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3 Child Advocacy: Interests of children whose parents are in substance treatment
Balancing child’s separation from parents who are in substance use recovery.
4 Cover Story: Frozen embryos in divorce
Recent child support ruling adds to questions about issues around forzen embryos in divorce cases.
6 In the News: Md. Supreme Court rules parents can’t waive child support
The Maryland Supreme Court unanimously ruled that parents can’t waive child support as part of a divorce and custody matter.
7 In the News: What the Big Beautiful Bill means for young Americans
Donald Trump’s big tax law that he signed on July 4 may change things for the youngest Americans, from cuts to Medicaid, increasing tax credits for some parents, ‘Trump Accounts’ for newborns, and cuts to the SNAP program..
8 Monthly Memo
A man who killed his wife and two children in 1994 after she sought a divorce is scheduled for execution in Florida under a death warrant signed by Republican Gov. Ron DeSantis. … A federal lawsuit could open a new chapter in an escalating legal battle in Maryland, where officials are struggling to address an unexpected onslaught of claims alleging child sexual abuse in state-run juvenile detention facilities. … Australian woman Erin Patterson was found guilty of murdering three of her estranged husband’s relatives by deliberately serving them poisonous mushrooms for lunch. … Adriana Smith, a 30-year-old woman from Georgia who had been declared brain-dead in February 2025, spent 16 weeks on life support while doctors worked to keep her body functioning well enough to support her developing fetus. … Lawyers often tell their clients that everyone should have a will that clearly states who should inherit their assets after they die. But even having a will is not necessarily enough to avoid a costly and contentious legal dispute.
Promoting the best interests for children with parents in treatment
In 2024, the Maryland General assembly passed legislation that recognizes the critical importance of parent-child relationships and attachment, as well as the challenges that separation from a child can present to a parent’s substance use recovery process.
House Bill 833, introduced a new legal presumption in child welfare matters where, based on allegations of abuse or neglect, the juvenile court must determine whether to temporarily remove a child a from a parent who is enrolled in a residential substance use treatment program.
The Maryland Code’s Courts and Judicial Proceedings Article, Section 3-815 guides the juvenile courts in the protection of children who are removed from their parents’ physical custody and “sheltered” to state child welfare agencies.
When a matter is emergently before the court in a shelter care hearing, and the judge has yet to receive sufficient evidence to determine the appropriateness of formally committing a child to state custody as a Child in Need of Assistance, the court prioritizes the child’s immediate safety above all other factors.
Shelter care hearings observe relaxed evidentiary standards compared to civil, criminal, and even subsequent CINA matters, as the court only requires reasonable grounds to temporarily place a child in state custody.
This low burden, combined with the immediacy of shelter care hearings, can make it difficult for parents to persuade the court to return their children to their care.
To mitigate the risk of prejudicial and harmful outcomes, the Maryland General Assembly periodically issues
ROSEMOND MICHAEL.
Child Advocacy
legislation reflecting circumstances where removal might not serve a child’s best interests.
A recent example is H.B. 833, Parents in Substance Use Disorder Treatment – Children in Need of Assistance and Treatment Facilities, which was codified in 2024:
If a child’s parent is receiving treatment in a residential substance use disorder treatment program with beds or services for patients’ children and the child is in the presence of the child’s parent for the duration of the child’s parent’s treatment, there is a presumption that:
1. Placement with the child’s parent is in the best interest of the child; and
2. There is not an emergency situation under the provisions of subsection (d)(2)(i) of this section.
(2) This subsection may not be construed to prohibit another parent or a guardian, a custodian, a relative, or another person able to provide supervision and care from providing supervision and care for a child for the duration of the child’s parent’s treatment if the other parent, guardian, custodian, relative, or other person agrees to provide supervision and care.
The statute provides a presumption that a child is returned to their parent in a qualifying treatment program, but it does not mandate that the court do so if presented with evidence that would overcome the presumption.
For example, if a newborn, born drug-exposed, whose only parent, the mother, presents to the court that she has just entered substance abuse
treatment, unless the court receives evidence sufficient to overcome the presumption, the court must order the child placed with their mother in treatment.
The court may issue a shelter care order if evidence to rebut the presumption is introduced, such as a restriction required by the treatment program prohibiting mother’s contact with anyone outside the program for a certain time, the newborn’s special medical needs, or the unavailability of services for the newborn in the substance abuse treatment program.
Even if a parent resides in a facility that meets the statutory criteria, the court must still consider all factors relevant to the child’s safety and welfare.
Moreover, the amendment appears to permit broad judicial discretion as it includes no list of factors to consider or weigh, such as the nature, history, and recency of a parent’s substance use or the structure and viability of a treatment program’s safeguards.
As the application of CJP § 3-815(e) has yet to be developed, parties will best serve their clients and the judicial process by clearly and completely articulating the grounds for invoking or opposing the presumption and by basing such grounds in the specific facts of each case, and not in assumptions or generalities about substance use.
This will allow the courts to issue opinions describing the application of the presumption and will serve the best interests of Maryland’s most vulnerable children, like the newborn cited above, by providing safety where needed and reunification where possible.
Michael Rosemond is a Staff Attorney at Maryland Legal Aid.
Questions around frozen embryos remain
By Ian Round IRound@TheDailyRecord.com
When a married couple decides to pursue in-vitro fertilization and freeze the pre-embryo, it’s crucial that they talk through — and put in writing — what they want to do if they get divorced.
That was one of the main takeaways from a 2023 decision by the Maryland Appellate Court, which awarded the pre-embryos to a woman who decided with her then-husband to give them a chance at life “no matter what”
— although the husband said he hadn’t considered the possibility of divorce when he made the commitment.
The 2023 ruling in the case of Joshua P. and Jocelyn P. followed one two years earlier that created a framework for how to resolve such disputes in court. The opinions were the subject of a panel discussion at the Maryland State Bar Association’s annual Legal Summit in Ocean City in June, featuring the lawyers from both sides.
The Appellate Court in 2021
ruled that trial judges must first determine whether there was a contract, or if the couple discussed what to do with the pre-embryo in the event of a divorce. If there was no agreement or discussion, they have to balance the competing interests of the divorcing couple, with several factors to consider.
Rebecca Ripley, co-founder of Rea Ripley Law in Towson, who played a role in representing Joshua P., the ex-husband in the case, said the decision was a “word of warning to people to be careful
AP FILE PHOTO/LYNNE SLADKY
A container with frozen embryos and sperm stored in liquid nitrogen is removed at a fertility clinic in Fort Myers, Fla., Oct. 2, 2018.
about what might make a contract in their marriage.”
Ripley said it was important for the court to establish a framework given the steady rise in IVF. About 2.6% of American births in 2023 began with IVF, according to the American Society of Reproductive Medicine.
It’s become so common, said Ripley’s law partner, Kristine Rea, that sometimes people forget they have frozen pre-embryos.
“You’d be surprised,” Rea said.
The framework — which prioritizes the divorcing couple’s desires — would not be possible in Alabama, which ruled last year that frozen pre-embryos are children, and that destroying them might subject the would-be parents and/ or a fertility clinic to a wrongful death claim.
In Maryland, frozen pre-embryos occupy a liminal legal space
— not quite property, not quite a child subject to custody law.
That in-between status may prompt cases that lead to more legal precedent, according to Ripley, Rea, and Debra Cruz, managing principal at Levin Gann, who was their opposing counsel in the Jocelyn and Joshua P. case and their co-panelist at the MSBA conference.
They are wondering if a divorcing couple might be allowed to waive one party’s parental rights and obligations (usually a man’s) to allow the other (usually a woman) to move forward with a pregnancy. In such a case, the man would essentially be treated as a sperm donor, and would not have to pay child support.
But that may not be easy to argue, as the Maryland Supreme Court ruled in late June that child support cannot be waived, even if
both parents agree, as they did in that case.
“It’s not sufficient for the parent that wants the embryo to say ‘Don’t worry, I’ll never ask you for child support.’ You might not, but the state of Maryland might,” Cruz said.
Ferrier Stillman, a partner at Tydings & Rosenberg, said she was skeptical that judges would view such an agreement any differently because the child was conceived through IVF.
“The court wants as many children as possible having child support paid for them,” she said. “I don’t think the court is going to make any distinction between children conceived one way and children conceived another way. You still have a child that needs child support.”
SUBMITTED PHOTO
Rebecca Ripley, co-founder of Rea Ripley Law in Towson, represented the ex-husband in a family law frozen embryo case in Maryland.
SUBMITTED PHOTO
Kristine Rea is a partner at Rea Ripley Law in Towson.
SUBMITTED PHOTO
Debra Cruz, managing principal at Levin Gann, was the opposing counsel in the Maryland case.
In the News
Md. top court rules parents can’t waive child support
By Rachel KonIeczny RKonieczny@TheDailyRecord.com
Parents cannot waive child support in a divorce and custody matter, the Maryland Supreme Court held Friday in rejecting both parents’ united contention that their inability to waive child support violated their constitutional rights.
In a unanimous opinion authored by Justice Angela Eaves, the Maryland Supreme Court affirmed that parents may not bilaterally agree to withdraw child support and that the Anne Arundel County Circuit Court did not violate the constitutional rights of Erica Hall and Nicholas Houser when the trial court rejected their agreement to waive child support and arrears for their 6-year-old child.
Hall and Houser, who married in 2012 but have since separated, asked the high court in March to remand their case to the Anne Arundel County Circuit Court so that their agreement specifying no court-ordered child support could be incorporated. Counsel for the parents, both co-petitioners in the case, contended imposing child support when the parents agreed otherwise violates their rights as parents to make decisions about their child.
During oral argument and in the high court’s opinion, Eaves pushed back on the parents’ argument, writing that the legal obligation to support a minor child is also a moral one.
“The parties’ argument that courtordered child support violates their constitutional rights conflates the notions of parental rights and parental obligations,” Eaves wrote. “The custody, care, and upbringing of one’s child is a parental right, but child support … is a parental obligation.”
In its opinion, the high court wrote that the circuit court “did not in any way interject itself into the parties’ decisions on how to raise [their child], or direct how any court-ordered child support must be spent” on the child, but rather
“merely ensured that [the child] received access to the financial support to which he legally is entitled.”
Though Hall and Houser argued the downward deviation was appropriate because Houser waived his interest in the marital home and he would be doing the majority of driving their son between locations, Eaves wrote that the parents failed to show why a downward deviation is warranted. As such, Eaves wrote, the trial court did not abuse its discretion in concluding that it was not in the child’s best interest to receive no child support.
Mandy Miliman, counsel for Houser, said she and her client are disappointed but respect the high court’s decision.
“We were fighting an uphill battle to begin with, but it was certainly an important one because the question for the court to determine was really what is the scope of a parent’s right and the ability to make a decision that they believe is best for their child, versus the court’s imposition of its own belief on how a child should be best supported,” Miliman said in a phone call Monday.
Miliman said the parents believed the case and argument is an important one, where parents who are fit to make decisions on behalf of their children should be allowed to do so. She added that while the state also has an interest in ensuring parents support their children, she hoped this case would start the conversation for parents looking to enter into similar agreements.
Charles Muskin, counsel for Hall, said the impact of the high court’s decision is far more reaching than it intended.
“They’re basically saying that the legislature has the authority to tell parents what to do,” Muskin said of the court. “We strongly disagree with [the Maryland Supreme Court’s] position. As long as parents provide adequate care for their children, we see no reason how the state has the authority to interfere in any way.”
The Maryland State Bar Association and Maryland Office of the Attorney General each submitted amicus briefs in opposition of the parents’ argument, contending the trial court’s child support order did not infringe the parents’ fundamental right to direct their child’s upbringing.
Martha White, partner at Wasserman White Family Law, said the court’s ruling is in line with what Maryland law has long held.
“I think that the big takeaway is that if the parties are in agreement about a general charge of child support, great, but you’ve got to make sure that it makes sense with Maryland law,” White said. “The court was not provided with sufficient reasons why this is in the child’s best interest rather than the parents’ best interest.”
According to the opinion, Hall and Houser’s case is an above-guidelines case, where their combined income exceeded $15,000 per month. The parties calculated Houser’s child support arrears at approximately $41,708.
Miliman said her client has no plans to ask the U.S. Supreme Court to review the case, and Muskin agreed that his client does not have any plans to at least petition for review from the nation’s highest court on her own.
What’s left, Miliman said, is the fear that litigants in similar situations have lost all power.
“I think one of the unfortunate impacts of this ruling is that courts are most likely now going to sua sponte order child support even if it wasn’t pled, and I think that’s going to take away the ability of family law litigants to deliberately decide not to involve the courts in a child support decision.”
What the Big Beautiful Bill means for young Americans
assocIated PRess
WASHINGTON — The impact of the massive spending bill that President Donald Trump signed into law on Independence Day is expected to filter down to infants and toddlers — a segment of the population that is particularly vulnerable to cuts to the federal social safety net.
Many middle-class and wealthy families will see benefits from the new legislation, but programs that help lowincome families keep babies healthy have been cut back. While state money funds public schools and preschool in some cases, programs supporting the youngest children are largely backed by the federal government.
The law extends tax cuts that Trump passed during his first term in office and pours billions more into border security as the president seeks to broaden his crackdown on immigration. To pay for these initiatives, the law cuts Medicaid and food stamps — programs relied upon by poor households with children — by more than $1 trillion.
The legislation Republicans called Trump’s “big beautiful bill” is set to deliver some gains for families with children. It increases tax credits, including one that now allows parents to deduct up to $2,200 per child from their tax bills. And it introduces investment accounts for newborns dubbed “Trump Accounts,” each seeded with $1,000 from the government.
Still, advocates say they do not make up for what children are likely to lose under the new law. And they fear what comes next, as the next Trump budget proposes more cuts to programs that help parents and babies.
Medicaid cuts could add to strains on families
Over 10 million Americans rely on Medicaid for health care. About 40% of births are covered by Medicaid.
Newborns, too, qualify for it when their mothers have it.
The new law doesn’t take little kids or their parents off Medicaid. It institutes Medicaid work requirements for childless adults and adults with children over the age of 13. But pediatricians warn the cuts will be felt broadly, even by those who do not use Medicaid.
The Medicaid cuts are expected to put a financial strain on health care providers, forcing them to cut their least profitable services. That’s often pediatrics, where young patients are more likely to use Medicaid, said Lisa Costello, a West Virginia pediatrician who chairs the federal policy committee for the American Association of Pediatrics.
The ripple effects could exacerbate an existing shortage of pediatricians and hospital beds for children.
“Any cuts to that program are going to trickle down and impact children, whether that’s pediatric practices who depend on Medicaid to be able to stay open or children’s hospitals,” Costello said.
The law increases tax credits for parents who qualify
The law increases the child tax credit to $2,200 per child, up from $2,000. But parents who don’t earn enough to pay income tax will still not see the benefit, and many will only see a partial benefit.
The measure also contains two provisions intended to help families pay for child care, which in many places costs more than a mortgage. First, it boosts the tax credit parents receive for spending money on child care. The bill also expands a program that gives companies tax credits for providing child care for their employees.
‘Trump Accounts’ will be opened with $1,000 for newborns The law launches a program
that creates investment accounts for newborn children. The “Trump Accounts” are to be seeded with $1,000 from the government, and children will be able to use the money when they become adults to start a new business, put the money toward a house or go to school.
Unlike other baby bond programs, which generally target disadvantaged groups, the federal program will be available to families of all incomes.
A food assistance program faces cuts
The Supplemental Nutrition Assistance Program (SNAP) faces the largest cut in its history under the law. It will, for the first time, require parents to work to qualify for the benefit if their children are 14 or older. But even households with younger children could feel the impact.
The law kicks some immigrants — including those with legal status — off food assistance. It makes it more difficult for individuals to qualify by changing how it considers their utility bills.
SNAP has historically been funded by the federal government, but under the new law, states will have to shoulder some of the financial burden. Cashstrapped governments could decide to implement new requirements that would make it more difficult for people to qualify, said Katie Bergh, a senior policy analyst with the Center on Budget and Policy Priorities. Some states may decide to exit the program altogether.
“When young children lose access to that healthy nutrition, it impacts them for the rest of their lives,” Bergh said. “This bill fundamentally walks away from a long-standing nationwide commitment to making sure that lowincome children in every state can receive the food assistance that they need.”
Man who killed family after wife sought a divorce is set for execution in Florida
TALLAHASSEE, Fla. — A man who killed his wife and two children in 1994 after she sought a divorce is scheduled for execution in Florida under a death warrant signed by Republican Gov. Ron DeSantis.
Edward J. Zakrzewski, II, is set to die July 31 in the ninth execution scheduled for this year in the state. He pleaded guilty in 1996 to three counts of first-degree murder and received three death sentences in the killings of wife Sylvia Zakrzewski, son Edward Zakrzewski, 7, and Anna Zakrzewski, 5.
The man beat his wife with a crowbar and machete and strangled her to death and killed the children with a machete June 9, 1994, in Okaloosa County.
An attorney for Konig said he and his client don’t have any comments on the hearing or ruling.
Associated Press
Federal lawsuit targets Maryland’s claims cap on juvenile sex-abuse claims as claims mount
A federal lawsuit could open a new chapter in an escalating legal battle in Maryland, where officials are struggling to address an unexpected onslaught of claims alleging child sexual abuse in staterun juvenile detention facilities.
With thousands of similar claims already pending in state court, the litigation has raised questions about how Maryland will handle the potential financial liability.
The new federal suit, filed Wednesday on behalf of three plaintiffs, seeks $300 million in damages — an amount that far exceeds caps imposed on claims filed in state court. It alleges Maryland juvenile justice leaders knew about a culture of abuse inside youth detention facilities and failed to address it, violating the plaintiffs’ civil rights.
A message seeking comment was left Thursday with the state’s Department of Juvenile Services. The department generally doesn’t comment on pending litigation. The Maryland Office of the Attorney General declined to comment.
An estimated 11,000 plaintiffs have sued in state court, according to the attor-
Monthly Memo
neys involved. Maryland Senate President Bill Ferguson said Wednesday that he believes negotiations for a potential settlement are ongoing between attorneys for the plaintiffs and the attorney general’s office. Officials have said the state is facing a potential liability between $3 billion and $4 billion.
Associated Press
Australian
woman found guiltyof murdering estranged husband’s relatives
MELBOURNE, Australia — Australian woman Erin Patterson was found guilty of murdering three of her estranged husband’s relatives by deliberately serving them poisonous mushrooms for lunch.
The jury in the Supreme Court trial in Victoria state returned a verdict after six days of deliberations, following a nine-week trial that gripped Australia. Patterson faces life in prison and will be sentenced later, but a date for the hearing hasn’t yet been scheduled.
Patterson, who sat in the dock between two prison officers, showed no emotion but blinked rapidly as the verdicts were read.
Associated Press
Keeping brain-dead pregnant womanon life support raises ethical issues
Adriana Smith, a 30-year-old woman from Georgia who had been declared brain-dead in February 2025, spent 16 weeks on life support while doctors worked to keep her body functioning well enough to support her developing fetus. On June 13, 2025, her premature baby, named Chance, was born via cesarean section at 25 weeks.
Smith was nine weeks pregnant when she suffered multiple blood clots in her brain. Her story gained public attention when her mother criticized doctors’ decision to keep her on a ventilator without the family’s consent. Smith’s mother has said that doctors told the family the decision was made to align with Georgia’s LIFE Act, which bans abortion after six weeks of pregnancy and bolsters the legal standing of fetal personhood. A statement released by the hospital also cites Geor-
gia’s abortion law.
“I’m not saying we would have chosen to terminate her pregnancy,” Smith’s mother told a local television station. “But I’m saying we should have had a choice.”
The LIFE Act is one of several state laws that have passed across the U.S. since the 2022 Dobbs v. Jackson decision invalidated constitutional protections for abortion. Although Georgia’s attorney general denied that the LIFE Act applied to Smith, there’s little doubt that it invites ethical and legal uncertainty when a woman dies while pregnant.
The Conversation
Legal wrangling over Buffett estateprovides cautionary tale on inheritance
Lawyers often tell their clients that everyone should have a will that clearly states who should inherit their assets after they die. But even having a will is not necessarily enough to avoid a costly and contentious legal dispute.
Consider what happened after Jimmy Buffett died of skin cancer at the age of 76 in 2023. The singer and entrepreneurial founder of the Margaritaville brand ordered in his will that his fortune be placed in a trust after his death. To manage the trust, Buffett named two co-trustees: his widow, Jane Slagsvol, and Richard Mozenter, an accountant who had served as the singer’s financial adviser for more than three decades.
Filed in Los Angeles and Palm Beach, Florida, in June 2025, however, Slagsvol – identified as Jane Buffett in her legal filing – and Mozenter are both seeking to remove each other as a trustee.
The outcome of this litigation will determine who gets to administer Buffett’s US$275 million estate.
The Conversation
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE MARYLAND APPELLATE COURT: FULL TEXT UNREPORTED OPINIONS
The Appellate Court vacated the Baltimore County Circuit Court’s judgments dismissing a suit that sought to resolve a factual dispute over whether two deeds were forged or fraudulent. Neither the plaintiff’s failure to plead a quiet title cause of action nor the fact she didn’t obtain a formal transmittal from the orphan’s court merited dismissal with prejudice.
SUBPOENA; QUASH; RELEVANCE
Jeremy Michael DePasquale v. Meghan Fitzgerald
No. 24, September Term 2024
Argued before: Berger, Zic, Eyler, J. (retired; specially assigned), JJ.
Opinion by: Berger, J
Filed: June 3, 2025
The Appellate Court dismissed husband’s appeal from a Frederick County Circuit Court order. The appeal challenged an order granting wife two “makeup” visitation days with the parties’ children, on July 28 and 29, 2024. By the time husband noted his appeal on Aug. 7, 2024, the issue was already moot.
CHILD SUPPORT; ACTUAL INCOME; EVIDENCE
Erica Tucker Haygood v. Brandon Parrott
No. 2083, September Term 2023
Argued before: Graeff, Leahy, Kenney
(retired; specially assigned), JJ.
Opinion by: Kenney, J.
Filed: June 3, 2025
The Appellate Court affirmed the Prince George’s County Circuit Court’s denial of mother’s request for child support. The circuit court did not have the required evidence of the parties’ actual income to award child support under the guidelines.
The Appellate Court dismissed the interlocutory appeal from the Prince George’s County Circuit Court. The circuit court’s order denied mother’s motion to dismiss the complaint based on a lack of jurisdiction and improper service, and it ruled that Maryland was the proper jurisdiction to address the child custody dispute between the parties. This order did not finally determine the merits of the child custody proceeding, and accordingly, was not a final judgment.
The Appellate Court vacated the Harford County Circuit Court’s interpretation of a marital settlement agreement involving pension benefits. The agreement’s relevant paragraph was ambiguous because the language is subject to more than one interpretation when read by a reasonably prudent person. The case was remanded for further proceedings for the parties to fully develop and present extrinsic evidence, if any, regarding the parties’ intentions about whether wife
Family Law Digest
was to receive 50 percent of the marital property portion of the pension benefit as of June 16, 2016, or as of June 1, 2020.
The Appellate Court affirmed the Montgomery County Circuit Court’s award of primary physical custody to father, with specified visitation with mother, and joint legal custody of child to the parties with father to have tie-breaking authority. Although the Appellate Court refused to adopt a presumption that a unilateral, long-distance relocation prior to the entry of a final divorce decree is contrary to the best interests of the child as a matter of law, as father urged, it held that the circuit court correctly applied Maryland law in holding that a relocation may be sufficient to justify a change in custody, depending on the circumstances of each case.
The Appellate Court affirmed the Prince George’s County Circuit Court’s entry of a final protective order against father. Father did not object to the circuit court’s reliance on the
Prince George’s County Department of Social Services’ report at the time that court indicated that it had read and was relying on it in granting mother’s final protective order.
LEGAL CUSTODY; SUA SPONTE
Erik Gonzales v. Courtney Gonzales
Nos. 0941, September Term 2024
Argued before: Berger, Arthur, Reed, JJ.
Opinion by: Reed, J.
Filed: May 16, 2025
The Appellate Court reversed the Carroll County Circuit Court’s award of sole legal custody to the mother. Neither party specifically raised the issue of legal custody in their pleadings before the trial court, and neither argued for a change in legal custody in their statements to the trial court.
The Appellate Court reversed the Prince George’s County Circuit Court’s orders dismissing mother’s custody case for failure to prosecute, and denying her motion for reconsideration. The circuit court erred when it unilaterally limited the amount of time for mother to request an order of default. And when mother missed the tight deadline that the court had unilaterally imposed, it wrongly dismissed her complaint for lack of prosecution, even though the case had not been dormant for anywhere close to a year.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s judgments dismissing a suit that sought to resolve a factual dispute over whether two deeds were forged or fraudulent. Neither the plaintiff’s failure to plead a quiet title cause of action nor the fact she didn’t obtain a formal transmittal from the orphan’s court merited dismissal with prejudice.
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..
matter of law,” it “does not state a cause of action” to quiet title or for declaratory relief, and the orphans’ court otherwise did not transmit a question of fact in accordance with ET § 2-105(b). The circuit court also denied Eaton’s subsequent motion to revise that judgment and to file a Second Amended Complaint asserting quiet title and declaratory judgment claims.
In this timely appeal, we must decide whether the circuit court erred or abused its discretion in dismissing Eaton’s complaint and foreclosing further proceedings in that court.2 For reasons that follow, we will vacate the judgment and remand for the circuit court to address the factual dispute over the challenged deeds, as a necessary predicate for determining whether the Estate must account for these two Properties in the probate proceedings.
LEGAL BACKGROUND
After Leatha Bell Aldridge died without a will on February 13, 2019, disputes among surviving family members arose over two residential properties that Ms. Aldridge allegedly conveyed to grandchildren LaShura Maria Johnson (“LaShura”) and Juan M. Johnson (“Juan”), appellees.1 According to another of Ms. Aldridge’s grandchildren, appellant Shawna Eaton, the deeds in question were forged and fraudulently notarized. For that reason, Eaton contends that Aldridge’s estate (the “Estate”) must account for these two properties, in accordance with intestacy provisions under which she claims an interest. See Md. Code (1974, 2022 Repl. Vol., 2024 Supp.), § 1-210(b), § 3-103 of the Estates and Trusts (“ET”) Article.
Eaton initiated probate proceedings in Baltimore County, identifying the disputed properties as Estate assets. She then filed a complaint in the Circuit Court for Baltimore County to challenge the recorded deeds by which her late grandmother conveyed 2232 Lynnehaven Drive, Windsor Mill, MD, 21244, and 3105 Cambridge Drive, Windsor Mill, MD, 21244 (the “Properties”). Citing ET § 2-105(b), which permits a party in an orphans’ court proceeding to request that a factual dispute be resolved by the circuit court, the Orphans’ Court for Baltimore County, Eaton, the Johnsons, and their counsel agreed to address Eaton’s deeds dispute in the circuit court case before probate proceedings continue. The circuit court nevertheless granted the Johnsons’ subsequent motion to dismiss Eaton’s First Amended Complaint with prejudice, ruling that, “as a
Because this appeal arises from Eaton’s challenge to deeds allegedly tainted by forgery and fraud, we briefly review the legal principles supporting Eaton’s claim that the Estate should treat the two deeds as invalid based on [t]he distinction between a transaction being deemed void and voidable
. . . . A void contract “is not a contract at all,” Restatement (Second) of Contracts § 7 cmt. a (1981), and all parties, present and future, would be equally allowed to avoid the contract. See United States for the Use of the Trane Co. v. Bond, 322 Md. 170, 179-80 (1991); Monumental Building Ass’n v. Herman, 33 Md. 128, 132 (1870); Harding v. Ja Laur Corp., 20 Md. App. 209, 214 (1974) (“A deed obtained through fraud, deceit or trickery is voidable as between the parties thereto, but not as to a bona fide purchaser. A forged deed, on the other hand, is void ab initio.”).
A voidable contract, on the other hand, is “one where one or more parties thereto have the power, by a manifestation of election to do so, to avoid the legal relations created by the contract, or by ratification of the contract to extinguish the power of avoidance.” Restatement (Second) of Contracts § 7 (1981); see Coopersmith v. Isherwood, 219 Md. 455, 461(1959) (adopting Restatement of Contracts § 13 (1932), precursor to § 7). We have long recognized that contracts obtained by fraud are not absolutely void, but are “voidable at the election of the parties affected by the fraud” and “binding until properly avoided.” Urner v. Sollenberger, 89 Md. 316, 332, 334 (1899); see also Iseli v. Clapp, 254 Md. 664, 669-72 (1969) (holding
that a foreclosure rescue scam victim’s deed was voidable, but not as against innocent third parties); Hoffman v. Seth, 207 Md. 234, 239 (1955) (stating that an agreement or conveyance procured by a false representation of a material fact is voidable, but not void); Wicklein v. Kidd, 149 Md. 412, 424-25 (1926). The distinction between a void contract and a voidable [contract] is especially important in situations involving deeds; once a deed is considered void ab initio or, of no legal effect, there are lasting consequences to everyone in the subsequent chain of title. As a result, we have been circumspect at common law in finding a deed void ab initio and have limited our rulings regarding voidness to circumstances that go to the face of the deed, e.g., forgery. See Maskell v. Hill, 189 Md. 327, 335 (1947) (holding that a forged deed is a nullity); see also Harding, 20 Md. App. at 214 (“A forged deed . . . is void ab initio.”). In Harding, our intermediate appellate court discussed how a forged deed, void from inception, does not protect bona fide purchasers:
There can be no bona fide holder of title under a forged deed. A forged deed, unlike one procured by fraud, deceit or trickery is void from its inception. The distinction between a deed obtained by fraud and one that has been forged is readily apparent. In a fraudulent deed an innocent purchaser is protected because the fraud practiced upon the signatory to such a deed is brought into play, at least in part, by some act or omission on the part of the person whom the fraud is perpetrated. He has helped in some degree to set into motion the very fraud about which he later complains. A forged deed, on the other hand, does not necessarily involve any action on the part of the person against whom the forgery is committed.
Equally critical to our resolution of this appeal is the statutory right of parties in orphans’ court proceedings to litigate factual disputes in circuit court. As the Supreme Court of Maryland recognized, the General Assembly has aided the orphans’ court to perform its duties by empowering it “to direct any issue of fact to be tried by plenary proceedings and with the help of a jury.” Shealer v. Straka, 459 Md. 68, 82 (2018) (quoting Ades v. Norins, 204 Md. 267, 272 (1954)). Under ET § 2-105:
(a) In a controversy in the [orphans’] court, an issue of fact may be determined by the court.
(b)(1) At the request of an interested person made within the time determined by the court, the issue of fact may be determined by a court of law.
(2) When the request is made before the court has determined the issue of fact, the court shall transmit the issue to a court of law.
(c) After the determination of the issue, whether by the court or after transmission to a court of law, the court shall enter an appropriate judgment or decree.
FACTUAL BACKGROUND Timeline
The facts pertinent to this appeal are set forth in the following timeline, with proceedings in circuit court shown in bold. February 13, 2019 Leatha Bell Aldridge died intestate.
July 22, 2022 Eaton, representing herself, filed a petition with the Register of Wills for Baltimore County, seeking probate of Ms. Aldridge’s Estate and listing the two Windsor Creek Properties as Estate assets, valued at $300,000 and $250,000, respectively. See In the Matter of the Estate of Leatha Bell Aldridge, Orphans’ Court for Baltimore County Estate No. 219532.
August 12 2022 Eaton, representing herself, filed this action in the Circuit Court for Baltimore County, alleging that both deeds, by which Aldridge reserved a life estate for herself and conveyed two parcels to grandchildren LaShura and Juan Johnson, respectively, had been forged and fraudulently notarized. See Shawna Eaton v. LaShura M. Johnson and Juan M. Johnson, Baltimore County Cir. Ct. Case No. C-03-CV-3211.
August 30, 2022 Represented by counsel, Kathy Johnson (“Kathy”), the lone surviving child of Ms. Aldridge, joined with her children Juan and LaShura Johnson, in moving to strike the two Properties from the Estate assets listed in Schedule A, on the ground that they “are not properly part of the Estate because those properties passed by Deed to LaShura and Juan, respectively.” According to Kathy, after those deeds were recorded on December 20, 2016, and January 10, 2018, respectively, “[b]y operation of law and the Deed, upon the Decedent’s death, title was vested in” Aldridge’s grantees. Moreover, at the time of Ms. Aldridge’s death, Juan and LaShura allegedly had been occupying the Properties for years. Juan had been residing at 3105 Cambridge Drive since 2010 but was deployed on active duty with the United States Army, while his wife and daughter remained on the premises. LaShura lived at 3323 Lynne Haven Drive for approximately 11 years, “until the onset of her divorce proceedings” from Nelson Hildago, who was still residing there with their two children.
September 20, 2022 A docket note states that Eaton, Kathy Johnson, LaShura Johnson, and their counsel were present in a proceeding before Orphans’ Court Judge William R. Evans. Juan Johnson was not present because he was on active duty. The note states “Special Administrator removed” (referring to Eaton), and “Kathy Johnson appointed Personal Representative, with a bond of Personal Representative in the full amount required.”
October 13, 2022 In a letter to counsel for Eaton, which was copied to Judge Evans and received by the register of wills, counsel for the Johnsons stated: “Following our conference call with Judge Evans today, this letter shall serve as evidence of our ‘no objection’ position to Ms. Eaton proceeding in the Circuit Court, in her own name, regarding title to the properties.”
November 2, 2022 Citing the October 13 conference call, the Orphans’ Court for Baltimore County entered an order appointing Kathy Johnson as “Special Administrator of the Estate, subject to a nominal bond,” and also ordered that she, “through counsel, shall agree to permit Shawna Eaton to pursue her action as an individual in the Circuit Court Case No.
C-03-CV-22-00321[.]” The orphans’ court also directed that “the Circuit Court Pleadings shall be amended accordingly” and that the two parcels “shall not be sold, transferred or otherwise disposed of until the pending Circuit Court action is resolved[.]”
December 13, 2022 Filing a First Amended Complaint through counsel, Eaton again alleged that the two recorded deeds contain forged signatures and fraudulent notarizations, so that neither deed is valid for probate purposes of determining Estate assets and obligations. The prayer for relief asks the circuit court to “remove[] these deeds from record” and to determine that the Properties “revert back” to prior deeds in Ms. Aldridge’s name.
February 27, 2023 Kathy Johnson, as Special Administrator of the Estate, filed an inventory stating that the value of Estate property is zero dollars.
March 29, 2023 After Eaton petitioned the orphans’ court to revoke the appointment of Kathy Johnson as Special Administrator based on her exclusion of the disputed Properties from the Estate inventory, that court denied such relief but ordered her to amend the inventory within 30 days to state “that there is pending litigation concerning the two parcels of real property and listing them as potential assets of the Estate pending the resolution of the Circuit Court action.”
April 10, 2023 Kathy Johnson filed an amended inventory that did not specifically identify the two Properties or reference the pending circuit court litigation, but stated that the appraised value of real property in the Estate was $332,300.
April 21, 2023 LaShura and Juan Johnson, representing themselves, answered Eaton’s circuit court complaint challenging the deeds, denying any wrongdoing and raising affirmative defenses.
February 22, 2024 After an evidentiary hearing, the orphans’ court denied Eaton’s Petition to Revoke Kathy Johnson as Special Administrator and excused her from filing “Administration Accounts until the outcome of the proceedings in the Circuit Court for Baltimore County, regarding title of real property, has been concluded.”
March 25, 2024 In preparation for an evidentiary circuit court hearing scheduled for April 25, 2024, Eaton subpoenaed James McCormick, Jr., “[a]s Land Records Notary reviewer for the Clerk of the Circuit Court for Baltimore County,” seeking to authenticate public records showing that a series of deeds presented by appellees were rejected for having been “incorrectly notarized,” and attaching copies of those deeds and public records.
April 8, 2024 Mr. McCormick moved to quash the subpoena, citing his lack of “personal knowledge of any relevant facts[.]”
April 11, 2024 LaShura and Juan, now represented by new counsel, moved to dismiss Eaton’s First Amended Complaint, and attached several documents including Eaton’s deposition testimony. In support, they argued that Eaton’s claims are time-barred by the six-month limitations period for recorded instruments, citing Eaton’s deposition testimony that she “was allegedly alerted to problems with the deeds at the time that they were prepared and executed –approximately four to six years before filing the Complaint.” Alternatively, the Johnsons argued Eaton lacked standing because “[n]either the original Complaint or First Amended Complaint identifies the relationship between [Eaton] and any of the deeds in question” in a manner that identified “how [she] is injured by any action of . . . the [appellees] nor how the requested
relief will benefit [Eaton.]” Alternatively, the Johnsons sought a stay under the Servicemembers Civil Relief Act, 50 U.S.C. § 3902, given Juan Johnson’s deployment since May 24, 2021.
April 15, 2024 Eaton filed opposition to the motion to dismiss, arguing, primarily, that the agreement that the deeds dispute could and would be litigated in circuit court constituted waiver of any defenses based on limitations, standing, or a stay.
April 16, 2024 Opposing the motion to quash, Eaton responded that “James McCorm[i] ck’s testimony is important in that one of the material issues of the case is the falsity of the notarizing of the Deeds” and “he can identify the
documents and his statements” in public records rejecting attempts to record those deeds, which Eaton attached.
April 17, 2024 LaShura and Juan filed a reply to their motion to dismiss, arguing, among other things, dismissing the complaint would permit orphans’ court proceedings to resume.
April 18, 2024 LaShura and Juan filed amended answers to Eaton’s complaint.
April 25, 2024 After argument by counsel for both parties regarding the basis for Eaton’s claims, as detailed below, the circuit court granted the defense motion to dismiss.
April 26, 2024 The circuit court entered judgment with prejudice against Eaton “for open court costs.”
May 17, 2024 Eaton moved to revise the judgment and for leave to file a revised complaint. She attached a Second Amended Complaint, which asserted four counts (quiet title and declaratory judgment against each defendant), corresponding to allegations of forgery and fraud tainting the two deeds. In her statement of facts, Eaton alleged a series of quitclaim deeds allegedly conveying the two Properties from Leatha Bell Aldridge and/or her late husband Juan Mario Johnson, Jr., to LaShura Maria Aldridge and Juan Mario Johnson, Jr., were presented for recording in the land records of Baltimore County, but each contained irregularities identified by James McCormick, the Notary Clerk, regarding the property description and notarizations. Those irregular deeds were recorded on May 13, 2016; July 25, 2016; December 20, 2016; and January 8, 2018.
June 7, 2024 The circuit court denied Eaton’s motion without a hearing.
June 10, 2024 Eaton noted this timely appeal from the circuit court’s final judgment.
The Circuit Court Hearing and Ruling
At the outset of the April 25, 2024, hearing, the circuit court questioned “what cause of action gives the court the legal authority to remove” the challenged deeds “from the land record office of Baltimore County[.]” In the ensuing colloquy, counsel for Eaton explained she was not seeking such relief, but instead asking the circuit court to adjudicate her forgery and fraud allegations, so that in the probate proceedings, the Estate would have to account for the Properties as assets subject to distribution. As counsel noted, the orphans’ court, the parties, and their counsel had agreed that further probate proceedings
would await the circuit court’s resolution of Eaton’s challenge to these deeds. We set forth relevant excerpts from the transcript of that hearing:
THE
COURT: All right, tell me what law authorizes me as a Circuit Court Judge in a Court of General Jurisdiction to exercise jurisdiction to order, you want me to order whom to remove these deeds from record, whom am I ordering to do that?
[COUNSEL FOR EATON]: Your order, the order is that the deeds themselves that were filed in the orphans’ court are not proper deeds.
THE COURT: Okay, well there’s nothing in the prayer for relief that says that. It says that the Court removed these deeds from record. So, what record is it that the Court is ordering someone to remove the deeds from the land records of Baltimore County?
[COUNSEL FOR EATON]: The records from the Orphans’ Court here.
THE COURT: So has there been a ruling by theo[O] rphans’ [C]ourt?
[COUNSEL FOR EATON]: The ruling of the Orphans’ Court is that they’re waiting for you to make a decision as to the deeds.
THE COURT: All right, . . . this action wasn’t removed to here from the Orphans’ Court, so it’s not an appeal, correct?
[COUNSEL FOR EATON]: It is not an appeal.
THE COURT: Okay, and they haven’t certified a question for me to answer, correct?
[COUNSEL FOR EATON]: No.
THE COURT: Okay, well give me the authority that you’re indicating I have to proceed on this claim. You need to tell me what the law is, specifically a statute or rule or a case.
[COUNSEL FOR EATON]: I’m not familiar with that Your Honor. I’ll just use the reasoning that the Orphans’ Court Judge did, that the Circuit Court has the authority to decide whether the deeds that were filed in the orphans’ court were proper or improper.
THE COURT: All right, that sounds like a complaint to quiet title, maybe.[3] It could be a Declaratory Judgment Action,[4] but you’ve got to tell me what action this was supposed to be because I’m still not sure what legal authority I have to do what you’re asking me to do.
[COUNSEL FOR EATON]: It would be a Declaratory Judgment Action
THE COURT: Yeah, but it hasn’t been filed as a Declaratory Judgment Action.
[COUNSEL FOR EATON]: I will amend it right now to a Declaratory Judgment Action[.]
THE COURT: All right, then I obviously won’t let you do that. All right, I’ll give you an hour to give me any legal authority I have to proceed in the fashion you’re asking me to proceed . . . .
(RECESS)
. . . .
THE COURT: So, the first amended complaint filed on
December 13, 2022 purports to be divided into two counts But my review of it indicates that no cause of action has been stated.
So my question of you related to the prayers for relief. Prayers for relief in paragraph one says that the court removes these deeds from the record. When I took the bench initially this morning, I thought that that was some reference to having deeds removed from the land record office of the Circuit Court for Baltimore County.
You corrected me and indicated that the relief being sought was that I assume this court removes the deeds from the record in the proceeding in the Orphans’ Court proceeding for Baltimore County. Is that correct?
[COUNSEL FOR EATON]: It is correct.
THE COURT: Okay. So, tell me what legal authority I have to do that.
[COUNSEL FOR EATON]: So, first, what was already introduced in response to a Motion, there was exhibit . . . . four [correspondence from counsel for the Johnsons], following our conference call with Judge Evans today, this letter shall serve as evidence of our no objection position to Ms. Eaton proceeding in the Circuit Court in her own name regarding the properties. If you need further determination of consent, please advise. Next is exhibit eight and . . .
THE COURT: What......legal authority do I as a Judge on the Circuit Court for Baltimore County have to order the Orphans’ Court to remove anything from an Orphans’ Court record? Tell me what my legal authority is to do that......I’m still not aware of any.
[COUNSEL FOR EATON]: You’re going to be proving that these are more fraudulently prepared deeds.
THE COURT: What legal authority do I have to order the Orphans’ Court for Baltimore County to remove anything from the records of the Orphans’ Court for Baltimore County?
[COUNSEL FOR EATON]: We’re not asking you to order the Orphans’ Court. We’re asking you that the deeds . . . identified in that amended complaint. Those – We want those deeds to be identified.
Once those deeds are identified, then they become, in the Orphans’ Court, they become assets of the Orphans’ Court. Right now, they are not assets of the Orphans’ Court. But once identified as those deeds that are identified in the amended complaint, they become assets of the Orphans’ Court.
THE COURT: All right. Go ahead.
[COUNSEL FOR EATON]: They are fraudulent. There’s 15207 conveyances made with intent to defraud.[5] Every conveyance made, every obligation incurred with actual intent is distinguished from intent presumed by law to end or delay the fraud of present and future creditors. Fraudulent as to both present and future creditors. There’s cases for quiet titles.
THE COURT: But you didn’t file a quiet title action. We started off with that this morning. There was no quiet title action filed.
[COUNSEL FOR EATON]: So, the wherefore clause to transfer the deeds that are referenced to the deeds in the wherefore clause will put those deeds into the Orphans’ Court. And again . . .
THE COURT: [Counsel], here’s my understanding
of Maryland law on what I can do with respect to an Orphans’ Court matter. If there’s a ruling by the Orphans’ Court and there’s an appeal noted timely, it’s transmitted to the Circuit Court for Baltimore County and then I have a hearing on the appeal. You’re conceding that there is no order from the Orphans’ Court for Baltimore County that’s being appealed.
You told me that when we started. The second way that I’m aware of under Maryland law that I have any jurisdiction over a matter pending in the Orphans’ Court for Baltimore County is pursuant to Estates and Trusts Article 2-105. At the request of an interested person made within time determined by the Court, the issue of fact may be determined by a Court of Law.
The Circuit Court for Baltimore County is a Court of Law. When the request is made before the court [has] determined the issue of fact, . . . the Orphans’ Court, shall transmit the issue to a court of law. So, it only gets to me for a decision as to what’s going on in the Orphans’ Court if it’s an issue presented in the Orphans’ Court and then transmitted here for me to make a decision. If you’ve got some other method for me to do that, you need to tell me what the law is on that.
[COUNSEL FOR EATON]: So, the first is the Orphans’ Court order, which is . . . Exhibit A. A special administrator is ordered to amend the inventory within 30 days of . . . this order with the fact that there is pending litigation concerning two parcels of real property and listing them as potential assets of the estate pending the resolution of the Orphans’ Court. So, the Orphans’ Court has been given the Circuit Court authority to determine the validity of the property . . . .
THE COURT: The Orphans’ Court hasn’t transmitted this file down here. It has to be transmitted by the Orphans’ Court to the Circuit Court and then docketed as such . . . .
I’m looking at Estates and Trusts Article 2-105, which means it has to be transmitted by the Orphans’ Court, and it hasn’t been.
[COUNSEL FOR EATON]: Again, I referred to the last language in the Orphans’ Court order of March 29, 2023, for the Circuit Court, potential of the estate pending the resolution of a Circuit Court action. So, the Orphans’ Court knew that there was a pending Circuit Court action as to the validity of the deeds, and the validity of the deeds. . . .
THE COURT: You can do that, and I asked you at the beginning, and you can certainly litigate the validity of a deed in the Circuit Court for Baltimore County. My understanding is here’s how to do that. You file a complaint to quiet title and comply with both the statutory provision under real property article as well as the rules under 12-804.[6]
I don’t think there’s any contest that none of that’s happened, right? I mean, there’s absolutely no compliance with either the statute or the rules, so the quiet title action’s not in front of me because it hasn’t been pled. Am I wrong on that?
[COUNSEL FOR EATON]: I believe you are, Your Honor . . . .
One can amend a complaint at any time, even after trial . . . .
THE COURT: All right, as a matter of law, my ruling is as follows. If Counsel comes up with something that they want
to file after the fact, after this ruling, certainly under the rules, you’ve got a right to file a Motion to revise a judgment. As a matter of law, the first . . . amended complaint in this case filed on December 13, 2022.
A scheduling order in the case was issued on June 14, 2023, and the trial date was scheduled for today on February 14, 2024. The first amended complaint does not state a cause of action. It is not a complaint to quiet title. It is not a complaint seeking declaratory relief under the Courts and Judicial Proceedings Article 3-401 [et seq].
I understand Counsel’s argument, but under the Estates and Trusts Article, a question of fact for this Court to determine, this Court being a court of law, has to be transmitted to this Court by the Orphans’ Court. That’s Estates and Trusts Article 2-105. Attaching a copy of a Court order from the Orphans’ Court is not a transmittal.
In fact, the order that’s attached to the first amended complaint clearly states that the current action was already pending when that order was sought on October 13. So, as a matter of law, I find that the Plaintiff has failed to state a cause of action in this case. I am dismissing the Plaintiff’s complaint Counsel has the right, under the Maryland rules, if he comes up with something he wants me to consider after the fact, if he timely files a Motion to revise, I’ll be happy to look at.
(Emphasis added.)
STANDARD OF REVIEW
Under Maryland Rule 2-322(b)(2), a circuit court may dismiss a complaint for failure to state a claim upon which relief can be granted. We read that complaint in the light most favorable to the plaintiff, accepting well-pleaded facts as true and drawing all reasonable inferences from such facts. See Eastland Food Corp. v. Mekhaya, 486 Md. 1, 20 (2023). We review the court’s dismissal without deference, as the dismissal is a question of law. See id.
Although “an amended complaint may be filed only if the court expressly grants leave to amend[,]” Md. Rule 2-322(c), “[w]hen leave of court is required, Rule 2-341(c) provides that ‘[a]mendments shall be freely allowed when justice so permits.’” Eastland Food, 486 Md. at 20 (quoting Md. Rule 2-431(c)). To “ensure[] that cases succeed or fail on their merits, not on the niceties of pleading[,]” dismissal with prejudice, when combined with denial of leave to amend, generally has been limited to circumstances when a new pleading “would result in prejudice to the other party, undue delay, or where amendment would be futile because the claim is irreparably flawed.” Id. (cleaned up).
Here, the circuit court dismissed Eaton’s complaint with prejudice, then declined to revise that judgment or permit Eaton to file a Second Amended Complaint, apparently because the court concluded Eaton’s proffered amendments would not cure any pleading or procedural deficiencies. Cf. id. (“We assume that the circuit court, after careful consideration, concluded that the proposed amended complaint did not cure the complaint’s deficiencies and therefore determined that it would have been futile for plaintiff to file it.”).
DISCUSSION
At the April 2024 hearing, the circuit court, before considering any evidence, addressed the Johnsons’ pending motion to dismiss in accordance with Rule 2-322(b), providing that a motion to dismiss shall be determined before trial, except that a court may defer the determination of the defense of failure to state a claim upon which relief can be granted until the trial. In disposing of the motion, the court may dismiss the action or grant such lesser or different relief as may be appropriate. If the court orders dismissal, an amended complaint may be filed only if the court expressly grants leave to amend.
The circuit court’s remarks and rationale in its bench ruling, and its subsequent denial of leave to amend, establish it dismissed Eaton’s complaint with prejudice “as a matter of law” based on her failure to plead a quiet title cause of action and obtain a formal transmittal from the orphan’s court. We agree with Eaton that neither reason merits dismissal with prejudice.
First, the circuit court’s focus on Eaton’s failure to properly plead a quiet title action was misplaced because Eaton has never had possession of the Properties, and therefore lacks standing to assert such a claim. See RP § 14-108(a) (authorizing claim to quiet title by “[a]ny person in actual peaceable possession of property . . . under color of title, . . . when the person’s title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property, or any part of it, . . . and if an action at law or proceeding in equity is not pending to enforce or test the validity of the title”) (emphasis added). Consequently, to the extent the circuit court dismissed Eaton’s complaint for failure to plead a quiet title cause of action, the court erred as a matter of law.
The circuit court also misapplied ET § 2-105(b)(2), authorizing factual disputes in the orphans’ court proceeding to be litigated in circuit court. From the outset of both the probate and circuit court proceedings, the question raised by Eaton has been whether the challenged deeds are forged or fraudulent, which in turn will determine whether the Estate must account for those Properties. The record shows that, after challenging the validity of those deeds in both the orphans’ court and the circuit court, Eaton elected to litigate the underlying factual dispute over whether the deeds are forged or fraudulent in circuit court. At the time Eaton initiated her orphans’ court and circuit court actions, she was not represented by counsel. Just weeks later, on October 13, 2022, after Eaton secured representation, the orphans’ court conferenced about the parallel proceedings in circuit court, with counsel for all parties, Eaton, and Kathy and LaShura Johnson. The result was an agreement that the forgery/ fraud question would be resolved in the circuit court before probate of the Estate proceeds in orphans’ court.
Rather than filing an order or other paperwork formally transmitting that factual dispute to the circuit court, the orphans’ court put the parties’ agreement on the record, in its October 13, 2022, docket note and then in later orders. Specifically, by order entered November 2, 2022, the orphans’ court stated the Johnsons “agree to permit Shawna Eaton to pursue her action as an individual in the Circuit Court Case” and “the Circuit Court Pleadings shall be amended accordingly.”
On March 29, 2023, the orphan’s court ordered Kathy Johnson to amend the inventory she filed as personal representative to state “that there is pending litigation concerning the two parcels of real property and listing them as potential assets of the Estate pending the resolution of the Circuit Court action.” Just days before the scheduled April 24, 2024, trial in circuit court, Eaton argued in her opposition to the Johnsons’ motion to dismiss that this agreement to litigate the deeds dispute in circuit court constituted waiver of all the defenses asserted in that motion.
As this record establishes, the orphans’ court, interested parties, and their counsel all agreed to determine the validity of the two deeds in the circuit court case, then give effect to that decision in the probate proceedings. According to the orphans’ court record, all parties were represented by counsel and, with the exception of Mr. Johnson who was on active duty, were present before the orphans’ court judge when they reached that agreement.
The circuit court nevertheless refused to give effect to this agreement regarding Eaton’s ET § 2-105(b) election. Instead, the court stated it lacked “jurisdiction” to resolve the deeds dispute without a formalized transmittal from the orphans’ court. Rather than allowing Eaton to correct any perceived paperwork deficiency, the circuit court dismissed her complaint with prejudice, then denied her request to revise the judgment in order to file a Second Amended Complaint.
In our view, the circuit court elevated form over function
when it refused to treat the documented agreement to adjudicate the deeds dispute in circuit court as the functional equivalent of an ET § 2-105(b) transmittal from the orphans’ court. As we have set forth, over the period of more than a year, there were multiple proceedings, pleadings, and orders stating Eaton effectively exercised her statutory right to have the circuit court decide her deed challenges and the Johnsons accepted that election.
To the extent the circuit court ruled that it lacked jurisdiction based on the lack of a formalized paperwork transmitting this factual dispute from the orphans’ court, we hold the circuit court erred as a matter of law. Alternatively, we hold the court abused its discretion in refusing to allow the parties to perfect a transmittal from the orphans’ court, and in then dismissing Eaton’s complaint with prejudice and denying Eaton’s motion to revise that judgment. See generally Eastland Food, 486 Md. at 20 ( “When leave of court is required, Rule 2-341(c) provides that ‘[a]mendments shall be freely allowed when justice so permits’ [to] ensure[] that cases succeed or fail on their merits, not on the niceties of pleading.”).
For these reasons, we vacate the judgment and remand for further proceedings to adjudicate in the circuit court whether the deeds challenged by Eaton were procured by forgery and/or fraud, for the purpose of determining whether the Estate must account for those two Properties in the probate proceedings pending before the orphan’s court.
JUDGMENT VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEES.
FOOTNOTES
1 Given their shared family name, at times we shall refer to members of the Johnson family by their first names.
2 To reflect the record and arguments, we restate the issues presented by Eaton, which appear in her brief as follows:
1. Whether the Circuit Court erred and abused its discretion by not allowing any testimony at the trial?
2. Whether the Circuit Court erred and abused its discretion by not following its own decision at the end of the trial, to allow Plaintiff to file a Motion to Revise and to file an Amended Complaint?
3. Whether the Circuit Court erred and abused its discretion by deciding the Motion to Dismiss, the Response and the Reply, in the absence of testimony and argument?
3 Under Maryland Code, § 14-108(a) of the Real Property Article, “[a]ny person in actual peaceable possession of property, . . . under color of title, . . . when the person’s title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property, or any part of it, . . . and if an action at law or proceeding in equity is not
pending to enforce or test the validity of the title.”
4 Under Maryland’s Declaratory Judgment Act, “a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if . . . [a] party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.” Md. Code, § 3-409(a)(3) of the Courts & Judicial Proceedings Article.
5 Counsel apparently was referencing Maryland Code, § 15-207 of the Commercial Law Article, providing that “[e]very conveyance made and every obligation incurred with actual intent . . . to hinder, delay, or defraud present or future creditors, is fraudulent as to both present and future creditors.”
6 Under Maryland Rule 12-804, a complaint to quiet title must “be signed and verified by the plaintiff and shall contain . . . information” specified in that rule but not pertinent to this appeal.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the St. Mary’s County Circuit Court’s quashing of multiple subpoenas filed by husband to obtain the financial records of wife, for the purpose of modifying child support. The circuit court was well within its discretion to limit discovery to only financial documents that could properly be considered to determine whether a material change in circumstances occurred.
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..
sole legal and physical custody of the children. Ms. Fitzgerald filed an answer on August 1, 2018, noting that all five children had been in her custody after a Final Protective Order was entered against Mr. DePasquale on April 19, 2018. Ms. Fitzgerald also filed a counter-complaint for absolute divorce on August 1, 2018. In the counter- complaint, Ms. Fitzgerald alleged that she had acted as the primary caregiver and was unemployed throughout the marriage. On January 3, 2019, the court granted the parties a limited divorce, with Ms. Fitzgerald retaining sole legal and physical custody. Mr. DePasquale was not ordered to pay any child support because he was willingly providing support in the amount of $7,000.00 per month, well in excess of the obligation pursuant to the Child Support Guidelines.
This case arises from an order of the Circuit Court for St. Mary’s County quashing multiple subpoenas filed by Appellant, Jeremy DePasquale (“Mr. DePasquale”), to obtain the financial records of Appellee, Meghan Fitzgerald (“Ms. Fitzgerald”) for the purposes of modifying child support. The circuit court additionally awarded attorney’s fees to Ms. Fitzgerald. The present appeal by Mr. DePasquale followed.
QUESTIONS PRESENTED
Mr. DePasquale presents two questions for our review, which we have rephrased and recast as follows:1
1. Whether the court erred in granting Ms. Fitzgerald’s motion to quash the subpoenas regarding information prior to June 27, 2022.
2. Whether the trial court erred when it awarded attorney’s fees to Ms. Fitzgerald.
For the following reasons, we affirm.
BACKGROUND
The parties were married in 2016, and share five children, born in 2011, 2013, 2014, 2015, and 2017. On April 6, 2018, Mr. DePasquale filed a complaint for limited divorce, requesting
On March 1, 2019, Ms. Fitzgerald again filed for absolute divorce, and in the complaint, indicated that Mr. DePasquale had ceased his voluntary child support payments. Mr. DePasquale denied this claim, and on June 11, 2019, the parties were granted an absolute divorce. The court ordered that all issues of child custody and support would remain as ordered in the January order granting the parties a limited divorce. On April 21, 2020, Mr. DePasquale filed a petition for contempt, alleging that Ms. Fitzgerald was not providing “reasonable and liberal visitation” as required by the judgment of limited divorce and incorporated into the judgment of absolute divorce. On July 14, 2020, Ms. Fitzgerald filed a complaint for modification of child support, alleging that Mr. DePasquale had stopped providing the voluntary support. Mr. DePasquale acknowledged that he was no longer providing support because he had already “provided a large amount of financial support for his children.”
After multiple delays, a hearing on Ms. Fitzgerald’s July 14, 2020 complaint to modify child support commenced on June 6, 2022. Numerous contempt and discovery- related motions were filed between July 14, 2020 and June 6, 2022. On May 6, 2022 -- one month before the scheduled child support modification hearing -- Mr. DePasquale served a subpoena on Ms. Fitzgerald to testify at the hearing and produce documents relating to 54 separate document requests. On June 1, 2022, Ms. Fitzgerald filed a motion to quash this subpoena, alleging that in the nearly two years that the motion to modify child support had been pending, Mr. DePasquale refused to respond to any discovery or deposition requests and failed to produce any discovery despite ample opportunities -- and court orders -- to do so. Ms. Fitzgerald argued that prior to May 6, 2022, Mr. DePasquale had never served any interrogatories, and appeared to be using this discovery request to further delay proceedings. The court granted Ms. Fitzgerald’s motion to quash. Mr. DePasquale did not appeal the court’s decision to quash the subpoena and discovery request.
At the June 6, 2022 hearing, the parties began presenting evidence regarding Ms. Fitzgerald’s motion to modify child support. At some point, the parties paused the hearing to negotiate an agreement with the assistance of counsel. On June 27, 2022, the court entered a consent order based on the evidence presented to the court and the parties’ June 6, 2022 agreement, ordering that Mr. DePasquale pay Ms. Fitzgerald $7,000.00 in child support each month beginning July 1, 2022, and outlined a comprehensive visitation arrangement for Mr. DePasquale and the children. The court also ordered that the several outstanding contempt and discovery-related motions were either dismissed, denied, or moot.
On November 1, 2022, Ms. Fitzgerald filed a pro-se motion seeking to modify the visitation order, requesting Mr. DePasquale’s phone access to the children be limited and that he be supervised in his visitation with the children. In support, Ms. Fitzgerald alleged that Mr. DePasquale “verbally assaulted [her] via text threatening her [and the] children many times,” and cited multiple instances of name-calling by Mr. DePasquale and disagreements regarding care for the children. On November 30, 2022, Mr. DePasquale filed an answer denying Ms. Fitzgerald’s allegations; filed a petition for contempt alleging Ms. Fitzgerald has denied visitation since November 3, 2022; and filed a motion to modify custody, visitation, and child support. In support of his motion to modify custody, visitation, and child support, Mr. DePasquale cited the denied visitation, removal of the children from private school, and a reduction in Mr. DePasquale’s income as reasons to reduce the child support award and grant him greater visitation with the children.
On January 4, 2023, Mr. DePasquale served Ms. Fitzgerald with discovery requests to produce financial documents and respond to interrogatories. On March 28, 2023, Mr. DePasquale served subpoenas on Bank of America and Cedar Point Federal Credit Union, seeking to obtain Ms. Fitzgerald’s financial records from January 1, 2020 to the present. The subpoenas requested representatives of the financial institutions to appear at a scheduled April 13, 2023 hearing and produce financial documents regarding Ms.Fitzgerald’s financial status from January 1, 2020. On April 5, 2023, Ms. Fitzgerald filed a motion to quash the subpoenas. On April 13, 2023, the parties entered a consent order agreeing to a custody and visitation schedule, leaving only the child support issue to be resolved at a hearing scheduled for August 18, 2023. On April 19, 2023, Mr. DePasquale filed an opposition to the motion to quash the subpoenas, arguing that the information would be used to demonstrate that Ms. Fitzgerald was voluntarily impoverished, and, therefore, the child support award should be modified. Both parties filed various motions regarding discovery and for attorney’s fees in the interim. On June 9, 2023, Ms. Fitzgerald filed a motion to compel regarding discovery failures by Mr. DePasquale, including his failure to respond satisfactorily to interrogatories and produce discovery materials.
The court held a hearing on July 20, 2023 addressing Ms. Fitzgerald’s motion to quash and her motion to compel discovery. At the hearing, only Ms. Fitzgerald and counsel were present initially. Ms. Fitzgerald argued that because Mr. DePasquale was seeking to modify the support ordered in the June 27, 2022 consent order, any financial information prior to that date was
irrelevant. Ms. Fitzgerald argued that the petitioner seeking a modification of child support is the party tasked with showing a material change of circumstances that has occurred from the date that the prior determination was made, i.e., June 27, 2022. The court granted the motion to quash all financial records prior to June 27, 2022. The court also granted Ms. Fitzgerald’s motion to compel discovery after Ms. Fitzgerald noted that Mr. DePasquale had failed to produce a single financial document pertaining to his paving company, Official Asphalt, LLC, and refused to respond adequately to interrogatories. Ms. Fitzgerald’s counsel then requested attorney’s fees totaling $6,015.00. Counsel submitted an affidavit describing the work done in preparation for the hearing and described the corresponding rates on the record. The court ordered that Mr. DePasquale pay attorney’s fees within 15 days. The court stated that the award was “based on the Court finding today that from past experience and having knowledge of [Mr. DePasquale] and his business and his economics, that the Court finds that he is capable and can afford to make that payment.” The court continued, finding “that there is no justification whatsoever been presented here today for why the records were necessary and why the Answers and Interrogatories and other discovery was not provided in a timely fashion.”
As the court concluded its proceedings, counsel for Mr. DePasquale arrived, apologizing that he had gone to the wrong courthouse. After allowing Mr. DePasquale’s counsel to argue in opposition to the motion to quash, motion to compel discovery, and the award of attorney’s fees, the court again ordered that all financial records prior to June 27, 2022 did not need to be produced. The court further ordered that Mr. DePasquale provide discovery, and awarded Ms. Fitzgerald attorney’s fees. In doing so, the court rejected Mr. DePasquale’s argument that to demonstrate a material change in circumstances to justify a modification of the child support award, he needed financial documents to establish Ms. Fitzgerald’s financial state prior to June 27, 2022.
In its order dated July 21, 2023, the court reiterated that both parties could only receive financial documents dated from June 27, 2022 to the present. Finding that there was “no justification for why [Mr. DePasquale] did not provide complete responses to [Ms. Fitzgerald’s] Interrogatories and Request for Production of Documents in timely fashion and that [Mr. DePasquale] is capable of and can make the payment of attorney’s fees to [Ms. Fitzgerald’s] counsel,” the court ordered that Mr. DePasquale pay $6,015.00 in attorney’s fees related to the motion to quash and compel discovery.
On August 14, 2023, Mr. DePasquale filed a motion for reconsideration of the July 21, 2023 order to quash and compel discovery. The court held a hearing on the motion for reconsideration on November 27, 2023. The court granted the motion for reconsideration on the sole issue of attorney’s fees, deciding instead to wait until the conclusion of a hearing scheduled for February 21, 2024, at which the court would entertain arguments regarding Mr. DePasquale’s motion for modification of the child support award. During the November 27, 2023 hearing, the court reiterated its reasoning for granting the motion to quash records prior to June 27, 2022, stating: The Court’s reason for limiting things to June 27th
is because the correct standard is that there has to be a material change in circumstance. Your client entered into a consent, okay? This was an agreement. This wasn’t a court order. The Court didn’t have a hearing. We started to have a hearing and your client didn’t like how the hearing was going, not because of anything I said or did.
What you are attempting to do, my opinion only, is you are attempting on his behalf, and you’re not wrong for this, but you are attempting to actually ask for a reconsideration of his . . . consent order that he reached with counsel, with an attorney, and he’s now unhappy with that agreement. Okay? And it’s perfectly fine, but that should be in the form of a reconsideration of that or what it is, which is what you filed, and it requires a material change in circumstance. Well, those circumstances are from June of 2022, June 27th of 2022.
What has happened since then that the Court should be considering for material change of circumstance to determine whether or not there should be a modification or a change? That’s why the Court limited the discovery to the June 27th date.
On February 21, 2024, the court conducted a hearing on the merits of Mr. DePasquale’s November 30, 2022 motion to modify child support. Mr. DePasquale argued that under the two-pronged test to modify child support -- whether there has been a material change in circumstances to either party, and, if so, whether adjusting the amount of child support owed by one party would be in the best interest of the child -- the child support Mr. DePasquale was required to pay should be modified. Mr. DePasquale argued extensively that Ms. Fitzgerald was voluntarily impoverished, and the court should rectify this by imputing income and ultimately modifying Mr. DePasquale’s child support obligation. Ms. Fitzgerald noted that voluntary impoverishment typically arises when a previously employed individual quits his or her job prior to the calculation of an alimony or child support award, and emphasized that she has never been employed.
Evidence was offered regarding Mr. DePasquale’s business revenue and expenses, several vehicles and monthly loan payments, vacations taken with his family, and that he makes more money now than he did when the June 27, 2022 consent order was entered. Mr. DePasquale also noted that because he has relocated to Florida, he now expends more on his monthly in-person visits with the children in Maryland. Evidence was also offered regarding Ms. Fitzgerald’s previous and current role as caretaker for the five children, and her present lack of employment and any employment history. Mr. DePasquale did not testify that he was presently unable to make the $7,000.00 monthly child support payments. The court found no material change in circumstances was demonstrated and granted Ms. Fitzgerald’s motion for judgment, declining to modify the child
support award. The court gave each party 15 days to submit their respective positions regarding the request for attorney’s fees.
Mr. DePasquale noted an appeal of the February 21, 2024 Order on March 6, 2024. In addition, on March 6, 2024, Ms. Fitzgerald filed a motion for attorney’s fees in the amount of $31,447.85. On March 13, 2024, Mr. DePasquale filed a motion to stay the appeal, pending the outcome of the court’s determination of attorney’s fees. On March 22, 2024, the court ruled on the request for attorney’s fees, granting Ms. Fitzgerald attorney’s fees in the amount of $14,722.35, to be paid within 60 days of the order. The court indicated that $6,015.00 of this award related to the July 20, 2023 hearing on the motion to quash and motion to compel discovery. The balance of $8,707.35 related to the February 21, 2024 hearing on Mr. DePasquale’s motion to modify child support. For both awards, the court found:
based on the facts and evidence before the Court, that [Mr. DePasquale] has the financial ability to pay the costs, [Ms. Fitzgerald] having limited income and there being an absence of substantial justification of [Mr. DePasquale] for bringing the action against [Ms. Fitzgerald] and the Court further finding that the costs are fair, reasonable and customary based on the work performed, the skills and services rendered and comparing to similar cases[.]
Ms. Fitzgerald was awarded less than half of her requested attorney’s fees, with $16,725.50 still outstanding. Mr. DePasquale appealed.
STANDARD OF REVIEW
An appellate court “reviews a trial court’s decision to quash a subpoena under an abuse of discretion standard.” In re Special Investigations Misc. 1064, 478 Md. 528, 545 (2021). “[A]n abuse of discretion occurs where no reasonable person would take the view adopted by the circuit court.” Id. “A trial court’s interpretation and application of Maryland statutory law is reviewed for legal correctness under a de novo standard.” Id. The court’s award of attorney’s fees is also reviewed for an abuse of discretion. David A. v. Karen S., 242 Md. App. 1, 23 (2019). 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.” Santo v. Santo, 448 Md. 620, 625- 26 (2016). “An award of attorney’s fees will not be reversed unless a court's discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini v. Petrini, 336 Md. 453, 468 (1994).
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING MS. FITZGERALD’S MOTION TO QUASH THE SUBPOENAS AS THEY PERTAIN TO FINANCIAL INFORMATION PRIOR TO JUNE 27, 2022.
Mr. DePasquale filed subpoenas on two financial institutions, Bank of America and Cedar Point Federal Credit Union,
requesting financial information on any accounts involving interests of Ms. Fitzgerald from January 1, 2020 to the present. Ms. Fitzgerald filed a motion to quash the subpoenas regarding financial information prior to the June 27, 2022 consent order.
In her motion to quash, Ms. Fitzgerald argued that because the court had entered a consent order on June 27, 2022 addressing child support -- which had considered the financial situations of the parties prior to that date -- and because Mr. DePasquale needed to show a material change in circumstances from the most recent child support order to support his motion for modification, information prior to June 27, 2022 was irrelevant.
The court granted the motion to quash, ordering that any financial documents prior to June 27, 2022 need not be produced.
Mr. DePasquale contends that the trial court abused its discretion in granting Ms. Fitzgerald’s motion to quash. Mr. DePasquale argues that the financial materials he sought to obtain would show Ms. Fitzgerald’s voluntary impoverishment and were necessary to demonstrate a material change in circumstances for the purpose of modification of child support.
Ms. Fitzgerald responds that the court properly granted her motion to quash regarding the financial documents prior to June 27, 2022 because Mr. DePasquale needed to show a material change of circumstances from the date of the previous support determination, and any financial documents prior to that order are irrelevant.
To determine if a material change of circumstances has occurred to justify the modification of a child support award, the trial court “must specifically focus on the alleged changes in income or support that have occurred since the previous child support award.” Wills v. Jones, 340 Md. 480, 489 (1995). As such, to determine whether Mr. DePasquale’s and Ms. Fitzgerald’s financial situations had changed sufficiently to qualify as a material change in circumstances for the purpose of modifying child support, the court was required to specifically focus on any alleged changes since the previous support award, which occurred on June 27, 2022.
As noted, we review a trial court’s granting of a motion to quash for abuse of discretion. In re Special Investigations Misc. 1064, 478 Md. at 545. A court abuses its discretion if “no reasonable person would take the view adopted by the circuit court.” Id. We cannot say that the court abused its discretion by granting the motion to quash the subpoena as it pertained to financial documents that the court was not even supposed to consider, as they pre-dated the previous child support award and were therefore not relevant. The decision to limit discovery to only financial documents that could properly be considered to determine whether a material change in circumstances occurred was well within the discretion of the court.
Mr. DePasquale devotes significant portions of his brief addressing what the court should have considered in ruling on his child support modification motion. In our view, this is not on appeal. The issue presented to this Court is whether the court abused its discretion in granting the motion to quash the financial records prior to June 27, 2022 -- not whether the June 27, 2022 order was in some way incorrect or whether the court erred in denying Mr. DePasquale’s motion for modification at the February 21, 2024 hearing after finding that no material change in circumstances existed. The issue before us is purely whether
the court erred in determining that only financial documents pertaining to the parties’ financial status after June 27, 2022, the date of the last child support order, were relevant. The court did not abuse its discretion in deciding that the documents were not relevant and granting Ms. Fitzgerald’s motion to quash regarding information prior to the June 27, 2022 consent order. We need not decide whether the court correctly found that there was no material change in circumstance to justify modification of the child support award. Indeed, Mr. DePasquale has not asked us to consider such a question on appeal. We, therefore, affirm the court’s decision to grant Ms. Fitzgerald’s motion to quash.
II. THE TRIAL COURT DID NOT ERR IN AWARDING ATTORNEY’S FEES TO MS. FITZGERALD.
In addition, Mr. DePasquale contends that the trial court erred when it ordered him to pay Ms. Fitzgerald’s attorney’s fees of $14,722.35. Of that amount, $6,015.00 stemmed from the July 21, 2023 hearing on Ms. Fitzgerald’s motions to quash the subpoena and to compel discovery, and $8,707.35 related to the February 21, 2024 hearing on Mr. DePasquale’s motion to modify child support. Ms. Fitzgerald counters that the court’s decision to award attorney’s fees was not an abuse of discretion.
The award of attorney’s fees in this instance is governed by Md. Code (1984, 2019 Repl. Vol.) § 12-103 of the Family Law Article (“FL”). FL § 12-103 provides:
(a) The court may award 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.
(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.
(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.
FL § 12-103.
Although not mandated by FL § 12-103, the court must also consider whether the fees requested are reasonable. Sczudlo v. Berry, 129 Md. App. 529, 550 (1999). In determining the reasonableness of the requested attorney’s fees, the court “must look at (1) whether the [award] was supported by adequate testimony or records; (2) whether the work was reasonably necessary; (3) whether the fee was reasonable for the work that was done; and (4) how much can reasonably be afforded by each of the parties.” Lieberman v. Lieberman, 81 Md. App. 575, 601-02 (1990); see also Lemley v. Lemley, 109 Md. App. 620, 633 (1996) (holding that when determining whether the fee request is reasonable, the court must “tak[e] into account such factors as labor, skill, time and benefit afforded to the client by the attorney, as well as the financial resources and needs of each party”). The relative amounts of each party’s attorney’s fees, as well as financial status and need, however, should only be considered when the court determines that both parties have a substantial justification for their positions in the action. Davis v. Petito, 425 Md. 191, 206 (2012).
Mr. DePasquale argues that Ms. Fitzgerald has significant income derived from the yearly child support she receives and the sale of the marital property in 2021, and therefore, is in solid financial shape and has no demonstrated need. Further, Mr. DePasquale alleges that he has a net monthly loss of $3,000.00 -implying that his need is greater than Ms. Fitzgerald’s. Regarding the substantial justification element, Mr. DePasquale argues that Ms. Fitzgerald is the one who acted in bad faith when filing the motion to quash, reiterating that information prior to June 27, 2022 was relevant. Similarly, Mr. DePasquale argues that Ms. Fitzgerald’s motion to compel discovery was inappropriate as he had provided old tax returns and a long-form financial statement, and Ms. Fitzgerald filed too many interrogatories, so he did not need to respond. Finally, Mr. DePasquale contends that the information Ms. Fitzgerald sought to obtain from her interrogatories was the same information that she deemed “irrelevant” in her motion to quash. Despite language in several of the interrogatories themselves limiting the requested information “since June 27, 2022,” Mr. DePasquale argues that the court allowed Ms. Fitzgerald to “amend her motion to compel on the spot to eliminate its obvious inconsistency with the motion to quash.”
Mr. DePasquale further posits that this was a “knowing and deliberate falsehood” that the court relied on to find that he had no basis for opposing the motion to compel, and this reliance was in error. As such, Mr. DePasquale argues that he had substantial justification in defending against these motions. Regarding the fees related to the modification hearing, Mr. DePasquale again argues that the court erred in determining that he had no substantial justification for bringing the suit, because even though he lost his motion on the child support -- which he again argues he should not have -- he prevailed on a bifurcated motion to modify visitation, which was resolved when a consent order was entered following a hearing on April 13, 2023.
Ms. Fitzgerald counters that Mr. DePasquale’s lacked substantial justification for any of the actions -- defending
against the motion to quash the subpoenas and the motion to compel discovery and filing his motion for modification of child support – and, therefore, the court did not err in awarding her attorney’s fees. Even though it found Mr. DePasquale lacked substantial justification in his actions, Ms. Fitzgerald contends that the court also considered the financial status and need of the parties in making its award determination. Finally, Ms. Fitzgerald notes that the court did not simply “rubber stamp” her request for $31,447.85 in attorney’s fees, and instead considered the factors and reasonableness in its determination to award her $14,722.35.
The court awarded $14,722.35, which included $6,015.00 for the motions from the July 20, 2023 hearing, finding that there was “an absence of substantial justification of [Mr. DePasquale] for bringing the action against [Ms. Fitzgerald.]” The court further found “that the costs are fair, reasonable and customary based on the work performed, the skills and services rendered and comparing to similar cases[.]” The court similarly determined that Mr. DePasquale lacked substantial justification for the remaining $8,707.35 related to the February 21, 2024 hearing, stating it was “making the same findings as to the reasons and justification for said attorney fee award.”
“Substantial justification under § 12-103 requires the court to ‘assess whether each party’s position was reasonable.’”
David A. v. Karen S., 242 Md. App. 1, 38 (2019) (quoting Davis, 425 at 204). “Prevailing on the merits is a sufficient, but not a necessary, element of substantial justification in bringing, maintaining or defending a proceeding.” Davis, 425 at 203. “Essentially, substantial justification, under both subsections (b) and (c) of Section 12-103, relates solely to the merits of the case against which the judge must assess whether each party’s position was reasonable.” Id. at 206. If the court finds that there was a lack of substantial justification for maintaining a claim and absence of good cause to the contrary, the will “result in an award of attorney[’s] fees and costs to the other party, so long as those fees and costs are reasonable.” Id. at 201.
Mr. DePasquale did not prevail on any of his actions. Although that is not dispositive, Mr. DePasquale’s argument that he prevailed on the modification motion because visitation was changed is misplaced. Indeed, a consent order was entered on April 13, 2023, over ten months before the child support modification hearing. The court found that Mr. DePasquale’s testimony regarding his business was not credible, and that Mr. DePasquale was in a better position now that he lived in Florida than he was on June 27, 2022 when the child support consent order was entered.
As we have previously observed, we review a circuit court’s award of attorney’s fees under an abuse of discretion standard, and we will only reverse if the “court’s discretion was exercised arbitrarily or the judgment was clearly wrong.” Petrini, 336 Md. at 468. We cannot say that the court’s determination that Mr. DePasquale lacked substantial justification in any of his actions was clearly wrong. Under FL § 12-103(c), “[u]pon 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.” Thus, the court was required to award attorney’s fees to Ms.
Fitzgerald unless there was “good cause to the contrary,” such as if the fees were unreasonable.
The court found “that the costs are fair, reasonable and customary based on the work performed, the skills and services rendered and comparing to similar cases.” Ms. Fitzgerald submitted an affidavit and multiple exhibits outlining the services rendered and rates charged by counsel. Ms. Fitzgerald requested an amount of $31,447.85. The court chose to award $14,722.35, less than half of that amount. In our view, this indicates that
JUDGMENT
FOOTNOTES
the court considered the evidence presented and settled on an amount that it found to be reasonable. Accordingly, the court was not “clearly wrong” in its decision to award attorney’s fees to Ms. Fitzgerald and we find no error by the court in ordering Mr. DePasquale to pay $14,722.35 in attorney’s fees.
The court did not abuse its discretion in either granting Ms. Fitzgerald’s motion to quash the subpoenas or in awarding Ms. Fitzgerald attorney’s fees. We, therefore, affirm.
OF THE CIRCUIT COURT FOR ST. MARY’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 Mr. DePasquale phrased the questions as follows:
1. Did the trial court err in quashing subpoenas seeking wife’s financial records, thereby interfering with father’s right to develop evidence of mother’s voluntary impoverishment and with the children’s right to have child support determined based
on all available evidence?
2. Did the trial court abuse its discretion in awarding attorney fees to mother’s counsel in connection with mother’s motion to quash, mother’s motion to compel discovery and/or for sanctions, and father’s motion to modify child support?
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s denial of mother’s request for child support. The circuit court did not have the required evidence of the parties’ actual income to award child support under the guidelines.
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..
August 9, 2023. When Father failed to appear at that hearing, the court dismissed both Ms. Malone’s and Father’s complaints for custody, and vacated the pendente lite order. It appears that Father maintained physical custody of the children.
At that hearing, the court also reset a hearing date of September 8, 2023 on Mother’s request for child support. That hearing date was extended at Mother’s request. On November 9, 2023, the circuit court denied Mother’s request for child support from Father “for failure to file a financial statement” pursuant to Md. Rule 9-203.
Appellant, Erica Tucker Haygood (“Mother”), who is selfrepresented, appeals an order of the Circuit Court for Prince George’s County denying her request for child support.
For the reasons set forth below, we affirm the judgment of the circuit court.
BACKGROUND
Mother and Brandon Parrott (“Father”) are the biological parents of two minor children: “M,” born in 2010, and “K,” born in 2012. On January 18, 2023, Anita Malone, the children’s maternal grandmother, filed for custody of M and K, who then lived with Mother. Ms. Malone based her custody complaint on Mother’s “drug and alcohol abuse and unsafe living envi[ro] nment” resulting from “Mother’s decisions.”
Mother answered Ms. Malone’s complaint and filed a countercomplaint for custody. Father, who was living in Ohio, also filed an answer and counter-complaint for custody. He stated that he was living in Ohio and that M and K had “always resided with [him] prior to 2018.” That ended when Mother persuaded a court in Ohio that he was not the children’s biological father and ordered him to return the children to her.1 All three appeared for a pendente lite hearing on March 16, 2023. At that hearing, Ms. Malone and Father were granted temporary joint legal and physical custody of M and K.
Later, Ms. Malone filed a petition for contempt based on Father failing to return the children to her care following a visit. A hearing on Ms. Malone’s contempt petition was held on
Another hearing on Mother’s counter-complaint for custody and child support was set for November 27, 2023. On November 22, 2023, Mother filed a financial statement pursuant to Rule 9-203(a) that included a statement of her income, monthly expenses, assets and liabilities. At the hearing on November 27, 2023, Mother and Father appeared without counsel; Ms. Malone did not appear. The court awarded Mother sole physical and legal custody of M and K. As to child support, the court asked Mother whether she had evidence of Father’s income. She responded that she had only “[o]ld royalty statements. That’s it.” In again denying her request for child support, the court stated: “[Mother] has the burden of proof of child support. I recommend that you file with the Office of Child Support. They can do the legwork, and they can figure out what he owes in child support, and he should file with them.”
Mother noted this timely appeal.
DISCUSSION
Title 12 of the Family Law Article (“F.L.”) of the Maryland Code (1984, 2019 Repl. Vol.) provides a comprehensive scheme for awarding child support to a custodial parent. See Durkee v. Durkee, 144 Md. App. 161, 182 (2002). F.L. § 12-202(a)(1) states that, “in any proceeding to establish . . . child support, . . . the court shall use the child support guidelines set forth in this subtitle.” Those guidelines were established “based on specific descriptive and numeric criteria” and “result in a computation of the support obligation.” Voishan v. Palma, 327 Md. 318, 322 (1992) (quotation marks and citation omitted). To determine the parents’ financial obligations under the child support guidelines, “the court must consider ‘the actual adjusted income’ of each parent.” Durkee, 144 Md. App. at 182 (quoting Reuter v. Reuter, 102 Md. App. 212, 221 (1994)); see F.L. § 12-204(a)(1). “Actual income” is defined as “income from any source.” F.L. § 12-201(b) (1); see also Guidash v. Tome, 211 Md. App. 725, 745 (2013) (“Put plainly, the guidelines require that the court determine the parties’ monthly actual income, calculate the basic support amount, add certain child-related expenses to the basic support
amount, and then allocate the total between the parents.”).
For that reason, F.L. § 12-203(b) requires income statements from the parents to be “verified with documentation of both current and past actual income.” Ley v. Forman, 144 Md. App. 658, 669 (2002). Here, Mother provided a financial statement without documentation such as tax returns or pay stubs verifying her income. Nor has Father filed a required financial statement, and Mother was unable to produce any evidence as to his income. It appears from the record that Mother attempted to serve Father with discovery, but the requests were returned as undeliverable based on an incorrect address.
The record also reflects an unsuccessful attempt to subpoena information regarding Father’s income from corporations in California and New York that included a motion in the circuit court for an order to compel the corporations’ compliance with her subpoena. The circuit court, denying her
motion, stated that it did not have “jurisdiction over non- party foreign corporations. To obtain jurisdiction, the subpoena must be issued and served pursuant to NY and California law. See New York’s and California’s versions of the Uniform Interstate Depositions and Discovery Act.”
The circuit court did not err in denying Mother’s request for child support because it did not have the required evidence of the parties’ actual income to award child support under the child support guidelines. To be sure, getting Father’s information is more complicated because he apparently does not live in Maryland, and other entities that may have information regarding his income are not in Maryland. If Mother is unable to procure legal assistance in this matter, she should consider, as the circuit court suggested, consulting the Prince George’s County Office of Child Support to assist her in obtaining child support from Father.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The record contained no additional information regarding the proceedings in Ohio.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court dismissed the interlocutory appeal from the Prince George’s County Circuit Court. The circuit court’s order denied mother’s motion to dismiss the complaint based on a lack of jurisdiction and improper service, and it ruled that Maryland was the proper jurisdiction to address the child custody dispute between the parties. This order did not finally determine the merits of the child custody proceeding, and accordingly, was not a final 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..
motions and scheduling hearings?
For the reasons set forth below, we shall dismiss this interlocutory appeal.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a complicated procedural history, including a prior appeal to this Court, arising from the parties’ ongoing child custody dispute. We recount only the filings and procedural history that are relevant to the issues in this appeal.
In our previous unreported opinion, Ucheomumu v. Prosper, No. 1141, Sept. Term, 2023, 2024 WL 1108666 (Md. App. Ct. Mar. 14, 2024), we discussed the procedural history of this case. We quote our discussion of the initial proceedings, as follows:
This appeal arises from an order issued by the Circuit Court for Prince George’s County denying a motion filed by appellant, Isabell Prosper (“Mother”), to dismiss the complaint for child custody filed by appellee, Andrew Ucheomumu (“Father”). Mother alleged that Maryland was not the proper jurisdiction to hear the parties’ custody dispute relating to their minor child and that she was not properly served.
On appeal, Mother, an unrepresented litigant, raises the following questions for this Court’s review, which we have rephrased slightly, as follows:
1. Did the circuit court err in obtaining jurisdiction where no summons was served on Mother within 60 days, there was no written request for a renewal of summons, and there was no proof of service by a nonparty?
2. Did the circuit court err when the judge declined to recuse herself based on a personal and work relationship with Father?
3. Did the circuit court err in finding that it had jurisdiction over the matter pursuant to Md. Code Ann., Fam. Law (“FL”) § 9.5-201 (2019 Repl. Vol.)?
4. Did the circuit court err in failing to rule on
On June 28, 2023, Father filed, in the Circuit Court for Prince George’s County, a complaint seeking custody of the Child, who was born in 2019. When the complaint was filed, Father was living in Prince George’s County, and Mother was living in Washington, D.C. Father’s complaint alleged that the Child lived with him in Maryland and had been living with him for at least six months. Father further alleged that Mother was “very violent,” and that she had other (older) children who had been removed from her care “for abuse, neglect and for their safety.” Father asserted that, “[u]nder Md. Rule 9-101 physical custody must be denied to the Defendant.” Father requested primary physical custody and sole legal custody of the Child.
On June 30, 2023, Mother filed a motion to dismiss Father’s complaint for custody. Mother provided the following assertions in support, which we quote in full verbatim:
Minor lives in Washington DC since 2019 –until current. Defendant committed parental (unintelligible) kidnapping by refusing to return minor after a 3 day visit, defendant committed domestic violence against me, lied and said I did to him. Made false statements to the court, officers in Maryland.
Attached to Mother’s motion were three documents. The first document appeared to be an order from the Superior Court of the District of Columbia, which stated that Mother had filed for custody of the Child in that court on June 28, 2023, the same day that Father had filed for custody in Maryland. According to that document, the
Superior Court had scheduled a hearing for June 29, 2023. The second document appeared to be a temporary protective order that had been entered in the Superior Court of the District of Columbia on June 28, 2023, on behalf of Mother against Father. The third document appeared to be an email exchange between the Superior Court of the District of Columbia and Mother regarding the hearing that was to be held in D.C. on June 29, 2023.
On August 7, 2023, the Circuit Court for Prince George’s County entered an order granting Mother’s motion to dismiss. Other than stating in the order that the decision was made “[u]pon consideration of Defendant’s Motion to Dismiss Plaintiff’s Complaint for Custody, and any opposition thereto,” the court did not provide any explanation for its ruling. The court ordered that Father’s complaint seeking custody be “DISMISSED WITH PREJUDICE.”
Id. at *1-2 (footnote omitted).
We vacated the circuit court’s order granting Mother’s motion to dismiss and remanded the case for further proceedings. Id. at *3. We held that the allegations that Father set forth in his complaint were sufficient to state “a prima facie claim for custody of his biological child.” Id. Additionally, we held that nothing in the record supported the circuit court’s decision to dismiss Father’s complaint with prejudice. Id.
On July 8, 2024, the Circuit Court for Prince George’s County held a virtual hearing with Judge Kelsey from the circuit court and Judge Wellner from the Superior Court of Washington, D.C. Judge Kelsey noted that the purpose of the hearing was to resolve the “jurisdictional question,” i.e., whether the case should remain in Maryland pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).
Judge Kelsey began the hearing by stating that she had a prior relationship with Father, noting that they had served together on the J. Franklin Bourne Bar Association as “board members for a few years,” and they had “served together on quite a few committees.” Judge Kelsey stated that she believed that she could be fair and impartial for the purposes of the hearing. Mother appeared to object, asking how long it would be until another hearing if she “was to decline” having Judge Kelsey preside. When asked for the reasons for her objection, Mother stated: “If [she] was to object it is basically because -- because [Judge Kelsey] had a personal relationship with [Father].”
Judge Kelsey noted Mother’s objection, stated that the issue was merely a jurisdictional question, and clarified that her relationship with Father was professional, and she had not had any contact with him since serving together eight years ago.
Judge Kelsey stated that she could be fair and impartial, and she declined to recuse herself. She advised, however, that if the case stayed in Maryland, she would not hear the case on the merits. Mother and Father, unrepresented litigants,1 presented
conflicting testimony regarding where the Child was living prior to the filing of the custody complaints. One of the two guardian ad litems stated that neither of them had a position on the issue of which court had jurisdiction, but she noted that it was possible that the proceedings were further along in D.C. than in Maryland, and therefore, “it might mean that [Maryland] is an inconvenient forum. Just to get this done as quick as possible so that the child is no longer at the center of this dispute.” Judge Wellner stated that this fact, which court was farther along in the proceedings, did not matter to the issue of “where the case belongs.” Judge Wellner stated that the issue was compliance with the UCCJEA and what was the child’s home state. Judge Kelsey stated that she would take the issue under advisement.
On August 22, 2024, Mother filed another motion to dismiss. She argued that the case should be dismissed on grounds of (1) improper service and (2) a lack of jurisdiction pursuant to FL § 9.5-201.2
On August 28, 2024, Father filed an opposition to Mother’s motion. He argued that proper service had been effected, and even if service was flawed, Mother had waived insufficiency of service. He asserted that the court was bound by this Court’s holding in Ucheomumu v. Prosper, 2024 WL 1108666, “as the law of the case,” that Mother’s motion to dismiss “[was] res judicata,” and that Mother was “collaterally estopped from relitigating the same issues.”
On October 3, 2024, the court issued an order denying Mother’s motion to dismiss. It ordered that Maryland was the appropriate jurisdiction to hear the custody case and would retain jurisdiction pursuant to the UCCJEA. The court stated the following regarding its findings:
In all proceedings, it is the responsibility of the Court to weigh the evidence received. In that vein, this Court has concerns regarding the strength of [Mother’s] position. First it is noted that [Father’s] testimony regarding the residence of the child was more firm, concise and detailed. [Mother’s] testimony, on the other hand, provided several suggested occasions that the child may have been with her, through several unidentified sources, but the Court did not receive the testimony regarding the child’s residency as continuing in nature. In addition to weighing testimony, this Court is also responsible for the assessment of the litigant’s demeanor and credibility. On the issue of credibility, this Court is unable to find any inconsistencies in the testimony as provided by [Father]. However, the Court does have additional concerns regarding [Mother’s] credibility. First, when asked about her witness, [Mother] stated that he was a longtime family friend and driver, who had substantial historical knowledge regarding the child; who had frequent contact with the child; and who knew where the child lived. However, upon questioning, while the driver was able to testify as to some portions of the events that occurred on June 27, 2023, the driver identified [Mother] as “customer”; testified that he did not recall the child’s name; was not able to definitively
state where the child lived; and after testifying that he had driven the child many times, specifically stated that the number of times he had driven the child was actually limited to 2 or 3. The Court is also unable to ignore the fact that [Mother] has filed multiple Petitions for Protective Orders against [Father], raising serious allegations; that each matter has been heard before a different judge and that none of them have resulted in the granting of a permanent protective order. Further, this Court had the opportunity to personally experience [Mother] completely mischaracterize a key piece of information, during a preliminary matter. More specifically, this Court found it necessary to disclose a prior working relationship with [Father]. Specifically, this Court advised all, on the record as follows: “I want to disclose I had a prior relationship with [Father]. We both served together on the J. Franklyn Bourne Bar Association. We were board members for a few years and served together on quite a few committees. Despite that, I believe can be fair and impartial.” When the Court asked [Mother] if she had any objection, [Mother] stated as follows: “I wasn’t aware of that until now. . . . that you had a personal relationship with [Father]. You served with him previously even though he is currently disbarred. I object because you had a personal relationship with [Father] . . .” In the event this Court’s impartiality was called into question, [Mother’s] mischaracterization on such a key point, could have raised a variety of unnecessary and inaccurate concerns and conclusions. So to[o] when it comes to the issue at hand. There is no more critical of a time, than in a Court proceeding, for [Mother] to show her ability to accurately receive, recall and relay information. Such abilities provide the Court with the confidence needed to find the testimony of the litigants credible. Unfortunately, and with respect to [Mother], this Court lacks such confidence.
The court found that “the child lived primarily with the father for the six (6) month period prior to the filing of the complaint, and therefore, the complaint was filed in substantial compliance with the requirements of the UCCJEA.” The court ordered that Maryland had jurisdiction over the custody dispute pursuant to FL §§ 9.5-201, -204.
This appeal followed.
DISCUSSION
Mother contends in her informal brief that the circuit court erred in denying her motion to dismiss. She argues that the court erred in: (1) failing to dismiss the case because she was not properly served with the complaint; (2) refusing to recuse; (3) determining that Maryland was the proper jurisdiction to hear the custody case; and (4) failing to rule on motions and scheduled hearings.
Father contends, preliminarily, that Mother’s appeal is interlocutory and must be dismissed. On the merits, he asserts that the court did not err in denying Mother’s motion to dismiss. He argues that the court had personal jurisdiction over Mother, and alternatively, that she waived personal jurisdiction and
service objections, “misrepresented facts on the civil appeal information report” relating to the finality of the order, and her allegations of judicial bias are unsupported.
We begin with Father’s argument that the appeal should be dismissed because the court’s order is not an appealable order. “[U]nless constitutionally authorized, appellate jurisdiction ‘is determined entirely by statute,’ and therefore, a right of appeal only exists to the extent it has been ‘legislatively granted.’” Mayor & City Council of Balt. v. ProVen Mgmt., Inc., 472 Md. 642, 665 (2021) (quoting Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997)). Pursuant to Md. Code Ann., Cts. & Jud. Proc. (“CJ”) § 12-301 (2020 Repl. Vol.), parties have a right of appeal to this Court “from a final judgment entered by a [circuit] court,” subject to exceptions. “The purpose of requiring parties to await final judgment before taking an appeal is to avoid ‘piecemeal appeals,’ which may result in disruption and inefficiency.” Huertas v. Ward, 248 Md. App. 187, 200 (2020).
To be considered a final judgment, an order from the court must satisfy the following conditions: “(1) ‘it must be intended by the court as an unqualified, final disposition of the matter in controversy;’ (2) ‘it must adjudicate or complete the adjudication of all claims against all parties;’ and (3) ‘the clerk must make a proper record of it’ on the docket.” Waterkeeper All., Inc. v. Md. Dep’t of Agric., 439 Md. 262, 278 (2014) (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). Accord Bartenfelder v. Bartenfelder, 248 Md. App. 213, 230 (2020), cert. denied, 472 Md. 5 (2021). Here, the court’s order denied Mother’s motion to dismiss the complaint based on a lack of jurisdiction and improper service, and it ruled that Maryland was the proper jurisdiction to address the child custody dispute between the parties.3 This order did not finally determine the merits of the child custody proceeding, and accordingly, the circuit court’s order was not a final judgment. See State v. Winegar, 893 N.W.2d 741, 745 (N.D. 2017) (order that North Dakota retained continuous and exclusive jurisdiction pursuant to UCCJEA was not a final judgment because “it merely allowed the litigation to continue,” and therefore, it was proper not to seek an appeal from that order).
There are, however, exceptions to the general rule requiring a final judgment prior to appeal. Exceptions that permit an immediate appeal from an interlocutory order are as follows: (1) an appeal from an interlocutory order specifically authorized by statute; (2) an appeal from an interlocutory order that falls under the collateral order doctrine; and (3) an appeal permitted under Maryland Rule 2-602. Adelakun v. Adelakun, 263 Md. App. 356, 370 (2024), aff’d, No. 35, Sept. Term, 2024, 2025 WL 1037399 (Md. Apr. 8, 2025); In re C.E., 456 Md. 209, 221 (2017). Accord Bartenfelder, 248 Md. App. at 229; Judge Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues 52 (4th ed. 2025). We address each of these methods, in turn.
I. CJ § 12-303
CJ § 12-303 provides that a party may appeal from certain interlocutory orders entered by the circuit court in a civil case.
An immediate appeal is permissible where any of the following interlocutory orders are entered by the circuit court:
(1) An order entered with regard to the possession of property with which the action is concerned or with reference to the receipt or charging of the income, interest, or dividends therefrom, or the refusal to modify, dissolve, or discharge such an order;
(2) An order granting or denying a motion to quash a writ of attachment; and
(3) An order:
(i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause;
(ii) Refusing to dissolve an injunction, but only if the appellant has first filed his answer in the cause;
(iii) Refusing to grant an injunction; and the right of appeal is not prejudiced by the filing of an answer to the bill of complaint or petition for an injunction on behalf of any opposing party, nor by the taking of depositions in reference to the allegations of the bill of complaint to be read on the hearing of the application for an injunction;
(iv) Appointing a receiver but only if the appellant has first filed his answer in the cause;
(v) For the sale, conveyance, or delivery of real or personal property or the payment of money, or the refusal to rescind or discharge such an order, unless the delivery or payment is directed to be made to a receiver appointed by the court;
(vi) Determining a question of right between the parties and directing an account to be stated on the principle of such determination;
(vii) Requiring bond from a person to whom the distribution or delivery of property is directed, or withholding distribution or delivery and ordering the retention or accumulation of property by the fiduciary or its transfer to a trustee or receiver, or deferring the passage of the court's decree in an action under Title 10, Chapter 600 of the Maryland Rules;
(viii)Deciding any question in an insolvency proceeding brought under Title 15, Subtitle 1 of the Commercial Law Article;
(ix) Granting a petition to stay arbitration pursuant to § 3-208 of this article;
(x) Depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order;
(xi) Denying immunity asserted under § 5-525 or § 5-526 of this article; and
(xii) Denying a motion to dismiss a claim filed under § 5-117 of this article if the motion is based on a defense that the applicable statute of limitations or statute of repose bars the claim and any legislative action reviving the claim is unconstitutional.
CJ § 12-303.
The court’s order here, denying Mother’s motion to dismiss for improper service and lack of jurisdiction pursuant to FL § 9.5-201, is not covered by any of these provisions. Mother’s
appeal, therefore, is not permissible as one authorized by CJ § 12-303.4
II.
Maryland Rule 2-602
Rule 2-602 permits the court, under certain circumstances, to certify an interlocutory order for appeal. Waterkeeper All., Inc., 439 Md. at 287. The Rule provides as follows:
(a) Generally. — Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:
(1) is not a final judgment;
(2) does not terminate the action as to any of the claims or any of the parties; and
(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.
(b) When allowed. — If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:
(1) as to one or more but fewer than all of the claims or parties; or
(2) pursuant to Rule 2-501(f)(3), for some but less than all of the amount requested in a claim seeking money relief only.
As we have previously explained:
Subsection (b), therefore, “authorizes a trial court to enter a final judgment ‘as to one or more but fewer than all of the claims or parties’ when the court ‘expressly determines in a written order that there is no just reason for delay.’” Grier v. Heidenberg, 255 Md. App. 506, 516, 282 A.3d 342 (quoting Md. Rule 2-602(b)), cert. denied, 482 Md. 149, 285 A.3d 852 (2022). The order entering a final judgment, however, must be one “which, absent the circumstance of multiple parties or multiple claims, would be final in the traditional sense.” Schuele v. Case Handyman & Remodeling Servs., LLC, 412 Md. 555, 568, 989 A.2d 210 (2010) (quoting Plan. Bd. of Howard Cnty. v. Mortimer, 310 Md. 639, 651, 530 A.2d 1237 (1987)). Accord Med. Mut. Liab. Ins. Soc. of Md. v. B. Dixon Evander & Assocs., 331 Md. 301, 308, 628 A.2d 170 (1993) (A circuit court’s finding of no just reason for delay “only makes a final order appealable. It cannot make a nonfinal order . . . into a final order.”) (quoting Mortimer, 310 Md. at 654, 530 A.2d 1237).
If the circuit court properly exercises its discretion under the Rule and directs the entry of final judgment in a case to which the rule applies, the order is immediately appealable. See In re Tr. Under Item Ten of Last Will & Testament of Lanier, 262 Md.App. 396, 319 A.3d 1142, 1152 (2024) (“[I]mmediate appeals permitted under Rule 2-602(b)” are one of “three exceptions to the final judgment requirement.”). Rule 2-602(b) certification, however, “should be used sparingly so that piecemeal appeals and duplication of efforts and costs in cases involving multiple claims or multiple parties may be avoided.” Murphy v. Steele Software Sys. Corp., 144 Md. App. 384, 393, 798 A.2d 1149 (2002) (quoting Md.-Nat’l Cap. Park & Plan. Comm’n v. Smith, 333
Md. 3, 7, 633 A.2d 855 (1993)). This process should be “reserved for ‘the infrequent harsh case.’” Id. (quoting Allstate Ins. Co. v. Angeletti, 71 Md. App. 210, 218, 524 A.2d 798 (1987)). Accord Heidenberg, 255 Md. App. at 516, 282 A.3d 342 (quoting Arthur, supra, at 70, § 35).
Adelakun, 263 Md. App. at 381-82.
Here, there was no request for the circuit court to exercise its discretion in this regard, and the court did not enter judgment pursuant to Rule 2-602. Because of that, and because it is clear that the case does not involve a final judgment, Mother’s appeal from the interlocutory order is not authorized by Rule 2-602.
III.
Collateral Order Doctrine
The collateral order doctrine permits immediate appellate review of some prejudgment orders that finally determine claims “separable from, and collateral to, rights asserted in the action [which are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” In re Franklin P., 366 Md. 306, 326 (2001) (quoting Harris v. David S. Harris, P.A., 310 Md. 310, 315-16 (1987)). The collateral order doctrine should be applied “only sparingly.” Id. at 327 (quoting Sigma Reprod. Health Ctr. v. State, 297 Md. 660, 670 (1983)).
To be appealable under the collateral order doctrine exception to the final judgment rule, the order must be one that: “(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.” [Stephens v. State, 420 Md. 495,] 502 [2011], 24 A.3d at 109 (cleaned up). To qualify for immediate appealability under the collateral order doctrine, an order must meet all four elements. See id. at 502-03, 24 A.3d at 109. We apply these elements “very strictly” in keeping with the narrow nature of the exception, which should apply “only in extraordinary circumstances.” Id. at 503, 24 A.3d at 109 (cleaned up).
In re M. P., 487 Md. 53, 68 (2024).
The circuit court’s order, denying Mother’s motion to dismiss for lack of jurisdiction pursuant to FL § 9.5-201 and for improper service, is not immediately appealable under the collateral order doctrine because it does not satisfy at least one of the elements of the test, i.e., the fourth element, which requires the issues to be effectively unreviewable on appeal from a final judgment. See In re Franklin, 366 Md. at 327 (for a prejudgment order to be appealable and within the collateral order doctrine exception, “each of the four elements must be met”). The requirement set forth by the fourth element of the collateral order doctrine “is met in ‘very few [and] extraordinary situations.’” Stephens v.
State, 420 Md. 495, 505 (2011) (quoting In re Foley, 373 Md. 627, 636 (2003)). A ruling is not effectively reviewable on appeal if our refusal “to hear an immediate appeal would effectively divest the appellant of a right not to have to go through proceedings in the lower court.” Judge Kevin F. Arthur, supra, at 56. Examples of issues that are effectively unreviewable if the appeal had to await final judgment include the denial of a motion to dismiss on double jeopardy grounds, In re M. P., 487 Md. at 68-69, and the circuit court’s refusal to accept a stipulation of dismissal by all parties. Milburn v. Milburn, 142 Md. App. 518, 530-31 (2002).
In Pittsburgh Corning Corp. v. James, 353 Md. 657, 66566 (1999), the Supreme Court of Maryland addressed an issue analogous to this case. There, the Court held that the denial of a motion to dismiss for forum non conveniens was not immediately appealable because the right not to stand trial in a particular court can “be vindicated after entry of final judgment.” Id. at 665. The Court based its reasoning, in part, on our decision in Lennox v. Mull, 89 Md. App. 555 (1991). Id. The Court summarized our holding in Lennox as follows:
The court acknowledged that the appellant might, indeed, have to try his case in an inconvenient forum and retry it later in another forum if the issue were not resolved immediately, but that that inconvenience had to be balanced against two other factors: “one, that if appellant were to prevail in [the current forum], the issue of transfer will become moot and will never have to be decided on appeal; and, two, the inconvenience to the parties, both trial courts, and this Court of interrupting all proceedings below for upwards of a year to consider what is clearly a discretionary and interlocutory decision.” [Lennox, 89 Md. App.] at 564, 598 A.2d at 851.
Id. at 665-66 (some alterations in original).
The Court stated that “the proffered right to avoid trial, either at all or in a particular forum, cannot be allowed to be the tail that wags the final judgment rule dog.” Id. at 666. The Court noted that, to rule otherwise would cause “a proliferation of appeals under the collateral order doctrine,” which would be “inconsistent with the long-established and sound public policy against piecemeal appeals.” Id. (quoting Bunting v. State, 312 Md. 472, 482 (1988)). Accord In re Franklin P., 366 Md. at 328 (circuit court’s order denying appellant’s motion to dismiss for lack of jurisdiction on the ground that the case should have been brought in juvenile court was not immediately appealable under the collateral order doctrine because it could be effectively reviewed following the entry of a final judgment). The collateral order doctrine does not permit Mother’s appeal of the circuit court’s interlocutory order.
Because the order appealed from is not a final judgment, and Mother has not shown that it falls within an exception to the final judgment rule, we will not consider the case on its merits. Instead, we shall dismiss the appeal.
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother and the court indicated that Father was a lawyer who had been disbarred at the time of the proceeding.
2 Md. Code Ann., Fam. Law (“FL”) § 9.5-201 (2019 Repl. Vol.), addresses when a court has jurisdiction to make an initial child custody determination.
3 The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in FL § 9.5-101 et seq., addresses which state has subject matter jurisdiction over a child custody case
that involves more than one state. See Pilkington v. Pilkington, 230 Md. App. 561, 578 (2016).
4 By contrast, in Georgia, a statute provides that “all ‘orders in child custody cases’ are directly appealable,” and therefore, the Court of Appeals of Georgia held that an appeal from the denial of a motion to dismiss based on jurisdiction under the UCCJEA was appealable. Cohen v. Cohen, 684 S.E.2d 94, 95 (Ga. Ct. App. 2009) (quoting Ga. Code Ann. § 5-6-34 (2008)).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Harford County Circuit Court’s interpretation of a marital settlement agreement involving pension benefits. The agreement’s relevant paragraph was ambiguous because the language is subject to more than one interpretation when read by a reasonably prudent person. The case was remanded for further proceedings for the parties to fully develop and present extrinsic evidence, if any, regarding the parties’ intentions about whether wife was to receive 50 percent of the marital property portion of the pension benefit as of June 16, 2016, or as of June 1, 2020.
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..
judgment also provided that the court would retain jurisdiction until the QDRO was received and approved by the plan administrator. In 2020, the parties executed an “Amended QDRO” that was approved by the administrator and entered by the court.2
The Amended QDRO directed the administrator to apply Dana’s fifty percent of the marital portion to Virgil’s vested accrued benefit as of June 1, 2020, when his benefit commenced. The administrator distributed the pension funds accordingly.
Virgil claimed that the Amended QDRO did not effectuate the terms of the MSA. He asserted that the MSA froze Dana’s entitlement to the benefits as of June 16, 2016. He moved to enforce the MSA, alleging that Dana had received a windfall of approximately $177,000 and had breached the agreement by not repaying him this amount. In addition, he requested attorneys’ fees under the MSA. Ultimately, the court denied Virgil’s motion, determining that he agreed to the language in the Amended QDRO, that the Amended QDRO reflected the terms of the MSA, and that Dana had not breached it.
In this appeal, Virgil presents three questions for our review, which we have consolidated into one: Did the circuit court err in denying Virgil’s motion to enforce the MSA?3 For the reasons that follow, we shall vacate the judgment of the circuit court and remand the case for further proceedings.
I.
BACKGROUND A
The dispute in this appeal concerns the interpretation of a marital settlement agreement involving pension benefits. In 1987, appellant Virgil Profili (“Virgil”) began his employment with PepsiCo, Inc. and became a participant in the PepsiCo Employees Retirement Plan A (“pension” or “Plan”).1 Months after starting employment, Virgil and appellee Dana Profili (“Dana”) married. They separated on June 16, 2015, after over twenty-five years of marriage.
In 2018, Dana filed a divorce action in the Circuit Court for Harford County. Gail Spielberger, Esq., represented Virgil. John Karas, Esq., represented Dana. On December 31, 2018, the parties entered into a marital settlement agreement (“MSA”). As detailed later, Virgil agreed to assign Dana fifty percent of the marital portion of his pension benefits with PepsiCo “as of June 16, 2016.” Dana agreed to prepare the appropriate Qualified Domestic Relations Order (“QDRO”) to effectuate the terms of the MSA.
In 2019, the circuit court entered a judgment of absolute divorce, which incorporated but did not merge the MSA. The
Marital Settlement Agreement
Pertinent to this appeal is Paragraph 13 of the MSA, which sets forth Dana’s rights in Virgil’s pension:
Husband acquired during the marriage a pension plan through his employer, PepsiCo, Inc. (the “Plan”). The amount to be assigned to Wife, as alternate payee, from the Plan shall be fifty percent (50%) of the marital property portion of Husband’s monthly pension benefits under the Plan as of June 16, 2016, one year after the date of the parties’ separation[.] The marital property portion of the monthly pension benefit shall be a fraction of the total monthly accrued benefit, and shall be defined as follows: the numerator shall be the total number of months of Husband’s credited service under the Plan between the date of participation during the marriage and June 16, 201[6]; and the denominator of which shall be the
total number of months of Husband’s credited service under the Plan up to June 16, 201[64].
(emphasis added). The parties agree that the “marital property portion,” as determined by the numerator and denominator described, amounts to 97.7%.5
Paragraph 13 also provides that the amount assigned to Dana shall be paid, as pertinent here, when Virgil receives any distribution from the Plan as a result of a termination of his participation in the Plan. It also required Dana to pay for the costs of preparing a QDRO, obtain approval from the plan administrator, and file the QDRO with the court.
Under Paragraph 34, the parties agreed to “further assurances” in which they mutually agree, within ten (10) calendar days of any request by the other party, to join in or execute any instruments and to do any other act or thing that may be necessary or proper to effectuate or carry out any part of this Agreement, or to release any dower or other rights in any property which either of said parties may now own or hereafter acquire, including the execution and delivery of such deeds, waivers, consents, and assurances as may be necessary to carry out the purpose of this Agreement.
Paragraph 37 provides for counsel fees in the event of a breach of the MSA:
[I]f either party breaches any provision of this Agreement, or is in default thereof said party shall be responsible for any reasonable legal fees incurred by the other party in seeking to enforce this Agreement which are awarded by a court of competent jurisdiction. If either party shall breach any covenant or condition of this Agreement and the other party commences an enforcement action in [c]ourt, the party who is found by the court to have committed the breach shall pay unto the party commencing said action all reasonable counsel fees, court costs, deposition costs, and other related expenses, in connection therewith.
B.
Amended QDRO
Dana retained separate counsel to draft the QDRO. After negotiations, in which Virgil and Ms. Spielberger participated, the parties executed the Amended QDRO, which was approved by the plan administrator and accepted by the court.
In pertinent part, Paragraph 8 of the Amended QDRO provides the “amount of benefits to be paid” to Dana:
A........This Order assigns to the Alternate Payee [Dana] a separate interest in the Participant’s [Virgil’s] vested accrued benefit under the Plan, which shall be the actuarial equivalent of a portion of the Participant’s vested accrued benefit to be calculated by the following formula: Fifty Percent (50%) of a fraction, the numerator of which is the number of years of Participant’s credited service in the Plan accrued between April 3, 1988, the date of the parties’ marriage and June 16, 2016, and the denominator of which is the total number of years of
the Participant’s credited service in the Plan accrued as of June 16, 2016. This fraction will be applied to the Participant’s vested accrued benefit as of the earlier of the Alternate Payee’s benefit commencement date o[r6] the Participant’s benefit commencement date.
(emphasis added).
C. Distribution of Pension Funds
By the time the Amended QDRO was entered by the court, PepsiCo had terminated Virgil’s employment. Virgil elected to receive his pension benefits commencing June 1, 2020. The parties opted to receive a lump sum payment instead of monthly payments of their share of the pension funds. Based on this election, the plan administrator distributed a lump sum payment of $771,906.66 to Virgil and $715,134.75 to Dana. However, Virgil believed the amount he received was inconsistent with Paragraph 13 of the MSA. As a result, he submitted a formal request to the administrator to challenge the calculation.
On September 23, 2020, the plan administrator responded with an explanation of how Virgil’s share of the lump sum was calculated. His monthly accrued benefit was calculated according to the Plan’s standard formula, which equaled $8,677.15. Dana’s portion was calculated by taking fifty percent of the monthly accrued benefit and applying the marital fraction, resulting in $4,240.94 ($8,677.15 × 0.5 × 0.977497678).
Virgil’s portion was offset by Dana’s portion, equaling $4,436.21 ($8,677.15 - $4,240.94). This left Virgil with a net portion of $3,519.25, after multiplying his post-offset figure by a factor that accounted for his retirement at age 56 instead of age 62 or later. This figure represents the value of Virgil’s pension had he opted for a monthly annuity for life. As noted, he chose to take the pension as a lump sum, which required multiplying the monthly annuity by a factor that accounted for Virgil’s life expectancy and then-current interest rates. The final result was $771,906.66, the lump sum Virgil received from PepsiCo.
The letter from the plan administrator noted that “the estimated Accrued Benefit (AB) as of June 20, 2016 is $6,599.33. This is the estimated Single Life Annuity at your Normal Retirement Date (age 65) under the Plan.” (emphasis added).
Virgil realized, based on the letter and other communications with the plan administrator, that the administrator applied fifty percent of the marital fraction to the pension’s value as of June 1, 2020 ($8,677.15)—the date when the benefit commenced according to Paragraph 8.A of the Amended QDRO. However, he believed that the correct date for this calculation should have been applied to the accrued benefit as of “June 16, 2016” ($6,599.33), the date used in Paragraph 13 of the MSA.
D.
Motion to Enforce the MSA
Virgil attempted to resolve the alleged discrepancy with Dana but was unsuccessful. He engaged an actuarial expert, Marc Pushkin, to determine the amount of the discrepancy.
According to Mr. Pushkin, the discrepancy totaled $176,703.39.7 In 2021, Virgil retained new counsel, Michael Hamburg, Esq., and Harry Baumohl, Esq., to address what he believed was an overpayment to Dana.
On December 21, 2021, Virgil requested that Dana return the overpayment within ten days, citing his entitlement to counsel fees for breaches of the MSA. Dana disagreed with his interpretation and noted that the Amended QDRO was properly prepared and signed by him.
On January 10, 2022, Virgil filed a Motion to Enforce Agreement, claiming that Dana received more than she was entitled to. He argued that Dana was required to correct this under the further assurances provision in the MSA but failed to do so, which constituted a breach. Virgil requested an evidentiary hearing on the motion, an award in the amount of the overpayment, and attorneys’ fees for enforcing the MSA.
On May 11, 2022, the court held a hearing on the motion. Regarding Paragraph 13 of the MSA, Virgil testified, “what we agreed to, was that the pension would be decided as of June 2016. That would be the point in time where [Dana] would get 50 percent of the value of the pension as of that date.” Ms. Spielberger testified that Virgil had insisted on using June 16, 2016, representing one year after the date of separation. In contrast, Dana testified that when she signed the MSA, she believed the agreement was that she would receive half of Virgil’s pension as of the date of his retirement. She indicated that she never “considered agreeing to freeze [her] interest in his pension to what it was worth in June of 2016 and still have to wait until he retired to get [her] share.”
Virgil acknowledged that he negotiated the terms of the Amended QDRO but overlooked the language in Paragraph 8.A, proceeding based on his attorney’s advice without understanding the consequences.
John Condliffe, Esq., was admitted as an expert in domestic relations, marital settlement agreements, pension plans, and associated qualified domestic relations orders. In relevant part, he explained that the Amended QDRO was “an implementing order, not the controlling document in this case.” He confirmed that while the marital fraction was 97.7%, the issue was what it applied to. With the pension funds already disbursed, he stated that potential remedies included ordering Dana to pay the excess or reducing it to judgment against her.
Finally, Mr. Pushkin testified about his calculation of the discrepancy, totaling $176,703.39 (see supra, n.7), and Mr. Baumohl testified regarding the fees incurred by Virgil in enforcing the terms of the MSA.
E. Court’s Decision
On April 29, 2024, the court issued a Supplemental Memorandum Opinion and Order.8 The court found that Dana did not breach the terms of the MSA and, as a result, Virgil was not entitled to relief under the further assurances provision in the MSA. The court stated that “[t]he language of Paragraph 13 of the MSA does not establish June 16, 2016 as the date from which the PEPSICO pension is to be valued and divided. The
[c]ourt finds that the [Amended] QDRO then correctly reflects Paragraph 13 of the MSA.”
In addition, the court pointed out that Virgil had consented to the language in the Amended QDRO, highlighting his awareness of and agreement to its provisions. Relying on Pulliam v. Pulliam, 222 Md. App. 578 (2015), the court explained that the MSA and Amended QDRO “are both enforceable contracts that should be interpreted using contract law.” By applying the “concepts” of contract interpretation to the provisions in the Amended QDRO, the court concluded that the Amended QDRO clearly stated that Dana was entitled to receive fifty percent of the marital share of Virgil’s entire pension benefit. Consequently, the court found that “it was reasonable for [Dana] to rely on the language of the [Amended] QDRO and collect her share of the pension.” The court denied Virgil’s motion to enforce, and Virgil noted this timely appeal.
II.
PARTIES’ CONTENTIONS
On appeal, Virgil presents three main arguments. First, he argues that the court erred in finding that Paragraph 8.A of the Amended QDRO effectuates the language in Paragraph 13 of the MSA. Second, he argues that the court erred in finding that Dana did not breach the MSA. He contends that the language in the Amended QDRO did not conform to the MSA and that Dana was required to take corrective action under the further assurances provision in the MSA. He also argues that the court misapplied Pulliam by treating the Amended QDRO as an enforceable contract. He explains that the MSA was the controlling agreement, while the Amended QDRO served merely as the instrument to implement the parties’ intentions regarding the distribution of the pension funds according to the MSA. Finally, Virgil argues that the court erred in denying his claim for attorneys’ fees, which he contends should have been granted due to Dana’s breach of the MSA.
Dana responds that the court properly found the language in the Amended QDRO to effectuate the terms of the MSA. She maintains that the court correctly determined she did not breach the MSA, and thus, Virgil was not entitled to relief under the further assurances provision. Dana states that her only obligation under Paragraph 13 of the MSA was to pay for the preparation of a QDRO, obtain its approval, and file it with the court, all of which she fulfilled. Furthermore, she adds that even if Virgil’s interpretation of the MSA were correct, the Amended QDRO effectively modified it. Finally, Dana asserts that since she did not breach the MSA, the court did not err in denying Virgil attorneys’ fees under the MSA.
III.
STANDARD OF REVIEW
“[T]he initial step in the objective approach to contract interpretation is to determine whether the contract’s meaning is plain and unambiguous.” Impac Mortg. Holdings, Inc. v. Timm, 474 Md. 495, 507 (2021). We interpret settlement agreements in accordance with the principles of contract law. Fultz v. Shaffer, 111 Md. App. 278, 298 (1996). “The interpretation of a contract .
. . is a question of law, subject to de novo review by an appellate court.” 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC, 246 Md. App. 1, 19 (2020) (citation omitted). As we have explained:
[W]e apply the objective theory of contract interpretation, wherein “the clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or was intended to mean.” In applying the objective theory:
A court . . . must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. A “contract is ambiguous if it is subject to more than one interpretation when read by a reasonably prudent person.” But it is not ambiguous “merely because the parties thereto cannot agree as to its proper interpretation.”
Pulliam, 222 Md. App. at 587–88 (citations omitted).
“Contract provisions must be viewed in the context of the entire contract rather than construing each term separately.” Azat v. Farruggio, 162 Md. App. 539, 550 (2005) (citation omitted).
Whether a party breached a contract, however, is a factual question that is reviewed under the clearly erroneous standard of review. See Bontempo v. Lare, 217 Md. App. 81, 136 (2014) (citation omitted).
IV.
OVERVIEW OF PENSIONS
Before discussing our analysis, it is helpful to provide a brief overview of pensions. The two most common types of retirement benefits are “defined contribution plans,” such as a 401(k) and “defined benefit plans,” such as a pension. See Linda J. Ravdin, Property Disposition in Divorce and Annulment, in Maryland Divorce and Separation Law, ch. 4, § II.F.3. (MICPEL 11th ed. 2023), Westlaw (footnotes omitted); Dziamko v. Chuhaj, 193 Md. App. 98, 114 n.16 (2010) (distinguishing between a defined contribution plan, such as a 401(k), and a defined benefit plan, such as a government pension that pays out a monthly benefit upon retirement).
Defined contribution plans “consist of money deposited by an employee along with, in some instances, an employer-matched monetary contribution, and the growth on these contributions through appreciation of share value and reinvested interest and dividends.” Ravdin, supra, ch. 4, § II.F.3. Defined contribution plans “maintain a separate account for each participant.” Id. ch. 4, § III.F.2.b. “The value of the participant’s interest in the plan is the account balance. The value is derived from contributions plus earnings, appreciation and forfeitures of other participants.” Id.
In contrast, under a defined benefit plan, “the future benefit to be received is specified in advance and ‘defined’ by
a benefit formula or benefit schedule.” Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Benefits in Divorce and Post-Judgment Partition Actions, 37 Baylor L. Rev. 107, 112 (1985). The projected retirement benefit typically commences at the participant’s normal retirement age. Gary A. Shulman, Qualified Domestic Relations Order Handbook 23-9 (4th ed. 2023). “This benefit is calculated in accordance with a plan formula that often incorporates the participant’s years of service and final average pay.” Id. “The employer then makes regular, annual contributions to the plan during their employees’ working careers in accordance with actuarial projections of the sums needed to fund such future, promised pension benefits.” Id. Here, the Plan was a non-contributory, defined benefit plan.
This Court approved the Bangs formula to calculate the marital portion of a pension that was earned both during and outside the marriage. Bangs v. Bangs, 59 Md. App. 350, 356, 367–68 (1984). Applying this formula, the marital share of a pension is a fraction in which the numerator is the number of months of credited service during the marriage and the denominator is “the total number of months during which the pension accrues, from employment to retirement.” Dziamko, 193 Md. App. at 116. “The non-member spouse’s share of the mar[ital] portion of the pension is determined by applying an agreed-upon fixed percentage to it. That fixed percentage then is applied to any future payments received under the pension plan.”9 Id. at 112.
In the context of judicial determinations, the Bangs formula has been deemed an equitable approach by our courts because it entitles the non-participant spouse (alternate payee) to postdivorce growth on their proportionate share of the pension. See, e.g., Kelly v. Kelly, 118 Md. App. 463, 471–72 (1997) (disapproving husband’s proposed modification to the Bangs formula that effectively froze wife’s share of the pension as of the date of divorce in the context of a judicial determination). In other jurisdictions, the Bangs formula is commonly referred to as the “coverture” approach,10 where the alternate payee’s share of the benefits is based on the participant’s accrued pension at retirement, not the date of divorce. See Shulman, supra, at 5-22.
Gary A. Shulman, a legal commentator on QDROs, articulated the equitable considerations behind the approach, stating that “[t]he use of the coverture approach is the only way to provide the alternate payee with inflationary protection on her ownership share of the pension.” Id. at 2-17. The numerator of the fraction, representing the number of years of service earned by the participant while married, remains constant. Id. The denominator represents all the participant’s years of service at retirement. Id. “[A]s the participant continues to earn future years of credited service after the divorce, the denominator continues to grow by one each year.” Id. at 2-17 to 18. Although the percentage share of the alternate payee’s assignment decreases as the numerator stays the same, it is “applied to a larger pension as the participant’s accrued benefit continues to grow.” Id. at 2-18. “In essence, with each passing year after the divorce, the alternate payee is earning a smaller and smaller percentage of a larger pie.” Id.
Certainly, “[i]n lieu of these judicial determinations, a divorcing couple may enter into an agreement for the allocation of their property, including retirement plan benefits,” as the parties did in this case. Robinette v. Hunsecker, 439 Md. 243, 246
(2014) (citing FL § 8-101). One of the advantages of a settlement agreement is that parties are free to negotiate conditions that exceed what they would otherwise obtain after a trial or other contested proceeding. The parties are also free to agree to terms that might be to their detriment. See Shallow Run Ltd. P’ship v. State Highway Admin., 113 Md. App. 156, 172 (1996) (explaining that “[p]eople are permitted to enter into contracts to their disadvantage”); Nesbit v. Gov’t Emps. Ins. Co., 382 Md. 65, 76 (2004) (“As a general rule, parties are free to contract as they wish.” (citation and internal quotations omitted)). This could include resolving the division of a participant spouse’s pension that does not conform to the Bangs formula.
Shulman identifies one such approach that divides a pension using a “frozen” coverture formula. See Shulman, supra, at 23-11. Under this approach, “the accrued benefit and denominator of the coverture fraction are both ‘frozen’ and determined as of [the] ‘date of divorce,’ and not the participant’s date of retirement.” Id. at 23-11 to 12 (emphasis omitted). The “alternate payee’s share is . . . reduced by the application of an artificial coverture fraction look-alike determined as of the date of divorce (where the numerator equals the years of service earned during the marriage and the denominator equals the participant’s service as of the date of divorce).” Id. “Basing the alternate payee’s share of the pension on the employee’s frozen accrued benefit means that she loses the benefits of any inflationary protection, even though she, too, may have to wait years to commence benefits.” Id.
V. DISCUSSION
We conclude that Paragraph 13 of the MSA is ambiguous because the language is subject to more than one interpretation when read by a reasonably prudent person. The phrase “as of June 16, 2016” in conjunction with limiting the denominator to Virgil’s service time “up to June 16, 2016” could reasonably be construed as a “freeze” on Dana’s share, providing her with fifty percent of the marital property portion of Virgil’s accrued benefit as of that date.
However, the provision indicating that the “marital property portion . . . shall be a fraction of the total monthly accrued benefit” suggests otherwise. (emphasis added). The emphasized language, not used elsewhere in the paragraph, is not limited by the date of June 16, 2016, as “monthly pension benefits” is in the previous sentence. The Plan describes “accrued benefit” as a calculation based on the participant’s credited service, which “generally runs from [the participant’s] start date to [his] separation from service date”; highest average monthly earnings; age “when benefit payments begin”; covered compensation, which “varies depending upon [the participant’s] age and the year in which [he] terminate[s] employment”; vesting service; and age “when [he] terminate[s] employment.”11 In other words, “total monthly accrued benefit” suggests a period of accrual extending beyond June 16, 2016 and could reasonably be interpreted to mean that Dana’s marital property portion should be applied to fifty percent of the marital property portion of Virgil’s accrued benefit as of June 2020, when his benefits commenced.
The MSA lacks a provision as to what to do with the growth
in the value of the pension between June 2016 and June 2020, when the benefits commenced. Dana argues that, under Salkini v. Salkini, 243 Md. App. 277 (2019), where the agreement is silent on how investment gains are distributed, the nonemployee spouse is entitled to her share of investment earnings accumulated between the date of divorce and the date of distribution. Dana’s reliance on Salkini, however, is unavailing under the circumstances here.
Salkini arose out of a contested divorce proceeding in which the court found that the husband’s 401(k) retirement account was marital property. Id. at 279. Ultimately, the court ordered that the account “shall be divided equally between the parties as of the date of divorce.” Id. at 283. The wife prepared a QDRO and included language that her interest “shall be adjusted for investment earnings or losses on her share from the valuation date to the date of segregation of [her] interest.” Id. at 281. The husband refused to sign the QDRO, arguing that the wife’s share did not include any investment earnings that had accumulated in the account during the years that had elapsed since the date of divorce. Id. at 282. The court, however, entered the QDRO with the language that the wife proposed, and the husband appealed. Id. at 282–83.
This Court construed the plain language of the court’s judgment of divorce to mean that the corpus of the husband’s 401(k) retirement account as of the date of the judgment of divorce was to be divided. Id. at 284. We disagreed with the husband’s interpretation of the judgment, explaining that “[i]t [did] not follow from that language that any earnings that accrued in the account attributable to a delay in making the transfer of Wife’s share would become Husband’s sole property.” Id. We reasoned that “[w]hen an alternate payee’s share is expressed as a fraction or a percentage, the earnings in the account between the date of divorce and the date of segregation of the alternate payee’s interest into a separate account would be derived from both parties’ interests, not the original beneficiary’s interest alone.” Id. We further explained that “as a matter of equity, it was clearly the intent of the circuit court to divide this marital property equally between the spouses.” Id.; accord Rivera v. Zysk, 136 Md. App. 607, 620 (2001) (holding that where the separation agreement provided wife half of husband’s 401(k) account but was silent regarding allocation of post-divorce gains or losses, it was “eminently fair” to award wife 50% of the increased value of husband’s 401(k)).
Notably, we recognized in Salkini that a different conclusion may result depending on the language in a marital settlement agreement. Salkini, 243 Md. App. at 284; see, e.g., Allred v. Allred, 243 Md. App. 286, 291 (2019) (where the MSA expressly addressed investment experience between date of execution and date of divorce). Unlike the language found in the consent judgment in Salkini or the settlement agreement in Rivera, Paragraph 13 did not merely express Dana’s share in a percentage and remain silent about the growth of the pension after June 2016. Nor is it clear to what the parties intended to apply fifty percent of the marital property portion. As previously explained, the language of the MSA contains conflicting language; some language indicates that Dana’s entitlement to the pension should be frozen as of June 2016, while other language suggests otherwise.
If contract language is ambiguous, “the meaning of the contract is a question to be determined by the trier of fact.” Stevenson v. Branch Banking & Tr. Corp., 159 Md. App. 620, 651 (2004) (citation omitted). In that case, the court considers extrinsic evidence “clarifying the parties’ intentions at the time the contract is executed.” 100 Inv. Ltd. P’ship v. Columbia Town Ctr. Title Co., 430 Md. 197, 234 (2013); Impac, 474 Md. at 507 (explaining that the court “is to consider admissible evidence that illuminates the intentions of the parties at the time the contract was formed”). “Even then, however, the parties ‘will not be allowed to place their own interpretation on what it means or was intended to mean[.]’” Stevenson, 159 Md. at 651 (alteration in original) (quoting Fultz, 111 Md. App. at 299); Impac, 474 Md. at 507–08 (“When addressing an ambiguous provision in a contract, the court will search to find mutuality and not a self-serving, unilateral construction of the contract.” (citation and internal quotations omitted)). “Instead, the trier of fact must determine ‘what a reasonable person in the position of the parties would have thought it meant.’” Stevenson, 159 Md. at 651 (quoting Fultz, 111 Md. App. at 299).
The Supreme Court of Maryland outlined the extrinsic evidence that the trier of fact could consider:
To be admissible, extrinsic evidence of intent as to the meaning of a contract term must demonstrate an intent made manifest, not a secret intent at the time of contract formation. The parties’ construction of the contract before the controversy arises can be an important aid, as can be the usage of the term in the parties’ trade. And, communications between the parties about a contract subsequent to the execution of that contract may be admissible as evidence of an interpretation by both parties. However, retrospective, subjective, and unexpressed views about the contract are not proper extrinsic evidence: It is the intention of the parties as expressed in their words and the paper which they sign, not their own interpretation as to what their statements and acts were supposed to mean, which is determinative.
Impac, 474 Md. at 508 (citations and internal quotations omitted); see also Canaras v. Lift Truck Servs., Inc., 272 Md. 337, 352 (1974) (explaining that such extrinsic factors include negotiations of the parties, the circumstances surrounding execution of the contract, and conduct of the parties); Anne Arundel Cnty. v. Crofton Corp., 286 Md. 666, 673 (1980) (when contract is ambiguous, the trier of fact determines the intent and purpose of the parties by considering the circumstances and conditions affecting the parties at time of execution and their subsequent conduct and construction); Nat’l Union Mortg. Corp. v. Potomac Consol. Debenture Corp., 178 Md. 658, 674 (1940) (construction placed on contract by parties after execution and before controversy has arisen is extremely significant in determining intention).
Here, extrinsic evidence of the parties’ intentions at the time the MSA was executed was not fully explored. This likely occurred because the parties asserted that the MSA was unambiguous. To resolve the current appeal based on the existing record would require us to assume that no such evidence is available. We reject this assumption because if such evidence does exist, our decision may not align with the
parties’ intentions.
For the reasons stated, we will vacate the judgment of the circuit court and remand the case for further proceedings for the parties to fully develop and present extrinsic evidence, if any, regarding the parties’ intentions about whether Dana was to receive fifty percent of the marital property portion of the pension benefit as of June 16, 2016, or as of June 1, 2020. See, e.g., Heyda v. Heyda, 94 Md. App. 91, 106 (1992) (remanding to the circuit court “for the limited purpose of permitting the parties to produce evidence of their intent in granting ‘survivorship’ benefits in [appellant’s] pension to [appellee],” which was contained in a joint stipulation previously placed on the record); Owings v. Foote, 150 Md. App. 1, 17 (2002) (upon concluding that the text of agreement was ambiguous, this Court remanded case for further proceedings to elicit the intent of the parties regarding whether agreement governed payment of counsel fees for service rendered after a certain date).
Upon remand, if no extrinsic evidence is adduced by the parties or if such evidence is not persuasive to the circuit court on the above issue, “construction of the contract is a question of law for the court.”12 Impac, 474 Md. at 508.
Based on this disposition, we need not address the remaining issues and arguments. However, we are compelled to comment on the court’s treatment of the Amended QDRO as an enforceable contract. Where, as here, the MSA was incorporated, but not merged into a judgment, “the agreement survives as a separate and independent contractual arrangement between the parties.” Janusz v. Gilliam, 404 Md. 524, 539 n.10 (2008) (quoting Johnston v. Johnston, 297 Md. 48, 56 (1983)). “As such, after the entry of the final judgment, the [MSA] remained as an independent contract that the parties were free to modify, pursuant to the terms of their contractual arrangement.” Id. Consistent with that, Paragraph 41 of the MSA provides that “[a] ll provisions of this Agreement shall be forever binding between the parties, and this Agreement can only be modified . . . by formal written instrument.”
“A QDRO is required to transfer pension benefits from one beneficiary to another, either pursuant to the Marital Property Disposition Act, or through an attachment in aid of a support obligation.” Janusz, 404 Md. at 538. A QDRO “can be either collateral to a judgment as an avenue for enforcement or it can be an integral part of the judgment itself.” Potts v. Potts, 142 Md. App. 448, 459 (2002). The parties agree that the Amended QDRO was an enforcement mechanism to effectuate Paragraph 13 of the MSA. Indeed, Paragraph 13 expressly states that the parties must execute documents “as may be necessary to effectuate the purposes of this Paragraph, including, but not limited to, having the terms of this Paragraph incorporated in a QDRO.”
The court, however, concluded that the Amended QDRO was an enforceable contract based on its reliance on Pulliam. As Virgil asserts and Dana does not contest, the court’s reliance on Pulliam for that proposition was misplaced. We agree and explain.
Pulliam centered on the interpretation of a consent judgment that outlined the terms of the parties’ settlement agreement in a divorce case. Id. at 586. This consent judgment addressed the division of the husband’s pension benefits, and the court had to determine whether his Deferred Retirement Option Program (DROP) benefit was subject to division according to the consent
judgment. Id. The court concluded that it was, and it entered an eligible domestic relationship order (“EDRO,” the equivalent of a QDRO for State of Maryland employees) that distributed the wife’s share pursuant to the parties’ agreement. Id. at 583–84. This Court affirmed the court’s decision. Id. at 600. We explained that consent judgments entered by the parties and endorsed by the court have attributes of both contracts and judicial decrees. Id. at 587. We also noted that when interpreting the terms of a consent judgment, we apply standard principles of contract interpretation, as outlined in the Standard of Review above. See id. at 587–88.
Here, the court accurately extracted the principles of contract interpretation from Pulliam. However, it appeared to treat the Amended QDRO as a consent judgment when it concluded that the Amended QDRO constituted an enforceable contract. This connection, however, was flawed since we did not describe the Pulliam EDRO as a consent judgment or a contract; nor did we apply the principles of contract interpretation to the language in the EDRO, as the court did with the Amended QDRO. Certainly, under some circumstances, a QDRO may modify a prior agreement between parties to a divorce. Fischbach v. Fischbach, 187 Md. App. 61, 95 (2009). In that situation, the QDRO constitutes an integral part of the judgment itself, and not merely an avenue for enforcement. See Janusz, 404 Md. at 539; cf. Fischbach, 187 Md. App. at 100– 01 (concluding under the circumstances that the QDRO did not modify the parties’ separation agreement). When it comes to modifying contracts, the Supreme Court of Maryland explained: The parties to a contract may agree to vary its terms
and enter into a new contract embodying the changes agreed upon and a subsequent modification of a written contract may be established by a preponderance of the evidence. Assent to an offer to vary, modify or change a contract may be implied and found from circumstances and the conduct of the parties showing acquiescence or agreement.
Cole v. Wilbanks, 226 Md. 34, 38 (1961) (per curiam) (citations omitted). “[W]hether subsequent conduct of the parties amounts to a modification or waiver of their contract is generally a question of fact to be decided by the trier of fact.” Hovnanian Land Inv. Grp., LLC. v. Annapolis Towne Ctr. at Parole, LLC, 421 Md. 94, 122 (2011) (citation omitted). To determine whether a modification has occurred, a court looks to the totality of a party’s actions. Id. “Even if the relevant statements and communications of the parties are uncontested, the court must determine whether those statements (and actions) amounted to an understanding between the parties” to modify the terms of the agreement. Id. at 123. “[M]utual knowledge and acceptance, whether implicit or explicit,” are required to modify a contract. Id. at 120.
Dana suggests that even if the parties intended to freeze her entitlement to Virgil’s pension benefits as of June 2016 in the MSA, the Amended QDRO effectively modified the MSA to the contrary. However, we cannot resolve this issue given our decision to vacate and remand the case. If the issue of modification arises on remand, it will be up to the court to make this determination.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
FOOTNOTES
1 For clarity, we shall refer to the parties by their first names. We mean no disrespect in doing so.
2 The QDRO was titled “Amended QDRO” because prior versions that had been filed with the court contained errors related to the name of the plan and had to be amended.
3 The questions as presented in Virgil’s brief are:
1. Did the trial court err in its finding that “the language of the QDRO effectuates the terms of the MSA?”
2. Did the trial court err in its finding that [Dana] “has not breached the terms of the marital settlement agreement” and that Appellant “is not entitled to relief pursuant to the Further Assurances Clause”?
3. Did the trial court err when it failed to enforce the contractual provision in the parties’ separation and marital settlement agreement providing for the payment of counsel fees in the event of a breach or default of that agreement?
4 The parties agree that the provision contains a typographical error that should reflect the year “2016.”
5 Using years instead of months, the numerator and denominator were 28.2055 and 28.8548 years, respectively. The resulting calculation was 28.2055/28.8548 = 0.977497678 (or 97.7%).
6 The parties agree that this provision contains a typographical error that should read “or.”
7 Mr. Pushkin reviewed the September 23, 2020 document issued by PepsiCo. As stated, this document showed that Virgil’s accrued benefit as of June 2020 was $8,677.15 per month and Dana’s share was $4,240.94. He calculated Dana’s share by applying the same multipliers to the “estimated” accrued benefit as of June 2016 ($6,599.33 per month), which equaled $3,225.41 per month. He then calculated the difference between Dana’s share based on the Amended QDRO ($4,240.94) and her share based on the frozen approach purportedly set forth in the MSA ($3,225.41), which was $1,015.33 per month. Using the
same early-retirement and lump-sum factors used to calculate Virgil’s lump-sum payment, he calculated the overpayment of $176,703.39. Dana did not challenge these calculations.
8 Initially, the court issued a Memorandum Opinion and Order, ruling in Virgil’s favor. Dana then filed for an in banc review. The panel reversed the court’s decision in part and vacated in part, which resulted in a remand for the court to address various issues. Due to the remand, which led to the filing of the Supplemental Memorandum Opinion and Order, we do not need to elaborate on the court’s initial decision.
9 This formula has been “codified as the default method in Maryland” under Family Law (“FL”) § 8-204(b).
10 The word “coverture” means “[t]he condition of being a married woman.” Coverture, Black’s Law Dictionary (12th ed. 2024). Some commentators have avoided use of the term because it “raises the specter of marriage under the common law of England in which the wife was merged into the husband and lost her legal persona.” Elizabeth Barker Brandt, Valuation, Allocation, and Distribution of Retirement Plans at Divorce: Where are We?, 35 Fam. L.Q. 469, 472 n.17 (2001).
11 “Accrued benefit” is “based on a plan formula and represents the monthly lifetime pension that the participant could receive commencing on an unreduced basis at his normal retirement age, which is usually 65.” Shulman, supra, at 4-4.
12 Among the canons of construction “is that ambiguous language in a contract that is not clarified by extrinsic evidence or interpretive aids is construed against a party to the contract when that party drafted the language in question.” Impac, 474 Md. at 509. Dana contends that this rule should apply, and Paragraph 13 should be construed against Virgil. We observe, without more, that Paragraph 42 of the MSA provides that “This Agreement has been drafted and prepared by both parties and should not, in the event of a dispute, be interpreted against one party or the other.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s award of primary physical custody to father, with specified visitation with mother, and joint legal custody of child to the parties with father to have tie-breaking authority. Although the Appellate Court refused to adopt a presumption that a unilateral, long-distance relocation prior to the entry of a final divorce decree is contrary to the best interests of the child as a matter of law, as father urged, it held that the circuit court correctly applied Maryland law in holding that a relocation may be sufficient to justify a change in custody, depending on the circumstances of each case.
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..
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, the parties were married in Los Angeles, California. Four years later, in 2020, they moved to Maryland, and in December 2021, a son was born to them. At the time of child’s birth, the parties lived in Silver Spring. The marriage quickly soured, and on July 3, 2023, when child was about eighteen months old, the parties separated when Mother unilaterally moved to Texas with child where she lives with her mother and near her brother’s family.
On August 3, 2023, Mother filed a complaint for absolute divorce in the Circuit Court for Montgomery County. Less than three weeks later, Father filed an ex parte emergency motion in the circuit court for temporary custody, alleging that before Mother and child left for Texas on August 3, the parties agreed that Mother was leaving only for a month, not permanently moving to Texas. Mother opposed the emergency motion, countering that she had told Father when she left that she would likely seek a divorce and not return to Maryland. Following a hearing, the court granted Mother temporary physical custody of child, and granted Father visitation with child in Texas, no less than two weekends per month. The court ordered the parties to contribute 50/50 to Father’s travel expenses during his parenting time in Texas, and for Father to have daily video access to child. Father subsequently counterclaimed to Mother’s complaint for absolute divorce, seeking primary physical and sole legal custody of child.
Betelihem Mulugeta (“Mother” and appellant) filed a complaint for an absolute divorce in the Circuit Court for Montgomery County, seeking, among other things, custody of the minor child (“child”) she shares with Abel Wondowsen (“Father” and appellee). Following a two-day, contested custody trial, the court granted Father primary physical custody of child with specified visitation with Mother, and joint legal custody of child to the parties with Father to have tie-breaking authority. Mother filed a motion to alter or amend the custody decision, which the court denied.1 Mother appeals, presenting the following questions for our review, which we have condensed and rephrased for clarity2:
1. Whether the circuit court erred in its custody decision by incorrectly applying Maryland law when a parent unilaterally relocates with a child?
2. Whether the circuit court erred in its factual determinations, analysis, and ultimate custody decision?
For the reasons that follow, we shall affirm the circuit court’s judgment.
On November 3, 2023, the parties entered into a pendente lite consent order in which Mother retained primary physical custody of child while litigation was pending. In addition to the visitation specified earlier, Father was granted visitation in Maryland with child over Thanksgiving, from November 20-26, 2023. The custody hearing scheduled for February 2024 was postponed, and the parties entered into an amended pendente lite consent order with the court granting Father additional weekend visitations with child in Texas, specifically, March 29-31 and May 10-12, 2024.
A contested custody hearing was held on May 28-29, 2024. Both parties, who were represented by counsel, testified at the hearing. Additionally, a court-appointed custody evaluator (“CE”) and a brother of each of the parties testified.
On August 23, 2024, the circuit court entered a custody order and an accompanying twelve-page written memorandum opinion. After addressing the custody factors set forth in Taylor v. Taylor, 306 Md. 290, 304-11 (1986) and Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420
(1978), the court found Mother’s testimony not credible that she had advised Father before she left that she was permanently moving to Texas with child. The court also found that Mother “demonstrated a desire to replace [Father] in [child’s] life with her family.” Given the above, the circuit court granted Father primary physical custody, effective September 1, 2024, and ordered the parties to have joint legal custody with Father having tie-breaking authority. Mother was granted visitation of no less than one weekend per month in Maryland; one week per month in Texas; four weeks each summer with child in twoweek increments; and specified holidays. Mother filed a motion to alter/amend the judgment and a motion to stay custody, which Father opposed. The court denied both motions. Mother has timely appealed the custody order.
DISCUSSION
Standard of Review
We apply a three-part standard when reviewing child custody cases. In re Adoption of Cadence B., 417 Md. 146, 155 (2010). “When the appellate court scrutinizes factual findings, the clearly erroneous standard . . . applies. [Secondly,] if it appears that the [circuit 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 [circuit court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [circuit court’s] decision should be disturbed only if there has been a clear abuse of discretion.”
Id. (quoting In re Yve S., 373 Md. 551, 586 (2003)). An abuse of discretion occurs when a “ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.” Alexis v. State, 437 Md. 457, 478 (2014) (quotation marks and citation omitted). “[A]n abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.” Wilson v. John Crane, Inc., 385 Md. 185, 199 (2005). Cf. Fontaine v. State, 134 Md. App. 275, 288 (“[W]here a trial court’s ruling is reasonable, even if we believe it might have gone the other way, we will not disturb it on appeal.”), cert. denied, 362 Md. 188 (2000).
In child custody cases, the best interest of the child “guides the trial court in its determination,” and in our review, “is always determinative[.]” Santo v. Santo, 448 Md. 620, 626 (2016) (quotation marks and citation omitted). Given the “unique character of each case” and “the subjective nature of the evaluations and decisions that must be made,” id. at 629, Maryland courts have identified the Taylor and Sanders factors as the primary, yet non-exclusive factors a court should consider in weighing the advantages and disadvantages of alternative environments, without focusing on any single factor.3 Sanders, 38 Md. App. at 420-21. See Petrini v. Petrini, 336 Md. 453, 47172 (1994) (noting that, on review, we look to the circuit court’s decision “in its entirety”).
Mother argues that the circuit court erroneously applied the holding in Shunk v. Walker, 87 Md. App. 389, 401 (1991), a case addressing a change of custody when a parent unilaterally relocates. Father responds that the court properly applied the holding in Shunk. Additionally, because Maryland case law on parent relocation has only been addressed in the context of post-divorce and permanent custody determination, whereas here the relocation occurred pre-divorce and permanent custody determination, Father urges us to“adopt a presumption that a unilateral, long-distance relocation prior to the entry of a final divorce decree is contrary to the best interests of the child” as a matter of law.
Maryland law on custody when a parent relocates
Three central Maryland cases address custody determinations when a parent relocates.
In Shunk, 87 Md. App. at 393, father was granted custody of minor child with mother to have visitation rights upon the parties’ divorce. Father moved out of state with child and disregarded mother’s visitation dates, resulting in mother filing numerous motions, including a motion to modify custody. Id. Father absented himself from those proceedings and fled with child to Canada. Id. at 394-95. A chancellor found that father’s conduct created a significant change in circumstances and awarded temporary custody to mother, pending further hearings on custody and visitation. Id. at 395. On appeal, we stated that a relocation “could be deemed to be directly contrary to the best interests of the child” and that in that case, father’s “relocation . . . effectively terminated” mother’s visitation rights, as the child’s whereabouts were unknown. Id. at 399, 401. We affirmed the judgment, holding that father’s actions clearly supported the conclusion that he was not the proper parent to have custody because his relocations and effective attempts to stifle any relationship between mother and child nullified any presumed advantages of continuity and stability. Id. at 399-401.
In Domingues v. Johnson, 323 Md. 486 (1991), a circuit court master, after an extensive five-day hearing producing 1300 pages of transcript, found that mother’s decision to relocate to Texas from Maryland to follow her husband’s military career, combined with other factors such as mother not supporting the father-child relationship with their two children and that moving out of state would isolate the children further from the rest of their family on both sides, was a change of circumstances that justified changing where the children should primarily reside, recommending that primary custody be given to father. The chancellor subsequently entered an order affirming the master’s recommendations. Id. at 489. We reversed on appeal, and the Maryland Supreme Court reversed our decision.
The Court held that “changes brought about by the relocation of a parent may, in a given case, be sufficient to justify a change in custody[;] [t]he result depends upon the circumstances of each case.” Id. at 500 (emphasis added). The Court noted that “the relationship that exists between the parents and the child before relocation is of critical importance.” Id. at 501. The Court found this particularly true in the circumstances before
it where father had a “very close relationship and strong bonds with the children”; father “regularly exercised[] extensive rights of visitation”; and the close, paternal and maternal, relatives of the child resided in the area of father’s residence. Id. at 502. Because the Court found that the chancellor failed to exercise its independent judgment in drawing conclusions from the facts elicited but had instead ruled as a matter of law, the Court reversed and remanded to the chancellor for further consideration. Id. at 490, 498-99.
In Braun v. Headley, 131 Md. App. 588, 593, cert. denied, 359 Md. 669 (2000), cert. denied, 531 U.S. 1191 (2001), mother filed a post-divorce motion to modify father’s visitation on the same day she relocated with child to Arizona from Maryland, asserting that mother’s chronic pain would be alleviated in a drier climate. The circuit court found that the move caused a change in circumstances, and when considered in light of the child’s best interest, warranted a change of custody to father. Id. at 610. The court found that mother had primarily moved to create distance between father and child; mother’s stated health reasons for the move was not supported by the evidence; mother left Maryland without giving father notice; mother discouraged child from calling father “dad” and referred to father in “derogatory” terms in front of child; and mother gave no consideration of the impact of her conduct on child. Id. at 611-12. Acknowledging the holding of Domingues, that change “brought about by the relocation of a parent may, in a given case, be sufficient to justify a change in custody,” we affirmed the circuit court’s judgment. Id. at 611, 613 (quotation marks and citation omitted).
Applying relocation law to the facts of our case
Quoting Shunk, 87 Md. App. at 401, the circuit court in its memorandum opinion stated that “a parent’s decision to relocate without telling the other parent and thus denying the parent in the original state the right to visit with their child ‘could be deemed to be directly contrary to the best interests of the child.’” Mother argues that this was a mischaracterization of the holding in Shunk. She argues that, under Maryland custody law, only a relocation that makes visitation impossible, not more difficult, is against a child’s best interest. She then argues that because there was no evidence that Father’s visitation with child was impossible after their relocation, the court wrongly found that, as a matter of law, her decision to relocate to Texas without telling Father was contrary to the best interest of the child. Contrary to Mother’s argument, the circuit court correctly cited our holding in Shunk, and, as expounded upon by the later cases cited above, it is still the current law in Maryland. Additionally, the circuit court correctly applied Maryland law –that a relocation may be sufficient to justify a change in custody, depending on the circumstances of each case. See Shunk, Domingues, and Braun, supra. Contrary to Mother’s argument, the court did not rule as a matter of law that the relocation was against the child’s best interest, rather, the court considered the relocation and many other factors in its ultimate custody determination.
Here, the circuit reached its custody decision by first addressing and applying the relevant Taylor/Sanders factors.
See infra. The court then reviewed the CE’s report and testimony. The court also addressed Mother’s unilateral move and found not credible Mother’s assertion that Father knew of her plans to relocate to Texas with child. The court supported its credibility determination with: 1) text exchanges between the parties roughly two months before Mother relocated, where the parties discussed hiring their long-time babysitter, and 2) an email sent by Father to Mother the day before she left, asking her to confirm their prior agreed upon return date, to which Mother did not respond. The court found it “illogical” to have engaged in the above communications if Mother had told Father of her plans to permanently relocate. The court stated that Mother’s “unilateral relocation upset the very desirable environment of [child] having full and unfettered access to both of his parents.” The court also found that Mother had demonstrated a desire to replace Father with her family in child’s life. Only after this thorough analysis of many factors did the court make a ruling on custody. For the above reasons, we find no error in the court’s findings, reasonings, or conclusions regarding Mother’s unilateral relocation with child to Texas. See Jay M. Zitter, Annotation, Custodial parent’s relocation as grounds for change of custody, 70 A.L.R.5th 377 (1999, Cum. Supp.).
We decline Father’s invitation to adopt a presumption that relocation by a parent pre-divorce creates a rebuttable presumption that the relocation was not in the child’s best interest as a matter of law. Such a presumption would be contrary to Maryland relocation law and does not conform to the best interest of the child standard. We are persuaded that current Maryland relocation law is nuanced and sufficiently robust to address pre-divorce cases, as both pre- and postdivorce cases focus on the best interest of the child and the many Taylor/Sanders and other factors.4
II.
Mother argues that the circuit court mischaracterized and misstated the testimony elicited at the custody hearing resulting in several factual errors. Specifically, Mother directs our attention to the court’s characterization of her testimony, the testimony of the CE and Father’s brother, and the court’s factual findings in its Taylor/Sanders analysis. She then argues that the errors were not harmless and urges us to remand the case for a new analysis and determination by the circuit court. Father argues that the court’s factual findings were not clearly erroneous or insignificant when the court’s opinion is viewed as a whole.
A. The circuit court
The following is a summary of the Taylor/Sanders factors the circuit court addressed in its memorandum opinion: 1. Fitness of parents – each parent was fit and has a loving, bonded relationship with child; 2. Character and reputation of parties – no concerns noted; 3. Desire of the natural parents and agreements between the parties – each parent sought primary physical and joint legal custody with tie-breaking authority; 4. Potentiality of maintaining natural
family relationships – Mother lives with her mother and has a brother in Texas. Father’s father lives in Silver Spring, and Father’s aunt, uncle, grandmother, and family members on his mother’s side reside in the Washington metropolitan area; 5. Preference of the child – not applicable as child was too young; 6. Material opportunities affecting the future of child – both parents are able to provide material opportunities; 7. Age, health, and sex of child – the child was a two-year-old male, with minor health concerns; 8. Residents of parents and opportunities for visitation – both parents have opportunities for visitation with Mother living in a twobedroom apartment and Father living in the marital home with three bedrooms and a backyard; 9. Length of separation from natural parents –Father has been physically separated from child, other than visits, due to Mother’s move to Texas in 2023; 10. Prior voluntary abandonment or surrender – neither party had abandoned or surrendered child; 11. Capacity of parents to communicate and to reach shared decisions – the parents are able to effectively communicate about child; 12. Psychological and physical fitness of each parent – both parents were psychologically and physically fit; 13. Relationship between parent and child –both parents have a loving relationship with child; 14. Potential disruption of child’s social and school life – returning child to Father’s custody would not be disruptive to child because the child was in daycare, not school, noting that the CE testified child would not be affected by a move back to Maryland because he is familiar with marital home; 15. Demands of parental employment – both parents work primarily from home with Mother testifying that she has arranged daycare during the workday, her job is very flexible and she can be present for child, and Father testifying that he also has arranged for daycare; 16. Age and number of children – neither party has other children; 17. Sincerity of parent’s requests – both parents request for custody are sincere; 18. Financial status of parents – both parents have the financial ability to provide for child; 19. Impact on state/ federal assistance – not applicable; and 20. Benefit to parents – both parents say they will benefit from custody.
After addressing the above factors, the court made additional findings, specifically: 1) the CE testified that the child “would not be affected by a move back to Maryland”; 2) Mother’s testimony was not credible that she had advised Father she was permanently moving to Texas with child, as supported by text exchanges and an email between the parties, supra; and 3) Mother “demonstrated a desire to replace [Father] in [child’s] life with her family.”
B. Testimony of Mother, the CE, and Father’s brother
Mother takes issue with the court’s recitation in its written opinion of the testimony of three witnesses: herself, the CE, and
Father’s brother’s testimony. We shall address each argument in turn.
Initially, we note that a circuit court’s “findings of fact are to be given great weight since” the court has the parties before it and has “the best opportunity to observe their temper, temperament, and demeanor, and so decide what would be for the child’s best interest[.]” Sanders, 38 Md. App. at 418-19 (quotation marks and citation omitted). Moreover, the “court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor[.]” Id. at 420-21. That we might have viewed the evidence differently does not lead to the conclusion that the court’s findings were clearly erroneous or that it abused its discretion.
1. Mother’s testimony. The circuit court wrote in its memorandum opinion that “[Mother’s] testimony demonstrated a desire to replace [Father] in [child’s] life with her family.” Mother argues that this finding was erroneous because she in fact did everything to ensure a relationship between Father and child, but Father did not take her up on these opportunities, including daily Facetime calls and access to child’s daycare and healthcare records. Based on the evidence presented to the court, we find no error in the circuit court’s finding.
The following was elicited during Mother’s crossexamination:
[FATHER’S ATTORNEY]: What kind of assistance does your mother give you in taking care of [child]?
[MOTHER]: She’s his grandmother, so she plays with him, she walks with us when we take on our walk, and she helps me cook for him and clean for him.
[FATHER’S ATTORNEY]: So does he – or does she kind of serve the role as a second parent?
[MOTHER]: I don’t know what a second parent –how a second parent will – would be. It would be an assumption, but my guess would be somewhat similar to what she’s doing.
Additionally, Mother does not dispute that she did not include Father in the planning of, or directly invite Father’s family members to, child’s second birthday. Given the totality of the evidence before the court, including that Mother had unilaterally relocated to Texas with child to be closer to her family, we find no clear error or abuse of discretion in the circuit court’s conclusion that Mother was attempting to replace Father in child’s life with her family.
2. CE’s testimony. Mother directs us to three instances of alleged error by the circuit court regarding the CE’s testimony.
The circuit court wrote in its opinion that the CE, in its evaluation: “observed the parties with [child], interviewed the parties, interviewed collateral witnesses, observed [Mother’s] home via Zoom, visited [Father’s] home in person, reviewed [child’s] daycare reports, screened for domestic violence, and conducted a Maryland Judiciary case search.” (Emphasis added.) Mother argues that the circuit court erroneously quoted the CE’s testimony because the CE testified that she had not physically visited Father’s home.
The CE’s testimony is slightly confusing on this point. She initially testified:
I interviewed both parties at the court, I observed the parties with the child. [Mother] was observed virtually with the child, as she resides in Texas. A day care report was also obtained for the child, text messages were reviewed, I spoke to various collaterals, and I conducted a Maryland Judiciary case search. We also screened for intimate partner violence when we do custody evaluations per the Maryland rules, and the court file was reviewed.
The CE was then asked directly whether she visited Father’s home in Silver Spring, and she responded, “Yes.” A short time later, she stated: “Excuse me, sorry. I actually observed [Father] with the child here due to the coordination, but I was able to also see his residence as well. He provided pictures.” Here, the CE clearly considered Father’s living situation in its evaluation, and, at the very least, reviewed pictures of the home. Regardless of any alleged error by the court in its written opinion, we fail to see any harm by the court’s possible misstatement, and Mother directs us to none.
Secondly, Mother argues that the circuit court failed to acknowledge that, although the CE testified that she had reviewed the court file and “looked through” the pleadings, she seemed unaware of a specific allegation Mother had made in her opposition to Father’s request for emergency custody that, prior to her moving to Texas, Father had left child alone in the home. Our review of the transcript shows that the CE testified that she had reviewed the “numerous” pleadings but that the specific allegation “wasn’t something that was brought to my attention[,]” but she went on to explain that she did not have concerns about the parents providing care to child because, during her interviews, both parents advised her that each parent was managing the child’s care effectively, and Father had spent extended visits with child with no concerns noted. Accordingly, we find no error by the circuit court, as alleged by Mother. It is well-established that a court need not articulate every step in its thought process. A court is presumed to know the law and apply it correctly, and this presumption “is not rebutted by mere silence.” Wasyluszko v. Wasyluszko, 250 Md. App. 263, 282-83 (2021) (quotation marks and citations omitted).
Third and lastly, Mother argues that the circuit court erred when it wrote that the “[CE] testified that she believed that [child] would not be affected by a move back to Maryland because [the CE] believed he is likely familiar with the marital home.” Mother argues that the CE opined on cross-examination that, given the child’s young age and his attachment to both parents, “I feel that the move to Texas was a bigger transition than a move back to Maryland where he was born and – and has support . . . as well.” Mother argues that the CE’s testimony actually “presuppose[d] that a move back to Maryland would also be a transition[,] which would most certainly have an effect on” child.5
We agree with Father that Mother’s argument is an overstatement of the CE’s testimony and the court’s reasoning in an attempt to show an abuse of discretion where none exists. Given the CE’s testimony, the court could have found that any potential disruption in moving back to Maryland would be largely mitigated by child’s young age and his existing connections to, and familiarity of, his environment.6 The court’s
findings were not clearly erroneous.
3. Father’s brother’s testimony. The court found Mother’s testimony not credible that, before she left with child, she advised Father that she was moving permanently to Texas. As we stated above, the court supported its credibility determination with text exchanges between Mother and Father and an email from Father to Mother. The court noted in its memorandum that, although Mother’s counsel suggested that Father’s brother knew Mother was leaving permanently when he drove Mother and child to the airport (because he told her during the drive that it would be difficult to raise a child in two different states), the brother specifically testified “that he did not know that the visit would be permanent when he drove [Mother]” to the airport. From this, Mother directs our attention to additional testimony by the brother where he stated: “[T] he day after [Mother left], I was curious why there’s so” much luggage and “I was discussing with my brother, and that’s how I come to find out [she had moved.]” According to Mother, the brother’s testimony contradicts Father’s testimony that Father was unaware that Mother had moved until she filed for divorce, which occurred a month after she left.
Mother overstates and conflates the testimony to show an abuse of discretion where none exists. We see no contradiction between the testimony of Father and his brother, i.e., they did not know Mother was moving permanently to Texas until after she left. The court did not make a finding as to exactly when Father learned Mother had left Maryland permanently, and so any contradiction between the brother’s and Father’s testimony on this point is simply not germane. Accordingly, we find no error in the circuit court’s finding that Mother was not credible in her assertion that she advised Father before she left that she was leaving permanently.
In sum, Mother argues that the circuit court’s alleged misrepresentations of her, the CE’s, and Father’s brother’s testimony was clear error that directly affected the court’s custody decision. Whether viewed individually or collectively, we find neither clear error nor an abuse of discretion in the court’s findings or ultimate conclusions. See Wasyluszko, supra.
C. The circuit court’s analysis of the Taylor/Sanders factors
Mother also argues that the circuit court erred in its analysis of the Taylor/Sanders factors, specifically factors 8, 9, 11, 14, and 15.7 She argues that because of the factual errors, we should reverse the judgment and remand for a reassessment of the Taylor/Sanders factors. We note that, of the twenty factors considered, Mother takes issue with five. We shall discuss each of the five in turn.
Factor 8, opportunities for parents to visit, and factor 9, length of separation. The court found that both parties have the ability and opportunity to visit child, factor 8, and that child has been physically separated from Father due to Mother’s unilateral move to Texas with child, factor 9. Mother argues that, in these findings, the court failed to acknowledge that Father did not avail himself of the visitation opportunities given to him, specifically that Father only availed himself of eleven out of the forty-four Texas visitation days granted to him under the
temporary custody order. Therefore, according to Mother, the court should not have weighed factors 8 or 9 in Father’s favor.
The court found that Father visited child in Texas three times with each visit lasting about a week, and Father visited with child in Maryland for multiple weeks on three separate occasions. The short answer to Mother’s argument is that, although Father had the ability, and did visit child in Texas, this does not change the fact that Father and child were living apart and physically separated. Accordingly, we find no abuse of discretion by the court in concluding that both parties have the opportunity to visit child, and that Father has been physically separated from child since July 2023, as a result of Mother’s actions.8
Factor 11, parents’ capacity to communicate and to reach shared decisions regarding child’s welfare. The circuit court found that the parties were able to communicate well and to make shared decisions regarding child’s welfare. Mother argues this was wrong for three reasons. First, she argues that the only evidence that the parties communicate well was testimony offered by the CE that the parties “seemed to communicate well because [Father’s] visits with [child] went well.” Mother argues that this conclusion was in error because there is no “logical nexus between the quality of visits and the parties’ ability to communicate.” This argument is again an overstatement and fails to provide the full breadth of the CE’s testimony and Mother’s own testimony. The CE testified that: “the parties were communicating fairly well regarding matters that affected the child. Both parties seemed to respect the child’s relationship with both parents. They didn’t criticize the caretaking.” Mother testified that the parties have no significant disagreements as to the child’s medical care, education, or religious upbringing.
Second, Mother argues that her exhibits show that child had an injury to his hand when he was in Father’s care in Maryland, and Father refused, despite her pleas, to tell her what had happened. She then directs us to the CE’s testimony that if one party failed to inform the other of an injury to a child while in their care, she would have concerns about their ability to communicate with each other. Clearly, the court had evidence before it that the parties had prior communication issues, whether it was insufficient notice of an injury to child’s hand or Mother’s unilateral decision to move to Texas permanently without informing Father. Nonetheless, looking at the parties’ recent interactions and communications, the court found, as the CE testified, that the parties were able to communicate effectively enough to make shared decisions for child’s welfare.
Third, Mother argues that exhibits between the parties prior to the separation should have been discounted while her exhibits of text communications between them after their separation should have weighed more heavily. She fails, however, to explain or make any argument as to how the cited exhibit numbers demonstrate a lack of communication between the parties, and we decline to make arguments for her. See Md. Rule 8-504(a)(6) (stating that appellant’s brief “shall” include “[a]rgument in support of the party’s position on each issue” raised).
In sum, in the circumstances presented and notwithstanding Mother’s argument to the contrary, the circuit court’s finding
that the parties can effectively communicate with each other and make shared decisions regarding child’s welfare was not clearly erroneous.
Factor 14, potential disruption of child’s social and school life. The circuit court wrote that the move back to Maryland would have “no potential disruption of the child’s social and school lives” and the CE “testified that she believed that [child] would not be affected by a move back to Maryland because she believed he is likely familiar with the marital home.” Mother asserts that this finding was in error because child had been enrolled in daycare for over a year (nearly half of child’s life) in Texas, and so moving him to Maryland will have a disruptive effect on him, as he had developed friendships and a routine. Moreover, Mother argues that the court mischaracterized the CE’s testimony because the CE in fact testified that the move to Texas was a bigger transition than a move back to Maryland, which, according to Mother, suggests that a move back to Maryland would have some effect on the child. Additionally, because the CE did not visit Father’s home, Mother argues that the court cannot effectively opine about whether the child is comfortable in the home, noting that child spent a substantial period of time away from the marital home before the separation.
The short answer to Mother’s argument is that, although the court could have inferred from the CE’s testimony that a move back to Maryland “may” have some impact on child, the court could also infer from the CE’s testimony that a move back would potentially not have an impact. Under the circumstances and the facts elicited, we do not find the circuit court’s findings clearly erroneous.
Factor 15, demands of parental employment. The circuit court found that both parties primarily work from home, their jobs were flexible, and they have secured daycare for their respective workdays. Mother argues that the circuit court erred in not finding that Father “abandon[ed]” child while she and child lived in the marital home because of Father’s focus on his employment. Mother argues that the court additionally failed to mention that she elicited during trial an incident where Father was so absorbed at work that he left child alone.
Mother fails to cite where in the record extract she elicited evidence that Father, while working, left child alone in the home. The citations she does provide are a courtroom hearing sheet and a picture of the front door of a house with birthday balloons. Father’s response refers us to text messages between the parties where Mother texts that she left the marital home and returned to find child alone, and Father responds by text that he did not hear Mother say she was leaving. Mother has provided no factual support for her argument, and therefore, we find no error in the circuit court’s findings. See Li v. Lee, 210 Md. App. 73, 94 (2013) (stating that husband’s failure on appeal to provide factual support for his argument was to his detriment, as he bore the burden of proof on appeal), aff’d, 437 Md. 47 (2014).
D. Custody analysis and determination
Given the above alleged errors, Mother argues that the court abused its discretion in granting Father primary
physical custody and tie-breaking authority, and she asks us to reverse so that the circuit court can re-weigh the evidence. We decline to do so for the reasons stated above. The circuit court made findings and inferences based on the evidence presented, and even if we may have drawn different findings or conclusions, we hold that the trial court committed
neither abuse of discretion nor reversible error. Cf. Gizzo v. Gerstman, 245 Md. App. 168, 206 (2020) (holding that father’s “arguments fail to show that any of the trial court’s findings were unsupported by sufficient evidence or that the court’s reasoning was irrational”). Accordingly, we shall affirm the judgment.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 The circuit court subsequently entered a judgment of absolute divorce and addressed a monetary award, alimony, and child support. Because the only questions raised on appeal relate to custody, we shall focus on that issue.
2 The issues Mother presents in her appellate brief are as follows:
I. Whether the Trial Court erred in its interpretation and application of Shunk v. Walker, 87 Md. App. 389 (1991) as a matter of law?
II. Whether the Trial Court made clearly erroneous factual determinations related to actual testimony in rendering its decision?
III. Whether the Trial Court erred in its determination of child custody?
3 In Sanders, we set out the following non-exclusive factors for a circuit court to consider in child custody determinations: 1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) the ability to maintain natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health, and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender. Sanders, 38 Md. App. at 420.
In Taylor, the Maryland Supreme Court considered the following factors as relevant in making joint custody determinations: 1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; 2) willingness of parents to share custody; 3) fitness of parents; 4) relationship established between the child and each parent; 5) preference of the child; 6) potential disruption of child’s social and school life; 7) geographic proximity of parental homes; 8) demands of parental employment; 9) age and number of children; 10) sincerity of parents’ request; 11) financial status of the parents; 12) impact on state or federal assistance; 13) benefit to parents; and 14) other factors. Taylor, 306 Md. at 304-11.
4 In 1997, the American Academy of Matrimonial Lawyers proposed a Model Relocation Act enumerating factors for courts to consider in determining relocation disputes, including: the nature and quality of a child’s relationship with both parents as well as age, preference, emotional and educational needs; the likelihood that the non- relocating parent will have viable
visitation rights; reasons for a parent opposing or seeking the relocation, and the relocating parent’s willingness to promote visitation; the enhanced quality of life for the child in relocating, and “any other factor affecting the best interest of the child.”
Samara Nazir, The Changing Path to Relocation: An Update on Post-Divorce Relocation Issues, 22 J. Am. Acad. Matrim. Law. 483, 484 (2009). Common sense and existing Maryland case law covers these factors.
5 The CE’s report, which was admitted into evidence, recommended that the parties have shared physical and legal custody.
6 As Judge McAuliffe recognized in Domingues, 323 Md. at 499:
A determination of custody requires an element of prediction. Whether it is the parties attempting to reach an agreement, or a chancellor resolving a custody dispute, the aim is necessarily to structure custody and visitation to accommodate the future best interest of the child. Indeed, it has been suggested that a weakness of the “best interest of the child” standard is the need for prediction.
Nonetheless, it is the standard to be applied in Maryland custody cases.
7 Although Mother takes issue with the circuit court’s finding as to factor 1, that “both parents have a loving and bonded relationship with [child,]” Mother presents no facts or argument as to factor 1. Accordingly, there is nothing for us to review as to this factor. See Md. Rule 8-504(a) (stating that appellate briefs are required to provide, among other things, a “clear concise statement of the facts material to a determination of the question[] presented, . . . [and r]eference shall be made to the pages of the record extract or appendix supporting the assertions[,]” and “[a]rgument in support of the party’s position”). See also Diallo v. State, 413 Md. 678, 69293 (2010) (noting that arguments that are “not presented with particularity will not be considered on appeal” (quotation marks and citations omitted)).
8 Mother fails to cite any page in the two-day custody hearing where the “11/44” fact was elicited, and we are not inclined to comb through the record to find it. See Pulte Home Corp. v. Parex, Inc., 174 Md. App. 681, 760-61 (2007) (“We decline to comb through the . . . record extract to ascertain information that . . . should have [been] provided—a clear reference to a page or pages of the record extract that show the matter was presented to the trial court.”).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s entry of a final protective order against father. Father did not object to the circuit court’s reliance on the Prince George’s County Department of Social Services’ report at the time that court indicated that it had read and was relying on it in granting mother’s final protective order.
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..
Mother and assaulted both her and the children. A few days later, Father filed a cross-petition for a protective order on behalf of himself and two of the children. In his petition, he claimed that on September 30, Mother had assaulted Father and threatened to harm the children.
The circuit court issued temporary protective orders for both parties and referred the case to the Prince George’s County Department of Social Services (“DSS”) to investigate the alleged child abuse. See Md. Code Ann., Family Law Article § 4-505(e). A DSS social worker interviewed the parties and the oldest child, prepared a report summarizing the interviews, and filed the report with the court.
The court scheduled a final protective order hearing on both petitions for November 22.
Mother’s Petition
At the final protective order hearing, Father appeared pro se, and Mother appeared with counsel. The court distributed copies of the DSS report but required the parties to return the copies after they reviewed them.
This appeal arises from the entry of a final protective order by the Circuit Court for Prince George’s County against appellant Emmanuel Ifeagwu (“Father”). Based on the evidence presented at the hearing, the court issued a final protective order in favor of appellee Chidinma Ifeagwu (“Mother”), granting her custody of the parties’ children, among other relief. Father, pro se, presents two questions for our review, which we have rephrased:1
1. Did the court err in denying Father access to the report prepared by the Department of Social Services and relying on hearsay contained in the report?
2. Did the court err in refusing to consider Father’s video evidence?
For the reasons explained below, we affirm the judgment of the circuit court.
BACKGROUND
On October 11, 2024, Mother filed a petition for a protective order on behalf of herself and the parties’ three children, who were then six years old, two years old, and two months old. The petition alleged that Father had threatened
Mother testified that on more than ten occasions since mid-August, between midnight and 4:00 a.m., Father came upstairs to Mother’s bedroom where she and the children were sleeping. In response to this behavior, Mother purchased a lock for the bedroom. When Father was unable to get into the room, he “ferociously” banged on the door. Mother eventually opened the door, after which he shook the children awake, causing them to cry. Mother recounted another incident and other circumstances that made her feel unsafe, which led her and the children to leave the home from September 30 to October 11. While all of this was happening, Father stated that the children and everything in the house belonged to him. He threatened to “make [her] life a living hell” and to “make [her] feel pain beyond [her] imagination” because she filed for divorce.
Father denied engaging in the conduct that Mother described. To challenge Mother’s testimony and demonstrate that he did not threaten her, Father played a video from 7:12 p.m. on September 27 on his cell phone, which the court reviewed. He supported the video with testimony, stating that he did not bang on the door; instead, the video showed him waiting for Mother to open it.
Father’s Petition
The court then turned to Father’s petition for a
protective order and inquired about his reasons for filing it against Mother. Father explained that he had another video, which depicted Mother’s conduct on September 30, the date alleged in his protective order. He proffered that the video showed Mother hitting him, kicking him, and “do[ing] all kinds of things.”
Father requested permission to use the court’s computer to connect his flash drive and play the video. However, the court declined his request, explaining that it could not use the judiciary computer for that purpose. The court stated that he needed to use his own device “because I cannot have something affect the entire State of Maryland.” The court confirmed that Father did not have a device to play the video and stated that the video was not in evidence. Father did not present any other evidence in support of his petition.
Court’s Rulings
At the conclusion of the hearing, the court granted Mother’s final protective order. The court stated that it heard “contradictory stories” about the banging on the door and could not reach any conclusion based solely on the evidence presented by the parties. However, it reviewed the DSS report that summarized the oldest child’s account of witnessing altercations between the parties. Based on this, the court found, by a preponderance of the evidence, that Father committed second-degree assault.
The court entered a final protective order effective through November 22, 2025. The order prohibited Father from specific locations, including the family’s residence, which he was ordered to vacate. Additionally, Father was prohibited from abusing, threatening to abuse, contacting, attempting to contact, or harassing Mother. The court awarded Mother custody of the children through the duration of the order.
The court denied Father’s petition for failure to meet his burden of proof.
Father noted an appeal from the order granting Mother’s petition for a protective order, but he did not appeal from the order denying his petition.
DISCUSSION
Father raises two challenges regarding the court’s order granting Mother’s petition for a protective order. The first challenge concerns the court’s reliance on the DSS report. The second challenge pertains to his inability to play the video on his flash drive. Central to both challenges is the claim that the court violated his due process rights. We will address each challenge in turn.
A.
DSS Report
Father presents two arguments concerning the DSS report. First, he contends that the court erred in refusing to allow him to review the DSS report while permitting
Mother and her attorney to access it. Second, he claims that the court erred in relying on the DSS report when granting Mother’s petition for a final protective order, as the report contained hearsay.
Father’s first claim lacks merit. The record shows that the court provided copies of the DSS report to the parties. The court merely stated that it would not permit the parties to keep the report. The following exchanges illustrate this, and it also shows that Father never complained that he was not shown a copy of the report:
THE COURT: . . . The [c]ourt has reviewed the DSS report. Have you seen the report?
[MOTHER’S COUNSEL]: No, we have not, Your Honor.
THE COURT: Okay. Only attorneys are allowed to see the report. They don’t share the reports with their clients. And because you’re not represented, you are not able to review the report. . . .
The court clarified its statement regarding the attorney’s ability to “share” the DSS report with his client. Specifically, the court indicated that attorneys are not permitted to provide their clients with a copy of the report to keep:
THE COURT: And when I said share, I meant share, give. That’s what I meant when I said share. Yes, you will go over it obviously with your client -- yes, I meant share as in give.
Mother’s attorney stated that he would not have any objection to Father reviewing the report. The court announced that it would provide “two copies of the report so you both can go look over it.” Additionally, the court indicated that it would allow “[a]s much time as you need” to review the report and allowed the parties to “step outside” to do so. The court stated that it was “distributing the copies” and would “get them back once you return into the courtroom.” The transcript of the hearing indicates that the court recessed for twelve minutes before the parties reconvened in the courtroom. The court asked Father if he needed more time to review the report and then requested that he return the copy:
THE COURT: Do you need additional time, sir?
[FATHER]: No, no, I’m okay.
THE COURT: Okay. All right. So are we -- you’re ready to proceed to the hearing? Sir, are you ready to proceed?
[FATHER]: Yes, ma’am.
THE COURT: Yes, ma’am. I just need the reports back. Sir, I need the report. You can give it to the bailiff. Thank you.
Contrary to Father’s claim, the record indicates that the court provided him with a copy of the DSS report. He had the chance to review it and did not require any additional time. Therefore, Father’s claim that he was not allowed to review the DSS report is unsubstantiated.2
Father’s second challenge to the DSS report is not preserved. Objecting to a trial court’s ruling is generally a prerequisite to raising that issue on appeal. See Md. Rule 8- 131(a) (“Ordinarily, an appellate court will not decide any
other issue unless it plainly appears by the record to have been raised in or decided by the trial court ”). “Error may not be predicated upon a ruling that admits . . . evidence unless the party is prejudiced by the ruling, and . . . a timely objection or motion to strike appears of record . . . .” Md. Rule 5-103(a)(1). “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” Md. Rule 2-517(a) (emphasis added). A party does not need to formally object to preserve an issue. However, a party must at least inform the court of “the action that the party desires the court to take ” Md. Rule 2-517(c); see Caviness v. State, 244 Md. 575, 578 (1966) (“[U]nless a defendant makes timely objections in the lower court or makes his feelings known to that court, he will be considered to have waived them and he can not [sic] now raise such objections on appeal.” (emphasis added)).
Evidently, the court had accepted the DSS report as evidence under Maryland Rule 5-803(b)(8)(A)(iv), which makes the “factual findings” contained in an investigative DSS report, like the one at issue here, admissible in a final protective order hearing. See Md. Rule 5-803(b)(8)(A)(iv) (permitting a “report . . . made by a public agency . . . in a final protective order hearing . . . [setting forth] factual findings reported to a court[,] . . . provided that the parties have had a fair opportunity to review the report,” to be admitted into evidence as an exception to the rule against hearsay even when the declarant is available as a witness). However, Father did not object to the court’s reliance on the DSS report at the time the court indicated that it had read and was relying on it in granting Mother’s final protective order. Because the claim is not preserved, we shall not consider it.
B. Video Evidence on Flash Drive
Father argues that the court erred in “refus[ing] to consider video evidence that contradicted [Mother’s] claims, solely because it was on a flash drive.” (emphasis omitted). This is the extent of Father’s argument on the matter. The issue is not properly before us for two reasons.
First, Father’s contention is not adequately briefed. Maryland Rule 8-504(a)(6) requires that a brief shall contain “[a]rgument in support of the party’s position on each issue.” “[A]rguments not presented in a brief or not presented with particularity will not be considered on appeal.” Klauenberg v. State, 355 Md. 528, 552 (1999). As we have previously stated, “[a] single sentence is insufficient
JUDGMENT
to satisfy [Rule 8-504(a)]’s requirement.” Silver v. Greater Balt. Med. Ctr., Inc., 248 Md. App. 666, 688 n.5 (2020). It is not our “responsibility to attempt to fashion coherent legal theories to support [an] appellant’s sweeping claims,” Elecs. Store, Inc. v. Cellco P’ship, 127 Md. App. 385, 405 (1999); nor is it “our function to seek out the law in support of a party’s appellate contentions.” Anderson v. Litzenberg, 115 Md. App. 549, 578 (1997).
Second, the video at issue pertains to the denial of Father’s petition, which is not before us in this appeal. As stated, Father attempted to introduce the video to support his petition against Mother. The court denied Father’s petition, and he chose not to appeal the decision. Therefore, the propriety of the court’s refusal to consider this video is not before us in this appeal.
To the extent that Father claims the video was relevant to contradict Mother’s testimony concerning her petition, the argument is not preserved. Maryland Rule 5- 103(a)(2) provides that error may not be predicated upon a ruling that excludes evidence unless “the substance of the evidence was made known to the court by offer on the record or was apparent from the context within which the evidence was offered.” This means that “a formal proffer of the contents and relevancy of the excluded evidence must [have been] made in order to preserve for review the propriety of the trial court’s decision to exclude the subject evidence.” Merzbacher v. State, 346 Md. 391, 416 (1997) (emphasis added). Unlike the September 27 video presented by Father, which he proffered was aimed at contradicting Mother’s testimony in connection with her petition, Father did not make a similar proffer at the hearing about the video on the flash drive. Consequently, the claim is not preserved for our review.
C.
Violation of Due Process
Finally, throughout his brief, Father framed the above arguments as violations of his due process rights. However, Father never objected at the hearing below to any issue on due process grounds. Accordingly, his reliance on due process is not preserved. See, e.g., B. O. v. S. O., 252 Md. App. 486, 519–20 (2021) (holding that due process issue was not preserved for appellate review because the appellant failed to object after circuit court rulings excluding her from the case).
For the reasons stated, we shall affirm the judgment of the circuit court.
FOOTNOTES
1 The questions presented in Father’s brief are:
1. Did the trial court err in Relying on a DSS Hearsay Report in Finding [Father] Guilty of Domestic Violence?
2. Did the trial court violate [Father’s] due process rights by refusing to consider exculpatory video evidence and denying him access to the DSS report?
2 Mother’s brief attached an affidavit from her trial counsel, in which counsel attests that Father received a copy of the DSS report to review before the court received
testimony during the final protective order hearing. Because this affidavit is not part of the record, we do not consider it.
See Rollins v. Cap. Plaza Assocs., L.P., 181 Md. App. 188, 200 & n.7 (2008) (refusing to consider documents that were not part of the record compiled in the trial court). In any event, the hearing transcript reflects that the court gave Father a copy of the report to review.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 07 MFLU Supp. 51 (2025)
Legal custody; sua sponte
Erik Gonzales v. Courtney Gonzales
Nos. 0941, September Term 2024
Argued before: Berger, Arthur, Reed, JJ.
Opinion by: Reed, J.
Filed: May 16, 2025
The Appellate Court reversed the Carroll County Circuit Court’s award of sole legal custody to the mother. Neither party specifically raised the issue of legal custody in their pleadings before the trial court, and neither argued for a change in legal custody in their statements to the trial court.
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..
parties then had two children, the first born on November 15, 2019, and the second born on January 19, 2021. The parties separated in 2021 and entered into a Marital Property Settlement Agreement (the “Agreement”) on November 12, 2021. In the Agreement, the parties agreed that they would have “joint legal custody and [Appellee] shall primary [sic] physical custody of the minor child.” The Agreement said that because the Appellant’s “work schedule is unpredictable” the parties needed to “exercise flexibility in finding time” for the Appellant to have time with the children.
On March 3, 2022, the Circuit Court for Carroll County filed the judgment of absolute divorce between the parties. The court ordered that the parties would have joint legal custody and the Appellee would have primary physical custody of the children. The Agreement was incorporated into, but did not merge with, the judgment.
Erik Gonzales, the Appellant, filed a petition against Courtney Gonzales, the Appellee, to modify the custody of the parties’ children on October 9, 2023. The petition requested a change only for physical custody based on a material change in circumstances. The case was heard during a merits hearing on May 29, 2024, before the Honorable Maria Oesterreicher of the Circuit Court for Carroll County. At trial, evidence of the parties’ lack of effective communication was heard as well as other evidence supporting a material change of circumstances, and based on this evidence, Judge Oesterreicher ruled that the Appellee would have sole legal custody of the children. The Appellant appealed this modification in legal custody.
In bringing his appeal, Appellant presents one question for appellate review:
I. Did the trial court err by sua sponte modifying legal custody when the parties did not raise legal custody as an issue in their pleadings?
For the following reasons, we reverse the judgment of the Circuit Court for Carroll County.
FACTUAL & PROCEDURAL BACKGROUND
The parties married on December 28, 2011. The
Then, on October 9, 2023, the Appellant filed a Petition for Modification of Custody and Other Relief (the “Petition”). The Appellant asserted that there were material changes in circumstances that warranted a change in the Appellant’s physical custody arrangement and access to the children. Specifically, he said that he secured a twobedroom apartment, he worked fewer overtime hours, and the youngest child no longer needed to breast feed. In this Petition, the Appellant did not request a change to the legal custody of the children. In the request for relief, the Appellant requested “such other and further relief as the nature of this cause may require.”
The Appellee responded to the Petition on November 8, 2023. The Appellee denied that there was a material change in circumstances or that it would be in the best interest of the children to change physical custody. The response ended with a request “[t]hat this Honorable Court award the [Appellee] such other and further relief as the nature of her cause may require.”
On May 29, 2024, a merits hearing on the case was heard before the Honorable Maria Oesterreicher of the Circuit Court for Carroll County. Throughout trial, both parties testified to significant communication problems. By the time of trial, the parties had not had a face-toface conversation in over a year. The Appellee attributed the lack of in-person conversations to the fact that “it was really difficult to agree on anything.” The parties communicated primarily now via emails and texts. The Appellee described these written communications as still “[h]igh-conflict and super rude.” Both parties testified to
how during drop-off and pick-up at the Appellee’s home, she had to wait inside to avoid contact with the Appellant.
Judge Oesterreicher then gave her oral ruling on June 12, 2024. She began her ruling discussing how “[t]he primary concern that the Court has and is required to consider for legal custody is the ability of the parents to communicate to reach shared decisions that affect the welfare of the child.” She noted as a “big factor” the fact that the parties cannot communicate and “have no face-to-face or direct communication other than in writing.” As a result, she found a material change because the Agreement said the parties should communicate to reach a visitation schedule and both parties now agree they cannot communicate. Judge Oesterreicher said that she did not believe the parties can share legal custody because “they cannot communicate to reach shared decisions in the best interests of the children.” As a result, since the children reside with the Appellee, the trial court awarded sole legal custody and primary physical custody to the Appellee.
A custody order was filed the same day ordering that the Appellee had sole legal and primary physical custody. The Appellant timely filed this appeal on July 10, 2024.
DISCUSSION
A. Parties’ Contentions
The Appellant argues that the trial court erred when it modified the Appellant’s legal custody because the parties did not specifically raise that issue in their pleadings. The Appellant points to multiple cases where trial courts have been reversed because they ruled on a matter that was unrelated to the matter the parties pleaded. As a result, the Appellant claims there was a due process violation since he had no notice or opportunity to be heard regarding legal custody.
The Appellee argues the trial court did not abuse its discretion when it modified legal custody. Because trial courts are granted sweeping authority over child-related decisions in family law matters, the Appellee argues the trial court was permitted to modify legal custody based on the facts elicited in the hearing. The Appellee points to the breakdown in communications and concerns over religion as two issues that would necessitate sole legal custody being granted to the Appellee.
B. Standard of Review
We review a trial court’s determination of child custody for abuse of discretion. Santo v. Santo, 448 Md. 620, 625 (2016) (citing Petrini v. Petrini, 336 Md. 453, 470 (1994)). This is because the trial court has the unique “opportunity to observe the demeanor and the credibility of the parties and the witnesses.” Id. (quoting Petrini, 336 Md. at 470). An abuse of discretion may arise 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.” Id. (quoting In re Adoption/Guardianship No.
3598, 347 Md. 295, 312 (1997)) (internal quotations omitted). Findings of fact are reviewed under the clearly erroneous standard of Md. Rule 8-131(c). Boswell v. Boswell, 118 Md. App. 1, 27 (1997) (quoting Davis v. Davis, 280 Md. 119, 125–26 (1977)). This means we “must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed.” L.W. Wolfe Enterprises, Inc. v. Maryland Nat’l Golf, L.P., 165 Md. App. 339, 343–44 (2005) (quoting GMC v. Schmitz, 362 Md. 229, 234 (2001)). However, if a trial court’s order “involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386, 391–92 (2002).
C. Analysis
The Maryland Rules describe how a pleading “shall contain a clear statement of the facts necessary to constitute a cause of action and a demand for judgment for the relief sought.” Md. Rule 2-305. “[P]leading requirements apply equally in the family law context.” Huntley v. Huntley, 229 Md. App. 484, 492 (2016). We have previously described the roles that pleading plays in our judicial system: “It (1) provides notice to the parties as to the nature of the claim or defense; (2) states the facts upon which the claim or defense allegedly exists; (3) defines the boundaries of litigation; and (4) provides for the speedy resolution of frivolous claims and defenses.” Id. at 491 (quoting Scott v. Jenkins, 345 Md. 21, 27–28 (1997)). Of these four roles, the most important is notice. Id. (citing Scott, 345 Md. at 28). “[I]f a claim for relief is placed in the answer, the trial court can still adjudicate that claim as if it had been properly designated as a counterclaim, ‘if justice so requires.’” Lasko v. Lasko, 245 Md. App. 70, 78 (2020) (quoting Md. Rule 2-323(g)).
“Where a judgment was outside the cause of action stated in the complaint and the defendant was not given a fair opportunity to defend against the claim on which the judgment was based, the judgment is invalid and subject to collateral attack.” Travelers Indem. Co. v. Nationwide Const. Corp., 244 Md. 401, 410–11 (1966); see also Huntly, 229 Md. App. at 492 (quoting Scott, 345 Md. at 35–36) (quoting same).
Trial courts are permitted to determine who has custody of a child. The Maryland Code says that in exercising jurisdiction over the custody of a child, an equity court may “direct who shall have the custody or guardianship of a child.” Md. Code, Fam. Law § 1- 201(c)(1). “As part of their broad power to fashion appropriate relief, equity courts have ‘plenary authority to determine questions concerning the welfare of children.’” Conover v. Conover, 450 Md. 51, 82 (2016) (quoting Stancill v. Stancill, 286 Md. 530, 534 (1979)).
Custody includes both physical and legal custody. Taylor v. Taylor, 306 Md. 290, 296 (1986). Physical custody means “‘the right and obligation to provide a home for the child and to make’ daily decisions as necessary while the child
is under that parent’s care and control.” Santo, 448 Md. at 627 (quoting Taylor, 306 Md. at 296). “‘Legal custody carries with it the right and obligation to make long range decisions’ that significantly affect a child’s life, such as education or religious training.” Id. (quoting Taylor, 306 Md. at 296).
“Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.” Taylor, 306 Md. at 296. The Taylor court listed multiple factors for trial courts to consider “in determining whether joint custody is appropriate.1 Id. at 303. The capacity of parents to communicate and reach shared decisions affecting the child’s welfare is “clearly the most important factor in the determination of whether an award of joint legal custody is appropriate.” Id. at 304; see also J.A.B. v. J.E.D.B., 250 Md. App. 234, 256 (2021) (quoting same). As we have stated, “[r] arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child.” Taylor, 306 Md. at 304. If parents cannot make these longrange decisions together because “they are unable to put aside their bitterness for one another, then the child’s future could be compromised.” Santo, 448 Md. at 628. Even if the parents cannot effectively communicate, a court may, “under appropriate circumstances and with careful consideration articulated on the record,” grant parents joint legal custody. Id. at 646.
Turning to the pleadings in this case, neither party in their pleadings made a request for a modification of legal custody. The Appellant asked for a modification of his access to the children and his child support obligations, along with an award of attorney’s fees. The Appellee asked for both of these modifications to be denied, and for the Appellant to pay the Appellee’s attorney’s fees. Both parties also asked the court for “other and further relief” as it related to their claims. Any claim for relief about legal custody was not directly plead before the court.
Multiple family law cases have involved insufficient pleadings where the trial court was reversed for going beyond the parties’ pleadings or affirmed when the trial court properly refused to go beyond the pleadings. First, in Huntley v. Huntley, the appellant argued that the trial court erred in refusing to divide the appellee’s retirement benefits between the parties. 229 Md. App. 484, 489 (2016). Since a division of the retirement benefits was not in the pleadings, the appellee did not have the opportunity to object or request a monetary award for herself from the appellant’s retirement benefits. Id. at 495. This Court held that the trial court did not err in denying the appellant’s request when the appellant “did not request such relief in his answer or in any counter-complaint.” Id. at 490.
In Early v. Early, a support enforcement agency filed a petition for contempt against the appellant. 338 Md. 639, 645 (1995). The trial court held the appellant in contempt but then also terminated his ongoing child support obligations and assessed his arrearages at zero. Id. at 646–47. While the circuit court had the authority to enter these orders, “that
authority must be invoked by appropriate pleadings.” Id. at 656. Since the only matter raised in the pleadings was the finding of contempt, the appellee was not involved in the proceeding, and no party moved for a modification of the support order, the trial court had improperly decided matters not placed before it. Id. at 661–62. Therefore, the Supreme Court of Maryland vacated and remanded the order. Id. at 643.
In Gatuso v. Gatuso, the appellant sought an order for the appellee to be held in contempt for a violation of an order for alimony and child support. 16 Md. App. 632, 635–36 (1973). The lower court properly ruled that the appellee was in contempt. Id. at 636. The lower court then modified the amount of child support and excused any arrearages. Id. at 636. This Court reversed that order because the parties did not plead for any modifications to child support or excuse of arrearages and the court’s order was made “in a manner which denied to the affected spouse due process of law.” Id. at 638.
In Woodham v. Woodham, the Supreme Court of Maryland reversed the trial court’s modification of child support payments. 235 Md. 356, 361 (1964). The trial court increased the support payments sua sponte, and the parties had made no request for an increase. Id. There was no testimony about the child’s needs. Id. While the child support “is subject to modification,” “there must be some formal request for it, supported by evidence of the necessity for modification of that part of the decree.” Id.
In Ledvinka v. Ledvinka, by the time of trial, the appellee only alleged an annulment cause of action. 154 Md. App. 420, 428 (2003). During closing arguments, the appellee argued for the first time that the appellant may have fraudulently transferred assets. Id. at 426. The trial court ruled that the conveyance of the appellant’s property was fraudulent and set it aside. Id. at 427. We held that even though the trial court had sufficient facts to reasonably come to that conclusion about the appellant’s fraud, there was a procedural error because the issue was not properly framed by the pleadings. Id. at 430–31. Therefore, the trial court’s decision was reversed. Id. at 431.
None of these cases concerning insufficient pleadings dealt directly with the matter of child custody. Huntley dealt with retirement benefits. Early, Gatuso, and Woodham all dealt with modifications of child support, the former two arising in contempt proceedings. Ledvinka dealt with a fraudulent transfer of assets. However, these cases stand for the principle that trial courts have “no authority, discretionary or otherwise, to rule upon a question not raised as an issue by the pleadings, and of which the parties therefore had neither notice nor an opportunity to be heard.” Gatuso, 16 Md. App. at 633. Here, neither party specifically raised the issue of legal custody in their pleadings before the trial court, and neither argued for a change in legal custody in their statements to the trial court.
Despite a specific request for a modification for legal custody not appearing in the pleadings, the Appellee points to both parties’ request for “other and further relief” in their pleadings as it related to their claims. In Falise v. Falise, the
appellant argued the trial judge improperly gave the appellee a monetary award even though he did not specifically request one. 63 Md. App. 574, 583 (1985). In the Appellee’s complaint, he asked to be “awarded such other and further relief as the nature of his case may require.” Id. This Court held that language was sufficient to allow the trial court to make any necessary equitable adjustments related to a monetary award. Id. The court then remanded the issue for proper proceedings to apply the Marital Property Act. Id. at 586. While Falise would be applicable if the trial court was merely making adjustments regarding a monetary award, here the trial court made a decision about the legal custody of the parties’ child.
The trial court’s decision in this case involved the custody of one’s child. “[T]he rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution.” Conover v. Conover, 450 Md. 51, 60 (2016) (citing Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925)). This right is weighed against the best interests of the child, as that is the primary goal of access determinations. Caldwell v. Sutton, 256 Md. App. 230, 265 (2022) (quoting Conover, 450 Md. at 60).
“[W]hen a state seeks to affect the relationship of a parent and child, the due process clause is implicated.” Wagner, 109 Md. App. at 25. Due process “is a flexible concept that calls for such procedural protection as a particular situation may demand.” Wagner v. Wagner, 109 Md. App. 1, 24 (1996). “[D]ue process merely assures reasonable procedural protections, appropriate to the fair determination of the
particular issues presented in a given case.” Burdick v. Brooks, 160 Md. App. 519, 525 (2004) (quoting Wagner, 109 Md.App. at 24).
There was a hearing in this case, but that hearing did not have the purpose of analyzing the legal custody of the children. The trial court, after listening to evidence presented during the hearing, came to the conclusion that the parents could no longer properly communicate with each other and subsequently modified the legal custody arrangement. “The error here, however, is not factual; rather it is procedural.” Ledvinka, 154 Md. App. at 431. Legal custody was modified without arguments from the parties or requests for modifications in their pleadings.2 Just as in the cases discussed above, the trial court’s ruling went beyond the specific issues the parties pleaded. In the absence of formal requests for the modification of legal custody, the Appellant was not put on notice of the possibility of a change that he could have argued against during the hearing.
The trial court’s decision may have been in the children’s best interest, but the trial court ruled on a matter that was not properly framed by the pleadings. As a result, we must strike the portion of the court’s order that grants the Appellee sole legal custody.
CONCLUSION
Accordingly, we reverse the judgment of the Circuit Court for Carroll County regarding its modification of the children’s legal custody.
JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY REVERSED; COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 The Taylor factors for determining child custody are:
(1) capacity of parents to communicate and to reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3)fitness of parents; (4) relationship established between child and each parent; (5) preference of child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of parents; (12) impact on state or federal assistance; and (13) benefit to parents.
J.A.B. v. J.E.D.B., 250 Md. App. 234, 256 (2021) (citing Taylor, 306 Md. at 304–11).
2 Courts have held that “[u]se of a general prayer for relief has a long tradition in equity pleading and practice” which
allows for any relief that is warranted by the allegations. Terry v. Terry, 50 Md. App. 53, 60 (1981). In Terry, the court found that the appellee never argued that his alimony payment was inappropriate and the appellant had no notice of the possibility of it being reduced. Id. at 60. Therefore, the court found the trial court erred when it reduced the appellee’s alimony. Id. at 64. Here, the complaints in total do not raise allegations that would have put the parties on notice as to a change in child custody. The Appellee’s response denied the Appellant’s allegations and argued that there were not material changes in circumstances, but did not raise any additional arguments towards the breakdown in communication that the trial court relied upon in coming to its decision regarding legal custody. As a result, the pleadings as a whole did not put the Appellant on notice of the possibility of a change to legal custody.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed the Prince George’s County Circuit Court’s orders dismissing mother’s custody case for failure to prosecute, and denying her motion for reconsideration. The circuit court erred when it unilaterally limited the amount of time for mother to request an order of default. And when mother missed the tight deadline that the court had unilaterally imposed, it wrongly dismissed her complaint for lack of prosecution, even though the case had not been dormant for anywhere close to a year.
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..
were legally correct.2 For the reasons that follow, we shall reverse the circuit court’s orders.
FACTS AND LEGAL PROCEEDINGS
Luis was born in Honduras in November 2020. For the first several months of his life, Luis lived with Mother and Father in Honduras, where they are citizens.
According to Mother, Father did not work or provide financial support for Luis, and he drank and was abusive toward her. Mother claimed that Father had neglected and abandoned Luis and was not fit to maintain custody of the child.
In April 2021, Mother left Honduras with Luis, to live with her mother in Louisiana. Mother obtained a job and provided for Luis’s needs in the United States. At some point, Mother and Luis moved to Maryland.
Luis was in the United States without valid immigration status, but Mother asserted that he met the requirements to apply for SIJ status, as he was neglected and abandoned by one of his parents. In her complaint for custody and request for SIJ factual findings, Mother alleged that it was in Luis’s best interest that she be granted custody and that the circuit court make certain factual findings regarding his eligibility for SIJ status.
In December 2023, appellant Victoria Elvir Gomez (“Mother”) filed a complaint, in the Circuit Court for Prince George’s County, for the sole legal and primary physical custody of her minor son, Luis Alejandro Montoya Elvir (“Luis”). As the defendant, Mother named the child’s father, appellee Jose Luis Montoya Sandres (“Father”), a citizen and resident of Honduras. Mother simultaneously filed a request for findings of fact concerning Luis’s eligibility for Special Immigrant Juvenile (“SIJ”) status.1
Father did not file a response to Mother’s complaint. The circuit court, on its own motion, extended the time for Father to respond and instructed Mother to request an order of default and file a non-military affidavit within only five days after Father failed to meet the extended deadline. When Mother failed to file those documents within the fiveday period, the court dismissed her complaint, without prejudice, ostensibly for “lack of prosecution.”
Mother filed a motion for reconsideration, which the court denied. Mother noted a timely appeal, asking us to consider whether the dismissal of her action and the denial of her motion for reconsideration of that dismissal
The circuit court issued a writ of summons upon Father on December 20, 2023. That summons became dormant because it was not served upon Father within 60 days after the date when it was issued. See Md. Rule 2-113.
Mother requested the issuance of a new summons on March 7, 2024. The court issued a second summons on March 8, 2024.
On April 29, 2024, the circuit court issued a notice of contemplated dismissal on the ground that Father had not been served or that the court had not otherwise obtained jurisdiction over him within 120 days from the issuance of original process. The notice of contemplated dismissal was authorized by Maryland Rule 2-507(b), which states that “[a]n action against any defendant who has not been served or over whom the court has not otherwise acquired jurisdiction is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant.” In accordance with Maryland Rule 2-507(d), the notice stated that the clerk of the court would enter a dismissal without prejudice on the docket “30 days after service of this notice, unless before that time a written motion showing good cause to defer the entry of the
order of dismissal is filed.”
On May 20, 2024, fewer than 30 days after service of the notice of contemplated dismissal, Mother filed proof that Father had been served with the summons on April 10, 2024, because the process server left a copy with “a resident of suitable age and discretion” at his address in Honduras. The notification was accompanied by an affidavit of service by a private process server, attesting that he had handed the summons and accompanying paperwork to Father’s mother, who said that she would give the documents to her son.3
On July 10, 2024, the day after Father’s responsive pleading was due, the circuit court issued an order finding that Father had been served, but that he had not filed a response to Mother’s complaint for custody. On its own motion, the court ordered Father to file a response within 15 days. If he failed to do so, the court, on its own motion, ordered Mother to file a request for an order of default and a non-military affidavit within 20 days of entry of the order (i.e., five days after Father’s renewed default). The court warned that if Mother failed to meet that deadline, it might dismiss her case.
In an order dated August 15, 2024, the court found that Father had not responded to the complaint and that Mother had not filed a request for an order of default or a non- military affidavit within five days after the passage of Father’s extended deadline. Consequently, the court, on its own motion, dismissed the matter without prejudice for “lack of prosecution.”
On August 19, 2024, Mother moved for reconsideration. She argued that pursuant to Maryland Rule 2-321(a)(5) Father had 90 days from the date of service—i.e., until July 9, 2024—to file an answer. She complained that the court’s order, which was entered on the ninety-first day after service of process, extended Father’s time to answer by an additional 15 days, but required Mother to file a request for order of default and a non- military affidavit within only five days thereafter. Mother requested that the court reconsider its dismissal of her complaint and allow for the resolution of her motion for order of default and non-military affidavit, which she attached to her motion for reconsideration.
On October 15, 2024, Mother amended her motion for reconsideration to cite Maryland Rule 2-613(b), which, she argued, does not mandate or authorize a shortened period of time within which a plaintiff must file a written request for order of default.4 Again, she requested that the court allow her to continue seeking redress in the pending proceeding.
By an order entered October 21, 2024, the circuit court denied Mother’s motion for the entry of an order of default on the ground that she had failed to file a non-military affidavit.5 The court also denied Mother’s motions for reconsideration. Mother filed a timely notice of appeal. Mother filed a brief. Father did not.
DISCUSSION
In this case, Mother initiated the SIJ status process for Luis with the filing of a complaint for custody against Father in the circuit court. Her claim of error relates to the
alleged procedural failings by the court before reaching the merits of the SIJ submission. Specifically, Mother claims that the court erred in dismissing her case and in denying her motions to reconsider its order of dismissal because, she says, the court’s orders “were entered in violation of the Maryland Rules of Court relative to the filing of a Motion for Order of Default and relative to the entering of an order of dismissal of the case for lack of prosecution.”
Once Mother established that she had served Father with process in Honduras on April 10, 2024, Md. Rule 2-321(b)(5) required him to file a responsive pleading within 90 days, that is, by July 9, 2024. When Father did not do so, the circuit court, by order entered on July 10, 2024, gave Father an additional 15 days within which to respond to Mother’s complaint. In case he did not respond in 15 days, the court’s order instructed Mother to file a request for an order of default and a non-military affidavit “within twenty (20) days of entry of this Order[.]” Failure to do so, the court warned, “may result in dismissal without prejudice.”
We know of no authority by which a circuit court, on its motion, can require a plaintiff to request an order of default within a specific period of time after a default— much less within a mere five days after a default—upon pain of dismissal for lack of prosecution. Rule 2-613(b), which concerns orders of default, certainly contains no such deadline. It simply states that “[i]f the time for pleading has expired and a defendant has failed to plead as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default.” Md. Rule 2-613(b). As far as Rule 2-613(b) is concerned, the plaintiff can request an order of default five days, five weeks, or even five months after the default has occurred. Rule 1-204(a) allows a court to shorten or extend time requirements “on motion of any party and for cause shown,” but does not state that a court may shorten or extend a deadline on its own motion, as the court did here.
Furthermore, the Maryland Rules authorize dismissal for lack of prosecution only when one year has passed since the last docket entry—i.e., only when the case has remained dormant for a full year. Md. Rule 2-507(c). Even then, the clerk may notify the parties that an order of dismissal for lack of prosecution will be entered after the expiration of 30 days unless a party files a motion showing good cause to defer the entry of the order of dismissal. Md. Rule 2-507(d). Upon the filing of such a motion, “the court for good cause shown may defer entry of the order of dismissal for the period and on the terms it deems proper.” Md. Rule 2-507(e).
Here, the court erred in at least two respects. First, it unilaterally limited the amount of time for Mother to request an order of default. Second, when Mother missed the tight deadline that the court had unilaterally imposed, the court dismissed her complaint for lack of prosecution even though the case had not been dormant for anywhere close to a year. The errors require that judgment be vacated and the case be reinstated.
THE ORDERS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY DATED JULY 10, 2024, AUGUST 13, 2024, AND OCTOBER 21, 2024, ARE VACATED; THE CASE IS REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. EACH PARTY IS RESPONSIBLE FOR THEIR OWN COSTS.
FOOTNOTES
1 For information about SIJ status, see Romero v. Perez, 463 Md. 182 (2019); In re Dany G., 223 Md. App. 707 (2015); and Simbaina v. Bunay, 221 Md. App. 440 (2015).
2 Mother’s questions, as presented in her brief, read:
1. Was the Circuit Court Order of October 19, 2024, that denied Plaintiff-Appellant’s Motion for Reconsideration of the August 13, 2024 Circuit Court Order that dismissed the case without prejudice for lack of prosecution, legally correct, when that dismissal of the case is based on PlaintiffAppellant’s assumed non-compliance with a July 10, 2024 Circuit [Court] Order that added 15 days [to] the 90 days accorded by Md. Rule 2- 321(b)(5) to an overseas resident Defendant, and limited to 5 days, following the 15 days, for Plaintiff-Appellant to file a motion for order of default, a 5 day period not authorized by Md. Rule 2-613(b), processing of [an] order of default?
2. And even assuming arguendo that a Md. Rule may authorize the Court to limit to 5 days the time for PlaintiffAppellant to file a Motion for an Order of Default, following a Defendant [sic] failure to respond to a complaint, was the August 13, 2024 Circuit Court Order of dismissal of the case for lack of prosecution, based on Plaintiff-Appellant’s assumed failure to comply with the July 10, 2024 Circuit [Court] Order, legally correct, when the dismissal of the case for lack of prosecution requires expiration of one year from the last docket entry and a subsequent notification of contemplated dismissal by the clerk, after the expiration of 30 days without the party’s filing of a motion for deferral of dismissal, pursuant to Md. Rule 2-507(c), (d), and (e), which were not observed in the instant case?
3 Because Father had been served on April 10, 2024, the
court had, in fact, acquired jurisdiction over him by April 29, 2024, when it issued the notice of contemplated dismissal for lack of jurisdiction.
4 Rule 2-613(b) reads: “If the time for pleading has expired and a defendant has failed to plead as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default. The request shall state the last known address of the defendant.”
5 In fact, Mother’s filing contained a paragraph captioned “Non Military Affidavit.” The paragraph read:
Plaintiff under oath declares that Defendant, the opposing party, Jose Luis Montoya-Sandres: Is NOT in the military service of the United States; is not in the military service of any nation allied with the United States; has not been ordered to report for induction under the Military Selective Service Act; and is not a member of a reserve unit of any branch of the United States Armed Forces who has been ordered to report for active duty. The following facts support the above non-military status of the opposing party:
- Defendant Jose Luis Montoya-Sandres is a male Honduran national who lives in that country; he is not a legal permanent resident of the United States and so not qualified to enter into the United States Armed Forces, and her country is not an allied country of the United States in an international conflict. Reflecting the fact that Defendant resides in Honduras, please, see the Affidavit of Service on April 10, 2024, with attached certification of delivery of copy of the complaint and others, with English translation, filed with this Court on May 20, 2024.
