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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.
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3 Child Advocacy: Conserving a foster youth’s federal benefits
Many foster care youths are eligible to receive federal benefits. Some children who enter foster care may already be entitled to one or more federal benefits; others become eligible for federal benefits while in foster care.
4 Cover Story: The acronym that makes family law attorneys nervous
Family law practitioners are used to stress, dealing as they do with fractured family relationships and clients’ often-raging emotions. But a single acronym can make even the hardiest attorney blanch: QDRO.
6 Feature Story: States reassess practice of tapping foster kids’ federal benefits
For decades, states have routinely applied for Social Security survivor and disability benefits on behalf of foster children and then used that money to help cover the costs of foster care services. The tactic has saved states from having to spend millions of their own tax dollars on foster care programs. But that’s beginning to change under pressure from child advocates.
8 In the News: Va. judge to rule whether embryos are property
Fairfax County Circuit Court Judge Dontae Bugg heard arguments earlier this month from a divorced couple who disagree over the ex-wife’s desire to use two embryos that they created when they were married.
9 Monthly Memo
A divorce judgment that simultaneously treated a $5 million advance the husband received from his new employer both as a divisible asset and as income for alimony purposes constituted impermissible “double dipping,” the Massachusetts Appeals Court has decided. ... Japan’s parliament passed a revision to the country’s civil code that will allow divorced parents the option of joint child custody, a change that brings the nation in line with many other countries. … Where the parties’ marital settlement agreement did not require the husband to name the wife as the beneficiary of the survivor benefit plan connected to his pension, the circuit court erred when it entered a qualifying court order imposing this requirement, the Virginia Court of Appeals ruled. … A Republican who spent years as one of Ohio’s highest profile politicians has been threatened with jail time for violating the terms of his 2020 divorce agreement. … A federal judge dismissed a lawsuit brought by a Maine woman who accused school officials of encouraging her teen’s gender expression by providing a chest binder and using a new name and pronouns, without consulting parents.
Conserving a foster youth’s federal benefits
Many foster care youths are eligible to receive federal benefits. Some children who enter foster care may already be entitled to one or more federal benefits; others become eligible for federal benefits while in foster care.
These benefits can include Veterans Administration benefits, Social Security benefits, or Supplemental Security Income benefits. As a minor, these benefits to which the foster child is entitled are paid to a representative payee; this is frequently the local department of social services.
As the child’s representative payee, the department must “use or conserve the benefits in the child’s best interest”. Md. FL §5-527.1(c)(1).
Prior to the age of 14, up to 100% of the SSI benefits may be used to provide for the care of the child; however, once a child reaches the age of 14, the department must conserve a certain percentage of the benefits: from age 14 through age 15, at least 40%; from age 16 through age 17, at least 80%; and from age 18 through age 20, 100%. Md. FL§5-527.1(c)(2).
If a child receives SSI benefits and is expected to accumulate more than $2000 in assets over the next sixmonth period, the department must determine that the child requires a Special Needs Trust (SNT) and establish an approved account for the child. Social Security Act, 42 U.S.C. § 1917(d)(4)(A).
An SNT will preserve the child’s eligibility for needs-based government benefits.
“The basic purpose of a “special needs trust” is to provide benefits, by means of a trust, to a person who would otherwise lose eligibility for public assistance (Supplemental Security Income, Medicaid or
LUNN TAMALA
Child Advocacy
Subsidized HUD Housing.)”
Jane Doe, a 20-year-old foster youth, entered foster care at the age of 14 due to physical abuse. Jane is disabled; she has been receiving federal benefits, including SSI benefits, since she entered care.
Jane must exit the foster care system at age 21. Once Jane is no longer in care, the department will no longer provide for her care, including basic services such as costs associated with housing, employment assistance, and mental health treatment.
Jane is, therefore, planning her exit from foster care by seeking employment, an apartment, and a car.
The department conserved Jane’s benefits in accordance with the guidelines and deposited them in an account for her in an SNF when she entered care; she has accrued benefits in the amount of $20,000.00.
Jane is eager to use the funds for housing, to furnish her home, and to purchase an automobile. The accrual of these SSI benefits will enable Jane to fund certain housing costs, appliances, therapy, employment services, her telephone, and pay for transportation.
The use of her SNT funds is limited, however; they cannot be used for food, shelter or health care expenses already covered by other public benefits.
Her SNT funds can be used for 100% of the furniture Jane needs for her apartment, but only if Jane is the sole occupant. Her SNT funds may be used to purchase a car and insurance.
When Jane makes this request,
the trustee of the trust has sole discretion of its distribution and may deny, based on a number of factors including Jane’s disabilities, her request to purchase an automobile.
Additionally, depending on the dollar amount of a desired purchase, an expenditure from the trust may require special approval beyond the trustee’s discretion.
Although the department is charged with the responsibility of following the guidelines as to the use and conservation of a child’s benefits, the child should be informed about her benefits and their use.
The department must provide the child’s attorney at least annually and before each juvenile court hearing an accounting of the child’s benefits. The accounting must include the benefit amount received, the expenditures made, and the amount conserved.
In addition, the department is charged with ensuring financial literacy training for all foster children for whom it serves as a representative payee.
The department must also ensure that the child is provided with individualized instruction on how to use and maintain any established SNT, or any other conserved funds.
Given the importance of these funds to a foster youth, especially as she is transitioning out of the foster care system and into adulthood, it behooves the child’s counsel to monitor the management of a child’s federal benefits.
It is equally important to ensure that the child is informed and knowledgeable about these benefits, to assist the child in making a successful transition out of care and into adulthood.
Tamala Lunn is a staff attorney at Maryland Legal Aid.
The term QDRO technically applies only to retirement benefits under the federal Employee Retirement Income Security Act, but it’s often used when discussing other types of domestic relations orders.
QDRO: The acronym that makes family law attorneys nervous
B y H ope K eller
Special to The Daily Record
Family law practitioners are used to stress, dealing as they do with fractured family relationships and clients’ often-raging emotions. But a single acronym can make even the hardiest attorney blanch: QDRO.
Short for qualified domestic relations order, a QDRO is a court decree, usually prepared by an attorney, that sets forth how assets
in a retirement plan or pension will be divided in a divorce.
“The word ‘QDRO’ is like a bad word with family law attorneys because it screams ‘malpractice,’” said Sarah Broder, principal, estates, trusts and probate at Stein Sperling in Rockville.
(The term QDRO technically applies only to retirement benefits qualified under the federal Employee Retirement Income Security Act, or ERISA, but the term
is often used generically when discussing other types of domestic relations orders.)
Attorneys’ very leeriness of QDROs can get them into hot water, Broder said.
“They just tell the client, ‘Hey, you need to get a QDRO’ and then the client is left trying to figure out where to go or who to find to do a QDRO and it just never gets done,” she said – a scenario that could result in the client’s filing suit years
AP FILE PHOTO
later when they discover they’ve missed out on their share of a former spouse’s retirement account.
To help family law practitioners better understand QDROs, Broder and Rama Taib-Lopez, of counsel, family law at Stein Sperling, will present a seminar at next month’s annual Maryland State Bar Association meeting in Ocean City.
Taib-Lopez said the presentation – scheduled for June 7 at 8:30 a.m. – would outline various retirement assets and how to deal with them when drafting separation or settlement agreements or preparing for trial, as well as the documents that attorneys need to obtain in discovery.
“You want to make sure that the provisions necessary to effectuate the intended or agreed-upon terms are present (in the plan documents),” Taib-Lopez said. “A lot of times the court order will be clear, but then the plan won’t honor it because it’s not allowed to.”
To avoid such a situation, attorneys preparing QDROs must get a copy of the retirement plan documents, Broder said.
“It’s going to be different for every type of plan, but get the plan documents and the summary plan description, which is a pretty detailed summary of the plan benefits,” she said. “It’s just a gold mine.”
Broder added that divvying up retirement benefits is far from straightforward – and that coming up with a particular dollar figure for a nonparticipating spouse is not a good idea.
“Some (pension funds) are not really funded very well at all, which means by the time the participating spouse retires there might not really be much of anything,” she said. “A lot of times there are a lot of contingencies in the plan documents themselves that say, ‘If there’s not enough funding, this is what’s going to happen.’ You need to advise your
SUBMITTED PHOTO
“You want to make sure that the provisions necessary to effectuate the intended or agreed-upon terms are present (in the plan documents),” says Rama Taib-Lopez, of counsel, family law at Stein Sperling.
client that we can estimate what your share of this pension is going to be, but there’s no guarantee it’s going to be this exact amount.”
Attorneys should also find out if a spouse negotiated the return of contributions toward a pension if they left a job before becoming fully vested or eligible to receive the pension.
“You want to make sure you’re getting a cut of that return of contribution because you’re not going to get a share of the annuity because there won’t be one,” Broder said.
A retirement payout is not the only benefit to be negotiated, Broder and Taib-Lopez emphasized.
“If you’re negotiating a settlement, review the plan documents to see if the former spouse can get health insurance coverage for a reduced rate. Or, for the military, there’s commissary benefits for certain spouses and there’s the GI bill for education,” Broder said. “They’re good to be aware of because they can give you a bargaining chip in the negotiation.”
SUBMITTED PHOTO
“The word ‘QDRO’ is like a bad word with family law attorneys because it screams ‘malpractice,’” says Sarah Broder, principal, estates, trusts and probate at Stein Sperling in Rockville.
Attorneys should also ask for any retirement forms that an already-retired spouse completed to elect or waive benefits, Broder and Taib-Lopez said.
“Our clients don’t always remember what they signed, and they don’t always know that they waived the survivor benefit because, at the time, it didn’t make sense to do it because maybe it cost money, but then 15 years later, if you’re getting divorced, you want to know that,” Broder said.
Broder and Taib-Lopez stressed that attorneys who don’t want to prepare QDROs themselves should make that explicit when taking on new clients.
“Attorneys need to shepherd their client to a particular QDRO preparer or make sure it’s in writing that the client needs to do follow-up and that their engagement agreement does not cover the preparation of the QDRO,” Broder said. “It’s just being really clear with the client about what the expectations are and what the follow-up needs to be.”
Feature Story
For decades, states took foster children’s federal benefits. That’s starting to change
By DaviD a. lieB
Associated Press
JEFFERSON CITY, Mo. — By the time Jesse Fernandez turned 18, the federal government had paid out thousands of dollars in Social Security survivor’s benefits because of the death of his mother. But Jesse’s bank account was empty.
The money had all been used by Missouri’s foster care system or relatives responsible for his care.
“I was shocked,” said Jason White, a foster parent to Fernandez.
“Those dollars are a big deal,” he continued. “Had they been saved, or a chunk of it saved, he’d have money for a car and a first-time apartment.”
For decades, states have routinely applied for Social Security survivor and disability benefits on behalf of foster children and then used that money to help cover the costs of foster care services. The tactic has saved states from having to spend millions of their own tax dollars on foster care programs.
But that’s beginning to change under pressure from child advocates who contend the practice is both immoral and detrimental to foster children because it exhausts funds that could have helped them transition to adulthood.
More than a dozen states have made at least some sort of revisions to the practice since Maryland became the first to do so in 2018. Colorado became the latest in April when it enacted a law establishing a foster children’s list of rights, which stipulates that any benefits be used for their “individual needs.”
Similar measures have been
AP Photo/Charlie Riedel
Jesse Fernandez, center, talks with his former foster parents Jason and Joyce White in Independence, Missouri. Fernandez was paid thousands of dollars of Social Security survivor’s benefits because of the death of his mother, but by the time he turned 18, the money had all been used by the state of Missouri and Fernandez’s relatives to pay for his foster care.
proposed this year in numerous states as part of an “incredible explosion of reform efforts,” said Amy Harfeld, national policy director for the Children’s Advocacy Institute at the University of San Diego School of Law.
But change doesn’t always come easy.
Missouri legislation that advocates touted as a national model failed to receive final approval Friday, despite previously passing both chambers. Supporters pointed to gridlock in the Republicanled Legislature and concerns about an unrelated child-custody amendment attached to the bill. Both chambers of the Democraticled Maine Legislature also approved a measure last month that would have prohibited the
state from using foster children’s federal survivor benefits to reimburse its costs for foster care services. But the legislation failed to reach the governor’s desk because lawmakers weren’t able to allocate the nearly $1.8 million necessary to compensate for the proposed change.
“There is a strong and growing interest to implement reforms,” said Meg Dygert, staff leader of the National Association of Public Child Welfare Administrators.
But “addressing this issue is not without its complexities,” she said.
“To shift practices, child welfare agencies must work through significant financial, operational, technical, and legal challenges.”
An estimated 40,000 to 80,000 children in foster care either receive or are eligible for Social
Security benefits, typically because of the death of a parent or their own disability, according to a report released last month by the Children’s Advocacy Institute. Those benefits typically pay hundreds of dollars a month per child, which adds up to millions of dollars annually for states.
In Missouri, the Children’s Division spent more than $9.3 million last year on foster care services from the accounts of about 1,400 foster children who received Social Security benefits, according to legislative research staff. Those federal disability payments would have amounted to an estimated $123,000 over 13 years for Alexus Brandon, her foster mother Brenda Keith said. But Brandon, 21, received none of that when she aged out of Missouri’s foster care system because the state had used it all, Keith said. Brandon now receives monthly disability checks, but she has fallen behind on rent payments and can’t afford a car, making it harder to get a job.
Had the state set aside some of her childhood disability benefits for future use, “it would have helped me start out my life,” Brandon said. The Missouri legislation would have required the Children’s Division to apply for Social Security benefits on behalf of eligible foster children but prohibited the agency from using that money for required foster care expenses. Instead, the benefits would have been set aside for children when they age out of foster care or spent on “unmet needs” such as school, transportation or other items. A similar measure passed the Republican-led Arizona Legislature last year and was signed into law by Democratic Gov. Katie Hobbs. At the time, the state Department of Child Safety said it was collecting about $6.2 million annually in Social Security and veterans’ survivor benefits
on behalf of foster children and spending around $4 million of that on foster care services.
“We shouldn’t be funding government off the backs of abused children,” said Kendall Seal, vice president of policy at the Center for the Rights of Abused Children, which backed the Arizona and Missouri measures.
Oregon Gov. Tina Kotek, a Democrat, also signed a law last year barring the state from using children’s benefits to cover the state’s costs of food, clothing, housing and daily supervision of foster children. It instead directs those funds to savings accounts for children’s personal needs, including education and future housing expenses.
New Mexico’s children’s department announced last year it would no longer tap into foster children’s Social Security benefits and instead place that money in a trust for children. Massachusetts’
children’s agency said earlier this year it also was ending the use of foster children’s Social Security benefits to cover its costs.
Lawmakers in Missouri and Maine said they would try again next year to pass legislation limiting the state’s use of foster children’s federal benefits.
The Maine measure was sponsored by Democratic Rep. Amy Roeder, who adopted two sons from foster care, including one who receives Social Security survivor’s benefits because his biological father died. While he was in the foster care system, her son didn’t receive any of those monthly benefit payments. But Roeder said she is now saving the funds until he is an adult to help pay for higher education or housing.
“Money is a cold comfort when you lose somebody, but it’s something,” Roeder said, “even if it’s just a little bit of a boost to get you started.
Amy Roeder via AP Maine state Rep. Amy Roeder, left, adopted her son Evan, right, from foster care and has sponsored legislation that would require the state to set aside foster children’s Social Security survivor benefits for their unmet needs or future use.
Va. judge to rule whether embryos are property
By MattHew BaraKat
Associated Press
FAIRFAX, Va. — A trial in Virginia will determine whether state law allows frozen embryos to be considered property that can be divided up and assigned a monetary value.
Fairfax County Circuit Court Judge Dontae Bugg heard arguments earlier this month from a divorced couple who disagree over the ex-wife’s desire to use two embryos that they created when they were married.
Honeyhline Heidemann says the embryos are her last chance to conceive a biological child after a cancer treatment left her infertile. Jason Heidemann, says he does not want to be forced to become a biological father to another child.
The case attracted national attention last year when a different judge, Richard Gardiner, ruled that embryos could be considered “goods or chattel” that could be divided under state law, and his analysis relied in part on a 19th-century law governing the treatment of slaves.
Gardiner is no longer assigned to the case, for reasons unrelated to his citation of slavery as a precedent.
The case also comes as reproductive rights activists have expressed alarm over a ruling from the Alabama Supreme Court that found embryos could be considered children under that state’s law.
There is little case law in Virginia governing the treatment of embryos.
Honeyhline Heidemann’s suit was brought under a partition statute that governs the division of property between interested parties.
Jason Heidemann’s lawyer, Carrie Patterson, argued that there is no precedent for it because that law is not designed to deal with embryos.
A judge in Fairfax County, Virginia, will rule in a nationally watched case that pits a divorced husband and wife fighting over the fate of two embryos they created while married.
Its primary purpose, she said, is to govern the division of real estate.
Case law that exists nationally regarding embryos recognizes that they are not mere property, she said, but rather property with special characteristics that require courts to balance competing interests.
One of the things a judge must consider when evaluating such cases is a person’s “right to procreational autonomy.” In this case, Patterson said, her client has a strong interest in avoiding procreating against his will.
Honeyhline’s Heidemann’s attorney, Jason Zellman, argued that the partition statute applies if the embryos are classified as property, and if they can be assigned a monetary value.
Documents that both Heidemanns signed with the IVF provider specifically refer to the embryos as property, he said, and thus their value can be assessed as the cost
incurred in their creation.
Because there are two embryos, he added, the judge has an easy means of dividing up the property: Award one embryo to each party.
Bugg, who said he will issue a ruling at a later date, expressed misgivings about the notion of assigning a monetary value to the embryos.
Zellman acknowledged that the case presents some novel issues, but he also suggested to the judge that it doesn’t need to “blaze the headlines” or establish any sweeping precedent. He said the unique facts of the Heidemanns’ case — including language in their divorce settlement requiring the embryos to remain in storage “pending a court order” — will distinguish it from future disputes.
The judge readily accepted that notion, saying, “I don’t think anything I do in this case applies to anyone but the Heidemanns.”
AP File Photo/Matthew Barakat
Monthly Memo
Massachusetts appeals court vacates wife’s divorce award as ‘double dipping’
A divorce judgment that simultaneously treated a $5 million advance the husband received from his new employer both as a divisible asset and as income for alimony purposes constituted impermissible “double dipping,” the Massachusetts Appeals Court has decided.
Amidst divorce proceedings, plaintiff Michael Trethewey took a new job with Wells Fargo Advisors. His compensation package included a $5 million “transitional bonus” reflecting advance payment of his anticipated earnings over the next nine years.
He simultaneously executed a $5 million promissory note to be forgiven incrementally at a rate of $51,550 a month over the ensuing nine years as long as he met certain performance benchmarks.
A Probate & Family Court judge treated the loan forgiveness of approximately $600,000 annually as income for purposes of calculating his alimony obligation, while counting the $3.2 million that remained from the $5 million advance payment as an asset and awarded 53 percent of it to defendant Rosalia Trethewey, the wife.
At the same time, the judge allocated to the husband the entire remaining liability of more than $4 million under the promissory note, even though it arose from the advance, a portion of which the wife received through asset division.
The husband argued on appeal that the award constituted reversible error. The Appeals Court agreed and vacated the asset division portion of the judgment.
BridgeTower Media
Japan to allow joint child custody
Japan’s parliament passed a revision to the country’s civil code that will allow divorced parents the option of joint child custody, a change that brings the nation in line with many other countries.
The revision, the first to custody rights in nearly 80 years, is to take effect by 2026. It will allow divorced parents to choose either dual or single custody while requiring them to cooperate in ensuring their children’s rights and well-being.
Under the current law, child custody is granted to only one divorced parent,
almost always the mother.
The change comes as divorces are increasing in Japan and a growing number of divorced fathers hope to stay in touch with their children. A number of high-profile allegations made by divorced foreign fathers who blamed their former partners for abducting their children and returning to Japan also encouraged the change.
In cases in which domestic violence or abuse by either parent is suspected, the other person will have sole custody, according to the revision. The revision is to be reviewed five years after it takes effect.
Husband doesn’t have to name wife as pension beneficiary
Where the parties’ marital settlement agreement did not require the husband to name the wife as the beneficiary of the survivor benefit plan connected to his pension, the circuit court erred when it entered a qualifying court order imposing this requirement, the Virginia Court of Appeals ruled.
David Renberg appealed the Prince William County Circuit Court’s entry of a qualifying court order, or QCO, dividing his military pension. He argued that the circuit court erred entering the QCO because the QCO required him to list Julia Renberg as the beneficiary of the survivor benefit plan, or SBP, connected to his military pension in contravention of the terms of the parties’ marital settlement agreement, or MSA, and the divorce decree.
He also argued that the circuit court was without jurisdiction to enter the QCO because the QCO modified the substantive terms of the divorce decree in violation of Rule 1:1.
The appeals court agreed. “Nothing in the language of this provision, or any other provision in the MSA, requires husband to name wife as the SBP beneficiary. This provision simply incorporates the agreement reached by the parties in the March 8 consent order,” the appeals court said.
BridgeTower
Media
of Ohio’s highest profile politicians has been threatened with jail time for violating the terms of his 2020 divorce agreement.
Josh Mandel, a former two-term state treasurer who ran three times for U.S. Senate, was sentenced to seven days behind bars, as was his ex-wife, Ilana Mandel, after an Ashland County court magistrate found them in contempt of court for violating elements of the deal.
The two have an opportunity to avoid the sentence, issued April 25 and first reported by The PlainDealer/cleveland. com, by complying with certain conditions over the next four months.
To avoid jail, Josh Mandel will have to provide his former spouse with regular updates on the 529 account and Ilana Mandel will have to pay for a sports program for one of their children, minus an amount her ex-husband must pay her for one child’s medical expenses.
Associated Press
Judge dismisses lawsuit by mother who said school hid teen’s gender expression
A federal judge dismissed a lawsuit brought by a Maine woman who accused school officials of encouraging her teen’s gender expression by providing a chest binder and using a new name and pronouns, without consulting parents.
U.S. District Judge Jon Levy in Maine acknowledged his decision that a mother such as Amber Lavigne “might expect school officials to keep her informed about how her child is navigating matters related to gender identity” but he concluded that she failed to establish legal claims for which the school district could be held liable.
According to the lawsuit, a school counselor provided the chest binder and instruction on how to use it. The mother, who has since begun home-schooling her teen, said the school also began calling the 13-year-old by a different name and pronouns.
Ex-Ohio
treasurer Mandel threatened with jail
in divorce case
A Republican who spent years as one
The lawsuit contended the mother had a “right to control and direct the care, custody, education, upbringing and healthcare decisions of her children,” and that Great Salt Bay Community School in Damariscotta violated her constitutional right by keeping the student’s gender expression from parents.
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 remanded the Howard County Circuit Court’s award of infinite alimony and attorneys’ fees to the wife for further consideration. While there was ample evidence supporting the circuit court’s findings that the husband’s testimony about his income was not credible, the court was unable to determine the factual basis for the circuit court’s decision to impute to husband annual income in the amount of $85,000.
PARENTAL; BEST INTERESTS; TERMINATION
Alyona V. Knizhnik v. Igor Z. Knizhnik
No. 1732, September Term 2022
Argued before: Wells, C.J., Arthur, Ripken, JJ.
Opinion by: Wells, C.J.
Filed: Apr. 11, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s finding that a prenuptial agreement was not void as against public policy. It rejected the wife’s argument that enforcement of the agreement, under the circumstances of a case in which she alleged adultery and domestic violence, would “impose[] a penalty on someone for claiming abuse,” and that the agreement was thus void as a matter of public policy.
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the parental rights of both parents to their minor child following a twelve-day guardianship hearing. The court rejected the parents’ arguments that the Department of Social Services failed to show that it had made reasonable efforts towards the parents’ reunification with the child; that there was no clear and convincing evidence that it was the minor’s best interest to terminate parental rights or that the juvenile court failed to give adequate consideration to all of the “best interest” factors.
The Appellate Court affirmed the Baltimore County Circuit Court’s award of guardianship of Martha Ann Kramer to the Baltimore County Department of Aging, its decision to relocate Ms. Kramer to a memory care facility and its award of temporary guardianship of Ms. Kramer’s property to Robert M. McCarthy (an attorney appointed by the court).
Argued before: Graeff, Nazarian, Eyler, James (retired; specially assigned), JJ.
Opinion by: Graeff, J.
Filed: Apr. 4, 2024
The Appellate Court dismissed the husband’s appeal, which argued the marital settlement agreement was null and void. Because the husband also invoked the benefit of the marital settlement agreement in seeking a contempt order against the wife in the circuit court, the doctrine of acquiescence prevents him from challenging the validity of the agreement.
CONSENT AGREEMENT; AMBIGUITY; EVIDENTIARY HEARING
Judith A. Dixon v. Duane L. Dixon
No. 595, September Term 2023
Argued before: Reed, Tang, Eyler, James (retired; specially assigned), JJ.
Opinion by: Eyler, J.
Filed: Apr. 3, 2024
The Appellate Court vacated the Howard County Circuit Court’s order resolving on what date the wife was entitled to share in the husband’s police pension. The relevant provision in the parties’ consent agreement was ambiguous, requiring an evidentiary hearing as to the parties’ intent.
The Appellate Court affirmed the Wicomico County Circuit Court’s refusal to modify a confessed judgment. The party challenging the confessed judgement presented no evidence before the circuit court that supported his broad factual and legal statements that there may have been oral modifications to the notes.
PARENTAL; BEST INTERESTS; TERMINATION
In re: L.D.
No. 854, September Term 2023
Argued before: Arthur, Leahy, Shaw, JJ.
Opinion by: Shaw, J.
Filed: Mar. 29, 2024
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the mother’s parental rights. The evidence showed that mother failed to address her substance abuse issues over the course of the minor’s entire life, failed to meaningfully provide for the minor, failed to be present and significantly engage in the minor’s upbringing, did not parent the minor and did she show a desire to parent the minor.
CUSTODY; FINAL ORDER; ABUSE OF DISCRETION
Daryl Antony Hurwitz v. Veronica Lynn Harper Esque
The Appellate Court vacated the Cecil County Circuit Court’s award of sole physical custody of the parties’ minor child to the wife. The circuit court initially awarded custody to the husband, following a three-day evidentiary hearing. By continuing to hold the issue of custody open for periodic court reviews following that final order, and without a finding of a material change in circumstances that affected the best interests of the child or conducting a bestinterests-of-the child analysis, the circuit court abused its discretion and committed procedural error.
The Appellate Court vacated the Prince George’s County Circuit Court’s monetary award to the husband. The circuit court failed to divide wife’s pensions on an “if, as, and when” basis. Additionally it erred in holding that wife did not properly request a monetary award regarding husband’s 401k in her pleadings.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court remanded the Howard County Circuit Court’s award of infinite alimony and attorneys’ fees to the wife for further consideration. While there was ample evidence supporting the circuit court’s findings that the husband’s testimony about his income was not credible, the court was unable to determine the factual basis for the circuit court’s decision to impute to husband annual income in the amount of $85,000.
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..
rented home in Laurel. Husband moved out of that home in December 2017 and lived in one of his business’s offices.
On March 7, 2018, Husband filed a complaint, and subsequently filed an amended complaint, seeking an absolute divorce. Wife filed a counter-complaint for absolute divorce and later filed an amended counter-complaint in which she also sought a limited divorce. A pendente lite order was entered on October 16, 2018 that, among other things, granted Wife use and possession of the family home and ordered Husband to pay her $2,600 per month for “pendente lite undifferentiated family support.” After a hearing on January 14, 2019, the court entered a “Limited Divorce Consent Order” pursuant to which Wife was granted a limited divorce. The parties agreed, and the consent order provided, among other things, that Wife would have use and possession of the family home. The Consent Order also provided, in part, as follows:
This timely appeal arises from a May 2, 2023 decision of the Circuit Court for Howard County granting an absolute divorce in favor of Waltere Koti, appellant (“Husband”), and ordering him to pay indefinite alimony and attorneys’ fees to his wife, Audrey Theodora Leonard Koti, appellee (“Wife”).
ISSUES PRESENTED
Husband presents four issues for our consideration,1 which we have consolidated and rephrased as follows:
1. Whether the circuit court erred in awarding Wife indefinite alimony in the amount of $2,000 per month.
2. Whether the circuit court erred in ordering Husband to pay $10,000 toward attorneys’ fees incurred by Wife.
For the reasons set forth below, we shall neither affirm nor reverse the circuit court’s award of indefinite alimony, but shall remand the case to the circuit court for further consideration of Husband’s income and the award of attorneys’ fees.
PROCEDURAL AND FACTUAL BACKGROUND
The parties were married in a civil ceremony in Prince George’s County on October 12, 1994. They had one child together, a daughter, born on November 13, 2003.2 Beginning in 2017, the parties lived together with their daughter in a
ORDERED, that by agreement, [Husband] shall pay the following expenses related to the family directly to the respective third-party providers: a) 100% of the monthly rent associated with the family home; b) monthly TV and Internet connection; c) monthly utilities bill for the family home; d) quarterly water bill for the family home; and e) monthly cellular telephone bill for the [Wife] and the minor child of the parties; and it is further
ORDERED, that by agreement, commencing and accounting from January 14, 2019, [Husband] shall pay directly to the [Wife] the sum of $500.00 in undifferentiated family support over and above the payments made directly as set forth herein[.]
On April 7, 2021, Husband filed a complaint for absolute divorce on the ground of voluntary separation. Following a hearing on pendente lite alimony, Husband was ordered to continue making the payments required by the consent judgment of limited divorce and to pay an additional $1,000 per month for pendente lite alimony. Wife testified that Husband never paid the full $1,000, but instead paid half that amount. In September or October 2022, Husband stopped making payments to Wife for undifferentiated family support and pendente lite alimony. Wife filed a petition for contempt and, after a hearing on March 23, 2023, Husband was found to be in contempt. As a purge, Husband was ordered to pay Wife $2,800 by April 7, 2023, which he did.
A hearing on the complaint for absolute divorce was held on April 13, 2023, at which the following facts were adduced.
Husband was 60 and Wife was 57 at the time of the hearing. Wife was a high school graduate. From 1995 to April 2003, she worked at Kaiser Permanente as a customer service representative. She was terminated from that job because she was not answering enough calls. Thereafter, she worked for one year in a customer service position at the Motor Vehicle Administration (“MVA”). In 2008, Wife earned some credits from Howard County Community College toward a nursing degree, but did not graduate because she could not get through the required math courses. Wife did occasional babysitting and worked for a temporary employment agency known as Adecco. Wife stopped working temporary jobs when the parties’ daughter was in second or third grade because the child’s grades were slipping and she was “acting up.” The parties decided Wife would stay home, take care of the child, and ensure her homework was completed.
After the parties separated in 2017, Wife worked at Walmart and had a seasonal job with the United Postal Service. In 2021, Wife earned $24,546.58 from her job at Walmart. She earned about the same amount in 2019 and 2020. In December 2021, Wife fell and broke her ankle, requiring surgery. She wore a boot on her foot until August 2022 and lost her job because she could not stand as her work required. She applied for and received unemployment insurance benefits and obtained $1,965 by emptying her retirement account. Wife applied for social security disability benefits, but her claim was denied.
Wife worked for a temporary staffing agency known as First Team from about September 2022 through March 2023. In September 2022, Wife purchased a Volvo for $33,000. Shortly after purchasing the car, it was involved in an accident. It remained in a repair shop from October 2022 to the time of the April 13, 2023 hearing because, according to Wife, there was a problem with the insurance. Wife was several months behind on the car payments of $404 for the Volvo. A few weeks prior to the hearing, wife began working at Walmart where she earned $15 an hour. She experienced trouble with transportation to and from work because bus service was not available to accommodate her work hours.
Wife had a male friend who lived in the family home “from time to time.” One morning Husband showed up at the house and saw the man there. After that, Husband reduced the monthly payments of $1,500 required by the consent judgment of limited divorce and the pendente lite alimony order. Later, in September or October 2022, he ceased making payments to Wife.
Shortly before the April 13, 2023 hearing, Wife received notice that she had to move out of the family home because the landlord planned to sell it. She did not have a place to live so she planned to stay at a hotel until she could gather resources to rent an apartment.
Since about 1996, Husband has owned an insurance, title, and tag business known as First Insurance Agency. The business has two locations, one in Elkridge and another in Baltimore City. There are two individuals who work as independent contractors for First Insurance Agency. Husband testified that they are not employed full time, but
work a couple of times per month “when they have the time to come.” They are paid on commission and receive half of the fee charged for tag and title work. Wife claimed that one of those independent contractors was Husband’s girlfriend, but Husband denied that claim.
With respect to the insurance portion of his business, Husband sells policies on behalf of Maryland Automobile Insurance Fund (“MAIF”) and Progressive Insurance Company (“Progressive”). He is paid a commission of about ten percent on the premiums. According to Husband, if an insured cancels a policy, Husband is required to return the unearned portion of his commission to the appropriate insurance company within 24-25 days. When a customer pays with a credit card, payment is made to a finance company for MAIF or directly to Progressive. If a customer pays with cash, the payment is deposited into Husband’s business account at M&T Bank.
Husband’s business is also licensed to provide title and tag services for the MVA. Clients pay the fees required by the MVA plus a fee ranging from $70 to $100 for the services provided by First Insurance Agency. When a customer pays for tag or title work using cash, Husband deposits the payment into his M&T Bank business account. That account is tied to the MVA, which can withdraw from that account the funds it is owed. Husband testified that if a customer pays using a mobile payment service such as Zelle or Cash App, the payment is deposited into his personal bank account at Navy Federal Credit Union3 because he is unable to use a mobile payment service with his business account at M&T Bank. Husband would withdraw the MVA’s portion of the payment and move it into the business bank account at M&T Bank. Husband made cash withdrawals because transferring the money electronically involved a delay that might prevent the MVA from being able to access its money in a timely manner.
Husband testified that his business fluctuates, that his income cannot be determined, and that he did not “have a salary[.]” Husband testified that he filed for an extension for his 2022 taxes. Just prior to trial, he produced Form 1120S, a federal return for an S Corporation, which showed that in 2022 his business had gross sales of $115,672 and deductions of $79,022. Husband testified that in 2022, his business earned between $60,000 and $64,000 from the tag and title portion of the business. As to the insurance part of his business, he receives 1099 forms from each insurance company. In 2022, he earned $29,588.64 from MAIF and in 2021 he earned $37,316.54. In 2022, he earned $21,680.42 from Progressive and in 2021 he earned $19,513.07. Husband paid rent of about $1,236 per month for the Elkridge business office and $375 plus utilities each month for the Baltimore City location. Other expenses included the two independent contractors, advertising, the cost of bonds, workers’ compensation insurance, general liability insurance, errors and omissions insurance coverage, automobile insurance, telephone and internet service, and Comcast service in the Baltimore location. In 2022, Husband paid his independent contractors in cash and, in 2022, he
paid them $33,450. Husband acknowledged that he pays personal expenses out of his First Insurance Company bank account, including rent payments for the family home.
Husband owed the Internal Revenue Service about $65,374.22 and the State of Maryland about $17,000 for unpaid personal income taxes. He also had personal credit card debt. Husband acknowledged that prior to the hearing on his complaint for absolute divorce, he gave Wife $2,800 through Cash App. Husband owned a 2010 Pontiac Viper. In April 2023, Husband told the parties’ daughter that he would voluntarily give her $300 per month for a period of one year. Husband testified that his “body is broken” and that he “just can’t, you know, take much more[,]” but he did not present any evidence of a health issue.
The court announced its decision on the record at a hearing on May 2, 2023. The circuit court awarded Husband an absolute divorce on the ground of a one-year separation. Husband was ordered to pay indefinite alimony in the amount of $2,000 per month beginning on May 1, 2023, and to pay $10,000 toward Wife’s outstanding attorneys’ fees. In reaching its decision, the court found that if Wife worked full time at Walmart and earned $15 per hour, her after-tax income would be “approximately $2,100.00 per month,” and her expenses were $4,349 per month.
The court found that Husband’s testimony about his finances and the income portion of his financial statement were not credible, that he “significantly co-mingled” the funds for his business with his personal funds, and that “it’s impossible to say with certainty what his actual income is as it runs through both of those types of accounts and is difficult to ascertain.” The court considered that First Insurance Agency’s 2022 “gross sales were listed as $115,672.00” and that Husband “took $79,022.00 in deductions leaving ordinary business income of $36,450.00.” The court noted that there was no documentation to support the expenses listed, except for the rent on Husband’s office. The court determined that Husband’s “income is more along a minimum of $85,000.00 per year, which is about $7,059.91 per month,” and attributed to him after-tax income of “about $6,000 per month.” Notwithstanding its finding that Wife’s after-tax income would be approximately $2,100 per month, the court stated that Husband’s income “appears to be almost four times as much as” Wife’s income. The court concluded that the parties’ living standards were unconscionably disparate.
We shall include additional facts as necessary in our discussion of the issues presented.
DISCUSSION
Husband challenges the circuit court’s decision to grant Wife alimony in the amount of $2,000 per month. He contends that the court erred in finding that his testimony about his finances was not credible and that it was impossible to ascertain his actual annual income. He further argues that the court erred in rejecting the evidence he presented concerning his business income, deductions, and personal income and imputing to him annual income of $85,000. In addition, Husband maintains that the court erred in finding that Wife was not capable of supporting herself. Husband
further challenges the court’s decision to award Wife attorneys’ fees in the amount of $10,000.
A. STANDARD OF REVIEW
Since the adoption of the Maryland Alimony Act in 1980, alimony may be awarded either for a fixed term, referred to as “rehabilitative alimony,” or for an undefined amount of time, referred to as “indefinite alimony.” Walter v. Walter, 181 Md. App. 273, 281 2008). “[A]limony awards, though authorized by statute, are founded upon notions of equity[.]” Goicochea v. Goicochea, 256 Md. App. 329, 357 2022) quoting Tracey v. Tracey, 328 Md. 380, 393 1992)). The purpose of alimony generally is the “‘rehabilitation of the economically dependent spouse.’” K.B. v. D.B., 245 Md. App. 647, 667 2020) quoting St. Cyr v. St. Cyr, 228 Md. App. 163, 184 2016)). In determining alimony, the circuit court must look to § 11106(b) of the Family Law Article “FL”), which provides:
(b) In making the determination, the court shall consider all the factors necessary for a fair and equitable award, including:
1. the ability of the party seeking alimony to be wholly or partly self-supporting;
2. the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
3. the standard of living that the parties established during their marriage;
4. the duration of the marriage;
5. the contributions, monetary and nonmonetary, of each party to the well-being of the family;
6. the circumstances that contributed to the estrangement of the parties;
7. the age of each party;
8. the physical and mental condition of each party;
9. the ability of the party from whom alimony is sought to meet that party’s needs while meeting the needs of the party seeking alimony;
10.any agreement between the parties;
11.the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8- 208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
12.whether the award would cause a spouse who is a resident of a related institution as defined in § 19- 301 of the Health-General Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
Id.
Although the court is required to give consideration to each of the factors contained in the statute as applicable to a given case, it is not required to employ a formal checklist, mention specifically each factor, or announce each and every reason for its ultimate decision. Doser v. Doser, 106 Md. App. 329, 356 (1995). See also Simonds v. Simonds, 165 Md. App. 591, 604-05 (2005) (citing Roginsky v. Blake-Roginsky, 129 Md. App. 132, 143 (1999)). We may examine the record as a whole to see if the court’s findings were based on the mandated factors. Doser, 106 Md. App. at 356.
Notwithstanding the preference for an award to be for a fixed term, the court has discretion to award indefinite alimony when one of two circumstances described in FL § 11-106(c) has been shown:
(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.
Id. Accord Solomon v. Solomon, 383 Md. 176, 195-96 (2004); Walter, 181 Md. App. at 281-82 (citing Tracey, 328 Md. at 391).
Findings predicated on subsection (c) rest upon the court’s first-level factual findings of the factors listed in subsection (b). See Whittington v. Whittington, 172 Md. App. 317, 337 (2007); Bricker v. Bricker, 78 Md. App. 570, 577 (1989). The provisions of subsection (c) are “a restraint upon the doctrine of rehabilitative alimony” that exist “to protect the spouse who is less financially secure from too harsh a life once single again.” Tracey, 328 Md. 380, 392 (1992) (citation omitted). Indefinite alimony is appropriate “if the standard of living of one spouse will be so inferior, qualitatively or quantitatively, to the standard of living of the other as to be morally unacceptable and shocking to the court.” Karmand v. Karmand, 145 Md. App. 317, 338 (2002). The court’s determination of an unconscionable disparity sufficient to justify an order of indefinite alimony “requires the application of equitable considerations on a case-bycase basis, consistent with the trial court’s broad discretion in determining an appropriate award.” Innerbichler v. Innerbichler, 132 Md. App. 207, 248 (2000) (quoting Roginsky, 129 Md. App. at 146-47).
We “accord great deference to the findings and judgments of trial judges, sitting in their equitable capacity, when conducting divorce proceedings.” Tracey, 328 Md. at 385. “Thus, absent evidence of an abuse of discretion, the trial court’s judgment ordinarily will not be disturbed on appeal.” Solomon, 383 Md. at 196. Accord Boemio v. Boemio, 414 Md. 118, 124-25 (2010) (“An alimony award will not be disturbed upon appellate review unless the trial judge’s discretion was arbitrarily used or the judgment below was clearly wrong.”); Reynolds v. Reynolds, 216 Md. App. 205, 219 (2014) (we will disturb a trial court’s ruling only “where no reasonable person would take the view adopted by the [trial] court,” or
“the ruling is clearly against the logic and effect of facts and inferences before the court.”) (quoting North v. North, 102 Md. App. 1, 13-14 (1994)).
B. ANALYSIS
Husband challenges the circuit court’s findings that his testimony about his finances was not credible, that it was not possible to ascertain his actual income, and that annual income in the amount of $85,000 should be imputed to him. Husband argues that the judge confused the difference between business and personal income, “did not understand” that “it really does take a lot of overhead to earn a buck,” and erroneously treated certain deposits into his personal account as his personal funds.
We find no error in the court’s determination that Husband’s testimony about his finances was not credible. Husband testified that he did not have a salary and that his income could not be determined because his business fluctuated. He acknowledged that he co-mingled business and personal funds in his bank accounts. Notably, Husband admitted that he paid personal expenses, including rent payments for the family home, from the business account at M&T Bank. He also overstated his monthly expenses by including in them such things as alimony and other expenses he was ordered to pay pendente lite. In addition, the court properly considered Husband’s decision to voluntarily pay his emancipated daughter $300 per month and credited Wife’s testimony that Husband stopped making some of his courtordered payments when he learned about overnight visits at the family home by Wife’s male guest. The court also noted Husband’s failure to provide supporting documentation for claimed business deductions. In an action tried without a jury, we “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). In short, there was ample evidence to support the court’s credibility determination in this case.
We find no error with respect to the court’s decision to impute to Wife income based on full-time employment earning minimum wage. Nevertheless, from the record before us, we are unable to determine the factual basis for the court’s decision to impute to Husband annual income in the amount of $85,000. Husband claimed that his gross monthly wages were $3,686, which the court calculated to be $44,232 per year. The court found that his income was “more along a minimum of $85,000.00 per year, which is about $7,059.91 per month.” In reaching that conclusion, the court referenced Plaintiff’s Exhibits 5, 6, 7, 9, 13, 14, and 15 and Defendant’s Exhibits 12, 13, and 17. Those exhibits included the business’s tax return for 2021; Husband’s personal tax returns for 2021; business and personal bank statements for 2021 and 2022; non-employee compensation statements showing income from Progressive of $12,367.86 in 2020, $19,513.07 in 2021, and $21,680.42 in 2022; and 1099 miscellaneous income of $33,450. The court noted that in 2022, the business’s “gross sales were listed as $115,672.00,” that Husband “took $79,022.00 in deductions leaving ordinary business income of $36,450.00,” and that Husband failed to produce any
documentation to support the deductions with the exception of a rental agreement for his office. It is unclear whether the court declined to credit some of the deductions. From the record before us, we are unable to determine the basis for the court’s finding that Husband’s income was “more along a minimum of $85,000.00 per year[.]”
Similarly, with respect to Husband’s monthly expenses, there was no error in the court’s decision to reject his claimed personal expenses of $6,799 because he included in that amount expenses he had been ordered to pay pendente lite. It is unclear from the record, however, how the court calculated Husband’s expenses to be $2,822 per month. The court reduced the amount claimed by Husband by $1,500 “for alimony,” which appears to be the $500 for undifferentiated family support and the $1,000 in pendente lite alimony pursuant to the consent judgment for limited divorce. As for the expenses associated with maintaining the family home, there was no clear evidence presented to show the expenses actually paid by Husband. The parties did not dispute that the rent on the family home was about $2,000, the utilities cost about $250 to $300 per month, internet and cable were about $180 per month, and the cell phones cost about $100 per month, but there was no specific evidence about these expenses. In its decision, the court looked to testimony from
a February 2022 hearing before the family magistrate that Husband was paying “about $2,283.00 per month for those expenses.” We also note that the court did not appear to include Husband’s tax debts in assessing the alimony factors. In sum, the factual basis for a determination that Husband’s expenses were $2,822 per month is unclear.
For these reasons, we shall vacate the award of indefinite alimony and remand the case for further consideration. As we are unable to determine the factual basis for the income imputed to Husband, and therefore, the financial resources of each party, we shall also vacate the award of attorney’s fees and remand that issue for further consideration. On remand, the court may accept additional evidence on the issue of Husband’s income and expenses and both parties may introduce additional evidence on the issue of their earnings and expenses, past and present, including evidence that is up-to-date. Wife will continue to bear the burden of proving her entitlement to indefinite alimony.4 Until the circuit court completes the proceedings required by this opinion, the existing order for indefinite alimony will continue to have the force and effect of a pendente lite award. See Simonds v. Simonds, 165 Md. App. 591, 613 (2005).
JUDGMENTS OF THE CIRCUIT COURT FOR HOWARD COUNTY AS TO ALIMONY AND ATTORNEYS’ FEES VACATED. JUDGMENTS IN ALL OTHER RESPECTS AFFIRMED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. JUDGMENT WITH RESPECT TO ALIMONY TO REMAIN IN FORCE AND EFFECT AS PENDENTE LITE ORDER PENDING FURTHER ORDER OF THE CIRCUIT COURT. COSTS TO BE SHARED EQUALLY BY THE PARTIES.
FOOTNOTES
1 The issues presented, as articulated by Husband, are:
I. The trial court erred and abused its discretion as a matter of law when it determined that appellant’s income “is more along a minimum of $85,000”, higher than the amount represented in appellant’s tax returns thereby changing appellant’s tax consequences.
II. The trial court erred or abused its discretion as a matter of law in awarding appellee indefinite alimony.
III. The trial judge erred or abused its discretion as a matter law [sic] in deciding that the appellee is not capable of supporting herself.
IV. The court erred or abused its discretion as a matter of law in awarding appellee attorney’s fees to the appellee in the amount of $10,000.
2 The parties’ child was emancipated on November 13, 2021, while the underlying divorce proceeding was pending.
3 Husband testified that he had additional personal accounts at Navy Federal Credit Union, but they were inactive because they had been compromised.
4 We recognize that the evidence presented may not have been sufficient for the court to conduct the required analysis. We note that if, after further proceedings, the court believes it lacks sufficient credible evidence to make the necessary findings, it might appoint a neutral expert pursuant to Md. Rule 5-706 to assess Husband’s earning capacity.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 17 (2024)
Parental;
best interests; termination
Alyona V. Knizhnik
v.
Igor Z. Knizhnik
No. 1732, September Term 2022
Argued before: Wells, C.J., Arthur, Ripken, JJ.
Opinion by: Wells, C.J.
Filed: Apr. 11, 2024
The Appellate Court affirmed the Montgomery County Circuit Court’s finding that a prenuptial agreement was not void as against public policy. It rejected the wife’s argument that enforcement of the agreement, under the circumstances of a case in which she alleged adultery and domestic violence, would “impose[] a penalty on someone for claiming abuse,” and that the agreement was thus void as a matter of public policy.
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.
of an award of attorney’s fees to Husband. However, we vacate the circuit court’s division of 504 Lincoln Street and 322 Lincoln Avenue and remand for the circuit court’s consideration of what portion of the parties’ equity in those properties was attributable to rental income belonging in part to Wife. We also vacate the circuit court’s alimony award to Wife, and remand for reconsideration consistent with Maryland Code, Family Law Article (“FL”) § 11-106(b).
FACTUAL AND PROCEDURAL BACKGROUND
Wife immigrated to the United States from Ukraine in 2000. She testified that, at the time of the parties’ marriage, January 31, 2005, she had an authorization to work in the U.S. that was set to expire with a deportation3 hearing scheduled for February 1, 2005.
On or around January 26 or 27, 2005, Wife and Husband executed a Prenuptial Agreement. The text of the Agreement provided, in relevant part:
4. WAIVER OF SUPPORT AND PROPERTY
This appeal arises from a judgment of absolute divorce entered in the Circuit Court for Montgomery County, Maryland on grounds of appellee Igor Z. Knizhnik’s (“Husband”) adultery. The circuit court substantially based its division of marital property and alimony decisions upon a prenuptial agreement (the “Agreement”) executed by the parties several days before they wed. Both Husband and the appellant, Alyona V. Knizhnik (“Wife”), timely appealed the divorce judgment and the circuit court’s finding, after an evidentiary hearing, that the Agreement was valid. Wife raises twelve issues,1 which we have rephrased and condensed into two questions:
1. Whether the circuit court erred in finding that the Agreement was valid and enforceable.
2. Whether the circuit court erred in its determination and division of marital property. Husband, as cross-appellant, has posed two questions, which we have rephrased:2
1. Whether the circuit court erred in awarding alimony when the parties waived alimony in the Agreement, and the agreement contained a “no modification” provision.
2. Whether the circuit court erred in declining to award attorney’s fees to Husband pursuant to the Agreement. We affirm the circuit court with respect to the enforceability of the Agreement. We also affirm its denial
INTERESTS ON DIVORCE In the event of separation or divorce between the parties after the parties have been married for five years, if the cause of the separation or divorce is a voluntary separation by the parties, it is hereby agreed that Igor shall provide temporary support to Olena of $500.00 per month for three years. The payment by Igor is subject to his financial ability to meet this obligation and the financial need of Olena for the same. With the exception only of the previous paragraph, in the event of separation or divorce between the parties for any reason other than voluntary separation after five years of marriage, it is hereby agreed that each shall maintain and support himself or herself separately and independently from the other and each party shall have no rights as against the other by way of claims for support, alimony, attorney’s fees, costs or division of property. Property held jointly with right of survivorship or tenants by the entirety shall be divided between the parties in proportion to the amount invested by each party in such property. Each party releases and discharges the other, absolutely and forever, for the rest of his or her life, from any and all claims and demands for alimony, support or maintenance of any kind, either pendente lite, rehabilitative, or permanent. The parties agree that the foregoing provisions regarding alimony are not subject to modification by any court.
13. ATTORNEYS’ FEES If a party, by actions, proceeding, counterclaim, defense or otherwise, seeks to set aside this Agreement, or to declare any of its terms and conditions as invalid, void, against public policy for any reason, including, but not limited to, claims of incompetency, fraud, coercion, duress, undue influence or mistake in inducement, said party shall reimburse the other party and be liable for any and all such party’s reasonable expenses, costs and attorneys’ fees, provided and to the extent that such action, proceeding, counterclaim or defense results in a decision, judgment, decree or order dismissing or rejecting said claims.
Both parties signed the Agreement, and it was sealed by a notary public.
On January 26, 2005, Wife met with Sherri M. Stahl, Esq., an attorney with offices in Bethesda, Maryland, for a consultation before signing the Agreement. Stahl testified that she did not remember Wife; however, she generated a file in 2005, and testified to the substance of the materials in the client file she retained from the representation. Stahl did not speak Russian and communicated with Wife exclusively in English without interpretation.
Included in Stahl’s file was a letter dated January 26, 2005, and addressed to Wife, which stated in relevant parts: The Agreement provides that you will have an interest in only your separate property, and property that you and Igor acquire during your marriage in your joint names with right of survivorship (if the property is the type that can be titled) or if it is property that is not ordinarily titled (like furniture) and is acquired for the use of both of you then it will be treated as joint property as well. . . .
In the event of your separation or divorce . . . if the separation or divorce is caused by voluntary separation, then Igor will pay you $500 a month for three (3) years . . . Also, these payments are only made if the separation or divorce is voluntary. If Igor abandons you or commits adultery no payment is required under the Agreement. I advised you that this is not right and should be corrected. You informed me that you were satisfied with the $500 payment, that you were not concerned about divorce or separation and did not want to request that this provision be changed. . . .
You represent in the Agreement that you have been represented by me, that you fully understand the Agreement and have been advised of your rights. . . .
I have advised you that the Agreement prepared by Igor’s attorney is one sided and provides you with no protection in the event at Igor’s death and little protection in the event of a divorce. . . .
The support obligation of $500 a month for three (3) years, is only for a voluntary separation and not if Igor abandons you or commits adultery. I advised you of the unfairness of this and encourage you to require this to
be changed. You should also consider whether the $500 a month for three (3) years will be sufficient. . . .
I have encouraged you to permit me to negotiate with Igor’s attorney for a better Agreement. You advised me that you understood what I was explaining to you but that you intend to sign the Agreement as is. You advised me that you have lived with Igor for two (2) years, that you trust him and do not want to change the Agreement. I advised you that in Maryland you could do a Post Nuptial Agreement or amend the Prenuptial Agreement after you are married. Any amendment or revocation of the Agreement must be in writing and signed in front of a witness and notary public. I encouraged you to seriously consider amending the Agreement as it provides you no protection. I also encouraged you to do this in the event you and Igor decide to have children. . . .
I understand from our meeting that despite my recommendations you intend to sign the Agreement as presented to you.
Stahl later testified that, in total, she spent 3.4 hours on her representation of Wife. Stahl did not recall reviewing any tax information, any discussion regarding Wife’s immigration circumstances, who paid Wife’s attorney’s fees, or whether Wife indicated if she could understand the Agreement. On the day of Wife’s meeting with Stahl (or the next day), the parties executed the Agreement. They married on January 31, 2005. Two children were born to the marriage, both on December 19, 2006.4
In or around 2020, the parties’ marriage broke down. Wife testified at the divorce hearing that Husband admitted committing adultery to her upon “return[ing] from Ukraine with a woman” in May 2020. She also testified that Husband committed several acts of domestic abuse, including an incident in which he pushed her down a flight of stairs in September 2018, beating her over the head in September 2019, and attempted rape in January 2020. An additional incident, in which Husband broke down the door to the parties’ bedroom and scratched Wife, occurred on August 20, 2020, and resulted in the granting of a protective order with a finding of abuse by Husband. Wife filed her initial Complaint for Divorce on July 20, 2020, and an Amended Complaint on August 1, 2022, seeking, among other things, absolute divorce on grounds of constructive desertion, cruelty of treatment and excessively vicious conduct, or adultery. Her Amended Complaint also included a claim styled “BREACH OF CONTRACT – PRENUPTIAL AGREEMENT,” and she also sought use and possession of the marital home, rehabilitative and permanent alimony and support, custody of the minor children, child support, a monetary award, and costs and attorney’s fees.
The circuit court heard the parties’ arguments and supporting testimony regarding validity of the Agreement in a two-day hearing on November 19 and December 29, 2020. Wife testified that, at the time of the parties’ marriage, she did not understand anything in English, stating “I had just two words, yes and no.” She denied that she understood the
substance or contents of the Agreement and that she had merely sat through the hour that she met with Stahl “looking at [her] watch.” She also denied having received Stahl’s January 26, 2005 letter, stating that she had merely received “a package of documents” from Husband around that time, and that she was unsure whether those documents included Stahl’s letter. Tatyana Pidgurskaya, who taught the parties’ children at Shalom Russian School for approximately eight to nine years, and Tatyana Mullin, a friend of Wife’s since 2000, also testified to Wife’s limited English language abilities at the time she executed the Agreement.
The circuit court found Wife’s explanation that she could not understand Stahl’s advice not credible, and therefore found that she had competent and independent counsel representing her in deciding whether to sign the Agreement. It also found no evidence of fraud or Husband’s inadequate disclosure of assets that might suggest procedural overreaching and found that Wife was not subject to Husband’s duress or undue influence. However, the court held that, while the provision waiving alimony did not violate public policy, it could not be read in such a way that one party could “frustrate that payment by committing wrongful acts, whether it be acts of cruelty or acts of adultery so that he could alleviate his requirements under the agreement.”
The terms of the Agreement controlled the remaining disputed issues at the August 31, 2022 divorce hearing. There, the circuit court determined the marital status of, and distributed, various property. Of particular importance to this appeal were parcels of real property located at 504 Lincoln Street and 322 Lincoln Avenue, both in Rockville, Maryland. The circuit court ruled that the terms of the Agreement controlled division of interest in the properties according to the “amount invested” by each party in them. The source of “amounts invested” to purchase the parties’ equity in the two properties was a matter of factual dispute. Husband presented evidence of his sole contribution of funds to the purchase of the property; Wife countered with evidence of her contribution to the upkeep of the property, suggesting that the circuit court should construe such as an investment in the property. The circuit court found that “the percentage of investment by [Husband] was 100 percent and was for monies earned by him”; accordingly, the court awarded Husband 100 percent of the marital interest in the properties.
The circuit court issued its Judgment of Absolute Divorce on November 29, 2022, awarding absolute divorce on grounds of adultery. It also denied Husband’s request for attorney’s fees because he failed to plead for such relief consistent with Maryland Rule 2- 705(b). Both parties timely filed notices of appeal.
We will supply additional facts as necessary to support our analysis.
DISCUSSION
I. The Circuit Court Did Not Err in Enforcing the Prenuptial Agreement.
Wife raises numerous points of error regarding the circuit
court’s determination that the Agreement was valid, which we consider in turn.
A. The Circuit Court Did Not Erroneously Find That the Prenuptial Agreement Was Not Void as Against Public Policy
Wife contends that the agreement was void as against public policy because it grants an unfairly one-sided award to the party found at marital fault. She argued in the circuit court that enforcement of the Agreement, under the circumstances of a case in which she alleged adultery and domestic violence, would “impose[ ] a penalty on someone for claiming abuse,” and that the Agreement was thus void as a matter of public policy.
First, it is true that the public policy of Maryland frowns upon adultery. Lloyd v. Niceta, 485 Md. 422, 439 (2023) (cleaned up). Maryland law permits fault divorce on grounds of adultery, and a finding of adultery may affect certain aspects of the divorce decree to the adulterous party’s detriment; for instance, FL § 8-205(b)(4) permits that the monetary award may be adjusted to reflect to “the extent [adultery] contributed to the breakdown of a marriage.” Id. It is also true that a domestic violence protective order was entered against Husband on August 27, 2020—including, Wife’s counsel represented to the circuit court, a finding of abuse—and that Wife presented evidence to the circuit court during the divorce proceeding of Husband’s acts of domestic violence or abuse. Again, that type of marital fault may be relevant to property division and an award of alimony.
However, we are aware of no authority, and Wife points to none, holding that marital fault forecloses enforcement of a prenuptial agreement altogether. Wife’s argument that a prenuptial agreement is rendered invalid on grounds of public policy upon the grant of a fault divorce would be a novelty in the law of Maryland. On the contrary, our Supreme Court has recognized that parties may provide for the contingency of marital fault in marital agreements, and that such provisions do not violate public policy. Id. That holding is plainly incongruous with Wife’s argument that the circuit court should have struck the Agreement altogether due to allegations of marital fault. The circuit court therefore did not err on such grounds.
Second, Wife notes that the circuit court found that enforcement of provisions relating to alimony would have led to an absurd result, and reformed, based upon public policy considerations, the provision of the Agreement limiting alimony to $500.00 per month for three years only in case of divorce on grounds of voluntary separation. The circuit court stated in its opinion that conditioning a clause of the prenuptial agreement on the character of the divorce offended public policy, citing a Supreme Court of South Carolina case captioned Towles v. Towles, 256 S.C. 307, 182 S.E.2d 53 (1971). We note that this authority does not accurately reflect the public policy of Maryland, as discussed above, and has since been explicitly overruled in South Carolina. Hardee v. Hardee, 355 S.C. 382, 388 n.3 (2003) (“we take this opportunity to overrule Towles in light of its outdated views concerning women”). To the extent that the circuit court reformed the Agreement on grounds
of that public policy, it committed error; it would have only compounded that error by striking the entire Agreement on those grounds.
However, as we discuss at length below, the circuit court erred in interpretating the Agreement to limit alimony to $500.00 per month for three years due to a misinterpretation of the plain language of the Agreement. Because we vacate the judgment of the court with respect to that issue in any case, we need not consider further the court’s error of law regarding public policy.
We therefore find that the circuit court did not err by declining to invalidate the Agreement on grounds of public policy and affirm as to this issue.
B. The Circuit Court Did Not Err by Failing to Consider Wife’s Breach of Contract Claim Because Wife Waived the Issue by Failing to Raise It at the Evidentiary Hearing on the Agreement’s Validity.
Wife argues that the circuit court erred in failing to consider her claim for breach of contract, pleaded as Count IV in her Amended Complaint, and in declaring at the divorce hearing that the issue was barred by collateral estoppel or res judicata. When Wife raised breach of contract at trial, her counsel presented it essentially as a method of reopening the issue of whether the Agreement should be enforced:
And I note also again for the record that the issue of adultery as well so the issue of cruelty is relevant because we do not waive our position that [Husband] has materially breached the agreement to a point where . . . [t] he agreement is no longer enforceable.
The court declined to consider the issue:
So I have indicated that if someone raised a defense to the enforceability of a prenup that you have to raise all grounds on previous occasions. The mere fact that you have another theory upon which the prenup is not valid, in my opinion, is waived. . . . But my opinion is that you had a full and fair opportunity to argue all grounds for which you believed that the prenup was not enforceable including breach. To now raise breach after having litigated for two days in front of Judge Lease, I think it’s a little late. And I think that it is waived and that it is collateral estoppel or res judicata but I think it’s more collateral estoppel. And therefore the law of the case is that this prenup is enforceable and that a breach is not relevant because it should have been argued. And my understanding was in fact argued by Judge Lease did not decide it on those grounds but if it was argued even though he did not decide it on those grounds it was your obligation to raise it in front of Judge Lease and ask him to decide it.
That wasn’t done and so therefore I’m not going to entertain a contract of argument with regards to breach and the enforceability of the prenup.
We agree that the trial court was not obligated to reconsider Wife’s argument that the Agreement was invalid at that juncture.5 The fact that Wife styled her plea for relief as a “breach of contract action” did not entitle her to a second hearing at trial on an issue— the validity of the agreement—
that had already been fully adjudicated. We note that the relief sought in her initial complaint was identical with that which was available in a divorce action, and, while Wife sought a monetary award in her prayer for relief, she neither pleaded nor argued any contractual damages cognizable under Maryland’s common law of contract. However, assuming for the sake of argument that Wife genuinely intended to litigate a breach of contract claim, the circuit court was within its discretion to require any issues of the Agreement’s validity to be raised at the evidentiary hearing. It is clear to us— as it was to the circuit court—that her attempt to pursue a “breach of contract” action at the divorce hearing was simply a different stylization of her earlier attack on the Agreement’s validity. There was no error in the circuit court’s refusal to reopen the issue.
As such, we do not credit Wife’s argument that she was denied adequate consideration of her breach of contract theory. We affirm as to this issue.
C. Wife Does Not Point to Specific Error in the Circuit Court’s Ruling that the Agreement Was Valid.
Husband suggests several errors in the circuit court’s holding that the Agreement was valid. However, we perceive Wife’s arguments before us as essentially reiterating the same arguments that she advanced before the circuit court: (1) that Husband failed to adequately plead that the Agreement was valid, (2) that she was unable to understand the agreement, (3) that it was the product of duress or undue influence, and (4) that Husband obtained her assent through fraud. The crux of Wife’s argument before the circuit court was that the Agreement was both procedurally and substantively unconscionable at the time it was executed. In his closing arguments at the December 29, 2020 hearing, Wife’s counsel stated, “the point I’m making initially . . . is, I think, on a substantive unconscionability level. I think it’s very clear that the agreement is substantively unconscionable.”
We agree with Husband that the circuit court fully considered all the arguments Wife advanced. Indeed, the court provided extensive and reasoned discussion regarding the legal authority which Wife cited in her opening brief before this Court. Wife essentially seeks to relitigate the Agreement’s validity but does not state why the circuit court’s judgment constituted error. In short, we construe her argument as merely seeking another “bite at the apple” for a matter which has been fully litigated between the parties. The burden is upon Wife to establish the circuit court’s error with particularity on appeal. See Thomas v. City of Annapolis, 113 Md. App. 440, 450 (1997) (“On appeal, it is the burden of the appellant to show judicial error.” (citing Bradley v. Hazard Technology Co., 340 Md. 202 (1995)).
Without a specific claim of error, we will not disturb the circuit court’s weighing of the evidence before it and decline to reopen the issue.
For the same reason, we do not credit Wife’s argument that the circuit court should have ordered recission of the Agreement. We see nothing in the record to suggest that Wife sought the remedy of contractual rescission below. What is more, it would have been procedurally improper for the circuit court to consider the issue. In her Amended
Complaint for Divorce, Wife suggested that “the Court should declare the Prenuptial Agreement unenforceable or rescinded,” but did not seek the remedy of recission in her prayer for relief. Nor did she ever raise the issue before the circuit court. She extensively argued that the Agreement should be rendered invalid, but that is not synonymous with the remedy of contractual recission. We “will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8-131.
If Wife wished to seek that remedy, she had a full and fair opportunity to litigate the validity of the Agreement before the circuit court on November 19 and December 29, 2020. We therefore decline to consider this issue further.
We therefore affirm the circuit court with respect to these issues.
D. Wife Waived her Arguments that Waiver and Estoppel Rendered the Prenuptial Agreement Invalid by Failing to Raise Those Arguments Before the Circuit Court.
Wife advances several additional claims of error in the circuit court’s holding that the Agreement was valid. However, we find nothing in that record to suggest that Wife presented any argument or evidence to the circuit court in support her waiver or estoppel theories. Again, we will not consider an issue the appellant waived by failing to raise it below. Md. Rule 8-131. Because Wife failed to argue these issues before the court below, we accordingly decline to consider them. We affirm the circuit court as to these issues.
E. The Circuit Court Was Not Required to Adopt a “Second Look” Approach to Interpreting Prenuptial Agreements.
Wife draws our attention to the law of other states which have adopted a “second look” approach to the validity of prenuptial agreements. See DeMatteo v. DeMatteo, 436 Mass. 18 (2002); Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987); Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); Rinvelt v. Rinvelt, 475 N.W.2d 478, 482 (Mich. Ct. App. 1991); Hardee v. Hardee, 558 S.E.2d 264 (S.C. App. 2001). Under such an approach, the trial court inquires whether “the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution.” DeMatteo, 436 Mass. at 37 (citing MacFarlane v. Rich, 132 N.H. 608, 616–17 (1989)). Wife urges us to adopt this doctrine, and contends that, had the circuit court applied it, it would have found the Agreement unconscionable at the time of the divorce.
However, insofar as we may consider adopting this novel approach, we will decline to do so. Our Supreme Court has set forth its standard for unconscionability, as we apply it to prenuptial agreements:
If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.
Williams v. Williams, 306 Md. 332, 338 (1986) (citing Restatement (Second) of Contracts, § 208) (emphasis supplied).
Binding precedent requires that we look to whether the agreement was unconscionable at the time it was made, not at the time of divorce. We are therefore without authority to adopt the persuasive authority Wife offered, as the circuit court was. We affirm as to this issue.
F. Wife Waived Her Procedural Objection to the PreTrial Hearing on the Prenuptial Agreement’s Validity.
Wife also argues that the circuit court erred by “ramm[ing] through” an evidentiary hearing with inadequate time to prepare. There is no indication in the record that Wife objected to the form or timing of the hearing. On the contrary, at the outset of the hearing, Wife’s counsel simply stated, “I think [Husband’s counsel] has requested a validity hearing saying, well, there’s an agreement that we need to establish the validity going on of this agreement that resolves certain pending issues.” Husband’s counsel agreed, noting that they had jointly requested in a hearing before the Magistrate that an evidentiary hearing be set in as to the validity of the Agreement.
In addition, we conclude that Wife waived any argument that the Husband failed to adequately plead that the Agreement was valid. At the conclusion of the hearing, the court noted that there had not been a motion filed. The presiding judge said, “I’ll just note that it was requested in the counterclaim and grant partial relief with respect to that would probably be the best way to do it, subject to the Court’s—I might say subject to the Court’s order and interpretation of the agreement.” Wife did not object, nor did she file any objection in writing. In any case, we find nothing in the record suggesting that Wife lacked notice that Husband intended to place the validity of the Agreement at issue, nor that, insofar as she claimed to lack notice, that she properly raised that issue before the circuit court.
As such, Wife waived the issue of any procedural error by the circuit court in reviewing the validity of the Agreement. We affirm as to this issue.
II. The Circuit Court Erred in its Division of Marital Property.
A. The Circuit Court Failed to Credit Wife’s Share of Rental Income from Jointly Titled Properties in Dividing the Parties’ Interest in 504 Lincoln Street and 322 Lincoln Street.
Wife objects to the circuit court’s granting the marital interest in two jointly titled parcels of real property, located at 504 Lincoln Street, Rockville, Maryland, and 322 Lincoln Street, Rockville, Maryland, solely to Husband. She advances several claims of error. First, Wife argues that the circuit court’s property division was erroneous because it was based upon a provision of the Agreement, Section 4, which was void as against public policy. Second, Wife argues that the properties were primarily rental properties, the mortgages of which were funded by rental income; thus, since this was not Husband’s sole investment into the property, she contends that the circuit court should have found it joint property subject to equitable division. Third, Wife argues that the circuit court erred in failing to consider that she was an obligor on mortgages for the subject properties, and that this burden of debt was tantamount to an “investment” in the
joint property. Fourth, Wife claims that the circuit court was without authority to direct her to sign over her interest in the subject properties. Fifth, Wife contends that income earned during the marriage was marital and joint property, and that, when invested into the subject properties, it rendered that interest in the properties also marital in character. Sixth, and finally, Wife argues that the circuit court erred in failing to consider her contributions to the marriage as a wife and homemaker, which she argues should have resulted in a greater share of marital property.
Wife’s claims of error stem from the same wellspring: Section 4 of the Agreement.It states, in relevant part, “Property held jointly with right of survivorship or tenants by the entirety shall be divided between the parties in proportion to the amount invested by each party in such property.” The court held that this provision was controlling with respect to its award of interest in the subject properties; because it found that Husband had contributed the entirety of the amounts invested in the properties, it granted them solely to Husband.
We now consider whether the circuit court erred in its award. First, as to Wife’s argument that Section 4 was altogether void as against public policy, we considered that issue in Section IA of this opinion and concluded that Section 4 of the Agreement was not void. We therefore affirm the circuit court as to that claim of error.
Second, we perceive the crux of Wife’s other claims of error to be that the circuit court erred in interpreting what qualifies as an “amount invested” in the subject properties. We review the circuit court’s interpretation of contractual terms de novo. Grant v. Kahn, 198 Md. App. 421, 427–28 (2011) (quotation omitted). However, we substantially defer to the circuit court in its role as factfinder—here, regarding what amounts the parties in fact invested in the subject properties—absent indication of clear error. See Scriber v. State, 236 Md. App. 332, 345 (2018); see also Lemley v. Lemley, 109 Md. App. 620, 628 (1996) (“A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.”).
Wife argued before the circuit court, and maintains on this appeal, that various sources of funds should be construed as “amounts invested” by her in the properties. She thus calls upon us to review the circuit court’s interpretation of that contractual term, and “the terms of an agreement are construed consistent with their usual and ordinary meaning, unless it is apparent that the parties ascribed a special or technical meaning to the words.” Phoenix Servs. Ltd. P’ship v. Johns Hopkins Hosp., 167 Md. App. 327, 392 (2006) (citing Fister v. Allstate Life Ins. Co., 366 Md. 201, 210 (2001)).
The circuit court considered, and rejected, Wife’s arguments that rental income, the home loan for which Wife was an obligor, funds from jointly held accounts, and her services to the marriage constituted such contributions:
The Court credits the testimony of the defendant that the monies used to purchase the properties, although they briefly passed through the joint account were his monies that he invested in these joint properties. The evidence has failed to demonstrate that the plaintiff invested in any
of these properties jointly held. No evidence regarding any income or premarital monies.
In support of this, furthermore, with regards to 504 Lincoln Avenue, and 322 Lincoln Street, which are titled jointly, the Court makes the same fine [sic] findings. The Court would note that Defendant’s 5, 6, and 7 show the source of the funds from this account.
The Court does not find that the plaintiff being obligated on the loan of a home in any way changes the prenuptial plain language. If he had died, she would have benefited from the title of the property, nothing required her to sign the note.
Additionally, the Court is not persuaded that the fact that this was a rental property in some way provides that she invested into the property, and as such should be given a percentage.
The Court also notes that repairs to any of the properties do not denote an increase in the value of the home, and therefore would not be an investment in the property. So, any payments from the joint accounts for repairs are not investments.
The defendant has demonstrated that the percentage of investment by him was 100 percent and was for monies earned by him and invested in these two properties. Therefore, according to the prenuptial agreement, which requires division by investment, the Court determines the property to be the defendant’s, these properties to be the defendant’s property.
We cannot say that the circuit court erred in finding that Wife’s mortgage obligation, repairs she conducted on the properties, or funds used to pay the mortgages passed through the parties’ joint bank account did not qualify as an “amount invested.” Wife does not dispute that but argues that the circuit court should have inferred that her other proposed sources were “amounts invested.” The circuit court’s interpretation of “amounts invested” was entirely consistent with the usual and ordinary meaning of those words: an “amount” of money spent by one of the parties to purchase the interest in property. It was no error for the circuit court to decline to assign a special and more expansive definition of the term where it found no evidence to suggest that the parties intended such a definition at the time that they executed the Agreement. We do not doubt that Wife’s contributions to maintaining the properties were valuable, but that does not render them an “amount.” Wife presented no evidence that repairs were an “amount invested” in the contemplation of the parties at the time the executed the agreement. We therefore cannot say that the circuit court clearly erred in concluding that they were excluded from the definition of that term.
We also agree that any burden of debt that the parties bore with respect to the properties would be irrelevant to
determining the amounts that they contributed to purchasing those properties; the marital property to be divided was the parties’ equity in the properties, not the purchase money furnished by a lending institution. As we discuss below, the source of funds to make payments corresponding to equity in the property was relevant to determining the amounts invested, but the fact that Wife assumed debt burden did not itself transform the mortgage payments into an amount invested by her. Wife points to no evidence that might convince us that the circuit court erred in concluding that the joint burden of debt independently transformed the character of the amounts invested in the property.
Wife notes that the lenders to whom she was obligated on the mortgage notes were not parties to the case and therefore could not be called upon to release her from her debt obligation. Specifically, the Judgment of Absolute Divorce provided as to the property located at 504 Lincoln Street, “The deed to Defendant shall set forth Defendant’s express assumption of the mortgage which will release Plaintiff for any responsibility of any mortgage or lien on the property involving above-referenced lender and shall be signed and acknowledged by Defendant prior to recording,” and, as to 322 Lincoln Avenue, “The Deed to Defendant shall set forth Defendant’s express assumption of the above-referenced lender and shall be signed and acknowledged by Defendant prior to recording.”
We note that Wife remains obligated on any debt associated with the properties, and the language of the Judgment of Absolute Divorce is not sufficient to shield Wife from a lender’s efforts to collect debt from her despite no longer having any interest in the properties. However, because we determine below that she must have had some amount invested in the properties, we need not consider this issue further at this time, though we note for the circuit court’s consideration upon remand that the debt obligation associated with the subject properties must be reconsidered along with the parties’ relative share in the marital interest. We conclude that on remand, should Wife’s interest in the properties by transferred to Husband, the circuit court must require Husband to refinance the mortgages to completely remove Wife from any liability should he default on the notes.
Wife also argues that the properties generated rental income that should be deemed marital property, rendering a portion of the parties’ equity in them outside the scope of the Agreement’s property division scheme. The court held that there was “[n]o evidence regarding any income” that Wife contributed to the properties, and points to evidence not in the record extract before us supporting its finding that Husband contributed all the amounts invested in the property.
It is clear from the undisputed facts in the record before the circuit court that at least some portion of the parties’ equity in the properties were funded by income properly attributable to Wife. Husband stated in his testimony that 504 Lincoln Street generated $1,800 in monthly rental income at the time of the divorce hearing, and 322 Lincoln Avenue generated $2,100. Where property is jointly titled and owned as a joint tenancy by spouses—as was the case here—each
of the two spouses is entitled to an equal share of income derived from the property. Colburn v. Colburn, 262 Md. 333, 337, 278 A.2d 1, 3 (1971) (“The rule that a wife is entitled to one-half of the income from property held by the entireties is firmly established.”) It was also undisputed that at least some mortgage payments were made from Husband’s personal bank account and the parties’ joint account. Thus, it was undisputed in the record before the circuit court that at least some “amounts invested” to purchase the marital interest in the properties came from accounts which commingled Husband’s income and rental income which was marital in character.
We conclude from the record that some portion of the parties’ interest in the properties was attributable to Wife’s income. It is not clear what portion of the property corresponds to that amount, but there was no dispute that it was more than zero. We are convinced that no rational factfinder would have believed that “100%” of the interest in the properties was purchased by Husband’s income alone, as the circuit court did here.
Because the record is insufficient for us to determine the correct amount, we remand to the circuit court for its reconsideration how the properties are properly to be divided. That analysis must, of course, be consistent with the controlling language in the Agreement; that is, the parties’ interest should be divided “in proportion to the amount invested by each party” in the properties. We therefore vacate the circuit court’s judgment to the extent that it ordered conveyance of Wife’s interest to Husband.
B. Wife Waived Her Argument That “Separate” Property Differs from “Non- Marital” Property.
Wife argues that the circuit court erred by defining “separate” property, as it is used in the agreement, as coextensive with “non-marital” property for the purpose of Maryland law. However, there is nothing in the record before us from which we could conclude that Wife or her counsel suggested, at any point in the divorce proceeding, that Wife believed the “separate” property contemplated by the Agreement to be synonymous with “non- marital.”
As such, we find no argument by Wife that, at the time of the Agreement’s execution, the word “separate” bore some meaning that would have distinguished it from “nonmarital.” Having failed to argue the issue before the circuit court, Wife waived it for appeal.
III. The Circuit Court Erred in Its Alimony Award by Failing to Consider Mandatory Factors Pursuant to FL § 11-106(b).
Husband argues that the circuit court erred in its alimony award. He contends that, under the plain, unambiguous language of the Agreement, both parties waived any claim to alimony and agreed that no court could modify that provision. Therefore, the court erred in declining to enforce the noalimony clause. Wife responds that the circuit court did not go far enough and, with the alimony waiver clause struck from the Agreement, should have proceeded to consider an award of alimony without reference to the Agreement at all.
We review the circuit court’s interpretation of contractual
provisions, including whether a contractual provision is ambiguous, de novo. W. F. Gebhardt & Co. v. Am. Eur. Ins. Co., 250 Md. App. 652, 666 (2021). When we are called upon to interpret the language of a contract, the “contract’s unambiguous language will not give way to what the parties thought the contract meant or intended it to mean at the time of execution; rather, ‘if a written contract is susceptible of a clear, unambiguous and definite understanding . . . its construction is for the court to determine.’” Sy-Lene of Washington, Inc. v. Starwood Urb. Retail II, LLC, 376 Md. 157, 167 (2003) (quoting Langston v. Langston, 366 Md. 490, 507 (2001) (cleaned up). If the contractual language is unambiguous, we “will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used.” Id. However, the court’s interpretation “should not reach an absurd or unreasonable result.” Springhill Lake Invs. Ltd. P’ship v. Prince George’s Cnty., 114 Md. App. 420, 434 (1997).
The circuit court struck the alimony waiver clause as it would have allowed for an absurd result under which Husband could have unilaterally excused himself from his obligation to perform. The no-alimony provision was conditioned upon the character of the divorce: if the divorce were for any reason other than a voluntary separation, Husband would not be required to pay any alimony. However, Husband’s infidelity was the reason that the court granted a fault divorce. The court found, essentially, that allowing the no- alimony provision to stand would have permitted Husband to procure the circumstances that excused him from paying alimony, stating:
But to me, this would—a reasonable interpretation of this provision would be that in the case of plaintiff is that if plaintiff was the cause for default divorce allegations. That is if she had committed or allegedly committed adultery or other fault terms, then she would not be entitled to that payment.
However, the defendant can’t frustrate that payment by committing wrongful acts, whether it be acts of cruelty or acts of adultery so that he could alleviate his requirements under the agreement. I think that would be an unreasonable interpretation of the agreement.
The Court believes that it would—should be construed in a way that would prevent such an absurd result and potentially requiring that that provision be stricken, in the sense of the—that any reason for divorce that would entitle the plaintiff to the payment of the spousal support as provided in the agreement.
The court restated this finding in its November 14, 2022 oral opinion following the divorce hearing. At that point, the circuit court also struck language conditioning an award of $500.00 per month on the character of divorce being by voluntary separation on grounds of public policy, as discussed above.
In Middlebrook Tech, LLC v. Moore, we considered the effect of a conditional provision in a lease agreement, and we
provided discussion instructive for this matter. See generally 157 Md. App. 40 (2004). In Middlebrook Tech, the plaintiff landlord sought to recover rent from defendant Moore under a guaranty he executed on behalf of tenant Optim Electronics Corporation (“Optim”). Id. at 46–52. Moore offered as a defense that a clause located at Section 16, which allegedly provided that the lease would not renew if Optim “mad[e] an assignment of all or a substantial part of its property for the benefit of its creditors,” had already caused the lease to terminate. Id. at 52. We were unconvinced that the lease allowed Moore and Optim to unilaterally trigger a condition excusing them from performance under the lease, stating:
Only Moore, whose Guaranty covered the performance of Optim’s obligations under the Lease, and who therefore was no more the intended beneficiary of section 16 than was Optim, sought to invoke section 16, and only in an effort to gain advantage by avoiding the promises he made in the Guaranty, by in effect saying “Gotcha—there was no Lease to guaranty!” We will not interpret section 16 of the Lease so as to produce such an obviously unfair, nonsensical, and unintended result.
Id. at 71. Crucially, we found that the clause under which Moore sought to be excused from performance was not for his or Optim’s benefit at all, but for Middlebrook Tech’s protection in the event of Optim’s insolvency. Id. We therefore held that it would be absurd to adopt a reading of the lease under which Moore could trigger a condition exclusively for another party’s benefit. Id.; see also Cohen v. Afro–American Realty Co., 58 Misc. 199, 108 N.Y.S. 998 (1908) (because conditional limitation was wholly for benefit of landlord, tenant could not take advantage of it unless landlord signified intention to avail himself of the conditional limitation).
The circuit court reached a similar conclusion here. The circuit court, having considered both the plain language of the agreement and extensive evidence of what the parties intended at the time of the Agreement’s execution, found that an interpretation under which Husband could unilaterally excuse himself from paying alimony was unreasonable. Crucially, it interpreted the conditional language to protect the innocent party in a fault divorce: that is, if Husband were to seek alimony after committing adultery, it would have rendered alimony unavailable to him. We agree with the circuit court in its conclusion. The circuit court was entitled to find that the conditional alimony waiver provision was for the innocent party’s benefit in case of the other’s marital fault, and it would have been absurd to allow Husband to invoke the conditional language to unilaterally excuse himself from paying alimony.
We cannot conclude, as Husband urges, that striking the conditional waiver provision was fatally incongruous with awarding Husband property on the terms outlined by the Agreement. The division of property was governed under the Agreement with a clause providing that “[p]roperty held jointly with right of survivorship or tenants by the entirety shall be divided between the parties in proportion to the amount invested by each party in such property.” Husband argues that, because that phrasing is situated in the
paragraph with the conditional waiver provision, the circuit court produced an incongruous result by striking the waiver provision and not the property division clause. But even if Husband were correct, the fact that the circuit court erred in severing the property division clause would be irrelevant to our determination of whether it erred in striking the alimony waiver clause. That is an issue merely of severability of the property division clause, which neither party has challenged in this appeal. We therefore are not convinced that allowing another, arguably related clause to stand somehow weighs against striking the alimony waiver clause.
We have also considered the effect of the sentence in Section 4 stating, “Each party releases and discharges the other, absolutely and forever, for the rest of his or her life, from any and all claims and demands for alimony, support or maintenance of any kind, either pendente lite, rehabilitative, or permanent.” Husband characterizes this as “clear and unambiguous” indication that alimony was waived if the grounds for divorce were anything other than a voluntary separation. However, read in the context of the paragraph in which it appears, this clause is ambiguous: it could be read to waive alimony in all circumstances, or to be read in concert with the conditional waiver of alimony clause in the first sentence of the paragraph in which it appears—in which case this language merely states that a waiver that would be effective only where that condition was properly triggered.
We must consider that sentence with reference to the circuit court’s fact-finding with respect to the parties’ intentions at the time the Agreement was executed. In declining to enforce the conditional no-alimony clause found in the same paragraph, the circuit court found, essentially, that there was no meeting of the minds regarding what alimony was to be awarded under the circumstances of this case; that is, where the party seeking to bar an alimony award was also responsible for creating the circumstances leading to a breakdown of the marital relationship. We think, then, that the second waiver of alimony clause could not be severed from the conditional clause struck by the circuit court without leading to an absurd result. We do not credit that the parties contemplated both a conditional waiver of alimony and a blanket waiver of alimony in all circumstances. It is well-established that, where a contractual provision is ambiguous—that is, capable of multiple permissible interpretation—we will seek to avoid reading it in such a way as to arrive at an absurd result. See Born v. Hammond, 218 Md. 184, 188 (1958) (“if a contract was susceptible of two constructions, one of which would produce an absurd result and the other of which would carry out the purpose of the agreement, the latter construction should be adopted” (citing Gibbs v. Meredith, 187 Md. 566 (1947))). We therefore do not adopt a reading of this provision such that alimony would be waived even despite the unenforceability of the conditional waiver provision. Such a result—that the parties adopted provisions waiving alimony in both some circumstances and in all circumstances—would be absurd.
Finally, Husband argues that the Agreement barred the circuit court from modifying the alimony waiver. It is true that a court may not modify alimony where the parties agree
to “(1) an express waiver of alimony or spousal support; or (2) a provision that specifically states that the provisions with respect to alimony or spousal support are not subject to any court modification.” Md. Code Ann., Fam. Law § 8-103 (West). We note, however, that we construe the word “modification” narrowly. For instance, in Moore v. Jacobsen, 373 Md. 185 (2003), the then-Court of Appeals (now the Supreme Court of Maryland) held that a clause preventing “modification” did not prevent a court from terminating alimony.
Here, the circuit court did not purport to modify alimony; it interpreted the Agreement to find that the contractual condition that could waive alimony never came into effect. The court did not change the alimony award to reflect other than what the parties contemplated at the time of executing the Agreement, and we think that such would have been at the heart of a “modification” of alimony. Further, the court did not purport to reform the contract in such a way as to reflect the parties’ actual agreement; rather, it simply determined what their meeting of the minds actually was with respect to an ambiguous provision. That is an act of contract interpretation, not modification. The court thus simply gave legal effect to the Agreement consistent with Maryland’s body of contract law, which did not include giving effect to the alimony waiver clause, and therefore did not run afoul of the clause barring court modification of alimony.
We therefore find no error in the circuit court’s refusal to enforce the alimony waiver provision. However, we agree with Wife that the circuit court erred in its ultimate award. As Wife noted, she “was entitled to alimony/spousal support of $500.00 per month but only if the divorce was based on voluntary separation and not on any other ground.” (Emphasis in original). Having struck the waiver provision, the circuit court was correct to proceed to consider the provision, at page 5 of the Agreement, which reads:
In the event of a separation or divorce between the parties after the parties have been married for five years, if the cause of the separation or divorce is a voluntary separation by the parties, it is hereby agreed that Igor shall provide temporary support to Olana of $500.00 per month for three years. (Emphasis supplied.)
The no-alimony provision, on the subsequent page, reads that it applies in any divorce “[w]ith the exception only of the previous paragraph, in the event of a separation or divorce between the parties for any reason other than a voluntary separation after five years of marriage[.]” The circuit court appears to have read this to render the $500.00 monthly payment essentially as a default; that is, if the noalimony provision was struck, the parties had agreed to no more than $500.00 per month. But that is not what the Agreement provides. It states that the parties agreed to $500.00 per month only “if the cause of the separation or divorce is a voluntary separation by the parties.” With the no-alimony clause struck, and the cause of divorce being other than a voluntary separation, the Agreement was thus silent regarding the alimony to be awarded under the circumstances of this case.
As such, the Agreement did not bind the court to refuse
to award alimony. The circuit court therefore should have applied controlling law for an award of alimony in the circumstances of a divorce in which the parties have not reached a valid agreement with respect to alimony; particularly, the consideration of the factors necessary for a fair and equitable award of alimony pursuant to FL § 11106(b). We accordingly vacate the circuit court’s judgment as to this issue, remand the matter to the circuit court for reconsideration of its alimony award consistent with the Family Law Article and other appropriate law.
IV. The Circuit Court Did Not Err by Declining to Grant Husband an Award of Attorney’s Fees.
Husband contends that the circuit court erred in denying his motion for an award of attorney’s fees. The circuit court held that, pursuant to Maryland Rule 2-705(b), a party seeking an award of attorney’s fees arising from a provision permitting an award to the prevailing party in litigation arising out of a contract is required to set forth a claim for fees in the initial pleading. As Husband did not do so, he has waived his claim. Husband argues that Rule 2-705 does not apply because this was a divorce proceeding and not an action for breach of contract. He thus contends that the circuit court committed legal error, which we review de novo. See, e.g., Hartford Fire Ins. Co. v. Est. of Sanders, 232 Md. App. 24, 39 (2017).
Rule 2-705 provides:
(a) Scope of Rule. This Rule applies to a claim for an award of attorneys’ fees attributable to litigation in a circuit court pursuant to a contractual provision permitting an award of attorneys’ fees to the prevailing party in litigation arising out of the contract. It does not apply to a claim for attorneys’ fees allowed by contract as an element of damages for breach of the contract or to a claim for attorneys’ fees authorized by statute or other law.
(b) Pleading. A party who seeks attorneys’ fees from another party pursuant to this Rule shall include a claim for such fees in the party’s initial pleading or, if the
grounds for such a claim arise after the initial pleading is filed, in an amended pleading filed promptly after the grounds for the claim arise.
Md. Rule 2-705. The language of the Agreement that Husband alleged entitled him to an award of fees reads: If a party, by actions, proceeding, counterclaim, defense or otherwise, seeks to set aside this Agreement, or to declare any of its terms and conditions as invalid, void, against public policy for any reason, including, but not limited to claims of incompetency, fraud, coercion, duress, undue influence or mistake in inducement, said party shall reimburse the other party and be liable for any and all such party’s reasonable expenses, costs and attorney’s fees, provided and to the extent that such action, proceeding, counterclaim or defense results in a decision, judgment, decree or order dismissing or rejecting said claims.
We agree with the circuit court that Husband’s was the type of claim for attorney’s fees within Rule 2-705’s ambit. The phrase “provided and to the extent that such action, proceeding, counterclaim or defense results in a decision, judgment, decree or order dismissing or rejecting said claims” requires that the party defending the contract’s validity receives a favorable disposition; that is, if the circuit court had ruled in a manner unfavorable to Husband, he would have had no claim to attorney’s fees. That is at the heart of the meaning of the word “prevail.” The definition of “prevail” is includes “[t]o obtain the relief sought in an action; to win a lawsuit.” Prevail, BLACK’S LAW DICTIONARY (11th ed. 2019). The circuit court was correct to find that Husband would only have been entitled to fees to the extent that he prevailed against Wife’s challenge to the Agreement. Therefore, the clause awarded attorney’s fees to the “prevailing party in litigation arising out of the contract.” Rule 2-705 applied by its own terms and required Husband to plead for it in his first responsive pleading, which he did not do. We perceive no error of law by the circuit court and affirm.
THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED IN PART AND VACATED IN PART. APPELLANT AND APPELLEE TO EVENLY SHARE THE COSTS.
FOOTNOTES
1 Wife phrased her questions presented as follows:
Whether the parties’ Prenuptial Agreement is void as against public policy and whether it should have been stricken and/or declared unenforceable in whole or in part?
Whether the Circuit Court erred in disregarding Mrs. Knizhnik’s breach of contract claim and whether it should have heard and adjudicated that claim?
Whether the Circuit Court should have declared a rescission of the Prenuptial Agreement?
Whether Mr. Knizhnik had waived his rights under the Prenuptial Agreement and was estopped from enforcing the Prenuptial Agreement?
Whether the Prenuptial Agreement was unenforceable?
Whether Maryland courts should adopt the “second look” approach to prenuptial agreement enforceability at the time of divorce?
Whether the Circuit Court should have considered whether the Prenuptial Agreement was fair, reasonable, and not unconscionable at the time of enforcement in light of changed circumstances and events during the marriage?
Whether the Circuit Court erred in awarding all interests in the 504 Lincoln Street and 322 Lincoln Avenue properties to Mr. Knizhnik, without making any award to Mrs. Knizhnik or fully relieving her of associated liabilities?
Whether the Circuit Court erred in finding that Mrs. Knizhnik had invested nothing in the 504 Lincoln Street and 322 Lincoln Avenue properties?
Whether the Circuit Court in equating “separate property” with “non- marital property”?
Whether the Circuit Court erred in finding the Prenuptial
Agreement valid and enforceable at the time of execution in 2005?
Whether it was procedurally proper for the Circuit Court to hear Mr. Knizhnik on the Prenuptial Agreement?
2 Husband phrased his questions presented as follows:
Did the chancellor err in awarding alimony when the parties waived alimony in their Prenuptial Agreement, and the agreement contained a “no modification” provision pursuant to MD. [FAM. LAW] CODE ANN., section 8-103 (c)(2)?
Did the chancellor err in failing to award attorney’s fees to Appellee, as dictated by the parties’ Prenuptial Agreement by mischaracterizing the application of Rules 2-701, et seq.?
3 Wife notes that the word “deprivation” in lieu of “deportation” appears throughout the transcript of the November 19 and December 29, 2020 hearings.
4 Custody of the minor children was established pursuant to a Custody Order dated June 2, 2021; issues of custody and support of the minor children were not at issue at the August 31, 2022 divorce hearing, nor are they disputed in this appeal.
5 The trial court was incorrect that “collateral estoppel or res judicata” barred consideration of the claim at the time of trial. These doctrines only apply to final judgments. See, e.g., Powell v. Breslin, 430 Md. 52, 64 (2013) (res judicata requires final judgment on the merits in previous action); Grady Mgmt., Inc. v. Epps, 218 Md. App. 712, 737 (2014) (collateral estoppel requires final judgment on the merits in prior adjudication). However, since the circuit court did not exclusively rely upon the application of these doctrines, we do not find any error of law dispositive. We rather consider only whether the circuit court abused its discretion by declining to reconsider its ruling that the Agreement was valid at trial and, as discussed below, conclude that it did not.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the parental rights of both parents to their minor child following a twelve-day guardianship hearing. The court rejected the parents’ arguments that the Department of Social Services failed to show that it had made reasonable efforts towards the parents’ reunification with the child; that there was no clear and convincing evidence that it was the minor’s best interest to terminate parental rights or that the juvenile court failed to give adequate consideration to all of the “best interest” factors.
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.
2) that Father and Mother constantly beat C.B.’s older siblings with their fists and open hand, although no bodily injuries were seen on those children; 3) that the home, with three bedrooms, was overcrowded for the family; 4) that the children’s personal hygiene was poor, as they wore dirty clothes and had hair lice; and 5) that nine-year-old B.B. was not enrolled in school.
Upon receiving the report, a Child Protective Service (CPS) case worker, Ms. Rebecca Ogunbiyi,4 visited the children’s home on Ramsay Street on November 7, 2017. There, C.B. and his four siblings were living with at least five other people: Father, Mother, Father’s sister, her husband (Father’s brother-in-law), and her minor child (Father’s nephew).5 The place was owned by Father’s sister. Ms. Ogunbiyi interviewed Father, who denied the allegations of child abuse and neglect. At the time, Mother and C.B. were not at home; Father explained that they were at the University of Maryland Medical Center (UMMC) due to C.B.’s rash, indicating that it was just a routine visit.
On May 15, 2023, after a twelve-day guardianship hearing,1 the Circuit Court for Baltimore City, sitting as a juvenile court, granted a petition filed by the Department of Social Services (“DSS”) to terminate the parental rights of Ms. D (“Mother”) and Mr. B (“Father”) to their minor child, C.B. Mother and Father both appealed.
On appeal, Mother presents two issues and Father presents one, which we have combined and rephrased as follows:2
1. Did the juvenile court err in admitting the entirety of DSS’ Family Assessment and Investigative Report (“181 Narrative”) into evidence?
2. Did the juvenile court abuse its discretion in concluding that the termination of Mother’s and Father’s parental rights was in C.B.’s best interests?
For the reasons that follow, we affirm the judgment of the juvenile court.
PROCEDURAL AND FACTUAL BACKGROUND
Initial Report of Neglect and C.B.’s Placement
DSS’ involvement with C.B., who is now six years old, began when the child was six months old. In early November 2017, the Baltimore City Department of Social Services (“DSS”) received an anonymous report concerning abuse and neglect of C.B. and his four older siblings, M.B., A.B., B.B., and T.B.3 The report alleged: 1) that Father and Mother were physically and verbally abusive towards their children;
During her visit on November 7, 2017, Ms. Ogunbiyi did not find any sign of child abuse, such as bruises or marks, on the children’s bodies; however, she found the house to be “deplorable,” which she defined as “more than dirty.” Ms. Ogunbiyi testified that the home was “filthy, extremely cluttered, and infested with fleas ” She also observed that [T]he living room was, you know, junked with old toys, bicycle . . . beds [T]he living room was not livable. One of the room[s] was, you know, that the boys had to have holes in them. And you know, I have [sic] foods that were left open in the house.
The home was also overcrowded and did not have beds for the children. Father and Mother were sleeping on a mattress on the dining room floor. The family was using an open area between the living room and the kitchen as a sleeping place for T.B., B.B., and C.B. Furthermore, the gas and electricity service had been disconnected for months due to non-payment. Ms. Ogunbiyi expressed her concerns about the home’s condition to Father. Ms. Ogunbiyi gave the parents one week to clean up the house and obtain suitable beds for the children.
About a week later, when Ms. Ogunbiyi reinspected the home on November 16, 2017, it was clean, clutter-free, and furnished with new bunk beds. However, C.B. was still not present due to his continued hospitalization for a rash. By this time, DSS had also received another report of alleged neglect concerning C.B. from UMMC, dated November 10, 2017.6 Concerned, Ms. Ogunbiyi visited UMMC the next day,
on November 17, 2017, to check on C.B.
C.B.’s “rash,” as it turned out, involved “excessive amounts of blistering and drainage,” which caused him “significant pain and discomfort.” After speaking with C.B.’s medical providers at UMMC, Ms. Ogunbiyi also confirmed that the child was suffering from severe fungal, viral, and bacterial infections, including candida,7 herpes and methicillinresistant staphylococcus aureus (MRSA).8 C.B.’s medical records from UMMC provided that C.B.’s skin infection was “likely due to chronic moisture and debris,” and “appear[ed] complicated and exacerbated by superinfection” with herpes virus growing in the area.
C.B. was failing to thrive. At six months of age, he was found to be at the 50th percentile for weight for a two-monthold, placing his weight at the lower one percentile for his age. This was a significant drop from his weight percentile at birth, which was in the 22nd percentile. C.B. was also at the 50th percentile for length for a three-month-old. Mother acknowledged that she had been feeding C.B. “watered[-] down Cow’s milk.” While Mother was cooperative with hospital staff, she seemed “uninterested” when a nurse tried to discuss feeding safety as well as skin and wound safety. C.B. also had never been immunized and had not seen a medical provider after his two-month visit because of insurance issues.
The medical staff at UMMC also noted C.B.’s plagiocephaly, or flat head. In addition, C.B. showed signs of developmental delay, had poor head control and low body muscle tone, and was unable to sit up without assistance.
Following her visit with C.B. at UMMC, Ms. Ogunbiyi grew concerned for the safety of the children under the care of their parents, especially regarding the children’s medical and educational needs. Ms. Ogunbiyi found that Father and Mother “were not . . . upfront with the medical care with the children[,] [a]nd also, their educational care.” She also learned that the parents “miss[ed] a lot of medical appointments” and that “some of the children were not up to date with their immunization,” which hindered their enrollment in school. She also found that all the children had head lice. Despite CPS’ efforts to assist the parents in obtaining care, Mother remained at the hospital with C.B., and Father appeared overwhelmed with the care of the other children.
On November 21, 2017, DSS filed a Petition with Request for Shelter Care with the juvenile court for C.B. and his siblings. The children were removed from the parents’ home. Since the parents did not provide any information about relatives or other individuals available for the children’s placement, the five children were placed into foster care with three different non-relative foster families. C.B. was placed with the home of Ms. L.B., a regular foster care home.9
A contested CINA hearing followed. On May 21, 2018, based on the allegations of medical neglect and deplorable living conditions, the juvenile court determined that C.B. and his siblings were children in need of assistance (“CINA”).
In the CINA Order, the juvenile court found that: 1) Father and Mother had failed to ensure that the children’s medical needs were met; 2) all the children had “poor hygiene, w[ore]
dirty clothing, and ha[d] lice”; 3) B.B. and T.B. were behind on their immunizations; 4) T.B., two and a half years old, had never seen a doctor; and 5) B.B., due to her delayed immunization, could not be enrolled in school. In addition, as to C.B., the juvenile court specifically found:
On or about 11/7/17 [C.B.] was admitted to University of Maryland Medical Center (UMMC) where he was diagnosed with Herpes, MRSA, a severe case of impetigo, and plagiocephaly. He had rashes from his neck to his toes that weeped when wipted [sic]. [C.B.] was found to be developmentally delayed and to have poor head control, to be unable to sit without assistance, and to have low truncal tone. He was found to have a flat fontanel due to poor socialization and prolonged periods of lying without interaction. At the time of his admission [C.B.] was found to be failure to thrive as his weight placed him in the less than first percentile for his age. Medical professionals have indicated that [C.B.’s] diagnosis of failure to thrive is secondary to poor caloric intake in light of mother’s admission that she waters down [C.B.’s] formula and in light of [C.B.’s] consistent weight gain while hospitalized. [C.B.’s] medical records indicate that he has only seen his pediatrician one time, at 2 months of age, and that he is behind on his immunizations. According to the treating physicians at UMMC, had [C.B.] attended his routine medical appointments it is likely that his infections would not have been as severe and would not have required hospitalization. At the time of his admission to UMMC [C.B.] was noted to be filthy with dirt under his fingernails and in his diaper.
Also, as to the home condition of the parents, the juvenile court found:
The . . . parents’ home is in deplorable condition. The assigned [DSS] safety worker observed the home to be filthy, extremely cluttered, and infested with fleas and flies. There are no beds for the [children] and the parents are sleeping on a mattress on the floor in the dining room. [The children’s] parents admitted to the [DSS] worker that the home is unsafe and unsanitary and admitted that the home conditions are because none of the adults in the home clean up after themselves.
Initial Progress Made by the Parents
Immediately following the foster placement of C.B. and his siblings, DSS began working with the parents for their reunification with the children. Ms. Linda Galloway, a DSS case manager, was assigned to C.B. and his siblings. In early December 2017, Ms. Galloway did a health assessment of the parents’ home and found the home “very clean” and with “no clutter,” but still lacking in electricity. The home was also without hot or cold running water. The parents soon moved out of the home and relocated to another home nearby, where Father’s mother and his brother were residing.10 The home was a single-family house with only two bedrooms. It did not have enough space for Father, Mother, and their children. The parents did not provide Ms. Galloway the home address or details about the home environment. Until August 2018, the parents had weekly supervised visitation with C.B. and their other children at Banja Center in Baltimore City.
At first, Mother and Father were largely cooperative with Ms. Galloway and made significant progress towards reunification. Ms. Galloway reached out to the parents and communicated with them, mainly with Mother, “three to four times a month.” DSS and Mother entered into their first service agreement on January 25, 2018, which required: 1) that she complete a substance abuse assessment; 2) that she complete parenting class through Family Tree; and 3) that she locate suitable housing and provide a lease agreement to DSS. DSS, on its part, agreed to 1) submit an application for a substance abuse assessment for Mother; 2) provide her the phone number to the parenting class; and 3) monitor and follow up on her progress towards reunification. DSS also entered into the same agreement with Father.11
By the time of the first Permanency Plan Review Hearing on August 21, 2018, both parents had successfully complied with all three conditions.12 Both had completed the substance abuse assessments and parenting classes. Father, a military veteran, began working full-time for multiple security companies. Mother and Father also worked with Project PLASE, a Veterans assistance organization, and secured a home on Santa Fe Avenue (“Santa Fe Avenue home”) in August 2018.13
Finding that the parents’ “progress toward alleviating or mitigating the problems leading to commitment is adequate,” the juvenile court granted Father and Mother four- hour unsupervised weekly visits in the community with C.B. and his siblings.14 In September 2018, DSS approved the Santa Fe Avenue home as suitable for day visits, and the parents began having four hours of unsupervised weekly visits with C.B. and their other children at the home.
To maintain their housing and financial stability, Father and Mother continued to work with Project PLASE through Ms. Tyrhonda Josey-Miles, a caseworker from the organization. Project PLASE assisted with the parents’ rental payments for the Santa Fe Avenue home. Ms. JoseyMiles also provided Mother with various employment resources, including a referral to an employment specialist and invitations to a job fair and a career workshop. Mother engaged in some of those opportunities. Father provided Ms. Josey-Miles with proof of his employment. With Father’s employment and income, Ms. Josey-Miles expected that the family would become fully able to cover their rent by January 2019. According to Ms. Josey-Miles, Mother also expressed that they “had enough income to be able to pay their monthly rent in full and on time moving forward without the assistance of” Project PLASE.
The Parents’ Non-Compliance with Service Agreements and Court Order
From that point, however, the parents began struggling with maintaining their earlier progress. In September 2018, Ms. Josey-Miles began having communication issues with both parents. For about a month, Ms. Josey-Miles called and texted the parents, but no one replied. She also visited the parents’ home, yet they were not present. After a Family Involvement Meeting (“FIM”) on October 22, 2018, the parents communicated with Ms. Josey-Miles on a month-to-month basis but did not attend their weekly case
management meetings with her. When the parents failed to show up at the weekly meetings, Ms. Josey-Miles notified Ms. Galloway.
The parents’ inability to maintain a stable home environment became an issue.When the parents moved into the Santa Fe Avenue home in August 2018, it was largely unfurnished. To facilitate the parents’ overnight visits with the children, DSS purchased a crib for C.B. and two sets of bunk beds for the other children. Project PLASE also paid for a bed for the parents. When Ms. Galloway and Ms. JoseyMiles visited the Santa Fe Avenue home in January 2019, however, they found Father sleeping on a bed in the living room area of the home. The home was also in disarray. Ms. Galloway concluded that the home was not “suitable and sanitary for the children to visit and/or live until the parents address the concerns/issues.”
When Ms. Galloway and Ms. Josey-Miles made another visit in April 2019, Ms. Galloway again observed: “the home was not tidy, cluster [sic] on the floor, dust and dirt throughout the home.” The home also appeared overcrowded and had inadequate sleeping arrangements; in addition to the parents, Father’s mother, sister, brother, and the sister’s boyfriend were staying at the place. Mother could not explain where the adults would sleep during the children’s overnight visits. When Ms. Galloway asked Father about the sleeping arrangements during the children’s overnight visits, Father denied any knowledge, stating that he was at work during that time. Ms. Galloway asked the parents for the full name, date of birth, and social security number for each adult living in the home, but she did not receive that information.
Following those visits, on May 7, 2019, the juvenile court issued an order, requiring the parents 1) to appropriately supervise the children during their visits; 2) to attend family therapy as agreed with DSS; and 3) “not allow any individuals other than [the minor children] to sleep in the bunk beds provided” by DSS.
On June 21, 2019, Ms. Galloway made an unannounced home health inspection at the Santa Fe Avenue home and found the home to be unsafe as well as unsanitary.15 She saw the house “having roaches, having eggs from the roaches, having eggs, having . . . a broken toilet seat, having a tub that’s not clean, having bags of trash in one particular room.” A bed was lying in the living room, with a cot and a television at the foot of the bed. Several loose wires, connected to electrical equipment, were also on the floor.16
As Ms. Galloway entered the children’s bedroom, she saw a male adult sleeping in the top bunk.17 Mother explained that the male was the boyfriend of Father’s sister and that he, along with Father’s sister, nephew, and the nephew’s girlfriend, were unexpected overnight guests. Ms. Galloway informed the parents that they were in violation of the juvenile court’s May 7, 2019 order. Ms. Galloway then asked the parents to sign a home health report, but the parents refused.
About a month later, on or around July 3, 2019,18 Ms. Galloway returned to the same home and still “found . . . broken windows, a broken door that actually was . . . off of the hinge.” The toilet seat remained broken. The sink and
the bathtub were filthy. In the kitchen, roaches were crawling up on the walls, on the ceilings, and inside the refrigerator. Earlier, during a FIM on July 2, 2019, Mother had given her consent to Ms. Galloway’s home inspection and been informed that the pictures of the home would be taken.
But the cleanliness of the home was not the only issue. When Ms. Galloway tried to enter certain areas inside the home, Mother denied Ms. Galloway access. Mother expressed that she did not feel comfortable allowing Ms. Galloway to inspect the basement because Father’s sister was living there. Mother also denied Ms. Galloway’s access to C.B.’s bedroom, stating that Father kept his weapons there. Based on her observation, Ms. Galloway concluded that the home was unsafe. The parents disagreed with Ms. Galloway’s conclusion and refused again to sign the home health report.
Following the two failed home inspections, the parents’ visitation reverted to supervised visits in the community. Ms. Galloway attempted to reassess the Santa Fe
Avenue home, yet the parents denied her entry. The visits progressed to unsupervised visits in the community in the fall of 2019; however, visits never progressed to home or overnight visits again.
Thus, throughout this case, the parents’ interactions with C.B. were limited to weekly (and later monthly) day visits and lasted no more than four hours, even though those visits were affectionate. Once the visits moved to the community, they typically lasted just about an hour and a half and took place at a McDonald’s or Burger King.
During their visits with C.B. outside the home, the parents rarely provided for the child’s needs. While the parents brought food from nearby fast-food restaurants for some of the visits, they did not bring any shoes, clothes, or gifts for C.B. Likewise, in the early stage of the case, when the visits occurred at Banja Center, the parents never brought any baby food, milk, formula, wipes, or diapers to C.B., who was no more than about a year old at the time.
Meanwhile, in June 2019, C.B. participated in a “multidisciplinary team evaluation” at the Kennedy Krieger Institute following a report of “rocking” behavior. Years before the evaluation, medical providers at UMMC had noted C.B.’s developmental delays in multiple aspects, including his head and body control. While in foster care, C.B. had been receiving speech and language therapy, occupational therapy, behavioral therapy, and genetic counseling. Following the evaluation, C.B., then two years old, was diagnosed with Autism Spectrum Disorder with Associated Language Impairment, Other Symbolic Dysfunction, Global Developmental Delay, and Disruptive Behavior Disorder.
Continued Non-Compliance and Changes of Permanency
Plans
At a Permanency Plan Review Hearing on November 22, 2019, C.B.’s permanency plan was changed from a sole plan of reunification with parents to a concurrent plan of reunification with parents and custody and guardianship by a non- relative. The parents agreed that the change of permanency plan was in C.B.’s best interest. The juvenile court further found that DSS had made reasonable efforts to reunify C.B. with his parents, such as by making home
visits, referring the parents for housing assistance, providing financial assistance for furniture, buying bunk beds, and monitoring the status of the parents’ housing.
That day, Mother entered a second service agreement, which required that she: 1) participate and follow through with family counseling; 2) attend C.B.’s scheduled medical appointments, including dental and therapy appointments; 3) participate in supervised and/or unsupervised visits with C.B.; 4) maintain a residence and keep her address current with DSS; 5) maintain stable employment and provide pay stubs to DSS; and 6) attend all court hearings regarding C.B. Mother was given until May 17, 2020, to satisfy the requirements. In return, DSS agreed to: 1) provide Mother with information regarding family counseling; 2) inform Mother of C.B.’s scheduled medical appointments, including dental and therapy appointments; 3) arrange regular visits and contacts between C.B. and Mother; and 4) conduct home health inspections to ensure the cleanliness of the home.19 DSS also prepared a new service agreement for Father, but he never signed it.
This time, Mother failed to keep up with the service agreement’s requirements.Although DSS made a family counseling referral for both parents, they did not participate.20 Apart from attending autism evaluation sessions for C.B. in June 2019,21 neither parent attended any of the child’s medical, dental, or therapy appointments. Although Mother became employed at 7-11 and provided DSS her paystubs for a few months, she was then let go from the job. Mother testified that she then worked at a chocolate factory, Home Depot, and Nordstrom, but she failed to provide DSS paystubs from those employers. Father never provided his paystubs to DSS.
The parents’ housing situation also grew worse. When Ms. Galloway inspected the Santa Fe Avenue home on January 9, 2020, the place did not have running water. The bathroom sink was not working. The refrigerator was inoperable and taped shut. Loose wires were still on the living room floor. The home also had “extreme debris in [the] living area.” In general, Ms. Galloway found that the home failed to meet basic health and sanitary standards. On or around February 27, 2020, Ms. Galloway received a call from the landlord of the Santa Fe Avenue home, indicating that the parents had been evicted. The landlord also sent pictures regarding the condition of the home.22 Shortly afterwards, on March 4, 2020, Mother confirmed that they had been evicted from the Santa Fe Avenue home.
After the eviction, the parents relocated, resulting in a loss of communication with Ms. Galloway.23 For months, Ms. Galloway tried to reach the parents via texts and phone calls but received no response. The parents also did not reply to Ms. Galloway’s efforts to notify them about C.B.’s upcoming medical appointment in May. Communication with the parents resumed in August 2020, when Mother responded to Ms. Galloway’s text message about an upcoming FIM and informed her that they could not attend the meeting. Through December 2020, there was very little communication between Ms. Galloway and the parents, with most, if not all, attempts at contact initiated by Ms. Galloway.
Similarly, even though the parents’ weekly visits with C.B. resumed in September 2020 following the eviction, those visits became inconsistent and sporadic. Prior to the eviction, both parents attended most of the visits, except some noshows. However, over the three months from September to November 2020, both parents only attended two weekly visits, one in October and the other in November. The visits continued to take place at a local fast-food restaurant in the community,24 as the parents never made their home available for another assessment.
On November 19, 2020, after a contested hearing, the juvenile court changed C.B.’s permanency plan once again, this time from a concurrent plan of reunification and custody and guardianship by a non-relative to a concurrent plan of custody and guardianship by a non-relative and/or adoption.25 Father and Mother each noted an appeal. In an unreported opinion, this Court affirmed the juvenile court’s decision. We recounted the juvenile court’s factual findings as follows:
In 2017, the family was found living in squalor -- with flies, roaches, no electricity, no beds for the children, and little food. Periodic inspections by the Department showed that they were capable of cleaning up their home upon demand, but they consistently reverted to filth. In addition, Father chose not to work for three years because he said he was missing too much of his kids' childhoods, despite the fact that his gainful employment during that time period would have gone a long way toward ameliorating the family's situation.
The children also suffered from parental neglect. Mother and Father never took the children to the doctor or the dentist, and thus they were not immunized and had significant tooth decay. As a result, they could not attend school. Infant C.B. was mostly left to lie on his back in a crib, resulting in a flat head. He was diagnosed with severe infections and failure to thrive from insufficient formula intake, which required hospitalization. The children were infested with head lice and their clothes were dirty. There was no evidence presented at the permanency plan review hearing that such neglect would not continue if the children were returned to Mother and Father’s care and custody.
After the children were removed from their home, Mother and Father appeared to be on the right track toward reunification. They obtained a new house with the help of the VA. But not long after they moved in, it too was filthy and unsafe, and they were evicted. By the time of the November 2020 permanency plan hearing, Mother and Father were back in the same house from which the children had been removed in 2017, and they agreed it was unsuitable.
Although the parents undisputedly love their children and did attempt to work toward reunification, and the pandemic was undeniably a huge blow to their efforts, they did not, from February 2020 through August 2020,
make any effort to communicate with the Department, and they could not stay on the right track to effectuate the permanency plan. By the time of the November 2020 hearing, the children had been in care for over three years and were entitled to more permanency than the parents, despite their best efforts, were able to provide.
In Re: M.B., et al., No. 1162, Sept. Term, 2020, 2021 WL 3184702, at *8-9. (Md. Ct. Spec. App. July 28, 2021) (unreported).
Following the change in the permanency plan, the parents’ visitation schedule with C.B. also shifted from weekly to monthly. The parents did not attend their first monthly visit in December 2020. While the parents attended most of the monthly visits in 2021 and 2023, they missed seven monthly visits in 2022.26 Ms. Galloway communicated in- person with the parents following their monthly visits, inquiring about their housing situation. Ms. Galloway and the parents also communicated by text once or twice a month, often through Mother’s phone.27 In most cases, Ms. Galloway initiated those communications with the parents.28
On January 21, 2021, DSS filed to terminate Mother’s and Father’s parental rights to C.B. This was more than three years after C.B. was first placed in foster care.29
C.B.’s Placement with the New Foster Home
In April 2021, C.B. was placed with Ms. B.M. and her husband, Mr. C.D., the child’s current foster parents. C.B. was about to turn four years old at the time.30
Following C.B.’s placement with his new foster family, the child showed significant improvements in his development. C.B. began forming relationships with Ms. M.’s extended family members, including her great-grandson who became his close playmate. Though previously described as “nonverbal,” C.B. began speaking and became less timid soon after his new foster placement. Ms. M. and her husband ensured C.B. attended doctors’ appointments and therapy sessions, including weekly speech therapy. She also enrolled C.B. in Pre-K, and then in kindergarten.
Ms. Galloway continued to visit C.B. in his foster home at least once a month. During her visits, Ms. Galloway observed that C.B. was healthy and communicative. She also found the child’s home environment to be clean and safe. Ms. Galloway also observed that C.B. appeared “comfortable” when interacting with his foster family, for example by asking questions or touching them.
In August 2022, about a year and a half after C.B.’s placement with Ms. M. and Mr. D., Dr. Ruth Zajdel, an expert in clinical psychology, parental fitness, and care giver bonding assessment,31 evaluated the foster parents’ parental fitness and bonding with the child. During the evaluation, both foster parents were highly attentive to C.B. Dr. Zajdel also observed that the foster parents praised and encouraged C.B. throughout the evaluation, and the child “smiled and appeared to be content when praise was given.” Based on her observation, Dr. Zajdel concluded that C.B. was “securely bonded” to his foster parents and that he “utilize[d] both of them as a safe base ”
Dr. Zajdel also evaluated Father’s and Mother’s parental fitness and bonding with C.B. in September 2022. While Father and Mother both seemed to enjoy spending time with C.B. and were capable of interacting with the child in a proper manner, Father was “ clearly more at ease while engaging with [C.B.] and had more success in having reciprocal play and conversation with him.” Dr. Zajdel observed that C.B., upon seeing Father, ran to him, calling “Daddy,” and spontaneously hugged him. Although C.B. appeared comfortable with both parents, the child did not “demonstrate behaviors that would suggest a secure bond with” Mother, such as seeking out physical touch, reassurance, and engagement with her. Instead, “when [C.B.] did engage with his parents, it was almost always with” Father.
Still, Dr. Zajdel concluded that both parents were “. not viable parental resources for [C.B.]” (emphasis in the original). Dr. Zajdel was concerned that the parents seemed unaware of C.B.’s emotional and developmental needs arising from his autism spectrum disorder diagnosis. Father, in particular, expressed that C.B. had been misdiagnosed and appeared “likely [to] be reluctant (or completely unwilling)” to seek any kind of services for the child, despite the fact that C.B. had already been receiving occupational, speech, and physical therapy, and was benefitted by an Individualized Education Plan (IEP). For her part, Mother expressed, “it won’t be an issue for [C.B.] to leave foster care and come to us . . . he doesn’t have a relationship with his foster parents like that,” notwithstanding Dr. Zajdel’s observation that the child had established secure and intimate bonds with his foster parents.
Dr. Zajdel was further troubled by both parents’ continued denial of the alleged neglect of C.B., because it “suggest[ed] that they are at risk of repeating the same neglectful patterns in the future should [C.B.] be returned to their care.” The parents claimed that C.B.’s rash, which resulted in his hospitalization, “was only localized to his neck and had only appeared hours before they took him to the hospital.” They also insisted that their home “was not nearly as bad as was suggested in court” and that Ms. Galloway had “lied about the condition of their home.” The parents, however, acknowledged that their current home did “not have appropriate accommodations” for C.B. and was not in a safe neighborhood. At the time, the parents were living rent-free on Ramsay Street, the same neighborhood they lived in with C.B. and his siblings back in November 2017.
Parents’ Continued Instability
A few months later, on November 11, 2022, when the parents sought housing assistance from Project PLASE for the second time, they were once again homeless, with Mother having recently given birth to their sixth child. The parents were placed in 60-day emergency housing, which was at a motel in Baltimore County. During the emergency period, Mother attended weekly case management meetings with Ms. Tamikko Green, a newly assigned case worker from Project PLASE; Father was said to be at work for most of the time and did not attend the meetings. Project PLASE’s goal for the parents was to obtain permanent housing within 90 days.
Project PLASE was unable to locate proper long-term housing for the parents, in part because they insisted on staying in a particular section of Baltimore County despite having at least seven family members.32 During the 60-day emergency period, Project PLASE could make only one property referral for the parents’ long-term housing, but the landlord declined to move forward.
Once the emergency period ended in early January of 2023, Father and Mother chose not to continue with Project PLASE’s housing program. Ms. Green reached out to the parents “two to three different occasions,” within a month after they left the program, but Father’s phone number was not active and Mother never responded. By the time the hearing on DSS’ guardianship petition for C.B. began, the parents were living from one hotel to another without securing a long-term housing.
The Guardianship Hearing
The twelve-day guardianship hearing, which is the subject of this appeal, began in February 2023 and concluded in May 2023.33 During DSS’ case, the following witnesses testified: 1) Mother; 2) Father; 3) Dr. Zajdel; 4) Ms. Galloway; 5) Ms. Josey Miles; 7) Ms. Green; 9) Ms. M, the current foster mother for C.B.; and 10) Ms. T.H., the foster parent for C.B.’s older female siblings, T.B. and B.B. Mother and Father also testified during their cases. The juvenile court heard testimony from the witnesses as to the facts summarized above.
According to Ms. M., C.B. was non-verbal and “couldn’t do a lot of things” when he first arrived at her home. C.B. also had not had a lot of interaction with other children and “had nobody to talk to.” As C.B. began attending Pre-K and then kindergarten, he also experienced some instances of temper tantrums at school due to his autism, which Ms. M. described as “a battle he fights.”
To help C.B.’s adjustment at school, Ms. M. had asked C.B.’s teacher to keep a “book recording” of his behaviors so that she could take it to the child’s psychiatrist. C.B. received speech and physical therapy at school and at the Kennedy Krieger Institute. Ms. M. also testified that she helped the child with his pronunciation and handwriting at home, and engaged in “a lot of talking” with him. Ms. M. testified that C.B. was “getting good.”
Ms. M. testified that C.B. was in good health and growing up, despite being “still a little scrawny.” In terms of pottytraining, Ms. M. indicated that C.B. was still “75 percent potty-trained,” just as when he first came to her home. Nonetheless, according to Ms. M., C.B. began wearing underwear to school instead of pampers. Ms. M. also stated that C.B. was in good health, and that she had been able to take C.B. to doctors’ appointments and therapy sessions. She acknowledged that she sometimes uses a cane due to arthritis, adding that the cane did not keep her “from taking care of C.B., taking him to his appointments, his doctors’ appointments, [and] his therapy sessions.”
Ms. M. also testified that her family members “just love[d]” C.B. and took him to various events and places, including family outings. C.B. also found a playmate in Ms. M.’s great-grandson, who helped the child’s communication
with others and adjustment to the new home environment. Ms. M. also testified that C.B. got along “real good” with her other foster child, Isaiah. Ms. M. testified that C.B. once told her, “this is my new family.”
Dr. Zajdel offered expert testimony, reiterating her observations and concerns from the parental fitness and bonding evaluation with Father, Mother, Ms. M. and her husband. Dr. Zajdel explained that severing C.B.’s secure bond with a caregiver could have many negative implications, including depression and other mental health problems, difficulties in school, behavioral difficulties, medical complications, and eating disorders. Given C.B.’s secure bond to Ms. M. and her husband, Dr. Zajdel emphasized the importance of the child maintaining a relationship with them.
While Dr. Zajdel acknowledged that C.B. was also securely bonded to Father, and severing the child’s bond with him could result in many negative implications too, she opined that both Father and Mother were unfit to parent C.B., given their failure to understand or meet the child’s developmental and emotional needs. Dr. Zajdel also testified that the parents failed to attend their originally-scheduled evaluations in August 2022, and then arrived late for the rescheduled evaluations the following month, citing their inability to pay parking fees. Dr. Zajdel testified that she called Ms. Galloway, who gave the parents money to pay the parking fees. Nonetheless, according to Dr. Zajdel, Father expressed frustration with Ms. Galloway and accused her of having lied about the condition of his previous home.
In the meantime, the parents’ housing remained unresolved throughout the guardianship proceedings. The parents continued to live at a hotel, and their interactions with C.B. did not go beyond the monthly visits at a fast-food restaurant. In April 2023, Ms. Galloway visited the hotel room where the parents were staying with their new born baby and Father’s sister. She concluded that the hotel room “needed to be cleaned,” and was “not healthy” for the baby.
In explaining his failure to secure any long-term housing after the eviction from the Santa Fe Avenue home, Father testified that the parents “made multiple attempts to find a house, but during the COVID and all, nobody was – during that time period until recently, nobody was contacting us back.” As to why the parents left his family member’s home on Ramsay Street, where they stayed after their eviction, near the end of 2020, Father explained that he wanted to get his children back and stay away from the unsafe neighborhood. He denied that his inability to secure stable housing “had [anything] to do with [him] being financially stable.” In fact, he testified that he was “financially stable.”
The parents repeatedly tried to assure the juvenile court that their lack of housing could be resolved at any time. On February 13, 2023, Father testified that he was still “waiting on [his] house to go through,” but expecting to move in “the next couple of days.” Three months later, on May 8, 2023, Mother admitted that the parents still had not located proper housing for C.B. Though Mother claimed that she had been working with a townhouse complex named “Riverview,” she was unable to provide a specific address for the potential
home, explaining, “We don’t have the exact address until the lease is signed.” Mother also could not provide any kind of timeframe for their move-in, other than stating, “We are waiting for one to come available.”
The parents also disputed many of the factual findings in previous orders regarding their home conditions. Both parents denied that their home was in deplorable condition or infested with insects at the time of the children’s removal. Father also denied that anyone else other than the parents and his sister resided at the Santa Fe Avenue home. Father explained that the home had a few regular visitors, including his own brother and brother-in-law, as well as Father’s mother, who temporarily stayed at the home after some surgery. Father denied that the Santa Fe Avenue home had any exposed wiring, broken doors and windows, or a broken toilet. He also denied that the home was infested with insects.
The parents also denied that they had neglected C.B. and the other children. Mother denied that C.B. was underweight when he was hospitalized in November 2017. Mother and Father both denied having ever been informed of C.B.’s infections, failure to thrive, or developmental delay, until the child was taken from them. Mother acknowledged that C.B. was suffering from “an infection,” but “that was it.” While Mother acknowledged that the children had head lice, she denied that they were wearing dirty clothes or in poor hygiene. She also denied that C.B.’s older sisters, B.B and T.B., were medically or educationally neglected. Both parents expressed that they could not understand why the children, including C.B., were removed from their care.
DSS then moved into evidence its Family Assessment and Investigative Report, also known as 181 Narrative, which outlined Ms. Ogunbiyi’s interviews and investigation outcomes prior to C.B.’s removal from the parents. The 181 Narrative contained Ms. Ogunbiyi’s own observation that the parents’ then-residence on Ramsay Street was “cluttered with junk[ ], like old ripped mattress in the living room, old ripped sofa in the living room, children bicycles and several items in the living room.” It also summarized an FIM on November 20, 2017, where the parents explained their home condition by stating, “I work all the time and the adults don’t clean up after the kids.” The 181 Narrative further stated that, at the same meeting, the parents were unable to explain why C.B. fell behind his immunization schedule. The 181 Narrative was admitted into evidence in its entirety.
Also contained in the 181 Narrative were statements from multiple healthcare practitioners at UMMC who attended to or observed C.B. during his hospitalization in November 2017. It included statements from some of C.B.’s treating physicians, including Dr. Slattery, who indicated that Mother had been “non-compliant with the baby’s medical needs,” and C.B.’s “medical needs could have been minimized had it been that this baby [saw] the doctor as he [was] supposed to.” The 181 Narrative also included a statement from Ms. Case, a nurse, who noted that C.B.’s plagiocephaly “could indicate[ ] that the baby was always left on his back for long period of time.” Mother raised a hearsay objection, arguing that the healthcare practitioners’ statements should be redacted, but the juvenile court overruled it.34
The parents also acknowledged that they never brought baby food, formula, diaper, or clothing items to their visits with C.B., though claiming that they were unaware that they could do so. Father initially testified that he “was never informed to,” and then stated that he was told “we didn’t have to by CPS.” Father also testified that Ms. Galloway told the parents “to bring [C.B.] nothing . . . That he was not allowed to have nothing.” Father conceded that he never asked the court as to whether he could bring gifts or clothing items for C.B., but it was “because . . . Ms. Galloway told us something else, told us we couldn’t.” Mother also testified that she could not bring items for C.B. and that she believed “that had to do with COVID.” Mother later testified that the parents “were not to bring anything” from the very beginning of this case. Ms. Galloway denied having ever discussed the subject with the parents.
Juvenile Court’s Ruling
On the final day of the guardianship hearing, the juvenile court put its oral ruling on the record, addressing each of the “best interest” factors set forth in Md. Code Ann., Fam. Law (“FL”) § 5-323(d).35 best interests for the child to be returned to the parent's home, including: the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent's contribution to a reasonable part of the child's care and support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently unable to care for the child's immediate and ongoing physical or psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting parental adjustment so that the child could be returned to the parent within an ascertainable time not to exceed 18 months from the date of placement unless the juvenile court makes a specific finding that it is in the child's best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect;
(ii) 1.
A. on admission to a hospital for the child's delivery, the mother tested positive for a drug as evidenced by a positive toxicology test; or
B. upon the birth of the child, the child tested positive for a drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by a qualified addictions specialist, as defined in § 5-1201 of this title, or by a physician or psychologist, as defined in the Health Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the child; and
(4)(i) the child's emotional ties with and feelings toward the child's parents, the child's siblings, and others who may affect the child's best interests significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
As to the factors 5-323(d) factors, number 1, Roman Numeral I, the question pertains to all services offered to the parent or parents for the child’s placement, whether offered by local department, another agency or a professional.
After [C.B.] was admitted to the hospital, CPS inspected the home and reported that the home was in deplorable condition. The home was cluttered and infest with fleas and flies. [C.B.], however, was placed in foster care immediately after being discharged from the hospital. He remained in foster care in the same home until DSS removed him. DSS placed [C.B.] with Ms. M. and Mr. D., I believe, in 2021. There it seems that C. had began to thrive. His verbal abilities have improved and he no longer requires weekly physical therapy.
Since [C.B.] was placed in foster care directly from the hospital, [DSS] had no opportunity to provide any services to the parents prior to [C.B.]’s placement. I’ll note that [C.B.] was approximately six-months-old at the time of his hospitalization.
Roman Numeral II, ‘The extent, nature and timeliness of services offered by a local department and to facilitate reunion of a child and parents.’ DSS held regular Family Involved Meetings to facilitate efforts at reunion. The plan at first was, in fact, reunion or reunification. DSS offered two Service Agreements to [Mother] and one Service Agreement to [Father]. DSS could have and should have offered Service Agreements to the parents every six months. However, that was not done for various reasons.
Roman Numeral III, ‘The extent of which a local department and parent have fulfilled their obligation under a Social Services Agreement, if any.’ Both, [Mother] and [Father] complied with most of the tasks and their
respective Service Agreements. The[y] completed parenting classes, drug testing, obtained housing and visited C.B. However, at times the parents were unable or unavailable to [DSS]. There were times that [Father’s] phone was disconnected and he changed his phone number on two occasions. Both [Father] and [Mother] were unavailable to DSS because they failed to keep DSS apprised of their living situation after they were evicted.
The one matter in the Service Agreements that this Court recalls not being completed was the requirement for family counseling. The results -- number two, ‘The results of the parents’ efforts to adjust to parents’ circumstances, condition or conduct to make it in the child’s best interest for the child to be returned to the parents’ home, Roman Numeral I, it included, ‘The extent to which the parent has obtained regular contact – or maintained regular contact with the child.’ As an aside, Mr. B. has proven, based on his testimony, to be a hard worke[r] in the field of security. He has maintained regular employment for a substantial period of time, although there was a time during the course of these proceedings he was not employed. He has testified that he works 80 to 90 hours a week at times. [Mother] is not employed at this point. She stopped working after she learned that she was pregnant.
Both seemed to have struggled with the ability to adjust their circumstances for the best interest of [C.B.] Their living situation has been one of a significant roller coaster ride and I don’t wish to minimize that by staying that, but it’s been up and down. They were found in a home that was not suitable for the children. They got on the move and got in contact with the Veterans Administration and obtained suitable housing or at least the makings of suitable housing but they didn’t go too much beyond that point, ultimately losing that home. They had been in a home that was deplorable and they began to live with family members from time to time, and they’ve lived in hotels. Even when they lived at the Sante Fe address, they seemed to focus more on extended family than immediate family. Ultimately, [DSS] observed a male sleeping in one of the children’s rooms on the top bunk at the Sante Fe address, if I remember correctly and had to be told that no one, especially adults should be sleeping in the children’s beds that [DSS] provided for them.
‘The extent to which the parent has maintained regular contact with the child,’ [Mother and Father] have maintained consistent contact with C. for the most part. Initially their visits were weekly, and then they were changed to monthly. However, for the most part, they did make their visits a large part because Ms. Galloway would contact [Mother] about the pending visits.
The local [DSS] of which the child was committed in terms of complying with their responsibilities, the parental responsibilities, neither [Mother], nor [Father] maintained consistent contact with [DSS]. The
overwhelming weight of the evidence in the case said Ms. Galloway did the contacting.
And not only did Ms. Galloway have challenges making contact, although it was easier to reach [Mother] than [Father], even the service Project [PLASE] providers was concerned about being able to contact [Father] and had to rely solely on contacting [Mother].
‘Contact with the caregiver,’ there’s no evidence that [Father] nor [Mother] had direct contact with the care providers. It was reported that [DSS’] Transportation Unit took [C.B.] to his weekly and monthly visits with his parents.
Roman numeral II, ‘The parents contribution to a reasonable part of the child’s care and support if the parent is financially able to do so.’ For the most part, [Father] has been financially able to contribute to the care of [C.B.] At times [Mother] has been able to contribute to the care of [C.B.], and that would be his mental health, physical and medical needs. However, neither has provided any meaningful support to [C.B.] They may have purchased food at the visits or brought food to the visits, but in terms of meaningful caring for [C.B.] in a meaningful way is providing for his daily needs and sustenance. They did not do that. And there was testimony that Ms. Galloway or others at [DSS] informed them that they could not or should not -- there’s no evidence that there was any response to any assertions that said that parents could not or should not support their children, but either bringing gifts, clothing, et cetera.
Roman numeral III, ‘The existence of a parental disability that makes the parent consistently unable to care for the child’s needs and ongoing physical or psychological needs for long periods.’ [C.B.] is now six-years-old. He has been in care since he was six-months-old. The permanency plan changed. I believe it was reunification at first or changed to a concurrent plan and a plan that went to guardianship and custody, and the plan was extended.
Although [DSS] has failed to consistently offer Service Agreements, the[y] consistently conducted Family Involved Meetings and facilitated the visitation with [C.B.]
Although [DSS] did not provide housing for the parents, Project [PLASE] did, through the Veterans Administration. They did assist in providing housing and they provided funds initially to get them started in the Sante Fe address housing.
However, at some point, for a myriad of reasons, this family was evicted and they moved back to either living with family, staying at the Red Roof Inn, to an Extended Stay hotel, and it is problematic for this Court that [Father] is working and is able to afford to stay in a hotel on a
daily basis for an extended period of time, and with that energy, staying in a hotel room and those resources, that could have very easily been converted to finding a suitable, stable home unless they have created an environment where no one wants to rent to them. That does not seem to be the case in this situation, but it is a possibility.
Another concern is that, and the Court mentioned that earlier, even when the parents were at the Sante Fe Address, DSS found the parents again allowed extended family members to be part of the home, along with their family members.
On one occasion, [DSS] went to the home and [Mother] refused to allow DSS workers to inspect certain rooms or certain locations in the home. [Mother] refused to allow Mr. Galloway to have access to the basement. The rationale for that was that some family members, extended family members were living down there.
As to the bedroom that [Mother] denied access to, she stated that [Father] stored his weapons there. [Mother] has stated and it’s not been disputed that he works in security, and it is of great concern to this Court that [Father], if in fact [Mother’s] statement is true, would store his weapons, whatever they are, in the child’s room or the children’s room.
Number 3(i), ‘The parent has abused or neglected the child or a minor and the seriousness of the abuse or neglect.’ There’s no evidence that the parents have abused [C.B.] However, there is evidence that the parents neglected [C.B.] It is an understatement to say that the medical condition that brought [C.B.] into care should have been addressed sooner. Parents should have keeping up with and inquiring about [C.B.]’s medical appointments.
In addition, [Mother] admitted to diluting [C.B.]’s baby formula. There’s some concerns that she might run out of formula that was listed in one of the exhibits. However, her solution was not to [sic] dilute the baby’s formula.
According to the evidence, some of the other children who were of school age were not in school because they did not get immunized, according to the requirements. All of these concerns were concerns within the control of the parents and amounts to neglect at least.
Roman Numeral ii(1)(A), ‘On admission to a hospital for the child’s delivery, mother tested positive for a drug as evidenced by a positive toxicology test.’ There is no evidence that [Mother] tested positive for drugs at [C.B.]’s birth, and there’s evidence that this Court recalls or (indiscernible)
‘Upon the birth of the child, the child tested positive.’ The Court does not recall toxicology reports indicating that [C.B.] tested positive.
‘Mother refused the level of drug treatment.’ There’s no evidence that Mother has refused a level of drug treatment and no evidence that Father refused a level of -- any level of drug treatment they submitted as far as this Court understands the evidence.
Roman Numeral III, ‘The parents subjected the child to chronic abuse; chronic and life-threatening neglect; sexual abuse; or torture.’ Certainly there’s no evidence of torture, sexual abuse or chronic -- let me back up. As far as the abuse, there’s no evidence of chronic abuse, but there is evidence of chronic -- to the extent what happened between the child’s birth and six months, there’s some evidence of threatening neglect, lifethreatening neglect. However, since the hospitalization, [C.B.] has not lived with the family, and therefore, there’s no way they could have subjected him chronic and lifethreatening neglect.
Roman Numeral IV, ‘(iv) The parent has been convicted in any state or any court of the United States of a crime of violence against a minor offspring of the parent; the child; another parent of the child.’ There’s no evidence of convictions of either parent against the other or a minor. There’s no evidence that either parent has engaged in conduct amounting to aiding or abetting, conspiring or soliciting or committing a crime against each other or the child or [ ] minor children.
Roman Numeral V, ‘The parent has voluntarily lost parental rights to a sibling of the child.’ There’s no evidence that they have lost parental rights at this point.
‘The child's emotional ties with and feelings towards the child's parents, the child's siblings, and others who may affect the child's best interests significantly.’ There’s evidence that [C.B.] has emotional ties to both, his Father and his Mother. Reportedly, and it’s undisputed [C.B.] enjoys his visits with his parents. As to the siblings, the Court does not recall any evidence that he’s any significant contact with the siblings since being hospitalized, although there were times that they did -if the Court remembers correctly, they did have some outings together, but it’s not clear whether the children were there for each visit.
‘The Child’s adjustment to the community.’ [C.B.’s] community had been in foster care, first, with one set of foster parents and then with another set of foster parents. With respect to the latter, [C.B.] takes part in activities of the community with his foster family. [C.B.] has developed a fondness for playing on the trampoline and has taken part in other activities with the family.
[C.B.’s] adjustment to the home, he is now in placement. He’s been in placement for a period, and he has adjusted well. I think was 75 percent potty trained when we went into placement, I believe, at the last place. And now, that seems to be [sic] an issue at all.
[C.B.’s] placement is his home at this point. And again, he’s been 5 1/2 years in placement. In school, [C.B.] has been exposed to occupational therapy. He’s also had speech therapy and physical therapy outside of school. I’m aware there’s evidence that [C.B.] does not need physical therapy any longer.
‘The Child’s feelings about severance of the parent/child relationship.’ I think (indiscernible) captured that best, given [C.B.’s] developmental delays, it was unclear how [C.B.] feels about the possible severance of the parent/ child relationship. It is clear to this Court that [C.B.] knows his parents, as through the testimony. He’s delighted to see them either running to them or walking towards them or speaking to them and enjoying even the time that he played or they played with him[.] [O]n occasion some of the children or other children played with him.
‘The likely impact of terminating parental rights on the child’s wellbeing.’ It’s certainly difficult to know whether and how terminating the parental right or the parent/ child relationship will impact [C.B.] emotionally. One of the concerns is, however, that if this Courts grants the termination of parental rights, it will help solidify a consistency and a stability that [C.B.] has not known.
All the exceptional circumstances in this situation, [C.B.] has been in care for 5 1/2 years. That’s an exceptional circumstance. There are strict rules that we’re supposed to abide by in trying to bring stability and this process has gone well beyond that.
[C.B.] has developmental concerns and requires attention that maybe other children wouldn’t have required. As I said earlier, the parents have demonstrated their love for [C.B.], but they’ve not demonstrated their ability to care for [C.B.] They’ve demonstrated an ability to come to Court, an ability to go to Family Involved Meetings, but they know how to obtain resources, such as they were able to get a house that had the makings of a stable house or stable or safe place for [C.B.], but what seems to be missing is the discipline necessary to maintain those resources to maintain a safe environment for [C.B.] They do exceptionally well in unsupervised visits with [C.B.], based on the evidence, but they’ve failed to demonstrate the ability to parent a child such as [C.B.] Parent a child means providing for that child, not only month-to-month visits or once-a-week visits, but providing for the welfare of their child, the needs of their child, understanding the needs of their child, when a child needs involved medical attention or other types of attention, educational concerns.
This has been a struggle for this Court, but under all the circumstances, this Court finds that [Mother] is not fit to remain in a parental relationship with [C.B.]; [Father] is not fit to remain in a parental relationship with [C.B.] Exceptional circumstances do exist as the Court has
outlined. [Mother’s and Father’s] parental relationship is detrimental to the wellbeing of [C.B.] The Court finds that [DSS] has made reasonable efforts to finalize a permanency plan of custody and guardianship by locating two sets of care providers, ensuring that [C.B.] receive the necessary medical and health services, educational services and therapy, also provided visitation opportunities to the parents and conducted regular Family Involvement Meeting with the parents.[36] They’ve inspect[ed] the homes to help determine how the visitation should take place. Under all the circumstances, this Court is granting the Motion or the Petition to Terminate the Parental Rights of [Mother] and [Father].[37]
Additional facts will be supplemented below, as needed.
DISCUSSION
Evidentiary Ruling of the Juvenile Court
Mother contends that the juvenile court erred by admitting the entire 181 Narrative and failing to exclude statements of UMMC healthcare practitioners because the court never assessed their “knowledge, skill, experience, training or education” under Maryland Rule 5-702, which governs testimony of expert witnesses. She further argues that by admitting those “lay statements of the healthcare practitioners,” the juvenile court violated its due process requirement to evaluate ‘whether evidence proffered for admission is sufficiently reliable and probative . . .’” (quoting In re Billy W., 387 Md. 405, 434 (2005)). DSS responds that Mother’s argument is unpreserved for review and, even if it were, the argument lacks merits. We agree with DSS. Mother has failed to preserve her argument for our review because her objection below was only based on hearsay, not Rule 5-702.
[COUNSEL FOR MOTHER:] . . . Going down to the bottom of the page, that starts, ‘This worker left the hospital after confirming from the nurse Ms. [ ] Case,’ et cetera, et cetera, that that be redacted as being hearsay Because it refers to hearsay, a hearsay statement by the nurse, Ms. Case.
On the next page, . . . going down to the fourth line I’m asking that from where it says , “Ms. Case indicated that,” for the next several sentences down to line 10, that all that be redacted. It’s basically statements that are hearsay that apparently a nurse, Ms. Case, is saying to the worker.
The last sentence that I’m asking to be redacted would be, ‘Ms. Case said that this could not have been the case when seeing the extent of the spread of the rash.’
On that same page, going down to the next paragraph that begins, ‘Dr. Slattery.’ That sentence, that first sentence, I’m not asking that that be redacted. But I am asking that starting with the second sentence, I would proffer that starts, ‘Dr. Slattery disclosed to this worker that,’ that from there down to the next to the lasts line on the page, that everything in between be redacted.
So down to – the last sentence that I’m asking to be redacted, the last full sentence on that page would be at the bottom, where it says, ‘The doctors noted his limbs were,’ et cetera, et cetera.
And your Honor, I’m asking that all that material that I’ve mentioned be redacted because it is hearsay, statements by the healthcare personnel. (cleaned up) (emphasis added).
Ordinarily, once “counsel provides the trial judge with specific grounds for an objection,” only those specific grounds can be brought for our review. Anderson v. Litzenberg, 115 Md. App. 549, 569 (1997). “All other grounds for the objection, including those appearing for the first time in a party’s appellate brief, are deemed waived.” Id.; see also Grandison v. State, 341 Md. 175, 221 (1995) (“It is well established that appellate review of an evidentiary ruling, when a specific objection was made, is limited to the ground assigned at the time of the objection.”). Accordingly, we need not review the juvenile court’s ruling on the admissibility of the healthcare practitioners’ statements in the 181 Narrative. Grandison, 431 Md. at 221.
Even if we overlook Mother’s waiver, we see no error in the juvenile court’s ruling that the entire 181 Narrative, including the healthcare practitioners’ statements, squarely falls within the public records exception to the hearsay rule. At the guardianship hearing, overruling Mother’s objection, the juvenile court explained its rationale. Generally speaking, most of what has been objected to, [DSS] had a duty to investigate and to report on. And so I’m going to admit – I’m going to overrule the objection and admit the document And all of the other objections, the motion to strike are denied because as I said, [DSS] had a duty to investigate and report. And in fact, this report reflects the duties – I mean, the summaries of this report to a large extent, the summaries of their findings of the report, although they acknowledge some things that were not summarized.
Under the public records exception, “a memorandum, report, record, statement, or data compilation made by a public agency setting forth matters observed pursuant to a duty imposed by law, as to which matters there was a duty to report” is presumptively admissible, Md. Rule 5-803(b) (8)(A), unless “the source of information or the method or circumstance of the preparation of the record indicate that the record or the information lacks trustworthiness.” Md. Rule 5-803(b)(8)(B). “[T]he burden rests upon the party opposing the introduction of a public record to demonstrate the existence of negative factors sufficient to overcome the presumption of reliability.” In re H.R., 238 Md. App. 374, 406 (2018) (citing Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 612 (1985)).
In re H.R. is on point. In that case, Father argued that the juvenile court erred by taking judicial notice of DSS’ reports to the court. In re H.R., 238 Md. App. at 401. DSS countered that its court reports were properly admitted under the public records exception. Id. We agreed with DSS, reasoning
that the reports were prepared by DSS “pursuant to the duty imposed by law,” and thus “presumptively admissible . . . unless Father could show that they were unreliable.” Id. at 406 (citing Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 3-826(a)(1)). Because Father there failed to show that the court reports were untrustworthy, apart from asserting that they were “self-serving position papers,” we concluded that the reports were admissible as public records. In re H.R., 238 Md. App. at 406-07.
As the juvenile court noted at the guardianship hearing here, the 181 Narrative was prepared by DSS “pursuant to the duty imposed by law,” and therefore presumed to be admissible under Rule 5-803(b)(8)(A). In re H.R., 238 Md. App. at 406. The Code of Maryland Regulations (COMAR) 07.02.07.01(B) requires that DSS, through CPS, “promptly determine whether to investigate a report or to initiate a comprehensive family assessment, complete a timely investigation or family assessment appropriate to the circumstances, . . . [and] after conducting a family assessment, complete and distribute a written assessment addressing safety and risk.” (cleaned up). Likewise, CPS, as an investigative arm of DSS, is responsible for “stop[ping] and prevent[ing] child abuse and neglect through investigation of child abuse and neglect [and performing] [c]omprehensive assessment of safety, risk, and service needs.” COMAR 07.02.07.01(A). Within five business days after completing an investigation, DSS must prepare a “written report of its disposition and any necessary services.” COMAR 07.02.07.13(C).
Mother’s claim that the juvenile court did not assess the reliability and probative value of the healthcare practitioners’ statements fails to rebut their presumed admissibility under the public records exception. The hearsay nature of those statements, by itself, does not render the 181 Narrative any less trustworthy. Ellsworth, 303 Md. at 607. By definition, investigation reports like the 181 Narrative “ . . . are not the product of firsthand knowledge on the part of the declarant.” Id. at 608. Public records are generally deemed trustworthy due to the reliability of the investigating public agencies and their lack of any motive; Mother does not challenge either aspect.38 Id. at 607.
But even if any of the healthcare practitioners’ statements, including their medical opinions, were admitted in error, Mother still fails to explain how she was prejudiced by the admission of these statements or how their admission affected the juvenile court’s decision to terminate her parental rights. Under Maryland Rules, “error may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling ” Md. Rule 5-103(a). An error in admitting evidence is not reviewable, let alone cause for reversal, unless the complaining party shows both error and prejudice. In re Yve S., 373 Md. 551, 616 (2003) (“[T]he complaining party has the burden of showing prejudice”); In re Adriana T., 208 Md. App. 545, 572 (2012) (observing that it is “well settled in Maryland that a judgment in a civil case will not be reversed in the absence of a showing of error and prejudice of the appealing party) (emphasis in the original). Moreover, “prejudice means that it is likely that the outcome
of the case was negatively affected by the court’s error.” In re Adriana T., 208 Md. App. at 572.
Because the statements about which Mother complains, or their substance, were covered by other evidence admitted during the guardianship hearing, Mother cannot show that she was prejudiced by the cumulative inclusion of those statements in DSS’s 181 Narrative. See In re H.R., 238 Md. App. at 406 (finding no prejudice in admitting DSS’ reports because opinion testimony at the guardianship hearing covered the same issues). The healthcare providers’ statements about which Mother complains are as follows:
This worker left the hospital after confirming from the nurse Ms. Case that the baby is not for ready discharge anytime soon.
***
Ms. Case indicated that she was not the one that made the report, neither was she the nurse that admitted the baby, but with the past report and the present condition of the baby it was concerning that [the baby] was not meeting his milestone. She stated that the baby could not sit, or maintain any self-tone at five months, and that the baby presented with flatness at the back of the head, which could indicate that the baby was always left on his back for long period of time. Ms. Case said that the mother the impression [sic] that two days after she noticed the rash, was when she brought the baby to the hospital. Ms. Case said that this could not have been the case, when seeing the extent of the spread of the rash.
***
Dr. Slattery disclosed to this worker that the caregiver [Mother] has been non-compliant with the baby’s medical needs. The baby has not seen the doctor for his shots, there had been several missed appointments. Mr. Slattery stated that the baby medical issues could have been minimized had it been that this baby sees the doctor as be supposed to. The PCP would have alerted the caregiver about the baby failure to thrive issue, and the rash would not have spread like that.
Dr. Lee on the other bands stated that its [sic] unsure if the child is having some genetic problems, but the fact is that caregiver was not taking the baby for his appointments. She indicated that the baby rash was very bad before the caregiver brought the baby to the hospital.
Dr. Lee also stated that the flatness at the back of the head could be as result of genetic problems, but it could also be as result of neglect, where the baby was always made to be on his back for several hours. She said that the failure to thrive could be as result of lack of proper feeding or lack of medical care.
Dr. said that the baby is sure improving daily.
Ms. Case, the nurse, after getting back to her office, printed out the report for this worker. She indicated that the tests that were carried out on the baby tested positive
to herpes, candias and staph. Ms. Case said that there is no discharge date for the baby yet, because, the baby is yet to recover from the from the skin infection, plus the fact that after the baby is totally recovered, the hospital will treat the baby with another 6 days antibiotics, which cannot be taken home by the mother to administer, because it is unsure if the caregiver could be trusted to administer it for one month. [sic]
The rash was located on the baby’s neck and consisted of yeast, mersa, encino (Sp?) [sic] bacteria. and HSV herpes. When [C.B.] arrived the rash was open in some spots and was bleeding. When asked if the condition of the rash could have become fatal, the doctors answered that the infection could have gotten into the bloodstream and caused fatality. However, that is only possibility. It was not inevitable. The baby also presented with satellite lesions on the face and the heel: of the head as the rash/infection was beginning to spread from the neck. Additionally, the child had one single bug bite on his left leg.
The doctors explained that [C.B.] was also experiencing an increase in muscular tone of his arms and legs. The doctors noted his limbs were harder to move around then typical six- month-old baby. (cleaned up).
DSS contends that the medical records from UMMC, comprising over 500 pages, include diagnoses and medical opinions that are “cumulative” to those in the healthcare practitioners’ statements, and we agree. See In re Adoption/ Guardianship No 95195062/CAD in Circuit Court for Balt. City, 116 Md. App. 443, 465 (1997) (“Cumulative evidence is evidence that is substantially same”). During the guardianship hearing, Mother also admitted that the medical records and the 181 Narrative contained the same diagnoses for C.B., including herpes, MRSA, impetigo, and plagiocephaly.
[THE JUVENILE COURT:] Do you dispute that the medical records indicate that [C.B.] was diagnosed with herpes, with so the record is clear, another diagnosis is, ‘has MRSA, a severe case of,’ I am going to spell it, I-M-PE-T-I-G-O, and P-L-A-G-I-O-C-E-P-H-A-L-Y. Do you dispute the medical records include that?
[COUNSEL FOR MOTHER:] I do not dispute that.
As DSS points out, the medical records contain “the same information” as the UMMC healthcare practitioners’ statements in the 181 Narrative, including their “opinions and presumptions” regarding C.B.’s medical conditions and their possible causes. The records note that the parents’ living conditions were “questionable and most likely contributed” to C.B.’s rash, which was worsening with satellite lesions. The records describe C.B.’s “gross and fine motor developmental delays,” including his poor head control and inability to “sit unassisted,” and highlight the child’s “significant plagiocephaly with hair loss” in the back of his head. Regarding C.B.’s failure to thrive, the
records state that the child’s “weight was found to be at the 50th percentile for a 2[-] month old, and his length is at the 50th percentile for a 3[-] month old,” and that his weight fell “from 22nd [percentile] at birth to 1st [percentile] at current weight.” The records also noted that C.B., then six-months old, had not had “his 4- or 6-month vaccines yet.” Mother’s statements, such as that she gave C.B. “cow’s milk diluted with water” were also included in the medical records.39
Even if the juvenile court had excluded all of the healthcare practitioners’ statements from the 181 Narrative, there were still enough evidence for the court to make findings about C.B.’s medical conditions and their potential causes. Any error in admitting the healthcare practitioners’ statements was therefore harmless.
The Juvenile Court’s Termination of Parental Rights
a. The Parents’ Contentions
Both parents challenge the juvenile court’s ruling of terminating their parental rights on the following basis: first, DSS failed to show that it had made reasonable efforts towards the parents’ reunification with C.B.; second, there was no clear and convincing evidence that it was C.B.’s best interest to terminate parental rights; third, the juvenile court failed to give adequate consideration to all of the “best interest” factors under FL § 5-323(d)(1)-(4), particularly C.B.’s “clear loving bond” with his parents. We disagree with all of these arguments.
b. Standards of Review
In reviewing a juvenile court’s decision to terminate parental rights, we use three distinct, but interrelated standards. In re Adoption of Ta’Niya C., 417 Md. 90, 100 (2010). We leave the factual findings by the juvenile court undisturbed unless they are clearly erroneous. Id. (citation omitted). We review legal questions de novo, and if the juvenile court erred, further proceedings are ordinarily required unless the error is harmless. Id. Last, the juvenile court’s “ultimate conclusion,” as long as it is “founded upon sound legal principles and based upon factual findings that are not clearly erroneous,” will be “disturbed only if there has been a clear abuse of discretion.” Id.; see also In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 46 (2017) (noting that we give the juvenile court’s best interest determination “great deference, unless it is arbitrary or clearly wrong.”) (citation omitted).
“[A]n abuse of discretion exists ‘where no reasonable person would take the view adopted by the [juvenile] court, or when the court acts without reference to any guiding rules or principles.’” In re M., 251 Md. App. 86, 111 (2021) (citation omitted). In particular, for us to find that the juvenile court abused its discretion in its ultimate decision to terminate parental rights, “the decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’” In re Shirley B., 419 Md. 1, 19 (2011) (quoting In re Yve S., 373 Md. at 583-84).
c. Analysis
i.
DSS’ Reunification Efforts
Before finding that termination of parental rights is in the child’s best interest, the juvenile court must consider the reasonableness of DSS’ services offered to “reunify families
and to make it possible for a child to safely return to the child’s home.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 499-500 (2007) (citing former FL § 5-525(d), now § 5-525(e)(1)) (cleaned up). This assessment is made on a case-by-case basis. In re Adoption/Guardianship of H.W., 460 Md. 201, 234 (2018). In determining whether DSS’ services were reasonable, the juvenile court must consider “the timeliness, nature, and extent of services offered by DSS,” “the extent to which both [DSS and the parents] have fulfilled their obligations” under their service agreements, and “whether additional services would be likely to bring about a sufficient and lasting parental adjustment” for reunification. In re Rashawn H., 402 Md. at 500. Here, the juvenile court thoroughly considered all the relevant factors and assessed the reasonableness of the services offered by DSS.40
Roman Numeral II, ‘The extent, nature, and timeliness of services offered by a local department and to facilitate reunion of a child and parents.’ DSS held regular Family Involved Meetings to facilitate efforts at reunion. The plan at first was, in fact, reunion or reunification. DSS offered two Service Agreements to [Mother] and one Service Agreement to [Father]. DSS could have and should have offered Service Agreements to the parents every six months. However, that was not done for various reasons.
Roman Numeral III, ‘The extent of which a local department and parent have fulfilled their obligation under a Social Services Agreement, if any.’ Both [Mother] and [Father] complied with most of the tasks and their respective Service Agreements. The[y] completed parenting classes, drug testing, obtained housing and visited [C.B.]
However, at times the parents were unable or unavailable to the [DSS]. There were times that [Father’s] phone was disconnected and he changed his phone number on two occasions. Both [Father] and [Mother] were unavailable to DSS because they failed to keep [DSS] apprised of their living situation after they were evicted.
The one matter in the Service Agreements that this Court recalls not being completed was the requirement for family counseling.
* * *
Although the [DSS] has failed to consistently offer Service Agreement, the[y] consistently conducted Family Involved Meetings and facilitated the visitation with [C.B.]
Although the [DSS] did not provide housing for the parents, Project [PLASE] did, through the Veterans Administration. They did assist in providing housing and they provided funds initially to get them started in the Santa Fe address housing. (emphasis added).
In sum, considering the other resources that were available to the parents, the juvenile court did not find DSS’ overall efforts to be unreasonably deficient in achieving “a sufficient and lasting parental adjustment” for reunification. In re Rashawn H., 402 Md. at 500. While acknowledging that DSS “could have and should have offered” service agreements to the parents every six months and failed to do so, the juvenile court found that DSS made other efforts, such as holding regular FIMs, contacting the parents, and facilitating their visits with C.B. The juvenile court also found that, even when DSS did offer service agreements, the parents did not comply with many terms of the agreements, such as participating in family counseling and keeping DSS apprised of their home environment. The juvenile court further noted the parents’ repeated failure to make themselves available to DSS, as “there were times that [Father’s] phone was disconnected and he changed his phone number on two occasions.”
We see no clear error in the juvenile court’s findings regarding DSS’ efforts to facilitate reunification. See In re Shirley B., 419 Md. at 18 (“[W]e apply the clearly erroneous standard when reviewing the juvenile court’s factual finding that the Department made reasonable efforts to preserve and reunify the family”). “Under the clearly erroneous standard, we look at the record in the light most favorable to the prevailing party, and if there is any competent, material evidence to support the [juvenile] court’s findings of fact, we cannot hold that those findings are clearly erroneous.” Fitzzaland v. Zahn, 218 Md. App. 312, 322 (2014). Neither parent assert that the juvenile court’s factual findings were not based on competent evidence.
Instead, the parents point to what they think DSS should have done and claim that DSS’ failure to do so renders its reunification efforts less than reasonable. While Father does not deny that his phone was disconnected for a period of time and that his phone number was changed twice over the past five and half years, he argues that DSS should have sent a letter to his last known address or contacted his family members. Mother likewise argues that DSS should have assisted the parents “in getting back on their feet.”
Although the parents’ arguments, in essence, amount to disagreements with the juvenile court’s weighing of the evidence, “our function is not to determine whether, on the evidence, we might have reached a different conclusion.” In re Abiagail C., 138 Md. App. 570, 587 (2001) (cleaned up); see also In re J.R., 246 Md. App 707, 751 (2020) (noting that the juvenile court is “in a far better position than is an appellate court” to weigh evidence) (citation omitted).
At any rate, DSS’ reunification efforts do not need to be perfect. In re H.W., 460 Md. at 234. DSS is “not obliged to find employment for the parent, to find and pay for permanent and suitable housing for the family, to bring the parent out of poverty, or to cure or ameliorate any disability that prevents the parent from being able to care for the child.” In re Rashawn H., 402 Md. at 500. Nor is DSS required to allow children to live in temporary shelters or to grow up in permanent chaos and instability . . . because their parents, even with reasonable assistance from DSS, continue to exhibit an inability or unwillingness to provide
minimally acceptable shelter, sustenance, and support for them.
In re Shirley B., 419 Md. at 26 (quoting In re Rashawn H., 402 Md. at 500-01) (cleaned up). Rather, DSS’ efforts only need to be “reasonable” enough to enable the parents “. . . within a reasonable time . . . to care for the child in a way that does not endanger the child’s welfare.” In re Rashawn H., 402 Md. at 499-500 (emphasis added).
Here, the juvenile court found that, despite reasonable assistance, the parents remained unable to care for C.B. in a manner that does not endanger the child’s welfare, because they failed to maintain and utilize the assistance they received. See In re Rashawn H., 402 Md. at 499-500. For most of the five-and-half year period, as the juvenile court found, the parents were unable to provide a suitable home environment for C.B. or maintain regular contact with DSS, despite continued assistance from both DSS and Project PLASE. The evidence shows that DSS gave the parents a referral to a housing assistance program at the Veterans Administration, and that the parents did become enrolled in Project PLASE thereafter. Nevertheless, even when the parents found stable home environment at Santa Fe Avenue, they did not comply with directives from DSS and the juvenile court, failed home health inspections, and refused a re-inspection. On multiple occasions, particularly following their eviction from the Santa Fe Avenue home, the parents did not keep DSS informed of their living situation.41 For months after the eviction, the parents did not respond to Ms. Galloway’s text messages and phone calls and missed multiple weekly visits with C.B. Because the competent and material evidence suggested that the parents, even with additional assistance, would continue to “exhibit an inability [and] unwillingness to provide minimally acceptable shelter, sustenance, and support” for C.B., the juvenile court did not clearly err in finding that DSS’ reunification efforts were reasonable. In re Rashawn H., 402 Md. at 501.
ii. Sufficiency of Evidence
We now discuss whether the juvenile court’s ruling terminating parental rights was supported by clear and convincing evidence. In a guardianship proceeding, “the focus of the inquiry . . . revolves around whether the continued parental relationship is detrimental to the child’s best interest.” In re H.W., 460 Md. at 231. Where the child’s best interest is the primary consideration, the juvenile court’s conclusion “is accorded great deference, unless it is arbitrary or clearly wrong.” In re C.A. & D.A., 234 Md. App. at 46.
The juvenile court may grant a petition for guardianship when, after considering the factors under FL § 5-323(d), it finds by clear and convincing evidence that parents are unfit or that exceptional circumstances exist that would make the continued relationship detrimental to the child’s best interest. See In re H.W. 460 Md. at 217.42 In this case, the juvenile court made both findings.
All the exceptional circumstances in the situation, [C.B.] has been in care for 5 1/2 years. That’s an exceptional circumstance. There are strict rules that we’re supposed to abide by in trying to bring stability and this process has gone well beyond that.
[C.B.] has developmental concerns and requires attention that maybe other children wouldn’t have required. As I said earlier, the parents have demonstrated their love for [C.B.] but they’ve not demonstrated their ability to care for [C.B.] They’ve demonstrated an ability to come to Court, an ability to go to Family Involved Meetings, but they know how to obtain resources, such as they were able to get a house that had the makings of a stable house or stable or safe place for [C.B.,] but what seems to be missing is the discipline necessary to maintain those resources to maintain a safe environment for [C.B.] They do exceptionally well in unsupervised visits with [C.B.] based on the evidence, but they’ve failed to demonstrate the ability to parent a child such as [C.B.] Parent a child means providing for that child, not only month-to-month visits or once-a-week visits, but providing for the welfare of their child, the needs of their child, understanding the needs of their child, when a child needs involved medical attention or other types of attention, educational concerns.
This has been a struggle for this Court, but under all circumstances, this Court finds that [Mother] is not fit to remain in a parental relationship with [C.B.,] [Father] is not fit to remain in a parental relationship with [C.B.] Exceptional circumstances do exist as the Court has outlined. [Mother,] [Father] parental relationship is detrimental to the wellbeing of [C.B.] (emphasis added).
The juvenile court also addressed and made findings as to each of the relevant factors in its oral ruling, and the parents do not dispute that the juvenile court considered all the factors under FL § 5-323(d) before terminating their parental rights. The parents instead challenge the juvenile court’s conclusions that they were unfit to parent C.B. and that exceptional circumstances existed that made the continuation of the parental relationship detrimental to C.B.’s best interest, contending that those determinations were based on “insufficient evidence.” Specifically, the parents claim that the DSS failed to present any evidence regarding C.B.’s emotional ties to his siblings or any other family members.43 Father also claims lack of evidence regarding the potential emotional impact of the termination of parental rights on C.B.
The parents’ contentions are misguided. DSS need not affirmatively show, nor is the juvenile court required to find, the lack of emotional ties or absence of negative emotional impact to support the conclusion of parental unfitness or exceptional circumstances by “clear and convincing” evidence. “[A]lthough the juvenile court must consider every factor in FL § 5-323(d), it is not necessary that every factor apply, or even be found, in every case.”
In re Adoption/Guardianship of Jasmine D., 217 Md. App. 718, 737 (2014). The juvenile court does not need to find the presence of every statutory factor in every case by
clear and convincing evidence. As long as the juvenile court addresses all statutory factors, finds either parental unfitness or exceptional circumstances, and expressly determines that the child’s best interest lies in terminating the parent’s rights, “the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance.” In re Rashawn H., 402 Md. at 501.
That is precisely what the juvenile court here did here. In its oral ruling, the juvenile court laid out factual underpinnings to support that both Mother and Father were unfit to remain in parental relationships with C.B. See FL § 5-323(b); In re Rashawn H., 402 Md. at 501. The juvenile court emphasized the parents’ lack of “discipline necessary to maintain a safe environment for [C.B.],” noting that the parents apparently knew how to obtain resources but were not able to maintain such resources, as [t]hey . . . obtained suitable housing or at least the makings of suitable housing but they didn’t go too much beyond that point, ultimately losing that home.” The juvenile court also noted that the parents’ interactions with C.B. were limited to brief, DSS-facilitated visits, each lasting no more than a few hours, largely due to their inability to maintain safe and suitable housing for the child. The juvenile court further found that while the parents occasionally brought fast food for C.B., they never provided essentials items the child needed, such as diapers and clothes. The juvenile court also heard the parents’ testimony, during which they denied having any knowledge of C.B.’s infections and failure to thrive, conditions that led to the child’s foster placement in November 2017, and found that the parents did not demonstrate the ability to “provid[e] for the welfare of their child . . . [or] understand [] the needs of the child when a child needs involved medical attention or other types of attention[.]”
In light of those factual findings, the juvenile court did not abuse its discretion in concluding that the parents’ lack of discipline in providing and maintaining suitable home environment for C.B. renders them unfit to remain in the parental relationship with the child. Since the juvenile court here found the parents to be unfit, their continued parental relationship with C.B. is, by definition, detrimental to the child. In re Jasmine D., 217 Md. App. at 736. The juvenile court was therefore neither arbitrary nor clearly wrong in concluding that, due to parental unfitness, termination of parental rights was in C.B.’s best interest.
We also see no abuse of discretion in the juvenile court’s conclusion that exceptional circumstances warranted the termination of the parental rights. “The exceptional circumstances alternative is meant to cover situations . . . in which a child's transcendent best interests are not served by continuing a relationship with a parent who might not be clearly and convincingly unfit.” As we explained, ““[i]n addition to being mandatory considerations prior to a termination of parental rights, the factors outlined in FL § 5-323 also serve ‘as criteria for determining the kinds of exceptional circumstances that would suffice to rebut the presumption favoring a continued parental relationship and justify termination of that relationship.’” In re C.A. and D.A., 234 Md. App. at 50 (quoting In re Rashawn H., 402 Md. at 499). Those additional criteria include:
[T]he length of time that the child has been with his adoptive parents; the strength of the bond between the child and the adoptive parent; the relative stability of the child's future with the parent; the age of the child at placement; the emotional effect of the adoption on the child; the effect on the child's stability of maintaining the parental relationship; whether the parent abandoned or failed to support or visit with the child; and, the behavior and character of the parent, including the parent's stability with regard to employment, housing, and compliance with the law.
In re C.A. and D.A., 234 Md. App. at 50 (citing In re Adoption/Guardianship No. A 91- 71A, 334 Md. 538, 562-64 (1994)).
Here, the juvenile court considered all the additional criteria as well as the mandatory factors under FL § 5-323(d). In its oral ruling, the juvenile court repeatedly mentioned that C.B. had been in foster placement for five and half years and that the termination of parental rights would “help solidify a consistency and a stability” that C.B. had never experienced. The juvenile court heard testimony from Dr. Zajdel, who spoke on C.B.’s bond with the parents as well as with the foster parents. The juvenile court also heard testimony from C.B.’s current foster mother, Ms. M., and Ms. Galloway regarding C.B.’s developmental progress in foster care and found that the child “ha[d] adjusted well.” In addition, as noted above, the juvenile court discussed the parents’ inability to “parent” C.B. notwithstanding the child’s needs for a heightened level of care.
Overall, the juvenile court addressed all relevant factors, made findings of parental unfitness and exceptional circumstances as required, and expressly determined that the child’s best interest lay in terminating the parents’ rights. In re Rashawn H., 402 Md. at 501. We see no abuse of discretion.
iii. “Adequate” Consideration of Statutory Factors
Finally, while the parents do not dispute that the juvenile court considered all the relevant statutory factors under FL § 5-323(d), they argue that the court failed to consider those factors “adequately.” Specifically, Mother argues that the juvenile court did not give enough weight to C.B.’s “clear loving bond” with both parents.
At the guardianship, the juvenile court made following findings regarding C.B.’s bond with his parents.
‘The child’s emotional ties with and feelings towards the child's parents, the child's siblings, and others who
may affect the child's best interests significantly.’ There’s evidence that [C.B.] has emotional ties to both, his Father and his Mother. Reportedly, and it’s undisputed [C.B.] enjoys his visits with his parents. * * *
It is clear to this Court that [C.B.]’s knows his parents, as through the testimony. He’s delighted to see them either running to them or walking towards them or speaking to them and enjoying even the time that he played or they played with him[.] [O]n occasion some of the children or other children played with him.
Thus, in reaching the conclusion that termination of parental rights is in C.B.’s best interests, the juvenile court expressly considered the bond between the child and his parents. Under FL § 5–323(d), the juvenile court is not required “to weigh any one statutory factor above all others. Rather, the court must review all relevant factors and consider them together.” In re Jasmine D., 217 Md. App. at 736 (quoting In re Adoption/Guardianship No. 94339058/ CAD, 120 Md. App. 88, 105 (1998)). It is also not our role as an appellate court “to determine whether, on evidence, we might have reached a different conclusion.” In re Abiagail C., 138 Md. App. at 587 (citation omitted).
The parents’ arguments also overlook that the juvenile court did not base its decision on the parents’ lack of bond with C.B. but rather on their persistent lack of “discipline necessary” to care for C.B. While the juvenile court acknowledged that the parents had formed a bond with C.B. and “did exceptionally well” during their day visits with the child, the court then highlighted the parents’ ongoing failure to maintain a suitable home for the child, to provide for the child’s welfare, and to understand the child’s needs, including medical and educational ones. See In re Jasmine D., 217 Md. App. at 736 (affirming the juvenile court’s decision that a parental bond was not sufficient to outweigh other indicators of parental unfitness). Again, on appeal, neither parent challenges the substance of the juvenile court’s factual findings.
The juvenile court’s weighing of statutory “best interest” factors was neither arbitrary nor clearly wrong, and therefore it demands “great deference.” In re C.A. & D.A., 234 Md. App. at 46. Ample evidence in the record supports the juvenile court’s conclusion that terminating parental rights was in C.B.’s best interest. Since there was no abuse of discretion in the juvenile court’s conclusion, we affirm. In re Ta’Niya C., 417 Md. at 100.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
FOOTNOTES
1 The hearing was held on the following days: February 8, 2023; February 9, 2023; February 13, 2023; February 27, 2023; March 13, 2023; April 19, 2023; April 24, 2023; May 2, 2023; May 3, 2023; May 5, 2023; May 8, 2023; and May 9, 2023.
2 Mother presents the following questions for our review: Whether the Court erred in allowing the Baltimore City Department of Social Services, Family Assessment and Investigative Report 181 Narrative in its entirety into evidence?
Did the Court abuse its discretion when it terminated the parental rights of S.B. and severing of the parent-child relationship and was this decision in the best interest of C.B.?
Father presents the following question for our review: Did the juvenile court abuse its discretion in finding that termination of Mr. B.’s parental rights and the severing of the parent-child relationship was in C.B.’s best interests?
3 C.B.’s case is the only one on appeal here.
4 In our prior opinion on the parents’ appeal of the juvenile court’s change of permanency plan, the case worker’s name appeared as “Rebecca Oglebege.” At the guardianship hearing, she clarified that her last name is spelled “O-g-u-n-b-i-y-i.”
5 While Father only mentioned that his “nephew” was living at the home, Ms. Ogunbiyi testified that Father’s sister had two minor children, both of whom lived in the same house.
6 This neglect report, as well as UMMC’s medical records, indicates that Mother identified her home as being on South Bruce Street.
7 Candida, or Candidiasis, is “a fungal infection caused by a yeast[.]” Candidiasis, CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC), https://www.cdc. gov/mrsa/community/index.html (last visited Mar. 20, 2024).
8 MRSA is a type of bacteria that often causes skin infections and, “[i]f left untreated . . . can become severe and cause sepsis – the body’s extreme response to an infection.” Methicillin-resistant Staphylococcus aureus (MRSA), CDC, https://www.cdc.gov/mrsa/community/ index.html (last visited Mar. 20, 2024).
9 B.B. and T.B. were placed in another regular foster care home, and M.B. and A.B. were placed in a treatment foster care. Maryland Regulations define a “treatment foster care,” as “a program designed and implemented by a child placement agency to provide intensive casework and treatment in a family setting to children with special physical, emotional, or behavioral needs.” COMAR 07.02.11.03(B)(67).
10 The record is inconsistent as to the specific address of the parents’ residences during this time. At the guardianship hearing on February 13, 2023, Father testified that he lived at his mother’s place on South Bruce Street between November 2017 and August 2018; at the
hearing on May 8, 2023, however, Father testified that he stayed at his mother’s place on Ramsey Street for about a month or two before moving to a new home on Santa Fe Avenue in August 2019.
11 DSS’ service agreement with Father was never entered into the evidence.
12 Although Ms. Galloway testified that Father was not compliant with the requirement of locating suitable housing and providing a lease agreement to DSS, she acknowledged that Mother, who was living with Father, complied with the requirement. Ms. Galloway also admitted that Father had described his efforts to visit a Veterans Affair office and ask about housing as well as other benefits.
13 While the juvenile court’s order following the August 21, 2018 Permanency Plan Review Hearing states that DSS had referred the parents to a housing assistance program at the Veterans Administration, it is unclear whether that program was Project PLASE. According to Father’s testimony, he learned about Project PLASE from a veteran assistance program he found.
14 By the same order, the parents were granted four-hour unsupervised visits with their other minor children (A.B., M.B., T.B., and B.B.) with possibility of transitioning “to the family home, and or overnight, at the discretion of the assigned [DSS] caseworker.”
15 About a month prior to the inspection, during an FIM on May 3 2019, the parents agreed to allow unannounced visits by DSS to verify the condition of their home.
16 Ms. Galloway explained that the loose wires posed a safety concern to C.B. because the child “could unplug the cord[,] and the television could have fallen on him.” Ms. Galloway testified that she suggested to the parents to get “boxes that you can purchases for the cords . . . as opposed to having them open.”
17 The home had two bedrooms for the children: one for the female children (T.B. and B.B.) and the other for the male children (M.B. and B.B). It is unclear in which room the male adult was sleeping.
18 Ms. Galloway’s contact notes, admitted into evidence as DSS Exhibit 66, indicate that the inspection took place on July 2, 2019. On the other hand, the home health report, DSS Exhibit 24, listed the date of the inspection as July 3, 2019. During the guardianship hearing, Ms. Galloway clarified that both refer to the same home inspection.
19 In addition, both Mother and DSS agreed to sign a Consent of Release of Information Form so that DSS could track Mother’s progress and participation in family counseling.
20 Mother only attended the initial counseling session and did not participate in any more family counseling, despite Ms. Galloway’s reminder. Father did not attend any counseling sessions. Ms. Galloway explained that the purpose of the family counseling was to help the family “understand and become more connected with each other, be able to communicate better,” and help the parents “understand the needs of their children.”
21 The record indicates that there were three or four days
of evaluation, all in June 2019. Father attended only one day, while Mother attended all days. At the guardianship hearing, Father denied that he was notified of the other evaluation days.
22 Pictures of various areas inside the Santa Fe Avenue home, including its basement, bedroom, and front and back areas, were admitted into evidence during the juvenile court’s change of permanency plan hearing on November 19, 2020.
23 Based on the testimony adduced during the guardianship hearing, it is unclear where, or with whom, the parents were living during this period. On February 13, 2023, Father testified that, after the eviction, they initially lived with his mother and brother on South Bruce Street before moving to his brother-in-law’s former residence on Ramsay Street at the end of 2020. On May 8, 2023, however, Father testified that, after the eviction, the parents “had to move back” to his mother’s home on Ramsay Street and lived there for almost three years.
24 After the parents’ eviction from the Santa Fe Avenue home, the visits occurred at a Burger King restaurant.
25 At the same hearing, the permanency plan for B.B. and T.B. also changed to a concurrent plan of custody and guardianship by a non-relative and/or adoption. The permanency plan for M.B. and A.B. changed to a sole plan of custody and guardianship by a non-relative.
26 According to Ms. Galloway’s testimony, C.B.’s parents did not attend the visits in January, March, April, June, July, November, and December. In addition to those missed visits, two (May and August) were cancelled by DSS.
27 Father testified that Ms. Galloway never responded to his call or text, but he acknowledged that he communicated with Ms. Galloway through Mother when he could not reach her directly.
28 Ms. Galloway identified one occasion in 2023 when Mother contacted her to give the address of the hotel where the parents were staying. Ms. Galloway also testified that Mother did not give her the specific hotel room number.
29 Father and Mother each filed a notice of objection on February 24, 2021. The guardianship hearing did not start until February 8, 2023. There were multiple postponements, in part due to the parents’ failure to attend a court-ordered parental fitness assessment in January 2022 for medical reasons, and another failure to attend a parental fitness and bonding assessment in August 2022. To what extent the overall delay was due to the COVID pandemic is not clear.
30 Until then, C.B. had been cared for by Ms. L.B., with whom he was initially placed following his removal from the parents in November 2017. The record indicates that while DSS deemed Ms. L.B.’s home “safe” and “stable for the child,” it did not consider her a “suitable resource for long term stability” due to her age.
31 At the guardianship hearing on February 8, 2023, the juvenile court qualified Dr. Zajdel as an expert witness in those fields.
32 Ms. Green testified that the parents listed themselves and five children in their program intake, although by then they had six children, including the newborn baby.
33 The record indicates that the juvenile court had also terminated the parents’ rights to C.B.’s two sisters, T.B. and B.B., in or around 2022, although the precise timing of those proceedings remains uncertain. Ms. T.H., a nonrelative foster parent, testified that she was granted custody and guardianship of T.B. and B.B. Nonetheless, in its oral ruling, the juvenile court found no evidence that the parents “lost parental rights at this point.” Because no party challenges the juvenile court’s factual findings on appeal, we leave this finding undisturbed. There is no evidence in the record as to the guardianship proceedings, if any, concerning C.B.’s other older siblings, M.B. and A.B. or the outcome of such proceedings.
34 We discuss the basis of Mother’s hearsay objection to the healthcare practitioners’ statements in further detail below.
35 Those statutory factors are:
(1)(i) all services offered to the parent before the child's placement, whether offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their obligations under a social services agreement, if any;
(2) the results of the parent's effort to adjust the parent's circumstances, condition, or conduct to make it in the child's
(iii) the child's feelings about severance of the parentchild relationship; and
(iv) the likely impact of terminating parental rights on the child's well- being.
FL § 5–323(d)(1)-(4).
36 The juvenile court made this finding in accordance with FL § 5-324(b)(1)(iv), which provides, “[i]n a separate order accompanying an order granting guardianship of a child, a juvenile court . . . shall state a specific factual finding on whether reasonable efforts have been made to finalize the child’s permanency plan.”
37 Following the oral ruling, the juvenile court entered two short written orders terminating the parental rights (“TPR Orders”) on May 9, 2023 and May 15, 2023, respectively.
The May 9, 2023 TPR Order provides that Father and Mother “ . . . did not object and [are] therefore deemed to have consented to this guardianship,” while the May 15, 2023 TPR Order correctly states that they “ . . . filed a notice of objection [and] participated in the hearing with the assistance of counsel.”
Although the May 9, 2023 TPR Order appears to be in error, it does not affect our analysis herein. The record is clear, and the parties do not dispute, that the juvenile court terminated the parental rights to C.B. for the reasons it articulated at the guardianship hearing. The juvenile court’s findings of facts and conclusions of law,
announced at the hearing, are before us for review.
38 As we understand Mother’s arguments on appeal, she does not challenge the admissibility of the healthcare practitioners’ statements on the basis that those statements were “evaluations or opinions,” rather than “factual findings,” and therefore not covered by the public records exception. See Ellsworth, 303 Md. at 612. Even assuming that Mother claims as such, her argument is not properly before us since she fails to adequately brief it. See Md. Rule 8-504(a)(6) (requiring appellate parties to present arguments in support of their positions on each issue); Diallo v. State, 413 Md.678, 692-93 (2010) (“Arguments not presented in a brief or not presented with particularity will not be considered on appeal.”) (cleaned up).
39 To the extent that the healthcare practitioners’ statements in the 181 Narrative, or their substance, are absent from the UMMC’s medical records, they are present in the juvenile court’s CINA order, which was admitted without an objection from Mother. In the CINA order, the juvenile court sustained DSS’ factual allegations regarding C.B.’s medical neglect, which were, in turn, based Ms. Ogunbiyi’s interviews with UMMC healthcare practitioners as documented in the 181 Narrative.
40 That the juvenile court did not expressly use the term “reasonable efforts” is immaterial for the purpose of our review because it is not necessary “to recite the magic words of a legal test.” In re D.M., 250 Md. App. 541, 563 (2021) (citation omitted). “The mere incantation of the ‘magic words’ of a legal test . . . is neither required nor desired if actual consideration of the necessary legal considerations are apparent in the record.” Id. (cleaned up).
41 In fact, except for the time when they resided at the Santa Fe Avenue home, the parents’ accounts of their home address were inconsistent and self-contradictory.
In early November 2017, when C.B. was hospitalized at UMMC, Mother provided her home address as located on South Bruce Street; during the same period, Ms. Ogunbiyi was inspecting the parents’ home on Ramsay Street. Likewise, Father initially testified that, following their eviction from the Santa Fe Avenue, he lived with his mother and then moved to his brother-in-law’s former home on Ramsay Street; however, at a later hearing, he testified that he moved to his mother’s home at the same address on Ramsay Street, following his eviction. In light of this evidence, the juvenile court was not clearly erroneous in concluding that the parents were unable to provide C.B. a suitable home environment.
42 We have noted that “the parental unfitness, exceptional circumstances, and the child’s best interests considerations are not different and separate analyses.” In re Adoption of Jayden G., 433 Md. 50, 96 n.32 (2013) (citing In re Ta’Niya C., 417 Md. at 105-06). When considered under the “best interest” facts set forth in FL § 5-323(d), “[t]he three concepts—unfitness, exceptional circumstances, and best interests—are fused together, culminating in the ultimate conclusion of whether terminating parental rights is in a given child’s best interests.” In re H.W., 460 Md. at 219 (quoting In re Jayden G., 433 Md. at 96 n.32).
43 In addition, Mother claims that the DSS “didn’t even consider whether there was a suitable family member to take care of the children,” but the record shows otherwise. Ms. Ogunbiyi’s testimony provides that C.B. and his siblings were placed in foster homes because the parents did not provide the CPS any information about relatives or other individuals who might be available for the children’s placement. The parents also did not raise such objection at the November 22, 2019 Permanency Plan Review hearing, where the juvenile court added custody and guardianship by a non-relative as a concurrent permanency goal for C.B.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore County Circuit Court’s award of guardianship of Martha Ann Kramer to the Baltimore County Department of Aging, its decision to relocate Ms. Kramer to a memory care facility and its award of temporary guardianship of Ms. Kramer’s property to Robert M. McCarthy (an attorney appointed by the court).
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
property. In November 2019, the court — “with the consent of the parties” — removed Mr. McCarthy as the guardian of property and appointed Glenn as the substitute guardian of property.
After a hearing in March 2021, the court approved the establishment of an irrevocable trust for Ms. Kramer in April 2021. The trust provides as follows:
“Trustee” refers to my son, GLENN W. DIGMAN while he is serving as Trustee, and to such other persons or corporations as may succeed him from time to time as Trustee . . . . In the event that GLENN W. DIGMAN is unable or unwilling to serve or to continue to serve as Trustee, a Successor Trustee shall be appointed by the supervising Guardianship Judge[.]
The Circuit Court for Baltimore County awarded guardianship of Martha Ann Kramer’s person to the Baltimore County Department of Aging (“BCDA”) and temporary guardianship of Ms. Kramer’s property to Robert M. McCarthy (an attorney appointed by the court). The court also granted Mr. McCarthy’s petition to relocate Ms. Kramer to a memory care facility. The appellant, Emmanuel Digman (“Appellant”), is Ms. Kramer’s son. Appellant, representing himself, presents the following “[i]ssues” for our review:1
I. Whether the court erred in appointing Mr. McCarthy as the temporary guardian of Ms. Kramer’s property.
II. Whether the court erred or abused its discretion in granting Mr. McCarthy’s petition to relocate Ms. Kramer to a memory care facility.
III. Whether the court erred in appointing the BCDA as guardian of Ms. Kramer’s person.
For the reasons to follow, we shall affirm the judgment of the circuit court.
BACKGROUND
On November 2, 2018, Appellant filed a petition for the appointment of guardians of Ms. Kramer’s person and property. Ms. Kramer was 83 years old at that time and suffering from dementia. Ms. Kramer had three children: Appellant, Mr. Glenn Digman (“Glenn”),2 and Ms. Lorrie Galvez. After a show cause hearing in February 2019, the circuit court appointed Appellant, Glenn, and Ms. Galvez as Ms. Kramer’s joint personal guardians, and the court appointed Mr. McCarthy as the guardian of Ms. Kramer’s
In October 2022, Glenn died. Appellant then filed a motion for “emergency replacement for guardian of property[,]” in which he sought “immediate appointment of Guardian of Property to keep Martha Ann Kramer’s care uninterrupted.” However, on October 14, 2022, the court re-appointed Mr. McCarthy as the temporary property guardian.
In November 2022, Mr. McCarthy petitioned to remove Appellant from his position as co-personal guardian. In that motion, Mr. McCarthy alleged that Ms. Kramer’s health had deteriorated, and that Appellant was interfering with Ms. Kramer’s care:
In summary, a few days before [Glenn’s] death, Martha Kramer suffered a fall and a fractured shoulder, requiring hospitalization. Upon returning home, Martha Kramer’s health further deteriorated until she was hospitalized at Johns Hopkins Bayview on October 10, 2022, the same day her son passed away . . . .
It was recommended by the medical professionals that Martha Kramer enter a rehabilitation facility until she recovered to the point that she could return home. The medical professionals at Johns Hopkins Bayview stated that Martha Kramer required 24-hour skilled nursing care at this time to manage her rehabilitation and medication needs. Martha Kramer was moved to Autumn Lake — Riverview Skilled Nursing and Rehab Center on October 22, 2022. . . .
[Appellant] is interfering with his mother’s care by threatening to remove Martha Kramer from the facility and take her home against medical advice, preventing his mother from receiving vaccines and medication against
medical advice and interfering with Martha Kramer’s relationship with her doctors.
At a hearing held later that month, Ms. Galvez testified and confirmed that she and Appellant were “at constant loggerheads or impasses” regarding their mother’s care. Ms. Galvez testified as follows about her disagreements with Appellant:
We could not decide on treatment of my mother’s coagulation therapy in the hospital because he refused it. He didn’t even want her to go to rehab. He was trying to have her released early from there when she wasn’t ready. So just -- when the doctor tells you what is best for the patient, you tend to believe him. He is the expert and knows what is best and weighing out you know, the benefits and the risks of treatment. And right now she could perish at any moment.
[Appellant] accuses me constantly of elder abuse because I don’t agree with him. He filed several reports with the Court because I have her vaccinated for influenza and COVID because that is what is recommended for that age group because it is dangerous if they were to become ill with those diseases. It would be detrimental. So I can’t even give her a vaccine without backlash.
By contrast, Appellant testified that there was “not -- a big enough disagreement between [Ms. Galvez] and I to cause the removal of me.”
After the hearing, the court removed Appellant as copersonal guardian and left Ms. Galvez as the sole personal guardian:
What is sort of factually before the Court is the care of one’s mother. It is hard to imagine a more important thing than that, the care of our loved ones, in particular our mother. But I have a very discrete and narrow legal question before me. And that is I have before me the emergency petition to alter the current guardianship arrangement, and that does not affect necessarily the relationships that one has to one’s mother and even necessarily the care that is provided. But it is about the ability for providers to have an efficient and timely decision making voice and a legal decision making entity that is functioning. And this Court and, frankly, the file is replete with care for [Ms.] Kramer and the testimony that I heard is that she is very well loved and cared for. But the question is now that there has been an altered circumstance in the third person who is no longer co-guardian being with us, I’m able to essentially in a case of an impasse be a decision maker; we have two persons who appear to be at loggerheads or an impasse, and that makes decision making very, very difficult when decisions need to be made. And frankly, in cases of medical decisions and an aging loved one, there are times when those decisions have to be made in a timely fashion to ensure that the Ward is cared for properly.
* * *
I am going to grant the request to remove [Appellant] as co-guardian not because he doesn’t love and care for his
mother. That is very clear that he does. But because right now he and the co-guardian, [Ms. Galvez], the sister, are at repeated loggerheads and a decision needs to be made. The court then emphasized that any request to change Ms. Kramer’s living arrangement “would have to be taken before the Court and then all parties would be heard from again[.]”
Ms. Kramer suffered a stroke in December 2022. The next month, Mr. McCarthy petitioned the court to relocate Ms. Kramer to a memory care facility. In that motion, Mr. McCarthy wrote as follows:
In December 2022, [Ms. Kramer] suffered a stroke which left her with neurological deficits, visual impairment, and impairment to her ability to provide her own care consistently. Consequently, she requires more hands on care for bathing, dressing, and even feeding on occasion. Even with 24/7 aides in the home, this is inadequate to provide her with the necessary care that could be provided in a memory care facility.
At a hearing in February 2023, Mr. McCarthy stated that Appellant had moved into Ms. Kramer’s residence without Ms. Galvez’s permission: [Appellant] having been removed as guardian of the person, has now moved himself back in and was directing the aids that [Ms. Galvez] had in the house to not stay in the bedroom and the living room which caused them to quit the process here. And he was taking over care of his mother without the permission of [Ms. Galvez], who is a person who was the one who is supposed to be directing this action.
Mr. McCarthy stated that, because of Appellant’s actions, Ms. Galvez “determined, as sole guardian of the person, . . . that [Ms. Kramer] was in immediate peril and needed to be moved.”
Ms. Jacqueline Tangires, a licensed social worker who had been caring for Ms. Kramer since 2018, testified that she supported Ms. Kramer’s move to a memory care facility: I have always said that [Ms. Kramer] should be able to stay in her home as long as it is safe. I personally hit a place where this is no longer safe. People are weighing in saying I’m going to be there and I’m going to take care of her and then they are changing their mind like an hour later. I found that the care plan was unravelling as we speak and I wanted to make sure that [Ms. Kramer] had 24/7, that she had the socialization, that she had the engagement, that she had the medical staff that are able to deal with cognitive decline in someone that is potentially sundowning that I felt [Ms. Kramer] was no longer understanding that she was in her house anymore, whether she was in her house or whether she was someplace else.
In February 2023, the court appointed Mr. McCarthy as trustee of the trust, removed Ms. Galvez as personal guardian, and appointed the BCDA as temporary guardian of the person. The court ordered the BCDA to provide a report “regarding (1) the ability to establish a safe living plan
for Martha Ann Kramer in the home she resided in prior to her removal without Court approval and (2) inform the Court as to the benefits and disadvantages of Martha Ann Kramer remaining at her current placement[.]” Pending the completion of that report, the court held the petition to move Ms. Kramer to a memory care facility sub curia.
The next month, the court granted Mr. McCarthy’s petition to relocate Ms. Kramer to a memory care facility, and the court appointed the BCDA as the permanent personal guardian.
Additional facts will be included as they become relevant to the issues.
STANDARD OF REVIEW
The following standard of review applies in adult guardianship cases:
[I]n reviewing whether a circuit court properly decided to appoint a guardian for an adult, we adopt a tri-partite and interrelated standard of review. Factual findings will be reviewed for clear error, while purely legal determinations will be reviewed without deference, unless the error be harmless. As to the ultimate conclusion of whether an adult guardianship is appropriate, the circuit court’s decision will not be disturbed unless there has been a clear abuse of discretion.
Matter of Meddings, 244 Md. App. 204, 220 (2019).
A court-appointed guardian has “[t]he right to custody of the disabled person and to establish the disabled person’s place of abode within and without the State, provided there is court authorization for any change in the classification of abode[.]” Md. Code, EST. & TRUSTS (“E.T.”) § 13-708(b) (2). Moreover, decisions related to a ward’s proposed place of residence are within the court’s “plenary” jurisdiction to protect the best interest of disabled individuals. Wentzel v. Montgomery Gen. Hosp., Inc., 293 Md. 685, 702 (1982).
DISCUSSION
I.
First, Appellant argues that the court erred in appointing Mr. McCarthy as the temporary guardian of property. Under Maryland Rule 8-202(a), a notice of appeal must “be filed within 30 days after entry of the judgment or order from which the appeal is taken.” On October 14, 2022, the court re-appointed Mr. McCarthy as the temporary property guardian. Appellant filed his notice of appeal on April 20, 2023. As a result, the appeal of this issue was not timely filed.
Even if this claim were timely, we would determine that the court did not err in re- appointing Mr. McCarthy as the temporary guardian of property. Under the Maryland Rules, a temporary guardian means a guardian of the person or property appointed by the court pending the appointment of a substitute or successor guardian. Md. Rule 10- 103(i)(3). The circuit court is empowered to appoint a guardian of the property of a disabled person. E.T. § 13-201. Mr. McCarthy served as the temporary guardian of property before Glenn, by consent, was appointed as guardian of property. As a
result, it was a logical course of action to re-appoint Mr. McCarthy as temporary guardian of property following Glenn’s death. Under these circumstances, the court did not err in re- appointing Mr. McCarthy as temporary guardian of property.
To the extent that Appellant challenges Mr. McCarthy’s appointment as trustee of the trust, that appellate challenge is also untimely under Md. Rule 8-202(a). Mr. McCarthy was appointed as trustee through an order entered on February 28, 2023. As noted above, Appellant’s notice of appeal was filed on April 20, 2023. Even if this claim were timely, we would determine that the court did not err in appointing Mr. McCarthy as trustee of the trust. Indeed, the trust did not name Appellant as the successor trustee. Instead, Section 1.01 of the trust gave the court the authority to choose the successor trustee, “[i]n the event that [Glenn] is unable or unwilling to serve or to continue to serve as Trustee[.]” Lastly, the court properly noted “that the duties and responsibility of the role of Trustee and Guardian of Property overlap[.]”
II.
Next, Appellant argues that the court erred in granting the petition to relocate Ms. Kramer to a memory care facility. According to Appellant, the court “erred in acquiescing in the capricious decision of the Guardian of Property to change Ward’s abode.”
To be sure, in November 2022, the court ordered that “the classification of [Ms. Kramer’s] abode” shall not be changed “without prior authorization of the Court[.]” Nevertheless, after Ms. Kramer suffered a stroke in December 2022 and was moved to an assisted living facility, the court requested a report from the BCDA “regarding (1) the ability to establish a safe living plan for Martha Ann Kramer in the home she resided in prior to her removal without Court approval and (2) inform the Court as to the benefits and disadvantages of Martha Ann Kramer remaining at her current placement[.]”
The record shows that the court carefully considered several factors when deciding whether Ms. Kramer should remain at the assisted living facility. The court noted that the BCDA’s report stated that “there were two significant factors that would come into play: One was financial, and the second was in-home care being complicated by family dynamics and the ability for employed caregivers to provide care without having to navigate certain family dynamics.” The court observed that “[t]here are no concerns regarding emergencies given where [Ms. Kramer] is currently[, i.e., the assisted living facility,] as opposed to if she were in a home.” Moreover, at the assisted living facility, “the costs are known and can be planned.” In addition, the court determined that the assisted living facility provides the following: “There are activities and socializations provided for at the facility, family members are welcome to visit, take residents on outings or overnight visits.”
For all these reasons, the court properly considered Ms. Kramer’s best interest, and thus the court did not err or abuse its discretion in granting the petition to relocate Ms. Kramer to an assisted living facility.
Lastly, Appellant contends that the court erred in appointing the BCDA as the guardian of the person. According to Appellant, “[i]f appointed as the Guardian of the Person[,] Appellant would be in a better position to address the Court below[.]”
“For good cause, the court may pass over a person with priority and appoint a person [as guardian of the person] with a lower priority [under E.T. § 13-707(a)].” E.T. § 13-707(c)(1) (ii). We look to the reasons articulated by the trial court and “determine whether the reasons and any factual findings underlying those reasons are supported by competent evidence and then determine whether the reasons support the conclusion” that the Department “is the better choice to
FOOTNOTES
act in the best interest” of Ms. Kramer. Meek v. Linton, 245 Md. App. 689, 723 (2020).
The court recognized a significant factor relevant here: “the ability for employed caregivers to provide care without having to navigate certain family dynamics.” Indeed, Appellant had been removed as co-guardian of the person because he was “at repeated loggerheads” with Ms. Galvez when she was co-guardian of the person.3 The court properly considered the report provided by the BCDA, which is “a neutral guardian of last resort[,]” to determine the course of action in Ms. Kramer’s best interest.
In sum, the court had more than sufficient evidence to support its decision to appoint the BCDA to serve as Ms. Kramer’s guardian.4
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 The issues, as framed in Appellant’s brief, are as follows:
Issue 1.
Court below erred in appointing the current Guardian of Property.
Issue 2.
The Court erred in acquiescing in the capricious decision of the Guardian of Property to change Ward’s Abode. Issue 3.
Appointment of Guardian of Person.
2 For clarity, we refer to Glenn by his first name because he shares the same last name as his brother, Appellant. We mean no disrespect by referring to Glenn Digman by his first name.
3 At the proceeding in March 2023, the court asked Ms.
Galvez if she would like to be reappointed as personal guardian, and Ms. Galvez responded as follows: I would love to be my mother’s guardian but the problem that exists with that is filings weekly from [Appellant]. So I think it would be in the best interests of the taxpayers and the Court for the guardian to be [the BCDA] since they will have more control.
4 In his reply brief, Appellant asks this Court “to find a Forensic examination is warranted, including forensic examination of [Ms. Kramer’s] total estate including the Trust.” Because this request was not raised in Appellant’s opening brief, we shall not address it. See Jones v. State, 379 Md. 704, 713 (2004) (“[A]n appellate court ordinarily will not consider an issue raised for the first time in a reply brief.”). As noted above, the court did not err in appointing Mr. McCarthy as trustee.
In the Maryland Appellate Court: Full Text Unreported Opinions
Argued before: Graeff, Nazarian, Eyler, James (retired; specially assigned), JJ.
Opinion by: Graeff, J.
Filed: Apr. 4, 2024
The Appellate Court dismissed the husband’s appeal, which argued the marital settlement agreement was null and void. Because the husband also invoked the benefit of the marital settlement agreement in seeking a contempt order against the wife in the circuit court, the doctrine of acquiescence prevents him from challenging the validity of the agreement.
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.
to formalize their separation and to settle all questions of maintenance and support, alimony, counsel fees, their respective rights as to any and all of the property or estate of the other, the property owned by them jointly or as tenants by the entireties, and in all of their “marital property” as that term is defined by applicable Maryland law, and all other matters of every kind and character arising from their marital relationship.
The parties agreed that Ms. Lynn would have sole legal and physical custody of the parties’ minor children, “subject to [Mr. Ibrahim’s] reasonable access from time to time as mutually agreed upon by the parties.” They agreed that all future communications between the parties related to child custody would be conducted through AppClose. Both Mr. Ibrahim and Ms. Lynn recognized that “current circumstances prevent[ed]” the parties from calculating child support pursuant to the Maryland Child Support Guidelines, but they agreed “that neither party ha[d] accumulated any child support arrears.”
This appeal arises from an order issued by the Circuit Court for Baltimore County granting a Judgment of Absolute Divorce ending the marriage of Mohamed Elaziz Ibrahim, appellant, and Allison Lynn, appellee. The judgment was entered on May 24, 2023.
On appeal, Mr. Ibrahim raises several issues for this Court’s review,1 which we have consolidated and rephrased, as follows:
Did the circuit court err in denying appellant’s postjudgment Motion to Set Aside Marital Settlement Agreement?2
For the reasons set forth below, we shall dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Ibrahim and Ms. Lynn were married in Baltimore City in 2011. On March 8, 2021, Ms. Lynn filed a complaint for absolute divorce in the Circuit Court for Baltimore County. On May 24, 2023, the case was set for trial. Counsel for Ms. Lynn informed the court that, after a week of settlement discussions, the parties had reached an agreement, which had been signed by the parties and notarized. The court stated that it “look[ed] like everything [was] resolved.”
The agreement stated in relevant part: It is the mutual desire of the parties to this Agreement
Both parties waived any interest or claim to alimony and certain personal property, including: (1) bank accounts and other accounts of money; (2) automobiles; (3) intangible personal property; and (4) retirement, pension and deferred compensation funds, and profit sharing funds. With respect to tangible personal property, Mr. Ibrahim and Ms. Lynn agreed that the “personal property of the parties ha[d] been divided by the parties prior to the execution” of the agreement. Ms. Lynn agreed to “maintain health insurance for the minor children through her employer.” The agreement also settled matters related to debts and taxes. With respect to the marital home, the agreement provided that Mr. Ibrahim would convey his interest in the home, Ms. Lynn would get the home appraised, and within 60 days from the date of the appraisal, Ms. Lynn would give Mr. Ibrahim 40 percent of the gross equity in the home.
Ms. Lynn testified that she and Mr. Ibrahim had been married since July 2011 in a civil ceremony, which she believed took place in the Baltimore County courthouse. They had two minor children, R.I. and M.I.3 She and Mr. Ibrahim separated in December 2018, and they had not cohabited since then. There was no hope of reconciliation.
Ms. Lynn testified that the signed agreement resolved “any and all issues relating to [the] custody of the minor children.” She agreed to waive alimony pursuant to the agreement, and as a result, she was forever barred from bringing “a claim of alimony or a request of alimony”
against Mr. Ibrahim. The agreement resolved all issues related to marital property.
Ms. Lynn stated that she was not “under the influence of any prescription medication, alcohol or substance that would affect [her] decision to enter into the agreement.” No person had made any promise to her, aside from those promises in the agreement, to entice her into signing the agreement. She entered into the Marital Settlement Agreement knowingly, freely, and voluntarily, and no person had threatened her into entering the agreement.
Mr. Ibrahim testified that he recognized his signature on the Marital Settlement Agreement.4 He believed that the agreement regarding physical and legal custody of the minor children was in the best interest of the children, noting that he would “like to see the kids and play with them, (inaudible) mall, cinema, park, anywhere.” Mr. Ibrahim understood that both parties had waived entitlement to the other’s retirement benefits and any claim to alimony. He understood that he could not come back at a later date and ask the court to reconsider those issues.
Mr. Ibrahim testified that he had discussed the Marital Settlement Agreement with two interpreters. He stated that he was not under “the influence of any drugs or alcohol at this point, at this time,” and he was not “taking any prescription medication which would interfere with [his] ability to understand what [was] happening here today.” Although he was under the care of a psychiatrist, psychologist or mental health professional, that did not “interfere with [his] ability to understand what [was] happening here today.” No person had forced him to enter into the Marital Settlement Agreement or placed any undue influence upon him to enter into the agreement. Mr. Ibrahim testified that he had knowingly, freely, and voluntarily entered into the Marital Settlement Agreement. He was satisfied with his attorney’s services, and his attorney had answered all of his questions.
On May 24, 2023, the circuit court issued an order granting Ms. Lynn an Absolute Divorce on the ground of a twelve-month separation. The terms of the Marital Settlement Agreement were incorporated, but not merged, into its Judgment of Absolute Divorce.
On June 22, 2023, Mr. Ibrahim filed a motion, asking the circuit court to set aside the Marital Settlement Agreement. Mr. Ibrahim stated that he was a psychiatric patient under medication on the date the agreement was formed, and he “[c]ould [n]ot make a rational decision.” He stated that was the reason that the signature on the Marital Settlement Agreement did not contain his full name, and he “wasn’t aware of [the] divorce situation.” Mr. Ibrahim alleged that he was “misguided” by his attorney, and appellee and her attorney “tricked him.”
On July 19, 2023, the circuit court entered an order denying Mr. Ibrahim’s motion to set aside the agreement, stating:
This Court considered the parties’ Marital Settlement Agreement dated May 24, 2023 and took testimony regarding the same prior to entering a Judgment of
Absolute Divorce on May 24, 2023. [Mr. Ibrahim] was represented by counsel with respect to the preparation and signing of the Marital Settlement Agreement and the divorce hearing, [Mr. Ibrahim] signed the Marital Settlement Agreement, and [Mr. Ibrahim’s] signature was notarized.
On August 2, 2023, Mr. Ibrahim noted an appeal.
On November 20, 2023, Mr. Ibrahim filed a petition for contempt alleging that Ms. Lynn failed to comply with the parties’ Marital Settlement Agreement. On December 8, 2023, Mr. Ibrahim filed an amended petition.5 On January 30, 2024, he filed a motion for contempt, alleging that Ms. Lynn failed to comply with the parties Marital Settlement Agreement by failing to give him his proportional share of the value of the marital home. He argued, among other things, that Ms. Lynn’s failure to comply with this provision of the agreement “[r]enders the marital settlement agreement to become Null and Void,” and he asked the circuit court to set aside the Marital Settlement Agreement. He stated that the “Marital Settlement Agreement [was] still Active and valid.”6
We include additional facts, relevant to Mr. Ibrahim’s motion, in the discussion that follows.
DISCUSSION
Ms. Lynn contends that Mr. Ibrahim’s appeal should be dismissed because his filing of a Petition for Contempt bars his appeal under the doctrine of acquiescence. She asserts that, by “filing for contempt in the trial court to enforce the judgment,” Mr. Ibrahim “has acknowledged the validity of the judgment and acquiesced thereto.” If Mr. Ibrahim acquiesced to the judgment, his appeal should be dismissed.
Appellee is correct that “[t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of [a] decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right to appeal.” Dietz v. Dietz, 351 Md. 683, 689 (1998) (quoting Rocks v. Brosius, 241 Md. 612, 630 (1966)).
“As a matter of fairness, a litigant ‘cannot, knowing the facts, both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal.’” Barson v. Md. Bd. of Physicians, 211 Md. App. 602, 614 (2013) (quoting Suburban Dev. Corp. v. Perryman, 281 Md. 168, 171 (1977)). Accord In re Nicole B., 410 Md. 33, 64 (2009) (a party “is not entitled to appeal from a judgment or order if that party . . . acquiesced in that judgment or order”); Franzen v. Dubinok, 290 Md. 65, 69 (1981) (“[A] voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.”). The doctrine of acquiescence is a form of estoppel and “‘normally precludes [a] party from obtaining appellate review.’” VEI Catonsville, LLC v. Einbinder Props., LLC, 212 Md. App. 286, 293–94, cert. denied, 435 Md. 270 (2013) (quoting Exxon Mobil Corp v. Ford, 432 Md. 1, 36 (2013)).
On November 20, 2023, Mr. Ibrahim filed a motion for contempt, alleging that Ms. Lynn failed to comply with the Marital Settlement Agreement by, among other things, failing to pay him $26,727.13, which was his 40 percent share of the “gross equity” in their marital home, within 60 days of the date of the appraisal of the home. On December 8, 2023, he filed an amended petition. In his supporting motion, filed on January 30, 2024, Mr. Ibrahim acknowledged that he had filed an appeal, but he stated that the agreement was “still Active and valid.” He asked the court, however, to “[s]et aside the Marital Settlement Agreement” because Ms. Lynn’s failure to comply with
FOOTNOTES
1 Mr. Ibrahim listed the issues presented as follows: During the trial I was not in my right mind to make any rational decisions;
The misrepresentation of my previous lawyer (Mr. Florian Tabaku) before and during the trial on 05-24-2023; The misrepresentation of the appellee’s lawyer (Mr. Timothy Marsheck) before and during the trial; During the trial the appellee lied under the oath and also within the Marital Settlement Agreement;
The down payment of the second marital house ($90,000) within the Marital Settlement Agreement is marital funds and not a loan from the appellee’s dad;
The appellee took an advantage of my sickness, lack of finances and language barrier;
The Circuit Court of Baltimore County denied my late appraisal submission on (10-20-2023) of the marital house due to my sickness;
The appellee was tricking me since the beginning of the divorce case till I lost everything because this is considered her second divorce case; and The bias and unfair Marital Settlement Agreement that represents a conflict of interest.
2 On September 19, 2023, this Court denied appellee’s motion to dismiss based on appellant’s failure to file an appeal within 30 days after entry of the May 24, 2023 judgment of divorce,
the agreement rendered it “Null and Void.”7 Following his January 2024 motion, Mr. Ibrahim continued to file motions in the circuit court seeking enforcement of the marital settlement agreement.
Under the circumstances here, where Mr. Ibrahim invoked the benefit of the Marital Settlement Agreement in seeking a contempt order against Ms. Lynn, the doctrine of acquiescence prevents him from challenging the validity of the agreement in this appeal. See Franzen, 290 Md. at 68; VEI Catonsville, LLC, 212 Md. App. at 293–94; Barson, 211 Md. App. at 614. Accordingly, we shall dismiss Mr. Ibrahim’s appeal.
APPEAL DISMISSED. COSTS TO BE PAID BY APPELLANT.
but it limited the scope of this appeal to a review of the circuit court’s order entered on July 19, 2023, denying appellant’s Motion to Set Aside Marital Settlement Agreement.
3 In the interest of privacy, we refer to the minor children by initials, R.I and M.I.
4 Mr. Ibrahim testified with assistance from an interpreter, Christine Fattoshe, who was sworn under penalties of perjury “to interpret accurately, completely and impartially and to refrain from knowingly disclosing confidential or privileged information obtained while serving in [the] proceeding.”
5 Mr. Ibrahim’s November 20, 2023, Petition for Contempt incorrectly identified himself as the individual who failed to obey the circuit court’s order. In his December 2023 petition, Mr. Ibrahim updated his motion, alleging that Ms. Lynn had “failed to obey the order” by failing to give him his proportional share of the value of the marital home.
6 Mr. Ibrahim subsequently filed additional pleadings in support of his petition for contempt, asking the court to enforce the parties’ agreement and to obtain his proportional interest in the marital home.
7 Whether Ms. Lynn failed to comply with the terms of their agreement is not before us, but we note that, “[w]here one breaches a provision in a marital settlement agreement which is not dependent upon other provisions, enforcement of the other provisions is unaffected.” Brees v. Cramer, 322 Md. 214, 221 (1991) (quoting D. Thomas, Maryland Divorce and Separation Law, at 4–25 (MICPEL 4th ed. 1987)).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 55 (2024)
Consent agreement; ambiguity; evidentiary hearing
Judith A. Dixon v.
Duane L. Dixon
No. 595, September Term 2023
Argued before: Reed, Tang, Eyler, James (retired; specially assigned), JJ.
Opinion by: Eyler, J.
Filed: Apr. 3, 2024
The Appellate Court vacated the Howard County Circuit Court’s order resolving on what date the wife was entitled to share in the husband’s police pension. The relevant provision in the parties’ consent agreement was ambiguous, requiring an evidentiary hearing as to 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.
further proceedings. Accordingly, we need not address questions 1 and 3.
FACTUAL AND PROCEDURAL BACKGROUND
Wife filed a complaint for absolute divorce on January 21, 2020 and an amended complaint for absolute divorce on December 21, 2020. On August 29, 2022, the parties advised the court that they had agreed to a division of their assets, excluding the marital home, and had prepared a Consent Agreement. Both parties were represented by counsel. Counsel conducted voir dire of Wife and Husband on the record, and Husband and Wife each confirmed that the Consent Agreement accurately reflected the terms of their agreement.
With respect to Husband’s pension, the Consent Agreement provided:
This appeal arises out of a divorce proceeding filed in the Circuit Court for Howard County by Judith A. Dixon, appellant (“Wife”), against Duane L. Dixon, appellee (“Husband”). Prior to trial, the parties reached a Consent Agreement regarding the disposition of certain assets. The circuit court incorporated, but did not merge, the Consent Agreement into the divorce judgment.
After the divorce judgment was entered, a dispute arose regarding the effective date of the payment of Wife’s share of Husband’s pension benefits pursuant to a Domestic Relations Order (“DRO”) entered by the court based on the terms of the Consent Agreement. Husband filed a motion for clarification of the Order, which the court granted, ordering that Husband’s pension benefits were payable to Wife beginning on October 4, 2022, the date of entry of the divorce judgment.
On appeal, Wife presents the following questions:
1. Did the parties enter into an agreement authorized under Family Law § 8-101(a) making [Wife’s] marital share of [Husband’s] pension retroactive to December 1, 2019?
2. Are the terms of the agreement plain and unambiguous?
3. Is the Baltimore City Fire and Police Employees’ Retirement Plan’s interpretation of the Consent Agreement and the Domestic Relations Order reasonable?
We answer “no” to question 2, and for the reasons set forth below, we shall vacate the judgment and remand for
Husband is a retired officer with the Baltimore City Police Department and his pension is in pay status. Wife shall be entitled to fifty percent (50%) of the marital share portion of Husband’s F&P Pension, “if, as and when” pension payments are distributed to him.
(Emphasis added.) The court entered the judgment of absolute divorce on October 4, 2022. On January 11, 2023, the court entered a DRO signed by the parties, directing the payment to Wife of fifty percent of the marital property portion of Husband’s pension benefits “if, as and when such payments are made.”
On February 24, 2023, Abraham Schwartz, General Counsel to the Fire and Police Employees’ Retirement System (“F&P”), advised counsel to the parties that pursuant to paragraph 5 of the DRO, which provided that F&P would begin benefit payments to Wife “if, as and when [Husband] starts receiving [his] benefits[,]” that “F&P [was] obligated to pay [Wife] her marital share of [Husband’s] benefit retroactive to his December 1, 2019 retirement effective date.” Counsel for Husband responded to Mr. Schwartz’s letter, objecting to his interpretation of paragraph 5 of the DRO as requiring retroactive payments to Wife as of the date of Husband’s retirement, rather than the date of the parties’ divorce on October 4, 2022. Mr. Schwartz responded and reiterated F&P’s position that the DRO required payment of Wife’s marital share of Husband’s pension benefit retroactive to his December 1, 2019 retirement date. Mr. Schwartz indicated that F&P would deduct Wife’s marital share of Husband’s payment
retroactive to December 1, 2019, and hold those funds in escrow pending further clarification from the court. On April 11, 2023, Husband filed a motion to clarify the effective distribution date of Wife’s marital share of his pension under the DRO and Consent Agreement, arguing that the court lacked authority to order the distribution of retirement funds prior to the date of entry of the divorce judgment.
Wife filed an opposition to Husband’s motion to clarify the distribution date of her marital share of his pension benefits, arguing that the parties had agreed to the retroactive payment of Husband’s pension benefits to Wife as of Husband’s date of retirement on December 1, 2019, and that the Consent Agreement reflected that agreement. Wife further asserted that F&P’s interpretation of the DRO as providing for retroactive payment of Husband’s pension benefits to Wife as of December 1, 2019 was correct.
The court granted Husband’s motion without a hearing. The court ordered that “the Fire and Police Retirement System use the date of October 4, 2022 for the purpose of distributing to [Wife] her fifty percent interest in the marital share portion of Husband’s F&P retirement interests.”
This appeal followed.
DISCUSSION
Wife argues that the parties contracted for the retroactive payment of Husband’s retirement benefits to her beginning on the date he began receiving the benefits on December 1, 2019. She asserts that paragraph 7B of the Consent Agreement unambiguously reflects the parties’ agreement that Husband’s pension benefits were payable to her on an “if, as and when” basis, which, in this case, was the date of his retirement on December 1, 2019. She contends that the circuit court erred in ordering that the distribution of Wife’s fifty percent interest in the marital share of Husband’s pension benefits began on October 4, 2022.
Husband contends that the circuit court properly concluded that Wife’s marital share of Husband’s pension benefits became payable as of the date of the parties’ divorce because the court’s authority to transfer a portion of a retirement benefit arises at the time that the court grants a divorce. Husband asserts that, until the time of the divorce, there can be no marital estate in the retirement asset that is subject to distribution. He argues that the phrase “if, as and when” as used in paragraph 7B of the Consent Agreement unambiguously indicates prospective payment, and the parties did not intend for Husband’s pension benefits to be paid to Wife retroactively.
Section 8-202(a)(1) of the Family Law Article (“FL”) of the Maryland Code, (1984, 2019 Repl. Vol.) provides: “When the court grants an annulment or a limited or absolute divorce, the court may resolve any dispute between the parties with respect to the ownership of personal property.” FL § 8-205 provides further that “[t] he court may transfer ownership of an interest in . . . a pension” and “[t]he court shall determine . . . the terms
of the transfer of the interest in [the] property[.]” FL § 8-205(a)(2), (b).
We see no basis in the statutory language supporting Husband’s contention that the trial court’s authority to transfer an interest in Husband’s pension was restricted to the transfer of prospective pension payments only. Husband’s pension was marital property, subject to distribution under FL § 8-205. Husband’s pension was in pay status at the time of the divorce, and the parties agreed that Wife was entitled to fifty percent of the marital share of Husband’s pension “if, as and when” the pension payments were distributed to him. The Consent Agreement did not, however, further define the parties’ agreement as to the exact date on which Wife was to begin receiving her share of Husband’s pension benefits, and for that reason, we look to the language of the Consent Agreement to attempt to determine the parties’ intended meaning of the phrase “if, as and when.”
“Consent judgments are ‘agreements entered into by the parties which must be endorsed by the court.’”
Dennis v. Fire & Police Emps.’ Ret. Sys., 390 Md. 639, 655 (2006) (quoting Chernick v. Chernick, 327 Md. 470, 478 (1992)). When “interpreting the parties’ agreement as embodied in a consent judgment, we have applied the ordinary principles of contract construction.” Id. at 656; 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC, 246 Md. App. 1, 18 (2020) (explaining that settlement agreements are “enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts” (quotation marks and citations omitted)). Consent orders “are construed in the same manner as other written documents and contracts, and if the language of the order is clear and unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used.” Taylor v. Mandel, 402 Md. 109, 125 (2007) (citation omitted). A trial court’s decision interpreting the terms of a written contract, including whether the contract language is ambiguous, is a question of law that we review de novo. Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 392 (2019); Frederick Classical Charter Sch., Inc. v. Frederick Cnty. Bd. of Educ., 454 Md. 330, 414-15 (2017); Grimes v. Gouldmann, 232 Md. App. 230, 235 (2017); Myers v. Kayhoe, 391 Md. 188, 198 (2006).
A term is ambiguous “if ‘when read by a reasonably prudent person, it is susceptible of more than one meaning.’” Taylor, 402 Md. at 125 (quoting Calomiris v. Woods, 353 Md. 425, 436 (1999)). Contract language can be ambiguous in two ways: “1) it may be intrinsically unclear; or 2) its intrinsic meaning may be fairly clear, but its application to a particular object or circumstance may be uncertain.” Id. at 125-26 (cleaned up). Depending on the context, a term that is otherwise unambiguous may become ambiguous in a different circumstance. Id. at 126. “If ambiguous, the court must discern its meaning by looking at the circumstances surrounding the order to shed light on the ambiguity, including the motion in response to which it was made.” Id.; Cnty. Comm’rs of
Charles Cnty. v. St. Charles Assocs. Ltd. P’ship, 366 Md. 426, 445 (2001) (“If the contract is ambiguous, the court must consider any extrinsic evidence which sheds light on the intentions of the parties at the time of the execution of the contract.” (quotation marks and citation omitted)). Ultimately, “the 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) (cleaned up).
Wife contends that the use of the phrase “if, as and when” Husband received benefits unambiguously referred to December 1, 2019, the date that Husband began receiving pension payments, prior to the divorce. Husband contends that the meaning of paragraph 7B can be ascertained when read in conjunction with other provisions of the Consent Agreement, specifically paragraph 3, which addressed the distribution of other retirement assets and provided Wife with credits for disbursements paid to Husband prior to the divorce. He asserts that the parties would have included the F&P pension in paragraph 3 had they intended Wife to receive credit for payments made prior to the divorce. According to Husband, the absence of any mention of the F&P pension from paragraph 3 shows that the parties intended that the F&P pension payments made prior to the divorce would remain the sole property of Husband.
In this case, the language of the Consent Agreement, when viewed as a whole, is ambiguous as to whether the parties intended for the payments to Wife to be paid as of December 1, 2019 or October 4, 2022. That ambiguity cannot
be resolved on the record before us. The designation of payments to Wife “if, as and when” paid to Husband could be interpreted literally, as counsel for F&P interpreted it, to mean on the first date that Husband received payment — December 1, 2019. Alternatively, the fact that paragraph 3 addresses “stipulated credit calculations” for various debts and assets, including the F&P DROP payment, indicates that the parties contemplated credits for distributions made during the marriage and specifically excluded prior F&P pension payments because they did not contemplate the payment of those benefits until after the divorce. In either case, resolution of the ambiguity in paragraph 7B of the Consent Agreement and paragraph 5 of the DRO require consideration of evidence regarding the parties’ intent. See Hearn v. Hearn, 177 Md. App. 525, 545-56 (2007) (remanding case for evidentiary hearing on whether a provision in a consent order regarding the husband’s federal pension benefits was the product of mutual mistake, and whether reformation of the consent order was required to conform with the parties’ actual intentions); Sy-Lene of Washington, Inc. v. Starwood Urb. Retail II, LLC, 376 Md. 157, 169 (2003) (remanding case for a hearing to determine the parties’ intent regarding language in a commercial lease referencing a restriction on the number of employee parking spaces available). Accordingly, we remand for an evidentiary hearing to determine the contractual intention of the parties regarding the date on which Wife was to begin receiving her marital share of Husband’s F&P pension, with consideration of extrinsic evidence, as necessary.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Wicomico County Circuit Court’s refusal to modify a confessed judgment. The party challenging the confessed judgement presented no evidence before the circuit court that supported his broad factual and legal statements that there may have been oral modifications to the notes.
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.
assessed as a late fee if any payment or part thereof was 15 or more days late.
On November 13, 2007, Gedamu and Carr signed a second promissory note (the “2007 Note”). Gedamu was to pay Carr $30,000, payable on demand, subject to the same interest rate and late fee provisions as the 2006 Note.
Both the 2006 and 2007 Note contained the following confessed judgment clause:
George Lee Webster (“Webster”), the Appellee, inherited two promissory notes from the estate of his mother, Norma Lee Carr (“Carr”). Both promissory notes contained confession of judgment provisions and were executed by Negede Gedamu1 (“Gedamu”), the Appellant. Webster, through his attorney, filed a Complaint for Confessed Judgment against Gedamu in the Circuit Court for Wicomico County.
After the court granted an order for entry of judgment, Gedamu, represented by counsel, then filed a Motion to Modify Confessed Judgment which was denied by the court and is the subject of this appeal. Both Gedamu and Webster are pro se in this appeal.
One question is raised in this appeal, which we have rephrased as2:
Did the circuit court err in denying Gedamu’s Motion to Modify Confessed Judgment without leave to amend?
For the following reasons, we affirm the circuit court’s decision to deny Gedamu’s motion to modify the confessed judgment.
BACKGROUND
On November 1, 2006, Gedamu and Carr signed a promissory note wherein Gedamu agreed to pay Carr $50,000 with an interest rate of 8% per year (the “2006 Note”). The promissory note provided that Gedamu was to pay in 35 consecutive monthly installments of $500, with the remaining principal and interest due on November 2, 2009. The greater of 5% of the payment or $2 was to be
THE undersigned hereby waive(s) the benefit of the Homestead Exemption and all right to exemption from execution as to the debt evidenced by this obligation and if default be made in the payment of the above debt or interest or either of them, or any installment thereof, at the time limited for the payment thereof, as aforesaid, or upon the breach of any covenant or condition of the mortgage securing this obligation, then this entire debt and interest shall immediately become due and payable, and the undersigned hereby authorize(s) and empower(s) any attorney at law of the State of Maryland, or elsewhere, after such default or breach, to appear for the undersigned in any Court of Record of the State of Maryland, or elsewhere, to waive the issue and service of process against the undersigned and confess a judgment against the undersigned for the amount that may then be due on this obligation, with costs of suit and Fifteen per cent (15%) collection charges and/or attorney’s fees, which the undersigned hereby covenant(s) to pay, and also to release all errors or right to prosecute a petition in error and all stay of execution upon such judgment or proceeding.
Carr died on December 31, 2017. Webster, her son, was appointed as the personal representative of her estate on January 19, 2018. On October 5, 2022, as personal representative, Webster assigned both promissory notes to himself.
Webster filed a Complaint for Confessed Judgment in the Circuit Court for Wicomico County on October 5, 2022. The complaint contained two counts against Gedamu. The first count pertained to the 2006 Note, asserting that Gedamu failed to pay the installments due on and after September 2, 2021, and failed to pay the debt in full upon written demand. The second count pertained to the 2007 Note, asserting that Gedamu defaulted in the installments due for the 2007 Note and failed to pay in full upon written demand. In total, Webster’s complaint requested an aggregate payment of $14,925.64 for the principal,
interest, and late fees for both loans, as well as $2,238.00 for attorney’s fees, not including costs of suit. The circuit court entered judgment in favor of Webster on October 12, 2022, and issued notice of the judgment to Gedamu on the same day.
On November 17, 2022, Gedamu filed a Motion to Modify Confessed Judgment.
The substance of the motion reads in full as follows:
1. [Gedamu] acknowledge[s] that money is owed on the subject promissory note;
2. [Carr] had made modifications to the Promissory note during her lifetime that [Webster] had agreed to honor and had honored for a period of time, including but not limited to, due dates of payment and waiver of late fees;
3. That [Gedamu] ha[s] attempted on several occasions to get a payoff figure for the note from [Webster], but the number was either not forthcoming or it would arbitrarily change, and [Webster] also refused a payoff payment made by [Gedamu] in 2021, by way of summarily returning the payment drafts;
4. That [Gedamu is] anxious to resolve the situation, but [Webster’s] payoff figures are far in excess of the amount due and owing which is approximately Six Thousand Dollars ($6000), including all costs.
Gedamu requested that the judgment be “reduced accordingly.” No additional exhibits or affidavits were attached to the motion.
In opposition to the motion, Webster argued that under Maryland Rule 2-611(d), the court can open, vacate, or modify a confessed judgment only if it finds that the defendant has shown “a substantial and sufficient basis for an actual controversy as to the merits of the action.” Webster asserted that any facts Gedamu could put forward as a defense to the judgment would be inadmissible under the parol evidence rule or Dead Man’s Statute.
The circuit court ultimately denied Gedamu’s motion on December 7, 2022, stating that he had “failed to set forth any evidentiary proffers which would be admissible to establish that there is a substantial and sufficient basis for an actual controversy as to the merits of the action.” Gedamu timely appealed.
DISCUSSION
“A confession of judgment clause in a debt instrument is a device designed to facilitate collection of a debt. It is a provision by which debtors agree to the entry of judgment against them without the benefit of a trial in the event of default on the debt instrument.” Schlossberg v. Citizens Bank of Md., 341 Md. 650, 655 (1996) (citing Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary 464 (2d ed. 1992)).
Maryland Rule 2-611 provides the procedures for requesting a confessed judgment. Sections (a)–(c) of the Rule govern the steps required of the plaintiff requesting the entry of the judgment and of the court in entering that judgment. Sections (d) and (e) govern the defendant’s
ability to modify a confessed judgment:
(d) Motion by defendant. The defendant may move to open, modify, or vacate the judgment within the time prescribed for answering by sections (a) and (b) of Rule 2-321 [“Time for Filing Answer”]. The motion shall state the legal and factual basis for the defense to the claim.
(e) Disposition of motion. If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action, the court shall order the judgment by confession opened, modified, or vacated and permit the defendant to file a responsive pleading.
Put differently, Rule 2-611(d) requires that “the court determine whether the defendant has a potentially meritorious defense to the confessed judgment complaint.” Schlossberg, 341 Md. at 656. The question of whether the defendant has set forth a meritorious defense is a question of law that we review de novo. NILS, LLC v. Antezana, 171 Md. App. 717, 727–28 (2006); Pease v. Wachovia SBA Lending, Inc., 416 Md. 211, 220 (2010).
This Court has described two defenses that would constitute meritorious defenses if substantially and sufficiently pleaded: “1) the execution of the promissory note itself or 2) the amount of debt due on the note.” Antezana, 171 Md. App. at 728. The defendant carries the burden of showing that a meritorious defense exists, but the burden of proof is relatively low. Gambo v. Bank of Md., 102 Md. App. 166, 185 (1994). Still, the defendant “must adduce evidence in support of his [or her] motion sufficient to persuade the fair and reasoned judgment of an ordinary [person] that there are substantial and sufficient grounds for an actual controversy as to the merits of the case.” Stankovich v. Lehman, 230 Md. 426, 432 (1963). The defendant does not need to show that they will ultimately prevail, but “if the evidence is such that persons of ordinary judgment and prudence could fairly draw different inferences from it, the controversy should not be decided as a matter of law but instead should be submitted to a trier of fact.” Id. “Although motions to vacate or strike judgments by confession must be supported by satisfactory evidence of defenses supporting the vacation of such judgments, trial judges must assure themselves that improper advantage has not been taken of the maker of the note.” Garliss v. Key Fed. Sav. Bank, 97 Md. App. 96, 103–04 (1993) (citing Remsburg v. Baker, 212 Md. 465 (1957)). However, the “burden of proof to vacate a confessed judgment is not fulfilled by the mere assertion of a defense.” Murray v. Steinmann, 29 Md. App. 551, 559 (1975).
Gedamu fundamentally presents one defense to the confessed judgment: that he owes less under the 2006 and 2007 Notes than was entered against him in the confessed judgment. Facially, this constitutes a meritorious defense to a confessed judgment, because it contests the amount due. Antezana, 171 Md. App. at 728. However, Gedamu failed to meet even the low evidentiary and pleading bar required for motions to open confessed judgments.3
As previously mentioned, a defendant to a confessed
judgment seeking to amend such judgment must show that “the evidence is such that persons of ordinary judgment and prudence could fairly draw different inferences from it.” Stankovich, 230 Md. at 432. Gedamu presented no evidence before the circuit court that supported his broad factual and legal statements that there may have been oral modifications to the Notes. Although Gedamu presents additional facts before this Court, our review is limited to what was before the trial court in his motion to modify. See Messing v. Bank of Am., N.A., 373 Md. 672, 684 (2003) (“Under this standard [for de novo review], we review the trial court’s ruling on the law, considering the same material from the record and deciding the same legal issues as the circuit court.”); Md. Rule 8-414(a) (“The [reviewing] court ordinarily may not order an addition to the record of new facts, documents, information, or evidence that had not been submitted to the lower court.”).
The mere assertion that “[Carr] had made modifications to the Promissory note during her lifetime that [Webster] had agreed to honor and had honored for a period of time,” without more, is not “sufficient to persuade the fair and reasoned judgment of an ordinary [person] that there are substantial and sufficient grounds for an actual controversy as to the merits of the case.” Stankovich, 230 Md. at 432. Gedamu produced no evidence of payments made at a date later than the one contained in the 2006 Note, no evidence of a late payment made without the assessment of late fees, nor any evidence that would otherwise indicate either Carr’s or Webster’s agreement to an oral modification. In Murray v. Steinmann, this Court held that Murray’s motion to vacate confessed judgment was insufficient. 29 Md. App. at 559. In his motion, Murray asserted that he entered into the contract at issue “based on certain false and misleading statements and representations,” without providing any other details about those statements and representations. Id. at 553. Here, Gedamu has offered more than Murray did by providing some alleged facts, but his motion to modify is still insufficient to meet his burden because it lacks any evidence in support of these facts.
Gedamu asserts that, under Rule 2-303 (“Form of Pleadings”), his motion to modify met the pleading standards. Rule 2-303(a) requires that “[a]ll averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as
practicable to a statement of a single set of circumstances.” Rule 2-303(b) requires that “[e]ach averment of a pleading shall be simple, concise, and direct. A pleading shall contain only such statements of fact as may be necessary to show the pleader’s entitlement to relief or ground of defense.” Although he does not say so outright, Gedamu’s contention regarding Rule 2-303 appears to be that his motion to modify was necessarily concise and without extraneous information. However, as Rule 2-303(b) states, the statements in a pleading should be limited to “such statements of fact as may be necessary to show the pleader’s entitlement to relief or ground of defense.” (Emphasis added.) Gedamu’s motion to modify was concise, but it failed to show his entitlement to relief under Rule 2-611(d) and the standards for opening a confessed judgment.
Gedamu also contends that the circuit court erred in not giving him leave to amend his complaint. This issue is not preserved for our review. Although “nothing in the rule [on allowing amended pleadings] precludes the court from permitting leave to amend on its own initiative,” Higginbotham v. Pub. Serv. Comm’n of Md., 171 Md. App. 254, 276 (2006) (quoting Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 205 (3d ed. 2003)), Maryland appellate courts have made clear that a party must request leave to amend in the circuit court in order to preserve the issue on appeal. See Bender v. Schwartz, 172 Md. App. 648, 689 (2007) (finding no error in circuit court’s failure to grant leave to amend where party did not request such leave); Noellert v. Noellert, 169 Md. 559, 562 (1936) (declining to disturb sustained demurrer without leave to amend where party did not ask for leave to amend). There is nothing in the record that demonstrates that Gedamu indicated in any way to the circuit court that he wanted leave to amend his motion. As such, we will not disturb the circuit court’s denial of Gedamu’s motion to modify the confessed judgment without leave to amend on the sole ground that the circuit court did not, on its own initiative and without indication that it was desired, give Gedamu leave to amend.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s decision to deny Gedamu’s motion to modify the confessed judgment.
JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Webster also included Alemnesh A. Gedamu, Negede Gedamu’s wife, in the complaint, as she also signed the promissory notes at issue. She did not note an appeal.
2 Gedamu presented the following questions:
1. Did the trial court err in ruling in favor of the appellee while[] appellant pleaded to disclose legally sufficient defense.
2. Did the trial court err in its decision to grant the appellee’s motion [] without leave to amend.
Webster identifies the following “issues” originating from Gedamu’s brief:
1. The Appellant[’]s brief does not conform to applicable Maryland Rules.
2. Did the Trial Court err in ruling in favor of the Appellee while[] Appellant pleaded to disclose legally sufficient defense.
3. Did the court err in its decision to grant the Appellee’s motion without leave to amend.
4. Appellee’s failure to produce a viable contract to constitute a claim.
5. Appellee’s failure to produce accurate account report to constitute a claim.
6. Appellee’s Mother Mrs. Norma Lee Webster Carr waived late fees.
Webster also requested that this Court dismiss the appeal. We find Webster’s first “issue” to be without merit, as dismissal for nonconformity with the Rules is discretionary and courts are generally more lenient with pro se litigants. In re Joshua W., 94 Md. App. 486, 491 (1993); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Gedamu’s brief substantially complied with the Maryland Rules, and we decline to dismiss on the basis of noncompliance.
3 In his opposition to Gedamu’s motion to modify and repeated in his brief in this Court, Webster argued that either or both the parol evidence rule and/or the Dead Man’s Statute, Md. Code (2006, 2020 Repl. Vol.), Courts & Judicial Proceedings § 9-116, would prevent the admission of any evidence that Gedamu could produce to support his defense if the judgment were opened. We do not address these arguments, as we agree with the circuit court that Gedamu “failed to set forth any evidentiary proffers which would be admissible to establish that there is a substantial and sufficient basis for an actual controversy as to the merits of the action as required by Rule 2-611[(d)].”
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 05 MFLU Supp. 62 (2024)
Parental; best interests; termination
In re: L.D.
No. 854, September Term 2023
Argued before: Arthur, Leahy, Shaw, JJ.
Opinion by: Shaw, J.
Filed: Mar. 29, 2024
The Appellate Court affirmed the Baltimore City Circuit Court’s termination of the mother’s parental rights. The evidence showed that mother failed to address her substance abuse issues over the course of the minor’s entire life, failed to meaningfully provide for the minor, failed to be present and significantly engage in the minor’s upbringing, did not parent the minor and did she show a desire to parent the minor.
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.
Bayview Medical Center prematurely and she was born with methadone in her system. Shortly afterwards, L.D. experienced withdrawal symptoms and morphine was administered to ease her condition. Mother tested positive for methadone and marijuana at the hospital after giving birth. L.D. remained in the Neonatal Intensive Care Unit (NICU) for over a month to address her methadone withdrawal symptoms. Mother returned to the CAP Program after giving birth. She was later transferred to outpatient care due to her continued drug use. Mother was subsequently discharged from the program, as she continued to test positive for heroin, fentanyl, cocaine, clonazepam, and marijuana.
On December 15, 2020, Appellee, the Baltimore City Department of Social Services, filed a petition in the Circuit Court for Baltimore City seeking guardianship of Appellee child L.D. with the right to consent to adoption or long-term care short of adoption.1 Father J.D. filed a notice of objection to the petition on January 20, 2021,2 and Appellant, Mother J.W. filed a notice of objection on March 10, 2021. Following a series of hearings, Father withdrew his objection, and the juvenile court granted the Department’s petition over the objection of Mother, finding that the termination of parental rights was in the best interest of L.D. Mother timely appealed and presents the following questions for our review:3
Were the court’s factual findings supported by sufficient evidence?
Did the court err in concluding that exceptional circumstances existed to warrant terminating Mother’s parental rights in L.D.?
For reasons to follow, we answer the first question in the affirmative and the second question in the negative and affirm the judgment of the circuit court.
BACKGROUND
In February 2018, a few weeks before giving birth to L.D., Mother sought residential treatment at Johns Hopkins Bayview Medical Center in the Center for Addiction and Pregnancy (CAP) in Baltimore City, where she was prescribed methadone due to her substance abuse. Prior to her participation in the CAP program, Mother resided in Virginia which she referred to as her “main, stable home” in her notice of objection.
On March 2, 2018, L.D. was delivered at Johns Hopkins
On April 9, 2018, the Department filed a petition in the Circuit Court for Baltimore City alleging that L.D. was a child in need of assistance (“CINA”). An Emergency Shelter Care Hearing was held, and at its conclusion, the magistrate recommended granting the Department limited guardianship and that L.D. be placed in shelter care. The circuit court judge accepted the magistrate’s recommendations and ordered the Department to provide care and custody for L.D. in shelter care. Mother requested that L.D. be placed with family in Virginia, however, L.D.’s placement in Virginia with Mother’s grandmother was denied,4 and her aunt in Virginia declined placement. Following L.D.’s hospital discharge, she was placed in a foster home.
A Contested Adjudication Hearing was held on August 2, 2018. At the conclusion of the hearing, the magistrate recommended that L.D. be declared a CINA and that limited guardianship be awarded to the Department. The circuit court judge agreed and issued an order on September 11, 2018.5 Thereafter, the court held additional hearings to assess and monitor the progress of L.D., the Department’s efforts and her parents’ involvement.
Two years later, on December 15, 2020, the Department filed a petition for guardianship with the right to consent to adoption or long-term care short of adoption for L.D. Mother and Father filed Notices of Objection. The Termination of Parental Rights (TPR) hearing commenced on March 17, 2022, as a virtual hearing. The Department called Mother as its first witness. On direct examination, Mother testified that she resided in Salisbury with her significant other and her daughter H.D. She testified that she was employed by a cleaning service and had worked there for eight months. She provided no employment documentation. When asked what financial support she gave the Department for L.D., Mother testified that she was unaware that she could make financial contributions, but that she provided L.D. with clothes, shoes
and gifts on her birthday and Christmas.
On cross-examination, Mother testified that shortly after L.D. was born, she enrolled in an in-patient substance abuse program at Chrysalis House6 located in Crownsville with H.D. She stated that she was removed from the program after being there for almost a year because she relapsed. She then moved to Salisbury because her aunt, grandmother, significant other and L.D.’s Father resided there. During the hearing, Mother experienced a medical issue, Father’s phone lacked power and thus, the hearing was continued.
When the hearing resumed on April 4, 2022, the Department called Brenda Harriel as a witness. Ms. Harriel is the coordinator of the Juvenile Section of the Court Medical Services Division, and the court accepted her as an expert in the field of parental fitness evaluations, adult and family dynamics, and skills pertaining to child interviewing and interactions. Ms. Harriel testified that she evaluated L.D.’s foster parents in September 2021 and a copy of her report was admitted into evidence. She testified that the court requested a bonding evaluation between the foster parents and L.D. and the birth parents and L.D., however, neither Mother nor Father appeared for their evaluations. She testified that L.D.’s foster parents had fostered six children previously and many of those children had been reunited with their birth families. She stated that L.D.’s foster parents had the capacity and interest in continuing to care for the social, emotional, educational, material and moral wellbeing of L.D. During the hearing’s recess, Mother was arrested for an open warrant7 and the hearing was again postponed. The next hearing date scheduled for April 5, 2022, was also postponed due to Mother’s absence.
On December 14, 2022, the hearing resumed, after several additional postponements.8 Dr. Ruth Zajdel, a clinical psychologist, was accepted as an expert in children’s relationships, psychological evaluation of children and adults, parental fitness and bonding study assessments of biological parents and foster parents, evaluating secure attachments and providing related treatment recommendations. Dr. Zajdel serves as a contract employee at the Baltimore City Circuit Court’s Medical Services Office. She testified that she was asked to perform a parental fitness evaluation and bonding study for
L.D. and her foster parents, and L.D. and her biological parents. According to her, L.D.’s biological parents did not appear for their appointments. Dr. Zajdel testified that she conducted a bonding evaluation with L.D.’s foster parents on October 13, 2021, and her report was admitted into evidence. Dr. Zajdel affirmed the opinion in her report, which stated: [L.D.] has been in the care of [Ms. P] and [Ms. W] (foster care providers) since her discharge from the hospital after birth. Their current bonding evaluation suggests that [L.D.] is securely bonded to both caregivers. [L.D.] appeared to take pleasure in all of her interactions with [Ms. P] and [Ms. W] and clearly utilized them as a secure base. [L.D.] was observed seeking out physical affection from [Ms. P] and [Ms. W] several times and chose to spend a majority of the session actively engaged with her caregivers or in close physical proximity to them. [L.D.]
also appeared content when her caregivers offered her praise and looked to both of them for reassurances in an unfamiliar environment. For their part, [Ms. P] and [Ms. W] were both nurturing and compassionate during all of their interactions with [L.D.], demonstrated a deep understanding for the child, were both able to engage with her in an age-appropriate manner, and were loving and nurturing throughout the session.
The Department then called Dawn Blades, a Child Protective Services (CPS) supervisor in Worcester County, as a witness. The Department showed Ms. Blades a CPS investigative summary where Mother was indicated for neglect of H.D. in 2020. Ms. Blades testified that she reviewed and signed off on the document. The summary was then admitted into evidence over Mother’s objection. It stated: [Mother] made the choice to consume alcohol to the point of intoxication while her 5 year old daughter, [H.D.], was in her care. [Mother] reports she was the individual solely responsible for the care and supervision of [H.D.] and that she was unable to do so effectively due to her level of intoxication. [Mother] stated that her prescribed medication heightens the effect alcohol has on her. [Mother] further admitted that she called a friend, [Mr. R], to give she and [H.D.] a ride home and was aware that [Mr. R] was acting strangely. Even with these concerns, [Mother] allowed [Mr. R] to drive both she and [H.D.], which resulted in [Mr. R] getting pulled over and charged with a DUI. Additionally, this is the second time [H.D.] has been in a vehicle with an intoxicated driver in the past two months, the first incident was on June 11, 2020 while [Mother] was driving under the influence. Given the reasons listed above, [Mother] failed to provide proper care and supervision of [H.D.] and placed her at substantial risk of harm by allowing [H.D.] to ride in a vehicle with an impaired driver.
The TPR hearing was subsequently postponed several more times and began again, approximately a year later, on March 29, 2023, and May 10, 2023. At the hearing, the Department called Emma Williamson, a family services case worker assigned to L.D.’s case from November 16, 2018, to December 10, 2020. She testified that when she received the case, L.D. was in foster care and she did not know where L.D.’s parents were located. Ms. Williamson stated that she did not have contact with L.D.’s parents for the first few months of her assignment and that she continued to attempt to contact Mother, but did not hear from her until April 2019. She stated that she scheduled a family involvement meeting with Mother to discuss L.D.’s case and drafted a service agreement which Mother signed. Ms. Williamson testified that she had limited contact with Mother after the meeting until Mother was discharged from the Chrysalis House and moved to Salisbury. Ms. Williamson stated that Mother contacted her before the COVID-19 pandemic and informed her that she had been going through a lot and that she had recently relocated. Ms. Williamson testified that Mother requested visitation and the Department offered her virtual visits with L.D. supervised by her foster parents due to the COVID-19 pandemic. She stated that Mother did not attend
most of the virtual visits. Ms. Williamson further testified that between February 2020 and December 2020, Mother did not inquire regarding L.D.’s medical and therapy appointments.
The Department’s next witness was Keith Oliver, a case worker for L.D. from December 12, 2020, to October 10, 2022. He testified that he made contact with Mother four months after being assigned L.D.’s case. He had incorrect contact information for Mother but eventually received her correct information from L.D.’s foster parents. When he spoke with Mother, he inquired about her interactions with L.D. Mother expressed that she had not had visits with L.D. in quite some time and that the visits were inconsistent. Mr. Oliver offered Mother in-person visits at a mall in Baltimore County. He testified that Mother was consistent with the in-person visits and would travel from Salisbury once a month to see L.D., but that she did cancel some of the visits. Mr. Oliver testified that he completed a home health inspection at Mother’s residence and that there were three things that prevented Mother from passing the inspection: a hole in the front porch, non-working fire detector and peeling paint. He stated that Mother later sent evidence that the issues were remedied. He testified that Mother did not ask to attend L.D.’s medical or therapy appointments and that she was not granted unsupervised visits with L.D. while he was assigned to the case.
The Department’s final witness was Towanda Harrell Anderson, who was assigned L.D.’s case in November 2022. Ms. Harrell Anderson testified that she had contact with Mother primarily through text messages. She stated that she scheduled monthly in-person visitations at the Chuck E. Cheese in Annapolis to accommodate Mother and Father since they lived on the Eastern Shore. She testified that Mother’s attendance at the visits was “pretty consistent.” She stated that L.D. enjoyed the visits because she was able to see her siblings and that Mother would bring her gifts. When asked whether L.D. knew that her biological siblings were her siblings, Ms. Harrell Anderson stated, “she knows that they are [Mother’s] children.” During the visits, L.D. would ask Ms. Harrell Anderson when she would return to her foster parents’ home.
Ms. Harrell Anderson also testified that based on her observations during at-home visits, L.D. thrived in her placement with her foster parents. Ms. Harrell Anderson testified that when she would drive L.D. back from visits with Mother, L.D. would get excited as they approached her foster parents’ home. She stated that L.D. was excited to return home to see her cat and that she referred to the other children in her foster parent’s home as her siblings. She testified that L.D. referred to her foster parents as “mommy [foster parent’s first name]” and that she referred to Mother as “mommy [Mother’s first name].”
Mother testified in her case in chief and stated that she always wanted L.D. to be reunited with her and her siblings and that she did not want the court to grant the Department’s petition. She stated that she was currently enrolled in the Focus Point program and the B&J Health Services maintenance program. She stated that she meets with her counselor at Focus Point and that she is expected to abstain from illicit substances and complete random drug tests. She
stated that she is enrolled in the maintenance program at B&J services because she was put on pain medication for a knee injury and became addicted to it. Mother testified that she is not using illicit drugs. She testified that she currently lives with her seven-year-old daughter and eight-month-old daughter in a rental home and that she planned to find a new home in Salisbury in May.
During cross-examination, Mother stated that she remained in Baltimore after L.D. was born. She testified that she resided with her grandmother in Virginia and L.D.’s father’s mother after being discharged from the CAP Program and before making the transition to the Chrysalis House in Crownsville in the beginning of 2019. While at the Chrysalis House, she had supervised visits with L.D. on Sundays. She testified that she was removed from the program due to using cocaine after staying sober for eleven and a half months. When asked whether she considered herself sober, Mother stated, “I consider myself as sober as I can be right now, yes.” The Department then asked Mother about her current treatment plan:
[The Department]: Are there any other substance abuse programs that you participate in?
[Mother]: I would have no more time to participate in any more substance abuse programs. I do sometimes go to meetings so when I can, I do, but I have a new baby so it’s a little harder, but I go to church and we go to church and that’s the best method for me.
[The Department]: If you – [Mother’s name], for sobriety, sobriety means refraining from all substances. Would you agree with that statement, ma’am?
[Mother]: I refrain from all illicit substances, yes.
[The Department]: But would you agree with me that sobriety means you refrain from alcohol, medical marijuana, all of those substances that could trigger a relapse, would you agree with that?
[Mother]: Complete sobriety is for - yes, but you have to be ready and if you’re not ready, that triggers the relapse so you take a step down and a step down and a step down, it takes time.
[The Department]: So –
[Mother]: Being an addict, I would know a lot about this.
[The Department]: So you’re not completely sober?
[Mother]: I am on maintenance and I am comingsupposed - I am coming down, they put a hold on it because of all of this going on but I am trying to come off of maintenance but it’s harm reduction, I have a lot going on, I am facing losing my daughter right now, it’s harm reduction. Everybody knows about it.
At the conclusion of the hearing, and after closing arguments by the Department and Mother’s attorney, Father made a Motion to Withdraw his objection and he entered a Post- Adoptive Contract Agreement.
The court issued its written opinion on June 6, 2023, granting the Department’s petition. It concluded:
Considering the respondent’s strong relationship with her foster parents, the severely limited nature of respondent’s relationship with mom, the willingness and ability of those foster parents to provide for the respondent and mom’s seemingly unable or unwillingness to make meaningful progress towards reunification over the course of five years, the Court finds that there is clear and convincing evidence of exceptional circumstances that show it is not in the best interest of the respondent to maintain her parent-child relationship as the mom.
Mother noted a timely appeal.
STANDARD OF REVIEW
This Court applies three different, but interrelated standards of review: “(1) a clearly erroneous standard, applicable to the juvenile court’s factual finding; (2) a de novo standard, applicable to the juvenile court’s legal conclusion; and (3) ‘when the appellate court views the ultimate conclusion of the [juvenile court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [juvenile court’s] decision should be disturbed only if there has been a clear abuse of discretion.’”
In re B.C., 234 Md. App. 698, 707–08 (2017) (citing Davis v. Davis, 280 Md. 119, 126 (1977)). 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,” and when the court’s decision is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” In re Andre J., 223 Md. App. 305, 323 (2015); In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 45 (2017).
“In reviewing the juvenile court’s decision [to terminate parental rights,] our function . . . is not to determine whether, on the evidence, we might have reached a different conclusion. Rather, it is to decide only whether there was sufficient evidence—by a clear and convincing standard—to support the chancellor’s determination that it would be in the best interest of [the child] to terminate the parental rights of the natural [parent].” In re B.C., 234 Md. App. at 707–08. “[T] he trial court’s determination is accorded great deference, unless it is arbitrary or clearly wrong.” In re Adoption/ Guardianship of C.A. & D.A., 234 Md. App. at 46.
DISCUSSION
It is well-established that parents have a fundamental right to raise their children. See In re Adoption/Guardianship of C.A. and D.A., 234 Md. App. at 47. However, a parent’s fundamental right to raise his or her child is not absolute. In re Yve S., 373 Md. 551, 568 (2003). That right “must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves,
from abuse and neglect.” In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 497 (2007).
“When the State seeks to terminate parental rights without the consent of the parent, the standard is whether the termination of rights would be in the best interest of the child.” In re Abiagail C., 138 Md. App. 570, 586 (2001). It is generally presumed that it is in the best interest of children to remain in the care and custody of their parents. In re Yve S., 373 Md. at 582. “That presumption, however, ‘may be rebutted upon a showing either that the parent is ‘unfit’ or that ‘exceptional circumstances’ exist which would make continued custody with the parent detrimental to the best interest of the child.’” In re Adoption/Guardianship of L.B., 229 Md. App. 566, 589 (2016) (citations omitted). “Because the trial court’s decision may forever deprive the parent of his or her fundamental parental rights, this Court must make express findings of fact respecting all of the applicable statutory factors of FL § 5–323.” In re B.C., 234 Md. App. 698, 707 (2017). “If, based on these factors, the court finds by clear and convincing evidence that the child’s best interests are served by a termination of parental rights, the court may terminate said rights.” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. at 49.
I. The court’s factual findings were supported by sufficient evidence.
Mother argues the court made three specific factual findings relevant to several of the required factors under Md. Fam. Law § 5-323(d) that were clearly erroneous and not supported by substantial evidence. Appellees, the Department and L.D., argue that the court made sufficient factual findings and the court did not err.
First, Mother contends that the court’s finding that “Mother purposely elected to remove herself from Baltimore” and chose to reside in Salisbury while L.D. remained in foster care in Baltimore was erroneous. Mother contends that she “relocated” back to Salisbury rather than “mov[ing]” to Salisbury and that there was no evidence introduced to suggest that she resided anywhere other than Salisbury before temporarily attending the CAP Program in Baltimore.
When asked why she went to Salisbury on crossexamination, Mother stated:
Well, because that’s -- my aunt lives there – my grandmother had started staying with my aunt part time. I – my significant other, who was just a good friend at the time, he was working at Hudson House, which is a treatment facility down here. He was a tech for the treatment facility.
So as far as my sobriety and being close to my family and being close – you know, my daughter being close to her father, it was the best fit for me at the time. And that way I stayed in Maryland so I could have the option of getting my daughter would it ever come to that option again, which I was hoping – and I still hope that it does.
In its opinion, the court stated:
The record reflects that when scheduled virtual or inperson visits failed to materialize, it was attributable to Mom or Dad. There is no indication in the record before the Court that either BCDSS or Respondent’s foster parents ever failed to make Respondent available for these scheduled visits. Mom argued at trial that her efforts to attend the in-person visits were hampered by the physical distance between her and Respondent, but the Court must note that Mom chose to move to Salisbury only after her child was placed in the home of a foster care family in Baltimore City. ***
As mentioned previously, Mom repeatedly argued that the physical distance between Respondent and Mom was a major contributor to this inconsistent contact. At least as it concerns in-person visitation, that is probably true. However, Mom’s argument fails to account for the reason this physical distance exists: Mom chose to move to Salisbury only after her child was committed to the custody of BCDSS. Mom did not provide a reason why it was necessary to relocate to Salisbury. She did not have, (and indeed still does not have), a permanent residence in the region. At the time she relocated, she had no family in the area outside of one or two relatives. Her older daughter was living in Virginia with a relative, not Salisbury. The evidence before the Court, then, shows that Mom voluntarily created this distance to suit a whim or preference, not out of any kind of necessity.
Contrary to Mother’s assertion on appeal, the record reflects that Mother previously acknowledged living with her grandmother in Virginia. In fact, she requested that L.D. initially be placed with her grandmother in Virginia, a placement that was denied because Mother lived there. Also, prior to her Chrysalis House admission, she was not living in Salisbury, but rather in Virginia.
During the hearing, Mother explicitly testified that she made a conscious decision to go to Salisbury because “it was the best fit for [her] at the time.” She stated “I stayed in Maryland so I could have the option of getting my daughter. . .” In our review of the record, including Mother’s testimony, we hold the court’s findings in this regard, were clearly supported by the evidence and were not erroneous.
Next, Mother contends the court erroneously found that she failed to meaningfully engage and communicate with the Department. Ms. Williamson, who was first assigned to L.D.’s case in November 2018, testified that she did not have contact with L.D.’s parents for the first few months that she was assigned to the case and that she continued to attempt to contact Mother and did not hear from her until April 2019. Ms. Williamson stated that she had limited contact with Mother after the April meeting until Mother was discharged from the Chrysalis House and relocated to Salisbury. Mr. Oliver, who was the second case worker assigned to L.D.’s case, testified that he made contact with Mother four months after receiving the case. He stated that he remembered going through three phone numbers before receiving the correct number for Mother from L.D.’s foster parents. Ms. Harrell Anderson, who was assigned to L.D.’s case in November
2022, testified that she had contact with Mother primarily through text messages and the monthly in-person visitations. The court found:
Mom argued in both her opening and closing arguments that BCDSS failed to meaningfully engage with Mom. To be sure, from 2018 to 2023, there were several periods where there was little to no communication between Mom and the agency. However, the dearth of communications does not reflect a failure of the agency to engage with Mom. Rather, it reflects a failure of Mom to engage with the agency. Shortly after Respondent was removed from her care, Mom left Baltimore and moved to Salisbury without providing BCDSS with an updated address. The same thing happened in April 2020 when she left Chrysalis House and moved back to Salisbury. Mom failed to give any kind of notice of this move. Ms. Williamson and BCDSS had no idea where Mom was or the best way to contact her until Mom herself deigned to initiate contact. Mom further frustrated efforts at reunification by failing to provide BCDSS with documents critical to reunification, like information regarding the status of her living situation or written consent authorizing access to her medical records.
***
The Court finds that from 2018 to 2023, Mom has been, at best, inconsistent in maintaining contact with BCDSS, Respondent’s foster parents, and Respondent herself.
The Court has already discussed Mom’s repeated failures to stay in consistent contact with BCDSS. Mom would sometimes go weeks or months without contacting BCDSS. Moreover, Mom often failed to inform BCDSS about changes to her address and contact information, which frustrated the agency’s ability to contact Mom.
Mom’s contact with Respondent and her foster parents has arguably been more consistent: [Mrs. P] testified that Mom usually contacted her several times a month to inquire about Respondent’s status.
Mom, however, has struggled to maintain consistent contact with Respondent herself. Her attendance at both virtual and in-person visitations has been spotty. [Mrs. P] testified that, while virtual visitation was weekly, Mom on average would appear for only two scheduled virtual visits a month. Similarly, Mr. Oliver testified that the inperson visits were to occur monthly, but Mom would sometimes go several months without attending these visits.
Again, based on the totality of the record, we hold that the court’s factual findings are fully supported by the evidence presented. L.D.’s assigned case workers testified that while there was some communication with Mother, it was not consistent. There were periods of time when Mother failed to update her contact information with the Department, failed to initiate contact and failed to maintain communication with the Department as required by the service agreements that she signed on June 3, 2018, and
May 14, 2019. 9 These lapses in communication were not attributable to the Department and they undermined the Department’s efforts to engage with Mother and to have her more fully interact with L.D.
We next address Mother’s contention that the court erroneously found that Mother’s past substance abuse issues “either exist in the present or cast an unacceptable pall over L.D.’s best interests.” Mother contends that there was no evidence in the record to suggest she had engaged in substance abuse within the past several years at a minimum.
We do not agree. The record indicates that Mother has struggled with abuse issues for many years with minimal success. We note, initially, the circumstances surrounding the birth of L.D. and Mother’s early termination from the CAP program. There was also testimony from Mother about her substance abuse issues, including that she was removed from the Chrysalis House in 2020 due to drug use. Later, a Worcester County CPS investigative summary revealed that Mother was under the influence of alcohol in a vehicle with her five-year-old daughter H.D twice in the summer of 2020. Mother stated the following regarding her sobriety at the May 2023 hearing:
[The Department]: If you – [Mother’s name], for sobriety, sobriety means refraining from all substances. Would you agree with that statement, ma’am?
[Mother]: I refrain from all illicit substances, yes.
[The Department]: But would you agree with me that sobriety means you refrain from alcohol, medical marijuana, all of those substances that could trigger a relapse, would you agree with that?
[Mother]: Complete sobriety is for - yes, but you have to be ready and if you’re not ready, that triggers the relapse so you take a step down and a step down and a step down, it takes time.
[The Department]: So –
[Mother]: Being an addict, I would know a lot about this.
[The Department]: So you’re not completely sober?
[Mother]: I am on maintenance and I am comingsupposed - I am coming down, they put a hold on it because of all of this going on but I am trying to come off of maintenance but it’s harm reduction, I have a lot going on, I am facing losing my daughter right now, it’s harm reduction. Everybody knows about it.
The court in its opinion, found that:
Certainly, there were periods where Mom was clearly making progress in this regard, like her stay at Chrysalis House, but she failed to maintain this progress. Mom broke months of sobriety when she chose to use cocaine in March 2020. Then, only a few months following that relapse, the Worchester [sic] Department of Social
Services indicated her for neglect after she got drunk and placed her other daughter in a car with a drunk driver. Even in her testimony to the Court, while Mom claimed she was not using illicit substances, she was unable to claim she was not consuming alcohol or marijuana. The Court finds this particularly disturbing because Mom’s abuse of these very substances is the reason why BCDSS took custody over Respondent and why Worchester [sic] County indicated Mom for neglect of [H.D.]. Substance abuse does not have to be illicit for it to put a child in danger. Mom’s failure to grasp this fact more than five years after Respondent was taken from her care is distressing, to say the very least.
As we see it, the court’s factual findings regarding Mother’s substance abuse issues were not clearly erroneous. The findings were based on the record, including Mother’s own testimony that she was not completely sober but rather, “I am on maintenance and I am coming down, they put a hold on it because of all of this going on but I am trying to come off of maintenance but it’s harm reduction, I have a lot going on.”
II. The court’s findings were sufficient to conclude that exceptional circumstances existed to warrant the termination of Mother’s parental rights.
Md. Code Ann., Fam. Law § 5-323 (b) states that “[i]f, after consideration of factors as required in this section, a juvenile court finds by clear and convincing evidence that a parent is unfit to remain in a parental relationship with the child or that exceptional circumstances exist that would make a continuation of the parental relationship detrimental to the best interests of the child such that terminating the rights of the parent is in a child’s best interests, the juvenile court may grant guardianship of the child without consent otherwise required under this subtitle and over the child’s objection.” “[T]he factors under FL Section 5–323(d) serve both as the basis for a court’s finding (1) whether there are exceptional circumstances that would make a continued parental relationship detrimental to the child’s best interest, and (2) whether termination of parental rights is in the child’s best interest.”10 In re Adoption of Ta’Niya C., 417 Md. 90, 116 (2010). “An exceptional circumstances analysis must turn on whether the presence – or absence – of particular facts and circumstances makes continuation of the parental relationship detrimental to the child’s best interests.” In re Adoption/Guardianship of H.W., 460 Md. 201, 231 (2018). Our Supreme Court in In re Adoption/Guardianship of Rashawn H. stated the following regarding the court’s role in TPR cases:
The court’s role in TPR cases is to give the most careful consideration to the relevant statutory factors, to make specific findings based on the evidence with respect to each of them, and, mindful of the presumption favoring a continuation of the parental relationship, determine expressly whether those findings suffice either to show an unfitness on the part of the parent to remain in a parental relationship with the child or to constitute an exceptional circumstance that would make a continuation of the parental relationship detrimental to the best interest of the
child, and, if so, how. If the court does that—articulates its conclusion as to the best interest of the child in that manner—the parental rights we have recognized and the statutory basis for terminating those rights are in proper and harmonious balance.
In re Adoption/Guardianship of Rashawn H., 402 Md. at 501.
Mother argues the trial court failed to make any specific findings in two areas related to exceptional circumstances: L.D.’s bond with her mother; and whether severing that bond would be detrimental to L.D.’s best interests. Appellees, the Department and L.D. argue that the court’s opinion contained a detailed analysis of the Family Law § 5-323(d) statutory factors that supported its conclusion that there is clear and convincing evidence of exceptional circumstances that it is not in the best interest of L.D. to maintain her parent- child relationship with Mother.
In its opinion, the court carefully detailed each factor set forth under Md. Code Ann., Fam. Law § 5-323(d) and stated: “[h]aving considered each factor enumerated in § 5- 323(d) of the Family Law Article, the Court finds, by clear and convincing evidence, that exceptional circumstances exist to overcome the presumption that Respondent’s best interests are served by the continuance of the parental relationship.” In our view, the court carefully followed the statutory requirements. The court held:
(d)(1)(i) ALL SERVICES OFFERED TO THE PARENT BEFORE THE CHILD’S PLACEMENT, WHETHER OFFERED BY A LOCAL DEPARTMENT, ANOTHER AGENCY, OR A PROFESSIONAL:
The Court, due to the nature of this case, cannot make any findings or conclusions regarding this factor. Respondent was removed from Mom’s care because of an emergency petition for shelter care filed a little over a month after her birth. Placement of Respondent, therefore, occurred at the same time BCDSS involved itself in Respondent’s case, and so no services could have been provided prior to placement.
***
(d)(1)(i) THE EXTENT, NATURE, AND TIMELINESS OF SERVICES OFFERED BY A LOCAL DEPARTMENT TO FACILITATE REUNION OF THE CHILD AND PARENT:
The Court finds that, despite Mom’s arguments to the contrary, BCDSS made meaningful efforts to facilitate reunion between Mom and Respondent, despite Mom’s repeated failures to maintain consistent contact with the agency.
***
(d)(1)(i) THE EXTENT TO WHICH A LOCAL DEPARTMENT AND PARENT HAVE FULFILLED THEIR OBLIGATIONS UNDER A SOCIAL SERVICES AGREEMENT, IF ANY
The Court finds that BCDSS substantially complied with the terms of the service agreements it entered with Mom. Mom, however, has failed to do the same.
***
(d)(2)(i) THE EXTENT TO WHICH THE PARENT HAS MAINTAINED REGULAR CONTACT WITH THE CHILD, THE LOCAL DEPARTMENT TO WHICH THE CHILD HAS BEEN COMMITTED, AND IF FEASIBLE, THE CHILD’S CAREGIVER:
The Court finds that from 2018 to 2023, Mom has been, at best, inconsistent in maintaining contact with BCDSS, Respondent’s foster parents, and Respondent herself.
***
(d)(2)(ii) THE PARENT’S CONTRIBUTION TO A REASONABLE PART OF THE CHILD’S CARE AND SUPPORT, IF THE PARENT IS FINANCIALLY ABLE TO DO SO:
The Court finds that Mom has made minimal contributions to Respondent's care and support since 2018. ***
(d)(2)(iii) THE EXISTENCE OF A PARENTAL DISABILITY THAT MAKES THE PARENT CONSISTENTLY UNABLE TO CARE FOR THE CHILD’S IMMEDIATE AND ONGOING PHYSICAL OR PSYCHOLOGICAL NEEDS FOR LONG PERIODS OF TIME
The Court finds that Mom does not have a parental disability. The parties neither claimed Mom has disability, nor did they present evidence to support such a claim.
***
(d)(2)(iv) WHETHER ADDITIONAL SERVICES WOULD BE LIKELY TO BRING ABOUT A LASTING PARENTAL ADJUSTMENT SO THAT THE CHILD COULD BE RETURNED TO THE PARENT WITHIN AN ASCERTAINABLE TIME NOT TO EXCEED 18 MONTHS FROM THE DATE OF PLACEMENT UNLESS THE JUVENILE COURT MAKES A SPECIFIC FINDING THAT IT IS IN THE CHILD’S BEST INTERESTS TO EXTEND THE TIME FOR A SPECIFIED PERIOD
It is unclear if the above factor applies in the instant case because well over 18 months have passed since placement in April 2018. However, insofar as it concerns the likelihood of achieving placement 81 months from the present date, the Court finds that, given the length of time that Respondent has already been in her current placement and Mom’s limited progress during that time, it is unlikely that lasting parental adjustments could be achieved in the next 18 months to bring about reunification.
***
(d)(3)(i) WHETHER THE PARENT HAS ABUSED OR NEGLECTED THE CHILD OR A MINOR AND THE SERIOUSNESS OF THE ABUSE OR NEGLECT
The Court finds that Mom has neglected both Respondent and Respondent’s sister, [H.D.]. With respect to Respondent, because of Mom’s substance abuse during her pregnancy, Respondent was born drug exposed on March 2, 2018, and the Court adjudicated her CINA on April 9, 2018. With respect to [H.D.], the Worchester [sic] County Department of Social Services indicated Mom fort neglect in July 2020 because, after voluntarily intoxicating herself, she chose to place [H.D.] in a vehicle with a drunk driver.
***
(d)(3)(ii) WHETHER THE MOTHER, AT THE TIME OF ADMISSION AT THE HOSPITAL FOR DELIVERY, OR THE CHILD, AT THE TIME OF BIRTH TESTED POSITIVE FOR A POSITIVE TOXICOLOGY TEST; AND WHETHER THE MOTHER REFUSED THE LEVEL OF DRUG TREATMENT RECOMMENDED BY A QUALIFIED ADDICTIONS SPECIALIST, PHYSICIAN, OR PSYCHOLOGIST
The Court finds that, at the time of her birth, Respondent tested positive for methadone and marijuana. The Court also finds that, at the time Mom checked herself into the hospital to deliver Respondent, she tested positive for a panoply of drugs herself.
***
(d)(3)(iii) WHETHER THE PARENT SUBJECTED THE CHILD TO CHRONIC ABUSE, CHRONIC AND LIFE-THREATENING NEGLECT, SEXUAL ABUSE, OR TORTURE
The Court does not find that Mom subjected Respondent to chronic abuse, chronic neglect, sexual abuse, or torture.
***
(d)(3)(iv) THE PARENT HAS BEEN CONVICTED, IN ANY STATE OR ANY COURT OF THE UNITED STATES, OF A CRIME OF VIOLENCE AGAINST A MINOR OFFSPRING OF THE PARENT, THE CHILD, OR ANOTHER PARENT OF THE CHILD; OR AIDING OR ABETTING, CONSPIRING, OR SOLICITING TO COMMIT A CRIME DESCRIBED
The Court does not find that Mom has been convicted of any crime of violence against Respondent or any other person described in this sub-factor. Nor does the Court find that Mom aided and abetted any crime of violence against Respondent or anyone else listed in this subfactor.
***
(d)(3)(v) WHETHER THE PARENT HAS INVOLUNTARILY LOST PARENTAL RIGHTS TO A SIBLING OF THE CHILD
The Court does not find that Mom has involuntarily lost the rights to any of her other children.
***
(d)(4)(i) THE CHILD’S EMOTIONAL TIES WITH AND FEELINGS TOWARD THE CHILD’S PARENTS, THE CHILD’S SIBLINGS, AND OTHERS WHO MAY AFFECT THE CHILD’S BEST INTERESTS SIGNIFICANTLY
The Court finds that, while there is some evidence that emotional ties exist between Respondent and her biological family, these ties are not significant enough to have a meaningful impact on the best interests of Respondent.
***
(d)(4)(ii) THE CHILD’S ADJUSTMENT TO COMMUNITY, HOME, PLACEMENT, AND SCHOOL
The Court finds that Respondent has adjusted extremely well to her current community, home, and placement.
***
(d)(4)(iii) THE CHILD’S FEELINGS ABOUT SEVERANCE OF THE PARENT-CHILD RELATIONSHIP
The Court finds that not enough information was presented for it to form an accurate picture of Respondent’s feelings regarding the severance of the parent-child relationship beyond what it has already found regarding Respondent’s emotional ties with Mom and her biological siblings.
***
(d)(4)(iv) THE LIKELY IMPACT OF TERMINATING PARENTAL RIGHTS ON THE CHILD’S WELL-BEING
The Court finds that terminating Respondent’s rights would not have a meaningfully negative impact on Respondent’s well-being.
Mother argues that the court did not have sufficient information to make a decision that a continued relationship would be detrimental to L.D. She points to the fact that L.D. did not provide testimony and that the court did not have a parental fitness and bonding evaluation performed by an expert.
We observe that “[t]he capacity of children of tender years to testify is a matter ordinarily within the sound discretion of the trial court.” Wagner v. Wagner, 109 Md. App. 1, 24 (1996). Here, the court found that L.D. was too young to be expected to testify. Its decision in this regard was not an abuse of discretion. We also observe that the court acknowledged that it could not assess L.D.’s emotional ties with Mother, due to Mother’s failure to appear for the parental fitness and bonding evaluations. In other words, because Mother did not choose to participate, the evaluations were not performed. Evaluations, however, were performed on the foster parents that indicated that L.D. had bonded with them and that both were fit. There was also testimony from the case workers that while
L.D. may have enjoyed her limited visits with Mother, she always wanted to go home to her foster parents.
Mother, nevertheless, asserts that the court improperly terminated her parental rights. We hold the court did not err. The judge’s decision was based on evidence that showed that Mother failed to address her substance abuse issues over the course of L.D.’s entire life, she failed to meaningfully provide for L.D., she failed to be present and significantly engage in L.D.’s upbringing, she did not parent L.D. nor did she show a desire to parent. This case spans a five-year period and the circumstances here were exceptional. The circumstances clearly established that continuation of the parental relationship would be detrimental to the best interests of L.D and termination was in the child’s best interest. The court’s failure to use the specific term “detrimental” does not negate its ultimate conclusion which was in accord with the statutory requirements. As the court stated:
In addition to Mom’s failure to consistently attend visits with Respondent and address her substance abuse issues, Mom further frustrated progress towards reunification by failing to maintain consistent contact with BCDSS, failing to update her contact information so BCDSS could effectively contact her, and failing to provide requested documentation to BCDSS, like consent to view her medical records or information regarding her living situation. While Mom testified that she is currently participating in drug treatment programs, the Court
was not presented with admissible evidence beyond this testimony, attesting to her present sobriety or her progress toward sobriety. Considering Respondent’s strong relationship with her foster parents, the severely limited nature of Respondent’s relationship with Mom, the willingness and ability of those foster parents to provide for Respondent, and Mom’s seeming inability or unwillingness to make meaningful progress towards
FOOTNOTES
reunification over the course of five years, the Court finds there is clear and convincing evidence of exceptional circumstances that show it is not in the best interest of Respondent to maintain her parent-child relationship with Mom.
In sum, the court did not err or abuse its discretion.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANT.
1 The grant of this petition terminates the parental rights of the parents. See Md. Code Ann., Fam. Law § 5-320(a)(2) (“(a) A juvenile court may grant guardianship of a child only if: (2) in accordance with § 5-323 of this subtitle, the juvenile court finds termination of parental rights to be in the child’s best interests without consent otherwise required under this section or over the child’s objection.”). For the purposes of this opinion, we shall use guardianship and termination of parental rights interchangeably.
2 On May 16, 2023, Father withdrew his objection to the Department’s petition and entered a conditional consent to the petition. This opinion, therefore, only addresses Mother’s appeal of the termination of her parental rights.
3 We have rephrased Mother’s questions for clarity. Mother’s questions verbatim are:
1. Did the court err [in] terminating [M]other’s parental rights where clear and convincing evidence did not support exceptional circumstances that showed maintaining the parental-child relationship was detrimental to the child’s best interests?
Were specific findings supported by insufficient evidence and or belied by substantial contradicting evidence? Were the lower court’s findings insufficient for not finding or articulating how any exceptional circumstances would make continuance of a parent-child relationship detrimental to L.D.’s best interest, and failed to include any parental-child bonding evaluations, or L.D.’s perspective?
4 The placement was denied because Mother was residing in the home.
5 Mother and Father did not attend the hearing.
6 The Chrysalis House provides substance use and mental health treatment services for women eighteen years of age and older, while allowing their children to live on-site during their mother’s program of recovery.
7 At the time of the arrest, Mother was pregnant with her third child and needed medical attention. She was sent to the hospital and later transferred to central booking.
8 A hearing was held on November 30, 2022, where Mother made a Motion for Mediation. Mediation was unsuccessful and the TPR hearings continued.
9 The Department’s Service Agreement dated June 3, 2018, stated that parent is responsible for “maintain[ing] regular contact with agency” and “keep[ing] your address current with the clerk of the court.” The Department’s Service Agreement dated May 14, 2019, stated, “Mother and [the Department] have agreed that mother will maintain regular contact with the agency and provide current contact and resident information.
10 “Other criteria relevant to an exceptional circumstances determination include: the length of time that the child has been with his adoptive parents; the strength of the bond between the child and the adoptive parent; the relative stability of the child’s future with the parent;the age of the child at placement; the emotional effect of the adoption on the child; the effect on the child’s stability of maintaining the parental relationship; whether the parent abandoned or failed to support or visit with the child; and, the behavior and character of the parent, including the parent’s stability with regard to employment, housing, and compliance with the law.” In re Adoption/Guardianship of C.A. & D.A., 234 Md. App. 30, 50 (2017) (citing In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 562–64 (1994)).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Cecil County Circuit Court’s award of sole physical custody of the parties’ minor child to the wife. The circuit court initially awarded custody to the husband, following a three-day evidentiary hearing. By continuing to hold the issue of custody open for periodic court reviews following that final order, and without a finding of a material change in circumstances that affected the best interests of the child or conducting a best-interests-of-the child analysis, the circuit court abused its discretion and committed procedural error.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions.
FACTUAL AND PROCEDURAL BACKGROUND
In October of 2022, the circuit court conducted a three-day custody hearing, during which both parties had the opportunity to present testimony and evidence. In preparation for the hearing, Robert Kraft, PsyD (“Dr. Kraft”), a court appointed psychologist, conducted individual interviews and psychological testing of Hurwitz, Esque, and L., as well as observed interactions between L. and each of L.’s parents. See Md. Rule 9-205.3(f). Dr. Kraft memorialized his conclusions and recommendations to the court in April of 2022. Dr. Kraft noted that at the time of his evaluation, the parties lived a significant distance from one another, with Esque residing in the state of Washington, and Hurwitz living in Maryland, but with plans to relocate to Pennsylvania to pursue graduate education. Dr. Kraft stated that despite their serious disagreements with each other, “both parents behaved in an appropriate nurturing and supporting manner” with L. Moreover, Dr. Kraft stated that L.’s “parents living separately . . .is most distressing to [L.], not what any one party has or has not done.”
This case arises out of a custody dispute between appellant, Daryl Antony Hurwitz (“Hurwitz”), and appellee, Veronica Lynn Harper Esque (“Esque”), who are the parents of “L.”,1 a minor child born in 2016. Following a custody hearing on the merits, the Circuit Court for Cecil County awarded sole physical custody to Hurwitz, and joint legal custody to the parties. Subsequently, the court scheduled and held multiple “review” hearings on the matter. At the latter of these hearings, the court entered an order modifying its previous custody determination and awarding sole physical custody to Esque. For the reasons to follow, we vacate the judgment of the trial court.
ISSUES PRESENTED FOR REVIEW
Hurwitz presents the following issues for our review, which we have condensed and rephrased as follows:2
I. Whether the court erred by entering a final custody order, and subsequently holding review hearings.
II. Whether the court erred by altering a custody determination without first making a finding of a material change in circumstances and evaluating the best interests of the child.
III. Whether the circuit court erred by retaining jurisdiction over the custody proceeding.
Ultimately, Dr. Kraft recommended that Hurwitz receive sole physical custody of L., with Esque being awarded regular weekend and holiday visitation, including during summer breaks. This recommendation was conditioned upon Hurwitz allowing L. to have contact with her maternal grandmother, and facilitating two hours per week of telephone or electronic contract between Esque and L. Specifically, Dr. Kraft stated: “If Mr. Hurwitz does not agree to the increased contact between [L.] and her mother and grandmother . . . then the court should consider awarding fully physical custody of [L.] to [Esque] and the above outlined visitation schedule to Mr. Hurwitz.”
Following the October 2022 merits hearing, the court issued an order which largely followed Dr. Kraft’s recommendations and awarded joint legal custody to the parties with sole physical custody to Hurwitz. The court’s order also outlined an access schedule whereby L. would reside with Esque in the summer, as well as during one weekend per month and on school breaks. The court also mandated that a “review hearing” be scheduled within 90 days of the entry of the order.
The parties attended the scheduled review in March of 2023, during which no testimony was taken, and an additional review hearing was scheduled for April of 2023. At the April hearing, the court heard testimony, and subsequently entered an order scheduling another “review hearing” in August of 2023. There were other portions of the April
2023 order which dealt primarily with the scheduling and logistics of transferring L. between the parents’ residences. It also directed that the parties “shall abide by the previous custody order on this matter,” and explicitly stated that the court “retain[ed] jurisdiction under MD Code, Family Law, § 9.5-202 up and until [the] court relinquishes jurisdiction[.]” The record does not reflect that either party challenged the court’s April 2023 order or objected to the court’s retention of jurisdiction.
In June of 2023, Hurwitz filed a motion asserting that none of the parties resided in Maryland, that Maryland was no longer L.’s home state, and that Maryland was an inconvenient forum pursuant to section 9.5-207 of the Family Law Article (“FL”) of the Maryland Code. In the motion, Hurwitz requested that the court relinquish jurisdiction and transfer jurisdiction to Pennsylvania. It does not appear from the record that Esque filed an answer, however the motion was opposed by L.’s Best Interest Attorney (“BIA”).3 The BIA’s answer contended that the court should decline to exercise its discretion to transfer the case but agreed with Hurwitz that “Maryland does not have exclusive jurisdiction.” The court summarily denied the motion.
At various times leading up to the August 2023 hearing, court documents identify the approaching hearing in different ways. On April 4, 2023, a notice to the parties listed the August proceeding as a “Custody & Review” hearing. However, the court’s April 5 order indicated the August hearing was to be a “review hearing.” A subsequent notice from the clerk’s office indicated that the hearing type of the August proceeding was “Hearing – Custody[.]”
At the August 2023 hearing, the parties, including the BIA, appeared and were given the opportunity to introduce evidence, cross-examine witnesses, and give closing statements. At that hearing, the court characterized its November 2022 order as a “final order[,]” albeit one that “could change based on some of the recommendations made by Dr. Kraft.” At the outset of the hearing, the court stated that: “Today is -- it is titled, they have titled [it] one thing. I will tell you all though, . . . to me, this [is] a review. It is titled as a custody hearing. [T]oday is not a full-blown custody hearing.” Similarly, the court later articulated that “this is not necessarily a fully contested hearing[,]” and stated that “I don’t know who you all would want to testify. To be brutally honest, I don’t really want much more than the parents.”
After interviewing L. outside of the courtroom,4 and hearing the parties’ arguments, the court delivered an oral ruling. The court stated that if the parties “lived down the street from one another” the custody determination would “eas[il]y” be “50/50.” During its ruling, the court also spoke about its previous determination at the October 2022 hearing, which culminated in a “final order.” The court noted that “it [was] really though like by a hair I made the decision I made[,]” and stated that it had made the custody determination based off “how I think it had been” prior to October 2022, when “things weren’t horrible.” However, the court explained, “the problem that I noticed in this case come March and April” was that “things didn’t happen like I was hoping they would happen. And I didn’t see a re[-]creation of the times that were good.”
The court specifically noted that “[w]e’re not necessarily here on like a motion to modify and we’re looking for this material change necessarily.” Rather, the court determined that “this really goes back to what my initial hangup was and what Dr. Kraft’s hangup was, is that ability to co-parent.” The court recounted its attitude toward the custody determination at the October 2022 hearing:
“[L]et’s try it out. But, man, if it doesn’t work -- this coparenting thing doesn’t work like this, then we need to . . . do a flip. And I think that [L. is] doing [al]right in both places, but the Court does agree with Dr. Kraft. I think that though I’ve heard testimony today about what happened between October to April, . . . I believe that in light of Dr. Kraft’s view and my view. . . that the co-parenting, I’ve seen little to no improvement for Mr. Hurwitz.”
Thus, the court determined that “it’s appropriate . . . to do the switch . . . with the custody.” The remainder of the hearing consisted of discussions about the logistics regarding changing L.’s physical custody during the school year to Esque. The court did not weigh further evidence or assess any additional factors on the record.
The court indicated that as part of its ruling it was setting yet another review hearing to continue monitoring custody. The court noted that while its goal was not to “flip[] this kid back and forth . . . across the country[,]” the court believed it was appropriate to set an additional review hearing. In response, Hurwitz’s counsel asked: “So there’s that possibility that . . . things could switch again?” The court replied: “I don’t know. I mean, I’m not saying -- I have no idea what possibility lie[s] there.”
Following the August 2023 hearing, the court entered an order awarding Esque sole physical custody of L. during the school year and granting Hurwitz access during some weekends and school breaks, as well as custody during the summer. The court also scheduled a further review hearing for December 1, 2023. Following the August 2023 hearing, Hurwitz filed a motion for reconsideration. Hurwitz noted this timely appeal.
DISCUSSION
I. The Circuit Court Erred by Continuing to Hold Review Hearings After Entering a Final Order on Custody.
A. Standard of Review
We review a trial court’s child custody determination utilizing three separate but interrelated standards of review: When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. If it appears that the chancellor 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 chancellor founded upon sound legal principles and based upon factual findings not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.
Wagner v. Wagner, 109 Md. App. 1, 39–40 (1996) (quoting Davis v. Davis, 280 Md. 119, 125–26 (1977)).
An abuse of discretion occurs when “no reasonable person would take the view adopted by the [trial] court or when the court acts without reference to any guiding rules or principles.” Santo v. Santo, 448 Md. 620, 625–26 (2016) (internal quotation marks and citation omitted). We acknowledge the trial court’s unique “opportunity to observe the demeanor and the credibility of the parties and the witnesses[,]” Petrini v. Petrini, 336 Md. 453, 470 (1994), and will reverse only when a trial court’s decision is “well removed from any center mark imagined by the reviewing court[.]” North v. North, 102 Md. App. 1, 14 (1994).
B. Parties’ Contentions
Hurwitz argues that the circuit court committed reversible error by continuing to hold review hearings in the matter of L.’s custody following the November 2022 entry of a final order. Hurwitz asserts that following the entry of a final custody order, a court may not continue to “subject a fit and proper parent to a series of reviews.” Esque disagrees, arguing that the court’s November 2022 order was never intended to be final because it contemplated a future review hearing.5
C. Finality of Child Custody Orders in Maryland
Child custody orders are generally of two types—pendente lite determinations, which “provide some immediate stability pending a full evidentiary hearing,” and final orders, which are entered after a court evaluates “the full record of evidence,” and which create a durable custody determination based on the “long-term overall best interest of the child.” Frase v. Barnhart, 379 Md. 100, 111–12 (2003). Under Maryland law, courts typically retain jurisdiction over the custody of minor children following a custody determination, and so final custody orders do not achieve “quite the degree of finality that accompanies other kinds of judgments.” Id. at 112. Nevertheless, “[a]n order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child.” McCready v. McCready, 323 Md. 476, 481 (1991).
The finality of custody determinations, even if more limited than in other spheres, serves an important function for parents and children. See id. As the Supreme Court of Maryland has stated:
In the normal custody case, . . . subjecting a parent, found fit to have custody, to periodic future review hearings essentially converts an order that should effectively end the dispute into something more like a pendente lite order. . . . [Such an order] puts a serious damper on the parent’s ability to make long- range plans for [them] sel[ves] or the child and effectively removes the parent’s discretion to provide a home for the child and make day-to-day decisions regarding [the child’s] welfare. In so doing, it significantly infringes on and thus acts as a substantial, albeit partial, deprivation of the parent’s legal and physical custody.
Frase, 379 Md. at 119. The Court further noted that a trial court may not “make findings that would dictate a particular
result and then subject the favored party to conditions inconsistent with that result and to continuing review hearings.” Id. at 121. In the Court’s view, continued reviews following a final custody determination leads to a situation where:
[T]he case never ends; the child and the parties remain under a cloud of uncertainty, unable to make permanent plans. The court seemingly reserves the power to alter the custody arrangement at any time, even in the absence of a new or amended petition, based on a later review of circumstances known or predicted to exist at the time of the initial determination. That is procedurally impermissible.
Id. at 121.
D. Analysis
The case at bar involves just the “procedurally impermissible” situation the Supreme Court repudiated in Frase. Id. Here, after the completion of a three-day evidentiary hearing on the merits, the court entered a final order in November 2022. Notwithstanding the finality of that order, the court set a future review hearing, and subsequently, proceeded to conduct further review hearings. This process culminated in the August 2023 proceeding and the attendant order modifying custody, which engendered this appeal. We disagree with Esque that the November 2022 order was not intended by the court to be a final custody order. During the August 2023 hearing, the court described the October 2022 proceedings as “a full trial on the merits[,]” and explicitly acknowledged that its determination was “a final order[.]” Although the court did characterize the November 2022 order as “final[,]” it also described it as “a final order with the understanding it could change[.]” As we have noted, the fact that child custody orders may be subject to future modification does not obviate their legal finality. See Section II.C. supra. Moreover, there is a clear distinction between a final order and a pendente lite determination, apparent in this particular matter as the court had entered a pendente lite order with regard to the case earlier in the year. Thus, we determine that notwithstanding the provision of the November 2022 order that called for a future “review hearing,” the court’s order, entered following a three-day trial, and which included a comprehensive plan outlining the parties’ shared custody, was a final order. See Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989); cf. McCready, 323 Md. at 481–82 (“An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child.”).
By contrast, during the August 2023 hearing, the court characterized the ongoing proceeding as a “review” and stated that “today is not a full-blown custody hearing. It is not the [c]ourt’s intention to have a full-blown custody hearing.” Nevertheless, following the “review” hearing, the court substantially modified the custody order. Each “review” hearing, including the August 2023 hearing which resulted in custody modification, was set by the court itself and was not initiated by a motion made by one of the parties.6
By continuing to hold the issue of custody open for periodic court reviews following a final order, the circuit court abused its discretion and committed procedural error. See Petrini, 336 Md. at 470; Frase, 379 Md. at 111–12.
II. The Record Does Not Reflect that the Circuit Court Found a Material Change in Circumstances or Performed a Best-Interests- of-the-Child Analysis.
As we have determined that the circuit court erred by continuing to hold review hearings following a final order, our analysis could end there. Nevertheless, in the interest of providing guidance to the trial court should a future Motion for Modification be properly filed and served, we will also address Hurwitz’s second contention.7
A. Standard of Review
As articulated supra, we review a court’s final determination of custody for abuse of discretion. See Wagner, 109 Md. App. at 39–40. Although review under the abuse of discretion standard is deferential to the judgment of the trial court, “a court’s discretion is always tempered by the requirement that the court apply the correct legal standards.”
Basciano v. Foster, 256 Md. App. 107, 129 (2022) (citing Faulkner v. State, 468 Md. 418, 460–61 (2020)).
B. Parties’ Contentions
Hurwitz argues that even if a modification hearing had been proper, the court erred by failing to find a material change in L.’s circumstances prior to modifying the custody order. Hurwitz also posits that if the court found such a material change in circumstances, the court further erred by declining to apply the best interests of the child standard in fashioning the modified custody order. In response, Esque presents many examples of Hurwitz’s conduct that she purports would enable the court to have found that L.’s best interests would be better advanced in her care.
C. Custody Modification Requires Findings of a Change in Circumstances and the Best Interests of the Child.
Any modification of a child custody order “should emphasize changes in circumstances since the last order.” Kadish v. Kadish, 254 Md. App. 467, 504 (2022). Prior to modifying a custody order, courts are required to assess whether “there has been a material change in circumstances.” Green v. Green, 188 Md. App. 661, 688 (2009). A change is material only when it affects the welfare of the child. See Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012). After making such a determination, the court must then determine whether a modified custody order would be in the best interests of the child. Id. at 173. As this Court has previously articulated, “[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).
In determining a child’s best interests, Maryland appellate courts have set forth a list of non-exhaustive factors “that a court must consider when making custody determinations.” Id. at 345 (citing Montgomery Cnty. Dep’t of Soc. Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md.
290 (1986) (collectively, the “Sanders- Taylor factors”)). None of the Sanders-Taylor factors are independently dispositive, nor do the enumerated factors constitute an exhaustive list.8
See J.A.B. v. J.E.D.B., 250 Md. App. 234, 257 (2021). However, prior to making a custody determination, a court is required to conduct an individual evaluation of the child’s circumstances and determine if the modified custody arrangement would advance the child’s best interests. See Gillespie, 206 Md. App. at 173. Ultimately, “the trial court should examine ‘the totality of the situation in the alternative environments’ and avoid focusing on or weighing any single factor to the exclusion of all others.”
Jose v. Jose, 237 Md. App. 588, 600 (2018) (quoting Best v. Best, 93 Md. App. 644, 656 (1992)).
Although our standard of review is highly deferential to a trial court’s discretion in calculating the best interests of a child, a court’s exercise of discretion must be clear from the record. Gillespie, 206 Md. App. at 171; Maddox v. Stone, 174 Md. App. 489, 502 (2007). “A failure to exercise discretion – for whatever reason – is by definition not a proper exercise of discretion.” State v. Alexander, 467 Md. 600, 620 (2020).
D. Analysis
Here, had a Motion for Modification been properly before the trial court, it is not clear from the record whether the circuit court found a material change in circumstances, or if the court engaged in a full best-interest-of-the-child analysis which evaluated the parties’ circumstances in their entirety. In reaching its determination, the court noted that the communication between the parties was “horrible[,]” a factual finding that is not at issue, and one which undoubtedly has some baring on the ability of the parents to make collaborative decisions. See Santo, 448 Md. at 628. However, the court noted that at the time it made its initial custody determination in October of 2022, it had then also determined that “communication wasn’t happening[]” and observed that the parties’ communication “felt like it was horrible[.]” The court stated that its original determination of joint custody was made based on “how I think it had been before[,]” and because “it felt like there had been a moment before October [of 2022] when things weren’t horrible[.]” In explaining its custody modification ruling, the court stated that following the initial ruling, “things didn’t happen like I was hoping they would happen.” In addition to focusing on a lack of change in the behavior of the parties, as opposed to a change in circumstances, the court also explicitly stated that it was not “looking for this material change necessarily[,]” as the parties were “not necessarily here on . . . a motion to modify.”
Similarly, the court made no explicit finding regarding L.’s best interests. The court determined that L. could be successful at either placement, stating that L. could “succeed either way,” and that “if you lived down the street from one another” custody would “easily” be “50/50.” The court also noted that “what can work for the child I think . . . a lot of things can work for her. I think when she was at both places, it works for her.” The court did not explicitly evaluate any of the Sanders-Taylor factors, other than parental communication, as weighing toward one of the parties. Nor did the court make an explicit finding about how L.’s best interests were impacted by the parties’ communication, or by any other factor.
Rather, the court explained that it was basing its decision to modify custody on Dr. Kraft’s recommendation prepared more than a year earlier for a different proceeding. Dr. Kraft’s report, generated specifically for the original October 2022 merits hearing, stated that although he recommended awarding physical custody to Hurwitz, if Hurwitz did not agree to allow L. increased contact with Esque and L.’s maternal grandparents, the court should instead consider awarding physical custody to Esque. Dr. Kraft did not testify at the August 2023 hearing, nor did he submit an updated recommendation or report. During the August 2023 hearing, the court again emphasized that it understood that L. was “doing [al]right in both places,” but ultimately found that it was “appropriate to . . . do the switch. . . with the custody,” in light of “Dr. Kraft’s view[,]” and because that court had “seen little to no improvement [from] Mr. Hurwitz” vis a vis communication with Esque.
Based on record before us, we cannot say that the court properly applied its discretion in altering the custody order. The court did not determine that there had been a material change in circumstances, as required by Maryland law.9 See Kadish, 254 Md. App. at 504. Rather, the court focused on a perceived lack of change in Hurwitz’s communication style with Esque. Although the court emphasized that “it’s so important that you are able to work this out so the other person can see the child when they need to see their child[,]” the court did not make a specific finding regarding how the parents’ continued difficulties communicating would impact L.’s best interests. Nor is it clear from the record how “doing a total flip” of custody, which would not affect the frequency of transfers or communication between the parents, would advance L.’s best interests.
A court, in modifying custody, must always consider the best interests of a child, and the child’s best interest is the only dispositive factor from which a court can base a custody award. See Jose, 237 Md. App. at 600. Prior to modifying custody, a court must consider the alternative environments in their totality, and “avoid focusing on or weighing any single factor to the exclusion of all others.” Jose, 237 Md. App. at 600. Here, the record does not reflect that the court examined either L.’s best interests, or indeed, any factors other than the quality of the parties’ communication. This lack of on-the-record analysis of any other factors affecting L.’s best interests is especially problematic in light of the principle that when a court determines that the parents lack the ability to effectively communicate, but nevertheless awards joint legal custody to the parties, the court “must articulate fully the reasons that support that conclusion.” Taylor, 306 Md. at 307.10
The record before us does not allow us to discern whether, prior to entering an order modifying custody, the court either found a material change in circumstances that affected the best interests of the child or conducted a best-interests-of-the child analysis which evaluated the totality of L.’s circumstances, both of which are required by Maryland law. See Jose, 237 Md. App. at 600; Gillespie, 206 Md. App. at 173; Maddox, 174 Md. App. at 502 (“If the judge has discretion, he must use it and the record
must show that he used it.” (quoting Nelson v. State, 315 Md. 62, 70 (1989))).
III. The Record Does Not Reflect The Circuit Court Erred in Retaining Jurisdiction Over the Case.
A. Standard of Review
The question of whether a trial court correctly asserted jurisdiction is “an issue of statutory interpretation that we review de novo to determine whether the court was legally correct.” Cabrera v. Mercado, 230 Md. App. 37, 80 (2016). By contrast, the decision whether to relinquish jurisdiction and transfer a case to a more convenient forum is entrusted to the sound discretion of the trial court. Miller v. Mathias, 428 Md. 419, 454 (2012).
B. Parties’ Contentions
Hurwitz asserts that the court erred or abused its discretion in retaining jurisdiction over the matter. He argues that because the court’s November 2022 order did not explicitly state that it was retaining jurisdiction, and the court’s continued adjudication of the matter after the point where the parties resided in Maryland was contrary to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). In the alternative, Hurwitz argues that the court abused its discretion by failing to transfer the matter to Pennsylvania. Esque asserts that the court both maintained jurisdiction over the case and acted within its discretion in declining to transfer jurisdiction.
C. Jurisdiction In Child Custody Matters
At the outset, we discern no error in the court’s initial custody determination during the October 2022 merits hearing. Nor do the parties dispute that at the time of the November 2022 final order, the court had custody under the UCCJEA, as codified in FL sections 9.5-101 to 318.11 Under FL section 9.5-202, a court retains “exclusive, continuing jurisdiction” over a child custody determination until a court makes a factual finding pursuant to FL section 9.5-202(a). In the court’s April 2023 order, the court stated that it “retain[s] jurisdiction under MD Code, Family Law, § 9.5-202 up and until [the] court relinquishes jurisdiction[.]”
The record from the August 2023 hearing indicates that the court did consider Hurwitz’s motion that Pennsylvania was a more convenient forum, as required by FL section 9.5-207, and determined that Maryland should retain jurisdiction over the case. See Miller, 428 Md. at 457. The record also reflects that the court did not make an explicit finding under FL section 9.5202(a) that it no longer retained jurisdiction over the case.
The record before us is not sufficiently developed to allow us to determine that the court either erred or abused its discretion by continuing to exercise jurisdiction over the case.
For the reasons previously articulated, we vacate the judgment of the circuit court.
FOOTNOTES
1 To protect the anonymity of the minor child, we refer to her by a randomly selected letter.
2 Condensed and rephrased from:
Did the court err and abuse its discretion in holding the matter open for further consideration following a final order, and in considering a modification of custody in August 2023? Did the court fail to apply the appropriate material change in circumstances standards and Taylor-Sanders standards in reaching a determination to modify custody?
Did the court’s consideration of the matter lack appropriate procedural due process?
Did the court err or abuse its discretion in failing to decline jurisdiction and/or to transfer the matter to Pennsylvania?
3 A BIA is an attorney appointed by a court to represent a minor child’s best interests in an action where custody, visitation rights, or the amount of a child support award is contested. See Md. Code FL § 1-202.
4 The court stated that after speaking to L., “the needle didn’t necessarily move in any direction[.]”
5 Esque, who filed a pro se brief but did not appear for oral argument in this Court, also argues, inconsistently, that the August 2023 order was final, despite that following the “flip” of custody, the court planned to conduct yet another review hearing.
6 In March of 2023, Esque did attempt to file a petition for custody modification, but it was never served on Hurwitz and was rejected by the circuit court.
7 However, in line with this Court’s longstanding practice to avoid deciding constitutional issues unnecessary to the resolution of a case, we decline to reach Hurwitz’s contention that the August 2023 hearing deprived him of procedural due process. See VNA Hospice of Md. v. Dep’t of Health and Mental Hygiene, 406 Md. 584, 606 (2008) (noting that cases should be decided “on a non-constitutional ground if reasonably possible”).
8 While no factor is dispositive, effective parental communication is of particular importance when, as here, the parties have joint legal custody over the child. See Santo, 448 Md. at 628. This is because parties with joint legal custody over their child are tasked with collaboratively making
important decisions that impact the child’s future; inability to communicate about the options and effects of those choices will frequently affect the child’s best interest. See id.
The Supreme Court of Maryland has noted that assigning joint legal custody in the face of a parental “lack of ability to cooperate or agree” is acceptable only where “the evidence is strong in support of a finding of the existence of a significant potential for compliance with this criterion.” Taylor, 306 Md. at 307. Should a court award joint legal custody absent a history of parties making collaborative decisions about the child’s welfare, “the trial judge must articulate fully the reasons that support that conclusion.” Id. While an award of joint legal custody in the face of a parental inability to effectively communicate is not in and of itself erroneous, in cases where a court concludes parents cannot communicate effectively, the court “must articulate well the justifications for awarding joint custody.” Santo, 448 Md. at 630–31
9 This is not to say no changes had occurred in the parties’ situations, notably Esque’s move from the state of Washington to Texas. However, the court did not make an on-the-record determination of any specific material change that affected the best interests of the child. Regarding Esque’s move, the court specifically stated that “I don’t know how much of a difference [it made,]” and that the court’s “primary focus [was] on those co-parenting abilities.” When the court made the decision to award physical custody to Esque, the court was not aware of facts such as Eqsue’s address or work schedule, what school L. would be attending in Texas, or when the school year started.
10 We note that the court’s determination of joint legal custody is not challenged on appeal, and our decision today does not assert that the trial court erred by virtue of assigning joint legal custody of L. to the parties.
11 The UCCJEA is a uniform statute drafted by the National Conference of Commissioners on Uniform State Laws with the goal of preventing conflicts between multiple child custody determinations in different states and promoting national uniformity in how custody determinations are made and enforced. See Friedetzky v. Hsia, 223 Md. App. 723, 733–34 (2015). Maryland adopted its version of the UCCJEA in 2004. 2004 Laws of Maryland, ch. 502 (H.B. 400).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Prince George’s County Circuit Court’s monetary award to the husband. The circuit court failed to divide wife’s pensions on an “if, as, and when” basis. Additionally it erred in holding that wife did not properly request a monetary award regarding husband’s 401k in her pleadings.
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.
and makes no reference to the record?
2. Did the trial court review the necessary factors required under Md. Code Ann., § 8-205[?]
3. Did [Ms. Harvey] make a proper plea in her supplemental complaint to entitle her to a marital share of [Mr. Harvey’s] 401K?
For the following reasons, we shall vacate the judgment of the circuit court and remand the case for further proceedings.
BACKGROUND
On May 20, 2017, Jason Harvey married Tiffany Harvey. One child was born of the marriage on May 15, 2018. On August 1, 2020, the parties separated and began living in separate residences. On August 26, 2020, Ms. Harvey filed a Complaint for Limited Divorce in the Circuit Court for Prince George’s County. On July 6, 2021, the court signed a Judgment of Limited Divorce, which provided, among other things, that the parties shall have joint legal custody and shared physical custody of their child.
On June 27, 2022, the Circuit Court for Prince George’s County entered a Judgment of Absolute Divorce, ending the marriage of Jason Harvey, appellant/cross- appellee, and Tiffany Harvey, appellee/cross-appellant. The parties had been married for five years, one month, and seven days. In the Judgment of Absolute Divorce, the court, among other things, granted a monetary award in favor of Mr. Harvey and against Ms. Harvey in the amount of $31,000. On appeal, Mr. Harvey presents several questions for our review, which, as stated in his brief, are as follows:
1. Did the trial court commit legal error when it failed to equitably divide the assets of the parties?
A. Did the trial court commit legal error when it failed to properly apply the monetary award three-step process pursuant to Maryland Family Law § 8-201?
B. Did the trial court commit legal error and abuse[] it’s [sic] judicial discretion by failing to determine the value of the marital property?
C. Did the trial court commit legal error and abuse[] it’s [sic] judicial discretion [by] failing to provide a reason for the ordered property allocation and monetary award determination?
2. Did the trial court commit legal error when it failed to apply the eleven factors of Maryland Family Law § 8-205?
In her cross-appeal, Ms. Harvey presents three questions for our review, which, as stated in her brief, are as follows:
1. Can the Court review assignments of error (i.e. issues) when an appellant relies on conclusory statements,
On August 13, 2021, Ms. Harvey filed a Supplemental Complaint for Absolute Divorce. On September 13, 2021, Mr. Harvey filed an answer to Ms. Harvey’s supplemental complaint, as well as a Counter-Complaint for Absolute Divorce. On December 10, 2021, Ms. Harvey filed an Amended Supplemental Complaint for Absolute Divorce. On May 5, 2022, a trial was held before the circuit court on the issues raised in the parties’ complaints.
Before the hearing, the parties filed a Joint Statement Concerning Marital and Non-Marital Property pursuant to Md. Rule 9-207(b) (the “9-207 Statement”). On their 9- 207 Statement, the parties stipulated that the following items were marital property: (1) real property at 10511 Sarah Landing Drive, Cheltenham, MD, titled to Ms. Harvey, (2) real property at 3119 Federal House, Waldorf, MD, titled to Mr. Harvey, (3) one USAA bank account and two Navy Federal bank accounts, titled to Ms. Harvey, (4) a PNC bank account, titled to Mr. Harvey, (5) a 2013 Cadillac CTS, titled to Mr. Harvey, (6) a 2019 Lexus RX to which each party claimed title,1 (7) Mr. Harvey’s 401k, and (8) Ms. Harvey’s military pension and Federal Employee Retirement System (“FERS”) pension. Ms. Harvey’s Thrift Savings Plan (“TSP”) was the only item of property listed on the 9- 207 Statement that the parties were not in agreement as to whether it was marital or non- marital property.2 There was no jointly held property.
At the conclusion of the trial on May 5, the trial court rendered an oral opinion, which stated in relevant part as follows:
That then brings us to the question of marital property. And, of course, all of us know that there are certain factors that the Court is required to consider when attempting to find a ruling as to the distribution of any marital property.
The Court is required to consider the contributions, monetary and non-monetary, of both parties to the wellbeing of the family. And it’s not a surprise each party has a very different view of the non-financial contributions of the other party. Somewhere in the middle probably lies the truth, but the Court was not in the home during the course of the marriage and can’t say who did the dishes more, who did the vacuuming more, who did more child care.
On the issue of child care of a young person I think that it is probably natural that Ms. Harvey did some things more. Again, that’s not as a disparagement to any father, it’s just with a young baby there are certain things that the mom has to do and that the dad maybe physically cannot do. And that has some impact.
But that is not to say that there were not equally valuable non- monetary contributions to the household by both parties. And again, both parties testified that the other didn’t do quite as much as they thought, but the Court will accept that both of them contributed non-monetarily to the family.
It is clear also from the testimony of both parties that the monetary contributions of Mr. Harvey were less than those of Ms. Harvey. But that clearly was one -- the Court did not hear any testimony from Ms. Harvey that that was objectionable to her or that that was a surprise to her, or that was something that she found untenable. It is not at all unusual for one person to make more money than another; whether it’s the husband making more, the wife making more. The chances of two spouses making the exact same amount of money and being completely financially equal in a relationship, I’m sure is somewhere between slim and none.
But again, there is no indication that there was any objection to the natural agreement, whether they sat down and said, hey, I agree, it’s okay for you to make less money than me, or, hey, I agree, it’s okay for you to make more money than me. The fact that the relationship began on that footing, remained on that footing throughout the relationship, shows me that there was an acceptance of that and no objection to it.
And the fact that Mr. Harvey’s monetary contributions may have been smaller, again doesn’t diminish his contributions overall -- especially considering it was not objectionable in the course of the marriage.
The value of all property, interests of each party. The Court has considered and will get to each of those things in due turn.
Economic circumstances of each party at the time that the award is to be made. Again, it is clear that Mr. Harvey does not make as much money as [Ms. Harvey]. However, there’s absolutely no evidence that shows that Mr. Harvey is in any financial circumstance that leaves him destitute or unable to support himself or unable to thrive as he moves forward.
And, in fact, since the time of the separation, Mr. Harvey has established himself in his own residence, purchased by him. And we’ll get to that in a moment as well.
Circumstances that contributed to the estrangement of the parties. At the end of the day, it again seems from both sides that they probably just stopped getting along. Whether that meant that they grew apart, whether that meant that having a child changed the dynamic in the relationship, I really don’t know. But there is not something here -- I had a divorce yesterday where there was abuse. That’s not something that we have here today and I’m thankful for that. We don’t have either party being abusive towards the other, either physically or emotionally or mentally.
We do not have any testimony that shows that there was serial cheating on either side. There was, I guess, some indication that perhaps there was -- there were relationships after the point of the separation, but during the marriage while they were in the home together, there’s no indication that there was any such thing.
And therefore, I think that there is not one party who contributed more or less to the estrangement. It happens sometimes. And if it didn’t, then I suppose I would be out of a third of my job. And again, that’s not to disparage or make light of it. I’m sorry for the dissolution of your relationship, but it doesn’t seem that anyone is more or less at fault than the other.
The duration of the marriage. As of today, I think that we are -- I did the math - - four years, 11 months and 16 days. Of course, there’s also been a period of both physical separation and limited divorce, but this is not something -- this is not a marriage that is a lifetime thankfully. Both of these parties have the majority of their life still in front of them and this is not a situation where we are dissolving a 40, 50, 55, 60 year old marriage, where there might be some more commingling of issues. I’m not going to say that it’s -- I’m not going to call it a short marriage, it’s just not a full- life marriage, and that’s okay, too.
Age of each party. I know that I heard testimony that Ms. Harvey is 40 and Mr. Harvey is 38, and so they are of similar age. That is not having an age discrepancy where one person is significantly older or significantly younger and that impacts their ability to thrive and move forward in their lives.
And again, as I said, they still have the majority of their life still in front of them and hopefully they will thrive and help their son to do the same.
Physical and mental condition of each party. There is no indication that either party has any challenges, either physically or mentally.
And I neglected to say this at the beginning, but, [Counsel for Ms. Harvey], I’m going to ask you to prepare the order. And I should have said it at the beginning, but I say it before we get into the meat and potatoes of the property.
[COUNSEL FOR MS. HARVEY]: Yes, ma’am.
THE COURT: How and when specific marital property or interest in property was acquired, including the effort expended by each party in accumulating it. Again, I’m going to go item by item and we will deal with that in a moment. But obviously, as we are going to go through those items, it is a factor that the Court is of course considering.
Contribution by either party to the acquisition of real property held by the parties. Any award of alimony -- we don’t have any alimony issues here at all, so although the Court is required to consider the factor, the Court considers it as a non-relevant factor. And then any other factor that the Court considers necessary or appropriate.
And so let’s go through, as required, each of the items of property. The law is very clear that when the Court does that, the Court must make a three-leveled evaluation: The first question is, is it marital property; the second question is, what is its value or is it valued according to the evidence; and then the third question is what should the Court do with it.
The first -- let me deal first, though it out of order, because it appears on the 9-207 joint statement, the 401k of Mr. Harvey. As the Court indicated in the course of the testimony, that was not specifically pled by Ms. Harvey. And the case law is clear that though there were general requests for rulings and distributions of property, specifically, Huntley vs. Huntley, 229 Md. App. 484, 2016, in order for retirement to be considered in the course of distribution of marital property, it must be specifically pled. It was not.
So while that 401k may well be at least partially marital property, it is not before the Court in reference to any issue of distribution, as it wasn’t requested by Ms. Harvey.
Bringing us next to the property at 10511 Sarah Landing Drive, Cheltenham, Prince George’s County, Maryland, that is titled in the name, according to testimony, of Ms. Harvey. I believe that the testimony was clear that the mortgage also is solely in Ms. Harvey’s name. There was absolutely testimony that Mr. Harvey contributed at least half of the mortgage during the time that they were residing together at that address.
However, Mr. Harvey is asking for a distribution in his favor. But the Court really wasn’t given a whole heck of a lot of anything to determine value of the house. There was
testimony, but one party testified to one thing, another party testified to another thing. Mr. Harvey testified that he believed that it’s currently valued somewhere above $600,000. Ms. Harvey testified that it is valued significantly less than that. There was reference -- and I do think that there was an Exhibit in reference to the loan, but that really doesn’t give the Court -- I don’t recall having heard any testimony about the purchase price.
And really what we’re talking about with any distribution of the home, we’re talking about any increase in value, and whether there’s a marital share of the increase in value. Not the current value, because there is a mortgage and, therefore, whatever the amount of the mortgage is, it needs to get subtracted to whatever the amount of the value of the house is. But the Court hasn’t been given sufficient information from which to decide what the current value is, what the mortgage is, what the purchase price was, to make an evaluation of whether it has increased or decreased in value.
Now, I can say that even with a layman’s understanding of real estate right now, it’s probably unlikely that that decreased in value. But the Court wasn’t given any real information from which to value the marital property.
And that brings me next to the house at 3119 Federal House. But let me make clear that it was -- even if Mr. Harvey didn’t contribute financially to the mortgage, the mortgage was paid during the course of the marriage by marital funds that were earned by Ms. Harvey. So there’s no question that it is -- the Sarah Landing home is marital property. The question is how do I value it. And that’s where I become stumped.
Next, the address at 3119 Federal House, Waldorf, Charles County, Maryland, which is titled solely in the name of Mr. Harvey. It is the Court’s understanding from the testimony that there is a mortgage that also is in the name solely of Mr. Harvey. And again, Ms. Harvey testified that she thinks that it’s valued at a certain amount; Mr. Harvey testified that it’s valued at a certain amount. I don’t know what the purchase price was. And there has been insufficient evidence from which the Court can really make a good evaluation of what the increase or decrease in equity might be in the house.
In reference to the two houses, therefore, the Court feels that the equitable distribution is for the Sarah Landing home to remain titled in the name of [Ms. Harvey], and the Federal House home to remain titled in the name of Mr. Harvey. And the Court finds that equitably those two awards offset each other.
Bringing us next to bank accounts. We had testimony that Ms. Harvey has a USAA checking account with Navy Federal -- a checking account, a Navy Federal savings account. Mr. Harvey has a PNC bank account.
[Counsel for Mr. Harvey] argues that there was some
dissipation of at least one of those accounts by Ms. Harvey and pointed in her argument to the fact that Ms. Harvey testified that she took funds from that account to pay for some repairs or improvements or whatever in the house at Sarah Landing. Well, that means that it was applied to marital property during the course of the marriage.
And, therefore, the Court finds that there was no dissipation, it wasn’t for Ms. Harvey’s sole benefit and use, she didn’t take a vacation by herself for $20,000; she didn’t buy an airplane well, that really wouldn’t be dissipation. She didn’t take a vacation by herself. She didn’t buy gifts for other people. There was no testimony as to any of those things. The only testimony was that if, in fact, there was any money taken out of any of those accounts, it was used for the home, which again the Court found was marital property. And, therefore, it was not dissipated in any way, shape or form.
The Court finds that Ms. Harvey’s USAA checking account, Ms. Harvey’s Navy Federal account, Ms. Harvey’s Navy Federal savings account, should all remain titled with Ms. Harvey. And equally finds that Mr. Harvey’s PNC bank account should remain with him. And the Court finds that they offset each other for equitable distribution between the two.
That brings us then next to the cars. And again, there was testimony about what the cars were worth. There was testimony that Mr. Harvey has a 2013 Cadillac. There was testimony that Ms. Harvey has a 2019 Lexus. There was testimony, I guess about the value of each of them. There was testimony that the Cadillac does not have any lien on it, there was testimony that the Lexus has a lien that is close to or equal to the testified value.
And the Court finds, therefore, that, again, in distributing -the Court finds that they are marital property and of course if I didn’t say it clearly the Court finds that all those bank accounts are also marital property. But the Court finds that the Cadillac is marital property, the Court finds that the Lexus is marital property. The Court finds that any value of them offsets the other. And in order, therefore, to have equitable distribution of those, the 2013 Cadillac will remain titled to Mr. Harvey solely, the 2019 Lexus will remain titled to Ms. Harvey solely.
That brings us then to the FERS pension and any other military pension that may exist. And there is no question that that is marital property, to the extent that there were contributions that are attributable to the time of the marriage
. The Court finds that again it appears that the parties were in agreement as to what each of them would do professionally and those decisions were made implicitly, explicitly by the parties during the course of the marriage.
Particularly as to the military pension, but as to the FERS as well, the Court feels that any equity requires that no award be made to Mr. Harvey.
That brings us to the last item and that’s the TSP. On the 9-207 that is listed as something that the parties were not in agreement on as to whether it is marital or non-marital. There is no question and even Ms. Harvey’s own witness talked about what is and isn’t part of marital property.
So, though it’s listed as a disagreement as to marital property, the testimony brought out in Ms. Harvey’s case shows quite plainly that there is an admission and an agreement that it is, to an extent, marital property. And the Court does find that it is marital property, to the extent that there were contributions made during the course of the marriage.
That is one that the Court does find there needs to be some equitable distribution of. And the Court finds that looking at it equitably, it is appropriate for the Court to look at the amount at the time of separation.
And let me explain why I’m doing that. It is quite clear that at the time of separation, the parties really decided that they were going to live wholly and separately apart.
I don’t know whether Mr. Harvey has any side work or not. I think that there are indications that says he does. Whether he does, whether he doesn’t, there really wasn’t a whole lot put before the Court. But even that one Exhibit, I believe it was Plaintiff’s No. 11, the Facebook posting, where Mr. Harvey acknowledges that he is holding himself out for hire.
I don’t know that I feel completely comfortable saying that I believe 100 percent that that posting was not successful in any way, shape or form, or that it was the only attempt in the course of the marriage from the start of the marriage until this day that that attempt was made.
I don’t know if there were payments in cash, I don’t know if there was any -- anything. But I do believe that, again, Ms. Harvey clearly knew about it, there was implicit or explicit agreement as to that during the course of the marriage. But then when they separated I think that we’re in a different stead. And when we look at the distribution of the TSP or any marital award in reference to the TSP, I think that it’s appropriate to look at it as it was valued at the time of the separation.
At the time of the separation, according to the evidence, the value was $61,793.23. Give me a moment. The Court is therefore going to award a monetary award to Mr. Harvey from Ms. Harvey in the amount of $31,000 to account for equitable distribution of the marital share of the TSP.
I am going to say that that $31,000 must be paid within three years of today, at a payment plan at Ms. Harvey’s choosing. However, that payment plan may not amount to anything less than $10,000 per year. [Counsel for Mr. Harvey], you look -- did I not say that well?
[COUNSEL FOR MR. HARVEY]: I am -- with TSPs I thought
that typically it would be handled as a QDRO, to avoid tax implications on that issue. But, I mean, you said what you meant, but I just thought it would be handled using a QDRO.
THE COURT: Okay. Are you asking --
[COUNSEL FOR MR. HARVEY]: I mean, do you just want -- so you’re saying it’s a monetary award of $31,000?
THE COURT: Yes.
[COUNSEL FOR MR. HARVEY]: Okay, all right. Just -- I was just checking. Thank you.
THE COURT: Yes. So it’s not a distribution of the TSP, but in order to be equitable in reference to the TSP, it is a monetary award in the amount of $31,000 payable over the next three years, beginning today, at a payment schedule at Ms. Harvey’s choosing. However, again, it shall be no less than $10,000 per year.
On June 27, 2022, the trial court entered a Judgment of Absolute Divorce that was consistent with the above oral opinion. Both parties filed timely appeals of the court’s judgment. We shall provide additional facts as necessary to the resolution of the questions presented in these appeals.
STANDARD OF REVIEW
“Ordinarily, it is a question of fact as to whether all or a portion of an asset is marital or non-marital property.” Innerbichler v. Innerbichler, 132 Md. App. 207, 229 (2000). “The value of each item of marital property is also a question of fact.” Flanagan v. Flanagan, 181 Md. App. 492, 521 (2008). This Court will not disturb such factual findings unless it is clearly erroneous, meaning that the trial court’s findings are not supported by substantial evidence. Innerbichler, 132 Md. App. at 229-230. A decision to grant a monetary award and the amount of such an award is reviewed for abuse of discretion. Richards v. Richards, 166 Md. App. 263, 272 (2005). Any determination of a question of law made by the trial court is reviewed under a de novo standard of review. Flanagan, 181 Md. App. at 521.
DISCUSSION
I. QUESTIONS RAISED BY MR. HARVEY’S APPEAL
1. Did the trial court commit legal error when it failed to equitably divide the assets of the parties?
Mr. Harvey’s argument for this question, in its entirety, is as follows:
“[A]lthough the law does not require a court to divide marital property equally between parties, the division of such property must be fair and equitable.” Long v. Long, 129 Md. App. 554, 577-78 (2000). While, it has somewhat become the practice of trial courts to equally divide the marital property in long term marriages; equal distribution
of assets is not required. “The court, after a consideration of the factors listed in F.L. § 8- 205, may decree an unequal division and state the reasons for such allocation.” Caccamise v. Caccamise, 130 Md. App. 505, 521 (2000).
This recitation of legal principles is not a proper argument, and thus there is nothing for this Court to resolve for this question.
A. Did the trial court commit legal error when it failed to properly apply the monetary award three-step process pursuant to Maryland Family Law § 8-205?
Md. Code, Family Law § 8-201 defines marital property as follows:
(e)(1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage.
(2) “Marital property” includes any interest in real property held by the parties as tenants by the entirety unless the real property is excluded by valid agreement.
(3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property:
(i) acquired before the marriage;
(ii) acquired by inheritance or gift from a third party; (iii) excluded by valid agreement; or
(iv) directly traceable to any of these sources.
In a divorce proceeding, if a party requests a monetary award, a trial court is required to undertake a three-step process to determine whether to grant a monetary award:
First, for each disputed item of property, the [court] must determine whether it is marital or non[-]marital. Second, the [court] must determine the value of all marital property.
Third, the [court] must decide if the division of marital property according to title would be unfair. If so, the [court] may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.
Flanagan, 181 Md. App. at 520-21 (citations and quotation marks omitted). In this context, “value” means the fair market value of the property. See Abdullahi v. Zanini, 241 Md. App. 372, 413 (2019). Maryland law requires “equitable” division of marital property, not “equal” division. Alston v. Alston, 331 Md. 496, 508 (1993). “The Maryland Legislature specifically rejected the notion that marital property should presumptively be divided equally.” Id. The party who asserts an interest in marital property “bears the burden of producing evidence of the identity and value of the property.” Noffsinger v. Noffsinger, 95 Md. App. 265, 281 (1993). “Generally, the burden of proving a fact is on the party bearing the affirmative of the issue.” Id.
In the instant case, before making a determination as to each item of property, the trial court acknowledged that the threestep process was required:
And so let’s go through, as required, each of the items of property. The law is very clear that when the Court does that, the Court must make a three-leveled evaluation: The first question is, is it marital property; the second question is, what is its value or is it valued according to the evidence; and then the third question is what should the Court do with it.
i. Step One – Disputed Property
As to the first step in the process, the parties stipulated on the 9-207 Statement that every item of property in dispute, besides the TSP, was marital property. In its oral opinion, the trial court found that the parties’ real property, bank accounts, vehicles, and pensions were marital property, as the parties had stipulated on the 9-207 Statement. In resolving the parties’ disagreement as to the TSP, the court found that the TSP was part marital and part non-marital property. The court stated: On the 9-207 that is listed as something that the parties were not in agreement on as to whether it is marital or non-marital. There is no question and even Ms. Harvey’s own witness talked about what is and isn’t part of marital property.
So, though it’s listed as a disagreement as to marital property, the testimony brought out in Ms. Harvey’s case shows quite plainly that there is an admission and an agreement that it is, to an extent, marital property. And the Court does find that it is marital property, to the extent that there were contributions made during the course of the marriage.
Mr. Harvey argues that the trial court “failed to identify the parties’ marital and non-marital property[.]” The court, however, clearly decided what property was marital and what property was non-marital. More importantly, Mr. Harvey presents no argument, in the alternative, that the court erred in making such determination. Therefore, Mr. Harvey’s argument fails.
ii. Step Two – Valuation of Marital Property
Mr. Harvey also argues that the trial court “failed to value the property[.]” We disagree and shall explain.
a. Real Property
In determining the value of the parties’ real property, the trial court found that (1) for the property located at 10511 Sarah Landing Drive, “the [c]ourt hasn’t been given sufficient information from which to decide what the current value is, what the mortgage is, what the purchase price was, to make an evaluation of whether it has increased or decreased in value[,]” and (2) for the property located at 3119 Federal House, [a]nd again, Ms. Harvey testified that she thinks that it’s valued at a certain amount; Mr. Harvey testified that it’s valued at a certain amount. I don’t know what the purchase price was. And there has been insufficient evidence from which the Court can really make a good evaluation of what the increase or decrease in equity might be in the house.
As the party requesting a monetary award, Mr. Harvey had the burden of “producing evidence of the identity and value of the property.” Noffsinger, 95 Md. App. at 281. The trial court found that there was insufficient evidence from which it could value each of the parties’ homes, and thus Mr. Harvey failed to satisfy his burden of production. Accordingly, there is no merit to Mr. Harvey’s claim that the trial court erred by failing to value the parties’ real property.
b. Bank Accounts
As to the parties’ bank accounts, the trial court first rejected Mr. Harvey’s claim of dissipation by Ms. Harvey, finding that,
if any money was removed by Ms. Harvey from the bank accounts, that money was used for marital purposes. The court went on to find that the values of the parties’ respective bank accounts were essentially equal and thus “they offset each other for equitable distribution between the two.” Mr. Harvey makes no argument that the court’s valuation of the bank accounts as having an equal value was in error. Therefore, because the court did value the bank accounts, Mr. Harvey’s argument fails.
c. Vehicles
For the vehicles owned by each party, the trial court stated that there was testimony as to the value of the vehicles and that the 2019 Lexus has a lien “that is close to or equal to the testified value.” The court then held that the values of the vehicles offset each other. Similar to the bank accounts, Mr. Harvey makes no argument that the court’s valuation of the vehicles as equal was in error, instead only arguing that the court failed to value the vehicles at all. Because the court did value the vehicles, Mr. Harvey’s argument fails again for lack of support in the record.
d. Pensions
Mr. Harvey argues that the trial court failed to determine the value of Ms. Harvey’s FERS and military pensions. Valuation and division of pensions is governed by Md. Code, Family Law § 8-204(b), which states:
(1) The court need not determine the value of a pension, retirement, profit sharing, or deferred compensation plan, unless a party has given notice in accordance with paragraph (2) of this subsection that the party objects to a distribution of retirement benefits on an “if, as, and when” basis.
(2) If a party objects to the distribution of retirement benefits on an “if, as, and when” basis and intends to present evidence of the value of the benefits, the party shall give written notice at least 60 days before the date the joint statement of the parties concerning marital and non[-]marital property is required to be filed under the Maryland Rules. If notice is not given in accordance with this paragraph, any objection to a distribution on an “if, as, and when” basis shall be deemed to be waived unless good cause is shown.
(Emphasis added.)
Mr. Harvey does not argue that he gave notice of an objection to a distribution of the pensions on an “if, as, and when” basis, nor did he present any evidence of the value of Ms. Harvey’s pensions. Therefore, the court was not required to value Ms. Harvey’s FERS and military pensions.
e. TSP
At the May 5, 2022 hearing, Marc Pushkin, an actuary, testified as an expert on Ms. Harvey’s behalf. Mr. Pushkin stated that he had conducted an analysis to calculate the marital and non-marital portions of Ms. Harvey’s TSP. According to Mr. Pushkin, as of March 31, 2022, the value of the marital portion of the TSP was $102,696.27 and the value of the non-marital portion was $119,785.48. Mr. Pushkin testified, however, that as of May 2, 2022, three days before the hearing, the value of the marital portion of the TSP was $94,136.50 and the value of
the non-marital portion was $109,655.27, for a total value of $203,791. Finally, Mr. Pushkin testified that on September 30, 2020, two months after the parties’ separation, the value of the marital portion of the TSP was $61,793.23 and the value of the non-marital portion was $88,475.
In its oral opinion, the trial court implicitly valued the marital portion of the TSP as of May 2, 2022, in accordance with Mr. Pushkin’s testimony, but then used his valuation as of the date of separation for the purpose of determining an appropriate monetary award. Mr. Harvey makes no argument that the court’s valuation of the TSP was in error; instead he again argues that the court failed to value the marital property. Because the court did value the TSP, based on the testimony of an expert witness, Mr. Harvey’s argument is without merit.
iii. Step Three – Monetary Award
Mr. Harvey argues that the trial court “failed to depict or even state how it arrived at the monetary award amount of $31,000, and failed to explain their [sic] reason for the allocation of property.” We again disagree.
Because the values of certain items of marital property offset each other, the trial court decided that “equitable distribution” did not necessitate a monetary award regarding those items. As to the TSP, the court stated as follows:
At the time of the separation, according to the evidence, the value was $61,793.23. Give me a moment. The Court is therefore going to award a monetary award to Mr. Harvey from Ms. Harvey in the amount of $31,000 to account for equitable distribution of the marital share of the TSP. The court explicitly stated that the reason for the monetary award was to “account for equitable distribution of the marital share of the TSP[,]” and then reached the amount of $31,000 by dividing in half the value of the marital portion of the TSP at the time of the parties’ separation. Therefore, contrary to Mr. Harvey’s arguments, the trial court did identify the parties’ marital property, value the marital property, and explain its reasoning in granting a monetary award of $31,000.
B. Did the trial court commit legal error and abuse its discretion by failing to determine the value of the marital property?
Mr. Harvey’s argument for this question, in its entirety, is as follows:
The clearly erroneous standard is applied to the court’s determination of the net value of marital property. Maryland Rule 8-131(c); Brown v. Brown [sic] 195 Md. App. 72, (2010) [sic]. Factual findings not supported by substantial evidence are clearly erroneous. Richards v. Richards [sic] 166 Md. App. 263, 271 (2005). Here the trial court did not make a determination regarding the value of any of the marital property detailed in the parties[’] 9-207. A failure to apply the appropriate standard correctly is clear error.
We addressed all of the issues raised here in the previous section. As discussed above, the trial court clearly determined the value of the parties’ marital property that required valuation under the statute.
C. Did the trial court commit legal error and abuse its discretion by failing to provide a reason for the ordered property allocation and monetary award determination?
i. First Argument
Mr. Harvey’s first argument for this question is as follows:
The parties’ Joint 9-207 Statement [] reflected their stipulation that [Ms. Harvey’s] military pension and FERS pension were entirely marital assets. [Mr. Harvey’s] assertion that [Ms. Harvey] has a FERS [p]ension and military pension and both pensions were in fact marital property went uncontested in the parties[’] joint marital property statement. As did [Mr. Harvey’s] assertion that the pensions should be divided on an if, as, when basis. [] In Section 3 of the Joint Marital Property Statement, [Ms. Harvey] asserted that the parties were no[t] in agreement as to her Thrift Savings Plan being marital or non-marital property, and she provided no basis for the assertion. [Ms. Harvey] did however assert a value for the [T]hrift [S]avings [P]lan in the amount of $203,791. [Mr. Harvey’s] assertion, which erroneously asserts that the Thrift Savings Plan is titled to him, asserted a similar value of $233,791. [] Although [Ms. Harvey] did not make any affirmative request for relief, it is clear by the erroneously ordered monetary award amount that the court attempted to account for [Ms. Harvey’s] failure, and refused to distribute the contested retirement accounts at all. This is clear legal error, and the court provided no justification for failing to divide the contested retirement assets.
Mr. Harvey fails to point to any evidence in the record to support his claim that the trial court attempted to compensate for Ms. Harvey “not mak[ing] any affirmative request for relief[]” of Mr. Harvey’s 401k by reducing Mr. Harvey’s monetary award, and we have found none. The trial court explicitly stated that the purpose of the monetary award was “to account for equitable distribution of the marital share of the TSP[]” and made no mention of Mr. Harvey’s 401k.
ii. Second Argument
Mr. Harvey’s second argument is that the trial court failed to determine the value of Ms. Harvey’s pensions or divide them on an “if, as, and when” basis and should have either “issue[d] a monetary award to [Mr. Harvey] to compensate for [Ms. Harvey] keeping both pensions and her much larger Thrift Savings Plan account, or if there was a similarly valued asset in [Mr. Harvey’s] name, it could be offset by the pension.”
Appellate courts in Maryland have generally “‘shown great respect for the judgments of trial courts in choosing methods for valuing pension benefits in divorce proceedings.’” Zanini, 241 Md. App. at 420-21 (quoting Imagnu v. Wodajo, 85 Md. App. 208, 215 (1990)). The “if, as, and when” basis for distribution of retirement benefits involves a calculation whereby the marital portion of the benefits is “‘a fraction of which the number of years and months of the marriage [] is the numerator and the total number of years and months of employment credited toward retirement is the denominator[.]’” Dziamko v. Chuhaj, 193 Md. App. 98, 112 (2010) (alterations in original) (quoting Bangs v. Bangs, 59 Md. App. 350, 356 (1984)). The share of the
retirement benefits of the non- member spouse is determined by “applying an agreed-upon fixed percentage to it. That fixed percentage then is applied to any future payments received under the pension plan.” Id. If no notice is given that the value of a spouse’s pension is at issue in divorce action, any objection to an “if, as, and when” distribution is waived. See Zanini, 241 Md. App. at 422.
This Court in Zanini summarized the application of the “if, as, and when” analysis as follows:
In the absence of value of the pensions, or agreement of the parties, the court could not properly set off one pension against another. The division of the parties’ pensions, therefore, must be pursuant to the Bangs “if, as[,] and when” analysis[.] . . . On remand, the court should apply that analysis and then assess how that . . . relate[s] to the monetary award.
Id. at 422-23 (emphasis added).
Here, as stated above, Mr. Harvey did not object to an “if, as, and when” distribution of Ms. Harvey’s pensions, and thus the trial court was not required to value the pensions. See Md. Code, Family Law § 8-204(b). Indeed, on the parties’ 9-207 Statement, Mr. Harvey indicated that the value of the pensions should be distributed on an “if, as, and when” basis. In its oral opinion, the court stated as follows:
That brings us then to the FERS pension and any other military pension that may exist. And there is no question that that is marital property, to the extent that there were contributions that are attributable to the time of the marriage.
The Court finds that again it appears that the parties were in agreement as to what each of them would do professionally and those decisions were made implicitly, explicitly by the parties during the course of the marriage.
Particularly as to the military pension, but as to the FERS as well, the Court feels that any equity requires that no award be made to Mr. Harvey.
Upon our search of the record, we could find no evidence of any agreement between the parties that they waived their respective rights in the other’s pensions and/or retirement assets upon divorce, and neither party has pointed us to the existence of such agreement. Although the parties may have kept their assets and incomes separate during the marriage, Zanini directs that such agreement must specifically relate to the pensions. Because there was no agreement between the parties to remove Ms. Harvey’s pensions from the division of marital property, the division of Ms. Harvey’s pensions must be pursuant to the Bangs “if, as, and when” analysis. See Zanini, 241 Md. App. at 422-23.
iii. Third Argument
Mr. Harvey’s last argument is that [t]he Trial Court ordered that [Ms. Harvey] retain the entire value of her TSP and her pensions without any legal authority to do so. Instead of offsetting [Mr. Harvey’s] interest in [Ms. Harvey’s] retirement accounts, or even requiring a retirement order dividing the assets, the Trial
Court unilaterally allowed an inequitable distribution of the assets. [] Of note, the court offers no explanation of how it arrived at the $31,000 monetary award in applying the Family Law § 8-205(b) factors. However, it is self-evident that the trial court used no legal justification in making its ruling regarding [t]he monetary award in this matter. There is no Maryland authority that permits a monetary award to be based upon a spouses’ [sic] failure to seek relief regarding a type of marital property.
As stated above, and contrary to Mr. Harvey’s repetition of the same arguments, the trial court did offer an “explanation of how it arrived at the $31,000 monetary award in applying the Family Law § 8-205(b) factors.” Further, there simply is no evidence that the court granted a $31,000 monetary award “based upon a spouses’ [sic] failure to seek relief regarding a type of marital property.”
Nevertheless, Mr. Harvey asserts that the “trial court used no legal justification in making its ruling regarding [t]he monetary award in this matter.” Here, the trial court based the granting of a monetary award solely on a division of Ms. Harvey’s TSP, having found that the division of the other marital property by title was roughly equal in value, except for the parties’ real property where Mr. Harvey failed to adduce sufficient evidence of each property’s value.3
At trial, Mr. Pushkin determined that the value of the marital portion of the TSP was $61,793.23 at the time of the parties’ separation and $94,136.50 at the time of the May 5, 2022 hearing. The evidence also showed that the parties had fully severed their relationship and assets at the time of separation. Mr. Harvey quickly purchased a new home and stopped contributing to the mortgage and utility payments of the marital home, and the parties divided all of the personal property in the marital home. Even during the marriage, the parties kept their finances separate and never had a joint bank account. The trial court, while implicitly recognizing that the value of the marital portion of the TSP was $94,136.50 at the time of the hearing, determined that, due to the parties’ complete severance of their marriage at the time of separation, the balance of the equities required only that Mr. Harvey be compensated for the marital portion of the TSP through the date of separation. Based upon the facts set forth above and our own review of the record, we conclude that the trial court had ample “legal justification” for granting Mr. Harvey a monetary award of $31,000 for the TSP.
See Malin v. Mininberg, 153 Md. App. 358, 430 (2003) (stating that it is “well settled that the trial court has broad discretion in determining whether to grant a monetary award and, if so, in what amount.”).
2. Did the trial court commit legal error when it failed to apply the eleven factors of Maryland Family Law § 8-205?
A. Arguments of the Parties
Mr. Harvey argues that the trial court “disregarded almost every factor outlined in Family Law § 8-205(b)[,]” which resulted in him receiving a “monetary award of $31,000, for his interest in the family home, [Ms. Harvey’s] military pension, [Ms. Harvey’s] Federal Pension, and [Ms. Harvey’s] Thrift Savings [P]lan with
an asserted value of $204,791.” Mr. Harvey contends that, even if the court had correctly applied the eleven § 8-205(b) factors, “there is no basis in Maryland jurisprudence that warrants such a disproportional division of marital property.” In addition, Mr. Harvey contends that “[n]ot only was it inequitable for the trial court to split the assets of the parties solely by title, without regard for the inequities served by such an action, it violated Maryland law.” Therefore, Mr. Harvey argues, “ordering an unequitable distribution of the marital assets, and labeling it a monetary award, constituted legal error.”
In response, Ms. Harvey contends that the trial court “met the articulation standard required of it when it denied [Mr. Harvey’s] request for a monetary award.” According to Ms. Harvey, the court advised the parties of its familiarity with the § 8-205(b) factors and “place[d] its reasonings on the record for each item listed on the parties’ joint property statement.” As to her military pension, civilian pension, and TSP, Ms. Harvey reiterates the court’s reasoning and argues that Mr. Harvey’s assertion that the court failed to provide a reason for its division of property “is unfounded and contradicted by the record itself.”
B. Analysis
Under the third step in the three-step process of determining whether to grant a monetary award, a trial court must consider the eleven factors listed in Md. Code, Family Law § 8-205. See Wasyluszko v. Wasyluszko, 250 Md. App. 263, 280 (2021). The factors enumerated in § 8-205 are:
1. the contributions, monetary and nonmonetary, of each party to the well- being of the family;
2. the value of all property interests of each party;
3. the economic circumstances of each party at the time the award is to be made;
4. the circumstances that contributed to the estrangement of the parties;
5. the duration of the marriage;
6. the age of each party;
7. the physical and mental condition of each party;
8. how and when specific marital property or interest in property described in subsection (a)(2) of this section, was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;
9. the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
10. any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
11. any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in property described in subsection (a)(2) of this section, or both.
See Flanagan, 181 Md. App. at 520.
“Although the court is not required to recite each factor in making a monetary award, appellate courts must be able to discern from the record that these factors were weighed.”
Hart v. Hart, 169 Md. App. 151, 166–67 (2006). In Hart, this Court overturned a monetary award because of the trial court’s “failure to mention the term monetary award, [§ 8-205], or any of the statutory factors that must be considered with respect to every monetary award.” Id. at 166. Similarly, in Flanagan, this Court vacated a monetary award because the trial court did not “adequately explain the basis for its monetary award” and because “the award resulted in appellee’s entitlement to almost 90% of the value of the marital property.” 181 Md. App. at 522. We stated that “‘a trial judge’s failure to state each and every consideration or factor’ does not, without demonstration of some improper consideration, ‘constitute an abuse of discretion, so long as the record supports a reasonable conclusion that appropriate factors were taken into account in the exercise of discretion.’” Id. at 533 (quoting Cobrand v. Adventist Healthcare, Inc., 149 Md. App. 431, 445 (2003))
In Wasyluszko, on the other hand, the trial court granted a monetary award that resulted in the appellant retaining 54 percent of the marital property, while the appellee kept 46 percent. 250 Md. App. at 282-83. This Court held that the monetary award “does not create such a lopsided result that a specific explanation of the court’s calculation is needed beyond consideration of the FL § 8-205(b) factors. Id. We held, therefore, that the trial court did not abuse its discretion by failing to “fully enunciate how its consideration of the statutory factors resulted in the particular monetary award in favor of” the appellant. Id. Here, the trial court listed all of the factors that it was required to consider under the statute and analyzed each factor in detail. The court then considered each item or category of marital property, to wit, real property, bank accounts, vehicles, pensions, and the TSP, and decided whether there was an inequity in the division by title, and, if so, the amount of a monetary award to rectify such inequity. We see no error or abuse of discretion in the court’s consideration of the FL § 8-205(b) factors or in the application of the factors to the determination of a monetary award of $31,000. Nevertheless, because the court failed to divide Ms. Harvey’s pensions on an “if, as, and when” basis, the monetary award must be vacated. On remand, the court shall consider whether to grant a monetary award, and the amount thereof, in light of the transfer of an interest in Ms. Harvey’s pensions to Mr. Harvey.4 See FL § 8-205(a).
II. QUESTIONS RAISED BY MS. HARVEY’S CROSSAPPEAL
1. Can the Court review assignments of error (i.e. issues) when an appellant relies on conclusory statements, and makes no reference to the record?
2. Did the trial court review the necessary factors required under Md. Code Ann., § 8-205?
Ms. Harvey’s first two questions are not proper bases for a cross-appeal, because they do not challenge any of the trial court’s rulings. Nevertheless, they have been addressed above in our analysis of Mr. Harvey’s questions in his appeal.
3. Did Ms. Harvey make a proper plea in her supplemental complaint to entitle her to a marital share of Mr. Harvey’s 401K?
A. Facts
In her Amended Supplemental Complaint for Absolute Divorce, Ms. Harvey prayed for, among other things, the following relief:
E. That this Court determine at the time of the entry of its Judgment of Absolute Divorce which property owned by the parties in any fashion is marital property;
F. That this Court determine at the time of the entry of its Judgment of Absolute Divorce the value of any property found to be marital property;
G. That [Ms. Harvey] be granted at the time of the entry of the Judgment of Absolute Divorce, a monetary award adjusting the equities and rights of the parties in said marital property;
H. That this Court pass an Order reducing to judgment any monetary award granted to [Ms. Harvey]; ***
J. That the Court grant to [Ms. Harvey] all relief permitted by Maryland statutes for such cases made and provided and all relief set forth in the appellate decisions of the Maryland Appellate Courts and in the common law of Maryland[.]
In the court’s May 5, 2022 oral opinion, the court discussed Ms. Harvey’s claim for a monetary award regarding the marital portion of Mr. Harvey’s 401k, as follows:
The first -- let me deal first, though it out of order, because it appears on the 9-207 joint statement, the 401k of Mr. Harvey.
As the Court indicated in the course of the testimony, that was not specifically pled by Ms. Harvey. And the case law is clear that though there were general requests for rulings and distributions of property, specifically, Huntley vs. Huntley, 229 Md. App. 484, 2016, in order for retirement to be considered in the course of distribution of marital property, it must be specifically pled. It was not.
So while that 401k may well be at least partially marital property, it is not before the Court in reference to any issue of distribution, as it wasn’t requested by Ms. Harvey.
B. Arguments of the Parties
Ms. Harvey argues that she properly requested a share of the marital portion of Mr. Harvey’s 401k retirement plan. According to Ms. Harvey, if a 401k plan is marital property, a trial court has the ability to transfer ownership of an interest in the 401k or order a monetary award. Ms. Harvey asserts that the trial court misinterpreted Huntley v. Huntley, 229 Md. App. 484 (2016), to conclude that Ms. Harvey had not requested a share of Mr. Harvey’s 401k. Although Huntley stated “that a litigant cannot request relief at trial that he or she did not request in his or her pleadings[,]” Ms. Harvey argues that here she did make a request for a monetary award. Finally, Ms. Harvey contends that the “court misconstrued [her] request for a monetary award with a request for an ownership transfer[]” and that the court’s ruling was inconsistent with Ms. Harvey’s amended supplemental complaint.
C. Analysis
Due process requires that “a party to a proceeding is entitled to both notice and an opportunity to be heard on the issues to be decided in a case.” Blue Cross of Maryland, Inc. v. Franklin
Square Hosp., 277 Md. 93, 101 (1976). A trial court “has no authority, discretionary or otherwise, to rule upon a question not raised as an issue by the pleadings, and of which the parties therefore had neither notice nor an opportunity to be heard.” Gatuso v. Gatuso, 16 Md. App. 632, 633 (1973). This requirement applies in the family law context. Huntley, 229 Md. App. at 493.
In Huntley, Lydia Huntley, the appellee, filed a Complaint for Absolute Divorce requesting that the trial court award her alimony, a monetary award, and a share of the retirement benefits of Charles Huntley, the appellant. 229 Md. App. at 486. In Mr. Huntley’s answer, the only relief requested was that the court grant a divorce and deny alimony to Ms. Huntley. Id. at 494. Mr. Huntley never filed a counter-complaint requesting an equitable division of Ms. Huntley’s retirement benefits. Id. At trial, the court denied Mr. Huntley’s request to grant him half of Ms. Huntley’s retirement benefits on the ground that Mr. Huntley had not requested such relief in his pleadings. Id. at 488.
This Court held that the trial court did not abuse its discretion when it refused to award Mr. Huntley a share of Ms. Huntley’s retirement benefits. Id. at 490. We stated that the trial court is “‘limited by the issues framed by the pleadings,’” and Mr. Huntley failed to make a request for such award in his pleadings. Id. at 494 (quoting Gatuso, 16 Md. App. at 636). We held that, although Ms. Huntley “admitted to the existence and value of her retirement benefits, such admissions d[id] not constitute [Mr. Huntley’s] request in a pleading that the court divide such benefits.” Id. (emphasis in original).
Subsequently, this Court distinguished Huntley in Lasko v. Lasko, 245 Md. App. 70 (2020). In Lasko, Amanda Lasko, the appellee, requested in her answer that the trial court determine “which of the property owned by the parties is marital property and the value of the same[]” and that she “be granted all relief to which she may be entitled pursuant to the Family Law Article of the Annotated Code of Maryland.” Id. at 79. Although Andrew Lasko, the appellant, argued that the trial court lacked the authority to grant a monetary award to Ms. Lasko because she failed to make such request in her pleadings, the court found that Ms. Lasko’s answer was sufficient to allow the court to grant her a monetary award. Id. at 74. On appeal, this Court stated that
[t]he critical factual distinction between Huntley and the instant case is that [Mr. Huntley] did not request in his answer any affirmative relief regarding a monetary award or the transfer of an interest in [Ms. Huntley’s] retirement benefits. By contrast, [Ms. Lasko] not only affirmatively requested that the court determine and value the marital property, but also included in her answer a request to be granted “all relief to which she may be entitled pursuant to the Family Law Article.”
Id. at 82. We held, therefore, that Ms. Lasko’s answer “sufficiently set forth a claim for a monetary award under the Family Law Article.” Id. at 83.
The instant case is not only closer to Lasko than Huntley, but is more specific in the relief requested than what the appellee sought in Lasko. Ms. Harvey made specific requests that the trial court (1) determine which property is marital property, (2) determine the value of any property found to be marital property, (3) grant Ms. Harvey a monetary award to adjust the
“equities and rights of the parties in said marital property[,]” and (4) grant her “all relief permitted by Maryland statutes for such cases made and provided and all relief set forth in the appellate decisions of the Maryland Appellate Courts and in the common law of Maryland[.]”
By contrast, the appellee in Lasko did not mention a monetary award in her answer, instead making a general request for “all relief to which she may be entitled pursuant to the Family Law
Article[.]” 245 Md. App. at 82. We held that such general request was sufficient for the trial court to grant a monetary award to the appellee. Id. at
83. Although Ms. Harvey made no mention of Mr. Harvey’s 401k in her request for relief, she was not required to do so. See id. at 82-83. Therefore, we hold that the trial court erred in holding that Ms. Harvey did not properly request a monetary award regarding Mr. Harvey’s 401k in her pleadings.
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED AND THE CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
FOOTNOTES
1 Although on the 9-207 Statement Ms. Harvey indicated that the 2019 Lexus was titled to Mr. Harvey, at trial Ms. Harvey’s counsel stated that the 2019 Lexus was titled to her.
2 On the 9-207 Statement Mr. Harvey claimed title to the TSP; however, in his brief, Mr. Harvey stated that such claim was in error.
3 Separate and apart from the monetary award, Ms. Harvey’s pensions will be divided on remand on an “if, as, and when” basis.
4 As explained in the next section, the trial court also will be required to consider Ms. Harvey’s interest in the marital portion of Mr. Harvey’s 401k as a part of the granting of any monetary award.
