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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: The importance of permanence in a child’s life
When a child is removed from the home, due to concerns of negligence or abuse, the issue is the child’s safety if returned home. Once a juvenile court finds the child to be a CINA and commits the child to the local department of social services, the focus becomes permanency for the child.
An update to Maryland’s child support statute has been a boon to family law practitioners with clients who accuse their former partners of voluntary impoverishment, attorneys say. Before the update took effect in July 2022, the issue was not codified in state law.
6 Feature Story: Are divorce albums breaking new ground?
An influx of new releases from mature women music artist reimagine the divorce album in all its complexity. In a culture where relatability is currency, relationship stories with the weight and wisdom of age register as fresh.
7 Guest Column: The volatile world of discovery sanctions
Family law practitioners were rocked in June 2020 when Maryland’s highest court published its decision in A.A. v. Ab.D. The court held that the discovery sanctions imposed on the mother were an abuse of discretion. Here’s how that ruling has played out, writes columnist and family law attorney Elizabeth J. McInturff.
8 Monthly Memo
The city of Tampa, Florida, has reached an agreement with the federal government to resolve a discrimination lawsuit alleging that male workers didn’t receive the same parental leave as female workers. ... A longtime Minnesota attorney who has been disciplined 13 times was suspended for his handling of a child custody matter. … In a matter of first impression, the Fairfax County Circuit Court in Virginia ruled that it had no jurisdiction to modify a custody agreement based solely on the children’s preference to equalize the custodial time shared by their parents. … Three Georgia agencies that provide social services are being sued in federal court by families who say their children’s mental health disorders worsened from being institutionalized for prolonged periods as the state failed to provide adequate at-home services. … A trial court did not err when it awarded the husband of a divorced couple the parties’ cryogenically preserved embryo created with an egg from the wife’s sister fertilized by sperm from the husband, a divided panel of the Michigan Court of Appeals has ruled.
The importance of permanence in a child’s life
When a child is removed from the home, due to concerns of negligence or abuse, the issue is the child’s safety if returned home.
Once a juvenile court finds the child to be a CINA and commits the child to the local department of social services, the focus becomes permanency for the child.
Specific time frames are identified in the Juvenile Causes Act and the Family Law Article to achieve permanency for a CINA child.
The statute requires first and foremost that reunification efforts be attempted. FL §525(e)(1)(ii).
Although the court oversees these efforts and they are subject to the best interest of the child, they are essentially time limited. FL §§5525(c)(1) and 5-525.1(1)(i); COMAR 07.02.11.01 (B) and 07.02.11.13(B)(18).
During the COVID-19 pandemic, the timelines for permanency were extended as reunification services were not always accessible.
With the pandemic behind us, this has changed. The courts and practitioners now should be considering permanency plan changes within the appropriate time frames identified in the statutes.
If at the Permanency Planning Review hearing, which should be held no later than 11 months after a child’s entry into foster care, the plan of reunification is no longer in the child’s best interests, the plan should be changed. CJP §3-823(e)(1)(i)(1-5).
Once the court changes the permanency plan, implementation and finalization of the plan should be the focus at the next review hearing or a guardianship hearing, if the plan is adoption. CJP §3-823(g and h).
“Every reasonable effort shall be made to effectuate a permanent placement for the child within 24
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F. LITTLE
Child Advocacy
months after the date of initial placement.” CJP §3-823(h)(5).
Recent cases, where it has taken a child 5 or 6 years to achieve permanency go well beyond this timeline and should be resolved as expeditiously as possible.
As the case law emphasizes, one of the key indicators of success for children who have experienced foster care is permanency:
“The overriding theme of both the federal and state legislation is that a child should have permanency in his or her life. The valid premise is that it is in a child’s best interest to be placed in a permanent home and to spend as little time as possible in foster care.”
In re Yve S., 373 Md. 551, 576, 819 A.2d 1030, 1045 (2003).
In Judge Glenn T. Harrell Jr.’s dissent in In re Adoption Guardianship of Alonza D., Jr., 412 Md. 442, 469-470 (2010), where the children had been in care for 8 years, he views permanency as an entitlement, underscoring the importance of permanency:
“A child is entitled to whatever stability in a loving and supportive familial environment and supportive familial environment that society can muster when parents are unwilling to provide it.”
This theme of permanency continues to echo in more recent cases:
The valid premise is that it is in the child’s best interest to be placed in a permanent home and to spend as little time as possible in the custody of the Department. See In re Jayden G., 433 Md. at 84, 70 A.3d 276. That “means having ‘constant, loving parents,’ knowing ‘that their homes will always
be their home; that their brothers and sisters will always be near; and that their neighborhoods and schools are familiar places.’” Id. at 82-83, 70 A.3d 276. In re M., 254 A.3d 1, 25 (2021)
The local department utilizes a permanency plan as “an integral part of the statutory scheme designed to expedite the movement of Maryland’s children from foster care to a permanent living, and hopefully, family arrangement.” In re Damon M., 362 Md. 429, 436 (2001).
The urgent need that children have for permanency highlights the rational for concurrent planning where a local department provides reunification services to the parents while at the same time providing permanency planning services to the child in case reunification cannot occur. FL § 5-525 (c)(2).
That need for permanency is driven by the research indicating that the foster care system, with its removal of a child from the family he or she knows for child protection reasons, and the placement of that child with a stranger in an unfamiliar community, can be traumatic.
Such trauma must be addressed by the child welfare system for a child in that system by reducing external stress, developing responsive relationships, and strengthening life skills, always mindful of a child’s individual needs and best interests.
Consequently, as one welcomes a child entrant into the child welfare system, it behooves the courts and the professionals involved to begin immediately to plan paths tailored to that child’s circumstances, that would make it possible for that child to exit this system to a place of safety and stability in a timely way.
Joan F. Little is a chief attorney at Maryland Legal Aid.
Maryland attorneys cite impact of updated statute defining voluntary impoverishment
By Hope Keller Special to The Daily Record
An update to Maryland’s child support statute has been a boon to family law practitioners with clients who accuse their former partners of voluntary impoverishment, attorneys say.
Especially significant, they note, is the statute’s definition of voluntary impoverishment. Before
the update took effect in July 2022, the issue was not codified in state law.
“We had case law that talked about the concept of voluntary impoverishment, but we did not have a statute that laid out specific language that we could reasonably rely on every single time for a definition until this new statute came out,” said Erin Kopelman, of Lerch,
Early & Brewer in Bethesda.
Kopelman emphasized that a parent does not need to deliberately seek to duck child support obligations to be found voluntarily impoverished by the court.
“The big change in why this statute is so interesting is because it says the parent has made a ‘free and conscious choice, not compelled by factors beyond the par-
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Erin Kopelman, of Lerch, Early & Brewer in Bethesda, notes that under the new statute a parent does not need to deliberately seek to duck child support obligations to be found voluntarily impoverished by the court.
ent’s control, to render the parent without adequate resources,’” Kopelman said, citing the definition. “What it doesn’t say is (the impoverishment) has to be in order to avoid paying child support.”
The updated statute also now requires the court to determine whether there has been voluntary impoverishment if either party raises it as an issue.
“It’s a ‘shall,’” noted Kelly Powers, of Miles & Stockbridge in Baltimore. “That makes it mandatory. If there’s a dispute, the court must address it and make a finding on whether the parent is voluntarily impoverished.”
If the court finds a parent is indeed voluntarily impoverished, child support may be calculated based on a finding of potential income. The statute refers to the section of the family law code that lists the factors a court must consider when determining how much income to impute to a parent found to be voluntarily impoverished.
Considerations include the parent’s age, physical and mental health, education, special training or skills, residence, employment and earnings history, job-search history, and criminal record or other barriers to employment. Additional considerations are the status of the local job market, prevailing wages and the availability of employers willing to hire the parent, as well as any assets or other factors that affect the parent’s ability to pay child support.
“Having a consolidated, clear list is a real help to courts and litigants,” Powers said.
Laurie Wasserman, of Wasserman Family Law in Towson, said the issue of voluntary impoverishment frequently comes up in her consultations with clients.
“People do come in and try to make this claim, (but) there is this disconnect between what people think voluntary impoverishment is and can we prove it,” Wasserman
“A lot of men come in saying their wife is voluntarily impoverished: ‘I told her to go back to work, but she didn’t want to. Before we had kids she was making $80,000 a year,’” says Laurie Wasserman, of Wasserman Family Law in Towson.
said. “A lot of men come in saying their wife is voluntarily impoverished: ‘I told her to go back to work, but she didn’t want to. Before we had kids she was making $80,000 a year.’”
Clients who maintain the stayat-home parent is shirking paid employment usually don’t get too far with their argument, Powers said.
“There isn’t an expectation in a divorce that, immediately when the family dissolves, the noneconomic contributing spouse immediately gets new employment,” she said.
The statute also stipulates that stay-at-home parents caring for a child of the relationship under 2 cannot be considered voluntarily impoverished. Likewise, parents who cannot work because of a physical or mental disability may not be considered voluntarily impoverished or have potential income imputed to them.
Family law practitioners noted that a vocational rehabilitation expert can provide an opinion on what a stay-at-home spouse could
The updated statute requires the court to determine whether there has been voluntary impoverishment if either party raises it as an issue, says Kelly Powers, of Miles & Stockbridge..
earn in the workforce – given the local job market and prevailing wages -- or how long it would take for that spouse to be retrained.
Powers gave the example of a stay-at-home parent who seeks to go back to school for nursing.
“An expert would describe what that would involve,” Powers said. “That tends to be used more often in alimony than in child support, but they’re interrelated.”
The new voluntary impoverishment provisions in the child support statute are “highly relevant” to alimony, Kopelman said.
“There’s a lot of pre-October 2021 case law that says that voluntary impoverishment arguments can be made related to alimony,” she said. “I wouldn’t be surprised going forward if these child support statutes are relied on in alimony cases.”
The updated child support statute, passed by the General Assembly in 2020, was to take effect in October 2021, but enactment was postponed until July 2022.
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Are divorce albums breaking new ground?
By Maria SHerMan
Associated Press
When the 2024 Grammy nominations were announced, one thing was immediately apparent: Women outpaced men in the major categories.
The leading artists — superstars like SZA, Taylor Swift, and Olivia Rodrigo — reflect an incredible diversity of skill with acclaimed albums that mine all corners of the human experience.
One such corner: divorce.
An influx of new releases from Kelly Clarkson, Miley Cyrus and Kelsea Ballerini reimagine the divorce album in all its complexity. While the music industry has long been youth-obsessed, there may be something to the fact that these musicians are all women in their 30s and 40s and consequently possess a kind of self-assuredness and rich, emotional maturity.
In a culture where relatability is currency, relationship stories with the weight and wisdom of age register as fresh. If all popstars are teenaged, where does that leave the rest of us? Perhaps the depth of a breakup ballad is felt more acutely when a public split plays out in tabloid headlines — and there’s a lot more to lose.
Cyrus’ malleable pop “Flowers,” one of AP’s picks for best songs of 2023, is a pep talk-turned-empowerment banger — the sound of a woman learning about herself again after a decadelong relationship ended in divorce. She’s raked in five nominations, including album of the year for “Endless Summer Vacation.”
Then there’s Clarkson’s “Chemistry” — a big-belter release she’s described as a “relationship album” that’s up for best pop vocal album.
And in the world of country, which has a long tradition of women performing songs about divorce and domesticity, Ballerini’s “Rolling Up the Welcome Mat” is up for the genre’s best album.
These records vary greatly but share a similar emotional core: They were written while grappling with marriages falling apart.
Musically, those endings opened up new realities. Clarkson pursued courageous bal-
lads that stretched her elastic vocal range, Ballerini experimented with pop production and Cyrus wielded her weather-worn voice like a weapon. Their albums came out of painful periods in which each performer was redefining herself.
Ballerini is part of a long lineage of women in country making music about divorce and heartbreak — running the gamut in tone from vengeful to celebratory. Marissa R. Moss, author of “Her Country: How the Women of Country Music Became the Success They Were Never Supposed to Be,” points to Loretta Lynn’s groundbreaking 1973 hit “Rated X” as setting the precedent for future musicians.
What’s interesting, now, is the modern ways in which divorce is articulated on these records.
Ballerini’s album — particularly the song “Penthouse” — challenges stereotypical domestic roles and “demonstrates financial power,” Moss said.
“I bought the house with the fence, enough room for some kids,” Ballerini sings. Later, her home becomes claustrophobic, an allegory for her marriage: “And I thought that would make it all better, and maybe forever wouldn’t feel like the walls closing in.”
The record gets at the idea that even when women attain financial autonomy
and remake traditional marriages roles, they’re still not necessarily able to find freedom within its confines.
“I don’t think a quote-unquote divorce album is the first time that I have felt like it’s different being a woman in country music, that’s for sure,” Ballerini told The Associated Press, about gender expectations in the genre.
Ballerini, for her part, understands why people relate deeply to the songs on her album that deal with divorce.
“It’s something that was taboo to talk about, especially from a woman’s perspective, for a really long time,” she said. It goes “back to like giving a voice to myself and validating my own feelings and my own life and my own journey and hoping that other women feel that too and feel validated.”
People often expect divorce records to contain exclusively sad songs. While Ballerini, Clarkson and Cyrus exorcise grief on their albums, they express gratitude as well. These records are sad and empowering, often both at once.
Or, as Ballerini said, listeners want to feel validated.
“People like success. They like talking with people who succeed,” Knobe continued. “But that’s not the thing that makes people feel a profound connection to another human being.”
AP Photo
Among the women performers offering fresh takes on divorce through their songs are, from left, Kelsea Ballerini, Kelly Clarkson and Miley Cyrus..
The volatile world of discovery sanctions
Family law practitioners were rocked in June 2020 when The Court of Special Appeals of Maryland, now known and hereafter referred to as The Supreme Court of Maryland, published its decision in A.A. v. Ab.D., 246 Md. App. 418, (2020).
In A.A. v. Ab.D., the court held that the discovery sanctions imposed on the mother, which included prohibiting her from introducing evidence at trial and precluded her from proffering the significance of the evidence, for discovery deficiencies, were an abuse of discretion.
In overturning the trial court, the Maryland Supreme Court highlighted that it was the duty of the trial court to consider the best interests of the child, holding that in a trial court’s overriding obligation to consider the best interests of the child it must consider the impact of a discovery sanction against the rights of the child to have his or her best interests fully considered.
The result of A.A. v. Ab.D is that before a court may impose a discovery sanction, even in cases of extreme and intentional discovery violations, the trial court must first undertake the analysis of whether the information sought to be excluded is relevant in determining the best interests of the child.
Practitioners were understandably concerned that this ruling would favor parties who refused to participate in good faith in discovery if they could convince the trial judge that the information they sought to introduce would assist the court in its determination of the best interest of the child.
That result would seemingly reward the recalcitrant party while prejudicing the discovering party who had previously sought this information through the discovery process and is now not able to fully and completely prepare for trial.
However, in the number of discovery opinions following A.A. v. Ab.D, the Supreme Court of Maryland reminds us that trial court sanctions for discovery violations still have teeth.
In Kadish v. Kadish, 254 Md. App. 467 (2022), the Supreme Court of Maryland upheld the discovery sanctions placed on the mother.
There, the mother engaged in discovery gamesmanship throughout the pendency of several related family law disputes.
By way of example, the mother failed to respond to interrogatories, requests for production, requests for admission, or appear for her deposition. During this same time, she continued to travel and instructed her attorneys to file motions with the court.
The father was forced to file several discovery motions in an attempt to force the mother’s compliance with her discovery obligations. Upon his “Fourth Motion for Discovery Sanctions,” the trial court entered an order providing that:
“Lacking any other less severe sanction any longer available to the [c]ourt (all less severe sanctions having been utilized in connection with [Mother]’s prior failures and refus -
als to provide discovery) the [c]ourt shall apply a rebuttable presumption in the trial of this case that the minor child’s best interests will be served by a modification of the Judgment herein to grant [Father] her primary physical custody and her sole legal custody. Said presumption shall be rebuttable by [Mother] only upon presentation of evidence directly bearing on the best interests of the minor child, i.e., as provided in the prior sanctions Orders herein.” (Emphasis added)
On appeal, the mother argued, among other things, that the trial court erred and did not follow the requirements set out in A.A. v. Ab.D by its imposition of a rebuttable presumption that the child’s best interests would be served by a modification of custody.
In its holding, the Supreme Court upheld the trial court’s decision, finding that the trial court did exactly what it was supposed to do under A.A. v. Ab.D and the Maryland Rules.
More specifically, while Rule 2-433 permits the trial court to enter an order that “matters sought to be discovered, or any other designated facts shall be taken to be established,” the trial court fashioned “a lesser version of that sanction, and it did so in a way that was designed to ensure that it remained ‘as well-informed as possible’” as to the minor child’s best interests.
Although family law practitioners must still demonstrate that the sought-after discovery sanction will not affect the court’s determination of the best interests of the child, judges still have “teeth” to enter sanctions against the failing party.
Elizabeth J. McInturff, Esq., a partner at JDKatz, PC, represents clients throughout Maryland and Washington, D.C., in complex family, civil and commercial disputes. For more information, visit www.jdkatz.com...
Elizabeth J. McInturff
Tampa settles federal lawsuit over parental leave for male workers
The city of Tampa, Florida, has reached an agreement with the federal government to resolve a discrimination lawsuit alleging that male workers didn’t receive the same parental leave as female workers.
Under the proposed settlement, Tampa will pay $300,000 and credit 240 hours of additional leave time to male workers who were denied the same amount of parental leave as female workers in 2017 and 2018.
According to the lawsuit, female workers were allowed up to 320 hours of leave time for the purpose of serving as the primary caregiver for a new child, while male workers were permitted only 80 hours as “secondary” caregivers, even if they were the primary caregiver.
At least 10 male workers requested primary caregiver leave and were denied because of their sex, and as many as 150 male workers were discouraged from applying for primary caregiver leave by their supervisors or human resources officials, according to the complaint.
The proposed consent decree, which requires approval from a judge, also requires Tampa to adopt a new parental leave policy that does not discriminate based on sex.
Associated Press
Lawyer, already disciplined 13 times, suspended for handling of custody case
A longtime Minnesota attorney who has faced discipline several times before is facing further discipline. The Minnesota Supreme Court announced Jan. 10 that Joseph Kaminsky was indefinitely suspended from the practice of law, with no right to petition for reinstatement for nine months.
Though he has practiced for over 50 years, he has faced discipline that spans over 43 years of his practice.
Kaminsky has been disciplined 14 times since 1979. He has been admonished nine times, put on private probation twice, and suspended twice already.
According to the director of the Office of Lawyers Professional Responsibility, Kaminsky filed a motion requesting that the district court grant his client temporary physical custody of his children because the children’s mother was hospitalized. The court explicitly required per-
Monthly Memo
sonal service of the mother, and Kaminsky filed an affidavit of personal service.
The child’s mother did not appear at the hearing, so Kaminsky’s client was granted temporary physical custody of the children. The mother’s parenting time was reduced to just two hours of supervised visitation per week. The mother did not have her custody rights restored for two years.
Ultimately, it turned out that the mother did not learn of the hearing that she was absent from until the day before and that she was never personally served with notice.
BridgeTower Media
Child’s custody preference not a material change, Virginia court rules
In a matter of first impression, the Fairfax County Circuit Court in Virginia ruled that it had no jurisdiction to modify a custody agreement basekd solely on the children’s preference to equalize the custodial time shared by their parents.
Judge David Bernhard pointed out that a change in circumstances tended to be material when it destabilized, rather than minorly inconvenienced, custody.
“This Court finds a child’s preference for a change in custodial arrangements, without more, is not a material change in circumstances if the facts upon which the preference is based have not changed since entry of the order sought to be modified,” he explained. “Here, the same degree of ‘unfairness’ and attendant degree of inconvenience perceived by the child, existed at the time the parties agreed to this Court’s first custodial order.”
The judge refused to reconsider his opinion that the children’s preference alone was not a material change in circumstances in Livingston Jr. v. Stark
BridgeTower Media
Lawsuit seeks to force Georgia agencies to improve care for children
Three Georgia agencies that provide social services are being sued in federal court by families who say their children’s mental health disorders worsened from being institutionalized for prolonged periods as the state failed to provide adequate at-home services.
The lawsuit filed in U.S. District Court says the state’s shortcomings violate fed-
eral law including provisions of the Medicaid Act and the Americans with Disabilities Act. It asks a judge to order the agencies to make improvements to its mental health care system.
The lawsuit names as defendants the leaders of three Georgia agencies — the Department of Community Health, the Department of Human Services and the Department of Behavioral Health and Developmental Disabilities.
The lawsuit says the child plaintiffs have spent long periods institutionalized, leading to worsening symptoms and more frequent trips to hospital emergency rooms and psychiatric care facilities. It says one of the children has been institutionalized 16 times and admitted to emergency rooms 18 times, in part because the state failed to provide sufficient home care.
Attorneys for the families want the court to require the state to perform assessments for children who have been institutionalized multiple times and to provide better remedial care, among other improvements.
Associated Press
Embryo properly awarded to husband, divided appeals court rules
A trial court did not err when it awarded the husband of a divorced couple the parties’ cryogenically preserved embryo created with an egg from the wife’s sister fertilized by sperm from the husband, a divided panel of the Michigan Court of Appeals has ruled.
While the lower court “appreciated the special characteristic of the embryo to produce a human life,” it sided with the husband because it would be more inequitable to have the wife birth a child with her ex-husband’s DNA against his wishes, as opposed to the inequity the wife would suffer by being prohibited form birthing a child that does not share her DNA.
“Simply put, given the circumstances of this case, the outcome derived by the trial court was a principled decision, and we are not left with a firm conviction that awarding the embryo to [the husband] was inequitable,” the majority said.
The per curiam decision is Markiewicz v. Markiewicz
BridgeTower Media
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court affirmed the Anne Arundel County Circuit Court’s award of $35,000 monthly indefinite alimony to the wife. The circuit court performed the required analysis and was not clearly erroneous in its valuation of the parties’ income and expenses or in finding that unconscionable disparity would otherwise result.
The Appellate Court affirmed the Baltimore County Circuit order granting father tie-breaking authority or physical custody of the two minor children while also changing mother’s access schedule..
The Appellate Court affirmed the Frederick County Circuit Court’s denial of the husband’s motion to terminate indefinite alimony and its denial of the wife’s motion to modify alimony.
The Appellate Court affirmed the Worcester County Circuit Court’s finding that the two minor children were children in need of assistance because of neglect and granting custody to mother under the protective supervision of the Department of Social Services with supervised visitation to father.
REIMBURSEMENT; JUDGMENT OF ABSOLUTE DIVORCE; CONTEMPT
The Appellate Court affirmed the Anne Arundel County Circuit Court’s order finding the husband in contempt for failing to reimburse the wife for certain extraordinary medical expenses and costs for the children’s activities, as required by the parties’ judgment of absolute divorce. The evidence supported a finding of willful and contumacious behavior sufficient to support the circuit court’s decision to hold the husband in contempt.
The Appellate Court affirmed the Baltimore County Circuit Court’s December 2021 finding that the father was in constructive civil contempt for violating the terms of a May 2021 consent order. Because the parties agreed in March 2022 to resolve their disputes relative to the December 2021 contempt finding, none of father’s questions concerning that contempt finding remained at issue in this case.
The Appellate Court affirmed the Howard County Circuit Court’s finding that the two minor children were children in need of assistance and committing them to the Department of Social Services for continued placement in foster care. There was substantial evidence for the juvenile court to find that the parents had neglected the children and were unwilling or unable to give proper care and attention to the children’s needs.
The Appellate Court affirmed the Montgomery County Circuit Court’s finding that the minor child was a child in need of assistance and committing him to the Department of Health and Human Services for placement with the child’s maternal grandmother. The court properly considered all the evidence and reasonably determined, based on a preponderance of the evidence, that the minor child had been neglected and that mother and father were unable or unwilling to give proper care and attention to the minor child and his needs.
The Appellate Court affirmed the Montgomery County Circuit Court’s modification of custody award for the parties’ two minor children, granting the father primary physical custody, sole legal custody for medical decisions and joint legal custody for education and religious decisions with tie-breaking authority.
CUSTODY; INTERVENTION; TIMELINESS
Monica O. Dudley v. Stephanie Rivera
No. 0143, September Term 2023
Argued before: Graeff, Reed, Taylor (specially assigned), JJ.
Opinion by: Graeff, J. Filed: Nov. 9, 2023
The Appellate Court vacated the Montgomery County Circuit Court’s denial of intervention to the children’s maternal aunt in a child custody dispute. The parties failed to address the issue of timeliness or prejudice to the children’s paternal aunt, and the circuit court did not discuss any factors relating to the motion to intervene or otherwise explain the basis for its decision denying the motion.
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
Following a three-day trial in the Circuit Court for Anne Arundel County, Lance Brasher (Husband”) and Catherine Brasher (“Wife”) were granted a judgment of absolute divorce with a Marital Property Determination that identified and allocated the marital property. Wife was awarded indefinite alimony, a monetary award, ownership of the marital home, and the restoration of her former name. The court denied both parties’ requests for attorneys’ fees. The court later held a hearing and placed “additional findings on the record” that did not impact the judgment of divorce.
Husband timely appealed and Wife timely noted a cross-appeal.
As the appellant, Husband presents five questions for our review1, which we rephrase and reorder as three questions:
1. Did the trial court abuse its discretion in finding that Wife would not be self- supporting, and that the lifestyles of the parties would be unconscionably disparate without awarding Wife indefinite alimony of $35,000 per month?
2. Did the trial court abuse its discretion in treating Husband’s monetary gifts to his siblings as dissipated assets?
3. Was the trial court clearly erroneous in finding that Husband owned a separate residential property and in its valuation of the marital home?
Wife presents four questions for review.2 Two questions are in response to Husband’s appeal and the remaining two cross-appeal questions are conditional should we remand the case. The two questions we rephrase:
1. Did the trial court abuse its discretion when it denied Wife’s request to reopen the record to update account balances from the period between the trial court’s oral ruling and the judgment of absolute divorce?
2. Did the trial court abuse its discretion by not increasing the monetary award based on the trial court’s Revised Marital Property Determination statement?
For the reasons set forth below, we shall affirm the judgment of the circuit court regarding Husband’s questions. Wife’s questions, conditioned upon remand are now moot.3
FACTUAL AND PROCEDURAL BACKGROUND
The parties met in 1981 when Wife was a sophomore at the University of Maryland at College Park and Husband had just completed his junior year at the United States Naval Academy (the “USNA”). Husband graduated in 1982 with a Bachelor of Science degree in economics and served in the Navy for five years. Wife graduated with a Bachelor of Science degree in psychology with a concentration in biology. After graduating, Wife worked as a research assistant conducting neuropsychiatric research in a laboratory at the University of Maryland.
On October 27, 1984, the parties married. Wife then relocated to San Diego where Husband was stationed. Husband was subsequently transferred to Seattle, Washington and Arlington, Virginia. While in the military, the parties lived in modest accommodations. Although Wife was unable to obtain employment in her career field while living in San Diego and Seattle, she worked in retail to earn income and assisted with the family’s living expenses. When the parties moved to Virginia, Wife gained employment and managed the brain research imaging laboratory at the National Institute of Mental Health Clinic.
In 1987, Husband resigned his commission with the U.S. Navy but continued his service with the military on reserve duty. While a reservist, he attended Harvard Law
School from 1987 to 1990. The parties resided in Massachusetts and Wife was employed full-time in her field of study. On the weekends, Wife worked at a retail store. Wife’s income was used to pay the parties’ living expenses and to sustain the household. After completing his second year of law school, Husband clerked as a summer associate with Skadden, Arps, Slate, Meagher & Flom, LLP (“Skadden, Arps”).
In 1990, upon graduating from Harvard Law School, Husband accepted full-time employment as an associate with Skadden, Arps, and the parties relocated to Washington, D.C. Wife was happy to relocate so that she could be near her parents to care for her mother who was suffering from multiple sclerosis and to assist with her parents’ household chores.
That same year, the parties’ first child was born and, in 1993, they had their second child. Prior to the birth of their daughters, Husband informed Wife that he preferred Wife to stay home and take care of their children. With Husband’s associate salary, he could financially provide for the family while Wife maintained the household. With a newborn child and approximately $30,000 in student loan debt, the parties were still able to purchase a 2,000 square foot home in Crofton, Maryland.
In 1996, Wife’s mother passed away and her father was diagnosed with Parkinson’s disease. Wife has three siblings; of which, two are attorneys. Because Wife’s siblings did not reside in the area, the caretaking function for their father became Wife’s responsibility. In 1999, when Husband became a partner with Skadden, Arps, the parties’ household income substantially increased but so did Husband’s workload. In 2008, Husband incurred 2,400 billable hours that rose to 3,000 billable hours after he became a partner. In 2004, the parties purchased a waterfront home in a gated community in Crownsville, MD (the “marital home”) for over $2.5 million and they invested between $700,000.00 to over $1 million in home improvements. The move placed Wife closer to her father’s home.
Husband is the youngest of eight siblings. His salary increases assisted in providing financial support to several of Husband’s siblings, who have experienced serious life changing and financial events, such as the death of a spouse, business setbacks and mental health trauma. Husband began contributing $3,500 each month to fund seven IRA accounts for members of his family. He also established financial security for the parties’ children and financially helped Wife’s father, Husband’s mother, and their siblings. In 2010, due to the difficulty in tracking the investment accounts, Husband elected to no longer deposit funds into individual retirement accounts but to send cash directly to his siblings. According to Wife, she was unaware that Husband was providing monthly financial support to his siblings.
Husband and Wife are in reasonably good health except that in 2006, Husband was diagnosed with and treated for e-cell lymphoma cancer. For 6 months, he received chemotherapy every three weeks; Husband’s cancer is currently in remission. A few years later, Wife
was diagnosed and treated for chronic appendicitis. She also suffers from psoriatic arthritis in her hands and feet.
While Husband spent many hours working during the week and on weekends, Wife served as the primary caregiver, by agreement of the parties. In that capacity, Husband never voiced any concern about Wife’s parenting style or ability. Wife’s goal was to expose the children to a variety of activities and interests. When the children were young, Wife joined moms’ groups so that they could attend playdates. The children also played sports such as field hockey, soccer, and lacrosse. They took dance, art, and gymnastics classes, along with violin, piano, ice skating and horseback riding lessons. In addition to performing household chores and preparing the family meals, Wife drove the children to their schools, extracurricular activities, and all medical appointments. When the oldest daughter was in kindergarten, she developed asthma which caused Wife to regularly administer the child’s nebulizer sometimes every two to four hours a night. From kindergarten to eighth grade, she received allergy shots; first once a week, then every other week, then once a month. When the children were school-aged, Wife sometimes worked as a school counselor or substitute teacher. She also volunteered on several parent-teacher organization committees. The children were emancipated in 2008 and 2011, respectively. As the primary caregiver, Wife’s responsibilities were time consuming and involved significant dedication and effort. With the support of Husband, Wife attended a one-year cohort program at Johns Hopkins University and obtained a master’s degree in mental health counseling.
Husband and Wife are nearing retirement age. The parties held several joint bank accounts and credit cards; and filed yearly joint federal and state tax returns. Husband maintained a ledger of the parties’ income and expenditures, copies of financial documents, and copies of tax returns. The financial records were kept in a home office to which Husband and Wife had access.
In 2018 and 2020, respectively, Wife began suffering from depression and saw a psychiatrist and therapist. She took a medical leave of absence from her employment on January 2, 2019, and had not returned to work at the start of trial. Husband’s yearly salary with Skadden, Arps is $3.5 million. The parties have lived separate and apart since Husband left the marital home on March 1, 2019. Throughout the separation, Husband continued paying the mortgage, utilities, and property taxes on the marital home in addition to the parties’ credit card bills. Husband also paid rent and utilities for the apartment he occupied. In October 2020, Husband liquidated a mutual fund held by Franklin Templeton and stock held by TD Ameritrade to pay the mortgage balance of the marital home.
On August 26, 2019, Wife filed a complaint for absolute divorce and other relief in the Circuit Court for Anne Arundel County, and on November 5, 2019, Husband filed a counter-complaint for absolute divorce or, in the alternative, limited divorce and related relief. After a threeday trial, the court took the matter under advisement
and the parties each submitted written memoranda. In an oral ruling on January 21, 2022, the trial court made a Marital Property Determination; granted the parties an absolute divorce; awarded Wife $35,000 each month for indefinite alimony; granted Wife a $2.5 million monetary award; transferred ownership of the marital home to Wife; restored Wife’s maiden name to “Biro;” and divided the parties’ marital assets. Husband’s retirement, profit sharing, and deferred compensation plans were to be distributed on an “if, as, and when” basis. The court denied the parties’ requests for attorneys’ fees and instructed the parties to submit a proposed order.
Prior to the court’s order, Wife filed a motion to re-open the case and requested an evidentiary hearing to update and correct the values contained in the Joint Statement. She also requested that the court clarify its Marital Property Determination. At a hearing on May 6, 2022, the court noted its clerical error contained in the Marital Property Determination wherein several numbers had been inadvertently omitted. The judge determined that the discrepancy had no bearing on the outcome, as the correct numbers were accounted for in the court’s calculations and prior ruling. The court then generated a Revised Marital Property Determination. On that same day, the trial court signed a judgment of absolute divorce detailing its oral ruling from January 21, 2022.
STANDARD OF REVIEW
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. We will not set aside the judgment of the trial court on the evidence unless clearly erroneous and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Md. Rule 8-131(c). The award and duration of alimony is a finding of fact reviewed under the clearly erroneous and abuse of discretion standard. Solomon v. Solomon, 383 Md. 176, 196 (2004). “When the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous.” Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). The amount of the alimony is reviewed under an abuse of discretion standard. An abuse of discretion occurs when “ ‘no reasonable person would take the view adopted by the [trial] court’ or when the court acts ‘without reference to any guiding rules or principles.’” Santo v. Santo, 448 Md. 620- 625-26 (2016) (quoting from In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997).
“Similarly, whether all or a portion of an asset is marital property or non-marital property, and the value of each item of marital property is a question of fact and subject to the clearly erroneous standard of review. See Abdullahi v. Zanini, 241 Md. App. 372, 413 (2019). The division of marital from non-marital property is important in the context of the court’s decision to grant a monetary award “as an adjustment of the equities and rights of the parties concerning marital property” whether or not alimony is awarded. Maryland Code (1984, 2019 Repl.
Vol.) Family Law Article (“FL”), § 8-205. The ultimate decision regarding whether to grant a monetary award, and the amount of such an award, is subject to review for abuse of discretion standard. Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008).
“[I]n the arena of marital disputes where notoriously the parties are not in agreements as to the facts, therefore, we must be cognizant of the court’s position to assess the credibility and demeanor of each witness.” Keys v. Keys, 93 Md.App. 677, 688-89 (1992). “[We] will accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Malin v. Miniberg, 153 Md. App. 358, 415 (2003), Tracey v. Tracey, 328 Md. 380, 385 (1992). Judges are presumed to know the law and are “left with the discretion to determine the proper disposition of the case. Bagley v. Bagley, 98 Md. App. 18, 31–32 (1993). “As such, a trial court is granted significant deference and is entitled to ‘accept—or reject—all, part, or none of the testimony of any witness.’” Goicochea v. Goicochea, 256 Md. App. 329, 340 (2022) (quoting Omayaka, 417 Md. 643, 659 (2011)). “As long as the court’s findings of fact are not clearly erroneous and the ultimate decision is not arbitrary, we will affirm it, even if we might have reached a different result.” Malin v. Miniberg , 153 Md. App. at 415.
DISCUSSION
Husband claims that the court erred in granting Wife indefinite alimony; in not finding that Wife dissipated assets; and in transferring the marital home to Wife on the assumption that Husband also owned real property. We do not agree that the court erred.
I. Indefinite Alimony
Title 11 of the FL Article governs alimony. Under the Maryland Alimony Act of 1980, there are two types of alimony – rehabilitative alimony and indefinite alimony. See FL § 11-106. When deciding whether to award alimony, and its amount and duration, the trial court is required to consider the following factors:
1. the ability of the party seeking alimony to be wholly or partly self-supporting;
2. the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
3. the standard of living that the parties established during their marriage;
4. the duration of the marriage;
5. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
6. the circumstances that contributed to the estrangement of the parties;
7. the age of each party;
8. the physical and mental condition of each party;
9. the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
10. any agreement between the parties;
11. the financial needs and financial resources of each party, including:
12. all income and assets, including property that does not produce income;
13. any award made under §§ 8-205 and 8-208 of this article;
14. the nature and amount of the financial obligations of each party; and
15. the right of each party to receive retirement benefits; and
16. whether the award would cause a spouse who is a resident of a related institution as defined in § 19301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur. FL § 11-106(b).
“[A]limony awards, though authorized by statute, are founded upon notions of equity[.]” Goicochea , 256 Md. App. at 357 (quoting Tracey, 328 Md. at 393. Its purpose is to rehabilitate the “economically dependent spouse.” K.B. v. D.B., 254 Md. App. 647, 667 (2020), (quoting St. Cyr v. St. Cyr, 228 Md. App. 163, 184 (2016)). Rehabilitative alimony attempts to ease the transition for the parties from the joint married state to their new status as single people living apart and independently, and to allow the dependent party an opportunity to gain training and employment in order to become self-supporting. Solomon, 383 Md. at 194-195 (quoting Tracey, 328 Md. at 391).
After considering the required factors detailed in FL § 11-101(b), a court may award indefinite alimony in exceptional cases if it makes a finding that (1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or (2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate. FL § 11-106(c). Unlike rehabilitative alimony, indefinite alimony should be awarded only in “exceptional circumstances.” Karmand v. Karmand, 145 Md. App. 317, 330 (2002). “[S]elf-sufficiency per se does not bar an award of indefinite alimony if there nonetheless exists an unconscionable disparity in the parties’ standards of living after divorce. Tracey, 328 Md. at 392–93.
“[T]he issue of unconscionable disparity must be determined by projecting into the future, to a time of maximum productivity of the party seeking the award, and not by looking solely to the past.” Whittington v. Whittington, 172 Md. App. 317, 339-40 (2007). While there is not set formula to determine disparity, “[t]he greater the disparity, the more likely that it will be found to be unconscionable.” Ware v. Ware, 131 Md. App. 207, 229 (2000). Indefinite alimony is appropriate “if the standard of living of one spouse will be so inferior, qualitatively or quantitatively, to the standard of living of the other as to be morally unacceptable and shocking to the court.” Karmand, 145 Md. App. at 338.
Here, Husband does not challenge the court’s alimony award of $35,000 per month, rather he contends that the court erred in granting indefinite alimony as opposed to rehabilitative alimony. Wife argues that the court did not err in its findings. The record reflects a detailed evaluation by the court of the factors enumerated in FL § 11-101(b). Afterwards, the court considered whether it should award rehabilitative alimony or indefinite alimony. “[E]conomic ‘self-sufficiency per se does not bar an award of indefinite alimony if there nonetheless exists an unconscionable economic disparity in the parties’ standards of living after divorce.’” Innerbichler, 132 Md. App. at 248 (quoting Tracey, 328 Md. at 392–93).
We observe that Husband was the primary financial contributor to the marriage. It was Husband’s salary that enabled the family to not only live a comfortable life but also garner substantial investments and savings. Although Wife holds a master’s degree, she spent the majority of the marriage maintaining the household, including cooking and cleaning, child rearing, scheduling and handling doctor’s appointments, and monitoring the children’s extracurricular activities. Wife’s last employment was as a school counselor from August 2012 to January 2019.
The court found that Wife is not currently self-supporting, as evidenced by Husband contributing to Wife’s expenses during the separation, but that she is able to become partially self-supporting. Based on Wife’s assets, she has the potential to earn annual pre- tax investment income over $376,570 or after-tax monthly income of $23,046. This amount; however, is based solely on market conditions and may fluctuate. The court did not agree with Wife’s assessment of $47,392.24 in financial obligations and reduced the bulk of her home improvement costs, as speculative; cut the projected medical expenses, as unreasonable; and removed the monthly mortgage expense, as the marital home is not encumbered by a mortgage. Wife’s monthly financial obligation was decreased to $21,165.81 which barely covers Wife’s projected investment income.
Husband, on the other hand, earns income in excess of $3.5 million annually. While Husband’s salary will decrease in the future upon retirement, his savings, investments, and retirement income will not impact his standard of living. The court did not find credible Husband’s assertion that he is operating on a monthly deficit, as a significant portion of Husband’s expenses consist of financially assisting his adult children and contributions to his siblings. Husband’s monthly income of approximately $291,666.67 far exceeds his monthly expenses totaling $76,310.00, inclusive of gifts to family members while Wife’s income is approximately ten percent (10%) of Husband’s revenue stream.
Wife’s projected net income is a mere fraction of Husband’s income after expenses. The court found that “even if [Wife] was able to generate up to $300,00.00 annually from her assets, this is not sufficient to sustain [Wife’s] affluent lifestyle and history of savings.” The record supports the court’s conclusion that, because of Wife’s age and market fluctuations affecting Wife’s investment income, she will remain partially self-supporting even after the distribution of
marital assets. Nevertheless, the court found that Wife is unable to continue the affluent lifestyle previously enjoyed during the marriage even with combining her monthly after-tax investment income of $23,046 and her monthly salary as a school counselor, compared to Husband’s estimated monthly after-tax monthly revenue stream of $291,666.67. As the court observed, “the parties respective standards of living would be unconscionably disparate, if [Wife] was forced to pay all of her living expenses without any further assistance from [Husband].”
An unconscionable disparity may be based on the relative percentage the dependent spouse’s income was of the other spouse’s income. However, a finding of mathematical disparity alone will not automatically trigger an award of indefinite alimony; and the trial judge must carefully consider each of the factors spelled out in FL § 11-106(b). Ware, 131 Md. App. at 232. “The interplay of those factors may frequently have a strong bearing on whether a disparity can fairly be found to be an unconscionable disparity.” Id. at 232-33.
It is clear that the trial judge carefully assessed the credibility of the witnesses in making his determination. Our role is not to make such assessments. The judge explained:
While the court appreciates that the parties have lived a modest lifestyle compared to their wealth, they also lived their lifestyle in a manner that allowed them to accumulate more money than they know what to do with, pay their mortgage off early, buy large purchases without accumulating debt, regularly give monetary gifts that met the maximum, IRS gift giving guidelines to a very large extended family and to save millions of dollars each year with the goal of creating generational wealth.
If Ms. Brasher relied on her projected monthly income of $23,046, she would live a very different lifestyle without future financial contribution from Mr. Brasher. In this case, that result would be particularly inequitable given that but for Mr. Brasher’s adultery Ms. Brasher’s station in life would have remained the same.
Under these circumstances, it would lead to an unconscionable disparate result if Ms. Brasher paid all of her living expenses with her projected income and monetary award when Mr. Brasher has the financial resources to comfortably pay Ms. Brasher a monthly alimony amount indefinitely.
We recognize that “even where the trial court must issue a statement explaining the reasons for its decision, the court need not articulate every step of the judicial thought process in order to show that it has conducted the appropriate analysis.” St. Cyr, 228 Md. App. at 187. The record reflects that the court performed the required analysis. We do not find that the court was clearly erroneous in its valuation of the parties’ income and
expenses or in finding that unconscionable disparity would result. We need not review the court’s award of monthly alimony to Wife in the amount of $35,000, as Husband does not contest the amount.
II. Marital Property
Marital property is “property, however titled, acquired by one (1) or both parties during the marriage.” FL § 8-201(e)(1).
A. Dissipation
Dissipation occurs “where one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time where the marriage is undergoing an irreconcilable breakdown.” Sharp v. Sharp, 58 Md. App. 386, 401 (1984). “The doctrine of dissipation is aimed at the nefarious purpose of one spouse’s spending for his or her own personal advantage so as to compromise the other spouse in terms of the ultimate distribution of marital assets.’” Omayaka, 417 Md. at 654. A court’s judgment regarding dissipation is a factual one and, therefore, is reviewed under a clearly erroneous standard. Id. at 652.
The party asserting a claim of dissipation has the initial burden of production.” Goicochea, 256 Md. App. at 340 (quoting Omayaka, 417 Md. at 656) (internal citation omitted). “Once that party has made a prima facie showing of dissipation, the burden of production ‘shifts to the party who spent the money to produce evidence sufficient to show that the expenditures were appropriate[,]’ i.e., that they were made for family purposes.” Id.
Husband argues that the court erred in finding that he dissipated property. He contends that his monetary contributions to his siblings occurred during the course of the parties’ marriage and prior to its breakdown. While generally, Husband’s actions may not have been deemed as dissipation, “dissipation may [still] occur on occasions in which (1) the marriage is not undergoing an irreconcilable breakdown, and/or (2) the dissipating spouse’s principal purpose was a purpose other than the purpose ‘of reducing the amount of funds that would be available for equitable distribution at the time of the divorce.’” Goicochea, 256 Md. App. 350 (citing Omayaka, 417 Md. at 652, quoting, Welsh v. Welsh, 135 Md. App. 29, 51 (2000)).
Here, the court found that Husband had a practice of giving his siblings the maximum tax-free amount of money allowed by the IRS and he also purchased cars for them. While Husband claimed that Wife knew about the gifts, the court “[did] not find his testimony credible” and that Husband’s giving was without Wife’s knowledge or consent.” “[Husband] has a long time practice of giving his siblings a maximum amount of money allowed by the IRS as annual gift exclusion, along with the purchase of cars, without [Wife’s] prior knowledge or approval.” It is clear that the court found Husband’s actions an improper diversion or depletion of marital funds stating that “the marital estate would be worth at least $2 million more but for Husband’s gifts.”
During the separation, the parties’ joint bank account contained an initial balance of $605,000. At the time of trial, Wife admitted that only $50,000 remained in the account. The court carefully considered and addressed Wife’s spending from the joint bank account and whether she depleted funds with the intent to reduce the marital assets. The court found that Husband did not present credible evidence to show that Wife withdrew funds to avoid an inclusion in their marital assets and that he had not met the prima facie burden of proving dissipation. Given the size of the estate, Wife’s withdrawal did not measurably reduce the estate and her post-separation spending was commensurate with her spending patterns before the marriage began to deteriorate. The court found that “[Wife’s] current living expenses, maintenance of the home and ongoing attorney’s fees justified withdrawal” of funds from the parties’ joint bank account. “When a spouse uses marital property to pay his or her own reasonable attorney’s fees, such expenditures do not constitute dissipation of marital assets.” Allison v. Allison, 160 Md. App. 331 (2004). The court’s finding that Husband did not establish that Wife dissipated assets is supported by substantial evidence and is not clearly erroneous.
B. Real Property
When the division of marital property by title is inequitable, the court may adjust the equities by granting a monetary award. Innerbichler, 132 Md App. at 227. When a party petitions for a monetary award, the trial court must first follow a three-step procedure. See FL §§ 8–203, 8–204, and 8–205. See also Ware v. Ware, 131 Md. App. 207 at 213. First, for each disputed item of property, the court must determine whether it is marital or nonmarital. Second, the court must determine the value of all marital property. Third, the court must decide if the division of marital property according to title will be unfair; if so, the court may make a monetary award to rectify any inequity. Dobbyn v. Dobbyn, 57 Md. App. 662, 679 (1984). After the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in real property jointly owned by the parties and used as the principal residence of the parties when they lived together, subject to any encumbrance. See FL § 8-205(a)(2)(iii). In the present case, the marital home is not encumbered by any liens. Wife has remained in the home and has been an active member in the community including serving as president of the HOA; Husband had not lived at the residence since 2019. To offset Husband’s depletion of marital assets, the court transferred the marital home valued at $2,247,000 million to Wife.4 Husband does not contest the court granting Wife a monetary award or Wife obtaining ownership of the marital home. He contends the court erred because the transfer of the marital home was based on the court’s erroneous finding that Husband owned a separate residential property. Husband’s argument is without merit. As we see it, although the word “purchased” was used by the court, in
reference to Husband’s current housing, the record before the court did not show that he actually owned separate real property and no such property appears in the court’s calculations. Husband did not list ownership of real property on the parties’ Joint Statement and the court’s Revised Marital Property Determination stated that the only real property Husband and Wife owned was the marital home. The allocation of an asset as marital property or non-marital property is a question of fact. The court was not clearly erroneous in assigning the parties’ marital property. Further, we hold that the court’s misstatement was a mere slip of the tongue and did not impact its distribution of the parties’ assets.
Husband also disputes the trial court’s conclusion regarding the fair market value of the marital home because he was willing to purchase it for $3 million. The court disagreed and found Wife’s expert’s valuation of “$2.2 million to be more credible than [Husband’s] amount.” Similar to deciding whether property is marital property or non-marital property, the court’s valuation of the marital property is a question of fact. The court valued the marital home at $2,247,000. We have held:
In its assessment of the credibility of witnesses, the [trial court] was entitled to accept—or reject—all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence. The finding that [Wife] had testified truthfully was therefore not erroneous—clearly or otherwise—merely because the [trial court] could have drawn different “permissible inferences which might have been drawn from the evidence by another trier of the facts.”
Omayaka, 417 Md. App. at 659 (quoting from Hous. Opportunities Comm’n of Montgomery Cty v. Lacey, 322 Md. 56, 61 (1991)) (emphasis in the original). The court was entitled to assess and weigh the credibility of the witnesses in its decision. Its findings were supported by the evidence and not clearly erroneous. After the court values the marital property, it determines whether a monetary award is appropriate. The court’s decision to grant a monetary award and the amount of the award is reviewed under the abuse of discretion standard. Because the Husband does not challenge the $2.5 million monetary award to Wife, the court need not evaluate the factors detailed in FL § 8-205(b). Nevertheless, because marital property and a monetary award are interrelated, we find the court’s decision to award Wife a $2.5 million monetary award was not arbitrary or an abuse of discretion.
In sum, the court’s findings were not erroneous nor did it abuse its discretion in granting Wife indefinite alimony of $35,000 per month; and in not finding that Wife dissipated marital assets. Further, the court’s misstatement that he owned real property was an inadvertent slip of the tongue and was not a clearly erroneous finding nor an abuse of discretion.
THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY IS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Husband’s questions, as stated in his brief are:
I. Did the trial court err, abuse its discretion, and was clearly erroneous when it disregarded its finding that Catherine would be self-supporting and concluded that the lifestyles of the parties would be unconscionably disparate without an award of $35,000 per month in indefinite alimony to Catherine?
II. Was the trial court’s decision to transfer ownership of the marital home to Catherine defective because it was based on the clearly erroneous finding of fact that Lance owned a residential property of his own?
III. Was the trial court clearly erroneous, and did err as a matter of law when it treated the monetary gifts made by Lance to his siblings as if the gifts were dissipated marital assets?
IV. Was the trial court clearly erroneous, and did it err as a matter of law when in valuing the marital home, it ignored the repeated offers of Lance as a ready and willing buyer for $3,000,000, in favor of a lower appraisal value of $2,247,000?
V. What remedies is Lance entitled to?
2 Wife’s questions, as stated in her brief are:
I. Was the trial court’s alimony award to Catherine an abuse of discretion?
II. Was the trial court’s award of the marital home to Catherine at a particular value an abuse of discretion?
III. Was the trial court’s denial of Catherine’s motion to re-open the record to update liquid account balances following a substantial delay between trial and resolution an abuse of discretion?
IV. Was the trial court’s declination to increase Catherine’s equitable distribution monetary award following a multimillion dollar correction to its martial property determination an abuse of discretion?
3 After oral argument, Husband filed a motion to dismiss the conditional cross-appeal for mootness on the
ground that he had paid Wife the $2.2 monetary award; to be paid in four equal installments. Husband disbursed one-half of the monetary award on April 17, 2023, and the balance on May 25, 2023. Wife accepted both installments and filed a line of satisfaction with the circuit court on October 5, 2023. “[T]he ‘general rule’ is that ‘an appellant cannot take the inconsistent position of accepting of benefits of a judgment and then challenge its validity on appeal.’” Turner v. Turner, 147 Md. App. 350, 381 (2002) (citing from C.f. Downtown Brewing Co., Inc. v. Mayor of Ocean City, 370 Md. 145, 149 (2002)). “[T]he right to appeal may be lost by acquiescence in, or in recognition of, the validity of the decision below from which an appeal is taken. ” Id. Husband’s motion fails on two grounds. First, Husband’s motion to dismiss was untimely filed more than ten days after the issue became moot. See Md. Rule 8-603(a)(4). Second, “the acquiescence rule does not apply where the right to the benefit received is conceded by the opposite party.” Dietz v. Dietz, 351 Md. 658, 687 (1998) (internal citation omitted). Husband’s issues on appeal include: the trial court granting Wife indefinite alimony; Husband’s mistaken characterization of dissipation; and Husband’s misguided representation that the trial court attributed ownership of real property to him. While those areas are interrelated to Wife’s monetary award, Husband does not contest Wife’s “right to have a monetary award…, the total amount of the award, and the rate at which that award is to be paid.” Dietz, 351 Md. at 687. Ultimately, we dismiss Husband’s motion as moot because Wife’s appeal is moot
4 In the judgment of absolute divorce, the court ordered Husband to transfer to Wife the deed to the marital property. A court has no authority to transfer ownership of property from one party to the other. FL § 8-202(a)(3). However, a court may transfer ownership of an interest in the parties’ jointly owned marital home. See FL§ 8-205 (emphasis supplied). The issue was not raised on appeal or cross-appeal and will not be addressed by this court.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit order granting father tie-breaking authority or physical custody of the two minor children while also changing mother’s access schedule.
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
court judge, which took place on November 2, 4, and December 28, 2022.
We will summarize the testimony of the main witnesses at the hearing. Father testified about his relationship with his current partner, with whom he has a child. The three live with W and G in a three-bedroom house in Baltimore County. The children attend school in his school district, which is only a few miles from Mother, who lives in Baltimore City. Father testified about his impressions of the personalities of the children and noted they were engaged in a variety of sports and other extra-curriculars. Father testified that at his house the children were expected to perform various chores, and they were not permitted access to any electronic devices until their homework was done.
Appellant Valerie Codd Browning (“Mother”) and appellee Shawn Browning (“Father”) each filed motions to modify custody of their two minor children. Following a hearing, the Circuit Court for Baltimore County granted Father’s custody request and denied Mother’s requested relief. On appeal, Mother argues the circuit court (1) erred in granting Father tie-breaking authority, (2) erred in granting Father physical custody of the children while also changing Mother’s access schedule, and (3) erred in denying Mother’s request to alter or modify the court’s decision.1 For the reasons we discuss below, we affirm the judgment of the circuit court.
FACTS AND LEGAL PROCEEDINGS
In September 2016, the parties divorced. Mother and Father have two minor children, W and G, who were aged thirteen and ten, respectively, at the time of the modification hearing here. By the terms of a marital settlement agreement, the parties agreed to joint legal and shared physical custody of the children on a schedule delineated in the agreement.
In 2018, both parties moved to modify custody. A hearing was held before a family magistrate. During the hearing, according to the docket entries, the parties reached an agreement. Oddly, no agreement was placed on the record before the magistrate, nor did the circuit court review and ratify a proposed order from the magistrate embodying the parties’ supposed agreement.2
Later, both parties again moved to modify custody, Father in 2020 and Mother in 2021. The circuit court appointed a Best Interests Attorney for the children, and the dueling modification motions were set for a hearing before a circuit
According to Father, he moved to modify custody because he thought Mother was becoming negligent in her care of the children. He cited numerous examples including his impression that the children were inadequately fed when they were with Mother, and that their hygiene was poor after returning from her care. He called Mother’s house “a mess.” He cited examples of what he deemed Mother’s neglect of G, who has medical and developmental issues, including a fall G experienced while with Mother which caused an injury to G’s eye that Father thought was serious, but Mother did not. Overall, he believed Mother was a permissive and inattentive parent.
Mother testified that she lives in a two-bedroom apartment in Baltimore City. She works as a special educator in the City’s public school system. She described the current custody arrangement in which she has the children on a shared weekly basis with Father.3 One major concern she raised was Father’s alleged over-consumption of alcohol, leading to his hospitalization, which happened while the children were in his custody. She mentioned a 2019 agreement in which Father agreed to install an ignition lock device on his vehicle so that it would only start after he’d blown into a “breathalyzer.” He also agreed to send her the results of the breathalyzer.
Mother testified that she was in good health and had no physical or mental impairments that would prevent her from caring for the children. Like Father, Mother gave her impressions of the children’s personalities and described how well the children got along with each other. By way of countering one of Father’s concerns about the lack of discipline at her house, Mother explained that she “do[es] a lot of explaining”
to the children if they misbehave and then will administer appropriate consequences. She testified she is their sole caregiver when they are with her, providing them with nutritious meals, clean clothing, regulating their schedules (including completing homework), and tending to any medical needs, etc.
As for her specific concerns with G, Mother described physical and academic delays G has experienced from infancy to the present. G currently has an Individualized Education Program (IEP) in math and English at school. As a result of physical, cognitive, and emotional challenges, G has seen several physicians. For our purposes we need not dwell on the number, specializations, and treatment each doctor rendered to G, but Mother’s testimony went into detail on these topics. Mother testified she made and ensured G attended all appointments and has kept Father informed as well.4
Mother described Father as being “aggressive and accusatory” in his communication with her. For example, she stressed that the number and content of nearly every email he sent her “border[ed] on harassment.” She claimed he withheld information about the children and their activities, such as camping trips and music lessons: Mother said she knew the children were engaged in these activities, but she did not know where they were taking place. She denied being inattentive and uncaring about the children’s well-being. In her estimation, the children were anxious, sad, or frustrated when they returned from spending time with Father. Further, Mother felt it was important to tell the children’s pediatrician and other physicians about Father’s alleged drinking because the children were fearful and in danger, in her opinion. Overall, Mother thought Father was controlling and emotionally and verbally abusive toward her.
Without objection, the Best Interests Attorney called Dr. Johari Massey, a clinical psychologist, to testify as an expert witness, chiefly about her observations and conclusions concerning G’s emotional and psychological health. Dr. Massey testified that she first did a psychological assessment of G, which included an anxiety measure. Dr. Massey noted that despite both parents’ claims that the other had emotionally abused G, the psychological assessment showed no such abuse. Dr, Massey ultimately diagnosed G with “generalized anxiety disorder, separation anxiety disorder, and ADHD (Attention Deficit Hyperactivity Disorder).” As a result, Dr. Massey found that G “gets very emotionally dis-regulated pretty easily. And this will lead to difficulties processing information altogether, meaning that [G] has a hard time putting the information together ” Because of the severity of the delays and lack of treatment. Dr. Massey discontinued the assessment recommending immediate treatment.
Dr. Massey found that G’s anxiety was triggered by Mother’s “enmeshment.” 5 Further, it seemed to Dr. Massey that G was exposed to the parents’ inappropriate boundary setting. Father’s boundaries were too rigid, while Mother’s were too loose and overlapping, leading G to struggle with how to cope with stress. Dr. Massey concluded that Mother was G’s source of coping, but that G simultaneously took on Mother’s anxieties as well. Dr. Massey spoke to both parents about how to address this imbalance. Additionally, Dr.
Massey worried that Mother sleeping in the same bed with both children, an issue that Father had raised, would not decrease the enmeshment. After the last meeting with the parents, when Dr. Massey revealed her findings, according to Dr. Massey, Father was upset but stated he would try to follow Dr. Massey’s recommendations. Mother, on the other hand, was also angry, but tried to blame Father, sending Dr. Massey several emails after their last meeting, blaming G’s issues on Father’s supposed drinking and domineering attitude.
After hearing testimony from several additional witnesses, including other doctors who treated both children, G’s teacher, and an oral report from the Best Interest Attorney, the court issued a fifteen-page memorandum opinion. The court concluded that a material change in circumstances occurred since the parties’ original custody agreement was entered in 2016,6 specifically major changes in the health of both children. The court listed the various somatic and psychological diagnoses of both children, particularly G. None of these ailments affected the children in 2016.
Having found a material change in circumstances, the court engaged in an analysis of each of the so-called Taylor7 factors. The court concluded that, despite their personality differences, it was in the children’s best interests that both parents should be involved in major decisions affecting the children, particularly those concerning the children’s health. The court awarded the parents joint legal custody. However, because the court found Father “ha[d] better insight and understanding of the children’s needs,” if after “reasonable discussions” the parties were at an impasse, Father would be the final decision maker. The court awarded Father primary physical custody of both children. In rendering this decision, the court found that Mother showed little insight into how her behavior harmed the children. Furthermore, she struggled to meet the children’s daily needs.
Mother filed a timely notice of appeal of the court’s order. Additional facts will be discussed as needed.
DISCUSSION
I. THE COURT DID NOT ABUSE ITS DISCRETION IN GRANTING FATHER TIE- BREAKING AUTHORITY
In her first issue, Mother contends that the circuit court erred when it granted Father tie-breaking authority in the event the parties are unable to reach a joint decision after good- faith discussions. She argues that the court abused its authority because the record, in her opinion, shows that Father “either failed to believe or support [G]’s special needs.” Mother asserts that she is better attuned to G’s needs, particularly his medical diagnoses and the recommended treatment.
Whether to grant a motion to modify child custody rests within the sound discretion of the circuit court and will not be disturbed absent legal error or abuse of discretion. Kaplan v. Kaplan, 248 Md. App. 358, 385 (2020) (quoting Ruiz v. Kinoshita, 239 Md. App. 395, 425 (2018)). When an action has been tried without a jury, we review the case on both the law and the evidence. MD. R. 8-131(c); Ley v. Forman, 144 Md.
App. 658, 665 (2002). We give due regard to the opportunity of the circuit court to evaluate the credibility of the witnesses, and we will not set aside the court’s factual findings unless they are clearly erroneous. Id.
Maryland law provides that a circuit court has continuing equitable jurisdiction over custody matters. The relevant statute provides: “In exercising its jurisdiction over the custody, guardianship, visitation, or support of a child, an equity court may: . . . from time to time, set aside or modify its decree or order concerning the child.” MD. CODE, FAM. LAW (“FL”) § 1-201(c). “Because the court retains continuing jurisdiction over the custody of minor children, no award of custody or visitation, even when incorporated into a judgment, is entirely beyond modification, and such an award therefore never achieves quite the degree of finality that accompanies other kinds of judgments.” Frase v. Barnhart, 379 Md. 100, 112 (2003).
Our courts engage in a two-step process when presented with a request to modify an existing custody order. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). First, the circuit court must assess whether “there has been a material change in circumstances.” Green v. Green, 188 Md. App. 661, 688 (2009). “A material change of circumstances is a change of circumstances that affects the welfare of the child.” Gillespie, 206 Md. App. at 171. Second, should the court find a material change in circumstances, “the court then proceeds to consider the best interests of the child as if the proceedings were one for original custody.” Id. at. 170 (quoting McMahon v. Piazze, 162 Md. App. 588, 594 (2005)). The trial court is thus required to evaluate each case on an individual basis to determine what is in the best interests of the child. Wagner v. Wagner, 109 Md. App. 1, 39 (1996).
This Court and the Supreme Court of Maryland have consistently held that a circuit court’s grant of tie-breaking authority to one parent in a shared legal custody arrangement is permissible, and, in some cases, necessary. In the first case to discuss the concept of tie- breaking authority, Shenk v. Shenk, 159 Md. App. 548, 556 (2004), we held that the trial court “acted within its legal authority” in awarding joint legal custody and designating one parent as the “tie[-]breaker” if the parents disagreed about a consequential matter affecting their children. Further, we rejected the argument that Taylor precluded such an award by noting that Taylor “expressly acknowledged the existence of ‘multiple forms’ of joint custody” and rejected formulaic approaches to child custody matters as inconsistent with the “‘unique character of each case.’” Id. at 560 (quoting Taylor, 306 Md. at 303). In our view, joint legal custody with tie-breaking authority to one parent was a form of joint custody. Id. (“The accommodation fashioned by the trial court does not transform the arrangement into something other than joint custody.”). We reasoned that the trial court’s ability to fashion such an award was “in keeping with the ‘broad and inherent power of an equity court to deal fully and completely with matters of child custody.’” Id. (quoting Taylor, 306 Md. at 301).
Later, in Santo v. Santo, 448 Md. 620 (2016), the Supreme Court of Maryland (at the time called the Court of Appeals) affirmed the propriety of awarding tie-breaking authority to
one parent when the parties shared legal custody. There, the father argued that the circuit court erred in granting the parties joint legal custody because the circuit court had determined that parents had been continually “at war” with each other. In the father’s view, joint legal custody required the parents have the ability to communicate and be capable of making joint decisions. The father argued that he and the mother simply could not do so. Id. at 626. Further, the court erred in granting the mother tie-breaking authority if the parties could not reach a final decision, so the father contended, because granting one parent the ability to override the other was inconsistent with Taylor and FL § 5-203(d), which provides “a court may award custody of a minor child to either parent or joint custody to both parents.” In the father’s view, the circuit court could either grant one parent sole, or both parents joint legal custody, with “no option to create ‘hybrids of the two.’” Santo, 448 Md. at 631.
The Supreme Court of Maryland disagreed, holding that, consistent with Taylor, an award permitting both parents an equal voice in decision-making but also giving one parent the ability to make a final decision after good faith discussions, was permissible. “[S]uch an award is still consonant with the core concept of joint custody because the parents must try to work together to decide issues affecting their children.” Id. at 633. After reviewing decisions of other jurisdictions that permitted the use of tie-breaking authority to one parent, the Court noted that “[t]he requirement of good faith communication between the parents helps to ensure the parent with tie-breaking authority does not abuse the privilege of being a final decision-maker. And a court has the means to sanction a breach of good faith.” Id. at 634. Ultimately, the Court determined that to constrain circuit courts from fashioning appropriate custody awards was inconsistent with the court’s “broad inherent power . . . to deal fully and completely with matters of child custody.” Id. at 636 (emphasis in original).
In this case, the circuit court carefully considered the testimony of the parents, the children’s doctors (including a child psychologist), family members, and teachers in rendering the decision to grant both parents joint legal custody. The court articulated its reasoning, namely, that Father was better capable of addressing the children’s needs, particularly G’s medical needs, in awarding him tie-breaking authority. The court contrasted Father’s abilities with Mother’s apparent inability, in the court’s view, to distance her emotional needs from the children’s, especially G. The court concluded that Mother had less insight in this area. The court admitted that both parents had trouble communicating but concluded that it was in best interests of both children that the parents try to communicate and attempt to make joint decisions. The court’s grant of tie-breaking authority to Father, consistent with the holdings in Shenk and Santo, was not an abuse of discretion.
II. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN AWARDING FATHER SOLE PHYSICAL CUSTODY OF THE CHILDREN AND CHANGING MOTHER’S ACCESS
In her next issue, Mother asserts the circuit court abused
its discretion in awarding Father sole physical custody of the children. She also advances an allied argument that there was no basis for the court to award Father residential custody and to reform the visitation schedule from the shared access she previously enjoyed. Mother bases both arguments on her claim that the court ignored the weight of the evidence, suggesting that Father’s behavior was the real cause of G’s anxiety. Further, she claims the court erred in crediting Father’s recognition that his assertive and controlling behavior had to end to better address G’s needs.
As previously discussed, in a custody modification hearing, if the court determines that a material change in circumstances has occurred the court must then engage in an analysis of what custody arrangement would be in the child’s best interests. Gillespie, 206 Md. App. at 170-71. The court is required to evaluate the specific facts of the case to determine the child’s best interests. Wagner, 109 Md. App. at 39. Again, whether to grant a motion to modify child custody rests within the sound discretion of the circuit court and will not be disturbed absent legal error or abuse of discretion. Kaplan, 248 Md. App. at 385.
In determining what custody arrangement, both legal and physical, are in the child’s best interests, courts are guided by the factors articulated in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420 (1977), and, with particular relevance to the consideration of joint custody, Taylor v. Taylor, 306 Md. 290, 304-11 (1986). In Sanders, this Court listed ten non-exclusive factors: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of parents and opportunity for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. at 420.
In this case, the circuit court took the testimony of several witnesses over four days and rendered a fifteen-page memorandum opinion that analyzed each of the relevant Sanders and Taylor factors in detail. We review the factors the court deemed most appropriate to determine if the court abused its discretion in modifying residential custody and Mother’s access.
The court focused on each parent’s fitness to exercise physical custody. In doing so, the court stated that it gave weight to the testimony of the children’s doctors and their teachers in determining fitness. Starting with Father’s allegation that Mother was unable to provide a proper living and learning environment, the court reviewed a Department of Social Services investigative report from October 2020. That report, which was admitted into evidence without objection, detailed interviews with both children, who described Mother’s home as “usually messy.” The children described Mother’s inability and unwillingness to prepare meals for them, leaving them to eat “chips, yogurt, and lollipops.” Further, the children reported that they and Mother slept in a single bed, but, at the time of the investigation, were not doing so.
The children reported that while they were engaged in virtual learning during the pandemic, G would awaken Mother, but that she would go back to sleep until around noon, leaving the children, particularly G, unattended. This seemingly confirmed Father’s allegation that Mother was inattentive when the children were engaged in virtual learning.
The court was even-handed in relating its concerns about both parents. For example, the court credited Mother’s allegation that Father was strict with the children. This fact was confirmed by Dr. Massey’s appraisal of Father that he was “too rigid,” causing G additional anxiety. Further, the court found credible Mother’s assertion that Father did not believe that G suffered from ADHD (though G was medically diagnosed with the disorder), and, further, Father refused to give G the prescribed medication. As for Mother, the court credited Dr. Massey’s report that Mother tended to infantilize the children, G particularly, and that Mother was emotionally enmeshed with G. Further, the court, through Dr. Massey’s testimony, credited Father’s concerns that Mother’s house was “a mess,” and that the children and Mother sharing a bedroom was inappropriate given the children’s ages. The court concluded that Mother did not understand the gravity of her behavior and was actively resistant to change, as exemplified by her anger over Dr. Massey’s report and emails to Dr. Massey blaming Father’s drinking for the children’s anxiety, Turning next to the character and reputation of the parties, the court focused on Mother’s allegation that Father had not stopped drinking, even though Mother admitted she had not seen Father drinking. Mother’s suspicion that Father continued to drink arose because of what she deemed his “concerning” behavior. For example, Father placed what she discovered was a GPS tracker in G’s backpack. Further, Mother raised concerns about Father’s purported use of corporal punishment.
Father and the Best Interests Attorney, on the other hand, the court noted, were concerned with Mother’s allegedly “skew[ed] view” of how best to address G’s needs. Father cited Mother delaying treatment for G and switching G’s doctors when G received a diagnosis with which Mother disagreed. Instead, Mother chose to pursue homeopathic treatments for G’s anxiety. G’s third-grade teacher also raised concerns about Mother’s oversight of G’s schooling noting that Mother rarely had G’s camera on. She also talked to Mother about this in relation to G’s learning disability. The court reiterated concerns that Dr. Massey raised about the vastly different degrees of structure in both parents’ homes.
As for the other Sanders Factors, the court noted that: the parties were unable to reach a final agreement on the issue of custody (Factor 3); the parties agreed to maintain family relationships (Factor 4); the children had not expressed any preferences about a custody arraignment (Factor 5); the court noted the age and sex of both children and gave a detailed recitation of the mental health issues facing both children (Factor 6); the court described the residences of both parents (Factor 7); the parties have lived separately since 2014 (Factor 8); there had been no voluntary surrender of the children by either parent (Factor 9); the parties could not reach shared decisions affecting the children (Factor 10);
both parents preferred to have sole custody of the children and were unwilling to share custody (Factor 11); both children enjoyed a good relationship with the parents (Factor 12); there would be no disruption of the children’s schooling and relationship with friends regardless which parent had custody because the parents lived in close proximity to each other (Factors 13 and 14); the court recounted the parents’ employment and its impact on time with the children (Factor 15); the court found that both parents’ desire for custody was sincere (Factor 16); the court recounted the financial earning of the parties (Factor 17); the court noted that, despite Mother’s allegation that Father had relapsed into alcoholism, there was no proof of that, and that Father had a stable home life. The court noted the Best Interest Attorney’s and Father’s concern that Mother was unable to provide a stable living environment for herself or the children, noting that she was unwilling (or unable) to convert the other room in her apartment into a separate bedroom for the children (Factor 18); neither parent received federal or state assistance, and that both children would benefit in some way with being with either parent (Factor 19).
From this analysis, the court determined that Father was fit to have physical custody of the children. As to Mother, on the other hand, the court found, “showed limited insight and understanding” of the children’s daily needs. Father was more involved than Mother with the children’s schooling, and the court found that he would best ensure that both children would receive the schooling and extracurricular activities that the children needed or requested. The court acknowledged that Father recognized the need to modify his behaviors, but Mother had not. Based on this analysis, we cannot say that the court’s decision was an abuse of discretion or so wide of the center mark to merit reversal. See Santo, 448 Md. at 626 (“Put simply, we will not reverse the trial court unless its decision is ‘well removed from any center mark imagined by the reviewing court.’” (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 313 (1997))).
On the issue of Mother’s visitation, the court stated that the children should have “generous parenting time/access with [Mother].” Her visitation was to include, but was not limited to, alternating weekends from Friday after school to Monday morning, with Mother taking the children to school, plus one evening per week, as agreed to by the parties. As for the summer schedule, the parties were to alternate weekly visitation between them, as well as divide the children’s spring and winter breaks. All other holidays were to be determined by the parties themselves. Having found Father to be the better parent to exercise residential custody, we find no fault in the court’s determination about Mother’s visitation. We certainly understand that this was a change from the shared custody arrangement previously in place, but it is wholly in keeping with the court’s determination that a material change in circumstances had occurred and what was in the children’s best interests, as we have discussed. We perceive no error.
JUDGMENT
III. THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING MOTHER’S MOTION TO ALTER OR AMEND
Finally, Mother asserts the circuit court fatally erred in denying her motion to alter or amend. Specifically, Mother argues the court should have heard her “additional evidence” about her new living arrangements.
Maryland Rule 2-534 states in pertinent part that [i]n an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment.
We review the trial court’s denial of a motion to alter or amend under Maryland Rule 2- 534 for abuse of discretion. Barrett v. Barrett, 240 Md. App. 581, 591 (2019) (citing Shih Ping Li v. Tzu Lee, 210 Md. App. 73, 96-97 (2013)). That discretion is “always tempered by the requirement that the court correctly apply the law applicable to the case.” Id. (quoting Rose v. Rose, 236 Md. App. 117, 130 (2018)).
Essentially, Mother argues the court rejected her motion out of hand and did not consider that she made different living arrangements sometime after the modification hearing. In its written opinion, the court noted that the children had been living with Mother in a two-bedroom apartment and shared a bed with her for some time. Dr. Massey determined such an arrangement was unhealthy for the children. The court also noted this in its findings and gave Dr. Massey’s opinion significant weight.
But the court’s decision to modify custody and visitation rested on far more than just Mother’s living arrangements. As explained in detail in the foregoing section of this opinion, the court was concerned with the parties’ parenting styles and decisions, but, on balance, found that Father was better able to meet the children’s daily and long-term needs by providing them adequate food, ensuring they practiced appropriate hygiene, addressing their medical and educational requirements, as well as providing a stable home. The court was very concerned that Mother was unable to meet these basic requirements if she were to be the custodial parent. And, equally important, the court determined that Mother was too emotionally enmeshed with G and too preoccupied with litigating Father’s supposed transgressions to acknowledge her own role in creating an unhealthy environment for the children. On this record, we cannot say the court abused its discretion in denying Mother’s motion to alter or amend the judgment because she has found alternate living arrangements after the hearing.
OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED; APPELLANT TO PAY THE COSTS.
FOOTNOTES
1 Mother’s verbatim questions are:
I. WHETHER IT WAS AN ABUSE OF DISCRETION FOR THE CIRCUIT COURT TO GRANT FATHER TIE-BREAKING AUTHORITY ON LEGAL CUSTODY DECISIONS, PARTICULARLY WHEN HE HAD DENIED THE CHILD’S DIAGNOSES AND TREATMENT?
II. WHETHER IT WAS AN ABUSE OF DISCRETION FOR THE CIRCUIT COURT TO AMEND THE PHYSICAL CUSTODY SCHEDULE ABSENT ANY FINDING THAT A MATERIAL CHANGE HAD OCCURRED WHICH WARRANTED A CHANGE IN PHYSICAL CUSTODY, RATHER THAN LEGAL CUSTODY?
III. WHETHER IT WAS AN ABSUE OF DISCRETION FOR THE CIRCUIT COURT TO GRANT FATHER “PRIMARY” PHYSICAL CUSTODY, RELYING ON THE PREMISE THAT FATHER WILL CHANGE HIS BEHAVIOR?
IV. WHETHER IT WAS AN ABUSE OF DISCRETION FOR THE CIRCUIT COURT TO OUTRIGHT REJECT MOTHER’S MOTION TO ALTER OR AMEND DEMONSTRATING HER NEW HOUSING ARRANGEMENTS WHEN THE COURT
HAD RAISED CONCERNS ABOUT HER HOUSING IN AWARDING FATHER PRIMARY PHYSICAL CUSTODY?
2 Despite this strange omission, testimony at the modification hearing now at issue revealed that the parties kept in place the same shared physical custody arrangement they had reached in 2016.
3 “I have them Sunday nights, Monday, and Tuesday, they go back to [Father] Wednesday morning and Thursday and then we alternate Friday and Saturday.”
4 Mother testified about some emotional issues that W was experiencing, and the treatment received.
5 “An enmeshed relationship is a type of relationship between two or more people in which personal boundaries are unclear and permeable. This often happens on an emotional level in which two people ‘feel’ each other’s emotions, or when one person becomes emotionally escalated and the other family member does as well.” New Haven Treatment Center. https://www.newhavenrtc.com/parenting-teens/understanding- enmeshment/.
6 We note that neither parent disputed that, despite going before a magistrate on March 25, 2019, and supposedly reaching an agreement, they were still adhering to the terms of the 2016 custody order in which they shared legal and physical custody of both children.
7 Taylor v. Taylor, 306 Md. 290 (1986).
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
This case is before us on appeal from an order of the Circuit Court for Frederick County denying a motion to terminate alimony filed by Stephen George Whiteside (“Husband”) and a motion to modify alimony filed by Leila Whiteside (“Wife”). After a three-day hearing on the parties’ motions, which included the presentation of six witnesses and 107 exhibits, the circuit court took the matter under advisement and subsequently issued a memorandum opinion and order denying both parties’ motions and continuing the existing alimony award. The circuit court also awarded attorneys’ fees to Wife in the amount of $40,000. Husband noted an appeal. On appeal, Husband presents eight issues1 for our review, which we have rephrased and consolidated as three issues as follows:
I. Whether the circuit court erred and/or abused its discretion when determining Wife’s earning capacity and imputing income of $40,000 per year to Wife.
II. Whether the circuit court erred and/or abused its discretion by denying Husband’s motion to terminate alimony.
III. Whether the circuit court erred and/or abused its discretion by awarding Wife attorneys’ fees. For the reasons explained herein, we shall affirm.
FACTS AND PROCEEDINGS
Husband and Wife were divorced pursuant to a Judgment of Absolute Divorce (“JAD”) dated September 12, 2016. They are the parents of two emancipated children. During their marriage, Husband worked as an attorney and Wife was primarily responsible for caring for the parties’ children and
home. Pursuant to the JAD, Husband was required to pay Wife “Five Thousand Five Hundred Dollars ($5,500.00) per month as and for indefinite alimony.” Various motions regarding child access and financial issues were filed in the years following the entry of the JAD, including one that resulted in a Final Order Modifying Judgment of Absolute Divorce dated August 16, 2019 (the “2019 Order”). The 2019 Order modified custody and child support but did not address indefinite alimony, nor was any issue relating to indefinite alimony raised in the litigation that resulted in the 2019 Order. As we shall explain infra, certain portions of the 2019 Order were material to the circuit court’s determination in the matter at issue in this appeal.
On March 2, 2021, Husband filed a Motion to Terminate Alimony. On June 28, 2021, in the context of discovery, Husband filed a Motion for Protective Order, arguing that a protective order should be granted in light of Wife’s “history of annoyance and harassment of” Husband, which he alleged included harassment, stalking, and surveillance. He asserted that if Wife were given additional information regarding his finances, Wife would use that information to engage in further harassment. Father further asserted that his financial situation was “not relevant to the present action,” explaining: [W]hile the income and financial situation of [Husband] would be relevant to the determination of an alimony award, [Husband] has not pled and does not assert that he cannot pay the present alimony amount. He has further not pled that a decrease in his income or wealth has created a material change of circumstances warranting the termination of the alimony at this time. He has not pled any infirmity that limits his ability to pay the current alimony award. Because of [Husband]’s admission of and stipulation to current financial solvency, his financial situation is not relevant to the present action.
(Footnote and exhibit citation omitted.)
On September 7, 2021, Husband filed a Motion to Remove Case, asserting that he was unable to receive a fair trial in Frederick County because of the “previous actions in the matter and because of local prejudice.” The circuit court denied the motion on October 13, 2021. Husband filed a Renewed Motion to Remove Case on January 3, 2022, which was denied on February 1, 2022. The circuit court, however, ordered that a judge from outside Frederick County be designated to hear the matter. The case was subsequently specially assigned to Montgomery County Circuit Court Judge Harry C. Storm.
While Husband’s Renewed Motion to Remove Case was pending, Wife filed a Motion for Modification of Alimony on January 26, 2022. Both parties filed financial statements as well as amended financial statements. Multiple discovery disputes occurred in the litigation of the parties’ motions, including two motions to compel filed by Husband, both of which were denied. Husband engaged in extensive discovery, including the issuance of three sets of interrogatories to Wife, two requests for production of documents, and at least 36 notices of deposition of Wife, her banks, credit card companies, mortgage company, utility companies, friends, colleagues, her work supervisor, the Internal Revenue Service, her accountant, and her prior attorney. The financial statement filed by Wife on May 26, 2022 demonstrated that she earned $1,119 per month in wages; Husband’s financial statement demonstrated monthly earnings of $27,395 and a net worth of $1,162,380.
A three-day hearing was held on June 14-16, 2022. The circuit court heard testimony from six witnesses (including the parties) and was presented with a total of 107 exhibits. The circuit court took the matter under advisement at the conclusion of the hearing and subsequently issued a memorandum opinion and order on August 16, 2022.
The circuit court characterized Husband’s argument as follows:
In his broad brush/shotgun effort to prove that alimony should be terminated, [Husband] sought to show that [Wife] was not exerting good faith efforts to support herself, that she could be self-supporting, that she has hidden assets, that she has been nasty to him in her communications, that she has been tracking his movements and otherwise harassing him, that while his income is much higher than hers, he is living a relatively frugal lifestyle. In other words, he generally sought to show that [Wife] is not deserving of continued alimony. At the same time, [Husband] did not “assert that he cannot pay the present alimony amount.” Nor did he claim “that a decrease in his income or wealth has created a material change of circumstances warranting the termination of the alimony at this time” or that he has “any infirmity that limits his ability to pay the current alimony award.” Instead, the evidence showed (and [Husband] was not shy about admitting) that his true motivation was to “reverse the injustice of the May 2016 settlement.” He expressed his desire to get [Wife] “off [his] back” and to spend “as much as it takes” to do it . . . [Husband] wrote that “I have earned the money I have and I plan on enjoying the fruits of my labor.” [Husband] indeed spared no effort. He acknowledged having at least 36 (by the court’s conservative count) deposition notices issued in an effort to seek information about [Wife] from banks, homeowner associations, utility companies, lawyers, employers, insurance companies, and the like. Most of this was directed at his misguided and largely unsuccessful effort to show among other things that [Wife] is or was a Syrian intelligence officer who tracked his whereabouts and hacked his emails, hid her assets and failed to work. The evidence showed that he complained about his former wife to the Maryland State Police, the
Central Intelligence Agency, and the Federal Bureau of Investigation. He admitted that he had spent $140,000.00 (to the time of trial) on legal fees in his effort to prove his case. Much of [Husband]’s evidence at trial related to what [Wife] did with the assets she acquired through the divorce and how she spent the money that he agreed in 2016 she should have, but about which he appears to have been bitter ever since.
The circuit court described the parties’ conflicting positions regarding Wife’s potential earning capacity. The court observed that in the 2019 Order, Wife had been found to be voluntarily impoverished for child support purposes.2 In the 2019 Order, Wife was found to have reasonable monthly financial needs of $6,500 and an earning capacity of $3,750 per month. Per the 2019 Order, in addition to the $5,500 in alimony payments required by the JAD, Husband was ordered to pay child support of $1,000 per month until the parties’ younger child graduated from high school. The 2019 Order’s child support provision was subsequently modified by an en banc panel and increased to $2,068 per month.
The parties presented competing expert witness testimony regarding Wife’s earning capacity. Husband presented testimony from a vocational rehabilitation consultant, who opined that Wife, at age 62, is “very employable” in a number of fields and could expect to earn $50,000 per year, which was, in the circuit court’s view, “a bit optimistic and exaggerated.”3 The court found the testimony of Wife’s vocational rehabilitation counselor “more credible in certain respects, particularly as related to her view that [Wife’s] chances for success as a realtor, the field in which [Wife] has been lingering, are limited.” The circuit court observed that Wife’s vocational rehabilitation counselor opined that Wife’s employment potential “at this point in her life is not much greater than that of an entrylevel clerk, earning $26,000 - $29,000 per year (up to perhaps as high as $34,000).” The court observed that the estimate from Wife’s own expert was “much more than the $13,428 annualized wage amount shown on her financial statement” and found that Wife “is not maximizing her earning potential.”
The circuit court determined that Wife’s “earning and employment potential is relevant to the issue of whether alimony should be modified.” After “[w]eighing and considering all the evidence on the issue,” the circuit court determined that Wife was “capable of earning $40,000.00 per year, which averages to about $2,214.00 a month more than [Wife] claims as wages on her Financial Statement.” The court observed that “[w]hen this amount is added to [Wife]’s current alimony payment it results in monthly income of $8,158,” which was sufficient to meet the $8,000.00 per month amount the court considered to be a “reasonable monthly expense amount for [Wife].” The circuit court further found that “[j]ust as the $5,500.00 appears to have filled the deficit gap in 2016, so too does it continue to fill the deficit gap at this time.”
After addressing Wife’s earning capacity, the circuit court turned to the matter of whether termination of indefinite alimony was “necessary to avoid a harsh and inequitable result” pursuant to Md. Code (1984, 2019 Repl. Vol.), § 11-108 of the Family Law Article (“FL”). The circuit court found that termination was not necessary because “even after imputing
income to [Wife] it is clear that the alimony to which the parties agreed in 2016 as reflected in the JAD remains necessary and appropriate.” The circuit court further determined that “to the extent that [Husband] may have argued that there has been a material change of circumstances such that ‘justice requires’ a modification under” FL § 11-107(b), he had “not met his burden of showing such a material change.” The circuit court subsequently denied Husband’s motion to terminate alimony, as well as Wife’s motion to modify alimony.
The circuit court further addressed the matter of attorneys’ fees. The circuit court considered whether Husband had “substantial justification in filing” the motion to modify alimony, which the court found to be “a close call.” The court observed that in light of the 2019 Order addressing voluntary impoverishment, “there was some basis for thinking that circumstances warranted pursuing the issue of a modification.” The court, however, found that Husband’s “motive for the filing is concerning,” explaining that the motivation “had nothing to do with financial considerations; rather it had everything to do with seeking revenge for all the injustice [Husband] perceives [Wife] inflicted upon him.” Despite this observation, the circuit court did “not find that either party acted without substantial justification.” Nonetheless, the circuit court found that “after considering all of the FL § 11-110(c) factors, that an award of attorney[’s] fees to [Wife] is appropriate” because Husband “[w]ithout question . . . exacerbated the costs of the litigation,” and, “although he did so at great financial cost to himself, that cost did not seem to matter to him.” The court found that Husband was “in a far better place financially to bear the costs of the action which he initiated and which leaves the parties in the same position as that to which they mutually agreed in 2016.” Based upon the circuit court’s review of the invoices of counsel for Wife, “the court f[ound] it equitable to award [Wife] a portion of her total attorney[’s] fees in the amount of $40,000.00.”
Additional facts shall be discussed as necessitated by our consideration of the issues on appeal.
DISCUSSION
I. The Law of Alimony and Modification/Termination of Alimony
This Court has explained the standard for reviewing a circuit court’s determination on the modification of alimony as follows:
“[I]n reviewing an award of alimony we ‘defer[] to the findings and judgments of the trial court[.]’” Simonds v. Simonds, 165 Md. App. 591, 606 n. 4, 886 A.2d 158 (2005) (quoting Brewer v. Brewer, 156 Md. App. 77, 98, 846 A.2d 1 (2004)).
We will not disturb an alimony determination “unless the trial court’s judgment is clearly wrong or an arbitrary use of discretion.” Blaine v. Blaine, 97 Md. App. 689, 698, 632 A.2d 191 (1993), aff’d, 336 Md. 49, 646 A.2d 413 (1994). Furthermore, “[t]he doctrine of res judicata applies in the modification of alimony . . .and the [appellate] court may not re-litigate matters that were or should have been considered at the time of the initial award.” Id. at 702, 632 A.2d 191 (citations and internal quotation marks omitted).
[Md. Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”)] §§ 11–101 to 11-112 govern the award of alimony in Maryland. FL § 11-107(b) addresses the modification of alimony awards and provides that, “[s]ubject to § 8-103 of this article and on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require.” “A party requesting modification of an alimony award must demonstrate through evidence presented to the trial court that the facts and circumstances of the case justify the court exercising its discretion to grant the requested modification.” Langston v. Langston, 366 Md. 490, 516, 784 A.2d 1086 (2001). Upon a proper petition, the court may modify a decree for alimony “at any time if there has been shown a material change in circumstances that justify the action.” Lieberman v. Lieberman, 81 Md. App. 575, 595, 568 A.2d 1157 (1990) (citation and internal quotation marks omitted).
Questions that are left to the discretion of the trial court are “much better decided by the trial judges than by appellate courts,” because the trial court has the opportunity to evaluate the credibility of witnesses and become immersed in the evidence as it was presented at trial. Id. For this reason, “[a] ppellate discipline mandates that, absent a clear abuse of discretion, a [trial court’s] decision that is grounded in law and based upon facts that are not clearly erroneous will not be disturbed ” Guidash v. Tome, 211 Md. App. 725, 736 (2013) (quoting Bagley v. Bagley, 98 Md. App. 18, 31–32 (1993)). Only “where no reasonable person would take the view adopted by the [trial] court,” or “when the ruling is clearly against the logic and effect of facts and inferences before the court,” will we disturb the trial court’s ruling. Reynolds v. Reynolds, 216 Md. App. 205, 219 (2014) (internal quotations and citations omitted).
The award of alimony is governed by FL § 11-106. The purpose of alimony is to provide trial courts with the ability to ensure “an appropriate degree of spousal support . . .after the dissolution of a marriage.” Tracey, supra, 328 Md. at 388. It is well settled that the party seeking alimony bears the burden of proving the facts necessary to meet the statutory requirements. Simonds v. Simonds, 165 Md. App. 591, 607 (2005); Thomasian v. Thomasian, 79 Md. App. 188, 195 (1989). FL § 11-106(b) sets forth the factors that the trial court must review when issuing an award of alimony. These factors include:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the Health- General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
Although the court is required to give consideration to each of the factors contained in the statute as applicable to a given case, it is not required to employ a formal checklist, mention specifically each factor, or announce each and every reason for its ultimate decision. Doser v. Doser, 106 Md. App. 329, 356 (1995); Hollander v. Hollander, 89 Md. App. 156, 176 (1991). We may examine the record as a whole to see if the court’s findings were based on the mandated factors. Doser, supra, 106 Md. App. at 356.
A court may award alimony in one of two different forms. Walter v. Walter, 181 Md. App. 273, 281 (2008). The first type is alimony for a fixed period of time, also known as rehabilitative alimony. Id. The second type is alimony for an indefinite period of time, also known as permanent alimony. Id. “When alimony is awarded, the law prefers that the award be for a fixed term.” Id. Nevertheless, the court may use its discretion and award permanent alimony “in exceptional cases when one of the two circumstances described in subsection (c) of [Family Law Article] section 11-106 has been shown . . . .” Id. Family Law Article § 11-106(c) specifically provides:
The court may award alimony for an indefinite period, if the court finds that:
(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self supporting; or
(2) even after the party seeking alimony will have made as much progress toward becoming self supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
The burden of satisfying the requirements of FL § 11-106(c) for an award of indefinite alimony rests on the party seeking it. Turner v. Turner, 147 Md. App. 350, 389 (2002). The trial court’s determination of an unconscionable disparity sufficient to justify an order of indefinite alimony “requires the application of equitable considerations on a case-by-case basis, consistent with the trial court’s broad discretion in determining an appropriate award.” Innerbichler, supra, 132 Md. App. at 248 (quoting Roginsky v. Blake-Roginsky, 129 Md. App. 132, 146–47 (1999)). More specifically, a trial court’s
finding that there will be an “unconscionable disparity in the parties’ standards of living usually begins with an examination of their respective earning capacities.” Whittington v. Whittington, 172 Md. App. 317, 338 (2007).
II. Imputed Income
When determining whether or not a modification of alimony was warranted, the circuit court considered Wife’s earning capacity. Husband contends that the circuit court erred in its calculation of Wife’s potential income. Specifically, Husband asserts that the circuit court did not explain the basis for its determination that Wife was capable of earning $40,000 per year, while the 2019 Order issued by a different judge imputed income of $45,000 per year to Wife. Husband acknowledges that the circuit court credited the testimony of Wife’s expert as to the $34,000 the expert estimated Wife was capable of earning each year, but Husband contends that the circuit court did not indicate that the 2019 Order was incorrect as to Wife’s earning capacity. Husband further asserts that there is no indication why Wife is not capable of earning at least $25.00 per hour and that the evidence presented at the hearing demonstrated that Wife was “more interested in harassing [Husband] than working.”
Both parties presented evidence from witnesses regarding Wife’s potential earning capacity. The circuit court expressly explained that it found the testimony of Wife’s vocational rehabilitation counselor credible regarding Wife’s earning potential. The circuit court observed that Wife’s vocational rehabilitation counselor opined that Wife was capable of “earning $26,000 - $29,000 per year (up to perhaps as high as $34,000).” The court heard and considered testimony from Husband’s expert vocational rehabilitation consultant as well, but the court found his testimony that Wife was capable of earning approximately $50,000 per year to be “optimistic and exaggerated.” The circuit court also heard testimony regarding Wife’s attempts to earn steady income as a realtor. Mandie Weller, the manager of the Long & Foster Real Estate office from which Wife worked, testified that she had no complaints regarding Wife’s performance as a realtor.
Husband complains that the circuit court did not explain why it deviated from the prior judge’s conclusion as to Wife’s earning capacity, but, as the circuit court expressly acknowledged in its memorandum opinion, “[t]he court is not bound to apply (although the court gives consideration to) the child support-related findings made by [the prior judge] in 2019.”
See Gertz v. Anne Arundel Cnty., 339 Md. 261, 273 (1995) (“[A] s a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo.”) (quoting State v. Frazier, 298 Md. 422, 449 (1984)).
In our view, the circuit court’s conclusion that Wife was capable of earning $40,000 per year was reasonable based upon the evidence presented. The circuit court was entitled to credit the testimony of Wife’s expert regarding Wife’s earning capacity. Moreover, the circuit court expressly explained why, in the court’s view, the testimony of Husband’s expert was not persuasive. Accordingly, we reject Husband’s contention that
the circuit court erred in determining Wife’s potential earning capacity.4
III. Motion to Terminate Alimony
After considering Wife’s earning capacity, the circuit court considered whether either party had demonstrated a material change in circumstances justifying a modification of alimony pursuant to FL § 11-107(b), as well as whether Husband had demonstrated that termination of alimony was necessary to avoid a harsh and inequitable result pursuant to FL § 11-108.
FL § 11-107(b) addresses the modification of alimony awards and provides that, “on the petition of either party, the court may modify the amount of alimony awarded as circumstances and justice require.” “A party requesting modification of an alimony award must demonstrate through evidence presented to the trial court that the facts and circumstances of the case justify the court exercising its discretion to grant the requested modification.” Langston v. Langston, 366 Md. 490, 516 (2001). Upon a proper petition, the court may modify a decree for alimony “at any time if there has been shown a material change in circumstances that justify the action.” Lieberman v. Lieberman, 81 Md. App. 575, 595 (1990) (citation and internal quotation marks omitted).
FL § 11-108 addresses termination of alimony and provides, in pertinent part, that “[u]nless the parties agree otherwise, alimony terminates . . . if the court finds that termination is necessary to avoid a harsh and inequitable result.” A trial court must conduct a factual inquiry to determine whether termination of alimony is necessary to avoid a harsh and inequitable result. Bradley v. Bradley, 214 Md. App. 229, 237 (2013). “Whether a result is harsh and inequitable is a subjective determination.” Id.
The circuit court considered Wife’s potential earning capacity, among other factors, when evaluating whether alimony should be terminated or modified. The circuit court also considered Husband’s motivation for seeking to terminate alimony, emphasizing that Husband did not assert that he was unable to pay the present alimony amount, nor did he claim a decrease in income or wealth that would warrant termination of alimony. The circuit court further found that “the evidence showed (and [Husband] was not shy about admitting) that his true motivation was to ‘reverse the injustice of the May 2016 settlement.’” The court observed that Father had expressed a willingness to spend “as much as it takes” to get Wife “off [his] back.” The court found that Husband had “spared no effort” in his attempts. As we set forth supra, the circuit court found the following:
[Husband] indeed spared no effort. He acknowledged having at least 36 (by the court’s conservative count) deposition notices issued in an effort to seek information about [Wife] from banks, homeowner associations, utility companies, lawyers, employers, insurance companies, and the like. Most of this was directed at his misguided and largely unsuccessful effort to show among other things that [Wife] is or was a Syrian intelligence officer who tracked his whereabouts and hacked his emails, hid her assets and failed to work. The evidence showed that he complained about his former wife to the Maryland State Police, the
Central Intelligence Agency, and the Federal Bureau of Investigation. He admitted that he had spent $140,000.00 (to the time of trial) on legal fees in his effort to prove his case. Much of [Husband]’s evidence at trial related to what [Wife] did with the assets she acquired through the divorce and how she spent the money that he agreed in 2016 she should have, but about which he appears to have been bitter ever since.
The circuit court further found that the evidence established that Wife had “for some period of time . . . been working as a realtor.” The court credited the testimony of Long & Foster manager Mandie Weller that she had no complaints about Wife’s performance, but Wife’s “efforts and success in real estate have been marginal at best.” As we discussed supra in Part II of this opinion, the circuit court considered the 2019 Order addressing Wife’s voluntary impoverishment for child support purposes but ultimately reasonably determined that Wife was capable of earning $40,000 per year. For all of these reasons, the circuit court concluded that termination of alimony was not necessary to avoid a harsh and inequitable result pursuant to FL §11-108, nor had Husband demonstrated a material change of circumstances such that justice required a modification under FL § 11-107(b).
Husband contends that the circuit court erred by failing to make express findings regarding each factor set forth in FL § 11-106(b). We disagree. The record reflects that the circuit court carefully considered the evidence in the record and the arguments of the parties when making its determination as to termination or modification of alimony. Furthermore, although the circuit court did not expressly refer to each factor set forth in FL § 11-106(b), the court’s memorandum opinion reflects that the court considered those that were applicable in the present case in the context of determining whether to terminate or modify alimony. When considering the FL § 11-106(b) factors, “the trial court need not use formulaic language or articulate every reason for its decision with respect to each factor.” Hollander, supra, 89 Md. App. at 176. This Court “may look to the record as a whole to determine whether the trial court’s findings were based on a review of the factors.” Doser, supra, 106. Md. App. 329, 467 (1995). Our review of the record as a whole demonstrates that the circuit court correctly applied the law when considering the evidence presented. Accordingly, we reject Husband’s contention that the circuit court erred by maintaining the existing alimony amount as established by agreement of the parties in the JAD.
IV. Attorneys’ Fees
The final issue before us on appeal is the circuit court’s award of attorneys’ fees to Wife in the amount of $40,000. The award of attorneys’ fees is governed by FL § 11-110, which provides that the circuit 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.” FL § 11-110(b). Before ordering payment of attorneys’ fees, the court is required to consider “the financial resources and financial needs of both parties” and “whether there was sub-
stantial justification for prosecuting or defending the proceeding.” FL § 11-110(c).
The trial court “is vested with wide discretion in deciding whether to award counsel fees and, if so, in what amount.”
Malin v. Mininberg, 153 Md. App. 358, 435-36, (2003) (quotation and citation omitted). We will not disturb an award of attorneys’ fees in a family law case “unless the exercise of discretion was arbitrary or the judgment was clearly wrong.” Id. (citing Broseus v. Broseus, 82 Md. App. 183, 200 (1990)).
The circuit court explained its reasoning regarding attorneys’ fees in detail, observing that “[t]he question of whether [Husband] had substantial justification” for filing the motion to terminate alimony was “a close call.” The court focused particularly on Husband’s motive, which “had nothing to do with financial considerations” but instead “had everything to do with seeking revenge.” Nonetheless, the court did not find Husband’s motion to have been filed or prosecuted without
substantial justification. The court, however, emphasized that Husband had “[w]ithout question . . . exacerbated the costs of the litigation,” and, “[a]lthough he did so at great financial cost to himself, that cost did not seem to matter to him.” The court found that Husband was “in a far better place financially to bear the cost of the action which he initiated and which leaves the parties in the same position as that to which they mutually agreed in 2016.” The circuit court, therefore, found that it was “equitable to award [Wife] a portion of her total attorney[’s] fees in the amount of $40,000.
The record clearly reflects that the circuit court appropriately considered the financial circumstances of the parties, as well as the justification for the proceeding, before making the equitable determination that Wife should be awarded attorneys’ fees. This determination was well within the discretion of the circuit court to make, and we shall not disturb it on appeal.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED.
FOOTNOTES
1 The issues, as presented by Husband, are:
1. Did the trial court err in its determination that there was no material change in circumstances since the Judgment of Absolute Divorce?
2. Did the trial court err by not applying all of the alimony factors?
3. Did the trial court err by “being satisfied with [Wife]’s explanation of the Katherine Way property, and the transfer of her interest therein to Mr. Alfelaih?”
4. Did the trial court err by eliminating rental revenue from Appellee’s income based upon the alleged expenditure of money for a family member of her family for an event that occurred two years after the judgment of divorce?
5. Did the trial court err in its calculation of the [Wife]’s potential income?
6. Do the actions, including physical and electronic monitoring, and a constant string of harassing texts of [Wife] provide a sufficient basis for the termination of alimony?
7. Would the continuation of alimony provide a “harsh and inequitable” result?
8. Was the imposition of attorney[s’] fees proper?
2 Although the 2019 Order did not address alimony specifically, the circuit court observed that the prior order’s
discussion of voluntary impoverishment in the child support context applied similarly to the alimony context.
3 Husband also presented testimony from a financial planning expert, but the circuit court expressly commented that it “did not find [that] testimony particularly helpful or persuasive.”
4 Husband presents additional arguments regarding Wife’s earning capacity, including that the circuit court erred by finding the explanation for the transfer of the Katherine Way property to Mr. Naser Alefelaih to be satisfactory and by declining to include rental revenue in Wife’s income. The circuit court explained that it was “satisfied with [Wife]’s explanation of the Katherine Way property, and the transfer of her interest therein to Mr. Alfelaih.” We note that Mr. Alefelaih’s name is spelled differently in different portions of the records and briefs. We intend no disrespect to Mr. Alefelaih, although we are uncertain of which spelling is correct. The circuit court did not consider “the income nor the expenses as related to Katherine Way in its analysis of [Wife]’s financial position.”
Husband concedes that “the trial judge is the ultimate arbiter of credibility,” but asserts that the court committed reversible error by finding Wife’s explanation credible. We disagree. The circuit court was entitled to find Wife’s version of the facts relating to the Katherine Way property more compelling than that presented by Husband.
In the Maryland Appellate Court: Full Text Unreported Opinions
Appellant, R.W. (“Father”), appeals the Circuit Court for Worcester County’s order finding his two children, E.W. and G.W., children in need of assistance. On appeal, Father presents several questions for our review, which we consolidate and rephrase as follows: Did the court err in finding E.W. and G.W. children in need of assistance?1 Finding no error or abuse of the court’s discretion, we shall affirm the judgment.
BACKGROUND
Father and L.W. (“Mother”)2 share two minor sons, E.W. and G.W. G.W. has a rare genetic disorder, is nonverbal, and cannot walk unassisted. On May 5, 2023, the court found that both E.W. and G.W. were children in need of assistance (“CINA”) under Md. Code Ann., Courts and Judicial Proceedings (“CJP”) § 3-819, awarded custody to Mother under the protective supervision of the Department of Social Services (“DSS”), and granted supervised visitation to Father. The relevant facts before the court were as follows.
The family originally came to the attention of DSS in September of 2021, after Mother called 911 and reported that Father had strangled her and lifted her “off the floor by [her] neck” before fleeing the family home with G.W., then two years old. Police located Father and pulled him over after he ignored lawful orders to stop. Police approached the vehicle and noticed that G.W. was unrestrained in the back seat. Father was charged with several offenses, including first and second-degree assault and reckless endangerment. He pled guilty to the charge of attempting to elude a uniformed police officer by failing to stop and received probation before judgment, with one year of unsupervised probation.
Several months later, in March of 2022, a dispute occurred which resulted in a “loose board that was leaning against the
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
wall” falling and hitting E.W. on his chest. Both Mother and Father sought and received protective orders as a result of the incident. Mother then reported that Father came to the home multiple times in violation of her temporary protective order. During one visit, an argument arose between Mother and Father while Mother’s mother, T.M., was present. After the children were taken upstairs in order to be removed from the argument, Father reportedly pushed T.M. against a bathroom door before leaving the home with E.W.
In April of 2022, Mother called police after Father reportedly “dragged [Mother] out of the house into the front yard,” and “kicked her approximately four times.”
In December of 2022, Mother called police and reported that Father had “overdosed on Adderall.” When police arrived at the home, Mother claimed Father was “sitting in front of the bedroom door[,]” preventing her exit. Father let the officers inside and stated that he had a legal prescription for Adderall. Police attempted to deescalate the situation by asking Father to leave the home. Father declined, and Mother and the children left to stay in a hotel for the evening.
In January of 2023, a dispute arose where Father reported that Mother had stolen his phone, computer, and car keys. Mother reported that she was lying in bed with G.W. when Father dragged her out of bed and across the bedroom floor, causing a glass to fall from the nightstand and hit her on the head. Mother and Father again sought protective orders against each other.
On February 13, 2023, Mother returned home from a trip to Mexico and noticed that it looked like G.W.’s diaper had not “been changed all day.” Father reportedly became enraged about Mother “being late and lying to him.” Father flipped a coffee table over, “which almost hit” E.W., and broke a bowl.
The following day, while the children were at school, Mother and Father got into yet another argument, which resulted in Father reportedly throwing Mother on a bed and sitting on her chest. Mother testified that Father held her face “sideways against the bed” for an “extended period of time[,]” and that she had “never been so scared for not being able to breathe.” That same day, E.W. reported the previous day’s incident to school personnel. At DSS’s request, Mother sought and received an additional protective order against Father.
On March 7, 2023, Mother reported that Father came to the home in violation of the protective order and “flipped over the dining room table and dishes went everywhere.” She stated that she took the children to a separate floor in the home, where
Father thereafter “shoved everything off their in-home bar causing glass to shatter everywhere.” Shards of glass almost hit G.W.3
On March 10, 2023, Mother reported that Father again came to the home in violation of the protective order. Mother called the police, but Father left before they arrived.
On March 17, 2023, a dispute occurred between Mother and Father during an exchange of the children. Father filed for a protective order and, for reasons unclear from the record before us, was given custody of the children and possession of the home until March 24, 2023. Child Protective Services (“CPS”) investigator Leslie Valerio testified that during that time, E.W. reported that his Father was sleeping and could not be awakened, and that he and G.W. had not eaten and were hungry. On March 24, 2023, Ms. Valerio conducted a welfare check on E.W. and G.W. after receiving a referral with “concerns for [E.W.’s] and [G.W.’s] safety.” The house was described as “trashed” and smelling “of garbage and urine[,]” with a “moldy baby bottle on the counter” and “dirty diapers on the floor[.]”
That day, at the suggestion of CPS, Father agreed to a safety plan where the children would live with Father’s parents in Wicomico County. The children remained at Father’s parents’ home until March 31, 2023, when the court presiding over Father’s protective order case restored custody of the children to Mother, and granted Father supervised visitation.
On April 12, 2023, Mother and Father appeared before the court for matters relating to custody of the children. A representative from DSS was present at the hearing. The court issued an order granting primary custody of E.W. and G.W. to Mother, with visitation to Father, on the condition that he comply with the recommendations of DSS.4 Following the hearing, a DSS representative approached Mother and Father with an updated safety plan providing, in part, supervised visitation for Father. Mother agreed to the safety plan, but Father refused, responding that “he was not going to be supervised for his visitation with his children.”
Accordingly, on April 13, 2023, DSS authorized emergency shelter care for both children and filed a petition for continued shelter care, initiating the matter presently before us. On April 17, 2023, the court held a shelter care hearing and granted shelter care for E.W. and G.W., with temporary custody to Mother and supervised visitation to Father.
On May 5, 2023, the court held a CINA adjudication and disposition hearing. The court heard from Ms. Valerio, Mother, Father, and Mother’s sister. Father disputed that the children were CINA and requested that the court instead amend the previously issued custody order “to whatever the [c]ourt deems is in the best interest of the kids.” Mother also disputed the children were CINA, but acknowledged that she and Father had both “made mistakes[,]” and expressed interest in relocating with E.W. and G.W. to Georgia to be closer to family. Mother’s sister testified that she lived with Mother and Father for over a year and that their relationship was “very abusive.” Mother’s sister also recounted an incident at their home where E.W. sought her help due to a physical altercation between Mother and Father where he saw Father “pushing on [Mother’s] neck.”
DSS maintained that both Mother and Father had been neglectful of the children and recommended that the court find
the children CINA. In response to a question about the allegations against Mother, Ms. Valerio testified that the concerns are that they can’t leave each other alone, including [Mother]. They go -- continue to go back and forth in the text messages. She is guilty of that also. So my concern is that [Mother] can’t properly protect the children from [Father] due to her own [domestic violence] cycle with him[.]
Counsel for E.W. and G.W. also maintained that Mother did not have the “ability to protect these children because of her own domestic situation, and, therefore, the children are neglected.”
The court found that Mother was “in need of trauma-based therapy, [and] that in the absence of trauma-based therapy, I don’t think she can protect the children.” In particular, the court expressed concern that Mother did not prioritize her children’s best interests when she withdrew her most recent temporary protective order from February 14, 2023, over concerns of its potential impact on Father’s license to practice law.5 After the court determined that the children were CINA as a result of parental neglect, it granted custody to Mother under the protective supervision of DSS with supervised visitation to Father. Father timely filed this appeal.
STANDARD OF REVIEW
“There are ‘three distinct but interrelated standards of review’ applied to a juvenile court’s findings in CINA proceedings.” In re J.R., 246 Md. App. 707, 730 (2020) (quoting In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018)). First, we review the court’s factual findings for clear error. Id. (citing In re Adoption/Guardianship of Amber R., 417 Md. 701, 708 (2011)). Next, errors of law are reviewed “‘without deference[,]’” meaning that, “if an error is found, we then assess whether the error was harmless or if further proceedings are required to correct the mistake in applying the relevant statute or regulation.” Id. at 730–31 (quoting In re Yve S., 373 Md. 551, 586 (2003)). Lastly, “we give deference to the juvenile court’s ultimate decision in finding a child in need of assistance[.]” Id. at 731 (citing In re J.J., 231 Md. App. 304, 345 (2016)). “[A] decision will be reversed for 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.” Id. (quoting In re J.J., 231 Md. App. at 345).
DISCUSSION
Father asserts the court abused its discretion in finding that he had neglected the children and that the children were CINA. In support, he maintains that he cannot be “neglectful solely because of the mutual arguments with the Mother while the children were present.” He further asserts that “the allegations were sustained against only one parent—Father—and another willing and able parent—Mother—existed to provide proper care for the children.” As previously noted, Mother has not appealed the CINA finding or any other aspect of the court’s judgment. The children’s counsel responds that the facts sufficiently indicate that neither Mother nor Father were able to care for the children, and that the court “properly exercised its discretion by protecting E.W. and G.W. from an ongoing cycle
of domestic violence by finding them to be children in need of assistance.” After an extensive review of the facts in its brief, the Department posits that “[t]he juvenile court properly exercised its discretion when it concluded that E.W. and G.W. were CINAs.” We agree.
A CINA is defined as a child needing intervention from the court because: “(1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” CJP § 3-801(f). Neglect includes “leaving of a child unattended or other failure to give proper care and attention to a child . . . under circumstances that indicate: (i) [t]hat the child’s health or welfare is harmed or placed at substantial risk of harm; or (ii) [t]hat the child has suffered mental injury or been placed at substantial risk of mental injury.” CJP § 3-801(s)(1). In other words, a “child may be considered ‘neglected’ before actual harm occurs, as long as there is ‘fear of harm’ in the future based on ‘hard evidence’ and not merely a ‘gut reaction.’” In re Nathaniel A., 160 Md. App. 581, 601 (2005) (quoting In re William B., 73 Md. App. 68, 78 (1987)).
Here, the court found that the children were CINA due to neglect. In our view, that determination is amply supported by the record. The facts indicate several instances of both parties failing to provide proper care or attention to the children. Father failed to provide proper care or attention to one or both children several times, including when he placed G.W. unrestrained in the back seat of a vehicle before attempting to flee from police, and when E.W. and G.W. were not fed or cared for while in Father’s sole custody in March of 2023. At that time, DSS found unsanitary conditions and general disarray in the home, including dirty diapers on the floor and a baby bottle filled with mold. These circumstances support the finding that one or both children were at a substantial risk of harm or mental injury.6
Further, Father had subjected Mother to repeated instances of domestic violence when one or both of the children were present, including: in September of 2021, “strangling” Mother and thereafter fleeing with G.W. unrestrained in the vehicle; in April of 2022, dragging Mother into the yard and kicking her in front of E.W.; in January of 2023, pulling Mother out of a bed where G.W. was also laying and dragging her across the floor; in February of 2023, throwing a table in the direction of Mother and E.W.; and in March of 2023, shoving glass off the in-home bar and causing it to “shatter everywhere” in the presence of the children. These facts also indicate a failure to give proper care and attention to the children in circumstances that indicate a substantial risk of harm. See In re Adoption No. 12612 in Cir. Ct. for Montgomery Cnty., 353 Md. 209, 236 (1999) (noting a “deep concern over the effect on a child of being in the maelstrom of any domestic violence within the home, including the abuse of adults and other children”).
Father asserts that “[t]he bare fact that a parent has been indicated for an instance of neglect does not, by itself, auto -
matically disqualify that parent from maintaining an existing custody agreement[,]” citing In re T.K., 480 Md. 122, 158 (2022). What Father fails to acknowledge is that the facts of this case do not indicate only “an instance of neglect[,]” but more than a year of disputes involving verbal arguments, domestic violence, and failure to provide appropriate care for the children. Similarly unavailing is Father’s assertion that there was no neglect because “no child was left unattended, no child was injured, no positive drug screens for illegal drugs, no violations of safety plans, no convictions for assault, no final protective orders, and no mental illness supported by expert witness testimony.” Father’s argument ignores the evidence supporting the court’s finding of neglect related to some of these very issues as well as the statutory directive to protect children. See In re William B., 73 Md. App. at 77–78 (recognizing that the “purpose of the [CINA statute] is to protect children—not to wait for their injury”).
Lastly, Father contends that the children were improperly declared CINA, citing to CJP § 3-819(e), which provides that, “[i] f the allegations in the petition are sustained against only one parent of a child, and there is another parent available who is able and willing to care for the child, the court may not find that the child is a child in need of assistance, but, before dismissing the case, the court may award custody to the other parent.” He maintains that there were no allegations against Mother in the CINA petition and that the circuit court only sustained allegations against him. Father therefore argues that the court abused its discretion in finding that the children were CINA. We disagree.
Although the factual history of this case centers primarily around allegations regarding Father, the court determined that the children were CINA after hearing about an ongoing “pattern” of domestic violence involving both Mother and Father. This pattern is sufficiently alleged in the CINA petition, which notes numerous instances of domestic violence between Mother and Father, as well as an instance where Father accused Mother of neglect and an instance where Father received a temporary protective order from Mother. The testimony supported the determination that Mother could not “properly protect the children” from Father “due to her own [domestic violence] cycle with him[.]” The court found that Mother was “in need of trauma-based therapy,” and that she was unable to protect the children in absence of that therapy. Finally, in addition to acknowledging that she made “mistakes,” Mother does not challenge the court’s CINA finding on appeal. We hold that the court properly found the children to be CINA, and appropriately placed them under continued DSS supervision.
As we have previously noted, “[i]t makes sense to think of ‘neglect’ as part of an overarching pattern of conduct[,]” In re Priscilla B., 214 Md. App. 600, 625 (2013), and here, the overarching pattern of conduct, from at least September 2021 to May 2023, indicates a failure of both parents to provide adequate care and attention to the children.
Accordingly, we see no abuse of discretion7 and affirm.8
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY IS AFFIRMED.
FOOTNOTES
1 Father, self-represented on appeal, presents the following questions in his brief:
1. Was the juvenile court’s decision that G.W. and E.W. are children in need of assistance incorrect when only one parent was found to [be] unable to give the children proper care and attention, and the other parent was available, able, and willing to care for the children?
2. Did the juvenile court fail to conduct a proper best interest analysis?
3. Did the juvenile court err[] in denying Father’s request for a continuance before disposition when a factual dispute existed with respect to material evidence necessary for consideration by the court in determining whether the children are CINA and making a custody determination?
4. Should this matter have been more properly handled as a custody proceeding and not a CINA case, and should the juvenile court have dismissed the CINA petition?
5. Is the juvenile court’s lack of knowledge of its authority under Md. Code Ann., Cts. Jud. Proc. § 3-819(e), a reason to vacate its orders?
6. Was the finding of neglect improper when the decision was based on mutual arguments between the parents with the children present, and consideration of a neglect finding on appeal?
7. Was the Department’s decision to shelter the children based on their disagreement with a consent custody agreement entered by a judge in a custody case two days earlier improper when the Department had less restrictive means to handle their concern, and was it improper to change a private custody agreement in this case?
2 Mother does not appeal the court’s ruling.
3 In a March 17, 2023, interview with a Wicomico Child Protective Services worker,
E.W. stated that there was an instance where Father threw glass plates and cups during an argument with Mother. E.W. showed a “little cut on his shin” that he said was caused by a piece of glass.
4 The record indicates that the judge who presided over the matter presently before us also presided over the matter determining custody on April 12, 2023. As the judge in this case noted:
As I recall at the custody case, I had the staff here call the Department of Social Services to ask them to be present after I had reviewed the file because I was concerned that the department maybe should be involved with this case. Turned
out they already were involved, they may have been planning to come anyway, but they appeared.
And I thought I was really clear that what I was ordering was that both the parties had to, had to, cooperate with and abide by the recommendations of the Department of Social Services. And, yet, I come back here two days later, and there’s a CINA case because [Father] walked out of the courtroom, I guess, or if not shortly thereafter, then didn’t do the very thing I -- the only reason I signed the order and went along with the way the parties wanted to go was because he was going to cooperate with the department, and then he didn’t.
5 Father is admitted to the Maryland Bar.
6 Father alleges that the court improperly considered a finding of neglect from Wicomico County because Wicomico County lacked jurisdiction to make such a finding. Because this contention is unpreserved for our review, and because Father cites no legal authority to support his assertion, we decline to reach this issue.
7 Father argues that the court erred because it denied his motion for continuance to receive reports on his progress for DSS mandated activities before disposition. “[T]he decision to grant a continuance lies within the sound discretion of the trial judge,” and therefore denials are reviewed for “abuse of discretion.” Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006). Although the court denied the request for a continuance, it allowed Father to testify about the contents of the reports in question. We see no abuse of discretion.
8 We note that Father also broadly asserts that “[t]he juvenile court should not have admitted E.W.’s and G.W.’s out of court statements without a finding of ‘particularized guarantees of trustworthiness’ as required by [Criminal Procedure] § 11-304.” However, because Father fails to provide any facts that support his contention, and specifically fails to identify the statements which he takes issue with on appeal, we do not reach this issue. See Md. Rule 8-504 (requiring parties to include “the facts material to a determination” of issues presented); Rollins v. Cap. Plaza Assocs., L.P., 181 Md. App. 188, 201 (2008) (emphasizing that we “cannot be expected to delve through the record to unearth factual support favorable to [the] appellant.”) (quotation marks and citation omitted). Even had Father properly presented this issue for our review, he does not explain how any error was “likely to have affected” the outcome of the case. Flanagan v. Flanagan, 181 Md. App. 492, 515 (2008) (noting that “the burden is on the complaining party to show prejudice as well as error[,]” and that we will “not reverse a lower court judgment if the error is harm[]less” (quoting Flores v. Bell, 398 Md. 33–34 (2007)).
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
court granted Jennifer’s request for attorneys’ fees incurred in responding to that motion. This timely appeal followed.
This case arises out of a petition for contempt filed in the Circuit Court for Anne Arundel County on May 23, 2022 by appellee, Jennifer H. Kessler (“Jennifer”), against appellant, Thomas J. Kessler (“Thomas”).1 In the petition, Jennifer alleged, among other things, that Thomas failed to reimburse her for certain expenses pursuant to the parties’ May 18, 2017 Judgment of Absolute Divorce which was modified by an order entered on December 31, 2019. A show cause hearing was held before a magistrate on July 15, 2022, and thereafter, the magistrate issued a report and recommendation. Both parties filed exceptions. After a hearing on September 26, 2022, the circuit court found Thomas to be in contempt for failure to make reimbursement to Jennifer, set forth a purge provision, and denied Jennifer’s request for attorneys’ fees and reimbursement of costs for the services of a parent coordinator.
On October 2, 2022, two days prior to the entry of the court’s order finding Thomas to be in contempt, Thomas filed a “Motion to Accept New Evidence,” in which he asked the court to accept evidence of additional reimbursement payments he made to Jennifer. Jennifer opposed the motion and requested that Thomas pay the attorneys’ fees she incurred in responding to it. The court denied the motion and granted Jennifer’s request for attorneys’ fees. On October 13, 2022, Thomas filed a motion to alter or amend the judgment, which the court denied. The
QUESTIONS PRESENTED
Thomas, who is proceeding in proper person, presents three questions for our consideration, which we have rephrased slightly as follows:
1. Did the circuit court err in finding Thomas in contempt?
2. Did the circuit court err in failing to find Jennifer to have acted with unclean hands in light of her bad faith compliance with the Judgment of Absolute Divorce?
3. If the finding of contempt is vacated, should the awards of attorneys’ fees granted in connection with the denial of the “Motion to Accept New Evidence” and the motion to alter or amend be vacated?
For the reasons set forth below, we shall affirm in part and remand the case for the limited purpose of clarifying whether the court intended to order a sanction with regard to its finding of contempt.
BACKGROUND
In an order entered on May 18, 2017, the Circuit Court for Anne Arundel County granted Jennifer an absolute divorce from Thomas. The parties have two children, one born on April 30, 2002, and the other born on February 16, 2007. With respect to the children, the Judgment of Absolute Divorce (“JAD”) provided that the parties “shall make a good faith effort to agree upon any legal custody issue (defined as a major/significant issue relating to education, medical, religion and extracurricular activities).” If the parties were unable to agree upon a legal custody matter, they were required to attend at least two sessions with Patricia Cummings, a parent coordinator, the cost of which was to be divided equally between the parties. The JAD included specific details pertaining to the role of the parent coordinator. The JAD provided that the parties were to divide “the agreed upon costs of agreed upon extracurricular activities for the minor children” by the percentage of their incomes, with Thomas paying 68 percent and Jennifer paying 32 percent. By order entered on December 31, 2019, the provision governing the amount to be paid by each party was modified so that Thomas would pay 67 percent and Jennifer would pay 33 percent of “the agreed upon costs of agreed upon extracurricular activities[.]”
The JAD also addressed health and dental insurance and other health-related costs as follows:
ADJUDGED, ORDERED, AND DECREED, that Husband shall continue to provide the currently existing health and dental insurance for the minor children, so long as it is available to him through his employer and so long as they are eligible for coverage. Wife shall continue to pay the minor children’s current medication co-pays and work related daycare, as set forth in the Maryland Child Support Guidelines; and it is further
ADJUDGED, ORDERED, AND DECREED, that except as provided herein, the parties shall divide by percentage of income (Husband shall pay 68% and Wife shall pay 32%), on behalf of the minor children, upon presentation to him/her of appropriate documentation of the extraordinary uninsured necessary medical, dental, vision, nursing and hospital expenses which are not covered by insurance, including the cost of any co-payments (except the minor children’s current medication co-pays as set forth above), deductibles, medicines, drugs, therapy, orthodontics and appliances prescribed by a physician or dentist for each child, except such medicines and drugs as are usually kept in the medicine cabinet of the average household. “Extraordinary medical expenses” shall be defined as uninsured expenses over $100 for a single illness or condition and includes uninsured, reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, eye care, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders. The party owing any funds under this paragraph, including insurance reimbursements for funds previously paid, shall reimburse the other party his or her respective share within 15 day[s] of request[.]
On May 23, 2022, Jennifer filed a petition for contempt in which she argued that despite repeated requests, Thomas failed to reimburse her for certain extraordinary medical expenses and costs for the children’s activities. In addition, Jennifer asserted that she and Thomas had been “informally paying for educational expenses” for the children on a fifty-fifty basis, and that Thomas failed to reimburse her for some of those expenses. She also asserted that she attempted to resolve those issues with the parties’ parent coordinator, but that Thomas “refused to participate . . . on these items in good faith.” Jennifer sought reimbursement in the amount of $9,415.61, “recoupment and contribution to” costs incurred for the parent coordinator, attorneys’ fees for the contempt proceeding, and court costs.
Thomas opposed the petition for contempt on the grounds that Jennifer had refused to reimburse him for certain expenses and her “new requests” included expenses that did not meet the definition of extraordinary medical expenses set forth in the JAD. He acknowledged that three days before filing her petition for contempt, Jennifer “made a partial payment” to him in the amount of $764.91 for expenses that were incurred in 2019. Thomas stated that he agreed to meet with the parent coordinator “provided that specific items were addressed in advance and the written agreement to extend [the parent coordinator’s] authority was executed as required” by the modified JAD. Because his conditions were not met, Thomas did not agree to extend the parent coordinator’s authority.
At a July 15, 2022 hearing before a magistrate, Jennifer provided a 15-page summary of unpaid expenses incurred by her from 2018 through 2022. Her requests for reimbursement totaled $9,347.61 and covered a variety of expenses including, but not limited to, piano lessons from December 2018 through June 2021; voice lessons; a gym uniform; school yearbooks; field trips; membership, audition, exam, and cast fees; a trip to Pittsburgh; shoes for a musical; makeup for a play; meals; trips to Fort Meade, Hershey Park, and Cape Cod; costs for a tutor; school supplies; uniform clothing and cleaning costs; track gear; driver’s education class; and cell phone costs. She also requested reimbursement for 2020 eye exams and contact lenses; doctor/medical office visits; ADHD “med check[s]”; mental health and therapy-related expenses; chiropractor appointments; and prescription/pharmacy costs. Jennifer acknowledged that certain items, such as yearbooks, gym uniforms, and field trips, were not expressly included in the JAD, but she claimed that she and Thomas had been splitting those costs on an equal basis and not by their percentage of income.
Jennifer testified that she tried to work with Thomas, but they were unable to reach a resolution. Jennifer reached out to Ms. Cummings, their parent coordinator. Thomas was supposed to be at one of the meetings scheduled with Ms. Cummings, but he did not show up. Jennifer, who met with Ms. Cummings by herself, sought reimbursement for the fee she paid to the parent coordinator.
Ms. Cummings testified that by an order entered in January 2020, she was appointed to serve as a parent coordinator for Jennifer and Thomas for a two-year period that expired on January 17, 2022. According to Ms. Cummings, both parties canceled appointments, Thomas wished to resolve everything by email, and Thomas said he did not want to meet about reimbursement for medical expenses. In addition, Thomas was unable to meet in the Fall of 2021 because he and his wife were both having separate surgeries and, in December of that year, Ms. Cummings was unable to meet because she had knee replacement surgery. Ms. Cummings and Thomas read the provision of the court order governing extraordinary medical expenses in different ways. Ms. Cummings thought that any one condition that resulted in accumulated expenses of more than $100 was to be shared. For example, if there was a $15 per week charge for the same condition, once the aggregated expenses exceeded $100, it would be subject to division by the parties.
Thomas testified that the provision of the JAD governing the reimbursement of expenses was created by agreement of the parties, that it was very specific, and that it “went beyond” the definition of extraordinary medical expenses set forth in the version of § 12-201(g) of the Family Law Article (“FL”) that was in effect at the time the JAD was entered in May 2017. Thomas maintained that the JAD did not permit the parties to seek reimbursement for what he referred to as “lower level costs,” which were expenses under $100. He believed that immediately after the divorce, he and Jennifer were in agreement on that point. According to Thomas, Jennifer initially submitted multiple requests for reimbursement that did not include any expenses under $100. Beginning in May 2020, however, she began seeking reimbursement for expenses under $100, which he claimed violated the terms of the JAD. Thomas testified that if the par-
ties’ agreement was followed, and expenses under $100 were excluded, Jennifer’s requested reimbursements would be cut down to about $3,500. He also testified that he had offered to pay for their son’s psychology sessions and voice lessons. Thomas complained that Jennifer held onto receipts for years before sending them to him for reimbursement and that this impacted his ability to get partial payments from insurance companies for out-of-network claims.
Thomas denied that he refused to meet with Ms. Cummings and testified that he emailed her asking for assistance in February and April 2020. He acknowledged, however, that he set several conditions that had to be met before he would meet with Ms. Cummings and Jennifer.
In her report and recommendation, the magistrate found Thomas to be in contempt. The magistrate determined that the written language of the JAD was controlling, that the JAD, as modified, was “clear, definite and specific[,]” and that Thomas had an obligation to pay his share of the extraordinary medical expenses. The magistrate noted that “Maryland law dictates that extraordinary medical expenses incurred on behalf of a child shall be divided between the parents in proportion to their adjusted actual income. See Md. Fam. Law § 12-204(h) (2).” As a purge, the magistrate recommended that Thomas pay Jennifer “the accumulated uninsured medical expenses in the amount of” $9,347.61 in five installments on a schedule outlined in her report. As a sanction, the magistrate recommended that if Thomas did not pay the amounts due by the deadlines, he would pay to Jennifer $100 per day for every day the payments were late.
In addition, any unpaid amount would be reduced to a judgment upon Jennifer’s request. The magistrate also recommended that Jennifer’s request for attorneys’ fees be denied.
Both parties filed exceptions. Among other things, Thomas argued that some of Jennifer’s requests for reimbursement “were beyond the statute of limitations” and that a large number of Jennifer’s requests for reimbursement involved items, such as school supplies, “that are outside the scope of the JAD[.]” He maintained that he had “the right to choose to assist in paying for items outside the JAD and ha[d] on occasion done so[,]” but he was not required to pay for such items. He also argued that the magistrate did not address Jennifer’s “bad faith in manipulating the JAD” by holding onto “receipts for as much as 5 years” before requesting reimbursement.
Jennifer argued that the magistrate failed to address her request for reimbursement for the cost of the parent coordinator. She also challenged the magistrate’s decision to deny her request for attorneys’ fees under § 12-103 of the Family Law Article. She argued that such an award was justified under Maryland Rule 1-341(a) because Thomas acknowledged at the hearing that he knew he owed her at least $3,500 toward the extraordinary medical expenses.
A hearing on the exceptions was held on September 26, 2022. Thereafter, the circuit court, in a written opinion, determined that the terms of the JAD governed the reimbursement issue. The court found that certain reimbursement requests by Jennifer should be excluded because they were for items other than extraordinary medical expenses and extracurricular activities. Those items included such things as school
supplies, cell phone payments, vacation expenses, yearbooks, driver’s education classes, and school field trips. After excluding those items, the court determined that the amount to be reimbursed to Jennifer would be revised from $9,209.09 to $8,060.20. The court rejected Thomas’s argument that certain requests for reimbursement were barred by limitations, holding that the obligation to reimburse arose from the date notice was given, and the earliest notice was provided on May 28, 2020. The court noted that under the terms of the JAD, Jennifer was solely responsible for co-pays for existing medication prescriptions, but neither party offered testimony to distinguish the medications that were prescribed at the time of the divorce from subsequent prescriptions. The court wrote that “[i]n the absence of evidence to the contrary, the Court presumes the mother’s requests were proper ones.”
The court found Thomas in contempt for failure to make reimbursement of $8,060.20. The court ordered that Thomas may purge the contempt by making three monthly payments of $2,000 followed by the balance due. The court noted that Thomas had not complained that he was incapable of making the payments on the schedule ordered. No sanction was included in the court’s order. The court did not find error in the magistrate’s refusal to award attorneys’ fees under either § 12-103(b) of the Family Law Article or Rule 1-341. Nor did it find error in the magistrate’s decision to deny Jennifer’s request for costs associated with the parent coordinator.
STANDARD OF REVIEW
“An obligor’s failure to pay court-ordered support payments can constitute constructive contempt.” Bradford v. State, 199 Md. App. 175, 193 (2011) (citation omitted). “Civil contempt proceedings are ‘intended to preserve and enforce the rights of private parties to a suit and to compel obedience’ with court orders and decrees.” State v. Crawford, 239 Md. App. 84, 110 (2018) (citing Dodson v. Dodson, 380 Md. 438, 448 (2004)).
“Civil contempt proceedings are generally remedial in nature and are intended to coerce future compliance.” Id. (citations and quotations omitted). Accordingly, a contempt order must provide for purging so as to permit “the defendant to avoid the penalty by some specific conduct that is within the defendant’s ability to perform.” Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016) (citation omitted). Generally, we “will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.” Id. “But where the order involves an interpretation and application of statutory and case law, we must determine whether the circuit court’s conclusions are ‘legally correct’ under a de novo standard of review.” Id. (citation omitted).
DISCUSSION
I. THE CIRCUIT COURT DID NOT ERR IN FINDING THOMAS IN CONTEMPT FOR FAILURE TO REIMBURSE JENNIFER PURSUANT TO THE JAD BUT CLARIFICATION IS REQUIRED ON THE ISSUE OF SANCTIONS.
Thomas contends that the circuit court erred in finding him in contempt for failing to reimburse Jennifer pursuant to the JAD. He makes several arguments in support of that contention.
Thomas maintains that in interpreting the reimbursement agreement contained in the JAD, the court was required to consider extrinsic evidence. He also maintains that the court erred in finding him in contempt because his actions were neither willful nor contumacious. Lastly, Thomas asserts that the court’s contempt order lacked a “valid legal requirement designed to coerce future compliance.”
Preliminarily, we pause to address Thomas’s repeated references to the version of § 12-201(g) of the Family Law Article in effect at the time the JAD was entered in 2017 and a subsequent amendment to that statute enacted in 2019. At the time the JAD was entered on May 18, 2017, FL § 12-201(g) provided:
(g)(1) “Extraordinary medical expenses” means uninsured expenses over $100 for a single illness or condition.
(2) “Extraordinary medical expenses” includes uninsured, reasonable, and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.
Effective October 1, 2019, subsection (g) was amended to provide:
(g)(1) “Extraordinary medical expenses” means uninsured costs for medical treatment in excess of $250 in any calendar year.
(2) “Extraordinary medical expenses” includes uninsured, reasonable, and necessary costs for orthodontia, dental treatment, vision care, asthma treatment, physical therapy, treatment for any chronic heath problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.
References to those statutes in the instant case are a bit of a red herring because, as both parties acknowledge, they entered into an agreement concerning the reimbursement of certain expenses and that agreement included the definition of “extraordinary medical expenses” that was embodied in the JAD. The definition included in the JAD differed from the version of FL § 12-201(g) that was in effect at the time the JAD was entered. Although the parties and/or the court might have derived part of their definition of “extraordinary medical expenses” from the 2017 version of the statute, the JAD governed with respect to the definition of that phrase and the 2019 amendment to the statutory provision did not change it in any way.
A. Ambiguity and Consideration of Extrinsic Evidence
We interpret court orders in the same manner as other written documents and contracts. Taylor v. Mandel, 402 Md. 109, 125 (2007) (citing Md. Comm’n on Human Relations v. Downey Communications, Inc., 110 Md. App. 493, 518 (1996); see also Green v. Green, 188 Md. App. 661, 679-80 (2009). If the language of the order is clear and unambiguous, we will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used. Taylor, 402 Md. at 125. The question of whether the language of an agreement is ambiguous is a question of law that we review de novo. Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 392 (2019).
“Generally, Maryland courts subscribe to the objective theory of contract interpretation.” Id. at 393. Under the objec-
tive view, courts give effect to “the clear terms of agreements, regardless of the intent of the parties at the time of contract formulation.” Myers v. Kayhoe, 391 Md. 188, 198 (2006). “[W]e interpret a contract’s plain language in accord with its ‘ordinary and accepted meaning[.]’” Credible Behavioral Health, 466 Md. at 394 (quoting Ocean Petroleum, Co., Inc. v. Yanek, 416 Md. 74, 86 (2010)). “‘[W]hen the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed.’” Calomiris v. Woods, 353 Md. 425, 436 (1999) (quoting General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 (1985)). “[A] written contract is ambiguous if, when read by a reasonably prudent person, it is susceptible of more than one meaning.” Calomiris, 353 Md. at 436 (citations omitted); accord Huggins v. Huggins & Harrison, Inc., 220 Md. App. 405, 418 (2014). “Maryland Courts have acknowledged that when determining whether a contract is ambiguous, the mere fact that the parties disagree as to the meaning does not necessarily render it ambiguous.” Sierra Club v. Dominion Cove Point LNG, L.P., 216 Md. App. 322, 334 (2014).
We begin our review by examining the pertinent language of the JAD. First, the JAD provided that Jennifer was required to continue paying “the minor children’s current medication co-pays[.]” The JAD did not identify the medication co-pays Jennifer was paying in 2017, Thomas did not argue that Jennifer was seeking reimbursement for those specific co-pays, and no evidence on that issue was presented before the magistrate or at the hearing on the parties’ exceptions.
The JAD further provided that the parties were to divide by their percentage of income “the extraordinary uninsured necessary medical, dental, vision, nursing and hospital expenses which are not covered by insurance[.]” Those expenses included “the cost of any co-payments” except those which Jennifer was paying at the time the JAD was entered in 2017, and except the cost of “such medicines and drugs as are usually kept in the medicine cabinet of the average household.” The JAD specifically defined extraordinary medical expenses as “uninsured expenses over $100 for a single illness or condition[.]” Those expenses included “uninsured, reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, eye care, treatment for any chronic health problem, and professional counseling or psychiatric therapy for diagnosed mental disorders.” With respect to reimbursement, the JAD provided that the party owing funds, “including insurance reimbursements for funds previously paid, shall reimburse the other party his or her respective share within 15 day[s] of request[.]”
A plain reading of the JAD reveals no ambiguity. Contrary to Thomas’s argument, the JAD does not contain two definitions of any term, does not suggest two meanings for the phrase “extraordinary medical expenses,” and extrinsic evidence was not necessary to determine the intention of the parties. The JAD defined extraordinary medical expenses as “uninsured expenses over $100 for a single illness or condition[.]” There was no reference to a specific statutory provision in effect in 2017, and subsequent amendments to FL § 12-201(g) had no impact on the JAD. The language of the JAD was plain, unambiguous, and governed the parties with respect to reimbursements for “extraordinary medical expenses.”
To the extent that Thomas contends that there must be a single expense of $100 to qualify for reimbursement, he is mistaken. The dollar amount included in the JAD cannot be read in isolation. The JAD does not specify that there be a single expense of $100 or more; rather, it requires reimbursement for “uninsured expenses over $100 for a single illness or condition.” (Emphasis added). An expense of less than $100 for a single illness or condition would not qualify as an extraordinary medical expense but would be considered an ordinary medical expense. See generally Bare v. Bare, 192 Md. App. 307, 317 (2010) (discussing ordinary medical expenses). As the language of the JAD was not ambiguous, the circuit court did not err in failing to consider extrinsic evidence. Piney Orchard Community Ass’n, Inc. v. Piney Pad A, LLC, 221 Md. App. 196, 207 (2015) (“Courts consider extrinsic evidence to construe contracts only when the language is ambiguous.”) (citing Newell v. Johns Hopkins Univ., 215 Md. App. 217, 235 (2013), cert. denied, 437 Md. 424 (2014)).
B. Willful and Contumacious Failure to Pay
Thomas contends that the circuit court erred in finding him in contempt because his failure to pay Jennifer was neither willful nor contumacious. In Dodson v. Dodson, the Supreme Court of Maryland addressed the requirement of willful or contumacious non-compliance, stating:
Under settled Maryland law, one may not be held in contempt of a court order unless the failure to comply with the court order was or is willful. A negligent failure to comply with a court order is simply not contemptuous in a legal sense. This is true of civil contempt as well as criminal contempt. Rawlings v. Rawlings, [362 Md. 535, 544 (2001)] (“The contemnor may . . . defend by establishing, by a preponderance of the evidence, ‘that the failure to pay was not an act of willful or contumacious non-compliance’”); Ashford v. State, 358 Md. 552, 572, 750 A.2d 35, 46 (2000); Jones v. State, [351 Md. 264, 273 (1998)] (A showing that the failure to comply with the court order “was not an act of willful or contumacious non-compliance” is a defense in a civil contempt action); Lynch v. Lynch, [342 Md. 509, 523 (1996)] (“‘[A]n unintentional inability to pay precludes [a sanction] for either civil or criminal contempt’”); Rutherford v. Rutherford, [296 Md. 347, 364 (1983)] (“[C]ontempt is the refusal to comply with the court order, and not merely the breach of the prior support agreement”) (emphasis added). Furthermore, this Court has taken the position that a civil contempt adjudication, even though it is for a coercive purpose, “labels the defendant a contemnor and imputes guilt to him or her.” Lynch v. Lynch, supra, 342 Md. at 529, 677 A.2d at 594. An adjudication of civil contempt, based upon mere negligent inaction and not upon willful conduct, is flatly inconsistent with the above-cited cases. 380 Md. 438, 452-53 (2004).
Thomas asserts that he “repeatedly acknowledged that he was obligated to reimburse Jennifer for certain expenses contained in her request[,]” but that “half of her reimbursement requests were illegitimate and outside the JAD.” He argues that his failure to reimburse Jennifer within the required 15-day period was neither willful nor contumacious non-compliance because “[m]ore than a mere technical calculation” of the 15-day
time period was required. He states that he began paying Jennifer “for the legitimate expenses as soon as he was able and prior to the Magistrate hearing[,]” and points to his testimony before the magistrate that “no one has such large sums of money ‘lying around,” and [that] Jennifer’s manipulation of the JAD put more pressure on him.” He also claims that Jennifer took three years to reimburse him and “acknowledged zero regard for the court ordered fifteen-day time frame.” According to Thomas, Jennifer’s “actions were purposeful and designed to ensure” that he remained “in debt to her” and to “ensure she maintains control.” Thomas also claims that, as of October 11, 2022, he had reimbursed Jennifer $4,296.51, which he claimed constituted payment for “all legitimate items.”
Thomas’s arguments are not persuasive. His payment for expenses that he deemed “legitimate” did not exempt him from paying the full amount due to Jennifer in the time required by the JAD. Nor did any failure on the part of Jennifer to make timely reimbursement justify the same failure by Thomas. Thomas was free to raise as a defense that he was unable to comply with the JAD, but, as the record shows and the court found, he did not make that argument or produce a financial statement or any other evidence to demonstrate his inability to make the required payments. The evidence supported a finding of willful and contumacious behavior sufficient to support the circuit court’s decision to hold Thomas in contempt.
C. The Civil Contempt Finding
Thomas argues that the court’s contempt order was not valid because it failed to identify a “valid legal requirement designed to coerce future compliance.” In support of that argument, Thomas directs our attention to Breona C. v. Rodney D., in which we wrote:
An order holding a person in constructive civil contempt must satisfy certain basic requirements, including that it must: (1) impose a sanction; (2) include a purge provision that gives the contemnor the opportunity to avoid the sanction by taking specific action of which the contemnor is reasonably capable; and (3) be designed to coerce the contemnor’s future compliance with a valid legal requirement rather than punish the contemnor for past, completed conduct. 253 Md. App. 67, 71 (2021).
In Breona C., the mother of a minor child was held in constructive civil contempt2 for violating a custody order by failing to return the child to her father immediately after a final protective order was denied. Id. at 72. The written contempt order did not identify a sanction, but provided that the mother “may purge this contempt by strictly following and complying with the ongoing” custody order. Id. On appeal, the mother argued that the contempt order should be reversed because it punished past, completed conduct, and included a “forever purge” provision that did not actually permit her to purge the contempt. Id. at 72-73.
In reversing the order of contempt, we recognized that 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 (citations omitted). Citing Maryland Rule 15-207(d), which “applies to all proceedings
for contempt other than proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support,” we held that “[a] written order making a finding of civil contempt must therefore ‘specif[y] the sanction imposed for the contempt,’ and ‘specify how the contempt may be purged.’” Id. We explained:
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. Moreover, and critical to our analysis here, to 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. 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. See Kowalczyk, 231 Md. App. at 211, 149 A.3d 1247. 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. Instead, there is just a second order directing compliance with an existing order. Id. at 74-75.
Unlike Breona C., the instant case involves an order of constructive civil contempt based on an alleged failure to pay child support and is governed by Maryland Rule 15-207(e), which provides, in pertinent part:
(e)(1) Applicability. This section applies to proceedings for constructive civil contempt based on an alleged failure to pay spousal or child support, including an award of emergency family maintenance under Code, Family Law Article, Title 4, Subtitle 5.
(4) Order. Upon a finding of constructive civil contempt for failure to pay spousal or child support, the court shall issue a written order that specifies (A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged. If the contemnor does not have the present ability to purge the contempt, the order may include directions that the contemnor make specified payments on the arrearage at future times and perform specified acts to enable the contemnor to comply with the direction to make payments.
The circuit court found Thomas in contempt for failing to pay $8,060.20 as required by the JAD. The court’s order provides that the contempt may be purged by making the specified payments by the required dates. As a result, there is no coercive mechanism and the court’s contempt order is “just a second order directing compliance” with the terms of the JAD.
Jennifer points to the fact that Rule 15-207 sets forth a special provision for findings of constructive civil contempt for failure to pay child support. She argues that unlike Rule 15-207(d) and Breona C., the use of the phrase “any sanction” in Rule 15-207(e)(4)(B) suggests that the court had the option to impose
a sanction but was not required to do so. However, that issue is not before the Court today because it is not clear to us whether the circuit court ordered a sanction at all. The magistrate, in her report and recommendation, recommended that if Thomas did not pay the amounts due by the specified deadlines, he would be sanctioned by having to pay Jennifer $100 per day for every day the payments were late. In addition, any unpaid amount would be reduced to a judgment upon Jennifer’s request. The circuit court revised the magistrate’s finding only with respect to the amount owed by Thomas, but ruled that except for that revision, “the prior orders remain in full force and effect.” The circuit court’s opinion affirmed the magistrate’s finding of contempt for the father. But neither the court’s opinion nor order mentioned a sanction, and therefore it is not clear whether the magistrate’s sanction was affirmed or denied.3 The circuit court did “overrule exceptions to the Magistrate’s report and recommendations . . . .” However, neither party excepted to the magistrate’s sanction, so that does not shed light on the existence of a sanction. Because the circuit court did not address the issue of a sanction, it is not clear whether the circuit court was adopting or rejecting the sanction recommended by the magistrate, or imposing a different sanction. Therefore, we shall remand the case to the circuit court for the limited purpose of clarifying its order as to whether the court intended to impose a sanction with regard to its finding of contempt. Md. Rule 8-604(d)(1).4
II. THE ISSUE OF UNCLEAN HANDS IS NOT PROPERLY BEFORE THIS COURT.
Thomas contends that the circuit court erred in failing to find that Jennifer acted with unclean hands in light of her bad faith compliance with the JAD. Thomas asserts that the circuit court “found Jennifer had ‘unclean hands’ but took no action to stop her bad faith manipulation of the JAD.” He argues that he “detailed several overt actions Jennifer has taken since the conclusion of the divorce hearing that are all part of a well- orchestrated plan to manipulate the JAD and ensure that [he] remains indebted to her or pays her late.” He complains that Jennifer refused to reimburse him for expenses he first requested from her in March 2019, and only partially reimbursed him three days prior to filing the petition for contempt. According to Thomas, Jennifer “should have waited a reasonable period of time” after paying him before filing her petition for contempt.
4 Maryland Rule 8-604(d)(1) provides:
(1) Generally. If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.
Thomas also complains that Jennifer purposely held onto receipts so that she could request large sums of money in a single request for reimbursement. He maintains that Jennifer’s
holding of receipts “for months[,]” consolidating them into reimbursement requests “for as much as $1,656.08, $1,894.02, and $2,518.13,” and requesting payment within 15 days “is not the behavior of an individual acting in good faith.”
Thomas specifically blames Jennifer for willfully engaging in acts to make him “susceptible to a Petition for Contempt.” He points to Jennifer’s rejection of his offers to pay for one child’s psychology appointments and voice lessons as evidence that “he is trying to repay her more quickly” and that Jennifer is trying “to ensure [he] remains indebted to her.” In support of that assertion, Thomas points to Jennifer’s claim for reimbursement of expenses she asserted were due because of an implicit agreement between the parties and which were rejected by the circuit court.
We do not find Thomas’s arguments persuasive. The JAD does not contain any provision requiring the parties to send their requests for reimbursement within a certain time period after incurring an expense. Moreover, our review of the record does not reveal any instance where Thomas specifically raised the doctrine of unclean hands or any finding by the magistrate or the circuit court that Jennifer’s petition for contempt or her requests for reimbursement were barred by that equitable doctrine. In the circuit court’s written opinion, the court merely commented on Jennifer’s complaint of delays by Thomas as follows:
One last observation about the mother’s complaint of delays occasioned by the father: The mother herself, under the Divorce Judgment, could have sent the father requests for reimbursement in real time as she incurred uninsured expenses; or she could have compiled them weekly, monthly, quarterly, semi-annually, or even annually. Instead, she began making reimbursement requests for 2018 in the middle of 2020 and waited another six months before submitting her next batch of requests. She can hardly complain of fault for delays in the process.
As the issue of unclean hands was neither raised in nor decided by the circuit court, it is not properly before us. Md.
Rule 8-131(a) (Ordinarily, we will not decide any issue other than subject matter or personal jurisdiction “unless it plainly appears by the record to have been raised in or decided by the trial court[.]”).
III.
THE AWARDS OF ATTORNEYS’ FEES GRANTED TO JENNIFER SHOULD NOT BE VACATED BECAUSE THE ORDER OF CONTEMPT AND AWARDS OF ATTORNEYS’ FEES ARE NOT INTERRELATED.
Thomas contends that the awards of attorneys’ fees granted to Jennifer after the denial of his post-judgment motion to accept new evidence and motion to alter or amend the judgment should be vacated. Thomas does not challenge the propriety of the court’s decision to award attorneys’ fees or the amount of the attorneys’ fees that were awarded. Rather, relying on Turner v. Turner, 147 Md. App. 350, 400 (2002) and Malin v. Mininberg, 153 Md. App. 358, 425 (2003), he argues that if we vacate the order of contempt in the instant case, the awards of attorneys’ fees should also be vacated. This court wrote in Turner that “[t] he factors underlying “alimony, a monetary award, and counsel fees are so interrelated that, when a trial court considers a claim for any one of them, it must weigh the award of any other.” 147 Md. App. at 400. As the instant case does not involve issues of alimony or a monetary award, the cases relied upon by Thomas are inapposite. In any event, the court’s finding of contempt was not so interrelated with the denial of Thomas’s post-judgment motions that the awards of attorneys’ fees must be vacated. Thomas’s motion to accept new evidence involved payments he allegedly made to Jennifer sometime after the contempt hearing and repeated some of the arguments raised during the hearing as to why he did not feel certain reimbursement requests were legitimate. Thomas’s motion to alter or amend the circuit court’s judgment repeated arguments he made at the hearing. We find no basis for vacating the circuit court’s award of attorneys’ fees with regard to those motions.
ORDER OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY REMANDED IN PART WITHOUT EITHER AFFIRMING OR REVERSING PURSUANT TO RULE 8-604(D)(1) FOR THE SOLE LIMITED PURPOSE OF CLARIFYING WHETHER A SANCTION FOR CONTEMPT IS TO BE INCLUDED AND OTHERWISE AFFIRMED; COSTS TO BE SHARED EQUALLY BY THE PARTIES.
FOOTNOTES
1 We shall refer to appellee, Jennifer H. Kessler, and appellant, Thomas J. Kessler, by their first names because they have the same surname. We do so for clarity and intend no familiarity or disrespect.
2 “[C]onstructive contempts are those which do not occur in the presence of the court, or near it, . . . but at some other place out of the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning
of the court.” County Comm’rs for Carroll County v. Forty West Builders, Inc., 178 Md. App. 328, 393 (2008) (quoting In re Lee, 170 Md. 43, 47, cert. denied, 298 U.S. 680 (1936)). The 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.” Dodson v. Dodson, 380 Md. 438, 448 (2004).
3 Similarly, this Court is also not clear on the issue of attorneys’ fees. Counsel fees were discussed in the circuit court’s opinion, but it was not addressed in the court’s order.
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
The Circuit Court for Baltimore County found the appellant, Laurent J. LaBrie II (“Father”), in constructive civil contempt in December 2021 for violating the terms of a consent order the court had entered in May 2021. Thereafter, in March 2022, Father and the appellee, Aurelia D. LaBrie (“Mother”), reached an agreement to resolve the December 2021 contempt finding. Under the terms of the March 2022 agreement, placed on the record in open court, Father was required to pay $8,000 to Mother, “representing attorney’s fees for the contempt[,]” in eight monthly installments of $1,000, with the first payment to occur on August 15, 2022. Because Father made none of the agreed payments, Mother filed a request for entry of judgment, and then followed up in March 2023 with a “Supplemental Request for Entry of Judgment[,]” alleging that Father breached the March 2022 consent agreement because he made none of the required payments. After a hearing in April 2023, the court granted Mother’s request to enter an $8,000 judgment for Mother. Father satisfied the judgment later that month. He then noted this appeal.
Representing himself on appeal in this Court, Father presents eight questions for our review.1 But all eight of Father’s questions concern the validity of the circuit court’s December 2021 finding of contempt which became moot when the parties placed a settlement agreement on the record in March 2022 resolving all issues relative to the contempt finding. Consequently, we shall not address the questions raised in Father’s brief, and we shall affirm the judgment of the circuit court.
III. Can the Appellant be held in constructive civil contempt when he was not provided with the essential charges so that he would have reasonable time to prepare his defense when Maryland Rule 15-206 (c)(2) requires that contemnors be presented with the charges at least 20 days before a hearing?
IV. Was the Court legally correct on December 14, 2021, when it held the Appellant in constructive civil contempt for moving to New Hampshire when there was no clear order for him not to do so?
V. Was the Court legally correct on December 14, 2021, when it held the Appellant in constructive civil contempt without permitting him due process of law as required by the 14th Amendment of the US Constitution and when none of his actions at or before the time of the hearing were in violation of any Court Order as is required of findings of contempt by Maryland Rule 15- 206?
VI. Was the Court legally correct in holding the Appellant in constructive civil contempt for relocating to New Hampshire when Maryland Statute Family Law Article §9-106 Para. (a) (4) states that “the court shall set a hearing on the [relocation] petition on an expedited basis.” yet it cancelled a scheduled hearing and two months passed before the Appellant relocated without the Court giving any specific guidance?
VII. Was the Court legally correct on March 3, 2022 when it imposed a purge provision, meanwhile the Court already purged the contempt three months before, by ordering the Appellant to change their school, pediatrician, and therapists and he had already fulfilled that order?
VIII. Was the Court legally correct in holding the Appellant in constructive civil contempt for putting the Court in a position that would necessitate revising an order when Maryland Statute Family Law Article §8-103 (a) authorizes and encourages the Court to change a custody agreement when it is in the best interest of the children and there exists a significant change in circumstances?
BACKGROUND
Mother and Father married in May 2002. Two children were born in April 2008.
In December 2014, Father filed a complaint for absolute divorce in the Circuit Court for Baltimore County. In March 2017, the court granted a Judgment of Absolute Divorce. Numerous disputes arose between Father and Mother regarding child custody and visitation. On May 14, 2021, the circuit court signed
a consent order addressing many of the disputes. That order was entered on MDEC on May 17, 2021 (the “May 2021 consent order”). Under the May 2021 consent order, the parents were to have shared physical custody and joint legal custody of their two children. The consent order provided (among other things) that “the minor children shall continue therapy with their current therapists[.]”
The order further provided:
If in the future, there is a need to change a therapist, the parties shall jointly discuss the selection of the therapist, but Father shall have tie-breaking authority; [and] both parties shall both attend intake prior to the child being seen or treated by the therapist[.]
With respect to the children’s education, the consent order provided that Father would have “tiebreaker authority regarding education issues, except that the children shall remain at their current middle school and . . . attend high school within thirty-five (35) miles of Reisterstown, Maryland, unless otherwise agreed [to] by the parties[.]”
In October 2021, Father moved from Maryland to New Hampshire to begin his new employment as a clinical engineer at Dartmouth-Hitchcock Medical Center. As a result of Father’s relocation with the children, Mother filed a petition asking the Circuit Court for Baltimore County to find Father in contempt for violating the above-quoted terms of the May 2021 consent order.
The circuit court held a hearing on Mother’s contempt petition on December 14, 2021. At that hearing, Father acknowledged in his testimony that he had withdrawn the children from the “[Baltimore County Public Schools] home schooling umbrella,” and, “[a]s soon as [he] moved to” New Hampshire, he “co-enrolled [the children] for social aspects auditing in the Sunapee School in New Hampshire[,]” where they began to attend school. One of the children’s therapists testified at the hearing that she stopped having sessions with that child because the child “was primarily living in New Hampshire and [the therapist’s] licensure is only for the State of Maryland.”
At the end of the December 2021 hearing, the court found that Father was in contempt for violating the terms of the May 2021 consent order, explaining:
The order requires that the children not be taken from their therapist and as it turns out, that’s exactly what has happened. The Maryland therapist cannot practice in New Hampshire. So that’s out. It’s unrealistic to think that the children will be coming back and forth from New Hampshire every time they need to visit a doctor. So the requirement that they stay with a doctor was ignored. The idea that the children had to stay at their current middle school and attend high school within 35 miles of Reisterstown, Maryland unless otherwise agreed was completely ignored by [Father].
After orally finding Father in contempt for ignoring provisions of the May 2021 consent order, the court explained that it would defer the imposition of a sanction and purge provision, but would consider requests for financial compensation at a later date, stating:
I’m not sure there is any measure of sanction that really works that doesn’t work to the disadvantage of the two children, the two girls who are involved here, because some
of the more common measures, make up time and so forth, really are to benefit [Mother] versus [Father]. And that’s not necessarily in the children’s best interests, which I am here to tell you is my only focus. So having found that and having found contempt, I am not imposing any sanctions and thus there is no purge provision. That doesn’t exclude any of the requests for financial, either attorney’s fees or other issues related to that.
On December 21, 2021, the court entered an interim custody access order that modified the custody arrangement to allow Mother physical custody of the minor children for several days in each month from December to May while the children otherwise resided with Father in New Hampshire. Under that interim order, Father was “responsible for any costs associated with the transportation of the minor children to and from [Mother] for her access period[.]” The interim order also granted Mother physical custody of the children for the majority of the summer from “June 17, 2022 until 3 days prior to school resuming for the 2022-2023 school year, except for a two-week vacation period when the children shall visit with [Father].”
On March 3, 2022, the circuit court held a hearing “to address any purge provisions and consequences resulting from the” contempt finding. At that hearing, the parties—who were each represented by counsel at that time—placed on the record an agreement Father and Mother had reached to resolve the contempt issues (the “March 2022 consent agreement”). The March 2022 consent agreement required Father to pay $8,000 to Mother, “representing attorney’s fees for the contempt[.]” The agreement called for Father to pay the $8,000 in installments, and provided for “the payment plan beginning on August 15, 202[2] with each payment being $1,000 due and owing on the 15th of every month thereafter.” According to the parties’ March 2022 consent agreement, “if the payment is not made, [Mother] may request and the Court will reduce the unpaid amounts to judgment in her favor.” The agreement also required Father to “lose one week of summer access” with the children “to make up for the 10 days that [Mother] had missed under the Order because of [Father’s] move to New Hampshire.”
On March 17, 2023, Mother filed a supplemental request for entry of judgment in which she alleged that Father never paid any portion of the $8,000 that was required by the settlement agreement placed on the record on March 3, 2022. Mother asked that the circuit court “reduce the full, unpaid amount of $8,000.00 as a judgment” against Father.
After a hearing on April 13, 2023, the court granted Mother’s request to enter a judgment “reducing the amount owed of $8,000.00 to judgment” for Mother. Father satisfied the $8,000 judgment on April 27, 2023.
Father filed his notice of the present appeal on May 3, 2023.
DISCUSSION
Father waived his right to challenge the contempt finding because the parties’ agreement placed on the record on March 3, 2022, resolved all issues relative to the contempt finding.
As noted above, all of Father’s questions presented in this appeal concern the circuit court’s finding—made at the hearing
held on December 14, 2021—that Father was in contempt for ignoring certain provisions of the May 2021 consent order. But those arguments are no longer available for Father to pursue on appeal because, on March 3, 2022, the parties—and their attorneys of record at the time—agreed, on the record in open court, to resolve all of their disputes relative to the December 2021 contempt finding. As the Supreme Court of Maryland stated in Long v. State, 371 Md. 72, 86 (2002): “By agreeing to settle their dispute, the parties give up any meritorious claims or defenses they may have had in order to avoid further litigation.”
“It is well established in Maryland that a valid settlement agreement between the parties is binding upon them.” Chernick v. Chernick, 327 Md. 470, 481 (1992). “The public policy of encouraging settlements is so strong that settlement agreements will not be disturbed even though the parties may discover later that settlement may have been based on a mistake or if one party simply chooses to withdraw its consent to the settlement.” Long, 371 Md. at 85.
Furthermore, “[i]t is a well-settled principle of the common law that no appeal lies from a consent decree.” Suter v. Stuckey, 402 Md. 211, 222 (2007). Accordingly, “when there was uncoerced ‘bargaining for the reciprocal promises made to one
FOOTNOTES
another[,]’ the end product should not be disturbed.” Id. at 225 (quoting Chernick, 327 Md. at 480). See also In re Nicole B., 410 Md. 33, 64 (2009) (“It is well-settled that a party in the trial court is not entitled to appeal from a judgment or order if that party consented to or acquiesced in that judgment or order.”). See also Barnes v. Barnes, 181 Md. App. 390, 420 (2008) (dismissing appeal of consent order “[b]ecause there [was] no evidence on the record to contradict the conclusion that both parties voluntarily agreed to the terms of the Order”).
Here, Father does not contend that his consent to the March 2022 agreement was coerced or otherwise invalid. Nor does he contend that the court lacked jurisdiction to approve the settlement agreement that the parties’ attorneys placed on the record. The transcript confirms that neither Father nor his attorney raised any issue when the terms of the agreement were placed on the record on March 3, 2022.
Because none of Father’s questions concerning the contempt finding remained at issue in this case after the parties placed their settlement agreement relative to the contempt issues on the record on March 3, 2022, we shall affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 The eight questions set forth in Father’s brief were:
I. Was the Court legally correct when it held the Appellant in constructive civil contempt without producing a written order with a sanction, a purge provision, or a design for coercing
future compliance when these are required under Maryland Rule 15-207(d)(2)?
II. Was the Court legally correct on December 14, 2021, when it held the Appellant in constructive civil contempt for a past action, moving to New Hampshire?
In the Maryland Appellate Court: Full Text Unreported Opinions
The Circuit Court for Howard County, sitting as a juvenile court, adjudicated C.J. and CL.J.1 to be children in need of assistance (“CINA”)2 and committed them to the Howard County Department of Social Services (the “Department”) for continued placement in foster care. Appellants, M.S. (“Mother”) and J.J. (“Father”), filed a timely appeal of that determination. In this appeal, Mother and Father have raised the following questions for our review, which we have consolidated and rephrased for clarity:
1. Did the juvenile court err by finding both children CINA and committing them to the Department?
2. Did the juvenile court abuse its discretion when it ordered Mother and Father to submit to psychiatric and psychological evaluations?
3. Did the juvenile court fail to hold a separate adjudication and disposition hearing; and if so, does the error warrant reversal?
For the reasons explained below, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of two young children, C.J. and CL.J. When the Department became involved with the family, C.J. was 20 months old and CL.J. was three months old. Prior to the children’s placement in foster care, Mother and Father lived together in Maryland and then in Georgia. At some point, Mother and Father returned to Maryland and began to live separately, but both took part in caring for the children. Mother lived in an Airbnb with the children at an unknown location, and Father was living in Odenton, Maryland with his
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
parents. On January 24, 2023, the Department sought emergency shelter care3 for the children.
The Department’s Initial Contact with the Parents
On January 19, 2023, the Department received a referral regarding child neglect. Specifically, the referral alleged medical neglect of C.J. and CL.J. by their parents. It was alleged that C.J. was severely underweight and the same size as his threemonth-old sister, CL.J. Additionally, C.J. was not under the care of a pediatrician and he had previously been diagnosed with failure to thrive. On that same day, Social Worker Whitney Bell responded to the home of the children’s maternal grandmother in Elkridge, Maryland, in an attempt to lay eyes on the children and to do a welfare check. Mother was not at the residence. Ms. Bell attempted further contacts with Mother through email exchanges, but Mother would not provide any information about C.J.’s whereabouts. The case was then assigned to Child Protective Services (“CPS”) Social Worker Octavia Smith.
Ms. Smith sent emails to Mother to introduce herself, but Mother would not respond. In an attempt to see C.J., Ms. Smith sent law enforcement welfare checks to the homes of maternal grandmother and Father, and she also went to their residences; however, Ms. Smith and law enforcement were unsuccessful in locating C.J. Sometime later, Howard County police officers again responded to maternal grandmother’s residence, but Mother was not there.
On January 24, 2023, Ms. Smith received information that C.J. was at Father’s residence in Odenton. Ms. Smith went to Father’s residence and spoke to his parents. Father was not there nor was C.J. While Ms. Smith was at the residence, C.J.’s paternal grandfather made calls to Father to have him return to the residence, but Father did not return to the residence. C.J.’s paternal grandmother allowed Ms. Smith to see the basement where Father stays when the children are with him. The basement had only two small couches pushed together, no bed or crib, no food for C.J., and only one sippy cup. While at Father’s residence, Ms. Smith received notification that Mother and Father were now in Howard County.
In an effort to see the family, Ms. Smith returned to maternal grandmother’s home. While there, the maternal grandmother contacted Mother to get her to come to the residence, but Mother would not do so. While there Ms. Smith learned that Mother, Father, and the children were together.
After determining that the children needed to be assessed and that the parents took steps to evade CPS, Ms. Smith
received authorization to shelter the children. As Ms. Smith wrapped up her contact with the children’s maternal grandmother, she learned that Mother and Father were in Anne Arundel County. Eventually, law enforcement located the family in a vehicle at a Dunkin Donuts in Odenton. When Ms. Smith went to the Dunkin Donuts, Mother and Father prevented her from seeing the children. Even without access to the children, Ms. Smith was able to see that both children were in the vehicle and she noticed that C.J. was very small. It was not until EMTs were called to assist that Mother allowed the children to be removed from the vehicle. The children were taken by ambulance to Howard County General Hospital.
The Children’s Medical Examinations and Prior Medical History
a. C.J.
At the hospital, the children were medically assessed. C.J. received a diagnosis of failure to thrive, developmental delay of gross and fine motor functions, and speech and language developmental delays. C.J. was determined to be severely underweight. At 20 months old he weighed only fifteen pounds. He was wearing clothing for a zero-to-three month old child. He was unable to ambulate or stand. He was given a cup to drink from but he did not know how to drink from a cup. He was able to drink apple juice from a bottle. He had only two teeth, and the treating physician was “cautious with introducing whole solid foods for concerns for oral-motor dysphagia,”4 and recommended to start with “soft pureed foods to monitor for swallowing.” In providing a history of C.J.’s eating, Mother indicated that C.J. was only given applesauce pouches, fruits, avocados, and gluten- free waffles. She further indicated that C.J. did not drink cow’s milk.
The physician who assessed C.J., told Ms. Smith, and noted in the medical records, that C.J.’s failure to thrive was a result of severe medical neglect, and that solid foods had to be cautiously introduced. C.J. was referred for occupational and physical therapy, gastroenterology for failure to thrive, pediatric well check examinations and for continuity of care, and speech evaluation and therapy with Infants and Toddlers Program. The treating physician also concluded that the failure to thrive was “likely from nutritional neglect vs. endocrine/GI disorder.”
The physician noted in the medical records that for C.J. to gain weight, he needed to be on a certain number of calories per day and recommended to “optimize food intake with pediasure along with 16oz. cow’s milk formula.”
The Department requested from the parents all prior medical records for both children, but the parents would not respond to the Department’s request. In the course of investigating the case, the Department, through its own efforts, obtained prior medical records. The records revealed that C.J. was born premature at 34 weeks. He was admitted to the NICU for management of problems related to his early birth, including feeding intolerance, and he remained at the NICU for 11 days. The records also showed that C.J. has not received any vaccinations.
Medical records also established that C.J. was previously taken to the hospital in October 2021. Initially, his parents took him to the emergency room for nasal congestion. At that time, he was five months old and he weighed seven pounds and 12.7
ounces. Although C.J. was noted as having nasal congestion, the treating physician had greater concern for C.J.’s severe failure to thrive. Even with taking into consideration the fact that he was born premature, C.J. was below the growth chart. Although the treating physician raised concerns to the parents about C.J.’s weight, the parents believed that C.J. was doing well because he had doubled his birth weight. At the time, the parents revealed that C.J. was seen by a naturopath,5 who, according to the parents, believed C.J.’s weight gain was appropriate. At this hospital visit, C.J. was diagnosed, among other things, with failure to thrive and poor weight gain.
As part of the follow-up medical plan for the October 2021 emergency room visit, the parents were told that C.J. needed to have “close follow up with [a gastroenterologist and a primary care pediatrician] with in person visits for weight check.” After the October 2021 hospital visit, the parents took C.J. to Annapolis Pediatric Gastroenterology on two occasions: November 4, 2021 and December 9, 2021. Those records revealed that C.J.’s weight still had not caught up to where it should be for a child his age. Aside from the two subsequent visits, there were no other medical records to show that C.J. had received any other follow-up care with a gastroenterologist or with a pediatrician.
b. CL.J.
CL.J. was also medically assessed on January 24, 2023. At that time, she was three months old. Her development and weight, of 11 pounds and 15.20 ounces, were within expected milestones for a three-month-old child. CL.J.’s prior medical records revealed that she was also born premature, at 36 weeks. There were no other medical records establishing that she had been seen or treated by a pediatrician. She did not have any vaccinations.
Shelter Care Hearing
On January 24, 2023, after the children were medically assessed, the Department removed the children from the care of Mother and Father and placed the children in emergency shelter care with a foster family. On January 25, 2023, the Department filed a CINA Petition and Request for Shelter Authorization. The petition set forth the entire history of the Department’s attempts to make contact with the parents, the parents’ steps to evade CPS, the results of C.J.’s medical assessment, and that both children were extremely hungry when fed by workers at the hospital. The juvenile court held a shelter hearing, and both parents were present. The parents were advised about their right to legal representation, and both declined to have counsel and elected to proceed with the hearing. Mother testified at the hearing. She testified that she had been living at an Airbnb, but she would not provide the address.
After considering the allegations in the petition and the testimony offered, the juvenile court found that “continuation of the [children] in the [parents’] home was contrary to the [children’s] welfare and that it is not possible to return the [children] to the home and placement for the [children] is required to protect them from serious immediate danger.” The juvenile court also found that the Department had made reasonable efforts prior to placement to prevent the removal of the children but the parents failed to comply with all efforts.
The juvenile court continued the children in shelter care, placed the children in the temporary care and custody of the Department, granted the parents visits with the children, and set an adjudication hearing for February 15, 2023.
The Adjudication and Disposition Hearing
On February 15, 2023, a remote adjudication hearing was convened before a juvenile magistrate. Similar to the shelter hearing, Mother and Father appeared without counsel. The magistrate advised them of their right to counsel and both elected to proceed without representation.
At the hearing, the Department presented the testimony of Ms. Smith, who testified about the initial referral that was made, and the exhaustive steps she, other workers, and law enforcement took in trying to make direct contact with Mother and Father in order to see the children, but the parents would not cooperate. In addition, Ms. Smith testified that when she and other social workers were at the hospital with the children, the physician told her that C.J. had previously been diagnosed with failure to thrive and the current diagnosis was also failure to thrive. The physician further expressed that the failure to thrive was due to severe medical neglect. Regarding CL.J., the physician also determined medical neglect because CL.J. had not received any vaccinations and had not been under the care of a pediatrician.
Regarding her own observation of C.J., Ms. Smith testified that although C.J. was 20 months old and CL.J. was three months old, C.J. appeared similar in size to his younger sister. To further show their similarity in size and weight, the Department offered into evidence a photograph of the children laying side by side. Ms. Smith testified that the weight difference between the children was only two pounds.
Ms. Smith also testified that she reached out to the parents to request documents and information helpful for the investigation, particularly prior medical records and follow-up medical appointments, but neither Mother nor Father responded to her requests. Moreover, she testified that the parents had been evasive and uncooperative, even to the point that Mother would not provide her home address.
Since the children were placed in foster care, C.J. had gained two to three pounds. Ms. Smith expressed concern that if the children were returned to the parents, she believed they would not take the children to medical appointments, that C.J. would not continue to gain weight, and that the parents would likely leave the State, again. Ms. Smith also was asked during questioning if she recommended any services for the family and she indicated that both parents should undergo a psychiatric evaluation. She made this recommendation “to understand [the parents’] views and beliefs” because Ms. Smith “did not believe that the parents [had] a sense of reality when speaking” with the Department and “what is law and what’s not.”
In addition to the testimony of Ms. Smith and the photograph of the children, the Department offered into evidence the medical records from the night the children were assessed at Howard County General Hospital, recent pediatric records for both children from their time in foster care, University of Maryland medical records related to the children’s birth, and C.J.’s
medical records related to the October 2021 failure to thrive diagnosis.
Mother and Father also testified at the hearing. During their testimony, both parents read from a letter, which they described as “the unauthorized administration” of their estate. Mother referred to herself as the “executor” of her estate, and alleged that the Department had violated her “estate in a matter that is deemed to be treasonous and poisonous to the well-being of [her] heirs,” and that the Department had kidnapped her heirs. She testified that the children should be returned to the estate. During Father’s testimony, Mother interjected and attempted to assist him. When he finally spoke, he stated:
Allocution of Court in curry of prisoners as to whether he has any legal case to show why judgment should not be pronounced against him on verdict of construction. Conviction Black’s Law Dictionary fourth edition. Octavia Smith, LMSWCPS Social Worker, and Suzzanne Glorioso, LCSWC SPS given—
This meeting has been adjourned and I would love for [C.J. and CL.J.] to be returned to estate.
Neither parent addressed the concerns raised by the Department or the medical findings related to C.J.
At the conclusion of the adjudication hearing, the magistrate gave all the parties an opportunity to provide a closing argument. Both the Department and the children’s attorney requested that the children be found CINA and placed in the care of the Department.
When Mother went to provide her closing argument, she attempted to play a recording she made of a conversation she had with a doctor. When the magistrate informed Mother that she could not do that and explained to Mother that wiretap laws prohibited the recording of a person without their explicit consent, Mother continued to interrupt the magistrate. Mother again asked for the children to be returned to the estate. During his closing argument, Father argued that “fraud has been discovered on the Court.”
After the magistrate provided the parties with the opportunity for a closing argument, she began to make her findings on the record. The magistrate found that “based on the evidence presented today, I do find that the facts in the Petition are sustained. It’s more than a preponderance of the evidence. There is photographic evidence, there are medical records, it’s very concerning. The facts in the Petition are sustained and –.” Before the magistrate could finish what she was saying, Mother interrupted the proceedings:
[Mother]: This is hearsay. This is hearsay because how do you know that the source from the referrals is even credible? In the Constitution, we are supposed to –
Magistrate: Ma’am, you had a chance to speak. [Mother]: We’re supposed to face our accuser.
Magistrate: Well I understand you have your own interpretation.
[Mother]: Is there corpus delecti?
Magistrate: It is now my change [sic] to talk and I do find that they are Children in Need of Assistance.
[Mother]: Is there corpus delecti? Magistrate: Because –
[Mother]: Is there an injured party? Magistrate: I’m not answering questions here. [Mother]: Is there an injured party?
Magistrate: Have you seen the picture? [Mother]: Is there an injured party?
Magistrate: All right ma’am, we’re going to have to mute you if you don’t let me finish.
[Mother]: Is there Title Four funding –Because of Mother’s continuous interruptions, the magistrate had Mother muted on the remote platform to avoid further interruptions. The magistrate then continued and stated: I find there is not a parent that [the children] cannot be returned to their [sic] home. It is not in their best interest and the evidence sustained the finding that continuation in the parents’ home is not in their best interest. They are unable or unwilling to provide sufficient nutritional resources, and medical care for the children and it is my job to ensure that I make decisions that I find to be in the best interest of the children. And that’s my decision. So I’m going to recommend that the children remain in the care and custody of the [Department] with limited guardianship. That the parents have supervised visits with the children as can be arranged and directed by [the Department]. And that both parents submit to a psychiatric and psychological evaluation and follow all treatment recommendations and sign all releases.
The magistrate then set in a review hearing to occur in July. At the conclusion of the hearing, the magistrate also issued a written CINA Adjudication/Disposition Findings and Order.
In her written findings, the magistrate noted that the parents elected to proceed without counsel at the shelter hearing and the adjudication hearing. She summarized the testimony of Ms. Smith and the efforts undertaken by the Department to contact the parents. Regarding C.J., the magistrate found that he was extremely small. He weighed only 15 pounds; had not met any milestones; and had been diagnosed with failure to thrive twice, once in 2021, with no follow-up, and again in 2023. She also found that he was developmentally delayed and could not sit up, walk, or speak. She noted the photo showed a “shockingly small [C.J.] next to his sister,” but that since placement in foster care, C.J. had gained weight. Regarding CL.J., she found that there were concerns that she had not received vaccinations.
Regarding Mother and Father, she found the parents did not cooperate with the Department, that Mother told Ms. Smith she only gives C.J. certain foods, and that the parents do not want the children vaccinated. The magistrate also noted the transient nature of the parents. Lastly, the magistrate noted the parents’ testimony. The magistrate found that neither one “addressed the needs of the children but rather seemed to address some alleged intrusion on property rights.” The magistrate noted that both parents referred to the children as part of an estate. Specifically as to Father, the magistrate found that he was hesitant, was directed by Mother, he “had an unusual affect” and “his speech was halting and disjointed.” She concluded that “both parents appeared to be thought disordered and/or delusional to an extent that would effect [sic] their ability to adequately parent at this time.”
The magistrate further found that:
Both parents are unable to provide proper care for their children. The children are at substantial risk of harm if returned to their parent’s care. The parents believe in conspiracy theories, they do not believe in medical care, they refuse to consent to vaccinations and have no fixed address. [C.J.] is severely underweight, malnourished and extremely developmentally delayed. He is diagnosed as Failure to Thrive and requires significant medical intervention.
Similar to her oral opinion, the magistrate recommended that the children be found CINA, that the children remain in the care and custody of the Department and in foster care, and, among other things, that Mother and Father submit to a psychiatric and psychological evaluation and to follow all treatment recommendations.
Neither parent filed exceptions to the magistrate’s findings, conclusions, or recommendations.6 On February 28, 2023, the magistrate’s findings, conclusions, and recommendations were adopted by court order.
DISCUSSION
I. Parties’ Contentions
Mother contends that the juvenile court committed error by finding both children CINA and by ordering her to undergo a psychiatric or psychological evaluation. Mother first contends that the children did not meet the definition of CINA and that the removal of the children was in error. In particular, while not conceding the specific medical findings that were made about C.J., she argues that CL.J. was healthy and had no medical issues like her brother. According to Mother, the only concern raised about CL.J. was the lack of vaccination. In addition, Mother argues that she was willing and able to care for the children and that removal of the children from her care was based on speculation. According to Mother, the medical records do show that she took C.J. to follow-up medical appointments after the October 2021 failure to thrive diagnosis and that C.J.’s small size could have been from a possible genetic condition. According to Mother, once the Department was able to assess the children, determine the services they needed, and found CL.J. to be healthy, the children should have been returned to Mother.
Mother’s second contention is that there were insufficient facts to require her to undergo a psychiatric and psychological evaluation and follow all recommendations. Mother argues that in the Department’s CINA petition, it made no allegations against Mother regarding mental health issues that may affect her parenting. Consequently, there were no findings to be made by the magistrate to substantiate the Department’s request for the evaluation. In seeking such a request, the Department simply noted that it wanted the parents to undergo psychiatric and psychological evaluations to understand the parents’ views and beliefs. In ordering the evaluations, Mother argues that the juvenile court simply did so based on the magistrate’s finding that the “parents appeared to be thought-disordered and/or delusional.” Since the Department did not allege in its petition that Mother’s mental health was the reason to remove the children, Mother argues that the juvenile court’s order was based on speculation and bias, and it was unreasonable.
For his part, Father also raises two contentions. First, he contends that the juvenile court committed reversible error by failing to have a separate and distinct disposition hearing. Although he acknowledges that neither parent filed exceptions to the magistrate’s findings and recommendations, he argues that the CINA statutory framework requires the juvenile court to hold a separate and distinct disposition hearing from the adjudication. Father asserts that the magistrate did not hold a separate disposition hearing. Instead, the magistrate concluded that the children were CINA without affording the parents the opportunity to obtain counsel and present additional evidence to determine if the parents were capable of providing care to the children.
Second, and similar to Mother, Father contends that the juvenile court erred in finding both children to be CINA, since the evidence was lacking regarding any abuse or neglect related to CL.J. Specifically, Father points out that C.J. was diagnosed with failure to thrive and additional medical and therapeutic interventions were recommended for him. CL.J., however, was healthy and did not require any additional health related services. Father argues that the medical findings made regarding C.J. should have no impact on CL.J.
Collectively, the local department and children’s attorney (the “Appellees”) contend that the juvenile court acted within its broad discretion in finding both children to be CINA, and there was sufficient evidence to support the juvenile court’s findings and conclusions. First, there was ample evidence for the juvenile court to conclude that C.J. had been neglected by his parents and that they were unable to provide him with proper care. C.J. was severely underweight, malnourished, developmentally delayed, and had a prior diagnosis for failure to thrive in which there was a lack of follow-up by the parents. Even if, as Mother contends, C.J.’s failure to thrive was not due to the parents’ dietary and health care choices, the parents failed to take appropriate action after receiving the failure to thrive diagnosis in October 2021.
Moreover, the Appellees further argue that although CL.J. did not have the same medical and developmental delays as her brother, the collective evidence related to C.J.’s failure to thrive, malnourishment, and lack of follow through regarding his October 2021 failure to thrive diagnosis, plus the parents’ unwillingness to cooperate with the Department, was sufficient evidence to find that CL.J. was also a CINA. As argued by the Appellees, the care of one child is probative of a parent’s ability to care for another child. Since CL.J. was only three months old, had not seen a pediatrician, and like C.J., had not been vaccinated, the Appellees contend that the juvenile court did not need to wait until harm fell on CL.J. for the juvenile court to take appropriate action.
Second, the Appellees argue that there was sufficient evidence, and the juvenile court acted within its broad discretion, to order the parents to undergo a psychiatric and psychological evaluation. The magistrate personally observed the parents’ conduct during the hearing and heard their testimony. Specifically, the magistrate observed that Mother was disruptive during the proceedings and that Father had an unusual affect. During the parents’ testimony, they referred to the children as their “heirs,” they demanded that their heirs be returned to the
estate, and Mother alleged that the Department had kidnapped the children.
Lastly, the Department7 contends that the magistrate was unable to hold a separate and distinct hearing due to Mother’s outbursts, and even if it was error on the part of the magistrate to move into the disposition after the outbursts, the error was harmless. At the adjudication hearing, the Department points out that neither parent responded to the Department’s allegations raised in the CINA petitions. Instead, the parents focused on property rights and their estate when referring to the children. Although the Department recognizes that for good cause a disposition hearing may be held on a different date, the Department argues that “neither parent has proffered what they would have said during a separate disposition hearing that would have led to a different outcome in this case, nor could they.” Thus, the Department argues that even assuming the magistrate erred by not holding a separate hearing, the error was harmless because holding a separate hearing would have only provided the parents with a chance to engage in the same testimony and behavior unrelated to the children’s health and well-being.
II. Standard of Review
This Court has previously explained the three standards of review that apply in CINA proceedings: There are three distinct but interrelated standards of review applied to a juvenile court’s findings in CINA proceedings. The juvenile court’s factual findings are reviewed for clear error. Whether the juvenile court erred as a matter of law is determined without deference; if an error is found, we then assess whether the error was harmless or if further proceedings are required to correct the mistake in applying the relevant statute or regulation. Finally, we give deference to the juvenile court’s ultimate decision in finding a child in need of assistance, and a decision will be reversed for abuse of discretion only if 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.R., 246 Md. App. 707, 730-31, cert. denied 471 Md. 272 (2020) (internal quotation marks and citations omitted).
III. Analysis
A. The juvenile court did not abuse its discretion in concluding that both children were CINA.
The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions that concern the care, custody, and control of their children. Burak v. Burak, 455 Md. 564, 624 (relying on Troxel v. Granville, 530 U.S. 57, 66 (2000)). This right, however, is not without limitations as a “state has a wide range of power for limiting parental freedom and authority in things affecting a child’s welfare . . .
.” In re Nathaniel A., 160 Md. App. 581, 594 (2005) (quoting Prince v. Com. Of Mass., 321 U.S. 158, 167 (1944)). Under Maryland law, to ensure a child’s welfare, the state is entrusted with the power:
(1) To provide for the care, protection, safety, and mental and physical development of any child coming within the provisions of this subtitle;
(2) To provide for a program of services and treatment consistent with the child’s best interests and the promotion of the public interest;
(3) To conserve and strengthen the child’s family ties and to separate a child from the child’s parents only when necessary for the child’s welfare;
(4) To hold parents of children found to be in need of assistance responsible for remedying the circumstances that required the court’s intervention;
(5) Except as otherwise provided by law, to hold the local department responsible for providing services to assist the parents with remedying the circumstances that required the court’s intervention;
(6) If necessary to remove a child from the child’s home, to secure for the child custody, care, and discipline as nearly as possible equivalent to that which the child’s parents should have given;
(7) To achieve a timely, permanent placement for the child consistent with the child’s best interests; and
(8) To provide judicial procedures for carrying out the provisions of this subtitle.
Md. Code. Ann., Cts. & Jud. Proc. § 3-802(a) (2020).8 Therefore, when a child is deemed to be CINA, both the State and the court are required to take action to safeguard a child’s safety and wellbeing. Id.
CINA means:
(f) … 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.
Md. Code. Ann., Cts. & Jud. Proc. § 3-801(f). The local department’s burden to prove that a child is CINA is by a preponderance of the evidence. Md. Cod. Ann., Cts. & Jud. Proc. § 3-817(c).
In their briefs, the parents challenge the magistrate’s factual findings that the children were neglected and that the parents were unable and unwilling to provide the children with the care they needed. Before the juvenile court, however, neither parent filed exceptions to any of the magistrate’s recommended findings and conclusions. “A party’s failure to timely file exceptions forfeits any claim that the [magistrate’s] findings of fact were clearly erroneous.” Barrett v. Barrett, 240 Md. App. 581, 587 (2019) (internal quotations and citations omitted). Consequently, we are not required to address the challenges now raised by the parents regarding the magistrate’s factual findings. In re J.R., 246 Md. App. at 749.
Nonetheless, even if exceptions had been filed, there was substantial evidence for the juvenile court to find that the parents had neglected the children and were unwilling or unable to give proper care and attention to the children’s needs. Therefore, the juvenile court did not abuse its discretion in finding both children to be CINA and continuing the children in foster care.
1. Neglect finding regarding the children.
The statutory definition of neglect includes a “failure to give proper care and attention to a child by any parent . . . who has permanent or temporary care or custody or responsibility for supervision of the child under circumstances that indicate . . . the child’s health or welfare is harmed or placed at substantial risk of harm.” Md. Code Ann., Cts. & Jud. Proc. § 3-801(s)(1) (i) (emphasis added). There was ample evidence to support the juvenile court’s neglect finding as to both children.
At 20 months of age, C.J. only weighed 15 pounds, barely more than his three- month-old sister. The medical examination revealed that C.J. was developmentally delayed, unable to stand or ambulate, and his speech was delayed. At the hospital, he had to be fed with a bottle because he did not know how to use a cup. Mother reported that he only ate applesauce pouches, fruits, avocados and gluten free waffles. She further indicated that C.J. did not drink cow’s milk. Based on the medical evaluation that was done of C.J. at the hospital, the treating physician concluded that he was malnourished and diagnosed C.J. with, among other things, failure to thrive.
Moreover, prior medical records from October 2021 also indicate that when C.J. was five months old, he was diagnosed with failure to thrive, and it was recommended that his parents follow-up with a gastroenterologist and a pediatrician to monitor his weight. While the medical records do show that the parents took C.J. to a couple of follow-up visits with Annapolis Pediatric Gastroenterology, those records revealed that C.J.’s weight was still below expectations. Despite the Department’s efforts to obtain medical records from the parents regarding any other subsequent medical care related to C.J.’s October 2021 emergency room visit, the parents failed to cooperate and did not provide medical records. Consequently, there were no other medical records to show that C.J. received follow-up medical care as recommended to address his failure to thrive and to monitor his weight.
In addition to the medical records, the local department presented the testimony of CPS Social Worker Ms. Smith, who testified regarding her observations of C.J. She testified that C.J. appeared small and underweight in comparison to his much younger sister. At the hospital, she observed both children were very hungry and needed to be fed. She also presented testimony regarding the challenges she faced in getting the parents to cooperate and the active steps the parents took to prevent the Department from seeing the children, especially C.J.
Lastly, a photograph of the children was offered into evidence to provide a side-by- side comparison of the children. Ms. Smith described how the children appeared identical in size and weight, even though C.J. was 20 months old and CL.J. was three months old.
Neither parent at the adjudication hearing, nor in their briefs, raises a serious challenge to the juvenile court’s neglect finding regarding C.J. At the adjudication hearing, the parents did not offer any testimony or documents to contradict the medical findings related to C.J., or the testimony of Ms. Smith regarding her observations and interactions with the parents. In her brief, Mother argues that the reasons for C.J.’s “small size remained unknown and could have been caused by a number of issues, malnutrition being only one possibility.” Yet, the parents
presented no other evidence that would permit the juvenile court to reach any conclusion other than neglect.
Regarding CL.J., it is true that she was healthy and appeared to be of normal weight and size for a three-month-old child. Mother and Father argue in their briefs that because CL.J. did not have the same medical findings as C.J., it was error for the juvenile court to also find that CL.J. was neglected. Moreover, Mother argues that the juvenile court’s only basis for finding that CL.J. was neglected was because she had not been vaccinated. Mother contends that she has the right to decline to vaccinate her children.
The issue of a parent’s right to vaccinate a child was not an issue raised by the parents before the juvenile court, nor is it an issue this Court needs to decide.9 “Ordinarily, 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[.]” Md. Rule 8-131(a). Consequently, Mother’s vaccination argument was not preserved for appellate review. Even if this argument had been preserved, Mother would not prevail.
In reviewing the juvenile court’s oral and written opinion, the neglect finding was not based on the children’s lack of vaccination. Although the magistrate briefly mentions in her report that neither child was vaccinated, the majority of the magistrate’s written factual findings focused on: the evidence related to C.J.’s failure to thrive; the parents’ lack of cooperation with the local department; the parents’ testimony, which did not address the needs of the children but rather their property interest in the children; and the parents’ failure to follow up on C.J.’s October 2021 failure to thrive diagnosis. Thus, although the Department did note in its CINA petitions that the children were not vaccinated, and the magistrate found that neither child had been vaccinated, that determination was not the controlling basis for a neglect finding as to CL.J.
The definition of neglect includes not only that a child has been harmed, but, as relevant here, whether the child has been “placed at a substantial risk of harm.” Md. Code Ann., Cts. & Jud. Proc. § 3-801(s)(1)(i). As correctly pointed out by Appellees, a “judge need not wait until the child suffers some injury before determining that he is neglected. This would be contrary to the purpose of the CINA statute. The purpose of the act is to protect children—not to wait for their injury.” In re William B., 73 Md. App. 68, 77-78 (1987). Thus, while CL.J. may have been healthy at three months old, waiting for some harm to befall her would be contrary to the purpose and intent of the CINA statute.
Moreover, “the parents’ ability to care for the needs of one child is probative of their ability to care for other children in the family.” Id. at 77. Mother and Father’s failure to provide C.J. with nourishment and follow-up medical care the first time he was diagnosed with failure to thrive is probative evidence of their ability to provide the necessary medical care and attention to CL.J. There was also evidence that no medical records existed to confirm that CL.J. had been seen or treated by a pediatrician. Thus, there was substantial evidence to support the juvenile court’s conclusion that CL.J. was at a substantial risk of harm and, therefore, also neglected.
Accordingly, we conclude that the juvenile court was not clearly erroneous in its factual determination that the parents had neglected both children.
2. The juvenile court did not err in finding that the parents are unable and unwilling to give proper care and attention to the children.
A CINA determination is based on two findings. First, and relevant in this case, that a child has been neglected, and second, that a parent is “unable or unwilling to give proper care and attention to the child and the child’s needs.” Md. Code. Ann., Cts. & Jud. Proc. § 3-801(f). The evidence here supports the juvenile court’s finding that the parents were unable and unwilling to provide the proper care and attention to the children and their needs.
Throughout the Department’s involvement with the parents, neither parent has been cooperative. They evaded the Department’s attempt to see the children for a wellness check and they were unresponsive to the Department’s request for additional medical records related to the children. At the proceedings before the lower court, Mother refused to provide her address, both parents failed to address the needs of the children, and both viewed the children as property of their estate and demanded the return of their property. The parents were focused on the property rights they had regarding the children and never addressed C.J.’s failure to thrive, his developmental delays, or any medical care regarding both children. Rather than address the Department’s allegations of neglect, the parents instead alleged that the Department had committed fraud and had kidnapped the children.
The juvenile court concluded that:
Both parents are unable to provide proper care for their children. The children are at substantial risk of harm if returned to their parent[s’] care. The parents believe in conspiracy theory, they do not believe in medical care, they refuse to consent to vaccinations and have no fixed address. [C.J.] is severely underweight, malnourished and extremely developmentally delayed. He is diagnosed as Failure to Thrive and requires significant intervention.
The juvenile court’s findings were supported by the evidence, and therefore we find no clear error in its conclusion that the parents were unable and unwilling to provide the necessary care to the children.
Accordingly, we conclude that there was substantial evidence to support the juvenile court’s determinations that the parents had neglected the children and were unable and unwilling to provide the necessary care to the children. Consequently, the juvenile court did not abuse its discretion in its ultimate determination that C.J. and CL.J. were CINA and that they were to remain in the care and custody of the Department.
B. The juvenile court did not abuse its discretion in ordering the parents to submit to a psychiatric and psychological evaluation.
When a child is determined to be a CINA, a juvenile court has wide discretion to effectuate the CINA statutory scheme. In an effort to provide “for the care, protection, safety, and mental and physical development of any child” deemed CINA, a juvenile court may hold parents “responsible for remedying the circumstances that required the court’s intervention.” Md. Code Ann., Cts. & Jud. Proc. §§ 3-802(a)(1), (4). To that end, a court “may direct the local department to provide services to
a child, the child’s family . . . to the extent that the local department is authorized under State law” and such services must be to “protect and advance a child’s best interest.” Id. § 3-802(c). Unless aggravating circumstances exist,10 a local department is required to provide parents with services in an effort to reunify children with their parents and have the children return safely to their home. See Md. Code Ann., Cts. & Jud. Proc. § 3-812 and § 3-816.1.
Here, the parents’ behavior raised serious concerns for the juvenile court. Both took active steps to evade the Department, and both viewed the children as property of their estate. They described the Department’s actions as fraudulent and they alleged that the children had been kidnapped by the Department. The transcript of the CINA hearing reflects that Mother was disruptive and would not allow the magistrate to continue with the hearing, and that Father simply repeated the same things as Mother. Neither acknowledged nor expressed any concern regarding C.J.’s significant medical issues and developmental delays. The parents’ behavior certainly suggested, as the magistrate noted in her written opinion, that “both parents appeared to be thought disordered and/or delusional to an extent that would effect [sic] their ability to adequately parent at this time.”
The record supports that the juvenile court had a factual basis to require the parents to undergo psychiatric and psychological evaluations, and the fact that the CINA petitions did not allege that either parent had a mental disorder did not prevent the juvenile court from ordering those services. The parents’ inability to focus on the health of the children, rather than the odd property references they made throughout the hearing, was evidence that the parents did not rationally understand the need for the Department to take action to ensure the safety and well-being of the children. Therefore, the juvenile court did not abuse its discretion in concluding that the parents should submit to a psychiatric and psychological evaluation.
C. The juvenile court’s determination that the children were CINA, without first pausing to engage in a separate disposition hearing, was harmless error and does not warrant reversal.
Father also challenges the CINA finding on the grounds that the juvenile court did not hold a separate and distinct disposition hearing, and that the failure to do so is reversible error. In support of his position, he relies on In re J.R., 246 Md. App. 707 (2020). Father argues that the CINA statutory framework mandates that a separate disposition hearing be held and that by not holding a separate hearing, the parents were not given an opportunity to present evidence regarding their current living condition. Additionally, the magistrate did not further explore the parents’ ability to provide care for the children. Consequently, Father believes that by not holding a separate disposition hearing, the juvenile court absolved the Department of their burden of proof in a disposition hearing.
There are two hearings involved before a CINA determination is made. First an adjudication hearing and second a disposition hearing. Md. Code Ann., Cts. & Jud. Proc. §§ 3-817(a), 3-819(a). At the adjudication hearing, the juvenile court determines “whether the department’s factual allegations in the
CINA petition are true.” In re O.P., 470 Md. 225, 236 (2020). If the allegations are proven, then the juvenile court “holds a separate disposition hearing to determine whether the child is, in fact a CINA and, if so, the nature of any necessary court intervention.” Id. While the CINA statutory framework requires the adjudication and disposition to be separate hearings, there is no requirement for the hearings to be held on separate days. Specifically, Courts and Judicial Proceedings § 3- 819 requires the disposition hearing to be held on the same day as an adjudicatory hearing unless the hearing is delayed for good cause, but that delay cannot be more than 30 days from the adjudicatory hearing. Id. at §§ 3-819(a)(2), (3). There are different outcomes that can result from the evidence presented at the disposition hearing:
The court may find that the child is not a CINA and dismiss the case. Alternatively, the court may determine that the child is CINA, in which case it may take one of three actions: (1) decide not to change the child’s current custody; (2) commit the child to the custody of a parent, relative, or another suitable individual; or (3) commit the child to the custody of the local department of social services[.]
In re O.P., 470 Md. at 236-37 (internal citations omitted). See also Md. Code Ann., Cts. & Jud. Proc. § 3-819(b)(1).
Contrary to Father’s assertion, the record does not support a conclusion that at any time the juvenile court absolved the Department of its burden of proof to establish that the children were CINA. The Department presented evidence on the parents’ neglect and their inability to provide proper care to the children. At no time during the hearing, or in setting forth findings and conclusions, did the juvenile court absolve the Department of its burden. We do, however, agree with Father that there was no separate disposition hearing. It was clear from reviewing the transcript of the adjudication hearing that no separate disposition hearing was held. Consequently, the juvenile court committed legal error by not adhering to the statutory framework that requires a separate adjudication and disposition hearing. Nonetheless, we conclude that the error was harmless.
In the case of In re J.R., this Court held that it was legal error for the juvenile court to have combined the adjudication and disposition hearing and that the error was not harmless. 246 Md. App. at 756. In that case, the local department had filed a shelter care and CINA petition after unsuccessful attempts to have the parents adhere to safety plans. Similar to this case, the allegations against the parents concerned medical neglect, which included J.R.’s inadequate weight gain. Id. at 719. At the adjudication hearing, the juvenile court heard from the Department, received evidence regarding two unsuccessful safety plans, and took judicial notice of a prior shelter care hearing. Id. at 728. Neither parent presented evidence nor gave testimony. Thereafter, the juvenile court sustained the allegations in the petition and found that:
Parents have repeatedly violated the terms of Safety Plans, and an Order Controlling Conduct that was imposed by the court, with the parents agreement at the Shelter Care hearing; Child has been left with various caregivers at various locations, without notice to the department, which was conducting an active investigation into the welfare of the child,
and Parents have demonstrated an unwillingness to cooperate with the Department in regard to care of the child. Id. at 729. The juvenile court then made its CINA determination and ordered the parents to participate in several counseling services. Id. Thus, there was no clear indication when the adjudication hearing ended and the disposition hearing started. Id. at 756.
In concluding that the juvenile court’s error was not harmless, the Court in In re J.R. noted that “the [parents] were not given the opportunity to present evidence as to why they would be able to provide J.R. with the proper care and attention, nor did the court outline specific findings as to why the court felt the need for removal.” Id. at 757. Further, the dispositional order required the parents to participate in several treatments and evaluations; however, the juvenile court “made no findings as to the basis for these services being ordered. As a consequence, the dispositional order [did] not correspond with the record.” Id. The Court therefore vacated the dispositional order and remanded the case back to the lower court to hold a dispositional hearing to determine if the parents were unable to care for J.R. Id.
Unlike In re J.R., here, after the Department presented its evidence, the parents testified at the adjudication hearing. Prior to their testimony, they were fully aware of the CINA allegations and the Department’s position that the children should not be returned to the parents’ care. When given the opportunity to address the allegations raised in the CINA petition or challenge the positions taken by the Department and the children’s attorney, the parents elected not to do so during their testimony and closing arguments.
Instead, each time the parents spoke, they continued with the same nonsensical assertions that the children were property of their estate, and they demanded the children’s return. Rather than address the allegations and concerns raised, they both read a letter about the “unauthorized administration” of their estate. Again, they alleged that the Department had committed fraud and had kidnapped the children, and they demanded that the children be returned to their estate.
Lastly, and unlike In re J.R., where it was unclear when the adjudication hearing ended and the disposition hearing started, the hearing transcript clearly shows that the magistrate intended to provide her findings related to the adjudication. Yet, shortly after beginning to deliver her oral opinion, Mother
interrupted the proceedings to the point that the magistrate had to mute Mother. Thus, it was clear from the transcript that it was Mother’s behavior that prevented an orderly progression from the adjudication hearing to the disposition hearing.
While it is true that no separate disposition hearing was held, the juvenile court’s CINA conclusion was supported by the record, as detailed in the findings made by the magistrate. Those findings included the sustained CINA allegations, the magistrate’s observations of the parents during the hearing, and the testimony of the parents. All this supported that the parents were unable and unwilling to provide for the care of the children and that the children could not be safely returned to the parents’ care.
“A reversible error must be one that affects the outcome of the case, the error must be substantially injurious, and it is not the possibility, but the probability, of prejudice that is the focus.” In re Adoption/Guardianship of T.A., Jr., 234 Md. App 1, 13 (2017) (quoting In re Yve S., 373 Md. 551, 618 (2003)) (internal quotation marks omitted). Father, aside from alleging in his brief that a separate disposition hearing would confirm the parents current living situation, advanced no other reason that would have warranted the children to be placed in the care of their parents. Mother also did not advance in her brief a reason that would have resulted in a different outcome. The juvenile court’s conclusion that the parents were unable and unwilling to provide proper care to the children was not based on the parents’ living situation. C.J. was twice diagnosed with failure to thrive and significantly developmentally delayed. At 20 months old, C.J. weighed just two-pounds less than his three-month-old sister. Neither parent responded to the Department’s allegations, even after Ms. Smith testified that the children should not be returned to the parents, nor did the parents provide the Department with medical records to confirm that C.J. had been followed by a pediatrician to monitor his weight, nor that CL.J. had ever been seen by a pediatrician.
In this case, the outcome would not have been different had the magistrate paused and announced that she was moving to the disposition hearing. The parents would have continued with the same unresponsiveness to the serious concerns raised by the Department and the children’s attorney regarding the parents’ inability to provide proper care to the children. Therefore, we conclude that the juvenile court’s error in not holding a separate and distinct disposition hearing was harmless.
ORDERS OF THE CIRCUIT COURT FOR HOWARD COUNTY, SITTING AS A JUVENILE COURT, AFFIRMED. APPELLANTS TO PAY THE COSTS.
FOOTNOTES
1 The children have the same C.J. initials. In the briefs, the parties are not consistent with the initials used to refer to the children. Similarly, the February 15, 2023 transcript also refers to the children using different initials. For consistency and clarity, throughout this opinion we shall use the initials C.J. to refer to the oldest child, and CL.J. to refer to the youngest child.
2 A CINA means a child, who has been either abused, neglected, has a developmental disability or mental disorder and a parent, guardian or custodian is unable or unwilling to provide proper care and attention to the child and the child’s needs. Md. Code Ann., Cts. & Jud. Proc. § 3-801(f) (2020).
3 Shelter care is the temporary placement of a child outside the home before a CINA disposition. Md. Code Ann., Cts. & Jud. Proc. § 3-801(bb).
4 Dysphagia means difficulty with swallowing. Merriam-Webster Dictionary http://merriam-webster.com/dictionary/ dysphagia (last visited Oct. 29, 2023).
5 In the Health Occupation Article, naturopathic medicine is defined as, and includes: (k)(1) … [T]he prevention, diagnosis, and treatment of human health conditions, injury, and disease using only patient education and naturopathic therapies and therapeutic substances recognized by the Council of Naturopathic Medical Education.
(2) “Naturopathic medicine” includes:
(i) Counseling;
(ii) The practice of the mechanical sciences of healing, including mechanotherapy, articular manipulation, corrective and orthopedic gymnastics, hydrotherapy, electrotherapy, and phototherapy;
(iii) The practice of the material sciences of healing, including nutrition, phytotherapy, treatment by natural substances, and external applications; and
(iv) Prescribing, dispensing, or administering nonprescription and prescription drugs and devices listed in the formulary. Md. Code Ann., Health Occ. § 14-5F-01(k) (2021).
6 In accordance with Courts and Judicial Proceedings Section 3-807(c)(1), any party may file exceptions to a magistrate’s findings, conclusions and recommendations. If a party fails to file timely exceptions, a court shall adopt the magistrate’s findings, conclusions, and recommendations and enter an order, unless otherwise ordered by the court. Md. Code Ann., Cts. & Jud. Proc. § 3-807(d)(2); Md. Rule 11-103(g).
7 The children’s brief did not address this issue.
8 Unless otherwise noted, all references to Courts and Judicial Proceedings Article are to the 2020 volume.
9 At the adjudication hearing neither parent testified about why the children had not been vaccinated. The only evidence presented was the testimony of Ms. Smith who indicated the parents do not believe in vaccinations. In her brief, Mother noted that she and Father maintain certain religious practices through the Science Temple of America. Although she did not argue in her brief that her decision to not vaccinate the children was based on her religious beliefs, Mother argued that a parent’s freedom of choice in parenting a child, includes the right to have the child participate in religious practices. At the adjudication hearing there was no evidence presented related to the parents’ religion or that because of their faith the children were not vaccinated. In fact, when the Department asked Ms. Smith a question about the parents’ religious faith, Mother objected and the magistrate sustained the objection.
10 Courts and Judicial Proceedings Section 3-812(b) includes a list of aggravating circumstances that if present may allow a court to rule that the local department need not engage in any reasonable efforts towards reunification. Such conduct includes chronic or severe physical abuse, chronic and life-threatening neglect, sexual abuse, and torture, of a child, a sibling, or another child in the household. Md. Code Ann., Cts. & Jud. Proc. § 3- 812(b)(1).
In the Maryland Appellate Court: Full Text Unreported Opinions
R.C., the minor child of C.C. (“Mother”) and Ri.C. (“Father”), was found, by the Circuit Court for Montgomery County, sitting as the juvenile court, to be a Child in Need of Assistance (“CINA”). The court committed R.C. to the Montgomery County Department of Health and Human Services (the “Department”) for placement with the child’s maternal grandmother. Mother and Father each noted an appeal, raising a total of five questions. For clarity, we have combined those questions into three questions and rephrased them as1:
1. Did the juvenile court abuse its discretion in denying Mother and Father’s request for a postponement?
2. Did the juvenile court abuse its discretion in admitting into evidence medical records from R.C.’s birth?
3. Did the juvenile court abuse its discretion in determining R.C. to be a CINA based on a finding of neglect?
Finding no error, we affirm.
BACKGROUND
Mother and Father are married and reside together. Three children have been born during the marriage: I.C., E.C., and R.C. I.C. was born in 2016, E.C. was born in 2017, and R.C. was born in 2023. In 2018, I.C. and E.C. were declared CINA based on a finding of neglect. In 2020, Mother and Father’s parental rights to I.C. and E.C. were terminated by the juvenile court. That decision was based, in part, on Mother and Father’s “significant history of domestic violence” and “history of drug usage.”
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
R.C. was born on May 30, 2023, at MedStar Montgomery Medical Center (“MedStar”). Shortly after R.C.’s birth, the Department received a report from MedStar indicating “possible substance use on the part of the mother” and “possible symptoms of neonatal abstinence syndrome on the part of the child.”2 MedStar also reported that Mother was not cooperating with hospital staff’s request for a urine sample from her or R.C. The Department responded by sending a request to MedStar to shelter R.C. at the hospital to prevent the parents from leaving the hospital with the child.
Emergency Shelter Request and Initial CINA petition
On May 31, 2023, the Department filed an emergency shelter hearing request. That same day, the Department filed a CINA petition based, in part, on “suspected caregiver impairment” and a “substance exposed newborn.” The Department alleged: that hospital staff had suspected R.C. “was substance exposed in utero”; that R.C. “exhibited symptoms of withdrawal, such as sneezing, mild tremors when disturbed, and jitteriness”; that Mother had visible track marks on her arms and appeared “jittery”; that Mother had refused to provide a urine sample; and that a meconium sample had been taken for testing.3 The Department’s CINA petition also included the following allegations: that Mother and Father’s two other minor children had been declared CINA several years earlier “due to ongoing domestic violence and substance abuse”; that Mother and Father’s parental rights to those children were ultimately terminated; and, that Father had “an extensive criminal history” and “a long history with Protective and Peace Orders, which he has failed to abide by.” Based on those allegations, the Department asked that R.C. be committed to the Department pending further investigation.
Shelter Hearing
On May 31, 2023, the juvenile court held an emergency shelter hearing. Father was not present. Mother, who was present, asked for the matter to be postponed. The court granted the request, and the shelter hearing was postponed to June 2, 2023. The court nevertheless granted the Department’s request for shelter care and ordered that R.C. be placed in the temporary care and custody of the Department pending further court order.
On June 2, 2023, both Mother and Father came to court for the shelter hearing. Father asked for the matter to be
postponed so that he could obtain an attorney. The court granted the request, and the shelter hearing was postponed to June 7, 2023.
On June 7, 2023, Mother and Father returned to court for the shelter hearing. Following that hearing, the juvenile court found that it was contrary to R.C.’s welfare for him to remain in either parents’ care. The court granted the Department’s request for shelter care and ordered that R.C. be placed in the care and custody of the Department. The court scheduled the adjudication hearing for June 27, 2023.
Amended CINA Petition
On June 26, 2023, one day before the adjudication hearing, the Department filed an amended CINA petition. That petition reiterated the allegations set forth in the Department’s original petition and included additional factual allegations related to the circumstances surrounding R.C.’s birth and Mother and Father’s alleged history of domestic violence.
Adjudication Hearing – Postponement Request
On June 27, 2023, the juvenile court held an adjudication hearing on the Department’s amended petition. At the beginning of that hearing, the court clerk noted that neither Mother nor Father was present. The court recessed the proceedings to give Mother and Father time to show up, which they eventually did.
Following Mother and Father’s arrival, Father’s counsel asked the court for a “brief postponement[.]” Counsel noted that “additional documents” had been received just two days prior and that the Department’s amended petition had been filed the day before the hearing. Counsel indicated that she had not had the opportunity to review the petition and additional documents with Father. Mother’s counsel joined in the motion, stating that she also did not have time to review the amended petition or the discovery material, the latter of which was “about 500 pages of documents.”
The court denied counsels’ motion. The court found that all parties had ample time to review the material. The court also noted that, had Mother and Father shown up to the hearing on time that morning, counsels could have reviewed the materials with them prior to the hearing. Finally, the court explained that, if the Department decided to have any of those documents admitted into evidence, all parties would be given the opportunity to review the documents prior to their admission.
Adjudication Hearing – Evidence
The Department began its case by calling Sara KulowMalave, who was accepted as an expert in the field of social work and risk and safety assessment. Ms. Kulow-Malave, an assessment supervisor with the Department, testified that she became involved in R.C.’s case on May 30, 2023, after she received a report from MedStar indicating that R.C. may have been born drug-addicted and that Mother had refused to provide a urine sample. According to Ms. Kulow-Malave, hospital staff had reported that R.C. “was showing signs of neonatal abstinence syndrome” and “was jittery, had mus-
cle, rigid muscle tone, and was inconsolable.” Ms. KulowMalave proceeded to secure R.C. at the hospital, and R.C.’s case was assigned to a social worker who was part of Ms. Kulow-Malave’s team. The following day, Ms. Kulow-Malave reviewed the family’s prior history, and she developed concerns “about mother and father being in a relationship[.]” Specifically, Ms. Kulow- Malave had concerns about “the level of violence in the relationship, particularly with regard to [Father’s] behavior towards [Mother].” Ms. Kulow-Malave also had concerns about substance abuse and the fact that Mother and Father had not availed themselves of services that the Department had provided prior to the termination of their parental rights to their other two children. Ms. Kulow-Malave opined that it did not appear that Mother and Father were capable of providing a safe environment for R.C.
The Department also introduced several documents, which the juvenile court accepted into evidence over objection. Two of the documents related to Mother and Father’s prior CINA case involving their other two children. Per those documents, in June of 2018, the police responded to a hotel, where they found Mother and Father arguing in the hotel’s parking lot. The children, both of whom were under the age of two, had been left unattended in a hotel room, and both parents “were belligerent and appeared under the influence.” CINA proceedings were commenced, and Mother and Father’s parental rights were eventually terminated in 2020. During the course of those proceedings, the juvenile court found that both parents had a history of substance abuse and domestic violence; that Father had an extensive criminal history; that, in April 2020, Mother left home after Father had reportedly smashed items in the home and broken several windows; that, in July 2020, Mother was admitted to the hospital after Father had reportedly punched her several times in the back, breaking her ribs and puncturing her lungs; and, that both parents had failed to reasonably avail themselves of the services provided by the Department.
Another document accepted into evidence was an investigative log compiled by the Department that included observations made by Kevin Garrett, the departmental social worker assigned to R.C.’s case. Per that log, Mr. Garrett reported that, in 2021, Mother had surgery after Father punched her in the face, breaking her jaw and nose. Mother tested positive for opiates, cocaine, and PCP at the time of her surgery. As to the events surrounding R.C.’s birth, Mr. Garrett noted that, two days after his birth, R.C. was “displaying withdrawal symptoms” including “jitteriness/ crying/sneezing/mild tremors.” Around that same time, Mr. Garrett observed that Mother “had track marks/scars all over her body” and “a large gash just above the bridge of her nose.” That same day, Mr. Garrett spoke to Mother and Father together. Mother claimed that she had been sober for multiple years. Mother also denied any recent history of domestic violence, including the allegation that Father had broken her nose in 2021. When Mr. Garrett asked Mother about her sobriety, Father “intervened and would not allow [Mother] to elaborate.” Father then discussed the parties’
prior CINA case, claiming that the proceedings were “outrageously crooked” and that the Department was engaged in a conspiracy to remove children from their homes. Father claimed that he and Mother “know how to take care of children as evidenced by their two children being healthy at the time CPS removed them from their care.” Father also claimed that he had been sober since 2015.
The juvenile court also received into evidence Mother’s and R.C.’s health records from the time of R.C.’s birth. Per those records, R.C. was born with “[n]eonatal abstinence syndrome” that included “withdrawal symptoms[.]” In addition, “no prenatal labs were available” because Mother “had no prenatal care (did not seek care)[.]” Staff noted that Mother had “refused any testing after admission” and had a “history of polysubstance abuse” and a “history of physical abuse[.]” Following R.C.’s birth, hospital staff were able to secure a meconium sample, which was submitted for testing. A urine sample was eventually taken from R.C., and the toxicology screen was negative. Hospital staff noted that the negative result was likely due to “sample being from Fifth void[.]” R.C.’s “NAS” was considered “[h]igh risk including delayed onset of worsening symptoms[.]” R.C.’s “NAS score” ranged from “4 to 11” in the days following his birth, with the score eventually reaching “1-2” at the one-week mark. Lab results on the meconium showed the presence of amphetamine, benzoylecgonine, buprenorphine, cocaine, methamphetamine, and norbuprenorphine.
D.J., R.C.’s paternal grandmother (“Grandmother”), testified on behalf of Mother. Grandmother testified that she and Father were in the room when Mother gave birth to R.C. She testified that R.C. appeared “[v]ery, very good” and that he cried “[a] little bit[.]” She stated that she left the hospital after a few hours but returned the following day. She noted that R.C. appeared “fine” and that she had no concerns about Mother’s behavior with R.C.
D.P., R.C.’s paternal aunt (“Aunt”), who was a registered nurse, also testified and was accepted by the court as an expert in the field of nursing. She testified that she visited R.C. in the hospital for approximately two hours following his birth. She stated that R.C. appeared “calm, very well-nourished, very content in his mother’s arms as she was breastfeeding him.” On cross-examination, the Department asked Aunt about the reports that were included in R.C.’s medical records regarding the diagnosis of neonatal abstinence syndrome. Aunt responded that she “did not see symptoms of that.” She also suggested that R.C.’s medical records may have been made in error “[d]ue to the stigma of people who have had substance use disorder in the past[.]”
Adjudication Hearing – Juvenile Court’s Ruling
In the end, the juvenile court sustained most of the allegations in the Department’s amended CINA petition, including the allegations suggesting that Mother had been using illicit substances during the pregnancy and that R.C. was exhibiting symptoms of neonatal abstinence syndrome. In so doing, the court noted the medical records from MedStar, finding those records to be credible. The court also noted the testimony of Aunt, who testified that R.C. did not appear
to exhibit signs of neonatal abstinence syndrome. The court found that testimony not credible, given Aunt’s refusal to accept the observations of the hospital staff, as reflected in the medical records.
Disposition Hearing
Immediately following the adjudication hearing, the court heard argument on disposition. In the end, the court found that R.C. had been neglected, that R.C. was a CINA, and that Mother and Father were unable to meet R.C.’s needs. The court found that there was “ample evidence” of a history of domestic violence and illicit drug use. The court found that there was also a history of “the parents not accepting resources that have been offered to them[.]”
The court found that the risk of harm to R.C. was “high” and that there was “a great risk of danger for [R.C.] based on the lifestyle of these parents.” Based on those findings, the court ordered that R.C. be committed to the Department for placement with his maternal grandmother.
Mother and Father thereafter noted an appeal. Additional facts will be supplied as needed below.
STANDARD OF REVIEW
Appellate review of a juvenile court’s decision regarding child custody involves three interrelated standards. First, any factual findings made by the juvenile court are reviewed for clear error. In re Yve S., 373 Md. 551, 586 (2003). Second, any legal conclusions made by the juvenile court are reviewed de novo. Id. Finally, if the court’s factual findings and legal conclusions are not erroneous, the court’s ultimate conclusion will be disturbed only if there is an abuse of discretion. In re J.J., 231 Md. App. 304, 345 (2016). “A court abuses its discretion when ‘no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 625-26 (2016)).
DISCUSSION
I.
Parties’ Contentions
Mother and Father first argue that the juvenile court abused its discretion in declining their request for a postponement prior to the start of the adjudication hearing. Father notes that his counsel had entered her appearance just four days prior to the hearing, that the Department had disclosed “over 400 pages of documents” two days prior to the hearing, that the Department had amended the CINA petition one day prior to the hearing, and that R.C. had been in the custody of the Department for less than 30 days when the hearing was held. Father contends that the court should have granted the postponement so that he could be afforded a fair opportunity to be heard and so that his concerns could be given due consideration. Mother argues that the late disclosure of the discovery documents deprived her of the opportunity to fully investigate and meaningfully rebut those documents.4 She argues that, because the court denied her continuance request, she “was unable to present
facts and/or witnesses to support her position, depriving her of the ability to present more than just a nominal defense.”
The Department and counsel for R.C. (collectively “appellees”) argue that the court properly exercised its discretion in denying the request for a postponement. Appellees contend that both parties had ample time to review the amended petition and discovery documents.
Analysis
Generally, the decision to grant or deny a request for a postponement rests in the sound discretion of the court. Serio v. Baystate Props., LLC, 209 Md. App. 545, 554 (2013). We review such decisions for abuse of discretion, and, “‘unless [the] court acts arbitrarily in the exercise of that discretion, [its] action will not be reviewed on appeal.’” Id. (quoting Das v. Das, 133 Md. App. 1, 26 (2000)). Moreover, “[w]e will reverse the [court] only in ‘exceptional instances where there was prejudicial error.’” Id. (quoting Thanos v. Mitchell, 220 Md. 389, 392 (1959)).
Where, as here, a child has been placed in emergency shelter care and a party requests that the subsequent adjudication hearing be postponed, the court’s discretion to grant that request is further circumscribed by statute. Section 3-815 of the Courts and Judicial Proceedings Article (“CJP”) of the Maryland Code states, in pertinent part, that the Department may, under certain circumstances, place a child in emergency shelter care before a hearing is held. CJP § 3-815(b). When that happens, the Department must immediately file a petition for continued shelter care, and the court must hold a shelter care hearing on the next day on which the court is in session unless good cause is shown. CJP § 3-815(c). Regardless, a court may not order shelter care for more than 30 days unless the court finds that continued shelter care is necessary for the safety of the child. CJP § 3- 815(c) (4). “Any continuation of shelter care beyond 30 days must be based upon findings made . . . at the adjudicatory stage of the CINA case.” In re O.P., 470 Md. 225, 271 (2020). Here, the postponement request was made on the morning of the adjudication hearing, 28 days after R.C. was placed in shelter care. The request was based on the fact that discovery documents had been received just two days prior to the hearing and that the Department’s amended petition had been filed the day before the hearing. Mother and Father asked for the postponement so that they could review the petition and documents. The juvenile court denied the motion, finding that Mother and Father had ample opportunity to review the material. The court also noted that Mother and Father had failed to show up to the adjudication hearing on time. Finally, the court explained that Mother and Father would be given an opportunity to review any documents if and when they were introduced.
We hold that the court did not abuse its discretion in denying the request for a postponement. The Department filed its initial CINA petition on May 31, 2023, nearly four weeks prior to the adjudication hearing. Although the Department subsequently amended that petition, the grounds for the petition, i.e., R.C.’s suspected exposure to drugs and the parents’ prior CINA case, remained unchanged. Mother and Father do
not allege that they were surprised by any of the allegations contained in the amended petition. Thus, Mother and Father, as well as their counsel, should have been well-aware of the facts that served as the basis for the adjudication hearing. See Att’y Grievance Comm’n of Maryland v. O’Neill, 477 Md. 632, 661 (2022) (noting that the denial of a continuance request may be an abuse of discretion “when counsel was taken by surprise by an unforeseen event, but had either acted diligently to prepare for trial or had acted diligently to mitigate the effects of the surprise” (internal citation omitted)).
As to the Department’s disclosure of the documents two days prior to the hearing, both Mother and Father fail to provide any explanation as to why the two-day period was inadequate to properly review the documents or how additional time would have benefited them. Neither party claims that he or she was surprised by the documents or that he or she was unable to procure those documents in preparation for the hearing. Rather, the postponement request appears to have been based entirely on a lack of preparedness. Given those circumstances, the court’s denial of the request was proper. See Reaser v. Reaser, 62 Md. App. 643, 648 (1985) (“Failure to prepare adequately for trial is ordinarily not a proper ground for continuance or postponement.”).
Finally, even if the court had been inclined to grant the postponement request, the court could not have extended the time for the hearing beyond a few days. As noted, because R.C. had been placed in shelter care, the court was required to hold the adjudication hearing within 30 days of that placement. By the time the hearing was held on June 27, 2023, R.C. had been in shelter care for 28 days. We fail to see how an additional two days would have benefited either party. In fact, neither party has presented any evidence or argument to indicate how he or she was prejudiced by the limited review time, nor does either party explain how the result of the proceeding would have been different had more time been provided. As such, the court did not abuse its discretion.
Father argues that, even if the court was not inclined to postpone the adjudication hearing, the court had the discretion to postpone the disposition hearing. Father cites to CJP § 3-819, which states that a “disposition hearing shall be held on the same day as the adjudicatory hearing unless on its own motion or motion of a party, the court finds that there is good cause to delay the disposition hearing to a later day.”
CJP § 3-819(a)(2).
We remain unpersuaded. First, Father’s argument is unpreserved, as he did not ask the court to delay the disposition hearing. Md. Rule 8-131(a). Even so, we cannot say that the court erred in failing to find “good cause” to delay the disposition hearing. As discussed in greater detail below in Part III, the court had ample evidence on which to find R.C. to be a CINA. Father presents no evidence indicating how additional time would have altered that decision. If anything, a postponement would have only lengthened the time R.C. remained under the care of the Department. See In re M., 251 Md. App. 86, 127-28 (2021) (noting that one of the purposes of CINA proceedings is to place children in permanent homes and avoid extended time in the custody of the Department).
Father claims that the juvenile court erred in admitting R.C.’s medical records. Although the basis for that claim is not entirely clear from his brief, Father appears to argue that the records were unreliable and contradicted by other evidence, namely, the testimony of Grandmother and Aunt. Counsel for R.C. argues that the medical records were properly admitted.5
Analysis
A writing or recording, including a medical record, “made in the regular course of business as a memorandum or record of an act, transaction, occurrence, or event is admissible to prove the act, transaction, occurrence, or event.” CJP § 10-101(b); see also In re Colin R., 63 Md. App. 684, 692-93 (1985). “The rationale underlying the business records exception is that because the business relies on the accuracy of its records to conduct its daily operations, the court may accept those records as reliable and trustworthy.” Dep’t of Pub. Safety and Corr. Servs. v. Cole, 342 Md. 12, 30-31 (1996). “[W]here a record qualifies as a business record, there is a presumption of trustworthiness, and the objecting party, especially in a civil case, bears a heavy burden in order to exclude an otherwise admissible business record as untrustworthy.” Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 116 (1992). The decision to exclude otherwise admissible business records as unreliable is within the court’s discretion. Id. at 112-13.
Here, Father does not claim that the medical records at issue did not qualify as a business record.6 Father argues, rather, that the records were inconsistent and contradicted by other evidence.
We hold that the juvenile court did not abuse its discretion in admitting the medical records. Father presents no compelling evidence to suggest that the records were facially unreliable or untrustworthy. That they may have been contradicted by other evidence goes to their weight not their admissibility. See Hall v. Univ. of Maryland Med. Sys. Corp., 398 Md. 67, 91 (2007) (holding that discrepancies between medical records and trial testimony did not preclude the records’ admissibility). In addition, the court expressly considered the conflicting testimony provided by Aunt, and the court found the records reliable and Aunt’s testimony unreliable. The court was under no obligation to accept Aunt’s testimony, regardless of the fact that she was accepted as an expert witness. See Dackman v. Robinson, 464 Md. 189, 216 (2019) (‘“[E]ven if a witness is qualified as an expert, the fact[-]finder need not accept the expert’s opinion[,]’ i.e., the fact-finder is free to reject the expert’s opinion and accord it little or no weight.” (quoting Levitas v. Christian, 454 Md. 233, 247 (2017))). We see no abuse of discretion in the court’s decision to admit the medical records as reliable.
III. Parties’ Contentions
Mother and Father claim that the juvenile court abused its discretion in determining R.C. to be a CINA based on a finding of neglect. Father contends that the court placed too much emphasis on the parties’ past behavior and did not give due consideration to other evidence showing that the parties were ready, willing, and able to provide care and support for R.C. Mother claims that “a number of the [c]ourt’s findings of fact were clearly erroneous and not established with sufficient evidence.”
Appellees contend that the court did not abuse its discretion in declaring R.C. to be a CINA. They argue that the court had sufficient evidence to make that determination.
Analysis
Section 3-801(f) of the Courts and Judicial Proceedings Article defines “child in need of assistance” as “a child who requires court intervention because: (1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
When a petition is filed alleging that a child is a CINA, the circuit court must hold an adjudicatory hearing to determine whether the allegations in the petition are true. CJP §§ 3-801(c), 3-817(a). If such a determination is made, the court must then hold a disposition hearing to determine, among other things, whether the child is a CINA. CJP § 3-819. An allegation that a child is a CINA must be proven by a preponderance of the evidence. In re Nathaniel A., 160 Md. App. 581, 595 (2005). If the court finds that a child is a CINA, the court must either maintain the child’s current custody status or commit the child to the custody of a parent, a relative or other appropriate individual, or the local Department or Maryland Department of Health. CJP § 3-819(b)(1)(iii).
As noted, a child may be found to be a CINA if it is proved that the child has been neglected. “Neglect” includes failing “to give proper care and attention to a child . . . under circumstances that indicate: (i) [t]hat the child’s health or welfare is harmed or placed at substantial risk of harm; or (ii) [t]hat the child has suffered mental injury or been placed at substantial risk of mental injury.” CJP § 3-801(s)(1). “In determining whether a child has been neglected, a court may and must look at the totality of the circumstances[.]” In re Priscilla B., 214 Md. App. 600, 621 (2013). Moreover, in evaluating whether a “substantial risk of harm” exists, “the court has ‘a right – and indeed a duty – to look at the track record, the past, of [a parent] in order to predict what her future treatment of the child may be.’” In re J.J., 231 Md. App. at 346 (quoting In re Dustin T., 93 Md. App. 726, 735 (1992)). In other words, a court ‘“need not wait until the child suffers some injury before determining that he is neglected.”’ In re Nathaniel A., 160 Md. App. at 596 (quoting In re William B., 73 Md. App. 68, 77 (1987)).
We hold that the juvenile court did not abuse its discretion in finding R.C. to be a CINA. The record makes plain that the court properly considered all the evidence and
reasonably determined, based on a preponderance of the evidence, that R.C. had been neglected and that Mother and Father were unable or unwilling to give proper care and attention to R.C. and his needs. That evidence showed serious domestic violence by Father against Mother and a long history of illicit drug use by both parties, in particular Mother.
That behavior led to Mother and Father’s two other children being declared CINA in 2018, and, in 2020, after both Mother and Father failed to avail themselves of the services provided by the Department, their parental rights were terminated. In 2021, Father punched Mother in the face, breaking her jaw and nose. When Mother had surgery for that injury, she tested positive for opiates, cocaine, and PCP. Then, in 2023, the parties’ third child, R.C., was born and was immediately diagnosed with neonatal abstinence syndrome. Lab tests revealed several illicit substances, including cocaine, in Mother’s system. Mother was observed as having “track marks/scars all over her body” and “a large gash just above the bridge of her nose.” Mother was also non-compliant with the hospital staff’s efforts in obtaining urine samples from her and R.C. When Mother and Father were later confronted with these events and observations, Mother claimed that she had been sober for multiple years, and she denied any recent history of domestic violence. Father refused to accept the outcome of the parties’ prior CINA case, claiming that the proceedings were “outrageously crooked” and that the Department was engaged in a conspiracy to remove children from their homes. Father also claimed that he had been sober since 2015 and that he and Mother “know how to take care of children as evidenced by their two children being healthy at the time CPS removed them from their care.”
Given that evidence, the juvenile court was well-within its discretion in finding R.C. to be a CINA. Although there may have been some testimony from Grandmother and Aunt to suggest that Mother and Father were able and willing to care for R.C., that evidence was scant, questionable, and overwhelmed by evidence to the contrary. That that contrary evidence included evidence regarding the parties’ past conduct is irrelevant. Again, the court had a duty to look at the parties’ past conduct in order to predict how they would treat R.C. in the future. Even so, the court did not rely only on the parties’ past conduct. The court relied heavily on evidence related to the parties’ conduct leading up to and immediately following R.C.’s birth, which established that Mother had been recently using drugs and that R.C. was born substance exposed.
As noted, Mother contends that a number of the court’s findings were clearly erroneous. First, Mother argues that the court’s determination that she had refused to provide a urine sample and that R.C. was “inconsolable” was “largely based on the hearsay of a social worker, Kevin Garrett,” and was disproved by other evidence. Second, Mother claims that the court’s determination that she had failed to receive prenatal care was disputed by R.C.’s medical records and Grandmother’s testimony. Third, Mother claims that the court’s finding that she was in a violent relationship was
“based on uncertified records” and “was based on information [from] incidents alleged to have occurred some years prior to R.C.’s birth.” Lastly, Mother claims that the court failed to take into consideration certain evidence, namely, that Mother was permitted to care for R.C. following his birth.
None of Mother’s claims are persuasive. “A trial court’s findings are not clearly erroneous ‘if any competent material evidence exists in support of the trial court’s factual findings[.]’” Velicky v. Copycat Bldg. LLC, 476 Md. 435, 445 (2021) (quoting Webb v. Nowak, 433 Md. 666, 678 (2013)). “When weighing the credibility of witnesses and resolving conflicts in the evidence, ‘the fact-finder has the discretion to decide which evidence to credit and which to reject.’” Qun Lin v. Cruz, 247 Md. App. 606, 629 (2020) (quoting Hollingsworth & Vose Co. v. Connor, 136 Md. App. 91, 136 (2000)). “The burden of demonstrating that a court committed clear error falls upon the appealing party.” Christian v. Maternal-Fetal Med. Assocs. of Maryland, LLC, 459 Md. 1, 21 (2018).
The juvenile court’s finding that R.C. was “inconsolable” was not clearly erroneous.7 Ms. Kulow-Malave, an assessment supervisor with the Department, testified that hospital staff had reported that R.C. “was showing signs of neonatal abstinence syndrome” and “was jittery, had muscle, rigid muscle tone, and was inconsolable.” Although that testimony could be considered hearsay, Mother did not object or otherwise argue during the hearing that the report from the hospital staff was unreliable. The court was therefore within its discretion in accepting that testimony as reliable, and Mother has presented no compelling evidence to suggest that the court erred in doing so. See State v. Matusky, 343 Md. 467, 486 (1996) (“The trial court’s assessment of the declaration’s reliability is a fact-intensive determination which we shall not ordinarily reverse unless it is clearly erroneous.”). That the report may have been contradicted by other evidence is irrelevant.
Regardless, even if the court erred in relying on that testimony in finding that R.C. was inconsolable, any error was harmless. That finding was one of many relied on by the court in reaching its overall finding that R.C. was born substance exposed. That overall finding was supported by ample evidence, namely, R.C.’s medical records and the Department’s investigative log, and additional factual findings that were not clearly erroneous. Reversal based on a single, inconsequential erroneous finding is unwarranted under the circumstances. See Dep’t of Econ. and 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.”); see also ACand S, Inc. v. Godwin, 340 Md. 334, 403 (1995) (noting that an erroneous factual finding can be deemed “de minimis,” and thus harmless, in light of the circumstances in which it was made).
The court’s findings that Mother had refused to provide a urine sample and had failed to receive prenatal care were also not clearly erroneous, as those findings were supported by both the Department’s investigative log and R.C.’s med-
ical records. Mother has provided no compelling evidence to suggest that those records were unreliable, and the court was well-within its discretion in accepting those records into evidence. Again, that the court’s findings were contradicted by other evidence is irrelevant.
As to the court’s finding that Mother and Father had a violent romantic relationship, that finding was supported by the records from the parties’ prior CINA case, which established a clear history of domestic violence prior to the termination of their parental rights in 2020. The Department’s investigative log and R.C.’s medical records established at least one additional incident of domestic violence in 2021, wherein Father broke Mother’s jaw and nose. Although there was no clear evidence of any ongoing domestic violence at the time of R.C.’s birth, Mother did report to the hospital with “a large gash just above the bridge of her nose.” In addition, when Mr. Garrett interviewed Mother and Father following the birth of R.C., Father exhibited controlling behavior and would not permit Mother to elaborate on certain issues. From that, the court had sufficient evidence to conclude that the parties had a violent relationship.
In making her final claim – that the court failed to consider certain evidence – Mother does not identify any par-
JUDGMENT
ticular factual finding that she believes was clearly erroneous, thus we cannot properly evaluate that claim. To the extent that Mother is claiming that the court was clearly erroneous in failing to be persuaded by that evidence in her favor, we see no error there. See Bricker v. Warch, 152 Md. App. 119, 137 (2003) (emphasis removed) (“[I]t is . . . almost impossible for a judge to be clearly erroneous when he is simply not persuaded of something.”).
In sum, we hold that the juvenile court did not abuse its discretion in determining R.C. to be a CINA based on a finding of neglect. The court had before it significant, reliable evidence establishing that Mother and Father were engaged in a violent relationship; that Mother had a long history of substance abuse; that Mother had been using illicit drugs during her pregnancy with R.C., including up to the time of his birth; and that
R.C. was born with neonatal abstinence syndrome after having been exposed to drugs while in utero. Given that Mother and Father’s other two children were removed from their care for exactly the same reasons (domestic violence and substance abuse), the court properly concluded that R.C. had been neglected and that Mother and Father were unable to give proper care and attention to R.C. and his needs.
OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID 1/2 BY FATHER AND 1/2 BY MOTHER.
FOOTNOTES
1 Father’s questions were:
1. Did the Circuit Court abuse its discretion when it failed to grant Appellant’s Counsel’s request for a postponement when she entered the case four days prior to the trial, the state filed an Amended Petition a day prior to the trial, and the state gave Appellant’s Counsel hundreds of pages of discoverable materials the day before trial?
2. Did the Circuit Court abuse its discretion when it permitted the admission of medical records without proper witness testimony regarding inconsistent test results and other documentary inconsistencies?
3. Did the Circuit Court abuse its discretion when applying the weight it did to the Appellant’s past without giving the same weight to the current circumstances?
Mother’s questions were:
1. Whether the Circuit Court abused its discretion in denying Mother’s request for a continuance of the adjudicatory hearing?
2. Whether the Circuit Court abused its discretion when determining that R.C. was neglected, where the factual findings to support this conclusion, namely that R.C. was born substance exposed and Mother was in an abusive relationship, were clearly erroneous.?
2 Neonatal abstinence syndrome occurs when a baby is exposed to drugs in utero. Neonatal abstinence syndrome, MEDLINEPLUS, https://medlineplus.gov/ency/article/ 007313. htm (last visited October 19, 2023).
3 “Meconium” is a newborn’s first bowel movement following birth. Meconium, NATIONAL LIBRARY OF MEDICINE, https://www.ncbi.nlm.nih.gov/books/NBK542240 (last visited November 5, 2023).
4 Mother also contends that counsel stated during the disposition hearing that she wanted a continuance to seek her own expert. Mother does not provide a record cite for that contention, and we could find nothing in the record to indicate that counsel made such a request. To be sure, counsel did state, during the disposition hearing, that she believed “that it would be helpful to have an expert.” Counsel did not, however, ask for a continuance.
5 The Department did not respond to Father’s claim.
6 Even if Father had made such an argument, the record contains ample evidence to show that the medical records would qualify as a business record.
7 The symptoms of neonatal abstinence syndrome include inconsolable crying. Neonatal Abstinence Syndrome, NATIONAL LIBRARY OF MEDICINE, https://www.ncbi. nlm.nih.gov/ pmc/articles/PMC5562160 (last visited November 5, 2023).
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
This appeal originates from a modification of custody award for the parties’ two minor children. After a custody hearing, the Circuit Court for Montgomery County granted Appellee Manfred Boehm (“Boehm”) primary physical custody, sole legal custody for medical decisions, and joint legal custody for education and religious decisions with Boehm holding tie-breaking authority. Appellant Ana Paola Pereira Cotrim (“Cotrim”) challenges the custody modification on several grounds.
The parties present us with the following questions,1 which we have rephrased and renumbered as follows:
1. Did the trial court err or abuse its discretion in denying Cotrim’s request for an in camera interview with the minor children?
2. Did the trial court err or abuse its discretion in granting Boehm primary physical custody and sole legal custody with regard to medical decisions?
3. Did the trial court abuse its discretion in declining to appoint a Best Interest Attorney?
4. Did the trial court fail to consider the effect of excluding witness testimony on the best interests of the children?
5. Did the trial court err or abuse its discretion by relying on the custody evaluation’s portrayal of the parties or by awarding custody before Cotrim obtained a psychological evaluation? For the reasons below, we affirm on all bases.
A. Parties’ History and Divorce
The parties married in June 2006. They had two children in the course of their marriage: A.S., born in 2007, and A.E., born in 2009. Following a strained period of their marriage in late 2018, Cotrim filed a Complaint for Limited Divorce on February 8, 2019, in the Circuit Court for Montgomery County. Boehm then filed a Complaint for Absolute Divorce and Other Relief on February 15. The two cases were consolidated under Boehm’s case, with Cotrim filing a Counter-Complaint for Absolute Divorce on April 18.
The circuit court conducted a hearing for uncontested divorce on October 16, 2020. The judge entered judgment of absolute divorce on November 9, 2020, which incorporated but did not merge the parties’ marital settlement agreement dated August 21, 2020. The agreement outlined custody for A.S. and A.E., giving the parties joint legal and joint physical custody on a 2-2-5-52 basis. Pertinently, the agreement also provided that the children would spend alternating holiday breaks with each parent, staying with Boehm for their Thanksgiving break and with Cotrim for their winter break in even years and vice versa in odd years.
B. Post-Divorce Events
Tensions between the parties began to escalate after their divorce. A significant series of incidents occurred in fall and winter 2021. The year prior, being an even year, Boehm had the children for their Thanksgiving break, and Cotrim had them for their winter break. In September 2021, Cotrim asked Boehm if he would be willing to switch the breaks so that he would again have them for Thanksgiving and she would have them for winter break, despite it being an odd year. Boehm refused, and the parties exchanged a series of emails in which Cotrim signed several “PO2MBOEHM,” which Boehm believed meant “protective order to Manfred Boehm.” On December 15, 2021, just before the children’s last day of school before winter break, Cotrim obtained a temporary protective order against Boehm prohibiting him from contacting the children. Cotrim failed to appear at the final protective order hearing on December 22, and the case was dismissed. The same day, Cotrim obtained a second temporary protective order. The final protective order hearing occurred on December 29 and was dismissed at the conclusion of Cotrim’s testimony for failing to meet the burden of proof. By the time Boehm was permitted to
contact the children, only about three days of their winter break remained.
Additionally, because Cotrim had alleged in her requests for protection orders that Boehm had physically and sexually abused the children, Montgomery County Child Protective Services (“CPS”) conducted interviews with both parties and the children. Cotrim’s primary basis for concern was that A.S., the parties’ eldest daughter, purportedly told Cotrim that A.S. had slept in Boehm’s bed, leading Cotrim to conclude that Boehm either had or would sexually abuse A.S.3 During CPS’s investigation, the social worker interviewing the children used a technique that specifically screens for abuse, and neither child disclosed abuse or neglect. Instead, both children denied any inappropriate physical contact. CPS closed the case on January 6, 2022, without further action.
During the fall of 2021, A.S. started to report problems related to her mental health. Both parties stated that she was having difficulty sleeping, and Boehm arranged a telehealth appointment with A.S.’s pediatrician. Unbeknownst to Boehm, Cotrim received a notification of the appointment because both parties appeared on A.S.’s records, and Cotrim was present for the virtual visit. After the pediatrician opened the virtual meeting, Cotrim immediately told the doctor that Boehm was sexually abusing A.S. Upon hearing this statement, A.S. closed the meeting and did not complete the visit with the pediatrician.
Shortly after, A.S., on her own request, began seeing a therapist. Boehm alleged that Cotrim at one point withdrew her consent for A.S. to continue seeing the therapist on the basis that Boehm’s own therapist had made the referral. Cotrim also told A.S.’s therapist that Boehm was sexually abusing A.S.
C. Motion to Modify Custody and Custody Hearing
Boehm filed a motion to modify custody on January 5, 2022, alleging material changes in circumstances justifying a change in custody. Specifically, Boehm pointed to Cotrim’s history of filing protective orders, which he described as baseless, and her allegations that he was sexually abusing the children as grounds for modification. He also described Cotrim’s behavior as erratic, evidenced by her continually sending emails and leaving voicemails containing allegations of abuse to Boehm’s place of work and the protective orders filed against him during the 2021 winter break. Boehm also filed a motion for custody evaluation and a motion for mental examination of Cotrim on April 7, both of which the circuit court granted. The court ordered Cotrim to see a designated psychiatrist for a psychological evaluation within 30 days of the May 20 order. However, Cotrim failed to do so, later stating that she was unable to pay the $3,500 required for it (half of the $7,000 total, with Boehm paying the other $3,500). In July 2022, the court appointed a child privilege attorney and denied a motion from Cotrim requesting that Boehm be compelled to submit to drug testing. On August 11, 2022, Cotrim filed two motions, one requesting that a Best Interest Attorney (“BIA”) be appointed for the children and one requesting that the court conduct an in
camera interview with each child. The court denied both motions.
The court held a custody hearing on October 5, 2022. At the outset of the hearing, Boehm requested that one of Cotrim’s witnesses, Dr. Roberta Rasetti, not be permitted to testify. Boehm asserted that Dr. Rasetti had not been identified as a potential witness during discovery and was mentioned for the first time in Cotrim’s pretrial statement, which was filed the day before the hearing. Cotrim stated that she did not have information about Dr. Rasetti when Boehm initially asked for the identities of all potential witnesses. When the court asked for a proffer as to why Dr. Rasetti should be allowed to testify, Cotrim argued that her mental state was at issue and that Dr. Rasetti would testify about a lack of erratic behavior. The court granted Boehm’s motion to prevent Dr. Rasetti from testifying, concluding that the testimony was irrelevant because Cotrim only met with Dr. Rasetti once in 2019, before the alleged changed circumstances underlying the action to modify custody.
The first witness was the court-appointed custody evaluator, Rosalyn Hnasko. She testified about her custody evaluation, which included a determination that Boehm was a fit parent but that Cotrim was not due to untreated mental health concerns. Specifically, Hnasko pointed to incidents reported by A.S. in which Cotrim hid the children’s belongings, accused them of “choos[ing] foods against her,” spoke negatively about Boehm in front of the children, and discussed with A.S. that Boehm would abuse her. Conversely, Hnasko testified and documented in her report that the children were unsure of how Boehm felt about Cotrim because he rarely expressed his feelings about her in front of the children. Moreover, Hnasko stated that she found no evidence of abuse by Boehm. Hnasko’s report stated that the children told her they wanted to spend equal time with each parent, but Hnasko noted concerns that A.S. and A.E. might be accustomed to Cotrim’s behaviors and thus did not understand how the dynamic was harmful to them. She also noted that the children’s behavior was more immature at Cotrim’s residence than it was at Boehm’s, which raised concerns because their temperament was different in each home.
As is relevant to this appeal, in his testimony, Boehm denied the abuse allegations and specifically stated that A.S. had not slept in his bed after the parties’ separation. This assertion was supported by the custody evaluation in which A.S. also denied the allegation.
A.S. also stated that Cotrim repeatedly asked her about whether she slept in the same bed with Boehm. A.S.’s therapist testified that she found no indication of abuse or of A.S. sharing a bed with Boehm. However, the therapist did express concerns that Cotrim would revoke her consent for A.S. to continue seeing a therapist.
Cotrim’s testimony included additional explanations about why she believed A.S. was at risk of sexual abuse and why she thought Boehm could be grooming both children. She also explained why she had not completed the psychological evaluation required by the May 20 order, stating that she did not have the financial means to pay the $3,500
upfront cost. Cotrim testified that she was not opposed to having a mental evaluation performed and that she would undergo one if Boehm paid for it.
At the outset of the judge’s oral opinion, issued from the bench on October 19, 2022, the judge stated that her factual findings were based upon a preponderance of the evidence standard and her decision-making was “viewed through the lens of the best interest of the children,” with the findings “based specifically on what is in the best interest of the parties’ two children.” As to Cotrim’s failure to obtain a mental evaluation, the court stated that the evaluation would have been an “extremely helpful tool” in assessing the custody issue and found that Cotrim did have enough money in her bank accounts to cover the cost, particularly given that the order was clear that the cost was subject to reapportionment. The judge noted that Cotrim’s behavior throughout the trial was disruptive, with Cotrim speaking out of turn and not responding to instructions to stay quiet, and the judge found that Cotrim lied throughout her testimony. The court accepted the custody evaluator’s testimony and report as credible, including crediting the evaluation and testimony over Cotrim’s testimony where they conflicted.
With regard to the abuse allegations, the court found that A.S. did not sleep in the same bed as Boehm and that, even if she did, there was no credible evidence to indicate that it would endanger A.S. The court also found that Cotrim had no basis for obtaining the temporary protective orders and only did so to have the children in her custody over winter break and punish Boehm for not agreeing to swap the breaks. Finally, the court found a sharp contrast between how Cotrim and Boehm communicated with one another, with Cotrim sending inappropriate and unresponsive emails to Boehm, while Boehm did not acknowledge anything outside the scope of the necessary communication.
As for the court’s custody determination, the court found that Cotrim interfered with Boehm’s relationship with the children and that modification of custody was in the best interest of the children. In assessing the requisite custody factors, the judge addressed each Taylor4 and Sanders5 factor in turn. Pertinently, the court found that: (1) the children were being harmed by Cotrim’s behavior; (2) Boehm was willing to share custody provided that Cotrim sought help with her mental health and stopped making abuse allegations against him; (3) Boehm was capable of communicating with Cotrim and sharing in decisions related to the children, while Cotrim was unable to communicate effectively; (4) while both parties testified that they were financially stable, Cotrim had not worked since 2020 and was depleting alimony and child support for basic expenses; (5) the children’s more immature behavior at Cotrim’s home was not indicative of a parental preference; and (6) Boehm had not perpetuated any abuse against the children. After a consideration of each factor, the court granted Boehm primary physical custody, sole legal custody for medical decisions, and joint legal custody for education and religious decisions with Boehm holding tie-breaking authority. The court also required that Cotrim comply with the May 20 order regard-
ing a mental health evaluation and ordered her to follow all of the psychiatrist’s recommendations.
Cotrim moved for reconsideration, which the court denied. She then timely appealed.
STANDARD OF REVIEW
When reviewing child custody awards, an appellate court uses three different standards of review. Davis v. Davis, 280 Md. 119, 125 (1977). First, factual findings are reviewed under a clearly erroneous standard. Id. at 125–26. Second, “[i]f it appears that the [trial court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” Id. at 126. Finally, the trial court’s ultimate conclusions are disturbed only for clear abuse of discretion. Id. Abuse of discretion arises when the consideration is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md. App. 1, 14 (1994). The appellate court should not reverse simply because it would have made a different ruling. Id. Additionally, the reviewing court “will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c).
DISCUSSION
A. In Camera Interviews with the Children
Cotrim argues that the circuit court abused its discretion by denying her motion for an in camera interview with the children. Cotrim highlights cases where minor children testified as witnesses to support her assertion that A.S. and A.E.—14- and 12-years-old, respectively, at the time of trial—should have been interviewed by the judge to assist in the determination of the children’s preferences.6
Lemley v. Lemley recognized that a child’s preference may be considered by the judge when making a custody determination but stated that “the court is not required to speak with the children.” 102 Md. App. 266, 288 (1994) (citing Levitt v. Levitt, 79 Md. App. 394, 403 (1989)). As such, “[t] he trial judge has discretion to decide whether to conduct a child interview.” Karanikas v. Cartwright, 209 Md. App. 571, 595 (2013). Although Sanders lists the child’s preference as a potential factor when making custody determinations, an interview with the child “is not the only method by which the trial judge may discern the preference of the child.” Id. We have also noted that custody disputes can be psychologically traumatizing, particularly for young children, and thus decisions about whether to interview the children should include considerations of whether such an interview could generate further trauma. Marshall v. Stefanides, 17 Md. App. 364, 369– 70 (1973).
We find no abuse of discretion in the judge’s denial of Cotrim’s motion for an in camera interview. Our cases clearly state that a judge does not need to speak with children before making a custody determination. Additionally, the court had already ordered and received the
custody evaluation when it considered Cotrim’s motion for in camera interviews, and the judge could thus determine that the evaluation adequately represented the children’s preferences without the need for an in camera interview. It was therefore well within the court’s discretion to decide that additional interviews were not necessary or were otherwise against the best interests of the children.
B. Custody Award
Cotrim contends that the trial court wrongfully decided the custody issue based on its perception of the parties, not the Sanders-Taylor factors and the best interest of the children, and further argues that the perception was predetermined before evidence was presented. Cotrim states that the trial court “immediately discarded the Taylor factors based on an early and unsupported assignment of blame for any inability of the parties to communicate with each other.” Additionally, Cotrim contends that the trial court abused its discretion by failing to consider the child’s preferences. Boehm counters that Cotrim’s arguments consist of blanket assertions of prejudgment and abuse of discretion that have no support in the record. He argues that the trial court properly considered each factor listed in Taylor and Sanders, that Cotrim offers no basis for her contention that the judge predetermined the custody outcome or prejudged Cotrim, and that the judge properly considered all factors through the lens of the children’s best interest, even when those factors addressed the character or fitness of the parties.
The overriding consideration in custody cases is the best interest of the child. See Ross v. Hoffman, 280 Md. 172, 174–75 (1977) (“[The] best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.”); Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019) (“Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.” (citing Boswell v. Boswell, 352 Md. 204, 236 (1998)). To aid in the determination of the child’s best interest, Maryland courts have created two lists of potential factors to consider before awarding custody.
Our decision in Montgomery County Department of Social Services v. Sanders produced a set of ten non-exclusive considerations for a court when awarding custody: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between 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 the parents and opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. 38 Md. App. 406, 420 (1977). When considering these factors, a court should look to the totality of the situation and avoid focusing on any one factor. Id. at 420–21.
Taylor v. Taylor also established a list of considerations for awarding joint custody. 306 Md. 290 (1986). Those factors are: (1) capacity of the parents to communicate and reach shared decisions affecting the child’s welfare; (2) will-
ingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to parents; and (14) any other factor the court deems relevant. Id. at 304–11. The Supreme Court of Maryland specifically stated in Taylor that the factors set forth in that case did not eliminate the considerations enumerated by Sanders or any other factors trial courts typically consider. Id. at 303. Finally, under Section 9-101 of the Family Law Article of the Maryland Code, a court must consider whether there are reasonable grounds to believe that a child has been abused or neglected by a party and, if so, determine whether such abuse or neglect would recur if that party were granted visitation or custody rights. Md. Code (1984, 2019 Repl. Vol.), Family Law § 9-101(a). If such reasonable grounds exist, the court must deny custody or visitation rights unless it “specifically finds that there is no likelihood of further child abuse or neglect by the party.” Id. § 9-101(b).
1. Capacity to Communicate
In support of her communication argument, Cotrim points to Taylor’s statement that “[t]he parents need not agree on every aspect of parenting, but their views should not be so widely divergent or so inflexibly maintained as to forecast the probability of continuing disagreement on important matters.” Taylor, 306 Md. at 305–06. In relying on this language, Cotrim overlooks the trial court’s conclusion that Cotrim lacked the capacity to communicate effectively and share in decisions regarding the children. The court specifically stated that when Boehm brought routine requests or issues to Cotrim’s attention, she would respond with “unrelated allegations of sexual deviance, rehashed marital complaints, and called [Boehm] a pedophile, and threatened to file protective orders against [Boehm].” As such, the court’s assessment of Taylor’s communication and decision-making factor was not based upon the parties’ general disagreements but was instead based upon Cotrim’s own inability to communicate and consider basic requests. The court’s conclusions with regard to this factor are well supported by the custody evaluation, emails between the parties presented at trial, and both parties’ testimony.
2. Parental Fitness
Cotrim’s assertion that her fitness was questioned for unreasonable and arbitrary reasons is unsubstantiated. The court described several reasons why it thought Cotrim was an unfit parent, including her inappropriate and unresponsive emails to Boehm, her “total lack of appreciation for the emotional harm she is doing to her daughters” in continuing to talk to them about the unfounded abuse allegations, and her intentional interference with the relationship between the children and Boehm. Both Taylor and Sanders include the fitness of the parents as a factor when making custody
awards. The court was therefore justified in assessing evidence that indicated that Cotrim was unfit to parent and making an ultimate determination that she was not fit.
3. Children’s Preferences
The preference of the child is a factor under both Taylor and Sanders; however, our Supreme Court has made clear that “the child’s preference factor . . . is simply one factor to be considered, within the context of all other relevant factors.” Boswell v. Boswell, 352 Md. 204, 222 (1998). Moreover, the Supreme Court has long held that “the desire of the child is not controlling upon the court,” with varying degrees of weight given to the child’s preference depending on their age and ability to “form a rational judgment.” Ross v. Pick, 199 Md. 341, 353 (1952). “[T]here is no specific age of a child at which [the child’s] wishes should be consulted and given weight by the court.” Id. We have also noted that “the [trial] court has discretion . . . [in deciding] the weight to be given [to] the children’s preference as to a custodian.” Leary v. Leary, 97 Md. App. 26, 51 (1993) (citing Casey v. Casey, 210 Md. 464, 474 (1956)), abrogated on other grounds by Fox v. Wills, 390 Md. 620 (2006).
Cotrim is correct that whether a child’s preferences will be given weight is not reliant on their age; however, she places too much weight on the children’s ages. We do not disagree that, at ages 12 and 14, A.E. and A.S. likely had the capacity to form rational judgment at the time of the custody hearing. The trial court, regardless of the children’s ages, still retains discretion regarding how much weight to give to their preferences. The judge credited the custody evaluator’s testimony and report, including her opinion that “the children are so used to [Cotrim’s] strange and erratic, and abusive behavior . . . that they don’t even understand how unhealthy and detrimental this dynamic is to them.”
Given the discretion afforded to the trial judge in making factual determinations, Md. Rule 8-131(c), and in deciding the weight given to the children’s preferences, we do not conclude that the judge abused her discretion. The court was presented with evidence of the children’s preferences within the custody evaluation. Although both children said they would like to spend equal time with each parent, the judge acted well within her discretion when she gave minimal weight to those preferences when viewed in conjunction with the other Sanders-Taylor factors. In addition, the evaluator’s testimony that questioned whether the children understood the harm being done by Cotrim was an overriding factor in the decision by the judge.
4. Preconceptions
We see no support in the record for Cotrim’s assertion that the judge had preconceived notions of the parties or judged Cotrim based upon her financial status. The court’s consideration of its perception of the parties was justified, seeing as the character and reputation of the parties are a factor under Sanders. As such, the judge was permitted to assess her perception of the parties based upon the evidence presented and through the lens of the best interest
of the children. Although Cotrim is correct that the court emphasized the character and fitness of the parties, those considerations were relevant and applied to the best interest of the children standard.
Similarly, each parent’s financial status is relevant under Taylor, so the judge was permitted to consider Cotrim’s financial status in making her custody determination. There is nothing in the record that suggests the judge based her decision solely upon Cotrim’s inability to pay for a psychological evaluation. To the extent it was mentioned, the judge indicated that such an evaluation would have been useful, but nothing indicates that Cotrim’s failure to obtain the evaluation was determinative.
We find no error in the trial court’s consideration of the Sanders-Taylor factors, nor do we give weight to Cotrim’s argument that the judge discarded the factors based on predetermined perceptions of the parties. The judge specifically stated that custody determinations are made under the best interest of the children standard based upon the factors set forth in Taylor and Sanders, and she considered each factor in turn. Although she did not differentiate between which factors fell under Taylor and which fell under Sanders, she noted that many of the factors overlap and stated she would “talk about them together.”
C. Appointment of Best Interest Attorney
Cotrim next argues that the court erred in failing to appoint a BIA, pointing to the importance of children having a neutral advocate in the midst of contentious custody disputes in which their best interest may not align with their parents’ wishes. She also avers that the existence of past and current allegations of abuse heightened the need for a BIA and that a BIA was necessary so that the children would feel free to discuss their thoughts openly. Conversely, Boehm states that it was within the court’s discretion to deny a BIA request, particularly given that: (1) the judge did not find evidence of actual abuse by Boehm; (2) there was insufficient time between the motion for a BIA and the date of the hearing for a BIA to take up the case; and (3) a BIA would be an additional litigation expense neither party could easily afford.
Section 1-202(a) of the Family Law Article, Maryland Code (1984, Repl. Vol. 2019), allows the trial court to appoint a BIA in child access and custody cases, stating that “the court may . . . appoint a lawyer who shall serve as a best interest attorney to represent the minor child.” (Emphasis added.) Under Maryland Rule 9-205.1, the court “should consider the nature of the potential evidence to be presented, other available methods of obtaining information, . . . and available resources for payment” when considering a request for a BIA. Md. Rule 9-205.1(b). The Rule provides a set of eleven factors or concerns where “[a]ppointment may be most appropriate,” including, as relevant here: the request of one or both parties; a high level of conflict; past or current child abuse or neglect; and past or current mental health problems of the child or party. Id. The Supreme Court held in Garg v. Garg that “the statute merely authorizes a court to appoint counsel in [contested custody cases]; it
does not mandate such an appointment.” 393 Md. 225, 238 (2006).
Cotrim is correct that the above factors were at play in this case: she requested a BIA, the parties were in deep conflict, Cotrim alleged that there was child abuse, and both parents and A.S. had general mental health concerns. However, it was still within the court’s discretion to not appoint a BIA. The judge found that the abuse allegations did not have merit, which eliminated the abuse factor as a concern. Additionally, the court properly relied on the custody evaluation, performed by a court-appointed neutral evaluator, as an alternative method of presenting and protecting the children’s interests. Finally, the court was within its discretion to credit Boehm’s argument that he could not shoulder the additional cost of a BIA.7 For these reasons, the trial court did not abuse its discretion in denying Cotrim’s motion for a BIA.
D. Witness Exclusion and Children’s Best Interest
Cotrim next argues that the court improperly precluded Dr. Rasetti from testifying about the psychological evaluation conducted on Cotrim in 2019. Specifically, Cotrim asserts that the court failed to consider the impact of the exclusion on the best interest of the children and that Dr. Rasetti could have provided useful insight into Cotrim’s mental health. Boehm claims that the trial judge correctly excluded Dr. Rasetti’s testimony due to the procedural defect in notice about her testimony and the lack of relevance of the testimony.
The requirement that the best interest of the children remain paramount in custody cases extends to procedural issues and discovery violations. Rolley v. Sanford, 126 Md. App. 124, 131 (1999). In A.A. v. Ab.D., we held that the “supreme obligation [to consider the best interest of the child] may restrain the court’s broad authority to exclude evidence as a discovery sanction.” 246 Md. App. 418, 444 (2020). As such, “procedural defects should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.” Id. at 446. Trial courts may not exclude evidence as a discovery sanction unless the court ascertains what evidence would be excluded and then decides that the evidence would not “assist the court in applying the Sanders-Taylor factors in its determination of the best interests of the child[ren].” Id. at 448–49. Any sanction imposed after such consideration is reviewed for abuse of discretion. Id. at 449.
We find that the trial judge was well within her discretion to exclude Dr. Rasetti as a witness. In compliance with A.A., after Boehm moved to preclude Dr. Rasetti’s testimony, the court requested a proffer on what the testimony would entail. Cotrim’s counsel responded that Dr. Rasetti would testify as to Cotrim’s mental state and her alleged erratic behavior. After hearing this proffer, the court explained that the testimony was irrelevant to the central issue of the case—whether there were material changes in circumstances necessitating a change in custody—because Dr. Rasetti evaluated Cotrim prior to the parties’ divorce and before the alleged change in circumstances. Therefore,anything that
Dr. Rasetti testified about would not have aided the court in its assessment of the Sanders-Taylor factors. The judge satisfied her mandate under A.A. by ascertaining what the evidence would include and deciding that it would not help in her evaluation of the Sanders-Taylor factors.8 We find no error in this determination or how it was reached.
E. Custody Evaluation and Lack of Psychological Evaluation
Finally, Cotrim argues that she was unduly prejudiced because the court did not have an accurate assessment of her mental health prior to making the custody determination. Moreover, she questions the validity of the custody evaluation and the court’s reliance on it, particularly because such evaluations can contain hearsay statements and because the evaluator only interviewed collateral witnesses provided by Boehm. Cotrim also contends that the court impermissibly considered her failure to comply with the order for a mental evaluation in making the custody determination. Boehm notes that he and Cotrim had the same opportunities to provide information to the evaluator, yet Cotrim failed to identify potential collateral witnesses for the evaluator to speak to.
We first address the validity of the custody evaluation and the court’s reliance on its conclusions. Maryland Rule 9-205.3(f) describes the mandatory elements of a custody evaluation, which include an interview with each party and “contact with any high neutrality/low affiliation collateral sources of information, as determined by the assessor.” Md. Rule 9-205.3(f)(1)(F) (emphasis added). A committee note within the Rule defines high neutrality/low affiliation as “impartial, objective collateral sources of information.” The Rule further gives the evaluator discretion to include “contact with collateral sources of information that are not high neutrality/low affiliation” and a mental health evaluation in the report. Md. Rule 9-205(f)(2)(A), (D).
A court has discretion to “accept—or reject—all, part, or none of the testimony of any witness.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011). In Barton v. Hirshberg, we declined to disturb the trial court’s custody award based upon the court’s consideration of a custody evaluation alongside the other evidence and testimony presented. 137 Md. App. 1, 31 (2001). We have also held that a court-appointed evaluator is subject to cross- examination by either party. Draper v. Draper, 39 Md. App. 73, 81 (1978). Our decision in Sanders discussed the role of experts in custody hearings, noting that “[e]vidence offered by social workers, psychologists and psychiatrists may be necessary in custody cases” but that the court “is entitled to weigh that evidence along with contradictory testimony and its own observations.” Sanders, 38 Md. App. at 423.
We find no merit in Cotrim’s arguments that the custody evaluation was somehow lacking or biased against her. The court, as part of its discretion as fact-finder, was entitled to rely upon the custody evaluation report and the testimony of the custody evaluator at trial. Within that report, the evaluator had discretion to contact whichever collateral witnesses she felt could contribute reliably to the evaluation.
As such, the evaluator contacted two collateral contacts that Boehm provided and their statements were summarized in the final report, the inclusion of which was within the evaluator’s discretion; however, the record indicates that Cotrim did not provide any collateral contacts for the evaluator to interview. It is therefore unwarranted for Cotrim to attack the neutrality of the evaluation based upon the evaluator only interviewing collateral contacts associated with Boehm. Cotrim also took the opportunity to cross-examine the evaluator about the report but did not question the evaluator’s neutrality. As such, the trial court was within its discretion to credit the testimony of the custody evaluator and to rely upon the evaluation itself in making the custody determination, particularly because the judge noted that the evaluation was largely consistent with other evidence.9
We next consider Cotrim’s allegation that the court improperly considered Cotrim’s noncompliance with the court order to obtain a psychological evaluation. While noncompliance with a court order is not an enumerated factor in either Sanders or Taylor, neither case holds that its list of factors is exhaustive. Sanders, 38 Md. App at 420 (“The criteria for judicial determination includes, but is not limited to, [its list of factors].” (emphasis added)); Taylor, 306 Md. at 311 (“The enumeration of factors appropriate for consideration in a joint custody case is not intended to be all-inclusive, and a trial judge should consider all other circumstances that reasonably relate to the issue.”).
We find no error in the court’s consideration of Cotrim’s noncompliance with the court order for a mental evaluation. Under Sanders and Taylor, the court was entitled to consider factors it deemed relevant to the best interests of the children. The judge noted in her oral opinion that the mental evaluation would have been helpful in making the custody determination, particularly because changes in Cotrim’s mental state were at the core of the petition to modify custody. The judge further explained that she found Cotrim’s noncompliance with the order unreasonable and emblematic of the allegations against her, including issues with her rational decision-making and failure to consider the impacts her actions have on the children. Given Boehm’s claim that Cotrim was consistently uncooperative in making decisions about the children, the judge was justified in looking at Cotrim’s failure to comply with the court order as further evidence of her inability to abide by the provisions of the existing custody arrangement and any future arrangements.
Cotrim makes a passing argument that the court’s consideration of Cotrim’s noncompliance with the order for a
mental evaluation was improper because the order itself was not supported by good cause. Maryland Rule 2-423 authorizes a court to order a mental evaluation for good cause shown when a party’s mental condition is in controversy. The Supreme Court has concluded that a custody dispute does not inherently require an examination of the parents’ mental health; however, once a mental health issue is raised, it is within the trial court’s discretion to assess it. Cf. Laznovsky v. Laznovsky, 357 Md. 586, 619–21 (2000) (“[A] person seeking an award of child custody that claims to be a fit parent, does not, without more, waive the confidential psychiatrist/psychologist-patient privilege on respect to [past treatment and diagnosis records].”). It is similarly within the court’s discretion to determine whether a party’s mental health is material to the case. Roberts v. Roberts, 198 Md. 299, 302–03 (1951).
Given that the basis of Boehm’s custody modification petition was largely centered on alleged changes in Cotrim’s behavior and mental state, it is hard to see how her mental state was not material to the case. Even if Cotrim had offered contrary evidence, the disagreements as to facts regarding Cotrim’s mental health would need to be addressed by the court in some capacity. That the judge decided to examine disagreements about Cotrim’s mental state by ordering an independent mental evaluation was well within her discretion.10
CONCLUSION
The circuit court did not err or abuse its discretion as Cotrim challenges. At the hearing, the judge laid out each Sanders-Taylor factor and examined how the facts in the present case applied to that factor. There was adequate evidence presented regarding the children’s preferences for custody such that it was well within the judge’s discretion to deny an in camera interview with the children, particularly given the judge’s discretion in weighing the children’s preferences against the other Sanders-Taylor factors. The court similarly did not abuse its discretion in declining to appoint a BIA in a case with a neutral custody evaluation. The court determined that the testimony of Dr. Rasetti was not relevant to the allegations underlying the request to modify custody and properly precluded the witness. Finally, the court did not err when it considered Cotrim’s failure to comply with a court order for a mental evaluation when making the final custody award. For the above reasons, we affirm the ruling of the circuit court.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Cotrim’s questions are functionally the same, but she combines the first two questions and frames Question 5 (her Question 4) as follows: “The Circuit Court erred when it impermissibly considered [Cotrim’s] failure to comply with an order requiring a psychological evaluation when reaching its custody determination.” Boehm frames Question 5 as: “The trial court did not err or abuse its discretion by issuing a Custody Order prior to a mental evaluation of [Cotrim] being conducted.” We address both of these questions together.
2 A 2-2-5-5 custody arrangement provides that the children stay with one parent on Mondays and Tuesdays and with the other on Wednesdays and Thursdays. The parents then alternate weekends.
3 As will be described further, Boehm denied that A.S. had slept in his bed since his and Cotrim’s separation, and A.S. similarly told the custody evaluator that she had slept in Boehm’s bed when she was younger and was frightened by something but had not done so since the separation.
4 Taylor v. Taylor, 306 Md. 290 (1986).
5 Montgomery Cty. Dept. of Soc. Servs. v. Sanders, 38 Md. App. 406 (1978).
6 Cotrim combines her argument about the in camera interview with her argument that the court abused its discretion by ignoring the child’s preferences. We address the child’s preferences infra in our broader discussion of the custody award.8 Further, it is clear that the trial judge knew that she needed to consider the best interests of the children before she could exclude Dr. Rasetti’s testimony: the judge explicitly mentioned A.A. v. Ab.D. in allowing Cotrim’s other late-identified witness to testify. After taking counsel’s proffer about the other witness, the court decided that the testimony could be useful to the best interest determination.
7 Cotrim relies on the Appellate Court’s decision in Garg to support her contention that a BIA should have been appointed in this case. Our decision in Garg that a BIA should have been appointed, however, was reversed by the Supreme Court. Garg v. Garg, 163 Md. App. 546 (2005), rev’d, 393 Md. 225 (2006). In her argument, Cotrim also mischaracterizes Nagle v. Hooks, 296 Md. 123 (1983). Nagle established that a court must appoint a privilege attorney to protect children’s privileges when the parents may not have incentive to do so. Id. at 128. In fact, until recently, child’s privilege attorneys were referred to as Nagle v. Hooks attorneys. See Maryland Guidelines for Practice for Court- Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access § 1.3. The court did appoint a child’s privilege attorney in this case, and while such appointment did not foreclose the possibility of a BIA, Cotrim’s reliance on Nagle is inapposite 9 Cotrim makes an additional allegation that the custody evaluator was biased against her due to what Boehm and his collateral contacts told the evaluator. Cotrim offers no factual support for this
allegation of bias apart from an anecdote from her eventual mental evaluation when Cotrim “had to refute claims that she had been fired” from her former job. We fail to see how this is an example of bias, particularly on the part of the custody evaluator, who did not conduct the mental evaluation. Rather, it seems that Cotrim was instead given the opportunity to explain the allegations made against her. Moreover, to the extent the custody evaluator made conclusions about Cotrim based upon her interviews with Boehm and others, that was the precise role of the custody evaluator: to consider the circumstances of each parent and children to make a recommendation regarding custody. If Cotrim wanted an evaluation with reports from witnesses acquainted with her, she should have provided such contacts.
8 Further, it is clear that the trial judge knew that she needed to consider the best interests of the children before she could exclude Dr. Rasetti’s testimony: the judge explicitly mentioned A.A. v. Ab.D. in allowing Cotrim’s other late-identified witness to testify. After taking counsel’s proffer about the other witness, the court decided that the testimony could be useful to the best interest determination.
9 Cotrim makes an additional allegation that the custody evaluator was biased against her due to what Boehm and his collateral contacts told the evaluator. Cotrim offers no factual support for this allegation of bias apart from an anecdote from her eventual mental evaluation when Cotrim “had to refute claims that she had been fired” from her former job. We fail to see how this is an example of bias, particularly on the part of the custody evaluator, who did not conduct the mental evaluation. Rather, it seems that Cotrim was instead given the opportunity to explain the allegations made against her. Moreover, to the extent the custody evaluator made conclusions about Cotrim based upon her interviews with Boehm and others, that was the precise role of the custody evaluator: to consider the circumstances of each parent and children to make a recommendation regarding custody. If Cotrim wanted an evaluation with reports from witnesses acquainted with her, she should have provided such contacts.
10 Cotrim points to a 2018 unreported decision from this Court that addressed a very similar issue about an allegedly improper order for psychological evaluation in a custody case. Given the unreported nature of that case, which predates the change to Maryland Rule 1- 104, it may not be cited for any precedential value or as persuasive authority. See Md. Rule 1-104 (allowing unreported opinions issued on or after July 1, 2023, to be cited as persuasive authority if “no reported authority adequately addresses an issue before the court”). Moreover, the case reaches the precise opposite outcome to what Cotrim is requesting of us. In that case, we determined that the order for a psychological evaluation was proper and that the court was entitled to consider the party’s noncompliance with the order when making the custody determination.
In the Maryland Appellate Court: Full Text Unreported Opinions
Ed. note: Unreported opinions of the state courts of appeal are neither precedent nor persuasive authority. Rule 8-114. Unofficial publication of an unreported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
II.
No. 0143, September Term 2023
Argued before: Graeff, Reed, Taylor (specially assigned), JJ.
Opinion by: Graeff, J. Filed: Nov. 9, 2023
This appeal arises from a March 24, 2023 order issued by the Circuit Court for Montgomery County denying Monica Dudley, appellant, third-party intervenor status in a child custody dispute involving the minor children of Juan Rivera (“Father”) and Michelle Dudley (“Mother). Appellant contends that the circuit court erred in denying her motion to intervene.1
For reasons that follow, we shall vacate the judgment of the circuit court and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Emergency Guardianship Petition
Mother and Father are parents of two children: a son, born in 2008, and a daughter, born in 2011 (the “Children”). On January 3, 2017, Stephanie Rivera, the Children’s paternal aunt and appellee, filed two emergency petitions for guardianship of the Children in the Circuit Court for Montgomery County, alleging that Mother was currently homeless and both Mother and Father were unstable. Father consented to Ms. Rivera’s emergency guardianship petition.2 Ms. Rivera attached to her petition an affidavit regarding her unsuccessful attempts to locate and contact Mother. The court appointed Ms. Rivera as temporary guardian of the Children the same day.
Initial Custody Petition
On February 27, 2017, Ms. Rivera filed a supplemental complaint for custody, alleging that Mother was homeless and Mother and Father were unstable. On June 6, 2017, Ms. Rivera asked the court to order a default judgment against Mother for failing to respond to Ms. Rivera’s complaint for custody. On June 28, 2017, Father filed his answer to Ms. Rivera’s complaint, asking the court to grant Ms. Rivera’s child custody petition and requesting that visitation with Mother be supervised and/or subject to “drug treatment of at least 1 yr.” The court found that service on Mother was improper, and it denied Ms. Rivera’s request for a default judgment. The court ordered the circuit court clerk to reissue a summons for Mother.
III.
Grandmother’s Motion to Intervene
On August 18, 2017, Valerie Dudley, the children’s maternal grandmother (“Grandmother”), filed a motion to intervene, supplemented by a complaint for visitation. Grandmother alleged that it was in the Children’s best interest that she be permitted to intervene because Ms. Rivera was “refusing any visitation or contact.” Grandmother noted that the Children had lived with her and Mother for the previous seven years, and she was “a regular fixture in the children’s lives.”
On September 20, 2017, the court granted Grandmother’s motion to intervene. Ms. Rivera did not oppose Grandmother’s motion to intervene or request for visitation, but she requested that the court “not allow the children to have unsupervised visitation with their mother.”
IV.
October 2017 and 2019 Custody and Visitation Orders
On October 12, 2017, the circuit court held a hearing on Ms. Rivera’s supplemental complaint for custody and Grandmother’s motion to intervene and complaint for visitation. It ordered that Ms. Rivera have primary physical custody of the Children and Ms. Rivera and Father have joint legal custody, with Ms. Rivera having tie-breaking authority. The court ordered visitation for Grandmother, providing “access with the minor children two (2) times per month for six (6) hours,” with the dates and times to be agreed upon between her and Ms. Rivera. The court granted Mother supervised access to the Children.
On February 11, 2019, Grandmother filed a petition for contempt, alleging that Ms. Rivera was denying her visitation. She
asked the court to order Ms. Rivera to “cooperate in working with [her] on a monthly basis to set up visits for the children.” In response, Ms. Rivera claimed that Grandmother was not denied access, and instead, she “insisted upon showing up at [Ms. Rivera’s] home unannounced for requested visitation on February 9, 2019.”
On April 19, 2019, Mother filed a petition to modify custody. She requested that the court grant her sole physical custody and joint legal custody, to be shared with Father.Mother alleged that she had “turned her life around” and was “ready, willing and able to resume her role as mother for the children.” On May 10, 2019, Grandmother filed an amended petition for contempt, asking the court to “establish a specific visitation/access schedule to include overnights and a mutual place for pick-up and dropoff with visitation.”
On October 1, 2019, after a hearing, the circuit court issued an order, continuing its prior order that Ms. Rivera have primary physical custody of the Children. It modified the previous order regarding joint legal custody, ordering that Ms. Rivera and Mother have joint legal custody, with Ms. Rivera retaining tie-breaking authority. Father was to continue to have reasonable access to the Children. The court further found Ms. Rivera in contempt of its October 2017 visitation order and established a visitation and access schedule for Grandmother. Mother was awarded supervised access with the Children one day per month from 9:30 a.m. to 6:00 p.m. over the next 17 months, to be supervised by Grandmother as intervenor.
V. Further Proceedings
On November 8, 2019, appellant filed a motion to intervene, supplemented by a motion to modify custody and visitation. Appellant alleged that Ms. Rivera “no longer wishes to have custody of the minor children,” and both Mother and Father were not “physically, mentally or financially stable enough to have custody of the minor children.” She expressed her concern about the children and stated that it would be “in the children’s best interest if custody be modified” as soon as possible.
On November 13, 2019, Mother filed an emergency motion to modify the court’s October 2019 custody order. She stated that Ms. Rivera had communicated that she could no longer care for the Children and no longer wanted anything to do with the Children. Mother alleged that Ms. Rivera was “under a lot of stress, both physically due to her disability and emotionally,” and she could “no longer handle the added stress of caring for the[] children.” Mother alleged that Ms. Rivera had asked Mother “to take [the] children, but then indicated that she [would] not turn the children over without a court order.” Mother asked the court to award her immediate legal and physical custody of the Children. On December 10, 2019, Grandmother filed a motion in response to appellant’s November 8, 2019 motion to intervene. She stated that Mother needed “more time to prepare a more stable living status and financial status before getting her kids back unsupervised.” She alleged that it was in the “best interest of the minor children that sole legal and physical custody be granted to . . . [appellant].” She asked the court to maintain the previous visitation and access schedule.
On January 2, 2020, the court granted appellant’s motion to intervene, designating her as “Intervenor Plaintiff” in the matter. That same day, Mother dismissed her November 2019 motion to modify custody. Appellant filed a new motion to modify custody and visitation, repeating her previous claim that Ms. Rivera “no longer wishes to have custody of the minor children” and asking the court to grant her sole physical and legal custody. In March 2020, appellant petitioned the court to appoint a best interest attorney, which the court denied.
On January 15, 2021, Grandmother filed a petition for contempt, alleging that Ms. Rivera was denying visitation to Mother. On May 20, 2021, Mother filed an emergency motion to modify custody. She asked the court to award joint legal and physical custody to her and appellant. On June 14, 2021, Grandmother filed a motion in response to Mother’s emergency motion. She asked that the court grant the relief requested by Mother. On September 30, 2021, Grandmother died. On October 18, 2021, appellant filed a motion to dismiss her amended motion to modify visitation. Appellant alleged, among other things, that she was “under immense stress from the recent death of her mother” and continuing with the litigation would “cause more mental anxiety.” The court granted her request, dismissing appellant’s amended motion to modify visitation, without prejudice.
On January 4, 2022, Ms. Rivera filed an emergency motion to suspend visitation for Mother. Ms. Rivera noted that Mother was granted supervised visitation, with Grandmother as the court-designated supervisor. Following Grandmother’s death, she had agreed to allow Mother’s boyfriend to “act as the supervisor for the October 24, 2021 access hours,” but Mother’s boyfriend left the children with Mother unsupervised, and Mother “failed to appear for the scheduled drop-off to return the children.” Ms. Rivera stated that she was able to find the Children at appellant’s home only after assistance from the Montgomery County Police Department.
On March 4, 2022, appellant filed a motion to modify custody and visitation, alleging that Mother had not been given access to the Children since October 2021. Appellant alleged that there had been “numerous material changes in circumstances,” and she asked that the court award her sole physical and legal custody of the Children. Ms. Rivera filed a response, asking the court to dismiss the motion for, among other things, “failure to allege any material change in circumstance affecting the children, [and] lack of standing.”
On March 22, 2022, the court held a hearing.3 At the conclusion of the hearing, it denied Mother’s motion to modify physical custody, but it ordered that Ms. Rivera and Mother would have joint legal custody on “major decisions regarding education, medical care, mental health, religious training, discipline, and any other major decision concerning the children’s general welfare.” It removed Ms. Rivera’s tie-breaker authority and instructed the parties to “work together to reach mutual decisions.”
Immediately following the hearing and order from the court, Mother filed an emergency motion to modify visitation. She asked that the court modify the order to allow her access to the Children.
On April 4, 2022, this case was designated as a “One Family-One Judge” case and specially assigned to one judge.4 On
May 5, 2022, the court dismissed appellant’s March petition to modify custody. The reasons for the ruling were not given in the order, but the court gave appellant thirty days to file an amended motion. The court also issued a supervised visitation order, requiring Ms. Rivera to “make the minor children available for supervised access with [Mother]” and not interfere with that access. The court instructed the parties that supervised access would continue until a review hearing was set for August 29, 2022.
The same day, appellant filed an amended motion to modify the custody and visitation order issued in March 2022. Appellant alleged, among other things, that the children were not being properly supervised. Appellant asked the court to appoint an evaluator so that a social worker could investigate the allegations contained in her motion.
On May 26, 2022, Ms. Rivera filed a motion in opposition, alleging that appellant had failed to meet a “threshold burden of showing a material change of circumstances.” She asked the court to dismiss appellant’s complaint.
On June 17, 2022, Father filed several motions. In a petition to modify custody and visitation, Father alleged that the court’s March 2022 custody and visitation order was no longer in the best interest of the children. With respect to custody, Father stated that the court had previously granted him and his sister, Ms. Rivera, joint legal custody, but the court had modified that arrangement without explanation. He alleged that Mother was not mentally or financially stable and requested that the court reinstate joint custodial rights to him, to be shared with Ms. Rivera. Additionally, Father filed an emergency motion to suspend the Children’s visitation with Mother, alleging that Mother was using narcotics in front of the Children, and appellant was “enabling [Mother’s] behavior as she is participating and/or allowing her to get high in her house.”5
On August 2, 2022, a Court Custody Evaluator Report was filed. Because it was filed under seal, we will not discuss its contents.
In August 2022, appellant, Ms. Rivera, and Father filed pre-trial statements. Ms. Rivera claimed that there had been “no material change in circumstances” to warrant modification of custody and visitation since the circuit court’s March 2022 order. Father asked the court to grant joint legal custody to him and Ms. Rivera and requested that it grant Ms. Rivera “sole physical custody” as the court had ordered in October 2017. He also requested that appellant be removed from the case as a third-party intervenor.
On August 29, 2022, the court held a hearing on, among other things, Mother’s motion to modify, Father’s motion to modify, and appellant’s amended motion to modify.6 On September 26, 2022, appellant filed a motion requesting to be removed as an intervenor, which the court granted on October 19, 2022.7
On September 30, 2022, the court denied appellant’s amended motion for custody, and granted, in part, Mother’s and Father’s motions. It ordered that Ms. Rivera have sole legal custody of the Children and primary physical custody, with Mother having supervised access according to an access schedule. The court permitted appellant to participate in supervised visitation, but it noted that she “shall not serve as a supervisor.” The court ordered “that a qualified visitation supervisor shall be assigned
by the Family Division to supervise” the visits. The court set a hearing for February 10, 2023, to review the status of the supervised visitation.
On February 10, 2023, the court began the status hearing by noting that Mother had passed away. The court stated that nothing had been filed in the case regarding Mother’s death, and once the “suggestion of death” was filed, the matter involving Mother’s supervised visitation would be closed. The court encouraged the parties “to work together to make sure that” the Children were cared for, stating that, “hopefully [the parties] realize the importance of family, and that [they] are allowed to, are encouraged, and supported to have close relationships with their family on both sides.” The court noted that its ability to order relief was limited, but it asked that the “adults make sure that the children . . . remain in contact with their family on both sides.”
VI.
Proceedings at Issue on Appeal
On March 1, 2023, appellant filed a motion to intervene, supplemented by a complaint for visitation. Appellant stated that she was seeking intervention because she was the maternal aunt of the Children, and prior to 2017, she “lived in very close proximity to” the Children, “which caused a strong emotional bond . . . to be formed over the course of their childhood.” In the attached complaint for visitation, appellant alleged that she was a de facto parent of the Children, stating that she had “developed a long-lasting, bonded, and dependent maternal/parental relationship with” the Children. Appellant stated that visitation was in the best interests of the children because “[t]heir biological Mother is deceased, as her next of kin I want to make sure their bond with her side of the family remains strong.” She noted that the Children had a six-month-old half brother, and appellant wanted “that relationship to stay strong as well.” Appellant requested that the court grant visitation for “[e]very other weekend, rotating holidays and extended time during the summer and winter breaks.”
On March 17, 2023, Ms. Rivera filed a motion in opposition to appellant’s motion to intervene. Ms. Rivera stated that appellant lacked standing to intervene and seek custody because “[s] he is neither a parent or a grandparent of the minor children at issue.”
On March 24, 2023, the circuit court denied appellant’s motion to intervene. The court did not provide a reason for its decision, aside from a notation indicating that the court had considered appellant’s motion and Ms. Rivera’s opposition.
This timely appeal followed.
DISCUSSION
Appellant contends that the court erred in denying her motion to intervene. She asserts that she initially was permitted to intervene in the custody case involving the children, and she voluntarily removed herself as an intervenor in September 2022 “because a new visitation order was set to be ordered” on February 10, 2023. Mother, however, died prior to that time. Appellant asserts that, allowing her “to intervene again is the only way for [her] to petition for a new visitation order so the minor child
can continue to see and have a close relationship with their deceased Mother’s side of the family and also with their half biological brother.”
Ms. Rivera contends that the court did not abuse its discretion in denying appellant’s motion to intervene. She argues that appellant lacked standing to pursue visitation with the Children because she is not a parent, and her claim that she had a “de facto” parental relationship with the Children was too late and unsupported by evidence.8 Ms. Rivera further argues that, even if appellant had been granted permission to intervene, her visitation action would have failed because she offered no “evidence of parental unfitness or the existence of extraordinary circumstances.”
In Doe v. Alternative Medicine Maryland, LLC, 455 Md. 377, 414 (2017), the Supreme Court of Maryland articulated the standard of review regarding rulings on a motion to intervene, as follows:
An appellate court reviews for abuse of discretion a trial court’s denial of a motion to intervene on the ground of untimeliness, where the trial court articulates why the motion was untimely. See [Maryland-Nat. Capital Park and Planning Comm’n v. Town of Washington Grove, 408 Md. 37, 65, 968 A.2d 552, 568-69 (2009)]. In all other instances, an appellate court reviews without deference a trial court’s conclusion that a party may not intervene as of right. See id. at 65, 968 A.2d at 568-69. An appellate court reviews for abuse of discretion a trial court’s decision to deny permissive intervention. See id. at 65, 968 A.2d at 569.
With that standard of review in mind, we look to Maryland Rule 2-214, which addresses intervention. Rule 2-214(a) addresses intervention as “of right,” as follows:
Upon timely motion, a person shall be permitted to intervene in an action:
(1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.
In Washington Grove, 408 Md. at 69-70, the Court explained that there are four requirements for intervention of right: 1) the application was timely; 2) the person claims an interest relating to the property or transaction that is the subject of the action; 3) the person is so situated that the disposition of the action, as a practical matter, may impair or impede that person’s ability to protect that interest; and 4) the person’s interest is not adequately represented by existing parties to the suit.
“Permissive” intervention is governed by Maryland Rule 2-214(b), which states:
(1) Generally. Upon timely motion a person may be permitted to intervene in an action when the person’s claim or
defense has a question of law or fact in common with the action.
(3) Considerations. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The motion to intervene at issue here was filed by appellant on March 1, 2023. Although her motion did not specify whether she was seeking intervention “of right” or “permissive” intervention, she did assert that she was a de facto parent. A de facto parent has the same rights as a biological parent, and therefore, has standing to challenge custody or visitation if there is a showing of a material change in circumstances. See Caldwell v. Sutton, 256 Md. App. 230, 269-70 (2022). Here, the motion clearly showed a change of circumstances; appellant’s visitation was tied to Mother’s supervised visitation, and after Mother’s death, that would no longer occur.
As indicated, however, to show a right to intervene, there are several requirements that need to be satisfied. Initially, Md. Rule 2-214(a), requires that a motion to intervene be “timely.” See Washington Grove, 408 Md. at 65. As we have stated, [i]n determining whether a motion to intervene has been timely filed, a court must consider the purpose for which intervention is sought, the probability of prejudice to the parties already in the case, the extent to which the proceedings have progressed when the movant applies to intervene, and the reason or reasons for the delay in seeking intervention.
Id. at 70 (alteration in original) (quoting Pharmaceia Eni Diagnostics, Inc. v. Wash. Suburban Sanitary Comm’n, 85 Md. App. 555, 568 (1991)). “Timeliness depends upon the individual circumstances in each case, and . . . consideration of those circumstances rests initially with the sound discretion of the trial court, which, unless abused, will not be disturbed on appellate review.” Id.
Moreover, pursuant to Md. Rule 2-214(c), appellant was required to “state the grounds” upon which she sought to intervene. Those grounds would include facts that support a finding that she has a de facto relationship with the children, that there was a material change in circumstances, and that it would be in the Children’s best interest for her to have visitation with the Children.
The parties have not addressed the issue of timeliness, or prejudice to Ms. Rivera, and the circuit court did not discuss any factors relating to the motion to intervene or otherwise explain the basis for its decision denying the motion. Under these circumstances, we conclude that a remand to the circuit court is appropriate so the court can state the basis for its decision. If, on remand, the court determines that dismissal is warranted because the motion did not adequately state the grounds to intervene, appellant could request leave to amend her pleading.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY VACATED AND REMANDED FOR FURTHER PROCEEDINGS; COSTS TO BE SPLIT BY THE PARTIES; 50% TO BE PAID BY APPELLANT AND 50% TO BE PAID BY APPELLEE.
FOOTNOTES
1 On appeal, appellant, an unrepresented litigant, presents the following issue:
My Motion to Intervene solely for the purpose of seeking a visitation order so the minor children can remain to have a relationship with their deceased Mother’s side of the family[.]
2 Juan Rivera is Stephanie Rivera’s brother.
3 The record does not contain a transcript of this hearing. The court’s order notes that the reason for taking testimony and argument were stated on the record.
4 The “One Family-One Judge is [a National Council of Juvenile and Family Court Judges] best practice recommendation for both child welfare and delinquency cases.” Yolanda A. Tanner, ONE FAMILY – ONE MASTER DOCKETING IN JUVENILE COURT, Md.
B.J., May/June 2009, at 30 (2009). When adopted by a court, “[a] family is assigned to a single judge for all hearings, enabling the judge to become thoroughly familiar with the needs of children and their families, increasing the judge’s ability to direct services to address those needs.” Id. 5 On June 17, 2022, Father also filed a motion to remove appellant as intervenor. Father alleged that appellant was granted intervenor status without his knowledge, she had “never lived, provided, or helped [his] children in time of need,” and her continued presence in the
matter caused additional issues. On September 30, 2022, the court denied Father’s request to remove appellant as intervenor.
6 There is no transcript of this hearing in the record.
7 Appellant did not state the reasons for her request to be removed as an intervenor. On appeal, she states that she did so because she expected a “new visitation order” to be issued, at the next hearing, which was set for February 10, 2023.
8 “[A] third-party seeking de facto parent status bears the burden of proving the following” elements:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Conover v. Conover, 450 Md. 51, 74 (2016). Additionally, de facto parent status “cannot be achieved without knowing participation by the biological parent.” Id. Accord Caldwell v. Sutton, 256 Md. App. 230, 267 (2022).
