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Maryland Family Law Update is a review of events as they a ect the practice of domestic relations in law in the state of Maryland published by e Daily Record, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202.
e laws of every jurisdiction may di er, and the facts are capable of many interpretations. e contents of this publication are not to be construed as legal advice and should not be acted upon without consulting an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be accepted for publication until a er their cases have been nally decided. Address letters and comments to Editor, Maryland Family Law Update, 200 St. Paul Place, Suite 2480, Baltimore, Maryland 21202. Maryland Family Law Update and e Daily Record Company are owned by Bridgetower Media.
3 Child Advocacy: A caretaker’s dilemma: Court or my child?
An experienced attorney, Mandy found herself in a predicament: Her child’s school was delayed, her babysitter called out sick, her husband was unable to take leave from work, no friends or family were able to assist, and she had court.
4 Cover Story: When a divorce collides with a faulty tax return
In divorce proceedings and related situations where a party’s tax return is incorrect, family law practitioners can employ several tactics to advocate for a client facing divorce or marital separation.
5 In the News: Judge applies ‘best interest’
analyses for pet custody
A Rhode Island judge has issued a declaratory judgment that a woman had a superior ownership claim to a dog she adopted but allegedly shared with her ex-boyfriend.
6 Guest Column: How AI can help family law attorneys
Family law practitioner Morgan E. Foster offers a few ways AI can assist family law attorneys in enhancing their practice and providing better service to their clients.
7 Monthly Memo
The Massachusetts Supreme Judicial Court has upheld the denial of long-term Medicaid benefits requested by an applicant whose spouse refused to disclose her financial resources. ... The first ombudsman of West Virginia’s heavily burdened foster care system has resigned. … A Providence, Rhode Island, man has sued his estranged wife for violating federal and state law by allegedly recording the conversations he had with third parties in his home office. … A daughter of actors Angelina Jolie and Brad Pitt filed paperwork to legally remove “Pitt” from her name on the day she turned 18. … School districts in California would be barred from requiring teachers to notify parents if their child asks to go by a new pronoun at school under a bill the state Legislature is weighing amid legal battles over the rights of parents and gender-nonconforming students.
Child Advocacy
A caretaker’s dilemma: Court or my child?
An experienced attorney, Mandy found herself in a predicament: Her child’s school was delayed, her babysitter called out sick, her husband was unable to take leave from work, no friends or family were able to assist, and she had court.
She knew her court appearance would be short that morning as the case was being postponed, so, out of necessity, she took her son to court with her.
She arrived early, giving her plenty of time to check in with the state’s attorney assigned to her client’s case and talk to her client.
As she was about to enter the courtroom with her son, the bailiff stopped her.
Mandy explained:
“The bailiff stopped me and advised my son could not come in. I asked why and explained that I simply needed to check in with the state.”
The bailiff responded that the court had a blanket policy that children could not enter the courtroom and that I was not even permitted to bring in my son before the judge took the bench.
Mandy explained to the bailiff her dilemma, one with which many mothers are all too familiar.
She informed the bailiff that she would neither be leaving her 5-year-old son unattended in the hallway of the district court, nor would she be leaving her client without counsel.
The bailiff said he would notify the state’s attorney that she was in the hallway, but that finding a solution was not his problem.
Mandy then spoke with the bailiff’s supervisor, who told her she could file a complaint, but that the policy was to bar children from the courtroom and that her son would not be allowed inside.
Fortunately, a victim witness coordinator appeared in the hallway and advised that Mandy’s case would be
MARINER ASHLEY M.
Child Advocacy
called first.
Mandy was permitted to enter the courtroom but was told to sit her young son in the back of the large and crowded courtroom, by himself.
Mandy refused and instead sat him close to her in the second row.
Mandy thereafter filed a complaint as the bailiff’s supervisor had suggested.
She wrote a letter to the chief judge for the District Court of Maryland, Judge John P. Morrissey, detailing her experience.
Morrissey wrote back that the actions Mandy experienced “were directly contrary to the presumption of openness of all court proceedings that is fundamental in the District Court.”
He continued, recognizing her letter “… highlighted the need … remind and re-emphasize to all judges and bailiffs that all individuals, including children, are permitted in the courthouses and courtrooms at all District Court locations.”
At a subsequent training, the bailiffs were informed of this directive.
Mandy’s experience demonstrated what research has shown: Mothers in all practice settings are much more likely than fathers to experience stress and burnout because of the tension between the demands of work and family/home responsibilities.
The court’s policy prohibiting children in the courtroom impacts not just attorneys who are representing clients and not just working mothers but all caregivers who might be required to be in court.
Mandy pointed out in her letter to Morrissey the probable disparate impact this policy would have on others, particularly those without the resources
for childcare:
“…(If) a victim of domestic violence brings her child with her because she is afraid to leave him at home, will she be precluded from presenting a Petition for Protective Order?
What about indigent litigants who cannot afford child care – will they be forced to choose between their children and complying with a summons?”
Despite Morrissey’s positive response, the Maryland Courts website pertaining to “Demeanor” in District Courts notes:
“It is not recommended to bring small children into the courtroom unless they are part of the case. In a situation where you have to bring a child to court, it is often best to locate him or her outside the courtroom with a responsible adult.”
At times. a child’s participation in the court proceeding is desirable or even required, as in dependency proceedings.
“A court-friendly environment (artwork, posters) and separate waiting area can contribute to helping the child feel safe, and that can ensure that attending court is a positive experience,” according to the American Bar Association.
There are several courts in Maryland, for example, courts in Prince George’s, Carroll, and Montgomery counties, that provide waiting areas for children, allowing parents or caregivers to attend to court without the worry of how to provide care for their child.
Mandy’s response to her experience brought positive change that will impact others finding themselves without child care and needing access to Maryland’s District courts.
Hopefully, a caregiver required at court, as an attorney, a witness, or a litigant, will no longer face Mandy’s dilemma and no longer will a child feel unwelcomed in any Maryland court.
Ashley M. Mariner is a chief attorney at Maryland Legal Aid.
When a divorce collides with a faulty tax return
B
y Rachel Konieczny RKonieczny@TheDailyRecord.com
OCEAN CITY — In divorce proceedings and related situations where a party’s tax return is incorrect, family law practitioners can employ several tactics to advocate for a client facing divorce or marital separation.
Michael March, attorney and director at Frost Law, whose practice includes handling criminal and civil tax controversies and litigation, said counsel for clients in divorce or marital separation proceedings typically begin to determine spousal assets by examining ‘objective’ source documents such as the client’s home and any retirement accounts.
However, where either the client’s or their spouse’s tax returns are incorrect, March said, lawyers have a number of options.
Counsel could use backup documentation — such as bank statements — to conduct what is known as a “bank deposit analysis” or a “bank reconciliation” and determine where money is going.
“Often, people come into a divorce, and they don’t know that they have tax debts,” said March during a presentation at the Maryland State Bar Association’s legal summit earlier this month. “Not only do (clients) come in and not know that (they) have tax debts, but the bigger issue is what do these numbers look like.”
After examining bank records and reconciling tax returns, March said, he then inspects wage and income transcripts, such as 1099 and W-2 forms, as well as Schedule C forms if applicable.
“It’s a plethora of information at your fingertips that can be obtained immediately without ever talking to anybody,” March said.
In situations where a client does not have source documentation or “receipts,” as March said, lawyers can conduct a Cohan analysis — a rule stemming from a 1930 tax case that determined courts may estimate the amount of deductible expenses in some circumstances — or trace the money by performing a bank deposit
analysis. For businesses that operate in cash, March said, lawyers should examine point-of-sale records.
But where a party to a divorce or marital separation proceeding has an inaccurate tax return that could lead to a criminal prosecution, March said, a voluntary disclosure could be one solution.
March described voluntary disclosures as similar to a settlement negotiation, where the information a client provides cannot be used against them, although a “derivative use” — such as where an entirely different level of malfeasance or a different crime — is not barred.
A client who decides to voluntarily disclose a tax return error undergoes what “is basically a voluntary audit,” March said, where the Internal Revenue Service or a state-level agency will pull bank statements and tax returns. In return, the client is not prosecuted, but the client must pay back all taxes, and will receive a fraud penalty.
Ultimately, voluntary disclosures allow family law attorneys to operate freely, March said.
“The whole goal is don’t use a family law case to help (IRS criminal investigators) build their case against your client,” March said, noting disclosure is a mone-
tary consideration as to the client’s level of risk aversion. “But, if you’re inside of a voluntary disclosure, you don’t have to really worry about that. You can go after the alimony, you can successfully litigate (or) negotiate on your client’s behalf.”
To be eligible to enter the IRS’ voluntary disclosure program, March said, individuals must come in with “clean hands” and cannot have other related investigations pending.
“You have to make sure that you’re providing information that is otherwise not known,” March added.
March also highlighted another tax-related civil function, to be used when one spouse has a malfeasance and one spouse does not.
“Innocent spouse relief” pushes tax debt from one person to another, March said, also noting that the IRS only uses a marital separation agreement as one piece of evidence in their investigation and does not treat the agreement as determinative.
In any case, March said, determinations of alimony by a judge is “incredibly subjective,” and tax returns are similar in that regard.
“There’s always a level of subjectivity, or gray, in tax returns,” March said.
MSBA/Maximilian Franz
Michael March, attorney and director at Frost Law, presents an overview of divorces, alimony and marital separation agreements as they relate to tax law during a discussion earlier this month at the MSBA’s annual Legal Summit in Ocean City.
Judge applies ‘best interest’ analyses for pet custody
By eRic T. BeRKman BridgeTower Media
A Rhode Island judge has issued a declaratory judgment that a woman had a superior ownership claim to a dog she adopted but allegedly shared with her ex-boyfriend.
Plaintiff Haley Bunker adopted Brandy, a Basenji-Pitbull mix, from a North Kingstown, Rhode Island, shelter in 2019. Brandy apparently spent time both with Bunker in Rhode Island and her then-boyfriend, defendant Nicholas Boyd, who lived with his parents in Connecticut.
Following their breakup in early 2023, Brandy apparently shared time with both parties but in 2023 began spending more time with Boyd due to medical treatment Bunker was undergoing.
After Boyd refused to return Brandy in June 2023, a District Court judge denied Bunker’s request of a writ of replevin and ruled that Brandy could remain with Boyd.
Superior Court Judge Kevin F. McHugh reversed on appeal.
“Because Ms. Bunker has more time to spend with Brandy and because she was heavily involved in Brandy’s health and veterinary care decisions, this Court finds that Ms. Bunker has shown by a fair preponderance of the evidence that having ownership over Brandy is in the best interest of both Ms. Bunker and Brandy,” McHugh wrote, awarding Bunker immediate possession of the pet.
The 31-page decision is Bunker v. Boyd
Bunker and Boyd began dating during the summer of 2018. They apparently never lived together over the course of their relationship.
At the time of Brandy’s adoption, Bunker was residing in Warwick and Boyd was living in Connecticut.
Bunker, who apparently suffers from a seizure disorder, had a 12-year-old Wheaton Terrier mix named Mally at the time of Brandy’s adoption. She wanted to adopt another dog for the aging Mally to train in alerting Bunker for seizures,
and she also wanted another dog to ease the transition should Mally pass away.
Though Bunker was ultimately unable to transfer such training to Brandy, the dog still became a beloved companion.
According to Boyd, during the lead-up to Brandy’s adoption, he and Bunker had discussed adopting a dog together. Bunker, however, said that while they discussed the idea of adoption, the discussion did not involve joint adoption.
In February 2020, the couple ended their dating relationship.
According to Boyd, he immediately took Brandy with him and kept her for the next three or four weeks until he and Bunker agreed to a time-share arrangement.
Bunker claimed she only allowed the arrangement because she knew Boyd and Brandy loved each other and wanted to be able to spend time together.
As for the arrangement itself, Bunker claimed Brandy spent a majority of the time with her in 2020 and 2021 and half the time with her in 2022. She also claimed that while Brandy spent significantly more time with Boyd in 2023, it was only because she was undergoing chemotherapy, and it was easier to keep Brandy with Boyd than it would have been to find a dog sitter.
Regarding Brandy’s veterinary care,
Bunker claimed that she took Brandy to all appointments and attested that Boyd would sometimes meet her depending on his schedule. Boyd said he attended almost all appointments.
In his findings, McHugh noted a lack of Supreme Court guidance on how to analyze actions regarding ownership of pets.
However, he also noted that the Superior Court has previously articulated two theories on how to determine pet ownership: a traditional personal property analysis articulated in the 2016 Champagne v. Higgins decision, and a “best interest of all concerned” analysis articulated in the 2012 Dubin v. Pelletier case.
“So as to not be placed in the doghouse and not wanting to bark up the wrong tree, this Court renders its decision analyzing the evidence under both a traditional ownership analysis as articulated in Dubin and a ‘best interest of all concerned’ analysis as articulated in Champagne,” the judge said.
Applying Champagne, McHugh focused on the lead-up to the adoption and the adoption itself, finding that Bunker had a superior ownership interest.
Accordingly, McHugh entered judgment for Bunker
DEPOSITPHOTOS
The dispute involved a Basenji-Pitbull mix adopted from a North Kingstown, Rhode Island, shelter in 2019.
Guest Column
How AI can help family law attorneys
We have all heard that artificial intelligence is revolutionizing various sectors, and the legal industry is no exception. Several months ago, I knew nothing about and felt intimidated by AI – but using AI is easier and more intuitive than you think.
Here are a few ways AI can assist family law attorneys in enhancing their practice and providing better service to their clients.
Helping clients communicate
We are all familiar with the phenomenon when your case is going along smoothly (all in accordance with your well-developed strategy) and then your client sends his ex a zinger by text and you feel as if all of the air was suddenly let out of the balloon.
Clients can be their own worst enemies … and most clients do not want to pay you to review every outgoing correspondence. AI can provide a solution. Clients can use AI to “scrub” or edit their outgoing communication -– keeping them in compliance with your case strategy (and improving co-parenting relationships).
For example, clients can type into an AI tool: “How can I ask my witch of an ex to stop showing up late to the damn custody exchanges.” AI tools will retype the message using civil and neutral language.
I often advise clients to ask AI tools to draft a message using William Eddy’s “BIFF” communication guidelines for parents in high-conflict cases. (BIFF stands for “brief, informative, friendly & firm” as featured in Eddy’s book, “Quick Responses to High-Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdown. )“ This can keep your case on track without running up a prohibitive bill.
Research and document review
AI can significantly streamline the labor-intensive task of legal research and document review. AI-powered tools can expedite the usually time-consuming task of sifting through case law, statutes, and legal precedents by quickly analyzing vast
KARENA DIXON
Morgan E. Foster
amounts of legal data and identifying relevant information.
For instance, AI algorithms can scan documents for pertinent legal issues and suggest applicable precedents, saving attorneys time and reducing the likelihood of human error.
Administrative tasks
Family law attorneys (who are more likely to be solo practitioners or at smaller firms) often juggle numerous administrative tasks that consume valuable time. AI can automate many of these routine tasks, such as scheduling meetings, managing client communications, and generating standard legal documents like basic divorce pleadings and parenting plans.
It’s possible to ask your favorite AI tool to draft something in compliance with Maryland Law (or to track the language of a particular statute). In most AI tools, you can also upload your forms so that the tool will use your own language as the basis for certain agreements.
AI tools are fairly well equipped to perform many tasks historically assigned to paralegals or administrative staff. Tools like “chatbots” can handle initial client queries and gather essential information, allowing attorneys to focus on more complex aspects of their cases.
Decision-making and settlement analysis
AI can aid attorneys in making more
informed decisions by providing comprehensive data analysis and scenario planning. For example, in divorce cases involving complex asset division, AI can analyze financial data to suggest equitable distribution strategies. Similarly, in custody cases, AI can assess various factors to recommend arrangements that serve the best interests of the children involved.
AI can quickly generate various alternative custody calendars or reduce a spousal support award to present value. These tools can even be used “in real time” during client meetings (or mediation) to analyze certain settlement scenarios.
Conclusion
While AI offers numerous benefits, of course human judgment and ethical standards remain paramount in making final decisions and providing compassionate legal counsel. There are many ways AI can increase the value family law attorneys are able to provide relative to the cost of the case – especially when AI is used under the supervision of our collective professional experience.
AI will never replace our legal judgment, but clients will get more bangfor-their-buck if we can learn how to effectively leverage AI to improve efficiencies in our practice.
AI is transforming the landscape of family law by enhancing efficiency, accuracy, and client satisfaction. Practitioners who are able to leverage AI effectively will provide greater value to their clients, even handling larger caseloads (and cutting overhead expenses) in order to improve profitability.
As AI technologies continue to evolve, their integration into family law practices will likely become increasingly essential. There are CLE’s available to teach you how to use AI in your practice, but there are also many free videos available online that may be sufficient to get you started.
Morgan E. Foster is head of the family law practice at McAllister DeTar Showalter & Walker LLC.
Benefits denied because of spouse’s financial nondisclosure.
The Massachusetts Supreme Judicial Court has upheld the denial of long-term Medicaid benefits requested by an applicant whose spouse refused to disclose her financial resources.
“Before an institutionalized spouse may receive assistance, that spouse must disclose not only her own and the couple’s joint resources, but also those resources ostensibly available only to the community spouse,” Justice Dalila Argaez Wendlandt wrote for the SJC.
“Recognizing that in some circumstances an institutionalized spouse may not be able to determine the community spouse’s resources, Massachusetts’s Medicaid program, MassHealth, offers an additional protection for applicants; specifically, pursuant to 130 Code Mass. Regs. §517.011 (2017) (regulation), if the community spouse ‘refuses to cooperate’ or if that spouse’s ‘whereabouts [are] unknown,’ MassHealth nonetheless will provide benefits to the institutionalized spouse even if the couple’s combined resources cannot be calculated,” Wendlandt wrote.
The SJC found that the “refusal to cooperate” standard was not satisfied in this case.
The 31-page decision is Freiner v. Secretary of the Executive Office of Health and Human Services, et al.
BridgeTower Media
West Virginia’s first ombudsman for ailing foster care system resigns
The first ombudsman of West Virginia’s heavily burdened foster care system has resigned.
Pamela Woodman-Kaehler’s resignation took effect June 6, the state Department of Health announced in a statement. WoodmanKaehler said she was “choosing to pursue a new opportunity,” but did not provide more details.
The ombudsman position was created by the state Legislature in 2019 to help investigate complaints and collect data about the state’s foster care system. Largely overwhelmed by the opioid epidemic in a state with the most overdose deaths per capita, West Virginia also has the highest rate of children in foster care — currently more than 6,000 in a state of around 1.8 million.
The state is facing a massive ongoing class-action lawsuit filed on behalf of foster
Monthly Memo
care children in 2019. The suit alleged that children’s needs were going unmet because of a shortage of case workers, an overreliance on institutionalization and a lack of mental health support.
In 2023, state lawmakers passed a law expanding and specifying the foster care ombudsman’s duties because they were concerned about her ability to independently investigate deaths, abuse and neglect involving children and the juvenile justice system.
Associated Press
Husband sues wife for federal, state wiretap violations
A Providence, Rhode Island, man has sued his estranged wife for violating federal and state law by allegedly recording the conversations he had with third parties in his home office.
Antonio Fortes filed his four-count complaint against Donna Fortes in U.S. District Court on June 11.
“In or about May or June 2023, Defendant knowingly left her cell phone in recording mode in Plaintiff’s office within the parties’ marital home,” the complaint in Fortes v. Fortes state. “Defendant did so purposely and with the intention of recording Plaintiff’s private oral conversations with third parties while she was not at home.”
Although the complaint states that Donna Fortes now lives in Warwick and makes mention of ongoing divorce proceedings, the plaintiff alleges he and the defendant were lawfully married and lived together at all times relevant to the allegations in the complaint.
The plaintiff first alleges the defendant intercepted oral communications in violation of 18 U.S.C. §2511.
Likewise, the plaintiff alleges the defendant violated the state wiretap statute, both by unlawfully intercepting his communications and disseminating those recordings to others. Other counts allege invasion of privacy and a claim against his wife for civil liability for criminal conduct.
BridgeTower Media
Daughter of Jolie and Pitt files to remove father’s last name
A daughter of actors Angelina Jolie and Brad Pitt filed paperwork to legally remove “Pitt” from her name on the day she turned 18.
Shiloh Nouvel Jolie-Pitt submitted a
petition in Los Angeles County Superior Court on May 27 to change her name to Shiloh Nouvel Jolie, the Los Angeles Times reported.
The third-eldest of the former couple’s six children was born in Swakopmund, Namibia, on May 27, 2006. The siblings also include Maddox, Pax, Zahara and twins Knox and Vivienne.
Shiloh, who performs as a voice actor in the film “Kung Fu Panda 3,” is the first of the siblings to file a petition for a legal name change, but some of the other children have dropped public use of their father’s last name in recent years, the Times reported.
Angelina Jolie filed for divorce from Pitt in September, but the details of the divorce have not yet been finalized.
California Senate OKs ban on requiring schools to notify parents of child’s pronoun change
School districts in California would be barred from requiring teachers to notify parents if their child asks to go by a new pronoun at school under a bill the state Legislature is weighing amid legal battles over the rights of parents and gendernonconforming students.
The state Senate earlier this month approved the proposal, which would ban school districts from passing or enforcing policies requiring school staff to disclose a student’s gender identity or sexual orientation to anyone else without the child’s permission, with some exceptions. The goal is to protect students whose safety could be threatened if they live in unwelcoming households.
Lawmakers approved the legislation along party lines after more than an hour of an emotional debate in which Democratic LGBTQ+ senators recounted stories about how they delayed coming out to their parents or were outed by someone else. But Republican lawmakers said the state shouldn’t dictate whether school districts can enforce so-called parental notification policies and that schools have an obligation to be transparent with parents.
The bill now heads to the state Assembly, where it would need to pass in committees and on the floor before it can reach the desk of Democratic Gov. Gavin Newsom, whose administration has fought school boards over the notification policies.
Associated Press
Associated Press
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE COURT OF SPECIAL APPEALS: FULL TEXT UNREPORTED OPINIONS
The Appellate Court affirmed the Harford County Circuit Court’s order requiring the parents to install the Life360 application on their phone, so that each parent would know the whereabouts of the other parent while the child was in their care and custody. The court’s order addressed security concerns regarding the child’s whereabouts, it was limited in scope and clearly addressed the child’s best interests.
FULL LEGAL CUSTODY; MINOR; BEST INTERESTS
In re: A.R.
No. 1389, September Term 2023
Argued before: Graeff, Nazarian, Eyler, James (retired; specially assigned), JJ.
Opinion by: Nazarian, J.
Filed: May 14, 2024
The Appellate Court affirmed the Baltimore County Circuit Court’s transfer of full legal custody of a nine-year old minor to father. The mother was presently unfit to care safely for the minor; father was ready, willing, and able to undertake the care and custody of the minor and transferring custody to father was in her best interest.
ABSOLUTE DIVORCE; ANSWER; DEFAULT
Tiffany Bynum v. Kimothy Bynum
No. 1296, September Term 2023
Argued before: Graeff, Arthur, Eyler, James (retired; specially assigned), JJ.
Opinion by: per curiam
Filed: May 13, 2024
The Appellate Court affirmed the Prince George’s County Circuit Court’s judgment of absolute divorce. Although a party alleged her attorney did not file her answer on time, failed to include all the required information in that answer, failed to attend the hearing on the other party’s motion for order of default, failed to file a motion to vacate the order of default, and generally failed to advise her on the progress of her case, in the absence of any claim of error by the trial court, the judgment must be affirmed.
The Appellate Court affirmed the Anne Arundel County Circuit Court’s resolution of child support and reimbursement of medical expenses issues between the parties regarding twins resulting from an affair.
The Appellate Court affirmed the Montgomery County Circuit Court’s award of primary physical custody and tie-breaking authority of the parties’ minor child to the father. The circuit court carefully evaluated the appropriate factors, made factual determinations based on the testimony and evidence presented and detailed its findings.
The Appellate Court affirmed the Montgomery County Circuit Court’s modification of child custody between father and mother. The circuit court properly considered the best interests of the children, did not err in alternating summer access and refusing to award FaceTime access, did not err in finding mother credible, and did not improperly prevent father from admitting evidence at trial.
TERM SHEET; UNAMBIGUOUS; PAROLE EVIDENCE
Jeffrey Bohling v. Jennifer Segree
No. 372, September Term 2022
Argued before: Reed, Beachley, Zic, JJ.
Opinion by: Reed, J.
Filed: Apr. 29, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s order that a Final Agreement Term Sheet executed between the parties, regarding distributions of the husband’s restricted stock units and performance stock units, was unambiguous and its decision declining to consider parol evidence of the parties’ intent.
TERMINATION OF PARENTAL RIGHTS; EXCUSABLE NEGLECT; MISTAKE
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the mother’s parental rights after she failed to timely object to the Baltimore City Department of Social Services’ petition. Although the mother later moved to vacate the termination order, she failed establish excusable neglect or mistake.
The Appellate Court affirmed the Baltimore County Circuit Court’s award of custody and guardianship of the minor child to his maternal aunt and uncle. However the circuit court erred when it failed to establish the “minimal level of appropriate contact” between the child and mother and instead stated it shall be “arranged between the parties.”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s judgment of divorce but vacated its monetary, alimony and attorney’s fees awards.
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
Wife and Husband were married on April 5, 1997. The parties’ only child was born to them on July 12, 2004.
During the parties’ marriage but prior to the birth of their child, Wife worked full- time in the fields of graphic design and marketing and earned an annual salary of around $50,000. When Wife became pregnant, the parties agreed that Wife would stop working, stay at home with their child, and be primarily responsible for raising their daughter, which Wife did. Wife did not begin working again until the Fall of 2018, when the parties’ daughter started high school, and Wife began working as a librarian assistant at Bates Middle School.
The Circuit Court for Anne Arundel County entered a judgment granting James Messina (“Husband”) and Margaret Messina (“Wife”) an absolute divorce after 23 years of marriage. In the judgment, the court granted to Wife, among other things, a monetary award, a monthly alimony award for three years, and attorney’s fees. Both parties appeal the judgment. Wife raises the following questions,1 which we have rephrased for clarity:
1. Did the circuit court err in its monetary award because it failed to: A) determine whether certain items were marital or non-marital property, the value of those items, and the method of payment of the award, and/or B) include Husband’s unvested and/or unexercised, restricted stock grants and deferred compensation awards?
2. Did the circuit court err in its alimony award because it failed to: A) include Husband’s deferred compensation and unvested, restricted stock grants as income to Husband and/or B) grant Wife indefinite alimony?
3. Did the circuit court err in awarding Wife $7,500 in attorney’s fees? Husband raises one question on appeal,2 which we have rephrased for clarity: Did the circuit court abuse its discretion when it included the equity of the parties’ marital home in calculating the monetary award when it orally stated it would not?
For the following reasons, we shall affirm the circuit court’s judgment of divorce but otherwise vacate the court’s judgment regarding its monetary, alimony, and attorney’s fees awards and remand for further proceedings consistent with this opinion.
Husband was the primary breadwinner for the family. He started a fishing supply business shortly after the parties married that he continued until 2010. About two years after they were married, he began working full-time for Exponent, Inc., a publicly traded engineering and scientific consulting company, in Washington D.C. He rose through the ranks to become the Principal Scientist Center Director for the company. Although the parties lived “modestly” at the beginning of their marriage, as Husband’s income increased, their standard of living increased. Around 2012, the couple bought a five-bedroom, 3,500 square foot house in Annapolis.
In 2003, about six years after they were married, Husband was gifted a 1/4 interest in a less than an acre lot in Wilcox, Pennsylvania. The parties drew a home equity line of credit in the amount of $84,300, on their marital home, to purchase a mobile home for the property. Around 2016, the parties bought a 9.3-acre unimproved lot next to the property for $20,000 (together with the inherited lot, the “Pennsylvania Property”).
On November 10, 2018, after 21 years of marriage, the parties separated. The parties had engaged the services of a marriage counselor a year earlier to no avail. Shortly after moving out of the marital home, Husband bought a house in Annapolis. On January 24, 2020, Husband filed a complaint for absolute divorce in the Circuit Court for Anne Arundel County, and Wife subsequently filed an answer and a counter complaint for absolute divorce.3
Following a pendente lite hearing in September of 2020, Wife was granted use and possession of the marital home, and Husband was ordered to pay the mortgage, utilities, and other bills associated with the upkeep of the home. Husband was also ordered to pay Wife $30,000 in attorney’s fees and $1,000 a month in undifferentiated alimony and child support.
A three-day trial was held in June of 2021 on the issues of child support, a determination and distribution of the parties’ property, an alimony award, and attorney’s fees.4 At the time of
trial, Husband was 52 years old, and Wife was 50 years old. Nine witnesses testified at trial, including, among others: Husband, Wife, and the parties’ experts on assessing Husband’s income and Wife’s post-divorce earning capacity.
In addition to significant disagreements about the parties’ incomes and future incomes, the parties disagreed about the status of their property, whether it was marital or non-marital, and the value of their property. The parties admitted into evidence their Joint Statement of Marital Property pursuant to Md. Rule 9-207 (the “9-207 Statement”). Of the 53 items listed, the parties agreed that 31 items were marital property and disagreed as to 19 items, and they disagreed as to the value of many of the items listed. At the conclusion of trial, the parties submitted memoranda of proposed findings of fact and conclusions of law. Husband proposed that Wife receive $1,738 a month in child support; $2,500 a month in alimony for three years; a monetary award of $1,250,931; and no attorney’s fees. Wife proposed that she receive $5,155 per month in child support; $7,000 a month in indefinite alimony; a monetary award of $488,980, plus a portion of Husband’s unvested stock grants and deferred compensation awards on an “if, as, and when” basis; and $19,651 in attorney’s fees.
On August 10, 2021, the circuit court issued its oral opinion from the bench, stating several times that this was “not a complicated case.” The court granted the parties an absolute divorce based on a one-year separation. The court directed that the marital home be sold after the use and possession period, with the net proceeds to be divided equally between the parties. After briefly considering the parties’ Pennsylvania property and stating that it would not consider Husband’s “unvested property,” the court awarded to Wife: 1) $2,500 a month in child support; 2) $1,458,676 as a monetary award; 3) $4,000 a month for three years in rehabilitative alimony; and 4) $7,500 in attorney’s fees. The court added that Husband could decide how to pay the monetary award, which was due within 90 days of the court’s order.
On March 25, 2022, the circuit court signed a Judgment of Absolute Divorce largely reflecting its oral ruling from the bench.5 The parties filed post-divorce motions, which the court denied following a hearing. Both Wife and Husband timely noted their appeals. We shall provide additional facts below to address the questions raised.
DISCUSSION
STANDARD OF REVIEW
When reviewing a circuit court’s determination regarding a monetary award or alimony, we review on appeal the circuit court’s factual findings for clear error and the ultimate award for an abuse of discretion. See Richards v. Richards, 166 Md. App. 263, 271-72 (2005) (standard of review for monetary awards); Malin v. Mininberg, 153 Md. App. 358, 414-15 (2003) (standard of review for alimony awards). We review legal questions without deference. Elderkin v. Carroll, 403 Md. 343, 353 (2008). These standards of review also apply to an award for attorney’s fees. Henriquez v. Henriquez, 185 Md. App. 465, 475-76 (2009), aff’d, 413 Md. 287 (2010).
In reviewing factual findings, we “give due regard to the
opportunity of the [circuit] court to judge the credibility of the witnesses.” Md. Rule 8-131(c). We decide whether the circuit court’s factual findings are supported by substantial evidence in the record. Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000). “When the [circuit] court’s findings are supported by substantial evidence, the findings are not clearly erroneous.” Id. A circuit court abuses its discretion 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). See also North v. North, 102 Md. App. 1, 14 (1994) (stating that a decision is an abuse of discretion when it is “well removed from any center mark imagined by the reviewing court”). What constitutes the proper use of discretion necessarily turns “on the particular facts of the case [and] the context in which the discretion [i] s exercised.” King v. State, 407 Md. 682, 696 (2009) (quotation marks and citation omitted).
I. Monetary award
Wife argues on appeal that the circuit court erred in its monetary award for two reasons. First, the court failed to follow the three-step process for monetary awards, specifically: determining what was marital and non-marital property, the value of the property, and the method of payment of the monetary award. Second, Wife argues that the circuit court erred when it failed to include in the monetary award an ownership interest in Husband’s unvested and/or unexercised, restricted stock grants and deferred compensation awards. Husband responds that, contrary to Wife’s argument, the circuit court properly determined what property was marital and nonmarital, valued all the property, and properly allowed him to use any method to pay Wife, so long as he did so within 90 days of the order. Husband further responds that, at Wife’s request, the court considered his stock awards as income, not as marital property.6
A.
Law on monetary awards
Maryland’s Marital Property Act authorizes a circuit court to enter a monetary award, which is a payment from one spouse to another. See Md. Code Ann., Family Law Article (“FL”) §§ 8-201–214. In granting a monetary award, the court is permitted “to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage,” if strictly divided according to the statute. Abdullahi v. Zanini, 241 Md. App. 372, 406-07 (2019) (quotation marks and citations omitted). This reflects the legislation’s purpose “to achieve equity between the [parties] where one spouse has a significantly higher percentage of the marital assets titled [in] his name.” Hart v. Hart, 169 Md. App. 151, 160 (2006) (quotation marks and citation omitted). The party asserting a marital property interest in specific property is required to produce evidence regarding that property and the value of that property. Murray v. Murray, 190 Md. App. 553, 570-71 (2010) (citations omitted).
When determining whether to grant a monetary award, our statute requires a circuit court to engage in a three-step process.
See FL §§ 8-202–205. First, the court “shall” determine whether property is marital or non-marital. FL § 8-203(a). Second, the court “shall” determine the value of all marital property, except the court “need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan” but may determine those benefits on an ‘“if, as, and when’ basis[.]” FL § 8-204. These first two steps are “mandatory” and cannot be skipped. Campolattaro v. Campolattaro, 66 Md. App. 68, 78 (1986). See also Randolph v. Randolph, 67 Md. App. 577, 585 (1986) (noting that the characterization of property as marital or non-marital “must appear in the record”). Third, the court “shall” determine the amount and method of payment of a monetary award, specifically determining whether to transfer ownership of an interest in certain property from one party to the other, grant a monetary award, or both. FL § 8-205(a)–(b). In determining a fair and equitable award and the method of payment or the terms of a transfer of ownership of an interest, the court circuit “shall” consider the 11 statutory factors set forth in FL § 8-205(b). See Otley v. Otley, 147 Md. App. 540, 547 (2002) (stating that in the third step, the court may transfer ownership interests, grant a monetary award, or both, and in determining the amount and method of payment of an award, the court shall consider the factors in FL § 8-205(b)).
B. Trial facts on monetary award
In the parties’ joint 9-207 Statement, the parties set forth their understanding as to the marital or non-marital nature of their property and assigned values to the property. As stated above, of the 53 items listed, the parties agreed that 31 items were marital property, and disagreed as to 19 items, and they disagreed on the value of many of the items listed.
At trial, the parties elicited evidence on every one of the items listed in their 9-207 Statement. Specifically, as reflected in their joint 9-207 Statement, Husband argued at trial that the vested portion of his restricted stock awards was marital property and the unvested portion was non-marital property, while Wife argued that both were marital because they were acquired during their marriage. Likewise, as reflected in their 9-207 Statement, Husband argued at trial that the vested portion of his deferred compensation accounts was marital property and the unvested portion was non-marital, while Wife argued that both were marital property. Additionally, the parties introduced competing evidence and appraisals on the Pennsylvania Property, with Husband’s appraisal valuing the inherited lot at $105,000, and the unimproved lot at $20,000 and Wife’s appraisal valuing the Pennsylvania Property at $150,000, and the unimproved lot at $24,000. The parties had drawn a $84,300 home equity line of credit to purchase a mobile home for the property.
At the conclusion of the evidentiary portion of trial, the court began its monetary award analysis, stating many times that “this is not a complicated case.” The court stated:
Trial judges don’t really appreciate 902 -- 9-207 statements. It’s got to be listed; buckets of coins, shotguns st time-consuming and wasteful. And I’m sure the attorneys probably had to delve into all of that, working this case up, getting it ready for trial. But as I look at the 9-207, Paragraphs
1 through 31, there’s really no dispute among the parties on basically any of it.
The court then spoke briefly on only three items of property. As to the marital home, the court ordered the proceeds of its sale to be divided equally between the parties, “so I’m factoring that out of that list.” As to the Pennsylvania Property, the court stated that because Wife had not provided “any value” for the Pennsylvania Property, the court was obligated to accept Husband’s value of $20,000, which it would divide equally between the parties, with Husband paying the home equity loan from his 1/2 of the proceeds from the marital home. As to Husband’s deferred compensation accounts, the court rejected Wife’s request to include Husband’s unvested portions in its award but awarded half of the vested portion of one of Husband’s deferred compensation plans to Wife.
Then, without any further reference to the parties’ property and while advising the parties not to “rely on my mathematics as being totally accurate,” the circuit court made the following determinations:
1. Husband’s marital property in his name only totaled $2,743,398, and his property totaled $21,659;
2. Wife’s marital property in her name only totaled $247,494, and her property totaled $2,752; and
3. Joint marital property in both names, excluding marital home, totaled $393,421.
The court added together the parties’ individual marital property values ($2,743,398 and $247,494) for a total marital property value of $2,962,920.7 The court added to that number the parties’ joint marital property ($393,421), for a grand total marital property value of $3,356,341.
Without any further explanation, the court then determined the following awards to Wife: 1) child support of $2,500 a month; 2) a monetary award of $1,458,676 (half of the total marital property less Wife’s sole property); 3) rehabilitative alimony of $4,000 a month for three years; and 4) attorney’s fees of $7,500.
As to how Husband would pay for the monetary award, the court stated: “I don’t care how he pays it. I don’t think I have to specify that. All I know is the total amount goes to her within 90 days[.]” The court then addressed each of the 11 factors in FL § 8-205(b).
The court made the following findings: 1) as to the monetary and non-monetary contributions of each party to the well-being of the family, the court found that Husband contributed more financially and Wife made more non-monetary contributions; 2) as to the value of the parties’ property interests the court stated, “I think I just analyzed [the value of all the parties’ property interests] the best I could”; 3) as to the parties’ economic circumstances, the court stated, “Husband has many more assets in his name than the Wife prior to the marital award”; 4) as for the reasons for the dissolution of the marriage, the court found that the parties simply grew apart; 5) the court noted that the parties lived together and were married for 21 years before separating and 23 1/2 years before divorcing; 6) the court noted that Husband was 52 years old and Wife was 50 years old; 7) the court noted that the parties had no mental or physical issues; 8) as to how and when the parties acquired their marital property, the court found that most of the parties’ property was acquired
with marital funds; 9) as to the marital home, the court stated that it will be sold at the conclusion of Wife’s use and possession period; 10) as to consideration of any other award ordered, the court said it would consider Wife’s alimony award; and 11) as to any other factor, the court stated there were no additional factors to consider in determining the monetary award.
The circuit court entered a written order several months later, largely reflecting its oral ruling from the bench. After addressing a few additional items of property,8 the court restated the award amounts9 and ordered Husband to pay Wife’s monetary award within 90 days “in any fashion or manner he chooses (i.e. QDROs, transfers from brokerage accounts, cash, etc.)[.]”
C.
Wife’s first argument: the circuit court erred in failing to follow the statutory three-step process in determining monetary awards
Wife argues that the circuit court was required to but failed to resolve whether the following items were marital or nonmarital property: 1) Husband’s fishing equipment; 2) Husband’s Mossberg 12-gauge shotgun; 3) Husband’s Franchi 12-gauge gun; 4) Husband’s restricted stock awards; and 5) Husband’s deferred compensation accounts.10 Additionally, Wife argues that the circuit court was required to but failed to resolve the parties’ differing values as to the following items: 1) several items of personal property, including the personal property in the marital home and Husband’s house, Wife’s vase collection, and Husband’s fishing equipment; 2) Husband’s firearms, including his Mossberg and Charles Daly shotguns, Franchi gun, Smith & Wesson 40 caliber handgun, and additional unspecified firearms; 3) Husband’s house; 4) Husband’s restricted stock awards; and 5) Husband’s deferred compensation accounts. She also argues that the court incorrectly valued the Pennsylvania Property. Lastly, Wife argues that the circuit court failed to state how the monetary award was to be paid and wrongly allowed Husband to make that determination.
We agree with Wife that the circuit court’s failure to provide clarity in its monetary award constitutes reversible error. See Paradiso v. Paradiso, 88 Md. App. 343, 352 (1991) (vacating monetary award because the trial court failed to classify and value the parties’ “home furnishings”); Holston v. Holston, 58 Md. App. 308, 318-19 (1984) (concluding that the failure to include and value certain property as marital property constitutes error). Here, the circuit court failed to determine the marital or non-marital status of certain property and their values. By assigning “total values” to the parties’ marital and non- marital property, we also have no way of knowing which items comprised those totals and the value of those items. For example, although the parties agreed that the vested portions of Husband’s restricted stock grants and deferred compensation awards were marital property, we cannot tell whether the court included those in its monetary award. Moreover, contrary to the court’s finding, the parties entered competing values for the Pennsylvania Property in their 9-207 Statement and on their competing appraisals, which were introduced at trial.
Lastly, the court’s failure to determine how the award was to be paid and allowing Husband to make that decision constituted error. See Scott v. Scott, 103 Md. App. 500, 517 (1995) (vacating
a monetary award, in part, because the circuit court was silent as to how the award was to be paid, and although a circuit court has discretion to determine the method of payment, the court must determine the method). That a court is presumed to know the law and apply it correctly, see Bangs v. Bangs, 59 Md. App. 350, 370 (1984) (stating that a judge “is not required to articulate every step in his thought processes[ and] is presumed to know the law and to properly apply it”), does not excuse the court’s failure to engage in the required three-step process. Accordingly, we shall reverse the circuit court’s monetary award and remand for further proceedings consistent with this opinion.
D.
Wife’s second argument: the circuit court erred in its monetary award when it refused to include Husband’s unvested, restricted stock grants and deferred compensation accounts
Wife argues that the circuit court abused its discretion by failing to consider Husband’s unvested, restricted stock grants and deferred compensation accounts in determining its monetary award, and in failing to transfer an ownership interest in those assets to her on an “if, as, and when basis.” Husband responds that, at Wife’s request, the circuit court considered the stock grants as income, not property.11
Deferred compensation ‘“generally refers to money which, by prior arrangement, is paid to the employee in tax years subsequent to that in which it is earned.”’ Klingenberg v. Klingenberg, 342 Md. 315, 328 (1996) (quoting Michael J. Canan, Qualified Retirement and Other Employee Benefit Plans § 1.6 (West 1994)). “‘[R]estricted stock option plans . . . are a form of employee compensation, providing to the employee the right to accept within a prescribed time period and under certain conditions the corporate employer’s irrevocable offer to sell its stock at the price quoted.’” Otley v. Otley, 147 Md. App. 540, 549 (2002) (quoting Green v. Green, 64 Md. App. 122, 136 (1985)).
In Maryland, we have rejected the distinction between employee benefits that have vested and those that have not. [T]he fact is that the concept of vesting, though embodied in the retirement plan document itself, really has little meaning from the standpoint of the ultimate decision which must be made under the marital property act. Our equitable distribution statute requires that property acquired during marriage be subject to equitable distribution upon divorce. There is no requirement of vesting. In the final analysis, one must determine whether a property right has been acquired during the marriage and whether equity warrants its inclusion in the marital estate in light of its limitations. If deemed includable, the court must mold its judgment to assure a fair allocation of that right.
Deering v. Deering, 292 Md. 115, 127 (1981) (cleaned up). See also id. at 123 (holding that a spouse’s pension accumulated during the marriage constitutes marital property whether vested or unvested, matured or unmatured, noting that “pension benefits have become an increasingly important part of an employee’s compensation package”); Otley, 147 Md. App. at 549-52 (holding that unvested and unexercised stock options
were marital property subject to distribution because the option was acquired during the marriage, even though husband had to continue to work in the future for a certain period of time). FL § 8- 204(b) provides a circuit court with the ability to distribute unvested assets on an “if, as, and when” basis.
In Green, 64 Md. App. at 131-32, a husband had a stock option plan that allowed him to purchase up to 20,000 shares of his employer’s stock, exercisable over five-year increments on each employment anniversary date, but only if husband met certain employment retention criteria. The trial court treated the stock to which husband had exercised his right to purchase as marital property and assigned a value. Id. at 132. As to the stocks where the option to exercise had not yet arrived, husband argued those stocks had not been acquired during the marriage and had no fair market value. Id. The circuit court agreed. Id. We reversed on appeal, stating that the restricted stock option plan was employee compensation. Id. at 136. Cf. Elizabeth Barker Brandt, Valuation, Allocation, and Distribution of Retirement Plans at Divorce: Where are We?, 35 Fam. L.Q. 469, 483n.48 (Fall 2001) (stating that the majority of states include nonvested retirement benefits as marital property). In valuing the stocks, we suggested using the “if, as, and when” approach instead of a valuation approach as it “has proven to be a workable method for the allocation of unmatured pensions[.]”12 Green, 64 Md. App. at 137-38.
Here, Husband received from his employer restricted stock and deferred compensation awards that the parties listed on their joint 9-207 Statement. The evidence presented at trial shows that Husband has received a stock option grant each year since 2016, and the award is divided in half between an employee bonus award and an employer matching award. The employee bonus award vests immediately, Husband testified it “is mine no matter where I am,” but Husband cannot exercise the option to sell the restricted stock for four years. The employer matching award vests after four years, during which Green, 64 Md. App. at 138. To determine the marital portion of unvested stock options, we have suggested application of a coverture fraction, “time married divided by total years of employment credited toward retirement.” Otley, 147 Md. App. at 553. time Husband must maintain employment with the company.13 Husband testified that he had never exercised the option to sell his restricted stock awards until the parties separated and he needed quick access to cash.
Husband also testified about his deferred compensation accounts: a PenCal Exponent Non-Qualified Deferred Compensation Plan (the “first deferred compensation account”) and a PenCal Special Award Plan (the “second deferred compensation account”), which began in 2020 and is the “new name” for his deferred compensation account. He testified that both accounts function the same: his company places funds into the account; the funds vest after four years, if he remains with the company; he can add outside money into the account at any time; and he can direct the investments in the account both before and after the vestment period, but he cannot withdraw money from the account until he retires or leaves the company.14 The company awarded Husband deferred compensation awards in 2012, 2013, 2015, 2018, and 2020. The circuit court never addressed Husband’s restricted
stock grants (vested or unvested, exercised or unexercised). Although Husband asserts repeatedly on appeal that the circuit court, at Wife’s request, considered the stock awards as income, not property, we cannot tell from the record before us whether this is true or not. Although the court stated that it would not consider as marital property the unvested portion of Husband’s deferred compensation accounts, it is unclear whether the court knew that it could, and, while the court stated that it would include in its monetary award the vested portion of Husband’s deferred compensation accounts, it is unclear whether the court did so. Accordingly, we shall remand the case for further proceedings. As stated above, the circuit court must determine what portion of the restricted stock grants and deferred compensation awards are marital property; the value of the property; and, after reviewing the 11 factors of FL § 8-205(b), determine an equitable and fair monetary award and method of payment.
II. Alimony
Wife argues that the circuit court erred in its alimony determination in two ways. First, the court erred when it failed to include Husband’s deferred compensation and unvested, restricted stock grants as part of Husband’s income. Second, the circuit court erred in denying her indefinite alimony. Husband responds that the circuit court did consider his stock grants as income in its alimony award, as requested by Wife.15 Husband further responds the circuit court properly explained why it rejected Wife’s request for indefinite alimony and limited alimony to three years.
A. Law on alimony
FL § 11-106(a) vests the circuit court with the discretion to determine an amount of alimony and whether alimony is for a period of time or indefinite. Although authorized by statute, alimony awards are founded upon notions of equity, which “requires sensitivity to the merits of each individual case without the imposition of bright-line tests.” Boemio v. Boemio, 414 Md. 118, 141 (2010) (quotation marks and citation omitted). In determining an alimony award, whether rehabilitative or indefinite, a circuit court “shall” consider eleven statutory factors set out in FL § 11-106(b) to reach “a fair and equitable award[.]” FL § 11-106(b). No factor is determinative or mandated to be given special weight. Whittington v. Whittington, 172 Md. App. 317, 341 (2007).
With the adoption of the Maryland Alimony Act in 1980, the function of alimony awards changed from one of maintenance of the dependent spouse’s standard of living to rehabilitation of the dependent spouse. Id. at 335. See also Boemio, 414 Md. at 142 (Maryland’s statutory preference favors rehabilitative or fixed-term alimony rather than indefinite alimony for “the purpose of alimony is not to provide a lifetime pension” but to ease the transition of the parties from a joint married state to a single state of independence. (quotation marks and citation omitted)); Roginsky v. Blake-Roginsky, 129 Md. App. 132, 142 (1999) (“An alimony award should reflect the desirability of each spouse becoming self-supporting and the undesirability of alimony as a lifetime pension.”).
Notwithstanding the statutory scheme favoring fixed alimony, the statute provides that a circuit court “may” award indefinite alimony in one of two exceptional circumstances:
1. due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
2. even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
FL § 11-106(c) (emphasis added). These exceptions exist to “protect the spouse who is less financially secure from too harsh a life once single again.” Whittington, 172 Md. App. at 337 (quotation marks and citation omitted). To meet the unconscionable standard, we have stated that there must be a “gross inequity” in the parties’ post-divorce standards of living or the divorce creates a situation where one spouse’s standard of living compared to the other is “so inferior, qualitatively or quantitatively . . . as to be morally unacceptable and shocking to the court.” Id. at 339 (quotation marks and citation omitted).
B. Wife’s first argument: the circuit court erred in not including Husband’s deferred compensation and unvested, restricted stock grants as part of Husband’s income
The following facts were elicited at trial regarding Husband’s income. Husband has worked for Exponent, Inc., for 21 years. He had an average income on his W-2s between 2017 and 2020 of $443,197.16 Husband’s accounting expert, Cheryl Gallina, testified that based on Husband’s tax returns and W-2s, Husband had a three-year average annual cash income of $360,002. She did not include Husband’s restricted stock grants or deferred compensation awards in her averages. Wife’s accounting expert, Christopher Rosenthal, opined that Husband had a threeyear annual income of $511,987, which included Husband’s employee bonus and employer’s matching vested, restricted stock award and Husband’s deferred compensation “payout” in 2019. Rosenthal opined that both Husband’s restricted stock grants that vest immediately every year and the restricted stock grant that he receives as a payout on the fourth year are additional sources of income to Husband because he pays tax on it, regardless of if he exercised his option to sell it. Rosenthal likewise opined that the portion of Husband’s deferred compensation payout every four years should also be treated as income. The court repeatedly disagreed, stating that the awards could not be considered both property and income.
At the conclusion of the evidentiary portion of the proceedings, the circuit court determined Husband’s income for purposes of alimony, stating:
I considered the base salary of the Husband; I considered prior W-2 forms, testimony of experts . . . . Husband, in 2021, [had] an income somewhere around Five Hundred and Nineteen Thousand. But after a consideration of all the evidence, I determine for the purposes -- and this is certainly not an exact science -- that his income for purposes that I have to consider
it, is Four Hundred and Seventy-Five Thousand per year. Other than stating that it considered Husband’s base salary, his W-2 forms, and the experts’ testimony, the court offered no further explanation for this finding. Moreover, the court’s arrived at number does not correspond to any number presented to the court.
In Riley v. Riley, 82 Md. App. 400, 403, cert. denied, 320 Md. 222 (1990), a husband and wife were granted a divorce, and husband was to pay wife a monetary award, which included a portion of his income, and term alimony. Sometime later and after he began receiving his pension, he moved to terminate the alimony award. Id. at 404. He argued that because wife had received an equitable share of his pension in the monetary award determination, the court should not consider his pension in its alimony award. Id. at 405. The court agreed and we reversed on appeal. Chief Judge Wilner, writing for this Court, stated: Although there is an interrelationship between [alimony and a monetary award based on marital property] in the sense that, as to each, the court must consider the one in deciding upon the other, they have quite different purposes and focuses.
[A]limony is intended to provide periodic support to a financially dependent spouse following the divorce. . . . [T] he principal focus is really on the future[.]
A monetary award, on the other hand, is not intended as support, and it focuses not on the future but on the present and past. The sole purpose of the [monetary] award is to assure that the disposition of that property upon the divorce will be equitable in terms of the overall contributions that each party made to the acquisition of the property and to the marriage and its breakup.
It is true, of course, that, in awarding and setting the terms of alimony, the court cannot properly consider as a resource of the payor spouse property or income that the spouse does not have. Thus, if the court removes an asset or source of income from the payor spouse through a monetary award (or otherwise), it cannot premise an alimony award on the assumption that that asset or source of income is still available to the payor. But we see no reason why it cannot base such an award on assets or sources of income that have not been taken from the payor and that do remain available. That does not constitute double dipping, as [husband] alleges. The New Jersey intermediate appellate court reached precisely this conclusion in a remarkably similar case. See Innes v. Innes, 542 A.2d 39, 41 ([N.J. Super. Ct. App. Div.] 1988):
“[I]t is not inconsistent for a dependent wife to receive the value of a portion of her husband’s pension as her share of the marital partnership, and nevertheless look to later pension payments as evidence of her husband’s ability to contribute towards maintaining her at their former marital economic standard.”
Id. at 405-07 (footnote and some citations omitted). Cf. Olski v. Olski, 540 N.W.2d 412, 413 (Wis. 1995) (holding that income generated from pension benefits accruing after the marriage that were not treated as property at the time of divorce can be
treated as income for purposes of spousal support); Littleton v. Littleton, 555 So. 2d 924, 926 (Fla. Dist. Ct. App. 1990) (holding that where pension benefits are not the present source of income for the party compelled to pay alimony, the court approved the consideration of pension benefits as a source of payment for alimony). See also J. Thomas Oldham, Divorce Separation and the Division of Property § 7.10 (2000) (stating that the majority of courts do not consider it improper to include pension income earned after divorce in a possible alimony award because such income would not have been included in the initial division of property).
Riley is directly on point. Contrary to the circuit court’s understanding, it could have included in its marital award the vested and unvested portions of Husband’s stock grants and deferred compensation awards and included their postequitable distribution as part of Husband’s income in its alimony award determination.
C. Wife’s second argument: the circuit court erred in denying her indefinite alimony
The following evidence was elicited at trial as to Wife’s current and future income. Wife has a bachelor’s degree in journalism, and her highest income, as reflected on her social security statement, was in 2003 when she earned $50,454. Since the Fall of 2018, Wife has worked as a librarian assistant at Bates Middle School. At the time of trial, she was earning a taxable income of $21,443 a year. Wife testified that she would like to work in her former field of editing or as an administrative assistant but was concerned about achieving employment because of her age and she has been out of the work force for many years.
Husband’s vocational rehabilitation expert testified that Wife was currently underemployed and could immediately earn an annual salary as an editor of at least $60,000. Wife’s vocational rehabilitation expert agreed that Wife was currently underemployed and opined that it could take a six-month job search, but Wife could earn an annual salary of between $35,000 and $38,000, as an administrative assistant or editor, and in two to five years, she could earn a salary of $50,000. Wife’s expert explained that Wife has been out of the workforce for almost 20 years, her skills were “stale,” and she would have to “start[] over” and compete against younger and more experienced people.
In determining Wife’s current income, the circuit court stated:
The Wife’s current income, Twenty-Seven Oh Five Four -- again, I considered testimony from experts, prior W-2’s, average income now could be as high as -- somebody said even over a Hundred Thousand Dollars; I’m not seeing that at all. Sixty-Thousand, possibly, a realistic number. . . [sic] But I impute her income to be Forty-Five Thousand Dollars a year, which is one-tenth of the Husband’s. And again, this is not an exact science, but it’s the best I could come up with based on the evidence in this case.
After addressing each of the 12 alimony factors in FL § 11-106(b), the circuit court noted the two, indefinite alimony exceptions in FL § 11-106(b), emphasizing that under the
second exception, the parties’ standard of living must be “unconscionably disparate.” As to alimony, the court made the following findings: 1) as to Wife’s ability to be wholly or partly self-supporting, the court found that Wife could be “at least partly self- supporting”; 2) as to the time necessary for Wife to gain sufficient education or training to find suitable employment, the court found that, although Wife requested six months to find suitable employment, the court believed she could find suitable employment immediately; 3) as to the parties’ standard of living established during the marriage, the court found that the parties established a “high standard of living” during their marriage and, with the court ordered marital and alimony awards, Wife “will still be able to maintain an extremely high standard of living . . . they’re both going to be millionaires”; 4) as to the duration of the marriage, the court found that the parties lived together while married for 21 years and were married for 23 1/2 years until divorced; 5) as to the monetary and non-monetary contributions of each party to the well-being of the family, the court found that the parties had a “traditional marriage” with Husband as the primary bread-winner and Wife caring for their child and the household; 6) as to the reason for the end of the marriage, the court found that the parties simply grew apart; 7) the court noted that Husband was 52 years old and Wife was 50 years old; 8) the court noted that neither party had any physical or mental conditions; 9) as to Husband’s ability to pay alimony and meet his needs, the court found that “both parties are going to be extremely well-off financially after this case is resolved . . . they’re going to be millionaires”; 10) as to agreements between the parties, the court noted there were none; 11) as to the financial needs and resources of the parties, the court stated that it considered the parties’ financial statements and expense sheets in making its determination; and 12) as to whether a spouse could be eligible for medical assistance, the court did not address as this was not relevant.
The court stated it considered two cases Whittington v. Whittington, 172 Md. App. 317 (2007) and Solomon v. Solomon, 383 Md. 176 (2004). Without discussing those cases or making any findings regarding the exceptions, the court concluded that “indefinite alimony is not appropriate in this case” and awarded Wife alimony for three years at $4,000 per month.
We agree with Wife that the circuit court erred in its indefinite alimony analysis. The court determined what Wife could earn now but made no finding as to what she could earn in the future, whether she had the ability to be self-supporting, or whether the parties’ standards of living post-divorce were unconscionable. Cf. Whittington, 172 Md. App. at 340 (“[T] he issue of unconscionable disparity must be determined by projecting into the future, to a time of maximum productivity of the party seeking the award[.]”); Lee v. Lee, 148 Md. App. 432, 447-49 (2002) (reversing where chancellor made no prediction as to wife’s potential future income, and therefore, the court failed to make an on the record analysis of the FL § 11-106(c) (2) factors), cert. denied, 374 Md. 83 (2003); Freedenburg v. Freedenburg, 123 Md. App. 729, 748-49 (1998) (directing the circuit court on remand to “articulate more clearly” the basis for its decision to grant or deny a permanent alimony award, particularly directing the court to determine the future income of wife (quotation marks and citation omitted)). Moreover,
even a finding of self-sufficiency does not per se bar an award of indefinite alimony where the respective standards of living are unconscionably disparate. St. Cyr v. St. Cyr, 228 Md. App. 163, 189 (2016). See also Kaplan v. Kaplan, 248 Md. App. 358, 383 (2020) (stating that “comparing the relative percentages of each spouse’s income is a relevant consideration in determining the existence of unconscionable disparities” and citing cases where unconscionable disparity was found based on the spouses’ relative incomes). On remand, the court must make these findings, and if it determines that the exceptions do not apply and indefinite alimony is not warranted, the court must redetermine Husband’s income to determine its alimony award.
III.
Attorney’s fees
Lastly, Wife argues that if we reverse and remand for further proceedings the circuit court’s monetary and/or alimony awards, we must also reverse and remand the court’s award to her of $7,500 in attorney’s fees. Husband preliminarily argues that we should dismiss Wife’s argument because she waived it when her attorney cashed his check for $7,500, satisfying the court’s order. Husband alternatively argues that the circuit court did not abuse its discretion in awarding Wife $7,500 in attorney’s fees.
We disagree with Husband’s preliminary argument. The “acquiescence rule” provides generally that if a party knowingly and voluntarily accepts benefits under an order, the acceptance acts as a waiver of any errors in the order and bars the party from maintaining an appeal. Dietz v. Dietz, 351 Md. 683, 689 (1998) (citing Rocks v. Brosius, 241 Md. 612, 630 (1966)). See also Chimes v. Michael, 131 Md. App. 271, 280 (“It is well settled in Maryland, and the law generally . . . if a party . . . voluntarily accepts the benefits accruing to him under a judgment, order, or decree, such acceptance operates as a waiver of any errors in the judgment, order, or decree and estops that party from maintaining an appeal therefrom.” (quotation marks and citation omitted)), cert. denied, 359 Md. 334 (2000). There are, however, exceptions to this general rule. In Lewis v. Lewis, 219 Md. 313, 317 (1959), the Maryland Supreme Court held that: “[I]f applicable at all in a divorce case, the [acquiescence rule] cannot be raised where the benefits accruing to the wife, by reason of the award, provide necessary support until the final adjudication of the case.” In Dietz, 351 Md. at 688 (quotation marks and citation omitted), the Court noted another exception to the general rule, where the judgment was “for less than the amount or short of the right claimed” and Husband does not cross-appeal the award.
Here, Husband did not cross-appeal the circuit court’s attorney’s fees award to Wife, and Wife is seeking an increase in the award. Under these circumstances, the acquiescence rule does not apply. Attorney’s fees in the context of a monetary or alimony proceedings are governed by FL § 8-214 and § 11110, respectively. Both sections are identical and provide, in pertinent part:
(b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
(c) Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and
(2) whether there was substantial justification for prosecuting or defending the proceeding.
(d) 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 the reasonable and necessary expense of prosecuting or defending the proceeding.
In sum, a court must consider three factors before awarding attorney’s fees: “(1) the financial status of each party; (2) the needs of each party; and (3) whether there was a substantial justification for bringing, maintaining, or defending the proceeding.” Malin v. Mininberg, 153 Md. App. 358, 435 (2003) (quotation marks and citation omitted).
At trial, it was elicited that Husband had incurred $126,000 in attorney’s fees and Wife had incurred $88,584 in attorney’s fees. Husband paid Wife $5,000 as an initial attorney retainer; after the parties separated but before either party filed a complaint for divorce Wife paid attorney’s fees from some of the $48,000 she withdrew from the parties’ marital account; and Husband contributed $30,000 to Wife’s attorney’s fees as required by the pendente lite order.
In rendering its decision regarding attorney’s fees, the court stated:
I have considered the financial statements of each party, their income and expenses, the impact of my decision on a marital property award and alimony; and again, I want to reemp[has]ize it’s not a complicated case. So the justification for the proceeding, in my opinion, was over-kill. And again, I hate to emp[has]ize this again, but I see a lot of money spent here that should have gone to this child. Both parties can afford legal fees and expert fees. Thirty Thousand Dollars has already been awarded to the Wife per previous Order of this Court; Forty-Eight Thousand was used by her for marital funds from a joint bank account. And I’ve also considered the marital award and the alimony that the Wife will be receiving.
The court cited Abdullahi v. Zanini, 241 Md. App. 372, 425-26 (2019), where the trial court declined to award counsel fees where wife’s attorney’s fees were $425,000, and husband’s fees were $189,000, because the parties had “chosen ‘to engage in protracted litigation,’ as opposed to resolving the issues expeditiously.” The circuit court then stated that the facts of Abdullahi, “ring true with this case” and awarded Wife “a token contribution” of $7,500 for attorney’s fees.
While we do not disagree with the court’s assessment that the parties may have engaged in some unnecessary litigation, we also believe that this was a complicated case with compelling and divergent views regarding the distribution of large sums of property. Cf. Abdullahi, 241 Md. App. at 404 (applying the exceptions discussed in Dietz where husband did not pursue a challenge to the monetary award, and wife contends on appeal that she is entitled to a larger monetary award). See generally
E.T. Tsai, Spouse’s Acceptance of Payments Under Alimony or Property Settlement or Child Support Provisions of Divorce Judgment as Precluding Appeal Therefrom, 29 A.L.R.3d 1184 (1970, Supp. 1999).
Because we are vacating the circuit court’s monetary and alimony awards, we shall also vacate the attorney’s fees award. See also St. Cyr, 228 Md. App. at 198 (“[A] court’s determinations as to alimony, child support, monetary awards, and counsel fees involve overlapping evaluations of the parties’ financial circumstances[,]” and therefore, “when [we] vacate[] one such award, we often vacate the remaining awards for reevaluation.” (quotation marks and citation omitted)); Doser v. Doser, 106 Md. App. 329, 335 n.1 (1995) (noting that the factors underlying awards for alimony, counsel fees and a monetary award “are so interrelated” that a reconsideration as to one award requires a new evaluation of the others).
Husband’s cross-appeal
Husband cross-appeals and presents one question for our review. He argues that the circuit court erred in including the equity value of the marital home in Wife’s monetary award because the court had stated that it would not do so.17 Citing Brewer v. Brewer, 156 Md. App. 77, cert. denied, 381 Md. 677 (2004), Wife responds that if the circuit court included the value of the marital home in its calculation of the monetary award, which is not clear given the lack of clarity in the circuit court’s monetary award determination, there was no error.
Because we are vacating the circuit court’s monetary award, we need not address this question on appeal as it can be raised on remand.18
JUDGMENT OF DIVORCE OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. JUDGMENT GRANTING MONETARY AWARD, ALIMONY AWARD, AND ATTORNEY’S FEES VACATED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY HUSBAND.
FOOTNOTES
1 In her appellate brief, Wife phrases her questions as follows:
I. Did the trial court err by not following the threestep process required in granting a monetary award, by failing to determine which property was marital or nonmarital property, failing to value all marital property, and failing to determine the method of payment of the monetary award?
II. Did the trial court abuse its discretion by failing to transfer to Wife an ownership interest in Husband’s unexercised restricted stock options and unvested deferred compensation accounts on an if, as and when basis, and/or by failing to consider the value of those assets in its determination of the monetary award, given that Maryland law is clear that such assets are part of the marital estate?
III. Did the trial court err and/or abuse its discretion by failing to include Husband’s deferred compensation and unvested stock grants from both its monetary award and alimony determinations?
IV. Did the trial court abuse its discretion in determining the period for its alimony award and in denying Wife indefinite alimony?
V. Did the trial court abuse its discretion in its attorney’s fees award to Wife?
2 In his appellate brief, Husband phrases his one question as follows: “Did the trial court err or abuse its discretion when it included the marital home value in the calculation of the monetary award after stating that it would be excluded from the monetary award?”
3 During the proceedings, the court appointed a children’s attorney, which was expanded into the role of best interest attorney.
4 Prior to trial, the parties entered into a consent order regarding custody and visitation of their child, who at the time of trial was 17 years old and a rising Senior in high school. Pursuant to the consent order, the parties agreed to joint legal and shared physical custody of child and a visitation schedule. The order also provided that Wife shall have use and possession of the marital home through August 2022, when child leaves for college. The parties reserved for trial the issues of payment of the mortgage and the sale and value of the marital home.
5 The main difference was that the court in its oral ruling ordered Husband to pay Wife $2,500 a month in child support, but in its written order the court ordered Wife to pay Husband this amount until the child reaches 19 years of age. The court denied Wife’s post- judgment motion to correct what she considered was a typographical error. Wife does not raise or contest on appeal the circuit court’s child support award.
6 Husband noticeably does not differentiate between the vested and unvested portions of his stock grants, nor does he address Wife’s argument as to his unvested deferred compensation accounts.
7 Husband correctly notes that the circuit court’s calculations are in error. The grand total marital property value should be $3,384,313, a difference of $27,972.
8 Specifically, the court ordered Husband to retain his 2021 Chevy Silverado, his 1996 Seapro boat, and the personal property in Annapolis. Wife was to retain her 2019 Mini Cooper and the personal property in the marital home.
10 Although Wife claims that the circuit court failed to resolve whether her TIAA IRA account was marital or non-marital property, both parties listed that item as Wife’s property in the agreed section of their 9-207 Statement and neither party argued to the contrary during trial.
9 As stated above, the circuit court awards were the same as those it had ordered in its oral ruling from the bench, except the court ordered Husband to pay Wife $2,500 a month in child support, but in its written order the court ordered Wife to pay Husband this amount.
11 Again, Husband noticeably does not differentiate between the vested and unvested portions of his stock grants, nor does he address Wife’s argument as to his unvested deferred compensation accounts.
12 We described the “if, as, and when” approach as follows:
That value may be determined by taking into consideration the market value of shares of . . . stock as of the time of that decree, and the cost to the appellee of exercising the options. The court may, then, pursuant to the third step of the process, determine a percentage by which the profits should be divided if, as and when the options are exercised. Under such an approach to the equitable allocation of this marital property, the appellee is under no compulsion to exercise his options. At the same time, however, the appellant’s equitable interest in the options, if exercised, is protected. We believe this approach fairly implements the process of adjusting the equities between the parties with respect to marital property as mandated by the [Marital Property] Act.
13 On the parties’ joint 9-207 Statement, Husband listed the value of his vested restricted stock at $666,309, and the unvested portion at $387,928. Wife listed the value of his vested, restricted stock at $716,853, and the unvested portion at $199,976, with $2,087 held as fixed income. It is unclear why the parties’ values vary.
14 On the parties’ joint 9-207 Statement, Husband assigned values to the first deferred compensation account of $35,960 as marital and $154,964 as non-marital. Wife assigned the same values on the first compensation account, but called the $35,960 vested and the $154,964 unvested. The parties assigned a value of $124,499 to the second deferred compensation account, with Husband using the term non-marital and Wife using the term unvested.
15 Again, Husband noticeably does not differentiate between the vested and unvested portions of his stock grants, nor does he address Wife’s argument as to his unvested deferred compensation accounts.
16 Husband’s W-2s between 2017 and 2020 showed incomes as follows: $441,612; $360,281; $543,725, and $427,169.
17 Before proceeding to its monetary award determination, the circuit court ruled that the parties would equally split the net proceeds from the sale of the marital home. Turning to its monetary award analysis, the court commented on the parties’ marital home, number eight on the parties’ 9-207 Statement, stating: “I’m factoring that out of that list.” Husband argues, however, that the court in fact included the equity value of the marital home in its monetary award, reasoning that the circuit court’s value for the parties’ joint marital property was $393,421, which is close to $393,122, which is the total of three jointly owned items on the parties’ 9-207 Statement – two brokerage accounts and the equity in the marital home. Thus, according to Husband’s calculations and argument, the court mistakenly awarded Wife one-half of the marital home’s net proceeds when the home sells and one-half of the marital home’s equity in its monetary award. Husband requests that we issue a limited remand for the circuit court to reduce Wife’s monetary award by $178,061, which is one-half of the equity in the marital home.
18 We note that in Brewer, we upheld a circuit court’s judgment splitting evenly between the parties the proceeds of the sale of the marital home and including the proceeds of the sale of the home in making its monetary award. Brewer, 156 Md. App. at 111. We held that the circuit court committed no err in doing both because the purpose of a monetary award “is to counterbalance any unfairness that may result from the actual distribution of property acquired during the marriage[.]” Id. at 110 (quotation marks and citation omitted). Accordingly, a circuit court may split evenly between the parties the proceeds of the sale of the marital home and include the proceeds of the sale of the home in making its monetary award, if it chooses to do so.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Harford County Circuit Court’s order requiring the parents to install the Life360 application on their phone, so that each parent would know the whereabouts of the other parent while the child was in their care and custody. The court’s order addressed security concerns regarding the child’s whereabouts, it was limited in scope and clearly addressed the child’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
thereafter, respond and the court issued its Order on June 5, 2023.
On June 15, 2023, Ms. Tunney filed a Motion to Alter or Amend the court’s decision requiring the parties to install and maintain Life360 on their phones. In her motion, Ms. Tunney claimed that neither party requested location tracking services, and that Life360 “sells the location information it gathers.” Of particular concern to Ms. Tunney “[a]s a single mother,” was that “this is a significant invasion of privacy. The app would be able to track… details about her lifestyle that have nothing to do with the minor child.” Appellee filed a response that raised no arguments regarding the Life360 application. On June 24, 2023, the court denied the motion.
STANDARD OF REVIEW
This case arises from a custody dispute in the Circuit Court for Harford County. On April 20, 2023, following a merits hearing, the court ordered the parties to install Life360, a tracking application, on their phones whenever the minor child is in the care and custody of either party. Appellant, Ruth Tunney filed a Motion to Alter or Amend the court’s decision and Appellee Shane Tunney filed a response. The motion was denied by the court. Appellant noted this timely appeal and raises one issue.
1. Did the court below err by requiring the parties to install location tracking software on their cell phones?
BACKGROUND
Appellant Ruth Tunney, and Appellee Shane Tunney, were married in 2018. On March 9, 2021, their son D.T. was born, and later that month, Ms. Tunney filed a Complaint for Custody and Appropriate Relief in the Circuit Court for Harford County. Following a series of motions and hearings, on April 20, 2023, the court issued its opinion from the bench. As a part of its decision, the court ordered that each party install the Life360 application on their phone so that each parent would know the whereabouts of the other parent while the child was in their care and custody. The court also gave the parties the option of reaching another agreement, and stated, “[i]f you can’t reach an agreement, I’m going to order it.” The parties did not,
Appellate review of a court’s ruling on a Maryland Rule 2-534 motion to alter or amend the judgment is typically limited in scope and “the relevance of an asserted legal error, of substantive law, procedural requirements, or fact-finding unsupported by substantial evidence, lies in whether there has been an abuse of discretion.” Rose v. Rose, 236 Md. App. 117, 129 (2018) (quoting Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015)).
An abuse of discretion occurs where “‘no reasonable person would take the view adopted by the [trial] court.’” Santo v. Santo, 484 Md. 620, 625–26 (2016) (quoting In re Adoption/ Guardianship No. 3598, 347 Md. 295, 312 (1997)). An abuse occurs when the court’s ruling is “‘clearly against the logic and effect of facts and inferences before the court’ or when the ruling is ‘violative of fact and logic.’” Adoption/Guardianship No. 3598, 347 Md. at 312. A trial court’s determination will not be reversed unless it is “‘well removed from any center mark imagined by the reviewing court.’” Id. at 313 (citation omitted).
DISCUSSION
Ms. Tunney argues that the court abused its discretion in requiring both parties to install Life360, a tracking application, on their phones, because neither party “agree[d] to it, nor did they request it.” She contends that the court provided “no information in the record about what this app would do” and the app is an invasion of privacy. Appellee contends that the court did not abuse its discretion. Appellee argues that the court’s decision was based on concerns about Ms. Tunney relocating to Sweden with the child, her family ties in Sweden, and her decision to relocate with the child from Maryland to Florida without the knowledge or consent of Appellee. Lastly, Appellee argues that the Life360 application will “enhance co-
Under Maryland Rule 2-534:
[a court], in an action filed within ten days, may open the judgment to receive additional evidence, [] may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment or may enter a new judgment.
We note that a judge is not required to grant such a motion and as stated, we review a court’s denial of a motion to alter or amend a judgment for an abuse of discretion.
To be sure, the test with respect to custody determinations begins and ends with what is in the best interest of the child. Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019) (citing Boswell v. Boswell, 352 Md. 204, 236 (1998)). We, thus, examine whether the court abused its discretion in deciding to require the parties to install Life360 in that light. One of the findings made by the court was that Ms. Tunney removed the child from Maryland and relocated to Florida without the knowledge or consent of Appellee. There was also testimony that Ms. Tunney wanted to return to Sweden to live with the child and in fact, a child psychologist testified that she was a flight risk given her dual citizenship. As a result, there were legitimate concerns brought to the court’s attention about the future whereabouts of the child. The court, in making its determination that the child would remain with Ms. Tunney in Florida, sought to ensure no further relocations without court involvement and that Appellee would remain a part of the child’s life. The court stated:
Well, unless the parties are going to agree otherwise, I believe they should be in a group like that, Life360, where they know where each other are. There is going to be a lot of exchanges and times when they have to find each other. Mr. Wright, unless your client, I’ll let you talk to your client offline about that. Again, this is being done for [D.T.]. [D.T.] is always going to be in the care and custody of one or the other parties. So, we need to turn the heat off in this case so to speak and one of the ways to do that is information. So, I’m going to allow the parties to take the Court’s
ruling and see if they can reach another agreement. If you can’t reach an agreement, I’m going to order it.
(Emphasis added).
Based on the entirety of the record before us, we conclude that the court did not abuse its discretion in requiring the parties to utilize the Life 360 application. The court’s order addressed security concerns regarding the child’s whereabouts, it was limited in scope and clearly addressed the child’s best interests. Ms. Tunney’s arguments, in part, focus on the use of Life360 when the child is not with her, however, the court’s order does not require use of the application when the child is not in her care.
Trial courts have broad discretion in “how they fashion relief in custody matters.” Santo v. Santo, 448 Md. 620, 636–67 (2016) (emphasis in original); see Taylor v. Taylor, 306 Md. 290, 301–02 (1986) (“We find no indication in either statute of a legislative intent to limit the broad and inherent power of an equity court to deal fully and completely with matters of child custody.”). A trial court’s power is broad in order to accomplish the paramount purpose of securing the welfare and promoting the best interest of the child. “‘A trial court, acting under the State’s parens patriae authority, is in the unique position to marshal the applicable facts, assess the situation, and determine the correct means of fulfilling a child’s best interests.”’ Baldwin v. Baynard, 215 Md. App. 82, 108 (2012) (quoting In re Mark M., 365 Md. 687, 705–06 (2001)).
We hold that the requirement that the parties install the Life360 application was an appropriate use of the court’s authority. Recent advances in technology now provide courts with new and innovative tools to promote the exchange of information between parents in child custody and access cases. These tools are often used to assuage concerns about the child’s well-being and whereabouts. They also provide additional opportunities for visitation and important connections between children and their parents. While they may entail some minimal privacy issues, those are far outweighed by the value in maintaining consistent and longlasting connections between parents and their children. In essence, such tools promote the child’s best interest.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 22 (2024)
Full legal custody; minor; best interests
In re: A.R.
No. 1389, September Term 2023
Argued before: Graeff, Nazarian, Eyler, James (retired; specially assigned), JJ.
Opinion by: Nazarian, J.
Filed: May 14, 2024
The Appellate Court affirmed the Baltimore County Circuit Court’s transfer of full legal custody of a nine-year old minor to father. The mother was presently unfit to care safely for the minor; father was ready, willing, and able to undertake the care and custody of the minor and transferring custody to father was in her best interest.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
case, and a separate petition with respect to J on October 31, 2022. The Department alleged generally that A was a CINA2 due to unsanitary conditions in Mother’s home. The petition stated that A already had been “safety planned”3 to Father on September 19, 2022, before the Department filed the petition after A disclosed “that she did not like living in [Mother]’s home due to conditions of the home.” The petition referenced the fact that Mother had “a long history of involvement with the Department” for “different children in her care.” The Department asked that A be placed in shelter care pending an adjudicatory hearing. There were otherwise no allegations as to Father.
In October 2022, the Baltimore County Department of Social Services (the “Department” or “DSS”) filed a juvenile petition alleging that nine-year-old A.R.1 was a child in need of assistance (“CINA”) because of the condition of her Mother’s, N.W.’s, home. According to the petition, A was placed with her father (“Father”) under a safety plan. Ultimately, after contested adjudication hearings that finished in August 2023, the court concluded that Mother was unfit but that A was not a CINA because Father was able and willing to provide proper care. The court transferred full custody of A to Father and terminated its jurisdiction. On appeal, Mother argues we should reverse the juvenile court’s custody transfer for two reasons: (1) the juvenile court lacked subject matter jurisdiction because the Department never alleged sufficiently that A was a CINA, and (2) the juvenile court made clearly erroneous factual findings and otherwise abused its discretion when it transferred full custody of A to Father. We affirm.
I. BACKGROUND
Mother had primary legal and physical custody of nine-yearold A and her thirteen- year-old sibling, J.P. On September 8, 2022, DSS received a report after police responded to a call from Mother “due to a verbal disturbance” between Mother and J when officers observed that Mother’s home was in an unsafe, unsanitary condition. At the time, Mother blamed J for “intentionally dirtying up the home because he was jealous of his sister, [A].”
The Department followed up with Mother and, after repeated attempts to verify that Mother cleaned up the home, the Department filed the initial CINA petition in this
In November 2022, Mother had resumed custody of A,4 and in January 2023, she agreed to a court order controlling her conduct (the “OCC”). The OCC required her to comply with certain directives, including a directive to maintain safe and sanitary housing and to ensure that A was present and on time for school. The court continued the matter for adjudication. But on February 14, 2023, the Department filed an amended petition requesting shelter care again, alleging that Mother had violated the OCC. DSS alleged that Mother’s home again (as of February 10, 2023) was in an unsafe condition and that A had a significant number of unexcused absences at school attributable to Mother, and the petition requested that A be placed in shelter care pending the adjudicatory hearing. This petition also made no allegations against Father; in fact, A had been returned to Father’s care on February 9th. The same day, the juvenile court found that the OCC had been violated and granted the Department’s shelter care request.
In June 2023, the Department filed a second amended CINA petition that requested that custody and guardianship of A be transferred to Father. After contested adjudication and disposition hearings in June and August 2023, the court sustained the amended petition’s findings, transferred full custody of A to Father under CJ § 3-819(e), and ordered that Mother’s visitation with A would be decided “[a]s between [the] parties.”
The social worker’s testimony regarding the home’s condition in February 2023 painted a problematic scene: Subsequently after the OCC, I went on a home visit February 8th. When I came into the house, the house was very deplorable. I observed an extremely overpowering smell, and insects were flying all over the house. There were piles of trash bags outside the front porch, and the floor was very sticky and it was wet. . . . The corners of the baseboard and walls were lined up with a lot of black mice droppings in the house.
The ceiling in the living room was caving in with mold on it, and there was water leakage coming out from the ceiling. They actually had a bucket or pan collecting the dirty water that was coming from the ceiling. The kitchen sink and stove were filled with dirty dishes, and the fridge and the walls were smeared with food all over the kitchen. During that visit I told [Mother], “This is very unsafe for [A] and [J] to be in the house,” but I told her I’m going to give her the opportunity to clean the house . . . .
When the social worker returned a few days later, the home “was in the same condition . . . .” The Department also offered school records showing that A had missed twenty-five days of school between November 2nd and February 9th while in her Mother’s care.
The juvenile court made detailed factual findings in its ruling: The Court finds [the social worker] testified credibly that there were approximately twelve attempts to schedule an appointment with the mother or to schedule a visit with the mother to be able to see the condition of the home, and that was not able to be completed, and for those reasons the Department created a safety plan. There were concerns not only of the condition of the home, the Court finds, but of missing school by the children, and the Court so finds because of that and seeing such things when the Department did have access to the home such as water damage, the Court found that when the safety plan was completed, there was still debris, there was still feces that was located, and still trash within the home. The Court finds that due to that between September and November, there were concerns of [A] remaining in the home. The Court finds it’s been proven to this Court that prior to this incident, there were three different cases in which Child Protective Services or the Department of Social Services were involved, including dating back to 2018.
. . . [A]t that time the child’s Father for [A] was a resource that was used by the Department, and there had been periods of time throughout this pending litigation and shelter Father has been acting in a custodial role.
The court found proven the allegation that A had missed “at least 25 days” of school attributable to Mother and discussed the “potential harm in the home” from her brother, J. The court found substantiated all the paragraphs in the petition. As to Father, the court found that he hadn’t contributed to the allegations in the petition:
The Court so finds that the father for [A] has not been alleged of any being an actor in any of the Petitions that would in any way indicate that he has contributed to or participated in either failing to send the child to school or the conditions that the child was living in for [A]. In fact, Father has been proven to this Court has attempted to advise or encourage Mother based upon his concerns that he had with the condition of the home and the condition of [A] when she would visit with him. The Court so finds that he has helped the child attend school and the father has not contributed to the conditions of either the home or of the child that were present in Mother’s home.
Mother timely appealed. Additional facts will be discussed as
necessary below.
II.
DISCUSSION
Mother raises two issues for our review, which we have condensed and reworded:5 first, whether the Department invoked the juvenile court’s subject matter jurisdiction properly, and second, whether the court abused its discretion by transferring custody to Father. DSS and Father both urge us to uphold the transfer of custody. We find no reversible error and affirm.
We review CINA proceedings using three inter-related standards:
In CINA cases, factual findings by the juvenile court are reviewed for clear error. An erroneous legal determination by the juvenile court will require further proceedings in the trial court unless the error is deemed to be harmless. The final conclusion of the juvenile court, when based on proper factual findings and correct legal principles, will stand unless the decision is a clear abuse of discretion.
In re Ashley S., 431 Md. 678, 704 (2013) (citing In re Yve S., 373 Md. 551, 586 (2003)). We give “the greatest respect” to the juvenile court’s opportunity to view and assess the witnesses’ testimony. In re Adoption/Guardianship of Amber R., 417 Md. 701, 719 (2011). We also bear in mind the “fundamental liberty interest of natural parents in the care, custody, and management of their child . . . .” Santosky v. Kramer, 455 U.S. 745, 753 (1982).
A. The Juvenile Court Had Subject Matter Jurisdiction.
Mother’s first contention is that the juvenile court lacked subject matter jurisdiction because, “for a child to be an alleged CINA, DSS must raise allegations against both parents.” Notwithstanding the Department’s allegation all along that “[A] is a Child In Need of Assistance,” and making no allegations as to Father, Mother asserts that “no party ever sufficiently alleged that A.R. was a CINA” because “DSS affirmatively reported that [F]ather had been safely caring for A.R. for over a month and [Father] had already taken steps in family law court to obtain greater custodial access to her.” She contends that the case “always was—and should have remained—a purely family law court matter, where [F] ather had already initiated proceedings.” The Department and Father both take the position that Mother has failed to overcome the presumption that subject matter jurisdiction exists in this case and we agree.
Maryland courts have interpreted Title 3, Subtitle 8 of the Courts and Judicial Proceedings Article broadly to confer jurisdiction in juvenile cases. That is because “the circuit court sitting as the Juvenile Court in a CINA proceeding is a court of general jurisdiction, and the presumption in favor of subject matter jurisdiction applies.” In re John F., 169 Md. App. 171, 183 (2006). A CINA petition must, among other things, “‘allege that a child is in need of assistance and . . . set forth in clear and simple language the facts supporting that allegation.’” In re M.H., 252 Md. App. 29, 43 (2021) (quoting CJ § 3-811(a)(1)); Md. Rule 11-205(e)(4). Any deficiencies in the
petition are balanced “against the overall purpose of the CINA statute,” In re M.H., 252 Md. App. at 48, which is “to provide for the care, protection, safety, and mental and physical development of any child coming within the provisions” of the Act. CJ § 3-802(a)(1). And of course, the best interest of the child is always the overarching consideration. See In re Blessen H., 392 Md. 684, 694 (2006) (“the best interest of the child may take precedence over the parent’s liberty interest” in a custody dispute and “in cases where abuse or neglect is evidenced, particularly in a CINA case, the court’s role is necessarily more pro-active” (cleaned up)).
Mother argues that In re John F.’s presumption of jurisdiction shouldn’t apply because “the John F. Court specifically highlighted that the CINA petition allegations [in that case] were replete with factual representations” that jurisdiction was appropriate. But although the Court considered in In re John F. that the presumption hadn’t been rebutted, it doesn’t dispel the prima facie presumption. And again, deficiencies in the petition— assuming this petition had any—are balanced “against the overall purpose of the CINA statute.” In re M.H., 252 Md. App. at 48.
The Department alleged consistently that A was a CINA, and the mere fact that A was safety-planned temporarily to Father didn’t rebut the presumption that the court had jurisdiction. Indeed, our decision in In re E.R., 239 Md. App. 334, 339 (2018), forecloses Mother’s contention. There, a mother also argued that the Department had failed to plead in its CINA petition that fathers were “unable or unwilling to care for the children, [so that] the children were not ‘in need of assistance,’ and the trial court did not have jurisdiction to award custody to the fathers under CJ § 3-819(e).” We stated that a problem arises when “the local department does not know who the noncustodial parent is or whether that person is willing and able to take on custody.” Id. at 341. The “best course,” we held, would be for DSS to “plead, directly or by implication, that a noncustodial parent has ‘acquiesced’ in leaving the child with the unfit custodial parent.” Id. at 342.
The Department believes it met this minimal pleading standard by referencing the safety plan because that plan showed that Father had an “inability to protect A.R. absent Mother’s agreement,” and thus that he was otherwise “unable . . . to assume custody.” We agree. The evidence presented at the adjudication hearing revealed that A was able to return to Father’s physical custody only under the juvenile court’s shelter order, and therefore, as the Department asserts correctly, “the evidence established that Father needed a custody order to ensure that Mother could not interfere in A.R.’s ongoing safety.”
Mother attempts to distinguish In re E.R. in two ways: first, she argues that In re E.R. involved an emergency situation, and second, that Father was known to the Department and believed by the Department to be willing and able to care for A. Based on the record in this case and In re E.R.’s continued analysis, we find each of Mother’s distinctions unavailing. The “minimal pleading” was not even present in In re E.R. Id. (“Here, [DSS] did not make even this minimal pleading.”).
“Nevertheless,” the Court continued (after finding the “minimal pleading” standard unmet), “we are unwilling to
afford mother relief for this deficiency”:
First of all, we do not see (and at oral argument mother’s counsel was unable to supply) a reason why a custodial parent who is unable to care for the children should receive a benefit from the local department’s inability to plead necessary facts about the noncustodial parent. We cannot fathom how returning the children to an unsafe situation with mother provides an appropriate remedy for the local department’s deficient pleading with respect to the fathers. But more importantly, a juvenile court need not dismiss a defective or incomplete CINA petition. In re Najasha B., 409 Md. 20, 40 (2009) (A local department is not prohibited from maintaining a CINA petition “through the adjudicatory hearing stage of a case, despite changed circumstances that throw doubt on the facts that supported the original petition.”). Thus, the trial court did not err in proceeding upon the petitions filed by []DSS. Id. at 342–43. Likewise, we hold that the trial court did not err in proceeding on the petitions in this case. Moreover, and although subject matter jurisdiction may be raised at any time, including for the first time on appeal, see County Council of Prince George’s Cnty. v. Dutcher, 365 Md. 399, 405 n.4 (2001), the Department notes that Mother never raised the issue below and, further to the point, that she “conceded” that A was a CINA by agreeing to the OCC. “The right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right to appeal.” In re M.H., 252 Md. App. at 45– 46 (cleaned up). And although we are hesitant to apply this “well settled” principle, see Osztreicher v. Juanteguy, 338 Md. 528, 534 (1995), in the CINA context in light of the liberty interest of parents, we agree that in this case it warrants consideration on the question of whether the presumption of jurisdiction has been rebutted. Mother’s position throughout these proceedings was inconsistent with any argument that the juvenile court lacked jurisdiction. The case was ongoing for nearly a year, she had agreed to an OCC (which necessitated the court’s CINA finding), and she took the position at the adjudicatory hearing that she would comply with another OCC. Because “a juvenile court need not dismiss a defective or incomplete CINA petition,” In re E.R., 239 Md. App. at 342, the trial court did not err in exercising its general jurisdiction, see In re John F., 169 Md. App. at 182. Mother disagrees with the court’s ultimate decision to transfer custody, but her position that A was a CINA was entirely inconsistent with her arguments and position up until the court’s adverse decision. See Osztreicher, 338 Md. at 535 (“a litigant who acquiesces in a ruling is completely deprived to the right to complain about that ruling”). In light of the record, Mother has failed to rebut the presumption of jurisdiction in this case.
B. The Court Did Not Abuse Its Discretion When It Transferred Custody Of A To Father.
Mother’s next contention is that the juvenile court abused its discretion when it determined that she is unable to care safely for A and, as a result, transferred custody to Father. Mother contends first that “there was insufficient evidence
for the court to sustain [paragraph 8] as written,” that “there was no evidence that mother had a ‘long history’ with DSS . . . .” Second, Mother argues that the juvenile court abused its discretion in finding “neglect,” and she disputes that her actions constituted “neglect.” Father responds that “[n]early all evidence presented at disposition supported the court’s ultimate finding,” and the Department states as well that “the overwhelming evidence in the record supports the court’s findings that A.R. was neglected ”
Under CJ § 3-819(e), a juvenile court has the discretion, if a CINA finding is sustainable against one parent, to award custody to the other parent:
[a] juvenile court has discretion to award custody under § 3-819(e) only if the court, by a preponderance of the evidence: (a) sustains allegations in a CINA petition that are sufficient to support a CINA disposition against one, but only one, parent; and (b) finds that the other parent is able and willing to care for the child[.]
In re T.K., 480 Md. 122, 133 (2022). If those prerequisites are met, the court considers the best interest of the child. Id. The proponent of the custody transfer bears the burden of proof. Id. at 149.
1. There was sufficient evidence that Mother had a “long history of involvement with the Department” and any error with respect to Mother’s specific history involving different children was harmless. Preliminarily, Mother argues the court should have adopted amendments to paragraphs 7, 8, and 10 of the second amended CINA petition, but only makes argument with respect to paragraph 8. We review her contention, a factual determination, with great deference and will not overturn a decision absent clear error. See In re Ashley S., 431 Md. at 704.
The contested paragraphs states: 8. [Mother] has a long history of involvement with the Department. She has had multiple case[s] of neglect and abuse for the different children in her care. She has been Indicated for physical abuse and was also Unsubstantiated for neglect.
A social worker testified that the Department had investigated Mother three times since 2018, before this case. Mother admitted “there are records of me being in CPS,” but explained that it’s because “people use CPS as a weapon against me.”
Regardless, any error with respect to Mother’s specific history involving different children was harmless. The court referred to Mother’s “historical record” with the Department in its ruling but did not reference any former cases. Instead, it referenced the history of this specific case, emphasizing that “the Department on multiple occasions went to the home to try to fix and help Mother fix the inappropriate living conditions for both [children] and much of the time it was met with resistance” and highlighting that the unsafe condition of the home was “not an isolated incident.” As the court found, “[t]here were multiple times in which the Department attempted to keep the children in the home by attempting to visit the home prior to either an Order Controlling Conduct
or a safety plan for removal by shelter.”
2. There was sufficient evidence of neglect on Mother’s part.
This brings us to Mother’s next contention, that the sustained findings did not establish neglect. Mother disputes the court’s fact-finding, but argues that there was no competent evidence that Mother was unable to care for A presently. She relies on In re T.K., 480 Md. at 147, to argue that the sustained petition findings must show a “present inability” to provide proper care. But by statute, “neglect” means that either “[t]he child’s health or welfare is harmed or placed at substantial risk of harm” or that “[t]he child has suffered mental injury or been placed a substantial risk of mental injury.” FL
§ 3-801(s)(1)(i)–(ii). We can consider “‘neglect’ as an overarching pattern of conduct.” In re Priscilla B., 214 Md. App. 600, 625 (2013). And after reviewing the record, we hold that Father and the Department—together as proponents of the custody transfer—met their burden of proving by a preponderance of the evidence that Mother was presently unfit to provide proper care to A.
The court made detailed factual findings in support of its finding of neglect against Mother:
The Court finds [the social worker] testified credibly that there were approximately twelve attempts to schedule an appointment with the mother or to schedule a visit with the mother to be able to see the condition of the home, and that was not able to be completed, and for those reasons the Department created a safety plan.
There were concerns not only of the condition of the home, the Court finds, but of missing school by the children, and the Court so finds because of that and seeing such things when the Department did have access to the home such as water damage, the Court found that when the safety plan was completed, there was still debris, there was still feces that was located, and still trash within the home.
This Court finds that due to that between September and November, there were concerns of [A] remaining in the home. The Court finds it’s been proven to this Court that prior to this incident, there were three different cases in which Child Protective Services or the Department of Social Services were involved, including dating back to 2018.
The Court finds there was at that time safety concerns, including but not limited to allegations of physical abuse. The Court further finds that when there was an issue due to the home and school absences and a safety plan was put in place, at that time the child’s Father . . . was a resource that was used by the Department, and there had been periods of time throughout this pending litigation and shelter Father has been acting in a custodial role.
* * *
[T]he Court finds that [A] also had a problem attending school, and that she was either late on multiple times or did not go multiple times. The Court did hear of illness and notes that were sent . . . that were not turned in, but there was an inability or unwillingness for Mother to follow up on that to make sure that there was good communication with the school.
However, even considering in the light most favorable to mother, absences due to illness, it does not satisfactorily explain to the Court why so much school was being missed.
Mother argues that these findings “do not show a significant, ‘overarching pattern’ of inaction over time that placed A.R. at substantial risk of harm in August 2023,” see In re Priscilla B., 214 Md. App. at 625–26, the time of the hearing. And indeed, there was evidence that Mother had moved to a new apartment and no evidence that the new home was in a deteriorated condition. But in light of the court’s findings that this case was “not an isolated incident,” the record amply supports the juvenile court’s determination that Mother’s prior unwillingness to correct the issue, and more importantly Mother’s failure to comply with an OCC, plus the documented educational neglect, left her unfit to care for A. The educational neglect aspect of this case is problematic and Mother continues to minimize this issue. From November to February 2023, just over three months—the bulk of which Mother was subject to the OCC requiring A be present and on time for school— A had twenty-five absences, twenty-two of which were unexcused, according to school records. Mother states that her testimony was “not technically inconsistent with the school records” and that she gave “reasonable justification” for why the records identified excessive absences incorrectly. But the court wasn’t persuaded by her “reasonable justification[s]” and we will not disturb the trial court’s credibility determination on appeal. Moreover, Mother argues that because DSS left J in Mother’s home due to his age and resistance to leaving, “the home conditions could not have posed a grave danger” to A. But the opposite inference is possible too since Mother blamed J for the state of the home repeatedly (which also supports the court’s finding of “potential harm in the home
from [J] to [A]”). Mother testified at length about her inability to control J’s behavior and that she needed help to deal with him, in addition to the social worker’s expert testimony that J could pose a risk of physical harm to A. So although Mother had moved to a new apartment and there was no evidence of its present condition, the juvenile court, viewing the totality of A’s circumstances, had sufficient evidence to find by a preponderance of the evidence that Mother was unable to care properly for A. See id. at 621 (citing In re Dustin T., 93 Md. App. 726, 735 (1992)).
3. Father’s fitness was uncontested and there was sufficient evidence for the court to find him able and willing to care for A.
Once the court determined that Mother was unfit, it next had to determine whether A had another parent who was able and willing to care for her. CJ § 3-819(e). There was no evidence to suggest that Father was either unable or unwilling and, in this appeal, Mother offers none. We affirm this aspect of the juvenile court’s ruling.
4. Transferring custody of A to Father was in her best interest.
Having found that Father was ready, willing, and able to undertake the care and custody of A, the juvenile court was prohibited from determining that A was a CINA and, instead, the statute permitted the court to transfer custody to Father. Remaining “mindful that ‘[q]uestions within the discretion of the trial court are much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred,’” In re Shirley B., 419 Md. 1, 19 (2011) (quoting In re Yve S., 373 Md. at 583), we see no abuse of the juvenile court’s discretion and affirm.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. APPELLANT TO PAY COSTS.
FOOTNOTES
1 To respect and protect the privacy of the child in this matter, we refer to the child, her parents, and half-sibling by initials. We mean no disrespect.
2A “CINA” case refers to proceedings brought pursuant to Maryland Code (1974, 2006 Repl. Vol., 2008 Supp.), Title 3, Subtitle 8 of the Courts and Judicial Proceedings Article (“CJ”) for the protection of children “coming within the provisions of [the] subtitle[.]” CJ § 3–802(a)(1). Under CJ § 3-801(f) a CINA or “Child in need of assistance” means “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
3 A “safety plan” can be used by the Department “as one method of ‘any appropriate services in the best interest of the child’ when assessing the welfare of
the child” and “are only approved for low risk, alternative response cases.” In re J.R., 246 Md. App. 707, 737 (2020) (citing Md. Code (1984, 2018 Repl. Vol.), § 5-706(n), (s)(11) of the Family Law Article (“FL”)). The Department has “far-reaching authority” to use alternative responses and the legislature gave the Department broad deference to determine what is an “appropriate service[].” Id. at 738 (citing FL § 5-706(s) (11)(i)).
Mother had agreed that A could visit Father for the weekend so that Mother could clean the home, then agreed to extend that visit under a safety plan until September 23rd. J remained in the home because he was “14 years old and he was unwilling to go.”
4 A was returned to Mother’s care after a social worker verified that the home had been “clear of the debris.”
5 Mother phrased the Questions Presented as follows:
1. Did the juvenile court lack subject matter jurisdiction to proceed in this matter considering neither the Department nor any other party ever alleged that A.R. was a CINA, and as a result, should the final judgment be vacated with directions to the lower court to dismiss the petition?
2. Did the court err when it failed to adopt CINA petition amendments proposed by mother?
3. Did the court err when it transferred custody of A.R. to father under CJP § 3-819(e) before dismissing the case?
A. Did the sustained findings and evidence fail to establish that
A.R. was a CINA as to mother, and in particular, that mother was presently unable or unwilling to care for A.R.?
B. Did the evidence fail to establish that a full custody transfer was in A.R.’s best interests?
The Department listed its Question Presented as, “Did the juvenile court properly act within its broad discretion by placing A.R. in Father’s custody before dismissing the CINA petition?”
Father phrased his Questions Presented as:
1. Did the juvenile court have subject matter jurisdiction over A.R. as an alleged CINA?
2. Did the juvenile court have the authority to transfer custody of A.R. to father, the non-offending parent, under CJP § 3-819(e) and to close the CINA case?
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 28 (2024)
Absolute divorce; answer; default Tiffany Bynum v. Kimothy Bynum
No. 1296, September Term 2023
Argued before: Graeff, Arthur, Eyler, James (retired; specially assigned), JJ.
Opinion by: per curiam
Filed: May 13, 2024
The Appellate Court affirmed the Prince George’s County Circuit Court’s judgment of absolute divorce. Although a party alleged her attorney did not file her answer on time, failed to include all the required information in that answer, failed to attend the hearing on the other party’s motion for order of default, failed to file a motion to vacate the order of default, and generally failed to advise her on the progress of her case, in the absence of any claim of error by the trial court, the judgment must be affirmed.
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.
appellant, acting pro se, filed an untimely counter-complaint on June 6, 2023. Following the June 14 hearing, which appellant, but not her attorney, attended, the magistrate issued a report recommending that the parties should be granted an absolute divorce. That report did not address any issues related to the division of marital property. Appellant’s counsel filed timely exceptions, asserting that the magistrate had failed to “address the equitable distribution of marital assets and property[.]” However, the court dismissed those exceptions because appellant failed to file a transcript of the June 14 hearing. The same day the court also entered a final judgment granting appellant’s complaint for absolute divorce. This appeal followed.
On appeal, appellant does not specifically contend that the court erred in any respect. Instead, she takes issue with her representation in the circuit court, claiming, among other things, that her attorney did not file her answer on time, failed to include all the required information in that answer, failed to attend the hearing on appellee’s motion for order of default, failed to file a motion to vacate the order of default, and generally failed to advise her on the progress of her case. She asserts that these actions ultimately resulted in the court not “resolv[ing] the financial details” of the divorce that she had requested.
On December 8, 2022, Kimothy Bynum, appellee, filed a complaint for absolute divorce against Tiffany Bynum, appellant, in the Circuit Court for Prince George’s County. Appellant, through counsel, filed an answer on March 3, 2023, but that answer was rejected because it did not address all the allegations in the complaint. On April 20, 2023, the court issued a notice and order of default. Appellant did not file a motion to vacate the order of default, and a hearing before a magistrate on the issue of divorce was set for June 14, 2023. Although she was still apparently represented by counsel,
To be sure, appellant’s claims are concerning. But even if we assume her contentions to be true, “one of the most fundamental tenets of appellate review” is that “[o]nly a judge can commit error. Lawyers do not commit error.” DeLuca v. State, 78 Md. App. 395, 397-98 (1989). In other words, “[a] ppellate courts look only to the rulings made by a trial judge, or to his [or her] failure to act when action was required, to find reversible error.” Braun v. Ford Motor Co., 32 Md. App. 545, 548 (1976). Although appellant may have other remedies available to her, in the absence of any claim of error by the trial court, we must affirm the judgment.1
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 In any event, because appellant did not file a timely answer, did not move to vacate the order of default and
did not provide a transcript with her exceptions to the magistrate’s recommendations, we discern no error in the court’s granting of the judgment of absolute divorce.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Anne Arundel County Circuit Court’s resolution of child support and reimbursement of medical expenses issues between the parties regarding twins resulting from an affair.
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.
custody and access, alleging that Grimes was refusing to comply with the circuit court’s previous orders, was undermining his relationship with the twins by refusing to acknowledge him as their father, and was making decisions that negatively effected the twins’ physical and emotional well-being. Laplanche sought sole legal and primary physical custody.
While Laplanche’s motion was pending, Grimes filed a motion to modify child support, arguing that Laplanche’s income had dramatically increased since the last calculation and his child support obligation should be increased, that Laplanche was refusing to pay his share of uninsured medical expenses, and that she had been forced to incur significant health insurance costs on behalf of the twins because Laplanche had failed to provide continuous insurance coverage.
The parties in this case are well known to this Court. In December 2014, appellant Denise Grimes gave birth to twins as a result of an affair with appellee James Laplanche. In 2017, we held that the circuit court did not err in ordering the DNA test that confirmed Laplanche was the twins’ father because Grimes had produced sufficient evidence to overcome the rebuttable presumption that her husband was the father. Laplanche v. Grimes, No. 2464, Sept. Term 2016 (unreported opinion) (filed September 14, 2017). In 2020, we held that Laplanche’s change of heart to seek visitation rights and become involved in the twins’ lives constituted a material change in circumstances to support modification of the existing custody order. Laplanche v. Grimes, No. 3141, Sept. Term 2018 (unreported opinion) (filed March 30, 2020). In this, their third visit to this Court, we are asked to review the circuit court’s orders regarding child support and reimbursement of medical expenses. For the reasons that follow, we affirm the judgment of the circuit court.
DISCUSSION
In September 2020, following this Court’s previous unreported opinion, the circuit court entered an order awarding Grimes full legal and physical custody of the twins and regular visitation to Laplanche. Grimes was ordered to include Laplanche in all major decisions involving the twins. The circuit court’s order further provided that Laplanche was to pay child support, including arrearages, and provide health insurance for the twins.
In April 2021, Laplanche filed a motion to modify
In August 2022, the parties entered into a consent order resolving all custody and access issues. In the consent order, the parties agreed to share joint legal and physical custody, that all major decisions would be made jointly, and established a week on / week off access schedule. In October 2022, the circuit court held a hearing on the remaining financial issues. Following four days of testimony and evidence, the circuit court made an oral ruling, followed by a written order, resolving child support, payment of medical and other expenses, and health insurance.
Grimes now raises seven issues related to the circuit court’s orders. She argues that the circuit court erred by (1) excluding two exhibits she had offered into evidence, (2) miscalculating Laplanche’s share of past medical expenses, (3) restricting her ability to use out-of-network medical providers, (4) prohibiting her from obtaining secondary health insurance for the twins, (5) incorporating its oral opinion into the written order, (6) allowing her counsel to withdraw and denying her request for a postponement, and (7) denying her request for attorney fees. Although we combine issues 3, 4, and 5, and issues 6 and 7, we will address each issue raised.
I. Exclusion of Evidence
In her first issue, Grimes argues that the circuit court erred by excluding exhibits #11 and #25 from evidence. Evidence at the hearing established that Grimes had bought the twins each a dog, and asked the pediatrician to recommend that they needed emotional support animals so that Grimes could consider them a medical expense. Thus, as part of her claim for reimbursement of uninsured
medical expenses, Grimes argued that Laplanche was required to reimburse her for half of the cost to purchase, train, and care for the dogs. Grimes offered into evidence exhibit #11, which she described as a collection of bills for training and veterinary care covering the time period from August 2020 through April 2022. Grimes testified that she estimated the bills added up to about $17,000, but that she did not know the exact amount. Grimes asserted that exhibit #11 should be admitted as medical records, but the circuit court ruled that it was lacking proper certification to do so. Moreover, the circuit court found that the documents were inadmissible as evidence of Grimes’ expenses because they were incomplete and Grimes could not identify the actual amount of reimbursement that she was requesting. The court noted that the exhibit could be offered again if Grimes cured the deficiencies.
Later in her testimony, Grimes offered into evidence exhibit #25, which she described as invoices from Waugh Animal Hospital for the care of the twins’ emotional support dogs. The circuit court ruled that because Grimes had thus far failed to offer any evidence supporting her assertion that a medical provider had prescribed emotional support dogs, there was nothing to support the admission of the dogs’ veterinary bills.
On appeal, Grimes argues that the circuit court erred in excluding her exhibits because her testimony that the dogs had been prescribed by the twins’ pediatrician was uncontradicted and thus provided a “foundation for a prima facia finding that the expenses were medically necessary.” She further argues that her testimony, when considered with the appearance of the documents and the surrounding circumstances, should have been enough to authenticate them as business records. We are not persuaded.
As a general rule, “whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the [circuit] court” and we will not second guess a circuit court’s ruling in the absence of a clear abuse of discretion. Perry v. Asphalt & Concrete Services, Inc., 447 Md. 31, 48 (2016) (quoting Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619 (2011)). Contrary to Grimes’ assertion, the circuit court was not obliged to defer to her testimony either about the medical necessity of the dogs, or the authenticity of the documents in her exhibits. It is apparent from the record that the circuit court simply was not persuaded by Grimes’ claim that the dogs were medically prescribed as emotional support animals. Indeed, the circuit court stated that it believed Grimes had decided to get dogs, and then put the twins through unnecessary psychological testing in the hope that someone would say the dogs were necessary to justify the expense and make Laplanche pay for half. As a general rule, it is not an abuse of discretion for a factfinder to simply not be persuaded of something. Bricker v. Warch, 152 Md. App. 119, 137 (2003). Here, the circuit court was simply not persuaded that the dogs were medically prescribed or that their purchase and care constituted reimbursable medical expenses. Consequently, it was not an abuse of discretion to exclude Grimes’ evidence to establish those expenses.
II. Medical Expenses and Insurance
Grimes next challenges that the circuit court miscalculated Laplanche’s share of the twins’ medical expenses, and abused its discretion by restricting her right to use out-of- network providers and ordering her to not obtain additional health insurance coverage for the twins. Specifically, Grimes argues that Laplanche had an “absolute obligation” to reimburse her claimed expenses, and the circuit court should not have reviewed those expenses to determine either medical necessity or the nature of the expenses, that is, whether it was a co-pay, part of a deductible, or for treatment that was not covered by insurance. Moreover, Grimes asserts that the circuit court should not have concerned itself with the “fine print of the parties’ health insurance policies,” and should have instead accepted her testimony that all the expenses were medically necessary and appropriate for reimbursement. Grimes further argues that the circuit court “does not assume the responsibility of raising children” and should not interfere in a parent’s decisions about either healthcare or insurance coverage. None of these arguments have merit.
With regard to the calculation of reimbursable medical expenses, the record shows that the circuit court reviewed the evidence submitted by Grimes and ordered Laplanche to reimburse her for the expenses that were supported by admissible evidence. There is simply no merit to Grimes’ assertion that the circuit court erred by making an independent determination about reimbursable expenses rather than deferring to her judgment as “a capable parent [to] whom the circuit court granted custody.”
The remainder of Grimes’ healthcare-related complaints—that the circuit court should not have directed her to use in-network providers or refrain from getting secondary insurance for the twins—are similarly frivolous. Grimes asserts that the circuit court does not have the authority to restrict her rights as a custodial parent when it comes to making decisions about the care of the twins. Grimes is wrong. A parent’s rights in the raising of their children are not absolute or unlimited. In re Yve S. 373 Md. 551, 568 (2003). The State has a well-established interest in protecting the best interests of children, particularly in disputes over questions of custody or access to a child. Boswell v. Boswell, 352 Md. 204, 219 (1998). And contrary to Grimes’ apparent assumption, she has no greater right to make decisions for the twins than does Laplanche. MD. CODE, FAM LAW (“FL”) § 5-203(d)(2). Moreover, it is, in fact, the exact role of the court to intervene in a dispute between two parents, living apart, who each have equal rights to raise their children. FL § 5-203(d)(1); Yve S., 373 Md. at 568. That is precisely what the circuit court has done here.
At the hearing, evidence and testimony established that, contrary to Grimes’ assertion that she was forced to add the twins to her husband’s health insurance because Laplanche left them uninsured, Laplanche consistently provided health insurance for the twins. The unnecessary double coverage, combined with poor communication between Grimes and
Laplanche, caused confusion in determining what claims and providers were covered and by which insurance policy. Evidence further established that Grimes frequently took the twins to see providers who were out-of-network, and for medical testing and psychological counseling over Laplanche’s objection. The overall result was avoidable and expensive out of pocket costs, and frequent conflict between Grimes and Laplanche. The circuit court reviewed all of this evidence, balanced the rights of Grimes and Laplanche as parents with joint legal and shared physical custody, and prioritized the best interests of the twins. We see no abuse of discretion in the circuit court’s decisions.
III. Written Order
Grimes next asserts that the circuit court erred by incorporating its oral opinion into its written order. She argues that doing so is overly burdensome to the parties because the oral and written orders may contain contradicting terms,1 it requires the parties to refer back to the transcript, and that transcripts are susceptible to transcription and printing errors over which the court would have no control. None of these arguments have merit.
On October 6, 2022, the circuit court issued a detailed oral opinion setting forth the legal and factual basis for its decisions. The circuit court’s written order, issued on December 8, 2022, explicitly noted that it was to be read and interpreted in a manner consistent with the oral opinion, that both parties had been advised by the court to obtain a copy of that transcript, and that the transcript would control if any questions arose regarding the interpretation of the written order.
In Maryland, it is a widely accepted practice for a court’s oral ruling to be incorporated by reference into the subsequent written order, and it has been well established that if there is a discrepancy between the written order and the transcript, “unless it is shown to be in error, it is the transcript that prevails.” Savoy v. State, 336 Md. 355, 360 n.6 (1994) (citing Waller v. Maryland Nat’l Bank, 332 Md. 375, 379 (1993) and Roberts v. State, 219 Md. 485, 488 (1979)); Douglas v. State, 130 Md. App. 666, 673 (2000). Contrary to Grimes’ complaints, there is nothing erroneous about the circuit court following well-established practices when issuing its ruling.
IV. Attorney fees
Next, Grimes argues that the circuit court erred in denying her request for attorney fees because LaPlanche had no substantial justification for defending against her claims and had ample financial resources to pay. Again, we are not persuaded.
Whether to award attorney fees is a discretionary decision left to the circuit court. Petrini v. Petrini, 336 Md. 453, 468 (1994) (citing Jackson v. Jackson, 272 Md. 107, 11112 (1974). Under Section 12-103 of the Family Law Article, the circuit court may award attorney fees to either party in an action concerning the custody, support or visitation of a child after considering the financial status and needs of each party and whether there was “substantial justification for bringing, maintaining, or defending the proceeding.” FL §
12- 103. If, however, the circuit court makes a factual finding that “there was an absence of substantial justification for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary,” the court shall award costs and attorney fees to the other party. FL § 12-103(c).
Grimes asserts that LaPlanche had no substantial justification for defending the proceedings because she presented ample evidence of the medical expenses and because LaPlanche had the financial resources to pay. The circuit court’s findings belie Grimes’ position. As noted previously, after reviewing the evidence at the hearing, the circuit court found that many of the expenses Grimes claimed were not reimbursable and some, like the emotional support dogs, were not even properly classified as medical expenses. Indeed, in considering the statutory criteria for the award of costs and attorney fees, the circuit court found that Grimes’ case “for the most part, was unnecessary and did not need to be brought to court.”
The record shows that the circuit court considered the statutory criteria. Whether Grimes had substantial justification for the actions causing the accrual of attorney fees is one of the factors that the court was required to consider, and the record supports the court’s finding that she did not. Thus, there is nothing erroneous about the court’s decision to deny Grimes’ motion for attorney fees.
V. Withdrawal of Counsel and Denial of Postponement
Finally, Grimes argues that the circuit court erred by granting her former counsel’s motion to strike her appearance only 10 days after it was filed, and then not granting Grimes’ request for a postponement. Neither argument has merit.
Both the decision to grant or deny a motion by counsel to withdraw and the decision to grant or deny a motion for a continuance are rulings that are within the sound discretion of the circuit court and will only be disturbed in “‘exceptional circumstances where there was prejudicial error.’” Serio v. Baystate Properties, LLC, 209 Md. App. 545, 554 (2013) (quoting Thanos v. Mitchell, 220 Md. 389, 392 (1959)).
In the summer of 2022, Grimes was represented by Stacey Rice. On August 10, 2022, Rice provided written notice to Grimes of her intent to file a motion to withdraw. Five days later, on August 15, 2022, Rice filed a Motion to Strike her Appearance with the circuit court. On August 22, 2022, the twins’ best interest attorney consented to Rice’s motion to withdraw. On August 23, 2022, LaPlanche’s attorney consented to the motion to withdraw. Also on August 23, Grimes responded to Rice’s Motion, and Rice responded to Grimes’s response. On August 24, the circuit court issued an order striking Rice’s appearance.
Grimes’ first argument is that the circuit court ruled too quickly. Although Grimes insists that the court had to wait 15 days before ruling, the Maryland Rules do not impose any such limitation. Rather, the Maryland Rules provide that parties have 15 days to respond to a motion, after which
time the court may proceed to rule on the motion. MD RULE 2-311(b). All of the parties responded in less than 15 days. Once they had, it was proper for the court to rule. Grimes further argues that because the court allowed Rice to withdraw as her attorney less than six weeks before the hearing, it was an abuse of discretion for the court to then deny her request for a postponement. We first note that Grimes filed her request for a postponement on August 19, 2022, before the court ruled on Rice’s motion to withdraw. Because Grimes was still represented, the court notified her that any motions or requests for relief had to be filed by her attorney and, therefore, the court would
not take any action on her motion for a postponement. The record does not reflect that any other motions to postpone were filed. Thus, it does not appear that there was a valid motion for the court to rule on. We note, however, that even if a proper motion had been filed, it would not have been an abuse of discretion for the court to have denied it. Grimes had new counsel enter an appearance on September 7, 2022, approximately four weeks before the hearing. Even if Grimes is dissatisfied with her new counsel’s performance, there were no exceptional circumstances that required postponing the matter any further.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 We note that Grimes has not identified any conflicting terms, she merely alleges the possibility that conflicting terms may arise.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s award of primary physical custody and tie-breaking authority of the parties’ minor child to the father. The circuit court carefully evaluated the appropriate factors, made factual determinations based on the testimony and evidence presented and detailed its findings.
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.
March of 2021. One month later, Father filed a complaint for divorce, asking for joint legal and shared physical custody of O. Mother filed a counter- complaint for divorce, seeking joint legal and primary physical custody of O.
In August 2021, Mother was deployed to Texas for military training with the U.S. Air Force. As a result, O. began residing exclusively with Father.
In October 2022, the circuit court entered a pendente lite order by consent of the parties. That order granted Father primary physical custody of O. and set forth a weekly video call access schedule for Mother, who was at that time stationed at Langley Air Force Base in Virginia. The court’s order reserved the issue of child support until the custody merits hearing.
In February 2023, the Circuit Court for Montgomery County granted appellee, Noufou Ouedraogo (“Father”), an absolute divorce from appellant, Emily Guelbeogo (“Mother”), awarded Father primary physical custody and the parties joint legal custody of the couple’s minor child, and set forth Mother’s child support obligation. Mother appealed, challenging the circuit court’s physical custody and child support determinations.
In an unreported opinion, this Court determined that the circuit court had not sufficiently indicated on the record which factors it relied upon in reaching its custody decision. We, therefore, vacated the judgment with regard to physical custody and child support and remanded for further proceedings. See Guelbeogo v. Ouedraogo, Case No. 2268, Sept. Term, 2022 (unreported) (filed August 7, 2023) (“Guelbeogo I”).Following the remand, the circuit court issued a written opinion and order detailing the specific factors it had considered in its custody determination, ultimately leaving its February 2023 order in full force and effect. Mother, representing herself, again appeals the award of physical custody with tie-breaking authority to Father.1 For the reasons that follow, we affirm the order of the circuit court.
FACTS AND LEGAL PROCEEDINGS
Mother and Father married in June 2017, and their only child, O., was born in July 2018. The parties separated in
On February 2, 2023, the parties appeared before the circuit court for a contested custody hearing. Father appeared with counsel, while Mother represented herself. The testimony focused primarily on child support and the physical custody of O., who had been diagnosed with a speech delay and autism spectrum disorder. Mother and Father agreed that joint legal custody was appropriate. See supra, n.1
Father testified that he had relocated from Montgomery County, Maryland, to Pennsylvania so he could obtain employment in West Virginia. Father’s flexible position permitted him to work from home eight of every ten business days and to set up O.’s developmental services in a structured daycare center.
Father said he had been caring exclusively for O. since August 2021. Since then, according to Father, O. had spent only two overnights with Mother in December 2021 and had one other visit with her in August 2022. Father also stated that Mother participated in video calls with O. approximately once per month, but she did not call regularly. Father expressed his willingness to “encourage and facilitate” a relationship between Mother and O., and asked the court for joint legal and primary physical custody, with Mother to have six weeks with the child during the summer and during some school breaks. In support of his request for child support, Father entered his financial and earning statements into evidence, along with the one earning statement Mother had produced during discovery when she had been represented by counsel.2
Mother testified that Father had kicked her and O. out of their home in September 2020. She said she joined the military because she had previously only been working on weekends and needed a way to earn more money. After
joining the Air Force, Mother had relocated to Virginia. She testified that her military training precluded in-person visits with O.s and that Father refused to let her communicate with the child by video. Mother also raised concerns about “scars” she had observed on O.’s body. Father explained that O.’s doctor had diagnosed the marks as a viral rash and had prescribed medication, after which the rash went away. Mother also made an unsubstantiated claim of malnourishment because, she said, Father fed O. nothing but pizza and junk food.
The circuit court did not issue an oral ruling following the hearing. By written order entered on February 22, 2023, the court granted Father a judgment of absolute divorce based on a one-year separation. The court’s order granted Mother and Father joint legal custody of O. with Father to have tie-breaking authority. The court further awarded Father primary physical custody with Mother to have six consecutive weeks of visitation during the summer and on specified holidays. The order set Mother’s child support obligation at $917 per month. Mother appealed.
In our unreported opinion in Guelbeogo I, we held that a remand was necessary because, although the circuit court’s custody determination may have been in O.’s best interests, the record did not indicate which factors the court relied upon in reaching its decision. Guelbeogo I, at 5-6. Indeed, neither the transcript nor the court’s written order mentioned the factors enumerated in Taylor v. Taylor, 306 Md. 290 (1986), or Montgomery Cty. v. Sanders, 38 Md. App. 406 (1977), nor set forth the facts and conclusions supporting the court’s custody determination. And, although we concluded that the record reflected that the circuit court properly used the incomes provided by the parties in calculating child support under the statutory guidelines, because we vacated the court’s order with respect to physical custody, we also vacated the order with respect to child support so that those issues could be addressed together on remand. Guelbeogo I, at 6-7.
On October 30, 2023, the circuit court issued its written opinion and order after remand. Therein, the court reiterated the background of the matter and provided a detailed explanation of the basis for its prior order, including its consideration and application of the Taylor and Sanders factors. The court further set forth its findings that Father was more credible than Mother, “particularly on areas where their testimony conflicted,” and that Father was “the more fit parent.” The court again concluded that the parties should have joint legal custody of O., with Father to have primary physical custody and tie-breaking authority. The court also left intact its child support determination.
Mother filed a timely notice of appeal of the court’s order.
DISCUSSION
As she did in Guelbeogo I, Mother contends that the circuit court erred in awarding Father primary physical custody and tie breaking authority and in setting her child support obligation. Specifically, she argues that the court did not take into consideration evidence supporting allegations that Father abused O., that Father
took advantage of her entry in military training to obtain custody of O., and that it is extremely difficult for her to meet her child support obligation because it amounts to “half of her monthly pay.”
Father did not file a brief.
I. Standard of Review
When reviewing a circuit court’s ruling in child custody cases, we utilize three interrelated standards: ‘[First] when the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second], if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.’
Kadish v. Kadish, 254 Md. App. 467, 502 (2022) (quoting In re Yve S., 373 Md. 551, 586 (2003)). Further, when a child support 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.’”
Walker v. Grow, 170 Md. App. 255, 266-67 (2006) (quoting Child Support Enforcement Admin. v. Shehan, 148 Md. App. 550, 556 (2002)).
II. ANALYSIS
In resolving child custody disputes, Maryland courts focus on “the best interest of the child.” Taylor, 306 Md. at 303. The factors enunciated in Taylor and Sanders are the guiding principles for our courts to use in analyzing custody cases.
This Court’s decision in Sanders provided ten non-exclusive factors. They include: (1) fitness of the parents; (2) character and reputation of the parties; (3) desire of the natural parents and agreements between the parties; (4) potentiality of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health, and sex of the child; (8) residences of the parents and opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. Sanders, 38 Md. App. at 420 (citations omitted).
In Taylor, the Supreme Court of Maryland provided an additional list of factors thatinclude: (1) capacity of the parents to communicate and reach shared decisions affecting of the child’s welfare; (2) willingness of the parents to share custody; (3) fitness of the 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 the parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; (13) benefit to the parents; and (14) any other factor the court deems relevant. Taylor, 306 Md. at 304-11 (citations omitted). The Taylor factors work in tandem with the Sanders factors to aid the trial court in determining what is ultimately in the best interest of the child. Taylor, 306 Md. at 303 n.10.
In its opinion and order following remand in the present case, the circuit court examined the Sanders/Taylor factors and made the following specific factual findings: The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare
The court determined that, despite “some difficulties at times,” Mother and Father have the capacity to communicate and reach shared decisions affecting O.’s welfare.
The fitness of the parents
The court determined that, “[w]hile [Mother] appears to be a fit parent, it is clear to the Court, based on the evidence, that [Father] is the more fit parent.” The court based its finding on Father’s testimony about the care and attention he has given O. “especially given her special needs[.]”
Moreover, while it was clear that Father had a “good relationship with the child,” the evidence regarding Mother’s relationship with O. “was scant.”
The character and reputation of the parties.
The court was “again impressed with [Father’s] care for, and attention [given to O.]” The court found that Father testified “forthrightly and honestly” but was concerned by what it perceived as Mother’s “lack of candor” at times.3
The requests of each parent and the sincerity of the requests
The court acknowledged that both parents sincerely wanted custody of O. It found, however, that Mother had failed to avail herself of the access permitted by the pendente lite consent order. The court was also impressed by Father’s stated desire that O. maintain a strong relationship with Mother and found that the visitation scheduled proposed by Father was sound and clearly in O.’s best interest.
Any agreements between the parties
The court pointed to the pendente lite consent order and the access it provided to each parent.
Ability to Maintain Family Relations; Child’s preference. The court specified that these factors did not play a role in its decision, given the child’s young age and her special needs.
Material opportunity for the child.
Given Father’s flexible employment, his income, and the resources available in his community, the court found that the material opportunities affecting O.’s life were, “at this moment, far greater with [Father] having primary physical or residential custody than they would be if O[.] lived primarily with her mother.”
Additionally, the court found Father better able to meet the child’s developmental needs and to support her emotional and physical security, intellectual growth, and education.
Age, health, and gender of minor.
The court found that O.’s opportunities would be better with Father and that this “is particularly true given O[.’s] health issues.” The court noted that O.’s age and gender did not play a significant role in its custody decision.
Geographic proximity of each parent.The court stated that Father provided a suitable living arrangement for O. but that the evidence was not clear regarding a living arrangement offered by Mother. The court also noted that the geographical distance between the parties’ current homes in Pennsylvania and Virginia “presents challenges” but that the access schedule suggested by Father, and adopted by the court, was fair and allowed Mother ample time to spend with O. The court further noted that in the approximately 18 months O. had lived with Father, the child had only spent two nights and an additional three hours with Mother. Those visits and a few telephone or video calls were “the full extent of [Mother’s] contact with her daughter.”
Prior voluntary abandonment or surrender. The court found there had been no voluntary abandonment or surrender by either parent. Based on its analysis of these factors, the circuit court “found that none of them weigh against granting the parties’ request for joint legal custody.” The court further found that O.’s best interests were best served by awarding Father primary physical custody and tie-breaking authority in the event of an impasse. The court based the tie-breaking authority on the occasional communication difficulties between Mother and Father, Mother’s lack of engagement in O.’s life, and Father’s full engagement and day
to day contact with O. The court left intact its visitation schedule, with Mother to have O. for six weeks during the summer, along with certain holidays and additional in-person visitation in Pennsylvania so long as she gave Father at least two weeks’ notice. As for child support, the court found that its prior calculation of monthly child support, based on the statutory guidelines, remained appropriate, given its
award of sole physical custody to Father.4
In our view, the circuit court did exactly what we asked it to do upon remand. The court neither erred nor abused its discretion in awarding custody and child support. The court carefully evaluated the appropriate factors, made factual determinations based on the testimony and evidence presented, and detailed its findings. The circuit court’s ultimate decision is in accord with the best interest of the child standard.
ORDER OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID
FOOTNOTES
1 Although Mother purports to appeal the “child custody and the tie breaker order,” she adds a two-sentence complaint to the body of her brief averring that the court’s child support order is “impossible for [her] to pay…[and makes] her life extremely difficult,” along with a brief assertion that “the appeal issues are legal and physical child custody, child support, and marital assets.” We will briefly discuss the issue of child support, below, but, as we pointed out in Guelbeogo I , and as remains true here, “the circuit court found that marital property claims were withdrawn after neither party presented evidence in support of those claims at trial. Moreover, the record reflects that Mother agreed to joint legal custody. Accordingly, the issues of marital property and legal custody are not properly before us.” Guelbeogo I, at 1 n.1 (citing MD R. 8-131(a)).
2 Mother, who had not filed a financial statement, claimed that the earning statement overstated her monthly income by $1500. The circuit court gave Mother the opportunity to email it a December 2022 earnings statement, which showed approximately $900 less compensation per month than the statement previously provided to Father’s counsel. The court admitted the 2022 earnings statement into evidence and permitted Father’s attorney to question Mother about the discrepancy in income, but counsel did not do so. It appears that the court utilized the lower income amount in Mother’s exhibit in calculating her child support obligation under the statutory guidelines.
3 Despite Mother’s claim that O. was “malnourished” because of Father’s choices in her diet, along with the allegation in her informal brief that Father abused O., she presented no evidence of abuse or malnutrition at the custody hearing. The court was justified in finding Father more credible in his testimony regarding his care of O. and in not considering abuse or malnutri-
tion as a factor in its custody determination. See Nouri v. Dadgar , 245 Md. App. 324, 342 (2020) (credibility determinations are for the fact finder). To the extent that Mother claims she has “new evidence” of abuse, she retains the option of moving to modify custody.
4 As she did in her first appeal, Mother contends that the circuit court’s child support award makes her life extremely difficult because it amounts to half her salary. As we noted in our opinion in Guelbeogo I , however, Mother did not challenge the circuit court’s use of the guidelines, or the income and expenses used therein. Therefore, as we explained, “such an assertion does not amount to an abuse of the court’s discretion. Indeed, the record reflects that the court properly used the incomes provided by the parties in calculating child support under the Guidelines, and Mother makes no assertion that the court’s calculation was unjust or inappropriate.” Guelbeogo I, at 6.
Having made that determination in our previous decision, the issue of the propriety of the circuit court’s calculation of Mother’s child support has become the law of the case and is no longer open to Mother’s challenge. See Holloway v. State, 232 Md. App. 272, 279 (2017) (“The law of the case doctrine provides that, once an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case. Furthermore, not only are lower courts bound by the law of the case, but decisions rendered by a prior appellate panel will generally govern the second appeal at the same appellate level as well, unless the previous decision is incorrect because it is out of keeping with controlling principles announced by a higher court and following the decision would result in manifest injustice.”) (Cleaned up).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s modification of child custody between father and mother. The circuit court properly considered the best interests of the children, did not err in alternating summer access and refusing to award FaceTime access, did not err in finding mother credible, and did not improperly prevent father from admitting evidence at trial.
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.
custody, and Mother and Father joint legal custody, with the exception that Father would have sole legal custody “for all medical and educational issues.” The order granted Father the right to “hold the passports of the children” and “do everything necessary in order to update and keep current the passports of the children.” The court provided that Father have access during school breaks, including the following summer access schedule: the children shall spend the first three weeks of the school summer vacation with [Mother], which shall begin on the last day of school for students, and the following seven weeks of summer vacation with [Father.]
Father would keep Mother “informed of the location where the children will spend overnights when they are with him,” and the parties would “have Skype or FaceTime with the children four times per week.”
I. Father’s Motion to Modify Custody
This appeal arises from an order issued by the Circuit Court for Montgomery County modifying child custody between appellant, Jacques Bouhga-Hagbe (“Father”), and appellee, Blonley Michel (“Mother”). On appeal, Father lists twelve issues for our review,1 which we consolidate and rephrase into the following five questions:
1. Did the court fail to consider the children’s best interests?
2. Did the court err in alternating summer access with the children and in failing to award FaceTime access?
3. Did the court err in finding Mother credible?
4. Did the court err by prohibiting Father from introducing evidence or by making inferences and findings regarding the facts before it?
5. Was the magistrate’s conduct unfair towards Father?
6. For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The parties married in 2012 and separated in 2018. They are the parents to three minor children: A., D., and Y.2 In May 2019, when A. was six years old, D. was five years old, and Y. was two years old, the court issued an order (the “2019 order”). It granted Mother primary physical
On June 2, 2023, Father filed a motion to modify child custody, requesting primary physical custody of the children. On July 18, 2023, a magistrate held a hearing on Father’s motion.
At the hearing, the parties testified that they believed that their oldest child, A., had Autism Spectrum Disorder (“ASD”), but no formal diagnosis had been made. 3 Mother testified that A. “needs help in transitioning between activities or location[s] and it’s hard for her to transition to another setting where she knows she’s going to sleep.” A. had been receiving Applied Behavioral Analysis (“ABA”) therapy, which had been “really helpful with her language development,” but ABA therapy stopped in 2019 when Father was granted sole legal custody.4 Mother wished to keep primary physical custody of the children and requested sole legal custody, in part, so she could continue ABA therapy for A.
Father sought primary physical custody and sole legal custody for all medical and educational issues. Among other things, he asserted that he intended to take a more active role in the education of the children, stating that, because he had a “high education,” he was “in the better position to help the[] children with their school work.”
Mother testified about an incident where D. returned from Father’s house “very sad,” and the “teachers thought he was depressed.” D. visited his school counselor, where he disclosed that, after becoming upset with D.,
Father had “put him in the basement and turn[ed] out the light.” Father did not dispute Mother’s testimony and testified that he had not spoken with D.’s school counselor.
The parties testified about an incident where A. refused to go with Father during Father’s scheduled summer access. Mother testified that, “when [A.] saw her dad coming to pick them up, and then she saw me giving her [her] bag … she had a meltdown.” In response, Father called the police, claiming he was being “denied access” to A. Mother testified that she did not deny Father access to A., but A. refused to go with Father. In support, Mother introduced the police report, which noted that Father asserted that he wanted a police report to present to court, not that Mother was refusing access to A. Y. and D. went with Father at that time, and A. remained with Mother.
II. Magistrate’s Recommendations
On July 27, 2023, the magistrate issued her recommendations. She made several findings of fact, including that the children were thriving in Mother’s care during the school year, and Father’s work commitments often extended beyond the traditional workday and required him to travel out of the country. The magistrate was not persuaded by Father’s belief that, because Mother had fewer formal degrees than Father, she was in an inferior position with regard to child rearing. Moreover, the magistrate found that the “undisputed testimony was that [A.] benefited from ABA therapy, but ABA therapy ended when [Father] was awarded sole legal custody.”
The magistrate expressed concern over Father’s decision to involve police when A. refused to go with him. She stated that, “[i]nstead of communicating about [A.]’s refusal to spend time with [Father] during the summer, [Father] elected to use law enforcement to compel her to go. That reflects poor judgment, particularly in light of the testimony about [A.]’s difficulties with transitions and difficulty managing her emotions.”
Accordingly, the magistrate recommended modification of the 2019 order. Specifically, the magistrate recommended awarding sole legal custody to Mother and modifying the summer access schedule as follows:
[S]ummer access for [D. and Y.] shall be alternated weekly with the transition occurring on Sundays at 5:00 p.m. The children shall be in [Mother]’s care for the first full week following the conclusion of school, and the parties shall thereafter alternate weekly access.
The parent receiving the children shall pick up the children from the other parent’s residence. [A.] shall have access with her dad during the summer every other week on the same schedule as her brothers, but her visits shall be limited to daytime access from 9:00 a.m. until 5:00 p.m. [Father] shall pick up [A.] from [Mother]’s home in the morning, and [Mother] shall pick up [A.] from [Father]’s home at 5:00 p.m.
III. Court’s Adoption of Magistrate’s Recommendations
Father filed exceptions to the magistrate’s recommendations, listing more than fifty exceptions. Father challenged, among other things, the magistrate’s assessment of the factors set forth in Taylor v. Taylor, 306 Md. 290 (1986) and Montgomery Cnty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977), the magistrate’s credibility determinations, and various “inferences” made by the magistrate, including those regarding his call to police, the health of the children, and the parties’ job demands and educational achievements.
On September 19, 2023, the court held a hearing on Father’s exceptions. Father first asserted that he never discontinued his daughter’s ABA therapy, contrary to the magistrate’s report. He noted that, prior to leaving for Rwanda in 2018, he ensured that his insurance company would continue to cover his daughter’s ABA therapy from August 2018 to February 2019. Nothing in the record showed that Mother took their daughter to her ABA therapy appointments, and Father never received a bill for any therapy sessions. Thus, if he did not have custody, did not call the therapist to cancel any therapy sessions, and did not refuse to pay any therapy bills, he could not have discontinued his daughter’s therapy.
Next, Father argued that there was nothing in the record indicating that he did not follow the doctor’s medical advice for his daughter. He cared for his children’s medical needs by taking them to doctor’s appointments and various surgeries. Father further clarified that, on July 7, he did not call the police on his child, but rather, he called for the police to report that he “was denied access to the child” so he could show the judge. He asserted that the magistrate was “totally wrong” for noting in her recommendation that his daughter was afraid of spending time with him. Moreover, the magistrate’s assertion that Father “believes that he’s superior to [Mother] and her family” was incorrect.
Father further contended that Mother’s testimony that he caused his son’s depression was “fabricated.” The magistrate also incorrectly ruled on Father’s “job demands” because his job was “very flexible.” Finally, the magistrate did not “conduct a thorough examination of all possible factors that impact the best interest of the child” according to applicable case law.5
Mother argued that the magistrate was “truthful” in her recommendation because she “accepted all of the proof” when making her decision. Mother clarified that their daughter’s ABA therapy in 2018 did not require insurance coverage because she was in a program called the “Abused Persons Program,” and her daughter was on Medicaid; thus, her daughter’s therapy bill would not have been mentioned on Father’s insurance.
Mother stated that their daughter told her, the psychologist, and the police that she no longer wanted to stay at Father’s house. Her son also was scared to go to his father’s house, which was corroborated by an email from his school counselor that was provided to the magistrate. Finally, Mother stated that she brought her daughter to summer school, and her children were “thriving” and doing well in school as “straight A students.”
At the conclusion of the hearing, the court gave its ruling.
It noted that the hearing was an “exceptions hearing,” and the court would review the magistrate’s finding of facts under the clearly erroneous standard. It would “give deference to the first level of facts as determined by the magistrate” and then review the magistrate’s recommendations under a de novo standard, conducting an independent review of the facts presented before the magistrate regarding her recommendation. The court addressed the 14 exceptions articulated at the hearing, and it concluded that the magistrate’s findings of fact were not clearly erroneous, and the magistrate’s “recommendations with regards to the findings that she made were appropriate.”
First, regarding the ABA therapy and Father’s allegation that Mother lied by stating that Father stopped the therapy, the court found that the magistrate credited Mother’s testimony that the ABA therapy was benefiting her daughter in 2019, but it stopped when Father received sole legal custody regarding medical care. The magistrate had the right to credit that testimony and was not clearly erroneous.
The court next addressed Father’s claim that the magistrate did not allow him to discuss the custody factors. The court rejected that argument, noting that he discussed different custody factors during his closing argument, and the magistrate asked Father several times whether he would “like to say anything else.”
Regarding Father’s call to police, the court found that the magistrate “properly understood the facts” when she stated that Father’s “decision to contact law enforcement on his 10-year-old daughter [was] reflective of poor judgment.” The court stated that the magistrate’s finding that Father calling the police because he wanted a report for the custody was poor judgment was not clearly erroneous.
The court next found that the magistrate’s finding “that the daughter had an apparent fear about spending time with [F]ather” was supported by the evidence and was not clearly erroneous. With respect to the magistrate’s failure to mention one daughter’s Individual Education Plan, the court found that this was not clearly erroneous because the magistrate “considered all the factors, even if she didn’t specifically mention each one.” Addressing Father’s claim that Mother fabricated that the parties’ son was depressed because of Father, the court found that the magistrate credited Mother’s testimony in this regard, which was not clearly erroneous.
With respect to the magistrate’s finding that Father’s job sometimes required him to work outside the country and often required him to work beyond the traditional workday, the court stated that those findings were supported by the evidence and not clearly erroneous. Regarding Father’s claim that the magistrate improperly precluded him from admitting evidence, the court found that nothing was presented to show that the magistrate was not following the rules of evidence, and the court stated that it did not find that anything that the magistrate did with regard to the evidence was clearly erroneous.
The court found that Father’s exceptions were not sustained, and the magistrate’s recommendations with regard to those findings were appropriate. It found that there was a material change in circumstance, and it would adopt the magistrate’s recommendations. On September 22, 2023, the
court issued an order overruling Father’s exceptions and adopting the magistrate’s recommendations. This timely appeal followed.
STANDARD OF REVIEW
Our appellate courts engage in “a limited review of a trial court’s decision concerning a custody award.” Wagner v. Wagner, 109 Md. App. 1, 39, cert. denied, 343 Md. 334 (1996). We apply three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). First, factual findings are reviewed for clear error. In re R.S., 470 Md. 380, 397 (2020). Second, we review whether the court erred as a matter of law without deference, under a de novo standard of review. Id. Finally, ultimate conclusions of the court, “when based upon ‘sound legal principles’ and factual findings that are not clearly erroneous, will stand, unless there has been a clear abuse of discretion.” Id
Where a magistrate issues child custody recommendations pursuant to Md. Rule 9- 208, the parties may file exceptions to those recommendations. Md. Rule 9-208(f). “[B]oth a trial court and an appellate court defer to the [magistrate’s] first-level findings (regarding credibility and the like) unless they are clearly erroneous.” McAllister v. McAllister, 218 Md. App. 386, 407 (2014). The trial court, however, “must make its own independent decision as to the ultimate disposition.”
Id. Accord Domingues v. Johnson, 323 Md. 486, 496 (1991). We then review the trial court’s ultimate decision for abuse of discretion. McAllister, 218 Md. App. at 407. Accord Domingues, 323 Md. at 492 n.2.
DISCUSSION
Trial courts employ a two-step process when considering a request to modify child custody. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012). They must first determine a threshold question of whether “there has been a ‘material’ change in circumstance.” McMahon v. Piazze, 162 Md. App. 588, 594 (2005). “[I]f the court determines there has been a material change in circumstance, then it proceeds to consider the best interests of the child.” Jose v. Jose, 237 Md. App. 588, 599 (2018).
Several factors guide the court’s consideration of the best interest of the child. Id
In Sanders, 38 Md. App. at 420, this Court set forth the following factors:
1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) potentiality of maintaining natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.
(Internal citations omitted).
Later, in Taylor, 306 Md. at 304-11, the Supreme Court of Maryland expanded on the factors enumerated in Sanders. The Taylor factors include: 1) capacity of the parents to communicate and to reach shared decisions affecting the
child’s welfare; 2) willingness of parents to share custody; 3) fitness of parents; 4) relationship established between the child and each parent; 5) preference of the child; 6) potential disruption of child’s social and school life; 7) geographic proximity of parental homes; 8) demands of parental employment; 9) age and number of children; 10) sincerity of parents’ requests; 11) financial status of the parents; 12) impact on state or federal assistance; 13) benefit to parents; and 14) any other factors as appropriate.
While the factors set out in Sanders and Taylor are instructive to a trial court’s custody determination, “no one factor serves as a prerequisite to a custody award.” Santo v. Santo, 448 Md. 620, 629 (2016). Indeed, this Court has emphasized that “[u] nequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.” Azizova v. Suleymanov, 243 Md. App. 340, 347 (2019), cert. denied, 467 Md. 693 (2020).
Finally, “an appellate court does not make its own determination as to a child’s best interest.” Gordon v. Gordon, 174 Md. App. 583, 637-38 (2007). Instead, “the trial court’s decision governs, unless the factual findings made by the lower court are clearly erroneous or there is a clear showing of an abuse of discretion.” Id. With these principals in mind, we turn to the issues before us.
I.
The court properly considered the best interests of the children.
Father contends that the magistrate’s recommendations “cannot be seen as in the best interest of the children,” and the magistrate erred in failing to “explicitly assess each of [the Sanders and Taylor] custody factors.” In support, Father asserts that the child custody modification has “no legal or factual basis,” prevents him from taking the children on summer vacation, and “mak[es] it impossible for [Father], who is an engineer and a PhD, to train his children regularly during the school year.” Mother responds that the magistrate considered the relevant factors and the best interests of the children before modifying child custody.
The circuit court found that the magistrate properly considered the best interests of the children in ordering a modification of child custody, and we agree. The magistrate specifically noted that “the [c]ourt must conduct a best interest analysis” to modify child custody. Indeed, the magistrate indicated that several facts weighed in favor of modified custody, including: that “[t]he undisputed testimony was that [A.] benefited from ABA therapy, but ABA therapy ended when [Father] was awarded sole legal custody”; that “[i]nstead of communicating about [A.]’s refusal to spend time with [Father] during the summer, [Father] elected to use law enforcement to compel her to go”; that the children were “thriving” in Mother’s care; that Father’s work required travel and “often extend[s] beyond the traditional workday”; that Mother’s “primary concern is for the welfare of the children” and that Father’s “primary concern is in being right and controlling the situation”; that Father “has strained relationships with his family members” and Mother “has close relationships with her extended family”; and that
Father’s “feeling of superiority was clear throughout the hearing,” noting that Father “does not respect [Mother] or her contributions to the family.” We cannot say on the record here that the magistrate failed to consider the best interests of the children under these facts.
The circuit court disagreed with Father’s contention that the magistrate failed to consider the Sanders and Taylor factors, noting that when the parties appeared before the magistrate, “[Father] talked for a long time about different custody factors.” The court concluded that the magistrate “talked about how she considered all the factors, even if she didn’t specifically mention each one,” and it found that there was nothing “clearly erroneous about the [magistrate’s] failure to mention” each of the factors.
We, too, are unpersuaded that the magistrate failed to consider the relevant Sanders and Taylor factors in the record before us. The magistrate specifically listed the combined factors from Sanders and Taylor and noted that she had “considered each of these factors even if I do not specifically reference a particular factor.”
As the Supreme Court made clear in Taylor, “no single list of criteria will satisfy the demands of every case.” Taylor, 306 Md. at 303. Instead, “[t]he best interest standard is the dispositive factor on which to base custody awards,” and here, the record reflects that the magistrate properly considered the best interests of the children. Jose, 237 Md. App. at 600 (citation omitted). Accordingly, given the record before us and the substantial deference we afford to the trial court, we perceive no abuse of discretion in the court’s consideration of the relevant factors and its decision to modify child custody.
II.
The court did not err in alternating summer access and in failing to award FaceTime access.
Father asserts that “many changes introduced in this revised custody order were not discussed at the trial,” pointing to the fact that the court did not award him FaceTime access and that the order revised the summer access schedule by alternating weekly access with Y. and D. and removing overnights with A. Mother asserts that the court properly modified custody “[f]ollowing a comprehensive review of the testimon[y] and evidence presented.”
Preliminarily, we note that Father failed to raise any issue regarding FaceTime access at the hearing before the magistrate, in his exceptions to the magistrate’s recommendations, and during the hearing on Father’s exceptions. Accordingly, this issue is not preserved for our review. See Md. Rule 9-208(f) (“Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.”); Rule 8-131(a) (“Ordinarily, an appellate court will not decide any [] issue unless it plainly appears by the record to have been raised in or decided by the trial court.”).
Further, we find that the court’s decision to modify the summer access schedule to remove Father’s overnight visits with A. was supported by the record. Mother’s undisputed
testimony was that A. had difficulty “transition[ing] to another setting where she knows she’s going to sleep.” Additionally, the magistrate found that, although A. refused to go with Father, that Father “spent almost no time testifying about [A.]’s apparent fear about spending time with him,” and “[i]nstead, he focused on his own accomplishments and [Mother]’s and her sisters’ immigration status.” We cannot say that the court’s discretion to remove Father’s overnight access with A. was arbitrary or clearly wrong under these facts.
Nor are we persuaded that alternating the parties’ weekly summer access with D. and Y. was an abuse of discretion. Father maintains that “alternating access weeks for [D. and Y.] . . . would de facto prevent [Father] from taking the children on vacation,” but provides no explanation as to why the modification would prevent him from taking D. and Y. on vacation. Moreover, the magistrate recommended the modification after finding that Father had exercised “poor judgment” in a matter involving the children, that the children had been thriving in Mother’s care, and that after Father learned that D. had spoken with his school counselor, Father “never contacted the school counselor to discuss [D.]’s issues” and “did not provide a cogent explanation” for failing to do so. Under these facts, we cannot say that no reasonable person would take the view adopted by the circuit court.
III.
The court did not err in finding Mother credible. Father contends that the magistrate gave “undue weight” to Mother’s credibility, stating that Mother lied by: (1) claiming that Father stopped A.’s therapy, “even though [Father] did not have access to the child and was even stationed abroad” at that time; and (2) claiming that Father caused D. “to become ‘depressed’ and go see the school counselor in February 2023, even though at that time, [Father] had not seen the child for more than two months.” Mother disputes Father’s characterizations stating that Father “had legal custody of the children in 2019 but failed to continue ABA [t]herapy” and D. “proactively approached the school counselor and shared concerns regarding his wellbeing when in the custody of his father.”
At the hearing on Father’s exceptions, the court considered Father’s assertion that the magistrate erred in crediting Mother’s testimony and disagreed. Specifically, regarding A.’s therapy, the court noted that:
[T]he magistrate asked how long was [A.] receiving ABA therapy; and [Mother] said she received it for a few months; I can’t remember exactly how long, but I know that it stopped right after the trial in 2019. She said it was definitely assisting her. It was helping in her language development. It was helping her transition and also learn how to be kind when you’re upset.
So, [the magistrate] credited that; and she said that she found that since, since [Father] was granted sole legal custody as to educational and medical issues, no formal diagnosis has been sought or additional services have been attained, obtained for her; and then went on to say, here’s the part about the ABA therapy, that in 2019,
[A.] was receiving ABA therapy and that therapy ended when [Father] was awarded sole legal custody regarding medical care.
[Mother] testified credibly that the ABA therapy was helping [A.]; that [Mother] testified it helped [A.] manage her transitions and to manage her emotions. So, I find that, that the magistrate credited the testimony of the defendant, which she has the right to do; and I find that the testimony of [Mother] supports the finding that [the magistrate] came to. There is nothing here that tells me that it’s clearly erroneous.
Further, the court found Father’s assertion that Mother lied regarding D.’s visit to the school counselor similarly unpersuasive, noting that the magistrate credited Mother’s testimony, and “there was nothing clearly erroneous about that.”
[T]here was a general complaint about relying on [Mother]’s credibility and saying that [Mother] has a track record of lying that [t]he magistrate didn’t consider. But the magistrate was able to examine, observe and examine [sic] both parties, and gave them plenty of time to testify; and I find that nothing was clearly erroneous about her crediting [Mother]’s credibility.”
On appeal, Father does not dispute that there was competent material evidence to support the magistrate’s credibility findings. Accordingly, he fails to satisfy his burden of demonstrating clear error.6
IV.
The magistrate did not err by prohibiting Father from introducing evidence or by making inferences regarding the facts and testimony before it.
Father asserts that he was “not allowed to introduce important documentary and testimonial evidence relevant to the Court’s determination of the Sanders and Taylor custody factors,” and the magistrate made the “wrong inference[s]” regarding his call to police, his involvement in the children’s medical issues, his educational achievements, and the parties’ job demands. Rather than setting forth argument in support of these issues, he refers to over thirty paragraphs enumerated in a motion for a new trial, attached to his brief, which he filed before the circuit court prior to noting this appeal.7
Mother asserts that both parties “were afforded the opportunity to present relevant evidence.” She argues that the court arrived at its factual inferences after “conduct[ing] a thorough examination of the case.”
As we have previously made clear, it is not our role to “delve through the record to unearth factual support favorable to [the] appellant.” Rollins v. Cap. Plaza Assocs., L.P., 181 Md. App. 188, 201, cert. denied, 406 Md. 746 (2008) (quoting von Lusch v. State, 31 Md. App. 271, 282 (1976)). Nor is it “our function to seek out the law in support of a party’s appellate contentions.” Higginbotham v. Pub. Serv. Comm’n of Md., 171 Md. App. 254, 268 (2006) (quoting Anderson v. Litzenberg, 115 Md. App. 549, 578 (1997)).
Father has not cited in his brief references to where he was denied the ability to introduce evidence. In any event, the circuit court found, and the record reflects that the magistrate did not improperly prevent Father from admitting evidence at trial.
Father successfully introduced fifteen exhibits at trial and testified in detail about several of the Sanders and Taylor factors. He introduced into evidence the transcript from the child custody proceedings in 2019 and talked at length about the court’s prior child custody determination, ultimately submitting that: “I’ll just ask this Court to go back to the assessment made by this same [c]ourt in 2019.”
To be sure, the magistrate stated that “quoting from the 2019 trial… is not relevant” and told Father to “focus on the evidence I received today.” As the circuit court correctly noted:
[Father] was occasionally interrupted by the magistrate because he was referring to things not in evidence and she had to redirect him to, to stick to things not [sic] in evidence; but in no way was he den[ied] the opportunity to discuss and argue the custody factors, as he went on for a few pages doing that.
The magistrate prohibited Father from introducing additional evidence during closing argument, but the record reflects that he later acknowledged that he attempted to do so after the close of evidence, stating: “I have some videos, but, unfortunately, it’s closed, the evidence situation is closed.” The record does not support Father’s contention that the magistrate improperly denied him the right to introduce evidence.
With respect to Father’s assertions that the magistrate made improper inferences about the evidence, the court found that the magistrate’s findings were not clearly erroneous. Specifically, regarding Father’s call to police, the court noted that the magistrate:
[U]nderstood clearly that he wanted the police involved because this is a custody case and because he wanted a report; but she found that to be poor judgment because then that’s exposing the children to the police and having to talk to the police. So, I don’t find that that was a clearly erroneous finding.Regarding medical issues relating to the children, the court found that: [S]ince [Father] was granted sole legal custody as to educational and medical issues, no formal diagnosis has been sought or additional services have been attained, obtained for [A.]; and then went on to say, here’s the part about the ABA therapy, that in 2019, [A.] was receiving ABA therapy and that therapy ended when [Father] was awarded sole legal custody regarding medical care.[Mother] testified credibly that the ABA therapy was helping [A.]; that [Mother] testified it helped [A.] manage her transitions and to manage her emotions. So, I find that, that the magistrate credited the testimony of [Mother], which she has the right to do; and I find that the testimony of the [Mother] supports the finding that [the magistrate] came to. There is nothing here that tells me that it’s clearly erroneous.
Further, as to the demands of the parties’ jobs, the court concluded that:
[The magistrate] also made the finding that the defendant testified credibly that the [Father’s] work commitments often extend beyond the traditional work day. For example, [Mother] called the children around 7:00 p.m. and the [Father] was still working. She testified credibly that his work commitments require him to travel outside of the country.
I found that those findings were supported by the evidence and they were not clearly erroneous. It’s not just a simple comparison as to who works at home and who doesn’t, and what your actual hours are; but the totality of the circumstances of jobs, and those were the magistrate’s findings about international, lengthy international travel and the children being at home while, and not involved in activities while the father is working and that his work day can go until 7:00 p.m. All of those were supported by the evidence.
Finally, as to Father’s educational achievements, the magistrate found that Father spent a “great deal of time focused on his own accomplishments stating many times that he has two master’s degrees and a PhD.” By contrast, he “spent almost no time testifying about his daughter’s apparent fear about spending time with him this summer.”
We agree with the circuit court that the magistrate’s findings and inferences were reasonable and supported by the record. State v. Smith, 374 Md. 527, 547 (2003) (“The primary appellate function in respect to evidentiary inferences is to determine whether the trial court made reasonable, i.e., rational, inferences from extant facts.”).
Father states no claim of error in this regard.
V.
Father failed to preserve his contentions regarding the magistrate’s conduct.
Father contends that he was treated unfairly at the hearing before the magistrate, asserting that the magistrate “obstructed [his] attempt to argue his case,” he “never received any copy of [Mother’s] exhibits,” and the magistrate “ensured that copies of [Father’s] exhibits were given to [Mother] and gave her enough time to go over them” but “did not ensure that [Father] also receive[d] copies of [Mother’s] exhibits.” Mother responds that each party “had the opportunity to submit their evidence.”
Father’s assertions are not properly before us on appeal. Father fails to provide any support for his position that the magistrate “obstructed” his attempt to argue his case. Accordingly, we decline to consider it. Klauenberg v. State, 355 Md. 528, 552 (1999) (“[A]rguments not presented in a brief or not presented with particularity will not be considered on appeal.”). Nor did Father raise his contentions regarding not receiving Mother’s exhibits or the length of time given to review exhibits in his exceptions or at any point before the trial court. Accordingly, those issues have been waived. See Md. Rule 9- 208(f).
Assuming, arguendo, that Father had preserved these contentions for our review, we would conclude that they
are without merit. As discussed, supra, the circuit court considered Father’s assertion that he was prevented from arguing his case before the magistrate and rejected that
argument. We agree that the record reflects that Father had the opportunity to present his case, and that the magistrate did not deny Father a fair hearing.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Both parties appear unrepresented by counsel on appeal. Several of the issues presented by Father in his informal appellate brief contain overlapping points. In sum, Father’s issues presented assert that:
The Magistrate failed to provide a “careful recitation” of her assessment of the Sanders and Taylor custody factors like in the 2019 hearing.
[T]he final order has no logical link with the trial as many changes introduced in this revised custody order were not discussed at the trial.
The Magistrate’s recommendations, which are reflected in the custody order entered on September 22, 2023, cannot be seen as in the best interest of the children.
The Magistrate gave undue weight to [Mother]’s dubious “credibility” despite her record of lying in Court and to Child Protective Services, which was known to the Magistrate at the time of the hearing.
[Mother] lied in Court by claiming that [Father] is the one who stopped one of the Parties’ children ([A.]) Applied Behavioral Analysis (ABA) therapy, even though [Father] did not have access to the child and was even stationed abroad (in Rwanda) at the time he is accused to have stopped the therapy.
[Mother] lied in Court by claiming that [Father] was the one who caused one of the [p]arties’ children to become “depressed” and go see the school counselor in February 2023, even though at that time, [Father] had not seen the child for more than two months.
[Father] was not allowed to introduce important documentary and testimonial evidence relevant to the Court’s determination of the Sanders and Taylor custody factors.
The Magistrate made the wrong inference about [Father]’s call to the police on July 7, 2023 after he was denied access to one of the parties’ children.
The Magistrate made the wrong inference about [Father]’s involvement in the children’s medical issues.
The Magistrate made the wrong inference about the [p]arties’ job demands.
The Magistrate made the wrong inference about [Father]’s educational achievements.
The Magistrate’s conduct of the hearing was not fair to [Father].
2 We use initials for the children to protect their privacy.
3 Father explained that “it takes a long, long time to get [an] appointment” for an evaluation.
4 Mother testified that she started ABA therapy with A. prior to the 2019 order, but that, with “not having health custody, I can only do so much.”
5 The court noted that Father had “boiled . . . down” his “50 - some exceptions” to fourteen issues.
6 Moreover, the magistrate not only found Mother’s testimony credible, it noted that several facts weighed against Father’s credibility. For example, Father did not “provide a cogent explanation for his failure to contact [D.’s] school counselor,” and Father had not yet had A. evaluated for ASD.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 44 (2024)
Term sheet; unambiguous; parol
evidence
Jeffrey Bohling v. Jennifer Segree
No. 372, September Term 2022
Argued before: Reed, Beachley, Zic, JJ.
Opinion by: Reed, J.
Filed: Apr. 29, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s order that a Final Agreement Term Sheet executed between the parties, regarding distributions of the husband’s restricted stock units and performance stock units, was unambiguous and its decision declining to consider parol evidence of the parties’ intent.
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.
awards called restricted stock units (“RSUs”) and performance stock units (“PSUs”).
In January 2021, the parties executed a Final Agreement Term Sheet (“Agreement”), resolving the distribution of the parties’ assets, including Mr. Bohling’s RSUs and PSUs from his employment with Perspecta. Specifically, the Agreement obligated Mr. Bohling to pay to Ms. Segree 42% of the after tax value of the marital portion of the RSUs and PSUs on an “if, as, and when” basis. On March 8, 2021, the Agreement was incorporated, but not merged, into the judgment of absolute divorce.
Following the grant of an absolute divorce, appellee, Jennifer Segree, petitioned the Circuit Court for Montgomery County for an order adjudicating appellant, Jeffrey Bohling, in contempt and seeking enforcement of the parties’ financial settlement agreement. Ms. Segree alleged that Mr. Bohling had failed to pay her for the full value of liquidated stock units realized after the divorce. Following a hearing, the circuit court granted Ms. Segree’s request for enforcement of the agreement. The court also awarded her attorney’s fees and expert witness fees.
Mr. Bohling appeals, presenting the following questions for our review, which we have consolidated and rephrased as follows:
1. Did the circuit court err in finding that the parties’ agreement was unambiguous and in declining to consider parol evidence to determine the intent of the parties?
2. Did the circuit court err or abuse its discretion in awarding Ms. Segree attorney’s fees and expert witness fees?
For the following reasons, we answer the first question in the negative and affirm in part. We vacate the awards of attorney’s fees and expert witness fees, and remand in part for further proceedings on those issues.
FACTUAL & PROCEDURAL BACKGROUND
Ms. Segree filed a complaint for limited divorce in 2019. Mr. Bohling responded by filing a counter-complaint for absolute divorce. At that time, Mr. Bohling was employed by Perspecta. In the course of his employment, he received stock
On or about May 7, 2021, Perspecta was acquired by and merged with another company, Veritas, which caused an accelerated vesting of all Perspecta RSUs and PSUs. On May 11, 2021, Mr. Bohling received “PSU cash distributions” and “stock plan dividends” in the amount of $1,439,172.24 for the value of the RSUs and PSUs. On or about June 18, 2021, Mr. Bohling issued a check to Ms. Segree in the amount of $249,592.11, representing the amount he had calculated as her portion of the marital share of the RSUs and PSUs, pursuant to the Agreement.
On November 1, 2021, Ms. Segree filed a petition for contempt and enforcement of the parties’ Agreement, arguing that Mr. Bohling had violated the terms of the Agreement by paying her $249,592.11. Ms. Segree argued that pursuant to the formula set forth in paragraph 1(c) of the Agreement, 42% of the marital share of the RSUs and PSUs was $403,289. Mr. Bohling opposed the petition, arguing that he had properly calculated Ms. Segree’s portion of the marital share of the stock units pursuant to the terms set forth in the Agreement.
At the hearing on the contempt petition, the court granted the parties’ request for a bifurcated proceeding. In the first stage of the proceeding, the court was tasked with deciding whether the Agreement was ambiguous. Only upon a finding by the court of an ambiguity in the Agreement would the parties introduce parol evidence of the parties’ intent.
The provision of the Agreement at issue, paragraph 1(c), provides:
Perspecta RSUs and PSUs: Mr. Bohling shall transfer to Ms. Bohling 42% of the liquidated value of the after tax portion of marital portion of the RSUs, PSUs and their associated dividends, (listing of these instruments are attached as Exhibit 1) on an if, as and when basis. Within forty-five (45) days of each tranche vesting, Mr. Bohling shall provide to Ms. Bohling the payment along with the account and unit statements evidencing the vesting of that tranche.
The marital portion of each tranche of RSUs, PSUs and their associated dividends shall be determined by the following fraction. The numerator shall be the number of months from the date of grant for each tranche to the date of the signing of this Term Sheet, and the denominator shall be the number of months from the date of grant for each tranche to the date of vesting.
The foregoing fraction shall be the marital portion, which shall be multiplied by the value of each tranche as of the date of vesting. As of the date of this Term Sheet all of the tranches are taxed as ordinary income and the liquidated value shall then be reduced by 46% (Mr. Bohling’s deemed income tax rate for purpose of this calculation), subject to a truing-up. Mr. Bohling shall be obligated to liquidate the shares upon vesting.
Also at issue, Exhibit 1 to the Agreement, consists of the following one-page chart:
Ms. Segree called Kristopher Hallengren, a Certified Public Accountant, to testify as to the calculations of Ms. Segree’s marital portion of the RSUs and PSUs, based upon his understanding of the Agreement. Mr. Hallengren testified that he prepared a document “relative to [his] interpretation of the agreement and the application of the shares that are applicable to Ms. [Segree].” He was “asked to look at the calculation performed by Mr. Bohling and the check associated with that calculation and [he] compared it to [his] calculation.” According to Mr. Hallengren, “[t]he originally expected vest dates were no longer applicable as this was an instance of accelerated vesting with everything vesting as of May 11, 2021.” The only difference between Mr. Hallengren’s calculation and Mr. Bohling’s calculation was that Mr. Hallengren used the actual vest date and Mr. Bohling utilized the “expected” vest date set forth in column 2 on Exhibit 1 to the Agreement.
Mr. Bohling’s counsel questioned Mr. Hallengren regarding the services he provided in recalculating the value of the RSUs and PSUs using the actual vest date:
Q. Mr. Hallengren, to confirm, you used the same schedule that was outlined in Exhibit 1, other than adjusting the vesting date and the resulting calculations, correct?
A. I corrected the vest date that was in the schedule, which was originally provided and attached to the agreement. That’s the only difference between my calculation and the –Mr. Bohling’s calculation.
Mr. Bohling argued that the parties had defined, and agreed upon, established “vest dates,” for the respective RSUs and PSUs, set forth in Exhibit 1 to the Agreement, and Ms. Segree’s portion of the marital share of the RSUs and PSUs was accurately calculated using the vest dates set forth in Exhibit 1.
At the conclusion of the first day of proceedings, the circuit court ruled that the Agreement was not ambiguous. The court explained:
Clearly, the date of vesting changed – not by anybody’s – it wasn’t anybody’s fault, but the date of vesting changed, and I therefore think that the proper way to do the calculation is to change the date of the vesting. And so I find that the agreement is clear. And that it is not ambiguous.
The court held a hearing on attorney’s fees on March 24,
2022. At that hearing, Ms. Segree argued that she was entitled to an award of attorney’s fees in the amount of $34,657.38 and expert witness fees in the amount of $12,200.50. In support, she submitted an affidavit of counsel and copies of invoices of counsel and her expert witness, Mr. Hallengren. Ms. Segree argued that Mr. Hallengren’s services were necessary and reasonable, as there were significant mathematical calculations at the heart of the parties’ dispute.
Ms. Segree asserted that she was entitled to all of her attorney’s fees pursuant to the fee-shifting provision in the Agreement. Alternatively, she argued that she was entitled to attorney’s fees and expert witness fees pursuant to Section 8-214 of the Family Law Article (“FL”) (1984, 2019 Repl.Vol., 2022 Supp.) of the Maryland Code because the court had found in her favor with respect to enforcement of the Agreement.
Mr. Bohling argued that he neither breached nor defaulted under the Agreement. Rather, he asserted that the parties disputed the terms of the Agreement and, consistent with his understanding of the Agreement, he paid Ms. Segree what he believed was the correct amount due to her. Mr. Bohling also challenged the reasonableness and necessity of the attorney’s fees and expert witness fees submitted by Ms. Segree. He argued that Mr. Hallengren’s fees of $12,200.50 were excessive for the work he performed in essentially updating “a chart that he had previously reviewed and confirmed.” He also challenged Mr. Hallengren’s invoice entries for “trial prep,” which he claimed lacked explanation of the work performed, and entries for six hours of “stock unit analysis” and review of “summary calculations” performed by Mr. Hallengren’s associates.
With respect to Ms. Segree’s claim for attorney’s fees, Mr. Bohling argued that there were several charges showing multiple senior attorneys billing their time, and multiple entries for “research” that did not indicate what research was done and whether it related to the enforcement of the Agreement. Mr. Bohling stipulated to his financial ability to pay attorney’s fees. Mr. Bohling argued that Ms. Segree also had the ability to pay her attorney’s fees based on the money she would receive from the RSUs and PSUs, the “close to half a million dollars” he previously paid her, her salary of $15,000 per month, excluding her bonuses and stock awards, and her real estate worth over $1.3 million dollars. Mr. Bohling argued that, because both parties had the ability to pay their own attorney’s fees, the court should deny Ms. Segree’s request for attorney’s fees.
In response, Ms. Segree argued that a significant portion of her attorney’s fees related to preparation of materials in response to Mr. Bohling’s request that the court consider parol evidence. She asked the court to review the expenses she incurred to support her adult children as well as her financial statement showing net assets of $610,000, as compared to Mr. Bohling’s net assets of $7.4 million.
At the conclusion of the hearing, the court took the matter under advisement. The court issued a written order on March 31, 2022. With respect to attorney’s fees and expert witness fees, the court ruled:
ORDERED, that [Mr. Bohling] is not found to be in contempt of this Court as this matter arose from a dispute between the parties as to how to calculate the amount due [Ms. Segree] by [Mr. Bohling] for her share of the Perspecta
RSUs and PSUs; and it is further
ORDERED, that [Mr. Bohling] is not found in breach of the parties’ Final Agreement Term Sheet dated January 21, 2021, as this matter arose from a dispute between the parties as to how to calculate the amount due [Ms. Segree] by [Mr. Bohling] for her share of the Perspecta RSUs and PSUs. [Mr. Bohling] timely paid the amount he believed to be due; and it is further
ORDERED, that [Mr. Bohling] shall pay to [Ms. Segree] for her reasonable and necessary attorney’s fees the amount of $25,000.00 within thirty (30) days of entry of this Order based on consideration of (1) the financial resources and financial needs of both parties; and (2) each parties’ substantial justification for prosecuting and defending [the] proceeding; and it is further
under the Agreement. Thus, Mr. Bohling asserts that his view prevails under a “plain language” interpretation. Alternatively, he contends that “to the extent this Court concludes error is not established based on the plain language of the contract the circuit court erred when it declined to consider parol evidence.” He argues that the circuit court erred in failing to consider parol evidence to resolve the parties conflicting interpretations and to determine if there was a mutual mistake by the parties in drafting the Agreement.
ORDERED, that [Mr. Bohling] shall pay to [Ms. Segree] for her reasonable and necessary suit money and court costs the amount of $9,933.00 for her expert within thirty (30) days of entry of this Order based on consideration of (1) the financial resources and financial needs of both parties; and (2) each parties’ substantial justification for prosecuting and defending [the] proceeding[.]
On April 29, 2022, Mr. Bohling noted this appeal.
STANDARD OF REVIEW
When an action is tried without a jury, we review the case on both the law and evidence and accept the trial court’s findings of fact unless clearly erroneous. Md. Rule 8- 131(c); Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380, 388 (2019). We accord no deference, however, to the trial court’s “determinations of legal questions” and “conclusions of law based upon findings of fact.” Elderkin v. Carroll, 403 Md. 343, 353 (2008) (citations and quotation marks omitted). The interpretation of a written contract, and determination of whether a contract is ambiguous, are ordinarily questions of law, subject to de novo review. Credible Behavioral Health, Inc., 466 Md. at 392; Frederick Classical Charter Sch., Inc. v. Frederick Cnty. Bd. of Educ., 454 Md. 330, 414-15 (2017); accord Sang Ho Na v. Gillespie, 234 Md. App. 742, 749 (2017) (explaining that, in reviewing a ruling on a motion to enforce a settlement agreement, we review the circuit court’s legal conclusions de novo.).
DISCUSSION
I.
Interpretation of the Agreement
Mr. Bohling argues that the circuit court erred in concluding that he owed Ms. Segree $403,289, rather than $249,592.11, under the Agreement. He contends that while paragraph 1(c) of the Agreement sets forth the method for calculating Ms. Segree’s marital share of the RSUs and PSUs, the chart contained in Exhibit 1 of the Agreement establishes the exact numbers and outcome of the calculations (except for the share price) to be used when calculating the payment that was due
Ms. Segree argues that the circuit court correctly concluded that the Agreement was unambiguous. She asserts that the language of paragraph 1(c) makes clear that the formula for calculating the marital portion of the stock options was based on “the actual date of vesting” and that Exhibit 1 was incorporated into the Agreement “solely [as] a ‘listing of these instruments’ to define which [s]tock [o]ptions were subject to this calculation.” She contends that parol evidence was not warranted based on the circuit court’s conclusion that the Agreement was unambiguous. She further asserts that Mr. Bohling’s argument that the court erred in declining to consider parol evidence to determine whether there was a mutual mistake is unpreserved because he did not raise that argument before the circuit court.
Generally, settlement agreements are “enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts.” 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC, 246 Md. App. 1, 18 (2020) (citation omitted). Maryland courts adhere to the “‘objective approach to contract interpretation, according to which, unless a contract’s language is ambiguous, we give effect to that language as written without concern for the subjective intent of the parties at the time of formation.’” Frederick Classical Charter Sch., Inc., 454 Md. at 414-15 (quoting Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 86 (2010)). This objective approach requires that we “restrict our inquiry to the four corners of the agreement and ascribe to the contract’s language its customary, ordinary, and accepted meaning.” Id. (citation and quotation marks omitted). Additionally, “we will give effect to the plain meaning of an unambiguous term, and will evaluate a specific provision in light of the language of the entire contract.” Weichert Co. of Md., Inc. v. Faust, 419 Md. 306, 324 (2011) (citing Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 447-48 (2008)).
Ultimately, “[t]he cardinal rule of contract interpretation is to give effect to the parties’ intentions.” Dumbarton Improvement Ass’n., Inc. v. Druid Ridge Cemetery Co., 434 Md. 37, 51 (2013) (citation and quotation marks omitted). “[T] he primary source for determining the intention of the parties is the language of the contract itself.” County Com’rs for Carroll County v. Forty West Builders, Inc., 178 Md. App. 328, 376 (2008) (internal quotation marks and citation omitted). “The ‘clear and unambiguous language of an agreement will not give way to what the parties thought the agreement meant or intended it to mean.’” Soc’y of Am. Foresters v. Renewable Nat. Res. Found., 114 Md. App. 224, 234 (1997) (quoting Bd. of Trs. of State Colls. v. Sherman, 280 Md. 373, 380 (1977)).
In resolving a contract dispute, we do not seek to “discern the actual mindset of the parties at the time of the agreement, but rather, to ‘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.’” Dumbarton Improvement Ass’n., Inc, 434 Md. at 52 (quoting General Motors Acceptance v. Daniels, 303 Md. 254, 261 (1985)).
Mr. Bohling and Ms. Segree each offer a different interpretation of the significance of Exhibit 1. Ms. Segree asserts that Exhibit 1 was attached to the Agreement for the express purpose of “listing” the RSUs and PSUs referenced in the Agreement, and that the “vest dates” referenced in the chart in Exhibit 1 show the dates that the parties expected the RSUs and PSUs to vest. Mr. Bohling argues that Exhibit 1 is an integral part of the Agreement and the “vest dates” in column 2 of the chart represented the vest dates that the parties had agreed upon as the dates to be used for purposes of valuing the stock units upon distribution.
“It is settled that where a writing refers to another document that other document, or so much of it as is referred to, is to be interpreted as part of the writing.” Ray v. William G. Eurice & Bros., Inc., 201 Md. 115, 128 (1952); see also Patton v. Wells Fargo Fin. Md. Inc., 437 Md. 83, 109 (2014) (“Under Maryland law, the parties to a contract may voluntarily agree to define their contractual rights and obligations by reference to documents or rules external to the contract.”). In cases “[w]here the contract comprises two or more documents, the documents are to be construed together, harmoniously, so that to the extent possible, all of the provisions can be given effect.” Rourke v. Amchem Prods., Inc., 384 Md. 329, 354 (2004).
“A contract is not ambiguous merely because the parties do not agree as to its meaning.” Phoenix Services Ltd. P’ship v. Johns Hopkins Hosp., 167 Md. App. 327, 392 (2006) (citing Fultz v. Shaffer, 111 Md. App. 278, 299 (1996)). A court must “attempt to construe [a] contract as a whole, to interpret [its] separate provisions harmoniously, so that, if possible, all of them may be given effect.” Walker v. Dep’t of Human Resources, 379 Md. 407, 421 (2004). Absent some evidence that the parties attributed a special or technical meaning to the terms of the contract, each term is construed consistent with its ordinary meaning. Phoenix Services Ltd. P’ship, 167 Md. App. at 392.
In determining whether a particular term in a contract is subject to more than one meaning, a court’s “first resort is to a general dictionary[.]” Bausch & Lomb Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 781 (1993); accord Credible Behavioral Health, Inc., 466 Md. at 394-95 (noting that the Court consults the dictionary definition of terms to “supply contractual language with its ‘ordinary and accepted meanings’”) (citation omitted); Sierra Club v. Dominion Cove Point LNG, L.P., 216 Md. App. 322, 335 (2014) (“[W]e … begin with the dictionary definition to determine whether there is any ambiguity in the phrase.”). In Sy-Lene of Washington, Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 161 (2003), the Supreme Court of Maryland1 considered the issue of whether a lease agreement that afforded the building owner “the right to limit the number of employee parking spaces to be provided,” authorized the building owner to eliminate all parking offered to the tenant. In deciding whether the contract was ambiguous, the Court began by consulting the dictionary definition of the word “limit,” meaning to define something’s extent or “to quantify
it.” Id. at 168. The Court determined that, applying the ordinary meanings of the words, “the right to limit” did not mean “right to eliminate.” Id. at 169. The Court remanded the case to the trial court to determine what limit was acceptable under the contract. Id. at 169.
In Dennis v. Fire & Police Employees’ Retirement System, 390 Md. 639, 642 (2006), the Court considered whether the language in two divorce judgments containing Qualified Domestic Relations Orders (“QDROs”) requiring former police officers to pay their former spouses 50% of their “pensions” included deferred retirement option plan (“DROP”) benefits that became available to the officers after their respective divorces were finalized, but before they retired. Upon their retirement, the officers were notified that their DROP benefits would be considered pension payments and their former wives would be entitled to one-half of their respective DROP benefits. Id. at 644-45. The officers challenged the classification of the DROP payments as pension payments, arguing that the QDROs did not specifically reference DROP payments. Id. at 650. The Court rejected the officers’ arguments, concluding that the operative language in the QDRO identifying which payments were subject to division was unambiguous, and noting that DROP payments were included as pension payments for federal tax and pension purposes. Id. at 651-52. The court gave “effect to the clear terms of agreements regardless of what the parties may have intended by those terms at the time of contract formation.” Id. at 656.
We begin by reviewing the Agreement as a whole to determine if the language is clear and unambiguous. Paragraph 1(c) provides that Mr. Bohling is to “transfer to [Ms. Segree] 42% of the liquidated value of the after tax portion of marital portion of the RSUs, PSUs and their associated dividends,” followed by the parenthetical explaining that the “(listing of these instruments are attached as Exhibit 1).” The formula to be used for calculating Ms. Segree’s portion of the liquidated stock units turns on the parties’ dispute as to the date the units “vest.” As indicated, Ms. Segree’s share was to be calculated by dividing the number of months from the date that each stock unit was granted to the date of the signing of the Agreement by the number of months from the date of the grant for each stock unit to the date of vesting, and the resulting number was to “be multiplied by the value of each tranche as of the date of vesting.” Paragraph 1(c) further provided that “[w]ithin forty-five (45) days of each tranche vesting, Mr. Bohling shall provide to [Ms. Segree] the payment along with the account and unit statements evidencing the vesting of that tranche.” (emphasis added).
The term “vesting” was not defined in the Agreement. In ordinary language, the term is defined as “the conveying to an employee of inalienable rights to money contributed by an employer to a pension fund or retirement plan especially in the event of termination of employment prior to the normal retirement age.” See Vesting, Merriam-Webster, https://www. merriam-webster.com/dictionary/vesting (last visited on June 22, 2023). Similarly, the term “vest” is defined in Black’s Law Dictionary as meaning, in relevant part, “[t]o confer ownership (of property) on a person”; or “invest (a person) with the full title to property” or “give (a person) an immediate, fixed right
of present or future enjoyment.” VEST, Black’s Law Dictionary (11th ed. 2019).
We agree with the trial court’s determination that the Agreement was not ambiguous. The term “vesting,” was used in the ordinary sense of the word, meaning that the “date of vesting” was the date that the full monetary value of the RSUs and PSUs conveyed to Mr. Bohling. There is no dispute that the RSUs and PSUs became available to Mr. Bohling on May 11, 2021 in the amount of $1,439,172.24, as evidenced by his Fidelity account statement. Based on the language of the Agreement, a reasonable person would interpret the Agreement to provide for the vesting of the RSUs and PSUs on the actual day they became available to Mr. Bohling, not the expected vesting dates identified in Exhibit 1, some of which were dated up to two years beyond the actual vesting date. See Credible Behavioral Health, Inc, 466 Md. at 397 (“As a bedrock principle of contract interpretation, Maryland courts consistently ‘strive to interpret contracts in accordance with common sense.’”) (quoting Brethren Mut. Ins. Co. v. Buckley, 437 Md. 332, 348 (2014)). Indeed, our reading of the Agreement is supported by Mr. Bohling’s payment to Ms. Segree of the entirety of what he calculated as her 42% of the marital portion of the stock units on June 18, 2021, or within 45 days of the stock units vesting on May 11, 2021, as required by paragraph 1(c).2 Furthermore, the “if, as and when” language in paragraph (c), means to this court that Mr. Bohling’s obligation to pay accrued on May 11, 2021, because that is “when” he received the money.
The plain language of paragraph 1(c) indicates that Exhibit 1 was attached to the Agreement for the limited purpose of listing the RSUs and PSUs that were the subject of the post-divorce distribution. Accordingly, the reference in the Agreement to Exhibit 1 was a partial incorporation of Exhibit 1 for purposes of “listing of the instruments” that does not extend to the remainder of the information provided in Exhibit 1. See 11 Williston on Contracts § 30:25 (4th ed.) (explaining that when considering the incorporation by reference of material into a contract, “it is important to note that when incorporated matter is referred to for a specific purpose only, it becomes a part of the contract for that purpose only, and should be treated as irrelevant for all other purposes.”); see also Fix v. Quantum Indus. Partners LDC, 374 F.3d 549, 553 (7th Cir. 2004) (holding that a “change in control” provision in an employment agreement incorporated only the definition of change in control set forth in a separate employment rewards program, not the terms of the program regarding its purpose and intent); Bode & Grenier, LLP v. Knight, 808 F.3d 852, 862 (D.C. Cir. 2015) (holding that counsel’s retention letter incorporated the terms of a promissory note for the limited purpose of referencing the payment schedule, and did not extend to the choice-of-law and attorney’s fees provisions in the promissory note).
We also note the absence of any further reference to Exhibit 1 in the Agreement beyond the “listing” of the RSUs and PSUs. Had the parties intended the information in Exhibit 1 to constitute the entirety of the calculation of Ms. Segree’s 42% marital share of the stock units, certainly Exhibit 1 would be identified as something more than a “listing.” The absence of any further mention of Exhibit 1 in the Agreement, in conjunction with the detailed formula to be used for calculating the 42%
marital portion set forth in paragraph 1(c) of the Agreement, leads us to the conclusion that a reasonable person reading the Agreement would conclude that Exhibit 1 constituted a “listing” of the RSUs and PSUs to be used in the formula set forth in Paragraph 1(c) and the expected vesting dates included in Exhibit 1 were included for demonstrative purposes only. As the circuit court found, the expected vesting dates in Exhibit 1 changed, and became irrelevant, when the RSUs and PSUs vested on May 11, 2021. The court properly calculated Ms. Segree’s portion of the marital share of the RSUs and PSUs using the actual vesting date of May 11, 2021.
We conclude that the circuit court did not err in determining that the Agreement was unambiguous and in declining to consider parol evidence of the parties’ intent. We note that Mr. Bohling’s argument that the court should have considered extrinsic evidence of the parties’ intent to determine whether there was a mutual mistake in the Agreement was not argued before the circuit court and therefore the argument is not preserved for review.
II.
Attorney’s Fees and Expert Witness Fees
The court awarded Ms. Segree attorney’s fees of $25,000 and expert witness fees of $9,933. Mr. Bohling contends that the circuit court erred in awarding attorney’s fees, given its finding that he did not breach the terms of the Agreement. He further contends that to the extent that the circuit court awarded attorney’s fees and expert witness fees pursuant to FL § 8-214, the court erred because it failed to make any findings as to how the financial needs and resources of the parties weighed in favor of an attorney’s fee award, as required under FL § 8-214. However, he did not argue that the court failed to make any findings as to the reasonableness of the attorney’s fees. With respect to the expert witness fees, he argues that the amount of the award was excessive for the amount of work provided by Mr. Hallengren.
Ms. Segree argues that the circuit court conducted the requisite statutory analysis under FL § 8-214 and did not abuse its discretion in awarding her attorney’s fees and expert witness fees. She further asserts that the court’s award of expert witness fees was reasonable.
The Agreement included a provision requiring the payment of the other party’s attorney’s fees, expert witness fees and costs in the event of breach or default of the Agreement, specifically: Attorney’s Fees: Each party waives any claim for attorney’s fees, expert fees, suit money and court costs incurred through the date of entry of this Term Sheet. If either party breaches or defaults in regard to any provision[] of this Term Sheet, the breaching or defaulting party shall be responsible for paying for all attorney’s fees incurred by the other party as a result of the breach or default.
(Emphasis added).
In the portion of the court’s order addressing attorney’s fees and expert witness fees, the court stated that Mr. Bohling was not in breach of the Agreement “as this matter arose from a dispute between the parties as to how to calculate the amount due [Ms. Segree]” and Mr. Bohling “timely paid the amount he believed to be due[.]” Based on the court’s finding that Mr.
Bohling was not in breach of the Agreement, Ms. Segree was not entitled to an award of fees, as provided under the feeshifting provision of the Agreement.
FL §8-214 provides for an award of “reasonable and necessary expense[s],” including attorney’s fees, suit money and costs, in marital property disposition cases. FL § 8-214(a). Before making an award, the court must consider “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” FL § 8-214(c).
An “award of attorney’s fees by the court is a factual matter which lies within the sound discretion of the trial judge and will not be overturned unless clearly erroneous.” Rauch v. McCall, 134 Md. App. 624, 638 (2000) (quotation marks and citations omitted). In assessing whether the court properly exercised its discretion in awarding fees, we evaluate “the judge’s application of the statutory criteria … as well as the consideration of the facts of the particular case. Consideration of the statutory criteria is mandatory in making the award and failure to do so constitutes legal error.” Petrini v. Petrini, 336 Md. 453, 468 (1994) (internal citations omitted).
Before making an award of attorney’s fees pursuant to a contract or statute, the trial court must consider the reasonableness of the fees requested. Sang Ho Na, 234 Md. App. at 756 (explaining that the trial court must analyze the reasonableness of the attorney’s fees under a fee-shifting contract provision, even where the provision does not include the specific word “reasonable”); accord Monmouth Meadows Homeowners Ass’n v. Hamilton, 416 Md. 325, 333 (2010). “‘When the case permits attorney’s fees to be awarded, they must be reasonable, taking into account such factors as labor, skill, time, and benefit afforded to the client, as well as the financial resources and needs of each party.’” Collins v. Collins, 144 Md. App. 395, 447 (2002) (quoting Petrini, 336 Md. at 467). The court should also consider “(1) whether the [award] was supported by adequate testimony or records; (2) whether the work was reasonably necessary; (3) whether the fee was reasonable for the work that was done; and (4) how much can reasonably be afforded by each of the parties.” Sczudlo v. Berry, 129 Md. App. 529, 550 (1999) (quoting Lieberman v. Lieberman, 81 Md. App. 575, 601-02 (1990)).
Here, the court’s order stated that the awards were “based on
consideration of (1) the financial resources and financial needs of both parties; and (2) each part[y’s] substantial justification for prosecuting and defending [the] proceeding[.]” The court provided no explanation, however, as to how it determined the amount of fees it awarded. “Absent the court stating the basis for its determination, this Court cannot properly review the decision.” Ledvinka v. Ledvinka, 154 Md. App. 420, 433 (2003). See also Painter v. Painter, 113 Md. App. 504, 529 (1997) (“‘In a case in which bills for legal services are challenged, [the trial court] ought to state the basis for [her] decision so it can be reviewed, if necessary, on appeal.’”) (quoting Randolph v. Randolph, 67 Md. App. 577, 589 (1986)).
In Collins, which was cited by the appellant, we considered an award of attorney’s fees in a divorce proceeding where the court awarded wife most, but not all, of her attorney’s fees. 144 Md. App. at 447. Husband argued that the trial court had erred in failing to consider the statutory factors and the parties’ financial positions in making the award. Id. at 445. In its order, the trial court found that wife’s attorney’s fees were caused primarily because husband had litigated the case in two jurisdictions and refused to cooperate in the Maryland case. Id. at 448. We noted that despite the fact that the trial court made no specific finding regarding the parties’ financial resources, the record suggested that husband was capable of paying attorney’s fees and wife was capable of paying a portion of her fees. Id. at 44849. The court failed, however, to address the reasonableness of the fees. Id. at 449. We vacated the award and remanded the case, explaining that “[i]n light of the amount of the fees awarded in this case, … some express discussion regarding the reasonableness of the fees in light of such factors as labor, skill, time, and benefit received is necessary.” Id.
In this case, unlike in Collins, the reasonableness of the court’s attorney’s fee finding was not challenged. Although the trial court stated that it had considered the financial resources of the parties, the court failed to articulate how the parties’ respective financial needs and resources weighed in its attorney’s fees award. On remand, the court should provide more specificity as to how the FL § 8-214(c) factors justify an attorney’s fee award. Finally, because the court made no specific findings regarding the reasonableness of the expert fees, it should do so on remand. We shall vacate the attorney’s fees and expert fees awards and remand for further proceedings.
JUDGMENT AFFIRMED IN PART, VACATED IN PART; CASE REMANDED TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID 2/3 BY APPELLANT AND 1/3 BY APPELLEE.
FOOTNOTES
1 On December 14, 2022, the name of the Court of Appeals was changed to the Supreme Court of Maryland.
2 Paragraph 1(c) provided that “[w]ithin forty-five (45) days of each tranche vesting, Mr. Bohling shall provide to [Ms. Segree] the payment … evidencing the vesting of that tranche.” (emphasis added). If, as Mr. Bohling suggests,
the vesting dates set forth in Exhibit 1 controlled the calculation of Ms. Segree’s share, he would not be obligated to pay her until 45 days after each of the various vesting dates contained in Exhibit 1. This was not the case. Accordingly, Mr. Bohling’s payment to Ms. Segree on June 18, 2021 was consistent with an understanding that the stock units vested, for purposes of the Agreement, on May 11, 2021.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 06 MFLU Supp. 50 (2024)
Termination of parental rights; excusable neglect; mistake
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the mother’s parental rights after she failed to timely object to the Baltimore City Department of Social Services’ petition. Although the mother later moved to vacate the termination order, she failed establish excusable neglect or mistake.
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.
Appellant was informed that, if the notice of objection was not filed, a court could terminate Appellant’s parental rights to N.P., and N.P. could be adopted by another person. A blank notice of objection form was attached to the show cause order.
On August 1, 2023, the juvenile court held a hearing on the Department’s petition. At that time, Appellant had not filed a notice of objection. As a result, the court found that Appellant had consented to the Department’s petition pursuant to Maryland Rule 11-307. Under that rule, if a notice of objection to a petition for guardianship is not filed within 30 days after service, “the party will be deemed to have consented to the guardianship.” See Md. Rule 11-307(b).
In 2020, the Circuit Court for Baltimore City, sitting as a juvenile court, declared N.P., minor child of A.B. (“Appellant”), to be a child in need of assistance (“CINA”). N.P. was subsequently placed in the care and custody of the Baltimore City Department of Social Services (the “Department”). Approximately three years later, the Department filed a petition for guardianship seeking to terminate Appellant’s parental rights. After Appellant failed to file a timely notice of objection, the court granted the Department’s petition. Thereafter, Appellant filed a notice of objection and moved to vacate the court’s order. Following a hearing, the court denied Appellant’s motion to vacate. Appellant presents a single question for our review: Did the juvenile court err in denying Appellant’s motion to vacate?1
For reasons to follow, we affirm the judgment of the circuit court.
FACTUAL A ND PR OCEDURAL BACKGROUND
Appellant gave birth to N.P. on February 8, 2020. At the time of N.P.’s birth, both Appellant and N.P. tested positive for cocaine. Subsequently, the Department filed a petition alleging that N.P. was a CINA.2 That petition was granted, and, on May 20, 2020, N.P. was committed to the care and custody of the Department.
Approximately three years later, in June of 2023, the Department filed a petition for guardianship seeking to terminate Appellant’s parental rights. On June 29, 2023, a show cause order was personally served on Appellant. In the show cause order, Appellant was informed that a petition for guardianship had been filed and that she had 30 days from the date of service to file a “Notice of Objection” with the court.
On August 10, 2023, the court entered an order granting the Department’s petition for guardianship. One week later, on August 17, Appellant filed a notice of objection. Then, on September 7, Appellant filed a motion asking the court to vacate its order and to accept her notice of objection under the “good cause” exception contained in Rule 11-307(b)(3). Under that exception, “[i]n the event of a late-filed objection, the court may deem the filing timely for good cause shown.” Md. Rule 11-307(b)(3). Appellant argued that good cause existed because although she had been served with the show cause order on June 29, 2023, “she was not actually able to fill out the Objection paperwork until after the 30 day window had elapsed[.]”
In support of the motion, Appellant submitted two affidavits: one from Appellant, and one from Appellant’s mother. Appellant’s affidavit indicates that when served with the show cause order on June 29, 2023, Appellant also had an open arrest warrant. Appellant claimed that, after being handed the show cause order by the process server, Appellant observed the process server “speaking on the phone” and “describ[ing] [Appellant’s] appearance and clothing to the person the process server was speaking to on the phone.” According to Appellant, “shortly after that, the police arrived[,]” and Appellant was arrested and taken to jail. Appellant claimed that the police confiscated the show cause order and associated paperwork and did not return it to Appellant. Appellant was released from jail on July 19, at which point she moved to Mountain Manor, a substance abuse treatment facility. On August 8, Appellant’s mother visited her at Mountain Manor and delivered mail, which included the show cause order. Appellant claimed that she read the papers and “immediately” filled out the notice of objection, which was mailed on August 10, 2023.
In the second affidavit, Appellant’s mother indicated that, in “late June” of 2023, she received papers in the mail about
Appellant’s “rights to [N.P.] getting terminated.” Per the affidavit, after Appellant was arrested, Appellant’s mother visited Appellant in jail and informed Appellant that there were “some papers for her” and that “they were important.”
On August 8, Appellant’s mother indicated that she visited Appellant at Mountain Manor and gave the papers to Appellant.
In October of 2023, the juvenile court held a hearing on Appellant’s motion to vacate. At that hearing, Appellant’s counsel argued that the juvenile court should find “good cause” to accept Appellant’s late-filed objection. Highlighting Appellant’s affidavit, counsel insisted that Appellant was unable to review the show cause order upon being served because she “was arrested about a minute after receiving these papers[,]” and upon her arrest, the police confiscated the papers and did not return them. Appellant’s counsel noted that, when Appellant did receive the show cause order and notice of objection from her mother on August 8, she completed the notice of objection and mailed it to the court two days later.
The juvenile court found that Appellant had failed to establish “good cause” for the court to accept her late-filed objection. In reaching that conclusion, the court noted that, while the term “good cause” had yet to be interpreted in the context of Rule 11-307, it had been interpreted in the context of determining whether a claimant had established good cause for failing to comply with the notice requirement of the Local Government Tort Claims Act. In that context, the court noted, courts considered factors such as: excusable neglect, serious physical or mental injury, a party located out of state, inability of a party to retain counsel in a complex case, ignorance of a statutory requirement, or misleading representations by a local government representative. The court noted further that, in In re Adoption/Guardianship Nos. T00130003 and T00130004, 370 Md. 250 (2002) (“In re Adoption/Guardianship”), a case that predated the enactment of the “good cause” requirement contained in Rule 11-307, the Supreme Court of Maryland noted that due process protections would excuse failing to file a timely objection in a guardianship case due to a true physical inability to file, such as if the respondent was in a coma. Id. at 260– 61.
Applying those principles to the case at hand, the juvenile court found that, although Appellant’s arrest and detention for the first 20 days after being served could be considered excusable, Appellant’s reasons for failing to file the objection within the 30-day window did not amount to a demonstration of “good cause.” The court found that Appellant could have had a family member or attorney file the objection while she was in jail and that Appellant had “10 days outside of jail to meet the statutory requirement.” Moreover, the court determined that Appellant’s incarceration did not amount to the sort of physical disability cited by the Supreme Court of Maryland in In re Adoption/Guardianship that would justify a late-filed objection on grounds other than good cause. Based on those findings, the court denied Appellant’s motion to vacate. This timely appeal followed.
Additional facts will be incorporated as they become relevant to this issue.
DISCUSSION
A. Parties’ Contentions
Appellant contends that the juvenile court erred in refusing to find “good cause” to allow Appellant to file a late objection to the Department’s guardianship petition. First, Appellant argues the circumstances surrounding her receipt of the show cause order, i.e., her arrest and subsequent incarceration, amounted to excusable neglect because she “was unable to view the documents for more than a moment, was unable to process the contents of the documents, and was prevented from keeping the documents with her for reference.” Second, Appellant argues that the court erroneously found that she “had 10 days outside of jail to meet the statutory requirement.” According to Appellant, that finding was erroneous because “she still did not possess the documents” following her release from jail and “had no way of knowing that there was a deadline.” Third, Appellant argues that the court should have found good cause for the late objection because, once Appellant received the show cause order on August 8, 2023, Appellant “promptly responded.” Finally, Appellant contends that the court’s reliance on In re Adoption/Guardianship was erroneous because the court mistakenly believed that it could not find good cause to accept Appellant’s objection given that Appellant’s incarceration was not equivalent to the hypothetical disability discussed in that case.
The Department and counsel for N.P. (collectively “Appellees”) argue that the juvenile court properly exercised its discretion in finding that Appellant failed to establish good cause. Appellees argue further that the court properly denied Appellant’s motion to vacate, as the order was in N.P.’s best interest.
B. Standard of Review
Appellate review of a juvenile court’s decision in a CINA proceeding involves three interrelated standards. First, any factual findings made by the court are reviewed for clear error. In re Yve S., 373 Md. 551, 586 (2003). Second, any legal conclusions made by the juvenile court are reviewed de novo. See id. Finally, if the court’s factual findings and legal conclusions are not erroneous, the court’s conclusion will be disturbed only if there is an abuse of discretion. In re J.J., 231 Md. App. 304, 345 (2016). “A court abuses its discretion when ‘no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding rules or principles.’” In re K.L., 252 Md. App. 148, 185 (2021) (quoting Santo v. Santo, 448 Md. 620, 325–26 (2016)).
C. Analysis
Prior to 2022, objections to petitions for guardianship seeking to terminate parental rights were governed by Maryland Rule 9-107. In re Adoption/Guardianship of Audrey B., 186 Md. App. 454, 463 (2009). As in the current Rule 11-307, Rule 9-107 required a notice of objection to be filed within 30 days of service. Id. However unlike Rule 11-307, Rule 9- 107 did not include a “good cause” provision. Md. Rule 9-107 (adopted June 5, 1996). The Supreme Court of Maryland explained in In re Adoption/Guardianship that Rule 9-107 was based on section 5-322 of the Family Law Article (“FL”) of the
Maryland Code, which provided, in pertinent part, that where a parent was properly notified of a petition for guardianship and failed to file a timely notice of objection, a juvenile court was required to consider the parent to have consented to the guardianship. 370 Md. at 261. The Court held, therefore, that a parent who fails to abide by Rule 9-107 “was deemed by operation of law to have consented to the guardianship.” Id. at 259–60.
Consequently, the Court explained, a juvenile court had no authority to consider a late-filed objection absent a violation of due process or “some extraordinary circumstance of such a compelling nature as to make it fundamentally unfair to regard the failure as an effective consent.” Id. at 262. According to the Court, such “extraordinary circumstances” included “a true physical inability to file a timely objection,” such as being in a coma, or “the kind or duress or misrepresentation that would suffice to render the decision not to object involuntary and not the exercise of free will.” Id. at 262. Nevertheless, the Court cautioned that the deadline for objecting was “not an arbitrary one,” as it served “an important public purpose,” namely, avoiding impediments to achieving permanence for children placed in foster care resulting from a CINA proceeding. Id. at 259–64.
In 2021, the Supreme Court of Maryland amended the Maryland Rules to address discrepancies in the current rules pertaining to the juvenile courts and to clarify the procedural requirements associated with the various types of cases dealt with in the juvenile courts. See 208th Report from the Standing Committee on Rules of Practice and Procedure (July 2021). Pursuant to those amendments, which became effective on January 1, 2022, objections to petitions for guardianship seeking to terminate parental rights following a CINA finding were no longer governed by Rule 9-107, but instead were governed by the newly adopted Rule 11-307. See 208th Report from the Standing Committee on Rules of Practice and Procedure (July 2021) at 148–51; see also Md. Rules 9-101 and 11-301. Consistent with its predecessor, Rule 11-307 provided, in pertinent part, that if a notice of objection to a petition for guardianship was not filed within 30 days after service, “the party will be deemed to have consented to the guardianship.” Md. Rule 11-307(b). In addition, the Rule included a new provision allowing the court to accept a late-filed objection “for good cause shown.” Md. Rule 11-307(b)(3).
As recognized by both the juvenile court and the parties, the Supreme Court of Maryland did not include a definition of “good cause” in the Rule, and our courts have yet to interpret that term in the context of a late-filed objection to a guardianship petition. To fill that gap, the juvenile court examined this Court’s interpretation of the good cause requirement in the context of determining whether a claimant had established good cause for failing to comply with the notice requirement of the Local Government Tort Claims Act (“LGTCA”). We agree that interpretation is helpful and see no reason why it should not be applied in the instant case.
Under the LGTCA, when a party brings a cause of action for unliquidated damages against a local government or its employees, the party is required, by statute, to provide notice of the claim within 180 days after the injury. Rounds v. Maryland-
Nat. Capital Park and Planning Com’n, 441 Md. 621, 639–40 (2015). Although providing notice is a condition precedent to maintaining such an action, failure to give notice is not an absolute barrier to the claim if the complaining party shows, among other things, good cause for the failure. Id. at 640–42. To determine whether a party has shown “good cause” in that context, a court should ask “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Rios v. Montgomery Cnty., 386 Md. 104, 141 (2005) (quotation omitted). We have enumerated several factors that may benefit that analysis: 1) excusable neglect or mistake; 2) serious physical or mental injury; 3) location out of state; 4) inability to retain counsel in a complex case; 5) ignorance of the notice requirement; and 6) misleading representations by a government representative. Mayor and City Council of Balt. v. Stokes, 217 Md. App. 471, 486–87 (2014). To be sure, the burden is on the plaintiff to demonstrate “good cause.” Rounds, 441 Md. at 645. Moreover, because a court’s application of the good cause exception is discretionary, “we confine our review to determining whether the trial court abused its discretion in making its good cause determination.” Id.
Against that backdrop, we hold that the juvenile court did not abuse its discretion in refusing to find good cause to accept Appellant’s late-filed objection.3 As the court noted, the only factor that was applicable to Appellant’s situation was excusable neglect or mistake. There was no evidence that Appellant was located out of state, unable to retain counsel, ignorant of the statute, misled, or suffering from a serious physical or mental injury.
As to whether Appellant’s neglect was excusable, the court found that it was undisputed that Appellant was served with the show cause order on June 29, 2023, and that Appellant failed to file a notice of objection within 30 days of that date. The court found that Appellant’s arrest and detention was not so debilitating that it excused her failure to file. The court concluded that Appellant could have had a family member or attorney file the objection while she was incarcerated and noted that Appellant also had 10 days outside of jail to personally file her objection. The court reasoned that, under the circumstances, Appellant did not demonstrate that she had failed to file her objection for “good cause.”
In our view, none of the court’s findings were erroneous, and the court’s conclusion was reasonable. Even if we accept Appellant’s claim that she was unable to review the paperwork before her arrest and that the paperwork was confiscated by the police and never returned, an ordinarily prudent person in Appellant’s position would have inquired about the paperwork at some point during that person’s subsequent 20-day incarceration. At the very least, Appellant should have inquired into the nature of the paperwork after her mother visited her in jail and informed her that there were “some papers for her” and that “they were important.” Appellant did neither of those things, even after she was released from incarceration. In fact, there is no evidence that Appellant made any attempt to retrieve the paperwork or learn its contents at any point prior to her mother bringing the papers to her at Mountain Manor on August 8, 2023. Additionally, when Appellant did eventually review
the paperwork, she took no immediate action to ensure that the notice of objection would be received by the court forthwith. Instead, Appellant waited an additional two days before putting her notice of objection in the mail. Consequently, the court did not receive the notice of objection until August 17, nearly three weeks after the expiration of the 30-day filing deadline. Given those circumstances, the juvenile court did not abuse its discretion in declining to find good cause to accept Appellant’s late-filed objection.
As noted, Appellant argues that the court’s finding that she “had 10 days outside of jail to meet the statutory requirement” was erroneous because “she still did not possess the documents” following her release from jail and “had no way of knowing that there was a deadline[.]” We discern no inaccuracy in the court’s finding. Appellant was released from jail 20 days after being served; therefore, she had 10 days outside of jail to file her notice of objection. That she claims to have not possessed the documents or known of their contents had no bearing on the veracity of the court’s finding that she was not incarcerated for 10 days during the statutory period.
To the extent that Appellant is claiming that her alleged lack of knowledge regarding the contents of the paperwork somehow excused her neglect in failing to timely file her notice of objection, we remain unpersuaded. As discussed, Appellant
had ample opportunity to discover the nature of the documents and to timely file her notice of objection. A factfinder could rationally conclude that had Appellant exhibited reasonable diligence following her arrest, she almost certainly would have become aware of the contents of the show cause order in time to file a notice of objection before the expiration of the 30-day period. Thus, it was reasonable for the court to find that Appellant had failed to carry the burden of showing good cause. See Rios, 386 Md. at 141.
We likewise find no error in the court’s reliance on In re Adoption/Guardianship and the related determination that Appellant’s incarceration during some of the 30-day window to file an objection did not rise to the level of an “extraordinary circumstance of such a compelling nature” as to render her consent to the order ineffective or deprive her of due process. Despite Appellant’s claims to the contrary, there is nothing in the record to suggest that the court believed it was not permitted to find good cause based on that case, which was decided prior to the enactment of Rule 11-307.4 The record makes plain that the court understood the history of both the case and the Rule, and that the court used the case in its proper context.
For the reasons articulated above, we affirm the judgment of the trial court.5
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Rephrased from: “Did the court commit error when it refused to find good cause to allow Ms. B to file a late objection to the department’s petition to terminate her parental rights?”
2 Section 3-801(f) of the Courts and Judicial Proceedings Article of the Maryland Code defines a CINA as a child requiring court intervention because: “(1) [t]he child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) [t]he child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.”
3 Because Rule 11-307 states that a juvenile court “may” accept a late-filed objection for good cause shown, we construe the court’s good-cause determination as discretionary. See Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 532 (2004) (noting that “[t]he word ‘may’ connotes a permissive, discretionary function”). As such, we review that determination for abuse of discretion.
4 The Supreme Court’s reference to a parent unable to respond to a petition due to being in a coma in In re Adoption/Guardianship was invoked as an example of a
circumstance in which a parent’s due process protections would be violated. See id. at 260–61. The trial record reveals that the court understood this and referenced In re Adoption/Guardianship in the context of determining that Appellant had received due process, and not because the court believed that good cause for a late filing could not exist absent a circumstance as severely restrictive as a coma.
5 In Appellant’s brief to this Court, Appellant asserts only that the juvenile court erred in declining to find good cause to consider her late-filed objection to the petition to terminate parental rights. In response, the Department argues that Appellant did not demonstrate that accepting her latefiled objection would be in the best interests of the child. We note that in this case, the termination of parental rights was deemed to have been consensual and thus proceeded by operation of law, not following a contested hearing on the merits. See FL § 5-320; see also In re Adoption of Sean M., 204 Md. App. 724, 736 (2012). Our review of the record reveals that the court did not weigh the best interests of the child as part of its evaluation of whether Appellant demonstrated good cause for the court to consider her late- filed objection, but did find that the child’s best interests were furthered by the grant of the petition for guardianship. We discern no error in either of these actions.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s award of custody and guardianship of the minor child to his maternal aunt and uncle. However the circuit court erred when it failed to establish the “minimal level of appropriate contact” between the child and mother and instead stated it shall be “arranged between the parties.”
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.
grandmother (“Grandmother”), to “get a gun” and watch E.B. because “bad people were coming for him.” Grandmother declined to do so and later discovered that H.B. and E.B. had left the home at 4 a.m.1 After being unable to reach H.B. by phone, Grandmother filed a missing persons’ report. H.B. returned home with E.B. at 4 a.m. the following day.
In that time, police in Washington, D.C., responded to a report that H.B. had approached an individual in Washington, D.C. and stated that someone had drugged E.B. When police arrived, H.B. fled by car with E.B. Police were able to identify H.B. by her license plate and notified DSS.
Nineteen months after declaring E.B. a child in need of assistance (“CINA”) pursuant to Md. Code Ann. (1974, 2020 Repl. Vol.), § 3-801(f) of the Courts and Judicial Proceedings Article (“CJP”), the Circuit Court for Baltimore County awarded custody and guardianship of E.B. to his maternal aunt and uncle. E.B.’s mother, H.B., appeals and presents the following two questions for our review:
1. Did the court err when it granted the maternal uncle and aunt custody and guardianship of E.B. and terminated jurisdiction over the family instead of keeping reunification with mother as a goal?
2. Did the court err as a matter of law when it directed in the final custody and guardianship order that any visitation between mother and E.B. “is arranged between the parties” and failed to set the minimum visitation the relative caregivers were required to provide mother and E.B.?
For the reasons set forth herein, we answer the first question in the negative, but conclude that the court erred as to its visitation order. Accordingly, we shall reverse the circuit court’s determination regarding visitation and remand for further proceedings.
BACKGROUND
E.B. came to the attention of appellee, Baltimore County Department of Social Services (“DSS”), in December of 2021 after DSS received a report that H.B. “was having delusions causing her to believe that the family home had been bugged and that she and [E.B.] had chips implanted in their heads trying to control them.” DSS was further notified of an incident in which H.B. had asked her mother, E.B.’s
Upon returning home, on December 5, 2021, H.B. agreed to a safety plan whereby E.B. would stay with his maternal uncle, N.B. (“Uncle”), and N.B.’s wife, M.K. (“Aunt”), and their two-year-old son, and H.B. would seek mental health treatment. However, that evening, Uncle called the police after H.B. arrived at his home and “began banging on windows,” demanding to see E.B. The following day, H.B. told DSS that she was “hearing voices throughout the home” and that a person she had known in high school “was speaking to [E.B.] through a chip implanted in his head.”
On December 7, 2021, DSS received two reports: one from Grandmother that H.B. “became belligerent” and threw items at Grandmother’s car, then followed Grandmother when she left, parked next to her car and sent “aggressive text messages”; and a second report from Uncle that H.B. “showed up at [E.B.’s] school and cause[d] a commotion.” That day, E.B. was sheltered due to concerns regarding H.B.’s “mental health and overall stability.”2 On December 8, 2021, DSS filed a petition asserting that E.B. was a CINA.3 On January 21, 2022, the court held a hearing where H.B., through counsel, did not dispute the allegations in the CINA petition and acknowledged that testimony would establish “that the department has enough evidence to sustain the allegations in the petition.” The magistrate recommended that E.B. be declared a CINA and remain at Aunt and Uncle’s home, and that H.B. have liberal supervised visitation with E.B. H.B. filed exceptions to the magistrate’s recommendations. Following a hearing on February 28, 2022, the court denied H.B.’s exceptions, noting that although H.B. was “making progress,” that she was “not there yet.” The court noted that it was concerned about “some pretty serious type of allegations of delusional behavior.” By an order dated March 2, 2022, the court declared E.B. a CINA. E.B. remained with Aunt and Uncle and H.B. was awarded liberal supervised visitation with E.B.
Initially, Aunt and Uncle agreed to supervise visits between H.B. and E.B. However, on April 20, 2022, they reported that they were no longer comfortable doing so because of H.B.’s “confrontational behavior” towards Aunt. Accordingly, a third party began supervising H.B. and E.B.’s visitation.
Following a review hearing in June of 2022, the court identified reunification with H.B. as the permanency plan for E.B., and in accordance therewith, ordered that H.B. comply with several requirements, including a mental health evaluation.4 After doing so, H.B. was diagnosed with Unspecified Anxiety Disorder and with a provisional diagnosis of Bipolar I Disorder, and began attending therapy.
The court held a permanency planning hearing in September of 2022. DSS reported that E.B. was “doing quite well” with Aunt and Uncle and that he “enjoys spending time with his cousin in the home and with friends in the neighborhood.” DSS and the best interest attorney appointed for E.B. sought to add a concurrent permanency plan of custody and guardianship to Aunt and Uncle. H.B. asserted that it was “too soon to change to a concurrent plan” and that she was “making good progress.” Additionally, H.B. sought increased and unsupervised visitation with E.B. The court denied both parties’ requests and set another hearing for February of 2023.5
When the parties appeared before the court in February of 2023, DSS noted that although there had been “some progress by [H.B.], there have also been some steps back[,]” and E.B.’s attorney noted that Mother was “still reporting hearing voices.” Accordingly, DSS and E.B.’s attorney again requested a concurrent permanency plan of custody and guardianship to Aunt and Uncle “given the time that this case has been [sic] and also the nature of the mental health struggles that mom is experiencing[.]” H.B. responded that she was “actively engaged in her therapy” and again argued against any change to the permanency plan. The magistrate again denied changing the permanency plan, indicating that he would “give it another reporting period and we’ll see where we are.”
On April 5, 2023, Aunt brought E.B. to the library for a scheduled supervised visit with H.B. When H.B. learned that the visitation supervisor had forgotten about the scheduled visit, H.B. “became irate” and shoved Aunt, leading to a second-degree assault charge (and conviction) against H.B. She was sentenced to 10 years, all suspended, with 18 months of probation. Aunt also obtained a protective order prohibiting H.B. from having contact with her for one year.
On October 5, 2023, the parties appeared for a hearing. DSS and counsel for E.B. again requested an award of custody and guardianship of E.B. to Aunt and Uncle and asked that the case be closed. DSS acknowledged that H.B. had “done a lot of things that have been recommended by the [c]ourt[,]” but that there were ongoing concerns, including H.B.’s failure to advise her therapist that she continued to hear voices, and that she would send “berat[ing]” emails and text messages to the DSS social worker and to Uncle.
DSS further noted that they were “still dealing with the
debugging, the paranoia” concerns, and that they had received reports “about [H.B.] posting on Facebook about meeting people to come in and debug her home” in September of 2023. Between July and September of 2023, H.B. posted on Facebook that unknown people were “bugging . . . her home, car, and [E.B.’s] placement[,]” and that she paid someone $200 to debug her car “but that did not stop their access.” She also shared on Facebook that “they are bugging her out of church,” “sexually harassing her and trying to convert her to their religion.”
H.B. responded that although she “has struggled with issues, . . . she has done everything to make herself be in a position as an adult where [E.B.] can be in her home and cared for by her[,]” and asserted that DSS’s requests should be denied. Alternatively, in the event the court decided to award custody and guardianship to Aunt and Uncle, H.B. requested visitation at a minimum of every other week, and that the court provide visitation resources if Uncle is not willing to supervise the visits.6
Ultimately, the court awarded Aunt and Uncle custody and guardianship of E.B. and terminated E.B.’s designation as a CINA. Additionally, the court ordered that visitation between H.B. and E.B. be “arranged between the parties.” Specifically, the court’s order regarding visitation provided, in full, that: [V]isitation with parents is arranged between the parties. The Department shall provide to the parties, to the extent possible, ideas and resources it is aware of that provide assistance or facilitation of visitation between parties. H.B. timely filed this appeal. Additional facts will be provided as necessary.
STANDARD OF REVIEW
“There are ‘three distinct but interrelated standards of review’ applied to a juvenile court’s findings in CINA proceedings.” In re J.R., 246 Md. App. 707, 730 (2020) (quoting In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018)). First, we review the court’s factual findings for clear error. Id. (citing In re Adoption/Guardianship of Amber R., 417 Md. 701, 708 (2011)). Next, we review whether the court erred as a matter of law without deference. Id. at 730-31 (quoting In re Yve S., 373 Md. 551, 586 (2003)). “[I]f it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.” In re Adoption/Guardianship of Victor A., 386 Md. 288, 297 (2005) (second alteration in original) (quoting In re Yve S., 373 Md. at 586).
Lastly, “we review the court’s ultimate decision for abuse of discretion.” In re M.H., 252 Md. App. 29, 45 (2021) (citing In re Yve S., 373 Md. at 585-86). In other words, our role “is not to determine whether, on the evidence, we might have reached a different conclusion.” In re B.C., 234 Md. App. 698, 708 (2017) (quoting In re Abigail C., 138 Md. App. 570, 587 (2001)). Instead, “an abuse of discretion exists ‘where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.’” In re Andre J., 223 Md. App. 305, 323 (2015) (alteration in original) (quoting In re Yve S., 373 Md. at 583).
DISCUSSION
H.B. asserts that the court’s ruling should be reversed because “the totality of the circumstances warranted keeping reunification as a permanency goal for [H.B.] and E.B.” In support, H.B. contends that “the evidence showed that E.B. could soon be safe in mother’s care and that mother had made significant progress in remedying the issues that brought the family to the court’s attention.” DSS responds that the court “acted within its broad discretion and in E.B.’s best interests,” and thus, that the custody and guardianship award should be affirmed.
Additionally, H.B. contends that the court’s determination that visitation be “arranged between the parties” failed to set forth the minimum appropriate visitation, relying on this Court’s decision in In re Caya B., 153 Md. App. 63, 81 (2003). Accordingly, she requests that we reverse and remand for the parties to “submit any evidence they may have tending to show whether visitation does, or does not, need to remain supervised.” DSS agrees that the court’s visitation order must be vacated because the court failed to provide H.B. a minimum level of visitation. Accordingly, DSS requests that we remand this matter “for the limited purpose of establishing the minimum amount of visitation and expressly stating that visitation must be supervised.”
I. The court did not err in granting Aunt and Uncle custody and guardianship of E.B.
The statute governing CINA matters, set forth at CJP §§ 3-801-830, provides “detailed requirements” for CINA proceedings. In re M.H., 252 Md. App. at 42. One such requirement is that after a child is determined to be a CINA, “[t]he court shall hold a permanency planning hearing to determine the permanency plan” for the child. CJP
§ 3-823(b)(1). In accordance therewith, the court is to give “primary consideration” to the child’s best interests. Md. Code Ann. (1984, 2019 Repl. Vol.), § 5-525(f)(1) of the Family Law Article (“FL”). Furthermore, this Court has noted that permanency planning “begins with the presumption that reunification with parents is in a child’s best interests[.]” In re M., 251 Md. App. 86, 123 n.10 (2021). However, “that presumption may be rebutted” if “the court determines, after considering the statutory factors in FL § 5-525(f)(1), that ‘weighty circumstances’ dictate that a different plan is in the child’s best interests.” Id. (quoting In re Cadence B., 417 Md. 146, 157 (2010)). The court considers the following factors when assessing the best interests of a child:
1. the child’s ability to be safe and healthy in the home of the child’s parent;
2. the child’s attachment and emotional ties to the child’s natural parents and siblings;
3. the child’s emotional attachment to the child’s current caregiver and the caregiver’s family;
4. the length of time the child has resided with the current caregiver;
5. the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and
6. the potential harm to the child by remaining in State
custody for an excessive period of time. FL § 5-525(f)(1); see also CJP § 3-823(e)(2).
Furthermore, this Court has noted the “‘valid premise . . . that it is in the child’s best interest to be placed in a permanent home and to spend as little time as possible in’ the custody of the Department.” In re M., 251 Md. App. at 128 (quoting In re Jayden G., 433 Md. 50, 84 (2013)). Indeed, the CINA statute provides that, “[e]very reasonable effort shall be made to effectuate a permanent placement for the child within 24 months after the date of initial placement.” CJP § 3-823(h) (5); see also In re Adoption/Guardianship of Victor A., 386 Md. 288, 304 (2005) (noting that the “overriding theme” of the CINA statute “is that a child should have permanency in his or her life” (quoting In re Yve S., 373 Md. at 576)).
Here, the record reflects that the court appropriately considered the best interests of E.B. and each of the factors set forth in FL § 5-525(f)(1) before awarding custody and guardianship of E.B. to Aunt and Uncle. Specifically, considering the first factor enumerated under FL § 5-525(f)(1), E.B.’s ability to be safe and healthy in the home of H.B., the court noted that:
[T]here are significant concerns to the department that the child would not be safe in the home of the child’s parents based upon the behaviors that the parent is exhibiting, based upon the failure to be fully forthcoming with therapeutic concerns and based upon the continued aggressive behavior exhibited by the mother.
Further, as to the second factor, E.B.’s attachment to H.B., the court found as follows:
The [c]ourt has considered the child[’s] attachment and emotional ties to the child’s natural parent and siblings. The [c]ourt finds here that there is a clear emotional bond with the child and the child’s mother; the child is very fond of the child’s mother, but does exhibit concerns about being solely alone with the child’s mother. Based upon what the child has articulated, the [c]ourt finds to be concerns [sic] with the veracity of statements made by the child’s mother and also that also concerns to the [c]ourt [sic].
As to the length of time E.B. had resided with Aunt and Uncle, and the potential emotional attachment to Aunt and Uncle under FL §§ 5-525(f)(1)(iii) and (iv), the court noted that:
The child’s emotional attachment to the child’s current caregiver and the caregiver’s family, the [c]ourt finds for the almost two years that the child has been in the placement with the maternal aunt and uncle, that there has been significant emotional attachments the child has formed with the child’s current caregiver and the caregiver’s family including the child of that family. The length of time in which the child has resided with the current caregiver and again the [c]ourt finds that the child has been in the current placement since the child has been sheltered or committed to the department.
Moreover, as to FL § 5-525(f)(1)(v), the potential harm in moving E.B. away from his placement with Aunt and Uncle, the court concluded that removal of E.B. from the home “would be potentially harmful”:
The [c]ourt further has considered the potential emotional[,]
developmental and educational harm to the child if moved from the child’s current placement. The [c]ourt does find that the child has been in the same school since the child has been of an age in which the child would attend school. The [c]ourt finds the child potentially would be educationally harmed to be removed from the child’s current placement, is emotionally bonded and the child’s developmental, any type of educational, therapeutic or other emotional needs are being met by the current caregivers. The [c]ourt further finds that that would be potentially harmful if the child was removed.
Finally, considering FL § 5-525(f)(1)(vi), the potential harm in remaining in state custody, the court noted that E.B. had already been in state custody for a “great length” of time, and that the matter was in an “arguably . . . worse position” than before the case’s inception due to H.B.’s criminal conviction: The potential harm to the child by remaining in state custody for an excessive period of time, again, the [c]ourt so finds that the child has been sheltered and then committed for a period of time which the [c]ourt finds is then, that is of great length. That is not the only factor, but it is a factor that the [c]ourt gives weight to to some extent when considering when the permanency plan would be completed. And the [c]ourt finds that in review of the report and the evidence that are submitted to the [c]ourt, the [c]ourt does find as it stated before that much of the same issues that were present and were concerning to a fact finder of this [c]ourt and also to the department are the same circumstances that are exhibiting today and that we are much in the same position as we were back when there was a hearing and shelter care on December 8th, 2021. The [c]ourt finds arguably that we are in a worse position because there has now been a criminal conviction for assault and there also is a current protective order in place which shows to this [c]ourt that there has been an escalation in the inability for the mother to control her behaviors.
On appeal, H.B. argues that the court erred in its findings concerning H.B. not being forthcoming about her symptoms in therapy and her aggressive behavior. She admits that the court based its findings on testimony from the social worker, but argues that the social worker’s testimony “was speculative” because the therapist reported shortly before the October 2023 hearing that H.B. was “making progress,” had “insight to symptoms,” and was “compliant with treatment.” She further argues that she did not exhibit “continued” aggression because the evidence revealed only one instance of physically violent behavior. We cannot conclude that the court’s findings were erroneous. There was ample evidence suggesting that H.B. denied her ongoing auditory hallucinations and paranoid delusions, permitting the fact-finder to reasonably infer that she was not accurately reporting these symptoms to her therapist. Additionally, H.B. seeks to limit the word “aggression” to only acts of physical violence. However, “aggressive behavior” includes not only the physical assault of Aunt in April 2023, but also H.B.’s actions in December 2021, when she threw items at Grandmother’s car, and when she banged on the windows of Aunt and Uncle’s house demanding to see E.B., and the “berat[ing]” text messages H.B. sent to the DSS social
worker.7 As to H.B.’s criticism of the court’s reliance on the social worker’s testimony, “[i]t is not our role to reassess the credibility of the witnesses who testify before the trial court.” Thornton Mellon, LLC v. Adrianne Dennis Exempt Tr., 250 Md. App. 302, 329 (2021).
H.B. further contends that the “totality of the circumstances warranted keeping reunification as a permanency goal for [H.B.] and E.B.” She contends that there was no evidence that E.B. “would suffer harm if his CINA case remained open for at least one more six-month review period,” or that E.B. “wanted immediate case closure.”8 (Emphasis removed).
However, these assertions do little to indicate that the court abused its discretion or acted “without reference to any guiding rules or principles.” In re Andre J., 223 Md. App. at 323 (quoting In re Yve S., 373 Md. at 583). Instead, the record reflects that the court made its determination after “giving great weight to the best interests of the child” and the fact that there were “still compelling concerns of safety if reunified” with H.B. Further, the court made its decision after twice denying DSS’s request to change the permanency plan from reunification with H.B., leading to over a year of additional proceedings. Indeed, at the time of the court’s decision, E.B. had already been in state custody for nearly 22 months, yet the circumstances were “arguably . . . worse” than at the case’s inception. We cannot say that the court abused its discretion in declining to keep the matter open for an additional review period.
Finally, H.B. maintains that her “continued therapeutic progress warranted keeping reunification on the table[,]” citing to our opinion in In re Adoption/Guardianship of J.T, 242 Md. App. 43 (2019), where we reversed a termination of parental rights and noted that “[i]n cases involving mental illness, a court should carefully assess whether, at the time of the merits hearing, the parent’s efforts to rehabilitate her mental illness ‘were beginning to bear some fruit[.]’” Id. at 62 (quoting Mary Ellen C. v. Ariz. Dep’t of Econ. Sec., 971 P.2d 1046, 1054 (Ariz. Ct. App. 1999)). However, the facts before the Court in that case indicated that the mother was “becoming stable,” was forthcoming about her mental health to medical professionals, and had not “exhibit[ed] any violent behavior towards other people.” In re Adoption/Guardianship of J.T., 242 Md. App. at 67-68. Here, although it was undisputed that H.B. had made some progress,9 she was convicted of second-degree assault less than two months before the court’s ruling, where the court noted that “much of the same issues that were present and were concerning” at the matter’s inception were “the same circumstances that are exhibit[ed] today.” Accordingly, given the facts and the record before us, we are unpersuaded that “no reasonable person would take the view adopted by the [trial] court[.]” In re Andre J., 223 Md. App. at 323 (alteration in original) (quoting In re Yve S., 373 Md. at 583).
II. The court erred in ordering that any visitation between H.B. and E.B. shall be “arranged between the parties[.]”
Although not absolute, the right of a parent to visit his or her child placed in the custody of another “is an important, natural and legal right[.]” Boswell v. Boswell, 352 Md. 204, 220 (1998) (quoting 2 William T. Nelson, Divorce and Annulment
§ 15.26, at 274-75 (2d ed. 1961)). Accordingly, “[n]ot only must access to the child[] be reasonable, but any limitations placed on visitation must also be reasonable.” Id. (citing North v. North, 102 Md. App. 1, 12 (1994)). Further, this Court has noted that visitation rights “are not [to] be denied even to an errant parent unless the best interests of the child would be endangered by such contact.” Roberts v. Roberts, 35 Md. App. 497, 507 (1977).
It follows that the trial court does not have discretion to “delegate its responsibility to determine the minimal level of appropriate contact between the child and his or her parent.”
In re Justin D., 357 Md. 431, 449 (2000). Instead, the court must set forth “at least the minimal amount of visitation that is appropriate and that DSS must provide, as well as any basic conditions that it believes, as a minimum, should be imposed.” Id. at 450. Accordingly, although orders related to visitation are “generally within the sound discretion of the trial court,” Barrett v. Ayres, 186 Md. App. 1, 10 (2009), where a trial court’s order concerning visitation “constitutes an improper delegation of judicial authority to a non-judicial agency or person, the trial court has committed an error of law.” In re Mark M., 365 Md. 687, 704-05 (2001); see also In re Caya B., 153 Md. App. at
81 (holding that the trial court erred in failing to set forth the minimum amount of visitation or conditions that would apply and leaving it in the hands of the guardians). H.B. and DSS agree, as do we, that the court’s order failed to establish the “minimal level of appropriate contact” between H.B. and E.B. as required by the caselaw. That the order merely provides that visitation would be “arranged between the parties” constitutes an improper delegation of the court’s authority regarding visitation to non-judicial individuals, namely, Aunt and Uncle. Moreover, as H.B. correctly points out, Uncle had indicated that he would only facilitate visitation after “see[ing] some of the behaviors towards his family reduced,” and Aunt’s restraining order against H.B. remained in place for over six months after the date of the court’s ruling. Thus, it is unclear what, if any, visitation H.B. would be afforded under the court’s order. Such a limitation on H.B.’s “important, natural and legal right” to visit E.B. is not supported by the facts in the record before us. Boswell, 352 Md. at 220 (quoting Nelson, supra, at 274-75). Accordingly, we shall vacate the court’s visitation provision and remand the case to the circuit court for additional proceedings to determine the minimum amount of visitation to be afforded to H.B., and any basic conditions that should apply.
THE CIRCUIT COURT FOR BALTIMORE COUNTY’S AWARD OF CUSTODY AND GUARDIANSHIP IS AFFIRMED. THE VISITATION PORTION OF THE ORDER IS VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE EQUALLY DIVIDED BETWEEN APPELLANT AND APPELLEE BALTIMORE COUNTY DEPARTMENT OF SOCIAL SERVICES.
FOOTNOTES
1 H.B. and E.B. resided in Grandmother’s home at the time.
2 A child is “sheltered” under CJP § 3-801(bb) when temporarily placed “outside of the home at any time before [a child in need of assistance] disposition.” In this case, E.B. began residing at Aunt and Uncle’s on December 5, 2021, where he remained when sheltered by DSS two days later.
3 A CINA is “a child who requires court intervention because: (1) The child has been abused, has been neglected, has a developmental disability, or has a mental disorder; and (2) The child’s parents, guardian, or custodian are unable or unwilling to give proper care and attention to the child and the child’s needs.” CJP § 3-801(f).
4 The order asserted that E.B.’s permanency plan was “[r] eunification with parent(s).” However, the record indicates that E.B.’s putative father had not been involved in E.B.’s life and that DSS’s efforts to locate him were unsuccessful.
5 The record indicates that the court was, in part, concerned about a “fairness issue” relating to an evaluation H.B.’s counsel received from DSS that morning.
6 Aunt’s protective order against H.B. remained in place until April 13, 2024.
7 H.B. argues that the court should not have considered her December 2021 actions because those incidents were mentioned in the original petition for shelter care but subsequently removed by the parties’ agreed-to amendments to the petition. Therefore, according to H.B. “there was no sustained finding that [H.B.] actually became physically aggressive with her family” in December 2021. However, as H.B. acknowledges, these same allegations were repeated in DSS reports that were admitted into evidence at the October 2023 hearing without objection. Counsel for DSS mentioned the December 2021 incidents in closing argument, and at no point did H.B. object or argue that it would be inappropriate for the court to consider the incidents. H.B.’s argument on this point has not been preserved for appellate review.
8 We note that counsel for E.B. agreed with DSS that Aunt and Uncle should be awarded custody and guardianship.
9 However, much of the evidence indicated that H.B. continued to deny experiencing auditory hallucinations or paranoid delusions, which the court found to be credible.
