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Maryland Family Law Update is a review of events as they affect the practice of domestic relations in law in the state of Maryland published by The Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
The laws of every jurisdiction may differ, and the facts are capable of many interpretations. The contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until after their cases have been finally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and The Daily Record Company are owned by Bridgetower Media.
Table of Contents
3 Child Advocacy: School attendance makes a difference
It is well-documented that school attendance, especially in kindergarten and first grade, is a predictor of reading proficiency after the third grade. Although some approaches to truancy exist, continuing to develop early intervention programing and supports for families will improve outcomes and achievement for Maryland’s students.
4 Cover Story: ‘Gray divorces’ come with their own special challenges
Divorce attorneys in Maryland say they have noticed a trend among their clients: They’re getting older. Attorneys emphasized that older adults have specific concerns and challenges when they divorce, especially when one partner has not worked during the marriage and the income-earning spouse is nearing retirement.
6 In the News: Md. Appellate Court rules in parental rights case
Where a child in need of assistance or termination of parental rights court changes the terms of a prior custody order, an aggrieved party has a right to immediate interlocutory appeal, the Maryland Appellate Court has ruled.
7 Guest Column: Making divorce decisions at a time of emotional turbulence
Couples who want to prioritize effective and efficient negotiations early in their separation may want to seek out advisers and neutrals with high “emotional intelligence” to neutralize the emotional hurdles in early negotiations, notes columnist Morgan E. Foster.
8 Monthly Memo
When the state removes children from their parents’ care because of concerns about abuse or neglect, those parents are guaranteed an attorney under Maine law. Increasingly, they aren’t getting one. Over the course of 2024, the number of child protection cases in need of at least one attorney increased 700 percent, according to a list compiled by the judicial branch. ... Ohio Gov. Mike DeWine signed legislation that boosts the rights of parents to know when schools are changing their child’s health care or preparing to present lessons involving “sexuality content,” as conservatives nationally increasingly criticize public schools as too liberal on such issues. … The U.S. Attorney’s Office and U.S. Department of Health and Human Services’ Office of Civil Rights have entered into a proposed consent decree with the state to resolve findings in May that Rhode Island’s unnecessary segregation of children with behavioral health disabilities in a psychiatric hospital violates federal civil rights laws. … A South Korean court cleared the government and an adoption agency of all liability in a lawsuit filed by a 49-year-old Korean man whose traumatic adoption journey led to an abusive childhood in the United States and ultimately his deportation to South Korea in 2016 after legal troubles. … Where a mother challenged the adoption of her child by his stepmother, her challenge failed, because the circuit court considered the child’s best interests, including that the mother had no contact with the child for several years and was essentially a stranger to him, the Virginia Court of Appeals ruled.
Child Advocacy
School attendance makes a difference
It is well-documented that school attendance, especially in kindergarten and first grade, is a predictor of reading proficiency after the third grade.
Nationally, the COVID-19 “pandemic led to the largest decline in fourth grade reading and eighth grade math proficiency that the nation has seen,” according to National K-12 Data Insights.
This decline during the pandemic was caused in part by high absenteeism rates due to illness and lack of internet access.
Nationally, the chronic absenteeism rate was 27.85% for the 2021-2022 academic year; it only decreased to 27.07% for the 2022-2023 academic year.
In this period, 74% of eighth graders were not proficient in math, the highest percentage in the last two decades, and the steady improvement seen in the percentage of high school students graduating on time prior to the pandemic stalled.
Also, attendance for 3- to 4-year-old learners in pre-school programs was low.
The pandemic significantly affected Maryland’s students.
In Maryland, the chronic absenteeism rate was higher than the national average noted above: in the 2021-2022 academic year chronic absenteeism was 30.90% and only decreased to 29.80% for the 2022-2023 academic year.
In 2022, “about 69% of fourth graders scored below proficient in reading in Maryland, with the state ranking 28th nationally, while 75% of eighth graders scored below proficient in math, ranking the state 24th nationally.” These proficiency levels places Maryland near the national average of 68% and 74%, respectively.
However, this data is especially
LITTLE JOAN
Child Advocacy
concerning because in a state-to-state comparison of education, Maryland’s ranking has been decreasing over the last six years from 2018 where Maryland was ranked 9th in the nation to 2024, where it was ranked 22nd.
In the short term, these low scores cause challenges in the school system ranging from supporting individual students to adjusting the academic curriculum to meet the needs of the students.
In the long term, the impact on the youth experiencing compromised math and reading skills means they may lack workforce readiness and be thwarted in their ability to support themselves and later their own families.
One of the major contributors to the decline in scores was school truancy.
A “truant student” is one “who is unlawfully absent from school for more than (i) 8 days in any quarter; (ii) 15 days in any semester; or (iii) 20 days in a school year.” Md. Code Ann., Educ. § 7-302.2(1) (i)-(iii).
One early approach to confronting truancy, first enacted in 1978, was to charge an adult responsible for a child and who failed to send that child to school under the “Failure to Send Law” subjecting the adult, if convicted, to fines or imprisonment. Md. Code Ann., Educ., § 7-301.
A second approach was to have the Department of Juvenile Services authorize the filing of a Child In Need of Supervision Petition. Md. Code Ann., CJP § 3- 8A-01.
Now, there are some regional programs that are attempting to decrease truancy using creative and effective approaches.
Baltimore Students: Mediating About Reducing Truancy, operated by
the University of Maryland School of Law’s Center for Dispute Resolution in Baltimore City, offers a “a one-time, voluntary, confidential mediation involving teachers/caregivers of students” for mediation approach to elementary and middle school students in Baltimore city public schools who have incurred five to ten days of unexcused absences.
The Tackling Chronic Absenteeism Program, operated by the University of Baltimore School of Law’s Center for Families, Children, and the Courts for Baltimore City students utilizes a restorative justice approach is a voluntary. TCAP is a 10-week, inschool therapeutic, non-adversarial early intervention program for Baltimore City elementary and middle school students who attend identified schools, targeting students who have incurred five to 20 days of unexcused absences.
The Truancy Reduction Pilot Program is experimenting with a new judicial approach in the juvenile court in a limited number of jurisdictions on the Eastern Shore, creating a new cause of action in juvenile court accessible by the local boards of education, rather than the Department of Juvenile Services. CJP § 3-8C-01 to 3-8C-12.
While these programs are useful once a student meets the definition of being truant, efforts to boost attendance particularly for those students susceptible to truancy, must start before a student is facing truancy remediation.
Although some approaches to truancy exist, continuing to develop early intervention programing and supports for families will improve outcomes and achievement for Maryland’s students.
Joan F. Little is a chief attorney at Maryland Legal Aid.
By Hope Keller
‘Gray divorces’ come with their own special challenges
Special to The Daily Record
Divorce attorneys in Maryland say they have noticed a trend among their clients: They’re getting older.
The attorneys’ impressions are in line with data showing an increase in so-called gray divorces: While divorce among older Americans used to be relatively rare, today nearly one in three divorcing couples are 50 or older – and of that group, 25% are 65 and up.
“I have noticed many more who are closer to retirement, so later 50s and early 60s,” said Marla Zide, of the Zide Law Group in Glen Burnie. “I think that is definitely a trend.”
Christopher Roberts, of Roberts Family Law in Rockville, recently had a consultation with a woman in her 80s who was seeking to end her marriage.
“She was giving me the history, as everybody does in an initial consult, but her history spanned decades,” said Roberts, who added that the woman did not retain him.
More common are people in their 60s, he said: “That’s as robust a population for clientele as any other generation that I am servicing.”
Roberts said his older clients and prospective clients tend to consider divorce once their children have moved on to homes of their own.
“My observations are it’s oftentimes people whose circumstances weren’t so terrible that they couldn’t stick it out while their kids were growing up, (but) when they get to the place where the kids are out of the nest they’re starting to divorce,” he said.
“I have noticed many more (divorcing spouses) who are closer to retirement, so later 50s and early 60s,” says Marla Zide, of the Zide Law Group in Glen Burnie. “I think that is definitely a trend.”
These older adults also tend to be financially comfortable even without dual incomes, he said: “I suspect that it may be more prevalent for families who can afford to have two households.”
Attorneys emphasized that older adults have specific concerns and challenges when they divorce, especially when one partner has not worked during the marriage and the income-earning spouse is nearing retirement.
In these cases, determining alimony is a key challenge, said Stacey Rice of Rice Law in Annapolis.
“If there’s a spouse that has been a stay-at-home spouse for decades and is now facing divorce and the other spouse has been the
“If you can’t trace those nonmarital funds dollar for dollar, then on the case law you’re probably going to lose that issue,” says Christopher Roberts of Roberts Family Law in Rockville.
income earner, the alimony is critical,” she said. “It becomes a really complicated discussion of how are we going to accommodate the noneconomic-dominant spouse and his or her fears of ‘How am I going to survive?’ balanced against the economic-dominant spouse with, ‘Well, I don’t want to work into my 70s or 80s.’”
It’s crucial to work with a financial professional to analyze not just the parties’ immediate needs but their projected needs over the rest of their lives, Rice said.
“My financial expert will do an analysis and run various scenarios and when I’m negotiating that case I will bring back in that financial expert (to determine) should I be asking for more cash, more retire -
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ment, what are the Social Security benefits and (what about) taking it early versus delaying it, what are the tax consequences?” she said. “It can be very complicated, but it’s critical to do that because you have to look at the next hopefully 30 to 40 years.”
Untangling assets that have been commingled for decades is a particular challenge when older couples divorce, attorneys said.
“I think appraising nonmarital property is a big difficulty,” said Kumudha Kumarachandran of Wasserman White Family Law in Towson. “Things are really intertwined. It’s almost like, ‘Wow, we have to go back to the ’80s to figure out when you got this gift from your family.’”
Roberts pointed out that older adults often have saved paper documents over the years, which can be useful in proving ownership of assets. But, he said, “if you can’t trace those nonmarital funds dollar for dollar, then on the case law you’re probably going to lose that issue.”
Dissipation of marital funds –the use of money for a nonmarital purpose at a time when the marriage is in trouble – is another issue that often arises.
“In some of these older marriages you find out that these people have had a relationship with somebody else for years,” Zide said.
Rice described using credit card receipts, bank records and Google to track evidence to prove dissipation: “‘Oh, what is that, oh, it’s a lingerie shop in New York City. Oh wait, he was in New York City, he had a $300 dinner. Oh wait, he took a private car.’ You just start Googling and tracing and putting it on a spreadsheet.”
Sometimes the job isn’t that complicated.
“I did have a client once where (her husband) had put everything on one Southwest credit card,” Rice said. “So that was kind of convenient.”
“If there’s a spouse that has been a stay-athome spouse for decades and is now facing divorce and the other spouse has been the income earner, the alimony is critical,” says Stacey Rice of Rice Law in Annapolis.
“I think appraising nonmarital property is a big difficulty” in so-called gray divorces, says Kumudha Kumarachandran of Wasserman White Family Law in Towson.
Divorces among older adults (age 50 and up): All Divorces Were Among Older Adults Whom Were 65 And Up
SOURCE: “The Graying of Divorce: A Half
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In the News
Md. Appellate Court rules in parental rights case
Daily Record staff
Where a child in need of assistance or termination of parental rights court changes the terms of a prior custody order, an aggrieved party has a right to immediate interlocutory appeal, the Maryland Appellate Court has ruled.
FACTS: On Jan. 10, 2019, the circuit court, sitting as the juvenile court, found three-month I.Q. to be a child in need of assistance, or CINA, and committed him to the Department of Social Services for Baltimore City. I.Q. was placed in a foster home for medically fragile children, where he resides to this day.
The juvenile court has held several CINA review hearings over the past five years to revisit and, in some instances, modify I.Q.’s permanency plan and visitation schedule. The Department also initiated termination of parental rights, or TPR, proceedings in 2021 that have followed a parallel path alongside I.Q.’s CINA case in the juvenile court. I.Q. and the Department have appealed from the latest orders in the CINA and TPR cases.
LAW: The first appeal arises from the court’s decision to change I.Q.’s permanency plan to reunification and to grant mother unsupervised visits. Mother first argues that the CINA court’s Dec. 13, 2023, order is not appealable by the child or the Department.
This court disagrees. The Supreme Court of Maryland has held consistently that a change to a CINA’s permanency plan or visitation structure is appealable immediately under Md. Code § 12-
303(3)(x) of the Courts & Judicial Proceedings Article, or CJP. The second half of subsection (x) authorizes appellate review in cases where the court has “chang[ed] the terms of” a prior custody order. The text of that clause doesn’t limit itself to parents. And in cases where a court changes an earlier custody order, a child and the Department could well be aggrieved by that decision.
Turning to the merits of the first appeal, the Department and I.Q. both argue that the CINA court relied on erroneous factual findings and abused its discretion when it changed I.Q.’s permanency plan to reunification and authorized mother to have unsupervised visits. This court sees no clear error or abuse of discretion. The court made findings relating to all the factors required by Md. Code §§ 5-525(f)(1) (i)–(vi) and 9-101 of the Family Law Article, applying the best interests of the child standard properly as it evaluated each of the factors.
In their second appeal, the Department and I.Q. challenge the juvenile court’s decision to hold the Department’s TPR petition sub curia and stay the TPR proceedings pending the outcome of the CINA appeal. In response, mother argues that the juvenile court’s decision is not appealable. I.Q. and the Department claim it is appealable as a final judgment or, in the alternative, under the collateral order doctrine. The court holds that the stay order is not appealable under either doctrine.
However, the TPR court’s visitation ruling is appealable under CJP § 12-303(3)(x). It expanded mother’s visitation rights, which had been limited to weekly unsupervised visits under the CINA court’s Dec. 13, 2023, order, to overnights. The change makes the TPR court’s order appealable under
§ 12-303(3)(x).
I.Q. and the Department argue next that the TPR court erred when it granted mother overnight visits because (1) the TPR court did not have jurisdiction to enter a visitation order without ruling first on the TPR petition; (2) the court ruled improperly on visitation matters that were the subject of the pending CINA appeal and (3) addressing visitation on mother’s oral motion after the hearing commenced prejudiced the I.Q. and the Department. The court disagrees with the first two contentions and don’t reach the merits of the third because it wasn’t preserved for appellate review.
Finally, I.Q. and the Department argue that the TPR court abused its discretion when it granted mother monthly overnight visitation. Specifically, I.Q. claims the “evidence was insufficient to support Mother’s request for expanded visitation,” and the Department claims that the court placed the burden of proof improperly on I.Q. and the Department and failed to consider all relevant evidence. The court disagrees.
Judgments of the Circuit Court for Baltimore City affirmed.
DISSENT: CJP § 12-303(3)(x) provides a statutory exception to the final judgment rule for interlocutory orders “[d]epriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order[.]” I do not agree with the majority’s reading of this statutory language. I would hold that the December 2023 and the May 2024 orders are not appealable under any of the recognized exceptions to the final judgment rule and, therefore, would not reach the merits of the case.
Divorce decisions at a time of emotional turbulence
If you’re going through divorce (or helping others navigate their divorce), you already know that the emotions are complicated. There is the sense of loss or grief for the relationship, fear of the unknown, grief for the loss of a shared or imagined future. There is often shame or self-doubt – feelings of failure; there is anger, blame, regret, and denial.
It often takes years to fully process these emotions – long past when terms of divorce are finalized. So it often becomes important to be able to effectively negotiate legal and practical terms of divorce before one has fully processed the emotional fallout.
To make matters more difficult, spouses in a divorce rarely are experiencing the same emotional stage at the same time. As we navigate these complicated emotions, life does not stop because of divorce – so the kids’ lunches still need to be packed, the work deadline is still fast approaching, and soccer practice still starts on time – all interfering with emotional processing.
Mismatched emotional states create friction that often prevents couples from effectively negotiating settlement early in the separation. Over time, acrimony can grow, and positions often become polarized (with the introduction of adversarial advisers, and third parties pushing an agenda).
As two spouses’ lives become more separate, often their positions on divorce-related topics grow farther and farther apart. And longer divorces always lead to increased costs (financial and otherwise).
For these reasons, it is desirable to capitalize on the window of opportunity early in any separation or divorce to find common ground and resolve issues. Almost every spouse I have worked with would have preferred to resolve things quickly but often felt they could not because of their spouse’s “unreasonableness.”
This “unreasonableness” often translates to spouses being in different
Morgan E. Foster
emotional stages. Understanding these emotional stages (with empathy) can help break the deadlock in negotiations. It can also help couples to understand that they are able to make informed financial and legal decisions before they have fully processed the emotional fallout of the divorce … before they feel emotionally “ready.”
Dr. Elizabeth Kubler-Ross first wrote about the “stages of grief” in her famous book “On Death and Dying” in 1969, but there are a lot of similarities in the grief associated with divorce. Dr. Caitlin Stanaway from University of Washington later adapted the stages to describe grief in divorce: denial, anger, bargaining, depression, acceptance.
Both Kubler-Ross and later Stanaway acknowledged the reality that these stages are not linear, they can be cyclical and unpredictable – with certain events triggering a “regression” to a previously experience stage.
Often divorce begins with the admission by one spouse (who has probably been thinking about this decision for quite some time) that he or she wants to end the marriage. Often the other spouse is left in shock or denial –sometimes feeling blindsided.
Having such a monumental life change thrust upon you can be crippling, and those getting divorced experience this emotional roller-coaster while trying to make what feels like a million other adjustments in life.
Feeling rushed by the spouse who asked for the divorce can seem callous and inconsiderate. I often hear allegations of “bullying.” This is the cause of frustration and conflict on both sides. It is often the emotions behind an issue that cause couples to get stuck in negotiations – not the dollars and cents.
When spouses are experiencing incompatible or divergent emotional states, it creates landmines in the negotiation process and often prevents effective negotiations early in separation. However, these early stages are often when couples are the most willing to find common ground and forge creative solutions. These early stages are often when things can be resolved for the lowest cost, and to minimize conflict and long-term damage to the co-parenting relationship.
Both spouses and their representatives can navigate the emotional land mines preventing effective negotiations early in the separation (when emotions are still raw), by involving facilitators who understand the complex emotions of divorce.
Mediation is often a space in which couples can dictate their own pace, ensuring that neither feels rushed or as if he/she has to make a decision under duress. Great mediators will help couples separate the emotional issues from the legal, financial and practical ones.
Couples who want to prioritize effective and efficient negotiations early in their separation may want to seek out advisers and neutrals with high “emotional intelligence” to neutralize the emotional hurdles in early negotiations.
Morgan E. Foster is a veteran family law practitioner and the founder of The Pivot Process. She can be reached at morgan@pivotprocess.com.
Monthly Memo
Number of Maine parents waiting for a lawyer grew by 700%
Like many of her colleagues, family law attorney Taylor Kilgore has been watching the list of child protection cases in need of lawyers grow over the past year.
When the state removes children from their parents’ care because of concerns about abuse or neglect, those parents are guaranteed an attorney under Maine law.
Increasingly, they aren’t getting one. Over the course of 2024, the number of child protection cases in need of at least one attorney increased 700 percent, according to a list compiled by the judicial branch. On January 3 of last year, the state lacked attorneys for 14 cases, the list showed. On December 30, that number stood at 112.
The list is sent to the Maine Commission on Public Defense Services, which distributes it to attorneys on its roster. The list is used to help find attorneys for parents who can’t afford them, but it also serves as a way for the state to understand the size of the problem.
Associated Press
Ohio gov signs bill requiring schools to tell parents about health care changes
Ohio Gov. Mike DeWine signed legislation that boosts the rights of parents to know when schools are changing their child’s health care or preparing to present lessons involving “sexuality content,” as conservatives nationally increasingly criticize public schools as too liberal on such issues.
The signing comes as conservatives nationally are increasingly critical of public schools as too liberal and seek to quash discussion of hot-button topics, particularly around gender identity.
The Republican governor told reporters after a separate bill-signing at the Statehouse that the basis of the “Parents’ Bill of Rights” is that parents want to be informed about what’s going on in their children’s lives and Ohio wants to give them that option.
A separate provision of the Republican-backed bill requires districts to allow students to leave school during the day for periods of religious instruction, rather
than making access to such programs the district’s choice. It’s among various ways in which Ohio has expanded access to religious education in recent years.
Under the new law, parents will be able to opt out of schools’ suggested health care changes or the lessons identified in the bill that contain discussion of sex, sexuality or gender identity.
Associated Press
DOJ, R.I. reach agreement over child disability laws
The U.S. Attorney’s Office and U.S. Department of Health and Human Services’ Office of Civil Rights have entered into a proposed consent decree with the state to resolve findings in May that Rhode Island’s unnecessary segregation of children with behavioral health disabilities in a psychiatric hospital violates federal civil rights laws.
The decree filed in U.S. District Court, alongside a civil complaint, requires that the state provide the children with community-based services that will allow them to stay in their homes and communities while they receive the services they need, according to U.S. Attorney Zachary A. Cunha.
Compliance with the decree will be overseen by a court-appointed monitor and a federal judge.
The complaint filed on Dec. 19 alleges that the state failed to ensure that children with disabilities were able to access the intensive in-home and community-based services they need, and failed to facilitate prompt discharges from Bradley Hospital to family homes, resulting in extended and unnecessary hospitalization, or risk of future hospitalization, all in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
BridgeTower Media
S. Korean court clears government, adoption agency
A South Korean court cleared the government and an adoption agency of all liability in a lawsuit filed by a 49-yearold Korean man whose traumatic adoption journey led to an abusive childhood in the United States and ultimately his deportation to South Korea in 2016 after legal troubles.
In exonerating the South Korean gov-
ernment over the case of Adam Crapser, whose U.S. adoptive parents never secured his citizenship, the Seoul High Court overturned a 2023 lower court ruling that ordered his adoption agency, Holt Children’s Services, to pay him 100 million won ($68,600) in damages.
The Seoul Central District Court ruled that Holt should have informed his adoptive parents that they needed to take additional steps to secure his citizenship after his adoption was finalized in their state court, but didn’t find the government at fault for Crapser’s plight.
Crapser, a married father of two, says he was abused and abandoned by two different adoptive families who never filed his citizenship papers. In their defense against the accusations of malfeasance raised by Crapser, the government and Holt both cited a 1970s adoption law established under a military dictatorship that was designed to speed up adoptions.
Associated Press
Challenge to stepmother’s adoption denied
Where a mother challenged the adoption of her child by his stepmother, her challenge failed, because the circuit court considered the child’s best interests, including that the mother had no contact with the child for several years and was essentially a stranger to him, the Virginia Court of Appeals ruled. The case is Moroney v. Majerus, Record No. 008524-1, Dec. 10, 2024.
The Accomack County Circuit Court granted the adoption of J.T.M. by his stepmother, Kelly Lynn Majerus, under Code § 63.2-1202(H), without the consent of J.T.M.’s biological mother, Alison Helena Moroney. On appeal, mother challenged the circuit court’s jurisdiction to grant the stepparent petition for adoption consistent with the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA.
Mother also argued that the circuit court erred in finding that her consent to the stepparent adoption was not necessary under Code § 63.2-1202(H), that it erred in failing to consider the best-interest-of-the-child factors set forth in Code § 63.2-1205 and that it erred in denying her motion for a continuance. Both the trial court and the appeals court disagreed. 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 termination of mother’s parental rights. The Anne Arundel County Department of Health and Human Services made numerous efforts to provide services tailored to mother’s intellectual challenges, and she generally resisted their efforts. The juvenile court did not err in finding that mother was unfit to maintain a parental relationship with the child, and that the termination of mother’s parental rights was in the child’s best interest.
The Appellate Court affirmed the Montgomery County Circuit Court’s order establishing the child support arrearage. Child support may not be unilaterally withheld when parenting time is denied, the circuit court was not required to consider the marital award when entering judgment based on father’s failure to make child support payments and the circuit court acted within its discretion in calculating the amount of the judgment.
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of father’s motion to revise an order granting mother sole legal and primary physical custody of the two children and granting father supervised visitation with the children. Father’s arguments on appeal attack credibility and weight findings made by the circuit court; they do not demonstrate any abuse of discretion by the circuit court, much less an egregious error or a grave reason to justify reversal.
The Appellate Court affirmed the Wicomico County Circuit Court’s granting a modification of custody sought by mother. Although the 175-day delay between the hearing and the filing of the report and recommendations was a failure by the magistrate, without a showing of prejudice it is not grounds for reversal. And although there were factual errors in the report, the circuit court, in its written opinion, individually assessed each of these errors, independently made a finding of fact on each, and did not rely upon any erroneous findings in its independent appraisal of the report.
The Appellate Court affirmed the Montgomery County Circuit Court’s award of retroactive child support. The trial court correctly calculated the number of months for which mother was entitled to retroactive child support and did not err in finding that there was a material change in father’s income.
The Appellate Court affirmed the Washington County Circuit Court’s denial of mother’s motion to reconsider an earlier order allowing the child’s last name to be changed and finding mother in arrears of her child support obligations.
The Appellate Court affirmed the Baltimore County Circuit Court’s orders granting custody and guardianship of nine-year-old J.H. to his non-relative foster caregivers and changing the permanency plan for J.H.’s half-sister, two-year-old T.C., to concurrent plans of nonrelative adoption and custody, or custody and guardianship, by the same foster caregivers. Mother’s persistent mental health instability resulted in her failure to keep her children safe and healthy, and they had not lived with her for most of their young lives.
CHILD SUPPORT; EXPENSES; CREDIT
Angi Pamela Montecinos v. Jose Antonio Limpias
No. 23, September Term 2024
Argued before: Graeff, Arthur, Battaglia (retired; specially assigned), JJ.
Opinion by: Arthur, J
Filed: Nov. 22, 2024
The Appellate Court vacated the Montgomery County Circuit Court’s calculation of child support. The circuit court erred when it refused to credit mother with $500 per month in work-related child care expenses.
The Appellate Court affirmed the Montgomery County Circuit Court’s final protective order to mother. Mother’s testimony was credible as to allegations of domestic violence by father and the grant of temporary custody of the parties’ child to mother was not an abuse of discretion.
The Appellate Court affirmed the Frederick County Circuit Court’s recalculating of a monetary award following remand. Although the husband argued the economic circumstances of the parties at the time of the remand hearing should be used, the circuit court did not err in considering the parties economic circumstances at time of their divorce.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s termination of mother’s parental rights. The Anne Arundel County Department of Health and Human Services made numerous efforts to provide services tailored to mother’s intellectual challenges, and she generally resisted their efforts. The juvenile court did not err in finding that mother was unfit to maintain a parental relationship with the child, and that the termination of mother’s parental rights was in the child’s best interest.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
Specifically, the Department offered Ms. B. access to Storks Nest, a county program that supports new mothers and babies and provides them needed supplies. The Department also offered Ms. B. a foster care placement through the Mother/Baby program, which provides housing for new mothers to reside with their babies. Ms. B. declined to participate in that foster program, electing instead to move to her mother’s home with C.B.
At the time of her hospital discharge, Ms. B. agreed to a safety plan with the Department that required her to follow safe sleeping practices, ensure that C.B. was supervised at all times by an appropriate, sober adult, and allow the Department access to C.B. for safety checks. The Department provided Ms. B. with resources for the care of C.B., including a portable crib, Walmart and Target gift cards, as well as baby supplies and a laptop computer provided by the Blue Ribbon Project for Ms. B. to attend online treatment classes. The Department referred Ms. B. to a nursing specialist, a Family Support Center in-home interventionist, Helping Hand Pantry, and Healthy Start for nutritional needs.
This appeal arises from a decision by the Circuit Court for Anne Arundel County, sitting as a juvenile court, terminating the parental rights of Ms. B. to her daughter C.B. and granting guardianship of C.B. to the Anne Arundel County Department of Health and Human Services (the “Department”). On appeal, Ms. B. presents the following questions:
1. Did the juvenile court clearly err in finding that the Department made reasonable efforts towards reunification with [her]?
2. Did the juvenile court abuse its discretion in finding clear and convincing evidence that there were exceptional circumstances to terminate [her] parental rights?
For the reasons set forth below, we shall affirm the judgment of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
C.B. was born in December of 2020. At the time of C.B.’s birth, Ms. B. was herself a Child in Need of Assistance (“CINA”) who had been in the custody of the Department since June of 2013.1 C.B.’s father, Mr. B., was incarcerated, serving five years of a ten- year sentence. Mr. B. had pled guilty to first-degree assault of Ms. B., stemming from an incident that occurred while she was pregnant with C.B. in October of 2020. Mr. B. signed a conditional consent to the termination of his parental rights on December 19, 2023, which was filed on or about January 3, 2024.
Ms. B. suffers from developmental challenges and mental health issues. The Department offered Ms. B. services during her pregnancy to assist her with preparing for the birth of C.B.
Following Ms. B.’s discharge from the hospital, she initially maintained contact with the Department, and the Department visited her and C.B. weekly. But beginning in February of 2021, Ms. B. missed home visits from the Department as well as C.B.’s pediatric appointments, including follow-up orthopedic appointments that were scheduled to treat a shoulder injury that C.B. had sustained at birth. The Department learned that Ms. B. was not staying at her mother’s residence where she had planned to live with C.B. following discharge from the hospital, and the Department had difficulty locating Ms. B. to assess C.B.’s safety. During the week of March 25, 2021, Ms. B. missed a pediatrician appointment for C.B. and a home visit with the Department.
On April 8, 2021, Ms. B. attended a virtual Family Team Decision Making Meeting at which the Department learned that she was living with C.B. in a hotel in Carroll County. Later that same day, the Department removed C.B. from Ms. B.’s care upon locating Ms. B. and C.B. at the hotel, and finding that C.B. was hungry and dirty, with matted hair and soiled clothing.
Following C.B.’s removal, the Circuit Court for Carroll County, sitting as the juvenile court, ordered that C.B. remain in shelter care, and the case was transferred to the Circuit Court for Anne Arundel County for CINA proceedings. At the CINA adjudication and disposition hearing on March 11, 2022, based on the parties’ agreement, the juvenile court sustained the facts in the CINA petition. The court found that Ms. B. had acknowledged that her mother’s home in Glen Burnie was unsafe and unsuitable for C.B. due to the presence of excessive debris and clutter, bug infestation, and poor basic cleanliness throughout the home. The court accepted the Department’s statement that Ms. B. had not exercised
sufficient good judgment and parenting to allow her to safely parent C.B. without significant support and constant reminders about safety issues. The juvenile court determined C.B. to be a CINA, and committed her to the care and custody of the Department for placement in foster care.
Following C.B.’s removal, the Department facilitated weekly visitation between C.B. and Ms. B. The Department paid for Ms. B.’s transportation to her visitation sessions and C.B.’s pediatric appointments. The Department provided Ms. B. one-on-one parent coaching with Vera Montgomery during her visitation sessions at Harmony House from November of 2021 until December 1, 2023. Ms. Montgomery had experience working with parents with cognitive delays and developmental disabilities. When working with parents with cognitive or developmental challenges, Ms. Montgomery typically provides information in simple steps, often utilizing visual aids, such as charts and sequencing cards. Ms. Montgomery also models parenting behaviors and gives prompts or re-directives for parents to follow by asking leading questions to jog their memories, such as “[w]hy do you think [your] baby [is] crying right now” or “[w]hat are the reasons a baby would cry?”
Ms. Montgomery recalled that Ms. B. had difficulty focusing her attention on C.B. and was easily distracted by her thoughts or her phone during visitation. Ms. B. was often preoccupied with her own personal issues and needed prompting for her to interact with C.B. during visitation. In December of 2021, Ms. Montgomery developed a coaching plan with a goal that Ms. B. only use her phone during the last fifteen minutes of the visits for pictures. Initially, Ms. B. followed the plan of limiting her phone use, but she eventually required additional reminders to put her phone away, and, according to Ms. Montgomery, the phone remained a “constant” issue.
In July of 2023, Ms. B. gave birth to a second child, K.B. Ms. B. had two visits at which both C.B. and K.B. were present. Ms. Montgomery noted that during these visits, Ms. B. had difficulty attending to both children at the same time, and she was not very interactive with C.B. Ms. B. also required coaching on safety issues. Once C.B. became mobile, Ms. B. required reminders to supervise C.B. and keep the child from crawling to another room out of her sight.
Although Ms. B.’s parenting behaviors improved somewhat with coaching, the safety concerns regarding Ms. B.’s parenting of C.B. did not resolve. Due to Ms. B.’s failure to progress with her parenting skills, she was never considered ready to move to unsupervised visitation with C.B.
In February of 2022, the Department referred Ms. B. to Project Chesapeake for substance use treatment. Ms. B. was discharged from the program after two months due to lack of attendance. Ms. B. was re-enrolled in the substance abuse program on May 24, 2022, and discharged on July 28, 2022, due to noncompliance with drug testing requirements. Ms. B. was admitted to the Project Chesapeake mental counseling program on May 24, 2022, and discharged after she failed to attend or reschedule two consecutive mental health appointments.
Meanwhile, in March of 2022, Natalie Johnson, Ms. B.’s assigned case worker for the Department, assisted her with applying for affordable housing and obtaining a housing voucher through the Housing Commission of Anne Arundel County. The processing of Ms. B.’s housing application was delayed because she had initially reported that she was employed in a hospital doing work in security,
but she was unable to provide any paystubs or other verification of employment.
In the summer of 2022, Ms. B. told Ms. Johnson that she was no longer working, and she wanted to supplement her housing application to report that she had zero income. In September of 2022, Ms. Johnson accompanied Ms. B. to her bank to help her obtain copies of her bank statements to verify that she had zero income. The Housing Commission found that there were CashApp transfers on her bank statements, and that fact caused additional delays and required additional verification. Ms. Johnson assisted Ms. B. with obtaining that documentation. Ms. B.’s housing voucher was approved in February of 2023, and her apartment unit was approved in July of 2023. Ms. Johnson assisted Ms. B. with obtaining furniture for her apartment from Hope for All, an organization that provided home furnishings.
Ms. Johnson also submitted a referral for Ms. B. to the Department of Rehabilitation Services (“DORS”), an organization that helps individuals with social, emotional, or cognitive limitations in obtaining and maintaining employment. Ms. Johnson transported Ms. B. to her intake meeting with DORS and attended the meeting with her. At that meeting, Ms. B. was assigned a job coach, and as of January of 2024, Ms. B. had met with her job coach.
In September of 2022, Ms. Johnson assisted Ms. B. with her application to the Development Disabilities Administration (“DDA”) for additional services. Ms. B.’s application was approved, and she became eligible for services in February of 2023. Ms. Johnson contacted Arc of Anne Arundel County (“Arc”), a program that works with people with intellectual, cognitive, and developmental disabilities. In April of 2023, Ms. Johnson transported Ms. B. to her intake appointment with Arc and attended the meeting with her. At the initial meeting, the team thought that in-home services such as cleaning, laundry, and meal preparation would be beneficial to Ms. B., but Ms. B. insisted that she did not want anyone coming into her home, and she did not seem interested in the community support services offered. At the conclusion of the meeting Ms. B. had not reached an agreement to receive any in-home or community support services. Arc followed up with the Department and Ms. B., and Ms. Johnson encouraged Ms. B. to try the program, but Ms. B. was not interested.
Dr. Eric Lane conducted a court-ordered psychological evaluation of Ms. B. on July 11, 2022, and a re-evaluation on December 12, 2023. Dr. Lane diagnosed Ms. B. with an unspecified neurodevelopmental disorder. The disorder impedes her ability to complete educational goals without assistance, limits her ability to maintain employment without training and support, and impacts her ability to process information in a therapeutic setting, especially a group setting. Dr. Lane noted that Ms. B. suffers from post-traumatic stress disorder, bipolar disorder, and unspecified depressive disorder. Dr. Lane also noted that Ms. B. has subaverage intellectual functioning and various cognitive limitations of unknown etiology, as well as severe marijuana use disorder. Ms. B. reported to Dr. Lane that she had begun drinking alcohol at age fourteen and had been using marijuana almost daily since the age of nine.
In May of 2023, the Department referred Ms. B. to Dr. Carol Hamblin, a parenting education expert, who worked with Ms. B. during her visits with C.B. at Harmony House. After eight sessions, Dr. Hamblin assessed Ms. B.’s ability to independently initiate safe
or appropriate parenting behavior at a level “3” on a 10-point scale. Dr. Hamblin indicated concern about Ms. B.’s ability to parent C.B. in an environment less controlled than Harmony House.
Following the June 21, 2023 permanency planning hearing, the court changed C.B.’s permanency plan from reunification to adoption by a non-relative.
On August 18, 2023, the Department filed a petition for guardianship with right to consent to adoption and/or long-term care short of adoption. The juvenile court held the guardianship hearings on January 30, January 31, February 1, February 2, March 4, March 19, March 21, March 22, March 26, and April 3, 2024. Ms. B. attended the hearings, testified, and was represented by counsel. Counsel for C.B. supported the Department’s guardianship petition.
Ms. B. testified that she does not believe that she needs substance abuse or mental health treatment. Ms. B. stated that she had recently been treated at a mental health facility that she referred to as “M & M,” but she “got discharged from there because of health problems. Well, not intending [sic], but I was having health problems.” She said she had suffered a back injury from an epidural injection during the birth of her second child, and as a result of the injury, she could not tolerate sitting for long periods of time and could not hold C.B. very long during visitation.
Ms. B. testified that she had a difficult pregnancy with her second child, K.B., who was born in July of 2023. Beginning when Ms. B. was fifteen weeks pregnant with K.B., she experienced constant pain and had to sit frequently. During this time, she struggled with diapering C.B. and playing with her during visits.
After giving birth to C.B., Ms. B. continued using marijuana daily or every other day “as soon as [C.B. was] asleep[.]” Ms. B. testified that “once it started being stressful,” her marijuana use “picked up to morning and night, but [C.B.] would be still asleep” and the marijuana “would be out of [Ms. B.’s] system by the time [C.B.] would wake up or it [was] feeding time.” Ms. B. submitted six urine samples for drug testing between May of 2022 and May of 2023, and five of those six samples tested positive for marijuana.
As of the time of the termination of parental rights (“TPR”) hearing, Ms. B. had not yet completed the court-ordered parenting assignments.
C.B.’s foster parents, Mr. and Mrs. L., testified at the hearing. Mrs. L. testified that C.B. has lived with her and her husband, Mr. L., since April of 2021, when C.B. was four months old. Mr. and Mrs. L. have a ten-year-old son, and C.B.’s half-sister, K.B., also lives with them. Mrs. L. described C.B. as a spunky, lively, sweet, and loving child. C.B. is doing well, growing and learning, and she has reached the appropriate milestones for her age. She attends a preschool coop program and a church preschool program where she has friends and participates in various activities.
On April 3, 2024, the juvenile court delivered its bench ruling on the TPR petition. After hearing arguments and considering the factors under Md. Code (1984, 2019 Repl. Vol.), § 5-323(d) of the Family Law Article (“FL”), the juvenile court ruled that “continuing the parental relationship is not in the best interest of [C.B.,]” and the court terminated Ms. B.’s parental rights to C.B.
Ms. B. noted a timely appeal.
STANDARD OF REVIEW
We review TPR decisions under three interrelated standards of review:
When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule 8-131(c) applies. Second, if it appears that the court erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the court founded upon some legal principles and based upon factual findings that are not clearly erroneous, the court’s decision should be disturbed only if there has been a clear abuse of discretion.
In re Adoption/Guardianship of C.E., 464 Md. 26, 47 (2019) (cleaned up) (quoting In re Adoption/Guardianship of Ta’Niya C., 417 Md. 90, 100 (2010)).
To warrant reversal, the trial court’s ultimate decision must “be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re Shirley B., 419 Md. 1, 19 (2011) (quotation marks and citation omitted).
DISCUSSION
I.
Ms. B. contends that the juvenile court erred in finding that the Department made reasonable efforts at reunification before terminating her parental rights. She argues that the services offered did not specifically address her particularized needs, that the case workers assigned to her lacked the requisite experience or education needed to fully support her, and that the services needed from DORS and DDA were not offered in a timely manner.
The Department asserts that the juvenile court did not err in finding that the services offered by the Department were appropriately tailored to her needs, and that Ms. B.’s failure to follow through in fully availing herself of those services contributed to the court’s finding of her unfitness. The Department asserts that the evidence supported the court’s findings that the Department offered appropriate services in a timely manner and made a good faith effort to fulfill its obligations under the service agreements.
Under Maryland law, parents have a constitutionally protected interest in raising their children without undue State interference, grounded in the presumption “that it is in the best interest of children to remain in the care and custody of their parents.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007). In considering a petition to terminate parental rights, the juvenile court must balance the fundamental rights of parents with the State’s responsibility to protect children from abuse and neglect. Id. at 497. The court’s paramount consideration is the best interest of the child. Id. at 496.
The presumption that it is in the best interest of a child to remain in the care and custody of his or her parent “may be rebutted upon a showing either that the parent is ‘unfit’ or that ‘exceptional circumstances’ exist which would make continued custody with the parent detrimental to the best interest of the child.” Id. at 495 (emphasis added). In determining whether termination of parental rights is in the child’s best interest, the juvenile court must give careful consideration to the factors set forth in FL § 5-323(d). Id. at 499.
With respect to reunification efforts, FL § 5-323(d)(1)(ii) requires that the juvenile court consider—along with numerous other factors listed in FL § 5-323(d)—“the extent, nature, and timeliness
of services offered by a local department to facilitate reunion of the child and parent[.]” FL § 5-323(d)(2)(iv) provides that the juvenile court must also consider “whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement[.]” The Department is required “to make ‘reasonable efforts’ to ‘preserve and reunify families’ and ‘to make it possible for a child to safely return to the child’s home.’” Rashawn H., 402 Md. at 500 (quoting FL § 5-525(d)). The Department’s efforts, however, “need not be perfect to be reasonable[.]” In re James G., 178 Md. App. 543, 601 (2008).
Indeed, the Maryland Supreme Court has recognized that there are limits to what the Department is expected to do. Rashawn H., 402 Md. at 500. The Department “is not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child.” Id. The Department must “provide reasonable assistance” to the parent to try to achieve these goals, but the Department is not at fault “if the parent, despite that assistance, remains unable or unwilling to provide appropriate care.” Id. at 500-01.
In C.B.’s case, the juvenile court found that the Department had made “a good faith effort to fulfill their obligations under any agreements, including efforts to re-engage Ms. B. with services.” The court specifically referenced the Department’s referrals to various support services, including parent coaching and visitation assistance, placement with an interventionist through the family support center, referrals for substance abuse, and mental health care. The court also found that the Department had assisted Ms. B. with applying for and obtaining a housing voucher, obtaining her GED, and obtaining a Maryland State Identification card. And the Department had provided assistance with banking affairs and referrals to DORS and DDA. Although Ms. B. had not succeeded in finding consistent employment, the Department had referred her to a job coach.
The court determined that, overall, the Department had provided services in a timely manner. The court noted that some things could have been done more promptly, such as obtaining DDA approval and transitioning to finding a different organization once it became known that Arc was not a viable option. But the court also pointed out that some of the delay “lies at the feet of both Ms. B. and the Department.” The court found that Ms. B often “seemed to be resistive of assistance” and that her efforts in fulfilling her service agreement obligations were “somewhat kind of lukewarm.” She did not complete the mental health counseling programs at Project Chesapeake and insisted that she did not need mental health or substance abuse treatment.
Ms. B. does not specify the nature of the services that she believes she required from the Department, and the record does not support her contention that the services she received were unreasonable. The record demonstrates that the Department offered services designed to support Ms. B.’s cognitive limitations and assist her with daily activities, such as the Arc program, but that Ms. B. declined to participate in that program. Ms. Montgomery, the parenting coach referred by the Department, was experienced in coaching parents with cognitive and developmental limitations, and she worked closely with Ms. B. to address her specific challenges
and model appropriate parenting skills. The record shows that the Department made numerous efforts to provide services tailored to Ms. B.’s intellectual challenges, and she generally resisted their efforts.
We agree with the Department that the record does not support an appellate finding that the juvenile court erred by failing to comply with the requirements of FL § 5-323(d).
II.
Ms. B. contends that the juvenile court erred in finding that exceptional circumstances warranted termination of her parental rights. She argues that, in reaching its conclusion, the juvenile court erred by relying almost exclusively on C.B’s relationship with her foster parents, and failing to find that a continued relationship with C.B. would be detrimental to C.B.
The Department argues that the juvenile court properly found that Ms. B. was unfit to remain in a parental relationship with C.B., and that exceptional circumstances existed warranting the termination of Ms. B.’s parental rights, even though the court was not required to find both unfitness and exceptional circumstances. The Department contends that the juvenile court properly considered the required statutory factors in assessing C.B.’s best interest. And the Department asserts that C.B.’s bond with her foster parents was only one of the many factors relied on by the court in reaching its determination that guardianship was in C.B.’s best interest. We agree with the Department’s arguments.
A juvenile court’s decision to terminate parental rights must be based upon a determination that either the parent is unfit or that exceptional circumstances exist to warrant termination. Rashawn H., 402 Md. at 495; FL § 5-323(b). If the court decides that a parent is unfit, “it [does] not need to make any findings with respect to ‘exceptional circumstances’ requiring the termination of parental rights.” In re Adoption/Guardianship of Amber R., 417 Md. 701, 718 n.13 (2011). In this case, because the juvenile court found that Ms. B. was unfit, it was not required to address whether exceptional circumstances also existed. See, e.g., In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 736 (2014) (explaining that, once the juvenile court determined that the parent was unfit, the parent’s arguments regarding exceptional circumstances were “beside the point”). Accordingly, Ms. B.’s argument that the juvenile court erred in granting the guardianship petition because the record did not support a finding of exceptional circumstances is without merit.
In this case, the court explained in detail the basis for its finding that Ms. B. was unfit to maintain a parental relationship with C.B.: Ms. B., in this case, is unfit because she has failed to comply with the terms of the [c]ourt’s orders and service agreements[.] . . . Ms. B. has not availedherself fully of the services [offered] in order to remedy the reasons that required [C.B.’s] placement in the Department’s care. And there is [no] indication of any predictable time period within which Ms. B. could rehabilitate and remedy these deficiencies.
In particular, I speak to . . . those deficiencies [in] parenting skills to be able to safely and substantially care for [C.B.] in the future, or if Ms. B. would ever be able to safely and effectively parent [C.B.] on her own.
I further find Ms. B. has been provided sufficient opportunity by the Department to address mental health issues raised at her psychological evaluation. And she has been resistive or
uncooperative with the programs that were arranged to help her resolve issues as well as resistive and sometimes dismissive of the need to correct and rehabilitate anything in her behavior. Ms. B. has been inconsistent at times in visitation with [C.B.], especially more recently, and continues to need supervision to support and manage [C.B.’s] needs. Ms. B. has a history of making neglectful decisions about [C.B.] that have caused [C.B.’s] life and safety to be jeopardized while [C.B.] was – and certainly, initially living with Ms. B. for the first three, three and a half months. * * *
Ms. B. did not re-engage in mental health and substance abuse treatment possibilities until recently and suggested that she does not need any help or assistance with anything to improve herself. That came at the very end of the case . . . testimony. Under the totality of the circumstances as well as [the] speculative nature of any future corrective action on Ms. B.’s part, this [c]ourt also finds by clear and convincing evidence, exceptional circumstances exist to cause this [c]ourt to conclude, by the evidence presented, it is no longer in [C.B.’s] best interest to continue in the maternal relationship. It is not in [C.B.’s] best interest to continue to wait for the Department to make additional attempts to remedy Ms. B.’s circumstances and to keep [C.B.] in the limbo of foster care for an indeterminate period of time.
In re Adoption/Guardianship of Alonza D., 412 Md. 442 (2010), on which Ms. B. relies, is factually distinguishable. In that case, the Supreme Court of Maryland reversed the juvenile court’s findings that exceptional circumstances existed based on the children’s six-year placement in foster care and their apparent bond with their foster parent, in the absence of any finding that a continued relationship with the father would be detrimental to the children. 412 Md. at 460. The circuit court found no evidence in that case suggesting that the father was an unfit parent. Id. at 451. To the contrary, the court noted that the evidence showed that there was no question that the father had “the emotional, physical, mental
ability to be a parent for [the children].” Id. at 452.
Here, the juvenile court did not improperly give undue consideration to C.B.’s bond with her foster family and adjustment to her placement. Under FL § 5-323(d)(4)(i), the juvenile court was required to consider “the child’s emotional ties with . . . others who may affect the child’s best interests significantly[,]” and under FL § 5-323(d)(4)(ii), the court was also required to consider the child’s adjustment to her placement. See also In re Adoption of Jayden G., 433 Md. 50, 102 (2013) (explaining that a court must consider the “reality of a child’s life” (cleaned up)).
With regard to placement, the court found that C.B. had lived with her foster family since April of 2021, and she was “in a happy, loving, and positive relationship with [her] foster family.” The court noted that C.B. was enjoying a good relationship with her foster brother, foster parents, foster grandparents, and the family dog. She was also engaging with neighborhood children and having playdates with children in the church community and preschool. Although the evidence indicated that C.B. had adjusted well to her placement, the court did not indicate that C.B.’s bond with her foster parents was the controlling factor in the court’s decision.
It appears to us that the juvenile court placed greatest weight on its finding that Ms. B.’s unfitness resulted from her inability to safely and effectively parent C.B. on her own, and her repeated displays of resistance to obtaining the services she needed to remedy the deficiencies in her parenting skills. The court found that, due to Ms. B.’s lack of progress and the unlikely prospect that she would take appropriate corrective action within a predictable period of time, it was detrimental to C.B. to continue to maintain a maternal relationship with Ms. B.2 See Jayden G., 433 Md. at 103 (concluding that it was no longer in the child’s best interest to continue the parental relationship “in the face of the [m]other’s persistent inability to take charge of her life”).
We conclude that the juvenile court did not err in finding that Ms. B. was unfit to maintain a parental relationship with C.B., and that the termination of Ms. B.’s parental rights was in C.B.’s best interest.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 A “child in need of assistance” (“CINA”) is one who requires court intervention because the child has been abused or neglected, or has a developmental disability or mental disorder, and his or her “parents, guardian, or custodian are unable or unwilling to give proper
care and attention to the child and the child’s needs.” Md. Code (1974, 2020 Repl. Vol.), § 3-801(f) of the Courts & Judicial Proceedings Article.
2 The court found “[T]here is not [an] indication of any predictable time period within which Ms. B. could rehabilitate and remedy these deficiencies.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s order establishing the child support arrearage. Child support may not be unilaterally withheld when parenting time is denied, the circuit court was not required to consider the marital award when entering judgment based on father’s failure to make child support payments and the circuit court acted within its discretion in calculating the amount of the judgment.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
in September of 2019, seeking payments from Father to support the parties’ two children. In October of 2019, Father filed a motion to modify child support, stating that his income had substantially decreased due to being laid off from employment. However, the relief he sought was not a decrease in child support payments; instead, he requested that the circuit court order child support be paid directly to the person who has custody, or for any other appropriate relief.
Following Father’s motion to modify child support, the circuit court consolidated the two pending cases. As part of the consolidation order, the court indicated that Father’s request for modification “shall follow the schedule of events outlined in [the Lead Case].” It does not appear from the record that the circuit court ruled on Father’s motion to modify child support during the pendency of these matters.
In July of 2023, Mother filed a petition for contempt, asserting that Father had failed to make child support payments from October of 2019 through June of 2021 (when the parties’ second child graduated from high school). As a remedy, Mother sought back payment of child support.
This case arises from an order establishing a child support arrearage. Appellant has presented six questions on appeal, which we have consolidated into one:
Did the circuit court err in granting the request to establish a child support arrearage?1
For the reasons to follow, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Ahmed Mohamed (“Father”) and Zemzem Bedada (“Mother”) were married in 2001. The parties had two children, born in 2001 and 2003. In 2011, Mother initiated an action for absolute divorce, or in the alternative, limited divorce. In July of 2013, the circuit court entered a consent custody order memorializing the parties’ agreement as to custody, visitation, and marital property. Under this agreement, Mother retained sole legal and physical custody of the children. The order did not address child support.
In August of 2018, Father filed a motion seeking to modify the 2013 consent custody order. Mother responded, seeking child support from Father. On April 10, 2019, the circuit court entered a new consent custody order that provided Father with visitation with the children every other weekend and required Father to pay child support to Mother in the amount of $1,468 per month on the first of each month.
Father filed a complaint for absolute divorce in July of 2019 (“the Lead Case”). Mother filed a counter complaint for absolute divorce
Father responded to the contempt petition in September of 2023. After addressing some of the procedural history, Father acknowledged that due to various financial hardships and job losses starting in October of 2019, he had not made all the child support payments. He indicated that in December of 2019, after he obtained employment, he had “reached out to [Mother] to resume the child support on condition that [Mother] meets her obligation of making the children accessible for visitation[.]” He further indicated that he had reached out to the children to offer direct financial support to them. He also stated that he had made payments for several months towards a vehicle for one of the children, which he believed should qualify as child support in lieu of payments ordered to be made to Mother per the child support order.
On December 22, 2023, the circuit court conducted a hearing on the contempt petition. Mother contended that Father had not paid any child support since October of 2019. Father contended that he should be excused from making child support payments because he had been laid off from employment during portions of the period requested, and because the children had not attended his parenting time. He also informed the court that no ruling had been made on his request to modify child support.
The circuit court found that although Father had not made payments, there were times when Father “did not have the ability to pay more than the amount that he actually did pay.” Therefore, the circuit court did not find Father in contempt of the child support order. However, the circuit court stated that “under the request . . . to pay back child support under the [request for] appropriate relief,” the court would issue a judgment establishing the child support
arrearage.
On December 29, 2023, the circuit court issued a written order granting in part and denying in part Mother’s petition for contempt, wherein it established a child support arrearage of $30,468.00 which were represented to be Father’s missed child support payments from October 1, 2019 through June 30, 2021. The circuit court did not order any prejudgment interest. Father noted a timely appeal to this court.
DISCUSSION
A. Party Contentions
Father contends that the circuit court erred in establishing the child support arrearage. He argues first that the circuit court should not have ordered a child support arrearage because Father had requested modification of his payment obligation, and that request remained pending. He also contends that he should not have been required to make child support payments for months when visitation was refused. He next asserts that the circuit court erred in establishing the child support arrearage because it did not consider the marital award or the parties’ comparative financial statuses. Finally, he argues that the circuit court’s order was in error due to the absence of supporting documents used to calculate the arrearage.2
Mother did not file a brief in this appeal.
B.
Standard of Review
“Generally, this Court will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.” Kowalczyck v. Bresler, 231 Md. App. 203, 209 (2016) (citing Gertz v. Md. Dept. of Env’t, 199 Md. App. 413, 424 (2011)). An abuse of discretion may occur “where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles.” Sumpter v. Sumpter, 436 Md. 74, 85 (2013) (quoting North v. North, 102 Md. App. 1, 13–14 (1994)) (further citation and quotation marks omitted). Where an order involves interpretation and application of statutory and case law, the standard of review is de novo. Kowalczyck, 231 Md. App. at 209. “A factual finding is clearly erroneous if there is no competent and material evidence in the record to support it.” Senez v. Collins, 182 Md. App. 300, 322 n.14 (2008) (quoting Hoang v. Hewitt Ave. Assocs., LLC, 177 Md. App. 562, 576 (2007)).
C. Analysis
The core of Father’s argument is that the circuit court erred or abused its discretion in establishing the child support arrearage because it declined to afford any weight to the justifications Father contended should have excused his lack of payment. We address each of his contentions in turn.
i. The circuit court did not abuse its discretion in establishing the arrearage because the motion to modify child support did not request relief in the form of a decrease in child support.
Father first argues that because he had filed a request for a modification of child support payment that was not ruled on, the circuit court erred in establishing the child support arrearage.
Per Maryland Code (1984, 2019 Repl. Vol.), § 12-104(a) of the Family Law Article (“FL”), a court “may modify a child support award subsequent to the filing of a motion for modification and upon
a showing of a material change of circumstance.” In general, “[a]n application to the court for an order shall be by motion which . . . shall set forth the relief or order sought.” Md. Rule 2-311(a) (emphasis added).
In this matter, Father filed a form document titled motion for modification, stating that his income had substantially decreased due to employment loss. In the portion of the form that provided parties an opportunity to indicate the relief being sought, Father did not request a decrease in his child support obligation, which was one of the available options. Instead, he selected an option requesting that the circuit court order child support be paid “[d]irectly to the person who has custody.” Pursuant to the custody order, Mother had primary custody of the children, and the terms of that existing order did require Father to pay child support directly to Mother. Therefore, the motion for modification did not seek any additional or new relief. The circuit court did not abuse its discretion in establishing a child support arrearage as of October of 2019 because Father’s request for modification did not seek the relief he now seems to request.
ii. The circuit court did not abuse its discretion in establishing the arrearage because child support may not be unilaterally withheld when parenting time is denied.
Maryland courts have long held that parents have a legal obligation to support their children. Houser v. Houser, 262 Md. App. 473, 490 (2024). The child support obligation of a parent is a legal obligation imposed by law. Middleton v. Middleton, 329 Md. 627, 633 (1993). This obligation “is not perfunctory, to be performed only at the voluntary pleasure or whimsical desire of the parent.” Id. (quoting Palmer v. State, 223 Md. 341, 351 (1960)). Further, “a parent may not willfully fail to provide support of [their] minor child.” FL § 10-203(a). The requirement that parents support their children may not be avoided in instances where parenting time is denied or not exercised. See Houser, 262 Md. App. at 490; Middleton, 329 Md. at 633; FL § 10-203(a); see also Stancill v. Stancill, 286 Md. 530, 537 (1979) (holding that enforcement of child support and parenting time are distinct, and “the well-being of a child should not be rendered dependent on the virtuous performance of all obligations by each parent.”). Courts in other states have held the same.3
Here, Father argued to the circuit court that he was justified in not paying the child support order because Mother did not provide him access to the children. The circuit court correctly disregarded this argument, as enforcement of child support and parenting time are distinct and not contingent upon each other. See Stancill, 286 Md. at 537.
The circuit court did not abuse its discretion in establishing a child support arrearage because child support may not be unilaterally withheld when parenting time is denied.
iii. The circuit court was not required to consider the marital award when entering judgment based on Father’s failure to make child support payments.
Under Maryland Rule 2-648(a), “[w]hen a person fails to comply with a judgment mandating the payment of money, the court may . . . enter a money judgment to the extent of any amount due.” Pursuant to this rule, “a circuit court may enter a money judgment to the extent of any amount due if a party fails to comply with a judgment mandating the payment of money.” Kona Properties, LLC v. W.D.B. Corp., 224 Md. App. 517, 540 n.22 (2015).
In this case, the circuit court was not charged with reviewing
the parties’ assets, debts, or other property. What was at issue in the contempt hearing was whether Father had complied with the court’s April 2019 order requiring him to pay child support, which he admitted he had not done. The amount of the marital award was unrelated to that analysis.
Because the marital award was unrelated to Father’s lack of compliance with the child support order, the circuit court did not abuse its discretion in not considering the marital award.
iv. The circuit court acted within its discretion in calculating the amount of the judgment.
Father’s argument centers around the absence of supporting documentation used to calculate the arrearage. He compares the circuit court’s calculation of the missed child support payments with the process to establish the child support payments initially, where both parties’ paystubs were considered. Father’s contention is misplaced.
Under Maryland Rule 2-648(a)—one of the rules cited in Mother’s form petition for contempt—“[w]hen a person fails to comply with a judgment mandating the payment of money, the court may . . . enter a money judgment to the extent of any amount due.” Pursuant to this rule, “a circuit court may enter a money judgment to the extent of any amount due if a party fails to comply with a judgment mandating the payment of money.” Kona Properties, LLC, 224 Md. App. at 540 n.22. Nothing in this rule requires a court to reexamine the parties’ respective incomes as it would when entering an initial child support order4 or when modifying a child support obligation.5 All that is required is for the court to determine whether a person has failed to comply with the order mandating the payment of money.6 Md. Rule 2-648(a); Kona Properties, LLC, 224 Md. App. at 540, n.22.
In Maryland, “[a]n individual who has attained the age of 18 years and who is enrolled in secondary school has the right to receive support and maintenance from both of the individual’s parents” until, as relevant here, the individual graduates from secondary school or
reaches the age of 19 years. Md. Code (2014, 2019 Repl. Vol.), Gen. Provis. § 1- 401(b). In addition, where a child support order is for more than one child and one child reached the age of majority, a party ordered to pay child support must continue to “pay the full amount of the award until the younger child attains majority or until the amount is modified by the court.” Quarles v. Quarles, 62 Md. App. 394, 403 (1985). Finally, the determination of whether a party’s unilateral decision to give payments directly to children in lieu of child support should be credited as child support is a decision left to the discretion of the circuit court. See Bradford v. Futrell, 225 Md. 512, 518–19 (1961).
The circuit court was within its discretion to enter a monetary judgment to the extent Father failed to comply with the order mandating his child support payments. The April 10, 2019 order required Father to pay $1,468 per month. Although the order did not specify when the payments would stop, the parties’ second child’s right to receive support did not end until June of 2021, when he graduated from high school. The payments missed by Father represented twenty-one months, beginning with the first missed payment in October of 2019 through the high school graduation of the parties’ second child in June of 2021. The sum of these payments would equal $30,828.00 (i.e., 21 x $1,468 = $30,828.00). However, the circuit court apparently elected to decrease that sum by $360.00 in Father’s favor, resulting in a judgment of $30,468.00.7
The decision regarding whether to credit the in-kind gifts— consisting of payments towards an automobile that Father unilaterally provided one of the children between June of 2020 and May of 2021—as qualifying in lieu of the child support obligation was left to the discretion of the circuit court. We find no abuse of discretion in the court’s election not to do so. See Bradford, 225 Md. at 518–19.
Because the circuit court correctly applied the law, we see no error or abuse of discretion with respect to the circuit court’s order establishing a child support arrearage.
1 Rephrased from:
1. Why [did] the trial court fail[] to ask the Appellee the reason for filing the contempt for failing to pay child support on July 24, 2023 for a child support that she stopped receiving since November 1, 2019 when there is a recorded Court Order . . . filed by the Appellant to modify child support delivered to the Appellee by first class mail, email and text message as a PDF using the contact information on the Courts record while the Appellee was represented by attorneys who have access to the court’s record online[].
2. Was the use of the Prince George’s County Sheriff’s Department to deliver the summon for the alleged Contempt to Pay Child Support petition of the Appellee both on August 26, 2023 and on November 22, 2024 justifiable when the Appellant was a victim of parental right violation both [] by Appellee and the [t]rial [c]ourt for over five years at the time?
3. As a family division of the [t]rial [c]ourt, it is the responsibility of the [c]ourt to ask the Appellee what she did to marital properties that was solely left in her custody before allowing her to file the petition for the contempt to pay child support. Why [did] the [t]rial [c]ourt fail[] to ask this question both on July 24, 2023 and during the hearing on December 22, 2023?
4. Why did the trial [c]ourt ignore[] all the information in the [c]ourt’s record as well as the additional information filed by the Appellant in response to the July 24, 2023 contempt to pay child support and allow[] the Appellee to file the contempt and finally decid[e] in favor of the Appellee on [the] December 22, 2023 hearing?
5. During the trial for property division in the Circuit Court of Montgomery County and the subsequent appeal[] of the case in the Court of Appeals, the Appellee was represented by more than one attorney. Why did the Appellee file[] the Contempt to pay child support by herself and the Court end up granting her child support amount that was not even requested by the Appellee?
6. What was the real intention of filing the petition for Contempt to Pay Child Support by the Appellee that started on July 24, 2023 and was concluded on December 22, 2023 granting the Appellee unjustifiable monetary award?
2 Father also states that the purpose of Mother’s filing the petition for contempt “was to [] create a public scene[.]” However,
nothing in his discussion of this statement concerns the circuit court’s ruling or order, and therefore we decline to address this issue.
3 Welch v. Welch, 519 N.W.2d 262, 271 (Neb. 1994) (holding that “the custodial parent’s right of support and the noncustodial parent’s right of visitation are entitled to separate enforcement. A failure to pay child support does not justify a parent’s unilateral withdrawal of visitation rights, and a failure to allow visitation does not justify a parent’s unilateral nonpayment of support.”); Matter of Adoption of CJML, 458 P.3d 53, 55 (Wyo. 2020) (holding that “[i]t is undisputed that denial of visitation does not excuse a parent from payment of child support.”); Sampson v. Johnson, 846 A.2d 278, 287 (D.C. 2004) (statingthat “[p]ublic policy requires the treatment of support of children and visitation rights as distinct problems.”); Resnick v. Zoldan, 520 N.Y.S.2d 434, 436 (N.Y. App. Div. 1987) (holding that a parent’s unilateral withholding of support due to child’s refusal to visit is an “improper reason” to fail to pay support); In re PS, 535 So.2d 1052, 1056 (La. Ct. App. 1988) (holding that “[t]he support of a child is one of the strongest obligations the law imposes upon a parent[,]” and that “[d]enial of visitation privileges does not justify the failure to pay child support.”); Coleman v. Burnett, 312 S.E.2d 627, 628 (Ga. App. 1983) (holding that “[d]enial of visitation rights does not justify nonpayment of support money.”).
4 See FL § 12-203(b).
5 See FL § 12-204; see also Cutts v. Trippe, 208 Md. App. 696, 710 (2012) (“Once a material change in circumstances has occurred, the [circuit] court must apply the guidelines in Sections 12-202 to 12-204 of the Family Law Article to determine the level of support to which the child is currently entitled.”) (internal citation and quotation marks omitted).
6 In addition, before a court may hold an alleged contemnor in constructive civil contempt in a support enforcement action, it must also consider the alleged contemnor’s ability and efforts to pay the support obligation, as well as limitations. Md. Rule 15-207(e). This Rule is inapplicable to the current case, as the circuit court declined to hold Father in contempt.
7 Mother did not file a brief challenging the circuit court’s reduction of the award in favor of Father. Therefore, because it was not raised, we will not address the issue. Westminster Mgmt., LLC v. Smith, 486 Md. 616, 674 (2024) (“If a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.”) (internal citation and quotation marks omitted).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of father’s motion to revise an order granting mother sole legal and primary physical custody of the two children and granting father supervised visitation with the children. Father’s arguments on appeal attack credibility and weight findings made by the circuit court; they do not demonstrate any abuse of discretion by the circuit court, much less an egregious error or a grave reason to justify reversal.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
verbally abused” her. She asked the court to award her sole legal and primary physical custody of the children and to order Father to pay child support.
Meanwhile, prior to filing the divorce complaint, Mother filed a petition for protection from domestic violence and child abuse on behalf of herself and the children, in the District Court of Maryland for Montgomery County. On May 23, 2023, the district court issued a temporary protective order.
On July 19, 2023, the district court held a final protective order hearing. Father appeared with counsel. Without admitting the allegations and without a judicial finding of abuse, Father consented to the entry of a final protective order. The court granted Mother’s request that the order be effective for a one-year period (through July 19, 2024), and ordered Father not to have contact with Mother or the children.
In a still pending divorce case, the Circuit Court for Montgomery County entered an order granting L.O.1 (“Mother”), the appellee,2 sole legal and primary physical custody of the two children she shares with her husband, V.O. (“Father”), the appellant, and granting Father supervised visitation with the children (“the Custody Order”). Eleven days later, Father filed what he called a motion to alter or amend the Custody Order, which in fact was a motion to revise under Rule 2-535(a). The circuit court denied the motion.
Father noted an appeal, presenting two issues, only one of which properly is before us for decision.3 We rephrase that issue as follows: Did the circuit court abuse its discretion by denying Father’s motion to revise the Custody Order?
As we shall explain, the circuit court did not abuse its discretion in denying Father’s motion to revise. Accordingly, we shall affirm the order of the circuit court.
FACTS AND PROCEEDINGS
Mother and Father married in June 2013. They have two daughters, An., age 10, and At., age 6. In August 2022, Mother and the children vacated the marital home in Milford, Delaware, and moved in with Mother’s parents, in Burtonsville, Maryland.
A. The Divorce Complaint and Petition for Protection from Abuse
In June 2023, in the Circuit Court for Montgomery County, Mother filed a complaint for limited divorce or, in the alternative, absolute divorce. As pertinent, she alleged that during the marriage, Father had physically abused the children and had “physically, sexually, and
In September 2023, Father answered the complaint for divorce and filed a countercomplaint for absolute divorce. He denied abusing the children, alleged that Mother was engaging in parental alienation, and asked the court to grant joint legal custody, with tie-breaking authority vested in him, and shared physical custody.
The circuit court bifurcated the divorce case, with the issues of custody, visitation, and child support to be decided in phase one and marital property and grounds for divorce to be decided in phase two.
In January 2024, the court entered a pendente lite order modifying the final protective order to permit Father supervised access with the children every other weekend at a visitation center.
B. The Merits Hearing
On March 19 and 20, 2024, the court held a merits hearing on custody, visitation, and child support. Mother represented herself and Father was represented by counsel. In her case, Mother testified and called her mother (“Grandmother”) and Father as witnesses. In Father’s case, he testified on his own behalf.
Grandmother testified about her positive observations of Mother’s parenting and her negative opinion of Father’s parenting. She characterized Mother as caring, calm, and loving with the children and Father as “easily . . . annoyed” and selfish.
In Mother’s case, Father testified that he had most recently seen the children three days earlier, on March 16, 2024, for supervised visitation under the terms of the pendente lite order. Before then, he had not seen the children since December 7, 2022. He explained that he did not see them more often because of the distance between where he was living in Delaware and Mother’s parents’ home in Montgomery County. Also, he did not see them while he was not permitted to under the terms of the temporary and final protective orders.
Father acknowledged that on one occasion after Mother and the children moved out, but before the entry of the temporary protective order in May 2023, he drove from Delaware to Mother’s parents’ home very early in the morning, took the Lexus SUV that Mother had been using, and in its place left her an older-model Toyota Camry. He did not tell Mother he was coming or arrange to see the children.
Father denied that he had ever hit An., that he had failed to feed At. on one occasion when Mother was recovering from surgery, and that he ever had forced himself on Mother sexually.
Mother testified that her marriage to Father was “an abusive relationship[.]” She testified that his abuse of her was “mostly sexual abuse” and that he raped her during the marriage. Father began hitting and pinching An. when she was around two or three years old. Mother described an incident that took place in July 2022, when An. was seven years old. Mother was out of the house when she received a text from Father saying he was extremely angry because An. had sprayed half a bottle of perfume. When Mother got home, she found Father in the bathroom with An., hitting her. An.’s eye swelled up. Mother introduced into evidence three photographs she had taken of An.’s face that day that showed she had a swollen right eye.
On another occasion that same month, An. and At. came into Mother and Father’s bedroom early in the morning and Father told them to leave. When An. did not move fast enough in response to Father’s directive, he began “pounding her.” Mother screamed at An. to run into her room and lock the door. Also in July 2022, Father threw An. to the floor in front of Mother, causing An.’s ear to bleed.
Mother further testified that in July 2022, she underwent outpatient surgery. Father drove her to the surgical center and brought her home, where she went to sleep. Late that night, Mother noticed that At., then age 3, was wandering around the house. Upon questioning At., Mother learned that she had not eaten all day and was hungry. Father told Mother that he had made breakfast for At. but she had not wanted to eat what he had prepared. For that reason, he did not give her anything else to eat for the rest of the day.
In his case, Father testified that when Mother became angry, she was destructive, throwing objects and breaking things. He and Mother had many arguments during the marriage, and he was the one who “actually got hit in the marriage.” He discussed an incident in 2017, when he called 911 because Mother was breaking plates and holding a knife.
Father described his relationship with his children prior to the parties’ separation as loving and active. He denied the specific incidents of abuse that Mother had testified about. He explained that when An. misbehaved, he used time outs. When At. misbehaved, he intervened directly because she was too young to understand a time out. In contrast, he observed Mother shout and scream at the children when they misbehaved and hit them in the head if they moved when she was fixing their hair.
Father acknowledged that he did not travel to Montgomery County to see his children between August 2022, when Mother and the children moved out, and May 2023, when the temporary protective order was entered. He did see them once, in December 2022, when Mother brought them to the marital home. He spoke to them by telephone a few times during that nearly ten-month stretch.
Father agreed that Mother should maintain primary physical custody of the children but sought unsupervised access every other weekend from Friday through Sunday, as well as some holidays and vacation time. He asked to share legal custody with Mother and to
be given tiebreaking authority if they could not reach agreement on important decisions affecting the children.
C. The Memorandum Opinion
On April 2, 2024, the circuit court issued a memorandum opinion and order. After summarizing the testimony it found relevant, the court analyzed the best interest factors set out in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1978), and Taylor v. Taylor, 306 Md. 290 (1986). We discuss the factors pertinent to our analysis.
Fitness of the Parents
The court found, based upon photographs of An. admitted into evidence and Mother’s and Father’s testimony, including demeanorbased credibility assessments, that Father had “committed much of the abuse as described by Mother.” The court observed that Mother had “overstate[d] how often the abuse occurred[,]” but found her testimony to be credible with respect to the three specific incidents of abuse against An. in July 2022. The court found that Father had hit An. because she sprayed perfume, that he had “pounded her” because she did not leave her parents’ bedroom quickly enough, and that he had “thr[own] [An.] to the ground[,]” causing her ear to bleed. The court also found that Father had neglected At. that same month by failing to feed her while Mother was recovering from surgery. The court rejected Father’s testimony that Mother had hit the children, stating that it “d[id] not believe Father’s testimony on these points.”
Based on its findings that Father had abused An. and had neglected At., and that Mother had not abused or neglected the children, the court concluded that Mother was a fit person to have custody and that Father was not a fit person to have custody. It further determined that Md. Code (1999, 2019 Repl. Vol.), Fam. Law §§ 9-101 and 9-101.14 applied and would govern Father’s access to the children.
Character and Reputation of the Parties
The court found that Father had “a severe problem with anger and violence” and that his testimony characterizing himself as the “peacemaker” was “simply not true.”
Desire of the Natural Parents and Agreements Between the Parties
The parties agreed that Mother should have primary physical custody of the children. Mother’s position was that she should receive sole legal custody and that Father should have no access. Father sought unsupervised access and joint legal custody with tiebreaking authority.
Length of Separation from the Natural Parents
The court found that Father’s efforts to see his children in the time since Mother had moved to Burtonsville with them had been “underwhelming, at best.” It recognized that after May 2023, when the temporary protective order was entered, Father was not permitted contact with the children. It found, however, that Father had “made little effort to see the girls” in the period preceding that order. Consequently, at best, the children barely knew him and, at worst, they might “feel they don’t matter to him.” The court noted
that supervised visitation could help to “remedy this situation.”
Prior Voluntary Abandonment or Surrender
The court found that Father’s efforts to “communicate with his daughters between August of 2022 and May of 2023 were less than impressive[,]” and he failed to produce any evidence to back up his assertions that he had attempted to contact An. The court did not credit Father’s testimony on this issue and found that he had “simply learned to live without” the children.
Capacity of Parents to Communicate and Reach Shared Decisions Affecting the Children’s Welfare
The court found that the parties did not communicate well and could not reach shared decisions.
Relationship Established Between the Children and Each Parent
The court found the “indirect evidence”5 on this issue “powerful” and concluded that Father had a “history of violence toward [An.]” and was “somewhat of a stranger to the[] girls” by his own making.
Ultimate Custody Decision
Taking into account the above findings, most significantly the findings of abuse and neglect, the court applied Fam. Law § 9-101(a) and found that abuse or neglect of the children likely would reoccur if Father were granted unsupervised access to them. Furthermore, the court credited Mother’s testimony that Father had “force[d] himself on her sexually at times without her consent” and that he had struck and pinched her, all constituting abuse of another party under Fam. Law § 9-101.1.
The court found that “[c]utting off all contact with Father . . . would cause its own trauma” to the children. Given the constraints of Fam. Law §§ 9-101 and 9-101.1, the court ordered that Father would have “supervised visitation only” under the terms of a referral order for the Supervised Visitation Program, to be entered separately.
The court ordered Father to pay $1610 per month in child support.
D. The Referral Order
On April 3, 2024, the court entered a Supervised Visitation Order of Referral. The order specified that Mother would bring the children to Visitation House, Inc., in Rockville, “on a Saturday or Sunday at a date and time to be established by Family Division Services and every other Saturday or Sunday thereafter for approximately two hours, with a total of six visits occurring over a three month period.” The order set a review hearing for July 12, 2024.
E. Motion to Revise
On April 13, 2024, which as mentioned above was eleven days after the entry of the Custody Order, Father filed a motion to revise that order.
With respect to the issues of abuse and neglect, Father disputed the court’s finding that photographs of An., introduced into evidence at trial by Mother, depicted bruising; and questioned how the court could on the one hand find that Mother was exaggerating the extent of the abuse but on the other hand credit her testimony about the abuse. He emphasized his “calm demeanor” throughout his testimony, which in his view reflected upon his credibility. He
complained that Mother’s “Americanized accent,” as contrasted to his own “foreign accent,” may have affected the court’s credibility findings.6 He pointed to other evidence that tended to discredit Mother’s allegations of abuse, including a phone call he had recorded between himself and the children a month before Mother had filed for a protective order,7 and the absence of any medical evidence of injuries consistent with the allegations of abuse.8
Father asked the court to revise the Custody Order to grant him unsupervised visitation “on an alternating week basis,” two weeks’ vacation, and alternating holiday/birthday access.
F. The Supplemental Visitation Order
On April 26, 2024, the court entered an order temporarily suspending visitation because it had learned that “the parties are now unavailable for the Saturday or Sunday times scheduled by [the supervised visitation program].”
G. Denial of Motion to Revise
By order entered on May 2, 2024, the court denied Father’s postjudgment motion. It reasoned that Father’s challenges to the court’s credibility findings and weighing of evidence did not justify changing the Custody Order.
Father noted this appeal on May 10, 2024. On July 1, 2024, the circuit court issued a new referral order reestablishing supervised visitation under the same terms.
DISCUSSION
Father contends the circuit court erred by denying his postjudgment motion for the exact same reasons he raised below.
Because Father filed his motion more than 10 days but less than 30 days after the court entered its judgment, it was a motion to revise, under Rule 5-235(a). We review the denial of a motion to revise for abuse of discretion. Bennett v. State Dep’t of Assessments & Taxation, 171 Md. App. 197, 203 (2006) (cleaned up). That standard is strictly applied, however, and we will not reverse the court’s decision denying the exercise of its revisory power “unless there is a grave reason for doing so.” Hossainkhail v. Gebrehiwot, 143 Md. 716, 724 (2002). Indeed, we have said that the question on appellate review is whether the circuit court’s decision to deny the motion to revise “was so far wrong…as to constitute a clear abuse of discretion.” Stuples v Baltimore City Police Dep’t, 119 Md. App. 221, 232 (1998) (emphasis in original).
The crux of Father’s argument is that the court erred by believing Mother’s testimony that he abused An., neglected At., and physically and sexually abused Mother. It is “not our role, as an appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md. App. 168, 203 (2020). This is so because the trial court has the “unique opportunity to observe the demeanor and the credibility of the parties and the witnesses.” Santo v. Santo, 448 Md. 620, 625 (2016) (cleaned up). Here, the trial court was able to observe Mother, Father, and Grandmother during their testimony. It made detailed factual findings and demeanor-based credibility assessments, concluding that while Mother had overstated the extent of the abuse perpetrated by Father, she was truthful in testifying that Father had committed three specific instances of abuse against An.; that Father had perpetrated acts of abuse against her; and that Father
had neglected At. Conversely, the court found Father’s testimony to lack credibility. As the fact finder, the court was free to accept or reject all or part of any witness’s testimony, and we will not secondguess its credibility determinations in that regard. See Hollingsworth & Vose Co. v. Connor, 136 Md. App. 91, 136 (2000) (explaining that the fact finder may “believe all, part, or none of the testimony”).
Father’s remaining challenges go to the weight the circuit court accorded to evidence. Like credibility determinations, the weighing of evidence is quintessentially a task for the finder of fact, here
the trial court. See Kremen v. Md. Auto. Ins. Fund, 363 Md. 663, 682 (2001) (“Our function is not to retry the case or reweigh the evidence[.]”).
Father’s arguments on appeal do not demonstrate any abuse of discretion by the circuit court, much less an egregious error or a grave reason to justify reversal. Accordingly, we shall affirm the circuit court’s order denying Father’s motion to revise the Custody Order.
ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY DENYING MOTION TO REVISE CUSTODY ORDER AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
FOOTNOTES
1 To protect the identities of the minor children, we have replaced all proper names with initials. Additionally, we shall use “Mother” and “Father” when referring to the parties.
2 Mother did not file a brief in this Court.
3 As mentioned, Father filed a motion to revise more than ten days after the entry of the Custody Order. He noted an appeal within thirty days after the entry of the order denying that motion but not within thirty days after the entry of the Custody Order. Consequently, this Court issued an order limiting the scope of Father’s appeal to a challenge to the denial of the post-judgment motion and a subsequent order suspending visitation between Father and the children.
In his informal brief, Father concedes that his challenge to the order suspending his visitation has been rendered moot by the entry of a subsequent order reinstating his visitation. Consequently, the sole issue before us concerns the court’s denial of Father’s post-judgment motion.
4 Fam. Law § 9-101 provides:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or
neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
Relatedly, Fam. Law § 9-101.1 mandates that the court consider evidence of abuse or neglect of a party’s spouse or other children in the household when deciding issues of custody or visitation and that it “make arrangements for custody or visitation that best protect . . . the child who is the subject of the proceeding” and any other victim of abuse.
5 The court noted that, because of the children’s ages, they did not testify, and neither a therapist nor a court custody evaluator testified. Initially, a custody evaluation was ordered, but the order was terminated after the final protective order was entered.
6 Both Mother and Father are of Ghanaian descent.
7 The recording was played during the merits hearing.
8 Father also challenged the court’s finding that Mother had no income, pointing out that at a pendente lite hearing, the court found that Mother was receiving $775 per month in temporary cash assistance. He does not challenge the calculation of child support on appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Wicomico County Circuit Court’s granting a modification of custody sought by mother. Although the 175-day delay between the hearing and the filing of the report and recommendations was a failure by the magistrate, without a showing of prejudice it is not grounds for reversal. And although there were factual errors in the report, the circuit court, in its written opinion, individually assessed each of these errors, independently made a finding of fact on each, and did not rely upon any erroneous findings in its independent appraisal of the report.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
it was not submitted within the requisite ten-day period after the hearing. MD. R. 9-208(e)(1). Second, he asserts that the circuit court should not have adopted the recommendations of the magistrate because of numerous factual errors in the Report. Neither argument is persuasive.
In this appeal, we are asked to determine whether the Circuit Court for Wicomico County erred in granting a modification of custody sought by appellee Mikerlange Medina. Because the circuit court did not abuse its discretion in adopting the recommendations of the magistrate, we affirm.
BACKGROUND
Appellant, Luckner Hyppolite, and Appellee, Mikerlange Medina, are the biological parents of minor Child. Hyppolite and Medina shared legal custody, and Medina had primary physical custody. On July 12, 2022, Medina filed a motion to modify custody, child support, and other relief. A hearing was held in front of a magistrate on March 6, 2023, and July 6, 2023. 175 days later, on December 28, 2023, the magistrate issued her Report and Recommendations (“Report”), recommending that the modification of custody be granted in favor of Medina. Hyppolite filed exceptions to the Report and a hearing was held in the Circuit Court for Wicomico County on May 7, 2024. After reviewing the magistrate’s Report and conducting its own independent review of the record, the circuit court granted the motion to modify custody. This timely appeal followed.
DISCUSSION
Hyppolite presents two issues on appeal. First, he argues that the circuit court erred in accepting the magistrate’s Report because
In custody disputes, magistrates often act as the factfinder and prepare a written recommendation for the circuit court. MD. R. 9-208(a), (b), (e)(1). These findings of fact, however, “do not bind the parties until [they are] approved by the court.” Doser v. Doser, 106 Md. App. 329, 343 (1995); MD. R. 9-208(i)(1). Though the 175day delay between the hearing and the filing of the Report and Recommendations was a failure by the magistrate,1 without a showing of prejudice it is not grounds for reversal. Crane v. Dunn, 382 Md. 83, 91 (2004) (stating that the burden to show prejudice is on the appellant, and defining prejudice as an error that was “likely to have affected the verdict below”). Here, Hyppolite does not allege prejudice, rather he gestures vaguely at the late Report, as if the fact that it was filed late is enough to warrant reversal. It is not. He must show how the failures of the magistrate prejudiced him. See, e.g., Barrett v. Barrett, 240 Md. App. 581, 591-92 (2019) (finding prejudice and reversible error when party was barred from filing exceptions after the deadline of which they received no notice). Moreover, any error was corrected by the circuit court when it issued its order based on an independent judicial review of the record. We, therefore, reject Hyppolite’s first claim.
Once a magistrate issues a report and recommendations, the parties may contest the magistrate’s findings by filing exceptions within ten days. MD. R. 9-208(f). The circuit court must review the record and the magistrate’s findings and exercise its own “independent judgment concerning the proper conclusion to be reached upon those facts.” Domingues v. Johnson, 323 Md. 486, 490 (1991). Here, the circuit court did just that. Hyppolite filed exceptions, and the circuit court reviewed the magistrate’s Report, along with the transcript from the hearings in March and July of 2023. Using its independent judgment and setting aside several erroneous facts identified by Hyppolite, the circuit court adopted the recommendations of the magistrate.
To be clear, upon review of the arguments of counsel and the Magistrate’s report and the transcript, in the exercise of the Court’s independent judgment, the recommendation of the Magistrate is in the best interest of the Child and should be adopted by the Court.
Opinion of the Court, p. 10.
While the circuit court reviews the findings of the magistrate, it is our job to review the decision and process of the circuit court. Doser, 106 Md. App. at 343-44. To do this, we review the circuit court’s decision for abuse of discretion. Santo v. Santo, 448 Md.
620, 625 (2016). Abuse of discretion occurs where “no reasonable person would take the view adopted by the [circuit] court or when the [circuit] court acts without reference to any guiding rules or principles,” which in the case of a custody dispute is the best interest of the child standard. Id. at 625-26 (cleaned up) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295 (1997)). Though
there were factual errors in the Report, the circuit court, in its written opinion, individually assessed each of these errors, independently made a finding of fact on each, and did not rely upon any erroneous findings in its independent appraisal of the Report.2 Indeed, the circuit court corrected all of the errors that Hyppolite argues warrant reversal, which leaves us with nothing to fix. We affirm.
JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY IS AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
FOOTNOTES
1 Absent any extenuating circumstance, none of which were provided for here, missing the deadline to file a report by 165 days is contrary to Maryland Rule 9-208(e)(1) which serves “the purpose of streamlining and expediting the procedure for filing exceptions.”
See Morales v. Morales, 111 Md. App. 628, 630 (1996)
(referring to prior iteration of the rule). This is especially true in the light of the facts of this case. A young child and his parents should not be left in limbo about their future for so long.
2 Hyppolite points to three findings of fact that the circuit court determined to be erroneous, each of which the circuit court addressed in its opinion and did not rely upon in its decision to grant the custody change.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s award of retroactive child support. The trial court correctly calculated the number of months for which mother was entitled to retroactive child support and did not err in finding that there was a material change in father’s income.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
V. Whether Md. Code, Fam. Law § 12-103 violates due process and the equal protection of the law?1
For the following reasons, we affirm the decisions of the Circuit Court for Montgomery County.
FACTUAL & PROCEDURAL BACKGROUND
Appellant and Appellee are the parents of their child N.K.G., born on January 2, 2007. Appellant and Appellee never married but entered into a custody and support agreement for N.K.G. on November 30, 2007. Under the initial custody and support agreement, Appellee had primary physical custody of N.K.G. and both parties had joint legal custody, with a parenting coordinator with tie-breaking authority appointed if there were impasses on important matters. The Circuit Court for Montgomery County required Appellant to pay $1,250 a month in child support to Appellee. 2
In March of 2021, Alireza Kalantar, Appellant, filed a motion to modify custody for his son, N.K.G. Gloriana Galeano, Appellee, filed a counterclaim for custody as well. After a trial in February of 2022, Appellee was awarded primary residential custody of N.K.G. A separate trial was held on January 30, 31, and February 1 of 2023 on the issues of retroactive child support and attorney’s fees. Judge Marybeth Ayres of the Circuit Court for Montgomery County awarded the Appellee $13,343 in retroactive child support and Appellee’s counsel $121,890.25 in attorney’s fees from the Appellant. Based on additional facts, Appellant filed a second motion to modify custody, which resulted in another hearing before Judge Ayres on May 30, 31 and June 1 of 2023. Judge Ayres ruled that Appellant was granted primary residential custody of N.K.G. and awarded $15,400 in attorney’s fees to Appellee. Appellant appeals both rulings by Judge Ayres.
In bringing his appeal, Appellant presents five questions for appellate review, which we rephrase as follows:
I. Whether the trial court erred in awarding Appellee retroactive child support?
II. Whether the trial court abused its discretion when it awarded $121,890.25 in attorney’s fees to Appellee’s counsel on April 7, 2023?
III. Whether the trial court abused its discretion when it awarded $15,400.00 in attorney’s fees to Appellee’s counsel on June 13, 2023?
IV. Whether the retroactive child support award and attorney fee awards were contrary to the best interest of the child?
Since this agreement was in place, Appellant married Vera Pirunova in 2020 and lives with Mrs. Pirunova and her son from a prior relationship in Charles County, Maryland. Alireza Alain Kalantar v. Gloriana Galeano, No. 1079/2022, at 5 (Md. App. Ct. April 18, 2023). Appellee gave birth to twin daughters with a person she is no longer with, and she has physical custody of the twins. Id. at 4.
On March 22, 2021, Appellant filed a Petition to Modify Custody and Visitation in the Circuit Court for Montgomery County. Appellant said that circumstances had changed because of the Appellee’s “unpredictable behavior,” “constant abuse of the minor child,” and “contempt of the [Appellant’s] visitation order” and Appellant requested full custody of N.K.G. Appellee answered the petition on May 10, 2021, and also filed a counter-motion to modify legal custody, access, and child support. Appellee asserted that Appellant’s income had substantially increased while she was now unemployed and her only income was Appellant’s child support and money from the father of her other children. Appellee requested sole legal custody and a continuation of physical custody, along with a modification of child support.
A trial for residential custody was held on February 22 through February 24 before Judge Bibi Berry of the Circuit Court for Montgomery County. On May 24, 2022, Judge Berry entered a written opinion that ordered that Appellee would maintain primary physical custody of N.K.G., with scheduled time for Appellant to be with N.K.G. The parties maintained joint legal custody of N.K.G. The next day, Appellant filed for an order of protection on behalf of N.K.G. which was denied. Additional details and motions related to this hearing can be found in a prior opinion from this Court.3
After this ruling, on June 6, 2022, Appellant filed a motion to
alter or amend the May 2022 ruling. Appellant alleged there were new developments since the ruling and requested an evidentiary hearing and the appointment of a Child Advocate Attorney. On July 29, Judge Berry held an evidentiary hearing and ruled on the issue orally that day. Judge Berry made a small modification to the custody arrangement requiring that N.K.G. had access to a phone to use to contact the other parent, subject to reasonable restrictions. Appellant then appealed this ruling and the court’s decision not to appoint a Child Advocate Attorney. See Alireza Alain Kalantar v. Gloriana Galeano, No. 1079/2022 (Md. App. Ct. April 18, 2023). We affirmed the court’s decision to not appoint a Child Advocate Attorney and to deny the motion to grant full physical custody. Id. at 21, 26.
In August of 2022, Appellant tried to enroll N.K.G. in a school near his home in Charles County. Appellee filed a temporary restraining order to prevent Appellant from enrolling N.K.G. in a new school and to have N.K.G. returned to Appellee’s home, which the Circuit Court for Montgomery County granted. The temporary restraining order was extended, but never became a preliminary injunction because N.K.G. began attending school in Montgomery County. Appellant filed an order of protection in Montgomery County, which was denied, and then sought the same order in Charles County, which was granted. A hearing on that order of protection was heard in conjunction with the preliminary injunction denial on September 19, 2022. The order of protection was again denied. In September 2022, around this same time, N.K.G. moved out of Appellee’s residence and moved in with his maternal uncle.
A separate trial on the issues of retroactive child support and attorney’s fees was held from January 30 to February 1, 2023, before Judge Marybeth Ayres of the Circuit Court for Montgomery County.4 At this hearing, Appellee called a forensic accountant, Jeff Barsky, CPA to testify about Appellant’s income. Mr. Barsky testified that Appellant’s annual income was $225,017. On cross-examination, Appellant presented receipts for expenses on his business credit card at Home Depot, Amazon, and Wayfair. Appellant’s attorney walked through a few expenses from these receipts and pointed out that they were related to Appellant’s businesses.5 With these receipts, Mr. Barsky concluded that some of the payments were, in fact, business expenses. Judge Ayres had the parties submit proposed findings of facts that would include additional fees from putting those proposals together. Appellant proposed that his annual income was $132,421 and Appellee alleged the income was $252,224.
Judge Ayres entered her written opinion on April 5, 2023. The court found Mr. Barsky to be credible and forthright. Judge Ayres began with the testified-to annual income of $225,017 and subtracted from it $5,579.49 based on the receipts from the business credit card that Appellant presented.6 Therefore, the annual salary was $219,437.51. Judge Ayres found this was a material change from the original support order and used the new salary to recalculate the child support order. Judge Ayres recalculated the child support for N.K.G. and found that Appellant was in arrears for $13,343 based on the increased monthly support amount.
For the attorney’s fees, with the Appellant’s higher salary and his many other assets, the court found that Appellant could contribute significantly to Appellee’s attorney’s fees. Judge Ayres split the attorney’s fee periods into three sections. For the first section of March 22, 2021, through May 25, 2022, Judge Ayres
found that both parties’ requests were reasonable, but Appellant produced protracted litigation and therefore Appellee was entitled to sixty percent of her attorney’s fees for this period. For the second section of May 25, 2022, to preparation for the fees trial, Judge Ayres found that Appellant’s actions were not substantially justified and Appellee was entitled to all of her attorney’s fees being paid by Appellant. Lastly, for the work related to the fees trial, Judge Ayres found that Appellant’s actions were justified but Appellant’s lack of candor regarding his income made the trial more difficult and therefore Appellee was entitled to seventy-five percent of her fees being paid. Judge Ayres found the overall fee amounts were fair, reasonable, and necessary and therefore Appellee was entitled to a total of $121,890.25 to be paid by Appellant.
On September 24, 2022, Appellant filed another petition for the modification of custody. A trial on these issues was finally held on May 30 through June 1, 2023, again before Judge Ayres. Judge Ayres gave her oral ruling on June 6, 2023. Judge Ayres ruled that Appellant would be granted primary residential custody of N.K.G. because there has been a material change in circumstances after N.K.G. moved out of Appellee’s home. The parents would continue to share legal custody of N.K.G. Judge Ayres found that the change in custody was the result of N.K.G.’s alienation that was not substantially justified. As a result, she awarded $15,400 in attorney’s fees to Appellee.
Appellant appealed both decisions by Judge Ayres to award Appellee attorney’s fees along with the decision to award retroactive child support.
STANDARD OF REVIEW
When reviewing cases that are tried without a jury, the scope of review is set out in Maryland Rule 8-131(c). For these actions, an appellate court will review both the law and the evidence, but we will not set aside a trial court’s judgment unless it is clearly erroneous, and we will give due regard to the trial court’s ability to have judged witnesses’ credibility. Md. Rule 8-131(c); see also Karen P. v. Christopher J.B., 163 Md. App. 250, 264 (2005). Conclusions of law will not be entitled to the deference of the clearly erroneous standard. Della Ratta v. Dyas, 414 Md. 556, 565 (2010).
A trial court’s factual findings will not be clearly erroneous if competent or material evidence exists in the record to support the factual findings. MAS Associates, LLC v. Korotki, 465 Md. 457, 474 (2019) (quoting Webb v. Nowak, 433 Md. 666, 678 (2013)). This standard is “simply a highly deferential evidentiary review.” Id. Our task involves deciding whether there was “substantial evidence” to support the trial court’s factual findings, while viewing the evidence “in a light most favorable to the prevailing party.” Liberty Mutual Ins. Co. v. Maryland Auto Ins. Fund, 154 Md. App. 604, 609 (2004) (quoting GMC v. Schmitz, 362 Md. 229, 234 (2001)).
DISCUSSION
Award of Retroactive Child Support A. Parties’ Contentions
Appellant argues that the trial court erred when it awarded $13,343 in retroactive child support to Appellee. Appellant argues that the determination was based on false factual premises and faulty math. He alleges that it was unclear how the trial court
arrived at its conclusion for Appellant’s income. Appellant criticizes the conclusions of Appellee’s expert and how he changed his conclusions during the proceeding. Based on Appellant’s own determination of his income, he argues there was no material change of circumstances that warranted a change in child support. Further, he argues that Appellee was not entitled to any support because the child, N.K.G., was no longer residing with Appellee and therefore the Appellee was no longer the custodial parent. Appellee argues that the trial court did not abuse its discretion in deciding its award of retroactive child support. The trial court correctly calculated the number of months for which Appellee was entitled to retroactive child support. Appellee argues that the trial court properly found a material change in circumstances from the change in income calculated by Appellee’s forensic accountant. Appellee asserts that the trial court was able to properly weigh the testimony and opinions of their expert and the trial court’s conclusions based on that testimony were support by the record. Lastly, Appellee argues she was entitled to retroactive child support during the period she was N.K.G.’s primary custodian.7
B. Standard of Review
When reviewing an award of retroactive child support, we apply the clearly erroneous standard from Rule 8-131(c) to the trial court’s factual findings and if that is met and sound principles of law were applied, then we will not disturb the trial court’s opinion unless there has been a clear abuse of discretion. Boswell v. Boswell, 352 Md. 204, 225 (1998) (citing Davis v. Davis, 280 Md. 119, 125–26 (1977)). Abuse of discretion “occurs when a trial judge . . . acts beyond the letter or reason of the law.” David A. v. Karen S., 242 Md. App. 1, 23 (2019) (quoting Garg v. Garg, 393 Md. 225, 238 (2006)).
C. Analysis
The first issue is to determine the relevant time frame for retroactive child support. When a motion for modification of child support is filed, the court may change it based on “a showing of a material change in circumstance.” Md. Code, Fam. Law § 12-104(a). The modification of child support will not be retroactive but will change the child support amount starting from the “date of the filing of the motion for modification.” Id. at § 12- 104(b).
Appellee filed her Counter Motion to Modify Legal Custody, Access, and Child Support and Other Relief on May 17, 2021. Appellee was no longer requesting child support as of September 2022 because N.K.G. had moved out. Therefore, the relevant time period from May of 2021 to September of 2022, including both of those months,8 would be a total of seventeen months. We agree with the trial court on this length of time for calculating the retroactive support.
The next issue is whether there was a material change in the Appellant’s circumstances that entitled the Appellee to a change in the child support calculation. Md. Code, Fam. Law § 12-104(a). The party seeking the modification has the burden to prove a material change occurred. Corby v. McCarthy, 154 Md. App. 446, 477 (2003) (citation omitted). A material change must meet two requirements: (1) the change must be “relevant to the level of support a child is actually receiving or entitled to receive”; and (2) the change must be “of a sufficient magnitude to justify judicial modification of the
support order.” Id. (quoting Wills v. Jones, 340 Md. 480, 488–89 (1995)). A change that effects the income after the child support award was issued is relevant. Id. (citing Wills, 340 Md. 488).
The parties had a trial on January 30, 31, and February 1, 2023, to determine whether there was a material change in Appellant’s income. At this trial, Appellee called to the stand a forensic accountant, Jeff Barsky, CPA, to testify to Appellant’s income. Initially,
Mr. Barsky testified that Appellant earned $225,017 a year. 9 Some of that total income number came from Mr. Barsky determining that Appellant used his business credit cards to pay for personal expenses. To rebut this, Appellant showed Mr. Barsky receipts from his business credit card from Home Depot, Amazon, and Wayfair that Mr. Barsky had classified as personal. With these receipts, Mr. Barsky concluded that some of the payments were, in fact, business expenses. The trial court found that the way this evidence was produced was done to surprise Appellee, since these receipts were never produced in discovery and no copies were provided to Appellee. The trial court concluded that because Appellant produced receipts from these few purchases but did not contest any of the other charges on his business card, this confirmed that the charges were personal and could be included in Appellant’s income.10 As a result, the total income was reduced by $5,579.49 to $219,437.51, which was a material change in income from the Appellant’s income of $150,000 in the 2007 agreement, since it is a nearly fifty percent increase in income. We agree with the trial court in its determination that Mr. Barsky and his conclusions were credible based on the evidence presented to the court. Karen P., 163 Md. App. at 264 (citing Md. Rule 8-131(c)). We find that the annual income finding the trial court came to was not clearly erroneous. Given the annual income of $219,437.51, Judge Ayres calculated the child support the Appellant owed to the Appellee using the child support guidelines. The final amount owed by the Appellant was $2,329 a month. Therefore, the arrearages would be the difference between the existing payments of $1,250 a month and the new payment of $2,329 a month, which would be $1,079 a month. This value is then multiplied by the seventeen months that the Appellant owed this amount, less the four months of credited payments.11 That final total is $13,343 and we find no clear error in the calculation of these arrears. Therefore, we will uphold the retroactive child support to Appellee ordered by the court.
Attorney’s Fees
A. Parties’ Contentions
Turning to the attorney’s fees, Appellant contends that the fee award was “[a]rithmetically [q]uestionable and [o]therwise [u] nsound.” Appellant first asserts that it is unclear how the circuit court came to its decision about the final fee number. Appellant also asserted error in the June 13, 2023, award because Appellant prevailed in getting full physical custody of N.K.G. Finally, Appellant claims that this award of attorney’s fees is not in N.K.G.’s best interest.
Appellee argues that Judge Ayres properly considered the issues required by statute. Judge Ayres properly determined the financial status of each party and analyzed the substantial justification of the parties during each relevant period. Appellee said that Judge Ayres’ conclusions and the amounts calculated were supported by the evidence from the invoices from Appellee’s counsel. For the June
13, 2023 award, Appellee argued that prevailing on the merits is not necessary for being awarded attorney’s fees. Lastly, the award of fees was justified in the context of Appellee having to respond to Appellant’s “aggressive” litigation tactics.
B. Standard of Review
An award of attorney’s fees is subject to the trial court’s discretion. David A. v. Karen S., 242 Md. App. 1, 23 (2019) (citing Petrini v. Petrini, 336 Md. 453, 468 (1994)). We will not modify the award unless it is arbitrary or clearly wrong. Frankel v. Frankel, 165 Md. App. 553 (2005) (citing Gravenstine v. Gravenstine, 58 Md. App. 158, 182 (1984)).
C.
April 7, 2023 Attorney’s
Fees
When determining whether to assign costs and counsel fees to a party, a trial court will follow Md. Code, Fam. Law § 12-103.12 This statute requires a court to consider the financial status of the parties, the needs of the parties, and whether there was a substantial justification for bringing, maintaining, or defending the proceeding before the court awards attorney’s fees. Fam. Law § 12-103(b). A court is also permitted to look at whether a litigant engaged in conduct that produced protracted litigation. Frankel, 165 Md. App. at 590 (citing Welsh v. Welsh, 135 Md. App. 29, 42–43 (2000)). The trial court will have significant discretion in applying these factors to determine whether to award fees and how much to award. David A. v. Karen S., 242 Md. App. 1, 39–40 (2019) (citing Ruiz v. Kinoshita, 239 Md. App. 395, 438 (2018)).
In addition to these factors, the award must be “reasonable, taking into account such factors as labor, skill, time, and benefit afforded to the client, as well as the financial resources and needs of each party.” Id. at 40 (quoting Petrini v. Petrini, 336 Md. 453, 467 (1994)). Reasonableness “‘is a factual determination within the sound discretion of the court,’ and ‘[t]he party requesting fees has the burden of providing the court with the necessary information to determine the reasonableness of its request.’” Id. at 40 (quoting Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 448 n.4 (2008)).
Substantial justification requires the court to assess the merits of the case and “whether each party’s position was reasonable.” Davis v. Petito, 425 Md. 191, 204 (2012). Whether a party actually prevailed at trial “is a sufficient, but not a necessary, element of substantial justification.” Id. at 203. We will affirm a finding of substantial justification unless “it is clearly erroneous or involves an erroneous application of law.” David A. 242 Md. App. at 38 (quoting State v. Braverman, 228 Md. App. 239, 260 (2016)).
We find that for the April 7, 2023 attorney’s fees these factors were considered by Judge Ayres. Judge Ayres begins her opinion by analyzing the financial statuses and needs of both parties. She concluded that Appellee’s potential income was not high and would never be enough to pay the entire sum owed to her attorney, but Appellee’s needs were significant based on her need to take care of her two twins and another child she was pregnant with at the time of the hearing. She found Appellant “has more than sufficient assets, income and other financial means to contribute significantly” to the attorney’s fees.
Judge Ayres properly considered the financial status and needs of both parties, and as we discussed above, the findings related to Appellant’s income were proper.
Judge Ayres then turned to whether either party was substantially justified in bringing the actions, splitting her analysis into three time periods. The first time period was from March 22, 2021, from when Appellant filed his petition to modify custody, until May 25, 2022, when Judge Berry ruled on the issue of residential custody. Judge Ayres found that both parties were substantially justified in trying to modify the 2007 custody order. It was reasonable for Appellant to try to create a new access schedule for a now-teenage N.K.G. and to try to get more access generally since there was growing discord between the parties on that matter. It was also reasonable for Appellee to respond to these claims and try to modify the child support order based on her beliefs about the parties’ changed incomes. Even though the parties were substantially justified, Judge Ayres found that the Appellant “engaged in conduct that produced protracted litigation.” Frankel, 165 Md. App. at 590. This conclusion was supported by the Appellant’s behavior at and prior to the trial13 and Judge Berry’s prior finding that the desire to change custody was not “entirely based on [N.K.G.]’s best interest.”14 Judge Ayres found that Appellant’s request for full custody to try to reduce child support caused protracted litigation since the parties could have settled for a compromised custody schedule or relied upon the parenting coordinator assigned to their case instead of going to court.15 Even though the requests for modification were reasonable, because Appellant produced protracted litigation, Judge Ayres awarded Appellee sixty percent of her attorney’s fees for this period, which totaled to $42,099. Based on the reasoning of Judge Ayres and the other judges who heard this case and evaluated Appellant’s credibility, we do not find this decision was an abuse of discretion.
The second period was from May 25, 2022, after Judge Berry ruled on custody, to the preparation for the attorney’s fees trial that led to this appeal. Judge Ayres described the Appellant’s actions in this time period as doing “everything in his power to thwart” Judge Berry’s ruling. The first action was Appellant seeking an order of protection the day after the ruling. Then Appellant filed a motion to alter or amend the judgment, which resulted in only a minor change to cell phone access. He eventually appealed this ruling and lost. See Kalantar, No. 1079. Appellee had to seek a temporary restraining order after Appellant refused to return their child to the Appellee and tried to enroll him in a new school, which was granted and renewed. Lastly, Appellant sought another order of protection, which was denied in Montgomery County, but granted in Charles County, and then transferred back to Montgomery County to be heard as a part of this case, where it was then denied again. Judge Ayres concluded that all of Appellant’s actions were not substantially justified during this period because they were the result of a “win at all costs” approach. By contrast, Appellee’s actions, in filing a temporary restraining order, defending the order of protection and motion to alter or amend were all reasonable and necessary steps to respond to Appellant’s actions. As a result, Judge Ayres ruled that the Appellee was entitled to one hundred percent of her attorney’s fees being paid for this period, which totaled to $62,125.16 Based on the record, we find that Judge Ayres did not abuse her discretion in granting all Appellee’s attorney’s fees for this period because she did not abuse her discretion in concluding that Appellant’s positions were not reasonable. See David A., 242 Md. App. at 38. Where Appellee was only acting in response to unreasonable actions by the other party, she is entitled to have the
other party pay for her attorney’s fees.
The final section was the work in preparing for and litigating the attorney’s fees trial. Appellant requested that Appellee pay his attorney’s fees as well, which Judge Ayres found to be unreasonable given the financial statuses of both parties. Judge Ayres also found that Appellant acted unreasonably in prosecuting the claim by trying to engage in gamesmanship with the expert, described above, and by bringing his child to these proceedings. Judge Ayres said that Appellee’s expert was “helpful and reasonable” and costs could have been reduced if Appellant was more forthcoming leading up to the hearing. Judge Ayres concluded that Appellant was justified in defending against Appellee’s claim for the entirety of her attorney’s fees when some of the litigation was a result of Appellee’s lack of cooperation. As a result, since most of the trial was about Appellant’s income and he was not forthcoming on that matter, Judge Ayres ruled that Appellee was entitled to seventy-five percent of her fees from this period, which totaled to $17,666.25. We again find that there was no abuse of discretion in this final period based on Judge Ayres’ observations of the parties and their conduct during the litigation.
Looking at the fees overall, Judge Ayres found that Appellee “was primary reacting to the [Appellant]’s aggressive litigation tactics.” She found that Appellant was using his position of financial power to try to win the case, knowing that Appellee could not afford to fight him in court. As discussed in more detail below, one of the policy purposes of the attorney’s fee statutes is to prevent a party from abusing their resource advantage. David A., 242 Md. App. at 36. Judge Ayres found the overall fee amounts were fair, reasonable, and necessary and therefore Appellee was entitled to a total of $121,890.25 to be paid by the Appellant. 17 We agree with Judge Ayres ruling and find she did not abuse her discretion in splitting the attorney’s fees between the parties after considering the financial situations, needs, and the substantial justifications of their respective actions.
D. June 13, 2023 Attorney’s Fees
The second set of attorney’s fees were ordered on June 13, 2023, after Judge Ayres ruled on Appellant’s motion to modify custody. Judge Ayres ruled that Appellant would be granted primary residential custody of N.K.G. because N.K.G. moved out of Appellee’s home and created a material change in circumstances. While Judge Ayres noted that Appellant substantially prevailed in his motion, she found that the petition for modification was initiated by alienation and the need to put N.K.G. with his father. The motivations and the behaviors of the parties were not helpful for deciding the best interests of the child, but it was relevant for the attorney’s fees for Judge Ayres. Judge Ayres found that N.K.G.’s alienation was not substantially justified and therefore awarded $15,400 in attorney’s fees to Appellee. This value only included the work for the childcare modification, not for any work used for putting liens on homes or enforcing the prior ruling.
Judge Ayres justified her finding of alienation by discussing how N.K.G appeared at trial, finding that “he took every opportunity to say bad things about” Appellee, his mother.18 She also noted “snickering” between Appellant and N.K.G. during the trial while Appellee was on the stand and noted that the fact that N.K.G. was even here to witness the trial supported her finding of alienation.
Additionally, Judge Ayres described the underlying facts for one of the orders of protection filed by Appellant as “fabricated” and originating from “a child who has no respect for his mother.” As a result, Judge Ayres concluded there was no substantial justification as Appellant’s position was not reasonable since it was borne out of manipulation. See Davis v. Petito, 425 Md. at 204 (defining substantial justification as “whether each party’s position was reasonable”). Based on the record and Judge Ayres findings, we agree that this change in custody was borne out of manipulation from Appellant and the alienation of a child from his mother. While it was proper for Judge Ayres to award custody to Appellant, the attorney’s fees are a separate consideration.
Appellant contends that these fees were unjustified because he prevailed on the merits and custody of N.K.G was ordered. Substantial justification does not require that a party succeed at trial. Davis, 425 Md. at 203 (“Prevailing on the merits is a sufficient, but not a necessary, element of substantial justification ”); see also Broseus v. Broseus, 82 Md. App. 183, 200 (1990) (“Just because appellant prevailed on the custody issue does not preclude an award to appellee, so long as there was substantial justification for bringing or defending the proceeding . . . .”). Therefore, even though the Appellant was granted custody, it was still proper for Judge Ayres to assign costs to the Appellant, especially given the allegations at the proceeding and manufactured claims of abuse. We find that Judge Ayres did not abuse her discretion in awarding the June 13, 2023 fees to Appellee.
Judge Ayres did not abuse her discretion in ruling on the payment of attorney’s fees to the Appellee and we will affirm those awards.
Whether Retroactive Child Support and Attorney’s Fees Violates the Best Interest of the Child
Despite the awards being proper, Appellant next argues that imposing these awards violates the best interest of the child. Appellant contends that awarding fees to the Appellee will take money away from N.K.G. Appellant says not considering N.K.G.’s interests was erroneous given the magnitude and impact of the award. Appellee maintains that the child support was proper for the awarded period because it was when N.K.G. was living with Appellee. Appellee asserts that Appellant fails to address the issue in a meaningful way or cite any facts or authority.
We agree with Appellee on this issue and find that Appellant did not make a proper argument as to how the child support awards or attorney’s fees awards go against the best interest of the child. Appellant has the obligation “to pinpoint the errors raised on appeal and to support their contentions with well-reasoned legal argument.” Fed. Land Bank of Balt., Inc., v. Esham, 43 Md. App. 446, 458 (1979).19 By failing to do so on this point, we need not make the argument for the Appellant.
Additionally, Judge Ayres’ opinion did consider Appellant’s financial resources. She specifically discussed his “significant” assets, including a home in Charles County worth $641,000, money in checking, savings, and retirement accounts, luxury vehicles, stock, and owning a restaurant with gross revenues in the millions of dollars. Judge Ayres also noted Appellant’s liabilities but noted that his testimony “was geared towards minimizing his assets and income in order to hide his net worth from the [Appellee] and the court.” She also specifically found that Appellant “has regularly
lied when he believed it would benefit him financially.” These considerations undermine Appellant’s argument that this award of fees will take money away from the parties’ child. We will find no abuse of discretion in Judge Ayres’ considerations in the lower court.
Whether Md. Code, Fam. Law §12-103 Violates Due Process and Equal Protection Guarantees
For this final claim, Appellant argues that Family Law § 12-303 is unconstitutional. He claims that usually departures from the general rule that parties must pay their own attorney’s fees mean that fees are awarded to the prevailing party. Appellant says that the §12-303 statute is different because a losing party can get fee awards so long as they have “substantial justification” in bringing the case. Appellant argues that “the purpose and effect of the statute is to foment litigation against the well-off.” According to Appellant, this statute puts the wealthier party at a disadvantage at the outset of the proceeding. Therefore, Appellant argues, the statute should be stricken as unconstitutional.
Appellee argues that Appellant’s argument is “frivolous, at best” because he fails to articulate the kind of due process violation that is at issue or how there is an equal protection deprivation. Additionally, Appellee cites to the legislative history of § 12-103 as described in David A. v. Karen S., 242 Md. App. 1 (2019).
We find that this issue was not properly presented before the court. Appellant does not clearly articulate whether this statute creates a substantive due process violation or a procedural due process violation, nor whether those rights arise out of the Federal or State Constitutions. It is not the function of this court “to attempt to fashion coherent legal theories to support appellant’s . . . claims.” Konover Prop. Tr., Inc. v. WHE Assocs., Inc., 142 Md. App. 476, 494 (2002). Nor is it our function “to delve through the record to unearth factual support favorable to . . . appellant.” Rollins v. Cap. Plaza Assocs., L.P., 181 Md. App. 188, 201, cert. denied, 406 Md. 746 (2008) (quotation marks and citation omitted). In the absence of proper arguments on this claim, we cannot rule on any alleged violations of these rights. If Appellant’s claim is that this is discrimination of the wealthier parties in family law actions, we find that argument has no merit.20
Regarding Appellant’s argument that “the purpose and effect of the statute is to foment litigation against the well-off” we find that the policy considerations laid out in prior cases proves that to be untrue. In David A. v. Karen S., this Court took the opportunity to analyze the history and purpose of § 12-103. 242 Md. App. at 34–37. The case involved whether the trial court could impose the attorney’s fees incurred by the appellee onto the appellant in a child custody battle. Id. at 16. The appellant argued that the appellee was not eligible to an award of attorney’s fees under § 12-103 because the appellee was a grandparent, not a parent. Id. at 24. The trial court held that the appellee was a de facto parent and therefore eligible for an award. Id. at 28. This Court then made it clear that § 12-103 differs from other fee shifting statutes on purpose. Id. at 34–35. The Court wrote:
JUDGMENT
Unlike fee shifting provisions in which a party's eligibility for an award depends on whether it prevailed in the action, § 12-103(a) does not even require consideration of which party prevailed, see Md. Rule 2-702(b) (describing fee shifting provisions in Family Law Article as not requiring that the receiving party “prevailed in the action or on any particular claim or issue in the action”). Instead, the statute provides broad authority for the court to award attorney's fees and costs in a custody, visitation, or child support proceeding “that are just and proper under all the circumstances,” subject only to the requirement that the court must first “consider” three things: (1) “the financial status of each party;” (2) “the needs of each party;” and (3) whether each party had a substantial justification for its position in the proceeding.
Id. at 34–35 (quoting Md. Code, Fam. Law § 12-103) (footnotes and citations omitted).
The David A. opinion then detailed the important policy considerations of § 12-103. Id. at 35–36. First, the statute gave parties who may not be able to afford counsel access to pro bono counsel because the attorney may be able to recover fees from the other party. Id. (citing Henriquez v. Henriquez, 185 Md. App. 465, 484 (2009), aff'd, 413 Md. 287 (2010) (noting the “important policy consideration[ ]” of allowing pro bono attorneys in family law cases)). Second, the statute helps to ensure that a party with a resource advantage is not incentivized to abuse that advantage in a family law proceeding. Id. at 36 (citing Broseus v. Broseus, 82 Md. App. 183, 201 n.9 (1990) (describing how the appellant may have closed the marital bank accounts to force the appellee to borrow nearly all of her attorney’s fees payments from family and friends). Third, the statute disincentivizes conduct that “produce[s] protracted litigation.” Id. (quoting Frankel v. Frankel, 165 Md. App. 553, 590 (2005)). Finally, the statute allows courts to make equitable determinations over who should bear the costs of a dispute, which may include the best interest of the child. Id. (citing Petrini v. Petrini, 336 Md. 453, 468 (1994) (listing its considerations of the parties’ needs and resources, which included “the benefit to the child of awarding attorney’s fees to the mother”)).
Based on this analysis, the purpose of § 12-103 is not to simply “award[ ] fees to the loser,” as Appellant described. The statute allows the court to take a broader look at the needs and status of the parties and assign, at its own discretion, attorney’s fees from one party to the other, without consideration of who won or lost. The purpose of § 12-203 is to increase access for all parties to family court, to ensure that a party in a disadvantaged position can have access to counsel, and prevent the wealthier party from abusing the court system. We find that none of these purposes constitute a violation of due process or equal protection.
CONCLUSION
Accordingly, we affirm the decisions of the Circuit Court for Montgomery County for retroactive child support and the awards of attorney’s fees.
FOOTNOTES
1 Appellant’s five questions as originally presented were as follows:
1. Whether the Circuit Court erred in awarding Ms. Galeano child support arrears of $13,343.00?
2. Whether the Circuit Court erred in awarding attorney’s fees of $121,890.25 in April of 2023?
3. Whether the Circuit Court erred in awarding attorney’s fees of $15,400 in June of 2023?
4. Whether the fee and support awards and judgments are contrary to the best interests of the child?
5. Whether Md. Code, Fam. Law § 12-103 violates due process and equal protection of the laws guarantees?
2 The child support guidelines form stated that the Appellee earned a monthly adjusted actual income of $2,500 and the Appellant earned a monthly adjusted actual income of $12,500 a month, which after following the guidelines resulted in a recommended child support order of $1,264 a month to be paid by Appellant. The court then set the level at $1,250.
3 See Alireza Alain Kalantar v. Gloriana Galeano, No. 1079/2022 (Md. App. Ct. April 18, 2023).4 This trial was originally scheduled for September 9, 2022. However, Appellant’s counsel filed a motion to withdraw because the Appellant could not pay approximately a quarter of a million dollars in attorney’s fees. As a result, on that day a judge postponed the hearing on attorney’s fees and other matters to January 30, 2023.
5 Judge Ayres described these exhibits as trying to create a “gotcha moment” but they should have been shared prior to a trial about attorney’s fees so that the lawyers were not raking up additional charges while the accountant has to resolve these issues.
6 Judge Ayres wrote that she re-calculated this number based on the total amount from the business credit card, subtracting from it the expenses from receipts she found to be legitimate business expenditures, which were then annualized. Judge Ayres also noted that Appellant’s lack of challenge to the remaining charges for which he did not produce receipts confirmed for her that they were personal charges.
7 Appellee also makes an argument that vacating the child support award will not automatically vacate the attorney’s fee awards. Since we find that the child support award was proper, we need not address this argument.
8 Judge Ayre’s decision to include all of May despite the order coming on May 17, 2021 for the purposes of counting the months was within her discretion and we will not find that choice was “beyond the letter or reason of the law.” David A., 242 Md. App. at 23.
9 Appellant did not further take steps to undermine the credibility of Mr. Barsky’s conclusions at the hearing. The voir dire was very limited and there was no objection to his expertise in forensic accounting and tax accounting. Additionally, Appellant never called
his own expert to rebut any of Mr. Barsky’s conclusions.
We also credit Judge Ayres’ finding that Appellant was “not candid” about his income and his testimony was geared towards “minimizing his assets and income in order to hide his net worth.” These findings lend further support to the work performed by Mr. Barsky in the face of greater difficulty in uncovering Appellant’s true income.
10 Appellant in his brief discussed these exhibits and attempted to recalculate the numbers. Appellant’s attorney contended at trial and in his brief that every charge on these receipts were business charges. Appellant then testified that all the charges are expenses of one of his businesses. The total amount on these receipts Appellant found to be $16,030.17, which differs from the amount Judge Ayres used in her calculations. However, Judge Ayres did not credit all the expenses on these three receipts as business expenses and said that she deducted from the total expenses the “receipts that [she] found reflected legitimate business expenditures.” The total number deducted being different from the total is not clearly erroneous based on the evidence discussed by Judge Ayres, and we will not displace Judge Ayres’ finding of fact on what is or is not a legitimate business expense.
11 Appellant paid child support at the rate of $1,250 from May 2021 until December 2022. Since Appellee was no longer requesting child support from September 2022 onwards, after N.K.G. moved out, the $1,250 paid by Appellant for those four months can be credited back to him.
12 The statute’s text in full reads:
Award of costs and fees
(a) The court may ward to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:
(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; or
(2) files any form of proceeding:
(i) to recover arrearages of child support;
(ii) to enforce a decree of child support; or
(iii) to enforce a decree of custody or visitation.
Conditions for award of costs and fees
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and
(3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
Whom cost and fees awarded to
(c) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.
Md. Code, Fam. Law § 12-103.
13 Judge Ayres describes an exchange where Appellant was asked numerous times why he requested a change in custody. The first time, Appellant said it was for a change in child support, the second time he answered and focused on his finances, and only on the third time did N.K.G. even come up as a reason to change custody. Judge Ayres concluded that the specific request for full custody instead of one overnight visit a week was not a sincere request for the benefit of N.K.G. but was for the purpose of reducing child support. Additionally, Judge Ayres pointed out text messages from prior to the initial filings to modify custody from Appellant that did not discuss a desire to live with his child full time, or concerns about safety, but instead a dispute over the access schedule.
Regarding Appellant’s assertion of child abuse by Appellee, multiple judges hearing this case concluded that the evidence did not support any abuse, but instead the evidence supported that Appellant had encouraged N.K.G. to challenge his mother. Judge Ayres specifically described Appellant as manipulating N.K.G. based on the prior opinions in the case and her own observations in court. The prior judges and Judge Ayres concluded that Appellant actively placed N.K.G. into these proceedings to use him “as a pawn in this case.”
14 Judge Berry’s opinion was supported by evidence that Appellee had been the primary caregiver for N.K.G. in all the years leading up to the proceedings and had “done a fine job.” Additionally, Appellant did not appear to be involved with N.K.G.’s day-to- day care and the child’s doctor could only recall seeing Appellant once or twice over 15 years.
15 And, in fact, as Judge Ayres pointed out, the revised schedule created by Judge Berry in May of 2022 was like what was proposed by the Appellee before proceedings even began.
16 Judge Ayres noted that this cost did not include fees related to the appeal or the motion to modify since those matters were not resolved. The latter fees for the motion were resolved in the June 13 fees ruling.
17 Appellant disputed this total number and claimed that it did not add up to the total fees. However, in addition to the submitted amount of fees from prior to the trial, Judge Ayres had the parties submit proposed findings of facts and additional fees from putting those proposals together. For Appellee, this led to an increased balance from the work done to complete those tasks, which resolved the difference in the award and total fees.
18 Additionally, Judge Ayres found by a preponderance of the evidence that N.K.G. had deleted a happy birthday text from his phone “in an effort to not be forthcoming about the good parts of his mother.”
19 On this point, it should be noted that at the end of Appellant’s brief, there is a section entitled “Other” that contains a list of matters Appellant believes were in error, but none contain any citations to the record or law. As a result, we will not take the opportunity to consider any of these issues.
20 In prior cases, wealth has been relevant to due process claims, but that is often because the less wealthy party has been barred from accessing the courts. See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that the state cannot deny access to divorce courts solely because of the inability to pay court fees and costs).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Washington County Circuit Court’s denial of mother’s motion to reconsider an earlier order allowing the child’s last name to be changed and finding mother in arrears of her child support obligations.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
paid to Father through the Ohio Department of Social Services (“Ohio DSS”), not to Father directly. The 2019 custody order also modified Mother’s parenting time, decreasing her allotted parenting time per month and requiring supervision.2
In October 2022, Maryland acquired jurisdiction over the 2019 custody order and future litigation between Mother and Father regarding the child.
In November 2022, in the Circuit Court for Washington County, Father filed a Motion for Name Change of Minor to change the child’s last name from Reid— Mother’s maiden name that she has not used since she re-married in 2015 or 2016 and took her husband’s name, Red—to Shaffer.3 Mother opposed the motion. Father then filed a Child’s Consent to Name Change form signed by the minor child.
This case arises from litigation between appellant Sarah Red (“Mother”) and appellee Christopher Shaffer (“Father”) regarding their minor child. In the Circuit Court for Washington County, Father moved to change the child’s surname to Shaffer, and separately, for the court to determine child support arrears. A magistrate recommended granting the name change and setting child support arrears at $6,954.84. Mother filed exceptions to the magistrate’s recommendations. After a hearing, the circuit court found extreme circumstances warranted changing the child’s last name because Mother effectively abandoned the child by not paying child support for approximately 16 months. The court also set Mother’s child support arrears at $8,411.74. Mother filed a motion for reconsideration which the circuit court denied.
Mother filed this timely appeal only as to the circuit court’s denial of the motion to reconsider. We conclude the court did not abuse its discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The child at issue here was born on September 10, 2007. Mother and Father never married and have fought in court over custody of the child since two days after his birth. Mother and Father originally shared joint custody of the child, but in 2017, the Court of Common Pleas of Franklin County, Ohio granted Father sole legal and physical custody of the child. The change in custody was for a variety of reasons, some of which Father references in his brief to this Court.
In 2019, the Ohio court ordered Mother to pay child support in the amount of $549.57 per month,1 which Mother attests she
In October 2023, in the same court, Father filed a Motion to Determine Child Support Arrears as he alleged that he had not received child support payments from Mother since December 2022.
In December 2023, a magistrate held a hearing regarding the name change and child support arrears. The magistrate recommended granting the name change request as the magistrate found the name change to be in the child’s best interests. The magistrate did not consider whether extreme circumstances warranted the name change because neither party presented evidence of a mutual agreement between Mother and Father regarding the child’s last name at the time of birth. Therefore, the magistrate’s sole inquiry in considering the name change was what last name would be in the child’s best interests, which the magistrate determined was Father’s.4
The magistrate then recommended setting child support arrears at $6,594.84 (12 months multiplied by Mother’s $549.57 monthly child support payment), finding Mother did not pay child support from January 2023 through December 2023. Mother argued she paid $381.38 in January 2023 to the Ohio DSS as part of her required $549.57 monthly child support payments, but the Magistrate found Mother did not make any child support payments in 2023. This was because Father testified he did not receive any child support payments in 2023, as well as the fact that Mother’s proffered evidence showing $381.38 as “Funds on Hold” with Ohio DSS did not show actual payment of that amount to Father for January 2023.5
Mother filed exceptions to the magistrate’s recommendations, advancing two arguments relevant to this appeal. First, Mother argued the magistrate did not use the proper legal standard in recommending the name change. Mother claimed that, at the child’s birth, she and Father agreed the child would have the last name Reid, her family’s last name. Because of this agreement,
Mother claimed the magistrate needed to consider whether extreme circumstances warranted changing the child’s last name in addition to determining what last name serves the child’s best interests. Second, Mother argued the magistrate erred in its arrears recommendation. Specifically, she claimed the magistrate should have accounted for the $381.38 she said she paid in January 2023 and a “credit” of $1,356.40 with Ohio DSS toward future child support payments. In support of this second argument, Mother pointed to evidence she produced for the magistrate listing $381.38 collected by Ohio DSS in January 2023 and $1,356.40 as “Total Credits,” defined as “[t]he total amount of excess funds remaining after all current monthly obligations have been met. These funds will be used to count as a payment toward next month’s obligations.”
The Circuit Court for Washington County held a hearing on the exceptions in March 2024 and issued an Amended Exceptions Order on March 28, 2024.6 Regarding the name change, the circuit court found the magistrate erred in not using the extreme circumstances test coupled with the best interest test. The court found extreme circumstances existed in light of the 2017 custody order.7 However, this finding was only made at the hearing; it was not included in the Amended Exceptions Order. The only finding of extreme circumstances listed in the Amended Exceptions Order was that Mother “effectively abandoned [the child] by not paying child support which establishes an extreme circumstance.” After making its finding, the court affirmed the magistrate’s finding of the name change being in the child’s best interest and ordered that the child’s last name be changed to Shaffer.
Regarding child support arrears, the court determined Mother stopped paying child support beginning in December 2022—differing from the magistrate’s finding that Mother stopped paying child support beginning in January 2023— but gave her credit for $381.38 paid in January 2023. Further, the court did not give Mother credit for her alleged $1,356.40 credit toward future child support payments because there was no proof she paid that amount to Ohio DSS. In its Amended Exceptions Order, the court set arrears at $8,411.74 through March 1, 2024—16 months (December 2022 through March 2024) multiplied by Mother’s $549.57 monthly child support payment, deducting $381.38 for payment in January 2023.
Pursuant to Maryland Rule 2-535, Mother moved the court to reconsider its order. She requested the court vacate the finding of extreme circumstances to justify changing the child’s last name and establish child support arrears at $6,505.77—15 months (January 2023 through March 2024) multiplied by $549.57, deducting for $381.38 for payment in January 2023 and $1,356.40 for credit toward future child support payments. The circuit court denied the motion in a one-line order, entered on May 15, 2024. Mother noted an appeal of the denial of the motion for reconsideration on June 10, 2024.
DISCUSSION
Under Maryland Rule 8-202(c), a motion for reconsideration under Rule 2-535 filed within ten days of the entry of judgment “tolls the running of that appeal period while the court considers” the motion for reconsideration. Johnson v. Francis,
239 Md. App. 530, 541 (2018). “A motion for reconsideration filed more than ten days, but within 30 days, after entry of a judgment or order may still be considered by the trial court, pursuant to Rule 2-535, but it does not toll the running of the time to note an appeal” of the judgment. Id. “When a revisory motion is filed beyond the ten-day period, but within thirty days, an appeal noted within thirty days after the court resolves the revisory motion addresses only the issues generated by the revisory motion.” Furda v. State, 193 Md. App. 371, 377 n.1 (2010).
Because Mother filed her motion for reconsideration under Maryland Rule 2-535 more than ten days after the entry of the court’s final order, the filing did not toll the 30- day appeal period under Rule 8-202(c). Mother did not file a notice of appeal within 30 days of the exceptions order. However, she did file her notice of appeal within 30 days of the court’s denial of her motion for reconsideration. Accordingly, the only timely appeal here is from the court’s denial of Mother’s motion for reconsideration. See Bennett v. State Dep’t of Assessments and Tax’n, 171 Md. App. 197, 203 (2006).
“An appeal from the denial of a motion asking the court to exercise its revisory power is not necessarily the same as an appeal from the judgment itself.” Green v. Brooks, 125 Md. App. 349, 362 (1999) (cleaned up). Specifically, the scope of review for a denial of a motion to reconsider is “limited to whether the trial judge abused his [or her] discretion in declining to reconsider the judgment.” Grimberg v. Marth, 338 Md. 546, 553 (1995). “Except to the extent that they are subsumed in [the question of whether the trial court abused its discretion in denying the motion for reconsideration], the merits of the judgment itself are not open to direct attack.” Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016) (alteration in original) (citing Stuples v. Baltimore City Police Dep’t, 119 Md. App. 221, 241 (1998)). While a “decision on the merits… might be clearly right or wrong[, a] decision not to revisit the merits is broadly discretionary,” even “boundless” or “virtually without limit.” Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002).
An abuse of discretion occurs “where no reasonable person would take the view adopted by the trial court” or “when the court acts without reference to any guiding principles.” Alexander v. Alexander, 252 Md. App. 1, 17 (2021) (cleaned up). Under the abuse of discretion standard, this Court will not reverse a trial court’s decision to decline to exercise its revisory power “unless there is a grave reason for doing so.” Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 724 (2002). In this context, “even a poor call [in denying a motion to reconsider] is not necessarily a clear abuse of discretion.” Stuples, 119 Md. App. at 232. The denial of a motion to revise a judgment should be reversed only if the denial “was so far wrong—to wit, so egregiously wrong— as to constitute a clear abuse of discretion.” Id. (emphasis in original). “It is hard to imagine a more deferential standard than this one.” Est. of Vess, 234 Md. App. 173, 205 (2017).
In this case, neither Mother nor Father discuss how the circuit court did or did not abuse its discretion in denying Mother’s motion to reconsider. Instead, they discuss how the facts supported or failed to support the underlying decision the court made about the name change and the child support arrears. In effect, Mother seeks to have us review the court’s rationale as to the merits of its decision. Father does little
better, offering counterarguments about the merits rather than focusing on the denial of the motion to reconsider itself. All we may consider in this case is whether the circuit court abused its discretion in denying Mother’s motion for reconsideration.
Even assuming, arguendo, the appealability of the denial of a post-trial motion, the appellant would carry a far heavier appellate burden on that issue than he would carry in challenging the denial of a more timely motion for relief made during the course of trial. Appellate consideration of a denial of a motion to reconsider, or some similar post-trial
revisiting of already decided issues, does not subsume the merits of a timely motion made during the trial.
Steinhoff, 144 Md. App. at 484. Mother has not argued why the circuit court abused its discretion by not putting the issue of the court’s rulings on the name change or the child support arrears “back on the table.” Under these circumstances, we cannot conclude the court’s denial of Mother’s motion as to either issue was “so far wrong—to wit, so egregiously wrong— as to constitute a clear abuse of discretion.” Stuples, 119 Md. App. at 232 (emphasis supplied).
THE JUDGMENTS OF THE CIRCUIT COURT FOR WASHINGTON COUNTY ARE AFFIRMED. APPELLANT TO PAY THE COSTS.
FOOTNOTES
1 In the 2017 order, the court directed Mother to pay $441.50 per month in child support. The court increased that amount to $549.57 in the 2019 custody order.
2 In the 2017 order, the court granted Mother two weekends per month of parenting time, plus some holidays. The court modified Mother’s parenting time in the 2019 order to four supervised hours on two Sundays per month.
3 Mother testified before the magistrate in Washington County that she married in “either 2015 or 2016.”
4 Under Maryland caselaw, if there was no agreement between parents at the child’s birth regarding the child’s last name, the parent moving to change the child’s last name need only “demonstrate that the desired name change is in the Child’s best interest.” Dorsey v. Tarpley, 381 Md. 109, 117 (2004) (citing
Lassiter-Geers v. Reichenbach, 303 Md. 88, 95 (1985)). However, if there was an agreement between the parents at the child’s birth regarding the child’s last name, the applicable standard “is not merely what is in the child’s best interest, but whether ‘extreme circumstances’ warrant the requested change” of last name. Schroeder v. Broadfoot, 142 Md. App. 569, 581 (2002).
5 Mother’s evidence is a payment history report with the Franklin County Child Support Enforcement Agency. In her brief, she refers to this agency as “OH DSS.”
6 The court issued an Exceptions Order on March 22, 2024. To correct a clerical error, the court then issued an Amended Exceptions Order on March 28, 2024.
7 As Mother correctly notes in her brief, the exceptions court did not explain what in the 2017 custody order specifically led to its finding of extreme circumstances.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s orders granting custody and guardianship of nine-year-old J.H. to his non-relative foster caregivers and changing the permanency plan for J.H.’s half-sister, two-year-old T.C., to concurrent plans of non-relative adoption and custody, or custody and guardianship, by the same foster caregivers. Mother’s persistent mental health instability resulted in her failure to keep her children safe and healthy, and they had not lived with her for most of their young lives.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
Instead, we balance fundamental rights of parents against the State’s interest in protecting children against neglect and abuse. See In re H.W., 460 Md. at 216; Rashawn H., 402 Md. at 497. To guide courts called upon to conduct such balancing, the General Assembly has established statutory standards for the State’s intervention. A juvenile court may find that a child is in need of assistance warranting “court intervention” upon a showing, by a preponderance of the evidence, Md. Code, § 3-817(c) of the Courts & Judicial Proceedings Article (“CJP”), that “(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); see In re M., 251 Md. App. 86, 115 (2021).
In these consolidated appeals from orders concerning two children in need of assistance (“CINA”), their mother, appellant C.C. (“Mother”), contends that the Circuit Court for Baltimore County, sitting as a juvenile court, erred in granting custody and guardianship of nine-year-old J.H. to his non-relative foster caregivers and terminating CINA jurisdiction, and also erred in changing the permanency plan for J.H.’s half-sister, two-year-old T.C., to concurrent plans of non-relative adoption and custody, or custody and guardianship, by the same foster caregivers.
The Baltimore County Department of Social Services (the “Department”), appellee, counters that the juvenile court did not err or abuse its discretion, given “Mother’s ongoing untreated mental health issues and the length of time the children were in foster care[.]” For reasons that follow, we agree with the Department and affirm both orders.
LEGAL BACKGROUND
To provide context for our review of the extensive evidentiary record, we first summarize the legal framework and standards governing these CINA proceedings. Because parents “have a fundamental, Constitutionally-based right to raise their children free from undue and unwarranted interference on the part of the State, including its courts[,]” courts recognize as “a presumption of law and fact[,] . . . that it is in the best interest of children to remain in the care and custody of their parents.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 495 (2007). Yet neither the right, nor this presumption is absolute.
After a child has been declared a CINA and removed from a parent’s custody, the juvenile court is required, within eleven months, to conduct a hearing to establish a permanency plan for the child. CJP § 3-823(b)(1)(i). “The permanency plan is intended to ‘set[ ] the tone for the parties and the court’ by providing ‘the goal toward which [they] are committed to work.’” In re D.M., 250 Md. App. 541, 561 (2021) (quoting In re Damon M., 362 Md. 429, 436 (2001)).
Because remaining in the custody of a social services department for an extended time is commonly not in a child’s best interest, “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” CJP § 3-823(h)(5). See In re M., 251 Md. App. at 115. Likewise, “unless there are compelling circumstances to the contrary, the plan should be to work toward reunification, as it is presumed that it is in the best interest of a child to be returned to his or her natural parent.” In re Yve S., 373 Md. at 582. Implementing these principles, the CINA framework establishes the following hierarchy of placement options in “descending order of priority”: (1) reunification with the parent; (2) placement with a relative for adoption or custody and guardianship; (3) adoption by a nonrelative; (4) custody and guardianship by a non-relative; or (5) another planned permanent living arrangement. CJP § 3-823(e).
When establishing an initial permanency plan and deciding whether to change it, a juvenile court gives “primary consideration to the best interests of the child[,]” by considering the following statutory factors:
(i) the child’s ability to be safe and healthy in the home of the child’s parent;
(ii) the child’s attachment and emotional ties to the child’s natural parents and siblings;
(iii) the child’s emotional attachment to the child’s current
caregiver and the caregiver’s family;
(iv) the length of time the child has resided with the current caregiver;
(v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
(vi) the potential harm to the child by remaining in State custody for an excessive period of time.
Md. Code, § 5-525(f)(1) of the Family Law Article (“FL”). See CJP § 3-823(e)(2); In re D.M., 250 Md. App. at 562. Although a juvenile court must make findings on each factor, based on the evidence, it is not necessary “‘to recite the magic words of a legal test’” as long as “‘actual consideration of the necessary legal considerations [is] apparent in the record.’” In re D.M., 250 Md. App. at 563 (quoting In re Adoption/Guardianship of Darjal C., 191 Md. App. 505, 531-32 (2010)).
Once established, the permanency plan for a CINA must be reviewed at a hearing “at least every 6 months” until the child’s commitment is rescinded or a voluntary placement is terminated. CJP § 3-823(h)(1). At each review hearing, the juvenile court is required to perform the following evaluations:
(i) Determine the continuing necessity for and appropriateness of the commitment;
(ii) Determine and document in its order whether reasonable efforts have been made to finalize the permanency plan that is in effect;
(iii) Determine the appropriateness of and the extent of compliance with the case plan for the child;
(iv) Determine the extent of progress that has been made toward alleviating or mitigating the causes necessitating commitment;
(v) Project a reasonable date by which a child in placement may be returned home, placed in a preadoptive home, or placed under a legal guardianship;
(vi) Evaluate the safety of the child and take necessary measures to protect the child;
(vii) Change the permanency plan if a change in the permanency plan would be in the child’s best interest; and
(viii) For a child with a developmental disability, direct the provision of services to obtain ongoing care, if any, needed after the court's jurisdiction ends.
CJP § 3-823(h)(2).
When deciding whether a local department made reasonable efforts to finalize the permanency plans in effect for each child, CJP § 3-823(h)(2)(ii), courts recognize that such efforts should be “reasonably likely to achieve the objective” of finalizing the permanency plan in effect for a child. See CJP § 3-801(w); CJP § 3-816.1(b)(2)(i). In addition, the juvenile court must “assess the efforts made since the last adjudication of reasonable efforts and may not rely on findings from prior hearings.” CJP § 3-816.1(b)(5). “[T]here is no bright line rule to apply to the ‘reasonable efforts’ determination; each case must be decided based on its unique circumstances.” In re Shirley B., 191 Md. App. 678, 710-11 (2010). A juvenile court’s finding that the local department made reasonable efforts toward reunification is a factual finding that we review for clear error. See id. at 708-09.
Likewise, we review other orders in a CINA proceeding under one of “‘three distinct but interrelated standards of
review[.]’” In re J.R., 246 Md. App. 707, 730 (2020) (quoting In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018)). After examining factual findings for clear error, see In re R.S., 470 Md. 380, 397 (2020), we consider legal decisions de novo, without deference to the juvenile court. See id. Absent factual or legal error, the court’s ultimate conclusions will be reversed only for abuse of discretion. See id. (quoting In re Yve S., 373 Md. 551, 586 (2003)). “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)).
Finally, when applying the overarching best interest of the child standard, this Court has emphasized that [o]ur CINA system is designed to be temporary because “a child should have permanency in his or her life.” In re Adoption/Guardianship of Jayden G., 433 Md. 50, 84 (2013) (citing In re Adoption/Guardianship No. 10941, 335 Md. 99, 106 (1994)). As reflected in the statutory factors that the court must consider, permanency planning requires examination of “the child’s actual lived experience in the world” by considering “the child’s point of view, valuing the child’s current emotional attachments, recognizing that time has an effect on the child, and recognizing that removing a child from a placement where the child has formed emotional attachments can cause ‘potential emotional, developmental, and educational harm to the child[.]’” Richard A. Perry, Relative Preference, Emotional Attachments, and the Best Interest of the Child in Need of Assistance, 50 U. Balt. L.F. 83, 106-07 (2020).
“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” the custody of the Department. See In re Jayden G., 433 Md. at 84. That “means having ‘constant, loving parents,’ knowing ‘that their home 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.
In re M., 251 Md. App. at 115.
FACTUAL BACKGROUND
Mother challenges the juvenile court’s orders concerning two of her four children, J.H. (born June 8, 2015) and T.C. (born January 10, 2022). At the time of these proceedings, both were in the custody of the Department and the foster care of non-relatives Mr. and Mrs. Ch. (“Foster Parents”). We review the events that caused the juvenile court to change T.C.’s permanency plan by eliminating reunification and to terminate J.H.’s CINA case with an order granting custody and guardianship to Foster Parents.
Family Overview
The Department first became involved with Mother in February 2021, when it received a report that she was in a manic state with disorganized and paranoid thoughts. At that time, Mother had two children. She has since given birth to two more. All four of Mother’s children have been removed from her custody based on her inability to safely care for them during
recurrent periods of mental instability, resulting in a series of psychiatric hospitalizations.
These CINA proceedings involve the first and third of Mother’s children, nine-year- old J.H. and nearly two-year-old T.C. On February 25, 2021, when the Department first received a report that Mother was neglecting her children, J.H. was five years old and living with Mother, while his father, T.H., was incarcerated on a second-degree murder conviction, with an expected release date of 2045. Mother’s second son, R.T., was three.
On March 4, 2021, as a result of the Department’s investigation, J.H. and R.T. were removed from Mother’s custody. K.T. took custody of his son, with father and child residing in the home of paternal grandmother K.M. J.H. was also sheltered with K.M. and later declared a CINA.
Mother gave birth to T.C. on January 10, 2022. The identity of T.C.’s father is unknown.
Over the ensuing several months, Mother was the subject of three emergency petitions for psychiatric evaluation. “A petition for emergency evaluation of an individual may be made . . . only if the petitioner has reason to believe that the individual: (1) [h] as a mental disorder; and (2) [p]resents a danger to the life or safety of the individual or of others.” Md. Code § 10-622(a) of the Health-General Article.
On July 6, 2022, the Department removed infant T.C. from Mother’s custody and placed her in shelter care with Foster Parents.1 In October 2022, because of Mother’s continuing conflicts with R.T.’s family, K.M. was “no longer willing to be a long-term resource” for J.H. The Department eventually moved J.H., placing him in Foster Parents’ home with T.C. in October 2022. Since then, both J.H. and T.C. have been in the care of Foster Parents.
In September 2023, while these CINA proceedings were ongoing for J.H. and T.C., in September 2023, Mother gave birth to her fourth child, E.C. On November 19, 2023, Mother again was emergently hospitalized, “for active symptoms of postpartum psychosis and schizoaffective disorder, bipolar type” on November 19, 2023. After leaving the hospital against medical advice, Mother had an altercation with the father of that newborn, for which she was charged with second degree assault on December 3, 2023. After E.C. “was sheltered to the [Department] and placed in a different foster home[,]” Mother again was involuntarily hospitalized on December 11, 2023, and again on multiple occasions before the juvenile court issued the order challenged in this appeal, at the conclusion of an April 2, 2024, CINA review and permanency planning hearing.
With this broad overview in mind, we now recount the timeline detailing events that led the juvenile court to terminate reunification with Mother as a permanency plan for T.C. and to grant custody and guardianship of J.H. to Foster Parents.2
February-April 2021: J.H.’s Removal and CINA Determination
On February 25, 2021, Mother took R.T. to the University of Maryland Medical Center, reporting that he had been “physically abused by a relative.” According to medical staff, Mother presented with “disorganized/paranoid thoughts and was in a manic state while caring for” J.H.
At that time, Mother had a history with law enforcement “due to aggression,” as well as a history of psychiatric hospitalizations. She had not received outpatient mental health treatment since her most recent hospitalization and was homeless.
When Department investigators contacted Mother and her family members, she stated that her parents were not her biological parents and told “several convoluted stories about her life that family members stated they had never heard before.” Her relatives reported that she was unable to care for her two children.
As a result of the Department’s investigation and intervention, R.T. went to live with his father, K.T., in the residence of his paternal grandmother, K.M. K.M. also agreed to care for J.H., allowing the half-brothers to stay together. Although K.M. initially cared for J.H. informally, Mother’s aggressive behavior toward her prompted the Department to file a CINA petition for J.H., on March 4, 2021.
On April 12, 2021, the juvenile court sustained allegations in J.H.’s CINA petition, finding that he was a CINA due to his father’s unavailability and Mother’s “history of untreated mental health issues which prevent her from providing appropriate care.” J.H., along with R.T., was placed in the Department’s custody and in the kinship care of R.T.’s paternal grandmother, K.M.
The juvenile court ordered Mother to maintain both stable and hazard-free housing and contact with the Department, and allowed her scheduled and unscheduled home visits at the discretion of the Department and K.M. In addition, the court directed Mother to “submit to a mental health evaluation, participate in any treatment recommendations that result there from [sic] and sign releases of information regarding the same.”
September 2021: Review and Permanency Plan for J.H.
At J.H.’s initial CINA review hearing on September 16, 2021, J.H. continued to reside with K.M., but Mother’s visits had become so “problematic due to conflict between her and” K.M., that J.H. was at risk of losing his placement with K.M.
Meanwhile, Mother was pregnant and living in a shelter. She insisted that her children had not been “removed because of her mental health,” but only because she was homeless and the stress of trying to raise her sons on her own “just came to a head[.]” She had obtained a housing voucher and was attempting to locate a suitable residence.
Police had been “called for [Mother] several times due [to] conflicts with staff and residents.” In one instance, a caseworker intervened when Mother became “extremely upset because she believed someone had poisoned a pear she ate.” Because of her conflicts and behavior, Mother was on probation at the shelter, at risk of being banned indefinitely. J.H.’s father, acknowledging that his incarceration prevented him from caring for J.H., requested that his own father, Je.H. (“Grandfather”) be investigated as a possible placement resource. Although Grandfather had prior criminal convictions that initially disqualified him as a resource, given the age and nature of those convictions, the Department proceeded to consider whether he could serve as a placement resource.
The juvenile court found that J.H. continued to be a CINA, then established a permanency plan of reunification and granted
January-May 2022: Birth of T.C. and Subsequent Review and Permanency Planning for J.H.
On January 10, 2022, Mother, while testing positive for THC, gave birth to T.C. Although Mother identified an individual as T.C.’s father, he denied paternity and executed an affidavit of non-parentage, saying “I am not the father, Ms. [C.] has some measure [sic] mental health problems and is psychotic[.]”
On February 17, 2022, the juvenile court held J.H.’s next CINA review and permanency planning hearing. Mother still did not have housing and was working with another program to secure it. She had not attended any mental health treatments for five months.
In March 2022, Mother had a mental health intake, resulting in a “severe depression” diagnosis “among other diagnoses” and a determination that further psychological evaluation was needed. In April, Mother was hospitalized on an emergency petition because of violent behavior.
By the CINA review hearing on May 12, 2022, she was not complying with her mental health treatment plan and had switched to another provider. She also had not taken T.C. to pediatrician appointments, so the Department was working to ensure the baby received appropriate medical care. Mother lost her housing voucher, so she was “back on the waitlist.” Although she remained in a shelter, she was at risk of being discharged for possessing marijuana.
With respect to J.H., Grandfather had advised the Department that he was available for respite care but would not serve as a full-time care provider.
The magistrate recommended adding a concurrent plan of custody and guardianship by a non-relative to J.H.’s existing plan of reunification. He also recommended that Mother be ordered to undergo a fitness-to-parent evaluation and a bonding study. Mother did not file exceptions. On May 23, 2022, the court entered an order consistent with those recommendations.
July-September 2022: Removal of T.C. and CINA Determination
On July 6, 2022, the Department received reports that Mother was not safely caring for T.C., prompting safety concerns, and another emergency petition, the third since April, this time to The Johns Hopkins Hospital on reports that she was “hostile, aggressive, irate, and exhibiting fire setting behavior and threatening behaviors.”
According to the Department, one of Mother’s friends reported to the Baltimore County Crisis Response Team3 that Mother had been giving infant T.C. spoiled milk, which was causing the infant to vomit. When the Crisis Response Team arrived on July 6, 2022, T.C. had a fever and was “very lethargic.” T.C. was evaluated by the Johns Hopkins Pediatric Emergency Department for neglect, and Mother was again emergently petitioned. Although T.C. was discharged that same day, Mother remained medicated and awaiting a psychiatric evaluation. Because there was no family or other resources to care for T.C., the Department placed her in shelter care with Foster Parents. Eight days later,
Mother showed up at the Department in a hospital gown demanding to see T.C., who was still in Foster Parents’ care.
On September 21, 2022, the juvenile court determined that T.C. is a CINA, finding that “Mother suffers from mental health challenges, was recently Emergency Petitioned to the hospital for safety concerns, [] has two other children not in her care and committed to the department,” and the “suspected father denies paternity.” The court again ordered Mother to maintain contact with the Department; to submit to a mental health evaluation and participate in any recommended treatment; to submit to a fitness-to-parent evaluation, a bonding study, and a substance abuse evaluation; and to maintain stable and hazardfree housing. The court permitted supervised visits.
October 2022: CINA Review and Placement of J.H. at Foster Parents
At J.H.’s next CINA review hearing on October 13, 2022, Mother was not present, and her attorney took no position, reporting that she had no contact from Mother for more than two months. The Department reported that it was trying to obtain housing services for Mother, but her failure to sign a consent prevented any progress.
Counsel for Mother acknowledged that the Department “ha[d] been making very good efforts and trying to maintain contact” with Mother, who had been banned from Baltimore County shelters, had no known address, and had not visited the children in months, since May 2022 for J.H. and July 2022 for T.C. Mother “had about five or six phone numbers and change[d] her email often.” Her sister reported that Mother recently “lost her phone again.”
The Department reported that Mother was diagnosed with post-traumatic stress disorder, bi-polar disorder, and depression, “amongst other mental health issues.” The Department did not know if Mother was receiving any mental health treatment. Mother refused to participate in either a bonding study or a parental fitness evaluation, as ordered by the juvenile court. According to her attorney, she did not “think [Mother] was able . . . at this point in time due to her current circumstances.”
In October, when J.H.’s placement with K.M. disrupted, the Department proposed placing him in Foster Parents’ home with T.C. Given that change, Grandfather became willing to serve as a placement resource for him. Although the Department considered that placement, Grandfather was not an appropriate resource because of his convictions for distributing controlled dangerous substances in 2005 and robbery with a deadly weapon in the mid-1990s. Grandfather acknowledged his criminal past, explaining that he had been “bad 15 years” ago, but he was different now. The magistrate instructed the Department to prepare a courtesy custody and guardianship packet for Grandfather before the next hearing.
On October 17, 2022, J.H. was placed in Foster Parents home with his half-sister T.C.
November 2022-March 2023: Reunification Efforts and CINA Review
After making virtual visits, Mother resumed in-person visits with both J.H. and T.C. in January 2023. Yet her behavior created new obstacles to reunification.
During a supervised visit in January 2023, Mother asked J.H. questions about Mrs. Ch., making J.H. nervous. After remaining “micro-focused” on Foster Parents, she started yelling and refusing to return the children, stating that she would take them to live with her at the House of Ruth. When the social worker attempted to deescalate the situation, Mother threatened her. Responding to the Department, police intervened to return both children to Foster Parents.
As a result of this behavior, Mother’s visitation again became virtual. In February 2023, the Department responded to Mother’s requests for in-person visitation by requiring her to participate in the recommended mental health evaluations and treatment as a prerequisite. After the Department referred Mother to a mental health program, she completed an intake and began virtual visitation on March 2, 2023.
At a joint CINA review hearing for both J.H. and T.C. on March 27, 2023, Mother still did not have housing and was facing new criminal charges for second degree assault. Mother had refused to attend parenting classes or to complete a fitnessto-parent evaluation or bonding study. She continued to insist that her children had been removed from her custody because she was homeless, not because of her mental health issues.
Both Mother and Mr. H. again asked for Grandfather to be a placement option for J.H. The magistrate recommended that the Department reconsider Grandfather given the nature and age of his criminal convictions.
For both children, the magistrate recommended concurrent permanency plans of reunification with Mother and custody/ guardianship to a non-relative. The magistrate also recommended virtual visitations continue until Mother received mental health treatment. On the day following the hearing, Mother notified the Department that she was living at A Step Forward4 and was pregnant. With no exceptions filed, the court entered orders implementing the magistrate’s recommendations, on March 30, 2023. Yet six days later, on April 13, Mother left that housing and mental health program without completing it.
May 2023: CINA Review and Permanency Planning Hearing
During the ensuing two months before the next CINA review hearing on May 25, 2023, Mother again had little contact with the Department. The Department reported that after completing her mental health intake in February 2023, Mother had not attended any therapy appointments. She refused to sign a service agreement, to complete parenting classes, and to participate in a bonding study.
Counsel for the children reported that both J.H. and T.C. were doing “very, very well” living with Foster Parents.
Mother again requested that the children be placed with Grandfather. The Department “completed an assessment and kinship packet for” Grandfather. Although his son was not T.C.’s father, Grandfather was willing to be a placement resource both J.H. and T.C. He previously cared for one of Mr. H.’s daughters for six years, and his virtual visit with J.H. had gone well.
The magistrate, satisfied that Grandfather’s criminal record should not be an obstacle, accepted Grandfather’s assurances that he could care for both J.H. and T.C. The magistrate recommended that the children’s commitment to
the Department be rescinded and that Grandfather be awarded custody and guardianship of both children. Nevertheless, the magistrate found “good cause” to keep both CINA cases open to ensure that the placement with Grandfather would be reviewed at a hearing on September 21, 2023.
On May 26, 2023, the Department and both children filed exceptions to the magistrate’s placement recommendations.
August-September 2023: Exceptions Hearing and CINA Review Hearing; E.C.’s Birth
On August 8, 2023, the juvenile court held an exceptions hearing. At that time, Mother was still unemployed and living in a hotel, but she had a housing voucher and was under the care of therapist Bri Matthews, working on her parenting, trust, and anger issues.
During that hearing, the parties agreed that both children should remain committed to the Department pending completion of a formal home study of Grandfather, who was given liberal and supervised visitation with the children. Mother explained that she wanted Grandfather to have custody because, when he cared for his other grandchildren, he “gave [that mother] her children back once she got her housing” and “said he’s going to go through the same stuff with me.”
Because Mother was in therapy, she was able to resume inperson visitation on September 5, 2023. At the review hearing on September 21, 2023, Mother was not present because she was hospitalized, giving birth to her fourth child, E.C.
The Department reported that Grandfather’s home study was complete except for medical clearance from Grandfather’s doctor. Nevertheless, Grandfather had only participated in one virtual visit with the children, several months earlier, then failed to respond to the Department’s efforts to set up in-person visits. Counsel for the children pointed out that it was Grandfather’s responsibility to work with the Department to arrange for inperson visits.
Mother no longer wanted J.H. or T.C. placed with Grandfather, however, because
she had housing and believed Grandfather had “other priorities” including health issues. Grandfather reported that he would have medical clearance by the end of October.
Eight-year-old J.H. told the magistrate that he loves Mother and if he could live anywhere, he would live in New York City with her and his siblings. He did not “know” what he thought about living with Grandfather and described living with Foster Parents as “great.”
The Department reported that J.H. and T.C. were doing well with Foster Parents, who had obtained mental health treatment for J.H. They were willing to be a long-term placement for both J.H. and T.C.
The magistrate recommended concurrent plans of reunification and custody and guardianship for both children, with Mother having liberal supervised visits. The magistrate directed Grandfather to contact the Department “if, in fact, you are interested in visits.”
Both the Department and the children filed exceptions to the magistrate’s recommendations.
October 2023: Mother’s Aggressive In-Person Visitation
After giving birth to E.C. on September 21, 2023, Mother brought the newborn to the Department for a supervised visit with J.H. and T.C. on October 17, 2023. While driving J.H. and T.C. to the Department, however, Foster Parents’ car broke down. When the Department’s family support worker told Mother the visit would likely have to be canceled, Mother became angry, refused to leave, and threatened to “beat” the worker and “break out [her] car windows.” Building security guards, witnessing Mother’s threats, asked Mother to calm down; when she did not, they called police. When Mother learned police were coming, she turned her “aggressive and threatening language” on the guards.
Despite the car trouble, Foster Parents did bring J.H. and T.C. to the Department for the scheduled visit. As a result, both children witnessed Mother’s aggressive behavior. For the next two days, J.H. cried and acted out at school. When the Department notified J.H.’s therapist of the incident, she observed that J.H.’s behavior indicated that something had happened, even though he had not been willing to talk about it.
Mother’s “[v]isitation was reverted to virtual” until she obtained “anger management” therapy and a mental health reassessment. Mother made two virtual visits, on October 19 and 24, 2023. After those, she did not contact the Department about visits.
November 2023-January 2024: Mother Is Psychiatrically Hospitalized Multiple Times, E.C. Is Removed From Her Custody, and Mother Is Charged With Assault
On November 14, 2023, the Baltimore City Department of Social Services (the “City Department”) received a call from the Baltimore City Police Department regarding Mother. E.C.’s father, Mr. P., had called the police to report a “heated argument” with Mother, during which she was “acting in a bizarre way” and throwing objects. Mr. P. also reported that Mother was not “taking her medication recently” and was “talking to herself.”
Police transported Mother to Grace Medical Hospital, where she was evaluated and discharged Mother later that day. Because Mother refused to sign a release, the Department was unable to obtain any additional information.
On November 19, 2023, Mother was emergently petitioned to St. Agnes Hospital, then admitted to Howard County General Hospital, for “active symptoms of postpartum psychosis and schizoaffective disorder, bipolar type.” Five days later, on November 24, Mother left the hospital against medical advice.
On December 3, 2023, following another altercation with Mr. P., Mother was arrested and charged with second degree assault in Baltimore City. When the City Department received a report that E.C. was not safe in Mother’s care due to her untreated metal health issues and aggression, a caseworker observed that Mother appeared to be “hallucinating” and “talking to people who were not there.”
Because the City Department was unable to locate Mr. P. or other relatives, two- month-old E.C. was placed in shelter care. He was later placed with his paternal grandmother.
On December 10, 2023, the Department was notified by Bayview Hospital that Mother had been involuntarily committed. On December 11, 2023, she was transferred to the University of Maryland Medical Center. Mother reported that
she spent 10 days in the hospital. Although the Department contacted Mother’s last-known mental health provider on multiple occasions, it did not get any response.
With Foster Parents’ help, Mother did have virtual visits with J.H. and T.C. on Christmas and on January 11, for T.C.’s birthday.
January-February 2024: Exceptions Hearing on Permanency Plans for J.H. and T.C.
In early 2024, the Department, citing Mother’s continuing mental instability and non-compliance with the conditions set by the juvenile court for regaining custody, changed its recommendations for permanency plans. Mother had not been in contact with the Department. With respect to Grandfather as a placement option, the Department arranged three in-person visits, but he “missed” all of them.
The exceptions hearing on the Department’s and the children’s challenges to the magistrate’s recommendations began on January 29, 2024 and continued into April. At the outset, the Department reported that Mother had “minimal” contact during the last four months. As a result, the Department was unable to verify the status of Mother’s employment, housing, or substance abuse treatment. Nor could the Department discern her mental health status and treatment history.
Mother, who was present at the January 29 hearing, still had not yet completed the bonding study or fitness-to-parent evaluation ordered by the court. She acknowledged a “slight break in her therapy” following E.C.’s birth but claimed she had been receiving therapy since her hospitalization. She also admitted “being extremely frustrated with how visitations ha[d] been going” but “denie[d] ever doing anything to . . . injure her children, or to make them afraid of her.”
In her view, the postpartum “issues as far as [] mental stability” were caused by her medication, and fully resolved by adjusting it. Now that she was taking “the correct medications[,]” she claimed to be doing “everything” that she was “supposed to have done.”
The Department requested that the permanency plan for T.C., who had lived with Foster Parents for more than 18 of her 24 months, be changed to concurrent plans of adoption or custody and guardianship by a non-relative. The Department also requested that the court grant the Foster Parents custody and guardianship of J.H, who had spent nearly three years in care and had been “safe and happy” in this home for the preceding 15 months.
Mother and J.H.’s father objected to the Department’s home study on Foster Parents on the ground that it had been prepared for an older case. The court, after reserving on that challenge, ultimately directed the Department to update its home study for a hearing on March 6, 2024.
March-April 2024: Exceptions Hearing Continued
Mother was not present for the continuation of the exceptions hearing on March 6, at which the Department submitted an updated home study. Because that study lacked required signatures, the court postponed the hearing to April 2, 2024, combining the exceptions with permanency plan reviews.
At the April 2 hearing, the Department still had not been able to obtain updated information on Mother’s mental
health treatment, despite repeated efforts. The court ruled out Grandfather as a placement resource based on his inconsistencies in taking advantage of visitation opportunities with the children.
Mother continued to refuse repeated court orders to participate in a bonding study and to complete parenting classes. She did not respond to emails or phone calls from the Department or the evaluator.
The court admitted the Department’s updated home study of Foster Parents without objection. In Foster Parents’ fivebedroom single-family home, T.C. had her own room, and J.H. shared a room with a twelve-year-old boy who had been fostering in the home since July 23, 2021. The two teenage sons of Foster Parents moved their rooms to accommodate T.C. The Foster Parents enjoyed family game nights, sports, outdoor activities, and traveling.
Eight-year-old J.H. loved his Mother and hoped to be reunified with her someday. Yet he also was “bonded” and “happy being with the [Ch.] family” and with his baby sister T.C. He did well in third grade, where he had a 504 plan,5 friends, and a teacher he liked.
His reading struggles had improved since he came to live with Foster Parents.
Two-year-old T.C., who had lived with Foster Parents since she was five months old, called them “mommy” and “daddy” and regards them as “her primary caregivers.” She was described as a “boss” in the household and a “leader” in daycare.
The Department and counsel for the children asked the court to award custody and guardianship of J.H. to Foster Parents and to rescind his CINA commitment, and also to change T.C.’s permanency plan to concurrent plans of custody and guardianship by a non- relative or adoption by a non-relative.
April 2, 2024: Custody and Guardianship Order for J.H. and Change in Permanency Plan for T.C.
The juvenile court sustained the exceptions by the Department and children, granted Foster Parents custody and guardianship of J.H, and changed T.C.’s permanency plan to concurrent plans of adoption by a non-relative and custody/ guardianship by a non-relative, thereby terminating reunification planning and efforts. Explaining its reasons, the court found that “the children were brought into care after living with Mother due to . . . the inability for stability with mental health and the safety concerns resulting from that,” but “we are in the same situation now.” Although “the Department ha[d] been working diligently with [] Mother,” the court determined that there “are still unaddressed mental health concerns, and lack of active treatment by Mother[.]” Mr. H. was not a resource due to his incarceration, and T.C.’s father was unknown.
The juvenile court followed applicable legal standards, expressly considering the statutory factors enumerated in Family Law § 5-525(f)(1) and giving “primary consideration to the best interests” of the children. Citing Father’s unavailability and Mother’s “history of mental health that has not been stabilized[,]” featuring more involuntary hospitalizations since the last hearing, “Mother’s “still unaddressed mental health concerns, and lack of active treatment by Mother[,]” the court ordered custody and guardianship of J.H. to Foster Parents and
closed his CINA case.
Given these same concerns about Mother’s mental health instability, her failure to address questions about her parenting fitness, and the lack of any paternal resources for T.C., the court changed her permanency plan to concurrent plans of adoption by a non- relative and custody and guardianship by a non-relative. Because T.C.’s CINA case remains open, the court continued to make resources available to Mother, ordering her again to participate in mental health treatment and comply with all treatment recommendations; to maintain regular contact with the Department; and to complete parenting classes, a fitness-to-parent evaluation, and a bonding study. Mother noted this timely appeal.
DISCUSSION
Mother contends that the juvenile “court erred when it . . . granted the foster care resources custody and guardianship of J.H. with case termination and changed T.C.’s permanency plans to nonrelative adoption and custody and guardianship.” In her view, “reunification remained in the family’s overall best interests” because “the totality of the case circumstances reflected that [Mother], who had stable housing and resolved her brief postpartum mental health issues, was ready (immediately or imminently) to regain custody of her children, even if that custody were subject to ongoing DSS and judicial oversight[.]” We address the orders for each child in turn, explaining why we agree with the juvenile court that even after the Department worked “diligently” to help Mother over a period of years, her pattern of persistent mental health instability remained an obstacle to reunifying with J.H. and T.C. Because Mother repeatedly refused “active treatment,” the court found serious safety concerns arising from her aggressive and erratic behavior, repeated hospitalizations, inconsistent communication, and lack of stable housing. Based on this record, we conclude the court did not err or abuse its discretion in changing T.C.’s permanency plan to eliminate reunification and in terminating J.H.’s CINA proceedings with an order granting custody and guardianship to Foster Parents.
I.
Appeal No.
279-2024/C-03-JV- 22-482: Change in Permanency Plan for T.C.
As we have explained, after T.C. was determined to be a CINA, the juvenile court was required to hold periodic review and permanency planning hearings. See CJP § 3- 823(b)(1), -- (h)(1). Correlating its findings to the factors set forth in FL § 5-525(f)(1) and CJP § 3-823(e)(2), the court agreed with the Department that eliminating the statutorily preferred plan for reunification with Mother, in favor of concurrent plans for custody/guardianship or adoption by the non-relative Foster Parents, was in T.C.’s best interests. See Koshko v. Haining, 398 Md. 404, 415 (2007); CJP § 3-823(h)(2)(i)-(vi).
In reviewing that decision, we are mindful that in determining that this change in T.C.’s permanency plan “would be in the child’s best interests[,]” CJP § 3-823(h)(2)(vii), “[o]ne of the primary considerations . . . is to avoid the harmful effects when children languish in temporary living situations.” In re
Ashley S., 431 Md. 678, 711 (2013). See In re M., 251 Md. App. at 115. Here, the court determined that T.C.’s commitment to the Department was still necessary and appropriate because she was safe in Foster Parents’ home but would not be safe in Mother’s care due to Mother’s persistent mental instability requiring repeated interventions via emergency petitions for psychiatric hospitalization. Despite the Department’s reasonable efforts to finalize the previous reunification plan, Mother’s lack of progress “toward alleviating or mitigating the causes necessitating commitment” left the child and the court “in the same situation” more than 20 months after she was removed from Mother’s custody based on findings of neglect. Mother’s uncontrolled mental illness was the common denominator in the pattern of neglect that resulted in the removal of all four of her children in emergent circumstances.
As the record we have detailed establishes, Mother’s mental health instability preceded T.C.’s birth and has persisted throughout her CINA proceedings. In addition to causing multiple involuntary hospitalizations during the 20 months after T.C. was removed from her care for neglect, Mother’s diagnosed but untreated bipolar disorder with psychosis contributed to multiple conflicts that resulted in her being banned from shelter housing, challenged to secure alternate housing, losing inperson visitation with T.C. and J.H., being charged with assault, and in the removal of Mother’s two-month old child from her custody and care.
During this extended period, Mother continued her pattern of failing to comply with repeated court orders to participate in mental health evaluation and treatment, and to complete parenting classes, a fitness-to-parent evaluation, and a bonding study. Instead, even when not in crisis, Mother refused, or at least failed repeatedly, to benefit from the resources offered by the Department to help her resolve the obstacles preventing her from having custody of T.C. because she could not safely care for her.
Compounding Mother’s inability to benefit from resources to improve her parenting abilities, she also failed to consistently communicate with the Department. During multiple intervals, she discontinued contact and was unreachable, including during the four months preceding the May 2023 review and permanency plan hearing, and again after the birth of her fourth child in September 2023, during which she again had to be emergently hospitalized on multiple occasions for psychosis.
Based on this record of persistent instability and disengagement, we conclude that the juvenile court did not abuse its discretion in changing T.C.’s permanency plan to eliminate reunification with Mother, so that resources could be directed toward preserving the long-term placement in which T.C. was thriving. Like the juvenile court, we reach this conclusion after considering each of the statutory factors governing our best interests analysis, as follows.
FL § 5-525(f)(1)(i): “the child’s ability to be safe and healthy in the home of the child’s parent”
We agree with the Department that the primary reason for T.C.’s removal was not Mother’s homelessness, but her persistent mental health instability that resulted in her failure to keep T.C. safe and healthy. At the time six-month-old T.C. was
sheltered on July 6, 2022, concerned family members reported that Mother was feeding the infant spoiled milk that made her vomit. The Department discovered T.C. in a fevered and lethargic condition, requiring emergency medical assessment and care. Mother was hallucinating and emergently hospitalized for mental health treatment. She remained psychiatrically unstable throughout T.C.’s CINA proceedings, being hospitalized multiple times on reports of aggressions and hallucinations. Her instability persisted through the months immediately preceding the April 2024 review and permanency planning hearing.
As the juvenile court emphasized at that hearing, “Mother suffers from mental health challenges, was recently Emergency Petitioned to the hospital for safety concerns, [and] has two other children not in her care and committed to the department[.]”
Previously, in April 2021, Mother’s older children, J.H. and R.T., were found to be unsafe in her custody and care due to Mother’s “history of untreated mental health issues which prevent her from providing appropriate care.” The court found that Mother was “in the same situation now[,]” nearly 21 months after T.C. was removed from her custody, and three years after the Department removed her older children from her custody. The record supports that finding.
Notably, Mother offered no explanation for why she fed T.C. spoiled milk that made the infant vomit, or why, having been emergently petitioned and hospitalized multiple times from July 2022 until April 2024, while failing to participate in mental health evaluations and treatment offered to her through the Department, her pattern of psychiatric crises would not continue. Mother—who had been diagnosed with bi-polar disorder, post- traumatic stress disorder, and depression, among other mental health issues – reported that she was now on “the right medication . . . for [her] anxiety.” Yet she failed to present any supporting evidence of her prescriptions, or to acknowledge her other diagnoses of depression, bipolar disorder, and PTSD. Nor did she respond to the Department’s attempts to confirm that she was receiving non-medication modalities of mental health treatment.
The record supports the juvenile court’s determination that Mother’s mental instability prevented her from providing a safe and healthy home for T.C. Although the Department offered resources toward reunification, including mental health treatment, parenting support, and housing vouchers, Mother did not benefit from them in a manner that improved her parenting. By the April 2024 hearing, she remained in only limited contact with the Department and not complied with the mental health, parenting, and bonding evaluations mandated by the juvenile court.
Instead, Mother’s mental illness remained unresolved, and at times acute, as she continued to deny responsibility for neglecting T.C. in a manner that posed risks to her safety and health. Although Mother attributed her multiple psychiatric hospitalizations in late 2023 to postpartum medication misalignment, causing her fourth child to be removed from her custody just two months after he was born, she was still experiencing mental health crises that posed persistent dangers to any child in her care.
Moreover, Mother’s behavior in courtroom proceedings did nothing to quell the court’s concerns about her ability to protect
T.C.’s safety and health. Her outbursts during the exceptions hearing, which continued despite admonitions by court and counsel, indicate that, as in two visits she had with T.C. during 2023, she still had difficulty in handling anger without escalating into inappropriate conduct, including verbal and physical conflict.
In our view, the court’s finding on this factor, by itself, supplies grounds to conclude that the court did not err or abuse its discretion in eliminating reunification from T.C.’s permanency plan. Before a parent who has neglected a child can regain custody, a juvenile court must “specifically find[] that there is no likelihood of further child . . . neglect” by that parent. See FL § 9-101(b). Although the juvenile court did not expressly invoke this directive, we may fairly infer that the court concluded that T.C. could not be reunified with Mother because she could not be safe and healthy in Mother’s custody or care given the continuing likelihood of further neglect by a mentally unstable parent. See CJP § 3- 823(e)(2); In re D.M., 250 Md. App. at 562.
Although the court’s findings on this factor provide sufficient factual and legal support for its decision, we will continue to briefly address the remaining statutory factors pertinent to the change in T.C.’s permanency plan, because those findings strengthen the foundation for the court’s decision that concurrent plans of custody/guardianship and adoption by Foster Parents are in the child’s best interests.
FL § 5-525(f)(1)(ii) and (iii): “the child’s attachment and emotional ties to the child’s natural parents and siblings” and “the child’s emotional attachment to the child’s current caregiver and the caregiver’s family”
According to the updated home study reviewed by the court during the April 2, 2024 hearing, two-year-old T.C., who was only six months when she began living with Foster Parents, calls them “mommy” and “daddy” and views them as her primary emotional attachment. She was thriving in a “stable environment” and bonded to Foster Parents and their children, “who care about [her].” Likewise, half-siblings T.C. and J.H. were bonded to each other while living in the same household, so that reunification of only T.C. with Mother would undermine their sibling bond.
The record refutes Mother’s contention that the juvenile court gave “no or little consideration to T.C.’s emotional attachment to Mother.” In addition to considering that the child was less than six months old when she was removed from Mother’s custody, the court recognized that during that short time the child lived with her, Mother had three emergency petitions due to her mental health instability. After T.C. was removed from her custody, Mother waited months before visiting and then communicated with the Department only intermittently. During Mother’s “inconsistent” visits with T.C., she had been “volatile” and in conflict with the Department workers and Foster Parents.
In light of this equivocal evidence regarding Mother’s relationship bond with T.C., and the countervailing evidence of T.C.’s relationship with Foster Parents, discussed next, the juvenile court did not err or abuse its discretion in weighing these factors in favor of changing T.C.’s permanency plan.
FL § 5-525(f)(1)(iv) and (v): “the length of time the child has resided with the current caregiver” and “the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement”
Both of these factors support the juvenile court’s determination that it is in T.C.’s best interests to eliminate reunification with Mother from her permanency plan. As discussed, when this permanency planning hearing took place in April 2024, T.C. had been living with Foster Parents for 20 months. Foster Parents expressed a desire to be a long- term or adoptive home for T.C. Because the evidence was undisputed that she was thriving in stable and loving care, the court did not err or abuse its discretion in concluding that T.C. would be harmed if she was removed from her current placement.
FL § 5-525(f)(1)(vi): “the potential harm to the child by remaining in State custody for an excessive period of time”
Recognizing that, like Mother’s other children, T.C. has spent a “lengthy period of time” in the Department’s custody outside Mother’s care, the court did not err or abuse its discretion in determining that it is in T.C.’s “best interest to be placed in a permanent home and to spend as little time as possible in foster care.” In re Adoption of Jayden G., 433 Md. 50, 84 (2013) (citation omitted). As our Supreme Court has emphasized, “‘emotional commitment’ and a sense of permanency [] are absolutely necessary to ensure a child’s healthy psychological and physical development.” Id. For that reason, the General Assembly has directed courts to make “[e]very reasonable effort . . . to effectuate a permanent placement for the child within 24 months after the date of initial placement[,]” in order to secure a “timely, permanent placement” for a CINA. See id.; CJP § 3-802(a)(7). See also FL § 5-525.1(b)(1)(i) (generally requiring the local department of social services to file a petition for termination of parental rights when a “child has been in an out-of-home placement for 15 of the most recent 22 months”). Indeed, as our appellate courts have explained, a child’s “continuation in foster care lacks the permanent legal status required by state law[,]” which subjects that child to “constant administrative and judicial supervision” that we recognize “is disruptive to the lives of [the child] and his [caregivers], and is the very type of uncertainty the child welfare statutes were designed to avoid.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 120 (1994). See also In re M., 215 Md. App. at 115 (recognizing that permanency protects a child’s “emotional attachments” to caregivers, siblings, home, neighborhood, and school). Here, the court’s decision to terminate reunification as a permanency plan was a legally and factually justified step toward establishing stability and permanency for T.C.
Conclusion
The juvenile court adhered to the correct legal standards in concluding that it was not in T.C.’s best interests to continue efforts to reunify her with Mother, with whom the child had not lived for 18 of her 24 months, because Mother failed to make reasonable progress toward alleviating her mental health instability that caused T.C. to be unsafe in Mother’s custody and
care. See CJP § 3-823(h)(2)(i)-(vi). Given the bonds and stability
T.C. enjoys with Foster Parents, and Mother’s persistent failure to stabilize her mental health and housing, while also failing to comply with the juvenile court’s orders to participate in mental health, parenting, and bonding services, and to remain in consistent contact with the T.C. and the Department, we affirm the court’s decision to change T.C.’s permanency plan to remove reunification as an alternative to concurrent plans of custody/guardianship and adoption by the Foster Parents in whose care she is thriving.
II.
Appeal No. 280-2024, C-03-JV-21-111: Custody/ Guardianship Order for J.H.
Mother also challenges the juvenile court’s order granting custody and guardianship of J.H. to Foster Parents, arguing that “the evidence showed that J.H. could currently, or at least imminently, be safe in her care and that she had made sufficient progress in remedying the issues that brought the family to the court’s attention to at least keep reunification a permanency option.” We again disagree.
The juvenile court reviewed the home study and the same statutory factors that it had considered with respect to T.C. The biggest distinctions between the two children were their ages and the longer time that J.H. had been in the Department’s custody. For that reason, we agree with the Department that “[m]uch of the analysis as to T.C., particularly regarding her ability to be safe in Mother’s care, applies with equal force to J.H.”
As we have recounted, all four of Mother’s children were removed from her custody in the midst of recurring mental health crises that endangered each child. Whereas Mother had not lived with T.C. for 20 months at the time of the hearing, Mother had not had custody of J.H. since February 2021. Although he loves Mother, J.H. was not living with her during his preceding three years, when Mother had multiple emergent hospitalizations and failed to maintain regular contact with J.H., in some instances for months at a time. J.H. was old enough to feel the effects of such distance and time.
When Mother did visit him, her behavior was inappropriate and aggressive. On one occasion, police had to be called and in-person visitations suspended. Witnessing such conflict was disturbing to J.H. Mother’s conduct during that supervised October 2023 visit upset J.H., who “acted out” and cried at school for the ensuing two days. That altercation, as well as Mother’s aggression toward others (for which she was facing second degree assault charges), even while in the presence of her children, gave the court and J.H.’s counselor reason to be concerned about sheltering the eight-year-old against such traumatic witness to Mother’s volatile words and actions.
Consequently, we reject Mother’s contentions that the juvenile court erred or abused its discretion in declining to “keep[] reunification J.H.’s permanency goal at least for one more six-month review period, with [M]other imminently obtaining custody of him.” To the contrary, the court correctly weighed the frequency of Mother’s mental instability in light of Mother’s unreliable contact with J.H. and the Department, her failure to comply with court orders designed to offer mental health and
parenting resources, and her aggressive or inappropriate in the presence of J.H. and her other children.
In addition, the court considered Mother’s track record against the two-year statutory benchmark for achieving permanency. See generally CJP § 3-823(h)(5) (“Every reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.”).
By the April 2, 2024 permanency planning hearing, J.H. had been living apart from Mother since February 2021 and with Foster Parents and T.C. since October 2022. According to the updated home study credited by the court, he was bonded to his foster family and half-sister and “thriving” in that household.
Applying the correct legal standards to this evidentiary record, the juvenile court did not err or abuse its discretion in terminating CINA jurisdiction over J.H. in favor of custody and guardianship to Foster Parents.
Conclusion
Based on this record, we are not persuaded that the juvenile court erred or abused its discretion in determining that Mother did not make sufficient progress in remedying the issues that brought the family to the court’s attention to at least keep reunification a permanency option. Like T.C., J.H. deserves the stability and certainty offered by Foster Parents’ custody and guardianship. When the court reviewed J.H.’s case at the April 2, 2024 hearing, the eight-year-old had been in the Department’s custody for three years, with a permanency plan that had included custody and guardianship for 22 months.
As our Supreme Court has recognized, juvenile courts must not “overemphasize[] the bond between the [parent] and the child and fail[] to properly consider permanency and the ability of the [parent] to successfully parent [the child] in a stable environment.” Adoption/Guardianship of C.E., 464 Md. at 56. Nor is a court required to allow children to remain in the Department’s custody indefinitely. Cf. In re Shirley B., 419 Md. 1, 33 (2011) (affirming change in permanency plan because “Ms. B.’s inability to improve her situation, arguably through no fault of her own, left the Children ‘languishing in foster care drift’ for 28 months, with no end in sight.”) Significantly, the Department did not seek to terminate J.H.’s bond with Mother by requesting adoption. Because the custody and guardianship order permits Mother to retain her parental rights, she may challenge custody if and when her circumstances change. See generally In re Caya B., 153 Md. App. 63, 78 (2003) (recognizing that “[p]arental rights are not terminated in such a situation: the parents are free at any time to petition an appropriate court of equity for a change in custody, guardianship, or visitation.”). Under these circumstances, the juvenile court did not abuse its discretion in awarding custody and guardianship of J.H. to Foster Parents and terminating his CINA commitment.
CONCLUSION
Throughout these proceedings, Mother’s mental instability remained a roadblock to reunification. Mindful that courts must “assess the reality of the children’s circumstances” by “evaluat[ing] the parent’s actual history of conduct and behavior,” Ashley S., 431 Md. at 711, 719, we conclude that
Mother’s rocky mental health record supports the juvenile court’s conclusion that neither T.C., nor J.H. could be “safe and healthy” in her custody within the 24 months contemplated by the CINA framework. See FL § 5-525(f)(1)(i) (requiring juvenile court to consider “the child’s ability to be safe and healthy in the home of the child’s parent”); CJP § 3-823(h)(5) (“Every reasonable effort shall be made the effectuate a permanent placement for the child within 24 months after the date of initial placement.”). Mother’s persistent failure to take benefit from the mental health and parenting resources offered by
the Department escalates the risks to her children from her recurrent mental health crises. Because nothing in this record gives us reason to reject the juvenile court’s finding that it is not in the best interests of T.C. and J.H. to extend reunification services, we conclude that the juvenile court did not err or abuse its discretion in eliminating reunification from T.C.’s permanency plan for custody/guardianship or adoption by the Foster Parents with whom T.C. is bonded, and in granting custody and guardianship of J.H. to Foster Parents.
PERMANENCY PLAN ORDER OF THE CIRCUIT COURT FOR BALTIMORE COUNTY DATED APRIL 2, 2024, IN CASE NO. C-03-JV-22-482, AFFIRMED. COSTS TO BE PAID BY APPELLANT.
CUSTODY AND GUARDIANSHIP ORDER OF THE CIRCUIT COURT FOR BALTIMORE COUNTY DATED APRIL 2, 2024, IN CASE NO. C-03-JV-21-111, AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 “‘Shelter care’ means a temporary placement of a child outside of the home at any time before [CINA] disposition.” Md. Code, § 3-801(bb) of the Courts & Judicial Proceedings Article (“CJP”).
2 Although Mother does not dispute the removals and CINA determinations for J.H. and T.C., and we are not reviewing proceedings regarding her other children, we present pertinent portions of all those adjudications as background for the permanency planning and guardianship orders challenged in this appeal.
3 The Baltimore County Crisis Response System, “a collaborative program between the Baltimore County Police and Health departments[],” provides trained professionals offering “mental health services to persons in mental, behavioral or emotional crisis” and “emergency police response to persons in need of crisis intervention,” to “assess individuals in need of services, offer resources and referrals, and complete emergency petitions when warranted.” Baltimore County Government, Behavioral Assessment Unit,
4 “A Step Forward Inc. is a spiritually-based nonprofit providing supportive housing, outpatient treatment, and mental health services in a safe, secure environment to foster recovery from substance abuse and life-threatening challenges.” A Step Forward Inc., About Us, https://www.takeastepforward. org/?s=about+us&submit=Search (last visited Nov. 20, 2024).
5 Section 504 of the Rehabilitation Act of 1973 protects people with disabilities who are enrolled in federally funded programs, including public schools, by ensuring that students receive reasonable accommodations for their disabilities through individualized “504 Plans” designed to meet educational needs and promote academic success. See Section 504 Plans, Maryland Dept. of Disabilities, https://mdod.maryland. gov/education/ Pages/Section-504-Plans.aspx (last accessed Nov. 20, 2024).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 48 (2024)
Child support; expenses; credit
Angi Pamela Montecinos v.
Jose Antonio Limpias
No. 23, September Term 2024
Argued before: Graeff, Arthur, Battaglia (retired; specially assigned), JJ.
Opinion by: Arthur, J
Filed: Nov. 22, 2024
The Appellate Court vacated the Montgomery County Circuit Court’s calculation of child support. The circuit court erred when it refused to credit mother with $500 per month in work-related child care expenses.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
the family home. Beginning in January 2021, Ms. Montecinos paid the monthly home payments on her own.
On November 17, 2022, Mr. Limpias filed a complaint for divorce in the Circuit Court for Montgomery County. Mr. Limpias requested an absolute divorce on various grounds, including a 12-month separation. Mr. Limpias requested joint legal custody and shared physical custody of the child.
On March 27, 2023, Ms. Montecinos filed a counterclaim for absolute divorce, joint legal custody, and shared physical custody. In addition, Ms. Montecinos requested child support, alimony, valuation and division of marital property, and a monetary award.
B. Pendente Lite Child Support
This appeal arises from a divorce and child custody case in the Circuit Court for Montgomery County. After a final merits hearing, the court granted an absolute divorce, granted the parents joint legal custody of their child, granted primary physical custody to the mother, ordered the father to pay child support, divided certain marital property, and granted a monetary award.
The mother has appealed, contending that the circuit court erred in making its custody determination, its calculation of child support, and its determination of the value of marital property. Although we reject most of these contentions, we conclude that the court improperly excluded the mother’s workrelated child care expenses from the child support calculation. We will set aside the ruling on child support and remand the case to the circuit court for the purpose of reevaluating the father’s child support obligation. We will uphold the rulings on the other issues.
FACTUAL AND PROCEDURAL BACKGROUND
A. Initiation of Divorce Proceedings
Jose Limpias and Angi Montecinos were married in 2010.1 Their only child, a daughter, was born in April 2014. During their marriage, they acquired a family home in Bethesda, which they owned jointly. They financed the purchase through a loan solely in the name of Mr. Limpias.
The parties separated in November 2020, when Mr. Limpias moved out of the family home. Mr. Limpias moved to an apartment located a short distance away from the family home. The child continued to reside primarily with Ms. Montecinos in
At a hearing in April 2023, the parties placed an agreement on the record regarding child support during the pendency of the divorce action. The parties calculated the amount recommended by the Child Support Guidelines based on Mr. Limpias’s pre- tax income ($7,259 per month), Ms. Montecinos’s pre-tax income ($5,308 per month), work-related child care expenses paid by Ms. Montecinos ($597 per month), and health insurance expenses paid by Ms. Montecinos ($121 per month). In accordance with the agreement, the court ordered Mr. Limpias to pay $1,437 per month in child support until the resolution of the case.
One week after the entry of the pendente lite child support order, Mr. Limpias lost his full-time job. Previously, Mr. Limpias had worked for a subcontractor that provides services to the FBI Academy, earning about $87,500 per year. His employer terminated his employment after he lost his security clearance because of an incident of misconduct. After a few months, Mr. Limpias stopped making the child support payments required by the pendente lite order. In mid-October 2023, Mr. Limpias started a new job at a private company, earning about $85,000 per year.
On October 30, 2023, Ms. Montecinos filed a petition asking the court to find Mr. Limpias in contempt for his failure to pay child support owed under the pendente lite order. In advance of the divorce merits hearing, the court issued an order requiring Mr. Limpias to show cause why he should not be held in contempt for his failure to pay child support.
C. Temporary Custody Order
Meanwhile, in accordance with the circuit court’s Family Division Differentiated Case Management Plan and Procedures,
the court had scheduled a multi-stage adjudication of the claims. The court scheduled a “Custody Merits Hearing” for July 19, 2023, to be followed by an eventual “Merits Hearing” on property issues and other issues in the case.
After the scheduled custody merits hearing, the circuit court entered a “Temporary Custody Order.” The order stated that the parties had “reached an agreement with respect to temporary custody which was placed on the record” at the hearing.2
Under the temporary custody order, the parents shared joint legal custody of their child. The order gave Ms. Montecinos tiebreaking authority in the event of a disagreement, but it stated that she could exercise her tie-breaking authority only after the parties attended one mediation session. The order granted primary residential custody to Ms. Montecinos and gave Mr. Limpias access every other weekend from Friday evening until Sunday evening. The order allowed Mr. Limpias to have additional access on every weekday evening from 5:30 p.m. to 7:30 p.m.
The temporary custody order prohibited both parents from using corporal punishment on the child and from using alcohol or drugs during their time with the child. The order required Mr. Limpias to submit to a drug and alcohol assessment from a court- approved evaluator within 90 days after the entry of the order and to comply with any treatment recommendations made by the evaluator.3 Finally, the order stated that the court would “set this matter in for review in six (6) months for the limited purpose of reviewing [Mr. Limpias’s] compliance with the assessment and treatment provisions” of the order.
D. Scope of the Merits Hearing
The court scheduled the merits hearing to occur on December 21, 2023. For reasons not stated in the record, the court postponed the merits hearing until February 8, 2024.4
Previously, the court had scheduled a limited review hearing of the temporary custody order on January 19, 2024. That review hearing did not occur, because the courthouse was closed as the result of a snowstorm.
At the start of the merits hearing on February 8, 2024, the trial judge explained that, in addition to the pending claims for divorce, division of marital property, alimony, and child support, there was “an unresolved issue regarding custody[.]” The trial judge presented the parties with “three options” for how to proceed to the final custody determination. The first option, the trial judge said, was to “send everybody . . . over” to the judge who had issued the temporary custody order on that same day to allow the custody hearing judge “to issue a final order” on child custody. The second option, the trial judge said, was to “have a custody trial today[,]” during the merits hearing on divorce and property issues. The third option was for the parties to “agree that the temporary order is the final order.”
Although the temporary custody order had required Mr. Limpias to complete a drug and alcohol assessment within 90 days after the entry of that order in July 2023, Mr. Limpias had still not provided the results of any assessment at the merits hearing.
Counsel for Mr. Limpias claimed that Mr. Limpias had done an “evaluation online,” but he had not “received the results yet.”
Counsel for Mr. Limpias represented that, when the parties had agreed to the temporary custody order, “it was everybody’s understanding” that the temporary custody order “would be a final order[.]” In response, counsel for Ms. Montecinos expressed concern about Mr. Limpias’s failure to complete the drug and alcohol assessment required by the temporary custody order. Her counsel stated: “I don’t feel as though I’m in a position to advise my client whether or not agreeing to that order would be safe for the minor child because that was the reason we originally did this.”5
The trial judge took a brief recess to inquire whether the custody hearing judge was available to address the unresolved custody issue. When the trial judge returned, he explained that the custody hearing judge would not be able to make a determination on that day because Mr. Limpias still had not provided the results of the drug and alcohol assessment. The trial judge concluded: “And so it doesn’t make sense for [the custody hearing judge] to hear this any further. So I’ll resolve those issues today.” Neither party objected to the trial judge’s decision to make the final custody determination as part of the divorce merits hearing.
E. Evidence at the Merits Hearing
The circuit court proceeded to take evidence concerning all issues in the case, including divorce, marital property, alimony, child custody, child support, and the petition for contempt. The parties themselves were the only witnesses to testify. The parties’ daughter was nine years old at the time of the hearing.
Shared Physical Custody During the Separation
Under the temporary custody order, Mr. Limpias was permitted to have access with the child on weekday evenings from 5:30 p.m. to 7:30 p.m. Mr. Limpias testified that he had been spending this time with his daughter “every single afternoon[.]” Ms. Montecinos estimated that Mr. Limpias had been using his access about “80 percent” of weekday evenings. On those occasions, Mr. Limpias would pick up his daughter from the home of Ms. Montecinos’s mother and drop her off at Ms. Montecinos’s home later in the evening.
According to Mr. Limpias, Ms. Montecinos frequently became upset any time they arrived after 7:30 p.m. Ms. Montecinos testified that she had repeatedly asked Mr. Limpias to arrive on time so that she can prepare her daughter for bedtime. Ms. Montecinos testified that, on some days, she would call her daughter to make sure that they would arrive on time. During some phone calls, she would hear Mr. Limpias screaming in the background, saying that Ms. Montecinos is “crazy” and making other derogatory comments about her. Throughout her testimony, Ms. Montecinos expressed concerns about Mr. Limpias’s temperament. Ms. Montecinos testified that she did not feel safe with Mr. Limpias “[b]ecause he has anger problems.” Three years earlier, she said, Mr. Limpias “struck” her while they were at a party, having an argument about him “cheating on [her]” with another woman. She testified that she called the police and that they arrested Mr. Limpias at that time.
In her testimony, Ms. Montecinos also expressed concern that Mr. Limpias may have been inflicting corporal punishment
on their daughter. Ms. Montecinos testified that, on three occasions, she observed “some marks” on her daughter’s leg, which she believed were made by a belt. Ms. Montecinos also stated that her daughter sometimes “came home . . . crying” after visits with Mr. Limpias.
Mr. Limpias’s Income
In his testimony, Mr. Limpias stated that, before May 2023, he had worked as a project manager for a subcontractor that provides services to the FBI Academy in Quantico, Virginia, earning about $87,500 per year. His employer fired him because of an incident of misconduct.
According to Mr. Limpias, this incident occurred on a night in April 2023 when he left the child at his apartment with a babysitter so that he could go out dancing. Around 2:30 a.m., a female friend confronted Mr. Limpias in a parking lot after seeing him with a different female friend. Mr. Limpias left the parking lot to avoid the discussion, leaving his keys and cell phone with one of the friends. The babysitter called the police at around 6:00 a.m. or 7:00 a.m., because Mr. Limpias had not returned home and she was unable to contact him. The police found Mr. Limpias at around 8:30 a.m., sleeping in a park within two blocks of his apartment. Mr. Limpias denied that he was under the influence of drugs or alcohol at the time of this incident.
Mr. Limpias admitted that he stopped making monthly child support payments a few months after losing his job in May 2023. In mid-October 2023, Mr. Limpias started a full-time job as a facilities operation analyst at Lucky Mart headquarters in Bethesda, earning about $85,000 per year. Mr. Limpias did not contest the allegation that he owed $8,119 in child support arrears.
During cross-examination, Mr. Limpias admitted that he also worked “part-time” for a cleaning business that he started about five years earlier. When asked how much this cleaning business makes, Mr. Limpias answered: “Barely, maybe $2,000.” Mr. Limpias stated that he spends “$5,000” each month for a vehicle used by the business, insurance, and other expenses. Mr. Limpias stated that he “d[oes]n’t make money” from the business, but that he was operating it to “build[] credibility” for the company in the future.
Ms. Montecinos’s Income and Expenses
Ms. Montecinos testified that she was employed as an architect for Penney Design Group in Bethesda. Ms. Montecinos provided paystubs showing that she earned $2,653.85 in pretax income every two weeks. Ms. Montecinos stated that her pay had recently increased by about $100 per month since those paychecks. Ms. Montecinos testified that, through her employment, she was currently providing health insurance for herself, her child, and Mr. Limpias.
Ms. Montecinos testified that, before leaving for work on weekday mornings, she takes her child to her mother’s house, where her sister takes care of the child until the child leaves for school. Ms. Montecinos stated that her sister takes care of the child after school until one of the two parents returns after the
workday. Ms. Montecinos also stated that she pays her sister $250 every two weeks to take care of the child before and after school. Previously, Ms. Montecinos stated, she had paid for child care before and after school at the “Kids After Hours” program, which was “more expensive” than the child care provided by her sister.
Marital Property
Under Md. Rule 9-207, in a divorce case in which a monetary award is sought, the parties are required to file a joint statement listing all marital and non-marital property.
In advance of the hearing, Ms. Montecinos had submitted a property statement, but Mr. Limpias did not submit any property statement. Mr. Limpias merely testified about each item that Ms. Montecinos had identified as marital property.
On her property statement, Ms. Montecinos claimed that the family home had a fair market value of $209,028.00, a lien of $177,674.09, and a net value of $31,353.91. Mr. Limpias agreed with this valuation.
On her property statement, Ms. Montecinos claimed that the parties owned land in Bolivia, all of which was marital property. Ms. Montecinos disclosed that she owned one property in her own name with a net value of $2,862.71. Ms. Montecinos claimed that Mr. Limpias owned two properties in his name with a net value of $9,060.00.
During his testimony, Mr. Limpias stated that he no longer owned any land in Bolivia. Mr. Limpias testified that he had sold the two properties for a total of about $8,000. Mr. Limpias also testified that he used the sale proceeds to pay for the funerals of three relatives—his father, his grandmother, and his aunt—who had each died of COVID within a period of a few weeks. According to Mr. Limpias, he “sent” a total of about $50,000 to his family members for funeral expenses. Mr. Limpias testified that, in addition to the property sales, he “g[ot] a loan from SoFi for 30K” and sent those funds to family members. Later in his testimony, Mr. Limpias admitted that he removed about $4,000 or $5,000 of his 401(k) retirement account during the separation.
On her property statement, Ms. Montecinos listed a 2019 Mitsubishi Eclipse as marital property. Mr. Limpias testified that he owned the vehicle solely in his name, that he had paid off the loans for the vehicle, and that its value was around $17,000 or $18,000. The parties agreed that Ms. Montecinos alone used this vehicle.
In his testimony, Mr. Limpias stated that he previously owned a Honda Accord, but he had totaled that car about six months earlier in an accident involving a construction vehicle. Mr. Limpias stated that after that accident he received $4,000 of insurance proceeds, which he used to make the down payment for a new personal vehicle.
Mr. Limpias testified that, around the same time of that accident, he had totaled another vehicle, a Mitsubishi Outlander. Mr. Limpias claimed that this accident occurred when he was driving to a cleaning job early one morning after he had been out dancing the night before. According to Mr. Limpias, the accident occurred because one of the car’s tires suddenly blew out. In her testimony, Ms. Montecinos recalled that Mr. Limpias
called her to ask her to pick him up on the morning of that accident. Ms. Montecinos testified that, based on his behavior and the smell of alcohol, he appeared to be “drunk” at that time.
F. Opinion of the Trial Judge
At the conclusion of the hearing, the court delivered an oral opinion, which included factual findings based on the evidence.
In its discussion of the factors relevant to child custody,6 the court found unequivocally that Mr. Montecinos was a fit parent. The court observed that the evidence established that Mr. Limpias provides appropriate care during his access time, including overnight visitation. The court stated that, even though Mr. Limpias “is fit” as a parent, he “could be a lot more fit.”
In light of his failure to complete the required drug and alcohol assessment, the court stated that Mr. Limpias “probably” has “an alcohol problem” and “is in 100 percent denial about it.” The court stated that it was “obvious that he has anger issues which he is not able to control, or at least not well enough.” The court noted that Mr. Limpias “appeared to be highly agitated” and “angry” at times throughout the hearing. The court credited the testimony that Mr. Limpias “screams insults and other things” in the background during phone calls between his daughter and Ms. Montecinos.
The court stated that it did not “put[] much weight” on the allegations that Mr. Limpias inflicted corporal punishment on his daughter. Aside from her own testimony, the court stated, Ms. Montecinos offered “no corroborating evidence[,]” such as photographs of the injuries that she observed. The court noted that Ms. Montecinos had not requested supervised visitation or any significant changes to the shared physical custody arrangement that was already in place. For that reason, the court concluded that Ms. Montecinos did not believe that Mr. Limpias had abused their child.
The court explained that it would leave most terms of the temporary custody order in place. Although the court acknowledged that the parties had demonstrated only “a limited capacity . . . to work together to make shared decisions[,]” the court decided that joint legal custody was appropriate. Finding that the “dynamic” between the parents was not “conducive to mediation[,]” the court decided to eliminate the requirement of a mediation session for Ms. Montecinos could exercise her tie-breaking authority. The court further decided to change the physical custody schedule so that Ms. Montecinos would also have more time with the child on weekdays. The court reduced Mr. Limpias’s weekday access from five evenings per week to two evenings per week.
The court used the Child Support Guidelines to determine Mr. Limpias’s child support obligation. To determine Mr. Limpias’s income, the court relied on his testimony that he earns $85,000 per year, or $7,083 per month, from his full-time job. The court acknowledged Mr. Limpias’s testimony that he also “makes $2,000 a month” working part-time for his cleaning business, but stated that “he also testified that all of that” revenue “goes away in expenses[.]” For that reason, the court did not include the cleaning business revenue as part of his income.
The court found that Ms. Montecinos earns $5,966 per month
and that she pays n health insurance expenses for the child. The court acknowledged that Ms. Montecinos testified that she pays her sister $250 every two weeks to watch the child before and after school. The court said that it would “not giv[e] [Ms. Montecinos] credit” for any work-related child care expenses “because it’s a relative who’s babysitting.”
In deciding the disposition of marital property, the court determined the value of the items listed as marital property on Ms. Montecinos’s property statement. The court found the jointly-owned family home had a net value of $31,253.91. The court found the value of the 2019 Mitsubishi Eclipse, owned by Mr. Limpias and used by Ms. Montecinos, to be $17,500. The court noted that Mr. Limpias mentioned his ownership of two other vehicles, but stated that his business vehicle had “unknown value” and that there was “no evidence as to the value” of his personal use vehicle. The court accepted Ms. Montecinos’s assertion that the net value of the property she owned in Bolivia was $2,862.71. The court found the value of the two properties in Bolivia, formerly owned by Mr. Limpias, to be $8,000. The court found that Mr. Limpias “essentially dissipated
$8,000” of marital property by “selling th[o]se properties and then using it towards his relatives’ funerals.”
Based on its consideration of the relevant factors, the court denied the request for alimony but granted the request for a monetary award. To determine the monetary award, the court first calculated the total value of the land that Ms. Montecinos owned in Bolivia and the land that Mr. Limpias previously owned in Bolivia. The court divided the total value in half and then subtracted the value of the land that Ms. Montecinos still owned. This calculation resulted in a monetary award of $2,568.65 in favor of Ms. Montecinos.
G. Final Judgment of Absolute Divorce
On February 9, 2024, the court entered a final judgment resolving all issues raised in the divorce pleadings and in the petition for contempt.
The court granted the parties an absolute divorce on the ground of a 12-month separation. The order required Mr. Limpias to transfer title of the 2019 Mitsubishi Eclipse (which the court had valued at $17,500) to Ms. Montecinos. The order required the parties to sell the marital home (with a net value of $31,253.91) and to divide the proceeds evenly. The court granted Ms. Montecinos a monetary award in the amount of $2,568.65.
The court granted the parties joint legal custody of their child and granted tie- breaking authority to Ms. Montecinos. The court granted primary physical custody to Ms. Montecinos. The court granted Mr. Limpias parenting time every other weekend, from Friday evening until Sunday evening. The court also granted Mr. Limpias additional access for two hours on Monday and Wednesday evenings during the week.7
The order prohibited the parents from using corporal punishment on the child.
The order required both parents to refrain from using alcohol or non-prescription drugs during their time with the child. The order also required Mr. Limpias to submit to a drug and alcohol evaluation within 30 days of the entry of judgment, to follow
any treatment recommendations by the evaluator, and to provide proof of his completion of the evaluation and treatment to Ms. Montecinos. Finally, the order required Mr. Limpias to participate in an anger-management program and to provide proof of his completion of the program to Ms. Montecinos.
The court ordered Mr. Limpias to pay $1,066 per month in child support beginning February 28, 2024. This amount represented the recommended child support obligation under the Child Support Guidelines based on the following information: Mr. Limpias’s pre-tax income ($7,083 per month), Ms. Montecinos’s pre-tax income ($5,966 per month), and health insurance expenses paid by Ms. Montecinos ($121 per month).
The court found that Mr. Limpias owed $8,119 in child support arrears at the time of judgment. The court ordered him to pay an additional $338.29 per month towards his child support arrears until his arrears are paid in full. The court found Mr. Limpias in contempt for failing to comply with the pendente lite child support order. The order stated that Mr. Limpias could “purge this Contempt finding by paying $1,000.00 towards his arrears” within 45 days of the entry of judgment.8
After the entry of judgment, Ms. Montecinos filed a timely notice of appeal.
DISCUSSION
In this appeal, Ms. Montecinos challenges the circuit court’s rulings on custody, child support, and the division of marital property. Ms. Montecinos asks this Court to reverse the judgment and to remand the case for a new hearing on those issues.
In her first challenge, Ms. Montecinos contends that the circuit court did not provide sufficient notice that it would conduct a final hearing on child custody as part of the merits hearing. Second, she contends that the court incorrectly calculated Mr. Limpias’s income and improperly failed to include her workrelated child care expenses when calculating child support. Third, she contends that the court incorrectly determined the value of certain marital property when evaluating her request for a monetary award.
For his part, Mr. Limpias filed no appellate brief in this Court.
For the reasons discussed below, we will affirm the judgment in part and reverse the judgment in part. We conclude that the circuit court erred by excluding Ms. Montecinos’s work-related child care expenses from its child support calculation. We will set aside the child support determination and remand the case for a reevaluation of child support. We will affirm the judgment with respect to all other issues.
I. Notice of the Final Child Custody Hearing
In this appeal, Ms. Montecinos contends that the circuit court failed to provide “sufficient notice that the [c]ourt intended to conduct a final custody merits hearing at the time of the divorce merits hearing[.]”
In the early stages of the case, the circuit court had issued a scheduling order notifying the parties that the court would hold a “Custody Merits Hearing” on July 19, 2023, to be followed by an eventual “Merits Hearing” on property issues and other
issues. Both parties appeared with counsel for the scheduled custody merits hearing and placed “an agreement with respect to temporary custody” on the record. One provision of the temporary custody order required Mr. Limpias to submit to a drug and alcohol assessment within 90 days and to comply with any treatment recommendations made by the assessment provider. The order stated that the court would revisit the matter after six months “for the limited purpose of reviewing [his] compliance with the assessment and treatment provisions” of the order.
The court scheduled the review hearing contemplated by the temporary custody order to occur on January 19, 2024, but the courthouse was closed on that date as the result of a snowstorm. Thus, when the parties appeared with counsel for the “Merits Hearing” on February 8, 2024, the competing claims for custody remained unresolved.
At the beginning of the merits hearing, the trial judge announced that the purpose of the hearing was to resolve the claims for divorce, division of property, alimony, and child support. The trial judge explained that there was also “an unresolved issue regarding custody[.]” The trial judge stated that there was “still a temporary custody order” in effect and “there need[ed] to be a final custody order” in the case.
The trial judge presented the parties with “three options” for how to proceed to make the final custody determination. The first option, the trial judge said, was to “send everybody . . . over” to the custody hearing judge on the same day, to allow that judge “to issue a final order[.]” The second option, the trial judge said, was to “have a custody trial today” during the divorce merits hearing. The third option was for the parties to “agree that the temporary order is the final order.”
The first option proved to be unworkable, because the custody hearing judge would not be able to make a final custody determination that day. The parties could not agree on the third option, because counsel for Ms. Montecinos said that she was unable to advise her client about whether to make the pendente lite order a permanent order in view of Mr. Limpias’s failure to complete the drug and alcohol assessment. In accordance with the remaining option, therefore, the court asserted that it would resolve the custody and child support issues.
Neither party objected to the court’s decision to include the final custody hearing as part of the divorce hearing. In response to the decision, counsel for Mr. Limpias stated, “Okay.” Counsel for Ms. Montecinos responded, “Thank you, Your Honor.”
In this appeal, Ms. Montecinos now argues that the circuit court failed to provide adequate notice of the final custody hearing. Ms. Montecinos asserts that, because the parties did not receive advance notice that the court would consider custody issues at the merits hearing on February 8, 2024, neither party was prepared to present evidence or make arguments on the custody issues. Ms. Montecinos contends that, by failing to give advance notice of the final custody hearing, the court violated her right to due process of law.
In support of her contentions, Ms. Montecinos cites Van Schaik v. Van Schaik, 90 Md. App. 725 (1992). According to Ms. Montecinos, the circumstances of the Van Schaik case are “similar” to those of the present case.
The Van Schaik case arose from a divorce proceeding in
which two parents had reached an agreement that provided for joint legal custody of their child, primary physical custody with the mother, and visitation with the father. Van Schaik v. Van Schaik, 90 Md. App. at 729. The court-appointed attorney for the child “requested a hearing ‘with regard to visitation and other issues.’” Id. at 730. The court issued a notice informing the parents of “a hearing on ‘visitation and child’s possessions.’” Id. at 738. Because the father and his counsel “understood that the purpose of the hearing involved minor visitation and property issues[,]” the father appeared without counsel at the hearing. Id. at 730. Neither the parents nor the attorney for the child had requested any change in custody at any time before the hearing. Id. at 730 n.4. Nevertheless, at the conclusion of the hearing, the trial court “terminated [the father’s] joint custody rights[.]” Id. at 730.
In the ensuing appeal, this Court determined that the father “was not given proper notice that matters relating to custody were to be the subject of the hearing at issue.” Van Schaik v. Van Schaik, 90 Md. App. at 738. This Court observed that, by statute, trial courts must give parties “‘reasonable notice and opportunity to be heard’” before making a child custody determination. Id. (quoting Md. Code (1984, 1991 Repl. Vol.), § 9-205 of the Family Law Article).9 The Court explained: “[I] f a court is contemplating holding a hearing at which it will, or may, determine custody issues, a parent with custodial rights . . . must be notified that such an issue may be the subject of the hearing.” Van Schaik v. Van Schaik, 90 Md. App. at 738.
The Court observed that the hearing notice “did not notify either parent that the court was contemplating making a custody decision.” Van Schaik v. Van Schaik, 90 Md. App. at 738-39. Moreover, “[n]either parent had asked for a change in custody or for a custody determination.” Id. at 739. In addition, “[n]either parent was represented by counsel and . . . , until the court made its ruling on custody at the conclusion of the hearing, neither parent was aware that the hearing was in any way concerned with the matter of custody.” Id. The father did not even have “an opportunity for effective argument on the issue of custody when there was no notice at all that it would be considered nor any discussion during the hearing itself of that issue.” Id. The Court concluded that the lack of notice “constituted prejudicial error[]” as well as “a denial of due process[.]” Id.
The circumstances of the present case differ in many important respects from those of Van Schaik. In Van Schaik, no party had requested any change in custody, the court had given notice of a hearing limited to visitation issues and issues related to the child’s property, the parties appeared without counsel for the hearing, and the court ordered a change in custody without even alerting the parties of its intention to make a custody determination. In the present case, both parties had raised competing claims for custody. The circuit court had scheduled a custody review hearing to occur three weeks before the merits hearing, but that review hearing had not taken place. When the parties appeared with counsel for the merits hearing, the trial judge presented the parties with three options for resolving their custody claims, one of which was to resolve the custody issues during the divorce merits hearing.
After one option proved to be unavailable and counsel for Ms. Montecinos rejected another, the court announced that it
would resolve the custody issues as part of the merits hearing. When the court announced this decision, counsel for Ms. Montecinos did not object or propose any alternatives. Counsel for Ms. Montecinos did not say anything indicating that she was unprepared to present evidence or argument on the custody issue. Counsel for Ms. Montecinos simply responded, “Thank you, Your Honor.” This response gave the court no reason to think that Ms. Montecinos opposed the court’s decision to adjudicate the custody issue on that day.
“Ordinarily,” except for certain jurisdictional issues, this Court will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court[.]” Md. Rule 8-131(a). The purposes of this Rule are “‘to require counsel to bring the position of their client to the attention of the [trial] court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings’ and ‘to prevent the trial of cases in a piecemeal fashion[.]’” Univ. Sys. of Maryland v. Mooney, 407 Md. 390, 401 (2009) (quoting Robinson v. State, 404 Md. 208, 216-17 (2008)). Maryland Rule 2-517 prescribes the method of making objections in civil cases. This rule states that, “[f]or purposes of review by the trial court or on appeal of any . . . ruling or order” other than a ruling on the admission of evidence, “it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.” Md. Rule 2-517(c).10
In Phillips v. Venker, 316 Md. 212 (1989), the Court discussed what a party must do to preserve a contention that the party lacked adequate notice of a hearing. That case arose from a personal injury action in which the defendant had moved for summary judgment. Id. at 213-14. Three days before the summary judgment hearing, the trial judge arranged a “telephone conference between counsel for each party and the judge, ostensibly to discuss the [plaintiffs’] request for a continuance” of the summary judgment hearing. Id. at 215. When the trial judge began to inquire into the merits of the motion, counsel for the plaintiffs “stated that he did not have his file in hand, had not reviewed it for argument and had two clients in his office at the time.” Id. At the judge’s direction, counsel for the plaintiffs retrieved his case file. Id. The judge proceeded to conduct the summary judgment hearing and granted summary judgment in favor of the defendants. Id.
In the ensuing appeal, the plaintiffs contended that the trial court had failed to give adequate notice of the summary judgment hearing. Phillips v. Venker, 316 Md. at 213.
The Court first considered the “threshold question” of whether the plaintiffs had “preserved the issue of adequate notice for appellate review.” Id. at 215. The Court concluded that “the protestations of [the] plaintiffs’ attorney satisfied the requirement of a timely objection.” Id. at 216. The Court acknowledged that “it would have been preferable for the attorney to employ the time-honored expression of ‘I object,’ thus removing any question about preservation[.]” Id. Under the “unusual circumstances” of that case, however, the Court concluded that the attorney’s “statements were sufficient to convey his objection.” Id. The Court explained:
When the judge unexpectedly announced that he was turning to a discussion of the merits of the motion for summary judgment,
plaintiffs’ attorney protested. He said, understandably we think, that he was not prepared to argue the motion then and there. He had not reviewed his file, did not have his file before him, and was engaged with other clients. Under the circumstances, we treat those statements as an adequate objection.
When the trial judge replied by insisting that the attorney obtain his file, he effectively overruled the objection. The question of adequate notice was preserved. Phillips v. Venker, 316 Md. at 216.
In the present case, unlike in Phillips v. Venker, we see no statement that sufficiently expresses disagreement with the circuit court’s proposal to conduct the final custody hearing as part of the divorce merits hearing. Although counsel for Ms. Montecinos now asserts that she was unprepared to try the custody issue on the day of the merits hearing, counsel never shared that information with the circuit court. When the court presented the parties with three options for resolving the custody claims, counsel for Ms. Montecinos stated that the “real issue” was that Mr. Limpias had not provided the results of the substance abuse evaluation as required by the temporary custody order. In light of his failure to complete the evaluations contemplated by the temporary custody order, counsel stated: “I don’t feel as though I’m in a position to advise my client whether or not agreeing to that order would be safe for the minor child because that was the reason we originally did this.” (Emphasis added.)
These statements were sufficient to communicate that counsel rejected the third proposed option: the option to agree that the terms of the final custody order should be the same as those in the temporary custody order. These statements did not, however, convey disagreement with the second proposed option: to conduct the final custody hearing as part of the divorce merits hearing. Moments later, when the court eliminated the first proposed option (sending the parties to the custody hearing judge to issue a final custody order), the court announced that it would “resolve those issues today.” Counsel for Ms. Montecinos responded, “Thank you, Your Honor.” This statement either affirmatively agreed with or at least acquiesced in the court’s decision.
Throughout this exchange, we cannot find a statement sufficient to express disagreement with the court’s decision to hold the final custody hearing as part of the divorce merits hearing. If counsel had protested the court’s decision—by, for example, telling the court that she was not fully prepared to litigate that issue because the court had not given pre-hearing notice—the court might have proceeded differently. Instead, the court was left with the impression that no party objected to its proposal to resolve the custody claims as part of the merits hearing. Because counsel for Ms. Montecinos did not “make[] known to the court the action that [counsel] desire[d] the court to take or the objection to the action of the court” (Md. Rule 2-517(c)), the court did not pass upon any objection. Without an objection, the court had nothing to overrule.
In sum, we conclude that counsel for Ms. Montecinos did not raise an objection to the circuit court’s decision resolve the custody claims during the divorce merits hearing. Without an adequate objection, the issue of whether the court provided sufficient notice of the final custody hearing is not preserved for appellate review.
II. Child Support Determination
In her brief, Ms. Montecinos contends that the circuit court made two separate errors when it determined Mr. Limpias’s child support obligation. First, she argues that the court erroneously failed to include $2,000 of earnings from Mr. Limpias’s cleaning business as part of his monthly income. Second, she argues that the court erroneously failed to credit her with work-related child care expenses of $500 per month.
Mr. Limpias’s Income
When calculating the child support obligation recommended by the Maryland Child Support Guidelines, the “central factual issue” is the adjusted actual income of each parent. Reuter v. Reuter, 102 Md. App. 212, 221 (1994). As used in the Guidelines, the term “‘[a]ctual income’ means income from any source.” Md. Code (1984, 2019 Repl. Vol.), § 12-201(b)(1) of the Family Law Article (“FL”). The statute broadly defines “actual income” to include salaries, wages, commissions, bonuses, and various other types of income. FL § 12-201(b)(3). It further provides: “For income from self- employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, ‘actual income’ means gross receipts minus ordinary and necessary expenses required to produce income.” FL § 12-201(b)(2).
In the present case, Mr. Limpias testified that, since October 2023, he was earning an annual salary of $85,000, working fulltime as a facilities operation analyst for Lucky Mart. Mr. Limpias did not introduce any documentation of his income from this employer. Mr. Limpias did, however, introduce paystubs from his previous employer, which had terminated his employment in May 2023.
During cross-examination, Mr. Limpias mentioned that he also worked part-time for a cleaning business that he started about five years earlier. Counsel for Ms. Montecinos asked, “how much per month does your cleaning business make?” Mr. Limpias answered: “Barely, maybe $2,000 5,000 goes to the payment of the car, insurance and all of that. I don’t make money.” Counsel asked Mr. Limpias to explain why he was operating this business without making any money. Mr. Limpias stated that he was trying to “build[] credibility” for the company and “build[] the company’s values” because he was “planning to start bidding for federal contracts” in the future. [Mr. Limpias further stated that the only asset owned by his cleaning business was a “Transit Connect” minivan that he had acquired through financing about six months earlier.
When the court determined Mr. Limpias’s actual income, the court credited his testimony that he earns $85,000 per year, or $7,083 per month, from his full-time job. The court stated: “There was some evidence that he makes $2,000 a month or something in his [cleaning] business, but he also testified that all of that goes away in expenses, so I didn’t include that into the calculation.” The court added: “I don’t have any competent evidence as to what he makes in this business.” The court proceeded to calculate the recommended child support obligation using
$7,083 per month as Mr. Limpias’s actual income.
In her appellate brief, Ms. Montecinos argues that the circuit court “improperly reduced” Mr. Limpias’s income “when it refused to include” the $2,000 of monthly revenue from his cleaning business as part of his actual income. In support of that argument, Ms. Montecinos cites section 12-203 of the Family Law Article.
FL § 12-203(a) authorizes the Supreme Court of Maryland to “issue standardized worksheet forms to be used in applying” the Child Support Guidelines. FL § 12-203(b) provides: “Income statements of the parents shall be verified with documentation of both current and past actual income.” This section further provides that “suitable documentation of actual income includes pay stubs, employer statements otherwise admissible under the rules of evidence, or receipts and expenses if self-employed, and copies of each parent’s 3 most recent federal tax returns.” FL § 12-203(b)(2)(i). This section “simply lists several documents that are suitable documentation of a parent’s actual income[,]” and a party “could produce any one, two, or all three” forms of documentation in a child support case. Tanis v. Crocker, 110 Md. App. 559, 572 (1996).
In her appellate brief, Ms. Montecinos argues for a selective application of FL § 12-203(b). Ms. Montecinos takes no issue with Mr. Limpias’s testimony that he made “maybe $2,000” per month of revenue from his cleaning business, even though he provided no documentation to verify that testimony. Ms. Montecinos takes issue only with Mr. Limpias’s additional testimony that he incurred more than $2,000 of monthly expenses for his cleaning business. Ms. Montecinos asserts that Mr. Limpias “failed to provide any documentation of these expenses[.]” Ms. Montecinos argues that the court erred by “accepting without documentation that all revenue was being consumed by expenses.” In her view, the court “improperly reduced [Mr. Limpias’s] income when it refused to include the $2,000” of revenue from his business as part of his actual income.
As stated earlier, actual income from self-employment is the difference between the “gross receipts” and the “ordinary and necessary expenses required to produce income.” FL § 12-201(b) (2). Suitable documentation of income from self-employment may include “receipts and expenses” if the parent is selfemployed. FL § 12-203(b)(2)(i) (emphasis added). Accordingly, the documentation requirement of FL § 12-203(b) should apply to both the receipts and expenses from self-employment. The statute does not specify what the court should do when a parent testifies about income from self- employment without providing documentation.
We are unaware of any authority establishing that, in this situation, the court should accept the parent’s testimony about gross receipts (despite the lack of documentation), but the court should reject the testimony about expenses (based on of the lack of documentation). In this case, counsel for Ms. Montecinos elicited the testimony that she now argues, on appeal, is deficient. During cross-examination, counsel for Ms. Montecinos asked Mr. Limpias how much he makes each month from his cleaning business. It would seem unreasonable to require the court to use part of his answer to those questions ($2,000 of receipts) but to require the court to ignore the rest of
his answer (more than $2,000 of expenses). Neither party asked additional questions about supporting documentation of this self-employment income. During closing arguments, neither party made any argument about how the court should evaluate the testimony about his cleaning business.
In our view, if Ms. Montecinos wanted the court to accept Mr. Limpias’s unverified testimony about the receipts from his cleaning business, but to ignore his unverified testimony about the expenses from that business, counsel should have made that position known to the circuit court. Because that argument was never made in the circuit court, we cannot second-guess the court for failing to use this proposed application of FL § 12203(b). We conclude, therefore, that Ms. Montecinos’s argument is not properly preserved for appellate review. See Horsley v. Radisi, 132 Md. App. 1, 20 (2000) (holding that parent failed to preserve argument that court should have excluded certain costs from its child support calculation where parent failed to make that argument in the circuit court) (citing Md. Rule 8-131(a)).
Accordingly, we will not disturb the circuit court’s decision not to add $2,000 of monthly revenue from Mr. Limpias’s cleaning business to his actual income.
Work-Related Child Care Expenses
As a separate issue, Ms. Montecinos argues that the circuit court erred when it refused to credit her with $500 per month in work-related child care expenses. We agree that the court erred in this respect.
To calculate a parent’s child support obligation under the Child Support Guidelines, the court must find the combined adjusted actual income of the parents and use that amount to find the “basic child support obligation[.]” FL § 12-204(a). The Guidelines further require the court to account for certain expenses, including work- related child care expenses, health insurance expenses, extraordinary medical expenses, and certain additional expenses for the child’s particular educational needs or expenses for transportation of the child between the parents’ homes. FL § 12-204(l).
The statute states that “actual child care expenses incurred on behalf of a child due to employment or job search of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted actual incomes.” FL § 12-204(g)(1). It further states that these expenses “shall be determined by actual family experience, unless the court determines that the actual family experience is not in the best interest of the child[.]” FL § 12-204(g)(2)(i). “[I] f there is no actual family experience or if the court determines that actual family experience is not in the best interest of the child[,]” the court must determine the expenses by “1. the level required to provide quality care from a licensed source; or 2. if the obligee chooses quality child care with an actual cost of an amount less than the level required to provide quality care from a licensed source, the actual cost of the child care expense.” FL § 12-204(g)(2)(ii).
Because the statute uses mandatory language requiring the court to account for work-related child care expenses, “child care expenses always fall outside of the [trial court’s] discretion”
in child support cases. Chimes v. Michael, 131 Md. App. 271, 292- 93 (2000). The statute narrow limits the court’s inquiry. As an initial matter, the court must determine whether a parent incurred “actual child care expenses . . . on behalf of a child due to employment or job search[.]” FL § 12-204(g)(1). Next, unless the court finds that actual family experience is not in the best interest of the child, the court “[is] required to determine the child care expense[s] by actual family experience.” Krikstan v. Krikstan, 90 Md. App. 462, 471 (1992) (citing FL § 12-204(g) (2)(i)). Where the evidence establishes that a parent incurs work-related child care expenses, it is an error for the court to “eliminate” those expenses. Krikstan v. Krikstan, 90 Md. App. at 471.
In this case, when the parties agreed to the pendente lite child support order in April 2023, they agreed that Ms. Montecinos incurred work-related child care expenses of $597 per month. At trial in February 2024, Ms. Montecinos testified that the actual family experience had changed since the court issued the pendente lite order. Ms. Montecinos explained that her work schedule requires her to leave home at 7:30 a.m. on weekday mornings. Ms. Montecinos also testified that, before leaving for work, she takes her child to her mother’s house, located about 10 minutes away, where her sister takes care of the child until the child leaves for school. Ms. Montecinos stated that her sister also takes care of the child after school each day until one of the parents returns home after the workday. Ms. Montecinos testified that she pays her sister $250 “[e]very two weeks” (or “$500 a month”) to care for the child before and after school.
Ms. Montecinos testified that, in the past, she had paid for child care before and after school at the “Kids After Hours” program, which was “more expensive” than the child care provided by her sister. Ms. Montecinos stated that this new arrangement made it “easier” for her to drop off and pick up the child and that it was “better for [her child] to have more time with [her] family.” Ms. Montecinos explained that she “still pay[s] because [her] sister puts time” to taking care of her daughter.
Ms. Montecinos further explained that her sister had asked her to pay to take care of the child because her sister was not employed. At that point, the court asked Ms. Montecinos whether she and her sister were “close” to each other. Ms. Montecinos answered: “Yes.” The court stated: “So you’re kind of like giving your sister welfare.” Ms. Montecinos responded: “Kind of.”
At the start of cross-examination, counsel for Mr. Limpias asked Ms. Montecinos to clarify her testimony about how often she pays her sister for child care. Ms. Montecinos reiterated that she pays her sister $250 “every two weeks.” At that point, the court told counsel: “I’m not going to credit that towards child support, so you don’t need to . . . ask her anything about that.”
When explaining its child support ruling, the court stated that it would not include work-related child care expenses because Ms. Montecinos was paying a family member to provide child care. The court stated:
The evidence of work-related childcare expenses was that the defendant pays her sister $250 every couple weeks to
watch their child. I’m not giving [Ms. Montecinos] credit for that. What I took from that is that the defendant’s sister needs money, and she was, it made sense because it’s half the price of Kids After Hours,[11] and so it’s a win-win for everybody.
Well that’s true, but I’m not including it in the child support guidelines because it’s a relative who’s babysitting.
When the court made its findings, the court did not question the credibility of Ms. Montecinos’s testimony about her “actual family experience” (FL § 12-204(g)(2)(i)) of paying her sister $250 every two weeks to take care of her child before and after school. Nor did the court question whether these child care expenses were work-related, i.e., whether these expenses were “actual child care expenses” incurred “on behalf of a child due to employment[.]” FL § 12-204(g)(1).
The undisputed testimony established the necessity of care for the nine-year-old child, because Ms. Montecinos leaves for work before the school bus arrives and does not return home until a few hours after the school bus drops off the child in the afternoon.
The court made no finding that the child care provided by Ms. Montecinos’s sister was somehow not in the child’s best interest. Nor was there any evidence to support such a finding. There was no evidence, for example, that her sister failed to provide suitable care or that the cost of care from her sister was unreasonably high.
The court’s stated reason for “not giving [Ms. Montecinos] credit” for her work- related child care expenses was the following: “I’m not including it in the child support guidelines because it’s a relative who’s babysitting.”
This stated reason is not a valid basis to eliminate workrelated child care expenses from the child support calculation. Under the statute, there is no requirement that, to qualify as work-related child care expenses, the parent must pay the expenses to a non-relative. The statute requires the court to determine child care expenses “by actual family experience, unless the court determines that the actual family experience is not in the best interest of the child[.]” FL § 12-204(g)(2)(i). In many cases, a family’s actual experience might include paying a relative to care for a child while a parent is at work.
As long as the parent actually pays the expenses for workrelated child care, the statute requires the court to account for those expenses in its child support calculation. See Krikstan v. Krikstan, 90 Md. App. at 471.
In sum, we conclude that the circuit court erred in part of its child support calculation. We agree with Ms. Montecinos that the circuit court should have credited her with $500 per month in work-related child care expenses when it calculated the amount of child support recommended by the Child Support Guidelines.12
Consequently, we vacate the judgment to the extent that it ordered Mr. Limpias to pay $1,066 per month in child support beginning on February 28, 2024. We remand the case to the circuit court to recalculate the amount of child support recommended by the Child Support Guidelines, after accounting for the workrelated child care expenses of $500 per month paid by Ms. Montecinos.
With the exception of these work-related child care expenses, the other amounts $500 per month. used in the circuit court’s
calculation should remain unchanged. As explained earlier, we have rejected the contention that the court erred when it found that Mr. Limpias’s actual income was $7,083 per month. Neither party has challenged the findings that Ms. Montecinos’s actual income is $5,966 per month and that Ms. Montecinos incurs health insurance expenses for the child of $121 per month.
Until the court issues a new judgment in accordance with this opinion, the existing order requiring Mr. Limpias to pay $1,066 per month in child support will remain in force as the equivalent of a pendente lite order. See St. Cyr v. St. Cyr, 228 Md. App. 163, 198 (2016) (citing Simonds v. Simonds, 165 Md. App. 591, 613 (2005)).
III. Division of Marital Property and Monetary Award
As the third issue presented, Ms. Montecinos contends that the circuit court “failed to properly value and divide the marital property of the parties.”
When a party seeks a monetary award in a divorce action, the circuit court must undertake a three-step process. See, e.g., Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). First, the court must determine whether each disputed item of property is marital property. FL § 8-203(a).13 Second, the court must determine the value of all marital property. FL § 8-204(a). Third, 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 certain types of property, grant a monetary award, or both, “as an adjustment of the equities and rights of the parties concerning marital property[.]” FL § 8-205(a)(1).
The purpose of the monetary award is “‘to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage, strictly in accordance with its title.’” Abdullahi v. Zanini, 241 Md. App. at 406-07 (quoting Brewer v. Brewer, 156 Md. App. 77, 110 (2004)).
Although the trial court “is responsible for determining the value of the marital property, this responsibility does not carry the burden of producing such evidence.” Blake v. Blake, 81 Md. App. 712, 720 (1990). Rather, “[t]he party who asserts a marital property interest bears the burden of producing evidence of the identity and value of the property.” Noffsinger v. Noffsinger, 95 Md. App. 265, 281 (1993); see K.B. v. D.B., 245 Md. App. 647, 680 (2020) (stating that “‘the burden of proof as to the classification of property as marital or non-marital rests upon the party who asserts a marital interest in the property, and that party must present evidence as to the identity and value of the property’”) (quoting Murray v. Murray, 190 Md. App. 553, 570 (2010)); Abdullahi v. Zanini, 241 Md. App. at 412 (stating that “[a] party seeking a monetary award has the burden of establishing the value of the marital property”) (citing Blake v. Blake, 81 Md. App. at 720).
“Generally, ‘property disposed of before trial cannot be marital property.’” Solomon v. Solomon, 383 Md. 176, 202 (2004) (quoting Turner v. Turner, 147 Md. App. 350, 409 (2002)). As an exception to this general rule, “when a court ‘finds that property was intentionally dissipated in order to avoid inclusion of the property towards consideration of a monetary award[,]’” the
court may include the dissipated property in its evaluation. Solomon v. Solomon, 383 Md. at 202 (quoting Sharp v. Sharp, 58 Md. App. 386, 399 (1984)). If a party claims that the other party intentionally dissipated marital property during the pendency of a divorce action, “‘[t]he party alleging dissipation has the initial burden of production and burden of persuasion.’” Solomon v. Solomon, 383 Md. at 202 (quoting McCleary v. McCleary, 150 Md. App. 448, 463 (2002)); see also Omayaka v. Omayaka, 417 Md. 643, 656-57 (2011) (quoting Jeffcoat v. Jeffcoat, 102 Md. App. 301, 311 (1994)); Turner v. Turner, 147 Md. App. at 409 (stating that “[w]hen a claim is made of dissipation, the party making the claim must present affirmative evidence to establish it”).
The trial court’s determination of whether an item is marital property is a question of fact and, therefore, the appellate court will not disturb that determination unless it is clearly erroneous. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021) (citing Collins v. Collins, 144 Md. App. 395, 408-09 (2002)); Omayaka v. Omayaka, 417 Md. at 654. Likewise, the trial court’s determination of the value of marital property “is a question of fact subject to the clearly erroneous standard of review.” Abdullahi v. Zanini, 241 Md. App. at 413 (citing Blake v. Blake, 81 Md. App. at 720). In addition, a trial court’s determination regarding dissipation of marital property “is a factual one and, therefore, is reviewed under [the] clearly erroneous standard.” Solomon v. Solomon, 383 Md. at 202. Ordinarily, “[i]f there is any competent evidence to support the factual findings” of the trial court, “those findings cannot be held to be clearly erroneous.’” Id. (quoting Fuge v. Fuge, 146 Md. App. 142, 180 (2002)).
The ultimate decision to grant a monetary award “is generally within the sound discretion of the trial court.” Alston v. Alston, 331 Md. 496, 504 (1993) (citing FL § 8- 205(a)). Accordingly, this Court reviews the decision of whether to grant a monetary award, as well as the amount of that award, under the abuse of discretion standard. Huntley v. Huntley, 229 Md. App. 484, 489 (2016) (citing Gordon v. Gordon, 174 Md. App. 583, 625-26 (2007)). Under this deferential standard, the appellate court may not substitute its own judgment for that of the trial court even if the appellate court might have reached a different result. Flanagan v. Flanagan, 181 Md. App. 492, 521-22 (2008) (citing Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000)).
In this appeal, Ms. Montecinos takes issue with the circuit court’s finding that Mr. Limpias dissipated marital property. Ms. Montecinos calls attention to Mr. Limpias’s testimony that, during the separation, he sent about $50,000 to his relatives in Bolivia to pay for the funeral expenses of three relatives. Mr. Limpias testified that he obtained some of those funds by selling two properties in Bolivia for a total of approximately $8,000. Mr. Limpias testified that he acquired other funds by taking out a loan. He stated: “I got a loan from SoFi for 30K and I have to pay 40K. I take my 40K and I sold these two lands here.” Later in his testimony, Mr. Limpias admitted that he also withdrew about $4,000 or $5,000 from his 401(k) retirement account during the separation.
The court interpreted this testimony to mean that Mr. Limpias obtained about $50,000 from three sources: selling the two properties in Bolivia, taking out a personal loan, and taking money from his 401(k) retirement account. The court stated: “[Mr. Limpias] took $8,000 in actual assets plus money
from his 401K which may be a marital asset, I’m not really sure, but $4,000 or $5,000 from his 401K, so that’s $12,000 or $13,000, plus a loan for another 30-odd thousand dollars and used that to spend on dead relatives, as opposed to using it to support his living child.”
When determining the monetary award, the court said that it considered the fact that Mr. Limpias “essentially dissipated $8,000 in selling [the two] properties and then using it towards his relatives’ funerals.” The court granted a monetary award to compensate Ms. Montecinos for half of the value of the dissipated marital property.
Specifically, the court calculated the total value of the land that Ms. Montecinos owned in Bolivia and the land that Mr. Limpias previously owned in Bolivia. The court divided that total in half, and then subtracted the value of the land that Ms. Montecinos still owned in Bolivia.
On appeal, Ms. Montecinos argues that the court should have treated the entire sum of $50,000 that Mr. Limpias sent to his relatives as the dissipation of marital property. She acknowledges that the court found that “selling the land and sending the $8,000 to relatives amounted to dissipation of a marital asset.” She argues that the court “ignored and failed to account for the additional $42,000 in assets” that Mr. Limpias sent to his relatives.
In our assessment, the court did not “ignore” or “fail[] to account” for the funds that Mr. Limpias sent to his relatives. The court concluded that the evidence established that the land that Mr. Limpias formerly owned in Bolivia was marital property and that its value was $8,000. The court was unable to conclude, based on the evidence presented, that he obtained the other $42,000 through the dissipation of marital property.
When discussing Mr. Limpias’s 401(k) retirement account, the court acknowledged the possibility that this retirement account “may be a marital asset,” but stated that it was “not really sure” whether it was marital property. The parties had offered no evidence establishing when Mr. Limpias acquired the funds in the 401(k) retirement account. Because there was no evidence establishing that Mr. Limpias had acquired the property “during the marriage” (FL § 8-201(e)(1)), the court had no basis to conclude that the account satisfied the definition of marital property. As the party alleging the existence of marital property or the dissipation of marital property, Ms. Montecinos had the burden to produce evidence of the identity and value of the property. See Solomon v. Solomon, 383 Md. at 202; Abdullahi v. Zanini, 241 Md. App. at 412. The court did not commit clear error in finding that she failed to meet that burden.
In her brief, Ms. Montecinos asserts that the “loan of $30,000” that Mr. Limpias received from a lender is an “asset[]” that he “managed to liquify into cash and transfer to family out of the country.” We are unaware of any authority holding that a personal loan is an “asset” for the purpose of evaluating marital property. Even if the funds that Mr. Limpias borrowed from a lender might qualify as marital property, the court had no basis to conclude that this property had any positive value.
As a basic principle of valuation, when the court determines the value of marital property, the court must deduct the amount of marital debt traceable to the acquisition of the property from
the gross value of the property. See Zandford v. Wiens, 314 Md. 102, 108 (1988); Goldberg v. Goldberg, 96 Md. App. 771, 782 (1993); Quinn v. Quinn, 83 Md. App. 460, 468 (1990). “Only the net value of marital property is, in fact, available for equitable distribution via a monetary award.” Zandford v. Wiens, 314 Md. at 107- 08.14 At trial, the only testimony about this loan was Mr. Limpias’s testimony that he “g[ot] a loan from SoFi for 30K and” that he “ha[d] to pay 40K.” The court had no basis to find any positive net value, i.e., to find that the loan amount was greater than the debt incurred to obtain it. The court did not err in declining to conclude that Mr. Limpias had dissipated any amount of marital property when he obtained a personal loan, which he was obligated to repay, and sent the borrowed funds to his relatives.
The evidence also failed to establish that Mr. Limpias acquired the remainder of the $50,000 of funds from the dissipation of marital property. As Ms. Montecinos admits in her brief, “it is unclear how or where [Mr. Limpias] obtained the other $7,000” of the $50,000 that he sent to his relatives. We agree. The testimony failed to establish whether he obtained those funds by liquidating property acquired during the marriage or from some other source. The court had no basis, therefore, to conclude that he had obtained $7,000 through the dissipation of some unknown source of marital property. The court was not clearly erroneous in failing to conclude that this amount resulted from the dissipation of marital property.
Ms. Montecinos further takes issue with the court’s evaluation of the evidence that Mr. Limpias had recently acquired two vehicles through financing agreements. Mr. Limpias testified that, during the separation, he had totaled two vehicles in different accidents. Mr. Limpias testified that he received about $4,000 of insurance proceeds for one vehicle, and about $1,000 of insurance proceeds for the other vehicle. Mr. Limpias testified that he used the insurance proceeds to make the “downpayment for [a] new car.” In addition, Mr. Limpias mentioned that his cleaning business had acquired a “Transit Connect” minivan, for which he incurred monthly payments.
On appeal, Ms. Montecinos argues that the court “failed to account for the value of either vehicle owned by [Mr. Limpias] or even the insurance [proceeds] received by [Mr. Limpias] for the damaged vehicles.” Ms. Montecinos does not elaborate on her suggestion that the court should have “account[ed]” for the value of the two vehicles or the insurance proceeds.
As Ms. Montecinos acknowledges, the car insurance proceeds were no longer available for distribution at the time of trial because Mr. Limpias had used the insurance proceeds to make the down payment for a new vehicle. There was no testimony indicating that his purchase of a replacement vehicle was a lavish or unnecessary expense. To the contrary, the testimony established that Mr. Limpias needed a vehicle, at a minimum, to travel back and forth to work and to pick up and drop off his daughter for visitation. Use of car insurance proceeds to make the down payment for a replacement vehicle cannot be readily characterized as the dissipation of marital property. The circuit court did not err in declining to find that Mr. Limpias “‘intentionally dissipated’” the car insurance proceeds “‘in order to avoid inclusion of the property towards consideration of a monetary award.’” Solomon v. Solomon, 383
Md. at 202 (quoting Sharp v. Sharp, 58 Md. App. at 399).
Although the two vehicles owned by Mr. Limpias at the time of the trial were marital property, the court found that the evidence was inadequate to determine their value. The only testimony potentially related to the value of Mr. Limpias’s personal vehicle was his testimony that he “financed” the purchase and made a down payment about six months before the trial. The only testimony potentially related to the value of the Transit Connect minivan was his testimony that he “financed” the purchase and makes monthly payments. During the trial, neither party asked questions about the fair market value of these vehicles or the amount of debt incurred to acquire these vehicles. The circuit court did not err in concluding that the business vehicle had “unknown value” and that there was “no evidence as to the value” of the personal use vehicle.
More generally, Ms. Montecinos argues that, “even with the lack of hard numbers[,]” the circuit court’s disposition of marital property “was unfair.” Using her assessment of the evidence, she asserts that Mr. Limpias “left the marriage with a significantly larger share of assets” than she did. This assertion that Mr. Limpias retained the larger share of marital property relies on many assumptions that were not supported by the evidence. The court could not resort to speculation to determine whether certain property, such as the 401(k) retirement plan, was marital property or to determine the unknown value of
marital property, such as the personal vehicle that Mr. Limpias obtained during the separation.
To the extent that the evidence was adequate to show which assets were marital property and the value of those assets, the court ensured that Ms. Montecinos received more than half of the total value. Under the court’s decision, Ms. Montecinos received half of the proceeds from the sale of the family home; gained outright ownership of a vehicle valued at $17,500; retained ownership of land with a net value of $2,862.71; and received a monetary award of $2,568.65 to offset the dissipation of marital property by Mr. Limpias. Based on the limited evidence presented to it, the court did the best that it could to ensure a fair distribution of marital property. We perceive no abuse of discretion in the circuit court’s disposition of the marital property.
CONCLUSION
For the reasons stated in this opinion, we affirm the judgment in part and reverse the judgment in part. We conclude that the circuit court erred when it excluded $500 per month of workrelated child care expenses incurred by Ms. Montecinos from its child support calculation. We set aside the child support determination and remand the case for a reevaluation of Mr. Limpias’s child support obligation as of February 28, 2024. The judgment is affirmed with respect to all other issues.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED IN PART AND REVERSED IN PART. JUDGMENT REVERSED AS TO CHILD SUPPORT BEGINNING ON FEBRUARY 28, 2024, AND THEREAFTER. JUDGMENT AFFIRMED AS TO ALL OTHER ISSUES. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID TWO-THIRDS BY APPELLANT AND ONE-THIRD BY APPELLEE.
FOOTNOTES
1 At trial, the only testimony about the date of the marriage came from Mr. Limpias, who testified that the parties married on September 15, 2010. Various documents in the record state that the date of marriage was October 15, 2020.
2 The record does not include a transcript of the custody hearing on July 19, 2023.
3 The temporary custody order stated that the “Defendant” must submit to a drug and alcohol assessment, even though Mr. Limpias was the plaintiff in the case. At the merits hearing, Mr. Limpias did not dispute that the order required him to submit to the evaluation.
4 In her brief, Ms. Montecinos asserts that the court postponed the merits hearing because of a “lack of available judges on that day.”
5 In his later testimony, Mr. Limpias admitted that he still had not completed a drug and alcohol evaluation. Mr. Limpias testified that he “went to three places” to find an evaluator but he could not afford the price of the evaluation. Mr. Limpias stated that he found a different “online” evaluation that was more affordable. Mr. Limpias testified that he signed up for that evaluation “[t]wo days” before the merits hearing and submitted a written questionnaire. Mr. Limpias stated that he still needed to schedule an in-person appointment to complete the evaluation.
6 See, e.g., Kadish v. Kadish, 254 Md. App. 467, 504 (2022) (discussing Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 420 (1977), and Taylor v. Taylor, 306 Md. 290, 304-11 (1986)).
7 In its oral ruling, the court stated that the schedule for winter break, spring break, and summer vacation would remain “the same” as the schedule established in the temporary custody order. The final judgment included a holiday schedule, but, unlike the temporary
custody order, it did not include any access schedule for the winter breaks, spring breaks, or summer vacation.
8 Mr. Limpias has not asserted that the contempt order is invalid under Breona C. v. Rodney D., 253 Md. App. 67 (2021).
9 The Code provision cited in Van Schaik was “[r] epealed and recodified without substantive change” at section 9.5-205 of the Family Law Article. Burdick v. Brooks, 160 Md. App. 519, 526 n.3 (2004).
10 This rule further states: “If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.” Md. Rule 2-517(c). The Van Schaik case is an example of a situation in which the parties had no opportunity to make an objection. The father’s “first notice that custody was to be determined was when he was divested of it in the court’s decree at the conclusion of the hearing.” Van Schaik v. Van Schaik, 90 Md. App. at 739.
11 According to the transcript, Ms. Montecinos did not say that paying her sister was “half” of the price of child care at Kids After Hours. Ms. Montecinos said that the Kids After Hours program was “more expensive” than paying her sister.
12 Ms. Montecinos testified that she pays her sister $250 “[e]very two weeks,” but also testified that she pays “$500 a month.” These two rates of pay are not exactly equal. In her appellate brief, Ms. Montecinos argues that the court should use the lesser rate:
13 “‘Marital property’ means the property, however titled, acquired by 1 or both parties during the marriage.” FL § 8-201(e)(1).
14 For example, to determine the value of the family home in this case, the parties and the court subtracted the amount of the mortgage lien from the fair market value of the home to find the net value of the property.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s final protective order to mother. Mother’s testimony was credible as to allegations of domestic violence by father and the grant of temporary custody of the parties’ child to mother was not an abuse of discretion.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
executed Father’s petitions. The police removed Child from Mother, placed Child in Father’s custody, and took Mother into custody to undergo an emergency evaluation.
The next day, after Mother was promptly released following a psychiatric evaluation, Mother filed a petition for a TPO alleging domestic abuse by Father. In her petition, Mother stated that the night before, Father had assaulted her and her older child by hitting them as he tried to kick in their back door, and that Father had stalked, shoved, and caused mental injury to her and her daughter. She requested protection for herself and her three children, specifically requesting the court to prohibit Father from having any contact with her and her three children and to grant her custody of Child. The district court granted her petition and returned the Child to her care.
Mother’s and Father’s TPO actions were transferred to the circuit court and set together for a final protective order hearing. Both TPOs were extended through April 11, 2024.
The Circuit Court for Montgomery County denied a final protective order requested by Larry Vines, Jr. (“Father”) and granted a final protective order requested by Jayshree Surage (“Mother”).1 In granting the final protective order to Mother, the circuit court gave her, among other things, temporary custody of the parties’ minor child. Father appeals, arguing that the circuit court erred in granting Mother a final protective order because: 1) Mother’s testimony was not credible as to allegations of domestic violence by Father, and 2) the grant of temporary custody of the parties’ child to Mother was excessive. For the following reasons, we shall affirm the judgment.
FACTS AND LEGAL PROCEEDINGS
The parties are the unmarried parents of a child (“Child”) born to them on July 21, 2022. The parties ended their romantic relationship in January 2024, and within a couple of months separately filed custody suits for the Child. At that time, Mother and Father were living separately, and the Child was residing with Mother. Mother also had her two school age children from a previous relationship living with her.
On March 22, 2024, Father filed two petitions in district court: a petition for a temporary protective order (“TPO”), alleging mental injury to a child by Mother, and an emergency petition for an involuntary evaluation of Mother. The district court granted both petitions.
Later that evening, Father went to Mother’s house and an incident occurred involving Father, Mother, and Mother’s older child. After the incident, the police came to Mother’s house and
On April 11, 2024, the Circuit Court for Montgomery County held a final protective order hearing on the petitions. Testifying at the hearing, among others, were both parents and Mother’s older child. The court heard evidence on Father’s petition first. Father testified that in February 2024, while Child, who was not quite two years old, was in Mother’s care, Mother texted Father that she wanted to commit suicide. Father did not produce evidence of those texts. Finding that Father had failed to prove by a preponderance of the evidence that the Child had suffered mental injury, the court denied Father’s petition.
The court then heard evidence on Mother’s petition. Mother testified that the week prior to the incident at her house, she saw Father’s car on her street several times, which made her “[v]ery uncomfortable.” On the night of the incident, she saw what she suspected was Father’s car parked down the street from her home. She told her older daughter to keep the door of their home locked, and then she walked down the street toward the car. As she realized it was Father’s car, it sped toward her driveway and then stopped. Father exited the car and “powerwalk[ed]” toward the back door of her home, even though he had received written notice to stay away from her home. Mother ran toward her home, and she and Father arrived at the back door at the same time. As they both attempted to get inside, she slipped in front of him and into the home through the door, which she and her daughter then attempted to close behind her. Although Father kicked the bottom of the door and tried to force his way inside, Mother and her daughter eventually managed to close the door. The force of Father’s kicks caused the door to reverberate and hit both Mother and daughter. Mother introduced pictures of “scuff” marks on the
bottom of the back door and bruises on her wrist from trying to keep the door closed. Mother’s daughter testified similarly to Mother’s testimony.
The circuit court found daughter’s testimony “very credible.” The court ruled that Father had committed domestic violence by a preponderance of the evidence and granted Mother a final protective order. Father was ordered, among other things, not to contact Mother, other than to facilitate visitation of their Child by court order, and not to go to the schools of Mother’s older two children. The order also awarded Mother custody of the Child. The final protective order was effective for one year.
Father timely appealed.
DISCUSSION
Father argues that the circuit court erred in granting Mother a final protective order for two reasons. First, the circuit court erred in finding Mother’s testimony credible because, according to Father, her testimony was “false and retaliatory in nature.” To support his argument, he asserts that he was subsequently found not guilty of assault and attempted burglary as to the incident at Mother’s home. Second, Father argues that granting custody of their Child to Mother was excessive because, in her protective order petition, Mother never alleged that she wanted protection for the Child or that the Child was a victim, and the parties’ custody case regarding the Child was still pending in the circuit court. Mother responds that the circuit court did not err in granting her a final protective order, as it found her and her daughter’s testimony credible. Mother argues that Father’s argument as to custody is moot because he was granted supervised access to Child pursuant to their custody case.2
Law
When an action is tried without a jury, an appellate court will review the case on both the law and evidence. Md. Rule 8-131(c). We will not set aside a circuit court’s judgment on the evidence unless clearly erroneous, giving “due regard” to the opportunity of the circuit court to judge the credibility of the witness(es). Id. We view the evidence in the light most favorable to the party who prevailed at trial, and we resolve all evidentiary conflicts in their favor. Brault Graham, LLC v. Law Offs. of Peter G. Angelos, P.C., 211 Md. App. 638, 660, cert. denied, 434 Md. 312 (2013). In contrast, we review whether “the [trial] court’s conclusions are legally correct under a de novo standard of review.” Nouri v. Dadgar, 245 Md. App. 324, 343 (2020) (quotation marks and citations omitted).
The party seeking a final protective order must show “by a preponderance of the evidence that the alleged abuse has occurred[.]” Md. Code Ann., Family Law (“FL”) Article, § 4-506(c)(1)(ii). The section defines “abuse” expansively to include: acts that cause serious bodily harm or place a person in fear of imminent serious bodily harm; assault in any degree; rape or sexual offenses; attempted rape or sexual offenses; false imprisonment; stalking; or revenge porn. FL § 4-501(b). In assessing the credibility of the witnesses who testify at a final protective order hearing, the circuit court is “entitled to accept – or reject – all, part, or none of” their testimony, “whether that
testimony was or was not contradicted or corroborated by any other evidence.” Omayaka v. Omayaka, 417 Md. 643, 659 (2011) (emphasis omitted). It is “not our role, as an appellate court, to second- guess the trial judge’s assessment of a witness’s credibility.” Gizzo v. Gerstman, 245 Md.
App. 168, 203 (2020).
To support Father’s argument that we should reverse the circuit court’s grant of Mother’s protective order, Father argues that the testimony of Mother and her daughter was not credible. We can quickly dispose of this argument. As stated above, a circuit court is entitled to accept or reject some or all of a witness’s testimony. Credibility is within the province of the circuit court, and we will not second guess the circuit court’s assessment in this regard. Father also argues that, because he was later found not guilty of several criminal acts related to the incident at Mother’s home, the circuit court erred in ruling that he engaged in domestic violence. His argument is flawed for several reasons.
First, contrary to Father’s assertion, he was not found “not guilty” of the criminal charges later filed regarding the incident, rather, he entered a plea agreement. Specifically, Father plead guilty to trespass, and the remaining charges of assault in the second degree and attempted burglary were nolle prossed. See D-06-CR-24-002213. A nolle prosse is not the equivalent of a not guilty finding. See State v. Simms, 456 Md. 551, 564 (2017) (“[W] hile a nolle prosequi discharges the defendant on the charging document or count which was nolle prossed, and while it is a bar to any further prosecution under that charging document or count, a nolle prosequi is not an acquittal or pardon of the underlying offense and does not preclude a prosecution for the same offense under a different charging document or count.” (quotation marks and citation omitted; emphasis in original)).
Second, the standards in a criminal and civil trial are different. Civil cases generally use the lesser “preponderance of the evidence” standard, and criminal cases use the higher “beyond a reasonable doubt” standard. See FL § 4-506(c)(1) (ii) (stating a judge may grant a final protective order if it finds by a preponderance of the evidence that the alleged abuse has occurred); Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 125 n.16 (2002) (stating that to meet one’s burden of proof by a preponderance of the evidence, one must simply present sufficient evidence that something is more likely so than not so); Ruffin v. State, 394 Md. 355, 363 (2006) (stating that a defendant may be convicted of a criminal offense only upon proof beyond a reasonable doubt). Cf. Att’y Grievance Comm’n of Md. v. Marcalus, 414 Md. 501, 521 (2010) (discussing the difference of the standard of proof in a criminal and a civil trial).
Third, and most importantly, evidence of Father’s plea agreement was not before the circuit court as Father entered into the plea agreement after the hearing and the court’s rulings on the protective orders. Therefore, under the circumstances before us and the applicable burdens of proof, we reject Father’s argument that the circuit court erred in finding that Father engaged in domestic violence.
As to Father’s argument that the circuit court erred in granting custody of the Child to Mother, we again reject his argument.3 Contrary to Father’s assertions, Mother did state in her petition for a temporary protective order and did argue before the
circuit court in her request for a final protective order that she wanted protection for herself and each of the children living in her home, which included Child. Moreover, pursuant to FL § 4-506(d)(7), a circuit court “may . . . award temporary custody of a minor child” in a final protective order. We recognize that the issuance of a protective order may “have consequences in other litigation[,]” but such consequences are not the circuit court’s focus when considering a petition for a protective order. Katsenelenbogen v. Katsenelenbogen, 365 Md. 122, 130, 137 (2001) (“Living arrangements established as the result of a
protective order may have relevance in determining custody, use and possession, and support in subsequent litigation. That is not the concern of the court in fashioning appropriate relief in a domestic violence case” because the concern in a protective order case is “to do what is reasonably necessary – no more and no less – to assure the safety and well-being of those entitled to relief.” (emphasis in original)). Accordingly, we find no abuse of discretion in the circuit court’s issuance of a final protective order, which included an award of temporary custody of the Child to Mother.
ORDERS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 At all relevant times during this litigation, Father has proceeded pro se and Mother had been represented by counsel. The Maryland Supreme Court has stated that, although we shall liberally construe the contents of pleadings filed by pro se litigants, unrepresented litigants are subject to the same rules regarding the law, particularly, reviewability and waiver, as those represented by counsel. Simms v. State, 409 Md. 722, 731 n.9 (2009).
2 In May 2024, the circuit court issued an order granting Father supervised access with the Child. About five months later, a magistrate issued a report recommending that Mother have sole legal and physical custody of Child and Father to attend a twenty-two- week
anger management program and to have continued supervised access to Child. On November 14, 2024, the circuit court entered a final order awarding, among other things, primary physical custody of Child to Mother, with reasonable access to Father, and joint legal custody to the parties with tie-breaking authority to Mother. See Vines v. Surage, No. C-15-FM-24-001608.
3 Mother responds to this argument by stating that this argument is moot because Father was granted visitation in the parties’ custody litigation. Although the custody order will supersede the protective order thereby making moot that portion of the protective order that concerns custody, the protective order itself is not rendered moot because it can have long term collateral effects. Piper v. Layman, 125 Md. App. 745, 752-53 (1999).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 64 (2024)
Monetary award; remand; divorce Chidozie Nwadigo v. Naya Nwadigo
The Appellate Court affirmed the Frederick County Circuit Court’s recalculating of a monetary award following remand. Although the husband argued the economic circumstances of the parties at the time of the remand hearing should be used, the circuit court did not err in considering the parties economic circumstances at time of their divorce.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
the factors as per section 8-205(b) of the Family Law Article (“FL”) of the Maryland Code, (1984, 2019 Repl. Vol.). The circuit court awarded N. Nwadigo use and possession of the parties’ marital home for a period of three years and ordered that she continue to pay the mortgage as well as all other expenses attributable to the home. The court noted that C. Nwadigo was making a monthly mortgage payment of $2,231.00 on a separate home that he had purchased with marital funds which was titled solely in his name. The court denied alimony and ordered C. Nwadigo to pay monthly child support in the amount of $1,409.00. The circuit court also valued C. Nwadigo’s Tesla Model S at $30,000.00 with a lien of $1,842.00. The lien amount, due to an inadvertent error, did not correctly reflect the record.
This is the second appeal arising out of the divorce of Chidozie Nwadigo (“C. Nwadigo”) and Naya Nwadigo (“N. Nwadigo”) in the Circuit Court for Frederick County. The first appeal was preceded by a trial on the merits, at the conclusion of which the circuit court entered a judgment of absolute divorce. The court also awarded use and possession of the family home, a monetary award, child support, and custody.
On appeal, we affirmed the use and possession and custody orders, but vacated and remanded the child support order and monetary award. Following the remand, further proceedings were held before the circuit court. On October 6, 2023, the circuit court entered an order, from which C. Nwadigo now appeals. C. Nwadigo presents the following issue for our review, which we have consolidated and rephrased as follows:1
Whether the circuit court erred in failing to consider the present value of the parties’ assets and liabilities in calculating the monetary award.
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
We need not repeat the facts of this case and set forth only those facts that are relevant to the issue on appeal. The parties were married on August 4, 2011. They had two children together. They separated in March of 2019, and divorced in April of 2022.
In the divorce judgment, the circuit court set forth the parties’ marital property, valued that property, and evaluated
The circuit court calculated C. Nwadigo’s net worth as $462,331.00 and N. Nwadigo’s net worth as $451,197.00. After reviewing the factors under FL § 8-205(b), the court made an equitable determination that N. Nwadigo was entitled to 55% of the marital property and C. Nwadigo was entitled to 45% of the marital property. The court determined that 55% of the parties’ net worth was $502,440.00 and made a monetary award to N. Nwadigo in the amount of $51,243.00, representing the shortfall between her net worth and the 55% share of the marital property the court allocated to her. The court declined to award attorney’s fees and denied the parties’ respective claims for overpayment and underpayment of child support.
We issued our opinion in December of 2022, affirming in part, and vacating in part, the divorce judgment. We vacated the monetary award on two grounds. The first was the circuit court’s miscalculation regarding the lien on C. Nwadigo’s Tesla Model S. The circuit court valued the Tesla Model S at $30,000.00 with a lien of $1,842.00; however, the undisputed evidence at trial showed that the lien was $17,842.00. The second ground was that the circuit court’s memorandum opinion was unclear in addressing whether, in making its monetary award determination, it had considered C. Nwadigo’s bank and credit card loans, which he had claimed exceeded $42,000.00. We therefore remanded the monetary award for the circuit court to recalculate, considering the $17,842.00 lien on the Tesla Model S, and whether C. Nwadigo’s bank and credit card loans affected his economic circumstances pursuant to FL § 8-205(b) (3). We also remanded on the issue of child support directing the court to consider the April 2022 visitation schedule.
In advance of the remand hearing, the circuit court directed the parties to submit an updated Rule 9-207 joint martial and nonmarital property statement and updated Rule 9- 203(a) financial statements. Pursuant to the circuit court’s instructions, the parties submitted updated joint marital and nonmarital
property and financial statements, which the circuit court admitted into evidence at the remand hearing.
Following the hearing, the circuit court issued a memorandum opinion, addressing this Court’s mandate and instructions:
Prior to the hearing on remand, at the request of the trial court, the parties submitted new Rule 9-207 and financial statements. As at the original trial, the parties were unrepresented by counsel. During the remand hearing, a question arose as to whether the recalculation of the monetary award should be measured from the date of the original award, or the date of the remand hearing. Because of this uncertainty, the court took evidence of current values for the marital and non-marital property. Upon a closer reading of the Appellate Court opinion, however, and from a common-sense point of view, evidence of [the] current valu[ation] would appear to be inappropriate. On the date of divorce, the parties ceased to own marital property. To use present valuations would not reflect the values of such property on the date of divorce.
Accordingly, the trial court believes that its mandate is to use the same figures it originally found to be accurate in calculating a monetary award, while plugging in to the calculus the correct lien then[-]existing on the Tesla.
The circuit court indicated in its memorandum opinion on remand that it had accepted the debt identified in C. Nwadigo’s financial statement which showed that he had incurred $42,456.00 in bank and credit card debt at the time of the original divorce hearing, noting that the court took this debt into consideration. The court determined that the only adjustment to be made to the monetary award on remand was to credit $16,000.00 to C. Nwadigo. This adjusted for the correct amount of the Tesla lien. The circuit court recalculated C. Nwadigo’s net worth on the date of the divorce to be $446,331.00 and used the original calculation of N. Nwadigo’s net worth on the date of the divorce of $451,197.00. After reviewing its analysis of the factors in the memorandum opinion, the court confirmed its original determination that N. Nwadigo was entitled to 55% of the marital property and C. Nwadigo was entitled to 45% of the marital property. Based on the court’s revised calculations, the court made a monetary award to N. Nwadigo in the amount of $42,443.40.
C. Nwadigo filed this appeal.
STANDARD OF REVIEW
Under Maryland Rule 8-131(c), following a bench trial, we “review the case on both the law and the evidence.” We review a trial court’s factual findings under the clearly erroneous standard, while we review a trial court’s determination of questions of law under a de novo standard. Friedman v. Hannan, 412 Md. 328, 335 (2010) (citing Md. Rule 8- 31(c)); see Plank v. Cherneski, 469 Md. 548, 569 (2020) (“When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.”) (internal cites omitted). “It is a question of fact as to whether all or a portion of an asset is marital or non-marital property[,]” as well as the value of each item of marital property.
Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). A trial court’s decision to grant a monetary award, and the amount of that award, is subject to review for abuse of discretion. Id. Although the abuse of discretion standard is deferential, “a trial court must exercise its discretion in accordance with correct legal standards.” Id. at 521–22 (internal cites omitted).
DISCUSSION
C. Nwadigo contends that the circuit court erred in recalculating the monetary award based on the economic circumstances of the parties at the time of the divorce, rather than their economic circumstances at time of the remand hearing. He argues that due to earlier correspondence from the circuit court, he was prepared to present evidence concerning his present circumstances rather than the economic circumstances at the time of the divorce. He further asserts that the circuit court did not calculate the marital property in a manner consistent with this Court’s instruction on remand.
Maryland has established a three-step process for determining whether to grant a monetary award in divorce proceedings. Abdullahi v. Zanini, 241 Md. App. 372, 405 (2019). “First, for each disputed item of property, the judge must determine whether it is marital or non-marital.” Id. (citing Flanagan, 181 Md. App. at 519). “Second, the court must determine the value of all marital property.” Id. “Third, the court must decide if the division of marital property according to title would be unfair, and if so, it may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.” Id. at 405–06 (internal citations and quotation marks omitted).
In making the determination as to marital property, the circuit court is generally required to determine which property is marital property at the time the absolute divorce is granted. FL § 8-203. Similarly, when determining the value of the marital property for purposes of division, the value of the property is to be decided as of the date on which divorce is entered. Doser v. Doser, 106 Md. App. 329, 348 (1995); see also Green v. Green, 64 Md. App. 122, 141 (1985) (holding that “equity requires that reasonable efforts be made to ensure that valuations of marital property approximate the date of a judgement of divorce which includes a monetary award.”). The decision whether to make a monetary award is a discretionary matter of equity. Abdullahi, 241 Md. App. at 405–06.
Under the mandate rule, an appellate decision “is binding and conclusive upon the parties . . . and it is obvious that if [a subsequent court] order departs from the mandate either by allowing more or less than contained in its terms, it is illegal and subject to [appellate review].” Bd. of Public Works, et al. v. K. Hovnanian’s Four Seasons at Kent Island, LLC, 443 Md. 199, 222 n.10 (2015) (“Hovnanian”) (internal citation and quotation marks omitted). When this court provides “any direction in an order or mandate that proceedings on remand are to be consistent with the opinion[,]” the opinion is necessarily required to be considered “an integral part of the judgment.” Harrison v. Harrison, 109 Md. App. 652, 666 (1996), cert. denied, 343 Md. 564 (1996).
In this case, the mandate of our prior opinion incorporated
the opinion itself, stating that the judgment was “affirmed in part, vacated in part, and remanded for recalculation of . . . the monetary award in accordance with this opinion.” Nwadigo v. Nwadigo, No. 436, Sept. Term 2022, 2022 WL 17413061, at *9 (Md. Ct. Spec. App. Dec. 5, 2022) (“Nwadigo I”) (emphasis added). Because we indicated that the proceedings on remand were to be in accordance with the opinion, the opinion itself was then incorporated into the mandate. See Harrison, 109 Md. App. at 666. As to the monetary award, although C. Nwadigo raised several issues, we vacated the award only as to two of those issues. Nwadigo I, 2022 WL 17413061 at *5–7. As to the first issue, we held that the circuit court did not explain its calculation of the lien on the Tesla Model S when it stated the lien amount as $16,000.00 lower than the evidence demonstrated. Id. at *7. As to the second, we held that it was “unclear from the record whether the court considered C. Nwadigo’s bank and credit card loans in its monetary award determination.” Id. We instructed that on remand the circuit court “shall recalculate the monetary award considering C. Nwadigo’s $17,842.00 lien on the Tesla Model S, as well as C. Nwadigo’s credit card and bank loan debts, to the extent that the court finds that the debts affect his economic circumstances under FL section 8-205(b)(3).” Id. That was the extent of our instructions to the circuit court on remand, and the circuit court was bound to recalculate the monetary award within those limitations. Hovnanian, 443 Md. at 222 n.10.
In recalculating the monetary award, the circuit court reviewed our mandate. It explained that based on this Court’s mandate, the circuit court, in clarifying and recalculating the marital award, was using the values of marital property taken from the time of the divorce because “[o]n the date of divorce, the parties ceased to own marital property[,]” and therefore, “[t] o use present valuations would not reflect the values of such property on the date of the divorce.” The circuit court explained that the $16,000.00 reduction in the lien amount from the Tesla Model S was the result of a typographical error and that the court would use the correct, undisputed amount of $17,842.00 in its recalculation. The circuit court next addressed its consideration of the bank and credit card debt. The court explained that it had considered C. Nwadigo’s bank and credit card debt and had accepted the figure from C. Nwadigo’s financial statement in its assessment of his economic circumstances and valuation of net worth. The circuit court recalculated C. Nwadigo’s net worth at the time of the divorce, applying the correct amount of the Tesla Model S lien and with the explanation that it had considered and accepted the amount of C. Nwadigo’s debt in determining his net worth at the time of the divorce and evaluation of marital property.2
The circuit court explained that in its consideration of the equitable factors, it had previously found it significant that C. Nwadigo had eliminated N. Nwadigo and the children from his company pension and life insurance policy and purchased a second home with marital funds that he titled solely in his name. Nwadigo I, 2022 WL 17413061 at *6. The circuit court stated that these factors, amongst others, informed its decision that an equitable distribution of the marital property remained a division of 45% to C. Nwadigo and 55% to N. Nwadigo.
To the extent that C. Nwadigo contends that the circuit court
should have used his current economic situation in calculating the sum of the marital property, his net worth, and the marital award, he is incorrect. See FL § 8-203; see also Doser, 106 Md. App. at 348; Green, 64 Md. App. at 141. Cf. Schweizer v. Schweizer, 301 Md. 626, 637 (1984) (though “[a] nonmarital debt may not serve to reduce the value of marital property[,]” it may be considered in calculating the monetary award, as it “clearly reflects on that party’s economic circumstances at the time the award is to be made”).
As to C. Nwadigo’s contention that the circuit court did not consider his current economic situation under FL section 8-205(b)(3) as an equitable factor in determining whether an award should be made, the circuit court indicated to the contrary. In its opinion, the circuit court reviewed the parties’ updated financial statements, even though it correctly did not use those figures in calculating the sum of the marital property. A review of the transcript demonstrates, likewise, that the circuit court did review the parties’ then-present financial situation. Thus, the circuit court followed this Court’s instructions in its mandate for proceedings on remand.
It is worth noting that this court has held, on at least one prior occasion, that a modified monetary award requires reconsideration of all eleven factors under FL § 8- 205(b) in situations where it “essentially is revising an earlier monetary award.” Fuge v. Fuge, 146 Md. App. 142, 176 (2002), cert. denied, 372 Md. 430 (2002). The Court stated that “[w]hen the extent of the marital property has changed due to an appellate decision, the trial court should rethink whether its original method of application is still ‘equitable’ in light of the new circumstances.” Id. at 177. We note that Fuge is factually distinguishable from this case. In Fuge, after multiple appeals spanning several years, an appellate decision reallocated a substantial asset as not part of the marital property. Id. at 152–53. On remand, the circuit court vacated the existing monetary award and then entered a new award. Id. at 157–58. On appeal, this Court held that the circuit court erred when it entered the new award because it failed to consider the parties’ economic circumstances at the time the new award was made. Id. at 176. Conversely in this case, in the prior appeal, this Court did not vacate the entire monetary award, nor the circuit court’s allocation of marital property. This Court merely instructed the circuit court to address and revise as appropriate two aspects of its award, using the correct value of the Tesla Model S lien, and providing an explanation illustrating its consideration of C. Nwadigo’s debts. The circuit court followed these instructions.
C. Nwadigo further argues that the circuit court erred in failing to consider the Marcus by Goldman Sachs loan that he used to make the mortgage payments on the second home, an argument that he raised in his previous appeal to this Court. In our opinion from the first appeal, we concluded that the circuit court did not abuse its discretion in considering the downpayment and mortgages paid towards the second home, and the significance the circuit court attributed to the fact that C. Nwadigo had purchased a second home with marital funds and titled that property solely in his name. As we addressed this issue in our previous opinion, C. Nwadigo may not relitigate it here. See Stokes v. Am. Airlines, Inc., 142 Md. App. 440, 446 (2002) (holding that once an appellate court has answered a
question of law, that issue is settled for future proceedings and may not be relitigated).
Finally, C. Nwadigo contends that the circuit court erred in its original opinion and by extension, its opinion on remand, in valuing and allocating ownership of various furniture, lawn equipment, and the Toyota Corolla. As C. Nwadigo asserts, these issues were present in the circuit court’s original opinion and
could have been addressed in the original appeal. Because C. Nwadigo could have raised these questions in the earlier appeal but did not, they cannot now be raised in this second appeal. Harrison, 109 Md. App. at 678 (“Neither questions that were decided nor questions that could have been raised and decided on appeal can be relitigated.”) (quoting Kline v. Kline, 93 Md. App. 696, 700 (1992)).
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 In his brief, C. Nwadigo phrased the issues as:
1. Opinion and Judgment upon remand contradict the Remand Hearing.
2. The Monetary Award is based on Incorrect Calculations of Property Values and Net Worth of Appellant vs Appellee.
2 The circuit court recalculated C. Nwadigo’s net worth on the day of the divorce (i.e., $462,331.00 - $16,000.00 = $446,331.00). In addition, the circuit court also reduced that debt from the total amount of the marital property (i.e., $913,528.00 - $16,000.00 = $897,528.00). The court then used the reduced figure to calculate the equitable division of marital property.
