025.
“It’s something that is incredibly satisfying for me, and I want to be involved every step of the way,” Bale said.
The 50-year-old Bale, who began acting as a child in films including Steven Spielberg’s “Empire of the Sun” and the Disney musical “Newsies,” won an Oscar for best supporting actor for 2010’s “The Fighter.” He’s also starred in “American Psycho,” “Vice” and “Ford v Ferrari.”
Associated Press
Murder victim’s protective order correctly admitted, Virginia appeals court says
A murder victim’s recently obtained emergency protective order against appellant was correctly entered into evidence because it was probative of, among other things, the “strained state” of appellant and the victim’s marriage, the Virginia Court of Appeals has held.
“The record supports the trial court’s ruling that the probative value of the evidence on the combination of purposes for which it was offered outweighed the obvious yet incidental prejudice,” the appeals court said in upholding the ruling of the Newport News Circuit Court.
Further, the appeals court said, there was sufficient evidence to convict appellant of second-degree murder.
“The trial court did not abuse its discretion in allowing evidence that the murder victim, the appellant’s wife, had obtained an EPO against the appellant and that it was served on him less than twenty-four hours before she was killed.
“The evidence was sufficient to establish the appellant’s guilt of second-degree murder beyond a reasonable doubt and excludes hypotheses of innocence that flow from the evidence. Therefore, we affirm the conviction.”
The case is Pair v. Commonwealth.
BridgeTower Media
Judge dismisses juror who compared Connecticut missing mom case to the ‘Gone Girl’ plot
A Connecticut judge dismissed a juror in the trial of a woman accused of helping her boyfriend cover up the murder of his estranged wife, after the panelist likened the case to the novel and movie “Gone Girl.”
Judge Kevin Randolph received an unsigned note from a juror in the trial of Michelle Troconis, accusing another member of the panel of making the comment in the presence of other jurors.
The juror “discussed something about the case and it was all over social media,” Randolph said the note read. “Said it was like ‘Gone Girl’ — a brief mention. Several other jurors said, ‘Don’t discuss this.’ “
Randolph then cleared the courtroom to question jurors about the comment. He ultimately dismissed the juror, identified only as “Juror 186,” who acknowledged making the “Gone Girl” comment, the judge said.
“Gone Girl,” a 2012 novel by Gillian Flynn that was turned into a 2014 film starring Ben Affleck, is about a woman who fakes her own disappearance and her husband, who becomes a suspect.
Troconis, 49, is charged with conspiracy to commit murder and other crimes on allegations that she helped her then-boyfriend, Fotis Dulos, cover up the killing of his wife, Jennifer Dulos, in 2019. Troconis has pleaded not guilty and denied any involvement.
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
DISSIPATION OF ASSETS; VOLUNTARY IMPOVERISHMENT; JUDGMENT
The Appellate Court affirmed the Anne Arundel Circuit Court’s award of sole legal and primary physical custody of the minor children to the wife, a monetary award to the wife of $55,000 after finding that the husband dissipated $91,488.50 in marital assets, an order requiring the husband to pay $3,259 per month in child support based, in part, on a finding of voluntarily impoverishment, and that arrears in the amount of $106,375 be reduced to judgment against the husband.
The Appellate Court vacated the Anne Arundel Circuit Court’s order vacating a judgment of absolute divorce on the ground that it was procured by extrinsic fraud. Although the wife’s testimony was sufficient to support the circuit court’s determination that the parties executed a written settlement agreement resolving marital property and other issues related to the divorce, the husband’s failure to file the settlement agreement with the circuit court or otherwise bring the agreement to the court’s attention prior to entry of the divorce judgment does not constitute extrinsic fraud..
The Appellate Court vacated the Prince George’s Circuit Court’s award of sole legal and primary physical custody of the minor child to the father. It was unclear whether the mother received adequate notice of the pendente lite hearing. Additionally, that hearing was described in the court’s own scheduling order as a one-hour hearing “on the issues of access,” and not a merits hearing on custody.
The Appellate Court affirmed the Baltimore County Circuit Court’s order adopting the magistrate’s recommendations to distribute to the mother and father funds held by the child support enforcement agency, after applying credit for child support payments made by father against an arrearage reflected in the agency’s record.
The Appellate Court reversed the Caroline County Circuit Court’s order finding the father in civil contempt. Father had not violated a prior court order and was not violating any court orders when the court held him in contempt, the contempt order contained an invalid “forever purge,” and the order imposed an improper penalty for past conduct by awarding additional parenting time to mother and requiring father to pay mother’s attorneys’ fees.
Family Law Digest
MAGISTRATE; WAIVER; CLEARLY ERRONEOUS
Exau Guevara Iglesias v. Yancy F. Castro de Guevara
The Appellate Court affirmed the Baltimore County Circuit Court’s adoption of the magistrate calculation of child support and imputed income. The appellant failed to file any exceptions to the magistrate’s report, which was not clearly erroneous.
The Appellate Court affirmed the Cecil County Circuit Court’s change of the permanency plan of the minor child, adjudicated previously to be a child in need of assistance. The circuit court concluded reasonably, based on all the evidence before it, that it was in the minor’s best interest to change his permanency plan to adoption with a secondary plan of custody/guardianship by a non-relative.
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of the mother’s and father’s parental rights of the three-year-old child. The circuit court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous and applied the correct legal standard in reaching its ultimate conclusions that severing the parental relationship was in the child’s best interests.
The Appellate Court affirmed the Montgomery County Circuit Court’s judgment of absolute divorce on the ground of adultery and its monetary award, rehabilitative alimony, and $1,500 in attorney’s fees to wife.
The Appellate Court affirmed the Baltimore County Circuit Court’s award of sole legal and physical custody of the parties’ minor child to mother. Although father claimed that the circuit court overlooked mother’s violations of the parties’ marital settlement agreement and mis-weighed the evidence, the circuit court considered all the evidence and properly evaluated the best interests of the child.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 02 MFLU Supp. 11 (2024)
Dissipation of assets; voluntary impoverishment; judgment
The Appellate Court affirmed the Anne Arundel Circuit Court’s award of sole legal and primary physical custody of the minor children to the wife, a monetary award to the wife of $55,000 after finding that the husband dissipated $91,488.50 in marital assets, an order requiring the husband to pay $3,259 per month in child support based, in part, on a finding of voluntarily impoverishment, and that arrears in the amount of $106,375 be reduced to judgment against the husband.
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..
4. Did the circuit court err in finding that Mr. Amusa dissipated marital assets and in granting a marital award to Ms. Amusa?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. and Ms. Amusa were married on May 31, 2007, in North Carolina. 1 They owned a home in Laurel, Maryland, in Prince George’s County (the “marital home”). They have three children together. At the time of the merits hearing, in February 2023, Ka.A was fifteen years old , K.A was eleven years old, and Kh.A was six years old.
On October 17, 2019, Mr. Amusa filed a complaint for absolute divorce, child custody, and other equitable relief in the Circuit Court for Prince George’s County. On November 15, 2019, Ms. Amusa filed a counter-complaint for absolute divorce. Both parties stated that there was no reasonable expectation of reconciliation.
This appeal arises from an order issued by the Circuit Court for Anne Arundel County granting Temitope Amusa (Mr. Amusa), appellant, a Judgment of Absolute Divorce from Maryam Amusa (Ms. Amusa), appellee. The court awarded Ms. Amusa sole legal and primary physical custody of the minor children, with visitation to Mr. Amusa. The court found that Mr. Amusa dissipated $91,488.50 in marital assets, and it awarded Ms. Amusa a monetary award of $55,000. The court ordered Mr. Amusa to pay $3,259 per month in child support based, in part, on a finding of voluntarily impoverishment, and it ordered that arrears in the amount of $106,375 be reduced to judgment against Mr. Amusa.
On appeal, appellant presents the following questions for this Court’s review, which we have rephrased slightly, as follows:
1. Did the circuit court abuse its discretion in awarding Ms. Amusa sole legal and primary physical custody?
2. Did the circuit court err in finding that Mr. Amusa was voluntarily impoverished and in imputing income to him in the calculation of child support?
3. Did the circuit court abuse its discretion in calculating the total child support arrearage based on a prior determination of outstanding arrears?
On January 8, 2020, the circuit court granted Ms. Amusa’s Motion to Account for Assets and for Injunction to Prevent Dissipation of Assets. The order enjoined Mr. Amusa from “disposing of or otherwise encumbering any of the property alleged to be marital property or property acquired during the separation, including but not limited to cash and other liquid assets as well as any other personal or real property.” The order also required Mr. Amusa to give an accounting of all marital property or alleged marital property disposed of since May 31, 2007, and all accounts in his name, or in the name of others, in which he had deposited marital funds.
On February 11, 2020, Mr. Amusa filed the accounting in accordance with the court’s January 8, 2020 order. In the accounting, Mr. Amusa stated that, in September 2019, he voluntarily relinquished a 2017 Ford Explorer, which was registered in his name only. Mr. Amusa removed only his personal clothing and effects from the marital home, which he had vacated at the time he filed the accounting. Mr. Amusa stated that he had never owned property in Nigeria. With respect to property he owned in Georgia, that was destroyed in a fire that Ms. Amusa started while cooking in 2012 while he was deployed to Afghanistan, and he and Ms. Amusa sold the property in 2017. Finally, Mr. Amusa stated that he deposited marital funds in either the Navy Federal Credit Union (“Navy Federal”) account disclosed to Ms. Amusa in discovery or in a separate Navy Federal account opened for Ms. Amusa.
On July 30, 2020, the court issued an order transferring venue of the divorce proceeding to the Circuit Court for Anne Arundel County, based on an unopposed motion filed by Ms. Amusa. Ms. Amusa filed the motion after she moved to Anne Arundel County with the three minor children.
Pendite Lite Orders
On September 21, 2020, Mr. Amusa filed an Expedited Motion for Pendente Lite Hearing. On October 21, 2020, after a hearing, the court issued a Consent Order incorporating the agreement the parties reached on the record. It granted Mr. Amusa access to the minor children every Wednesday from 6:00 p.m. through 8:00 p.m. and alternating weekends beginning Friday at 6:00 p.m. through Sunday at 6:00 p.m. The order required Mr. Amusa to take the children to Arabic School on Sunday mornings during his visitation time. Mr. Amusa was to have “unrestricted access to communicate, whether telephonically via text message, telephone call, or FaceTime, with all minor children via [Ms. Amusa’s] phone or one of the children’s phone each day.”
With regard to child support, the consent order required Mr. Amusa to pay Ms. Amusa $1,500 per month. Arrears, if any existed, would be assessed at the merits trial. Mr. Amusa filed his first Financial Statement on November 5, 2020, after the first pendente lite hearing.
A second pendente lite hearing was scheduled for December 10, 2020. Mr. Amusa filed an Amended Financial Statement that day. On January 12, 2021, the magistrate issued his report and recommendation.
The magistrate recommended that Mr. Amusa’s every other weekend visitation be extended to Tuesday mornings and that he continue to have access for a dinner visit every Wednesday. With respect to child support, the magistrate found that Mr. Amusa’s income was $12,491 per month, the total of his bi-weekly salary and disability payment. Based on that income and the Child Support Guidelines in place at the time, Ms. Amusa requested support. The magistrate recommended that Mr. Amusa pay child support in the amount of $3,523 per month to Ms. Amusa, effective November 1, 2020, the first month that “all the expenses listed in the calculation existed.”2 In response to Ms. Amusa’s request to make child support retroactive to the date of filing, November 15, 2019, the Magistrate recommended that Mr. Amusa pay child support arrears in the amount of $37,546. The parties could argue for alterations at the merits hearing.
On January, 22, 2021, Mr. Amusa filed Exceptions to the Magistrate’s Report and Recommendations. On April 19, 2021, the court dismissed Mr. Amusa’s exceptions as untimely filed. On April 21, 2021, the court issued an Amended Pendente Lite Order, adopting the magistrate’s recommendations.
II.
June 2021 and July 2022 Petitions for Contempt
On June 15, 2021, Ms. Amusa filed a Petition for Contempt, alleging that Mr. Amusa failed to make complete child support payments in accordance with the April 21, 2021 order. On August, 9, 2021, the magistrate held a show cause hearing.3 The magistrate found that Mr. Amusa made
some support payments, but they were not as ordered, and he made no child support payment in August 2021. Mr. Amusa stated that he did not pay the full amount of his required child support payments due to health complications. The magistrate found that Mr. Amusa’s income had not changed since the December 2020 pendente lite hearing, and his health complications had not affected his income.
The magistrate stated that Mr. Amusa had the ability to pay the child support, and his failure to comply with the court’s order was “willful” and contumacious. The magistrate calculated Mr. Amusa’s recent child support deficiency as $24,830, which when combined with his prior arrearage of $37,546, resulted in a total arrearage of $62,376. He recommended increasing Mr. Amusa’s monthly arrearage payment to $300 per month and that Mr. Amusa be held in contempt. To purge the contempt, Mr. Amusa could pay a $4,000 lump sum payment by September 30, 2021, in addition to the monthly child support payment. The magistrate recommended that future payments be made through the Anne Arundel County Office of Child Support Enforcement “via an immediate earnings withholding order” and that Ms. Amusa be granted attorney’s fees in the amount of $1,500.
On September 16, 2021, the court ratified and affirmed the magistrate’s findings and ordered that Mr. Amusa be found in contempt, pay monthly child support of $3,823 (monthly support of $3,523 plus $300 a month in arrears), to be paid via an earnings withholding order, and pay $1,500 of Ms. Amusa’s counsel fees by October 15, 2021.
On July 22, 2022, Ms. Amusa filed a second Petition for Contempt. 4 On September 19, 2022, the court held a show cause hearing. Mr. Amusa did not appear, but his counsel was present. Mr. Amusa’s counsel stated that Mr. Amusa was in Nigeria for his father’s funeral. Ms. Amusa testified that the funeral was on August 17, 2022, and other family members had since returned from Nigeria. The magistrate found that, since the August 2021 hearing, Mr. Amusa had made only one $600 payment, through the child support office, to Ms. Amusa, and Mr. Amusa “willfully and blatantly refuse[d] to comply with the Amended Pendente Lite Order.” She stated: “If ever there was a matter to be referred to a judge for possible incarceration for failing to comply, this is one.” Because Ms. Amusa did not request jail time, however, the magistrate was “left with recommending [Mr. Amusa] be found in contempt,” and she did not issue a bench warrant. The magistrate recommended that Mr. Amusa be permitted to purge the contempt with a $15,000 payment by October 30, 2022, and, if the payment was not made in full by October 30, pay a penalty of $50 per day. 5 The magistrate recommended the $15,000 assessment be reduced to judgment if not paid in full by November 5, 2022. The magistrate recommended that Ms. Amusa be awarded counsel fees in the amount of $674.08. On February 7, 2023, the court issued an order ratifying and affirming the magistrate’s findings. III.
Ms. Amusa’s Supplemental Counter-Complaint and Second Motion to Account for Assets and for Injunction to Prevent Dissipation of Assets.
On July 24, 2022, Ms. Amusa filed a Supplemental Counter-Complaint for Absolute Divorce. She alleged, among other things, that after the last contempt hearing, Mr. Amusa “purposely impoverished himself to avoid remitting support on behalf of the minor children.” Ms. Amusa alleged that Mr. Amusa had “failed to contribute to the support and maintenance of the minor children since June 2021.” Mr. Amusa did not file an answer.
On November 17, 2022, Ms. Amusa filed a Second Motion to Account for Assets and for Injunction to Prevent Dissipation of Assets. She alleged that Mr. Amusa had repeatedly failed to disclose requested information regarding marital assets and has “taken significant efforts to hide and liquidate marital assets,” including fraudulently withdrawing the entire balance of his Thrift Savings Plan, liquidating his Navy Federal accounts, and selling marital property without preserving, or accounting for, the proceeds. On December 21, 2022, the court ordered that the motion would be considered at the merits hearing set for February 7, 2023.
IV.
Merits Hearing
The court held a two-day merits hearing on February 7 and 8, 2023. The court first addressed Mr. Amusa’s pending motion to modify child support and Ms. Amusa’s pending motion for an injunction and accounting of assets. The court held that the motions were moot given that it would address the issues raised therein at the conclusion of the merits hearing. The court then granted Mr. Amusa’s oral request to amend his complaint to include 12-month separation as a ground for absolute divorce.
Mr. Amusa testified that he and his wife separated in the first week of February, 2020, when she left the marital home with the three minor children. Prior to the separation, Ms. Amusa would continuously take the children and leave “for days sometimes.” When she left with the children in February 2020, Mr. Amusa filed a police report and went to family and friends in search of his children. Mr. Amusa stated that he had no communication with Ms. Amusa after she left the marital home. In 2018, prior to their separation, Mr. Amusa sometimes spent nights away from home because his wife had physically attacked him.
Counsel for Ms. Amusa introduced bank statements from Navy Federal showing payments to a rental property beginning in January 2020 through May 2020. Mr. Amusa did not “recall the payment[s]” and testified that he “did not leave the marital home.” Ms. Amusa stated, however, that Mr. Amusa moved out in early 2019 because they were arguing. He returned to the marital home on his daughter’s birthday to bring her a present and would come back to the house in the evenings “here and there.”
Mr. Amusa was working in the Pathways Internship Program, a five-year program in the Department of Defense, at the time he filed for divorce. 6 He was an IT Specialist in the program, and he worked there from December 2014 until 2021. His starting salary was $52,000 and then increased as he worked his way up in the program. Pay statements provided by Mr. Amusa showed that, on November 21, 2020, he had earned $96,410 in year-to-date gross
earnings. A subpoena was issued prior to trial ordering Mr. Amusa to produce documents responsive to outstanding discovery requests at the merits hearing, including any W-2 forms from 2019 to present. Mr. Amusa did not produce the requested W-2 forms at the hearing, stating: “I don’t have any pay statements.”
Mr. Amusa testified that he stopped working in the summer of 2021 because there “was too much going on.” Due to injuries he sustained in the military, he took medications that prevented him from working on-site fulltime. He was shot in Iraq and had been assessed as “a hundred percent disabled.” He had “70 percent PTSD” and could not “work in an environment with a lot of noise, a lot of people.”
During the pandemic, Mr. Amusa was allowed to work remotely, but his disabilities and medications “hinder[ed] him from going to the site every day to work” once his team returned on-site. When asked whether he was fired or quit his job at the DOD, Mr. Amusa responded that he “did not quit his job,” but he missed a lot of days and “just couldn’t go to work anymore,” so they asked him to turn in his laptop. When pressed, Mr. Amusa testified that he was fired from his job in August 2021.
Mr. Amusa stated that he had been looking for employment on Indeed, ClearanceJobs.com, and with the DOD since he was fired, but the tech field was not doing well and “[t]hey’re laying people off left and right.” He had been doing volunteer work with the Wounded Warriors program in Washington, D.C., for approximately 18 months, talking with clients on the phone about twice a week. He was “consistently looking for employment,” but his disability did not allow him “to work where a lot of people are because of [his] PTSD.”
In 2019, Mr. Amusa’s disabilities were determined to be permanent and total. He received $3,956 monthly as a disability benefit from the VA, and he also borrowed money from family for expenses. Mr. Amusa did not produce any medical documentation supporting his testimony that he was unable to work due to his disability.
Mr. Amusa testified that his VA benefit was no longer deposited into his Navy Federal account. A few months prior to the merits hearing, he opened a PNC account and directed his monthly VA payments to be deposited in that account. He did not produce any of the PNC bank statements. When asked whether he knew that there was an attempt to garnish his Navy Federal account, Mr. Amusa acknowledged that he got a phone call from Navy Federal, but he stated that he did not drain the account to avoid garnishment. He also testified that he took out a loan for home improvements after the court order was entered prohibiting him from encumbering any property.
Mr. Amusa established a Thrift Savings Plan (“TSP) at the DOD after his third year of employment. He withdrew the entire amount of money in the account toward the end of 2021 to support his father in Nigeria, who had stage IV cancer. After penalties and taxes were deducted, $56,830.85 was deposited from the TSP account to Mr. Amusa’s Navy Federal account.7
Mr. Amusa did not produce any documentation at the merits hearing, despite a trial subpoena and a pretrial order requiring him to provide TSP documentation. He stated that he was not aware that, pursuant to court order, he was not permitted to dispose of the money in his TSP. Mr. Amusa did not recall indicating on the TSP withdrawal form that he was not married, and he was not aware that he was required to obtain Ms. Amusa’s consent prior to withdrawing funds from the TSP. Mr. Amusa did not inform Ms. Amusa that he was withdrawing the TSP funds, and Ms. Amusa never received any information regarding the withdrawal or any share of the money.
Mr. Amusa testified regarding cash withdrawals from his Navy Federal account, including $10,000 on September 10, 2021, after the sale of his car to purchase another vehicle. He stated that there should be a bill of sale, but he did not present it at the hearing. Mr. Amusa withdrew another $10,000 within six days of the first withdrawal to take care of an emergency. He made additional withdrawals of approximately $10,000 on December 27, 2021, December 31, 2021, and January 5, 2022, each for emergency purposes related to his father’s illness. A transplant was attempted, but his father passed away on August 14, 2022. Mr. Amusa used the remaining money for his father’s funeral. He did not have any evidence of wire transfers or other documentation showing the money was used for medical expenses.
With regard to travel expenditures after the separation, Mr. Amusa traveled to various places. With respect to travel to Ohio, New Hampshire, Massachusetts, Texas, New Jersey, and New York, he stated that these trips were for work, but he was not reimbursed for his travel expenses. When asked whether he flew from Dulles airport to the Netherlands on Air France in June 2021, Mr. Amusa stated: “No. Well, my mom is here. Sometimes I buy – I help her buy her ticket[s].” He asserted that charges related to the Netherlands could have been for on-line purchases of products, such as cream for his disabilities. Mr. Amusa paid $200 monthly for a housekeeper, $100 per month for vacations, $50 per month in religious contributions, $25 per month in “gifts to [his] neighbors,” and $100 per month for personal haircuts.
Mr. Amusa testified about his relationship with his children. Prior to the separation, he would visit his children’s school, and he knew his daughter’s classmates, as well as the school administrators and teachers. He assisted his children with their school projects and took them to Disney World twice; “[t]he family was happy.” After the separation, his son’s grades fell significantly.
Mr. Amusa did not see the children from February 2020 through October 2020. After the October 22, 2020 pendente lite consent order was issued, he began visitation with his children. He took them to the pool, the beach, the ferris wheel, and to visit his cousins. Visitation was continuous until a few months prior to the February 2023 hearing, when Ms. Amusa “just denied access.” Mr. Amusa attempted to contact his children because his wife blocked his calls, but he was unable to resume visitation.
Mr. and Ms. Amusa agreed that they had significant difficulties communicating about the children. They disagreed, however, on who was at fault for the difficulties.
The parties also disagreed on the lack of visitation after Mr. Amusa returned from Nigeria in August 2022, six weeks after his father’s death. He testified that when he returned, Ms. Amusa blocked his calls, and he went to the pickup location “every Wednesday and every other Friday as scheduled,” but Ms. Amusa would not show up with the children. Ms. Amusa testified that, beginning in June 2022, Mr. Amusa failed to show up for visitation and did not respond to her attempts to reach him. She went to the meeting location in August, September, and October, but he was not there. She stopped going the week before Thanksgiving. Ms. Amusa testified that Mr. Amusa “has a pattern of reaching out when it is” close to court time, but he did not call to wish his youngest son a happy birthday.
Mr. Amusa next testified about marital property. He stated that he had two registered vehicles. Ms. Amusa used one of them, the Ford Explorer, but it was his vehicle. When he could no longer afford payments for two vehicles, he returned the Ford Explorer to the bank. 8 He could not recall if he received any profits from the sale of the Ford Explorer after it was returned to the bank. He could not afford another vehicle for Ms. Amusa to use.
Mr. Amusa also had a Lexus, but it was in an accident in 2019 or 2020. Mr. Amusa denied selling the car, stating that it was totaled in an accident. After “insurance came in,” he disposed of the vehicle. A check for $18,642, issued by “SELL YOUR CAR HERE LLC,” was deposited into Mr. Amusa’s Navy Federal account. The memo line on the check noted the Lexus model listed on Mr. Amusa’s March 2021 marital property statement. Ms. Amusa did not receive any portion of the proceeds from this payment.
Mr. Amusa paid the mortgage on the marital home, which was purchased in 2016 with a VA loan. He testified that the mortgage payments were current at the time of the hearing, but he did not produce any supporting documentation requested in the subpoena.
He asked the court to award him use and possession of the marital home because Ms. Amusa had established another residence, and he would be unable to afford another residence near the children due to his unemployment.
Mr. and Ms. Amusa also owned a single family home in Georgia, which was sold in 2019 for $189,900. In his accounting filed with the court, Mr. Amusa indicated that the property was destroyed in a fire in 2012 and sold in 2017. Mr. Amusa clarified that the property was repaired after the fire in 2012 and sold “[a]round 2019.” The family moved to Maryland in 2013.
There was conflicting testimony as to whether there were tenants in the Georgia property. Mr. Amusa stated there were never any tenants in the property; Ms. Amusa stated there were tenants in the property, noting “that’s the only way Mr. Amusa could [pay] the two mortgages.” Ms. Amusa learned of the property sale through her counsel.9
Mr. Amusa testified that he paid $1500 per month in child support for almost a year before losing his job. Since
losing his job, he paid Ms. Amusa two or three hundred dollars per month. Mr. Amusa denied that he “failed to provide support” to the kids, stating that “she disappeared with the kids.” He testified that, “when we had an agreement, we both agreed [$]1,500, and I paid that.”10 At the time of the hearing, Mr. Amusa stated that he did not “even have $1,500. I have no amount.”
Ms. Amusa testified that she was employed at the Fort Meade Child Development Center, earning $20.65 per hour. She also received 401(k) retirement benefits. Ms. Amusa withdrew $4,000 from her 401(k) in December 2022 to pay bills, rent, and childcare. Ms. Amusa provided health insurance for her children and paid for all childcare expenses. She requested that the court decline to award any portion of her retirement account to Mr. Amusa.
There were “a lot of incidents” of domestic violence during their marriage. In June 2019, Ms. Amusa and Mr. Amusa were arguing, and Mr. Amusa pushed her down the stairs and took her phone. When he left the house, she retrieved her phone and called the police because she had “blood on [her] nose.” Ms. Amusa stated that she had a miscarriage in 2009 while visiting family in Nigeria after Mr. Amusa beat her. In May 2011, Mr. and Ms. Amusa had an argument in front of the children that led to a physical altercation. Ms. Amusa testified that, every time they “have an argument, he’s just always beating me up, . . and. . I try as much as possible to fight for myself . . . [a]nd that’s the reason why . . . we’re both fighting each other.”
Ms. Amusa testified that Mr. Amusa took her car after an argument and said: “[I]t’s my car. I can do whatever I want to do with the car.” Ms. Amusa had purchased her own vehicle at the time of the hearing.
Ms. Amusa moved out in February 2020 for her and the children’s safety. Mr. Amusa continuously made false reports to the police about men in the house, and he would enter the house uninvited while the family was sleeping, “open all the doors and just leave.” After the third time Mr. Amusa came into the house unannounced, Ms. Amusa decided to move out. She and the children received counseling after she moved out to address Mr. Amusa’s abusive behavior.
Ms. Amusa stated that the children were doing well in school. The two older children were enrolled in the Chesapeake Math and Technology Institute based on a lottery, and the youngest child attended the local elementary school. Ms. Amusa arranged for tutoring to assist Ka.A., and his grades had improved. The children also attended a Saturday program to supplement their math curriculum. Mr. Amusa was not involved in decision making regarding schools and did not attend parent-teacher conferences. On the weekends, Ms. Amusa took the children to Arabic school. Mr. Amusa did not have any involvement in enrolling the children in Arabic school or in selecting their pediatricians. She had never seen Mr. Amusa at the mosque. She made decisions regarding education and religion because “Mr. Amusa was pretty much gone throughout the marriage . . . on deployment here and there.”
Because of the children’s very structured schedule, she did not believe the existing visitation arrangement should continue. She wanted to reduce Mr. Amusa’s visitation time because he forgot to pick up the children from childcare on two occasions, and he “yells at” and “beat[s] up the kids.” On one occasion, Mr. Amusa broke K.A.’s glasses because K.A. “talked back at him.” There were other instances where Mr. Amusa would strike the children and leave a mark. She was not present when this happened, and she did not seek medical attention. There were never black eyes or bruises. Ms. Amusa testified that she had not seen any signs of physical discipline since spring 2019. Two additional reasons that she wanted Mr. Amusa to have reduced visitation were because Mr. Amusa disparages her in front of the children, and he did not spend time with them during his visitation hours. Because of their difficulties communicating, Ms. Amusa requested sole legal custody. Ms. Amusa asked the court to order that the home be sold and that the court award Mr. Amusa’s portion of the proceeds to her as a monetary award.
V.
Circuit Court Opinion
On May 10, 2023, the circuit court issued a written opinion granting the parties an absolute divorce on the grounds of voluntary separation. The court addressed custody, visitation, division of marital property, a monetary award, and child support.
A. Custody
The court noted that Ms. Amusa was seeking primary physical and sole legal custody, and Mr. Amusa was requesting shared physical and joint legal custody. The court next addressed the custody factors it had to consider pursuant to Taylor v. Taylor, 306 Md. 290 (1986). Regarding the first factor, the capacity of the parents to communicate and reach shared decisions affecting the children’s welfare, the court found that the parties did not have the “capacity to communicate effectively and cannot work together to reach shared decisions affecting the children’s welfare.”
With respect to the acceptability of joint legal custody to the parents, the court noted that Ms. Amusa thought joint custody was unacceptable because the parents could not communicate. It noted its concerns with Mr. Amusa’s “inconsistency and past behaviors,” including domestic violence and controlling behavior. The court stated that the control was clear in Mr. Amusa’s testimony and his “lack of understanding about the concept of marital property,” noting that Mr. Amusa testified that “money or the car was his so what is the problem if he chose to spend it or get rid of it.” The court stated that this “power differential” gave the court concern “about the efficacy of joint legal custody.”
Examining the third factor, the relationship between the child and parent, the court noted that the children had resided primarily with Ms. Amusa since the breakup in 2020, and the court had no concern about Ms. Amusa’s relationship with her children. Although Mr. Amusa testified that he had positive interactions with the children, Ms. Amusa testified that he was abusive toward the children. The court noted
that there had been extended periods since 2020 when Mr. Amusa had “not seen or interacted with the minor children.”
The court did not have any information regarding the fourth factor, preference of the child. With respect to the potential disruption of the child’s social and school life, the fifth factor, the court noted that the parties lived near each other, and it found that disruption was unlikely. Regarding the sixth factor, demands of parental employment, the court determined that, based on testimony regarding their daily routine, Ms. Amusa’s employment did not interfere with her ability to meet the children’s needs. The court noted Mr. Amusa’s current unemployment and that his past employment involved prolonged absences and frequent travel.
In evaluating the sincerity of the parents’ request, factor seven, the court found that each parent appeared to sincerely care about the children, and this factor did “not favor one party over the other.” For factor eight, the financial status of the parents, the court stated that Mr. Amusa was unemployed, but he received $3,956 monthly in disability benefits, and Ms. Amusa earned monthly income of $3,717. There was no evidence of state or federal assistance to the parties, so the court did not favor either party with regard to factor nine.
The court next considered the factors set forth in Montgomery County v. Sanders, 38 Md. App. 406 (1977), noting that “the best interests of the children are paramount.” With regard to the fitness of the parents, the court stated that Mr. Amusa had “not made significant financial contributions to the well-being of the children” during the litigation, which concerned the court because he appeared to “be putting his own financial interests ahead of his children’s.” The court also noted Mr. Amusa’s use of physical discipline in the past. In contrast, the court described Ms. Amusa’s constant presence in the children’s lives and found that she bore the majority of the financial burden since the separation. The court did “not find [Mr. Amusa] to be unfit and d[id] find [Ms. Amusa] to be a fit parent.”
Evaluating the character and reputation of the parties, the court found that Mr.Amusa was “deliberately evasive” during the litigation, “lacked candor,” and was “degrading towards” Ms. Amusa. The court found that Ms. Amusa was credible in describing incidents of domestic violence, including beating her in the presence of the children. It found that Mr. Amusa “intentionally spent marital funds for his own purposes and did not pay child support as required by” court orders. The court did not credit Mr. Amusa’s testimony that Ms. Amusa attacked him, and it stated that “[t] here was no evidence against Ms. Amusa’s character.”
The court next addressed the desire of the parents and agreements between the parties, noting that both parties wanted custody of the children. Although there had been an agreement, the court found that the parties were now “unable to honor the terms of the agreement.” With regard to the potentiality of maintaining natural family relations, the court found that there was no testimony regarding the children’s relationship with any extended family members or the parties’ willingness to foster those relationships. The court did not consider the preference of the children
because it did not hear any testimony on this factor. The court also found that material opportunities affecting the future life of the children did not weigh in favor of either parent.
Regarding the age, health, and sex of the children, the court noted that there were no “major health concerns” raised at the hearing. In addressing the proximity factor, the court found that, because the parties lived close to one another, visitation “would presumably be easy.”
With regard to the length of separation from the parents, the court noted that the children had resided with Ms. Amusa since February 2020, with only occasional visits with Mr. Amusa. The court credited Ms. Amusa’s testimony that Mr. Amusa “did not call for birthdays or big events, although his contact would increase around pending court hearings.” The court noted that Mr. Amusa had not seen the children since June 2022, and it found that both parties were at fault for the “significant separation” between Mr. Amusa and his children. Finally, on the issue of prior voluntary abandonment or surrender, the court determined that “at times [Mr. Amusa] did voluntarily abandon his children.”
The court found that Mr. Amusa abused Ms. Amusa. Therefore, it would establish the visitation schedule to minimize contact between the parties and ensure Ms. Amusa’s safety. With respect to the children, the court found that there was evidence of physical discipline, but it did not amount to abuse.
After considering all the factors, and noting the parties’ “very dysfunctional relationship,” the court granted sole legal custody to Ms. Amusa. Citing Mr. Amusa’s abusive and controlling behavior toward Ms. Amusa and the “utter lack of communication between the parties,” the court found that forcing Ms. Amusa to interact with Mr. Amusa to make legal decisions would not be in the best interests of the children. The court ordered Ms. Amusa to inform Mr. Amusa “of any and all decisions and issues concerning the children . . . in writing.”
The court then granted primary physical custody to Ms. Amusa, noting that Ms. Amusa had been the children’s primary caregiver and the court’s concerns regarding Mr. Amusa’s “consistency and refusal to put the children’s best interests above his own concerns.” The court established the following visitation schedule:
For the first month from the date of the Order, Husband shall have access with the minor children every Wednesday evening from 5:30 pm to 8 pm. Should Husband consistently exercise this visitation during the first month, Husband shall have additional access with the children consisting of one weekend a month for the next 3 months. A weekend is defined as Friday at 5:30 pm until Sunday evening at 8 pm. Husband must elect which weekend he elects by the 20th day of the preceding month. Should Husband consistently exercise his access, for these 3 months, Husband’s weekend access shall be expanded to every other weekend for the next 3 months. Weekend is defined as Friday at 5:30 pm until Sunday evening at 8 pm. Finally, after those 3 months and moving forward, Husband’s weekend access shall
be expanded from after school/camp on Fridays until drop off at school/camp on Mondays.
The court also established a visitation schedule for vacations and holidays.
B. Monetary Award
The court next addressed Ms. Amusa’s request for a monetary award. The court found the home in Laurel to be marital property, and it valued the home at $470,000. With regard to the Georgia property and the Nigerian property, the court stated that there was insufficient evidence to assess these properties. Although the court recognized that Mr. Amusa’s lack of cooperation in providing information about the properties made it difficult for Ms. Amusa to meet her burden of proof to establish the existence and value of properties, she nevertheless failed to meet it, and these properties would not be considered in the monetary award analysis.
The court then valued the parties’ vehicles. The court found that Mr. Amusa’s testimony regarding the Lexus was not credible, and it valued the Lexus at $18,642.53, based on its sale price, and it considered that amount as marital property. With respect to the other vehicles, there was insufficient evidence regarding valuation.
With regard to pension and retirement, the court stated that Mr. Amusa’s TSP had an approximate value of $72,845.97 before he withdrew it in December 2021, noting that Mr. Amusa withdrew it without Ms. Amusa’s consent, and he lied on the form to withdraw it. Ms. Amusa had a 401(k), valued at $9,960 before her $3,496.64 loan. There was insufficient information regarding whether Mr. Amusa had any other retirement benefits or pension.
Regarding the parties’ bank accounts, the court had difficulty determining their value. The court noted “numerous and substantial cash withdrawals from 2019 until 2022” from Mr. Amusa’s account, most of which Mr. Amusa “denied remembering.” The court also noted that Mr. Amusa had a PNC account of an unknown value, which he did not disclose in discovery and revealed for the first time during testimony at the merits hearing.
Before considering the statutory factors for making a monetary award, Md. Code Ann., Family Law (“FL”) §§ 8-202–8-205 (2023 Supp.), the court addressed the dissipation of marital property. The court found that Mr. Amusa “intentionally and significantly dissipated the monetary value of his bank accounts after the separation of the parties,” noting the evidence that he unilaterally withdrew the entire balance of his TSP account,$72,845.97, in 2021. Although Mr. Amusa testified that he used some of that money for his father’s medical expenses, it “was not for the benefit of the immediate family unit (i.e., Wife and minor children).” Thus, although the effort to help his father was “noble,” it still “constitute[d] marital dissipation.” The court also found that Mr. Amusa dissipated marital assets by taking domestic and international trips, which were documented in credit cards statements, and it found that his denials of the trips were not credible. Finally, the court found that Mr. Amusa dissipated marital assets when he sold the Lexus
for $18,642.53. The court calculated the minimum total value of dissipated assets at $91,488.50, which resulted from adding the value of the TSP account and the sale of the Lexus. The court found that the loan of $3,496.64 from Ms. Amusa’s 401(k) account was used for the children and did not constitute dissipation.
After making these findings of facts, the court considered the relevant statutory factors to consider for making a monetary award. With regard to the contributions, monetary and non-monetary, of each party to the well-being of the family, the court stated that both parties contributed to the household expenses. The court noted that Ms. Amusa cared for the home and children while Mr. Amusa was deployed or away for work. Mr. Amusa’s non-monetary contributions were “sporadic.”
The court incorporated its prior discussion of the value of all property interests and then considered the economic circumstances of each party at the time. Mr. Amusa was unemployed but received $3,956 in VA disability per month. Ms. Amusa earned $3,717 per month, in addition to retirement benefits. The court noted that she had to take out a loan against her 401(k) to pay bills, including childcare and grocery expenses.
Regarding the circumstances that contributed to the estrangement of the parties, the court found that Mr. Amusa was physically violent and controlling, citing his demeaning behavior and relinquishment of Ms. Amusa’s car. The court did not credit Mr. Amusa’s testimony that he was blindsided by Ms. Amusa’s decision to leave as “[h]e had been the one to file for divorce in 2019.” The court found that both parties shared responsibility for the estrangement, but it found that Mr. Amusa’s actions predominantly caused the marital split. The court noted the duration of the marriage was 16 years, and Mr. Amusa was 39 years old and Ms. Amusa was 38 years old.
The court next discussed the physical and mental condition of each party. The court cited testimony regarding Mr. Amusa’s health conditions, and it noted that, although Mr. Amusa said that his PTSD prevented him from working full time, he was able to regularly volunteer with the Wounded Warriors Project. Ms. Amusa “appeared physically healthy,” despite allegations of mental and physical abuse, and the court noted that she sought counseling after the separation.
The court then discussed how and when specific marital property was acquired, including the efforts expended by each in accumulating the marital property or interest therein, noting that it considered this factor. It noted that neither party requested alimony.
Finally, the court addressed the catch-all provision of the statutory analysis, which permits the court to consider any other factor necessary or appropriate to the determination of a fair and equitable monetary award. The court stated that it considered in its marital property award analysis Mr. Amusa’s dissipation of assets, concealment of resources, “lack of cooperation and candor during the discovery phase of this case,” and complete lack of credibility. The court noted Mr. Amusa’s “evasive answers” to questions regarding finances and his inability to remember trips to London,
the Netherlands, Luxembourg, Stockholm, and Antwerp, despite credit card statements showing transactions there.
After considering all the relevant factors, the court ordered that Ms. Amusa receive one-half interest in any of Mr. Amusa’s deferred compensation/retirement accounts to the extent they exist. Ms. Amusa could keep her 401(k). The court stated that, “[c]onsidering [Mr. Amusa’s] blatant dissipation of marital funds in the amount of $91,488.50, his treatment of [Ms. Amusa] and his utter lack of candor, the Court will grant [Ms. Amusa] a monetary award constituting sixty percent of the dissipated funds,” which equated to $55,000 of the $91,488.50 that Mr. Amusa dissipated. It ordered that amount to be paid within 30 days or be reduced to judgment.11
D.
Marital Home
The court denied Mr. Amusa’s request for use and possession of the marital home on the grounds that he would not have custody of the children. The court ordered that the home be immediately listed for sale and the proceeds be divided evenly between the parties. The court ordered that any outstanding monetary award or child support payment be deducted from Mr. Amusa’s share of the proceeds.
E.
Child Support and Arrearages
In considering Ms. Amusa’s request for child support, the court first addressed her request that it find that Mr. Amusa had voluntarily impoverished himself by “making the free and conscious choice to not successfully seek employment.” The court found that Mr. Amusa had voluntarily impoverished himself, and it imputed income to Mr. Amusa in the amount he made in his prior employment. Mr. Amusa had trained for more than five years in the IT field and had seven total years of experience in that field with the DOD. The court did not credit Mr. Amusa’s claim that his disabilities rendered him unable to work, noting that he was able to successfully work for seven years with his disabilities, and he was able to volunteer in D.C. twice per week with the Wounded Warriors program over an 18-month period. The court was “unpersuaded” by Mr. Amusa’s assertion that he could not find work because his field was not hiring, stating that “[d]emand for IT work remains high.” The court found that Mr. Amusa’s explanations for his ongoing unemployment were not convincing.
Relying on the factors in FL § 12-201(m) pertaining to potential income, the court imputed Mr. Amusa’s prior salary of $96,410 based on pay documentation in the record. Noting that the court “may not determine potential income for a parent who is unable to work because of a physical or mental disability,” the court found that Mr. Amusa’s unemployment was not due to his disability. The court combined the imputed income with Mr. Amusa’s monthly VA benefit, resulting in a monthly income of $11,990. Ms. Amusa’s monthly income was $3,409, and the court gave her credit for insurance and child care expenses. 12 The court then ordered a child support award of $3,259 per month based
on the Child Support Guidelines in effect at the time Ms. Amusa filed her claim for support.
The court next addressed outstanding child support arrearages. As discussed in more detail, infra, the court found an arrearage of $123,990. This appeal followed.
DISCUSSION I.
Legal and Physical Custody
Mr. Amusa contends that the circuit court abused its discretion in awarding Ms. Amusa sole legal and primary physical custody because its findings “were not in line with the evidence.” He asserts that the evidence shows that he made consistent efforts to communicate with Ms. Amusa regarding decisions related to the children, but she purposely excluded him from decision making. Mr. Amusa takes issue with the court’s concern with his past behaviors, asserting that, “other than [Ms. Amusa] stating in general terms that [he] would beat her and the children up, there was nothing else presented to the trial court to support [Ms. Amusa’s] bare allegations.” Mr. Amusa claims that the testimony does not support a finding that he voluntarily abandoned the children; rather, it shows that Ms. Amusa refused to let him see them.
Ms. Amusa contends that credible testimony shows that Mr. Amusa’s involvement in matters involving the children was sparse, and he went months without attempting to contact her or the children. She asserts that the testimony reflected “consistent and regular acts of domestic violence in the relationship,” evidenced by the miscarriage she suffered after a beating, the incident where Mr. Amusa pushed her down the stairs in front of the children, and the altercation that caused her son’s glasses to break. In addition, Ms. Amusa argues that evidence of Mr. Amusa’s controlling and intimidating behavior, including his view of marital property, liquidation and concealment of marital assets, and voluntary relinquishment of Ms. Amusa’s only vehicle, support the court’s decision to grant her sole legal custody and primary physical custody.
In reviewing child custody determinations, we employ three interrelated standards of review. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). The Supreme Court of Maryland has explained these three levels of review 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. (alterations in original) (quoting In re Yve S., 373 Md. 551, 586 (2003)). Where there is no clear error, we will uphold the court’s findings unless there is an abuse of discretion, meaning that “no reasonable person would take the
view adopted by the trial court,” or the court acts “without reference to any guiding rules or principles.” Santo v. Santo, 448 Md. 620, 625–26 (2016) (cleaned up); Lamson v. Montgomery County, 460 Md. 349, 360 (2018).
As the Supreme Court has explained:
Such broad discretion is vested in the [circuit court] because only [the circuit court judge] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in 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.
“Decisions as to child custody and visitation are governed by the best interests of the child.” Gordon v. Gordon, 174 Md. App. 583, 636 (2007). In determining the best interests of the child in custody disputes, various factors are relevant. As this Court has explained:
The criteria for judicial determination [of child custody] includes, but is not limited to, 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.
Id. at 637 (quoting Sanders, 38 Md. App. at 420). Accord Karanikas v. Cartwright, 209 Md. App. 571, 590 (2013) (court is responsible for utilizing factors to “weigh the advantages and disadvantages of the alternative environments.”).
Additionally, when the court is considering whether to grant joint custody, the following factors are relevant: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) other factors.
Taylor, 306 Md. at 304–11. Accord Jose v. Jose, 237 Md. App. 588, 600 (2018). With this background in mind, we will address the specific contentions raised.
Mr. Amusa does not argue that the court failed to conduct the appropriate analysis regarding the requisite factors. Rather, he contends that the custody decision was inconsistent with the evidence, and the court incorrectly discounted his testimony and relied heavily on Ms. Amusa’s testimony.
We disagree and conclude that there was extensive evidence in the record to support the court’s custody ruling.
We have set out in detail the testimony and the court’s ruling. We need not reiterate all of it, but we note that there was ample evidence in the record demonstrating that the parties could not effectively communicate, and that Mr. Amusa was controlling, demeaning, and physically abusive toward Ms. Amusa. Although Mr. Amusa attempts to discredit Ms. Amusa’s testimony regarding physical abuse as a “bare allegation,” the court found that Ms. Amusa credibly testified that Mr. Amusa beat her when they argued, causing her to suffer a miscarriage in 2019, a bloody nose, and bruises. The court credited Ms. Amusa’s testimony that the children witnessed much of the abuse because “they were always with her.”
The court also made substantial findings regarding Mr. Amusa’s controlling and demeaning behaviors. The court noted that he did not understand the concept of marital property and considered money and the car that Ms. Amusa relied upon for work and school transportation as “his so what is the problem if he chose to spend it or get rid of it.” Mr. Amusa testified that money spent during the separation was “[his] money from [his] account,” and Ms. Amusa’s Ford Explorer “didn’t belong to her, it belonged to me . . . That is my vehicle.” He liquidated his TSP without her required consent and spent it on, among other things, domestic and international travel. He showed blatant disregard for court orders directing him to preserve marital property and pay child support.
Regarding physical custody, Mr. Amusa asserts that he was “consistently present” for the children since he began his internship in 2014, and the court erred in finding that he voluntarily abandoned the children. Although Mr. Amusa testified to his time with the children, the court was within its discretion to discredit his testimony as not credible. See Nouri v. Dadger, 245 Md. App. 324, 342 (2020) (credibility determinations are for the fact finder). The testimony and evidence indicate several lengthy periods of time where Mr. Amusa did not make significant efforts to see the children.
The court found that Ms. Amusa credibly testified that Mr. Amusa did not call or visit his children on their birthdays. The evidence is undisputed that Mr. Amusa financially abandoned his children by failing to pay the full amount of court ordered child support from November 2020 through February 2023. The court’s finding that Mr. Amusa refused to “put the children’s best interests above his own” because he “spent marital funds for his own purposes” is supported by the record. Mr. Amusa took several international trips during the separation, including one to South America to pursue his photography hobby, and he had a housekeeper, while paying only a fraction, or in some months none, of his child support obligation.
The court carefully and thoughtfully analyzed all the requisite factors in determining that awarding sole legal and primary physical custody to Ms. Amusa was in the best interests of the children. The court did not abuse its discretion in this regard.
II.
Voluntary Impoverishment
Mr. Amusa contends that the court erred in finding that he was voluntarily impoverished and imputing income to him in the calculation of child support. He asserts that the court’s analysis of the factors for determining voluntary impoverishment “did not track” with the evidence of his disability, his efforts to obtain employment, and the requisite factors to consider. He argues that the court disregarded testimony that he could not work in large groups or travel, and that his disability rating increased over the years. Mr. Amusa asserts that the court erred in imputing his income at $96,410 and in failing to consider the factors related to a determination of potential income. Finally, he claims that the presumptive correctness of the court’s child support calculation was “overcome by evidence that application of the guidelines would be unjust or inappropriate” because he cannot possibly pay the amount owed and the substantial obligation could affect his job prospects.
Ms. Amusa contends that the court did not err in finding that Mr. Amusa was voluntarily impoverished and imputing income to him in calculating child support. She asserts that the court properly assessed the relevant factors and found that Mr. Amusa’s disability rating did not impact his ability to work. She notes that Mr. Amusa did not produce any corroborating evidence to indicate that he was unable to work or that he had been actively seeking employment, and she points to the timing of when Mr. Amusa stopped working, which was shortly after the first contempt hearing for failure to pay child support. With respect to the amount of income imputed to Mr. Amusa, she asserts that the court could have imputed more income, noting that Mr. Amusa’s 2020 financial statement listed income of $105,708 plus disability benefits.
In determining child support, a court must determine the income of each party. John O. v. Jane O., 90 Md. App. 406, 419–20 (1992). “[I]f a parent is voluntarily impoverished, child support may be calculated based on a determination of potential income.” FL § 12- 204(b)(1). A determination of potential income may not be made for “a parent who is unable to work because of a physical or mental disability.” FL § 12-20 4(b)(2)(i).
A parent is voluntarily impoverished when he or she “has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources.” Goldberger v. Goldberger, 96 Md. App. 313, 327, cert. denied, 332 Md. 453 (1993). 13 Accord Dillon v. Miller, 234 Md. App. 309, 319 (2017) (quoting Durkee v. Durkee, 144 Md. App. 161, 182 (2002)). In determining whether a parent is voluntarily impoverished, courts consider the following factors:
1. his or her current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. the relationship of the parties prior to the divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld [child] support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party. Goldberger, 96 Md. App. at 327 (quoting John O., 90 Md. App. at 422). Although a trial court must consider each factor before finding voluntary impoverishment, it is not required to “articulate on the record” its analysis of each factor. Dunlap v. Fiorenza, 128 Md. App. 357, 364, cert. denied, 357 Md. 191 (1999). We review a trial court’s “factual findings on the issue of voluntary impoverishment . . . under a clearly erroneous standard, and the court’s ultimate rulings [for] . . . abuse of discretion.” Sieglein v. Schmidt, 224 Md. App. 222, 249 (2015), aff’d, 447 Md. 647 (2016).
Here, the circuit court’s statements reflect that it carefully considered the requisite factors for a determination of voluntary impoverishment. The primary reason that Mr. Amusa gave for being unable to work was his disability. The court noted Mr. Amusa’s testimony regarding his 100 percent disability rating from his military service. This disability rating, however, did not prevent the court from finding that Mr. Amusa was capable of working. See Hiltz v. Hiltz, 213 Md. App. 317, 345 (2013) (A disability determination by a government agency coupled with testimony of an unemployed spouse’s own impairment is not prima facie evidence of an inability to work, and when impairment is not apparent, expert testimony and medical reports are necessary). The court explained that it “was not persuaded that [Mr. Amusa’s] disabilities render[ed] him unable to work” because he had successfully worked for seven years with his disabilities, and he performed volunteer work two days per week with the Wounded Warriors program in Washington, D.C. Mr. Amusa worked for two years after he received his 100 percent disability rating, and he testified that he traveled for work several times during that time. The court found that he was terminated after absences beginning in 2021, which Mr. Amusa attributed, in part, to court appearances.14
The court also discussed Mr. Amusa’s training, past work history, and efforts to find a new job, stating that he had a master’s degree, more than five years of training in the IT field, and more than seven total years of experience at DOD. Given the high demand for IT professionals, and the lack of corroboration that Mr. Amusa had applied for jobs, the court did not credit Mr. Amusa’s testimony that he could not find work for the past 18 months. The circuit court did not err or abuse its discretion in finding that Mr. Amusa was voluntarily impoverished.
We next address the court’s finding with regard to Mr. Amusa’s potential income. The law at the time the complaint was filed in this case provided that potential income, i.e., income attributable to a parent who was voluntary impoverished, was to be determined by the following factors: (1) age; (2) mental and physical condition; (3) assets; (4) educational background, special training, or skills; (5) prior earnings; (6) efforts to find and retain employment; (7) the status of the job market in the area where the parent
lives; (8) actual income from any other source; and (9) any other factor bearing on the parent’s ability to obtain funds for child support. Goldberger, 96 Md. App. at 328. A determination of potential income will “necessarily involve a degree of speculation.” Durkee, 144 Md. App. at 187. As long as the court’s factual findings are not clearly erroneous, and the imputed amount is realistic and “‘not so unreasonably high or low as to amount to an abuse of discretion, the court’s ruling may not be disturbed.’” Id. (quoting Reuter, 102 Md. App. at 223).
While this litigation was pending, the legislature amended FL § 12-201 to provide a list of factors to consider when determining potential income. 2020 Md. Laws ch. 384 (S.B. 847). The statute includes the Goldberger factors, plus others, as follows:
(m)“Potential income” means income attributed to a parent determined by:
(1)the parent’s employment potential and probable earnings level based on, but not limited to:
(i)the parent’s:
1. age;
2. physical and behavioral condition;
3. educational attainment;
4. special training or skills;
5. literacy;
6. residence;
7. occupational qualifications and job skills;
8. employment and earnings history;
9. record of efforts to obtain and retain employment; and
10. criminal record and other employment barriers; and
(ii)employment opportunities in the community where the parent lives, including:
1. the status of the job market;
2. prevailing earnings levels; and
3. the availability of employers willing to hire the parent;
(2) the parent’s assets;
(3) the parent’s actual income from all sources; and
(4) any other factor bearing on the parent’s ability to obtain funds for child support.
FL § 12-201(m).
Here, the court stated that it considered the evidence that addressed the statutory factors listed in § 12-201(m),15 and it imputed income equivalent to what Mr. Amusa was making when he stopped working, which the court found to be $96,410, or $8,034 a month. Adding his disability income of $3,956 a month to the imputed income, the court found that Mr. Amusa had a monthly income of $11,990. The record supports the court’s findings in this regard.
With respect to Mr. Amusa’s contention that “it would be unjust or inappropriate” to impute income in the amount of $96,410 to him, where his unemployment was “due to a combination of factors that were mostly, if not all, out of his control,” we are not persuaded.16 As indicated, the court rejected the argument that Mr. Amusa’s unemployment was due to factors out of his control. Moreover, with respect to
his argument that this child support obligation may affect or limit his job prospects, there is no evidence in the record that Mr. Amusa’s clearance-status has affected his ability to find employment. 17 There was evidence, however, that Mr. Amusa had been deliberately evasive about his past salaries, had been uncooperative in responding to document requests and subpoenas requesting information related to his earnings and efforts to find employment, failed to produce any documentation or other evidence to support his claims that he was unable to work, and withheld child support payments while traveling internationally for personal enjoyment.
To the extent the substantial arrearages are a hardship, we agree with Ms. Amusa that they are a “self-imposed hardship.” Choosing not to seek employment despite “education, skills, experience, and prior employment, and . . . job openings in [the] field . . . [cannot be] at the expense of [the] children.” Durkee, 144 Md. App. at 186–87 (court properly considered spouse’s prior employment and education in calculating potential income based on most recent salary). The court did not abuse its discretion in imputing income to Mr. Amusa. III.
Outstanding Child Support Arrearage
Mr. Amusa next challenges the court’s determination that he owed Ms. Amusa $123,990 in child support arrearages. He contends that the court should have made independent findings to calculate child support arrears rather than rely on findings made at earlier hearings for failure to pay pendente lite child support. He also asserts that the court abused its discretion in relying on and failing to reduce the prior calculations of arrears given that he “did not have the means to pay such a high amount of child support at the time” and the “negative effect on [his] ability to attain a job.”
Ms. Amusa contends that Mr. Amusa did not raise the issue of the arrears calculation at the merits hearing, and therefore, the issue is not properly before the Court. Alternatively, she argues that the court did not abuse its discretion in its order regarding child support arrearages due.
A.
Proceedings Below
In addressing child support arrearages, the court stated: In order to address outstanding child support arrearages, the Court reviewed and took note of the court file. First, the Court notes that Husband had a monthly child support obligation pursuant to an Amended Pendente Lite Order, dated April 21st, 2021. Husband was ordered to pay child support in the amount of $3,523 per month commencing on November 1st, 2020. Then, the Court notes that an order was signed on February 6th, 2023, ratifying a Report and Recommendation filed on October 11th, 2022, from a Show Cause hearing that took place on September 19th, 2022. That Order ratified that, as of the September hearing, Husband had an outstanding child support arrearage of $106,375. Further, the Court finds Husband’s child support obligation continued in October 2022, November 2022, December 2022,
January 2023 and February 2023. Testimony proved Husband did not pay child support during those months. This results in an additional outstanding obligation of $17,615, for a new total arrearage of $123,990. The Court notes that there is an additional outstanding judgment, in favor of Wife, and against Husband, in the amount of $4,000, for outstanding child support, entered on February 2nd, 2022.
B. Analysis
We address first Ms. Amusa’s contention that the issue regarding child support arrearages is not properly before us. “[A]n appellate court ordinarily will not consider any point or question unless it plainly appears by the record to have been raised in or decided by the trial court.” Robinson v. State, 404 Md. 208, 216 (2008) (citation and quotation omitted). Accord Md. Rule 8-131(a) (appellate court ordinarily will not decide issues not raised in or decided by the trial court). DiCicco v. Baltimore Cty., 232 Md. App. 218, 225 (2017) (issues that are not raised below are deemed to be waived).
Here, Mr. Amusa did not argue at the merits hearing that the prior arrears calculation was incorrect or that it should be adjusted based on revised figures. Indeed, in arguing against an award of attorney’s fees, Mr. Amusa’s counsel acknowledged the arrearages, stating:
I don’t think [attorney’s fees are] fair, your Honor. Again, Mr. Amusa simply doesn’t have the ability to pay that . . .
He also has over $100,000 in arrearages for child support that he can’t simply afford, Your Honor. We understand that that is backward looking, but to continue this going forward, we are literally trying to take blood from a turnip.
Under these circumstances, we conclude that Mr. Amusa’s argument with respect to child support arrearages is waived.
Even if this contention were properly before us, we would find it to be without merit. Retroactive modification of child support arrears is prohibited under FL § 12-104(b). FL § 12-104(b) (“The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.”). Accord Harvey v. Marshall, 389 Md. 243, 272 (2005) (father was not entitled to modification of arrears, even though they adversely affected his credit rating, ability to purchase a home, and save for his children’s education). The court did not err or abuse its discretion in relying on the prior award of child support arrears to calculate the total arrears.
IV.
Dissipation of Assets
As indicated, the court found that Mr. Amusa dissipated marital assets with a value of $91,488.50. This represented $72,845.97 that he withdrew from his TSP account and $18,642.53 from the sale of the Lexus he owned. After considering Mr. Amusa’s “blatant dissipation of marital funds in the amount of $91,488.50, his treatment of [Ms. Amusa] and his utter lack of candor,” the court awarded Ms. Amusa
sixty percent of the dissipated funds, which equated to $55,000 of the $91,488.50 that Mr. Amusa dissipated.
Mr. Amusa contends that the court erroneously found that he dissipated marital assets, and it abused its discretion in awarding Ms. Amusa a $55,000 monetary award. He asserts that Ms. Amusa did not meet her burden to show that he spent money to avoid its equitable distribution. Moreover, Mr. Amusa argues that the court gave too much weight to Ms. Amusa’s testimony, and it abused its discretion in considering the pre-tax amount of the TSP instead of the amount Mr. Amusa received after taxes and in granting Ms. Amusa a monetary award based on a 60/40 split in favor of Ms. Amusa.
Ms. Amusa contends that she clearly demonstrated, and the trial court properly found, that Mr. Amusa dissipated assets. She asserts that Mr. Amusa engaged in evasiveness, fraud, and concealment of information from the onset of this litigation, and repeatedly violated a court order enjoining him from disposing of marital property. Ms. Amusa argues that the court properly found that Mr. Amusa’s testimony was not credible, and he did not meet his burden of proving that his use of the funds was for family expenses. Ms. Amusa asserts that the court properly assessed the factors in FL § 8-205(b) when determining the monetary award, including Mr. Amusa’s “limited non-monetary contributions to the family[], violent role in the estrangement of the parties and his predominant role in the causation of the marital split,” as well as his lack of cooperation, candor, and credibility throughout the proceedings.
This Court “will not set aside a trial court’s determination regarding dissipation of marital assets unless the determination made is clearly erroneous.” Omayaka v. Omayaka, 417 Md. 643, 654 (2011) (quoting Beck v. Beck, 112 Md. App. 197, 216 (1996)). “If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Id. at 652 (quoting Fuge v. Fuge, 146 Md. App. 142, 180 (2002)). See also Goicochea v. Goicochea, 256 Md. App. 329, 340 (2022), cert. denied, 483 Md. 277 (2023). Because this action was tried without a jury, the circuit court is given significant deference in its assessment of the credibility of the witnesses and “is entitled to ‘accept – or reject – all, part, or none of the testimony of the witness.’” Goicochea, 256 Md. App. at 340.
Dissipation of marital assets arises when one spouse, without consent of the other spouse, “‘spen[ds] or otherwise deplete[s] marital funds or property with the principal purpose of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.’” Id. at 339–40 (quoting Omayaka, 417 Md. at 653) (alteration in original). When a court determines that a party has dissipated assets, it values the dissipated assets “with the other existing marital property.” Id. at 340 (quoting Sharp v. Sharp, 58 Md. App. 386, 399 (1984)).
The party alleging dissipation of assets has the initial burden of proof. Omayaka, 417 Md. at 653. Once that party has established a prima facie claim of dissipation, the burden shifts to the party who spent the money to produce evidence to show the expenditures were for marital or
family purposes. Id. at 654–56; Goicochea, 256 Md. App. at 341. Evidence of large withdrawals from financial accounts under the control of the spouse “is sufficient to support the finding that the spouse had dissipated the withdrawn funds.” Omayaka, 417 Md. at 657.
Ms. Amusa satisfied her burden to establish a prima facie claim of dissipation of assets related to the liquidation of the TSP and sale of the Lexus. The court found, consistent with the evidence, that Mr. Amusa’s “TSP account was completely withdrawn in December of 2021, after the separation of the parties, and was done so unilaterally by” Mr. Amusa. This withdrawal was made after the court ordered him not to dispose of property alleged to be marital property, and in doing so, he failed to disclose that he was married to Ms. Amusa. The court also found, and the evidence supported, that Mr. Amusa sold the Lexus, which was “purchased with marital funds and when sold, the remaining balance was deposited into” Mr. Amusa’s bank account. Because evidence of unilateral withdrawals of significant sums from an account controlled by one spouse is prima facie evidence of dissipation, the burden shifted to Mr. Amusa to show that he used the proceeds from the car and the TSP account for marital or family expenses. See Omayaka, 417 Md. at 658. The court properly determined that Mr. Amusa did not make that showing.
Mr. Amusa argues that the timing of the withdrawals shows that he used the money because he lost his job and needed money to pay for his father’s medical treatment. As the court noted, however, even if “noble,” Mr. Amusa’s contributions to his father’s medical expenses were not “for the benefit of the immediate family unit (i.e., Wife and the minor children),” and therefore, his actions constituted marital dissipation. Heger v. Heger, 184 Md. App. 83, 97 (2009) (dissipation of property can occur when one spouse uses marital property for his “own benefit for a purpose unrelated to the marriage”) (quoting Karmand v. Karmand, 145 Md. App. 317, 345 (2002)). Accord Omayaka, 417 Md. at 652 (dissipation can occur when party’s “principal purpose was a purpose other than . . . [the reduction] of funds that would be available for equitable distribution”) (quoting Welsh v. Welsh, 135 Md. App. 29, 51 (2000)).
The court also noted trips that Mr. Amusa took without the family, both domestically and internationally. Although Mr. Amusa “denied remembering most of these trips,” the court did not find his denials credible, noting that credit card receipts documented the travel. Mr. Amusa argues that the receipts show that he merely “purchas[ed] things from international companies” because several charges show transactions from different countries on the same date. The ultimate decision on the credibility of Mr. Amusa, however, was for the circuit court. See Goicochea, 256 Md. App. at 340. The court was entitled to reject Mr. Amusa’s testimony, “whether that testimony was or was not contradicted or corroborated by any other evidence.” Omayaka, 417 Md. at 659. With regard to Mr. Amusa’s credibility, the court was clear that it found him not credible and that the use of the money from the TSP account “was not for the benefit of the family unit.”
Mr. Amusa’s argument that the court abused its discretion in valuing the TSP at the pre-withdrawal value of $72,845.97, instead of the post-tax value of $56,830.85, is also unavailing. Mr. Amusa’s unilateral decision to withdraw the entire balance of the TSP account resulted in taxes and penalties that substantially reduced the TSP’s value. Had Mr. Amusa complied with the court order requiring him to preserve marital assets, the value of the TSP would not have been reduced by penalties and taxes. We perceive no abuse of discretion in the court’s assessment of the TSP at its pre-withdrawal value and agree with Ms. Amusa that Mr. Amusa should not “profit from his deception.”
Mr. Amusa also contends that the court’s 60/40 split of the dissipated funds was improperly punitive and was not based on the factors set forth in FL § 8-205(b). Monetary awards achieve equity between the parties when a significantly higher percentage of marital assets is titled in the name of one spouse. Long v. Long, 129 Md. App. 554, 577 (2000). A court’s decision to grant a monetary award is reviewed for an abuse of discretion. Abdullahi v. Zanini, 241 Md. App. 372, 407 (2019).
The court considers the following factors in evaluating a request for a monetary award: the contributions, monetary and non-monetary, of each party to the well-being of the family; the value of all property interests of each of the parties; the economic circumstances of each party at the time the award is to be made; the circumstances that contributed to the estrangement of the parties; the duration of the marriage; the age of each party; the physical and mental condition of each party; how and when marital property was acquired, contribution to the acquisition of real property held by tenants of the entirety; alimony; and any other factor considered appropriate to a fair and equitable monetary award. FL § 8-205(b). In making a monetary award, the court is not required to “fully enunciate how its consideration of the statutory factors resulted in the particular monetary award.” Wasyluszko v. Wasyluszko, 250 Md. App. 263, 282 (2022) (award did not create a lopsided result, and thus, a specific explanation of the court’s calculation beyond consideration of the factors in the statute was not needed). The weight given to each factor is left to the discretion of the court. Skrabak v. Skrabak, 108 Md. App. 633, 654, cert denied, 342 Md. 584 (1996).
Mr. Amusa claims that the court’s 60/40 split based on Mr. Amusa’s “blatant dissipation of marital funds . . . his treatment of his [w]ife and his utter lack of candor” was not based on the requisite statutory factors. We disagree. The court engaged in a detailed analysis of the relevant statutory factors. The court found that Mr. Amusa’s “non-monetary contributions to the family were sporadic” under FL § 8-205(b)(1) and that, under FL § 8- 205(b)(4), Mr. Amusa predominantly caused the marital estrangement due to physical violence, demeaning conduct, and controlling and intimidating behavior. With regard to FL § 8-205(b)(7), the court also noted evidence of mental cruelty and physical abuse leading to a miscarriage and the need for family counseling after the separation.
The court considered Mr. Amusa’s dissipation of assets in its extensive property valuation discussion as well as in its discussion of the acquisition of retirement accounts, both statutory factors. See FL § 8-205(b)(2)&(8). Finally, the court’s findings regarding Mr. Amusa’s lack of candor and cooperation throughout the proceedings properly fell under
the last catch-all provision of FL § 8-205(b)(11), which allows the court to consider any other factors relevant to a fair and equitable monetary award. Based on the court’s thorough analysis of the marital award factors, we perceive no abuse of discretion in its decision to award Ms. Amusa 60 percent of the dissipated assets.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The record reflects that the court granted Ms. Amusa’s request to change her name to Maryam Obashola Ishola-Lemomo. Because the name listed on appeal, however, is Maryam Amusa, we will use that name.
2 New guidelines became effective on July 1, 2022. Md. Code Ann., Family Law (“FL”) §12-204 (2023 Supp.).
3 Mr. Amusa retained new counsel prior to the hearing.
4 That same day, Mr. Amusa filed a Motion to Modify Child Support. The court dismissed the motion on September 13, 2022, in response to Ms. Amusa’s motion to dismiss for failure to file a financial statement. Mr. Amusa filed a second motion to modify child support on September 28, 2022, which was also dismissed based on his failure to file a financial statement. He filed a third motion to modify child support on December 30, 2022, and an updated financial statement on January 6, 2023. The court denied the third motion as moot at the merits hearing.
5 Mr. Amusa filed Exceptions to the Magistrate’s Findings, which the court denied in a February 7, 2023 order.
6 Mr. Amusa has a master’s degree in Information Assurance from the American InterContinental University.
7 Mr. Amusa valued his TSP account at $25,000 in his March 2021 marital property statement.
8 At the time Mr. Amusa voluntarily turned in the car, there was only one past due payment on the account.
9 There was also a dispute regarding the ownership of marital property in Nigeria. Mr. Amusa denied owning any property in Nigeria. Ms. Amusa testified that Mr. Amusa owned property in Nigeria that they visited together. She stated that the land was a gift from her father-in-law, and Mr. Amusa built a house on it. She testified that there was a deed to the land, but she did not have access to it.
10 On cross-examination, Ms. Amusa’s counsel questioned whether the $1,500 child support payment negotiated in September 2020 considered his disability benefit, because Mr. Amusa had not disclosed it.
11 The judgment was recorded on July 27, 2023.
12 In February 2023, Ms. Amusa paid $125 per month in child care expenses and $173 per month in health care insurance for the children.
13 The legislature amended FL § 12-201 during the 2020 session to codify this definition. 2020 Md. Laws Ch. 384 (S.B. 847). The current statute, effective July 1, 2022, states that voluntary impoverishment means “a parent has made the free and conscious choice, not compelled by factors beyond the parent’s control, to render the parent without adequate resources.” FL § 12-201(q) (2023 Supp.).
14 The court also noted that the record showed that Mr. Amusa missed only a few days of work due to court appearances and found his explanations regarding his continued unemployment “unconvincing.”
15 Section 12-201(m) applies only to cases filed on or after July 1, 2022. 2021 Md. Laws ch. 305 (H.B. 1339). Although Ms. Amusa filed her Supplemental CounterComplaint for Absolute Divorce alleging involuntary impoverishment on July 24, 2022, Mr. Amusa filed the initial complaint in this case on October 17, 2019. Thus, although §12-201(m) was not the applicable standard here, there was no reversible error in the court’s application of §12-201(m) because it incorporates the Goldberger factors.
16 FL § 12-202(a)(2) provides that the presumption of correctness with regard to a child support obligation calculated under the guidelines “may be rebutted by evidence that application of the guidelines would be unjust or inappropriate in a particular case.” § 12- 202(a)(ii) (emphasis). Thus, the court must consider the claim only if it is raised by a party.
17 It is unclear from the evidence whether Mr. Amusa lost his clearance. We do note, however, that he testified that he had been looking for jobs on ClearanceJobs.com and the DOD.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Anne Arundel Circuit Court’s order vacating a judgment of absolute divorce on the ground that it was procured by extrinsic fraud. Although the wife’s testimony was sufficient to support the circuit court’s determination that the parties executed a written settlement agreement resolving marital property and other issues related to the divorce, the husband’s failure to file the settlement agreement with the circuit court or otherwise bring the agreement to the court’s attention prior to entry of the divorce judgment does not constitute extrinsic fraud.
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.
tion and other marital issues, which she signed in December 2020 when Mr. Jatain provided her with forms for an uncontested divorce. Mr. Jatain unequivocally denies that he and his wife ever executed a written agreement resolving their marital issues.
There is no dispute that both parties wanted to obtain a divorce. Mr. Jatain initiated the divorce by filing a complaint for absolute divorce on December 9, 2020. In the complaint, Mr. Jatain alleged that there was a “mutual agreement not to seek any alimony.” Mr. Jatain checked the following box in the court-approved form complaint: “My spouse and I have no marital property or debts that need to be decided by the court.” Mr. Jatain filed an affidavit of service that Ms. Malik was served with the complaint on December 18, 2020.
Although Ms. Malik claims that she was never served with the complaint, she acknowledges that she signed a court-approved form answer, which Mr. Jatain filed on February 22, 2021. The answer admits all allegations in the complaint and presents no defenses, although Ms. Malik avers that she only saw the signature page of the answer. Mr. Jatain signed the certificate of service for the answer (meaning that he essentially certified service to himself).
Appellant Sanjeev Jatain and appellee Poonam Malik obtained a Judgment of Absolute Divorce on April 7, 2021, in the Circuit Court for Anne Arundel County. On January 6, 2023, Ms. Malik filed a motion to revise that judgment pursuant to Rule 2-535(b). 1 After an evidentiary hearing, the court granted Ms. Malik’s motion, concluding that the divorce judgment was procured by extrinsic fraud. Mr. Jatain appeals from that decision and presents the following question for our review, which we have slightly rephrased:
Did the circuit court err in vacating the judgment of divorce on the basis that it was procured by extrinsic fraud?
We hold that the circuit court erred in vacating the judgment based on extrinsic fraud, and therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Jatain and Ms. Malik were married on February 6, 2003, in India, and had two children as a product of their marriage. The parties subsequently moved to Maryland. In late 2019, the parties decided to end their marriage. Throughout 2020, the couple had numerous discussions concerning custody, child support, and the disposition of their assets. Ms. Malik alleges that these conversations culminated in a written agreement regarding property disposi-
Mr. Jatain filed a case information report for each of the parties. Both case information reports were filled out by Mr. Jatain and list the case as being uncontested. Ms. Malik’s case information report was signed by her in December 2020. Mr. Jatain and Ms. Malik were both self-represented throughout the uncontested divorce proceeding.
Both parties attended a virtual hearing before a magistrate on April 6, 2021. When the magistrate asked, “Have the parties resolved all of their outstanding issues?” and “the two of you have distributed all of your property, is that correct?,” both parties answered affirmatively. The magistrate also advised both parties that “you did not make a request for alimony, monetary award or retirement benefit and because of that, that is a waiver that you cannot come back to the [c]ourt at a later date and ask the [c]ourt to grant your relief, you understand that?” Both Mr. Jatain and Ms. Malik indicated that they understood the waiver as explained by the magistrate. Although the magistrate understood that the parties “wanted to take care of the children pursuant to [their] agreement,” the magistrate advised them that the law required a determination of child support pursuant to the Child Support Guidelines. Accordingly, the magistrate took testimony concerning the parties’ incomes and children’s health insurance expenses, and ordered Mr. Jatain to pay $2,112 per month in child support directly to Ms. Malik.
Despite the reference in Mr. Jatain’s complaint about the parties’ “mutual agreement,” neither party mentioned nor referred to any written agreement during the hearing.
The circuit court entered a Judgment of Absolute Divorce on April 7, 2021. The court granted Ms. Malik sole legal custody and primary physical custody of the children, with liberal visitation to Mr. Jatain. The judgment approved the magistrate’s recommendation that Mr. Jatain pay $2,112 per month in child support. The order further provided that “both parties have waived their right to request alimony, monetary award and retirement benefits from the other party, and all other marital property issues resulting from the marriage have been resolved by agreement of the parties.”
In September 2022, Ms. Malik retained counsel and requested copies of the filings from the circuit court. She alleges that this was the first time she saw the complaint and the complete answer. Upon discovering that the written agreement had not been filed with the court as she thought, Ms. Malik sent an email to Mr. Jatain requesting a copy of the agreement. Mr. Jatain replied that there was no written agreement. On January 6, 2023, Ms. Malik filed a Motion for Court to Exercise Revisory Power, to Reopen Case, and for Other, Further Relief. She alleged that the Judgment of Absolute Divorce was obtained through extrinsic fraud. Mr. Jatain then moved to dismiss Ms. Malik’s motion to revise.
The circuit court held a hearing on the motions on May 26, 2023. The court first denied Mr. Jatain’s motion to dismiss, noting that the allegations in Ms. Malik’s motion to revise, if proven, could support a finding of extrinsic fraud. The court then allowed the parties to present evidence on Ms. Malik’s motion to revise.
Ms. Malik’s Testimony
Ms. Malik testified that she was never served with the complaint, and first saw the complaint and answer in September 2022, after requesting copies from the court. She testified that, sometime in late December 2020, Mr. Jatain provided her a set of documents that he said constituted “the mutual paperwork that we’re filing for mutual divorce.” Among these papers were Ms. Malik’s case information report and the signature page of the answer, which were “prefilled” by Mr. Jatain. Ms. Malik recounted that the written agreement regarding marital property was also among the divorce paperwork, and that she signed the agreement in Mr. Jatain’s presence. She believed she was signing the “overall paperwork for mutual divorce,” and Mr. Jatain told Ms. Malik that all the paperwork she signed that day, including the written agreement, would be filed with the court. Mr. Jatain told Ms. Malik not to date the papers she was signing, because he would “put the date that [he was] filing them in the court as a mutual application.” She did not know why Mr. Jatain signed her answer’s certificate of service. Ms. Malik testified to her understanding that the written agreement would be filed in court with the other documents, explaining: “Of course, it has to be filed in court, because that’s why we are working on the agreement, otherwise what do I have.” She further explained, concerning the
divorce proceedings, that “everything was led by him right from the start to finish. He was leading the whole process, all the paperwork.” Ms. Malik did not receive a copy of the written agreement and did not see it again after she signed it.2 She acknowledged her “mistake” in not having an attorney and trusting her husband in the handling of the divorce.
To explain why she did not inquire further into what documents she was signing, Ms. Malik testified that, during the negotiations and divorce proceedings, she trusted Mr. Jatain: “I signed whatever [Mr. Jatain] asked me, because I never wanted to go to court, I just want to take care of [the] kids and be done with this thing.” Ms. Malik had known Mr. Jatain “all [her] life from [her] teen years till [her] divorce” at age 43. She trusted that he would file the written agreement with the court, as he said he would.
Both Mr. Jatain and Ms. Malik attended and participated in the divorce hearing before the magistrate. According to Ms. Malik, she had not seen the complaint or answer and believed that the written agreement had been filed with the court. Thus, when she answered “yes” to the magistrate’s question concerning whether the property issues were resolved, she meant “resolved, yes, based on the agreement we have.” Similarly, when she answered “yes” to the magistrate’s question about whether all the property had been distributed, she thought that meant “we have settled on our financials[,]” through the written agreement. She acknowledged that she “didn’t ask any questions regarding [the] agreement” at the magistrate’s hearing, and recognized that the agreement could have been addressed by the magistrate had the issue been presented. According to Ms. Malik, the text of the agreement consisted of a “single page,” with a second page that listed “financial, assets and liabilities.” She stated that the agreement did not address retirement and included an alimony waiver.
Regarding acknowledgment or enforcement of the agreement, Ms. Malik testified that Mr. Jatain followed the terms of the agreement for a year after the divorce. However, when he stopped abiding by those terms, she asked him for a copy of the written agreement. In response, Mr. Jatain denied the existence of a written agreement.
Mr. Jatain’s Testimony
Mr. Jatain consistently maintained that the parties never executed a written agreement. According to him, Ms. Malik was served with the complaint in “mid to late December” 2020, and he was present when she was served. Mr. Jatain denied that he gave Ms. Malik only the signature page of the answer or that she signed the answer in December 2020. Instead, Mr. Jatain testified that in a phone call with Ms. Malik during her trip to India with the children, he discussed her answer, going over the form document “point by point.” He filled out the court-approved answer in accordance with their phone conversation, and took it to her to sign in February 2021 after she returned from India. When Ms. Malik signed the answer, Mr. Jatain told her what the document was and asked her to “please go through it.” He explained that he signed the answer’s certificate of service because he actually filed the document in the circuit court.
Mr. Jatain testified that he told the magistrate at the divorce hearing that there was no property to be divided because “we are discussing between us and we don’t need [the] [c]ourt to help or mediate,” and that he and Ms. Malik have “work[ed] together for [a] long time and we have that kind of confidence level.” When Mr. Jatain checked the box on his form complaint that the parties had agreed upon all property issues, he meant that “we are talking” about an agreement.
Mr. Jatain testified that Ms. Malik “gets . . . 50 percent” of the liquor store, but also asserted that “[t]here’s no agreement on the liquor store.” He testified that “there’s no agreement on retirement” and “there’s no agreement” on custody or child support. He explained that the money he had given Ms. Malik since their separation was based on what he believed to be her “fair share,” rather than an agreement between them. When asked why he would pay her money when there was no order or agreement that he do so, Mr. Jatain testified: “Because as a human being, if I was with someone, as a responsibility I will pay 50 percent which is her share.” Mr. Jatain admitted that, in an email to Ms. Malik, he told her he would prepare an agreement concerning their property, but he stated that they did not enter into a written agreement because “she’s not agreeing to anything.” Mr.
Jatain denied that the parties were still discussing the terms of an agreement, stating: “Whatever [we] discussed long back is done, there’s nothing more to discuss.” Irrespective of the lack of a written agreement, Mr. Jatain confirmed that he and his wife had reached an agreement “over the past two years” that the value of their property was “roughly” 2.1 million dollars. He indicated that he had already paid Ms. Malik “around 1 million” dollars, exclusive of child support, some of which he paid prior to the divorce.
The Parties’ Emails
Emails entered into evidence at the hearing indicate that, both before and after their divorce, the parties discussed specific aspects of their property distribution. Specifically, the emails in 2020 discussed how much of the children’s expenses each party would pay, with an apparent understanding that Mr. Jatain would pay half of the expenses if Ms. Malik is working, and 100% of the children’s expenses if she is not employed. The parties also discussed how to distribute various assets, including the liquor store, jewelry, cars, and the marital home. On June 26, 2020, Mr. Jatain told Ms. Malik that he would “prepare a financial agreement on what we talked [about].” An email from Mr. Jatain on July 28, 2020, titled “Financial Draft for Divorce,” included a spreadsheet listing the parties’ various assets and debts.
After the divorce, the parties’ emails indicate that they continued discussing payments for the children’s expenses and specific aspects of the distribution of their property. In November 2021, Mr. Jatain indicated that he would pay one-half of both the down payment and monthly payments for Ms. Malik to purchase a new vehicle. He also asked Ms. Malik to withdraw $30,000 from a joint bank account that
he intended to close. Most of the post-divorce emails were written between January and February 2022. These emails focus primarily on splitting the profits from the liquor store, a plan to sell the liquor store and how to distribute the sales proceeds, and Ms. Malik’s plan to purchase a house in Massachusetts. Concerning the liquor store, the emails appear to reflect an understanding that Ms. Malik would receive half the profits from the business and half of the proceeds from its sale. The discussions concern only when the business would be sold and various options for Ms. Malik to receive money from the business. As to the house in Massachusetts, their emails reveal an understanding between the parties that Mr. Jatain would pay half the down payment on Ms. Malik’s house, and would pay half the monthly mortgage payments until the youngest child reaches age 18. The only unresolved questions related to the amount of the mortgage and what information Mr. Jatain wanted regarding the house. Ms. Malik testified that Mr. Jatain provided a $200,000 down payment on her Boston home. There was also some discussion regarding how Mr. Jatain would transfer jewelry in his possession to Ms. Malik, and when Mr. Jatain would establish a trust for the children. On July 21, 2022, Mr. Jatain told Ms. Malik in an email concerning the remaining financial issues, “I’ve no obligation to pay you anything other than your share,” which he indicated was 50% of the remaining assets.
Circuit Court’s Bench Opinion
After receiving evidence and arguments from counsel, the court rendered its opinion from the bench. The court concluded that the evidence of extrinsic fraud was “clearcut.”
After providing a brief explanation of extrinsic fraud, the court presented its findings and conclusions: In this case, it is clear to the [c]ourt that the plaintiff’s actions actually deprived the defendant of an adversarial trial.
I base this decision on a number of reasons. First, I find that the defendant is credible and I believe her when she tells me that she was not properly served and did not sign the documents as presented. . . .
And that she did not knowingly sign any documents that were presented to her. I find it incredibly interesting and I find it to be detrimental to the plaintiff that every[thing] was prepared by him, every document was filed by him. Case information report, answer, divorce pleading, all of that and none of those documents had anything which referenced a mutual agreement that may have been made which the defendant claims was made.
I think it’s very interesting when you review the documents and you compare the testimony in court to what I heard just now that the plaintiff told me repeatedly, there was no agreement, there was no agreement, there was no agreement.
Well that is absolutely not true when we look at the document that he filed which was a complaint for absolute divorce where he said there was a mutual agreement to support the children, where he said there was a mutual agreement not to have alimony.
If you look at the case information reports, they both say that this is an uncontested issue and the case is not contested. The [c]ourt is not convinced that the plaintiff’s testimony is accurate.
The [c]ourt does believe that there were agreements in this case and there is proof of the agreements both pre and post divorce. The [c]ourt finds it hard to believe that absent an agreement which was not attached to the divorce, which was not presented to the [c]ourt, and that she was not aware of, that somehow voluntarily he’s going to be giving her half the profits of a liquor store which he allegedly solely owns, that he’s going to [give] her $200,000 in March of ’22 to buy a home in Massachusetts, is going to give her $75,000 pre divorce and another 110,000 pre divorce to buy a house. I just don’t find any of that to be credible, that there’s no agreement, but I’m still going to give $200,000 post divorce?
If there’s no agreement, why did he give her the money? So the [c]ourt does believe when the defendant tells me that there was an agreement and she was -- and that the paperwork was fraudulent when presented to the [c] ourt.
I just don’t understand why he served an answer on himself. I mean, he literally prepared every document and presented every document to the court, and those documents were not accurate.
The e-mails talk about down payments and car payments and mortgages and the liquor store, bank accounts, the timeshare. He testified or he -- in his complaint, he said all property has been distributed. Well, we know it was not true that all property has been distributed because he gave her $200,000 post divorce.
The [c]ourt does believe that this was a case where they -- he said, we’ll just deal [with] it ourself and not involve the courts. And the [c]ourt does believe her when she said, that there was a promise made that it would be a mutual divorce and that the agreement would be filed.
And the [c]ourt does believe and the [c]ourt does find credible that the paperwork which was filed was materially deficient in terms of what may have been an agreement between the parties. And, in fact, prevented an adversarial trial in this case. Based on its finding of extrinsic fraud, the court entered an order vacating the judgment of absolute divorce on May 31, 2023. Mr. Jatain noted this timely appeal.
DISCUSSION
The circuit court at least implicitly accepted Ms. Malik’s testimony that she signed a written settlement agreement in December 2020. Based on that finding, the court concluded that Mr. Jatain engaged in extrinsic fraud when he failed to file the settlement agreement with the complaint for divorce and other papers necessary to obtain an uncontested divorce. Mr. Jatain maintains that the court erred in finding that the parties executed a written settlement agreement, but alternatively asserts that the terms of any such agreement “are not definitive nor final.” Naturally, Ms. Malik argues that the court did not clearly err in finding that the parties signed a settlement agreement and that Mr. Jatain committed extrinsic fraud by omitting the agreement from the court filings necessary to secure the divorce. Ms. Malik further asserts that certain procedural deficiencies related to securing the uncontested divorce amounted to extrinsic fraud.
A. The Court Did Not Err In Finding That The Parties Executed A Settlement Agreement
We have no difficulty concluding that the court’s finding that the parties executed a written settlement agreement is not clearly erroneous. Ms. Malik consistently testified that she signed a written settlement agreement that was specific as to the resolution of marital property. She testified that she signed the agreement in Mr. Jatain’s presence when he “came with all the prefilled forms.” Although she has not seen the written agreement since she signed it in December 2020, she introduced an exhibit that reflected her recollection of the “primary major issues” that were agreed upon. In light of the court’s credibility finding in favor of Ms. Malik, her testimony alone is sufficient to support the court’s determination that the parties executed a written settlement agreement resolving marital property and other issues related to the divorce.3
B.The Court Erred In Determining That Mr. Jatain’s Failure To File The Settlement Agreement Or Otherwise Alert The Court Of Its Existence Constituted Extrinsic Fraud
Although we take no issue with the court’s finding that the parties executed a written settlement agreement, Mr. Jatain’s failure to file the settlement agreement with the court or otherwise bring the agreement to the court’s attention prior to entry of the divorce judgment does not constitute extrinsic fraud as defined by Maryland caselaw. We explain.
Although we review fact findings for clear error, whether the underlying facts create “‘a factual predicate of fraud . . . necessary to support vacating a judgment under Rule 2- 535(b)’ . . . is a question of law” reviewed without deference. Facey v. Facey, 249 Md. App. 584, 601 (quoting Wells v. Wells, 168 Md. App. 382, 394 (2006)). “The burden of proof in establishing fraud . . . is clear and convincing evidence.” Id. (quoting Jones v. Rosenberg, 178 Md. App. 54, 72 (2008)).
Where fraud exists, we review the court’s decision to grant or deny a motion to revise a judgment for abuse of discretion. Id.
Maryland courts continue to follow the reasoning in United States v. Throckmorton, 98 U.S. 61 (1878), that there are two types of fraud relevant to this inquiry—extrinsic fraud and intrinsic fraud—and that a judgment may be vacated only upon a showing of extrinsic fraud.4 See Facey, 249 Md. App. at 632. After extensively reviewing applicable caselaw, the Facey Court made the following observations:
Extrinsic fraud perpetrates an abuse of judicial process by preventing an adversarial trial and/or impacting the jurisdiction of the court. Fraud prevents an adversarial trial when it keeps a party ignorant of the action and prevents them from presenting their case, [or] the fraud prevents the actual dispute from being submitted to the fact finder at all.
Id. (citations omitted). “The party seeking relief must show that the fraud . . . is ‘unmixed with any fault or negligence in himself.’” Id. at 634 (quoting Md. Steel Co. of Sparrows Point v. Marney, 91 Md. 360, 370 (1900)). “[I]f the fraud could have been discovered at trial, it is unlikely to be considered extrinsic.” Id. at 632. Such fraud is more likely to be considered intrinsic if it “relates to facts that were before the court in the original suit and could have been raised or exposed at the trial level.” Id. at 633 (emphasis removed). “If a party could have discovered the fraud, but ‘by reason of its own neglect’ it failed to exercise the ‘care in the preparation of the case as was required of it,’ the fraud will be intrinsic.” Id. (quoting Marney, 91 Md. at 371). “Fraudulent or forged documents that were contained within or could have been addressed at trial . . . are normally considered intrinsic to the original suit.” Id. at 634.
A leading case on the distinction between extrinsic and intrinsic fraud is Hresko v. Hresko, 83 Md. App. 228 (1990). The Court there considered whether the “fraudulent concealment of assets by one spouse during negotiations leading to a separation and property settlement agreement subsequently incorporated into a divorce decree is intrinsic or extrinsic to the divorce litigation.” Id. at 229. In the settlement agreement, Husband agreed to pay $400 per month in child support, the entire cost of the child’s college education, and certain family debts. Id. at 230. The agreement also provided Wife the option to purchase Husband’s share of the marital home within three years of the date of the settlement agreement. Id. Less than a year after the judgment of divorce, which incorporated the settlement agreement, Wife exercised her option to buy Husband’s share of the marital home, paying him $30,000 in cash. Id. Husband filed a motion to revise the judgment, alleging that Wife concealed assets during their settlement negotiations. Id. Husband alleged that “during negotiations between the parties prior to the agreement, [Wife] represented and constantly reiterated to him that she had no money in any account or investment except for a small reserve account used for her expenses during the summer when she was not working.” Id. at 231. Wife filed a motion to dismiss
Husband’s revisory motion, which the court granted. Id. at 230–31. Husband appealed, and we affirmed, holding that the “alleged concealment of funds is an example of, at most, intrinsic fraud.” Id. at 232.
We described extrinsic fraud as fraud which “prevented the actual dispute from being submitted to the fact finder at all,” and in which “there has never been a real contest in the trial or hearing of the case[.]” Id. at 232–33 (first citing Fleisher v. Fleisher Co., 60 Md. App. 565, 571 (1984), then quoting Schwartz v. Merchants Mortg. Co., 272 Md. 305, 309 (1974)). We contrasted this with intrinsic fraud, defined as “[t]hat which pertains to issues involved in the original action or where acts constituting fraud were, or could have been, litigated therein.” Id. at 232 (alteration in original) (quoting Intrinsic Fraud, Black’s
Law Dictionary (5th ed. 1979)). We followed the reasoning of courts in New York, Texas, and North Carolina, and concluded:
Misrepresentations or concealment of assets made in negotiations leading to a voluntary separation and property settlement agreement later incorporated into a divorce decree represent matters intrinsic to the trial itself. In fact, a determination of each party’s respective assets, far from being a collateral issue, would seem to be a central issue in a property settlement agreement. Id. at 235. We rejected Husband’s argument that Wife’s alleged fraud was “extrinsic to the divorce action because it occurred two years prior to the action and prevented [Husband] from taking advantage of his right to an adversarial proceeding.” Id. The settlement agreement was submitted to the court for incorporation into the judgment of divorce, and therefore Husband “had every opportunity to examine these representations through discovery methods or in court. Instead, he chose to file an uncontested answer and permitted the matter to go to judgment.” Id. at 235–36 (footnote omitted). We likened misrepresentations in settlement agreements to perjury, which has long been held to be intrinsic fraud. Id. at 236 (citing Hamilos v. Hamilos, 297 Md. 99 (1983)).
Facey provides another instructive example of intrinsic fraud. In 2006, as part of their divorce settlement agreement, Roberto Facey executed a confessed judgment note in the amount of $75,000 in favor of his former wife, Esther. Facey, 249 Md. App. at 594, 596. Unfortunately, Esther suffered debilitating strokes in 2008 and 2009. Id. at 596. In 2011, the couple’s daughter, Soralla Facey de Otts, filed in the circuit court a “Complaint for Confession of Judgment” on behalf of her mother, based on the 2006 note. Id. at 594. Soralla asserted authority to file suit on behalf of her mother based on a power of attorney purportedly executed by Esther in 2008. Id. Roberto timely moved to vacate the 2011 confessed judgment, alleging duress, undue influence, misrepresentation, and limitations. Id. The court denied Roberto’s motion to vacate. Id.
More than seven years later, Roberto moved to vacate the 2011 judgment pursuant to Rule 2-535(b). Id. In this motion to vacate filed in 2018, Roberto claimed that the
power of attorney relied on by Soralla to file the 2011 action was fraudulent, asserting that it had been “backdated to appear as though it was executed prior to Esther’s disability and that it did not contain Esther’s authentic signature.” Id. After an evidentiary hearing, the circuit court concluded that, although Roberto produced sufficient evidence to establish that the power of attorney was “both fraudulently procured and a forgery,” that evidence did not amount to extrinsic fraud necessary to permit the court to exercise its revisory power under Rule 2-535(b). Id. at 595.
We affirmed the circuit court’s determination that the fraud related to the power of attorney constituted intrinsic fraud. Id. We reasoned that “the fraudulent and forged Power of Attorney did not prevent Roberto ‘from exhibiting fully his case,’ or ‘keep[] him away from court.’” Id. at 635 (quoting Throckmorton, 98 U.S. at 65). Moreover, we held that the power of attorney “was not collateral to the entry of the confessed judgment or the issues tried in the motions hearing.” Id. at 636. Thus, because the power of attorney was before the court, we concluded that “its fraudulent nature could have been exposed during the motions hearing.” Id. As such, the fraud did not constitute extrinsic fraud. Id. at 637;5 see also Marney, 91 Md. at 371–72 (rejecting appellant/employer’s claim of extrinsic fraud resulting from perjured testimony because “by reason of its own neglect” it failed to exercise the “care in the preparation of the case as was required of it”).
Here, Ms. Malik contends that Mr. Jatain’s failure to file the settlement agreement with the papers for an uncontested divorce constituted extrinsic fraud. Thus, in her view, the circuit court properly vacated the divorce judgment pursuant to Rule 2-535(b). Although we understand that Ms. Malik, as a self-represented litigant, may not have fully appreciated the consequences of not having the settlement agreement incorporated (or incorporated but not merged) into the divorce decree, the caselaw does not support a finding of extrinsic fraud in this case. Ms. Malik appeared virtually and participated in the magistrate’s hearing. Upon questioning by the magistrate, Ms. Malik explicitly confirmed that she and her husband had distributed all of their property. Ms. Malik further acknowledged that she was not making a “request for alimony, monetary award or retirement benefits” and confirmed her understanding that she could not “come back to the [c]ourt at a later time and make a claim” related to those matters. In her testimony in circuit court on her motion to revise, Ms. Malik stated that, although she did not advise the magistrate of the settlement agreement, she nevertheless told the magistrate that all property issues were “resolved.” Ms. Malik’s circuit court testimony indicates that she understood the importance of filing the agreement in court, but candidly acknowledged that “my mistake was that I didn’t have an attorney and I trusted [Mr. Jatain].”6 Moreover, Ms. Malik conceded that she “didn’t ask any questions regarding [the] agreement” at the magistrate’s hearing. The record is clear that Ms. Malik had every opportunity to bring the settlement agreement to the magistrate’s attention and request that it be incorporated or approved in some fashion by the court. She failed to
do so, and there is no evidence in the record that Mr. Jatain prevented Ms. Malik from requesting the court to incorporate the agreement, with or without merger, into the divorce judgment. He certainly did not “keep [her] away from court.” See Facey, 249 Md. App. at 635. In short, the court’s failure to incorporate or approve the settlement agreement resulted at least in part from Ms. Malik’s own neglect and failure to exercise the “care in the preparation of the case as was required of [her].” Marney, 91 Md. at 372. Moreover, the record is clear that Ms. Malik did not comply with the well-settled standard that “a litigant has a duty to keep [herself] informed as to the progress of a pending case[,]” Das v. Das, 133 Md. App. 1, 19 (2000), in that she was unaware that the settlement agreement was not filed in court.
Finally, the case at bar is analogous to Hresko where we held that Wife’s alleged fraud in the negotiation of a marital settlement agreement constituted intrinsic fraud because Husband had the opportunity to challenge in court Wife’s alleged misrepresentations related to the settlement agreement. Here, Ms. Malik likewise had the opportunity before the magistrate to challenge or expose Mr. Jatain’s alleged fraud related to his failure to file the settlement agreement in the divorce case. We hold that any fraud in this case was intrinsic, and therefore the court erred in vacating the judgment based on its finding of extrinsic fraud.7
C. The Procedural Deficiencies Do Not Constitute Extrinsic Fraud
Ms. Malik asserts that multiple procedural deficiencies resulting from Mr. Jatain’s handling of the uncontested divorce constitute extrinsic fraud sufficient to vacate the divorce judgment. Ms. Malik generally alludes to the fact that Mr. Jatain prepared all of the forms to obtain an uncontested divorce. She specifically claims that the affidavit of service of the divorce complaint is fraudulent because she avers that she was never served with the complaint. In addition, although she admits that she signed the last page of the answer to the complaint at Mr. Jatain’s request, she stated that she did not contemporaneously receive a copy of the answer that Mr. Jatain eventually filed with the court. She claims that she first saw the complaint, answer, and other court-filed documents related to the divorce when she requested a copy of all filings from the clerk of court in September 2022. Ms. Malik further notes that Mr. Jatain signed the certificate of service for the answer, meaning that he served the answer on himself.
Because the circuit court found her credible, we accept the accuracy of the procedural oddities identified by Ms. Malik. None of these procedural issues, however, amount to extrinsic fraud in the context of this case. We fail to see how the insufficiency of service of process or her failure to receive copies of pleadings could constitute extrinsic fraud in light of Ms. Malik’s attendance and participation in the merits divorce hearing where she could have raised the issue of the settlement agreement and its incorporation into the judgment. The procedural deficiencies identified by Ms. Malik did not prevent her from ensuring that the magistrate was aware of the settlement agreement, nor did it
preclude her from asking the court to incorporate, in some fashion, the agreement into the divorce judgment. Thus, to the extent the circuit court relied on these procedural deficiencies to vacate the judgment, the court erred.
CONCLUSION
Although we conclude that the circuit court’s determination that the parties executed a written settlement agreement is not clearly erroneous, we hold that the court erred in vacating the divorce judgment based on extrinsic fraud.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY
VACATING THE JUDGMENT OF ABSOLUTE DIVORCE IS REVERSED. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 Rule 2-535(b) provides: “On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”
2 Ms. Malik introduced into evidence a document that she prepared to reflect her recollection of the basic terms of the written agreement.
3 We note that Mr. Jatain also advised the magistrate that the parties had distributed their property, thus implying the existence of some form of oral or written agreement.
4 Several other states no longer distinguish between extrinsic and intrinsic fraud and instead allow courts to revise or vacate judgments based on either type of fraud. See, e.g., NC-DSH, Inc. v. Garner, 218 P.3d 853 (Nev. 2009); West v. West, 288 S.W.3d 680 (Ark. Ct. App. 2008); Patel v. OMH Med. Center, Inc., 987 P.2d 1185 (Okla. 1999); Pepper v. Zions First Nat. Bank, N.A., 801 P.2d 144 (Utah 1990).
5 Although not relevant to the instant case, the Facey Court further held that the forged power of attorney did not affect the court’s subject matter jurisdiction. 249 Md. App. at 637–38.
6 Although Ms. Malik testified that she trusted Mr. Jatain, she did not assert that a confidential relationship existed between them, and therefore the circuit court made no findings as to any such relationship. Nor does she make such an argument on appeal. In any event, the record is insufficient to satisfy the factors necessary to prove the existence of a confidential relationship. These factors include “the age, mental condition, education, business experience, state of health, and degree of dependence of the spouse in question.” Bell v. Bell, 38 Md. App. 10, 14 (1977). The parties are both in their 40s, there was no evidence that Ms. Malik suffers from any problems with her mental or physical health, she holds a master’s degree in business administration, and she has worked in well-paid managerial positions. Ms. Malik certainly did not establish that she was dependent on Mr. Jatain. Although the issue was not raised, the trust Ms. Malik placed in Mr. Jatain does not appear to result from any confidential relationship.
7 Although the court erred in vacating the judgment of divorce, both parties acknowledged at oral argument that, irrespective of our decision in this case, nothing precludes Ms. Malik from attempting to prove the terms of the settlement agreement pursuant to applicable contract law..
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 02 MFLU Supp. 32 (2024) Pendente lite hearing; custody; notice Jayniece Brown v. Michael Presentado
The Appellate Court vacated the Prince George’s Circuit Court’s award of sole legal and primary physical custody of the minor child to the father. It was unclear whether the mother received adequate notice of the pendente lite hearing. Additionally, that hearing was described in the court’s own scheduling order as a one-hour hearing “on the issues of access,” and not a merits hearing on custody.
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.
papers she filed in this case. Moreover, the November 10 hearing was supposed to have been a pendente lite hearing on temporary access, but the order proposed by the magistrate and adopted by the court was a final custody order. Because we are not satisfied that Ms. Brown received adequate notice of the pendente lite hearing, and because that hearing was described in the court’s own scheduling order as a one hour hearing “on the issues of access” (and not a merits hearing on custody), we will vacate the order entered as a result of that hearing, and remand the case for further proceedings.1
BACKGROUND
Jayniece Brown, appellant, and Michael Presentado, appellee, are respectively the mother and putative father of R.B., a minor child. In this appeal, Ms. Brown, representing herself, filed an “informal brief” pursuant to Maryland Rule 8-502(a)(9) contesting a custody order entered by the Circuit Court for Prince George’s County on December 7, 2022, which awarded Mr. Presentado sole legal and primary physical custody of R.B. In her informal brief, which we have liberally construed, Ms. Brown’s principal contention is that she did not receive adequate notice from the court, and was not able to attend the pendente lite hearing which resulted in the court granting Mr. Presentado sole legal custody. In the informal brief filed by appellee’s counsel on behalf of Mr. Presentado, counsel asserts that the court’s custody order was supported by the testimony offered at the pendente lite hearing Ms. Brown did not attend, and he urges this Court to dismiss the appeal.
Although appellant’s arguments are very thinly presented, we have noted several irregularities in the record, and we are guided by precedent in which the appellate courts of Maryland have shown great concern to ensure that parents are not deprived of parental rights without notice. Ms. Brown’s informal brief asserts that she did not receive notice of the hearing at which the magistrate made the custody determination, and we observe that the address listed for her on the clerk’s notice of that hearing did not include her apartment number, whereas she consistently used it in
On April 1, 2022, Mr. Presentado, through counsel, filed a complaint seeking joint legal custody and physical custody of R.B., with an access schedule for Ms. Brown. In his complaint, Mr. Presentado alleged that, although they never married, Ms. Brown and he were engaged in a relationship that resulted in R.B.’s birth in March 2020. Mr. Presentado further alleged that, after living together for an unspecified period of time, the parties separated in January 2022, whereupon he attempted without success to negotiate a “stable access schedule and custody arrangement[.]” The verified complaint alleged that both “parties are fit and proper individuals to be granted joint legal custody” and “[b]oth parties are able to financially support the child.” Ms. Brown was personally served with the summons and complaint at her Hyattsville apartment on April 12, 2022.
On April 18, 2022, Ebone Wilson—R.B.’s purported godmother who was sometimes described by Ms. Brown as her “aunt”—filed a pro se motion to intervene, requesting “full physical and legal custody” of R.B. In that motion, Ms. Wilson claimed that she had served as R.B.’s “full-time guardian” since Ms. Brown had placed R.B. in her care on May 1, 2021. Ms. Wilson also alleged that Ms. Brown was unable to provide R.B. with either “consistent care” or a “safe, stable environment[.]” With respect to Mr. Presentado, Ms. Wilson asserted that he had neither “established . . . a healthy relationship with [R.B.] [n]or exhibited a prior interest or willingness to care for the child.”
On May 11, 2022, Ms. Brown, representing herself, filed an “[a]nswer”—which was, in substance, an answer and counter-complaint—to Mr. Presentado’s custody complaint. In that pleading, Ms. Brown attributed Mr. Presentado’s alleged lack of visitation with R.B. to Mr. Presentado’s having arranged his work schedule to conflict with “family time[.]” She also claimed that Mr. Presentado’s paternity of
R.B. had not been confirmed. As relief, Ms. Brown requested that the court (1) “establish paternity” between R.B. and Mr. Presentado, (2) grant the parties “joint custody,” and (3) establish an access schedule among Mr. Presentado, Ms. Wilson, and herself.
Although the court initially granted Ms. Wilson’s motion to intervene, Mr. Presentado filed a “Motion to Revise and Answer to Motion to Intervene.” In that motion, Mr. Presentado denied Ms. Wilson’s allegations against him and argued that Ms. Wilson “d[id] not meet any of the requirements to be an intervener in th[e] case” because she was not “a blood . . . relative” or a de facto parent and she had not otherwise demonstrated a sufficient interest in the subject matter of the proceeding.
The court scheduled a remote hearing on Mr. Presentado’s motion for August 11. All three parties attended the hearing via Zoom. Mr. Presentado was represented by counsel, but Ms. Brown and Ms. Wilson appeared without counsel. After hearing from the parties, the court granted Mr. Presentado’s motion for reconsideration, vacated its prior order, and denied Ms. Wilson’s motion to intervene. At the conclusion of the hearing, the motion judge told the parties that the docket entry would reflect that “this [case] be set in for a scheduling conference and at that time you can request a PL hearing for any type of temporary relief ”
On October 7, 2022, the court set a remote scheduling conference for October 19, 2022. Notably, the written notice of the scheduling conference did not include Ms. Brown’s apartment unit number in her address. Following that conference, the court issued a scheduling order, which appears to have contained two clerical errors. First, it, too, omitted the apartment unit number from Ms. Brown’s mailing address. Second, it recited that “the Defendant” (Ms. Brown) had attended the scheduling conference on October 19 with counsel—despite no attorney having ever entered an appearance on her behalf—while stating that “the Plaintiff” (Mr. Presentado) had appeared without counsel.
The scheduling order set a pendente lite hearing on child access for November 10, 2022, and a merits trial on the issues of custody, access, and child support for February 27, 2023. Although the scheduling order was dated October 19 and signed by the administrative judge on October 27, the docket entries reflect that the scheduling order was entered on November 14—four days after the date on which the pendente lite hearing which is the subject of this appeal was held.
On November 10, 2022, a magistrate convened a remote hearing, ostensibly to address the issue of pendente lite access to R.B. The record before us does not include a transcript of the remote hearing conducted by the magistrate. Although Mr. Presentado and his attorney attended the hearing, Ms. Brown did not.
She explains in her informal brief that she “did not receive[] anything” from the court pertaining to the November 10 hearing. She states in her brief:
The only reason on how I knew about the hearing on 11/10, was because I logged onto Maryland Case Search.
I also saw that there was a Courtroom #, which led me to believe that the hearing was in a courtroom. I even called Magistre [sic] 2x to confirm. I was told two different times, 8:30 am & 1:00 pm. On 11/10, I went to the courthouse about 8:45am. I stood by the courtroom that was supposed to house the hearing, but the baliff [sic] that stood guard by that courtroom told me that the judge does only Zoom hearings. So, the baliff pointed me to magistre[,] & magistre pointed me somewhere else.
I ended up walking around the courthouse for about a good hour until I was redirected to a room where this guy gave me a Zoom link and I went in and Family Magistre told me that they already did my case.
From the record, it appears that the presiding magistrate issued a proposed order (dated “11/10/2022”) on November 18 that did not provide for pendente lite access to the child. Instead, the order stated that there had been a hearing conducted on November 10, 2022, on “Plaintiff’s Complaint for Custody[.]” The order further provided that “Plaintiff’s Complaint for Custody . . . is granted.” And it was further ordered that “Plaintiff be and is hereby awarded sole legal and primary physical custody of the minor child ”
Additionally, the order provided that “this case be and hereby is closed for statistical purposes only.”
On December 1, a circuit court judge signed the order as proposed by the magistrate, without any alterations, and the judgment granting Mr. Presentado sole legal custody was entered by the clerk on December 7, 2022.
This timely appeal was filed by Ms. Brown on January 6, 2023.2
DISCUSSION
This Court has addressed due process challenges to child custody orders in at least two prior reported opinions. During a divorce proceeding in Van Schaik v. Van Schaik, 90 Md. App. 725 (1992), the parties reached a separation agreement that provided for joint legal custody of their minor child, with primary physical custody to the mother and reasonable visitation to the father. After that agreement was filed, the trial court appointed a child’s attorney, who subsequently “requested a hearing ‘with regard to visitation and other issues.’” Id. at 730. The court scheduled a hearing and, in a notice to the parties, advised them: “HEARING ON VISITATION AND CHILD’S POSSESSIONS has been scheduled for March 18, 1991[,] from 9:00 a.m. to 11 a.m.” Id. Because the father “did not seriously contest the visitation and property issues,” he attended the hearing pro se. Id. At the conclusion of that hearing, the court terminated the father’s parental rights to the child on its own initiative.
On appeal, we vacated the circuit court’s order, holding that the father “was not given proper notice that matters relating to custody were to be the subject of the hearing at issue.” Id. at 738. We reasoned that it was clear from the language of then FL § 9-205 that, “if a court is contemplat-
ing holding a hearing at which it will, or may, determine custody issues, a parent with custodial rights . . . must be notified that such an issue may be the subject of the hearing.”3 Id. In that case, however, the notice did not indicate that “the court was contemplating making a custody decision[,]” nor did either party request that the court do so. Id. at 739. Absent prior notice to the father that the court would consider custody, we concluded that the father had been deprived of “an opportunity for effective argument on the issue[.]” Id. See also Blue Cross of Md., Inc. v. Franklin Square Hosp., 277 Md. 93, 101 (1976) (“[U]nless . . . a party otherwise receives adequate notice of an issue during the course of a proceeding, due process is denied.”), quoted with approval in Van Schaik, 90 Md. App. at 739.
In Burdick v. Brooks, 160 Md. App. 519 (2004), we were again presented with a due process challenge to an adverse custody order. In that case, the circuit court granted the parties an absolute divorce and granted Burdick pendente lite custody of their minor children on May 6, 2003. The court subsequently “ordered the parties to cooperate in psychological evaluations[.]” Id. at 523. During the ensuing months, the parties filed competing motions, each seeking “to limit the other’s access to the . . . children.” Id. The court scheduled a status conference, of which it notified the parties in a letter which read: “Please be advised that this conference is approximately fifteen (15) minutes long. It is a chance for you to inform the Judge of the issues and he will decide how to proceed. This is not a hearing or trial[;] there will not be time for witnesses to speak.” Id. (bold emphasis of last sentence omitted). At that proceeding—despite the fact that the notice said the conference would not be “a hearing or trial”—the court “awarded temporary custody of the three youngest children to Brooks, with visitation rights to Burdick[,]” citing the latter’s failure to comply with its psychological evaluation order. Id . at 523-24. We vacated the circuit court’s temporary custody order. Relying on Van Schaik, we held: “Because the court did not provide notice of a possible custody determination, Burdick had no opportunity for an effective argument on
the issue of custody.” Id. at 527 (quotation marks and citation omitted; emphasis retained).
In our view, the manner in which the circuit court decided the custody issue in Ms. Brown’s case is marred by similar procedural defects. The circuit court’s scheduling order expressly limited the scope of the November 10 hearing to the issue of pendente lite access to R.B. As in Van Schaik and Burdick, the scheduling order did not notify either party that the issues of legal and physical custody would or might be addressed at that hearing.4 Rather, the scheduling order explicitly stated that “the issue[] of custody” would be considered at a “trial on [the] merits” scheduled for 9:00 a.m. on February 27, 2023—after a January 9 discovery and motions deadline, a January 30 parenting plan deadline, and a February 9 settlement conference. Consequently, even if we were to assume that Ms. Brown was or should have been aware of the scheduling order—which did not bear her complete address and was entered on the docket on November 14—it would not have provided her notice that the November 10 hearing could culminate in a custody determination. Further, as in Van Schaik, the circuit court granted Mr. Presentado relief that he did not seek in his complaint, namely sole legal custody of R.B. See also Huntley v. Huntley, 229 Md. App. 484, 493-94 (2016) (“[T]he trial court’s authority to grant relief to a party is circumscribed by the relief requested in that party’s pleadings.”).
Based upon the limited materials and information before us, it appears that Ms. Brown was not given notice that the court could terminate her legal custody of R.B. during the November 10 hearing. Further, because she did not attend the hearing due to the ambiguous location listed in Case Search, Ms. Brown did not “otherwise receive[] adequate notice of [the] issue during the course of [the] proceeding[.]” Van Schaik, 90 Md. App. at 739 (quotation marks and citation omitted). Under the circumstances, the court’s order entered on December 7, 2022, cannot be allowed to stand as an initial determination of R.B.’s custody.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 Ms. Brown’s brief identifies two additional issues. She asserts that Mr. Presentado’s paternity of R.B. has not been established. We see no ruling in the record regarding that issue. She also asserts that she did not receive notice from the circuit court regarding a hearing that was conducted on August 11, 2022, relative to a motion made by a non-parent seeking to intervene in the case. We note that she acknowledges that she was told of the August 11 hearing by the party who petitioned to intervene, and Ms. Brown did participate in that hearing that was conducted via Zoom. We perceive no further request for relief regarding that issue.
2 Mr. Presentado’s counsel filed a preliminary motion for this Court to dismiss the appeal because Ms. Brown had not filed exceptions to the magistrate’s proposed disposition, and appellee contended Ms. Brown had thereby waived any objections. Appellee asserted in the motion: “Since no exceptions were taken, [the appellant] has no right to
take an appeal to the Court of Special Appeals.” This Court denied that motion, explaining:
A party who fails to file timely exceptions to a magistrate’s recommendations waives any claim that the magistrate’s findings are clearly erroneous, but the party may still challenge the circuit court’s “ʻadoption of the [magistrate’s] application of the law to the facts.’” Barrett v. Barrett, 240 Md. App. 581, 587 (2019) (quoting Green v. Green, 188 Md. App. 661, 674 (2009).
3 Chapter 502 § 2 of the Acts of 2004 repealed and recodified former FL § 9-205, without substantive change, as FL § 9.5-205.
4 We take judicial notice of the fact that Case Search, on which Mother claims to have relied, likewise characterized the proceeding as a pendente lite hearing. See Lewis v. State, 229 Md. App. 86, 90 n.1 (2016) (“We take judicial notice of the docket entries . . . found on the Maryland Judiciary CaseSearch website, pursuant to Maryland Rule 5- 201.”), aff’d, 452 Md. 663 (2017)
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s order adopting the magistrate’s recommendations to distribute to the mother and father funds held by the child support enforcement agency, after applying credit for child support payments made by father against an arrearage reflected in the agency’s 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..
The court continued to require the parties to share child-related expenses. The support obligations were expected to terminate on October 8, 2021, the youngest child’s nineteenth birthday.1
Father’s Motion to Eliminate Arrearages Reflected in BCOCSE’s Records
Father had been making direct deposit child support payments to Mother since June 4, 2018. It was not until January 2020 that BCOCSE set up an account and began collecting child support payments through Father’s employer. As a result, BCOCSE calculated an arrearage dating back to June 4, 2018, notwithstanding Father’s direct payments to Mother before the account was established.
In this case, the issue is whether the Circuit Court for Baltimore County erred in adopting the magistrate’s recommendations to distribute to appellant Tina Michelle Gioioso (“Mother”) and appellee Jeffrey William Kohan (“Father”) funds held by the child support enforcement agency, after applying credit for child support payments made by Father against an arrearage reflected in the agency’s record. For the reasons we shall discuss, we affirm the circuit court’s judgment.
BACKGROUND
Mother and Father are divorced and have two children in common. The divorce judgment, entered in 2007, initially set Father’s child support obligation at $3,200 per month for the parties’ then-minor children to be paid by direct deposits (“2007 Order”). It also ordered the parties to share child-related expenses in proportion to their then-current incomes. In 2013, the court modified Father’s child support obligation to $2,300 per month and required the parties to share child-related expenses (“2013 Order”).
2019 ORDER
On June 4, 2018, after the oldest child became emancipated due to age, Father moved to reduce his child support obligation. In October 2019, the court entered an order modifying child support to require that Father pay $1,504 per month for the youngest child, commencing on June 4, 2018, by wage lien through the Baltimore County Office of Child Support Enforcement” (“BCOCSE”) (“2019 Order”).
In November 2020, BCOCSE notified Father that the arrearage would be referred to the State Comptroller for collection. The notice advised that “[BCOCSE’s] records show that your child support arrears are $29,385.72. Your case will be referred to the State Comptroller for collection of past due child support by: State Tax Refund Intercept[,] and Interception of State Vendor Payments or Abandoned Property[.]”
This prompted Father to file a Motion to Eliminate Child Support Arrearages and Credit Overpayment of Child Support (“Motion to Eliminate Arrearages”). He asked the court to recognize his child support payments and eliminate the arrearages fixed by BCOCSE to avoid being subject to enforcement remedies. Mother filed an answer, followed by an amended answer, in which she did not dispute that Father had made direct payments to her. Instead, she disputed the amount of the credit and “payment of reimbursable expenses.”
Beginning on March 16, 2021, BCOCSE suspended the child support account pending the court’s resolution of Father’s motion.
JULY 9, 2021 HEARING
A hearing on Father’s motion was scheduled for July 9, 2021. Mother filed two motions before the scheduled hearing. On June 4, she filed a Motion for Modification of child support (“Motion to Modify”), claiming that a material change in circumstances developed since the entry of the 2019 Order; there was, among other things, an increase in the child’s expenses and an increase in Father’s income. On June 7, Mother filed a Motion to Restore (Reinstate) Child Support (“Motion to Reinstate”), seeking to lift BCOCSE’s suspension of child support payments to her.
At the start of the hearing, the magistrate sought clarification on the scope of the hearing and the disputed issues given the prehearing filings. As for the Motion to Modify, Mother’s counsel confirmed that the motion was not ripe for ruling. Although Father expressed a willingness to resolve it, Mother’s counsel explained that doing so that day would not be feasible because Father’s income, including any bonuses received, was disputed. As for the Motion to Reinstate, the magistrate indicated that a ruling on Father’s motion would likely affect the ruling on the Motion to Reinstate.2
Turning to the merits of Father’s motion, Mother’s counsel confirmed that there was no arrearage in what the BCOCSE’s records should have reflected; she did not dispute that Father had overpaid. Instead, the dispute involved the amount of overpayment, which Mother’s counsel confirmed in the following exchange with the magistrate:
[MOTHER’S COUNSEL]: Okay. That’s correct because there, our calculation is that there’s an $1,800 overpayment, [Father is] claiming a $4,300 overpayment.
[BCOCSE] now says it’s a $3,900 overpayment so—
MAGISTRATE: So everybody agrees there’s an overpayment?
[MOTHER’S COUNSEL]: Yes, that’s correct.
MAGISTRATE: We just can’t agree to the number?
[MOTHER’S COUNSEL]: That’s correct.
To facilitate the resolution of Father’s motion and Mother’s Motion to Modify, the magistrate invited the parties to recess and compare documents with help from Susan Parks, the supervising attorney for BCOCSE, who had been subpoenaed to appear at the hearing. During the hour-long recess, the parties could not resolve Mother’s Motion to Modify nor agree on the overpayment figure. The magistrate went on to hear testimony in support of Father’s motion. Ms. Parks testified, and Mother’s bank statements and other financial documents were admitted into evidence.
MS. PARKS’S TESTIMONY
Ms. Parks testified about child support that Father paid and owed between June 4, 2018, and October 8, 2021, the operative period under the 2019 Order. For the period of June 2018 through July 2021, Ms. Parks counted 38 monthly “charges” for child support totaling $57,152.00 (38 x $1,504).
Since June 2018, Mother received direct deposits from Father totaling $33,483.50 (“Direct Deposits”). Mother also received disbursements managed by BCOCSE totaling $21,171.88 (“Agency Disbursements”).3 Altogether, Mother received $54,655.38 in child support (Direct Deposits of $33,483.50 plus Agency Disbursements of $21,171.88).
During the suspension of the child support account, BCOCSE held two funds that had not been distributed to Mother. The IRS had issued Father a tax refund of $6,376.00
(“Tax Intercept”). Because BCOCSE’s records reflected an arrearage in the account, the IRS intercepted the tax refund, and BCOCSE placed a hold on it. BCOCSE also held earnings withholdings collected from Father’s paychecks in the amount of $5,553.28 (“Withholdings”).4 Altogether, the total funds held by BCOCSE was $11,929.28 (Tax Intercept of $6,376.00 plus Withholdings of $5,553.28).
Ms. Parks then applied these amounts against the amount Father owed for the period of June 2018 through July 2021. Subtracted from the $57,152.00 owed for that period were the Agency Disbursements ($21,171.88) received by Mother. Also subtracted from the amount owed were the two funds held by BCOCSE (Tax Intercept of $6,376.00 and Withholdings of $5,553.28). Finally, BCOCSE subtracted the Direct Deposits of $33,483.50 received by Mother. This resulted in an overpayment of $9,432.66 (“Overpayment”). Assuming the court ordered BCOCSE to disburse the Tax Intercept to Father, then the overpayment was $3,056.66 (Overpayment of $9,432.66 minus Tax Intercept of $6,376.00).
This left Father owing child support for August through October 8, 2021 (2.25 months), totaling $3,396.00. Applying the overpayment of $3,056.66 to the $3,396.00 owed for the remaining 2.25 months left a balance due of $339.34 (“Balance Due”).
In the end, Ms. Parks proposed the following distribution based on the above reconciliation: (1) direct BCOCSE to disburse to Father the Tax Intercept less the Balance Due: $6,036.66 ($6,376.00 – $339.34); (2) direct BCOCSE to disburse to Mother the Withholdings plus the Balance Due: $5,892.62 ($5,553.28 + $339.34); and (3) direct BCOCSE to close its accounts.
Mother’s counsel did not challenge Ms. Parks’s figures and calculations. Rather, her counsel limited Ms. Parks’s cross-examination to whether BCOCSE accounted for unpaid, child-related expenses when calculating the arrearage of child support. Ms. Parks responded in the negative because it would not be up to the agency to collect child-related expenses that a court orders.
PRESENTATION OF MOTHER’S CASE
In her opening statement, Mother, through counsel, said that “for whatever reason,” BCOCSE calculated an arrearage. When BCOCSE had asked Mother about the “status” of support payments, she explained that “there’s $60,000 of expenses that [Father had] never paid, there’s payment that he made that were incorrect amounts dating back many years.” The magistrate asked about the extent of the disputed amount owed, given Mother’s acknowledgment, in her written answer, that there was no child support arrearage: MAGISTRATE: [Y]our answer number nine says that during the conversation [with BCOCSE], Mother stated there was no child support arrearage, but any amount of [overpayment] would be in dispute. And then in paragraph fourteen, she [says] she doesn’t dispute that there were direct payments of child support being made.
[MOTHER’S COUNSEL]: That’s correct.
But, as Mother’s counsel explained, Father had “opened the floodgates” by filing his motion, and Mother wanted to account for “$60,000 of contribution of expenses over the last fifteen years[.]” The magistrate responded that the issue of child-care expenses was not before him. Counsel agreed: “[W]e can handle those two issues separately. This one is going to be a short one and then the one on expenses is probably going to be a more drawn- out endeavor[.]”
After Father rested his case, Mother took the stand and wanted to testify about “expenses” “with regards to what’s been going on in this case the last fifteen years.” The magistrate reminded Mother that “[a]nything prior to [the 2019 Order] is completely irrelevant for this hearing[.]” Mother expressed her understanding, and the magistrate signaled for her to begin testimony about the issue at hand. But before she began, Mother said, “I’m sorry,” to which the magistrate responded, “That’s all right. [W]e’ll take five minutes. You guys go outside and chit chat, all right?”
After the brief recess, the magistrate called counsel to the bench for another attempt to resolve Mother’s Motion to Modify without success. When the magistrate turned to Mother for the resumption of her testimony, counsel said that she would not testify and instead would proceed to closing argument. Counsel explained that the “whole reason” Mother wanted to testify was her concern about her “personal reputation” “in this courtroom and, and I advised her.”
In closing, Mother’s counsel stated that Mother was “at wit’s end” because Father had not “fulfill[ed]” his obligations under “prior Orders.” “[T]here are legitimate bona fide issues . . . that are not fully resolved yet[.] And we’re going to put a bow on it at some point. Today is a small step to getting to that final resolution[.]” In Mother’s view, past reductions of child support in “prior Orders” amounted to a downward “deviation” of over $30,000 “because of the level of expenses that were anticipated” due to the child’s “health concerns over the years.” For that reason, Mother “fe[lt] she’s entitled” to “any child support that [Father] has paid,” and Father had no right to any “credit, offset or remuneration.”
At the end of the hearing, the magistrate remarked that the resolution of Father’s motion “is mathematics in a way” and that “we don’t go back to the beginning of time”; instead, “we go back” to the last operative order.
MAGISTRATE’S FINDINGS AND RECOMMENDATIONS
On July 16, 2021, the magistrate issued findings of fact and recommendations (“Report”). In pertinent part, the Report stated as follows:
FINDINGS OF FACTS
4. Ms. Parks brought her records of payments made by [Father] as well as records of a tax intercept [BCOCSE] received from the IRS.
5. Ms. Parks after a complete review of [Father’s] support obligation to date. Payments received by
[BCOCSE] through [Father’s] earnings withholding, direct payments made from [Father] to [Mother] and the previously referred to IRS intercept determined that [BCOCSE] was holding total support from all sources of $11,929.28.
6. That based on Ms. Parks’[s] calculation[s] which were not refuted or challenged by either party, Ms. Parks[’s] testimony was that [Mother] should receive the sum of $5,892.62, and [Father] shall receive the sum of $6,036.66.
7. Ms. Parks testified that upon her review of the records that there are no arrears and that [BCOCSE] case should be closed.
RECOMMENDATIONS
1. That based upon the evidence presented which was uncontroverted the court recommends that [BCOCSE] shall cause to be released to [Mother] the sum of $5,892.62.
2. That [BCOCSE] shall cause to be released the sum of $6,036.66 to [Father].
3. That [BCOCSE] records shall reflect that [Father] does not owe any arrears for support in this matter.
4. That [BCOCSE] shall close its file in the above captioned matter and cease all collection activitie[s].
5. That any present earnings withholding orders in place shall be terminated.
MOTHER’S EXCEPTIONS AND CIRCUIT COURT RULINGS
In August 2021, Mother filed exceptions to the magistrate’s Report, followed by amended exceptions. The exceptions fell into three main categories. First, Mother claimed that Father sought and received credit for overpayments made before the 2019 Order took effect, which amounted to an impermissible recoupment of support payments. Second, Mother disputed the distributed amounts largely because Father failed to reimburse Mother for child-related expenses exceeding $50,000 due under the 2007, 2013, and 2019 Orders.
Third, the magistrate should have considered the child’s best interests when he purportedly left the child without support for months before her 19th birthday.
At the exceptions hearing on October 22, 2021, Mother’s counsel distilled the “essence” of the exceptions to the magistrate’s failure to address the child’s best interest when he effectively recommended a “recoup[ment]” of Father’s child support payments. No hearing had been scheduled on Mother’s pending Motion to Modify, which resulted in “a catch twenty-two” of “piecemeal[ing] this up to [the circuit court].” In the end, Mother sought “a resolution of all of the outstanding issues” to include an assessment of the child’s best interest in resolving the purported recoupment, the resolution of Mother’s Motion to Modify,
and a determination of child-related expenses that Father allegedly owed.
Father’s counsel responded that he had not sought to recoup paid child support; he sought recognition of his child support payments made under the 2019 Order. He underscored that the parties agreed there was no arrearage. Thus, the limited issue was whether there had been an overpayment and, if so, what to do with it.
On November 8, 2021, the circuit court denied the exceptions and affirmed the magistrate’s Report. On November 29, 2021, the court separately ordered the release of funds held by BCOCSE in amounts recommended by the magistrate, the elimination of Father’s arrearages reflected in the BCOCSE records, and the closure of the child support account.
Mother noted her first appeal. Without addressing the merits, this Court vacated both orders because the court did not demonstrate that it had exercised its independent judgment in overruling the exceptions as required under Domingues v. Johnson, 323 Md. 486 (1991) and Kirchner v. Caughey, 326 Md. 567 (1992). See Kohan v. Kohan, No. 1582, Sept. Term, 2021 (filed Sept. 13, 2022).
On remand, the court issued a supplemental ruling, adopting the magistrate’s Report and reinstating its November 29 order (“Supplemental Ruling”). The court explained, in pertinent part:
This [c]ourt finds that the only issue that was before [the] Magistrate [] concerned the overpayment of child support as an accounting issue. The Magistrate had the opportunity to hear testimony from [Ms. Parks of BCOCSE] to come to his finding that it held $11,929.28 in an account for this case. No monies had been distributed to either party. The Magistrate further found and recommended that from these held funds, that Mother would receive $5,892.62, and Defendant Father would receive $6,036.66. This [c]ourt was not persuaded by Mother’s position that there were additional expenses to be determined approximating $30,000. Father argued that Mother provided no documentation to support such alleged expenses even after requests to do so by Father. [] Further, this [c]ourt was not persuaded that there needed to be a best interest of the child review before [the] Magistrate [] in that a modification of child support had already been determined [by a judge in connection with the 2019 Order], who most likely would have made such a best interest determination. As stated, the matter before the Magistrate [] was an auditing and accounting one. The [c] ourt further rejects [Mother’s] argument that this case should have been combined with the other motion for modification of child support filed by Mother on June 4, 2021.
Mother timely noted this appeal.
ISSUES PRESENTED
The “questions presented” section of Mother’s pro se informal brief does not present actual questions. Instead,
Mother lists nine numbered headings with accompanying facts and arguments that contain overlapping points:
Issue 1. Due Process
Issue 2. Scope of July 9, 2021 Magistrate Hearing Issue 3: Recoupment of Overpayment
Issue 4: Best Interests of the Child Standard
Issue 5: The Court failed to consider the financial circumstances of the parties. Issue 6: Termination of Child Support
Issue 7: Calculation of Child Support
Issue 8: Procedural and Technical Issues
Issue 9: Role of the Baltimore County Office of Child Support Enforcement
According to Mother’s reply brief, the “central issue” is “whether the trial court abused its discretion/or [committed] an error of law by accepting the recommendation of [BCOCSE].”
STANDARD OF REVIEW
“When reviewing a [magistrate]’s report, both a trial court and an appellate court defer to the [magistrates]’s first-level findings (regarding credibility and the like) unless they are clearly erroneous.” McAllister v. McAllister , 218 Md. App. 386, 407 (2014). “On the other hand, the reviewing courts give less deference to ‘conclusory or dispositional’ findings[.]” Id. (citation omitted). “Finally, while the circuit court may be ‘guided’ by the [magistrate]’s recommendation, the court must make its own independent decision as to the ultimate disposition, which the appellate court reviews for abuse of discretion.” Id . (citations omitted).
PRINCIPLES OF APPELLATE REVIEW
Before addressing each issue, we note that various points in Mother’s briefing are not adequately argued or preserved for our review. We begin by summarizing the principles relating to briefing and preservation that impact our resolution of specific points raised on appeal.
BRIEFING
Mother filed an “Informal Brief” under this Court’s December 19, 2022, Administrative Order permitting informal briefing in family law cases where the appellant is a self-represented litigant. See Md. Rule 8-502(a)(9); Appellate Court Administrative Order (Dec. 19, 2022). Although Rule 8-502(a)(9) dispenses with the technical requirements of a formal brief under Rule 8-504, the informal brief still “must identify issues that explain why the trial court erred or made a mistake in deciding the case and why the decision should be reversed or modified. The issues presented in the informal brief should be stated concisely with a description of the facts surrounding the issue and an argument supporting the resolution of the issue.” Guidelines for Informal Briefs (b)(2) (emphasis added).5
As this Court has consistently held, “[w]e cannot be expected to delve through the record to unearth factual support favorable to [an] appellant.” Van Meter v. State,
30 Md. App. 406, 408 (1976) . Nor is it our “responsibility to attempt to fashion coherent legal theories to support [an] appellant’s sweeping claims.” Elecs. Store v. Cellco P’ship, 127 Md. App. 385, 405 (1999). “[W]here a party initially raised an issue but then failed to provide supporting argument, this Court has declined to consider the merits of the question[.]” See Fed. Land Bank of Baltimore, Inc. v. Esham, 43 Md. App. 446, 457–58 (1979).
PRESERVATION
Under Maryland Rule 8-131(a), we will ordinarily not decide an issue unless it plainly appears by the record to have been raised in or decided by the trial court. The purpose of this rule is to “require counsel to bring the position of his client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.” Chimes v. Michael, 131 Md. App. 271, 288 (2000). “The rule is effectively a form of estoppel—it curbs appeals that are inconsistent with the parties’ positions at trial.” Id.; accord Halloran v. Montgomery Cnty. Dep’t of Pub. Works, 185 Md. App. 171, 202 (2009) (“[U]nless a [party] makes timely objections in the lower court or makes his feelings known to that court, he will be considered to have waived them and he can not now raise such objections on appeal.”); see, e.g., Chimes, 131 Md. App. at 288 (appellant “cannot argue now that the child support guidelines apply, because he did not preserve that issue.”); In the Matter of Tyrek S., 118 Md. App. 270, 277 (1997) (issue of appellant’s inability to pay restitution was not preserved for review because it was not raised in appellant’s exceptions to magistrate’s recommendation). If the argument is not preserved, we need not address it. See, e.g., In re K.L., 252 Md. App. 148, 188 n.36 (2021) (where party failed to argue the application of specific standard before magistrate and juvenile court, such argument was not preserved and would ordinarily not be addressed).
With these principles in mind, we address each issue to the extent it is adequately briefed and preserved.
DISCUSSION
ISSUE 1: “DUE PROCESS”
Due process “requires that a party to a proceeding is entitled to both notice and an opportunity to be heard on the issues to be decided in a case.” Blue Cross of Md., Inc. v. Franklin Square Hosp., 277 Md. 93, 101 (1976). Mother contends that the magistrate and the circuit court “discarded and discouraged [her] testimony and arguments during the course of the hearings, ignored relevant case law by determining the matter was simply a mathematical calculation.” She claims that the magistrate took recesses during the hearing and made “attempts at resolution” that interrupted her counsel’s opening statement and presentation of testimony. In her reply brief, Mother adds that she should have been permitted to present evidence and argue about the “miscalculated child support and unpaid expenses.” She would have shown that “unreimbursed expenses are
child support,” and Father had miscalculated his support payments.
Mother’s contention that the magistrate and the circuit court violated her due process rights is not preserved for our review. Mother never objected to the way the magistrate and the court conducted their hearings. See Baltimore Cotton Duck, LLC v. Ins. Comm’r of the State of Md., No. 951, Sept. Term 2022, slip op. at 24–25 (filed Oct. 25, 2023) (“[p]reserving review of ‘the conduct and actions of a trial judge during the course of a proceeding in which it is alleged that such conduct is detrimental to a party’s case’ requires that ‘the party raises the issue during the trial[.]’”) (quoting Braxton v. Faber, 91 Md. App. 391, 409 (1992)). Nor did she raise a due process challenge in her exceptions to the magistrate’s Report. Accordingly, we decline to address the contention. Even if preserved, we do not detect a violation of due process. The court did not prevent Mother from presenting evidence pertinent to Father’s motion; instead, she elected not to testify, apparently upon the advice of counsel. Nor did the magistrate and court discourage her from making arguments. As to her assertion that she could not present evidence of unpaid child-care expenses, Mother, through counsel, acknowledged below that her claim for reimbursement of these expenses was not before the magistrate.
Separately, Mother complains that the court, in the Supplemental Ruling, disregarded her concerns about “a lack of notice and [s]ua [s]ponte suspension of child support; what ultimately became a termination of child support as of July 9, 2021, and [Father’s] recoupment of child support paid prior to the [2019 Order] without proper analysis.” We cannot discern how this relates to a due process challenge; the point is not adequately briefed. The subpoints appear to overlap with other issues that we will address later.
ISSUE 2: “SCOPE OF JULY 9, 2021 MAGISTRATE HEARING”
Mother recounts the underlying proceedings as follows. Three motions were pending at the time of the “magistrate hearing”: Father’s Motion to Eliminate Arrearages, Mother’s Motion to Modify, and her Motion to Reinstate. She believed that the hearing was limited to the “return of the intercepted tax refund” and “the abatement of the arrearage amount,” neither of which she disputed. She excepted to “the [s]ua [s]ponte suspension of child support by BCOCSE at [Father’s] urging and without notice, as well as [his] attempt to obtain a recoupment of child support.” She claims that the circuit court concluded “without much explanation, that the only issues before it were arrearage and overpayment.
The court failed to consider well established case law on what [was] effectively a recoupment and termination of child support. [Her] arguments regarding recoupment and a proper best interests’ analysis [were] ignored.”
Mother does not tie the “scope” of either hearing to any error, nor does she explain why the court erred or made a mistake; the point is not adequately briefed. Instead, she appears to take issue with the court’s failure to treat
Father’s motion as a request for recoupment and to consider the child’s best interests. These points overlap with other issues that we address next.
ISSUE 3: “RECOUPMENT OF OVERPAYMENT”
Mother contends that Father sought recoupment, in the form of a credit, of payments he made between June 4, 2018, and the entry of the 2019 Order. She argues that “[a] ny potential credit [Father] may allege as an overpayment of child support was created by the [the 2019 Order] and simply backdating the child support to June 4, 2018, does not guarantee [Father] a credit of payments made that were used for the benefit of the [child.]” “Under well-established case law, [Father] is not entitled to [credit] as a matter of right, for child support he voluntarily paid prior to the [entry of the 2019 Order.]” She explains that recoupment was not in the child’s best interests, payments had already been used for the child’s benefit, and Mother could not repay the overpaid sum.
For support, Mother cites Rand v. Rand, 40 Md. App. 550 (1978) and its progeny cases. In Rand, we held that when a child support award is reversed or modified downward on appeal, the paying party has no absolute entitlement to recoup the overpayments. Id. at 555; see Petitto v. Petitto, 147 Md. App. 280, 311 (2002); Krikstan v. Krikstan, 90 Md. App. 462, 473 (1992); Barr v. Barr, 58 Md. App. 569, 588 (1984). “Only if the paying party shows that the overpayments have not been used to support the child, and the recipient parent has the overpaid sum available to repay, so that, during the recoupment period, the child will not be receiving less support than has been ordered, may the court exercise its discretion to grant a recoupment award.”
Corapcioglu v. Roosevelt, 170 Md. App. 572, 612–13 (2006). The rationale is that recoupment could deprive the child of benefits already received. Petitto, 147 Md. App. at 311; see Krikstan, 90 Md. App. at 473 (“a parent who ‘overpays’ [child support] possess no right to recoupment because that would presumably deprive the child of benefits already received.”).
The principles enunciated in Rand and other cases do not apply to the situation at hand. Father neither sought nor received reimbursement for child support payments that Mother had already received. See, e.g., Cole v. Cole, 44 Md. App. 435, 450 n.8 (1979) (noting that principles articulated in Rand did not apply because there was no claim for recoupment or restitution of money already paid, among other reasons). Instead, Father wanted BCOCSE to recognize payments he had made under the 2019 Order and apply them against the arrearages reflected in its records. That is what the magistrate recommended, and the court did; there was no recoupment.6
ISSUE 4: “BEST INTERESTS OF THE CHILD STANDARD”
Mother contends that the circuit court disregarded the child’s best interest in resolving Father’s motion where the child has been struggling with “health and educational pursuits” resulting in extraordinary expenses. Specifically,
she argues that it would not be in the child’s best interest to allow Father to “recoup child support or terminate child support earlier than her 19th birthday.”
Mother’s legal argument does not persuade us because it assumes incorrectly that Father sought and received recoupment of child support payments and an early termination of his support obligation. See discussion of Issues 3 and 6. We agree with the court that the issue before the magistrate was an “auditing and accounting one.” The court did not err in concluding that the best-interest analysis was unnecessary to resolve Father’s motion.
ISSUE 5: “THE [C]OURT FAILED TO CONSIDER THE FINANCIAL CIRCUMSTANCES OF THE PARTIES.”
ISSUE 6: “TERMINATION OF CHILD SUPPORT”
Mother claims the circuit court erred when it terminated child support as of July 9, 2021. In terminating child support prematurely, she contends that the court should have considered the parties’ financial circumstances and the effect of such termination. She cites Frankel v. Frankel, 165 Md. App. 553, 587 (2005) and Maryland Code, Family Law Article (“FL”) § 12-204(d) for the proposition that when a court determines a child support award, it must balance the best interest of the child against the financial ability of the parents.
We disagree with Mother’s assertion that the court terminated child support as of July 9, 2021. In her calculation, Ms. Parks accounted for the month of July; she also accounted for August, September, and part of October 2021 and determined that Father owed child support in the amount of $3,396 for those 2.25 months. The overpayment of $3,056.66 was applied to the $3,396 owed for those 2.25 months, resulting in the Balance Due of $339.34. The Balance Due was to be disbursed to Mother together with the Withholdings of $5,553.28. Thus, at the closure of the BCOCSE account, child support for the period between July through the child’s 19th birthday was accounted for.
As for consideration of the parties’ financial circumstances, the point was not raised below and is not preserved. In any event, the argument assumes incorrectly that the court terminated child support prematurely. And the legal authorities Mother cites examine the court’s considerations in establishing child support, which did not occur here. See Frankel, 165 Md. App. at 587 (“Factors which should be considered when setting child support include the financial circumstances of the parties[.]”) (citations omitted and emphasis added); FL § 12-204(d) (“the court may use its discretion in setting the amount of child support.”) (emphasis added).
ISSUE 7: “CALCULATION OF CHILD SUPPORT”
Mother claims the “credit” given to Father exceeds Ms. Parks’s calculated amount.
She explains:
A total of 34 payments were made between March 16, 2021 [when the BCOCSE account was suspended] and the final payment collected once the child reached 19. Each payment was $347.08 for a total of $11,800.72. This
is [sic] excludes the amount collected by way of tax intercept. [Mother] received $5892.62 [of] the $11,800.72 leaving a balance of $5908.10 returned to [Father] for support collected between the July hearing and her emancipation. This amount exceeds the overpayment testified to by Ms. [P]arks from the BCOCSE by at least $2008.10.
Mother did not raise this challenge below. Because the point is not preserved, we decline to address it. Even if preserved, the court did not err in affirming the magistrate’s findings on the amounts to be distributed to the parties. Ms. Parks detailed her calculation of Father’s overpayment, accounting for all child support payments made, disbursed, held, and owed between June 2018 and October 2021. In contrast, Mother appears to base her calculations on segmented periods and certain assumptions or assertions not supported by the record. Because the magistrate’s fact-finding was supported by credible evidence, the court’s deference to those findings was not clearly erroneous. See Marquis v. Marquis, 175 Md. App. 734, 754 (2007) (explaining that the trial court should defer to the magistrate’s fact-finding where it is supported by credible evidence and is thus not clearly erroneous).
Mother also points out that the court did not explain the mathematical calculations used to determine the amounts to be distributed to each party. This overlaps with Issue 8, which we will address next.
ISSUE 8: “PROCEDURAL AND TECHNICAL ISSUES”
Mother asserts that the Supplemental Ruling does not comply with the standard in Domingues or Kirchner because the circuit court failed to explain how it arrived at the amounts credited to each party and how its determination was in the child’s best interests.
The standard in Domingues and Kirchner does not require the court to “give a litany of its reasons for accepting and adopting the fact finding, conclusions, and recommendations of a [magistrate].” Kierein v. Kierein, 115 Md. App. 448, 455–56 (1997).
Instead, it provides that the court must exercise “independent judgment concerning the proper conclusion to be reached upon th[e] facts.” Domingues, 323 Md. at 490; see also Kierein, 115 Md. App. at 455–56 (the court’s opinion must “reflect consideration of the relevant issues and the reasoning supporting the chancellor’s independent decisions on those issues”).
In the Supplemental Ruling, the court stated that it resolved the factual challenges presented. It found that the only issue before the magistrate was “an accounting issue” and implicitly rejected Mother’s recoupment argument. It affirmed the magistrate’s finding that BCOCSE had held $11,929.28 based on Ms. Parks’s testimony. It also affirmed the magistrate’s finding and recommendation that “Mother would receive $5,892.62,” and “Father would receive $6,036.66” based on Ms. Parks’s calculations recounted above. The court rejected Mother’s contention that “there needed to be a best interest of the child review” because the issue “was an auditing and accounting one.” We are satisfied that the Supplemental Ruling “reflect[s] consideration of the relevant issues and the reasoning supporting the [court’s] independent decisions on those issues.” Kirchner, 326 Md. at 573.
ISSUE 9: “ROLE OF THE [BCOCSE]”
Finally, Mother claims that Ms. Parks “offered what she fe[lt] [wa]s a good resolution without concern for case law and assum[ed] the credit of child support is a routine function not subject to any analysis.” Mother argues that the magistrate and the court deferred to Ms. Parks’s testimony and “ignore[d] the legal effect of their rulings.” “While this may be a mathematical calculation at BCOCSE, the purpose of coming before the [c]ourt is so that the law can be applied in a fair and reasonable way that does not infringe upon the right of the child.” Because child support is for the child, the court “must exercise [its] independent judgment and not defer to a government agency unfamiliar with the intricacies of the law.”
The issue of deference to Ms. Parks’s testimony was not raised in Mother’s exceptions and is not preserved. Even if preserved, the argument lacks merit. Ms. Parks was a fact witness whose role was to testify about the child support that was collected, disbursed, held, and owed. She recommended the distribution of funds held with the BCOCSE based on objective calculations. Once her testimony was admitted, the magistrate could give it the weight it deserved and make findings accordingly. See Starke v. Starke, 134 Md. App. 663, 676 (2000) (explaining that assessing how much weight to give evidence is within the exclusive control of the fact-finder). The court exercised its independent judgment in accepting and adopting the magistrate’s fact-finding, conclusions, and recommendations. For the reasons stated, the court did not err in affirming the magistrate’s recommendations.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The 2019 Order provides that Father’s child support obligation would terminate when the youngest child “reaches the age of 18; however, if she has not yet graduated from high school, until graduation or age 19, whichever is the first to occur.” The youngest child was expected to graduate after she turned nineteen.
2 On August 19, 2021, the circuit court dismissed Mother’s Motion to Reinstate with prejudice.
3 This amount was based on 61 payments at a rate of $347.08 per week.
4 This amount was based on 16 payments at $347.08 per week.
5 The Administrative Order and the Guidelines for Informal Briefs can be found on the Appellate Court’s website.
6 In any event, we do not see how the policy concerns that disallow recoupment would prevent the court from applying credit for Father’s payments against the arrearages fixed by BCOCSE under the circumstances. In Rand, this Court adopted the view expressed by New York courts that a party making child support payments under a court order has no right to restitution following a reversal or modification of the award on appeal. 40 Md. App. at 553. Notably, New York courts also have expressed that entitlement to credits for overpayment of child support may be permissible under limited circumstances. See, e.g., In re Taddonio v Wasserman-Taddonio, 858 N.Y.S.2d 721, 722–23 (App. Div. 2008) (father was entitled to a credit for overpayments of child support made directly to mother against “arrears” fixed by support collection agency).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Caroline County Circuit Court’s order finding the father in civil contempt. Father had not violated a prior court order and was not violating any court orders when the court held him in contempt, the contempt order contained an invalid “forever purge,” and the order imposed an improper penalty for past conduct by awarding additional parenting time to mother and requiring father to pay mother’s attorneys’ fees.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
Based on that agreement, Mother’s counsel prepared a proposed judgment of absolute divorce and sent it to Father’s counsel. Because the proposed judgment embodied the parties’ agreement, it required Father’s signature. Father refused to sign the proposed judgment. He admitted that he was trying to renegotiate the agreement.
On July 5, 2022, Father and Mother met to perform part of their obligations under the agreement—Mother signed and delivered the deed to the marital home, and Father gave Mother a check for $100,000.00. However, after Mother left to deposit the check, Father placed a stop-payment order, causing the check to be dishonored.
Father did not comply with other terms of the parties’ agreement. He denied Mother access to the children on the agreed schedule and prevented other forms of contact between Mother and the children. Two of the children experienced physical injuries that required medical care, but despite the agreement that Mother would have tiebreaking authority in medical matters for the children, Father made the medical decisions unilaterally.
This case stems from a contempt hearing in a family law proceeding. The circuit court found the father to be in civil contempt and ordered him to “purge” his contempt by complying with its prior orders and by giving the mother additional parenting time. The circuit court also ordered the father to pay the mother’s attorneys’ fees as a “sanction.” For the reasons that follow, we shall reverse the order of the circuit court.
BACKGROUND
Gary Stoltz (“Father”) and Tina Stoltz (“Mother”) were married in 2008. They have three teenaged children.
Mother filed for divorce in 2020. On the second day of a hearing on the merits on May 6, 2022, Father and Mother placed a settlement agreement on the record.
Among other things, the parties agreed that they would have joint legal custody of the children, but that Mother would have tiebreaking authority on medical issues and that Father would have tiebreaking authority on issues of education and “general welfare.” They also agreed that Father would pay Mother $100,000.00 “within 60 days of this agreement” and that he would incur specified penalties if the payment were not made. They agreed that Mother would sign a special warranty deed for the marital home. Finally, they agreed to a physical custody schedule for the children. Mother’s attorney was to prepare a judgment of absolute divorce that embodied the agreement.
After waiting for several months for Father to approve the proposed judgment of absolute divorce, Mother’s counsel submitted the document to the court on October 24, 2022. The court held off on signing the proposed judgment.
In the meantime, on December 7, 2022, Mother filed a combined petition for contempt, a motion to enforce the settlement agreement, and a motion for attorneys’ fees. Mother argued that Father had failed to comply with unspecified “directives” from the court and with the parties’ agreement. Because the agreement was “placed on the record and accept[ed]” by the circuit court, Mother argued that the agreement stood as a valid order. As Father had not followed the agreement, Mother argued that he should be held in contempt on four bases: first, for his refusal to sign the proposed judgment; second, for his refusal to comply with the custody plan outlined in the parties’ agreement and his interference with Mother’s parenting time; third, for his failure to involve Mother in medical decisions concerning the children; and fourth, for stopping payment on the $100,000.00 check. Mother asked the court to hold Father in constructive civil contempt.
After a status hearing on December 21, 2022, the court signed the judgment of absolute divorce. On the following day, the clerk entered the judgment on the docket.
The judgment reflected the agreement that the parties had placed on the record seven months earlier. Among other things, therefore, the judgment required Father to pay a marital award of $100,000.00 to Mother within 60 days of the agreement, i.e.,
by July 5, 2022. Father tendered a new check for $100,000.00 to Mother on the same day that the court signed the order.
On December 28, 2022, the circuit court issued an order requiring Father to show cause why Mother’s petition for contempt should not be granted. Father answered the petition. The court held a hearing on the petition for contempt on March 14, 2023.
At the conclusion of the hearing, the court found that Father had no “valid excuse” for his refusal to sign the proposed agreement and that Father had “willful[ly] and contemptuous[ly]” “subverted” an “order” “to submit a written order.” It also found that Father was “contemptuous and willful” in issuing the $100,000.00 check and then stopping payment on it. The court did not find Father in contempt for denying Mother tiebreaking authority on medical decisions affecting the children, but did find him in contempt for denying Mother parenting time. The court stated that it would “award an additional three weeks in the Summer to [Mother].” It also stated it would award attorneys’ fees. It did not elaborate on the basis for the award of fees.
The circuit court entered an order granting Mother’s petition on April 14, 2023. In the order, the court found Father in contempt of “prior Orders,” the identity of which it did not specify. The court stated that Father could “purge” his contempt by “complying with [the court’s] prior Orders” and by providing Mother with “[three] additional weeks of parenting time during the Summer of 2023.” In addition, the court imposed what it called a “sanction[]” in the amount of $12,000.00, representing Mother’s reasonable and necessary attorneys’ fees. The court required Father to pay the $12,000.00 to Mother within ten days of the order.
Father noted this timely appeal on May 9, 2023.1
QUESTIONS PRESENTED
On appeal, Father presents three issues:
I. Did the trial court err in punishing past noncompliance in its finding of constructive civil contempt?
II. Were the trial court’s findings of contempt related to a non-existent order clearly erroneous?
III. Did the trial court err in setting a “forever purge”? For the reasons stated below, we shall reverse the judgment.
DISCUSSION
“‘[T]his Court will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.’” Breona C. v. Rodney D., 253 Md. App. 67, 73 (2021) (quoting Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016)). “A trial court abuses its discretion when its decision encompasses an error of law, which this Court reviews without deference[.]” Id. (citations omitted).
Mother asked the court to hold Father in constructive civil contempt. “Constructive, as opposed to direct, contempt is contempt that occurs outside of ‘the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.’” Breona C. v. Rodney D., 253 Md. App. at 73 (quoting Md. Rule 15-202) (footnote omitted). “Civil, as opposed to criminal, contempt proceedings are those that are ‘intended to preserve and enforce the right of private parties to a suit and to compel obedience to orders and decrees primarily made to ben-
efit such parties.’” Id. (quoting Cnty. Comm’rs of Carroll Cnty. v. Forty West Builders, Inc., 178 Md. App. 328, 393 (2008)) (further citation omitted). “‘[T]he purpose of civil contempt is to coerce present or future compliance with a court order, whereas imposing a sanction for past misconduct is the function of criminal contempt.’” Id. at 73-74 (quoting Dodson v. Dodson, 380 Md. 438, 448 (2004)).2
“The coercive mechanism of an order of constructive civil contempt is the imposition of a sanction that the contemnor is able to avoid by taking some definite, specified action of which the contemnor is reasonably capable.” Id. at 74. A sanction may involve incarceration or the imposition of a fine for each day in which the contemnor fails to “purge” the contempt by coming into compliance with the court order. See id. at 75. When a court makes a finding of civil contempt, the Maryland Rules require it to “issue a written order” that both “specifies the sanction imposed for the contempt” and “specif[ies] how the contempt may be purged.” Md. Rule 15-207(d)(2).
“[T]o serve the coercive purpose of civil contempt, the sanction must be distinct from the purge provision and the valid legal requirement the court seeks to enforce.” Breona C. v. Rodney D., 253 Md. App. at 74. “If the sanction imposed is a requirement to take the very action the court says will purge the contempt, then undertaking the purge action necessarily completes, rather than avoids, the sanction.” Id. “And if the sanction imposed is to act in accord with the same legal requirement with which the court seeks to coerce compliance, there is no coercive mechanism at all.” Id. “Instead, there is just a second order directing compliance with an existing order.” Id. at 74-75.
“In sum, an order holding a person in constructive civil contempt is not valid unless it: (1) imposes a sanction; (2) includes a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, specific action of which the contemnor is reasonably capable; and (3) is designed to coerce the contemnor’s future compliance with a valid legal requirement rather than to punish the contemnor for past, completed conduct.” Id. at 74.3
In view of these principles, we see at least five, interrelated problems with the order by which the circuit court found Father in constructive civil contempt. First, although Father violated the agreement that the parties put on the record on May 6, 2022, he did not violate a court order and, thus, was never in contempt of court. Second, because Father was not violating any court orders when the court held him in contempt, the contempt order imposed a penalty for his past conduct, which is the function of criminal, rather than civil, contempt. See Breona C. v. Rodney D., 253 Md. App. at 73- 74. Third, insofar as the order stated that Father could “purge” his contempt by “complying with [the court’s] prior Orders,” it is an invalid “forever purge” (id. at 7273), because Father could never fully purge his contempt as long as the “prior Orders” remained in effect. Id. at 74. Fourth, insofar as the order permitted Father to “purge” his contempt by giving Mother three additional weeks of parenting time, it imposed a penalty, not a means by which Father could “avoid [a] sanction by taking a definite, specific action of which [he] is reasonably capable.” Id. Fifth, insofar as the order imposed a “sanction” in the amount of Mother’s attorneys’ fees, it is invalid because it does not prescribe any way by which Father could avoid the
“sanction.” Instead, the “sanction” of attorneys’ fees was another penalty for past conduct, not a coercive measure that Father could avoid by bringing himself into compliance with a court order.
We shall discuss each of these problems in turn.
First, until the court signed the proposed judgment of absolute divorce on December 21, 2022, there was no court order requiring Father to do anything. There was only an oral agreement on the record, which Mother’s counsel was to transform into a written order.4 In fact, in her brief, Mother herself recognizes that Father violated an agreement, not a court order. She writes that Father “continued to violate and ignore almost every term of the parties’ agreement.” Similarly, she writes that Father “completely disregarded the decision-making authority terms agreed to by the parties.” The breach of an agreement is not the same thing as the violation of a court order.5
Second, the court held Father in contempt for refusing to sign the proposed judgment of absolute divorce, stopping payment on the $100,000.00 check, and denying Mother access to the children. Yet, by the time of the contempt hearing, the court had entered the judgment of absolute divorce (making it irrelevant that Father had refused to sign Mother’s proposed version of that document). Furthermore, Father had paid the $100,000.00 on the very day on which the court signed the judgment (almost three months before the contempt hearing), and he was allowing Mother to have access to the children in accordance with the judgment. At oral argument before this Court, Mother conceded that, on the day of the contempt hearing, Father was in compliance with the divorce decree. Thus, the circuit court found that Father was in contempt based solely on past, completed conduct. Its order is invalid because “‘the purpose of civil contempt is to coerce present or future compliance with a court order,’” and not to “impos[e] a sanction for past misconduct.’” Breona C. v. Rodney D., 253 Md. App. at 73-74 (quoting Dodson v. Dodson, 380 Md. at 448).6
Third, the order permitted Father to “purge” his alleged contempt by “complying with [the court’s] prior Orders.” This is precisely the kind of ongoing “forever purge” that Breona C. condemned. As long as the “prior Orders” remained in effect, Father could never purge his contempt. “Here,” as in Breona C., “the perpetual obligation to comply with the [prior Orders] is not a valid purge provision because it does not permit [Father] to avoid a defined sanction by engaging in specific conduct.” Id. at 75. The court erred in decreeing that Father could “purge” his contempt by doing what the court had already required him to do. Breona C. v. Rodney D., 253 Md. App. at 74-75.
Fourth, the order states that Father can “purge” his contempt by giving Mother three additional weeks of parenting time during the summer of 2023. This is a penalty for past, completed conduct, not a valid purge provision. If Father had been in contempt—which he was not—he would purge his contempt by bringing himself into compliance with an existing court order, not by complying with an additional obligation, such as an order
requiring him to forfeit parenting time. See State v. Crawford, 239 Md. App. 84, 125 (2018). The award of additional parenting time could not have the effect of coercing compliance with an existing order, because Father was in full compliance with the court’s order when the court held him in constructive civil contempt. Thus, the award had the effect of punishing Father for his past conduct, which, again, is the function of criminal contempt. Dodson v. Dodson, 380 Md. at 448.7
Fifth and finally, the court imposed a “sanction[]” in the amount of $12,000.00, representing the fees that Mother had incurred in pursuing the contempt petition. This was not an appropriate “sanction” for civil contempt. An appropriate sanction is something that the contemnor “is able to avoid by taking some definite, specified action of which the contemnor is reasonably capable.” Breona C. v. Rodney D., 253 Md. App. at 74. Under the court’s order, however, Father has no way to avoid the obligation to pay the $12,000.00: to the contrary, the order expressly requires him to pay it within 10 days. Moreover, in her brief, Mother reports that on July 11, 2023, she petitioned the circuit court to hold Father in contempt because of his “failure to pay the attorneys’ fees as ordered.” Mother herself, therefore, did not understand the award of attorneys’ fees to be a “sanction” for civil contempt, which Father could avoid by purging his contempt and bringing himself into compliance with a court order.8
Mother contends that the court could have awarded fees under § 9-105 of the Family Law Article or under the parties’ agreement.9 In addition, Mother cites Royal Investment Group, LLC v. Wang, 183 Md. App. 406 (2008), for the proposition that in “exceptional circumstances” a court may make a monetary award, such as the award of fees in this case, in a civil contempt case. The short answer to those contentions is that, in the order on appeal in this case, the court did not base the award of fees on any of those grounds. Instead, it purported to award the fees as a “sanction” for Father’s constructive civil contempt of court. In doing so, the court erred.
In summary, the court erred in holding Father in constructive civil contempt, because he had not violated a court order, because he was not violating any court orders when the court held him in contempt, because the contempt order contained an invalid “forever purge,” and because the order imposed an improper penalty for past conduct by awarding additional parenting time to Mother and requiring Father to pay Mother’s attorneys’ fees.10
CONCLUSION
We do not condone Father’s conduct. We understand why Mother sought, and why the circuit court sought to devise, a remedy to address his conduct. Father’s conduct, however, was not a basis for an award of constructive civil contempt. We express no opinion about whether the circuit court could have imposed a similar remedy through a mechanism other than constructive civil contempt.
JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
FOOTNOTES
1 Father asserts that at a hearing on September 7, 2023, while this appeal was pending, the court said that its contempt order contained what it called a “scrivener’s error.”
According to Father, the court said that the award of attorneys’ fees was intended as a “purge” provision, and not as a “sanction” (as the order says). In the appendix to Mother’s brief, she has included an order, docketed on October 13, 2023, by which the court corrected its “scrivener’s error” and recharacterized the award of fees as an award under § 9-105 of the Family Law Article of the Maryland Code (1984, 2019 Repl. Vol.). But see In re Emileigh F., 355 Md. 198, 20203 (1999) (stating that “[p]ost-appeal orders which affect the subject matter of the appeal are prohibited”). At oral argument, Father stated that he has taken another appeal to address the court’s revision of the contempt order during the pendency of his appeal from that order.
2 A proceeding for constructive criminal contempt “must be accompanied by a bevy of procedural protections that are not applicable to a proceeding for civil contempt” (Breona C. v. Rodney D., 253 Md. App. at 76 n.5)—most notably, the right to a trial by jury. See Md. Rule 15-205(f). Unlike a proceeding for constructive civil contempt, a proceeding for constructive criminal contempt may not be included in the action in which the alleged contempt occurred, but must be docketed as a separate criminal action. Md. Rule 15-205(a). And if a judge initiates the proceeding for constructive criminal contempt and reasonably expects to be called as a witness, the judge is generally disqualified from sitting at the hearing. Md. Rule 15-207(b).
3 Breona C. did “not foreclose the possibility that an order of constructive civil contempt could be issued” when “a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing.” Id. at 76 n.6.
4 The record contains no transcript of the May 6, 2022, hearing at which the parties placed the agreement on the record. The docket, however, records the contents of a “hearing sheet” that recites the terms of the agreement and states that Mother’s attorney was “to prepare [the] order.” The court confirmed that the parties understood and assented to the terms of their agreement, but it did not order anyone to do anything.
5 Citing Bussell v. Bussell, 194 Md. App. 137, 155 (2010), and Billman v. Maryland Deposit Ins. Fund Corp., 312 Md.
128, 133 (1988), Mother writes that “an oral decision or ruling from the bench, if there are no further issues to be resolved . . . [,] is a final and binding order.” Even assuming the accuracy of that assertion, we have no indication of “an oral decision or ruling from the bench” in this case. We have only an oral agreement that Mother’s counsel was to transform into a written order.
6 Mother attempts to distinguish Breona C. She argues that in Breona C. the contemnor committed only a few, discrete violations of the court’s order. By contrast, in this case, she says, Father’s violations ranged over the course of many months and continued even after she filed her petition. Mother has identified a factual distinction of no legal import. Under Breona C., it does not matter whether the contemnor violated a court order one time or one thousand times, or whether the violation lasted one hour, one day, or one year. Breona C. holds that the circuit court erred in holding the contemnor in civil contempt when she was in full compliance with the court’s orders at the time of the contempt hearing. See Breona C. v. Rodney D., 253 Md. App. at 76 (holding that “no order of constructive civil contempt could have been imposed” at the time of a contempt hearing “because, by that point, [the alleged contemnor] had been in compliance with the [relevant order] for several months”).
7 We express no opinion as to whether the circuit court could have awarded additional parenting time on another ground, such as § 9-105 of the Family Law Article.
8 As previously stated, the appendix to Mother’s brief includes an order, docketed on October 13, 2023, by which the circuit court corrected what it reportedly called a “scrivener’s error” in the order that is on appeal and recharacterized the award of attorneys’ fees as an award under § 9-105 of the Family Law Article. Father has noted an appeal from that order.
9 Reflecting the agreement, the judgment of absolute divorce states that if Father failed to pay the $100,000.00 marital award by July 5, 2022, he would be responsible for (among other things) “any and all attorney’s fees incurred by [Mother] to enforce and collect the marital award.”
10 In Mother’s reformulation of the questions presented, she asked whether she should be granted attorneys’ fees in this appellate litigation. In the body of her brief, Mother argued that Father’s appeal is “frivolous.” Mother’s argument is not well founded. First, Father’s appeal is far from frivolous. Second, this Court does not award attorneys’ fees. Maryland Rule 2-706 prescribes the method by which a party may ask a circuit court to award attorneys’ fees incurred in connection with an appeal..
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s adoption of the magistrate calculation of child support and imputed income. The appellant failed to file any exceptions to the magistrate’s report, which was not clearly erroneous.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
counsel before a magistrate for a merits hearing regarding child support on April 21, 2023. Both parties testified, were subject to cross- examination, and entered exhibits during the proceeding.
The Parties’ Testimony
The Appellee has four children, three with Appellant, ranging from two to 10-years- old. She testified that since 2020 she has worked 25 hours a week at Sonic and makes about $15 per hour. She said she has discussed working more hours with her boss, but he cannot give her more hours to work. Appellee pays her mother to watch her two-year-old child2 when she is at work, and all the children during summer vacation. However, she testified that she cannot afford to pay her mother to watch all four children while she is at work. Therefore, Appellee testified, she is unable to work 40 hours a week because she has no one to take the children to and from school or to help with after-school care.
This appeal concerns a circuit court order directing the Appellant, Exau Guevara Iglesias, to pay child support to Appellee, Yancy Castro De Guevara. The parties appeared for a hearing before a magistrate, who then filed his findings and recommendations along with a proposed order. The magistrate’s report found that the Appellant voluntarily impoverished himself, and imputed income to him based on an analysis of his previous annual income compared to the annual income based upon the minimum wage. The proposed order used the Appellant’s imputed income to calculate and award both monthly child support and any arrearages. This order was then adopted and signed by a circuit court judge.
The Appellant filed a pro se informal brief that raised two issues on appeal. The Appellee did not file a brief. We have rephrased the two issues as follows:1
1. Did the circuit court improperly calculate child support by imputing income to the Appellant?
2. Should the circuit court have also imputed income to the Appellee?
For the reasons set forth below, we affirm the judgment of the Circuit Court for Baltimore County.
FACTS AND PROCEDURAL HISTORY
The parties married in April 2008 and have three children together. On April 9, 2019, Appellee filed a Complaint for Absolute Divorce in the Circuit Court for Baltimore County. The court entered a Judgment of Absolute Divorce in December 2022, which granted Appellee primary physical custody and reserved child support for a future hearing. Both parties appeared with
Appellant testified that he works 20 hours a week at a liquor store and that his current income is $1,470 per month. He previously worked at a restaurant with paid vacation and holidays, but said he quit3 because he wanted the ability to spend weekends with his children. Since his schedule with the children has changed,4 he testified that he has sought additional employment, but he could not accept other jobs because the work hours would conflict with his hours at the liquor store.
On cross-examination, he testified that in 2021 he earned over $40,000, and in 2022 he earned approximately $20,000. He denied that he was voluntarily impoverishing himself and stated that he had no intent to quit his job and not pay child support. Both parties testified that they are physically able to work.
The Magistrate’s Report
One week after the hearing, the magistrate filed his findings and recommendations. The report summarized the testimony given by both parties, and then stated the applicable law and the magistrate’s findings. The report noted the factors a court should consider when determining if a parent is voluntarily impoverished. These include:
1. his or her current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or other financial circumstances relative to the divorce proceedings;
4. the relationship between the parties prior to the initiation of divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and 10. any other considerations presented by either party.
John O. v. Jane O., 90 Md. App. 406, 422 (1992).
The magistrate calculated Appellee’s income as $1,679.16 per month and stated that her “explanation regarding her care of the minor children [is] a reasonable explanation for why she has not sought other employment.” The magistrate did not find that she voluntarily impoverished herself.
Next, the report restated Appellant’s testimony that his income was approximately $20,000 in 2022 even though it was undisputed that the Appellant previously earned approximately $40,000 per year. The report noted that the Appellant has “no physical impediments preventing him from working,” and that “[i]n the past five days, he only worked two of the five days” in the evenings and does not currently have the minor children.
The report stated that other than the Judgment of Absolute Divorce, which granted the Appellant overnight access starting in June 2023, there was no agreement in place that granted Appellant overnight access with the children. The court found that even with the arrangement set to take effect in June 2023, the Appellant “should be able to work full- time in a restaurant.”
Finally, after considering the factors outlined in John O., the magistrate found that the first, third, fifth, sixth, and ninth factors weighed heavily against the Appellant and that he voluntarily impoverished himself. The magistrate then explained how he calculated the Appellant’s income for child support purposes, stating:
The Court will use $40,602.00 as [Appellant’s] income for 2021 and years prior, which equates to $3,383.50 gross monthly income. The Court will use minimum wage for years beyond 2021. In 2022, minimum wage was $12.50 per hour, which equates to $2,166.66 gross monthly income. In 2023, minimum wage is $13.25 per hour, which equates to $2,296.66 gross monthly income.
After accounting for how much Appellant has paid in child support payments versus what he should have paid, the magistrate determined that the child support arrearage should be set at $25,000 and, as of January 1, 2023, monthly child support should be $707. The report then set forth the magistrate’s recommendations in the form of an order, which stated:
Based on the testimony of the parties, the Findings, and the Child Support Guidelines attached hereto, the Court makes the following Recommendations:
The Court recommends that [Appellant] pay [Appellee] child support in the following amounts:
1. $834.00 for the support and maintenance of the minor children of the parties . . . for the time period from filing of the [Appellee’s] Complaint for Absolute Divorce on April 9, 2019 until October 31, 2019 . . . ;
2. $978.00 for the time period from November 1, 2019 until December 31, 2021, for the minor children of the parties . . . ;
3. $667.00 for the time period of January 1, 2022 until December 31, 2022 for the minor children of the parties. . . ;
4. $707.00 from January 1, 2023, for the minor children of the parties . . . .
The Court recommends that [Appellant] pay an additional $143.00 per month, for a total of $850.00 per month, starting June 1, 2023, with arrears to be set at $25,000 as of said date.
No exceptions were filed to the magistrate’s report. The circuit court judge entered the order on May 16, 2023, which stated that the court read and considered the magistrate’s findings and recommendations, and that no exceptions were filed. The court then incorporated the magistrate’s recommendations, stated above, into the order. This appeal followed.
DISCUSSION
Both issues on appeal challenge factual findings by the magistrate, specifically whether the court properly calculated child support and imputed income. However, the Appellant failed to file any exceptions to the magistrate’s report. This is fatal to his appeal.
Maryland Rule 9-208(f) informs our analysis in this case. That subsection states: Within ten days after recommendations are placed on the record or served . . . a party may file exceptions with the clerk . . . . Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.
Md. Rule 9-208(f). Since the Appellant did not file any exceptions to the magistrate’s report on these issues, he cannot raise them now on appeal.
Additionally, when reviewing a magistrate’s report, “both a trial court and an appellate court defer to the [magistrate’s] first-level findings . . . unless they are clearly erroneous.” McAllister v. McAllister, 218 Md. App. 386, 407 (2014) (citing In re Priscilla B., 214 Md. App. 600, 623–24 (2013)). Even if we found, pursuant to Rule 9-208(f), that “justice require[d]” us to consider these issues on appeal, we must afford great deference to the fact-finding of the magistrate. In re Priscilla B., 214 Md. App. at 623. Based on the thorough report submitted to the Circuit Court, it is clear that the magistrate considered all of the testimony presented as well as the exhibits entered during the hearing. Based upon Maryland statutes and caselaw concerning these two issues, the magistrate’s findings were not clearly erroneous. Therefore, we affirm the judgment of the Circuit Court for Baltimore County.
FOOTNOTES
1 The Appellant’s informal brief states the two issues as follows: (1) “[The] Circuit Court improperly calculated child support”; and (2) “The Circuit Court unfairly imputed income only to the Appellant and should have imputed income to both parties.”
2 The two-year-old is not the Appellant’s child.
3 The Appellant went back and forth between saying he quit versus saying he was laid off due to his schedule for child access. He stated he had access through the court from Friday to Wednesday morning one week, and Monday afternoon to Wednesday morning the next week. He testified this schedule was in place from September 2021 until April 2022.
4 At the time of the hearing, he stated that he did not have the children overnight.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Cecil County Circuit Court’s change of the permanency plan of the minor child, adjudicated previously to be a child in need of assistance. The circuit court concluded reasonably, based on all the evidence before it, that it was in the minor’s best interest to change his permanency plan to adoption with a secondary plan of custody/guardianship by a non-relative.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
had received previously reports of Grandmother’s substance abuse, including at least two instances of her driving under the influence of alcohol that resulted in vehicular accidents. There was also concern that K.H. and Grandmother had, on at least one occasion, slept in Grandmother’s car when she was too intoxicated to drive.
Following a hearing on 8 April 2021, the juvenile court granted temporary custody of K.H. to the Department, along with a temporary shelter care order. At the time, however, K.H.’s whereabouts were unknown, and the hearing was held in absentia.
This appeal is from an order by the Circuit Court for Cecil County, sitting as a juvenile court, which changed the permanency plan for K.H. (born in May 2012), adjudicated previously to be a child in need of assistance (“CINA”)1 and placed in the custody of the Cecil County Department of Social Services (“the Department”). Appellant, D.P. (“Grandmother”), the maternal grandmother and legal guardian of K.H., noted timely an appeal of the juvenile court’s order, asking us to consider whether the court erred or abused its discretion “in changing the permanency plan from a concurrent plan of reunification and guardianship/custody with a non-relative to a primary plan of adoption and a secondary plan of guardianship/custody with a non-relative[.]”2
For the reasons that follow, we shall affirm the order of the juvenile court.
FACTS AND LEGAL PROCEEDINGS
On 7 April 2021, the Department filed a CINA petition after removing K.H. from the care and custody of Grandmother, who, along with her then-husband L.P., had cared for the child since birth due to severe developmental disability of the child’s mother, C.H. (“Mother”).3 The Department asserted that the police had been called to Grandmother and L.P.’s home 11 times in the previous month, related to acts of domestic violence between them, some of which were witnessed by K.H.
In its petition, the Department explained further that, in March 2021, Grandmother fled the home with K.H. in tow, and after being dismissed from a domestic violence shelter for non-compliance with its rules, went to stay with Mother in Delaware. When Delaware social workers located Grandmother at Mother’s home, she was intoxicated. Department workers
K.H. was located at Grandmother’s mother’s home in Elkton, Maryland, on 15 April 2021. Grandmother’s mother and other family members expressed to the Department workers that K.H. should not be in Grandmother’s care. K.H. was removed from Grandmother’s care based on “extreme concerns” for his safety and placed in foster care with the E. family.
The juvenile court held a CINA adjudication/disposition hearing on 1 June 2021. The court found that K.H. was unsafe with Grandmother, due to her alcohol consumption and domestic violence in her home. The court determined further that K.H. was CINA, having been neglected by Grandmother, and placed him in the custody of the Department, with limited guardianship. Grandmother was granted supervised visitation once weekly at a minimum.
An October 2021 psychological evaluation found that Grandmother had likely “minimally adequate parenting capacity[,]” but that her denial of alcohol abuse placed her at risk of dysfunctional parenting and neglect. The evaluating psychologist recommended individual psychotherapy to address her reported anxiety and character disorder. The prognosis for improvement in Grandmother’s neurocognitive abilities was considered “fair.”
In advance of a 23 November 2021 review hearing, the Department conducted its initial review to assess Grandmother’s progress toward reunification with K.H. Grandmother had maintained contact with the Department and was “fairly responsive” to the Department’s suggestions and requests. She signed a service agreement with the Department in October 2021, which required her to: (1) remain sober; (2) participate in a substance abuse program and psychotherapy for mental health treatment; and (3) obtain and maintain safe and drug/ alcohol-free housing and employment.
K.H., diagnosed with autism spectrum disorder, was doing well with his foster family, and was bonded with them. Prior to and following visits with Grandmother, however, K.H. exhibit-
ed anxiety and distress and had been referred to counseling to help him cope.
Although no relative resource for K.H. had come forward yet, the Department recommended a primary permanency plan of reunification with Grandmother, with a concurrent plan of custody/guardianship with a relative, because Grandmother had only recently begun engaging with services and was not yet ready for reunification.
Following the 23 November 2021 review hearing, the juvenile court continued K.H.’s status as CINA and maintained Grandmother’s weekly supervised visitation.
Ahead of an April 2022 permanency plan review hearing,4 K.H.’s Court-Appointed Special Advocate (“CASA”) reported that K.H. continued to do well with his foster family. He disclosed to the CASA that Grandmother had hit and pinched him. He needed reassurance that supervised visits with her were safe. K.H. said he enjoyed his visits with Grandmother, which had increased to twice weekly, but he did not want to live with her. The CASA recommended a continued finding that K.H. was CINA and that he remain in his foster placement with the E. family, with a goal of a gradual transition to reunification with Grandmother.
In its report in advance of the hearing, the Department recognized the progress Grandmother had made under her service agreement, but noted that she continued to exhibit poor insight into her past alcohol abuse and its impact on K.H. In addition, K.H. continued to express extreme anxiety and fear about visitation or returning to Grandmother’s care. Following visitation with Grandmother, K.H. exhibited increased physical and emotional symptoms and regressive behaviors upon return to his foster home, including rocking, pulling his hair, and having trouble sleeping. Because the Department could not recommend reunification at that time, it recommended a continued permanency plan of reunification, with a concurrent plan of custody/guardianship with a non-relative.
In June 2022, visits between K.H. and Grandmother changed from in-person twice weekly, to in-person once weekly, to virtual once weekly, at the request of the Department, because of K.H.’s extreme anxiety before and after visitation, including vomiting, upset stomach, crying, and inability to sleep. Switching to telephonic visitation alleviated K.H.’s stress and the physical manifestations of that stress.
At the 6 September 2022 permanency plan review hearing, the juvenile court heard testimony that K.H., who had completed fourth grade, was on a kindergarten through second grade level in most subjects. His special education teacher testified as to the numerous times K.H. came to school either “extremely upset” or distracted. During more than one conversation, K.H. told the teacher that Grandmother hit him. He said further that he did not want to go back to live with Grandmother because he was scared. To the teacher, K.H. expressed a strong desire to stay with his foster family.
L.E., K.H.’s foster mother, testified that, when K.H. first came to her home, he “had very little speech” and was not understandable. In the 14 months he was in her care, however, he learned to speak in full sentences and express himself. K.H. stated to L.E. “almost every single day” that he did not want to return to Grandmother’s house to live.
K.H. continued also to tell L.E. that he did not want to go to visits with Grandmother, becoming very emotional, pulling his hair to the point of creating a bald spot, and having toileting accidents the nights before scheduled visitation. On one occasion in June 2021, K.H. refused to get out of the car at a visit. Thereafter, visits, which had increased to twice weekly, were halted and switched to phone calls, after which L.E. noticed a “100 percent improvement” in K.H.’s emotional state. L.E. confirmed that she would be a long-term placement resource for K.H. if the court changed his permanency plan with that goal.
K.H.’s therapist testified that the child disclosed to her that Grandmother hit him and drank a lot of beer while he had been living with her, which he did not like. K.H. told the therapist that it made him “nervous and sad” to go to in-person visitation with Grandmother because he worried she would hit or be mean to him again; he described having such severe stomach aches before visits that he sometimes defecated in his pants.
K.H. made clear also to the therapist that he did not wish to return to Grandmother’s home, expressing instead a desire to remain with L.E.
The therapist explained that she convened three family sessions with K.H. and Grandmother in February and March 2022, but K.H. said he did not want to continue family therapy, preferring instead individual therapy. Even when the therapist offered a once monthly family session, K.H. said no, and she did not wish to force him into treatment.
K.H.’s foster care social worker confirmed that K.H. had “a lot of distrusting emotions” relating to his time in Grandmother’s care and exhibited “anxiety and distress” in response to the relationship. In contrast, he bonded with, and integrated into, his foster family. K.H. told the social worker that he wanted to stay with the E. family and that, although he enjoyed phone calls with Grandmother, he did not want to see her in person. In the worker’s view, continued virtual visits were in the best interest of K.H.’s mental health. Although Grandmother completed the tasks on her service agreement, including remaining sober, the Department remained concerned about K.H.’s mental health. Therefore, it continued to recommend a permanency plan of reunification with a concurrent plan of guardianship and custody with a non-relative.
Grandmother, then living with her parents, denied ever hitting K.H. She acknowledged, however, that the child witnessed domestic violence between her and her ex-husband, whom she had left and against whom she filed for a protective order. Having done everything the Department asked her to do under the service agreements, she was hoping the court would order progressively more visitation and a sole permanency plan of reunification with K.H.
At the conclusion of the hearing, the juvenile court announced a concurrent permanency plan of reunification and custody/guardianship with a non-relative. Grandmother appealed the juvenile court’s order adding a concurrent plan to the existing plan of reunification. In an unreported opinion, this Court found no error in the juvenile court’s change of permanency plan or its conclusion that the Department made reasonable efforts toward reunification. Therefore, we affirmed the juvenile court’s order. See In re K.H., No. 1353, September Term 2022 (filed 25 April 2023).
In January 2023, the Citizen’s Review Board for Children completed a case review recommendation report, which reiterated K.H.’s refusal to return to Grandmother’s home and his continuing anxiety and extreme fear during visits with her. Since in-person visits were suspended, K.H. was doing well.5 After exploring the possibility of adoption of K.H. by his foster family, the Board requested that the Department recommend a change in permanency plan to adoption by a non-relative.
In advance of a 28 February 2023 permanency plan review hearing,6 the Department submitted a report detailing that, having been in foster care for 20 of the previous 22 months, K.H. had been “very vocal” about expressing his desire to be adopted by his foster family. During virtual visits, the Department noted that Grandmother engaged minimally with K.H., often going 20 minutes of the allotted hour without speaking to him.
Although Grandmother signed two service agreements, she had not signed yet and returned a third service plan dated 30 January 2023. As recently as December 2022, she tested negative for all drug/alcohol substances. The Department found that, although having participated actively in the tasks in her service agreements, Grandmother lacked still insight into K.H.’s needs and that, despite K.H.’s continued expression of a desire for adoption by his foster family, Grandmother dismissed his feelings and insisted on telling him he would be returning to live with her. The Department recommended a primary permanency plan of adoption with a secondary plan of custody/ guardianship with a non- relative.7
The Department updated its report in advance of the 6 June 2023 permanency plan review hearing at issue in this appeal. By then, K.H. had been out of Grandmother’s care for 26 months. The only real change since the previous review hearing was that Grandmother signed a new service agreement on 23 March 2023. The Department continued to find it unsafe to return K.H. to Grandmother’s custody, in light of the child’s “significant anxiety and fear” about that prospect.
At the hearing, K.H.’s foster care social worker testified that K.H., then in fifth grade, had no behavioral issues at school that year, as compared to the year before when he exhibited “emotional distress” and “issues surrounding visitation” with Grandmother. Those issues stopped completely when he ceased having in-person visitation with Grandmother. As recently as a week prior to the hearing, K.H. vocalized again to the worker that he wanted to end the weekly supervised phone calls with Grandmother because he got nervous and upset. In addition, K.H. reported that Grandmother did not listen to him and told him he was coming home, instead of being adopted.
The social worker did not believe K.H. could be safe in Grandmother’s home, in part because of K.H.’s strong distress about returning to her care, and in part because of the negative events that occurred while K.H. was in her care, including domestic violence between Grandmother and her ex-husband, nights of sleeping in the car after some such instances of violence, and occasions when Grandmother pinched and hit K.H. Grandmother’s parents, with whom she was then living, passed the necessary background checks to have K.H. live in their home. Grandmother performed all the required tasks in her service agreements, but, according to the social worker, those
positive steps do not result automatically in reunification, especially in the case of a child with special needs who expressed a desire not to be reunified.
In contrast, the worker continued, K.H. felt safe with his foster parents, with whom he had lived since April 2021, and he expressed a desire to be adopted by them. He was calm and happy with his foster parents, whom he calls “Mom” and “Dad,” his educational and medical needs were being met by the foster parents, and he was integrated into their family.
The Department recommended a permanency plan of adoption by a non-relative as in K.H.’s best interest, based on the amount of time he was in care, his special needs, the progress he made in foster care, his attachment to his foster family, his anxiety and distress surrounding possible reunification with Grandmother, and his strong stated preference. The Department no longer sought a plan of custody/guardianship with a non-relative, in part because the foster parents were adoptive resources who wished to pursue that option.
As far as its reasonable efforts to promote reunification, the Department offered family therapy sessions to K.H. and Grandmother, but the therapist did not believe that family therapy was beneficial to K.H., and the social worker was unsure if family therapy would be helpful in achieving reunification. Moreover, the Department was unable to locate a family therapist who would accept a client on medical assistance. In addition, the Department offered Grandmother FaceTime visits with K.H., instead of phone calls, but she declined and did not seek increased visitation.
L.E. testified that K.H. remained bonded to her and her husband, as well as to the other children in their household, and considered them all as his family. She explained that during phone visits with Grandmother, Grandmother and K.H. talk for approximately 10 to 20 minutes of the 60 minute call, while remaining quiet the rest of the time, often because K.H. refuses to speak to Grandmother.
Grandmother testified that she had remained sober and was in compliance with all the items on her service agreements. She believed family therapy would help her achieve reunification with K.H. because K.H. had not had an opportunity, since the traumatizing events of the past, to see that she was not living in “a bad environment anymore” and that he no longer had to feel threatened in her home. She acknowledged that a graduated therapeutic procedure would be best so it wouldn’t be disruptive to K.H. She understood that the court’s decision must be based on K.H.’s best interest and agreed that he should have a voice in the decision.
In closing, both the Department’s and K.H.’s attorneys agreed that a change in permanency plan to adoption by a non-relative was warranted, based on the length of time K.H. had been in foster care, K.H.’s undisputed past trauma related to domestic abuse in Grandmother’s home, his attachment to his foster family, his improvement in speech and academics since he came into the E.s’ care, and his stated desire.
In closing, Grandmother reminded the court that she had stepped up to care for K.H. when Mother could not. Grandmother acknowledged problems in her home but she had been given a service agreement and had completed every task on it,
such that the Department should be working with her toward reunification. She claimed also that the Department had not undertaken reasonable efforts toward reunification.
Grandmother asked the court to order in-person visitation and placement of K.H. with her when he was deemed ready, after beginning family therapy. She sought a sole permanency plan of reunification, but if the court were not inclined to order a sole plan, Grandmother agreed that a concurrent plan of reunification and guardianship/custody with a non-relative would be appropriate.
In rebuttal, the Department, reiterating that the overarching standard was the best interest of the child, not the custodian, acknowledged that reunification may have been in K.H.’s best interest in 2021, but underscored that K.H. is autistic, had observed domestic violence in Grandmother’s home, and had told numerous witnesses that Grandmother and Grandmother’s mother had hit him, causing him to be “extremely fearful of his grandmother.” As a result, the Department was “taking things slowly,” at a level K.H. could handle. To that end, the Department provided reasonable efforts, including in-home visits with K.H., monitoring of K.H.’s therapy, and consulting with his therapist about whether family therapy would be in K.H.’s best interest. The Department provided also services to Grandmother, which had been beneficial, because she had remained sober and made improvements in her home life, although the Department believed she still lacked insight into K.H.’s concerns.
The juvenile court, in explaining its ruling, noted that because the child’s best interest is the paramount concern, “it is entirely possible that every component of a service agreement can be met, but we still find ourselves in a unique circumstance, where not withstanding that compliance, there is some variable or some component that still hasn’t shifted the best interest of the child.” The court, sensitive to Grandmother’s frustration about having done everything she had been asked to do and yet still remaining under threat of losing custody of K.H., referred to K.H.’s “traumatic upbringing” related to the domestic violence he witnessed, due, in large part, to excessive alcohol consumption by Grandmother and her ex-husband. The court noted also K.H.’s distress during visitation with Grandmother, along with the cessation of his disruptive behaviors when the visits were stopped.
In contrast, the judge observed that K.H. “blossomed and bloomed” since residing with his foster family, making advancements in speech and academics. The court was moved by the undisputed testimony that K.H. had made his wishes to be adopted by the E. family “abundantly clear.”
Following its consideration of the required factors of Md. Code, § 5-525(f) of the Family Law Article (“FL”), the juvenile court continued K.H.’s status as CINA and changed his permanency plan from a concurrent plan of reunification and custody/guardianship to a non-relative, to a primary plan of adoption by a non-relative with a secondary plan of custody/ guardianship with a non-relative. Grandmother appealed timely the juvenile court’s order.
DISCUSSION
STANDARD OF REVIEW
We review CINA cases under three “different but interrelated” standards. In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155 (2010). First, we review the juvenile court’s factual findings under the clearly erroneous standard. Id. (citing In re Yve S., 373 Md. 551, 586 (2003)). Second, if it appears that the juvenile court erred in its determinations as a matter of law, further proceedings will be required ordinarily, except in cases of harmless error. Id. Finally, “when reviewing a juvenile court’s decision to modify the permanency plan for the children, [we] ‘must determine whether the court abused its discretion.’” In re A.N., B.N., & V.N., 226 Md. App. 283, 306 (2015) (quoting In re Shirley B., 419 Md. 1, 18-19 (2011)).
The Supreme Court of Maryland emphasizes that appellate review of a juvenile court’s determination concerning a permanency plan is “limited.” In re Ashley S., 431 Md. 678, 715 (2013). “Because the overarching consideration in approving a permanency plan is the best interests of the child, we examine the juvenile court’s decision to see whether its determination of the child’s best interests was ‘beyond the fringe’ of what is ‘minimally acceptable.’” Id. (quoting In re Yve S., 373 Md. at 583-84). In doing so, we must remain mindful that ‘“only [the juvenile court] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; [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.’” Baldwin v. Baynard, 215 Md. App. 82, 105 (2013) (quoting In re Yve S., 373 Md. at 585-86)).
ANALYSIS
Grandmother asserts that the juvenile court abused its discretion by changing K.H.’s permanency plan from a concurrent plan of reunification and custody/guardianship with a non-relative to a primary plan of adoption with a secondary plan of custody/guardianship with a non-relative. She contends that the court’s change in the plan is not in K.H.’s best interest, especially in light of her demonstration that she met all the requirements of the service agreements with the Department. She avers further that the Department has not made reasonable efforts to facilitate the permanency plans of reunification or custody/guardianship with a non-relative.
When a CINA is committed to a local department of social services, the juvenile court must determine which permanency plan is in the child’s best interest, being the “paramount concern,” as well as the ultimate governing standard. CJP § 3-823(e)(1); In re Caya B., 153 Md. App. 63, 76 (2003). 8 Following its implementation of a permanency plan, a juvenile court must conduct periodic hearings to review the child’s permanency plan, during which the court must determine, inter alia, whether reasonable efforts have been made to finalize the permanency plan and change the permanency plan if it would be in the best interest of the child to do so. CJP § 3-823(h)(2) (ii), (vii). Pursuant to CJP § 3- 823(e)(2), in determining and reviewing the child’s permanency plan, the court must consider the factors enumerated in FL § 5-525(f)(1), which include: 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.
The court is not required, however, to refer specifically to those factors on the record, so long as its reasoning as to the child’s best interest is articulated. See In re Adoption/Guardianship of Darjal C., 191 Md. App. 505, 531-32 (2010).
Here, the record supports a reasonable conclusion that the juvenile court considered properly the required factors before changing K.H.’s permanency plan.
As far as K.H.’s ability to be safe and healthy in Grandmother’s home, the court found that K.H. would not be safe. Even in the absence of danger to his physical safety, the level of distress and opposition displayed by K.H. to even telephonic visitation led the court to conclude that if K.H. were compelled to return to Grandmother’s home, those exhibitions of distress would be “significantly amplified.” The court was not inclined, therefore, to return K.H. to a place that could place his mental health, which appeared to be improving, in jeopardy.9 FL § 5-525(f)(1)(i).
Regarding K.H.’s attachment and emotional ties to his natural parents—in this case, Grandmother (as a stand-in for Mother)—the juvenile court pointed to “the copious evidence” that K.H. had made it very clear that he does not want contact with Grandmother, even as de minimis as a weekly phone call. With that level of reticence, the court could not find a strong attachment between K.H. and Grandmother. FL § 5-525(f)(1)(ii).
The court noted that K.H.’s relationship with his foster family, a pre-adoptive resource, involved an “incredibly well-bonded, affectionate, caring dynamic.” K.H. considered the foster family his family and wanted to be part of it; the court found that “that attachment is significant.” FL § 5-525(f)(1)(iii).
The juvenile court found that K.H. had been with his current caregivers since April 2021, 26 months at the time of the relevant hearing. The court concluded further that, “[b]ased on everything that has been presented thus far,” removal of K.H. from his foster home “would work an extraordinary detriment to that little boy.” Since being in the foster parents’ care, K.H. developed, matured and made significant strides in his emotional health and education, such that moving the child from his current placement would work “significant harms.” The court added that “we are already beyond the 24 months within which permanency is supposed to be achieved by statute[,]” so it was nearing the point in which permanency reflective of the current circumstances should be achieved. FL § 5- 525(f)(1) (iv)-(vi).
Despite Grandmother’s claim that the juvenile court failed to give sufficient weight to her successful completion of all the items of her service agreements, the court explained that,
although Grandmother’s contention was undisputed in this regard, that was merely one part of its calculus in determining an appropriate permanency plan, with K.H.’s best interest the paramount consideration. Grandmother lacked insight as to K.H.’s concerns. Moreover, K.H. had been in care for over two years and was entitled to more permanency than Grandmother, despite her best efforts, was able to provide. Removing reunification as a permanency plan addressed the potential harm of K.H. continuing in the limbo of foster care. See Ashley S., 431 Md. at 711 (One of the primary purposes of a permanency plan is “to avoid the harmful effects when children languish in temporary living situations.”).
Although Grandmother contends that the juvenile court erred in determining that the Department made reasonable efforts toward reunification, the record reveals that the court considered the totality of the circumstances before finding that the Department had made reasonable efforts. The court detailed the efforts it found reasonable—the Department’s facilitation of visitation between K.H. and Grandmother, provision of individual therapy for K.H., and attempts at family therapy.
Despite the Department’s efforts in providing visitation, however, the in-person visits between Grandmother and K.H. had, by all accounts, gone poorly. K.H. exhibited a great deal of physical and emotional distress before and after visits, which resolved entirely once in-person visitation ceased. Moreover, during phone visitation, Grandmother made little effort to engage with K.H., instead remaining silent for a large portion of the 60- minute calls. In addition, when the Department offered FaceTime visitation, Grandmother declined. The lack of success of visitation did not require the juvenile court to find that the Department had not made reasonable efforts.
As for the Department’s efforts regarding family therapy, the Department made clear, and the juvenile court found, that K.H.’s individual therapist did not find family therapy to be in K.H.’s best interest. Nonetheless, at the demand of Grandmother’s attorney, the Department had sought to find a family therapist—contacting five to seven practices—but none was inclined to provide services to a Medicaid recipient who was receiving already individual therapy. The court noted that, although it could order family therapy, it could not order a therapist to provide services.10 And, despite Grandmother’s advocacy for family therapy, there was no guarantee—even if K.H. could be persuaded to participate—that it would resolve the issues impeding reunification. The failure to provide family therapy is not a failure of the Department to provide reasonable efforts at services.
As to reasonable efforts related to the concurrent plan of custody/ guardianship with a non-relative, the Department had reached out to K.H.’s foster family, discussed the possibility of guardianship as an alternative to adoption, and learned that the foster family was not a guardianship resource. Seeking alternative placement, solely for the purpose of achieving custody and guardianship, the court concluded, would not have been in K.H.’s best interest. See In re Adoption/Guardianship of C.E., 464 Md. 26, 59 (2019) (“Custody and guardianship does not afford [a child] with the same permanency as adoption[.]”).
For all these reasons, we conclude that the juvenile court considered adequately the required statutory factors and the reasonableness of the Department’s efforts when reviewing K.H.’s permanency plan. It concluded reasonably, based on all the evidence before it, that it was in K.H.’s best interest to change his permanency plan to adoption with a secondary plan of custody/guardianship by a non-relative. We perceive no abuse of discretion in the court’s ruling.
ORDER OF THE CIRCUIT COURT FOR CECIL COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Pursuant to Md. Code, § 3-801(f) of the Courts & Judicial Proceedings Article (“CJP”), a “child in need of assistance” means “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
2 An order changing a permanency plan for a child adjudicated CINA is an appealable interlocutory order. CJP § 12-303(3)(x); see also In re Damon M., 362 Md. 429, 434 (2001).
3 Grandmother was granted legal and physical custody of K.H. in May 2013. Mother, who was diagnosed with schizoaffective disorder, bipolar type, was never a resource for K.H. and has had virtually no involvement with the Department after K.H. was removed from Grandmother’s care. The Department learned in September 2021 that N.P. was K.H.’s father, but it was unable to locate him. By all accounts, he had no contact with K.H. since the child’s birth.
4 The hearing was postponed to 21 June 2022, so Grandmother could obtain the services of a public defender. The hearing was postponed again so the court could determine whether Mother should be appointed a guardian. The hearing occurred ultimately on 6 September 2022, after J.H., Mother’s father, was appointed her guardian.
5 K.H.’s CASA noted also that K.H. made “remarkable improvements” since ending in-person visitation with Grandmother.
6 The juvenile court continued the permanency plan review hearing because Grandmother’s earlier appeal was still pending. The review hearing occurred on 6 June 2023.
7 The Department filed a petition for termination of parental rights (“TPR”) with respect to Mother in April 2023. At the start of the 6 June 2023 status conference, the juvenile court elected to appoint a guardian ad litem for Mother in relation to the TPR.
8 The permanency plans, “in descending order of priority[,]” are: (1) reunification with a parent or guardian; (2) placement with relatives for adoption or custody and guardianship; (3) adoption by a non-relative; (4) custody and guardianship by a non- relative; or (5) another planned permanent living arrangement. CJP § 3-823(e)(1)(i).
Reunification is presumptively the better option, as it is presumed to be in the child’s best interest to remain in the care and custody of his or her biological parent—in this case, the custodial grandparent. Cadence B., 417 Md. at 157. Nonetheless, “if 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.” Id.
9 We are not persuaded by Grandmother’s assertion, unsupported by law, that FL § 5-525(f)(1)(i) is intended to refer primarily to the child’s physical safety. The CINA subtitle is intended to “provide for the care, protection, safety, and mental and physical development of [the] child[.]” CJP § 3-802(a)(1) (emphasis added). A custodian’s failure to provide mental and/or physical safety can lead to a finding of neglect, as defined by CJP § 3-801(s).
10 The one family therapy practice the Department found who would consider accepting Grandmother and K.H. as clients continued to have a waiting list as of February 2023.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s termination of the mother’s and father’s parental rights of the three-year-old child. The circuit court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous and applied the correct legal standard in reaching its ultimate conclusions that severing the parental relationship was in the child’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
N.N. was ultimately declared a CINA. In January 2019, the juvenile court granted custody and guardianship of N.N. to relatives.
Shortly thereafter, Mother’s second child, H.N., was born. H.N. was immediately sheltered to the Department and placed in a foster home. The Department noted concerns regarding the presence of mold and lead paint in Mother’s home. The Department also noted that Mother had been diagnosed with schizoaffective disorder. Mother subsequently completed a “fitness to parent assessment” with a licensed psychologist, who reported that Mother exhibited “cognitive limitations,” including a “lack of insight” and a “lack of adequate knowledge of parenting practices[.]” It was recommended that Mother continue receiving “individual supportive psychotherapy” but not “insight-oriented psychotherapy” due to her “cognitive limitations.” It was also recommended that Mother “receive one-on- one parenting support where a provider could model appropriate parenting practices[.]”
In 2020, the Circuit Court for Baltimore County, sitting as the juvenile court, found R.N., minor child of S.N. (“Mother”) and R.E. (“Father”), to be a child in need of assistance (“CINA”) and ordered that R.N. be placed in the care and custody of the Baltimore County Department of Social Services (the “Department”). In 2023, the juvenile court terminated Mother’s and Father’s parental rights. Mother and Father each noted an appeal from that decision, with Mother presenting a single question for our review and Father presenting nine questions for our review.1 For clarity, we have combined all questions into a single issue:
Did the juvenile court err in terminating Mother’s and Father’s parental rights?
For reasons to follow, we hold that that the juvenile court did not err. We therefore affirm the court’s judgment.
BACKGROUND
Mother has three children: N.N., born in 2017; H.N., born in 2019; and R.N., born on November 20, 2020. Only R.N. was fathered by Father.
The Department has been involved with Mother since the birth of her first child, N.N., in 2017. At the time, the Department had concerns about Mother’s “ability to care for the child including substance abuse, domestic violence, and cognitive limitations.” During its subsequent investigation, the Department developed additional concerns regarding N.N.’s eating and failure to gain weight. The Department also received reports that Mother was hearing voices and having negative thoughts that included harming N.N.
Following her completion of the assessment, Mother switched mental health providers. Mother did not provide the Department with the requisite release of information.
November 2020 – R.N.’s birth and subsequent placement in shelter care
In November 2020, R.N. was born. At the time, R.N.’s father was listed as “unknown.”
Immediately after R.N.’s birth, the Department received a report that R.N. was born substance-exposed due to Mother “testing positive for marijuana at delivery” and having tested positive for marijuana “throughout her pregnancy.” A few days later, but before R.N. was discharged from the hospital, the Department requested that R.N. be placed in shelter care. That request was granted on November 25, 2020. Two days later, R.N. was released from the hospital and placed in a foster home with Mr. and Ms. H. (hereinafter the “Foster Parents”), who were also caring for R.N.’s sibling, H.N.
December 2020 – R.N. declared a CINA
In conjunction with its shelter care request, the Department filed a petition asking that R.N. be declared a CINA. In that petition, the Department alleged, inter alia, that Mother had testified positive for marijuana during her pregnancy with R.N.; that Mother had prior contacts with the Department regarding her other two children; that Mother had demonstrated “limited knowledge and unrealistic expectations” and was resistant to
cooperating with the Department; and that Mother had failed to complete a court-ordered substance abuse evaluation.
Subsequent to the filing of its CINA petition, the Department received a report from Mother indicating that her home had passed a lead inspection. The Department visited the home the following day and noted that the home did not have any visible mold and that it “met minimal standards.” The Department also noted that Mother, during a recent meeting with the Department, had agreed to complete a substance abuse assessment. The Department noted, however, that it was not able to verify Mother’s treatment because she refused to sign a release of information. The Department noted that, while Mother’s engagement in therapy was critical, Mother’s willingness to share her therapeutic progress with the Department was equally critical because the Department needed to “assess risk and safety for the newborn baby[.]” The Department explained that “[d]ue to [Mother’s] diagnosis, which has included auditory hallucinations, partnering with providers is essential to supporting the family and managing the high risks associated with caring for a new baby.” The Department explained further that, without an active release of information, the Department was unable “to collaborate with mental health providers, which allows the Department to monitor the safety risks by ensuring that appropriate services are being provided to [Mother].” The Department noted that, although all of those concerns had been communicated to Mother, Mother nevertheless continued to refuse to share information with the Department.
On December 21, 2020, the juvenile court sustained the allegations in the Department’s petition and declared R.N. to be a CINA. The court ordered that R.N. be placed in the custody of the Department. R.N. thereafter remained in the care of the Foster Parents. R.N.’s paternity remained listed as “unknown.”
July 2021 – CINA review hearing
In July 2021, the court held a review hearing. Prior to that hearing, the Department prepared multiple reports outlining the Department’s findings to date. According to those reports, R.N. was “a very happy and healthy baby” and appeared “well-adjusted” in the care of the Foster Parents. The Department noted no concerns regarding the Foster Parents’ care of R.N. R.N.’s father remained listed as “unknown.”
As to Mother, the Department found that her “mental health concerns and cognitive limitations present significant safety concerns for parenting young children.” During her visits with R.N. and H.N., Mother exhibited a “lack of interest in engaging with [R.N.]” and sometimes yelled or lashed out at H.N. During one visit, Mother “became aggressive with [H.N.] and did not engage with [R.N.] throughout the visit.” In addition, Mother showed a “distrust in the Department” and exhibited “a pattern of being verbally abusive towards others[,]” including members of the Department and the Foster Parents. The Department found Mother to be uncooperative, noting that she was “resistant to any agency intervention” and had “refused to sign release of information forms” regarding her mental health. The Department further noted that it had received a report that Mother was residing with Father, with whom she had “a history of domestic violence[.]”
On July 7, 2021, the juvenile court entered a “Review Hearing Order,” in which the court found that returning R.N. to Mother’s care was contrary to R.N.’s welfare. The court ordered that R.N. remain in his current placement and that his permanency plan be one of reunification with Mother. The court found that the services provided by the Department during that review period had been “reasonable.”
In October 2021, Mother consented to the termination of her parental rights to R.N.’s sibling, H.N., and the Department was granted guardianship. H.N. was later adopted by the Foster Parents.
January 2022 – CINA review hearing
In January 2022, the court held another review hearing. Prior to that hearing, the Department prepared a report outlining the Department’s findings to date. The Department noted that R.N. was “very happy and healthy” and that he was adjusting well in the Foster Parents’ care. R.N.’s paternity remained listed as “unknown.”
As to Mother, the Department remained “concerned regarding [Mother’s] mental health[,]” and the Department noted that Mother continued “to refuse to sign a release of information form to allow the Department to collaborate with her therapist[.]” The Department found that Mother exhibited a “lack of receptiveness to interventions offered” and that she frequently became “argumentative and confrontational[.]” The Department noted that, while Mother had been “consistent with attending visitation” with R.N., she continued to exhibit a lack of appropriate parenting behavior. During one visit, Mother tried to feed candy to R.N. despite pleas from the Foster Mother and a Department worker that such food was not appropriate for a child so young. At the conclusion of the visit, Mother refused to return R.N. to the Foster Mother’s care, prompting intervention from nearby security.
On January 28, 2022, the juvenile court entered a “Permanency Planning Review Hearing Order,” in which the court found that returning R.N. to Mother’s care was still contrary to R.N.’s welfare. The court ordered that R.N. remain in his current placement and that his permanency plan be one of reunification with Mother concurrent with adoption by a non-relative. The court found that the services provided by the Department during that review period had been “reasonable.”
June 2022 – CINA review hearing
In June 2022, the court held another review hearing. Prior to that hearing, the Department prepared a report outlining the Department’s findings to date. The Department noted that R.N. was still “very happy and healthy” in the Foster Parents’ care.
As to Mother, the Department found that her “mental health concerns and cognitive limitations present significant safety concerns for parenting young children[,]” that she had “unrealistic expectations due to her lack of understanding of the stages of child development and age-appropriate behaviors for children[,]” and that she “lacks empathy for her children” and “becomes fixated on her own wishes/perceived rights[.]”
The Department also found that Mother was “aggressive and argumentative with DHS staff[,]” that she continued to refuse to sign release of information forms, and that she was “defen-
sive” when the Department spoke to her about her behavior. The Department noted that visitations during that period had been “challenging” due to Mother “growing increasingly agitated, uncooperative and aggressive” with Department staff. The Department expressed concerns about Mother’s “lack of awareness of appropriate child development/ways to engage a young child” during visitations, and the Department found that Mother “frequently makes inappropriate statements, is verbally aggressive, name calls and escalates during visits.” The Department noted that it had to temporarily suspend Mother’s visitation following an incident in which, during a visitation, a Department worker advised Mother not to feed R.N. too many snacks. Mother “began to yell and curse” at the worker and was eventually asked to leave the building. On her way out of the building, Mother damaged some property.
Also in its report, the Department recognized, for the first time, that Father was R.N.’s biological father, a finding confirmed by paternity testing. The Department noted that Father had been incarcerated since 2021 “due to Second Degree Assault and Violation of Probation charges.”
On June 24, 2022, the juvenile court entered an order finding that returning R.N. to Mother’s care was still contrary to R.N.’s welfare. The court again ordered that R.N. was to remain in his current placement and that his permanency plan was to be one of reunification with Mother concurrent with adoption by a non-relative. The court found that the services provided by the Department during that review period had been “reasonable.”
November 2022 – CINA review hearing
In November 2022, the court held another review hearing. Prior to that hearing, the Department prepared a report outlining the Department’s findings to date. The Department noted that R.N. was still “very happy and healthy” in the Foster Parents’ care.
As to Mother, the Department noted that she “had limited contact with the Department during this review period” and that the Department had attempted to contact her multiple times without a response. The Department remained concerned about Mother’s mental health issues and ability to parent R.N.
Moreover, the Department noted that various communications had been sent to Father and that Father had been told about the importance of keeping in contact with the Department and making sure his contact information was up-to-date. Father reportedly assured the Department that he “would do whatever he needed to do.”
On November 28, 2022, the juvenile court entered an order finding that returning R.N. to Mother’s care was still contrary to R.N.’s welfare. The court again ordered that R.N. was to remain in his current placement and that his permanency plan was to be one of reunification with Mother concurrent with adoption by a non-relative. The court found that the services provided by the Department during that review period had been “reasonable.”
December 2022 – Petition for guardianship
On December 20, 2022, the Department filed a petition for guardianship with the right to consent to adoption of R.N. The
Department alleged that neither Mother nor Father was able to care for R.N. and that it was in R.N.’s best interest that he be adopted.
May 2023 – Guardianship hearing
In May 2023, the juvenile court held a hearing on the Department’s guardianship petition. At that hearing, the court accepted into evidence a packet of documents related to the case, which included the various orders entered by the court and the reports prepared by the Department since R.N. was placed in shelter care. The court also heard testimony from Father, Mother, R.N.’s foster mother, and Gina Malphrus, an adoption social worker with the Department.
Father testified that he was incarcerated from December 2020 to May 2021, from July 2021 to May 2022, and from October 2022 to May 2023. Father stated that the first prison sentence was imposed after he was found guilty of committing second-degree assault against Mother. Father testified that he went back to prison in July 2021 for violating his probation. Father first learned that he was R.N.’s father in or around May 2022.
Father testified that, in May 2022, he “tried” to contact the Department “multiple times” and ended up speaking with someone “a couple times about visitation[.]” Father insisted that, aside from those conversation, the Department “didn’t contact [him] again” and “didn’t [leave him] no voice mails or nothing.” Father also insisted that he kept the Department informed about where he had been living.
Father admitted that he “had a problem with substances” in the past, but he claimed that he had been clean since November 2019. Father testified that he was currently living in a home that was part of “a rehabilitation mental health program.” Father stated that he planned to be enrolled in that program for “[s]ix months to a year” and that, during that time, he was not a placement resource for R.N.
Father testified that he was present “the whole way” during Mother’s pregnancy with R.N. and that it was his intention to be R.N.’s father. Father testified that he was also present in the hospital when R.N. was born. Father testified that he “had an assumption” that he was R.N.’s father and that he “loved him like he was my own even then.” Father admitted that he had not seen R.N. since November 24, 2020.
Gina Malphrus, an adoption social worker with the Department, testified to the Department’s engagement with Mother since R.N.’s birth. Ms. Malphrus testified that the relationship had been “very combative” and that Mother had “not been cooperative with the Department[.]” Ms. Malphrus testified that the Department had drafted several service agreements but that Mother had been unwilling to review and sign the agreements. Ms. Malphrus testified that the Department had also asked Mother for information about her employment but that Mother had failed to provide it. Ms. Malphrus reported that, while Mother did participate in mental health treatment, she was unwilling to sign any releases so that the Department could assess whether it was safe to place R.N. in Mother’s care.
Ms. Malphrus testified that, beginning in May 2022, there had been “little to no contact” from Mother. Ms. Malphrus testified that the Department had sent Mother multiple requests to meet to discuss the case, but each time Mother had either refused or failed to respond. Ms. Malphrus reported that Moth-
er contacted the Department in November 2022 and “demanded weekly and unsupervised visitation” with R.N. Ms. Malphrus testified that Mother had not contributed financially to the care of R.N. Ms. Malphrus also testified to the Department’s engagement with Father since R.N.’s birth. Ms. Malphrus stated that Father had not contributed financially to the care of R.N. or even seen R.N. since he was placed in shelter care in November 2020. Ms. Malphrus reported that, after Father’s paternity was established in May 2022, the Department sent him a copy of the paternity results and release of information so that he could complete a mental health and substance abuse evaluation. The Department also provided Father with a letter on how to obtain an attorney. According to Ms. Malphrus, the Department attempted to contact Father “several other times with no response.” Ms. Malphrus testified that a letter was sent in August 2022 that was returned undeliverable. Ms. Malphrus testified that another letter was sent to Mother’s address in December 2022, but Father did not respond. Ms. Malphrus stated that “all attempts to contact [Father] regarding service planning and visitation” were unsuccessful “due to his lack of response.” Ms. Malphrus confirmed that both she and another social worker with the Department spoke with Father in 2022 and provided him with the contact information of R.N.’s assigned social worker, Ms. Hill. According to Ms. Malphrus, Father “has yet to be in contact” with Ms. Hill. Ms. Malphrus added that, according to the Department’s records, Ms. Hill “did not receive any missed phone calls or voice mails” from Father.
As to R.N., who was approximately two and a half years old at the time of the hearing, Ms. Malphrus testified that he was “thriving” under the care of the Foster Parents, who were “the only family he has ever known,” and that R.N. had adjusted well to the home and the community. Ms. Malphrus testified that R.N. did not appear to have any emotional ties with Mother, whom he had not seen in approximately one year. Ms. Malphrus stated that Father, whom R.N. had never met, “would be a stranger to him.”
Mother testified that she currently lived with her mother and was employed. Mother admitted that she had not visited with R.N. since May 2022. Mother stated that, prior to that time, she regularly attended visits, and that during those visits she held R.N. and “brought him treats[.]” Mother testified that, although she played with R.N. during some of the visits, “a lot of times” she did not because the Department worker supervising the visits “would always start fights[.]” Mother explained that the Department worker would tell her not to hold or feed R.N., which made her angry. She also denied the Department’s claim that she damaged property during one visit. Mother insisted that she tried to cooperate with the Department. Mother stated that she did not sign any service agreements or release of information forms because the service agreements were “tampered” and because she did “not trust the Department.” Mother insisted that her only mental health issues were anxiety and depression.
Court’s findings
At the conclusion of the hearing, the juvenile court made express findings based on § 5-323 of the Family Law Article (“FL”) of the Maryland Code, which sets forth the factors a court must consider in ruling on a petition for guardianship. As
the court noted, the primary factor a court must consider is “the health and safety of the child[.]” FL § 5- 323(d). The other factors are arranged by topic and include various subfactors. Id. The topics are: (1) the services provided by the Department to achieve reunification of child and parent; (2) the parent’s efforts in adjusting his or her behaviors so that the child can return home; (3) the existence of certain aggravating circumstances, such as abuse or neglect; and (4) the child’s emotional well-being. FL § 5-323(d).
a.
Services offered by the Department
With respect to Mother, the court noted that she had been receiving a variety of services “over a period of time extending far beyond [R.N.]” The court noted that those services included home visits, substance abuse referrals, and mental health referrals. The court found that the extent and nature of the Department’s efforts was “appropriate.” The court also found that the services “had been made problematic by [Mother’s] outright distrust of the Department[.]” The court noted that Mother had refused to sign a service agreement with the Department.
As to Father, the court found that ascertaining the nature and extent of services offered to him was “problematic” because, while he was present during R.N.’s birth, he had not had any contact with R.N. since that date and had only recently been definitively established as R.N.’s father. The court also noted that Father had been incarcerated or in rehabilitation for a significant portion of that time. The court concluded: “I think the Department has offered him services.” The court noted that Father claimed that he had contacted the Department and left messages. The court determined that to be “an open question[.]” The court noted that Father and the Department had not entered into a service agreement due to Father’s issues in connecting with the Department. The court found that Father’s “failure to see [R.N.]” was “indicative of his falling down on the job as far as trying to work with [the Department] in that regard.”
b. Parents’ efforts toward reunification
The court noted that R.N. was two and a half years old and had been in placement for almost his entire life. The court noted that, while Mother had regularly visited with R.N. following his placement, she had not visited with him in over a year. The court found that Mother was “both combative and uncooperative” and that she had refused to sign any agreements or releases of information. The court found that Mother’s inability and lack of desire to cooperate with the Department made it unlikely that additional services would make a difference. The court found that there was no evidence Mother contributed to R.N. financially, but recognized that there was little to no evidence that Mother had been gainfully employed since R.N.’s birth.
As to Father, the court noted that Father had never visited with R.N. The court found that, while there had been “some phone calls back and forth” between Father and the Department, there had been “zero follow through” on the part of Father. As with Mother, the court found that there was no evidence that Father contributed to R.N. financially or that he had been gainfully employed since R.N.’s birth. The court found
that there was no evidence that Father suffered from a specific disability. The court did note, however, that Father would be in a treatment facility for six months to a year and that, consequently, Father would be unable to care for R.N. for at least another six months.
c. The existence of certain aggravating circumstances
The court found that it did not have any direct evidence of abuse or neglect. The court did note that Mother’s two other children were no longer in her care. The court also noted that Mother had tested positive for drugs at R.N.’s birth. The court found that Father had been convicted of second-degree assault and had been incarcerated.
d. The child’s emotional well-being
The court found that R.N. had “blended very nicely” with the Foster Parents. The court found that the evidence suggested that R.N. was “thriving and doing extraordinarily well[.]” The court noted that R.N.’s sibling, H.N., was also under the care of the Foster Parents. The court noted that R.N.’s current home was, according to Ms. Malphrus, “the only home he’s known.” The court concluded that severing that relationship would be “deleterious to [R.N.’s] psyche in pretty much every single way[.]”
Court’s ruling
Based on those findings, the juvenile court granted the Department’s guardianship petition and terminated Mother’s and Father’s parental rights. The court concluded that there were “exceptional circumstances” that made terminating the parental rights in R.N.’s best interest. The court found that R.N. had bonded well with the Foster Parents, that he was thriving in their care, and that they appeared to be a good long-term resource for R.N. The court noted that Father had “zero contact” with R.N. “other than the first few days of his life” and that Father would not be available as a resource for at least another six months to a year. The court noted that Mother had not seen R.N. in a year, and found that Mother had “refused to make any changes” and had “not made the sacrifices” necessary to make reunification viable. The court noted that neither parent had shown the ability to provide for R.N. The court found that the “lack of permanency” in R.N.’s life was detrimental to his best interest.
The court also found that both parents were unfit to remain in a parental relationship with R.N. The court noted that Mother had exhibited “a complete unwillingness” to work with the Department and had, as a result of her distrust of the Department, refused to visit with R.N. The court found that Mother’s behavior at her visits with R.N., which included “screaming in the child’s face” and “making things difficult on the child[,]” was evidence that Mother viewed R.N. like “a property right[.]” As to Father, the court found that the finding of unfitness was primarily due to Father’s lack of contact with R.N. The court also found that, while Father’s incarceration made contact with R.N. difficult, Father’s behavior that caused the incarceration was “well within his control[.]” The court found that Father’s failure in that regard “put him in a position where he’s not a fit parent for this child.”
DISCUSSION
Parties’ contentions
Mother and Father have each filed an appeal from the juvenile court’s order terminating their parental rights. Although each party presents distinct arguments, both raise the same general contention, namely, that the court erred in terminating their respective parental rights.
The Department argues that the court acted within its broad discretion in reaching its decision. The Department contends that the court properly considered the relevant statutory factors and correctly found that severing the parental relationship was in R.N.’s best interest.
As discussed in greater detail below, we hold that the juvenile court did not err in terminating Mother’s and Father’s parental rights. Following that discussion, we will address Mother’s and Father’s individual arguments.
Standard of review
“‘Maryland appellate courts apply three different but interrelated standards of review’ when reviewing a juvenile court’s decisions at the conclusion of a termination of parental rights proceeding.” In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (quoting In re Adoption/Guardianship of Cadence B., 417 Md. 146, 155 (2010)). First, any factual findings made by the court are reviewed for clear error. Id. Second, any legal conclusions made by the court are reviewed de novo. Id. Finally, if the court’s ultimate conclusion is “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.” In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010) (quotation marks and citations omitted). “A decision will be reversed for an abuse of discretion only if it is ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re J.J., 231 Md. App. 304, 345 (2016) (further quotation marks and citation omitted) (quoting In re Yve S., 373 Md. 551, 583-84 (2003)).
Analysis
“Parents have a fundamental right under the Fourteenth Amendment of the United States Constitution to ‘make decisions concerning the care, custody, and control of their children.’” In re C.E., 464 Md. at 48 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). Moreover, “there is ‘a presumption of law and fact [] that it is in the best interest of children to remain in the care and custody of their parents.’” In re Adoption/Guardianship of H.W., 460 Md. 201, 216 (2018) (quoting In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007)). Nevertheless, parental rights are not absolute, and the presumption in favor of preserving those rights may be rebutted “‘by a showing that the parent is either unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest.’” Id. at 217 (quoting In re Rashawn H., 402 Md. at 498). “When it is determined that a parent cannot adequately care for a child, and efforts to reunify the parent and child have failed, the State may intercede and petition for guardianship of the child pursuant to its parens patriae authority.” In re C.E., 464 Md. at 48. “The grant of
guardianship terminates the existing parental relationship and transfers to the State the parental rights that emanate from a parental relationship.” Id.
Before terminating parental rights, the juvenile court must consider the factors set forth in § 5-323(d) of the Family Law Article of the Maryland Code. In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 48 (2017). Under that statute, “a juvenile court shall give primary consideration to the health and safety of the child and consideration to all other factors needed to determine whether terminating a parent’s rights is in the child’s best interests[.]” FL § 5-323(d). Those “other factors” are: (1) the Department’s efforts in providing services, including the extent, nature and timeliness of those services and the extent to which the Department and parent had fulfilled their obligations under a service agreement; (2) the parent’s efforts at reunification, including the extent to which the parent had maintained contact with the child and the Department, the parent’s contribution to the child’s care, the existence of a parental disability that would make the parent consistently unable to care for the child, and whether additional services would make it feasible for the child to be returned to the parent’s care within 18 months of placement; (3) certain aggravating circumstances, such as whether the parent had abused or neglected the child, whether the mother or child had tested positive for a drug at birth, whether the parent had been convicted of a crime of violence against the child or other parent, and whether the parent had involuntarily lost parental rights to the child’s sibling; and (4) the child’s emotional well-being, including the child’s feelings toward the parent and significant others, the child’s adjustment to their current placement, the child’s feelings about severing the parental relationship, and the impact that such an act would have on the child’s well-being. FL § 5-323(d)(1)-(4). If, after considering those factors, the 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[,]” the court may terminate the parental relationship and grant guardianship of the child to the Department. FL § 5-323(b).
Here, the juvenile court considered and discussed each of the above factors and made specific findings for both Mother and Father. As to the Department’s efforts in providing services, the court found that Mother had been receiving “appropriate” services for several years, including substance abuse and mental health referrals, and that the Department’s efforts were hindered by Mother’s refusal to sign a service agreement or work with the Department. For Father, the court found that ascertaining the nature and extent of services was problematic due to Father’s lack of communication with the Department. The court nevertheless concluded that the Department had “offered him services.” The court also concluded that Father’s “failure to see [R.N.]” was “indicative of his falling down on the job as far as trying to work with [the Department] in that regard.” The court found that, while Father’s incarceration made contact with R.N. difficult, the behavior that caused the incarceration was “well within his control[.]” The court found that Father’s failure in that regard “put him in a position where he’s not a fit parent for this child.”
As to the parent’s efforts at reunification, the court noted that Mother had not visited with R.N. in over a year and that Father had “zero contact” with R.N. “other than the first few days of his life.” The court found that neither party had contributed to R.N. financially or shown the ability to be consistently employed. The court also found that neither party was likely to benefit from additional services. The court found that Mother had been “combative and uncooperative” with the Department, that she had “refused to make any changes[,]” and that she had “not made the sacrifices” necessary to make reunification viable. As to Father, the court found that he had exhibited “zero follow through” in availing himself of available services. The court found that Father’s failure in that regard “put him in a position where he’s not a fit parent for this child.” The court also noted that Father would be in a treatment facility for six months to a year and that, consequently, he would be unable to care for R.N. for at least that amount of time.
As to the existence of aggravating circumstances, the court noted that Mother’s two other children, N.N. and H.N., were no longer in her care. The court also noted that Mother had tested positive for drugs at R.N.’s birth and that Father had been convicted of second- degree assault against Mother.
As to R.N.’s emotional well-being, the court found that he had “blended very nicely” with the Foster Parents and that he was “thriving and doing extraordinarily well[.]” The court noted that R.N.’s sibling, H.N., was also under the care of the Foster Parents and that the Foster Parents appeared to be a good longterm resource for R.N. The court found that severing R.N.’s relationship with the Foster Parents would be “deleterious to [R.N.’s] psyche in pretty much every single way[.]” The court found no such effect with respect to severing the parental relationship. The court found, rather, that R.N. “has really no ties” to Father and “very little ties” to Mother. The court found that the “lack of permanency” in R.N.’s life was harmful to his best interest.
Based on those findings, the court applied the clear and convincing standard and concluded that there were exceptional circumstances that made continuing Mother’s and Father’s parental rights detrimental to R.N.’s best interest. The court also concluded that both parents were unfit to remain in a parental relationship with R.N.
Against that backdrop, we hold that the court did not err in terminating Mother’s and Father’s parental rights. The court methodically and comprehensively analyzed the requisite statutory factors, made findings based on those factors that were not clearly erroneous, and applied the correct legal standard in reaching its ultimate conclusions. Moreover, the court’s findings provided ample evidence from which it could conclude that terminating Mother’s and Father’s parental rights was in R.N.’s best interest. Despite the Department’s approximately six-year effort to provide reasonable services to Mother since the birth of her first child, Mother continually exhibited an overall unwillingness to make the necessary changes and to avail herself of even the most basic services to facilitate reunification between her and R.N. Father exhibited a similar apathy, waiting until R.N. was 18 months old before contacting the Department, even though Father was present during R.N.’s birth and believed that he was R.N.’s father. Throughout the
entirety of R.N.’s life, virtually all of which was spent in the care and custody of the Foster Parents, Mother and Father contributed virtually nothing financially, physically, or emotionally to support him. In the year leading up to the guardianship hearing, neither parent visited with R.N., and neither parent made any discernible effort to communicate with the Department or foster a meaningful relationship with R.N. By the time of the guardianship hearing, R.N., then two and a half years old, had practically no relationship or emotional ties with Mother and Father. Meanwhile, R.N. was thriving in the Foster Parents’ care, and he had developed such a strong bond with them that the court found that severing that relationship would be “deleterious to [R.N.’s] psyche in pretty much every single way[.]”
Given those circumstances, we are convinced that the court acted within its discretion in finding Mother and Father unfit to remain in a parental relationship with R.N. and in finding that there were exceptional circumstances that made continuing the parental relationship detrimental to R.N.’s best interests.
Mother’s arguments A.
Mother argues that the court erred in finding her unfit. Mother insists that she “had addressed the [D]epartment’s concerns” leading up to the guardianship hearing and that the court’s basis for finding her unfit “was entirely connected to her ‘complete unwillingness’ to work with the [D]epartment and her ‘total mistrust.’” Mother argues that the court’s finding was erroneous because it ignored “any harm or danger to [R.N.]” and “her ability to complete the requested tasks.” Mother also argues that her “distrust” of the Department was reasonable because the Department “constantly tried to monitor, invade, and control her life without providing any meaningful help in reunifying with [R.N.]” Finally, Mother argues that, even if she could have been considered unfit at the time of the hearing, the Department was required, and failed, to prove that she was unable to parent effectively in the near future.
We are not persuaded by Mother’s arguments.2 The Department’s primary concerns regarding Mother’s fitness as a parent were her mental health deficits, which purportedly included schizoaffective disorder accompanied by auditory hallucinations, and her failure to exhibit appropriate parenting behavior. The Department made those concerns clear to Mother from the very beginning, and the Department also made clear that Mother needed to work with the Department to ensure that the concerns were being addressed. Rather than recognizing those concerns and accepting the Department’s assistance in rectifying the deficiencies that necessitated the Department’s intervention in the first place, Mother did the opposite, refusing virtually all of the Department’s assistance and requests for information and exhibiting increasingly erratic and troublesome behavior throughout her visits with R.N. Mother’s refusal to make changes in her behavior and her refusal to work with the Department was clearly to the detriment of R.N., and Mother ultimately stopped visiting with R.N. and stopped responding to communications from the Department in May 2022. When the guardianship hearing was held in May 2023, Mother had not seen R.N. in a year, and the only communication she had with the Department during that time was an email she sent
in November 2022 in which she “demanded weekly and unsupervised visitation” with R.N. Even at the hearing, Mother refused to accept any responsibility for her behavior, insisting that the Department was “always start[ing] fights[.]” Mother also refused to accept the Department’s mental health assessment, insisting instead that she suffered only from anxiety and depression. The juvenile court therefore had ample evidence to find that Mother was presently unfit and that she was unlikely to be able to parent effectively in the future.
B.
Mother next argues that the Department failed to offer or provide appropriate services. Mother notes that the Department had alleged, in 2019, that she suffered from “cognitive limitations[.]” Thus, Mother argues, “the [D]epartment’s reasonable efforts should have included services to accommodate those needs.” Mother insists that the Department “plainly did not initiate personalized or tailored services . . . related to her low cognitive functioning[.]”
We are not persuaded by Mother’s claims. To be sure, when a juvenile court considers the services provided by the Department, the court should be mindful that a reasonable level of those services must be “designed to address both the root causes and the effect of the problem[.]” In re Rashawn H., 402 Md. at 500. That said, the Department’s efforts “need not be perfect, but are judged on a case-by-case basis.” In re H.W., 460 Md. at 234 (internal citation omitted). Moreover, the Department “need not expend futile efforts on plainly recalcitrant parents[.]” In re James G., 178 Md. App. 543, 601 (2008). In short, although the Department must provide reasonable assistance in helping a parent ameliorate the impediments to reunification, the Department’s “duty to protect the health and safety of the children is not lessened and cannot be cast aside if the parent, despite that assistance, remains unable or unwilling to provide appropriate care.” In re Rashawn H., 402 Md. at 500-01.
Here, as noted, the primary impediments to reunification were Mother’s mental health deficits and her failure to exhibit appropriate parenting behavior, the latter of which was exacerbated by Mother’s cognitive limitations. For years the Department sought to work with Mother’s mental health provider to assess how her mental health issues affected her parenting abilities, yet Mother consistently and categorically refused to give the Department access. Over the same period, the Department provided various resources to teach Mother appropriate parenting behaviors, including installing a parent aide who would model safe parenting practices during Mother’s visits with R.N. As with the Department’s requests for mental health information, Mother flatly refused to comply, oftentimes fighting with the parental aide and, on one occasion, even destroying property when the aide attempted to assist Mother during a visit. After Mother stopped visiting with R.N. in May 2022, the Department attempted to contact Mother to provide services, yet Mother failed to respond. It is clear, therefore, that whatever additional efforts Mother believes were lacking would have been futile.
C.
Mother’s final claim is that the court erred in finding that there were exceptional circumstances that made severing the
parental relationship in R.N.’s best interest. Mother argues that the court erred in relying on her lack of contact with R.N. over the previous year because the passage of time alone is not sufficient to constitute exceptional circumstances. Mother also argues that the court erred in focusing on R.N.’s need for permanency. Finally, Mother contends that the court’s other considerations, which included Mother’s failure to establish her own housing and the fact that R.N.’s sibling also lived with the Foster Parents, did not constitute exceptional circumstances.
We remain unpersuaded. “In examining whether an exceptional circumstance exists, a juvenile court should look to whether there is a reason to terminate the parental relationship because the best interest of the child is not served through continuing the parental relationship.” In re C.E., 464 Md. at 54. That is precisely what the court did here, and there is no indication that the court improperly relied on any one factor or set of factors. As discussed, the court’s decision was reasonable in light of the evidence presented, and we see no reason to disturb that decision.
Father’s arguments
A.
Father argues that the court erred in failing to make specific findings as to the extent, nature, and timeliness of services offered to Father by the Department. Father argues that the court’s lone statement that the Department had “offered him services” was insufficient.
Father is mistaken. Although the court did state that the Department had “offered him services,” the court explained that the extent and nature of those services was difficult to ascertain given that Father had only recently been definitively established as R.N.’s father. The court noted that Father had also been incarcerated or in rehabilitation for a time, and that Father had failed to connect with the Department since being identified as R.N.’s father.3 The court concluded that Father had “fall[en] down on the job as far as trying to work with [the Department] in that regard.” Thus, the court did make specific findings as to the extent, nature, and timeliness of services offered to Father.
B.
Father next argues that the court clearly erred in finding that the Department offered him meaningful services and in finding that he failed to maintain contact with the Department. Father notes that those findings were based largely on Ms. Malphrus’s testimony, which Father claims was not credible or supported by the Department’s records. Father also claims that he “presented credible testimony that he called on various occasions and left messages.”
Again, Father is mistaken. As Father readily admits, the disputed findings were supported by Ms. Malphrus’s testimony. The court, as the fact-finder, had the right to accept that testimony as credible and to reject any evidence, including Father’s self-serving testimony, that may have contradicted Ms. Malphrus’s testimony. See State v. Brooks, 148 Md. App. 374, 398-99 (2002) (explaining that the “clearly erroneous” standard is concerned “not with the frailty or improbability of the evidentiary base, but with the bedrock non-existence of an evidentiary base”).
C.
Father next claims that the court erred in weighing the lack of a service agreement against him. We disagree. In discussing the statutory factor concerning whether Father and the Department had fulfilled their obligations under a service agreement, the court noted that there was no service agreement due to “issues with regard to [Father] connecting with [the Department].” The court went on to conclude that, while there had been “a back and forth on that[,]” Father’s failure to see R.N. was “indicative of his falling down on the job as far as trying to work with [the Department] in that regard.”
Clearly, the court was not weighing the lack of a service agreement against Father. Rather, the court merely noted that no service agreement had been entered into due to Father’s failure to communicate with the Department. If anything, it was that failure of communication that the court weighed against Father.
D.
Father next claims that the court erred in finding that he was at fault for failing to maintain regular contact with R.N. since R.N.’s birth. Father contends that he should not have been penalized for the time prior to May 2022, before he was definitively established as R.N.’s father. Father contends further that his failure to see R.N. after May 2022 was not entirely his fault given that the Department’s efforts at contacting him and providing him services were “dismal.”
Again, we are unpersuaded. Father testified that he was present “the whole way” during Mother’s pregnancy with R.N., that he was present in the hospital when R.N. was born, and that he intended to be R.N.’s father. Father also testified that he “had an assumption” that he was R.N.’s father and that he “loved him like he was my own even then.” Despite those admissions, Father made no effort to visit with R.N. or contact the Department from November 2020, when R.N. was placed in shelter care, until May 2022, when Father was definitively established as R.N.’s father. Thus, the court had a solid basis on which to fault Father for failing to visit with R.N. prior to May 2022.
As to Father’s failure to maintain contact with R.N. after May 2022, the court credited Ms. Malphrus’s testimony, which established that, aside from a few initial phone conversations following the establishment of his paternity, Father failed to connect with the Department despite repeated attempts by the Department to contact Father and provide services. Thus, the court likewise had a solid basis on which to fault Father for failing to visit with R.N. after May 2022.
E.
Father next claims that the court “erred by finding that [his] participation in drug and mental health rehabilitation was tantamount to a disability and rendered him unable to care for [R.N.]” The court made so such finding. In discussing the statutory factor regarding whether Father had a disability that rendered him consistently unable to care for R.N., the court stated clearly: “I don’t really have testimony of a specific disability.” Although the court discussed Father’s ongoing participation in drug and mental health rehabilitation, the court did not find that it constituted a “disability.” Rather, the court was merely
noting that, due to Father’s participation in that program, he would be unable to care for R.N. for six months to a year.
F.
Father next claims that the court erred in finding that no additional services would likely bring about a lasting parental adjustment so that Father and R.N. could be reunited. Father again argues that he should not be penalized for the time prior to May 2022 and that the Department failed to make reasonable efforts to contact him after May 2022.
Father’s claims are not supported by the record. The specific statutory factor at issue states, in pertinent part, that a court must consider “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[.]” FL § 5-323(d)(2)(iv) (emphasis added). The statute further provides that the 18-month time frame may be extended if “the juvenile court makes a specific finding that it is in the child’s best interests to extend the time for a specified period[.]” Id.
At the time of the guardianship hearing, R.N. had been in placement for two and a half years, well beyond the 18-month time frame. The court expressly recognized that fact and found that extending the time limit was not in R.N.’s best interest. In so doing, the court found that the Department had attempted to provided services to Father and that Father had exhibited “zero follow through” in availing himself of those services. The court also noted that Father would be unable to care for R.N. for at least another six months after the guardianship hearing, which would mean that R.N.’s time in foster care would likely exceed three years. Given those circumstances, we cannot say that the court abused its discretion in finding that it was not in R.N.’s best interest to extend the 18-month time frame.
G.
Father next claims that the court erred in finding that he committed a crime of violence against Mother. Father notes that, under § 14-101 of the Criminal Law Article of the Maryland Code, a “crime of violence” includes first-degree assault but not second- degree assault. Father contends that, because he was only convicted of second-degree assault, the court erred in finding that he had committed a “crime of violence[.]”
Father is correct that, under the statutory factor in which a court must consider whether a parent has been convicted of a
“crime of violence” against the other parent, see FL § 5-323(d) (3)(iv), the statute defines “crime of violence” in the manner set forth by Father. FL § 5-101(d). Father is also correct that, when discussing that factor, the court noted that he had been convicted of second-degree assault against Mother. Nevertheless, we are not convinced that the court’s error, if any, warrants reversal. See Dep’t of Econ. & Emp. Dev. v. Propper, 108 Md. App. 595, 607 (1996) (“[T]he existence of an unsupported or otherwise erroneous finding of fact does not automatically warrant a reversal.”). That finding was one of many relied on by the court in reaching its overall determination that exceptional circumstances existed such that termination of Father’s parental rights was in R.N.’s best interest. And, as discussed, those other findings provided ample support for the court’s overall determination. Moreover, even if Father’s conviction did not constitute a “crime of violence” under the statute, the court was certainly permitted to consider Father’s criminal act against Mother in determining the existence of exceptional circumstances. See In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 564 (1994) (“[B]ehavior of the natural parent tending to show instability with regard to employment, personal relationships, living arrangements, and compliance with the law is also relevant to the existence of exceptional circumstances.”).
H.
Father next claims that the court erred in failing to make any findings about R.N.’s emotional ties with Father. Father argues further that, even if the court did make sufficient findings in that regard, the court failed to take into consideration the Department’s “patent failure” to provided services. Neither of Father’s claims has merit. The court did discuss R.N.’s emotional ties to Father. The court found that R.N. had “no ties” to Father and that Father was essentially a stranger to him. The court also considered the services offered by the Department and found that Father, not the Department, was at fault for any deficiencies in the services provided.
I.
Father’s final claim is that the court erred in finding him “unfit” and in finding “exceptional circumstances” to justify terminating his parental rights. In support, Father cites all his prior arguments. For the reasons previously discussed, we find neither error nor abuse of discretion and affirm the court’s judgment.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; COSTS TO BE PAID ONE-HALF BY MOTHER AND ONE-HALF BY FATHER.
FOOTNOTES
1 In his brief, Father asserts:
1. The trial court erred by failing to make specific findings as to the extent, nature and timeliness of services offered by DSS to Father to facilitate a reunion of the Child with Father.
2. The trial court’s findings that DSS offered meaningful services and that Father failed to maintain contact are clearly erroneous.
3. The trial court erred in weighing the lack of [a] service agreement against Father.
4. The trial court erred in finding that Father failed to maintain regular contact with the Child.
5. The trial court erred by finding that Father’s participation in drug and mental health rehabilitation was tantamount to a disability and rendered him unable to care for the Child for a long period of time.
6. The trial court erred by finding that no additional services would be likely to bring about a lasting parental adjustment so that the Child could be reunited with Father.
7. The trial court erred in finding that Father committed a crime of violence against Mother.
8. The trial court erred by failing to consider the feelings of the Child and emotional ties with the parents.
9. The trial court erred by finding that Father was unfit to remain Child’s parent and that exceptional circumstances existed that would make Father’s retention of custody rights detrimental to the Child.
10. Father adopts by reference all arguments presented by Appellant Mother.
2 Mother also claims that the court erred in relying on its finding that R.N. had a positive toxicology test at birth. Mother did not provide a record cite for that claim, and our review of the record revealed no such finding. At one point, the court did quote FL § 5-323(d)(3)(ii)(B), which states that one factor the court should consider is whether “the child tested positive for [a] drug as evidenced by a positive toxicology test[.]” Although the court referred to that factor as “relevant,” the court did not make any express finding that R.N. had in fact tested positive for a drug.
3 Born on November 20, 2020, R.N. was 28 months old at the time of the guardianship hearing. Although Father was present at R.N.’s birth, for 22 of the 28 months of R.N.’s life, Father was incarcerated.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s judgment of absolute divorce on the ground of adultery and its monetary award, rehabilitative alimony, and $1,500 in attorney’s fees to wife.
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.
C. Leister filed a complaint for absolute divorce in the circuit court on September 14, 2020 on the grounds of cruelty/ excessively vicious conduct. On September 25, 2020, J. Leister responded by filing a counter-complaint for absolute divorce on grounds of adultery and cruelty of treatment/ excessively vicious conduct. In her counter-complaint, J. Leister stated that she had “filed and received temporary spousal support and child support from a Pennsylvania Court on September 15, 2020.” C. Leister filed an answer to J. Leister’s counter-complaint and an amended complaint for absolute divorce.
The court held a merits trial on August 4 and August 5, 2021, and December 2 and December 29, 2022.5 C. Leister was represented by counsel at trial on August 4 and August 5, 2021, and he was self-represented at trial on December 2 and December 29, 2022. J. Leister was represented by counsel throughout trial.
This case arises from an order of the Circuit Court for Montgomery County granting Jordan Leister (“J. Leister”) a judgment of absolute divorce from Cody Leister (“C. Leister”) on the ground of adultery. The court also awarded J. Leister a monetary award, rehabilitative alimony, and $1,500 in attorney’s fees. On appeal, C. Leister presents the following questions for our review, which we have rephrased:1
I. Did the circuit court err or abuse its discretion in awarding J. Leister a divorce on the ground of adultery and in failing to award C. Leister a divorce on the grounds of cruelty and excessively vicious conduct?
II. Did the circuit court err in awarding J. Leister rehabilitative alimony?
III. Did the circuit court err or abuse its discretion in awarding J. Leister a monetary award representing half the value of C. Leister’s Thrift Savings Plan (“TSP”)?2
IV. Did the circuit court err or abuse its discretion in entering an order, by agreement of the parties, regarding the parties’ 2006 Jeep?
V. Did the circuit court abuse its discretion in awarding attorney’s fees to J. Leister?
Finding no error or abuse of discretion, we affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on December 28, 2010.3 The parties have three minor children together, “A.,” “D.” and “R.”4 During the marriage, the parties resided in Gaithersburg, Montgomery County. The parties separated in July of 2020.
J. Leister testified that she and the children left the family home in May of 2020 after C. Leister informed her that he had not been in love with her for two years. J. Leister and the children returned to the family home in Maryland after C. Leister assured her that he wanted to stay together and work on their marriage. J. Leister became suspicious of C. Leister, however, when she noticed that he had spent “a lot of money” in Upper Marlboro, Maryland, where he claimed to be helping a male friend remodel his home. C. Leister had also mentioned to J. Leister that he had been working with a woman named Katherine Rivera (“Rivera”). J. Leister discovered through an internet search that Rivera lived in Upper Marlboro.
J. Leister also learned that C. Leister had used a guest pass from the parties’ family gym membership at One Life Fitness in Rockville to bring Rivera to the gym. In July of 2020, J. Leister and the children were spending a weekend at her sister’s house when J. Leister noticed charges on the parties’ bank account for a late-night dinner and breakfast in Upper Marlboro. J. Leister confronted C. Leister about the charges, and he responded by asking her if she expected him to “just sit home alone.” J. Leister stated that she had determined that C. Leister was involved in a romantic relationship with Rivera when he began spending more of his free time with Rivera than he did with her and their children. On July 30, 2020, J. Leister and the children left the marital home and moved in with her family in Pennsylvania.
J. Leister testified that she had experienced PTSD, generalized depression, anxiety, and stress related to the dissolution of her marriage. J. Leister was employed part-time as a substitute food service worker in the local school district, earning $12.50 per hour on an as-needed basis. J. Leister had her GED and her work history consisted of working at a gas station and an ice
cream shop. J. Leister was paying rent of $600 per month at her residence at that time in Pennsylvania and receiving $1166 per month in child support and $883 per month in spousal support.
At the time of trial, C. Leister was employed by a biomedical contractor in Fort Detrick, earning an annual salary of $79,000. He previously served in the U.S. Navy for fourteen years, concluding his service on August 26, 2022.
C. Leister testified that J. Leister had neglected their children by failing to cook for them, failing to encourage their development, and failing to help them brush their teeth. C. Leister blamed J. Leister for the condition of the family’s home, which he described as “filthy and dirty.” According to C. Leister, he had asked J. Leister to keep the house clean “hundreds of times” but “it never happened.” He testified that the parties received an eviction notice due to the poor condition of the apartment and the presence of dog feces on the carpet, which he eventually cleaned.
According to C. Leister, J. Leister “threaten[ed] [him] all the time.” C. Leister had filed a petition for a protective order against J. Leister, alleging that she had threatened him and contacted his supervisors in the military regarding his extra-marital affair with Rivera, but the petition was denied. C. Leister testified that he began helping Rivera remodel her home in July 2020, after he told J. Leister that he did not love her anymore. C. Leister also stated that he had been going to the gym with Rivera prior to J. Leister moving out of the home.
On January 19, 2023, the court delivered an oral opinion as to the divorce and the division of marital property. The court granted J. Leister an absolute divorce on the ground of adultery. With respect to assets, the court awarded J. Leister a monetary award in the amount of $9,308. The court ordered that C. Leister remove a 2006 Jeep from J. Leister’s home with 60 days, and if he failed to do so, the court ordered that he transfer title of the vehicle to J. Leister. The court awarded J. Leister rehabilitative alimony in the amount of $800 per month for a period of two years. The court also ordered C. Leister to pay J. Leister attorney’s fees in the amount of $1,500. C. Leister filed this appeal.
MOTION TO DISMISS
J. Leister argues that this appeal should be dismissed because C. Leister failed to set forth a standard of review in his brief and failed to provide an appendix to his brief, in violation of Maryland Rules 8-504(a)(5) and (b). J. Leister asserts that C. Leister’s brief relies on statements not contained in the transcripts, proceedings in Pennsylvania not contained in the record, and arguments not raised at the divorce trial.
C. Leister’s brief included a standard of review, but no appendix.6 C. Leister filed a “Record Extract” that contained some, but not all of the transcripts of the divorce trial. Maryland Rule 8-504(c) provides, in part, that “[f]or noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case ”
This Court has “recognize[d] that dismissing an appeal on the basis of an appellant’s violations of the rules of appellate procedure is considered a ‘drastic corrective’ measure,” and resolving an appeal on the merits “is always a preferred alternative.” Rollins v. Capital Plaza Associates, L.P., 181 Md. App.
188, 202 (2008) (first quoting Brown v. Fraley, 222 Md. 480, 483 (1960); and then quoting Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 348 (2007)). In the absence of prejudice to the appellee or a deliberate violation of the rules, we ordinarily will not dismiss an appeal. Rollins, 181 Md. App. at 202–03 (citation omitted).
We deny the motion and address the merits of C. Leister’s arguments to the extent that they were preserved in the trial court. Where, however, C. Leister relies on documents not included in the circuit court record, or evidence not admitted at trial, those arguments shall not be addressed. See Md. Rule 8-131(a) (“[o]rdinarily, an appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]”).
DISCUSSION
I. The Circuit Court Did Not Err in Granting J. Leister A Divorce On the Ground of Adultery.
“Pursuant to Maryland Rule 8-131(c), where, as here, an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.” Friedman v. Hannan, 412 Md. 328, 335 (2010). We review a trial court’s factual findings under the clearly erroneous standard of review. Id. We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Boemio v. Boemio, 414 Md. 118, 124 (2010). A trial court’s legal conclusions, however, we review de novo. Jackson v. Sollie, 449 Md. 165, 174 (2016).
C. Leister contends that the circuit court erred in awarding J. Leister a divorce on the ground of adultery and in failing to award him a divorce on the grounds of cruelty and excessively vicious conduct. C. Leister’s argument on the issue of adultery consists of a single statement that “[J. Leister] failed to prove any adulterous activity on [his] part during [the] marriage. In response, J. Leister asserts that the circuit court correctly found that C. Leister committed adultery and that he failed to establish any “ground or fact” to demonstrate that the court’s decision was clearly erroneous.
“In Maryland, the permissible grounds for divorce are governed by statute.” Flanagan v. Flanagan, 181 Md. App. 492, 509 (2008). Sections 7-103(a)(1) and (6) of the Family Law Article (“FL”) of the Maryland Code provided, at the time of trial, that a court may decree an absolute divorce on the grounds of adultery and cruelty of treatment.7 Under the version of Family Law section 7-103 in effect at the time of trial, a party seeking a divorce of the ground of adultery was required to produce evidence of both “1) a disposition on the part of the alleged adulterer and the paramour to commit adultery and 2) an opportunity for them to do so. Wright v. Phipps, 122 Md. App. 480, 483 (1998). Evidence of adultery “need only be circumstantial by virtue of the fact that because of ‘the clandestine nature of the offense, it is rarely possible to obtain evidence of the commission of the act by the testimony of eyewitnesses.’” Id. (quoting Laccetti v. Laccetti, 245 Md. 97, 102 (1967)); see also Breault v. Breault, 250 Md. 173, 178 (1968) (noting that circumstantial evidence is sufficient to establish adultery).
J. Leister testified that she developed suspicions that C. Leister and Rivera were involved in a romantic relationship when he began spending time in Upper Marlboro, where Rivera lived. J. Leister also noticed bank charges for restaurants in Upper Marlboro.
J. Leister confronted C. Leister about the charges and he did not deny them.
In issuing its opinion, the circuit court stated that C. Leister had worked with Rivera in the same department in the U.S. Navy. The court noted that C. Leister admitted that he was living with Rivera as he had “for some time.” With respect to his living arrangement, C. Leister did not answer directly as to whether he paid rent, responding that he “just gave [Rivera] a bunch of money.” The court noted that there was no lease agreement between C. Leister and Rivera, and C. Leister drove one of her cars in his hour-long commute to work. The court noted that C. Leister had testified on cross-examination that he began seeing Rivera after J. Leister left the home. The court found that “[r]egardless of the exact date that [C. Leister] began to see Ms. Rivera,” there was “plenty of evidence” that C. Leister and Rivera had engaged in an extramarital affair.
As the court observed, the parties had very different views as to what caused the demise of the marriage. Husband had asserted that J. Leister “was not very good with the kids, that [she] was causing trouble at his command, and state[d] that she left the marriage.” J. Leister stated that C. Leister was “controlling and verbally abusive” and “she left the marital home because he was engaging in an affair with his . . . current significant other.”
The trial court is tasked with resolving conflicts in the evidence, assessing the credibility of the witnesses, and making inferences based on credibility. See Frazelle- Foster v. Foster, 250 Md. App. 52, 84 (2021) (noting that “[e]valuation of the evidence lies within the sound discretion of the trial court” and the court must determine whether the evidence supports the grant of a divorce on the grounds requested); Smith v. State, 415 Md. 174, 185 (2010) (“Because the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.”). Based on the evidence presented, the circuit court’s conclusion that the evidence supported the inference that C. Leister had engaged in an extramarital affair with Rivera was not clearly erroneous.
The circuit court was not required to make findings on the record as to C. Leister’s claim that the demise of the marriage was due to J. Leister’s negligence and cruelty of treatment. In cases where, as here, the parties asserted multiple grounds for divorce, the court was required to find that the evidence supported only one ground to grant an absolute divorce. See Welsh v. Welsh, 135 Md. App. 29, 38 (2000) (“It is ultimately up to the court, based on its fact finding, to declare the grounds for divorce. It is not reasonable that the court be obligated to grant the divorce on the grounds requested when the judge is more persuaded that it is more likely than not that other grounds for the divorce are more justified.”).
III. The Circuit Court Did Not Err In Awarding J. Leister Rehabilitative Alimony.
C. Leister argues that Pennsylvania “maintains and retains jurisdiction” over alimony. He contends that “[o]n January 10, 2023, the parties came to an agreement that [J. Leister] would receive alimony pendente in the amount of $362.23, and signed the agreement in [t]he Court of Common Pleas [sic] of [Wayne] County, Pennsylvania, Domestic Relations Office.” J. Leister simply argues in response that the circuit court did not err in awarding her alimony.
On appeal, C. Leister filed a copy of a modified child support and “spousal/alimony pendente lite” order from the Court of Common Pleas of Wayne County, Pennsylvania dated January 10, 2023, and an “agreement” regarding child support dated January 9, 2023. At trial, C. Leister did not argue that Maryland lacked jurisdiction to award alimony, nor did he enter evidence of a spousal support/alimony pendente lite order from Pennsylvania. Nonetheless, subject matter jurisdiction can be raised for the first time on appeal. See Rule 8-131(a) (“The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by an appellate court whether or not raised in and decided by the trial court.); see also Francz v. Francz, 157 Md. App. 676, 688 (2004) (distinguishing between subject matter jurisdiction, which may be raised at any time, and personal jurisdiction, which may be waived).
The Pennsylvania order requiring C. Leister to pay alimony pendente lite was entered on January 10, 2023, fifteen days prior to the judgment of absolute divorce and order of rehabilitative alimony entered in this. The Divorce Code of Pennsylvania authorizes a court to order “reasonable alimony pendente lite, spousal support and reasonable counsel fees and expenses.” 23 Pa.C.S.A. § 3702(a) (2018). “Alimony pendente lite is based on the need of one party to have equal financial resources to pursue a divorce proceeding, when, in theory, the other party has major assets ‘which are the financial sinews of domestic warfare.’” Spink v. Spink, 619 A.2d 277, 279 (Pa. Super. Ct. 1992) (quoting DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa. Super. Ct. 1991)). In Pennsylvania, “alimony pendente lite terminates at the time of divorce.” Id. C. Leister further contends that the agreement attached to the January 10, 2023
Pennsylvania order controls the amount of alimony he owes. The agreement is dated January 9, 2023 and states: “I, [J. Leister], agree to a monthly CHILD SUPPORT OBLIGATION of $1728.08 with a monthly ARREARS OBLIGATION OF 50 EFFECTIVE 12-5-22.”
Family Law section 11-101(c) provides: “If a final disposition as to alimony has been made in an agreement between the parties, the court is bound by that agreement as the agreement relates to alimony.” Because the parties’ divorce action, including J. Leister’s request for indefinite alimony, was pending in Maryland, it is clear that the parties’ January 9, 2023 agreement was not a “final disposition” as to alimony.
The Maryland judgment of absolute divorce awarding J. Leister rehabilitative alimony for two years is a final order, resolving the competing divorce complaints of the parties. In Pennsylvania, a divorce granted in another jurisdiction is enforceable through the Full Faith and Credit clause of the
United States Constitution. See Keating v. Keating, 855 A.2d 80, 84 (Pa. Super. Ct. 2004). The judgment of absolute divorce is presumptively valid in Pennsylvania because it conclusively adjudicated the issue of alimony. See id. at 84 (noting that a foreign divorce judgment is “presumptively valid and is a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded.”). Accordingly, the Pennsylvania pendente lite award of alimony terminated upon entry of the divorce judgment in Maryland on January 25, 2023. See Spink, 619 A.2d at 279.
III.
The Circuit Court Did
Not
Err in Awarding J. Leister a Portion of C. Leister’s TSP Account.
C. Leister argues that the circuit court erred in awarding J. Leister half of the balance of his TSP account because “there was an auto force out and the account was closed.” J. Leister asserts that the court did not err in its determination to split the TSP.
In resolving disputes as to the ownership of personal property upon divorce, the court must first identify which property is marital, and value it. See FL §§ 8-203, 8-204; Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). “Marital property” consists of “property, however titled, acquired by 1 or both parties during the marriage.” FL § 8- 201(e)(1). The court must determine whether the division of marital property, including investment accounts, according to its title would be inequitable, and if so, the court may grant a monetary award to either party to adjust that inequity. Abdullahi, 241 Md. App. at 405–06; see FL § 8-205(a). If the court concludes from its analysis that a monetary award is appropriate, the court must consider factors set forth in FL §8-205(b) in determining the amount of the award. Abdullahi, 241 Md. App. at 406; see FL § 8-205(b).
After reviewing the relevant statutory factors, the court may transfer ownership of an asset, including an investment account or deferred compensation plan, to one or both spouses, grant a monetary award, or both. FL § 8-205(a). The function of a monetary award “is to achieve equity between the spouses where one spouse has a significantly higher percentage of the marital assets titled [in] his [or her] name.” Long v. Long, 129 Md. App. 554, 577–78 (2000). The trial court’s decision as whether to grant a monetary award, and the amount of the award, are reviewed for an abuse of discretion. Flanagan, 181 Md. App. at 521.
The circuit court noted that C. Leister’s “Exhibit 8 shows that his TSP balance at the end of November was $18,789.” With respect to the monetary award, the court explained: “The [c]ourt finds that [C. Leister] has $19,289 in marital assets of 401k and 2006 Jeep. The [c]ourt will order [C. Leister] to pay the defendant $9,308 in the monetary award, which is approximately half of the 401k.”
The court’s ruling makes clear that the court ordered C. Leister to pay J. Leister $9,308, representing her portion of the value of the parties’ total marital property. Because the court did not assign to J. Leister a portion of the actual TSP account, the status of that account, whether open or closed, did not affect C. Leister’s obligation to pay J. Leister the monetary award of $9,308.
IV. C. Leister’s Argument Regarding the 2006 Jeep Is Not Preserved for Our Review.
C. Leister argues that the circuit court erred in failing to enforce a prior agreement reached by the parties “at the end of 2020” and their counsel regarding their 2006 Jeep. C. According to C. Leister, “both parties agreed through text, and through counsel, that the 2006 Jeep that [C. Leister] has the title to would be signed over to [J. Leister] upon returning” certain items of personal property to C. Leister. C. Leister posits that “[t]here was an offer and acceptance in formation of” an enforceable contract as shown by the text messages and email. In support of his argument, C. Leister attached to his brief copies of text messages8 between the parties and an email9 pertaining to the Jeep. J. Leister argues that C. Leister did not introduce evidence of any agreement regarding the Jeep at trial.
At trial, C. Leister testified that J. Leister had asked him if he would “sign over the title to the Jeep which we had already agreed that I would once she return[ed] [his] belongings” mainly consisting of “survival gear” and guns. J. Leister testified that she had previously asked C. Leister for the title to their 2006 Jeep. Before issuing its ruling, the following transpired regarding the 2006 Jeep:
THE COURT: The 2006 Jeep. So, [C.] Leister, do you want the Jeep?
[C. LEISTER]: (Unintelligible.)
THE COURT: [The Jeep] can’t just sit in the driveway and just rust, okay? So, I’m going to order, if it’s okay with you, that you got 60 days to go pick it up; or you send [J. Leister] the paperwork and sign it over to her. Does that seem reasonable to you?”
[C. LEISTER]: As long as I can get all my stuff back, that’s, yeah, that’s fine.
THE COURT: Well, I’m not [ordering] that. This is 60 days to go pick up the truck, or you send the - - [title].
The court then incorporated its oral ruling into the judgment of absolute divorce, which provided the following regarding the 2006 Jeep:
ORDERED, that, upon agreement of the parties, [C. Leister] shall pick up the 2006 Jeep from [J. Leister’s] home . . . within sixty (60) days of this Order; and it is further
ORDERED, that [J. Leister] shall communicate, facilitate, and cooperate with [C. Leister] to coordinate removal of the 2006 Jeep from her home and [J. Leister] shall not obstruct [C. Leister] from removing this automobile; and it is further
ORDERED, that, upon agreement of the parties, if [C. Leister] does not pick up the 2006 Jeep from [J. Leister’s] home within sixty (60) days of this Order, [C. Leister] shall sign and forward a transfer of the title of the 2006 Jeep to [J. Leister] so that [J. Leister] may dispose of or sell the 2006 Jeep…
While there was brief testimony regarding the 2006 Jeep at trial, as indicated supra, C. Leister did not introduce as exhibits
the text messages between the parties or the email correspondence from his counsel. C. Leister’s testimony that he agreed that he would “sign over the title to the Jeep” does not constitute “an offer and acceptance” or an enforceable contract that he now claims on appeal. The circuit court was not given an opportunity to consider this aspect of C. Leister’s argument, nor did J. Leister have a chance to respond to it. Therefore, because C. Leister has not demonstrated that he presented the issue of an enforceable contract regarding the 2006 Jeep to the trial court, the issue is not preserved for our review and we decline to address this unpreserved issue. See Md. Rule 8-131(a). The primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case by requiring them to bring their positions to the attention of the lower court so that the trial court has an opportunity to rule upon the issues presented. Wajer v. Baltimore Gas and Elec. Co., 157 Md. App. 228, 236–37 (2004) (internal quotation and citation omitted). We note that the rules apply equally to pro se litigants. See Tretick v. Layman, 95 Md. App. 62, 68 (1993).
V.The Circuit Court Did Not Err in Awarding J. Leister Attorney’s Fees.
C. Leister argues that the trial court erred in awarding J. Leister $1,500 in attorney’s fees because it failed to consider his financial resources and the outstanding costs J. Leister is required to pay him resulting from an earlier appeal. J. Leister contends that the attorney’s fees award was appropriate as the circuit court heard evidence and testimony about the financial resources and needs of both parties in reaching its decision.
Family Law section 8-214 authorizes a court to award “reasonable and necessary expense[s],” including counsel fees and costs, in cases involving disposition of marital property. FL § 8-214(a). Before making an award, the court must consider “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 8-214(c).
An award of attorney’s fees will not be disturbed on appeal absent an abuse of discretion. Sang Ho Na v. Gillespie, 234 Md. App. 742, 756 (2017). In determining whether an award of fees was a proper exercise of the court’s discretion, we evaluate
“the judge’s application of the statutory criteria . . . as well as the consideration of the facts of the particular case.” Petrini v. Petrini, 336 Md. 453, 468 (1994) (citation omitted). The court should also consider “(1) whether the [award] was supported by adequate testimony or records; (2) whether the work was reasonably necessary; (3) whether the fee was reasonable for the work that was done; and (4) how much can reasonably be afforded by each of the parties.” Sczudlo v. Berry, 129 Md. App. 529, 550 (1999) (quoting Lieberman v. Lieberman, 81 Md. App. 575, 601–02 (1990)).
In considering the parties’ financial resources and obligations, the circuit court found that “neither party [was] in a position to pay large sums of attorneys’ fees[.]” The court noted that C. Leister had incurred some attorney’s fees earlier in the litigation, though he was self-represented in the divorce merits portion of the case. With respect to the justification for the proceedings, the court noted that “[t]he custody merits heard prior to the [divorce] case was highly contested[,]” and the case was divided into multiple hearings. The court also noted that “[a]dditional fees were expended because [C. Leister] did not provide some documentation.”
J. Leister submitted evidence that she had incurred attorney’s fees of $5,496 relating to the case. After reviewing J. Leister’s claims for attorney’s fees, suit money and costs, the court found that the fees charged were reasonable and consistent with those regularly charged by attorneys engaged in the same type of work.
We have recognized that the trial court is in the best position to make determinations concerning an award of attorney’s fees in family law cases. Ridgeway v. Ridgeway, 171 Md. App. 373, 388 (2006). In this case, the trial court reviewed evidence of the parties’ incomes and C. Leister’s obligations to pay child support and spousal support. There is no indication in the record that C. Leister presented evidence of his debts at trial, including any court costs owed to him by J. Leister. Given the trial court’s findings as to the parties’ financial resources and needs and the justification for bringing or defending the case, we perceive no abuse of discretion in the court’s order awarding J. Leister $1,500 of the $5,496 she incurred in attorney’s fees.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 The issues as presented by C. Leister are:
1. Did the [trial] court err by awarding appellee a divorce on the grounds of adultery and failed to award appellant a divorce on the grounds of cruelty and vicious conduct to appellant and the minor children amounting to the demise of the marriage[?] Md. Code, Fam. Law § 7-103(6)[.]
2. Did the [trial] court err in not enforcing the contract that both parties made at the end of 2020 in regards to appellant transferring title of 2006 Jeep to appellee once she returned appellant’s 5 high quality knives, 5.56 ammo, and survival gear[?] M[d.] Code, Com Law … § 2-201. There was an offer and acceptance in formation of contract using appellant[’]s previous attorney and appellee’s attorney through email, also between appellee and appellant through text. (Exhibits a and b)[.]
3. Did the [trial] court err in awarding appellee alimony[?] Md. Code, Fam. Law § 11-101(c) which states “If a final disposition as to alimony has been made in an agreement between the parties, the court is bound by that agreement as the agreement relates to alimony.” Md. Code, Fam. Law § 11-104 states “In a proceeding for a limited or absolute divorce, the court may award to the plaintiff alimony as part of a decree granting a divorce or alimony pendente lite, if (2) the court lacks or is unable to exercise personal jurisdiction over the defendant.” Pennsylvania maintains personal jurisdiction over defendant, and retains jurisdiction for child support, and alimony.
4. Did the [trial] court err in awarding appellee money from a closed TSP account[?] 5 CFR § 1653.2(b) states, “The following retirement benefits court orders are not qualifying and thus are not enforceable against the TSP: (1) An order relating to a TSP account that has been closed;” (exhibits c and d)[.]
5. Did the [trial] court err in awarding appellee attorney fees[?] MD. Family Law Code Ann. § 11-110 (b-c) “(b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding. (c) Before ordering the payment, the court shall consider: (1) the financial resources and financial needs of both parties;
and (2) whether there was substantial justification for prosecuting or defending the proceeding.”
2 The Thrift Savings Plan is “a defined contribution retirement savings and investment plan that offers Federal employees the same type of savings and tax benefits that many private corporations offer their employees under 401(k) plans.” Thrift Savings Plan, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, https://www.opm.gov/retirement- center/ my-annuity-and-benefits/thrift-savings-plan (last visited Dec. 4, 2023).
3 The court’s oral opinion indicated that the parties were married on December 28, 2012. However, the record supports that the parties were married on December 28, 2010, not 2012.
4 To protect the identity of the minor children, we refer to them by their first initials.
5 It appears based on the record that an additional merits hearing was held on August 25, 2022. However, a transcript was not provided for that date.
6 C. Leister included with his reply brief a “Record Extract ‘Appendix,’” containing copies of correspondence between the parties and an excerpt from the Recommendation by the Best Interest Attorney.
7 On October 1, 2023, significant changes to the Maryland divorce statute, Family Law section 7-103, went into effect and the divorce process in Maryland was overhauled. The major changes included the elimination of limited divorces and changes to the grounds for obtaining an absolute divorce. The grounds of adultery, desertion, conviction of a crime, 12-month separation, insanity, and cruelty of treatment were replaced by only three grounds: 6-month separation, irreconcilable differences, and mutual consent. See Floor Report, H.B. 14 at 2.
8 The text messages between the parties, which are not dated, state in relevant part: [C. Leister]: [J. Leister], I bought that car for our family. Not you specifically.
[J. Leister]: So you’re refusing to sign over the title for the jeep which you’ve already told me you would do. ***
[C. Leister]: I have no problem signing it over[.]
9 The email, dated January 5, 2021, is from C. Leister’s trial attorney to J. Leister’s attorney and provides in relevant part that “[C. Leister] could be amenable to transferring title of the keep to [J. Leister] provided that she returns certain possessions of his.” The email then listed certain items that J. Leister needed “to return in exchange for title to the jeep[.]”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s award of sole legal and physical custody of the parties’ minor child to mother. Although father claimed that the circuit court overlooked mother’s violations of the parties’ marital settlement agreement and mis-weighed the evidence, the circuit court considered all the evidence and properly evaluated the best interests of the child.
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.
ther party could “allow a significant other to move in and reside in the same household with [Z], unless such relationship has matured into marriage,” and that Z would be raised “in traditional Islamic faith.”
In July 2019, Mother met the man who would eventually become her fiancé. Soon after, in February 2020, the two got engaged and moved in together. In March 2020, the couple got married. When Mother learned she was expecting a baby, she filed a motion to modify custody on April 1, 2020. The next month, the fiancé changed duty station to Virginia Beach, so the couple relocated there with Z. Mother filed an emergency motion for child custody and other relief on June 18, 2020. The motion was denied.
Elena Marie Ali (“Mother”) and Arif Syed Ahmad (“Father”) were married in 2013 and had one child before separating in 2016. Since their separation, both parties have attempted continuously to obtain sole legal and physical custody of the child. Most recently, after a slew of motions and complaints from both parties, the Circuit Court for Baltimore County awarded sole legal and physical custody of the child to Mother. Father challenges this decision, claiming that the circuit court overlooked Mother’s violations of the parties’ marital settlement agreement and mis-weighed the evidence. We affirm.
I. BACKGROUND
Mother and Father married on January 11th, 2013. The following August, their daughter Z1 was born. Two years later, the parties separated.
Mother filed a complaint for absolute divorce on September 12, 2017. The complaint sought sole legal and physical custody of Z. In early 2018, Father filed an answer and counter-complaint seeking, among other things, sole legal and joint physical custody, alimony, and child support. To narrow the disputes, the parties entered into a marital settlement agreement on September 20, 2018. In December 2018, Father filed the marital settlement agreement and an amended counterclaim. After Mother’s response to the counterclaim, the two were divorced on January 30, 2019. The divorce judgment incorporated the settlement agreement, in which the parties agreed to joint legal and physical custody of Z. The agreement also stated that nei-
On July 14, 2020, Father sought a protective order on Z’s behalf based on the belief that a drawing by Z indicated that the fiancé was abusing her sexually. In response, Mother “amended her Emergency Motion [for] Child Custody and other Relief” on July 27, 2020. A hearing on the protective order was held on July 31, 2020, and the protective order was denied while Mother’s amended motion was granted. The circuit court awarded Mother sole legal custody, pendente lite, because of its concern that Father was “manipulating” and making critical decisions for Z.
On October 1, 2020, Mother filed another amended motion for child custody and other relief and requested primary physical and legal custody. In November 2020, Father filed a motion to modify custody and sought sole legal and primary physical custody. Then, on August 10, 2022, Father filed a motion for an “Emergency Hearing Regarding Custody, or in the Alternative[,] for Temporary Custody.” The hearing was held, and the circuit court reaffirmed the July 31st disposition that granted Mother sole legal custody pendente lite.
The circuit court heard both Mother’s October 1 amended motion and Father’s November motion to modify custody on April 17 and 18, 2023. The hearing involved various witnesses and documentary evidence. On May 1, 2023, after considering the best interests of Z, the circuit court concluded that Mother should be granted sole legal and physical custody, with Father retaining the right to parenting time. Father appealed this judgment on May 21, 2023.
II. DISCUSSION
Father didn’t identify specific Questions Presented,2 but we read his brief as contending that the circuit court erred in granting Mother sole physical and legal custody of Z. We conclude that the circuit court considered all the evidence and evaluated the best interest of the child properly.
Appellate courts review “a trial court’s custody determination for abuse of discretion.” Santo v. Santo, 448 Md. 620, 625 (2016). As we have stated before, abuse of discretion is defined as when:
no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding principles, and the ruling under consideration is clearly against the logic and effect of facts and inferences before the court or when the ruling is violative of fact and logic.
Sibley v. Doe, 227 Md. App. 645, 658 (2016) (cleaned up). “This standard of review accounts for the trial court’s unique ‘opportunity to observe the demeanor and the credibility of the parties and the witnesses.’” Santo, 448 Md. at 625 (quoting Petrini v. Petrini, 336 Md. 453, 470 (1994)). Thus, the standard is particularly deferential to trial courts.
A. The Circuit Court Did Not Err In Granting Mother Sole Physical And Legal Custody.
To modify a child custody order, the circuit court first must find that there was a material change in the family’s circumstances. McMahon v. Piazze, 162 Md. App. 588, 594 (2005). If so, the court then moves on to evaluate custody itself, bearing in mind that “the paramount concern is the best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303 (1986) (emphasis added). When evaluating custody in a divorce case, courts consider the factors set out in Taylor: (1) the “Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare” (the most important factor), (2) the “Willingness of Parents to Share Custody,” (3) the “Fitness of Parents,” (4) the “Relationship Established Between the Child and Each Parent,” (5) the “Preference of the Child,” (6) the “Potential Disruption of Child’s Social and School Life,” (7) the “Geographic Proximity of Parental Homes,” (8) the “Demands of Parental Employment,” (9) the “Age and Number of Children,” (10) the “Sincerity of Parents’ Request,” (11) the “Financial Status of the Parents,” (12) the “Impact on State or Federal Assistance,” (13) the “Benefit to Parents,” and, finally, (14) “Other Factors.” Id. at 304–11. The Taylor factors aren’t a rote checklist that courts apply woodenly, but they guide the court’s analysis of where a child’s best interests lie.
Father contends that the evidence adduced at trial demonstrates that Mother violated the marital settlement agreement and, as a result, that the trial court abused its discretion when it awarded her sole legal and physical custody of Z—in his view, the evidence simply doesn’t match the court’s conclusions. But whether or not Mother adhered fully to the settlement agreement (and in some ways she didn’t), what matters is whether the circuit court considered the custody factors in determining Z’s best interests. And it did.
1. The circuit court evaluated the custody factors fully and carefully.
In light of Mother’s move from Maryland to Virginia with Z, everyone agrees that there was a material change in circumstances, and Father’s counsel acknowledged as much at oral argument. The only question is what custody arrangement best serves Z’s interests going forward, and the record reveals that
the circuit court analyzed the relevant factors in deciding to grant sole legal and physical custody to Mother:
• Capacity of Parents to Communicate: “I find that they do not communicate, and they therefore cannot reach shared decisions.” This factor supports the court’s decision to award sole legal custody rather than joint, and the circuit court cited multiple examples showing that the parties cannot agree. For instance, when Z was graduating from Pre-K, Father’s family wanted to spend more time with her, but Mother refused and took Z to Portland. Mother did not provide any explanation and apparently refused to communicate. As for Father, he once called Child Protective Services because he believed Z was left alone, which wasn’t true. The court found this to be a strong response when “a phone call . . . would have taken care of the issue instead of escalating it.”
• Parents’ Willingness to Share Custody: “It’s not acceptable to either one of them. They both are seeking sole legal custody.” This position appears in both the motions and in the trial transcript, and again, counsel acknowledged the all-or-nothing choice at oral argument here.
• Fitness of the Parents: “I do find both parents are fit. I find that they love [Z] and are able to care for her.” At trial, both parents established that they care about Z and her well-being.
• Relationship Between Child and Each Parent: “[Z] has a good relationship with both parents.” This conclusion was supported by the testimony at trial. One witness testified, for example, that Mother “is a very kind mother I like the way she speaks to her children.”
• Preference of the Child: “[Z] loves them both and is well loved by them in return.” This conclusion was substantiated by the record as well. For instance, Mother conceded that “[Z] loves her Dad.”
• Potential Disruption of Child’s Social and School Life: “There is likelihood of a very significant disruption in [Z]’s life if Dad were to have sole legal custody.” The circuit court was concerned about whether “Father, if given sole legal custody, would continue to medicate [Z] for ADHD and growth deficiency . . . . He committed only that he—that if he thought she needed medication, he would administer it.” At trial, Father appeared to be hesitant to continue to Z’s medication, noting he would want her to get reevaluated. Also, the court found that Father’s traditional religious beliefs likely would disrupt Z’s life because she was not used to being religious. This is because Mother, with whom Z had been living primarily, believes that living a life that conforms to traditional Islamic beliefs and values isn’t “conducive to living in America.” Additionally, the fiancé described himself as “more of a progressive and moderate Muslim.”
• Proximity of Parental Homes: Mother lives in Virginia Beach, Virginia, while Father lives in Howard County, Maryland. Despite the 280-mile distance, Moth-
er testified that she was willing to pay for Father’s travel expenses.
• Demands of Parental Employment: The circuit court stated that Mother has her own successful business, but that she “basically works from home.” Conversely, in light of Father’s vague and evasive answers to questions about his income and occupation, the circuit court didn’t know what he did for a living. During trial, the circuit court asked multiple witnesses about Father’s occupation, but each witness gave a different answer, and one witness wasn’t entirely sure what his occupation was, and the court found Father to lack credibility on this issue.
• Sincerity of the Parents’ Request: “I find they’re both sincere in their request.” The testimony of the parties indicate that they both care about Z, thus bolstering the court’s finding.
• Financial Status of the Parents: The circuit court found that Mother’s business was thriving. As for Father, however, the circuit court found that “he was deliberately evasive about what he does for a living, and [it didn’t] know why.”
• Impact on State or Federal Assistance: “I have no information.”
• Benefit to the Parents: “Father testified he wants to teach [Z] his culture. He wants to meet with her healthcare providers. . . . All of those things he may do as a parent.” After deliberately considering these factors, most of which favored Mother, the court concluded that it would be in “[Z’s] best interest she be in the sole legal custody of her mother.” The court went on to evaluate additional factors, some of which were considered previously, to determine which parent should be granted physical custody:
• Fitness of Each Parent: “I find they’re both fit.” Given the testimony at the hearings, the circuit court had the authority and ability to determine the credibility of each individual and reach this decision. See Santo, 448 Md. at 625.
• Character and Reputation of Each Parent: Despite concerns about Mother’s decision to not inform Father about her relocation to Virginia and Father’s evasiveness about his profession, the circuit court found that both parents were well respected. Maria Reynolds, a witness for Mother, noted that she liked the “way [Mother] speaks to her husband. I like the way she speaks to her children. She teaches them to be kind and accepting and respectful of others.” Likewise, Stacy Snell, a witness for Father, stated; “I know he is [a] very dedicated father. I think he would probably move mountains for that child if he could . . . . I think he is [a] very dedicated, loving, compassionate father.”
• Desire of the Parents and Any Agreement Between Them: “I have nothing to add.”
• Maintaining Natural Family Relations: The court explained that each party has family near their residences.
• Material Opportunities Affecting the Child’s Life: The circuit court stated that Mother and her fiancé were financially successful, but that it didn’t know what Father did for a living. Again, even the witnesses provided were not entirely sure what he did.
• Age, Sex, and Health of the Child: The court stated that Z is eight years old and was diagnosed with ADHD and partial growth hormone and received medication for both. The court added that now that Z was attending school full time in Virginia Beach, she was happier and struggling much less. At trial it was revealed that when Z would travel back and forth between Virginia and Maryland, this severely disrupted her progress and caused her to struggle in school. Father apparently would homeschool her every other week in Maryland, but the lack of consistency proved to be detrimental to Z’s learning.
• Residences of the Parents, Opportunity for Visitation: Although there were differences in residences (Mother lives in a house, Father in an apartment), the circuit court found that Z could live in either place and would have friends wherever she went.
• Impending Relocation of a Parent: Neither parent planned to move from their current home.
• Environment/Surroundings Where Child Will Be Reared: The circuit court explained that the parents had differing plans for Z—Mother wanted Z to grow up in a flexible, diverse environment, while Father wanted Z to go to a traditional Islamic school.
• Influences Likely to Be Exerted On Child: The court stated that although there have been disputes between Father and Mother and her fiancé, it appears that neither party wants to sever Z’s relationship with the other parent.3
After the circuit court walked through the various factors, it concluded that it was “in [Z’s] best interest to be in the primary physical custody of her mother.” The court considered and weighed carefully the testimony and evidence presented to it, while acknowledging the strengths and shortcomings of both parents. The evidence amply supports the court’s decision to award Mother sole custody.
To be sure, Father doesn’t see the record this way. The fact that he would weigh the factors and evidence differently, though, doesn’t mean that the circuit court abused its discretion in reaching the conclusions it did. Father argues that Mother has repeatedly violated the settlement agreement and continually “marginalized” him. And at oral argument in this Court, he urges that the circuit court did not place “sufficient weight” on Mother’s actions. Even so, he never rebuts the circuit court’s use of other evidence. He never explained, for example, how it would be in Z’s best interest for her to be in his sole custody. The circuit court found that Z was doing better, and was even happy, living in Virginia Beach with Mother. And given the circuit court’s findings that (1) Mother was in a better financial situation, (2) Mother stood ready to support and treat Z’s medical conditions, and (3) Z was not accustomed to a traditional Islamic life, the court found it would be better for Z to be in her
mother’s sole physical and legal custody. Father disagrees with these conclusions, but the record supports them.
Appellate courts don’t re-weigh the evidence or second-guess the circuit court’s weighing process—we review the court’s decision to determine whether the court applied the correct law (no dispute there), whether the proceedings were fair procedurally (or there), and whether the court’s conclusions fall within the range of outcomes supported reasonably by the record, and thus whether the court has exercised its discretion appropriately. We recognize that a decision to award sole legal and physical custody represents a more binary choice than is presented in many divorce cases. But these parties put
FOOTNOTES
this circuit court to exactly that sort of choice, and the circuit court did not abuse its discretion by awarding sole legal and physical custody to Mother under these circumstances. Indeed, the circuit court recognized that this case offered less-than-obvious options. The court even agreed with Father that Mother had sought to marginalize him— “I do find that [Mother] has tried to marginalize [Father]. She seems fed up, but that’s about them. That’s not about [Z]”—but found in the aggregate that Z’s best interests lay with her Mother as the decision-maker and primary custodian. Put yet another way, this was never a contest between the parents to see who won—it was a proceeding to determine the best option for Z.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED.
APPELLANT TO PAY COSTS.
1 We refer to the child as “Z” to protect her privacy. The initial is chosen at random.
2 Mother’s brief lists her Questions Presented as:
A. Did the lower court properly consider all of the evidence and testimony in evaluating Father’s character and credibility and correctly award Mother sole legal custody?
B. Did the lower court properly consider all of the evidence and testimony in evaluating Father’s character and credibility and correctly award Mother primary physical custody?
3 The court also mentioned both the physical/spiritual/ moral wellbeing of the child and the bonding between the parents and the child factors but had nothing to add.
Sanjeev Jatain v. Poonam Malik (Unrep.)
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