PHOTO COURTESY SHERI HOIDRA Sheri Hoidra, of Sheri Hoidra Law Office,
Vol. XXXVI, No. 11
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3 Child Advocacy: How DDA services help Marylanders with disabilities
4 Cover Story: Under Trump, foreign-born family law clients face fear, new hurdles
6 In the News: Family law attorney referred to AGC for citing fake cases generated by AI
The Appellate Court of Maryland referred a Bel Air lawyer to the Attorney Grievance Commission after he was found to have cited fake cases in a brief generated with artificial intelligence.
7 In the News: Va. court erred in using hearsay to value marital residence
In Virginia, an appeals court found that the circuit court incorrectly admitted a tax assessment document and used it to determine the value of the marital residence. The document was inadmissible hearsay.
8 Monthly Memo
Vatican bank rehires coupled fired for marriage rule … Michigan court failed to consider best interest factors … ABA opinion clarifies lawyer-mediator ethics rules … Appeals Court upholds division of husband’s closely held securities … Trial court wrongly transferred husband’s debt to wife
9 Family Law Digest 11 Full Text Unreported Opinions
Child Advocacy
How DDA services help Marylanders with disabilities
The Maryland Developmental Disabilities Administration provides services to support people with developmental disabilities.
Currently, DDA provides services for 20,500 individuals in Maryland.
It is important for attorneys and advocates, who assist eligible individuals and their families, to be aware of the services provided by the DDA.
The DDA designs services to meet the unique needs of each person eligible for assistance, including several residential options such as living at home or in other community settings.
The goal in DDA residences is to promote independence while ensuring safety and wellbeing.
DDA has access to group homes, which are community-based settings where individuals live together with appropriate support.
Staff in group homes assist with daily living activities, medication management, and personal care, tailored to each resident’s needs.
Beyond residential services, the DDA offers day programs focusing on skill development, socialization, and community involvement.
These programs provide structured activities that enhance life skills, offer vocational training, recreational opportunities, and may include medical day care services.
Employment services can include job coaches, follow-along supports, job discovery, and self-employment services.
Individual Support Services (ISS) are designed to be flexible, supporting individuals in various settings to achieve person goals, including improving life skills, engaging in community activities, or pursuing employment.
Assistive technologies, environmental assessments and modifications, and peer mentoring supports can also be provided to assist the individual and their family members.
The DDA offers specialized support to address behavioral issues
CHRIS
ZIEMSKI
Child Advocacy
and enhance quality of life, including Behavioral Support Services.
Behavioral specialists work with individuals with disabilities, staff, and families to develop individualized plans that promote positive behavior and reduce barriers to community participation.
Further, the DDA ensures access to necessary health and clinical services, including nursing care, occupational therapy, physical therapy, and speechlanguage pathology.
Services are integral to maintaining health and well-being especially for residents in DDA group homes.
Some youth with disabilities in foster care are eligible for DDA services.
For transitioning youth ages twentyone to twenty-two, the Governor’s Transitioning Youth Initiative offers special eligibility and priority, allowing collaboration between the DDA and the Division of Rehabilitative Services to provide employment and day services, bypassing typical waitlists.
To access DDA services, an individual must complete a DDA Application for Eligibility and have supporting documentation attached which could include psychological assessment, adaptive functioning test results, Autism spectrum assessment, medical documentation, or educational records such as an Individualized Education Plan.
The following example demonstrates how the transition services are implemented.
A male youth diagnosed as a quadriplegic with multiple other medical issues, was in foster care and nearing his 21st birthday.
He met eligibility criteria for DDA, which are primarily based on having a chronic developmental disability that severely impacts daily functioning that
started before age twenty-two.
He remained in foster care most of his life as there were no family members who could manage his specialized needs.
For a youth with disabilities in foster care, the assigned Department of Social Services’ caseworker must complete the DDA application and attach the required medical and psychological documentation.
Failure to complete the forms properly can lead to a delay in services or placement or even a denial of services.
Thankfully, for this youth, his worker from the Department of Social Services completed the DDA application, he was accepted by DDA, and he aged out of foster care into a home for adults with disabilities within the same program that he had been in for foster care.
Once he was deemed eligible, he and a coordinator developed a PersonCentered Plan (PCP), which outlined the specific services and support required, including residential placement.
The youth was able to have contact with his former staff and was moved to a DDA licensed adult living unit with another youth, who he had lived with in foster care, and who was aging out at the same time.
In this living arrangement, this transitioning youth was able to obtain some independence while ensuring his safety, health, and wellbeing, and he maintained connections with people that he knew.
The Maryland DDA offers a comprehensive suite of services designed to support adults with disabilities.
By providing personalized care and fostering community integration, the DDA helps individuals lead meaningful and independent, safe, and healthy lives.
Advocates working with eligible clients should be well-versed in how to apply for DDA support and the available services to effectively advocate for a client’s needs.
Chris Ziemski is a Staff Attorney at Maryland Legal Aid.
Cover Story
Under Trump, foreign-born family law clients face fear and new hurdles
By Hope Keller Special to The Daily Record
Family law attorneys with foreign-born clients have been getting a close look at the Trump administration’s immigration crackdown.
Attorneys report that their non-na-
tive-born clients seeking to marry or divorce are unwilling to go to court for fear of being apprehended by ICE, even if they are in the U.S. legally or are in the process of establishing legal residency.
Nationwide, U.S. Immigration and Customs Enforcement agents have
been targeting immigrants in courthouses, among other places, as part of the government’s push to deport roughly 14 million people.
“What I’m seeing the most is fear of fear of going to court, fear of having to attend any hearings,” said Christina Wilkes of Wilkes Legal in Takoma Park
PHOTO COURTESY SHERI HOIDRA
Sheri Hoidra, of Sheri Hoidra Law Office, said that immigration authorities have been taking a harder line with issues now.
and Waynesboro, Pennsylvania, who handles family law cases involving immigrants, as well as humanitarianbased immigration cases.
Some clients in acrimonious divorces even worry their estranged spouse will turn them in to ICE, she said.
Issues with divorce
Wilkes and other attorneys say foreign-born clients who established U.S. residency through marriage are unlikely to lose their status – or their green card, which documents that status – if they divorce after more than two years of marriage. However, those married for under two years, who have a conditional green card, could face difficulties.
“If the marriage is less than two years old, then (authorities) are going to be screening for immigration fraud,” said Elizabeth Keyes, a professor and the associate dean for academic affairs at the University of Baltimore School of Law and the former director of the school’s Immigrant Rights Clinic. “The government is always trying to make sure that somebody who got status through marriage was really validly married and they weren’t just using the marriage for immigration status.”
In such cases, and when the marriage has not produced children, immigration authorities will ask for proof of legitimacy, such as mortgage or lease documents listing both spouses’ names or reciprocal life insurance policies, Keyes said.
A divorcing spouse with a 10-year, renewable green card is unlikely to lose it, but other problems could arise, attorneys said.
Wilkes cited the case of a client whose U.S.-born wife alleged he had married her simply to get a green card – a statement Wilkes said could complicate any effort of his to become a naturalized U.S. citizen.
“Of course, now we have to strenu-
ously object to that,” Wilkes said. “For any future immigration (matter), that’s very unhelpful.”
Proving legitimate marriage
Attorneys say that seeking a green card through marriage has become much more difficult in the last year, with ICE agents also making arrests at marriage interviews, which are generally held at U.S. Citizenship and Immigration Services, or USCIS, offices.
“People are getting arrested at these kinds of interviews, not because the marriage is invalid but because sometimes the spouse who’s not a citizen needs a waiver,” Keyes said, referring to a Provisional Unlawful Presence waiver. “Usually they’ve been here without permission or without status and they need a waiver to move forward.”
Applying for a waiver does not guarantee it will be granted.
Sheri Hoidra, of Sheri Hoidra Law Office in Pikesville, noted that while the underlying standards might not have changed, immigration authorities have been taking a harder line.
She gave the example of someone seeking to adjust their immigration status potentially being disqualified by a
Cover Story
DUI on their driving record.
“Now it’s considered a CIMT” – a crime involving moral turpitude –“whereas historically it may not have been,” Hoidra said.
Immigration authorities now also require an in-person interview for all couples when one party is seeking a green card, she said.
“In prior years, if you had a bona fide (marriage) claim, they might have mailed a card,” Hoidra said. “Those days are over.”
Wilkes noted that while immigration authorities have not been asking for new or different forms of proof to establish a relationship’s legitimacy, the tenor of marriage interviews has changed.
“It is much more confrontational and invasive,” Wilkes said. “They are by and large being treated now like a Stokes interview, all of them.”
Stokes interviews are conducted when immigration authorities suspect marriage fraud; the parties are interviewed separately and asked the same questions to identify inconsistencies.
“It’s more like they’re looking for fraud,” Wilkes said. “We’re having to prepare our clients a lot more thoroughly than we ever did before.”
Christina Wilkes
Elizabeth Keyes
In the News
Family law lawyer referred to AGC for citing fake cases
By Ian round IRound@TheDailyRecord.com
The Appellate Court of Maryland this week referred Bel Air lawyer Adam Hyman to the Attorney Grievance Commission after he was found to have cited fake cases in a brief generated with artificial intelligence.
Hyman, representing a woman in a divorce case, submitted a brief that his law clerk prepared using ChatGPT. Hyman asked the clerk — a law school graduate but not a licensed attorney — if she verified the citations, but he did not check them himself.
The brief was “replete with citation irregularities,” Maryland Appellate Judge Kathryn Graeff wrote in an Oct. 29 opinion, including citations to fake cases, misquoted passages and citations to cases that did not support the proposition for which they were cited.
Graeff addressed the use of AI before the substance of the appeal in the divorce case “as a warning to others and to determine the court’s appropriate response in this case.”
She wrote it was likely that Hyman violated several of the rules governing lawyers’ conduct. One of those rules, Graeff wrote, “mandates that attorneys bring or defend only meritorious issues.” Another requires attorneys to provide “competent representation to a client.” A third rule holds attorneys responsible for the conduct of their employees.
“Instead of adequately preparing himself regarding the law, counsel left this work, in part, to his law clerk, a non-lawyer, and then failed to verify the accuracy of the research,” the opinion states.
“In our view, this does not satisfy the requirement of competent representation. A competent attorney reads the legal authority cited in court
Depositphotos
The Appellate Court of Maryland referred a Bel Air lawyer to the Attorney Grievance Commission after he cited fake cases generated with artificial intelligence in a brief in a divorce case.
pleadings to make sure that they stand for the proposition for which they are cited.”
Graeff wrote that this case was the first time either the Maryland Appellate Court or Supreme Court had addressed attorneys’ improper use of AI. [box type=”shadow” class=”alignleft” width=”300px” ]MORE FROM THE AUTHOR: [feed url=”https://thedailyrecord.com/author/iround/feed” number=”3” ][/box]
Graeff was joined in her opinion by Appellate Judge Kevin Arthur and retired Appellate Court Chief Judge Patrick Woodward, who was specially assigned.
Alfred Scanlan Jr., who represents Hyman, declined to comment, but confirmed that Hyman’s clerk is still working for him. Ralph Sapia, a previous lawyer for Hyman, is no longer representing him after being appointed to serve as a judge in the Baltimore County Circuit Court.
At a hearing in early October, Hyman accepted responsibility. He acknowledged that he did not have subscriptions to Westlaw or LexisNexis
and often didn’t fully read the cases he cited.
“There isn’t an excuse,” he said at an Oct. 3 hearing. “I submitted something under my name that was inaccurate. That’s mortifying.”
But Graeff wrote that he hadn’t done enough to avoid a referral to the AGC. She denied his request to file a corrected version of the brief, writing that doing so would be unfair to the other party.
“He has taken steps to ensure that this situation does not occur again, and he clearly was not happy to be in Court to address the (order to show cause why he shouldn’t be sanctioned),” Graeff wrote.
“Nevertheless, it would be a stretch to say that he was remorseful for his failures and the extra work that he caused in this case. Indeed, when questioned at oral argument about the concern that he clearly did not read the cases before submitting his brief (because the fictitious cases did not exist), counsel did not appear to share that concern, stating that he typically did not read cases he cites, but instead, he relies on summaries found in treatises or on the internet.”
Maryland Bar Counsel Tom DeGonia, who leads the office that disciplines lawyers, declined to comment.
Earlier this year, the Maryland State Bar Association published guidance on the ethical use of generative AI by lawyers, emphasizing the obligation to provide competent representation, maintain client confidentiality, disclose the use of generative AI tools to clients and charge reasonable fees.
“Attorneys using GAI must review output to ensure that it is accurate, reliable and trustworthy, and the legal arguments are relevant to the particular legal issue at hand,” the guidance states.
Va. court erred in using hearsay to value marital residence
BrIdgetower MedIa newswIres
RICHMOND, VA -- Where the circuit court admitted a tax assessment document and used it to determine the value of the marital residence, it erred. The document was inadmissible hearsay.
Background
Ann M. Isbell appeals the circuit court’s final decree awarding her a divorce from Curtis W. Isbell.
Residence
Wife argues that the circuit court erred in admitting the tax assessment document and using it to determine the value of the marital residence because it was inadmissible hearsay opinion evidence. The court agrees.
Husband offered, and the circuit court admitted into evidence, the tax assessor’s valuation of the marital residence in 2023 as $582,000; the court then accepted the truth of the matter asserted in the tax assessment when it found precisely that value for the residence. This is exactly the type of hearsay evidence prohibited when, as here, the assessor’s qualifications have not been established to the satisfaction of the court, their demeanor cannot be observed during testimony by the trier of fact and their pronouncements are immune from cross-examination.
Although husband asserts that wife identified the tax assessment on her exhibit list, and thus invited the error she now complains of, that contention is not persuasive.
An intended exhibit does not become evidence until it is introduced and accepted by the circuit court. Wife maintains, as she did in the circuit court, that the document was included in her exhibit list because she had been paying the property taxes. She also steadfastly objected to admission of the tax assessment as proof of valuation.
Accordingly, the circuit court’s valuation of the marital residence is reversed and remanded for the circuit court to re-
consider the residence’s value.
Interest
Wife argues that even if husband had a separate interest in the marital residence, the circuit court erred in determining the amount of his separate interest. Specifically, she contends that the court found that the parties realized $437,200 from the sale of the Bradco stock but erroneously decided that the entire proceeds of the sale attributable as husband’s separate contribution, rather than a mix of separate and marital contributions.
Because husband’s 1993 purchase of Bradco stock occurred before the marriage, the sale proceeds of those shares constituted husband’s separate property. Husband testified that when the tranches of stock were sold, $300,000 of the sale proceeds were used to pay off the parties’ mortgage on the marital residence. The circuit court’s finding that husband had at least some separate interest in the marital residence is not plainly wrong or without evidentiary support.
But the circuit court also concluded that the Bradco stock purchased in 2005 was husband’s separate property. The evidence does not support this classification. Purchased during the marriage, the 2005 Bradco stock was presumptively marital property unless husband proved it was separate property. Husband failed to do so. The circuit court’s classification of the Bradco stock husband purchased in 2005 was thus without supporting evidence, and resulted in a misapplication of the equitable distribution statute.
Wife next contends that the circuit court erred by failing to award her a separate interest in the marital residence based on her downpayment on the home. The court agrees. The parties both testified that wife made the $25,000 downpayment on the marital residence using pre-marital money. Further, there was no evidence that wife ever withdrew her interest in the residence.
Accordingly, the circuit court plainly erred in finding that husband contributed to the downpayment on the marital
residence and in failing to credit wife with a separate interest in the marital residence.
Personal property
Wife contends that the value of the marital personal property split between the parties in the final decree was vastly different and, therefore, the circuit court abused its discretion by failing to grant her a monetary award for her interest in that property. The court disagrees. The record shows the circuit court considered the factors listed in Code § 20107.3(E) before reaching its decision.
Annuity
Wife argues that the circuit court erred in classifying husband’s annuity as part marital and part separate because husband failed to provide sufficient evidence to trace his separate interest. The court again disagrees. Crediting husband’s testimony, the money from the ESOP and IRA accounts constitutes a traceable separate interest for husband within the annuity. Husband’s testimony itself was evidence the court as the trier of fact chose to credit.
Support
“[B]ecause we reverse the equitable distribution award and remand for reconsideration,” the circuit court must reexamine spousal support in light of its additional equitable distribution proceedings; therefore, we must also reverse the spousal support ruling and “direct the trial court, on remand, to reconsider the issue of spousal support.”
Affirmed in part, reversed in part, and remanded.
Isbell v. Isbell, Record No. 1542-242, Oct. 14, 2025. CAV (unpublished opinion) (Malveaux). From the Circuit Court of the City of Richmond (Jenkins Jr.). Robert L. Isaacs (Robert L. Isaacs & Associates, on briefs), for appellant. Richard L. Locke (Shannon S. Otto; Locke Family Law; Shannon Otto Law, PLLC, on brief), for appellee. VLW 0257-292. 14 pp.
In the News
Vatican bank rehires coupled fired for marriage rule
VATICAN CITY — A married couple who had been fired from the Vatican bank for violating an internal rule barring workplace marriages has been rehired in a negotiated settlement, the union for Vatican lay employees announced Wednesday.
Silvia Carlucci and Domenico Fabiani filed a wrongful termination lawsuit in January, some four months after they were married. The union called the settlement “a victory of common sense,” though it did not say when they would resume working, or what their roles would be.
Associated Press
Michigan court failed to consider best interest factors
DETROIT, MI — Where a plaintiff’s request for joint legal and physical custody and unsupervised parenting time was granted, the trial court committed clear legal error by holding that the defendant had to prevail on every best-interest factor, by failing to evaluate the children’s preferences and by failing to make the required findings under MCL 722.26a(1)(b).
Vacated and remanded.
“In this custody matter, defendant appeals by right the trial court’s order granting plaintiff’s request for joint legal and physical custody and unsupervised parenting time. We vacate and remand for further proceedings consistent with this opinion.
Bridgetower Media Newswire
Monthly Memo
ABA opinion clarifies lawyer-mediator ethics rules
PROVIDENCE, RI — Mediators in Rhode Island and Massachusetts say they already understand much of what a new American Bar Association formal opinion says about their duties under the relevant Rules of Professional Conduct.
But the mere fact that the ABA Standing Committee on Ethics and Professional Responsibility felt compelled to try to provide some guidance speaks to the ongoing need for such advice, as the ranks of attorneys offering their services in settling disputes swell, mediators add.
The ABA’s new Formal Opinion 518, titled “A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator,” begins by noting that most provisions of the Model Rules of Professional Conduct address a lawyer’s role in representing one or more clients rather than as a lawyer-mediator.
Bridgetower Media Newswire
Appeals Court upholds division of husband’s closely held securities
BOSTON, MA — The wife in a divorce was entitled to a 50-percent share of her husband’s closely held securities obtained in connection with his employment, notwithstanding the husband’s argument that the division of those assets should have been apportioned in his favor under existing Supreme Judicial Court precedent, a panel of the Appeals Court has determined.
The case involved a judgment of divorce nisi in the marriage of Karim Suwwan De Felipe and Leila El-Youssef Suwwan that addressed the distribution of “nonvoting common shares” and “investor entity units” that the husband obtained as an employee of Fidelity Research & Management Co. after filing for divorce in 2020.
A Suffolk Probate & Family Court judge awarded the wife 50 percent of the disputed NVCs and IEUs. At the lower court and on appeal, the husband argued that under the “modified time rule” formula adopted by the SJC in its 2001 decision in Baccanti v. Morton, the wife should have received a lesser percentage of his equity compensation.
Bridgetower Media Newswire
Trial court wrongly transferred husband’s debt to wife
Where the trial court required wife to refinance, rather than simply assume, the mortgage on her home that was guaranteed solely by her ex-husband, it erred. The circuit court’s decision had the effect of transferring husband’s debt to wife.
Background
Ruby R. Vaughan appeals the circuit court’s final decree of divorce from Kenneth N. Vaughan Sr. Wife argues that the circuit court erred by not awarding her more in spousal support and by requiring her to refinance a mortgage that was solely in husband’s name.
The Appellate Court affirmed the Prince George’s County Circuit Court’s judgment of absolute divorce, award of use and possession of the marital home to wife for three years and order that husband pay the parties’ home equity line of credit loan during that time. The court’s finding regarding wife’s income was supported by competent evidence and is not clearly erroneous.
The Appellate Court affirmed the Calvert County Circuit Court’s modification of custody of the parties’ minor child. The circuit court did not err when it found that mother’s new work schedule, coupled with the minor child’s new weekend availability due to school and the limited time for quality parenting time during the week, constituted a material change in circumstance.
The Appellate Court affirmed the Prince George’s County Circuit Court’s award of $44,773.45 in attorney’s fees to mother. Although father contends that the circuit court committed reversible error by disregarding the parties’ respective financial resources and needs, a court is required to consider those factors only when making a discretionary award under FL § 12103(b). By contrast, when a proceeding is brought or maintained without substantial justification, as here, FL § 12-103(c)
mandates the award of reasonable attorney’s fees absent good cause to the contrary, and the parties’ financial circumstances are immaterial.
ADRIANA MAYELA ARAUZ SALGADO V. SOFONIAS POVEDA AGUERO
The Appellate Court reversed and remanded to the Washington County Circuit Court with instructions to make the requisite Special Immigrant Juvenile Status findings of parental abandonment and neglect, in furtherance of the children’s best interests. The circuit court erred in refusing to find abandonment and that father’s reunification with them is viable. At a minimum, moreover, both daughters almost surely have experienced mental injury or a substantial risk of mental injury because of his disappearance from their lives, which is sufficient to satisfy the statutory definition of neglect.
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting father sole legal and physical custody of the parties’ minor child. The record indicates that the court properly considered the child’s best interests, including each of the relevant factors, in reaching the custody determination.
The Appellate Court vacated the Howard County Circuit Court’s award of attorney’s fees to husband. The circuit court was not clear as to which Rule or statutory provision it relied on when it granted attorney’s fees, i.e. Md. Rule 1-341, Md. Code, Fam. Law § 8-214(b) or Md. Code, Fam. Law § 8-214(d).
STEPHANIE MARTIN KREWSON-KELLY V. MATTHEW DANIEL KELLY
Custody; modification; material change
No. 2294, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Leahy, J.
Filed: Aug. 29, 2025
The Appellate Court vacated the Howard County Circuit Court’s denial of mother’s motion to modify custody. The circuit court failed to sufficiently consider the child’s welfare in determining there was no material change in circumstances that may warrant modification of custody.
ANNIEBELL STEWART V. DAVID ALCINDOR
Custody; visitation; best interest factors
Nos. 2209, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Nazarian, J.
Filed: Aug. 25, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s award of sole legal and physical custody of the minor daughter to father while establishing an escalating visitation schedule for mother. The circuit court considered the best interest factors properly.
LINDA ANN BANKS V. JULIAN IRWIN BROWN JR.
Child support; calculation; legal principles and evidence
The Appellate Court affirmed the Prince George’s County Circuit Court’s calculation of father’s child support obligation. The record is clear that the circuit court’s decision was based on correct legal principles and a credible assessment of the evidence.
LAURA EVERNGAM-PRICE V. RICHARD ALLEN PRICE
Marital award; statutory procedure; three-step process
The Appellate Court affirmed the Talbot County Circuit Court’s equal division of marital property and $120,000 monetary award to husband. The court properly followed the three-step process to grant its monetary award and its decision to award the husband $120,000 was an appropriate action under the statutory procedure, considering when marital property was acquired.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s judgment of absolute divorce, award of use and possession of the marital home to wife for three years and order that husband pay the parties’ home equity line of credit loan during that time. The court’s finding regarding wife’s income was supported by competent evidence and is not clearly erroneous.
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..
He also operates a personal IT computer repair business, from which he reported earning $2,576 in 2021. Wife has operated a daycare from the marital home for nearly twenty years. She testified that her monthly income fluctuates between $4,000 and $4,500 based upon the number of children enrolled from time to time. At trial, Wife testified that she was then earning $4,000 per month.
The parties’ minor child, G., suffers from sickle cell disease. Wife testified that G. has been hospitalized three or four times due to flare-ups relating to the disease and that operating the in-home daycare has permitted her to care for G. as needed. Finally, the parties agreed that they purchased the family home in 2001 and have two mortgages on the property, including a HELOC loan obtained several years prior to the parties’ separation.
In this appeal, appellant asks us to do what we have historically and consistently declined to do, i.e., second guess a trial judge’s conclusions based on the judge’s consideration of the evidence presented at trial. Again, we decline to do so.
After a bench trial in the Circuit Court for Prince George’s County, the court entered a judgment of absolute divorce which, in pertinent part, granted appellee, Lisa Bigesby (“Wife”) use and possession of the marital home for three years and ordered that appellant, Derek Bigesby (“Husband”) pay the parties’ Home Equity Line of Credit (“HELOC”) loan during that time.
In his appeal, Husband asks:
1. Whether the [c]ircuit [c]ourt err[ed] in determining the amount of [Wife’s] income?
2. Whether the [c]ircuit [c]ourt err[ed] in ordering [Husband] to pay the HELOC loan on the marital home?
As we discuss, we answer both questions in the negative. Accordingly, we shall affirm the judgment of the circuit court.
BACKGROUND
Husband and Wife married in 2001 and have three children in common, only one of whom was a minor at the time of the instant litigation. In 2021, Husband separated from Wife, and in January 2022, he filed a complaint for absolute divorce. Trial was held on December 15, 2022 and September 5, 2023. Husband testified that he is employed by the Smithsonian Institution, where he earns an annual salary of $123,000.
In November 2023, the court issued an oral ruling granting Wife a judgment of absolute divorce from Husband. The court assessed Wife’s income at $4,250 monthly and Husband’s income at $10,258 monthly, granted Wife use and possession of the family home for three years, and ordered that, during that time, Wife pay the first mortgage on the home and Husband pay the HELOC loan.1
DISCUSSION
In substance, Husband’s appeal concerns only one issue: the court’s calculation of Wife’s income. Specifically, he contends that the court failed to consider Wife’s testimony that she was earning more at the time of trial than in earlier years and that as a result, the court “inexplicably excluded over $20,000 of disputed gross income which was earned by [Wife] in 2021.” Additionally, he contends that the court erred in ordering him to pay the parties’ HELOC loan during Wife’s use and possession of the family home because that decision was “based in part, if not entirely, on its erroneous finding that [Wife’s] monthly income is between $4,000 and $4,500 per month.” Wife responds that the court correctly “adopted the midpoint of [Wife’s] estimated income” and that the court properly ordered that Husband pay the HELOC “[g]iven the record evidence of [Husband’s] higher earning capacity[.]”
Our standard of review is clear. “When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence.” Md. Rule 8-131(c). Therefore, we “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and [we] will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Id. “Clear error exists where the trial court’s factual findings are not supported by
competent evidence.” EBC Props., LLC v. Urge Food Corp., 257 Md. App. 151, 165 (2023). In other words, “[i]f there is any competent material evidence to support the factual findings of the trial court, those findings cannot be held to be clearly erroneous.” YIVO Inst. for Jewish Rsch. v. Zaleski, 386 Md. 654, 663 (2005). Finally, when reviewing divorce proceedings, “absent evidence of an abuse of discretion, the trial court’s judgment ordinarily will not be disturbed on appeal.” Boemio v. Boemio, 414 Md. 118, 125 (2010) (quotation marks and citation omitted).
The relatively sparse record before us reveals that the evidence of the parties’ respective incomes was disclosed by their testimony and income tax returns. We do not find in the record extract any indication that Husband offered evidence to rebut Wife’s testimony about her daycare earnings. His assertions on appeal amount to no more than conjecture.
The court assessed Wife’s income at $4,250 per month, a finding supported by Wife’s testimony that her monthly income fluctuated between $4,000 and $4,500 depending on the number of children enrolled in her in-home daycare. Wife testified that, at the time of trial, her income was only $4,000 per month, that she recently had a child “age out” of daycare leaving her with just five of eight daycare places filled, and that enrollment has dropped as low as one child after the onset of the COVID pandemic.
Husband points to the fact that Wife testified that she was earning more than she was in 2021, when she reported earning $69,772, and accordingly, that the court erred in calculating Wife’s monthly income at $4,250, or $51,000 per year. However, Wife explained that, although she reported
JUDGMENT
earning $69,772 in 2021, “a lot of that money was from grant[s]” from the county due to the COVID pandemic. She asserted that the grants were “calculated as income [on her tax return], because that’s what it was used for, to support providers.” Wife further testified, and Husband did not dispute, that at one point in 2021, enrollment dropped to one child, and she was earning only $900 per month. In sum, the court’s finding regarding Wife’s income struck a reasonable average, was supported by the record and not inconsistent with Wife’s testimony that she was earning more than she earned in 2021.2
Finally, Husband’s sole challenge regarding the HELOC loan is that the court’s ruling was based on an erroneous finding regarding Wife’s income. We find no error relating to Husband’s ordered payment of the HELOC loan. The court was permitted to order “that either or both of the parties pay all or any part of . . . any mortgage payments or rent . . . [or] any indebtedness that is related to” the family home when granting a divorce. See Md. Code Ann., Family Law § 8-208(c) (1)-(2). The court ordered that Wife pay the first mortgage on the family home, and that Husband pay the HELOC loan. The court’s decision is further supported by several factual findings, including that Husband “earns more than twice” the income that Wife earns, and that he has “the ability to do a side job[.]” Husband does not challenge those findings.
In sum, the court’s finding regarding Wife’s income was supported by competent evidence and is not clearly erroneous. Moreover, we find no abuse of discretion regarding Husband’s ordered payment of the HELOC loan.
FOOTNOTES
1 Wife was granted primary physical custody of G. consistent with a mediation agreement between the parties. Husband does not challenge the court’s custody determination on appeal. Likewise, Husband does not challenge the court’s use and possession order in favor of Wife.
2 There was no evidence that Wife received, or expected to receive, additional grants after 2021.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Calvert County Circuit Court’s modification of custody of the parties’ minor child. The circuit court did not err when it found that mother’s new work schedule, coupled with the minor child’s new weekend availability due to school and the limited time for quality parenting time during the week, constituted a material change in circumstance.
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 Father with respect to “medical, extracurricular, and religious matters” and to Mother with respect to “mental health and educational matters.” The court granted the parties joint physical custody of C. on a two- week schedule. Pursuant to their arrangement, during the first week, Mother had C. in her custody from Sunday evening through Wednesday, and Father had C. in his custody from Wednesday evening through the following Sunday. During the second week, Mother had C. in her custody from Sunday evening through Thursday, and Father had C. in his custody from Thursday evening through Sunday. The order provided that on days of the custody exchanges, the pickup and drop-off was to occur at 5:00 p.m. The order also provided a holiday access schedule. Although this arrangement provided Mother nine of fourteen overnights with C., the weekend time she shared with C. under this schedule was limited to Sunday evenings.
B. Contempt Petitions and Motions to Modify Custody
This case arises out of a dispute between Mark Quintin Gadson (“Father”) and Ha Thi Thu Hoang (“Mother”) involving custody of their minor child, “C.”1 After both parties filed motions to modify physical and legal custody of the child, the Circuit Court for Calvert County held a hearing that took place over the course of several days. The court found that a material change in circumstances had occurred, and therefore issued an order modifying custody of the minor child. This timely appeal followed.
ISSUES PRESENTED FOR REVIEW
Father has presented the following two issues for this Court’s review:2
I. Whether the circuit court erred in finding that a material change in circumstances occurred.
II. Whether the circuit court abused its discretion in allowing testimony regarding Father’s former coparenting relationship.
For the reasons to follow, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
A. Divorce and Initial Custody Order
The parties in this action were married in 2016. Their child C. was born in 2020. The parties subsequently obtained a judgment of absolute divorce which was entered in October of 2021. Based on the parties’ agreement, the court awarded them joint legal custody of C., granting tie-breaking authority
In August of 2023, Mother filed a petition for contempt against Father, which she amended in September of 2023. Mother asserted that Father had violated the divorce decree in several ways, including: disparaging Mother in the presence of the minor child; failing to communicate regarding the minor child through the agreed and ordered calendar coordinating software; and failing to discuss decisions with Mother regarding the child before exercising tie-breaking authority. After the court issued a show cause order, Father responded to the petition, denying most of the allegations and denying that he was in contempt.
Simultaneous to the filing of his answer to the contempt petition, in October of 2023, Father filed a motion seeking modification of custody. Father asserted that since the initial custody order was entered, there had been a material change of circumstances warranting a change in custody. In particular, Father claimed that Mother had “abused her tie-breaking authority” in relation to C.’s education. Father asserted that Mother had failed to sufficiently discuss education and preschool options with him before exercising her tie- breaking authority to enroll C. in programs. Father claimed that because Mother’s employment status had changed to full-time, she was unable to provide “a stable environment for the minor child[.]” Father argued that based on the change in circumstances, the court should modify the prior custody order and grant him full legal and primary physical custody of C. On the same day, Father also filed his own petition for contempt against Mother, on the basis that she was failing to discuss educational decisions regarding C. and failing to keep him informed of those decisions.
Mother responded to Father’s motion to modify custody, denying that she had abused her tie-breaking authority, and asserting that Father’s manner of communications had made it impossible to engage in productive discussions regarding C. She did not agree that Father should be awarded sole legal or primary physical custody of C. Mother denied the allegations in Father’s petition for contempt for the same reasons.
In March of 2024, Mother filed a counter motion seeking modification of custody. She asserted that since the time of the initial custody order, the circumstances had changed materially, and a modification of custody was warranted. Mother asserted that Father had engaged in disparagement of Mother in the presence of C. at custody exchanges and that Father had “consistently exhibited an inability to communicate” with her. Mother sought primary physical custody of C.
Following a hearing in March of 2024, the court denied both petitions for contempt.3 The court ordered the parties to communicate solely via a third-party communication program, Our Family Wizard (hereinafter, “OFW”), with ToneMeter. 4 Father filed a subsequent petition for contempt against Mother in August of 2024, again claiming that she was “abusing tie-break [sic] privileges.”
C. Custody Modification Hearing
The court held a hearing on the merits of both parties’ motions to modify custody, Father’s petition for contempt, as well as additional outstanding motions. The merits hearing spanned the course of five days in October of 2024 and January of 2025. Both parties testified at the hearing.
Father testified that he did not agree with Mother’s placement of C. in various educational or daycare programs. He asserted that Mother did not sufficiently discuss with him placement of the child before exercising her tiebreaking authority to enroll C. into these programs. Father asserted that when he attempted to present Mother with alternative educational options, she did not consider those suggestions. He also asserted that Mother had enrolled C. in mental health services—which Father did not believe C. needed— without adequate discussion.
Mother testified regarding the parties’ co-parenting relationship. She testified that she did attempt to discuss issues such as daycare and preschool educational program placement with Father. For example, for the Fall 2024 term, Mother proposed reenrolling C. in a Head Start preschool program, with hours from 9:00 a.m. through 4:00 p.m., and which also allowed for early drop-off; however, Father rejected this proposal, contending that C. should attend a program at a private school in Solomon’s Island with hours from 10:00 a.m. through 2:00 p.m. 5 Mother testified that she researched the differences in the private program Father selected, and that it did not work for several reasons, including the short schedule of the private program, which would require her to secure additional care for C.; the private program had a lower accreditation level than the program Mother had proposed; and the private program had a higher cost. Mother explained the reasons she believed her proposal was a better fit for C., and asked Father to visit the campus of the program she had proposed; Father declined. The
messages entered in evidence reflected that Father refused to consider any option other than the private program he put forth. Because discussions with Father were unfruitful, Mother exercised her tie-breaking authority and enrolled C. in the Head Start program. Father responded by stating the following: “Whatever untruths make you happy[.] You’re just filling up OFW with nonsense and your motivations.”
Mother testified that when the parties agreed to the initial custody access schedule in 2021, she worked part time at H&R Block, and worked only during the weekend, staying home with C. during the weekdays. She testified that since that time, she had obtained her CPA license and worked for the Calvert County Public School System. Mother testified that her work schedule had changed, allowing her to work during the week and not on weekends. She also testified that C. attended preschool during the week, and that she did not have any weekend time with C. Mother testified that C. was negatively impacted by the absence of quality parenting time with her. She testified that she had attempted to discuss changing the access schedule with Father to allow for C. to alternate weekends between both parents; however, Father had refused to consider this adjustment. 6 Mother further testified that due to Father’s inflexibility in making even temporary adjustments to the schedule, she was unable to bring C. with her to her presentation ceremony for her CPA license.
Additional witnesses were also presented. Among those witnesses was Theresa Booker (“Booker”), the Head Start coordinator for Calvert County Public Schools. Booker testified that when C. was initially enrolled in the Head Start program, Father had contacted the Head Start offices questioning C.’s eligibility for enrollment. She testified that after explaining that C. met the federal requirements for the program, Father became “belligerent” and informed her that she “didn’t know what [she] was doing,” that she should be fired, and that “he would take it to the next level[.]” She testified that Father did in fact take it to the next level by contacting the superintendent of the schools and the Office of Head Start with complaints, both of which opened investigations. Both investigations were closed without any findings of wrongdoing.
Mother’s other child testified. He testified that during the summer when he and Mother had more time with C., they would participate in activities such as going to the playground, shopping, or other “stuff that [C.] likes.” However, he testified that during the school year there was not as much opportunity to do such activities because Mother had to work, and both the children had to go to school.
Father’s estranged sister, Tanya Holland (“Holland”), also testified. Holland testified regarding her observations concerning Father’s prior coparenting relationship with the mother of his now-adult daughter. She testified that Father had been “controlling” and that he did not have a good relationship with his prior coparent. Holland testified that she maintained a good relationship with Mother and visited with C. a few times a year using a combination of in-person and video visits.
In addition to the testimony, both parties presented multiple exhibits, including hundreds of pages reflecting
communications between the parties. The communications between the parties reflected multiple messages from Father which appeared to be not conducive to co-parenting discussion, as Father prefaced the messages with language indicating that the purpose of the communication was to create a record for the litigation. The following are examples of such communications:
• “These are untruths that will be exposed later.”
• “I communicated problems with your previous canceled contract with [a prior daycare provider]. The untruths will be exposed later.”
• “For the Record: [C.]’s mother is further abusing the joint custody and tie- break arrangement; making illadvised decisions logical considerations.” [sic]
• “For the Record: The defendant [Mother] continues to be in contempt with the original court custody order. The defendant continues to be dishonest, unreasonable, and illogical. Does not consider the best considerations or opportunities for [C.] Repeatedly, only thinks about her personal needs and not the welfare of [C.]”
• “For the Record: At a date to be determined by [Father], [C.] will be assessed by a medical expert in the field of Child Psychology and Mental Health. This is only being done to prevent further inappropriate behaviors and life threatening decision making by his mother[.]”
• “I will do what is necessary to protect [C.] from your actions and you deliberately harming him by providing illogical assessments. It will be very revealing in October. I divorced you in 2020 in part because I realized in 2017 that you have significant psychological problems. Rarely, do people have two marriages within 4 years that last no longer than 1-3 years. [sic] I wish that I had listened to my better instincts prior to 2016.”
• “We both know that these statements are untruths or nonfactual. Furthermore, you posting court documents handed to you by [C.’s mental health provider], solidifies the conspiracy, corruption, and unethical behaviors at hand by both you, a licensed health care provider, and your attorney. Which will be addressed later by the Maryland State Bar Association concerning [Mother’s attorney]’s behaviors as your representation.” [sic]
• “For the Record: [C.] was unnecessarily taken to the doctor.”
• “What is the update or specifics of the visit [with C.’s mental health provider]? When is the next visit? Your biligerent [sic] behaviors to provide no information continues to violate the custody order. The fact that you continue to take [C.] to see an incompetent medical professional who couldn’t remember his age and provided you with an inaccurate, false assessment is abhorrent. Her professional reputation in the area is terrible. That’s why she doesn’t have any staff nor clients. The damage that she continues to cause will eventually be acknowledged. She won’t be able to hide forever behind the malpractice laws that protected her on Jan. 9th. Of course, in order to protect [C.] from her permanent harm, the matter with her isn’t done.”
• Father sent multiple additional messages prefaced by text stating “For the Record” which were followed with various arguments, links, or other statements that did not invite further discussion.
D. Circuit Court Findings and Modification of Custody
Following the conclusion of the merits hearing, the court made findings of fact based on the evidence presented by the parties. The court determined that a material change of circumstances did exist. With respect to the change in Mother’s work schedule and the impact on C., the court stated the following:
First, [Mother’s] work schedule has changed. When the current custody order was agreed to[,] [Mother] was working weekends. In order for the parties to share custody, [Father] received every weekend during the school year. [Mother] no longer works every weekend and is now able to have access with [C.] during the weekends. The ability to have access with [C.] on weekends allows for more time to be able to be spent with her as opposed to when he is at school during the week. Obviously, weekend access provides opportunities to engage in activities that just are not manageable during the week when he is in school.
The court continued with a description of the material change of circumstances regarding the parties’ ability to communicate and reach decisions together, stating the following:
[T]he parties by agreement[] share tie breaker [authority] with [Father] having it relative to medical, extracurricular, and religious matters and [Mother] having it for mental health and educational matters.... [Father] often provides his position and is unwilling to discuss other options. This does not allow the parties to reach joint decisions and often results in more contention between the parties. Further, there have been times, such as the summer Head Start program, where [Mother] has had to wait until the last day available to register [C.] as [Father] has not responded to [Mother’s] proposal. This inability to have a full discussion and listen to the others proposal and rationale is not in [C.’s] best interest and is a material change in circumstances that affects [C.]
Having determined that a material change existed, the court then considered the factors set forth in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977) and in Taylor v. Taylor, 306 Md. 290 (1986) to evaluate what arrangement of custody was in C.’s best interest. 8 Based on its consideration of the factors, the court found that it was in C.’s best interest for Mother to have sole legal custody. The court also found that it was in C.’s best interest to have a schedule that allowed both parents weekend access, and it was in C.’s best interest “to spend time with his maternal and paternal family outside of
just a few hours after school.” The court therefore modified the schedule to an alternating 2-2-3 access schedule, which allowed the parties weekday and weekend access to C. Under this schedule, the first week Mother had overnights with C. on Monday and Tuesday; Father had overnights with C. on Wednesday and Thursday; and Mother had overnights with C. on Friday, Saturday and Sunday. The following week the above access schedule would rotate to the other parent. All custody exchanges were to occur based on C.’s school schedule. The court also ordered holiday, school break, and summer access.
Father then noted this timely appeal.
DISCUSSION
1. The Circuit Court did not err in Finding that a Material Change in Circumstances Occurred.
A. Party Contentions
Father contends that the circuit court erred in finding that a material change in circumstances occurred.9 He contends that Mother’s change in work schedule is not a material change because, he asserts, Mother was still able to exercise visitation with C. under the original schedule. He asserts that a parental change in work schedule is akin to the natural progression of a child’s age and cannot be the basis of a material change in circumstance. Father further contends that the parties’ strained communications cannot qualify as a material change in circumstance for two reasons: first, there was no evidence of the parties’ communications prior to the original custody order; and second, there was no evidence that the communications had an impact on the welfare of C. Mother responds that the circuit court correctly concluded a material change in circumstances had occurred. She argues that the question of materiality necessarily encompasses consideration of the child’s best interests; therefore, the court appropriately considered the demands of parental employment in determining that the time each parent had to spend with C. during days off work was a material change that occurred following the entry of the original custody order. In addition, Mother argues that the parties presented evidence of difficulty in communicating, and that the difficulty arose following the implementation of the original custody order—in particular, the joint legal custody and the exercise of tie-breaking authority to make educational decisions for C. Mother argues that because the disagreements stem from the custody order, they could not have existed at the time the custody order was entered. Thus, Mother asserts that the circuit court appropriately found that the change was material.
B. Standard of Review
“We review a court’s child custody determinations utilizing three interrelated standards of review.” Kadish v. Kadish, 254 Md. App. 467, 502 (2022).
When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second], if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is
determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.
Id. (quoting In re Yve S., 373 Md. 551, 586 (2003)).
A court’s factual findings cannot be held to be clearly erroneous if there is any competent evidence that supports the trial court’s findings. St. Cyr v. St. Cyr, 228 Md. App. 163, 180 (2016). When conducting appellate review of factual findings, we give “due regard . . . to the opportunity of the lower court to judge the credibility of the witnesses[.]” Kadish, 254 Md. App. at 503 (internal quotation marks and citation omitted). An abuse of discretion occurs “where no reasonable person would take the view” adopted by the trial court, when the trial court acts “without reference to any guiding rules or principles,” or when the ruling under consideration is “clearly against the logic and effect of facts and inferences” before the trial court. In re Yve S., 373 Md. at 583 (internal quotation marks, alterations, and citation omitted).
C. Analysis
When evaluating a request to modify custody, trial courts must engage in a two-step process. Velasquez v. Fuentes, 262 Md. App. 215, 246 (2024). “‘First, the circuit court must assess whether there has been a “material” change in circumstance.’” Id. (quoting Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012), in turn quoting Wagner v. Wagner, 109 Md. App. 1, 28 (1996)). Second, if a circuit court finds that there has been a material change, “the court proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. Although evaluation of a petition to modify custody is a two-step process, those two steps “are often interrelated” because consideration of the materiality of a change necessarily implicates consideration of the child’s best interest. Gillespie, 206 Md. App. at 171; see also Caldwell v. Sutton, 256 Md. App. 230, 270 (2022) (“Evidence bearing upon materiality necessarily relates to the best interests of the children.”).
“A material change [in] circumstances is a change in circumstances that affects the welfare of the child.” Gillespie, 206 Md. App. at 171 “[T]he test of materiality is whether the change is in the best interest of the child.” McMahon v. Piazze, 162 Md. App. 588, 596 (2005). If a circuit court finds “that an existing provision concerning custody or visitation is no longer in the best interest of the child and that the requested change is in the child’s best interest, the materiality requirement will be satisfied.” Id. “In analyzing the best interests of the child, we are guided by the factors articulated” in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977) and in Taylor v. Taylor, 306 Md. 290 (1986). Kadish, 254 Md. App. at 504. 10
Determination of whether a material change in circumstances has occurred is an inherently fact-specific
inquiry that depends on the unique circumstances of each case. See Domingues v. Johnson, 323 Md. 486, 500 (1991). The Supreme Court of Maryland has declined to adhere to bright-line pronouncements—for example, a rule holding that relocation due to employment or remarriage could never constitute the basis for custody modification—in matters concerning child custody, holding that changes in custody depend “upon the circumstances of each case.” Id. at 500–01. The Court further stated that creation of absolute rules in relation to custody would be “inappropriate” as the decision making process in such cases “flows in large part from the uniqueness of each case, the extraordinarily broad spectrum of facts that may have to be considered . . . , and the inherent difficulty of formulating bright-line rules of universal applicability in this area of the law.” Id. at 501. To determine that a modification is required, a trial court need not find “that the changes have already caused identifiable harm to the children.” Id. at 499. All that is required for a determination that a change is material is that “changes have occurred which, when considered with all other relevant circumstances, require that a change in custody be made to accommodate the future best interest of the children.” Id.
Here, the circuit court concluded that there were two material changes affecting C.’s well-being: first, following the entry of the original custody order, Mother’s work schedule had changed from weekends to a regular non-weekend workweek, while C. attended preschool programs during the non-weekend portion of the week, resulting in a lack of opportunity to engage in meaningful activities; and second, the parties’ ability to communicate—particularly regarding educational decisions subject to Mother’s tie- breaking authority—had devolved, in large part due to Father’s unwillingness to engage in discussions. There is ample evidence in the record to support the circuit court’s finding that these changes had occurred following the issuance of the initial order and affected C.’s welfare (i.e., that the changes were therefore material).
There was evidence presented that at the time of the original order, Mother worked exclusively on weekends, which allowed her to spend most weekdays with C., who at the time was not in school programs. Following the initial order, Mother had a change in employment to a position that generally required work from Monday through Friday, without weekend work; the new schedule coincided with C.’s school schedule in limiting Mother’s time with C. Mother testified that due to the conflicting schedule, she did not have recreational time with C. during the school year. Mother testified that C. was negatively impacted by the lack of quality time with her. In addition, there was evidence— through the testimony of Mother’s other child—that C. did not have quality time to spend with him or Mother on the weekend. Further, there was evidence that Father intended not to allow Mother to have access to C. on weekends at any time. There was therefore ample evidence in the record to support the circuit court’s finding that the change in Mother’s schedule, as well as Mother and C.’s weekend availability, was a material change in circumstance.
In making his argument that the schedule change could not qualify as a material change, Father asserts that parental
change in employment is akin to the expected change of a child’s aging; thus, he asserts, a change in employment cannot serve as a material change in circumstance. Father’s comparison is inapt because it does not encompass the entirety of the circuit court’s findings regarding the material change. The court did not merely find Mother’s shift in employment and weekend availability to be a change in circumstance; the court found that Mother’s new work schedule, coupled with C.’s new weekend availability due to school and the limited time for quality parenting time during the week, constituted a material change in circumstance. We see no error with respect to this finding.
As to the change in the parties’ ability to effectively communicate, there was evidence demonstrating substantial discord in the parties’ discussions regarding C., particularly from Father. The discord frequently surrounded Mother’s use of her tie-breaking authority. Although there was not evidence of the parties’ communication style at the time of the original order, following the filing of the petitions to modify, there was sufficient evidence of hostile communications leading to the court’s order requiring Father and Mother to limit communication to the use of OFW with a tone moderator. Even with the use of OFW for messaging, the evidence before the court demonstrated continued discord and Father’s unwillingness to deviate from his point of view regarding reaching joint decisions. This was a marked devolution from the parties’ status at the time of the initial custody order. Cf. Gillespie, 206 Md. App. at 172–73 (affirming trial court’s determination that deterioration of one parent’s mental illness—a condition that existed at the time of the earlier custody order—qualified as a material change sufficient to justify custody modification). Because the trial court’s finding of material changes in circumstances was supported by evidence in the record, we perceive no error with respect to that finding.
2. The Circuit Court did not Abuse its Discretion in Allowing Testimony Regarding Father’s Previous Co-Parenting Relationship
A. Party Contentions
Father contends that the circuit court erred in allowing Holland’s testimony, which he describes as “irrelevant” and “highly prejudicial.” Father asserts that the testimony concerning his prior co-parenting relationship was irrelevant because it concerned observations that were “distant in time” and “of no consequence” to the facts of the present case. He asserts that the testimony regarding his character and parenting history was “highly prejudicial because of how similar the facts between the two situations are purported to be.” 12
Mother responds that Holland’s testimony regarding Father’s prior co-parenting relationship was relevant to the trial court’s consideration of best interest factors— particularly, the character and reputation of the parties. Mother asserts that Holland’s testimony was relevant to this factor because it made it more likely that Father had a history of “poor relationships with co-parents[.]” Mother asserts that the age of Holland’s observations went to their weight rather than to prejudice and thus not to admissibility. Because
Father did not identify any other specific prejudice resulting from Holland’s testimony, Mother asserts that the trial court did not abuse its discretion in admitting the testimony.
B. Standard of Review
Decisions regarding the admissibility of evidence are generally left to the sound discretion of the trial court. Blitzer v. Breski, 259 Md. App. 257, 279 (2023). In relation to relevance of evidence, appellate review of a trial court’s decision to admit evidence “involves a two-step analysis.” Akers v. State, 490 Md. 1, 24 (2025). The first step requires a determination of whether the evidence is relevant, “which is a conclusion of law that we review de novo.” Id. If the evidence admitted is relevant, the second step requires a determination of whether the probative value of the evidence is outweighed by the danger of unfair prejudice. Id. at 25. This second step is subject to an abuse of discretion standard. Id. An abuse of discretion occurs “where no reasonable person would take the view adopted by the circuit court.” Montague v. State, 471 Md. 657, 674 (2020) (internal quotation marks and citation omitted).
C. Analysis
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. All relevant evidence is generally admissible. See Md. Rule 5-402. However, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice[.]” Md. Rule 5-403. When weighing the probative value of evidence against the danger of unfair prejudice, “this Court is mindful that prejudicial evidence is not excluded under Rule 5- 403” merely because it hurts one party’s case. Montague, 471 Md. at 674. Rather, the probative value of evidence “is substantially outweighed by unfair prejudice when the evidence ‘tends to have some adverse effect . . . beyond tending to prove the fact or issue that justified its admission.’” Id. (quoting State v. Heath, 464 Md. 445, 464 (2019)) (further citation omitted).
In cases involving petitions to modify custody, should a circuit court find a material change in circumstances occurred, it must also proceed “to consider the best interests of the child as if the proceedings were one for original custody.” Kadish, 254 Md. App. at 503–04 (quoting Gillespie, 206 Md. App. at 170). To evaluate the best interests of the child, circuit courts are guided by the best interest factors articulated in Sanders and Taylor Id. at 504 (citing Sanders, 38 Md. App. at 420, and Taylor, 306 Md. at 304–11). These factors include consideration of the potential for “maintaining natural family relations” and the “capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare[.]”
Id. Consideration of the parents’ ability to communicate is particularly important in cases where joint custody is at issue. Santo v. Santo, 448 Md. 620, 628 (2016) (citing Taylor, 306 Md. at 304). In evaluating parental communication, “the best evidence” to guide trial courts is “past conduct . . . of the parties.” Id. (quoting Taylor, 306 Md. at 307).
Here, Holland’s testimony was highly probative of the above factors. Her testimony regarding her current relationship with Mother and visits with C. made the existence of a fact of consequence—i.e., that Mother would facilitate the familial relationship between Holland and C.—more likely than it would have been without her testimony. This fact was of consequence because it directly addressed one of the factors the trial court considered in determining C.’s best interest. Holland’s testimony regarding Father’s prior coparenting relationship was also relevant because it concerned his capacity to communicate in order to reach shared decisions affecting C.’s welfare. Because “the best evidence” towards this factor is a parent’s “past conduct[,]” 14 Holland’s testimony regarding Father’s prior coparenting relationship made the existence of a fact of consequence—i.e., that Father had lack of willingness to communicate and coparent—more likely than it would have been without her testimony.
Having determined that Holland’s testimony was relevant, we turn to whether the probative value of Holland’s testimony was substantially outweighed by the danger of unfair prejudice, and whether the circuit court therefore abused its discretion by admitting the testimony. At trial, the only prejudice Father identified was the length of time that had elapsed between Holland’s observations of his prior coparenting relationship and the present custody dispute. To this Court, Father repeats this concern and contends that Holland’s testimony was “highly prejudicial because of how similar the facts between the two situations are purported to be.” The concerns regarding similarity of situations in relation to coparenting communications is not the type of unfair prejudice that prohibits admission. See Montague, 471 Md. at 674 (“[T]his Court is mindful that prejudicial evidence is not excluded under Rule 5-403 only because it hurts one party’s case.”). The test to exclude evidence is when its probative value “is substantially outweighed by unfair prejudice when the evidence ‘tends to have some adverse effect . . . beyond tending to prove the fact or issue that justified its admission.’” Id. (quoting Heath, 464 Md. at 464) (emphasis added) (further citation omitted). Here, Holland’s testimony was probative of Father’s capacity for communicating in coparenting relationships. While that evidence may have been harmful to Father’s case, it did not carry with it an adverse effect beyond the probative value that justified its admission; nor did Father point to any. The court did not abuse its discretion in admitting Holland’s testimony.
JUDGMENT OF THE CIRCUIT COURT FOR CALVERT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 To protect the anonymity of the minor child, we refer to him by a randomly selected letter.
2 Rephrased from:
1. Whether The Trial Court Erred By Finding A Material Change of Circumstances When There Was No Finding Of Or Evidence Of Any Adverse Effects To The Minor Child.
2. Whether The Trial Court Erred By Allowing In Testimony Of Appellant’s Relationship With His Child From Another Relationship And Co-Parenting Relationship With A Former Partner That Occurred Over Fifteen Years Prior To The Case.
3 Father noted an interlocutory appeal of this order to this Court, which was dismissed as not allowed by law. See Md. Code (1974, 2020 Repl. Vol.), Courts and Judicial Proceedings Article § 12-304; see also Kadish v. Kadish, 254 Md. App. 467, 508–09 (2022) (holding that a finding that a party is not in contempt of court is not an appealable interlocutory order).
4 According to OFW, ToneMeter is a communication tool that identifies when a parent’s message “might sound confrontational” and will then suggest “a neutral alternative[.]” Our Family Wizard, ToneMeter, https://perma. cc/5ZKT-DTY5 (last visited Sept. 9, 2025).
5 In addition, the institution suggested by Father had an academic summer program that he wished for C. to be enrolled in. Mother offered to enroll C. in Father’s selected summer program if Father agreed to contribute to the cost. However, Father responded that he would not pay for the program.
6 Father’s text messages in response to Mother’s request were admitted over his objection, and expressed the following:
I don’t know why you wrote all this information. I also don’t understand why you are waking the boys very early in the mornings and begging other people to help you.
No wonder [C.] is always tired or in need of a nap every day. He shouldn’t be up at [5:00 a.m.] nor [6:00 a.m.] in the mornings.
You are doing all these unnecessary things; continuing to make bad decisions. I already told you weeks ago, that I will get [C.] from the daycare on the weekdays he is with me. That will happen regardless of what you and your attorney try to do.
When Mother attempted to further explain her position,Father responded as follows:
You do not have [C.] at [4:00 p.m.] either. Don’t bother me anymore with your crazy thoughts. I told you yesterday.
If you make this a problem also, then the new judge will settle it. I’m certain you will lose.
And this is why I will never give you a weekend with [C.]. You are an evil person. [C.] doesn’t like living with you. I suspect you are trying to manipulate him and cause him grief. You have caused many problems for him that are documented.
7 Father objected to Holland’s testimony concerning his prior coparenting relationship based on relevance, claiming that the testimony was from many years ago and did not relate to Mother or C. The court overruled the objection, ruling that the testimony regarding the prior coparenting relationship was relevant. The court noted that concerns regarding the time frame of the observations testified to would go to weight of the testimony.
8 The ten non-exclusive factors identified in Sanders serve as a guide for trial courts to evaluate the best interest of the children at issue. 38 Md. App. at 420. These factors were expanded upon in Taylor to identify thirteen factors, some of which overlap with the Sanders factors, that are particularly appropriate for consideration of joint custody. 306 Md. at 304–11. The Taylor factors include the following: (1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between the child and each parent; (5) preference of the child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11) financial status of the parents; (12) impact on state or federal assistance; and (13) benefit to parents. Kadish v. Kadish, 254 Md. App. 467, 504 (2022) (citing Taylor, 306 Md. at 304–11).
9 We note that this argument marks a departure from Father’s pleading in the circuit court, in which he alleged that there had been a material change of circumstances warranting a change in custody.
10 See n.8 supra
11 Father asserts that the change was not material because: 1) the change in schedule still allowed Mother weekend time with C.—i.e., Sunday evenings after 5:00 p.m., which notably is a school night; and 2) there was no evidence regarding how the scheduling change affected C. As to the first assertion, the trial court found that “weekend access provides opportunities to engage in activities that are just not manageable during the week when [C.] is in school[,]” which was supported by the testimony from Mother and her other son in that the original schedule did not allow an opportunity to engage in quality activities. We do not find Father’s second assertion regarding the perceived lack of evidence of the scheduling change’s impact on C. to be an accurate representation of the
trial record, as there was evidence regarding that issue presented by both Mother and her other son. To the extent Father contends that this evidence should have been discounted by the circuit court, we note that as an appellate court conducting review of a trial court’s factual findings, we give “due regard . . . to the opportunity of the lower court to judge the credibility of the witnesses[.]” Kadish, 254 Md. App. at 503.
12 Father further alleges that Holland’s testimony was of questionable veracity and “possibly false[.]” We note that witness credibility “lies solely within the purview of the factfinder.” Neal v. State, 191 Md. App. 297, 318 (2010). “In a non-jury case, matters involving the credibility of witnesses and conflicts in the evidence are firmly within the purview of the trial judge, sitting as the trier of fact.” Porter v. Schaffer, 126 Md. App. 237, 269 (1999). On appeal, this Court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous” and we “give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c).
13 Mother also asserts in the alternative that even if Holland’s testimony was unduly prejudicial, any error in its admission was harmless because the court did not substantially rely on Holland’s testimony in its analysis. Because we agree that the circuit court did not abuse its discretion in admitting Holland’s testimony, we do not reach Mother’s alternative argument.
14 See Santo, 448 Md. at 628 (quoting Taylor, 306 Md. at 307).
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Prince George’s County Circuit Court’s award of $44,773.45 in attorney’s fees to mother. Although father contends that the circuit court committed reversible error by disregarding the parties’ respective financial resources and needs, a court is required to consider those factors only when making a discretionary award under FL § 12-103(b). By contrast, when a proceeding is brought or maintained without substantial justification, as here, FL § 12-103(c) mandates the award of reasonable attorney’s fees absent good cause to the contrary, and the parties’ financial circumstances are immaterial.
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..
denied after a hearing.
Father noted a timely pro se appeal and presents two questions for our review, which we have rephrased slightly as follows:
1. Did the circuit court abuse its discretion in scheduling the continued merits hearing?
2. Did the circuit court err in awarding Mother attorney’s fees?
We answer both questions in the negative and will therefore affirm the judgments of the circuit court. 1
BACKGROUND
A. The Marriage & Divorce
Mother and Father were married on July 10, 2010. During their marriage, the parties had two children: J., born in 2011, and K., born in 2013 (collectively, “the children”). The parties separated on or around June 13, 2019, and entered into the MOU on October 28, 2020, in which they agreed to joint legal and shared physical custody of the children. The MOU also established a child access schedule and provided, in pertinent part:
In January 2021, the Circuit Court for Prince George’s County entered a judgment of absolute divorce between appellant, Jahvon Gordon (“Father”), and appellee, Temica Hunt (“Mother”). The divorce decree incorporated a memorandum of understanding (“MOU”) between the parties, which resolved custody of and access to their two minor children. In September 2023, Father filed a petition for contempt against Mother and a motion to modify visitation. Mother responded with a counterclaim seeking, inter alia, sole physical custody of the children, an award of child support, and attorney’s fees.
On July 24, 2024, the circuit court held a consolidated hearing on the parties’ pleadings. When the proceeding did not conclude that day, the court scheduled it to resume— over Father’s objection—on August 22. Father appeared for the first day of the hearing but failed to attend the second. In an order entered on September 18, the court (1) denied Father’s petition for contempt and motion to modify, (2) granted Mother sole legal custody as to decisions pertaining to the children’s education, and (3) awarded her attorney’s fees in the amount of $44,773.45. The order was silent, however, with respect to Mother’s requests for sole physical custody and child support. Father challenged the attorney’s fee award in a motion to alter or amend, which the court
Each of the parties shall participate as much as possible in making all decisions with respect to education, medical treatment, illness, operations (except in emergencies), health, welfare[,] and other matters of similar importance affecting the [c]hildren. Decisions with respect to the aforesaid matters shall not be made by either party in such manner as to exclude the other from participation therein The parties agree that in the event the parties disagree with respect to a significant decision affecting the respective [c]hild, [Mother] shall have tie-breaking authority[.]
The circuit court entered a judgment of absolute divorce on January 27, 2021. The court incorporated, but did not merge, the terms of the MOU into the judgment.
B. The Motions to Modify
On September 8, 2023, Father filed a petition for contempt, alleging that Mother had violated the divorce decree by failing to make a good-faith effort to engage in joint decisionmaking regarding the children, and by disregarding his communications concerning their education, medical care, and extracurricular activities. As relief, Father requested that the court revoke Mother’s tie-breaking authority. That same day, Father filed a motion to modify visitation, in which he further alleged that Mother had interfered with the court-
ordered access schedule and had misused her tie-breaking authority. In that motion, Father reiterated his request that the court remove Mother’s tie-breaking authority, asking that it instead grant the children “the right and authority to make decisions on their own with [his] guidance[.]” Finally, Father sought “access to the . . . children during [Mother’s] scheduled time as long as it is in ‘[their] best interest[.]’”
On January 8, 2024, Mother counterclaimed for an award of child support and modification of physical custody. In that filing, she alleged, among other things, that Father had (1) repeatedly “refused to pick up the children for his one week period of access”; (2) dropped them off in the lobby of her residence “without [her] knowledge or consent,” leaving them unattended; (3) violated the access schedule by taking them to New York “without Mother’s permission or consent”; and (4) “refused to send the children to school [for] the entire first week of [classes] during the 2022-2023 academic . . . year.” Based on these allegations, Mother sought (1) “primary physical custody of the minor children and reasonable access to Father”; (2) modification of child support “retroactive to the date of . . . filing”; and (3) an award of “reasonable attorney’s fees, suit money[,] and court costs incurred by her in connection with th[e] matter[.]”
C. Discovery
Contemporaneously with the filing of her counterclaims, Mother propounded to Father interrogatories and a request for production of documents. On February 16, 2024, she filed a motion to compel discovery and for sanctions, asserting that Father had failed to respond to her request for production of documents and that several of his interrogatory answers were deficient. Mother requested that the court compel Father to supplement his interrogatory answers, respond to her request for production, and produce “all responsive documents.” Based on Father’s alleged discovery violations, Mother also sought various sanctions and an award of reasonable attorney’s fees “caused by the failure.”
On February 28, 2024, Mother, through counsel, filed a supplement to her motion to compel discovery and for sanctions. In that supplement, she advised the court that Father had served her attorney with a response to the request for production of documents on February 22nd and had provided her with “19 pages of responsive documents[.]” Mother further asserted that her attorney had sent Father a letter the following day “setting forth all of the deficiencies in [both his] Response to Request for Production of Documents” and the responsive documents he had provided. She then proceeded to enumerate each such deficiency. Finally, Mother claimed that she had not yet received Father’s supplemental interrogatory answers or additional responses to her request for production of documents. Mother concluded by renewing her requests for sanctions and attorney’s fees.
In an order entered on March 28, 2024, the circuit court directed Father to “provide [Mother] with his complete discovery responses within ten (10) days[.]” When Father failed to timely comply with that order, Mother filed yet another motion for sanctions, wherein she also sought an award of “reasonable expenses, including attorney’s fees, caused by the failure.” By an order entered on May 10th, the
court deferred ruling on the matter, writing: “[S]anctions may be imposed by the trial judge as they deem appropriate for [Father’s] failure to respond to [Mother’s] Motion to Compel.”
D. The Merits Hearing
On July 24, 2024, the circuit court conducted a consolidated hearing on Father’s contempt petition, his motion for modification, and Mother’s counterclaims. Both parties appeared, with Mother represented by counsel and Father proceeding pro se. Without objection, the court departed from the customary order of proof and permitted Mother, as the counterclaimant, to present her case first. Mother testified at length on her own behalf. After counsel concluded her direct examination of Mother, Father commenced his crossexamination. 2
When it became apparent that the hearing could not be completed that day, the court set about scheduling a continuance. It proposed several dates on which to complete the hearing. Each party identified dates on which he or she could appear. Those dates, however, did not overlap. Indeed, each party expressly stated that he or she was unavailable on the dates selected by the other. Over Father’s objection, the court ultimately set the continued hearing for August 22, 2024—a date that purportedly conflicted with Father’s work schedule.
On the morning of that hearing, Father submitted a letter advising the circuit court that he would be unable to appear due to “work obligations.” The court declined to postpone the matter, however, and the hearing proceeded in Father’s absence. Following a brief redirect examination of Mother, counsel called Necothia Bowens-Robinson, Mother’s own mother as a witness. After examining Ms. Bowens-Robinson, Mother rested her case, and the merits hearing concluded.
On September 18, 2024, the circuit court entered an order denying Father’s contempt petition and his motion for modification. By that same order, the court granted Mother sole legal custody as to education, awarded her $44,773.45 in attorney’s fees, and made a minor modification to the access schedule. It tacitly denied her requests for sole physical custody and child support.
E. The Motion to Alter or Amend
On September 27, 2024, Father filed a timely motion to alter or amend the attorney’s fee award.3 In that motion, he argued that the award was unreasonable and “could not have been based on the [relevant statutory] factors[.]” On January 10, 2025, the circuit court held a hearing on Father’s motion and denied it from the bench. The court memorialized that oral ruling in a written order entered on January 24.4 This appeal timely followed.
We shall include additional facts as necessary in our discussion of the issues presented.
DISCUSSION I.
Father contends that the circuit court abused its discretion by scheduling the continued merits hearing for August 22, 2024—a date on which he was purportedly unavailable. As note above, in response to the court’s proposed dates for continuing the hearing, Mother and Father identified
mutually exclusive dates of availability. The court ultimately selected a date that accommodated her schedule but not his. In so doing, Father claims that the court mistakenly treated counsel’s representation regarding Mother’s unavailability as relating to counsel’s own unavailability. He posits that if the court had inquired into the reasons for Mother’s unavailability—rather than those of her attorney— it would have found them wanting.
A. Standard of Review
“Except as limited by statute or rule, a trial court has inherent authority to control its own docket.” Goins v. State, 293 Md. 97, 111 (1982). Accord Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241 (2011); see also Zdravkovich v. Siegert, 151 Md. App. 295, 305 n.11 (“[T]he court has the authority and obligation to move cases forward and to manage the court’s docket.”), cert. denied, 377 Md. 114 (2003); Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 728 (2002) (recognizing a trial court’s “inherent authority to manage its affairs and achieve an orderly and expeditious disposition of cases”). That broad authority encompasses both the routine task of scheduling proceedings—such as setting the date for a reconvened hearing—and the determination of whether to grant a continuance.
Maryland Rule 2-508 governs continuances in civil cases and provides, in pertinent part: “On motion of any party or on its own initiative, the court may continue or postpone a trial or other proceeding as justice may require.” Md. Rule 2-508(a). As is evident from the Rule’s use of the permissive verb “may,” the decision to grant or deny a continuance “‘lies within the sound discretion of the trial judge’” and will not be disturbed on appeal absent a clear abuse thereof. Neustadter, 418 Md. at 241 (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006)). See also Anne Arundel Cnty. Ethics Comm’n v. Dvorak, 189 Md. App. 46, 83 (2009) (“[T]he word ‘may,’ when used in a statute, usually implies some degree of discretion.” (quotation marks and citation omitted)); Shpak v. Schertle, 97 Md. App. 207, 225 (“Under Rule 2-508, the trial court has wide latitude in determining whether to grant a continuance.”), cert. denied, 333 Md. 201 (1993). An abuse of discretion occurs “where no reasonable person would take the view adopted by the trial court or where the court acts without reference to any guiding rules or principles[.]” Prince v. State, 216 Md. App. 178, 203-04 (cleaned up), cert. denied, 438 Md. 741 (2014).
B. Pertinent Procedural History
As the first day of the merits hearing drew to a close, the circuit court observed that a second day of proceedings would be necessary. While the court attempted to identify dates in August on which it could reconvene, Father noted that the academic year would begin around that timeframe, which, he cautioned, could present a scheduling conflict given that his employment was “school-based.” The court responded: “[Y] ou’re going to have to take off from work to come in because . . . we don’t have a date before school starts, so it’s going to be during the school year.” It then proposed August 19-22 and 26- 29 as potential dates to resume the hearing. With the court’s permission, Mother’s counsel called her
office to ascertain her availability. When the call concluded, counsel advised the court that both she and Mother were available on August 19-22 and 28-29. Turning to Father, the court asked whether any of those dates were acceptable to him. He answered that August “28th or 29th . . . sound[ed] really good.”
After apparently conferring with her client, Mother’s counsel advised the court that Mother would not, in fact, be available on either August 28th or 29th but could appear in court on any day during the preceding week. When the court then inquired as to his availability during the week of the August 19th, Father responded: “I cannot do that timeframe” and attributed his unavailability to his employment. The following colloquy ensued:
[MOTHER’S COUNSEL]: Right. Well, I think the [c]ourt indicated that you might have to take off work.
[FATHER]: But [the court] also gave you the leniency to call your whole job.
THE COURT: That’s because she’s an attorney. She has other cases and work is -- everybody has work.
[FATHER]: Yes.
THE COURT: She has to take off work, but her work is different than your work because she’s representing other people so that’s why we consider the attorney -- when we have two attorneys, we consider both of their schedules.
[FATHER]: Understood.
THE COURT: When we have one attorney and one person who’s self- represented, we consider the attorney’s schedule because the attorney’s work is working for other people.
[FATHER]: I understand that, but in this case, the client said that she’s not available during the time frame that I’m available, the 28th.
THE COURT: Right, but I’m going off of what her attorney is saying because she’s representing her.
[FATHER]: I appreciate that. Thank you.
THE COURT: If you had an attorney, I’d do the same. [FATHER]: No, no, I appreciate it.
THE COURT: Because right now . . . you’re representing yourself.
[FATHER]: But I know that my attorney is not going to be available during that time frame.
* * *
THE COURT: It’s continued and, first of all, you’re unrepresented. If you do get an attorney, . . . you can tell your attorney this . . . will not get a postponement . . . to get up to speed and I don’t know if an attorney will take this because they haven’t had the opportunity to cross-examine her and you are getting your one and a half hours of that and then you’ve got to testify and then there’s cross. So[,] there’s going to be no redo.
[FATHER]: Yeah, I appreciate that.
THE COURT: So[,] we’re going to start with the 28th -- or the 21st or 22nd, what did you say?
[MOTHER’S COUNSEL]: We’re available the 19th, 20th, 21st and 22nd.
* * *
THE COURT: . . . [W]e’re going on the 22nd, the 22nd of August.
* * *
[MOTHER’S COUNSEL]: That works for us, Your Honor.
THE COURT: August 22nd, that gives you enough time to get off or take leave or whatever you have to do. I’m not saying that you can’t get counsel, but I’m saying you have to let your attorney know this case will not be postponed because they’re entering their appearance.
[FATHER]: I appreciate that and I’m not trying to make anything above anybody. But the beginning of the school year for what I actually do for work is very important. . . . I would not suggest it -- in the beginning, yes, ma’am. If I wasn’t, like, a stable position for what I have to do for that week. If I’m not there, it just changes a lot of things for what I do.
THE COURT: I understand. I understand it’s an inconvenience. [FATHER]: Okay. I understand.
THE COURT: . . . I go off of the attorney’s calendar. I try to work with both of your calendars, but if we can get an earlier date than October --
THE COURT: I don’t want this lingering on because you all are in limbo. So[,] we’ll set it for August 22nd. Is that good?
[MOTHER’S COUNSEL]: Yes. [FATHER]: No.
[MOTHER’S COUNSEL]: Yes, Your Honor.
THE COURT: Okay. See everybody August 22nd at 9:00 a.m. Shortly after this exchange, the court adjourned for the day. At the outset of the continued hearing on August 22, 2024, the circuit court addressed an email and accompanying letter that Father had sent it and opposing counsel hours earlier:
THE COURT: . . . [T]he court’s chambers received an email from [Father] . . . today on the 22nd at 2:02 a.m. saying that he is not going to be in court today and he attached a letter and the letter says -- well, I’ll mark it as an exhibit, I guess, for the postponement. He said: He’s writing to inform the [c]ourt that he regrettably -- I will be unable to schedule the hearing scheduled for August 22[,] 2024[,] due to unavoidable work obligations. As the primary provider for my children, missing work would result in the loss of my job which would severely impact my abilities to support them. I sincerely apologize for any inconvenience this may cause the [c]ourt.
He then . . . stated that he proposed a settlement to [Mother] through counsel and he put down what his settlement -- what he’d like to settle and then he says given the circumstances and my inability to be present in court, I respectfully request that the [c]ourt take these points into consideration. I trust the [c]ourt, along with the opposing party, will act in good faith to reach a resolution based upon the terms I proposed. My goal remains to ensure that the best interests of our children . . . and I believe this settlement achieves that and he can be reached at school.
In opposing Father’s motion to postpone the hearing, Mother’s counsel reminded the court of its prior refusal to delay the proceeding based upon a conflict with his work schedule. Consistent with its earlier scheduling
determination, the court denied Father’s eleventh-hour request for a continuance, finding no good cause to grant one. With respect to Father’s proposed settlement, it added: “[T]he [c]ourt is not involved in that settlement agreement. I don’t think he really understands that[.]” Mother then resumed her case-in-chief.
C. Analysis
Father contends that the court erroneously conflated Mother’s schedule with that of her attorney and, in so doing, inadvertently accorded Mother’s availability undue weight when setting the date for the continued hearing. The record does not support that contention. After calling her office, counsel advised the court that both she and Mother would be available on August 19-22 and 28-29. Upon conferring with her client, however, counsel revised her initial representation, stating that Mother would, in fact, be unavailable on August 28 and 29. The court’s subsequent remarks did not pertain to this unavailability, but were made in response to Father’s objection that it had given counsel’s calendar greater weight than his own by permitting her to consult her office regarding potential scheduling conflicts. The court explained that it had allowed counsel to do so because she, as an attorney, owed professional obligations to other clients. When Father later emphasized that it was Mother—not counsel—who was unavailable on August 28-29, the court replied that it was relying on counsel’s representation regarding Mother’s availability. Accordingly, we are satisfied that the decision to schedule the continued hearing for August 22 reflected the court’s discretionary balancing of the parties’ respective calendars, rather than a misunderstanding of whose availability was at issue.
Father also appears to argue that the court abused its discretion by relying on counsel’s statement that Mother could not attend a hearing on August 28 or 29 without first ascertaining the basis for her asserted unavailability—as it had when considering his own. We are not persuaded. “As officers of the court, lawyers occupy a position of trust[,] and our legal system relies in significant measure on that trust.” Com. Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 643, cert. denied, 348 Md. 205 (1997). A trial court may, therefore, generally rely upon an attorney’s representations when making procedural determinations. See id. (endorsing the trial court’s statement, “I rely on counsel and if counsel makes a representation, . . . counsel’s word is counsel’s bond”). Although it may have been preferable for the court to elicit an explanation for Mother’s unavailability on August 28-29, it did not abuse its discretion by crediting counsel’s assertion without further inquiry. This is particularly so given the importance of ensuring the expeditious resolution of cases—especially those involving child custody.5
Finally, Father directs us to the letter he submitted to the circuit court on the morning of the continued hearing, advising it that he would be unable to attend due to “unavoidable work obligations” and claiming that missing work would result in his termination. Notably, although the court treated it as a motion to postpone the hearing, the letter did not request any such relief. Instead, Father asked that, in his absence, the court consider a proposed settlement agreement in resolving
the case. Thus, Father’s letter did not constitute a motion to postpone, and the court could not have erred by declining to grant relief he did not request. See Miller v. Mathias, 428 Md. 419, 442 n.15 (2012) (“‘[T]he nature of a motion is determined by the relief it seeks and not by its label or caption.’” (quoting Hill v. Hill, 118 Md. App. 36, 44 (1997), cert. denied, 349 Md. 103 (1998))).
Even if we were to construe Father’s letter as a motion to continue or postpone the proceedings, which we do not, the circuit court would not have abused its discretion by denying it. The Supreme Court of Maryland “has consistently affirmed denials of motions to continue . . . in the absence of unforeseen circumstances to cause surprise that could not have been reasonably mitigated, where untimely requests were made, [and] where procedural rules were ignored[.]” Neustadter, 418 Md. at 242-43. Although Father was aware of the complication posed by his work schedule approximately one month before the continued hearing, his letter to the court did not reflect that he made reasonable efforts to resolve the apparent conflict or to mitigate the consequences (e.g., by obtaining counsel to appear on his behalf). Moreover, Father submitted the letter fewer than eight hours before the continued hearing was scheduled to begin. See Dart Drug Corp. v. Hechinger Co., Inc., 272 Md. 15, 28 (1974) (“It would be hard to find an abuse of discretion when an eleventh hour request for a continuance is denied in a case which has been pending for 26 months.”). Finally, the court could have readily interpreted Father’s prior discovery deficiencies as demonstrating a “pattern of unconcern,” which weighed against granting a postponement. In re McNeil, 21 Md. App. 484, 496, 498 (1974). Thus, even if Father’s letter constituted a motion to postpone the proceeding, we are not persuaded that its denial would have amounted to an abuse of discretion.
II.
Father also contends that the circuit court abused its discretion in awarding Mother
$44,773.45 in attorney’s fees by failing to assess the financial status and needs of each party. He argues that the court’s disregard of his financial status is evident from its remark at the hearing on his motion to alter or amend that “the [c]ourt is not required to consider [Father’s] financial position[.]” Father further claims that the court could not have considered the parties’ respective needs because “there [was] no evidence put forth of either party’s needs anywhere in the record.” Finally, Father asserts that “he was substantially justified in bringing and maintaining the action[.]”
A.
Applicable Law
Maryland Code (1984, 2019 Repl. Vol.), § 12-103 of the Family Law Article (“FL”) governs awards of attorney’s fees in child support and custody cases, and provides, in pertinent part:
(a) In general. — The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:
(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a
child of the parties; or
(2) files any form of proceeding: * * *
(iii) to enforce a decree of custody or visitation.
(b) Required considerations. — Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and
(3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
(c) Absence of substantial justification. — Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees.
“FL § 12-103(b) . . . gives courts discretion in awarding . . . counsel fees.” George v. Bimbra, 265 Md. App. 505, 520 (2025). Before exercising that discretion, however, the court must consider each of the three statutory factors, lest it commit legal error. See McMorrow v. King, 264 Md. App. 708, 737 (2025) (“If the court grants an award of attorney’s fees without considering all three criteria, it commits legal error.”); Malin v. Mininberg, 153 Md. App. 358, 435 (2003) (“Failure of the court to consider the statutory criteria constitutes legal error.”). Thus, under FL § 12-103(b), “substantial justification is but one . . . in the triad” of statutory factors courts are required to consider before making such a discretionary award. Davis v. Petito, 425 Md. 191, 201 (2012). “[F]inancial status and needs of each of the parties must [also] be balanced in order to determine [one party’s] ability to pay the award to the other[.]” 6 Id. at 205.
While FL § 12-103(b) vests courts with broad discretion in deciding whether to award attorney’s fees in child custody proceedings, FL § 12-103(c), “makes [such an] award . . . mandatory if the court finds no substantial justification for the prosecution or defense of the proceeding and absent a finding by the court of good cause to the contrary.”7
George, 265 Md. App. at 520 (emphasis retained; quotation marks and citation omitted). See also Davis, 425 Md. at 206 (“If the [c]ircuit [c]ourt determines that [a party] lacked substantial justification for bringing [a] child custody modification claim and absent a finding of good cause to the contrary, then under [FL §] 12-103(c), the reasonableness of [the] attorneys’ fees would then be the only consideration.”). Thus, while courts must consider the financial resources and needs of the parties when making an attorney’s fee award pursuant to FL § 12-103(b), those factors “are not part of the calculus for an award under FL § 12-103(c).” Guillaume v. Guillaume, 243 Md. App. 6, 27 (2019).
In summation, in determining whether FL § 12-103(b) or FL § 12-103(c) applies to a request for attorney’s fees in a child custody case, a court must first assess whether the party from whom such fees are sought was substantially justified in prosecuting or defending the proceeding. “[S]ubstantial justification, under both subsections (b) and (c) of Section 12-103, relates solely to the merits of the case against which the judge must assess whether each party’s position was
reasonable.” Davis, 425 Md. at 204. See also Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 268 (1991) (“[T] o constitute substantial justification, the part[y’s] position should be ‘fairly debatable’ and ‘within the realm of legitimate advocacy.’” (citation omitted)). If a court finds substantial justification, it “must proceed to review the reasonableness of the attorneys’ fees, and the financial status and needs of each party” pursuant to FL § 12-103(b). Davis, 425 Md. at 204. Absent substantial justification, however, a court is required to award reasonable fees under FL § 12-103(c) unless it finds good cause to the contrary.
B. Pertinent Procedural History
In her opening statement at the merits hearing, Mother’s counsel advised the court that her client was seeking attorney’s fees incurred in successfully defending against multiple petitions filed by Father. During her case-in-chief, Mother testified that she earned roughly $107,000 in 2023 but had since received a raise. As evidence of her current income, she introduced an earnings statement for the pay period spanning June 2, 2024, to June 15, 2024. That statement reflected a gross biweekly income of $4,521.60. Consistent with that statement, Mother confirmed that she earned slightly more than $9,000 per month.
Although Father neither testified on the first day of the merits hearing nor appeared on the second, Mother introduced his earnings statement for approximately the same two-week period, which showed a gross biweekly income of $2,291.67.
During closing argument on August 22, 2024, Mother’s counsel reiterated her request for an award of attorney’s fees, stating:
[Father] had no substantial justification in bringing . . . his petition for contempt or his petition to modify custody. Pursuant to [FL §] 12-103, upon a finding by the court that there is an absence of substantial justification of a party for prosecuting or defending the proceeding and absent a finding by the court of good cause to the contrary, the court shall award . . . the other party costs and counsel fees.
[Mother] did not violate . . . any of the orders. And . . . it’s clearly not in the best interest of the children to be awarded additional access to [Father]. Further, the evidence shows that [Mother] has incurred significant legal fees for having to defend against [Father’s] numerous and frivolous filings since September 2021.
In addition to seeking attorney’s fees incurred in defending against Father’s September 8, 2023, filings, Mother sought to recover those expended in responding to earlier motions and petitions he had filed:
Since the Judgment of Absolute Divorce was entered, [Father] filed two other petitions for contempt and modifications of custody against [Mother], other than the most recent petition. Both times[,] the petitions were dismissed. [Father] also filed a petition for protection against [Mother] in September 2021, [which]
she had to defend against[.]
Counsel then requested that the court award Mother attorney’s fees in the aggregate amount of $40,000, to reimburse her for fees incurred in defending against Father’s filings from September 2, 2021, through July 22, 2024. Although that figure included preparation for the July 24 hearing, counsel added that it “did not include any prep for today and today’s appearance.”
In support of the requested award, Mother’s counsel referred the court to an affidavit of attorney’s fees, which had been admitted into evidence during Mother’s direct examination. The affidavit recited, in relevant part: “From September 2, 2021[,] through July 22, 2024, [Mother] has incurred attorney’s fees and costs in the amount of $40,916.75.”8 Although the court agreed to award Mother attorney’s fees arising from the petition for contempt and the motions to modify then before it, it declined to do so with respect to Father’s previously dismissed filings:
THE COURT: I think I can use [the affidavit] as evidence, but I don’t think I can use the fees [I]f you could give the [c]ourt whatever the fee was for this action here, in preparation for [it], I think those are definitely compensable.
The [c]ourt doesn’t find any basis at all to say that [Mother] is in contempt or that the [c]ourt should grant his modification of custody.
And so[,] the [c]ourt would award you the attorney’s fees for this action. The other two[,] I don’t think I can.
After the court announced its rulings from the bench, the following colloquy occurred: [MOTHER’S COUNSEL]: Your Honor, how did you want me to get the amount of attorney’s fees to you?
THE COURT: You can do it by -- I wanted to know if you can draft the order?
[MOTHER’S COUNSEL]: I’m happy to draft the order.
THE COURT: . . . [A]nd then you can provide the attorney’s fees affidavit at that point. [H]ow much is he making a year?
[MOTHER’S COUNSEL]: It’s 55,000.
THE COURT: Yeah, 55,000 per year. So[,] he has the ability to pay.
Per the circuit court’s request, Mother’s counsel submitted an amended attorney’s fees affidavit and a proposed order on September 4, 2024. In the affidavit, counsel attested that “[f] rom September 8, 2023[,] through August 29, 2024, [Mother] has incurred attorney’s fees and costs in the amount of $44,773.45.” 9 The proposed order included a corresponding attorney’s fee award to Mother. The court subsequently adopted that proposed order and awarded Mother the full amount she sought.
In his September 27, 2024, motion to alter or amend, Father contended that the attorney’s fee award was “unreasonable and could not have been based on the factors set forth in [FL] § 12-103.” Specifically, he argued that his “financial status [was] significantly less than that of [Mother],” and that his financial needs were “significantly greater[,]” as evidenced by his inability to afford counsel and his resulting pro se status.
Finally, Father claimed, without elaboration, that he had been “substantially justified in bringing the proceeding.”
Both parties appeared with counsel at the January 10, 2025, hearing on Father’s motion. There, Father’s attorney argued that the attorney’s fee award was unreasonable in light of the disparity between the parties’ incomes and Father’s existing financial obligations. He also asserted that the contempt proceeding had been substantially justified, alleging that Mother had violated the MOU by failing to communicate adequately with Father regarding the children’s school enrollment. The court responded that it “didn’t really find [Father’s] basis for contempt meritorious” but nevertheless convened the hearing to permit Father to testify about his income and ability to pay, remarking: “[W]hen you’re determining attorney’s fees, you do have to consider that.” Mother’s counsel then interjected that, under FL § 12-103(c), the court was not required to consider the parties’ financial resources if it determined that Father “lack[ed] . . . substantial justification for bringing the proceedings[.]” Father’s counsel responded that his client “was justified in bringing the action” and that the scheduling conflict had prevented him from presenting “any evidence with respect to his ability to pay.”
In opposing Father’s motion, Mother’s counsel argued that FL § 12-103(c) “unambiguously makes any party who prosecutes or defends a proceeding without substantial justification responsible for paying the costs and counsel fees of another party.” Construing the court’s denial of Father’s contempt petition and motion to modify as reflecting a determination that they lacked substantial justification, she concluded that the award was properly made under that subsection. As to the reasonableness of the fees awarded, counsel reminded the court that it had directed her to amend her affidavit to reflect only the fees incurred between September 2023 and the date of the merits hearing. She therefore concluded that the court had properly exercised its discretion in determining the reasonableness of the fees awarded.
In denying Father’s motion, the court reasoned, in relevant part: “[G]iven the statute and . . . the fact that the [c]ourt found that the contempt proceeding and the motion to modify [were] not meritorious, the [c]ourt is not required to consider [Father’s] financial position. And for that reason, the [c]ourt is going to deny [Father’s] motion to amend.”
C. Analysis
Father contends that the circuit court committed reversible error by disregarding the parties’ respective financial resources and needs. That contention is unavailing. As discussed above, a court is required to consider those factors only when making a discretionary award under FL § 12-103(b). By contrast, when a proceeding is brought or maintained without substantial justification, FL § 12-103(c) mandates the award of reasonable attorney’s fees absent good cause to the contrary. Under that subsection, the parties’ financial circumstances are immaterial. On this record, we
are satisfied that the court made its award pursuant to FL § 12-103(c).
At the conclusion of the merits hearing, the circuit court expressly found that Father’s contempt petition and motion to modify were utterly baseless, stating: “The [c]ourt doesn’t find any basis at all to say that [Mother] is in contempt or that . . . the [c]ourt should grant his modification of custody.” (Emphasis added.) At the subsequent hearing on Father’s motion to alter or amend, the court acknowledged that it had not specified which subsection of FL § 12-103 it had relied upon in awarding attorney’s fees. The court then clarified its earlier ruling, stating: “I do recall . . . making the finding that there was no substantial justification, based upon the evidence that I saw, that [Mother] . . . was in contempt or that there was a substantial justification for modification.” (Emphasis added.) Any remaining ambiguity regarding the basis for the award was dispelled when the court denied Father’s motion from the bench, explaining: “[G]iven the statute and . . . the fact that the [c]ourt found that the contempt proceeding and the motion to modify [were] not meritorious, the [c]ourt is not required to consider [Father’s] financial position. And for that reason, the [c]ourt is going to deny your motion to amend.”
Because the circuit court determined that Father lacked substantial justification for prosecuting the proceeding and did not find good cause to the contrary, we conclude that the fee award in this case was made pursuant to FL § 12103(c).10 The court was not therefore required to balance the “financial status and needs of each of the parties.” Davis, 425 Md. at 205. Rather, the reasonableness of the attorney’s fees was “the only [remaining] consideration.” Id. at 206.
Father does not contest the reasonableness of the attorney’s fees. He contends, however, that he was substantially justified in bringing and maintaining the proceedings but was unable to present evidence demonstrating that justification because the court scheduled the continued merits hearing for a date on which he could not appear. Father similarly asserts that he “would have been able to demonstrate good cause to the contrary had the [c]ourt not abused its discretion when it scheduled the continued hearing[.]”
These arguments do not directly challenge either the court’s finding of a lack of substantial justification or the absence of a finding of good cause as such. Rather, Father essentially reiterates his contention that the circuit court abused its discretion by scheduling the continued merits hearing, over his objection, for August 22, 2024. In other words, his challenge is not to the substance of the court’s determinations, but to its antecedent scheduling decision. We have already addressed that contention and found it unavailing. Thus, Father’s argument fails for the reasons articulated in Section I of this opinion.
For the foregoing reasons, we affirm the judgments of the circuit court.
JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Mother did not file a brief or otherwise participate in this appeal.
2 In view of the issues on appeal, we need not recount Mother’s testimony.
3 Father’s motion to alter or amend tolled the time for noting an appeal until thirty days after the circuit court ruled on the motion. See White v. Prince George’s Cnty., 163 Md. App. 129, 139 (“When, as here, a motion to alter or amend is filed within ten days after entry of judgment, the filing of the motion stays the time for filing an appeal until thirty days after the court rules on the revisory motion.”), cert. denied, 389 Md. 401 (2005).
4 During the pendency of this appeal, the circuit court reduced the attorney’s fee award to judgment in an order entered on July 11, 2025.
5 As noted above, Mother’s available dates preceded Father’s by approximately one week.
6 The court need not “‘specifically recite the statutory factors in its award of attorney[’s] fees’ provided the evidence in the record indicates that the court engaged in the requisite analysis.” Sayed A. v. Susan A., 265 Md. App. 40, 90 (2025) (quoting Meyr v. Meyr, 195 Md. App. 524, 553 (2010)).
7 “[G]ood cause under FL § 12-103(c) means a substantial reason to not award a party all of their reasonable attorneys’ fees[.]” George, 265 Md. App. at 523. “‘[T]his definition is a flexible one, and its application will vary with the facts and circumstances of the individual case.’” Id. (quoting Meek v. Linton, 245 Md. App. 689, 723 (2020)). “Good cause” does not include, however, the “parties’ relative financial status and relative fees and expenses incurred[.]” Id. at 526.
8 On direct examination, Mother affirmed that she believed that “the fees provided by [counsel] are fair and reasonable[.]”
9 The circuit court ultimately awarded attorney’s fees in excess of the $40,000 requested at the August 22, 2024, hearing. As Mother’s counsel advised the court, however, the $40,000 figure did not include any preparation for or the appearance at the August 22 hearing. Invoices accompanying the fee affidavit corroborated counsel’s assertion that Mother incurred an aggregate $44,773.45 in attorney’s fees between September 8, 2023, and August 29, 2024. Per the court’s ruling at the hearing, moreover, that figure excluded fees arising from Father’s previously dismissed filings.
10 In his brief, Father relies on Lemley v. Lemley, 109 Md. App. 620, cert. denied, 343 Md. 679 (1996), in support of the proposition that it was inequitable for the court to require him to pay attorney’s fees for Mother when he, as a pro se litigant, lacked the means to retain counsel for himself. Father’s reliance on Lemley is understandable, but ultimately misplaced.
The appellant in Lemley challenged a divorce decree that, among other things, ordered him to pay the appellee “$10,000 as contribution for her attorney’s fees.” Id. at 626. We vacated the attorney’s fee award, holding that the court’s decision was unreasonable and clearly erroneous. In reaching that conclusion, we observed that “Mrs. Lemley earned approximately twice as much income as Mr. Lemley[,]” indicating that she was “better able to pay her attorney’s fees than Mr. Lemley.” Id. at 633. We further reasoned that, given Mr. Lemley’s pro se status throughout much of the litigation, it was “unreasonable to require [him] to pay for the benefit of professional counsel for the opposing party, while being unable to afford that benefit for himself.” Id. at 634.
Despite their superficial similarities, Lemley and the instant case diverge in one critical respect. The award in Lemley was entered under FL § 12-103(b), which requires the court to consider the parties’ financial resources. In this case, by contrast, the award was made pursuant to FL § 12-103(c), which turns on whether the proceeding was brought or maintained with substantial justification. Thus, whereas the court in Lemley erred by failing to adequately weigh the parties’ financial circumstances, such considerations were immaterial here.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court reversed and remanded to the Washington County Circuit Court with instructions to make the requisite Special Immigrant Juvenile Status findings of parental abandonment and neglect, in furtherance of the children’s best interests. The circuit court erred in refusing to find abandonment and that father’s reunification with them is viable. At a minimum, moreover, both daughters almost surely have experienced mental injury or a substantial risk of mental injury because of his disappearance from their lives, which is sufficient to satisfy the statutory definition of neglect.
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..
BACKGROUND
Mother, Father, and the two minor children at issue, R. and A., are citizens of Nicaragua.2 A. was born in 2006, and R. was born in 2013. In 2022, the family entered the United States and settled in Maryland, seeking asylum. In February 2024, Father moved to Florida and has had no contact with Mother or the children since then, nor has he provided any financial support to them.
On September 29, 2024, Mother filed a complaint seeking sole legal and physical custody of R. and A. as well as “the necessary factual findings to enable Minors [R. and A.] to petition U.S. Citizenship & Immigration Services (USCIS) for Special Immigrant Juvenile Status (SIJS) pursuant to Section 101(a)(27)(J) of the Immigration & Nationality Act, 8 U.S.C. § 1101(a)(27)(J), 8 C.F.R. § 204.11.”
Father was served with the complaint and filed an answer consenting to the relief demanded, but he did not appear at the ensuing hearing, on January 16, 2025, nor was he represented by counsel. Mother, A., and R. testified at the hearing.
Adriana Mayela Arauz Salgado (“Mother”), appellant, and Sofonias Poveda Aguero (“Father”), appellee, citizens of Nicaragua, have two minor daughters, R. and A., who also are citizens of Nicaragua.1 In September 2022, the family entered the United States and settled in Hagerstown, Maryland. In September 2024, Mother filed a complaint for custody accompanied by a motion for Special Immigrant Juvenile Status (“SIJ” or “SIJS”) in the Circuit Court for Washington County, alleging that Father had abandoned and neglected his daughters, thereby rendering reunification not viable and requiring SIJS findings in the best interests of the daughters.
Following a hearing, the circuit court granted Mother sole legal and primary physical custody of the children, with Father’s visitation rights at Mother’s discretion; entered a child support order against Father; and made some, but not all, the requested SIJS findings. Specifically, the court refused to find that reunification with Father was not viable because of abuse, neglect, or abandonment. The court thereafter denied Mother’s motion to alter or amend judgment (filed within 10 days of the original ruling).
Mother now appeals and asks that we reverse and remand “with instructions to make the requisite SIJS findings of parental abandonment and neglect, in furtherance of the children’s best interests.” We shall do so.
Mother testified about her employment history; her daughters’ names, parentage, and the dates and places of their birth; and the political strife in Nicaragua that led her to flee to the United States out of fear for the safety of her and her family. Mother further testified that she and Father had separated in February 2024 because “he just wasn’t helping [her] with [her] daughters,” and she “felt like [she] could handle things better with [her] daughters alone”; that since then, Father has not paid any child support, nor has he participated in any “major decisions about their education or their healthcare”; that he has not visited either R. or A. since February 2024; and that, although Mother believed that, at the time of the hearing, Father still was living in Miami, she could not be certain because she had no contact with him. When asked whether, when she last saw him, Father was “physically and mentally able to work and pay child support if he wanted to,” Mother replied, “The thing is that he’s older now and he has a lot of illnesses and since I work, I really solved all of my issues.” Finally, Mother stated that, if her daughters were to return to Nicaragua, there was no one there who could care for them, and she averred that she was able and willing to care for them here in Maryland.
A. corroborated Mother’s testimony about her parentage and the date and place of her birth, as well as the political strife in Nicaragua and her fear while living there. She further testified that she “[does] not have like any contact with” Father; that he does not send any gifts for her birthday or holidays; that he has given her no “money directly for [her]
expenses”; and that she does not want to return to Nicaragua. R. testified through an interpreter and corroborated Mother’s testimony about her parentage and the date and place of her birth. She testified briefly about her schooling and career goals, that she was “studying” English, that she felt “safe living here with” A. and Mother, and that she wanted “to continue living here” rather than in Nicaragua. R. further testified that she “[hasn’t] seen” Father, that he does not send any money or gifts for her birthday or holidays, and that she has not seen him since February 2024. R. concluded by declaring that she believed that she would have “a brighter future” in Maryland than in Nicaragua and that here, she could “make [her] dreams come true.”
The court found that it’s in the best interest of [R.] and [A.] to be in the primary physical custody and sole legal custody of their mother and any visitation with their father will be at their mother’s discretion and given [A.’s] age at her discretion as well. Not so for [R.] This Court attributes a minimum wage to Sofonias Aguero of $13 an hour 40 hours a week, monthly wages of $2,253.33. Attributes a wage to the plaintiff of $3,293.33 a month. That’s $19 an hour.
The court further found:
Okay, the Court does find the minor child, [R.] is under the age of 21. She is a citizen and national of Nicaragua. The Court finds that [R.] is unmarried. The Court does have jurisdiction over [R.] [R.] is dependent on this Court for placement in the custody of her mother.
The Court does not find that reunification with the biological father is not viable because there has been no allegation of abuse, neglect or abandonment. There’s a child support order to be enforced. It is not neglectful behavior under Maryland law, neglect, child neglect is defined as not doing something that places the child at a physical risk. Court finds that it is not in [R.’s] best interest to be returned to her Country of nationality.
There was an apparent mix-up because the court had two copies of a proposed order that applied to R., and none applying to A. The court asked counsel to provide a copy of the proposed order naming A., but admonished counsel, “Please do not include, if you submit one please do not include any facts regarding neglect, abandonment or abuse. There is no evidence of same.” The court thereafter entered written orders as to both R. and A., in both cases declining to find that reunification with Father is not viable because of abuse, neglect or abandonment. 3
Within ten days of the hearing, Mother filed a timely motion to alter or amend judgment. The court denied that order, declaring:
[Mother’s] remedy for the alleged “abandonment” is collection of the Child Support ordered by this Court; and
the Defendant has not neglected the children under 5-701(r) as the Defendant’s behavior has not harmed the children, nor has it placed them at substantial risk of harm, nor has it caused mental injury to the children, nor created a substantial risk of mental injury.
Mother then noted a timely appeal.
DISCUSSION
Standard of Review
Appeals from bench trials are governed by Maryland Rule 8-131(c). 4 We accept the trial court’s factual findings unless clearly erroneous. Id. We review its legal conclusions, and its application of law to the facts, without deference. Romero v. Perez, 463 Md. 182, 196-97 (2019); Simbaina v. Bunay, 221 Md. App. 440, 448 (2015).
Analysis
This appeal concerns an immigration classification known as Special Immigrant Juvenile Status (“SIJS”), which, as the Supreme Court of Maryland has explained: protects undocumented immigrant children residing in the United States from being reunified with an abusive parent in the child’s home country. See Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(J). This policy allows such children to become lawful permanent residents of the United States if they satisfy certain eligibility criteria. One criterion requires the child to obtain an order from a state juvenile court that includes certain factual findings about the child’s circumstances, including, among others, that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, or abandonment” and that “it would not be in the [child’s] best interest to be returned to the [child’s] or parent’s previous country of nationality or country of last habitual residence.” 8 U.S.C. § 1101(a)(27)(J)(i)-(ii).
Romero, 463 Md. at 185-86.
“[W]hen a party requests SIJ status findings in his or her pleadings, the circuit court must undertake the fact-finding process (hear testimony and receive evidence) and issue ‘independent factual findings regarding’ the minor’s eligibility for SIJ status.” Id. at 190-91 (quoting Simbaina, 221 Md. App. at 458-59). In the instant case, the circuit court made findings regarding the daughters’ eligibility for SIJ status but declined to find that Father had neglected, abused, or abandoned them.
The present case is controlled by Romero, which instructs us to eschew “a narrow analysis of whether [a parent] was neglectful in a technical sense.” 463 Md. at 206. “The ultimate inquiry here, therefore, is whether [Father’s] reunification with [R. and A.] is not viable because [Father’s] prior conduct constituted neglect under Maryland law.” Id. See In re Dany G., 223 Md. App. 707, 720 (2015). Under the standard established in Romero, it is clear that the circuit court erred in declining to find that reunification with Father is not viable.
We begin with the statutory definitions of “abandonment” and “neglect” under Maryland law. “‘Abandoned’ means left without provision for reasonable and necessary care or supervision.” Md. Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”), § 9.5-101(b). “‘Neglect’ means the leaving of a child unattended or other failure to give proper care and
attention to a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of the child under circumstances that indicate: (1) that the child’s health or welfare is harmed or placed at substantial risk of harm; or (2) mental injury to the child or a substantial risk of mental injury.” FL § 5-701(s) (2025 Supp.).5
We are unaware of, and Mother does not direct us to, any Maryland authority setting forth a specific or minimum time for a parent’s total absence from a child’s life to constitute “abandonment.” Mother pointed out in her motion to alter or amend judgment that a number of other states generally have said that total absence for six months or even less may suffice to establish abandonment or a presumption of abandonment. We need not adopt any specific criterion in this case. It is sufficient that, here, Father left Mother and his two daughters behind in February 2024, eleven months prior to the hearing, and has had no contact with them since, nor has he provided any financial support whatever. Moreover, at the time of the hearing, the evidence was uncontroverted that Mother (and her daughters) were not even sure where Father lived. On this record, we conclude that Father has abandoned R. and A. We further conclude that, given Father’s abandonment of
R. and A., reunification with them is not viable. The circuit court erred in refusing to find abandonment and that Father’s reunification with them is viable.
For the same reasons, we hold that Father has neglected R. and A. At minimum, both daughters almost surely have experienced mental injury or a substantial risk of mental injury because of his disappearance from their lives, which is sufficient to satisfy the statutory definition. FL § 5-701(s). The circuit court erred in finding to the contrary.
We will not, however, disturb the court’s child support award. Simply because Mother did not expressly request child support is not enough to exclude it from the purview of this case, where Mother has alleged that Father abandoned the family and provides no support for R. and A. and has had no contact with any of them since February 2024.
Merely by drafting her pleadings to exclude child support as a requested form of relief does not extinguish the daughters’ and the State’s interest in ensuring that the daughters are provided for. See In the Matter of the Marriage of Houser, 490 Md. 592, 606-10 (2025) (holding that because “child support is a right held by, and obligation to, the minor child,” parents cannot, by mutual consent, waive the issue of child support).
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED WITH INSTRUCTIONS TO ENTER FINDINGS THAT REUNIFICATION WITH FATHER IS NOT VIABLE DUE TO ABANDONMENT AND NEGLECT. COSTS DIVIDED EQUALLY BETWEEN THE PARTIES.
FOOTNOTES
1 At the time the complaint was filed, R. was eleven years old and A. was seventeen years old. When the hearing was held nearly four months later, A. had turned eighteen. Under Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”), § 1-201(a) and (b)(10), “[a]n equity court has jurisdiction over . . . custody or guardianship of an immigrant child pursuant to a motion for Special Immigrant Juvenile factual findings requesting a determination that the child was abused, neglected, or abandoned before the age of 18 years for purposes of § 101(a)(27)(J) of the federal Immigration and Nationality Act,” with “child” defined as “an unmarried individual under the age of 21 years.” A. is unmarried.
2 Mother has a third daughter, M., from a different father. M. was twenty years old at the time of the hearing. Her status is not at issue in this case.
3 Mother appears to contend that the circuit court failed to make findings “whether it is in the children’s best interest to be returned to Nicaragua.” She is incorrect. Both orders expressly state the court’s findings that it is in their best interest to remain in the United States.
4 Maryland Rule 8-131(c) provides:
(c) Action Tried Without a Jury. When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
5 Effective October 1, 2024, FL § 5-701 was amended by the addition of a new subsection (m), which, in turn, led to relabeling subsequent subsections. 2024 Md. Laws, chs. 348, 349. The court’s reference to FL § 5-701(r) in its order denying the motion to alter or amend judgment was based upon the prior version of the statute, which is identical to the current, relabeled subsection (s).
6 In any event, in her complaint, Mother prayed that the circuit court “GRANT such other and further relief as the nature of the cause may require.” Under the circumstances of this case, that request clearly encompasses an award of child support.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s order granting father sole legal and physical custody of the parties’ minor child. The record indicates that the court properly considered the child’s best interests, including each of the relevant factors, in reaching the custody determination.
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..
Father was married to another woman at that time of the relationship, but not to Mother.
Both parties thereafter sought protective orders against each other in New York. Mother’s petition was based upon her allegation that Father had physically abused her while she was pregnant in an attempt to coerce her into getting an abortion. Father’s petition was based upon Mother’s repeated disparaging posts on social media applications, and Mother’s repeated contacting of Father’s wife, friends, and family to communicate with them regarding the pregnancy and Father’s infidelity. The court in New York denied Mother’s petition and granted Father’s petition, finding that Mother “through rebellious engagement” conducted herself in such a way that constituted “aggravated harassment and stalking.” In September of 2017, the New York court entered a five-year order of protection against Mother.
Robert J. Aiello (“Father”) and Chantelle Chaffatt (“Mother”) are parents to one minor child, J. 1 After a four-day trial, the Circuit Court for Montgomery County entered an order granting Father sole legal and physical custody of J., and ordered that Mother have no contact with J. until supervised access was arranged. Mother noted an interlocutory appeal raising fourteen issues, which we have consolidated and rephrased as follows:
I. Whether this Court has jurisdiction over filings that post-date Mother’s appeal. 2
II. Whether the circuit court abused its discretion in the denial of Mother’s motion to prohibit ex parte communication. 3
III. Whether the circuit court abused its discretion in allowing Father to amend pleadings. 4
IV. Whether the circuit court abused its discretion in awarding Father sole physical and legal custody of J. 5
As we discuss, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case span the course of more than ten years and at least two states. The information relevant to the instant appeal is as follows.
i. istory of the parties from 2014 through 2023
Mother and Father met at a nightclub in New York City in 2014. The parties began a brief relationship and Mother became pregnant. The relationship ended in March of 2015.
ii. Father begins establishing contact with J. After J. was born, Mother and J. moved to Maryland.6 Due to the protective order, Father had no contact with J. until June of 2023, at which point he emailed Mother and requested to meet J. Mother agreed, and J. spoke on the phone with Father for the first time in her life. Father’s outreach in 2023—post-expiration of the protective order—led to the parties arranging in-person visitation between Father and J. Father and J. then had three in- person visits, which Mother supervised. After the third visit, Mother prohibited Father from seeing J., accusing Father of inappropriately kissing J. at the end of the third visit and of verbally abusing Mother at all three visits. Father denied both of Mother’s accusations.
In August of 2023, Mother filed a complaint for custody, wherein she sought primary physical custody and sole legal custody of J. In response, Father filed both an answer and a counter complaint. Father sought for primary physical custody to be awarded to Mother, with reasonable and regular access awarded to Father, to include holidays and vacations, and for the parents to share joint legal custody of J. In December of 2023, the circuit court entered a pendente lite consent order providing Father with supervised inperson visits with J. on alternating Saturdays and virtual visits with J. on Tuesday evenings. Months passed where Mother failed to comply with the court’s pendente lite order by withholding Father’s access to J. In May of 2024, Father filed an emergency motion to enforce parenting time, which the circuit court granted.
In August of 2024—as Mother continued to withhold access to J.—Father filed an emergency petition for constructive civil contempt against Mother. In the petition, Father
contended that Mother had prohibited him from having inperson visitation with J. for nearly seven months and that she had prohibited him from having virtual visitation with J. for eleven consecutive weeks.
In November of 2024, the circuit court granted Father’s emergency petition for constructive civil contempt.7 The court found Mother in contempt for failing to comply with the court’s previous order to provide Father with access to J. The court provided a specific and detailed order, including a precise list of dates from November of 2024 through January of 2025 that Mother was required to make J. available for virtual and in-person visitation with Father.
iii. Visitation from November of 2024 through January of 2025
On November 30, 2024, J. was scheduled to have a visit with Father. After arriving with J. at the set location for the visit, Mother called the police and stated that she received a threatening text message from an unknown number. Mother told the police that she and J. were present so that J. could have supervised visitation with Father and that she believed the threatening text message was sent by Father. Two officers then accompanied Mother and J. to meet Father. Once there, the officers questioned Father about the text message; Father denied having sent the text message and advised the officers regarding the “ongoing situation with false accusations” being made by Mother. The police determined that J. was safe with Father and Mother ultimately agreed and that J. was “safe and not fearful of going with [Father]” for the visit. The visit thus continued. Dr. Camille Jones (“Dr. Jones”), the appointed therapeutic supervisor, was present at the visit and reported that although J. initially “display[ed] visible signs of discomfort, such as avoiding eye contact and fidgeting[,]” J. “began to warm up” to Father, “showing increased signs of affection, familiarity and comfort.”
On December 1, 2024, Mother and J. failed to appear for Father’s scheduled in- person visitation.
On December 7 and December 8, 2024, Father had inperson supervised visitation with J. Both visits were disrupted by Mother—as she arrived thirty minutes early to the scheduled end time of the visit to pick up J., which, according to Dr. Jones, “disrupted the father-daughter dynamic” and—because Mother arrived with two other people, a male friend of hers as well as a friend of J.’s. Despite Mother’s interruptions, Dr. Jones noted continued progress between J. and Father, including “their emotional connection and shared enjoyment of each other’s company.”
In January of 2025, Father and J. visited a paintbar and then a restaurant for in- person supervised visitation. Father and J. completed their painting and then went down the road to the restaurant; upon entering the restaurant, Father noticed that Mother was seated in a booth with the same male friend and the same friend of J.’s who had been present when Mother interrupted the December visits. Father, J., and Dr. Jones sat at a table separate from Mother, her male friend, and J.’s friend within the restaurant. Mother interrupted this visit by taking pictures of Father, J., and Dr. Jones despite a request to refrain from such an act. Father, J., and Dr. Jones completed their meal and attempted to leave the restaurant as there was still approximately one hour left of the visit at
which point Mother “jetted from her table and accosted [J.,]” directing J. to join Mother at Mother’s table. In an attempt to continue the scheduled visit, Father explained to Mother that there was still one hour remaining and that they would return to the agreed upon meeting location at the appropriate time. Mother then began yelling “[W]hy are you hitting me? Why are you assaulting me?” continuously, despite no actual or attempted physical contact. The police were called and despite Father’s “composed attempts” to continue the visit as scheduled, Mother “forcibly ended the visit,” and departed the restaurant with J. prior to the arrival of the police.
iv. Custody trial and subsequent events
The parties appeared for a four-day custody trial from February 3, 2025 through February 6, 2025. Father appeared with counsel and Mother appeared pro se. The court heard testimony from Mother, Father, Dr. Jones, Amanda Taylor (“Taylor”)—a custody evaluator appointed by the court, Dr. Robin Deutsch (“Dr. Deutsch”)—an expert in parent- child conflict, and Colleen Bokman (“Bokman”)—an expert in parental fitness assessments and evaluations. Additionally, the court heard argument from the best interest attorney appointed to represent J.
At the conclusion of the trial, the court made an oral ruling and issued a written order (“the Custody Order”) granting Father sole physical and legal custody of J. In its oral ruling, the court analyzed each of the child custody factors set forth in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986). The court, noting that it was “very troubled by the fitness of [Mother]” and that it was fearful of Mother absconding J., ordered an immediate transfer of J. to Father. The court further directed Father to “proceed immediately” from the courthouse to J.’s elementary school to retrieve J. The court set an additional hearing to consider supervised visitation options for Mother and ordered that Mother have no contact with J. “until such time as supervised access can be arranged[.]”
On February 13, 2025, Mother noted this timely appeal. Additional facts will be incorporated as they become relevant to the issues.
DISCUSSION
I. THIS COURT DOES NOT HAVE JURISDICTION OVER FILINGS THAT POST-DATE MOTHER’S NOTICE OF APPEAL.8
After Mother noted her appeal in February of 2025, both she and Father continued to file motions in the circuit court. Pertinent to the issues Mother raised before us, the timeline of those motions is as follows:
• February 21, 2025: Father filed a “Motion for a PreFiling Order,” requesting that Mother be deemed a vexatious litigant.
• February 24, 2025: Mother filed a motion to strike Father’s motion.
• March 5, 2025: Father filed a motion in opposition to Mother’s motion to strike. On the same day, Mother filed an amended motion to strike Father’s initial motion for a pre-filing order.
• March 7, 2025: The circuit court held a hearing on outstanding matters, at which Mother confirmed that her motion to strike constituted her response to Father’s motion for a pre-filing order.
• March 12, 2025: The circuit court entered a memorandum opinion and order granting Father’s motion, finding Mother to be a vexatious litigant, and imposing certain pre-filing restrictions on Mother.
In July of 2025, Mother filed a “motion for appropriate relief” in this Court. The motion requested that this Court enter an order “confirming the Court’s jurisdiction” and that such confirmation “would assist in maintaining orderly proceedings and ensure proper administration” of the case. Father did not file a response. On August 6, 2025, we denied Mother’s motion.
Without directly addressing jurisdictional concerns in her brief, Mother avers an argument that pertains to post-noticeof-appeal filings. Mother asserts that the circuit court erred in finding her to be a “vexatious litigant” and in imposing prefiling restrictions upon her. Mother asserts that the pre-filing order was “overbroad” because it was not “narrowly tailored to address specific abusive conduct without foreclosing legitimate judicial access.” Mother further asserts that the litigation history between her and Father does not reflect one that is marked by “duplicative, harassing, or frivolous filings[.]”
Father contends that the circuit court’s “issuance of the prefiling order is unrelated to Mother’s appeal.” However, were we to address the merits of the “vexatious litigant” finding, Father contends that the circuit court’s pre-filing order was narrowly tailored to meet the needs of this specific case.
Mother’s challenge to the pre-filing order is not properly before us on appeal because the pre-filing order was docketed months after Mother filed her notice of appeal. See In re Guardianship of Zealand W., 220 Md. App. 66, 79 (2014) (noting that this Court lacked jurisdiction over orders appealed which were docketed “after the last notice of appeal was filed by appellant.” (emphasis in original)); see also Forward v. McNeily, 148 Md. App. 290, 296 n.2 (2002) (“[A] non-appealable order may not be combined with an appealable interlocutory order so as to confer jurisdiction upon this Court.”). Accordingly, we will not address it here.
II.
THE ISSUE OF WHETHER THE CIRCUIT COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING MOTHER’S MOTION TO PROHIBIT EX PARTE COMMUNICATION IS MOOT.
A. Additional Facts
In March of 2024, Mother filed a motion to prohibit ex parte communication. In the motion, Mother alleged that counsel for Father engaged in ex parte communication with a judge’s chambers without providing notice to or involving Mother. Mother also alleged that Father’s counsel submitted exhibits to the same judge’s chambers that were not filed with the court.
In April of 2024, Father filed an opposition to Mother’s motion. Father asserted that Mother’s motion “distort[ed] the reality of the events” that transpired in March of 2024. Father asserted:
The parties were scheduled to appear before [the judge] on March 22, 2024, for a hearing on [Mother’s] Motion to Change [the] Custody Supervisor. [The judge’s] chambers sent the parties a Zoom link for the hearing, which included an instruction regarding the submission of exhibits via MDEC. Counsel for [Father] called [the judge’s] law clerk on March 21, 2024, to ask a procedural question regarding the submission of exhibits to ensure that they complied with the [c]ourt’s instruction. After the conversation with [the judge’s] chambers, counsel for [Father] promptly emailed a summary of the conversation to [the judge’s] chambers and [to Mother].
That same month, the circuit court denied Mother’s motion as moot in a written order.
Additionally, Mother asserts that the circuit court engaged in another instance of ex parte communication in February of 2025, when the court issued a warrant the day after it issued the Custody Order. The Custody Order directed: Father “to proceed immediately” from the courthouse to J.’s school to retrieve J.; the school officials at J.’s school to release J. only to Father and not to Mother; and that Mother have no contact with J. “either direct, indirect, by phone, by text, by email, by third-party, or by any other means, until such time as supervised access can be arranged[.]” The circuit court, “having received a verified oral petition seeking enforcement of a child custody determination,” issued a warrant pursuant to Maryland Code, Family Law (“FL”) section 9.5311, “direct[ing] law enforcement officers to take physical custody of [J.] immediately, and to deliver [J.] to the custody of [Father] promptly thereafter.”9
B. Party Contentions
Mother contends that the circuit court erred and abused its discretion by denying the motion to prohibit ex parte communication. Mother further contends that the circuit court communicated ex parte with Father in these two instances. According to Mother, the first instance occurred when a court clerk spoke with Father’s counsel regarding exhibits, requesting that counsel resubmit the exhibits “as instructed [by the clerk],”and the second instance occurred when the court issued a custody warrant as to J. based on “a clandestine phone call with opposing counsel.”10
Father contends that the circuit court’s issuance of the warrant ex parte is moot. However, if we were to review the issue, Father asserts that the warrant was properly issued pursuant to FL section 9.5-311(b).
C. Analysis
“Generally, a case is moot if no controversy exists between the parties or when the court can no longer fashion an effective remedy.” In re K.K., 266 Md. App. 161, 174 (2025) (internal quotation marks and citation omitted). “[A]ppellate courts do not sit to give opinions on abstract propositions or moot questions; appeals which present nothing else for decision are dismissed as a matter of course.” In re Sophie S., 167 Md. App. 91, 96 (2006) (internal quotation marks and citation
omitted). However, there is an exception to the rule that moot matters are dismissed as a matter of course, because “[t]he decision to dismiss a case for mootness is discretionary.” In re S.F., 477 Md. 296, 318 (2022) (citing Md. Rule 8-602(c)). We can exercise our discretion to address a moot appeal in two instances: “where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest” and where an issue is “capable of repetition, yet evading review.” In re K.K., 266 Md. App. at 177 (internal quotation marks and citation omitted).
Here, the circuit court’s denial of Mother’s motion to prohibit ex parte communication is moot. The circuit court’s denial of the motion does not present an active controversy between Mother and Father. Moreover, we decline to exercise our discretion to address this moot issue because the denial of a motion to prohibit ex parte communication is not a matter of important public concern regarding an urgency to establish a rule, nor is it an issue that is capable of repetition, yet evading review. Further, even if we vacated the denial of the motion to prohibit ex parte communication, as Mother requests, the Custody Order would still govern. See Cabrera v. Mercado, 230 Md. App. 37, 85–86 (2016) (holding that a service of process issue was moot because the final custody order would still govern even if the court vacated the emergency temporary order as the appellant requested). Similarly, even if we were to determine that the circuit court’s issuance of the warrant was ex parte pursuant to FL section 9.5-311(b) and was improper, the issue would remain moot because the Custody Order would still govern. See id. Thus, we decline to address this moot issue.
III. THE CIRCUIT COURT PROPERLY EXERCISED ITS DISCRETION IN DENYING MOTHER’S MOTION TO STRIKE FATHER’S AMENDED COUNTER COMPLAINT.
A. Additional Facts
In December of 2024, Father amended his August of 2023 counter complaint. In the amended counter complaint, Father requested primary physical custody of J., joint legal custody of J., and tie-breaking authority. Therein, Father cited increased concern regarding Mother’s behavior, Mother’s failure to comply with court orders, and J.’s school absences, noting that in the 2023–2024 school year, J. was absent thirtyeight times and tardy on seventy-eight occasions. Father also pointed to several unilateral decisions made by Mother, including a decision to transfer J. to a new school without notifying Father, as well as a decision for J. to begin practicing a new religion.11 In response, Mother filed a motion to strike Father’s amended counter claim for custody. In the motion, Mother asserted that Father’s amended counter claim “‘introduce[d] new facts or varie[d] the case in a material respect’ and unduly prejudice[d] [Mother] in her preparation and defense of the pending claims.”
Later that same month, Father filed an opposition to Mother’s motion to strike. In January of 2025, the circuit court denied Mother’s motion.
B. Party Contentions
Mother asserts that the circuit court abused its discretion by denying her motion to strike Father’s amended counter claim
for custody because the amended counter claim violated the Maryland Rules regarding pleading requirements. Mother further asserts that the circuit court’s denial of the motion to strike “radically transformed the case’s fact pattern,” “severely prejudiced [her] case preparation[,]” and “directly caused an unjust outcome.” Father contends that this issue is waived because Mother was required “to file an answer if she contested any new facts or believed Father’s amendment varied the case in a material way[,]” and she did not file such a pleading.
C. Standard of Review
The decision to grant or deny a motion to strike an amended complaint is within the sound discretion of the trial court. Bacon v. Arey, 203 Md. App. 606, 667 (2012). We review issues regarding the amendment of pleadings under the abuse of discretion standard. Crowe v. Houseworth, 272 Md. 481, 489 (1974); Nouri v. Dadgar, 245 Md. App. 324, 365–66 (2020). An abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.’” Kpetigo v. Kpetigo, 238 Md. App. 561, 568–69 (2018) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997). Rulings on procedural issues, such as the amendment of a pleading, are given great deference in appellate review. Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443–44 (2002).
D. Analysis
Maryland Rule 2-341 governs the amendment of pleadings. Subsection a, which is specific to amending a pleading without leave of court, provides in relevant part: A party may file an amendment to a pleading without leave of court by the date set forth in a scheduling order or, if there is no scheduling order, no later than [thirty] days before a scheduled trial date. Within [fifteen] days after service of an amendment, any other party to the action may file a motion to strike setting forth reasons why the court should not allow the amendment. If an amendment introduces new facts or varies the case in a material respect, an adverse party who wishes to contest new facts or allegations shall file a new or additional answer to the amendment within the time remaining to answer the original pleading or within [fifteen] days after service of the amendment, whichever is later. If no new or additional answer is filed within the time allowed, the answer previously filed shall be treated as the answer to the amendment.
Md. Rule 2-341(a) (emphasis added).
“Maryland courts have imposed a liberal construction on the allowance of amendments to pleadings.” Nouri, 245 Md. App. at 365 (internal quotation marks and citation omitted); see Md. Rule 2-341(c) (“Amendments shall be freely allowed when justice so permits.”). This is because Maryland courts carry a preference for cases to be “tried on their merits
rather than upon the niceties of pleading,” especially when they concern an equitable matter such as a child custody determination. Nouri, 245 Md. App. at 365 (quoting Crowe, 272 Md. at 485); see also McMahon v. Piazze, 162 Md. App. 588, 599 (indicating that the circuit court should have allowed a party to request for leave to amend in a child custody case because the issue regarded “the best interest of a child, an issue that is not ordinarily decided on a point of pleading”). “The primary situation in which an amendment should not be allowed is where it would result in prejudice to the opposing party.” Nouri, 245 Md. App. at 366 (internal quotation marks and citation omitted).
Here, Father’s filing of the amended counter complaint complied with Maryland Rule 2-341(a). Father filed the amended counter complaint on December 4, 2024 At that time, trial was set to begin on January 21 of 2025. We have not discerned from the record any scheduling order dictating amendment deadlines nor has either party asserted that such an order was issued. Thus, Father’s amended counter complaint was filed prior to the thirty days before the scheduled trial date and was timely. See Md. Rule 2-341(a).
Pursuant to Rule 2-341, Mother then filed a motion to strike Father’s amended counter complaint, which Father opposed. Mother did not file a new or additional answer to Father’s amended counter complaint, despite the language of Rule 2-341 which states that an adverse party who wishes to contest new facts or allegations shall file a new or additional answer. Because Mother did not file a new or additional answer within the time allowed, the circuit court properly treated her previously filed answer to Father’s initial counter complaint—which was not fully responsive to Father’s amended counter complaint—as the answer to Father’s amended counter complaint. See Md. Rule 2-341(a); see also Lasko v. Lasko, 245 Md. App. 70, 78–79 (2020).
Father complied with Rule 2-341 and Mother did not file a new or amended answer to Father’s amended counter complaint; hence the only viable pathway available to the circuit court to grant Mother’s motion to strike would have been for Mother—as the party opposing Father’s amended counter complaint—to demonstrate that denying her motion would have resulted in prejudice to her. See Nouri, 245 Md. App. at 366. Mother made no such showing in this case. In the motion to strike, Mother alleged that Father’s amended pleading introduced new facts, and varied the case in a material respect, and that this unduly prejudiced Mother’s “preparation and defense of the pending claims.” However, Mother did not explain how Father’s amended counter complaint prejudiced her; merely asserting that an amended counter complaint prejudices one’s preparation and defense of the pending claims does not demonstrate prejudice, and in this case, Mother did not provide any specific examples. See, e.g., Crowe, 272 Md. at 489 (disagreeing with appellant’s assertion that adding other parties to the action would prejudice him because newly added parties might share in the potential recovery); Nouri, 245 Md. App. at 366–67 (explaining that a party’s claim of prejudice from an amended pleading—because that party did not have time to address certain issues—was meritless because those same issues were raised in previous pleading documents). Thus,
the circuit court properly exercised its discretion in denying Mother’s motion to strike.
Against this backdrop, we now turn to the Custody Order.
IV. THE CIRCUIT COURT PROPERLY EXERCISED ITS DISCRETION IN AWARDING FATHER SOLE PHYSICAL AND LEGAL CUSTODY OF J. A. Party Contentions
Mother contends that the circuit court erred in granting sole physical and legal custody to Father because it deprived Mother of due process and because granting Father custody exceed Father’s “requested relief.” Mother further asserts that the court erred because it failed to properly apply the best interest factors, as highlighted by its disregard for Mother’s “established parent-child relationship” with J., and by the court’s decision to transfer J. from Maryland with Mother, to New York with Father. Mother contends that— as to the evidence regarding the court’s best interest determination—the circuit court “systematically applied disparate evidentiary standards, consistently subjecting [her] evidence to heightened scrutiny while accepting [Father’s] submissions with minimal examination.”12
Father asserts the circuit court properly awarded him sole physical and legal custody of J., noting that what the circuit court ordered did not exceed his requested relief. Father contends the circuit court properly applied the best interest factors, highlighting that in its oral ruling, the court considered and discussed each Taylor and Sanders factor on the record, and that the court properly considered J.’s best interests in determining that J. should move to New York with Father. Additionally, Father asserts that the court “equally scrutinized” the evidence presented by both him and Mother.
B. Standard of Review
This Court reviews determinations regarding child custody with three interrelated, but distinct standards of review. In re Adoption/Guardianship of H.W., 460 Md. 201, 214 (2018). When [an] appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second,] if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when [an] appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion.
J.A.B. v. J.E.D.B., 250 Md. App. 234, 246 (2021) (quoting In re Yve. S., 373 Md. 551, 586 (2003)). An abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.” Kpetigo, 238 Md. App. at 568–69 (quoting In re Adoption/Guardianship No. 3598, 347 Md. at 312); see also Gordon v. Gordon, 174 Md. App. 583, 638 (2007) (“Because a trial court is endowed with broad discretion in a custody proceeding, we may not
set aside the trial court’s judgment merely because we would have decided the case differently.”). Thus, we do “not make our own determination as to a child’s best interest.”
J.A.B., 250 Md. App. at 247.
C. Analysis
A trial court’s child custody determination requires “a careful examination of the specific facts of each individual case[.]” Azizova v. Suleymanov, 243 Md. App. 340, 344 (2019). This Court and the Supreme Court of Maryland have “identified several factors for a trial court to consider when making a custody determination as to a minor child.” J.A.B., 250 Md. App. at 249. Specifically, in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977), this Court set forth the following factors:
1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties; 4) potentiality of maintaining natural family relations; 5) preference of the child; 6) material opportunities affecting the future life of the child; 7) age, health[,] and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender[.]
Sanders, 38 Md. App. at 420 (internal citations omitted).
In Taylor v. Taylor, 306 Md. 290 (1986), the Supreme Court of Maryland expounded upon the factors enumerated in Sanders particularly as to consideration of joint custody and set out additional criteria to be considered. See Taylor, 306 Md. at 304, 307– 11. The Taylor factors include: 1) capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; 2) willingness of the parents to share custody; 3) fitness of the parents; 4) relationship established between the child and each parent; 5) preference of the child; 6) potential disruption of child’s social and school life; 7) geographic proximity of parental homes; 8) demands of parental employment; 9) age and number of children; 10) sincerity of parents’ requests; 11) financial status of the parents; 12) impact on state or federal assistance; 13) benefit to the parents; and 14) any other factors as appropriate. Id.
The factors set out in Sanders and Taylor are instructive to the trial court’s determination of custody, yet, “[u] nequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child.” Azizova, 243 Md. App. at 347.
i. The circuit court properly considered J.’s best interests and each of the factors set forth in Sanders and Taylor
The record indicates that the court properly considered J.’s best interests, including each of the factors set forth in Sanders and Taylor, in reaching the custody determination. The circuit court discussed each of the factors in its oral ruling. [R. 1527-538]. We review and discuss the circuit court’s findings as they pertain to each factor.
1) The Fitness of the parents. The court was satisfied by Father’s fitness as a parent. The court noted that based upon the testimony of several of the witnesses— Bokman,
Taylor, Dr. Jones, and Dr. Deutsch—“as well as the demeanor and [testimony] of [Father] himself[,]” Father was a “fit and proper person to have custody of J.” Conversely, the court was “very troubled” regarding Mother’s fitness as a parent, noting that the court had “the sense [that] there’s something very serious troubling [Mother.]” The court found that Mother’s accusations against Father—namely that he is a violent person, or that he had been violent and abusive in numerous ways to Mother—were “not credible.” The court noted that Mother’s repeated accusations and complaints regarding Father “simply don’t carry any weight” because they had “little substance or any explanation to them.” As an example, the court referenced the evidence regarding the visit in January of 2025 at the paintbar and restaurant. The court noted:
Mother truly believes that she is being abused. But she’s not. But she truly believes, she truly believes someone was beating on her at [the restaurant], but nobody was. I credit the testimony of Dr. Jones, a neutral witness. I find her completely credible about what happened at [the restaurant]. I think [Mother], although she believes she was being abused, it’s simply not true. I don’t find [Mother] to be evil. I don’t think she’s deliberately or intentionally lying. I think she believes she’s telling the truth. I think she believes she’s trying to protect herself and to protect her child. However admirable that is, it is misplaced in this case because she’s seeing things that aren’t there and feeling things that aren’t there and hearing things that aren’t there.
The court found Mother’s “testimony to be rapid fire accusation after accusation[.]”
2) The character and reputation of Mother and Father. The court found both Mother and Father “to be of good character.” Regarding Mother, the court noted that Mother called witnesses who all spoke highly of her and that she seems like “a very nice person.” Regarding Father, the court noted that “[h]e’s had his issues . . . you know, hanging out in clubs those years ago[,]” but the court also noted that the court did not believe that behavior was currently occurring. The court noted that Father’s witnesses “spoke so highly of him,” including his former girlfriend and the positive “impact that he had on her child,” which the court found significant, as well as the testimony and observations of Dr. Jones.
3) The desire of Mother and Father and agreements between them. The court found that “they don’t agree on anything.” The court noted that Mother testified “that her desire is to involve [Father,] that but her actions show otherwise” and that “[s]he’s done everything she could to keep him out of [J.]’s life[.]” The court also explained that Father testified that it was his desire to keep Mother involved regarding J.
4) The potentiality of maintaining natural family relations. The court noted that there was a “problem” here, because Father lives in New York and Mother lives in Maryland.
5) J.’s preference. The court explained that J. was “too young” for the court to weigh her preference. Further, the court noted that the best interest attorney indicated that J. had stated that “her mom is the greatest,” but that when discussing her feelings concerning spending time with Father, J. had stated “well, I don’t want to spend time with people I don’t know.” The court continued that J. had been raised by only one parent, Mother, and that—as supported by Dr. Jones’ and Bokman’s expert opinions—J.’s statements regarding her desires sounded like Mother speaking through J. and influencing J.
6) The material opportunities affecting J.’s future. The court stated that there had been “very limited evidence on this point.” The court noted that it was “confused about [Mother’s] financial situation” but that Father “does quite well[.]”
7) The age, health, and sex of J. The court noted that J. was nine and “generally healthy,” but that it never “got a straight answer” from Mother concerning J.’s alleged allergies. The court explained that Mother stated to J.’s elementary school that J. has had “some significant allergies, but then when [Father] took appropriate steps, such as having an EpiPen during visitation,” that Mother “resented” Father’s actions, asserting that “he shouldn’t be allowed to administer medication.”
8) Residences of Mother and Father and opportunity for visitation. The court noted that Father lives on Staten Island and that Mother lives in Montgomery County, but that it was not “exactly” sure where, as Mother’s address is confidential. The court explained that there was “always going to be a distance issue in terms of visitation.”
9) Father’s length of separation from J. The court acknowledged that Father “was separated from [J.] for a very long time.” The court however noted that there were “a lot of reasons for that” including the protective order Father obtained against Mother due to Mother’s harassment of Father and his family. The court additionally explained that Mother had never been separated from J., did her “absolute best” to raise J., provided adequate food, shelter, clothing, and all other “things that a little girl needs.” The court noted that Mother “loves [J.] very much.”
10) Prior voluntary abandonment or surrender. The court explained that it had already covered this factor along with factor nine, stating, “I think I’ve already covered that in terms of [Father] not establishing a relationship with [J.,] because he did not want to lose his order of protection.13
The court next addressed each of the factors set forth in Taylor. We review the circuit court’s findings as to each factor not already encompassed by the discussion of the Sanders factors. Regarding Taylor factors one and two—1) the capacity of Mother and Father to communicate and to reach shared decisions affecting J.’s welfare; 2) the willingness of Mother and Father to share custody—the court stated “I have no confidence that they can set aside their past history and make shared decisions. Joint custody would be a terrible idea for these two people who cannot communicate at all. . . . It’s a terrible idea for [J.]” Regarding Taylor factor six, the potential disruption to J.’s social and school life, the court acknowledged that ordering Father to have sole physical custody of J. was “a huge disruption[,]”
and would likely be “very hard on a little girl.” However, the court explained that it was confident in its decision even with this disruption because—as amplified by Bokman’s and Dr. Deutsch’s testimony—it would be less dangerous to move J. to New York than to keep her with Mother.
As to Taylor factor eight, the demands of parental employment, the court explained that it was unclear on Mother’s work hours, but that it understood “that there’s a fair amount of flexibility.” The court continued, that Father has some flexibility because he works from home sometimes, but also that Father travels occasionally for work. Regarding Taylor factor nine, the number of children, the court addressed that J. is an only child of Mother’s and that Father has two older teenage sons who are “apparently quite interested in meeting their sister.” Taylor factor ten is the sincerity of the parents’ requests. The court noted that it did not doubt the sincerity of either party’s request.
Finally, the court noted that it relied upon several additional factors, including Taylor’s testimony that Mother “could not identify any strengths of [Father] as a parent[.]”
Further, the court explained that it had accounted for a number of Mother’s inconsistencies, including, Mother’s repeated assertions that Father was solely interested in J. to benefit him in his ongoing divorce, although Mother “never explained what that meant or how [J.] could possibly benefit [Father] in his divorce.” The court noted Taylor’s concern that Mother was “whether knowingly or unknowingly, . . . placing [J.] in the middle of an adult conflict[.]” Accordingly, Mother’s assertions—that the court erred in applying the statutory factors for custody determinations and that the court improperly considered the evidence— are unsupported by the record.
ii. The circuit court’s memorandum opinion was not an attempt to “retroactively strengthen a legally insufficient decision.”
Mother contends that the filing and docketing of the April 2025 memorandum opinion “shows an attempt to retroactively strengthen a legally insufficient decision.” Mother further contends that Maryland Rule 20-402 prohibits this Court’s consideration of the memorandum opinion.14
The memorandum opinion did not alter the circuit court’s previous oral ruling or Custody Order. It merely memorialized the court’s oral ruling and Custody Order, providing limited additional details; thus, the opinion was not a “post- appeal modification” and it does not affect the outcome of this case.
Cf. Jackson v. State, 358 Md. 612, 620 (2000) (“[A] circuit court is not divested of fundamental jurisdiction to take postjudgment action in a case merely because an appeal is pending from the judgment.”); and Kent Island, LLC v. DiNapoli, 430 Md. 348, 361 (2013) (“[A] trial court may continue ordinarily to entertain proceedings during the pendency of an appeal, so long as the court does not exercise its jurisdiction in a manner affecting the subject matter or justiciability of the appeal.) The trial court’s post-notice of appeal issuance of the memorandum opinion does not frustrate the actions of this Court. In re Emileigh F., 355 Md. 198, 202 (1999) (“After an appeal is filed, a trial court may not act to frustrate the actions of an appellate court.”).
iii. The circuit court properly considered the impact of relocating J. Mother’s argument that the court failed to consider the impact of relocating J. to Father’s custody is without merit. As we explained above, the court acknowledged that awarding Father custody would be a “huge disruption” to J. Nonetheless, the court noted that it “did balance the risks,” and that it would be “less dangerous to move [J.] than to keep her [in Mother’s care,]” adding that it would be “more dangerous to keep her here . . . in the situation she’s in.” This conclusion was supported by: Dr. Deutsch’s testimony regarding the “risk analysis” required when considering transitioning a child to another person’s custody to avoid the risk of developmental harm; Bokman’s testimony, in which she expressed concern regarding the impact of Mother’s behavior on J.’s “own sense of safety”15 ; and by the court’s credibility determinations concerning the incident at the visit in January of 2025, including that it found Mother’s accusations of abuse against Father “not credible[,]” that it found Mother’s witness of the incident not credible, and that it found Dr. Jones’ testimony “completely credible[.]”
iv. The circuit court did not delegate its custody decisionmaking authority to Bokman or Dr. Deutsch.
Mother asserts that in reaching its custody determination, the court “improperly delegat[ed]” its authority to Father’s expert witnesses, by adopting “wholesale” the recommendations of Bokman and Dr. Deutsch, “without independent analysis[.]” We disagree. Mother is correct that a trial court “may not delegate to a non-judicial person decisions regarding child visitation and custody.” Van Schaik v. Van Schaik, 200 Md. App. 126, 134 (2011). There is, however, no indication in the record before us that the court delegated its authority to anyone. The Custody Order did not address Bokman or Dr. Deutsch, and neither Bokman nor Dr. Deutsch offered a custody recommendation to the court. Accordingly, we cannot say that the court improperly relied upon testimony of, or delegated its authority to, either witness.
JUDGMENT
v. The circuit court did not err in observing that Taylor’s report was dated.
Mother asserts that the court erred in “dismissing” a report by the court evaluator, Taylor. We disagree that the record indicates that the court dismissed Taylor’s report. Instead, while noting that the report was “a bit dated at this point because so much has happened over the last couple of months[,]” the court did rely on Taylor’s report to make several findings. The court found, based upon Taylor’s report, which was then confirmed by Taylor’s testimony, that Father was a fit parent; that Mother “could not identify any strengths of [Father] as a parent”; that J.’s feelings “are closely tied to Mother”; that J. “was protective” of Mother; and that Mother is “placing [J.] in the middle of an adult conflict and issues, which can have a significant negative impact on [her].”
Further, we find no error in the court correctly noting Taylor’s report was “a bit dated.” Taylor issued her report in January of 2024, over a year before trial and prior to several events the came to light during trial that the court found concerning. These events included Mother’s failure to transport J. for court-ordered supervised visitation, Mother’s interruption of several of Father’s court-ordered supervised visitations with J., including the visit in January of 2025. In sum, we disagree that the court failed to give due regard to Taylor’s report.
vi. The circuit court did not “erroneously fail to preserve” its jurisdiction.
Mother asserts that the circuit court “committed reversible error when it authorized [J.’s] relocation to New York without preserving Maryland’s exclusive, continuing jurisdiction as explicitly mandated by” FL sections 9.5-201 and 9.5-202(a) (1). However, neither FL section 9.5-201 nor FL section 9.5-202, nor the caselaw cited by Mother,16 “explicitly mandate” that the court make written findings regarding its ongoing jurisdiction. Instead, and as Father correctly notes, FL section 9.5-202 provides that Maryland maintains exclusive, continuing jurisdiction until a court of this State or another concludes otherwise, as set forth in FL section 9.5-202(a)(1)–(2).
FOOTNOTES
1 To preserve the anonymity of the minor child, we refer to her by the randomly generated letter, “J.”
2 Mother presented the following questions in relation to this topic:
(12) Did the trial court err in finding [Mother] to be a “vexatious litigant” and imposing pre-filing restrictions while her appeal was pending?
3 Mother presented this question in relation to this topic:
(2) Did The Trial Court err and abuse its discretion by denying [Mother’s] Motion to Prohibit Ex Parte Communication and by subsequently participating in ex parte communication to issue a warrant?
4 Mother presented this question in relation to this topic:
(4) Did The Trial Court err by denying [Mother’s] motion to strike the [Father’s] amended counterclaim for custody?
5 Mother presented the following questions in relation to this topic:
Did The Trial Court err by issuing a written memorandum opinion on April 4, 2025, nearly 60 days after its oral ruling and after the appeal had been filed and the record transmitted?
(3) Did The Trial Court err in granting primary physical and sole legal custody Without Proper Evaluations and exceeding the Requested Relief[?]
(5) Did The Trial Court err by failing to properly apply Maryland’s statutory factors for custody determinations and failing to preserve jurisdiction?
Did The Trial Court err by imposing a pretrial sanction order preventing [Mother] from objecting to expert witness testimony?
Did The Trial Court err by improperly evaluating and discrediting the [Mother’s] evidence while accepting the [Father’s] evidence without equivalent scrutiny?
Did The Trial Court err by Ordering an Immediate Custody Reversal Without a Proper Transition Plan, Parenting plan, Evidence-based Justification, or Consideration of the Child’s Best Interests[?]
Did The Trial Court err by reversing custody based on allegations of parental alienation without requiring sufficient supporting evidence or expert testimony to establish that parental alienation actually occurred?
Did The Trial Court err or abuse its discretion in Delegating Custody Decision-Making Authority to Private Parties and Imposing Unreasonable Conditions on Visitation[?]
Did the trial court err and abuse its discretion by dismissing the visitation evaluation report as outdated, despite it being a comprehensive and thorough evaluation that included detailed interviews with both parents and the minor child?
Did the trial court err by ordering supervised visitation without due consideration?
Did the trial court err by failing to consider harm to the child by the sudden separation from her primary attachment figure and community?
6 The record does not reflect the year when J. and Mother moved to Maryland. At trial in February of 2025, Mother testified that she and J. moved to Maryland over six-and-a-half years prior.
7 By this point in time, Father had not seen J. since before January 6, 2024—a period of ten months.
8 As an initial matter, we note Mother challenges several circuit court orders entered after the she filed a notice of appeal. Although neither party directly addresses this Court’s jurisdiction as to any of Mother’s questions presented, as a matter of appellate procedure, we sua sponte address this issue. See Stevens v. Tokuda, 216 Md. App. 155, 165 (2014) (“Even if no party challenges the appealability of an order, appealability is a jurisdictional issue that we must resolve sua sponte.”).
9 We note that there are no facts in the record regarding Mother’s actions that precipitated the issuance of the warrant. However, Father contends in his brief, that “[o]n the evening of February 6, 2025, [he] orally petitioned for a warrant because Mother left the courtroom, intercepted [J.] after school, took [J.] into her apartment and then held her there for hours.” Father further explained that “Mother did not open the door when Father knocked, nor when police arrived before a warrant was issued. Mother would not speak to Father or to police through the closed door.”
10 In her brief, Mother omits that the circumstances surrounding the issuance of the warrant occurred only because of her disregard of the Custody Order.
11 Specifically, Father asserted that Mother withdrew J. from a private Catholic school and enrolled her in a Montgomery County public school without notifying Father. Further, although J. had attended Catholic school from kindergarten through second grade, “sometime between July 2024 and November 2024, Mother and [J.] began to wear hijabs.” Mother “neither discussed nor notified Father of any intention or plan to change [J.’s] religious faith.”
12 In her sixth issue presented, Mother asserted that the circuit court abused its discretion by imposing a pre-trial sanction which prevented her from objecting to Father’s “expert witness testimony.” We review discovery sanctions under the abuse of discretion standard. Kadish v. Kadish, 254 Md. App. 467, 492–93 (2022). “However, before we look through that lens in a child custody case, we must be satisfied that the court has applied the best interests of the child standard in its determination. When the custody of children is the question, the best interest[s] of the children is the paramount fact.” Id. at 493 (internal citations and quotation marks omitted). This is because, in a child custody case, determining what is in the best interest of the child “is a bedrock principle[.]” Id. (quoting Reichert v. Hornbeck, 210 Md. App. 282, 304 (2013)). Thus, “procedural defects,” i.e., a discovery violation and subsequent sanction, “should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s bests interests.” A.A. v. Ab.D., 246 Md. App. 418, 446, cert denied, 471 Md. 75 (2020). Here, the circuit court’s sanction—that Mother “shall not be permitted to object to the expert’s ability to testify” at the then-upcoming trial—was not an abuse of discretion. The court sanctioned Mother only after she failed to appear for three depositions, two of which were court-ordered. Further, the sanction allowed Father’s experts to testify and thus, it created no limitation on the circuit court’s ability to ascertain information regarding the best interest of J. See Kadish, 254 Md. App. at 500–01; see also A.A., 246 Md. App. at 447–48. We therefore perceive no abuse of discretion in the trial court’s imposition of the discovery sanction.
13 Mother contends that the court’s “ruling shows cursory consideration” of the Sanders and Taylor factors “particularly regarding [Father’s] eight-year absence [J.]’s life” and that “[t]his disregard for [Father’s] prolonged absence constitutes reversible error[.]” While Father’s absence in J.’s life prior to 2023 is unfortunate, the record supports the circuit court’s conclusion that this was attributable to the highly contentious relationship between the parties and the five-year order of protection entered against Mother in 2017, not an intention by Father to abandon J. Thus, Mother’s argument is unavailing.
14 Maryland Rule 20-402, which falls within the electronic filing and case management title and covers transmittal of the record and custody of trial court filings, provides that “[e]xcept as otherwise ordered by the appellate court, submissions filed in the trial court after the date of the notice shall not be part of the appellate record but shall be within the custody and jurisdiction of the trial court.” See Md. Rule 20-402(b).
15 Particularly, Bokman testified about the cognitive dissonance J. may experience if her enjoyment of her time and company with Father “doesn’t align” with Mother’s thoughts concerning Father. Bokman further testified that this cognitive dissonance could have a “terrible impact” on J.’s “own sense of self, [her] ability to trust [her] own feelings, and emotions, and read on people.”
16 We note that although Mother cites several cases throughout her appellate brief, many of the cases cited either do not exist, do not state the language quoted, or do not stand for the proposition asserted. Although we need not address each here for purposes of resolving the instant appeal, by way of example, as to Mother’s contention that the court erred in failing to preserve continuing, exclusive jurisdiction, she maintains that the court committed a “jurisdictional error that directly contravenes controlling Maryland precedent in In re Adoption/Guardianship of Bernie B. and Pilkington v. Pilkington, which mandate that courts affirmatively preserve Uniform Child Custody Jurisdiction and Enforcement Act . . . jurisdiction on the record when a child relocates yet remains in Maryland.” The first case cited—“In re Adoption/ Guardianship of Bernie B.”—does not appear to exist, and the second case cited—Pilkington v. Pilkington, 230 Md. App. 561 (2016)—while considering jurisdictional questions related to child custody, does not mandate a circuit court’s affirmative preservation of exclusive, continuing jurisdiction. See 230 Md. App. at 575–80.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Howard County Circuit Court’s award of attorney’s fees to husband. The circuit court was not clear as to which Rule or statutory provision it relied on when it granted attorney’s fees, i.e. Md. Rule 1-341, Md. Code, Fam. Law § 8-214(b) or Md. Code, Fam. Law § 8-214(d).
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..
For the following reasons, we vacate and remand. Although we hold that the February 1, 2023 Order did not violate the Appellant’s due process rights and that res judicata does not apply to the facts of this case, we hold also that the lower court was not clear as to which Rule or statutory provision it relied on when it granted attorney’s fees, i.e. Md. Rule 1-341, Md. Code, Fam. Law § 8-214(b), or Md. Code, Fam. Law § 8-214(d), we remand this matter to the circuit court for clarification.
Factual & Procedural Background
The parties were married in New Mexico in October of 2010, before moving back to Maryland in 2012. The parties had two children together: one born in 2008, the other in 2010. On August 22, 2018, the parties entered into a marital settlement agreement (the “Agreement”). The parties divorced on February 22, 2019, and the Agreement was incorporated, not merged, into the Judgment of Absolute Divorce.
On October 14, 2021, Mark Dempsey, the Appellee, filed a Complaint for Sale in Lieu of Partition of Real Property in the Circuit Court for Howard County. The Complaint argued that the marital home occupied by his ex-wife, Elisabeth Wakeman, the Appellant, should be sold by a trustee. Litigation proceeded for a year and the Appellant filed two motions in October of 2021 to stay the distribution and conform distribution for the sale of the former family home. The Appellee filed oppositions to both motions and requested reasonable counsel fees. On November 18, 2022, the circuit court granted the Appellee’s motions to strike the Appellant’s motions. The circuit court also awarded reasonable counsel fees to the Appellee for having to defend against the motions. On February 1, 2023, the circuit court ordered the Appellant to pay $2,926.50 in counsel fees to the Appellee. The Appellant filed an appeal of this order on March 1, 2023. In bringing her appeal, Appellant presented seven questions for appellate review.1 In an order denying Appellant’s Motion to Consolidate Appeal of Four Lower Court Orders Dated February 1, 2023, February 27, 2023, June 23, 2023, and June 23, 2023, this Court limited the scope of review to this current appeal to the February 1, 2023 Order only. Based on this order, we will only be addressing the Appellant’s first three questions, which we rephrase as:
I. Whether the February 1, 2023 Order violated the Appellant’s procedural due process rights?
II. Whether the February 1, 2023 Order violates the principle of res judicata?
III. Whether the trial court failed to consider the criteria for making an award of attorney fees in a family law case?
The Agreement set out that the Appellee would pay monthly child support to the Appellant. The Appellant was given the exclusive right to reside in the former marital home until it was no longer her primary residence. While occupying the home the Appellant would pay a portion of the monthly mortgage and the Appellee would pay the remaining balance. However, after the divorce was finalized, the parties did not follow the Agreement. The Appellant continued to live in the marital home with the two children until approximately August 2022. Rather than the Appellant paying a portion of the monthly mortgage, the Appellee paid the full mortgage amount (approximately $2,700) in lieu of paying child support to Appellant. 2
According to Appellant, the parties met with a realtor in the Spring of 2021 to discuss the marital home. The Appellant asserts that she wanted to buy out the Appellee’s interest but the plans had to be put on hold while the Appellant tried to get approved for a mortgage loan. The home was then appraised in June 2021. On July 14, 2021, both parties signed a letter of agreement which stated that the Appellee understood that he would be receiving payment from an inheritance the Appellant received and not the settlement of the home. The letter of agreement said that it superseded the divorce agreement and that payment was due by September 1, 2021.
The Appellant then experienced problems obtaining a mortgage in her name because she needed six months of consecutive employment and six months where the child support was part of her income history. During this period, Appellant alleges that the parties were still working together with the goal that Appellant would obtain a mortgage and buy
out Appellee’s interest. In September 2021, Appellee began transferring child support payments directly to Appellant who would then transfer them to the mortgage company to create a history of payments. However, before Appellant could begin the mortgage process, the parties’ understanding began to falter. According to Appellant, Appellee started sending emails in August 2021 threatening that if she did not complete the buyout or sell option within thirty days, he would petition the court to force the sale of the property.
On October 14, 2021, Appellee filed a Complaint for Sale in Lieu of Partition of Real Property in the Circuit Court for Howard County. In the complaint, the Appellee argued that two years had passed since the Appellant’s exclusive right to occupy the home had terminated, and the home remained unsold. The Appellee requested that the court appoint a trustee to sell the property, and that the Appellant should be responsible for all costs incurred by the Trustee.
Litigation proceeded for a year, with the Appellant initially representing herself pro se. The Appellee’s petition for sale was granted on March 17, 2022, and the court appointed a trustee to complete the sale. The court also ordered that the Appellee was entitled to one- half of the mortgage payments made from July 1, 2019, through the sale. The case was then closed on July 8, 2022, after the Appellant’s motions for reconsideration and emergency motions were denied.
The report of sale for the former marital home was filed on September 7, 2022. On September 23, 2022, the Appellant filed an objection to the disbursement of the trustee’s fees. The Appellant argued that disbursement should be delayed until any issues with the accounting of the sale are resolved by the circuit court.
On October 6, 2022, Appellant filed a Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court- Appointed Trustee. The motion argued that the Appellee’s allegations about the Appellant trying to block the sale of the family home were false and the Court needed to hear evidence before making decisions about the sale of the former family home. The next day, Appellant filed a Motion to Conform Distribution of the Net Proceeds of the Former Family Home. The Appellant further argued that the Appellee was not entitled to one-half of the mortgage payments and for direct disbursement of the Appellee’s proceeds.
On October 21, 2022, the Appellee filed his Opposition to the Appellant’s Motion to Conform Distribution of the Net Proceeds. The same day, the Appellee filed a Motion to Strike the same motion. The Appellee argued that the Motion to Conform violated the Maryland Rules by not containing authority in support of the grounds and containing facts not in the record or supported by an affidavit. In the Opposition, the Appellee asked the circuit court to deny the Appellant’s motion and requested reasonable counsel fees. The Appellee also filed an Opposition to the Motion for Temporary Stay, asking for a denial of the motion and the award of reasonable counsel fees. Appellee argued that the Motion for Temporary Stay was void of authorities in support of each ground and was based on facts not contained in the record.
On November 18, 2022, the circuit court granted the Appellee’s motion to strike the Appellant’s Motion to Conform
Distribution of the Net Proceeds of the Former Family Home and also ordered that the Appellee would be awarded reasonable counsel fees incurred in having to defend against the motion. Another order from the same day ordered that the Appellant’s Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee was denied, and the Appellee was to be awarded reasonable counsel fees incurred in having to defend against the motion. 3 On December 2, 2022, Appellee filed a line with affidavits in support of the counsel fee awards. Appellee also filed a chart of his counsel’s fees from March 2022 through November 2022, which totaled to $38,663.00. In the affidavit, Appellee’s counsel stated she incurred $2,926.50 to defend the two motions.
On January 5, 2023, there was a hearing on trustee’s fees before the Circuit Court. According to the hearing sheet, the trustee’s petition for trustee’s fees was granted, the Appellee’s motion to dismiss was denied, the Appellee’s motion for reimbursement and further relief was granted, and the Appellee’s request for counsel fees was denied. On January 12, 2023, the case was closed again.
On February 1, 2023, 4 the circuit court ordered the Appellant to pay the Appellee’s counsel $2,926.50 in attorney’s fees “in connection with having to defend against [Appellant’s] Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee and having to defend against [Appellant’s] Motion to Conform Distribution of the Net Proceeds of the Former Family Home.” Appellant filed this appeal on March 1, 2023, appealing the February 1 Order.
On March 27, 2023,5 Appellant filed an additional appeal against a February 27, 2023 Order from the circuit court denying the Appellant’s Petition for Contempt of Judgment of Absolute Divorce. The Appellant requested that the appeals be consolidated. On July 18, 2023, Appellant filed a motion to consolidate the appeal with two additional orders on June 23, 2023 which reversed the February 27, 2023 Order and scheduled a Show Cause hearing for contempt. On August 2, 2023, this Court ordered that the motion to consolidate was denied and the challenge to the February 27, 2023 Order was moot because the order was vacated. Appellant moved to reconsider the order, which this Court denied.
This appeal is limited to the February 1, 2023 Order which awarded the Appellee nearly $3,000 in attorney’s fees for defending the motions which Appellant filed between October and November 2022. The Appellee did not file any opposition motions or briefs before this Court, so we are limited to reviewing the Appellant’s brief and filings from both parties in the circuit court.
DISCUSSION
Violation of Due Process Rights
A.
Party’s Contentions
Appellant argues that the Order violated her procedural due process rights, including the right to notice, an opportunity to be heard, and the right to be heard by an impartial tribunal. Appellant argues the trial court entered the orders sua sponte and that the orders were contradicting or reversing prior orders. Appellant claims that in the absence of an evidentiary
hearing, the orders were given in error.
B. Standard of Review
When a constitutional challenge is raised, appellate courts review using a de novo standard because “[t]he proper scope of a constitutional right, and its application to a particular set of facts, are issues of law.” Pizza di Joey, LLC v. Mayor of Baltimore, 470 Md. 308, 339 (2020). “[A] denial of due process claim is tested by analyzing the totality of the facts in the given case.” Id. (citing Wagner v. Wagner, 109 Md. App. 1, 24–25 (1996).
C. Analysis
The general principle is that “each party to a case is responsible for the fees of its own attorneys, regardless of the outcome.” Royal Inv. Group, LLC v. Wang, 183 Md. App. 406, 456 (2008). There are exceptions to that rule. A circuit court in a civil action may award one party the costs of reasonable attorney’s fees “if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification.” Md. Rule 1-341. This rule can be an effective deterrent against “unnecessary or abusive litigation.” Zdravkovich v. Bell Atl.-Tricon Leasing, Corp., 323 Md. 200, 209 (1991); see also Worsham v. Greenfield, 435 Md. 349, 369 (2013) (“It is clear from the history of the Rule, and the case law interpreting it, that Rule 1–341 was intended to function primarily as a deterrent.”). The rule “should not be construed as a punishment but merely as a mechanism to place ‘the wronged party in the same position as if the offending conduct had not occurred.’” Christian v. Maternal-Fetal Med. Assocs. of Maryland, LLC, 459 Md. 1, 19 (2018) (quoting Major v. First Virginia Bank–Central Md., 97 Md. App. 520, 530 (1993), cert. denied, 334 Md. 18 (1994)).
This case concerns a more specific application of the rule awarding costs in the family law context. As this litigation arose out of the parties selling the marital home, Section 8-214 of the Family Law statute also provides two means for a party to recover attorney’s fees, discussed in more detail in the third issue.6
Due process is a “flexible concept that calls for such procedural protection as a particular situation might demand.” Est. of Brown v. Ward, 261 Md. App. 385, 456 (2024) (quoting Knapp v. Smethurt, 139 Md. App. 676, 704 (2001)) (internal quotations omitted). At the core of due process is “the right to notice and a meaningful opportunity to be heard.” Id. (quoting Knapp, 139 Md. App. at 704). “[D]ue process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case.” Id. at 456–57 (quoting Wagner v. Wagner, 109 Md. App. 1, 24 (1996)) (emphasis in original).
Procedural due process applies “to the assessment of attorney’s fees for litigation misconduct.” Talley v. Talley, 317 Md. 428, 434 (1989). “[A]ttorney’s fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” Id. at 434–35 (quoting Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980)). “[D]ue process requires ‘at a minimum, that before sanctions are imposed pursuant to Rule 1-341, there must be notice and an opportunity to respond.’” Fowler v. Printers II, Inc., 89 Md.
App. 448, 482 (1991) (quoting Zdravkovich, 323 Md. at 209).
We first disagree with the Appellant that the February 1, 2023 Order was issued sua sponte. The February 1 Order was in response to orders on November 18 which awarded the Appellee attorney’s fees for having to defend against two of the Appellant’s motions which the circuit court denied. The circuit court then requested an affidavit of fees from the Appellee, which was filed on December 2, 2023. The court then awarded the amount of fees that were requested in the affidavit. The Appellant was on notice that these filings were made.7 The parties were served on November 18, all parties were served online with the Order striking Appellant’s Motion to Conform Distribution and awarding Appellee attorney fees upon submission of the fee affidavit within fifteen days. Likewise, on February 2, all counsel of record were served with the circuit court’s order and Appellant was aware of this because she filed a motion for reconsideration the following day. The order was not sua sponte and the Appellant was on notice of the filings that led to these orders, so there was no due process violation from the order itself.
Next, we turn to whether a hearing was required in this case. The Appellant had requested a hearing in the Motion to Confirm Distribution filed on October 7, 2022. The Maryland Rules provide that “[e]xcept when a rule expressly provides for a hearing, the court shall determine in each case whether a hearing will be held, but the court may not render a decision that is dispositive of a claim or defense without a hearing if one was requested as provided in this section.” Md. Rule 2-311. In Fowler v. Printers II, Inc., this Court held that a request for sanctions under Rule 1-341 was not a “a ‘claim’ or ‘defense’ involving a cause of action,” but instead “one involving an argument on matters collateral to that cause of action.” 89 Md. App. 448, 486 (1991). As a result, the trial court was permitted to deny a motion for sanctions without holding a hearing. Id.
Here, we similarly find that the February 1 Order was on a matter collateral to the cause of action. After the home was sold, the remaining issue was on the distribution of the proceeds from the sale. The Appellant filed additional motions on that issue, which the Appellee argued to the court should be dismissed because the motions: (1) contained facts not in the record and not supported by an affidavit; (2) did not state with particularity the authorities in support of each ground; and (3) was completely void of authorities. The Appellee explained that because the Appellant’s motions were filed without substantial justification the Appellee should be awarded reasonable counsel fees incurred for defending against the motions.
While a hearing may have been helpful or appropriate to fully flesh out the issues, the court was not necessarily required to hold an evidentiary hearing to satisfy due process. See Wagner, 109 Md. App. at 24 (stating “[w]ith respect to legal issues, due process does not even necessarily require that parties be given an opportunity to present argument”); see also Drolsum v. Horne, 114 Md. App. 704, 713 (1997) (stating that due process is met when “there is at some stage an opportunity to be heard suitable to the occasion”) (citations omitted). The circuit court had sufficient information to evaluate the motion in the absence of a hearing
since the issues the Appellee raised could be evaluated from the motions themselves. We hold there was no due process violation from the circuit court’s decision to rule on the issue of attorney’s fees in the absence of a hearing.
There was no due process violation in the manner that the trial court handled the award of attorney’s fees that arose out of the Appellant’s deficient motions.
Violation of Res Judicata
Appellant argues that the order also violated the principle of res judicata by awarding attorney’s fees when they were previously denied at the January 5, 2023 hearing. Appellant argues that the January 5 hearing was a final hearing and the attorney’s fees were denied in a written order.
Res judicata bars relitigating claims when there was a prior final judgment in which “the parties, subject matter[,] and causes of action are identical or substantially identical as to issues actually litigated and as to those which could have or should have been raised in the previous litigation.” Anand v. O’Sullivan, 233 Md. App. 677, 696 (2017) (quoting Anne Arundel Cnty. Bd. of Educ. v. Norville, 390 Md. 93, 106–07 (2005)). The elements of res judicata are: “(1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; (2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and, (3) that there has been a final judgment on the merits.” Id. at 696 (quoting Norville, 390 Md. at 107).
We need not discuss this issue in greater depth because, as previously discussed, the February 1 Order did not relitigate or redecide anything related to the January 5 Order 8 but rather resolved the attorney’s fees payment ordered in the earlier November 18 Order. There was no previous litigation at issue but instead the parties and the court continued to respond to orders made during the current action. Therefore, res judicata does not apply to the facts at hand nor does it bar the February 1 Order.
Violation of Statute Governing Attorney’s Fees
A. Party’s
Contentions
Appellant also claims that the award of attorney’s fees was made without applying the required statutory criteria to grant the award. Of course, this argument depends on the whether the trial judge relied on Md. Code, Family Law § 8-214 in granting the attorney’s fees award. Beyond not specifically discussing the factors, Appellant argues that the fee award number did not properly determine the specific amount to award, but adopted the Appellee’s proposed number.
B. Standard of
Review
An award of attorney’s fees is subject to the trial court’s discretion. David A. v. Karen S., 242 Md. App. 1, 23 (2019) (citing Petrini v. Petrini, 336 Md. 453, 468 (1994)).
“Ordinarily, an appellate court will affirm a finding of bad faith or substantial justification unless ‘it is clearly erroneous or involves an erroneous application of law.’” State v. Braverman, 228 Md. App. 239, 260 (2016) (quoting Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 267 (1991)); see also Frankel v. Frankel, 165 Md.
App. 553, 590 (2005) (citing Gravenstine v. Gravenstine, 58 Md. App. 158, 182 (1984)) (“An award of attorney’s fees in a divorce action should not be modified by the appellate court unless the award was arbitrary or clearly wrong.”).
C. Analysis
The attorney’s fees at issue here stem out of a lawsuit for the disposition of the parties’ family home. Section 8-214 of the Family Law statute provides a court two avenues for awarding attorney’s fees in cases involving property disposition in a divorce.9 First, under Family Law § 8-214(b), the statute states that “[a]t any point in a proceeding under this subtitle, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding,” with “reasonable and necessary expense[s]” including attorney’s fees. Md. Code, Fam. Law § 8-214(a)–(b). Before a court orders that payment, the court “shall consider” two enumerated factors: “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” Id. at § 8-214(c). Alternatively, under Family Law § 8-214(d), if the court finds there was an absence of substantial justification and the court does not find “good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.” Id. at § 8-214(d).
“The proper exercise of such discretion is determined by evaluating the judge’s application of the statutory criteria set forth above as well as the consideration of the facts of the particular case. Consideration of the statutory criteria is mandatory in making the award and failure to do so constitutes legal error.” Petrini v. Petrini, 336 Md. 453, 468 (1994) (emphasis added) (citations omitted); see also Huntley v. Huntley, 229 Md. App. 484, 489 (2016) (quoting Ledvinka v. Ledvinka, 154 Md. App. 420, 432 (2003)) (stating the same). The court “does not have to recite any ‘magical’ words so long as its opinion, however phrased, does that which the statute requires.” Collins v. Collins, 144 Md. App. 395, 447 (2002) (referring to Family Law § 12-103(b)) (citation omitted). “When a court has abused its discretion in imposing attorney’s fees, the appropriate remedy is to vacate the award and remand for further proceedings to develop the factual basis for how the court chooses to exercise its discretion.” Christian, 459 Md. at 33.
This Court in Flanagan v. Flanagan, 181 Md. App. 492 (2008), provided an illustration of what is not acceptable in awarding attorney fees under Family Law § 8-214(b). In Flanagan, the appellant appealed, among other things, the court’s awarding of attorney fees to his ex-wife (appellee) on the basis that his financial resources and needs were not considered in accordance with § 8-214(c). Id. at 545–46. Specifically, the appellant argued that the court “failed to consider the financial circumstances of the parties in full and accurate detail,” including that Appellee earned more money than Appellant. Id. at 544. This Court found that the trial court made no express findings as to the reasonableness of the fees, nor which actions, if any, were substantially justified [or not], nor any findings on the parties’ ability to pay. Id. at
546. As a result, the case was vacated and remanded to the circuit court. Id.; see also Carroll Cnty. Dep’t of Soc. Servs. v. Edelmann, 320 Md. 150, 577 A.2d 14 (1990) (describing how an order assessing attorney’s fees was entered “without the benefit of a hearing and without any evidence as to [father]’s financial status” and remanding the case for further proceedings).
Turning to this case, the Appellant argues the circuit court never made findings of fact about the economic status of each party. In her briefs, the Appellant points out that the Appellee makes three times as much as her. She argues the November 18 Order (that resulted in the February 1 Order on appeal here) made no findings of fact but simply granted Appellee’s Motion to Strike Appellant’s motions and awarded him attorney’s fees. The November 18 Order does state that attorney fees were awarded for Appellant “having to defend against Defendant’s Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee.” However, as in Flanagan, the court made no express findings on the financial status and needs of the parties, nor on whether Appellant had substantial justification in pursuing her motions. As consideration of the statutory criteria is mandatory, if the circuit court was proceeding under § 8-214(b), the failure by the trial court to do so on the record would constitute legal error. Petrini, 336 Md. at 468.
The basis of the court’s award is unclear whether it was granting an award under Family Law § 8-214(b) or perhaps under Family Law § 8-214(d), which requires a finding of
an absence of substantial justification for prosecuting or defending the proceeding, or under Maryland Rule 1-341, which also requires a finding that the party’s conduct was in bad faith or without substantial justification. Regardless, the trial court made no findings on the record about an absence of substantial justification or bad faith that would justify an award under the other statutes or rules. Without a rationale about the award of attorney’s fees on the record this Court “has no means to review a court’s exercise of discretion to award attorney’s fees” and no means to determine on which statute or rule the circuit court’s opinion was based. Christian, 459 Md. at 34. Given that these different bases have differing requirements for the findings needed to make an award of attorney’s fees or if those findings need to be on the record (and in the court’s order there were no findings made to justify the award of attorney’s fees), we must vacate the February 1, 2023 Order and remand the case to allow the circuit court to elucidate further as to the basis for its ruling. On remand, the lower court should make clear under which regulatory or statutory authority it was acting in granting an award of attorney’s fees to Appellee and, where required, make any express findings as necessary.
CONCLUSION
Accordingly, we vacate the February 1, 2023 Order granting $2,926.50 in attorney’s fees to the Appellee and remand the judgment of the Circuit Court for Howard County for further proceedings not inconsistent with this opinion.
ORDER OF FEBRUARY 1, 2023, BY THE CIRCUIT COURT FOR HOWARD COUNTY GRANTING ATTORNEY’S FEES OF $2,926.50 TO APPELLEE, VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY APPELLEE.
FOOTNOTES
1 The Appellant’s questions, as originally presented, were:
I. Whether the trial court erred in entering four “post-judgment” Orders dated February 1, 2023, February 27, 2023, June 23, 2023, and June 23, 2023, without affording the Appellant her procedural due process rights to notice, an opportunity to be heard, and an impartial tribunal.
II. Whether the “post judgment” Order dated February 1, 2023 (awarding attorney fees to the Appellee which had already been denied at the January 5, 2023 “final” hearing), violates the principle of res judicata and should, therefore, be reversed.
III. Whether, assuming arguendo, that the “post-judgment” Order dated February 1, 2023 is not res judicata,[] the Order should be reversed because the trial court failed to consider the criteria for making an award of attorney fees in a family law case that does not have issues relating to minor children (such as support, custody, or visitation).
IV. Whether the trial court erred in entering the “post-judgment” Order dated February 27, 2023 (denying Appellant’s Petition for Contempt, etc.) on the bases [sic] that the case was “closed” and the issue of contempt was “moot.”
V. Whether the “post judgment” Order dated February 27, 2023 (denying Appellant’s Petition for contempt, etc.) should be reversed and remanded to the trial court for a two day, evidentiary hearing before a specially assigned trial court judge after the Appellant has had an opportunity to file a Supplemental Petition for contempt, etc., propound discovery, and process the information needed to calculate the arrears.
VI. Whether the trial court erred in entering the two “post-judgment” Orders dated June 23, 2023 when the first of the two Orders was based on Motion that had been superceded [sic] by another Motion and was based on the erroneous premise that the trial court could, sua sponte, exercise its revisory power seven (7) months after the “final” hearing.
VII. Whether the trial court erred in entering the two “post-judgment” Orders dated June 23, 2023 when the second of the two Orders scheduled a Show Cause hearing on the Appellant’s Petition for Contempt, etc. for one-half hour in a complex matter that could not be properly heard in less than a two (2) day hearing. This Court will not address questions four through seven.
2 Appellant claims that following their divorce, the parties had a phone conversation in which Appellee told her that he would pay child support in the form of mortgage payments, reasoning that it would be roughly the equivalent. The parties carried on this way until the Summer of 2021. Appellant said neither party realized that paying child support through indirect mortgage payments was wrong. She further stated that she didn’t realize that Appellee was underpaying her by at least $700 a month through their arrangement.
3 The November 18, 2022 Order states:
UPON CONSIDERATION of the Defendant’s Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee and Plaintiff’s Opposition thereto, it is thereupon this 11/18/2022, by the Circuit Court for Howard County, Maryland:
ORDERED, that the Defendant’s Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee, shall be and is hereby DENIED; and it is further ORDERED, that the Plaintiff shall be and is hereby awarded his reasonable counsel fees incurred in having to defend against the Defendant’s Motion for Temporary Stay of the Distribution of the Net Proceeds of the Sale of the Former Family Home by the Court-Appointed Trustee, with the amount of reasonable counsel fees owed by the Defendant to the Plaintiff to be determined upon the submission of a fee affidavit, which shall be submitted to this Court within fifteen (15) days.
(emphasis added).
4 February 1 is the date that the order was signed, but the order was entered on February 2, 2023. For consistency with the Appellant’s arguments we will also refer to this order by the date of its signing.
5 The appeal was initially filed on March 27, 2023, but the filing was deficient, so it was refiled on April 17, 2023.
6 The statute reads in full:
“Reasonable and necessary expense” defined
(a) In this section, “reasonable and necessary expense” includes:
(1) suit money;
(2) counsel fees; and (3) costs.
Order to pay
(b) At any point in a proceeding under this subtitle, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
Required considerations
(c) Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.
Party to pay
(d) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.
Reimbursement
(e) The court may award reimbursement for any reasonable and necessary expense that has previously been paid. Md. Code, Fam. Law § 8-214.
7 The Appellant does not allege that there was error in online service of any of the documents or that there was a failure of service. “On the effective date of filing, the MDEC system shall electronically serve on registered users entitled to service all other submissions filed electronically.” Md. Rule 20-205(d)(1). The Appellant was on notice of these filings and had the ability to respond in any manner permitted by the rules.
8 We note that no transcript for the January 5, 2023 proceeding was provided to the Court. The Appellant’s brief asserts that the denial was for the Appellee’s request for the attorney’s fees for the entire case. While the hearing sheet for that day states that attorney’s fees were denied, this Court has no information on whether the denial for the attorney’s fees impacted the November 18, 2022 Order. Given that lack of definite information we will proceed under the assumption that the January 5, 2023 hearing did not contain relevant information to this case.
9 In her brief, Appellant refers to Family Law Section 12-103, however, we find Section 8-214 more authoritative over attorney fees in this matter since this appeal does not involve child custody or child support but instead the property disposition of her family home. There are “four statutes in the Family Law Article that relates to dissolution of a marriage and authorizes an award of attorney’s fees. See § 7–107 (divorce proceedings); § 8–214 (property disposition); § 11–110 (alimony); and § 12–103 (child custody, support and visitation).” Henriquez v. Henriquez, 185 Md. App. 465, 481 (2009), aff’d, 413 Md. 287 (2010). The legislative history of the various statutes does not indicate an intent to apply different standards before awarding attorney’s fees under any one of them. Id.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 49 (2025)
Custody; modification; material change
Stephanie Martin Krewson-Kelly v.
Matthew Daniel Kelly
No. 2294, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Leahy, J.
Filed: Aug. 29, 2025
The Appellate Court vacated the Howard County Circuit Court’s denial of mother’s motion to modify custody. The circuit court failed to sufficiently consider the child’s welfare in determining there was no material change in circumstances that may warrant modification of custody.
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..
As the divorce proceeding was ongoing, Mother filed a motion for psychological evaluation of Father, alleging, among other things, Father’s “access to, and misuse of, pain medications including those not prescribed to him[.]” The circuit court appointed Dr. Paul Berman, Ph.D., to examine both Mother’s and Father’s mental health and issue a report that includes the results of psychological testing, any diagnoses or treatment recommendations, and an explanation of the impact, if any, of the parties’ mental health on parenting.
In this timely appeal, we highlight once again the principle that the best interests of the child is the paramount consideration in all child custody cases. Appellant Stephanie Martin Krewson-Kelly (“Mother”) challenges the judgments of the Circuit Court for Howard County denying her motion to modify custody and petition for contempt against Appellee Matthew Kelly (“Father”) following a two-day merits hearing. Mother presents four questions for our review,1 which we consolidate, rephrase, and reorder as follows:
I. Did the circuit court abuse its discretion in denying Mother’s Petition for Contempt?
II. Did the circuit court err or abuse its discretion in denying Mother’s motion to modify custody?
First, we conclude that there is no appellate jurisdiction to review the circuit court’s denial of Mother’s petition for contempt because, in a contempt case, the right of appeal is not available to the party who unsuccessfully sought to hold the other party to be in contempt. Second, we hold that the circuit court erred in denying Mother’s motion to modify custody, as the court failed to sufficiently consider the child’s welfare in determining there was no material change in circumstances that may warrant modification of custody. Accordingly, we dismiss in part and vacate in part.
BACKGROUND
Divorce Proceeding and Dr. Berman’s Evaluation
Mother and Father were married in March 2013. Their minor child, W., was born in April 2012. In December 2021, Mother filed a complaint for absolute divorce, custody, child support, and other relief, and Father subsequently filed a counter-complaint and an answer. Years of litigation followed.
Dr. Berman completed his psychological evaluation of the parties and issued a report on July 10, 2023. In the section titled “Diagnostic Impression[,]” Dr. Berman stated that Mother did “not meet criteria for any DSM-5 mental health diagnosis” but showed signs of “complex traumatic stress disorder[,]” which he explained as “[a] research and clinically based disorder which is not yet included in any diagnostic manual.” In the same section, Dr. Berman found that Father meets criteria for the DSM-5 diagnosis of “Other Substance Use Disorder” involving Kratom.2
In other parts of his report, Dr. Berman explained his diagnostic impressions, noting that there are “significant concerns about [Father’s] use of Kratom” and that “he may have developed a physical dependence upon Kratom.” According to Dr. Berman, Father reported that he had “been taking Kratom for five years” and used it “3-4 times per day” for pain relief. Mother also reported that Father spends about “$800 a month on Kratom” and when he does not use Kratom, “[h]e would get very irritable and short tempered . . . [i]n front of [W.]” Nonetheless, Dr. Berman concluded that the “[r]esults of the evaluation do not support [Mother’s] view that [Father] is unstable or that he is a ‘bad’ and ‘dangerous[’] person[.]”
Dr. Berman did not record any diagnostic impressions regarding either party’s alcohol use. Still, Dr. Berman found that the results of his evaluation raised “concerns about [Mother’s] alcohol use” and “significant concerns about [Father’s] alcohol use,” even though he could not conclude whether Father had an alcohol abuse problem. Although Father reported that he had been drinking “1-3 glasses of wine or 1-3 beers” three or four times per week, with “a little more on the weekend”—a pattern he stated began prior to the parties’ separation—Dr. Berman noted that “individuals undergoing court- ordered psychological evaluations rarely self-report alcohol problems.” As a result, Dr. Berman concluded that both parties were “at high risk for developing alcohol use problems” and advised that they “should remain aware of their alcohol use and seek consultation with a
professional if their alcohol use increases.”
Based on these observations, Dr. Berman made the following “Recommendations” in his report. First, Mother “would benefit from individual therapy[,]” including “working on developing additional coping skills so that she can more effectively regulate her reactions to current stressors” and “separate thoughts and feelings related to current stressors from those that may be childhood-based.” Second, Mother “would benefit from a consultation with a psychiatrist to assess whether medication could be useful to help her better regulate and contain her thoughts, feelings, and behaviors.” Third, and finally, Dr. Berman suggested that Father “would benefit from an assessment with a pain management specialist and/or substance use therapist with specific expertise working with individuals who regularly use Kratom.”
Judgment of Absolute Divorce
On September 7, 2023, the court entered a Judgment of Absolute Divorce (the “JAD”). Prior to the entry of the JAD, the parties had executed a partial marital separation and property settlement agreement (the “Property Agreement”) on August 9, 2023, and a custody agreement (the “Custody Agreement”) on August 30, 2023.
The Property Agreement required Mother to pay Father the sum of $160,000 on a schedule that extended into the year 2027. The Custody Agreement provided that the parties would have joint legal custody, with Mother having tie-breaking authority and primary physical custody. Among other things, the Custody Agreement detailed Father’s visitation schedule for the child’s vacation and holidays. It also noted that Mother planned to relocate with W. to Michigan “upon the execution of this Agreement” and outlined a weekly visitation schedule contingent upon Father’s relocation “to within twenty (20) miles of Mother’s [Michigan] residence[.]” Further, the Custody Agreement provided as follows:
1.8 Dr. Berman Recommendations. The Parties hereby agree that they will each strictly abide by the recommendations set forth in Dr. Berman’s Psychological Evaluation Findings and Recommendations, dated July 10, 2023, specifically related to page 44, Section XVII, Diagnostic Impression and page 45, Section XVIII, Recommendations. The Parties further agree they will each provide proof directly to the other party, in writing, to confirm their assessment, consultation or enrollment related to Dr. Berman’s recommendations.
Both the Custody Agreement and the Property Agreements were incorporated, but not merged, into the JAD. Consistent with the Custody Agreement, the court awarded both parties joint legal custody, giving Mother primary physical custody and tie-breaking authority, and providing Father regular visitation with W.
December 26, 2023
In October 2023, Mother relocated with W. to Plymouth, Michigan. Father remained in Maryland. Per the Custody Agreement, Father was to have visitation with W. beginning “December 27th through two days before the end of [W.’s]
Christmas/Winter break from school[.]” Accordingly, in the morning of December 26, 2023, Father flew to Detroit to pick up W. at the airport. Father then returned to Maryland with the child, arriving at BWI airport between 8:00 and 9:00 p.m. Mother also drove to Maryland that same day, arriving at Ellicott City around 7:30 p.m., and had dinner with Steven Budorick, her former co-worker, and his wife.
A little before midnight, as Mother was about to leave Budorick’s home, she received a FaceTime call from W. Both Mother and Budorick later testified that they saw that the child was in distress. W. told Mother, “Dad won’t wake up.”
When Mother asked him to clarify, W. turned his phone to show Father, who appeared “sort of collapsed” and was “lying diagonally on the bed, not under the covers.” W. slapped Father in the face multiple times to wake him up, but Father did not respond. Father woke up the next morning and found “a barrage of e-mails” and text messages from Mother.
Motion to
Modify Custody and Petition for Contempt
Shortly thereafter, on December 28, 2023, Mother filed a “Complaint to Modify Custody,” requesting sole legal and primary physical custody of W., and seeking to suspend Father’s in-person visits until he “successfully completed an assessment with a pain management specialist and a substance abuse [] therapist[.]” She also asked the court to order Father to undergo “hair follicle testing for both drugs and alcohol” before his scheduled visitation could resume. Mother asserted that Father had failed to comply with Dr. Berman’s recommendations and “used illicit substances” on December 26 while having W. in his care, placing the child “in imminent harm to the point that [his] health, safety, and welfare are at substantial jeopardy.”3
About six months later, on June 14, 2024, Mother filed a petition for contempt against Father, reiterating that Father had “failed to comply with any of the mutually agreed upon terms of the Custody Agreement related to Dr. Berman’s recommendations.” Father filed a response, countering that he had been “evaluated by a pain management specialist, namely Malcolm Moses-Hampton, MD, at Clearway Pain Solutions” and attached a “copy of the e-mail [he] received from Clearway Pain Solutions, confirming his appointment for August 15, 2023[.]” Father further asserted that he had provided the email to Mother, as proof of his compliance with Dr. Berman’s recommendations. Father filed a separate petition for contempt against Mother, alleging, among other things, that she failed to pay him $20,000 by June 1, 2024, as required by the Property Agreement.
Contempt Hearing and Magistrate’s Recommendation
On August 28, 2024, the parties appeared for a show cause hearing on the parties’ contempt petitions against each other. Following the hearing, the magistrate issued a report and recommendations, recommending that Mother’s petition for contempt be granted. The magistrate also recommended that Father’s petition for contempt be granted regarding Mother’s failure to pay $20,000. Specifically, the magistrate found that Mother had proven, by a preponderance of the evidence, that Father had “willfully violated the [JAD] by
not complying with Dr. Berman’s recommendations.” He credited Mother’s testimony that she saw Kratom in Father’s car and the magistrate noted that Father admitted to having used Kratom on the day of the hearing. The magistrate also observed that Father appeared “uneasy” and “dehydrated” and that “his movements were erratic and spasmodic[,]” although those observations were “not terribly disturbing and [could] be explained through innocuous explanations.”
As a “sanction,” the magistrate recommended that Father forfeit two $20,000 payments—one due June 1, 2024, and the other due December 31, 2024—from the Property Agreement. To purge the contempt, the magistrate recommended that Father provide documentation demonstrating “that he has obtained an assessment from a pain management specialist and/or substance use therapist with specific expertise working with individuals who regularly use Kratom within the next 60 days.” Father subsequently filed exceptions, arguing, in relevant parts, that he had not willfully violated the Custody Agreement because he “believed he had complied with [Dr. Berman’s recommendations] when he was assessed at Clearway Pain Solutions.”4
Merits Hearing
On January 2 and 3, 2025, the parties appeared for a twoday merits hearing on Mother’s motion for modification and Father’s exceptions to the magistrate’s report and recommendations.
The Circuit Court Initially Sustained the Magistrate’s Contempt Finding
At the outset, the court heard the parties’ arguments on Father’s exceptions and found that the magistrate’s finding of contempt was supported by evidence. The court highlighted that the Custody Agreement not only required Father to consult with a pain management specialist but also to provide Mother with proof of such consultation in writing. The court then noted that despite these requirements, Father only “gave [Mother] a receipt that he went to a pain management specialist” and that receipt “in no way tells [Mother] that [he] went to talk about the Kratom.”
Although the judge sustained the magistrate’s finding of contempt at that point in the proceeding, the court reserved on a final ruling on the matter, noting that “the purge is to provide written proof to [Mother]” and “[i]t may all be moot after I hear the Modification.”
Testimony on Custody Modification
After denying Father’s exception to the magistrate’s contempt finding, the court turned to address Mother’s motion to modify custody. Budorick and Mother testified to the December 26 incident as summarized above. Mother explained that she was “stay[ing] local” that night, “in case [she] needed to get [W.] early” because she “always had concerns about [Father’s] drinking.” Mother stated that she called W. back when she came back to the hotel from Budorick’s home, staying on the phone with W. for hours. When asked if she saw whether Father’s bed was made during the FaceTime call with W., Mother stated that she was unable to see it “because it was just the light . . . from [W.’s]
cell phone” but emphasized that “it was clear that [Father] was still dressed . . . from what I could see, from . . . belly button up he was dressed in just normal clothes.” Mother stated it was “upsetting to see someone like that” and W. was “clearly panicked[ ] and upset” when calling her.
Mother also testified about Father’s Kratom use during their marriage. Mother stated that Kratom “makes him calm” but “when he’s . . . starting to go into withdrawal . . . he starts sweating, and gets agitated, and jerky, and he sleeps very heavily.” She also stated that use of Kratom made Father “less reliable” as “[h]e would sleep for very long periods of time” and not wake up. Mother recounted an incident in early 2016, where she repeatedly called Father during a work trip, but he did not answer. Although Mother was still unaware of Father’s substance use at the time, this incident led her to believe that she could no longer rely on him to care for W. when she traveled. As a result, Mother stated that she never left W. alone with Father for extended periods during their marriage.
Mother expressed that she believes it is in W.’s best interests for the court to modify the Custody Agreement and “put in place safeguards for when [W.] is with his father during the times prescribed by the Custody Agreement” by requiring Father to “submit to drug tests at a third-party” because “if someone is drunk or high on substances . . . accidents are more likely to happen.” Mother also stated that she “was very unhappy with th[e] Custody Agreement” because she wanted “Kratom and alcohol use to be addressed in it.” Nonetheless, while acknowledging that there was no “overt” prohibition on Father’s Kratom use in the Custody Agreement, Mother maintained that “the whole point of having him comply with Dr. Berman’s Recommendations was for him to get help” and “[t]o get off of Kratom, [which] he’s addicted to[.]” Similarly, although Mother admitted that Dr. Berman’s recommendations did not contain any prohibition on Kratom, she stated that it was “implied that [Father] should not be taking Kratom.”
Father testified that he began using Kratom in 2016 for his neck and back issues and still uses it for pain “as needed.”
Father testified that he visited Dr. Moses-Hampton and discussed Dr. Berman’s evaluation and recommendations with him. Father’s medical record from Clearway Pain Solutions was entered into evidence and provided, in relevant part,5 that “Father presents today to discuss his chronic pain treatment by recommendation of his psychologist, presiding over his divorce.” The record noted that Father had a medical history that was “significant” for “chronic low back pain,” and was following up for “management of chronic pain with medication management.” The record also noted: “[d]iscussed other treatment options including modalities such as PT/OT, chiropractic, and acupuncture, as well as interventional procedures that would be beneficial in managing patient’s chronic pain.”
Following the visit, Father did not get anything in writing from Dr. Moses-Hampton or Clearway Pain Solutions other than a receipt, because, Father testified, Dr. Moses- Hampton “was not prescribing [him] anything[.]” Nonetheless, Father stated that he believed the receipt to be “sufficient evidence” of his compliance with Dr. Berman’s recommendation.
After the magistrate found him in contempt, Father revisited Dr. Moses-Hampton for a 20-minute appointment in December 2024, and the doctor gave him the following note :
To whom it may concern:
Patient was here today for continued pain management consultation. We continue to support his effective treatment with non-narcotic treatment. Options include the daily use of kratom. Father admitted that he did not have any follow-up appointments with Dr. Moses- Hampton, explaining that “if you go through pain management[,] they prescribe you opioids . . . . [T]hat’s not . . . the path that I choose to go down.” When the court asked why he continued to use Kratom, Father answered:
The first part of it is, at no point did I ever feel that it was going to come to this hyper awareness. So if I’m, if I have a choice between visiting my son and taking Kratom I’m, I will quit Kratom. * * *
And, I’ve been through this pain management system for 20 years. It is not pretty if we are being prescribed opioid medication is awful. * * *
There’s a lot of side effects to that, okay. I’ve done physical therapy, I’ve done shots in my back, I’ve tried anti-inflammatories. I ate Aleve, I took Aleve for years, and it started to take a toll on my stomach.
This is a last resort alternative that happens to work. And at no point in my entire life did I believe that the custody of my child was going to hinge on whether or not I take an anti-inflammatory. At no point.
Regarding his use of alcohol, Father testified that he drinks socially and has “no set schedule[.]” Specifically, Father stated that he drinks wine when he “cook[s] . . . one big meal during the week” and “probably once, maybe twice on the weekends.” Father also stated that he could not recall the last time he drank in excess.
During the hearing, Mother’s counsel introduced Father’s Wells Fargo bank statements into evidence. Father’s counsel objected, but the court overruled, stating, “If nothing else[,] it goes to the best interest of the child in the event that I do find a material change in circumstance.” The statements showed multiple charges at taverns, liquor stores, and smoke shops. Father acknowledged having purchased Kratom from multiple smokes shops. The statements also showed, for example, that Father spent $42.24 at a liquor store on January 16, 2024, then spent over $100 at the same liquor store the next day. That same day, Father had a separate charge of $130.87 at a tavern. When asked about this $130 charge, Father explained that he “probably spent close to . . . $85.00 on wings” and about $50 on alcohol, stating he “was there with a friend.”
Father also testified about the December 26 incident. He denied using any alcohol or substances that day, although he “may have taken Aleve” in the morning. Father explained that it was “a heavy travel day” for him, as he left home at 5:00 a.m. and took four flights—two on the way to Michigan
and two on the way back—to bring W. from Michigan. Father testified that they arrived at Father’s home in Baltimore County between 9:30 p.m. and 10:00 p.m., and he let W. “stay up late, probably midnight[.]” Father stated that he “probably went right to bed” after W. fell asleep “after midnight . . . maybe 1:00.” Father woke up the next morning at around 8:30 a.m., but he “decided to ignore” Mother’s e-mails until later that day.
Dr. Berman testified that he recommended Father obtain an assessment with a pain management specialist or a substance use professional because Father met “diagnostic criteria in the DSM 5” for substance use disorder involving kratom. Dr. Berman explained that Kratom “binds to the opiate receptors in the brain” and may involve withdrawal symptoms similar to those involving opioid withdrawal, such as “irritation, temper issues, agitation” and possible “sedation” as well as “fainting spells.” Dr. Berman noted that the FDA recommends people not use Kratom and that it was “important for [Father] . . . to have an awareness of what he was taking[,]” make informed decisions about his pain management, and “get information about the dependence that he had developed[.]” Although Dr. Berman stated that he wanted Father to have “[a] thorough discussion with . . . [s] omeone who had access to all of the information available to allow the person . . . to make a complete assessment[,]” he clarified that the person did not need to be a medical doctor or review Father’s medical records, so long as that person had “some experience in dealing with pain management . . . [e]ven if it’s not Kratom[.]” Dr. Berman also clarified that he did not recommend a total prohibition on Kratom.
The Circuit Court Announced Its Ruling
After the evidence concluded, the parties’ counsel presented closing arguments. Mother’s counsel highlighted Father’s extensive purchases of Kratom and alcohol as shown in his Wells Fargo bank statements. Following the closing arguments, the circuit court announced its rulings on the record, denying both Mother’s motion to modify custody and her petition for contempt.
Regarding Mother’s petition for contempt, the court found that although Father had been found in contempt by the magistrate, he was “no longer in contempt as of this moment.” The court explained:
Contempt is a very technical procedure. We can’t find him in contempt for what Dr. Berman meant to say. We can find him in contempt if he didn’t comply with what the Court Order says.
In this case we have the parties[‘] custody agreement of August 30th, 2023, incorporated into the [JAD], September 7th, 2023. At this point, -- and the contempt that I found was not necessarily that he hadn’t done the consultation but he hadn’t provided it to [Mother] and certainly she has a copy of it now. Was it exactly what Dr. Berman had in mind? No, but contempt only lays where the alleged contemptnor [sic] is on notice of the conduct that will place him in jeopardy of being found in contempt. And the plain words say, do a consultation with someone who understands
Kratom.
He tells me he gave the report, the report does indicate that he was sent there because of the psychologist who presided over his divorce case, with that language making the Court giggle. But certainly the psychologist does not preside over the divorce case, the Court does. So he has his opinions I have mine.
So I find at this point, [Father] is no longer in contempt of Court and so the Order that will be entered will be for the remainder of the Magistrate’s Recommendations and not for contempt against [Father] because he has, he is no longer in contempt as of this moment.
(Emphasis added).
Turning to Mother’s motion to modify custody, the court found no material change in circumstances that warranted modification of custody. The court determined that the magistrate’s finding of contempt itself was not a material change in circumstances, noting that “in fact looking back, [Father] did what he was supposed to do but he didn’t give the documentation” and “[n]ow [Mother] . . . knows that he consulted.” The court also found that the December 26 incident did not amount to a material change of circumstances, stating:
So the second alleged change is the incident of December 26th, 2023. And you know, it’s a Court of law, we operate on facts and so I’m looking at it and what do I know that’s not disputed about December 26th, 2023. I know that [F]ather got on an airplane and went to Detroit and he tells me he had a layover on the way there, so there were two flights to Detroit, and there were two flights back. And he told me he started at 5:00 in the morning, got home at 9:0[0] in the evening. And I know that he has significant back pain.
And I -- her testimony that at 11:30 to 12:00 and it’s slightly different in the Complaint for the Emergency, I think that was 12:30 to 1:00, there’s this phone call from [W.] to his other [sic] saying he can’t awaken his father. And Mr. Budorick said that he was present and saw over this telephone that [F]ather was laying in I think an unnatural position or an unregular position, I can’t remember the exact word he used, on the bed.
There were certain inconsistencies. And I don’t know if they’re major or minor. [Mother’s motion for emergency hearing] stated that [W.] had called his mother at 12:30 and at 1:00 and then she had not heard from him for ten and a half hours, it specially says that until, 10:30 in the morning. And she was about to call for a welfare check.
Her testimony was that there was this one phone call and then she was on the phone with him for most of the night that’s an inconsistency. I don’t know, I don’t know why.
I am not sure why Mr. Budorick could see [F] ather’s entire body in the unnatural position and [M]other testified that she could only see his face
lit up by the cellphone which would indicate that it was dark in the room. His upper body and could tell that, you know, at least from the waist up he seemed to be dressed. I wonder why the child trying to wake his father up at 1:00 in the morning? And if it was concerning, why did no one call 911 and get an ambulance there. Why did no one come pick up the child or come sit with [W.]until dad was able to wake up? That didn’t happen and why was [W.] still left with dad?
And so the conclusion that I reached factually about all of this, is dad was on four flights starting at 5:00 a.m. ending at 9:00 p.m. He was fatigued. And I will take judicial notice that sitting on an airplane hurts your back when you don’t have a bad back. He probably took his pain reliever. He probably was in agony, and he probably took his pain reliever. And he was fatigued, he took his pain reliever and he went to sleep. I don’t know. You know, and then there’s like the other thing that I would hate to accuse anyone’s child of, of manipulating their parents by saying something that’s not a hundred percent accurate. But they do that sometimes. So I don’t know what all of this is. But when I look at the facts of this case, when I look at the psychological evaluation, there are statements in there about father’s use of Kratom. That he’d spend $800.00 a month on it. [T]hat she testified from the witness stand that when they were married, there were times when she couldn’t wake him up. What happened on December 26th is not different. It’s not different, it’s not surprising, it’s a single incident under an unusual set of circumstances. I’m sure that father does not normally take four flights and spend fourteen hours in airports and airplanes, all of which is troublesome to his back. Have extreme fatigue. It’s an unusual circumstance. That’s consistent with the history of this case that I know from both mom’s -- [M]other’s testimony and from the things that she said to Dr. Berman. It’s not a change in circumstance.
(Emphasis added).
Notably, even though the court found no material change in circumstances warranting modification of custody, it expressed significant “concerns” about Father’s use of Kratom. The court emphasized that it wished it “could [o] rder [Father] to make different decisions about his pain management and to also keep [Mother] informed of those decisions so that her sense of safety for her child’s welfare could be addressed.” The court continued:
That’s why I’m suggesting it to you, not once but twice. This is what you need to do. This is unsafe. You buy it in gas stations and smoke shops. If it was safe, your pharmacist would have it, or your CVS would have it. [Y]ou don’t know what you’re getting. It could be adulterated. It could
be higher strength, lower strength and then that whole risk of these symptoms that start with, what I experienced when I quit smoking, irritability, and crankiness, and an inability to sleep and go all the way to death.
You don’t want your son to experience those things and you don’t want your son -- you don’t want to have that conversation with your son, daddy’s an alcoholic, if I start drinking, you know, you need to do a, b, and c. You don’t want to have that conversation with him, you don’t want [Mother] -- she doesn’t want to have that conversation with him.
So while I’m not allowed to go there because I don’t find a material change in circumstance, I encourage you, do those things. Number one, there’s other things you can do for your pain and nothing’s effective. I like [sic] with a person with chronic pain, I understand.
(Emphasis added). Following the hearing, on January 3, 2025, the circuit court entered two written orders: (1) order denying Mother’s motion to modify custody; and (2) “Order for Contempt” denying Mother’s petition for contempt, granting Father’s petition for contempt “pertaining to nonpayment of a portion of the monetary award[,]” and setting a review hearing for April 18, 2025, to assess the purge provisions regarding Mother’s contempt.
On January 29, 2025, Mother timely noted this appeal. Subsequent to the filing of the appeal, and following the April 18, 2025 review hearing, both Father’s and Mother’s petitions for contempt were dismissed with prejudice by agreement.
DISCUSSION I DENIAL OF PETITION FOR CONTEMPT
Before this Court, Mother contends that the circuit court abused its discretion by denying her petition for contempt because “[t]he factual findings and testimony do not support the trial court’s conclusion that [Father] purged his contempt[.]” In response, Father urges us to dismiss Mother’s appeal from the denial of her contempt petition because (1) she “has no right to appeal her unsuccessful attempt to have [Father] adjudged in contempt[,]” and (2) the circuit court’s order for contempt, which scheduled a subsequent review hearing, does not constitute a “final, appealable judgment.” We agree with Father that Mother has no right to appeal from the denial of her contempt petition.
In Maryland, “unless constitutionally authorized, appellate jurisdiction is determined entirely by statute, and therefore, a right of appeal only exists to the extent it has been legislatively granted.” Mayor & City Council of Balt. v. ProVen Mgmt., Inc., 472 Md. 642, 665 (2021) (internal quotations omitted); see also Maryland-Nat’l Cap. Park v. Smith, 333 Md. 3, 7 (1993) (“The right to take an appeal is entirely statutory, and no person or agency may prosecute an appeal unless the right is given by statute”) (citations omitted). “If no statutory authorization exists, this Court does not have jurisdiction, and we must dismiss the case sua sponte.” Ross Cont., Inc. v. Frederick Cnty., 221 Md. App. 564, 575 (2015) (cleaned up).
Maryland statutes are “structured to confer a broad, general right of appeal, that subsequently is limited by enumerated ‘exceptions.’” Pack Shack, Inc. v. Howard Cnty., 371 Md. 243, 249 (2002). Consistent with this statutory scheme, Section 12-301 of the Courts and Judicial Proceedings Article of the Maryland Code (“CJP”) (1973, 2020 Repl. Vol.) codifies a “general right of appeal” from circuit courts, providing as follows:
Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.
(Emphasis added).
As pertinent to this appeal, the “final judgment” requirement under CJP § 12-301 “does not apply to appeals in contempt cases, which are governed by § 12-304 of this subtitle[.]” CJP § 12-302(b). In turn, CJP § 12-304 states:
(a) Scope of review. – Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action.
(b) Exception. – This section does not apply to an adjudication of contempt for violation of an interlocutory order for the payment of alimony.
The Supreme Court of Maryland has interpreted this statutory language as “clearly and unambiguously limit[ing] the right to appeal in contempt cases to persons adjudged in contempt.” Pack Shack, Inc., 371 Md. at 254. Put differently, in order for a contempt order “to be appealable, [CJP] § 12304 requires the order or judgment to be passed to preserve the power and dignity of the court and to have adjudged the person appealing in contempt of court.” Id. (emphasis added). If either of these prongs are not met, the appeal is not properly before us.6
We hold that Mother does not have a right to appeal because she was the “party who unsuccessfully [sought] to have another party adjudged in contempt.” Pack Shack, 371 Md. at 254. Accordingly, we must dismiss the first issue raised in Mother’s appeal challenging the court’s order denying her petition for contempt because we have no jurisdiction over the claim. See Ross Cont., Inc., 221 Md. App. at 575; see also Md. Rule 8-602(b)(1) (mandating dismissal of appeal “if . . . the appeal is not allowed by [Maryland] Rules or other law”).
II
DENIAL OF MOTION TO MODIFY CUSTODY Parties’ Contentions
Mother next contends that the circuit court abused its discretion in denying her motion to modify custody, arguing that the ruling “was based on clearly erroneous findings[.]” First, Mother argues that the circuit court was clearly erroneous in finding that Father’s “non[-]compliance with Dr. Berman’s recommendation, in conjunction with the totality
of the circumstances, did not constitute a material change in circumstances” because such non-compliance “ultimately impacts . . . and has impacted” W.’s welfare. Second, Mother argues that the circuit court was clearly erroneous in failing to find that the December 26 incident “amount[ed] to a material change in circumstances” and that the court’s findings regarding the incident were “not supported by . . . the evidence presented.” Specifically, Mother emphasizes that she and Budorick both “witnessed th[e] incident and observed [Father] in a nonresponsive state and [W.]’s fear first handedly” and that there was “no indication by the [circuit] court that their testimony was discreditable.” Finally, third, Mother argues that the court abused its discretion in failing to find that Father’s “excessive spending towards Kratom and alcohol since his evaluation with Dr. Berman” constituted a material change in circumstances warranting custody modification.
Father counters that the circuit court properly denied Mother’s motion to modify custody, arguing that “the circumstances alleged to constitute a ‘material change’ were in existence” when the court entered the JAD. First, Father argues that the magistrate’s finding of contempt did not amount to a material change in circumstances because he subsequently complied with Dr. Berman’s recommendations and the circuit court ultimately “determined that it had no authority to enter an order for contempt.” Second, with respect to the December 26th incident, Father argues that the evidence, including Mother’s own testimony, “established that [his] use of Kratom . . . was known to [her] at the time of entering into the Custody Agreement[.]” Because the circuit court “appropriately approached the modification issue by first assessing whether a material change in circumstances had occurred[,]” and because the evidence supported the court’s finding of lack of material changes in circumstances, Father argues that the circuit court did not abuse its discretion in declining to modify custody.
Legal Framework Standard of Review
When reviewing a court’s child custody determinations, we utilize three interrelated standards of review. Kadish v. Kadish, 254 Md. App. 467, 502 (2022) (citing In re Yve S., 373 Md. 551, 586 (2003)). First, we apply the “clearly erroneous” standard of review to the court’s factual findings. See id. (quoting Yve S., 373 Md. at 586). Under this standard, we “must consider evidence produced at the trial in a light most favorable to the prevailing party[,]” Plank v. Cherneski, 469 Md. 548, 608 (2020) (citations omitted), and “[i]f there is any competent material evidence to support the factual findings of the [circuit] court, those findings cannot be held to be clearly erroneous.” YIVO Ins. for Jewish Res. v. Zaleski, 386 Md. 654, 663 (2005). Second, where the court’s custody determination “involves an interpretation and application of statutory and case law,” we decide “whether the circuit court’s conclusions are ‘legally correct’ under a de novo standard of review.” Barrett v. Ayres, 186 Md. App. 1, 10 (2009) (quoting Walter v. Gunter, 367 Md. 386, 391-92 (2002)).
Finally, if we determine that the circuit court’s “ultimate conclusion” was “founded upon sound legal principles and based upon factual findings that are not clearly erroneous,”
we do not disturb that conclusion absent a “clear abuse of discretion.” Kadish, 254 Md. App. at 502 (citations omitted). An abuse of discretion exists when no reasonable person would take the view adopted by the [circuit] court, or when the court acts without reference to any guiding rules or principles. It has also been said to exist when the ruling under consideration appears to have been made on untenable grounds, when the ruling is clearly against the logic and effect of facts and inferences before the court, when the ruling is clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result, when the ruling is violative of fact and logic, or when it constitutes an untenable judicial act that defies reason and works an injustice.
Velasquez v. Fuentes, 262 Md. App. 215, 228 (2024) (quoting Das v. Das, 133 Md. App. 1, 15-16 (2000)). In addition, “[a] failure to exercise . . . discretion, or a failure to consider the relevant circumstances and factors of a specific case, ‘is, itself, an abuse of discretion[.]’” Cagle v. State, 462 Md. 67, 75 (2018) (quoting 101 Geneva LLC v. Wynn, 435 Md. 233, 241 (2013)).
Custody Modification and “Best Interests” as the Guiding Principle
The term “custody” embraces both “legal” and “physical” custody. Taylor v. Taylor, 306 Md. 290, 296 (1986). The former “carries with it the right and obligation to make long range decisions involving . . . matters of major significance concerning the child’s life and welfare[,]” while the latter “means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” Id.
Section 1-201 of the Family Law Article of the Maryland Code (“FL”) (1984, 2019 Repl. Vol. Supp. 2024) confers jurisdiction on an equity court over, among other things, “custody or guardianship” and “visitation of a child[.]” In relevant parts, FL § 1-201(c) further provides:
(c) In exercising its jurisdiction over the custody, guardianship, visitation, or support of a child, an equity court may:
(1) direct who shall have the custody or guardianship of a child, pendente lite or permanently;
(2) determine who shall have visitation rights to a child;
(3) decide who shall be charged with the support of the child, pendente lite or permanently; [and]
(4) from time to time, set aside or modify its decree or order concerning the child[.]
(Emphasis added).
When presented with a request for custody modification, a circuit court must engage in the following two-step process: “First, the circuit court must assess whether there has been a ‘material’ change in circumstance.” Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012) (quoting McMahon v. Piazze,
162 Md. App. 588, 594 (2005)). This is a “threshold” inquiry, Velasquez, 262 Md. App. at 247 (citation omitted), and “there can be no modification of custody unless a material change of circumstance is found to exist.” Id. (quoting Wagner v. Wagner, 109 Md. App. 1, 29 (1996)). Second, “[i]f a finding is made that there has been such a material change, the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Gillespie, 206 Md. App. at 170 (quoting McMahon, 162 Md. App. at 594). In sum, the party requesting custody modification must “show that there has been a material change in circumstances since the entry of the final custody order and that it is now in the best interest of the child for custody to be changed.” Id. at 171-72 (quoting Sigurdsson v. Nodeen, 180 Md. App. 326, 344 (2008)).
As we recently explained in A.A. v. Ab. D., “[i]n a child custody case, the best interests of the child standard ‘is firmly entrenched in Maryland and is deemed to be of transcendent importance.’” 246 Md. App. 418, 441 (quoting Ross v. Hoffman, 280 Md. 172, 174-75 (1977)). Indeed, our decisional law has long recognized that “the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that.” Kartman v. Kartman, 163 Md. 19, 22 (1932); Taylor v. Taylor, 306 Md. 290, 303 (1986) (“We emphasize that in any child custody case, the paramount concern is the best interests of the child.”). More specifically, we have explained that “[t] he guiding principle of any child custody decision, whether it be an original award of custody or a modification thereof, is the protection of the welfare and best interests of the child.” Wagner, 109 Md. App. at 29 (quoting Shunk v. Walker, 87 Md. App. 389, 396 (1991)) (emphasis added).
Consistent with this principle, we explained that in the context of custody modification, a “material” change means “a change that may affect the welfare of a child.” Wagner, 109 Md. App. at 28. In explaining the intertwined relationship between the “threshold” finding of a material change and the best interests of the child standard, the Supreme Court of Maryland has instructed that,
In the limited situation where it is clear that the party seeking modification of a custody order is offering nothing new, and is simply attempting to relitigate the earlier determination, the effort will fail on that ground alone. In that instance, appellant would be correct in stating that the absence of a showing of a change in circumstances ordinarily is dispositive, and that the chancellor does not weigh the various factors to determine the best interest of the child.
In the more frequent case, however, there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child. Thus, the question of “changed circumstances” may infrequently be a threshold question, but is more often involved in the “best interest” determination, where the question of stability is but a factor, albeit an important factor, to be considered.
McCready v. McCready, 323 Md. 476, 482 (1991).
In A.A. v. Ab. D., we highlighted that “our decisional law has long recognized that a court commits legal error when it makes a decision that impacts a custody determination without first considering how that decision will affect the child’s ‘indefeasible right’ to have his or her best interests considered.” 246 Md. App. at 448 (quoting Flynn v. May, 157 Md. App. 389, 410 (2004)). In order to preserve this “indefeasible right” for the child, the circuit court must view all the relevant facts from the child’s perspective, not from the viewpoint of the parents or the court itself. See In re Adoption of Jayden G., 433 Md. 50, 68 (2013) (“[T]he focus of the inquiry into the child’s best interest . . . must be on the child, not the parent.”) (citations omitted). Therefore, when a court determines whether a change in circumstances was “material,” its analysis must focus on how the change affects (or does not affect) the child.
Analysis
Magistrate’s Finding of Contempt
Mother challenges the court’s determination to deny her motion for modification of custody on two grounds. First, she argues that the circuit court was clearly erroneous when it found that the magistrate’s contempt finding against Father did not constitute a material change of circumstances. Specifically, the circuit court found that Father “in fact . . . did what he was supposed to do” per Dr. Berman’s recommendations when he visited Dr. Moses-Hampton in August 2023. The court also found that Father’s only non-compliance was his failure to provide written proof of his consultation to Mother. Because it was established at the merits hearing that Mother now “knows that [Father] consulted” Dr. Moses-Hampton, the court reasoned that he was “no longer in contempt” under the terms of the magistrate’s contempt order, and therefore, the prior contempt finding did not constitute a material change in circumstances. We conclude that the circuit court’s findings were supported by competent and material evidence in the record. See Plank, 469 Md. at 608. Father’s medical record from Clearway Pain Solutions indicates that he visited Dr. Moses-Hampton on August 15, 2023, “to discuss his chronic pain treatment by recommendation of his psychologist, presiding over his divorce.” Mother does not dispute that Dr. Moses-Hampton is a pain management specialist. Dr. Berman acknowledged that his recommendations did not require Father to seek a Kratom expert, as long as he finds a medical provider with “some experience in dealing with pain management[.]” Moreover, even though the medical record from August 15, 2023, does not specify whether Father told Dr. Moses-Hampton the extent of his Kratom use, Father’s own testimony confirms that he did discuss Dr. Berman’s evaluation—which expressly addressed Father’s physical dependence on Kratom—during the visit.
[THE COURT]: Oh, it does say, “Patient presents to discuss his chronic pain treatment by recommendation of his psychologist presiding over his divorce.” That’s just cute wording. And so you did show him Dr. Berman’s Evaluation and discuss with him?
[FATHER]: Yeah. And the Recommendations. Mother also claims that Father “has not provided sufficient documentation purporting to show compliance in August
2023[,]” but the record seems to belie that claim. True, the magistrate found, and the circuit court agreed, that Father’s receipt from Clearway Pain Solutions did not satisfy the Custody Agreement’s requirement that the parties “provide proof directly to the other party, in writing, to confirm their assessment, consultation or enrollment related to Dr. Berman’s recommendations.” During the merits hearing, however, Father presented his medical record from Clearway Pain Solution, showing that he had consulted Dr. Moses-Hampton on August 15, 2023 per “recommendation of his psychologist, presiding over his divorce.” The medical record was made available to Mother and her counsel, and the circuit court specifically noted that Mother “has a copy of it now.”
At minimum, we cannot say that the circuit court was clearly erroneous in finding that Father made some good-faith efforts to follow Dr. Berman’s recommendations and the Custody Agreement by visiting Dr. Moses-Hampton, a pain management specialist. As we recently explained, “one may not be held in contempt of a court order unless the failure to comply with the court order was or is willful.” Sayed A. v. Susan A., 265 Md. App. 40, 70 (2025) (quoting Dodson v. Dodson, 380 Md. 438, 452 (2004)); see also Royal Inv. Grp., LLC v. Wang, 183 Md. App. 406, 451 (2008) (“Willful conduct is action that is ‘[v] oluntary and intentional, but not necessarily malicious.’”) (quoting Black’s Law Dictionary 1630 (8th ed. 2004)). To be sure, we need not (and would not) discuss whether the circuit court was proper in denying Mother’s petition for contempt, as that issue is not properly before us. See Pack Shack, Inc. v. Howard Cnty., 371 Md. 243, 254 (2002) (holding that the party who unsuccessfully sought to hold the other party in contempt has no right to appeal from the contempt proceeding). Regardless, since competent and material evidence suggests that Father was no longer in contempt by the time the merits hearing concluded, the circuit court was not clearly erroneous in finding that the magistrate’s contempt finding—which was made nearly six months prior—did not represent a material change in circumstances.
December 26 Incident
Mother’s second contention is that the circuit court erred in finding that the December 26 incident did not constitute a material change in circumstances because “the trial court failed to address the impact of the traumatizing December 2023 incident on [W.] . . . and wrongly states ‘what happened on December 26th is not different’ from similar events that transpired during the parties’ marriage.”7 We agree.
As noted above, during the merits hearing, Mother’s counsel introduced Father’s Wells Fargo bank statements into evidence, showing various charges at tavern, smoke shops, and liquor stores—expenses that Father did not dispute—over months. The court admitted those bank statements, stating, “If nothing else[,] it goes to the best interest of the child in the event that I do find a material change in circumstance.”
(Emphasis added). Notably, when ruling that there was no material change in circumstances to warrant modification of custody, the court made no mention of the bank statements. Nor did the court make any finding regarding Father’s continued purchase of—and use of—alcohol and Kratom.8 Overall, instead of determining whether the December 26 incident was a change that affected W.’s best interests, the circuit court focused on whether the incident, as a stand-alone event, was “consistent with the history of this case” that the court had known.
We conclude that the circuit court erred by failing to sufficiently consider how the circumstances affected the child in assessing whether there was a material change in circumstances. It is commendable that the trial court had empathy and understanding for Father’s back pain and his struggle to find effective pain relief. However, even if it is true that Father had passed out during the marriage as Mother alleged, the circumstances for W. changed when the child had to address the situation alone, without another parent or adult in the house. A “material” change means “a change that may affect the welfare of a child.” Wagner, 109 Md. App. at 28 (emphasis added). Therefore, the court’s “threshold” finding of a change in material circumstance is never separate from the overarching, “best interests of the child” inquiry. See McCready, 323 Md. at 482 (“[T]he question of ‘changed circumstances’ . . . is more often involved in the ‘best interest’ determination[.]”).
The circuit court should have considered the December 26 incident in conjunction with other undisputed changes in circumstance—i.e. the parties’ divorce and their custodysharing schedule under the Custody Agreement. See Cagle v. State, 462 Md. 67, 75 (2018) (“[A] failure to consider the relevant circumstances . . . ‘is, itself, an abuse of discretion[.]’”). Mother now lives in Michigan, and the current custody-sharing schedule allows (if not requires) Father, who lives in Maryland, to be solely responsible for making such “day-to-day decisions” for W. during his custodial time, without any safeguards that Mother had provided (or could have provided) during their marriage. In its ruling, the court did not address these changes, and instead simply reasoned that the December 26 incident was “not different” from a prior incident where Mother could not wake Father up during their marriage.
In sum, we hold that the court failed to sufficiently consider the child’s welfare in determining that there was no material change in circumstances that may warrant modification of custody. See Shunk v. Walker, 87 Md. App. 389, 398 (1991). We vacate, rather than reverse, the court’s ultimate determination because on remand the circuit court may still find that it is in the best interests of W. not to modify custody. The court may receive additional evidence, for example, that may convince the court that Father has control of his pain management or will take the necessary precautions to ensure W. will not have to experience another episode similar to what occurred on December 26.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY DENYING MOTHER’S PETITION FOR CONTEMPT DISMISSED; JUDGMENT DENYING MOTION TO MODIFY CUSTODY VACATED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE SPLIT EVENLY.
1 Mother’s questions presented are:
Footnotes
1. Did the Trial Court Err in Denying Appellant’s Complaint to Modify Custody?
1. Did the Trial Court Abuse its Discretion in Denying Appellant’s Complaint to Modify Custody?
2. Did the Court err in Denying Appellant’s Petition for Contempt?
3. Did the Trial Court Abuse its Discretion in Denying Appellant’s Petition for Contempt?
2 According to Dr. Berman’s report:
Kratom is derived from a tropical tree in the coffee family native to Southeast Asia. It can have both stimulant effects and sedative effects, depending upon the individual and the dose. It is not a controlled or regulated substance. It is not considered a typical opioid based on its chemical structure but does bind to opioid receptors and has been found to relieve pain in some individuals. Research has shown regular users of kratom can develop physical dependence. E. 374 fn. 2.
3 That same day, Mother also filed a motion for emergency hearing, alleging that W. called her via FaceTime “[a] few minutes prior to midnight on December 26, 2023, and again at approximately at 1:00 a.m. on December 27, 2023” and told her that he was “scared” because Father was “unresponsive.” Mother further alleged that “[t]his was the last communication that [she] received until 10:30 a.m. later that day” and that she “was extremely worried for” W.’s safety during those ten and a half hours. A family magistrate, however, denied the emergency motion the next day without a hearing, noting that W. was returning to Mother’s custody the day after (December 30, 2023). Mother later testified that the child was returned to her on New Year’s Day.
4 Mother did not file an exception to the magistrate’s report and recommendations.
5 Although Mother’s counsel objected to admission of this portion of the medical record, the objection was overruled. Mother has not renewed the objection in this appeal.
6 Notably, in Tyler v. Baltimore County, 256 Md. 64 (1969), the Supreme Court of Maryland, in a dicta, observed: “[t] here may be occasional instances in which the order . . . refusing to impose the order for civil contempt is so much a part of or so closely intertwined with a judgment or decree which is appealable as to be reviewable on appeal as part of or in connection with the main judgment[.]” Id. at 71. Relying on this dicta, this Court found a right to appeal from a denial of a civil contempt petition in Howard Cnty. v. Pack Shack, Inc., 138 Md. App. 720 (2001), even after recognizing that “ordinarily there is no such right of appeal[.]” Id. at 725. The Supreme Court of Maryland, however, reversed our judgment, explaining:
To say that two orders or judgments are closely intertwined does not make it so In any event, the continued vitality of this exception
[under Tyler], which was a very narrow one to begin with, is highly doubtful. Although we need not reach that issue here that exception very likely would not apply when the appeal is filed by a person who was not held in contempt, however closely related and intertwined it is with other orders or judgments also pending appeal. Tyler simply does not support affording the losing party to a contempt action the right of appeal.
Pack Shack, 371 Md. at 260.
7 Specifically, Mother argues that the court “misinterpreted” her and Budorick’s testimony and did not give it sufficient weight by highlighting perceived “inconsistencies.” For one, the court noted that while Mother initially alleged in her motion for emergency hearing that she did not hear from W. for ten and a half hours, she subsequently testified that she was on the phone with the child for hours that night. The court also wondered how “Budorick could see [F]ather’s entire body in the unnatural position[,]” whereas “[M]other testified that she could only see his face lit up by the cellphone[.]” We need not discuss at length whether the circuit court was mistaken in highlighting these “inconsistencies[,]” as they were not the basis of the court’s finding. The court expressly declined to determine whether these perceived inconsistencies were “major or minor.”
8 As the record reflects, the court repeatedly expressed its “wish” to order Father “to make different decisions about his pain management and to also keep [Mother] informed of those decisions so that her sense of safety for her child’s welfare could be addressed.” These concerns, together with the circumstances in the parties’ custody arrangement where W. is left alone with Father, may be sufficient grounds for the circuit court to find a material change in circumstances warranting a custody modification.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 59 (2025)
Custody; visitation; best interest factors
Anniebell Stewart v. David Alcindor
Nos. 2209, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Nazarian, J.
Filed: Aug. 25, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s award of sole legal and physical custody of the minor daughter to father while establishing an escalating visitation schedule for mother. The circuit court considered the best interest factors properly.
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..
against Mother that alleged that she enrolled A in Dayspring without consulting him. He also filed a petition to modify the tie-breaking authority provision of the custody order. In January 2019, the court denied Father’s contempt petition and ordered that the parties re-enroll A in Dayspring—her enrollment had been terminated due to her failure to attend— but made no modifications to the 2018 custody order.
Five months later, Mother filed a petition to modify custody. She alleged that Child Protective Services (“CPS”) had opened an investigation against Father based on a report that he had hit A. Father answered that A told a CPS worker that Mother, not Father, had hit her. Father also filed a contempt petition against Mother for failing to re-enroll A in Dayspring and a cross-petition to modify custody, claiming that Mother was harassing him by filing multiple protective order petitions based on false allegations of abuse.
In December 2024, after a three-day custody modification hearing, the Circuit Court for Baltimore City awarded David Alcindor (“Father”) sole legal and physical custody of his and Anniebell Stewart’s (“Mother”) daughter, A. The court also established a “step-up” visitation schedule for Mother that began with three months of no parenting time and will morph into weekly supervised visits, then unsupervised visits to increase in length approaching the start of the school year in September 2025, and a holiday visitation schedule. Mother appeals the modification order and we affirm it.
I. BACKGROUND
Mother and Father share a daughter, A, who was born on July 10, 2015. Mother and Father never married, and they ended their relationship in early 2017. Father filed a complaint seeking sole legal and physical custody of A on September 25, 2017, and Mother filed a counter-complaint the next day that sought sole legal and physical custody as well. Mother filed an emergency request for relief in November 2017, claiming that Father withheld A from her for six weeks. The court issued an interim order on December 11, 2017 that granted Mother primary physical custody and gave visitation access to Father. The court held a two-day hearing and on September 7, 2018 issued a final custody order that granted the parties joint legal custody, with tie-breaking authority to Mother, and joint physical custody on a week-on-week-off basis.
A few weeks later, Mother filed a petition for contempt against Father, claiming that he had failed to bring A to school—the Dayspring Head Start program (“Dayspring”)— during his custodial weeks. Father filed a contempt petition
The parties appeared before a family magistrate in February 2020. The magistrate found that A was on the waitlist for Dayspring and recommended that Father’s contempt petition be denied. As to the modification petitions, the magistrate found questionable Mother’s credibility and the veracity of her allegations against Father. The magistrate noted that Mother had filed petitions for protective orders against Father at least four times between 2018 and 2019 and that CPS had “ruled out” abuse by Father in fall 2019, after finding that the parents had “coached” A on what to say. Ultimately, the magistrate found no credible evidence of a material change in circumstance and recommended the parties’ modification petitions be denied. The court adopted the magistrate’s recommendations in March 2020.
In January 2023, CPS received a report from a teacher at A’s school who said that they saw marks on A’s arms and that A had said that Father beat her with a spoon, called her names, had a gun, and made her sleep with him at night, after which she experienced vaginal and rectal pain. A CPS caseworker, Robin Stokes, and an officer interviewed A at her school. A denied having experienced abuse or name-calling, and she said she didn’t know what a gun was. Ms. Stokes asked to speak with the teacher who made the report, but there was no teacher at the school under the name that the reporter had given.
Ms. Stokes also interviewed Mother, Father, A’s paternal grandmother who lives with Father (“Grandmother”), and A’s sister, K, who lives with Mother (they have different fathers). Mother said she observed marks on A and that A had reported vaginal and rectal pain in the past. K said that A had reported being choked and threatened by Father. Father denied having hurt or called A names, and he said A has her own room at his
house and is not forced to sleep with him. Grandmother said that Father sometimes applied Vaseline to A’s private areas when she complained of pain but that he didn’t do so in a sexual manner. Indeed, as would later come to light, Mother had told Father to apply Vaseline to A’s bottom, and Father only did so when A complained of irritation. Grandmother also said that neither she nor Father owns a gun and that, in early January 2023, A told Father that Mother had directed A to tell her teacher that Father had a gun. Grandmother warned Ms. Stokes that Mother “has a history of lying.”
CPS recommended that Mother have A examined. Dr. Rebeca Tholen, a nurse practitioner at A’s pediatrician’s office, examined A and reported that A’s hymen appeared to be ruptured. Dr. Tholen noted, however, that she is not a specialist and recommended that A visit another clinic. A couple weeks later, a provider at the Center for Hope, Baltimore Child Abuse Center, Dr. Wendy Lane, performed a second medical exam. Dr. Lane concluded that A’s hymen and genitalia appeared normal but that those results didn’t rule out the possibility of abuse. The Center for Hope also conducted a forensic interview of A, during which A reported that Father threatened her, called her names, touched her in her “private parts,” and showed her naked pictures of adults.
On January 20, 2023, Mother filed for another protective order against Father, alleging that he abused A sexually. The District Court in Baltimore City granted Mother an interim protective order that day. The District Court then held a hearing on January 24 and issued a final protective order that granted Mother sole legal and physical custody of A for a year. Father appealed to the circuit court, and the court scheduled a trial to begin in March 2023.
CPS continued its investigation, and on February 24, 2023, sent Father a letter indicating that they had “ruled out” physical abuse, meaning that CPS had concluded that abuse did not occur in this case. CPS closed the investigation on March 9, 2023.
The circuit court held a trial on Father’s appeal from the final protective order on March 30, April 12, and April 20, 2023, and the court vacated the final protective order. Mother filed a motion to alter or amend that ruling and for a new trial, which the court later denied. Father regained custody of A from April 23 to 28. He returned A to Mother on Sunday, April 29, in accordance with the week-on-week-off schedule of the 2018 custody order. After that, though, Mother did not return A to Father, or even let him see her, until the resolution of this case a year and a half later.
After the court vacated the final protective order on April 20, 2023, Mother filed a petition to modify custody and another petition for a protective order, both of which repeated the same allegations of sexual abuse by Father. In May 2023, the Circuit Court for Baltimore County, the court in which Mother filed for a protective order, denied her petition. CPS opened another investigation, and the Center for Hope conducted another forensic interview of A on May 12, 2023. During that interview, A reported that Father inserted his fingers into her privates after bathing her, that he made A wash him in the shower, that Father and Grandmother showed her pictures of naked adults, and that they took pictures of A with her clothes off. CPS reported “a high level of concern” that A had
been coached before her interview, and they ruled out sexual abuse. CPS would later rule out abuse a third time in May 2024.
Mother dismissed her custody modification petition voluntarily on May 19, 2023, and Father filed a contempt petition on May 30 in which he alleged that Mother told him she wouldn’t return A for his next custodial week. Father supplemented that petition and filed a petition to modify custody on July 11, 2023, asking the court to grant him sole legal and physical custody of A. Mother re-filed her petition to modify custody on October 26, 2023, requesting sole legal and physical custody of A. Father dismissed his contempt petition voluntarily in November 2023, and each party filed an answer to the other’s modification petition.
The circuit court held a three-day modification hearing on September 9, 10, and 11, 2024. Mother, Father, and Grandmother testified, and Mother called an expert in child forensic interviewing, Dr. Kelly Champion, 1 to opine on the reliability of A’s statements during her forensic interviews. On September 12, 2024, the court issued a temporary custody order granting Father weekly visitation, supervised at first and then unsupervised after the first month. The court also granted Father weekly communication with A via phone or video, twice a week at first and then three times per week after the first month. The court ordered that Mother must not deny Father access to those communications with A and that she must leave the room while A is speaking with Father. The court also ordered the parties to communicate solely through AppClose, a co-parenting application, on matters related to A. This order superseded the 2018 custody order only to the extent that the orders conflicted.
The court held another hearing on November 6, 2024, at which Father and Mother testified on how the visitations and communications had gone since the court entered its temporary order. The court was not prepared to issue a final ruling, so it issued a supplemental temporary custody order. This supplemental order continued Father’s thrice-weekly communications with A and increased his unsupervised parenting time gradually until the next hearing.
The court issued its final ruling on December 30, 2024. The court found a material change in circumstance in Mother’s persistent allegations against Father and her withholding of A from him. The court found further that the parties were unable to communicate effectively or reach shared decisions about A’s well-being, that Mother had “no desire to co-parent with Father,” and that Mother was unfit to have physical custody of A. In light of these findings, the court granted Father sole legal and physical custody. The court also ordered a visitation schedule for Mother that started with no parenting time until April 7, 2025, then increased gradually her supervised and, eventually, unsupervised visitation time.
Mother noted a timely appeal to the court’s modification order on January 10, 2025.
We include additional facts throughout the Discussion.
II. DISCUSSION
Mother raises several issues on appeal that we have consolidated and rephrased: first, did the court err in finding that Father hadn’t abused A; and second, did the court abuse
its discretion when it granted Father sole legal and physical custody and awarded step-up visitation to Mother?2 We hold that the court didn’t err in finding that Father hadn’t abused A and didn’t abuse its discretion in modifying custody as it did. 3
We review a circuit court’s decisions on child custody “utilizing three interrelated standards”: first, we review the court’s factual findings for clear error; second, “‘if it appears that the [court] erred as to matters of law,’” we will remand for further proceedings unless the legal error was harmless; and third, we review the court’s ultimate conclusion for abuse of discretion. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012) (quoting In re Yve S., 373 Md. 551, 586 (2003)). The circuit court has broad discretion to determine the best course of action for the child, and we will not disturb its custody ruling absent a clear abuse of that discretion. Id. at 171 (citing In re Yve S., 373 Md. at 585–86).
A The Court Did Not Err In Finding That Father Hadn’t Abused A Because The Court Was In The Best Position To Judge Mother’s Credibility And To Weigh Dr. Champion’s Testimony.
Mother argues first that the court erred in finding that Father hadn’t abused A. She argues that the court concluded incorrectly that Mother had fabricated abuse allegations against Father, that the court didn’t consider Dr. Champion’s expert testimony on A’s forensic interviews adequately, and that the evidence was sufficient for the court to find that abuse had occurred. We see no error in the court’s findings. In determining whether a child who is the subject of a custody or visitation proceeding has been abused or neglected by one of the parties, the circuit court must decide whether there are “reasonable grounds to believe” that one or both of the parties abused or neglected the child. Md. Code (1984, 2019 Repl. Vol.), § 9-101(a) of the Family Law Article (“FL”). The “reasonable grounds to believe” standard, in this context, is equivalent to the “preponderance of the evidence” standard, meaning the court must decide whether it’s more likely than not that the child was abused or neglected. See Volodarsky v. Tarachanskaya, 397 Md. 291, 308 (2007).
In deciding this issue, the court, as the ultimate fact-finder, determines credibility and weighs the persuasive value of the evidence— including expert testimony—just as a jury would in a jury trial. See id. at 305–06; Porter v. Schaffer, 126 Md. App. 237, 269–70 (1999) (“In a non-jury case, matters involving the credibility of witnesses and conflicts in the evidence are firmly within the purview of the trial judge, sitting as the trier of fact. This rule applies with equal force to the testimony of an expert.” (citations omitted)).
On appeal, we “will not set aside the judgment of the trial court on the evidence unless clearly erroneous[] and will give due regard to the opportunity of the trial court to judge the credibility of witnesses.” Md. Rule 8-131(c).
Mother’s and Father’s testimonies in this case boil down to a “he said, she said” situation, and the court ultimately decided that it didn’t believe Mother’s allegations of abuse. This finding is not erroneous. The record revealed several inconsistencies and false information in Mother’s statements to Father, CPS, medical providers, and the court. She testified
that A has a heart murmur, but A’s medical records contain no such diagnosis. Mother admitted that she lied to Father about being abused as a child, claiming it was a “sad attempt” to convince him to get back together with her. She told a court-appointed psychological evaluator in 2020 that she completed a bachelor’s degree in social science and started a master’s program, but she admitted at the modification hearing that her highest level of education is high school. On May 3, 2023, Mother told A’s doctor that Father had taken A out of school that past week (April 23–28) without Mother knowing, but as Father explained during his testimony, that was the week that he regained custody of A after the circuit court vacated the final protective order. Father had to coordinate with A’s teachers so that he could pick her up from school because Mother was trying to deny him access. Mother also told the doctor at the May 3 visit that she had a protective order against Father, but the last protective order had been vacated, and Mother didn’t file for a new one until May 4, the day after the visit. Mother testified that she has never coached A into making allegations against Father, but Father introduced a video of A admitting that Mother told her to lie about him owning a gun and to call 911 when she got to his house. These and other discrepancies in Mother’s statements gave the court ample reason to question Mother’s credibility.
The court also referenced the special family magistrate’s skepticism of Mother’s claim that as a risk analyst for the Federal Housing Administration, she reported to the Vice President of the United States directly and had top-secret security clearance. Mother claims this was improper because her job duties were irrelevant to the modification issue. But the court stated simply that it shared the magistrate’s concerns about Mother’s credibility, not on the issues before the magistrate “but on issues that we’ve had since then.” And there were several other inconsistencies in Mother’s statements for the court to consider. Mother’s credibility was relevant to determining whether the court had reasonable grounds to believe that A had been abused, see Volodarsky, 397 Md. at 307–08 (noting that court was required to make credibility determinations, among other findings, to decide whether there was reasonable grounds to believe the child had been abused), and the court didn’t err in finding Mother less than credible.
The court had the discretion as well to decide how much weight to give Dr. Champion’s expert testimony. See Porter, 126 Md. App. at 270 (“As the trier of fact, the court was entitled to give [the expert’s] testimony the weight and value the court believed it should have.”). The court seemed to give little weight to Dr. Champion’s testimony, finding in essence that Dr. Champion recommended that the court “believe [A’s] statements that impact this case and not believe [her] statements that are fanciful and off the wall.” We can’t say that this finding is clearly erroneous. Mother played the recordings of A’s forensic interviews during the modification hearing, and Dr. Champion testified that she didn’t notice anything during the interviews that would suggest that A had been coached. The court noted, however, that Dr. Champion wasn’t aware before conducting her analysis that Father had seen A for only about two weeks in 2023 and that A hadn’t seen him
since April 29, 2023. Dr. Champion also didn’t know that the person who called CPS in January 2023 was a fictitious reporter, and she couldn’t testify definitively that Mother wasn’t the person who made that call. The court pointed out that Dr. Champion had testified that “[c]hildren will use names and labels as they’ve heard them,” which may explain why during the second interview, A referred to Father and Grandmother by their first names and called Grandmother, whom Mother had accused of doing witchcraft, a “witch.” A also repeated information that she said Mother had told her and that A couldn’t have known herself, such as that Father kidnapped her when she was two years old and that he’s been carrying a gun since she was two. Overall, the court had the opportunity to watch the recordings and make its own conclusions about A’s statements, and it wasn’t required to give any particular weight to Dr. Champion’s testimony. See id.; see also Dackman v. Robinson, 464 Md 189, 216 (2019) (“Even if a witness is qualified as an expert, the fact-finder need not accept the expert’s opinion, i.e., the fact-finder is free to reject the expert’s opinion and accord it little or no weight.” (cleaned up)).
Finally, the court found that there was no credible evidence that Father abused A physically or sexually. Based on our review of the record, we can’t say that this finding was clearly erroneous. The parties introduced into evidence the files from the CPS investigations, including the letters informing Father and Grandmother that CPS had ruled out abuse; Dr. Lane’s report on her forensic examination of A; A’s medical records from her birth to November 13, 2023; a transcript of Dr. Tholen’s, Ms. Stokes’s, and A’s second-grade teacher Ms. Crocker’s testimony during the March 30, 2023 final protective order hearing; and the video recordings of A’s two forensic interviews, among other exhibits. These exhibits and the witnesses’ testimonies contained conflicting information in some respects, and it was up to the court to resolve those conflicts. See Porter, 126 Md. App. at 269–70 (citations omitted).
For example, A reported during the interviews that Father had touched her inappropriately, called her names, and threatened to kill her. A’s medical records, however, mentioned no signs or concerns of abuse other than Mother’s reports of such. Indeed, in January 2020, A’s doctor noted that there had been “a running issue with [Mother] complaining about possible sexual abuse by Father, which has not been substantiated.” And the doctor had stated a few months earlier that “Father denie[d] any wrongdoing” and that he “presented a cogent case.” Dr. Tholen reported in January 2023 that A’s hymen may have been ruptured, but that finding, which Dr. Tholen qualified by noting that she is not a child abuse specialist, was contradicted by Dr. Lane’s later finding.
Mother maintains that she believes Father abused A, but the record reveals that CPS investigated and ruled out abuse by Father three times and by Grandmother once. CPS concluded in 2023 that there was a lack of evidence that Father abused A physically or sexually because Ms. Stokes never noticed any marks or injuries on A, A couldn’t provide “explicit details of any incidents of sexual abuse” during her forensic interview, and Dr. Lane had determined that A’s hymen and
genitalia were normal. When another CPS worker spoke with A during the 2024 investigation, A “did not disclose any acts of sexual molestation by either [Father] or [Grandmother].”
Although A disclosed abuse by Father during her two forensic interviews, including by inserting his fingers into her vagina and rectum while applying Vaseline, CPS had “a high level of concern” that A had been coached before her interviews. During the modification hearing, Father explained that he and Grandmother had applied Vaseline to A’s private areas when she complained of irritation, and he denied having ever inserted his fingers while doing so. He further explained that Mother had told him to apply Vaseline for A’s irritation. Indeed, he introduced an email from 2018 in which Mother had told him to apply Vaseline to A’s bottom, and another from 2019 in which Mother informed Father that the doctor suggested applying a healing ointment to A’s bottom to address irritation.
Based on the record and the court’s appropriate findings regarding Mother’s credibility and the weight of Dr. Champion’s testimony, we see no error in the court’s conclusion that Father did not abuse A.
B. The Court Did Not Abuse Its Discretion When It Granted Father Sole Legal And Physical Custody And Established An Escalating Visitation Schedule Because The Court Considered The Best Interest Factors Properly.
Second, Mother contends that the circuit court abused its discretion by granting Father sole legal and physical custody of A and establishing a graduated visitation schedule for Mother. She argues that the court placed Father’s parental rights above A’s best interests, that the court prioritized punishing Mother over serving A’s best interests, and that the evidence didn’t support the court’s step-up visitation plan. We hold that the court did not abuse its discretion in awarding custody to Father and limiting visitation with Mother as it did.
When considering a request to modify child custody, the court first must “assess whether there has been a ‘material’ change in circumstance” since the entry of the last custody order. McMahon v. Piazze, 162 Md. App. 588, 594 (2005). A “material” change is one that “affects the welfare of the child.” Id. If the court finds that “there has been such a material change, the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id. The best interests analysis requires the court to review several “major factors” outlined in Taylor v. Taylor, 306 Md. 290, 303–11 (1986). But “none [of those factors] has talismanic qualities, and . . . no single list of criteria will satisfy the demands of every case.” Id. at 303. Rather, the trial court “should carefully set out the facts and conclusions that support the solution it ultimately reaches,” Santo v. Santo, 448 Md. 620, 630 (2016), with the best interests of the child as the “paramount concern ” Taylor, 306 Md. at 303. Mother doesn’t seem to dispute the circuit court’s finding of a material change in circumstances. Her brief focuses largely on the court’s findings on the best interest factors, particularly whether Mother is a fit parent. The court stated in its ruling that it had considered all the required factors in reaching its decision:
I’ve considered all the factors . . . under Maryland law with respect to legal custody and physical custody.
* * *
I have to consider the fitness of each parent, which is the primary consideration. . . .
I have to consider the parties’ character and reputation and the agreements, the ability to maintain natural family relations, preference of the child if old enough to make a rational choice, material opportunities, residence and the opportunity for visitation and pending relocation, which there is none.
Stability and foreseeable health and welfare, child’s spiritual, physical, and moral well-being, contact and bonding between child and parents, [A’s] physical and emotional security, her developmental needs, ability to create a positive self-image.
The court then concluded that it would be in A’s best interest to award Father sole legal and physical custody. Although the court centered its findings on three factors—the parties’ ability to communicate and make shared decisions about A’s wellbeing, the parties’ willingness to share custody, and the parties’ fitness as parents—the record and the court’s findings support its ultimate conclusion. See Gillespie, 206 Md. App. at 174–76 (affirming custody modification order where trial court stated that it considered numerous factors in reaching its decision, but the analysis centered largely on the parents’ ability to communicate and their willingness to share custody).
1. The parties’ ability to communicate and reach shared decisions regarding the child’s welfare
The court found that Mother and Father “are unable to communicate effectively and reach shared decisions concerning [A’s] welfare.” We see no error in this finding. In fact, both parties agreed that they haven’t been able to communicate productively over the years. Mother testified specifically that communications between her and Father have been “contentious.” The record confirms that characterization. Grandmother testified that Father and Mother don’t get along, that they used to argue when they spoke on the phone, and that their inability to converse without arguing is why they had to start communicating with each other via email. Indeed, the 2018 custody order required the parties to communicate by email except in an emergency. The court-appointed best interests attorney also introduced several emails that Mother sent to Father, accusing him of misconduct and abuse against A. Those emails, Father said, represented “only a small portion of the accusations” that Mother has made against him over the years. Additionally, after the District Court granted Mother an interim protective order on January 20, 2023, she drove to the exchange point on January 22 for Father’s scheduled pick-up, directed A to hand Father the interim protective order through the cracked car window, then drove off with A. Mother testified that she believed this action of obtaining a protective order against Father and then having A, the protected party, hand it to him
in person was in A’s best interest.
Father also testified that Mother has not kept him in the loop about A’s well-being. He introduced an email from August 2021 in which Mother informed him that she had moved and transferred A to a new school, and she did so without notifying or conferring with Father. He testified that Mother also switched A to homeschooling in 2022 and didn’t tell him; he had to contact A’s former elementary school to find out she was being homeschooled. Mother also didn’t tell Father that she intended to continue homeschooling A for the 2024/2025 school year. And she didn’t inform him that her friend from church was helping her homeschool A; Father learned about this during Mother’s testimony at the modification hearing. Father testified as well that Mother hasn’t updated him about A’s academic progress since her transition to homeschooling. In addition to A’s academics, Father testified that before January 2023, Mother refused to keep him updated on A’s medical appointments. And after the Circuit Court for Baltimore County denied Mother’s last protective order petition on May 11, 2023, the parties stopped communicating altogether. According to Father, he wasn’t receiving any information on A’s medical appointments until Mother retained an attorney for the modification hearing and the attorney helped ensure that Father received updates from A’s doctor.
Overall, the evidence in this case, including the parties’ own admissions that they don’t communicate well, supported the court’s findings on this factor.
2. The parties’ willingness to share custody
The court found that that “Mother has, quite frankly, no desire to co-parent with Father.” Again, we see no error in this finding. The most significant piece of evidence that supports this finding is Mother’s withholding of A from Father for nearly a year and a half. As the court put it, “Mother has, since January of 2023, through her conduct, intended to alienate [A] from Father’s orbit, from his life. And she has . . . largely been successful.” Mother argues in this Court that the circuit court erred in blaming Mother for that lengthy separation and failed to consider the parties’ prior “agreements” about whether Father would contact A while the case was pending. Mother claims that after the parties appeared before a magistrate in July 2023 to address Father’s contempt petition, “Father agreed that he would not pursue access [to A] during the pendency of the trial.” Mother says the fact that Father dismissed his contempt petition after that hearing shows that the parties had entered into that agreement. There is, however, no evidence of such an agreement in the record, and neither Mother nor Father testified about the existence of an agreement at the modification hearing. Moreover, Father’s decision to dismiss his contempt petition doesn’t prove anything about whether such an agreement existed. In the end, Mother withheld A from Father for sixteen months in violation of the 2018 custody order, going so far as to switch A to homeschooling to keep her away from Father. And her testimony during the modification hearing suggested that she would continue to defy the court’s orders if it decided, as the courts did in the protective order hearings, that there wasn’t enough evidence to believe that Father abused A:
[BEST INTERESTS ATTORNEY (“BIA”)]: [Y]ou said [you denied Father] access to [A] because you wanted the courts to decide, right?
[MOTHER]: Mm-hmm.
[BIA]: On April 20th, 2023, you asked the Circuit Court for Baltimore City to decide whether [Father] should have no contact, right?
[MOTHER]: Right.
[BIA]: And that Judge said no, correct? [MOTHER]: Right.
[BIA]: On May 11th, 2023, you asked [the Circuit Court for Baltimore County] to decide whether [Father] should have no contact, right?
[MOTHER]: Right.
[BIA]: [That judge] said no, right? [MOTHER]: Right.
[BIA]: Since May 11th, 2023 there have been no safety plans in effect by CPS advising that [Father] should have no contact, correct?
[MOTHER]: Correct.
[BIA]: So you’ve taken it into—you’ve taken matters into your own hand, haven’t you?
[MOTHER]: I guess, yes.
[BIA]: And if [this Court] finds that [Father] did not sexually abuse [A], you will disagree with that decision, won’t you? *
[MOTHER]: Yes.
[BIA]: Just like you disagreed with [the prior judge’s] decision, right?
[MOTHER]: Yes.
[BIA]: Just like you disagreed with [another prior judge’s] decision, right?
[MOTHER]: Yes.
[BIA]: And if [this Court] finds that [Father] did not sexually abuse [A], you will still believe that you need to keep [A] safe, won’t you?
[MOTHER]: Yes, ma’am.
Mother said she was open to Father having contact with A, but she also testified that there was “always a disconnect” when she and Father tried to co-parent. And ultimately she sought sole legal and physical custody of A herself, an outcome that required her to allege and prove that she and Father couldn’t communicate or co-parent. The record supports the court’s finding that she was not willing to share custody with Father.
3. The parental fitness of the parties
Finally, the court found that Mother was not fit to have physical custody of A. This finding is not clearly erroneous. To start, the record demonstrates that Mother has acted against A’s best interests for the purpose of keeping her away from Father. Mother removed A from school and started homeschooling her as a means of denying Father access. As a result, A doesn’t socialize with other children except on “field trips” with other homeschooled children whom A doesn’t know. And A hasn’t seen her best friend from elementary school other than in passing since A started homeschooling.
Mother recognized the lack of socialization and testified that she wanted A to return to her former school. Despite these apparent concerns, however, Mother had re-enrolled A in homeschool for the 2024/2025 school year just before the hearing, which occurred in September 2024. In addition to the lack of socialization, homeschooling led to issues with A having too much “screen time.” Mother testified that A watched YouTube videos for health class as part of her homeschooling curriculum. Then in March 2024, Mother took A to the doctor for a well visit and reported that she would sometimes “wake up to find [A] watching YouTube at daybreak” and that A had “poor sleep habits.” In response, the doctor recommended less screen time.
Mother’s actions before she started homeschooling A also demonstrate her unfitness. During the 2022/2023 school year, A was absent from school thirty-one times (only eight of which were excused) and tardy twenty-nine times (twentyfive of which were unexcused), all during Mother’s custodial weeks, according to Father. Father also introduced a video of A saying that Mother told her to lie about Father having a gun and to call 911 on him. This coupled with Grandmother’s reports to CPS that Mother told A to lie and CPS’s concerns that A had been coached before her interviews supports the court’s conclusions that Mother falsified all the allegations against Father and directed A to lie to keep A from Father. As the court concluded, such conduct created an “unhealthy environment for [A].” Also as a result of these false allegations, A was subjected to multiple invasive medical exams as part of the CPS investigations only to find that she appeared to be normal. Mother also brought A to the circuit court for two of the protective order hearings. And she had A handdeliver (through a cracked window) the January 2023 interim protective order to Father even though Mother obtained the protective order because she claimed to believe that Father was abusing A and that A was afraid of him. Overall, Mother’s actions put A at the center of the parties’ conflict for several years and to A’s detriment.
In sum, we hold that the court did not abuse its discretion in modifying custody as it did. The record supports the court’s findings that Mother and Father do not communicate well, that Mother abused her tie-breaking authority while the preceding order was in place, and that joint legal custody would not be in A’s best interest. Taylor, 306 Md. at 304 (“Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child.”); id. at 307–08 ([T]he absence of an express willingness on the part of the parents to accept a joint custody arrangement is a strong indicator that joint legal custody is contraindicated.”).
The record supports the court’s skepticism of Mother’s fitness to retain custody of A in light of her persistent false allegations against Father, her willingness to defy the court’s orders, and her desire to deny Father access to A even for as long as sixteen months. Mother’s goal of withholding A from Father took precedence over A’s well-being, and Mother’s conduct, the court concluded correctly, created an unhealthy environment for A and damaged her relationship with Father unnecessarily. We see no abuse of discretion in the court’s
decision to grant Father sole legal and physical custody of A.
See Bienenfeld v. Bennett-White, 91 Md. App. 488, 502 (1992) (affirming grant of physical and legal custody to father where circuit court found, among other facts, that “the children’s ties to the father would be threatened if the mother were given custody,” and noting that “‘to deny to the child an opportunity to know, associate with, love and be loved by either parent, may be a more serious ill than to refuse it in some part those things which money can buy’” (quoting In re Marriage of Hadeen, 619 P.2d 374, 382 (1980))).
We also see no abuse of discretion in the court’s decision to implement a graduated visitation plan for Mother. The court found that Mother’s conduct damaged Father’s relationship with A and that Mother fed A false information and encouraged her to lie. The visitation plan related reasonably to the harms that the court identified in that it would help to repair A’s relationship with Father, particularly after such a lengthy separation, and help to prevent Mother from continuing the damaging conduct (i.e., telling A lies and encouraging A to lie about Father). See, e.g., North v. North,
102 Md. App. 1, 14–15 (1994) (explaining that a visitation restriction must “follow logically from” the court’s findings and have a “reasonable relationship” to its announced objective). Mother claims that the court failed to consider A’s relationship with her sibling when it modified custody as it did, but the court mentioned A’s relationship with her maternal family members when creating the visitation plan:
THE COURT: Starting Monday, June the 2nd, Mother will have once-a-week unsupervised visitation with [A]. That will be either a weekend morning or afternoon so she can reacquaint herself with her sister and her extended family. And we’re going to do that once every other week. Moreover, and although it generally is in the best interests of a child to remain with their siblings, “when separation becomes necessary or inevitable, . . . there is no reason why it should not be done.” Hild v. Hild, 221 Md. 349, 359 (1960). The court did not prioritize punishing Mother over A’s best interests, and it modified custody reasonably based on the evidence before it. JUDGMENT
FOOTNOTES
1 The court also qualified Dr. Champion as an expert in parent-child relationship development; child development, including cognitive development; clinical child and adolescent psychology, especially child anxiety and trauma; and interdisciplinary approaches to child maltreatment.
2 Mother phrased her Questions Presented as follows:
1. Did the trial court improperly convert the custody modification into a contempt hearing and place punishing Mothers violation of the custody order above the best interests of the child?
2. Did the trial court abuse its discretion by issuing multiple pendente lite orders and review hearings regarding visitation with Father after the final evidentiary hearing without considering the best interests of the minor child?
3. Did the trial court err or abuse its discretion when after granting Father sole custody it created a step-up custody schedule that ordered a “blackout period” that denied the child any and all contact with Mother, supervised visits, and gradual unsupervised visits over a period of 3 years.
4. Did the trial court err or abuse its discretion when it ruled that Mother had falsely accused Father of sexual abuse despite the evidence that it was the child who made the allegations and Fathers admissions?
5. Did the trial court err or abuse its discretion when it ruled Mother’s conduct had caused alienation and damage to the Father-Child relationship and negatively impacted the child’s mental health and overall wellbeing?
6. Did the trial court properly consider the expert witness testimony that the child was credible and had not been coached by mother?
7. Did the trial court err or abuse its discretion in concluding that Mother was unfit? Father did not file a brief in this Court.
3 We do not reach Mother’s question about the temporary orders that the court issued on September 12 and November 13, 2024 because the court since has issued a final custody modification order that mooted any challenges to the temporary orders. See Krebs v. Krebs, 183 Md. App. 102, 109–10 (2008) (holding that mother’s appeal regarding circuit court’s pendente lite custody order pending the parties’ divorce merits hearing was moot because the court held the merits hearing and awarded custody to father as part of its ruling); Cabrera v. Mercado, 230 Md. App. 37, 85 (2016) (holding that mother’s claim that the circuit court’s emergency temporary custody order should be vacated for lack of proper service was moot because “the final custody order [was] the . . . governing order and would still govern even if we vacated the emergency temporary custody order”).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 66 (2025)
Child support; calculation; legal principles and evidence
The Appellate Court affirmed the Prince George’s County Circuit Court’s calculation of father’s child support obligation. The record is clear that the circuit court’s decision was based on correct legal principles and a credible assessment of the evidence.
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..
II. Whether the circuit court erred or abused its discretion in denying Mother’s motions for a Best Interest Attorney, a Custody and Visitation-Related Assessment, and a Child’s Privilege Attorney.
III. Whether the circuit court erred or abused its discretion in determining child support.
IV. Whether the magistrate erred or abused his discretion in permitting Father to remain in the courtroom for several minutes after Mother left.
As to questions I and II, we hold that Mother’s claims were rendered moot by the parties’ subsequent custody agreement. As to question III, we hold that the court did not err or abuse its discretion in determining child support. Finally, as to question IV, we hold that Mother has failed to show that she was prejudiced by the magistrate’s actions. Accordingly, we affirm.
BACKGROUND
This case stems from a custody dispute involving Linda Banks (“Mother”) and Julian Brown (“Father”) regarding the parties’ minor child (the “Child”). In 2018, the Circuit Court for Prince George’s County entered an order establishing an access schedule for the Child and ordering Father to pay child support. In 2023, Father filed a motion to modify child support, and Mother filed a counter-complaint for modification of custody and child support. Following a hearing, the court granted Father’s motion to modify child support and dismissed Mother’s counter-complaint for modification of custody and child support. After Mother noted an appeal, this Court remanded the case for a new hearing on Father’s motion and Mother’s counter-complaint.
At the hearing that followed, which was held in January 2025, a magistrate determined the issue of child support but did not reach the issue of custody. In March 2025, the court entered an order adopting the magistrate’s child support recommendation and determining that, because the magistrate did not reach the issue of custody, a second hearing was required. Around that same time, Mother noted the instant appeal. Several months later, in June 2025, while the instant appeal was pending, a second hearing was held before a magistrate. At that hearing, the parties reached an agreement on the issue of custody. In this appeal, Mother presents five questions for our review. For clarity, we have rephrased and consolidated those questions as follows:1
I. Whether the magistrate erred or abused his discretion in refusing to reach the issue of custody during the January 2025 hearing.
The Child was born in 2011 to Mother and Father. In May 2017, Father filed a complaint for custody, and Mother filed a counter-complaint for custody. In July 2018, the parties reached an agreement, which the court accepted. Per that agreement, Mother was given primary physical custody, Father was granted visitation via an access schedule, and the parties were to share legal custody. In addition, Father was ordered to pay $943.00 a month in child support.
Five years later, in July 2023, Father filed a motion to modify child support. Father alleged that the parties’ financial situations had changed and that his support obligation should be decreased.
In October 2023, Mother filed a counter-complaint for custody and child support. Mother alleged, among other things, that Father had failed to enroll the Child in summer camp, per the terms of the parties’ custody agreement. Mother also alleged that the parties were unable to communicate effectively. Mother asked that she be awarded sole legal custody and that Father’s visitation time be reduced.
A hearing before a magistrate was scheduled for November 6, 2023. Following that hearing, the magistrate drafted a proposed order recommending that Father’s motion to modify child support be granted and that Mother’s countercomplaint be dismissed. Mother thereafter filed exceptions. On December 20, 2023, the circuit court entered an order adopting the magistrate’s recommendations and denying Mother’s exceptions. Mother noted a timely appeal of that order in this Court.
The record reflects that while Mother’s appeal was pending, the circuit court was unable to produce a transcript of the
hearing. Consequently, this Court remanded the case for a new hearing on Father’s motion to modify child support and Mother’s counter- complaint for custody and child support.
In January 2025, a new hearing was held before a magistrate. At that hearing, the magistrate received evidence regarding the parties’ financial situation in 2023, when the relevant pleadings were filed. Per that evidence, Mother’s yearly, pre-tax income was $177,552.00, and Father’s yearly, pretax income was $142,068.00. After considering the parties’ relevant circumstances, contributions, and expenses, the magistrate, in accordance with the child support guidelines, calculated Father’s child support obligation to be $530.00.
The magistrate thereafter issued a recommendation that Father’s child support obligation be changed to $530.00 per month. The magistrate did not make any recommendation regarding Mother’s request for modification of custody.
On March 7, 2025, the circuit court entered an order adopting, in part, the magistrate’s recommendations. In so doing, the court found that the magistrate had erred in not reaching the issue of custody. The court ordered that a hearing on the issue of custody be scheduled. The court otherwise adopted the magistrate’s recommendation regarding child support.
Two days later, Mother filed the instant appeal. By that time, Mother had filed multiple motions asking the court to appoint an attorney for the Child and to order a custody assessment in preparation for the court’s determination on custody. Mother’s motions and other requests were denied.
In June 2025, while the instant appeal was pending, a hearing on the issue of custody was held before a magistrate. At that hearing, the parties reached an agreement on all pending custody-related matters. That agreement was subsequently entered by the court as a final order. No appeal from that order was noted in this Court.
DISCUSSION 2
I and II.
Mother’s first several complaints involve the magistrate’s and the court’s handling of the parties’ custody matter. First, Mother contends that the magistrate erred or abused his discretion in failing to reach the issue of custody during the January 2025 hearing. Second, Mother contends that the court should have granted her requests for an attorney for the Child and for a custody assessment. Finally, Mother contends that the magistrate made some disparaging remarks in declining to reach the issue of custody during the January 2025 hearing.
We hold that all of Mother’s claims are moot. A custody hearing was held in June 2025, and all outstanding custodyrelated issues were resolved by agreement of the parties. Thus, any errors the court or the magistrate may have made up to that point were rendered moot by the parties’ agreement. We do not decide moot controversies. As a result, we need not delve into the merits of Mother’s claims. Suter v. Stuckey, 402 Md. 211, 219-20 (2007).
III.
Mother next claims that the court erred in its calculation of Father’s child support obligation. In so doing, Mother
expresses dissatisfaction with the court’s decision and argues that Father should not be permitted to continually relitigate the issue of child support. In addition, Mother contends that the court erroneously inflated her income by relying on her “Medicare wages from [her] W-2, which were $177,551,” rather than her “Social Security wages,” which were $160,200.00. Mother contends that the court should have, like it did for Father, calculated her income using her “Social Security wages.”
“The trial court’s decision as to the appropriate amount of child support involves the exercise of the court’s discretion.” Guidash v. Tome, 211 Md. App. 725, 735 (2013). “A court can abuse its discretion when it makes a decision based on an incorrect legal premise or upon factual conclusions that are clearly erroneous.” Id.
We hold that the court did not err or abuse its discretion. Notably, Mother is incorrect in concluding that the court should have used her “Social Security wages” when determining her pre-tax income. Although the court did refer to Father’s “Social Security wages” when determining his income, there is nothing in the record to suggest that Father’s total pre-tax income was different from this amount. On the other hand, Mother’s financial records clearly indicated that her total pre-tax income in 2023, rounded to the nearest dollar, was $177,552.00. Although her “Social Security wages” were listed as $160,200.00, that did not mean that the court miscalculated her income. Indeed, Mother’s W-2 reflected that her total pre-tax income, as reflected in her “Medicare wages,” was higher.3 As such, the court was not clearly erroneous in determining Mother’s income.
Accordingly, the circuit court did not err or abuse its discretion in its calculation of Father’s support obligation. The record is clear that the court’s decision was based on correct legal principles and a credible assessment of the evidence.
IV.
Mother’s final claim is that the magistrate erred or abused his discretion when, during the January 2025 hearing, the magistrate permitted Father to remain in the courtroom for several minutes after Mother left. Mother argues that the magistrate’s actions were inappropriate “given the high conflict in this case and Father’s propensity to tell his side of the story when no one else is around.” Mother argues that the magistrate’s actions evidence a bias against her in the circuit court.
We need not examine Mother’s claims too deeply because, assuming without deciding that the magistrate erred or abused his discretion, Mother has failed to establish prejudice. See Shealer v. Straka, 459 Md. 68, 102 (2018) (“The party complaining that an error has occurred has the burden of showing prejudicial error.”). Mother has presented no evidence or argument, beyond mere conjecture, that the magistrate’s actions had any effect on the proceedings. See id. 102-03 (“It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry.”) (citations and quotations omitted).
Furthermore, because the court ordered a new hearing on the issue of custody, the only decision by the magistrate that was of any consequence was the magistrate’s determination of child support, and that determination, including all relevant factual findings, had already been made when the magistrate had his alleged ex parte interaction with Father. It was highly unlikely, therefore,
that the magistrate’s actions influenced his decision. Id. (“Prejudice will be found if a showing is made that the error was likely to have affected the verdict below.”) (citations and quotations omitted). Without a showing of prejudice, reversal is inappropriate. See In re J.J., 231 Md. App. 304, 337 (2016) (“To warrant reversal in a civil case, an appellant must show both error and prejudice.”).
JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 Mother phrased the questions as:
FOOTNOTES
1. Did the circuit court err or abuse its discretion in refusing to grant Mother a hearing on her Counter-Complaint for custody and child support pursuant to the Appellate Court’s July 23, 2024 Order?
2. Did the circuit court err or abuse its discretion in refusing to grant Mother’s motions for a Best Interest Attorney, Custody and Visitation-Related Assessment, and Child’s Privilege Attorney?
3. Did the circuit court err or abuse its discretion in trivializing the child’s mental health issues by suggest that a Child’s Privilege Attorney was a waste because it was “so that the doctor can say all the bad things that your kid is saying to the doctor about the father, right?”
4. Did the circuit court err or abuse its discretion in calculating Father’s child support?
5. Did the circuit court err or abuse its discretion in allowing Father to remain in the courtroom with the judge after the bailiff ushered Mother and all gallery members of the gallery out of the courtroom?
2 Father has filed an appellee brief in which he disputes all of Mother’s claims. Because we affirm, we need not discuss Father’s arguments, save one. In his response to Mother’s argument regarding the court’s calculation of child support, Father claims that the court “partially erred” in calculating his support obligation. To the extent that Father is suggesting that the court’s child support determination was erroneous, we note that Father has not filed a cross-appeal. As such, Father’s claims of error are not properly before this Court and will, therefore, not be addressed. Maxwell v. Ingerman, 107 Md. App. 677, 681 (1996).
3 This discrepancy was likely due to the fact that, in 2023, social security tax on income was capped at $160,200.00, whereas there was no cap on wages subject to Medicare tax.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 11 MFLU Supp. 69 (2025)
Marital award; statutory procedure; three-step process
The Appellate Court affirmed the Talbot County Circuit Court’s equal division of marital property and $120,000 monetary award to husband. The court properly followed the three-step process to grant its monetary award and its decision to award the husband $120,000 was an appropriate action under the statutory procedure, considering when marital property was acquired.
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..
For the following reasons, we affirm the Circuit Court for Talbot County.
FACTUAL & PROCEDURAL BACKGROUND
The parties married in Easton Maryland on June 12, 1993. The parties had two children during the marriage who both have reached the age of majority. When the parties first married, the Appellee worked at T. Rowe Price and the Appellant worked as an ice- skating coach and took care of the home for the parties.
The Appellee began working at T. Rowe Price prior to the marriage in October 1987. T. Rowe Price gave multiple benefits to the Appellee including an employee stock purchase plan and retirement contributions to a 401(k). When the parties married the 401(k) account had approximately $19,000.00 in value and the T. Rowe Price stock the Appellee purchased was worth about $9,500.00.
Laura Everngam-Price, the Appellant, and Richard Price, the Appellee, were engaged in divorce proceedings in Talbot County, Maryland. A trial was held on November 30, 2022 and December 14, 2022 in the Circuit Court for Talbot County. On December 20, 2022, the court entered a judgment of divorce between the parties. Afterwards, on January 25, 2023, the court entered a Memorandum Opinion and Judgment concerning the division of property and other relief. The court divided the marital property equally between the parties and then entered a $120,000.00 monetary award in favor of the Appellee. The Appellant filed a motion to reconsider the judgment, which the trial court denied on February 22, 2023.
The Appellant then filed this timely appeal.
In bringing her appeal, Appellant presents four questions for appellate review:
I. Did the Circuit Court err as a matter of law or abuse its discretion when it entered a monetary award in favor of the Appellee in the amount of $120,000.00?
II. Did the Circuit Court abuse its discretion when it denied Appellant’s claim for counsel fees?
III. Did the Circuit Court err as a matter of law when it determined the parties’ Datsun vehicle was not marital property?
IV. Did the Circuit Court abuse its discretion when it permitted the Appellee’s expert witness to testify and to admit his report into evidence when that report was not provided to the Appellant until the day of trial?
The parties moved to Colorado in 1998 for the Appellee’s work. The Appellee then lost his job at T. Rowe Price in 2001, and the parties moved back to Maryland the following year. After losing his job at T. Rowe Price, the Appellee placed his T. Rowe Price stock into a joint Ameritrade Account with the Appellant. The parties purchased a home in Easton, Maryland in 2002. The parties purchased Ship and Print Place in Easton, where the Appellee worked as the manager and the Appellant kept the business records and finances. The Appellant began serving on the Talbot County Council in 2010 but continued to work in the parties’ business.
On March 26, 2021, the parties stopped living together. Since that time the parties have not resided in the same home and have not tried to reconcile. On May 12, 2021, the parties entered into a separation and partial property settlement agreement. The parties sold their home, their business, and some of the T. Rowe Price stock, and equally divided the proceeds of those sales.
Before trial, the parties filed a joint statement concerning marital and non-marital property. There were a few items that the parties disagreed on how to classify. The Appellant argued that the Appellee’s entire 401(k) account, valued at $893,608, was marital property. The Appellee argued that 77.68% of the account was marital property and 22.32% was non-marital property. Similarly, for the Ameritrade account containing the T. Rowe Price stock, the Appellant argued that all 3,000 shares, valued at the time at $321,630, was marital, while the Appellee initially argued 46.8% of the stocks were marital and 53.2% of the stocks were non-marital property. The parties also disputed the classification of the 1972 Datsun, but agreed on the valuation of $10,000.
The case proceeded to a trial before the Honorable Thomas G. Ross of the Circuit Court for Talbot County. The trial was held over two days on November 30, 2022 and December 14, 2022. At trial, both parties testified to their marital history and finances, as discussed above. Daniel O’Connell, a CPA with PKS and Company, P.A., testified as an expert on financial matters regarding the Appellant’s 401(k) account and stock plans. He testified that the 401(k) account was worth $19,161.00 at the time of the parties’ marriage and now was worth $893,608.00. Mr. O’Connell testified that $206,818.00 was traceable to the accounts value at the time of the marriage. This was based on a method of using percentages to trace what amounts would be attributable to pre-marital assets.
For the T. Rowe Price stocks, Mr. O’Connell testified that he took the number of shares at the start of the marriage and traced them through dividends and stock splits. When the parties married, Mr. O’Connell said there were 201 shares in the account. The shares held a value of $9,515.21 at the time. He testified that there were the 3000 shares in the account valued at $120.50 per share, making the total account worth $361,500. Mr. O’Connell testified that 64.3% of the total assets, worth $232,357, were traced to the shares owned prior to the marriage. After the parties’ marriage, there were three sales of stock in 1999, 2002, and 2020. Mr. O’Connell said that for the 1999 sale, the sale was based on shares acquired in 1997 and 1998, so they were all marital. This conclusion was not in Mr. O’Connell’s initial reports but came from his analysis of an income tax return that he performed after being deposed. For the other two sales, Mr. O’Connell could not be sure as to which shares were sold, so he prorated both sales. The Appellant objected to the admission of Mr. O’Connell’s reports based on changes that he made to them between his deposition and trial, which were overruled. Those reports and changes are discussed in more detail in the fourth issue of this opinion. At the conclusion of trial, the court entered a judgment of absolute divorce. The parties then filed written closing arguments addressing the division of marital property.
The court filed its Memorandum Opinion and Judgment Regarding Marital Property and Other Relief on January 25, 2023. Regarding the attorney’s fees requested by both parties, the court concluded that each party had the financial resources to contribute to the other’s attorney’s fees, but found there was no justification to do so. The court determined that both parties were essentially justified in bringing and maintaining the action.1
Turning to the T. Rowe Price stock plan, the trial court found no basis for the apportionment calculated by the Appellee’s expert witness. As a result, the court awarded each party half of the stock, which was 1500 shares. Regarding the 401(k) account, the court found the evidence of tracing was lacking, so the account was entirely marital property. The court said half of the account should be transferred to the Appellant. Lastly, the court found that the Datsun car was the non-marital property of the Appellee, and he could do with it what he wished.
The court then turned to the factors outlined in § 8-205 of the Family Law statute. The court analyzed all eleven factors.
The court found that the parties contributed equally to the well-being of the family, where the Appellant provided more non-monetary support, and the Appellee contributed more financially. The court calculated that the total marital assets were $2,685,903.72, so each party’s share was $1,342,951.86. With that award, the court determined that the parties “do have significant assets and accounts upon which to live at least modestly.” Regarding when marital property was acquired, the court noted that “[t]he parties contributed equally to the acquisition of their marital property.” The court recognized that the Appellee “brought the stock plan and 401(k) into the marriage, totaling approximately $9,500 and $19,000.00, which significantly increased over the years.”
After analyzing the statutory factors, the court concluded that “[a] monetary award of $120,000 is appropriate as an adjustment of the parties’ equities in marital property, particularly the 401(k). [Appellee] contributed just under $30,000.00 of non-marital funds into the stock plan and 401(k) prior to the parties’ marriage in June, 1993.” While not marital property, the court found that the 401(k) has considerable funds in it and funds were not removed during marriage or commingled into a joint account like the stock plan.
The Appellant then filed a motion to reconsider the judgment, which the trial court denied on February 22, 2023. The Appellant then filed this timely appeal.
STANDARD OF REVIEW
Maryland Rule 8-131(c) governs our standard of review in cases decided without a jury:
When an action has been tried without a jury, an appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.
DISCUSSION
Monetary Award of $120,000.00
A. Parties’ Contentions
The Appellant argues the trial court erred as a matter of law or abused its discretion when it awarded $120,000.00 to the Appellee after evenly dividing the marital property. The Appellant argues that a monetary award in a divorce action is meant to counterbalance unfairness in the distribution of property and there was no unfairness to counterbalance in this case. The Appellant contends that the trial court failed to explain why the equal distribution of assets was not equitable and that the award itself created an inequity that this court should consider clear error.
The Appellee argues there was no error in this case and the trial court properly followed the statutory criteria. The Appellee disputes the case law cited by the Appellant and argues the final disparity in the award is not so sizeable as to create an error. The Appellee argues that the trial court properly exercised its discretion in ordering an award to reflect that the Appellee brought premarital assets into the marriage.
B. Standard of Review
In a divorce case, the trial court’s determination of whether an asset is marital or non-marital property is a question of fact, which we review under the clearly erroneous standard. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021) (quoting Collins v. Collins, 144 Md. App. 395, 408–09 (2002)).
We review the trial court’s ultimate decision to grant a monetary award and the amount of the award under the abuse of discretion standard. Id. (citing Abdullahi v. Zanini, 241 Md. App. 372, 407 (2019). Under the abuse of discretion standard, “we may not substitute our judgment for that of the fact finder, even if we might have reached a different result . . . .” Flanagan v. Flanagan, 181 Md. App. 492, 521–22 (2008) (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 230, cert. denied, 361 Md. 232 (2000)). However, even under that deferential standard, “a trial court must exercise its discretion in accordance with correct legal standards.” Id. (quoting Alston v. Alston, 331 Md. 496, 504 (1993)).
C. Analysis
“When the division of marital property by title is inequitable, the chancellor may adjust the equities by granting a monetary award.” Flanagan, 181 Md. App. at 519 (citing Long v. Long, 129 Md. App. 554, 579 (2000)). The purpose of the monetary award is “to compensate a spouse who holds title to less than an equitable portion of” the marital property. Id. (quoting Ward v. Ward, 52 Md. App. 336, 339–40 (1982)) (internal quotations omitted).
There is a three-step process to determine whether to grant a monetary award. Abdullahi, 241 Md. App. at 405. The first step is for the judge to determine whether each item of disputed property is marital or non-marital property. Id. (citing Flanagan, 181 Md. App. at 519); see also Md. Code, Fam. Law § 8-203(a) (“In a proceeding for . . . an absolute divorce, if there is a dispute as to whether certain property is marital property, the court shall determine which property is marital property.”). Marital property is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” Md. Code, Fam. Law § 8-201(e)(1). 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.” Id. at § 8-201(e)(3).
The second step is for the judge to determine the value of the marital property. Abdullahi, 241 Md. App. at 405 (citing Flanagan, 181 Md. App. at 519); see also Md. Code, Fam. Law § 8-204 (stating with exceptions that “the court shall determine the value of all marital property”).
Lastly, the court “may transfer ownership of an interest in property . . . grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded.” Md. Code, Fam. Law § 8-205(a)(1). The court’s role is to “‘decide if the division of marital property according to title would be unfair,’ and if so, it ‘may make a monetary award to rectify any inequity created by the way in which property acquired during marriage happened to be titled.’” Abdullahi, 241 Md. App. at 405–06 (citing Flanagan, 181 Md. App. at 519–20) (internal quotation and citation omitted). The court
must consider a list of statutory factors before making that determination:
(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.
Md. Code, Fam. Law § 8-205(b). “While a trial court is vested with broad discretion in deciding whether to grant a monetary award, . . . the exercise of that discretion should be informed and based upon reason.” Murray v. Murray, 190 Md. App. 553, 572 (2010) (quoting Freese v. Freese, 89 Md. App. 144, 153 (1991)) (internal quotations omitted).
Turning to this case, the court followed this process before making its award. The parties did not dispute that a majority of the property was marital property. The Appellee requested that the court find that 64.3% of the 3,000 shares in the T. Rowe Price Employee Stock plan was non-marital, which would equate to 1,928.27 shares, which the Appellee valued at $238.083.50. The Appellee also contended that $220,000.00 in the 401(k) account was non-marital. The Appellant argued both were entirely marital property.
The court analyzed the disputed marital property in its ruling. For the T. Rowe Price stock plan, the court stated that there were three separate stock sales since the marriage in 1999, 2002 and 2020. The court found that the Appellee did not prove whether the sales involved marital or non-marital shares. As a result, the court said the stock plan was so commingled that the account and any stock within it were marital and awarded each party one-half of the stock in the account. For the 401(k) account, the court determined that the expert was unable to trace the initial non-marital funds and what they would be worth today. The court then found that the 401(k) account was 100% marital and should
be split evenly between the parties. The trial court properly determined whether the property was marital or non-marital and assigned its value.
After determining what property was marital, the court turned to the § 8-205(b) statutory factors. The court analyzed each factor. For the economic circumstances of the parties, the court determined that the parties “do have significant assets and accounts upon which to live at least modestly.” Regarding when marital property was acquired, the court noted that “[t]he parties contributed equally to the acquisition of their marital property.” The court recognized that the Appellee “brought the stock plan and 401(k) into the marriage, totaling approximately $9,500 and $19,000.00, which significantly increased over the years.” The trial court properly considered the statutory factors before moving to the final step of granting the monetary award.
The court then concluded that a monetary award of $120,000.00 was appropriate “as an adjustment of the parties’ equities in marital property, particularly the 401(k).” This was because prior to the marriage the Appellee contributed “just under $30,000.00 of non-marital funds into the stock plan and 401(k) prior to the parties’ marriage.” The court said that the 401(k) had considerable value, funds had not been removed from the account, and funds were not commingled like the stock plan funds. The court went on to explain that “[i]t would be unfair, unjust and inequitable not to grant a monetary award to husband given his non-marital contributions to the marriage and its overall marital property.” The decision to award the Appellant $120,000.00 was an appropriate action under the statutory procedure recognizing the factor of when marital property was acquired. The court properly followed the three-step process to grant its monetary award. While following the statutory process, the Appellant argues that the trial court still abused its discretion in granting an award because there was no inequity to correct. The Appellant argued that since the Appellee failed to trace any pre-marital investments, it was improper for the trial court to support its reasoning with the Appellee’s “non-marital contributions to the marriage.” We disagree with this argument as it collapses the statutory three-steps. When performing the first step of determining which property is marital, the trial court recognized the Appellee’s arguments that he brought premarital assets into the marriage. However, under the analysis of that step, those assets could not be distributed as nonmarital assets because of the lack of tracing, since the T. Rowe Price stock was commingled with marital stock in a joint account and the expert failed to calculate the current value of the pre-marital interest in the 401(k) account. Both accounts were entirely marital property under the marital property definition because the Appellee failed to show that any amount of money or stocks in the current accounts were “directly traceable” to property “acquired before the marriage.” Md. Code, Fam. Law § 8-201(e)(3).
The court then turned to the statutory factors under FL § 8-105(b). One of those factors asks the court to look at “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[.]” Md. Code, Fam. Law § 8- 205(b)(8). This statutory factor allows the court to recognize that one party brought specific marital property into the marriage, which the court did here. The balancing of equities the court performs in determining the amount of a monetary award does not have the same burden of proof for tracing as the marital property determination. The trial court here altered the award from a 50/50 split in order to account for the pre-marital assets that Appellee brought into the marriage, which was a proper fact for the court to consider.
The Appellant also contends that the Court erred by not explaining the particular amount of the award. In Wasyluszko v. Wasyluszko, 250 Md. App. 263 (2021), the court said that the trial court did not create a sizeable disparity after granting an award that meant one party held 54% of the property and the other had 46% of the property. Id. at 282. We said that the award in that case did “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. at 282. We reiterated the statement that the court “is not required to articulate every step in [its] thought processes” because mere silence will not rebut the presumption that a judge “know[s] the law and [how] to properly apply it.” Id. at 282–83 (quoting Imagnu v. Wodajo, 85 Md. App. 208, 221 (1990)).
Here, the final split of the assets means that the Appellee will have 57% of the marital assets and the Appellant will have 43%. This case has a similar final split to Wasyluszko, and the award does “not create such a lopsided result” that the court needed to explain its specific calculation. Id. at 282. The court considered all of the statutory factors before giving its award. While it did not explain how it arrived at the specific value of $120,000.00, the court explained that the award was meant to compensate for the Appellant’s premarital contributions to the stock plan and 401(k) and was less than the $220,000.00 that the Appellant argued was nonmarital in the 401(k). Additionally, the award here is a far cry from prior cases where an unexplained disparity compels the court to vacate the award. See Flanagan v. Flanagan, 181 Md. App. 492, 526–27 (2000) (vacating a “sizeable, unexplained disparity” where the appellee retained 86.7% of the marital property); Long v. Long, 129 Md. App. 554, 575, 578 (2000) (remanding an award that “titl[ed] lopsidedly in favor of Husband” who was awarded 80.2% of the marital assets because the chancellor failed “to give adequate force to his own findings”). Here, the court used its discretion to provide a monetary award and provided reasoning as to why the award was being granted and acted within its discretion. We hold that the trial court did not abuse its discretion in awarding the Appellee $120,000.00.
Denial of Appellant’s Claim for Attorney’s Fees
A. Parties’ Contentions
The Appellant argues the trial court abused its discretion by denying her claim for attorney’s fees. The Appellant claims that she was justified in defending the case and prevailed on the issue of whether the money in the accounts was marital property. The Appellant argues that the Appellee’s “attempt to exclude property as marital was not based upon any credible evidence and was in bad faith” and therefore the trial court
should have awarded her attorney’s fees.
The Appellee contends that the trial court did not err in denying the Appellant’s request for attorney’s fees. The Appellee argues that the trial court properly reviewed the necessary factors to decide whether or not to grant an award and properly ruled that an award of fees was not necessary.
B. Standard of Review
An award of attorney’s fees is subject to the trial court’s discretion. David A. v. Karen S., 242 Md. App. 1, 23 (2019) (citing Petrini v. Petrini, 336 Md. 453, 468 (1994)). We should not reverse the trial court’s decision on this matter “unless the ruling was arbitrary or clearly incorrect or both.” Abdullah, 241 Md. App. at 425 (quoting Huntley v. Huntley, 229 Md. App. 484, 497 (2016)).
C. Analysis
A trial court is permitted to order one party to pay the other party’s attorney’s fees in a matter concerning property disposition in divorce. Md. Code, Fam. Law § 8-214(b). Before the court orders the payment, the court must consider “(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding.” Id. at § 8-214(c); see also Collins v. Collins, 144 Md. App. 395, 447 (2002) (referring to Family Law § 12-103(b), describing how the court “does not have to recite any ‘magical’ words so long as its opinion, however phrased, does that which the statute requires”).
Here, the trial court’s opinion devoted a section to attorney’s fees. The trial court concluded that “each party has the financial wherewithal to contribute to the other’s attorney’s fees, but there is no justification for doing so in this case. Both parties were essentially justified in bringing and maintaining this court action.” The court noted there were discovery issues on both sides and issues with experts and recognized that the Appellant “was the one most interested in seeking a prompt resolution of this matter without significant litigation expense.” The trial court’s opinion showed that the court considered the parties’ financial needs and whether they had a substantial justification for prosecuting or defending the proceeding, determining that they did. See Flanagan v. Flanagan, 181 Md. App. 492, 546 (2008) (vacating and remanding decision where trial court failed to make express findings about whether parties had the ability to pay or if the actions were substantially justified). As a result, the court properly determined it could not award attorney’s fees to either party.
The Appellant argues that she “should not be penalized by justifiably defending what was rightfully determined to be 100% marital property.” A denial of an award of attorney’s fees is not a “penalty” in our legal system. The general principle, or “American rule,” is that “each party to a case is responsible for the fees of its own attorneys, regardless of the outcome.” Royal Inv. Group, LLC v. Wang, 183 Md. App. 406, 456 (2008). Family Law § 8-214 is a statutory exception to that rule, but that does not mean a party is entitled to the trial court imposing the payment of the fees under the statute. The decision is left to the trial court to award or deny fees, and here the trial court properly exercised its discretion to make
each party pay its own fees. The Appellant argues that she was diligent in trying to resolve the case, and the trial court recognized her desire for a “prompt resolution,” but that still does not require the court to award attorney’s fees.2
Further, this argument does not properly apply the standard for substantial justification. The Appellee’s claims that portions of his employee stock plan and 401(k) account were non-marital were not baseless and the trial court found he had substantial justification in bringing those claims. “A party lacks substantial justification to maintain or defend a proceeding when it has no ‘reasonable basis for believing that the claims would generate an issue of fact for the fact finder.’” State v. Braverman, 228 Md. App. 239, 262 (2016) (quoting Inlet Assocs. v. Harrison Inn Inlet, Inc., 324 Md. 254, 268 (1991)). That was not the case here, as the Appellee brought an expert to court to make an argument supported by evidence that he could trace his pre-marital assets. While the argument was ultimately unsuccessful, that does not mean the party was not justified in making the argument and, as the trial court concluded, the Appellant’s arguments that portions of the 401(k) plan and stock portfolio were nonmarital had substantial justification.
The trial court did not abuse its discretion when it denied the Appellant’s claim for attorney’s fees.
Determination of 1972 Datsun Vehicle as Marital Property
A. Parties’ Contentions
The Appellant argues that the trial court erred as a matter of law when it determined that the Datsun vehicle was not marital property. The Appellant argues that the vehicle was acquired from the Appellee’s brother and marital funds were used to improve the vehicle. The Appellant argues the vehicle was acquired during the marriage and therefore should be marital property as a matter of law.
The Appellee argues that the title of the car created a rebuttable presumption of ownership for the Appellant.
The Appellee argues that the Appellant’s claims about the purchase of the Datsun are not in the trial court record so the trial court’s determination that the Datsun was not marital property was not in error.
B. Standard of Review
As discussed above, in a divorce case the trial court’s determination of whether an asset is marital or non-marital property is a question of fact. Wasyluszko v. Wasyluszko, 250 Md. App. 263, 269 (2021) (quoting Collins v. Collins, 144 Md. App. 395, 408–09 (2002)). We review factual findings under the clearly erroneous standard. Id. (citing Rule 8-131(c)). “When the trial court’s findings are supported by substantial evidence, the findings are not clearly erroneous.” Innerbichler, 132 Md. App. at 230.
C. Analysis
The property at issue was a 1972 Datsun car valued by the parties at $10,000. The Appellee testified, “We have a Datsun that is in my name, that my son drove as a high school student, I am keeping it for him. I would like to transfer that into his name.” The Appellant agreed the parties’ son drove the car, but said it did not belong to him. She said that her son
drove it for two years in high school and the parties’ other son drove it a little in high school. In its ruling, the trial court found that the Datsun car was non-marital property.
“Our case law is clear that the burden of proof as to the classification of property as marital or non-marital rests upon the party who asserts a marital interest in the property, and that party must present evidence as to the identity and value of the property.” Murray v. Murray, 190 Md. App. 553, 570 (2010) (citing Pickett v. Haislip, 73 Md. App. 89, 97 (1987), cert. denied, 311 Md. 719 (1998)); see also Malin v. Mininberg, 153 Md. App. 358, 428 (2003) (“The party who claims a marital interest in property has the burden of proof as to that claim.”). Here, the Appellant asserted that the vehicle was marital property and therefore held the burden of proof on that fact.
The Appellant argues before this court that “[t]he uncontroverted testimony of the parties was that they purchased the Datsun vehicle in question from [Appellee’s] brother and thereafter contributed substantial marital funds into fixing the vehicle up for use by their son.” However, that information does not appear in the transcript or arguments before the trial court. The Appellant’s citation to the record here does not direct this Court to that information. Whether or not that testimony is true, the trial court was not given the opportunity to consider that fact about the vehicle’s purchase and the Appellant failed to meet their burden of proof on the Datsun’s property status.
There was sufficient evidence presented to the trial court that the car was non- marital property. The court heard that the car was titled in the Appellee’s name, and the parties agreed to that fact in their joint statement concerning marital property. Title registration raises a rebuttable presumption of ownership. Johnson v. Dortch, 27 Md. App. 605, 617 (1975) (citing Liberty Mutual Insurance Co. v. American Automobile Insurance Co., 220 Md. 497, 500 (1959)). “[W]hether the presumption of [a vehicle’s] ownership has been rebutted is ‘clearly a question for the trier of the facts to decide,’ and its decision will not be disturbed on appeal unless it is clearly erroneous.” One Ford Motor Vehicle VIN No. 1FACP4lA8LFZ17570 v. State, 104 Md. App. 744, 751 (1995) (quoting Liberty Mutual Insurance Co., 220 Md. at 500) (citation omitted). There was no evidence presented that rebutted the vehicle’s ownership as belonging to anyone but the title-holder, the Appellee, who let his son use it while in high school.
Given that there was no testimony regarding when the car was acquired,3 and the Appellant failed to meet her burden of proof to show that the car was marital property, the trial court was permitted to rely on the evidence about the car’s title and determine that the Datsun was non-marital property belonging to the Appellee. We do not hold that the trial court determining that the Datsun was non-marital property was clearly erroneous.
Admission of Appellee’s Expert’s Report
A. Parties’ Contentions
For this final issue, the Appellant argues that the trial court abused its discretion when it permitted the Appellee’s expert witness to testify about a report that was not provided to the Appellant until the day of trial. During the testimony of
Daniel O’Connell, the Appellant objected to Mr. O’Connell’s testimony and reports varying from his previously provided reports. The Appellant says that the admission of this report was unfairly prejudicial due to the Appellant’s inability to properly review the changes.
The Appellee disputes that there were any prejudicial changes in the exhibits since the percentages of marital versus non-marital values in each account did not change. The changes to the documents were, according to the Appellee, changes to update the values based on market conditions which were more precise. Additionally, the Appellee argues any errors were harmless since the court ultimately ruled that the non-marital contributions to the accounts could not be properly traced.
B. Standard of Review
“The admissibility of evidence ordinarily is left to the sound discretion of the trial court.” Colkley v. State, 251 Md. App. 243, 263 (2021) (quoting Moreland v. State, 207 Md. App. 563, 568 (2012)).
C. Analysis
This issue concerns two reports entered at trial during the testimony of the Appellee’s expert Daniel O’Connell on November 30, 2022. The first was an updated report on the 401(k) account that was prepared on November 28, 2022, entered into evidence as Plaintiff’s Exhibit 2. The prior report, entered as Plaintiff’s Exhibit 1, was prepared on November 9, 2022. The initial report concluded that the 401(k) account was worth $893,608.00, with a marital value of $686,790.00 and a non-marital value of $206,818.00. Mr. O’Connell testified that this established a ratio of 77% marital property to 23% non-marital property. Exhibit 2 concluded that the 401(k) account was now worth a total of $941,383.00, with a marital value increased to $722,969.00 and the nonmarital value increased to $218,414.00. The percentages of each type of property remained unchanged, the whole account just increased in value. There were no differences in the methodology used in the updated report.
The Appellant entered into evidence a prior draft report updated to September 9, 2022, that was used in settlement discussions. In that report, the percentage of non-marital and marital property was the same as in the final report. However, the methodology changed, as initially Mr. O’Connell looked at the portfolio as a whole, but the updated reports looked at the individual funds. He testified that both methods are appropriate but that the updated report “is more detailed and precise.”
The second report was an updated report on the T. Rowe Price stock prepared on November 29, 2022, entered into evidence as Plaintiff’s Exhibit 4. The prior report, entered as Plaintiff’s Exhibit 3, was also prepared on November 29, 2022. The initial report concluded that the 3,000 shares were worth $321,360.00. It allocated 64.3% of the shares as non-marital, or 1,928.27 shares, and 35.7% as marital, or 1071.73 shares. The updated report, Exhibit 4, had the same percentages of shares allocated as marital versus non- marital, but with an updated share price that changed the total value of the 3,000 shares to $361,500.00.
Both reports were updated versions of the report Mr. O’Connell used at his deposition, which was prepared on June 1, 2022, and entered as Plaintiff’s Exhibit 5. The difference between the deposition report and the two updated reports was that Mr. O’Connell was able to use an income tax return to determine that the 1999 stock sale involved only marital shares being sold. The deposition report prorated the 1999 sale like it had for the 2002 and 2020 sales, but the updated reports assigned all 500 sold shares to the marital share category. This meant that there was a change in the percentage allocation, as the deposition report had 53.2% of the shares as non-marital and 46.8% of the shares as marital.
The Appellant deferred on objections to the exhibits until after cross-examination. During cross-examination, the Appellant was able to challenge the methodology used in the 401(k) reports. The Appellant objected to the reports because the most recent reports were not shown to the Appellant before trial. The trial court ruled that it was unsure how the documents were prejudicial to the Appellant and the Appellant had the opportunity to cross-examine Mr. O’Connell, so the documents were admitted.
As discussed in more detail above, in its ruling the trial court did not find Mr. O’Connell presented sufficient evidence to trace non-marital property, and awarded each party half of the shares from the stock plan and half of the 401(k) account values.
We disagree with the Appellant that the updated reports made Mr. O’Connell’s testimony “tantamount to a new expert that had not previously been identified.” Mr. O’Connell testified to what changes were made in the reports between his deposition and the trial. The Appellant compares the Appellee’s actions to the plaintiff’s actions in Asmussen v. CSX Transportation, Inc., 247 Md. App. 529 (2020). In that case, the plaintiff served an expert witness designation for four different witnesses. Id. at 536–37. The plaintiff then withdrew one of the witnesses and later tried to add the expert again after the discovery period ended. Id. at 539. The circuit court said there was not sufficient cause to allow the expert to be added when the plaintiff made a “tactical choice” to choose one expert over another, only to find the chosen expert was ineffective. Id. at 542. This court agreed with the lower court that it was proper to strike the additional expert. Id. at 556.
This case differs greatly from Asmussen. Here, Mr. O’Connell was the Appellee’s designated expert on the parties’ finances from the start of the case, designated specifically to analyze the T. Rowe Price stock and the 401(k) retirement plan. The Appellant was able to depose Mr. O’Connell. The identity of the expert did not change, and the Appellee did not choose a new expert because he found Mr. O’Connell’s opinion to be insufficient. Mr. O’Connell reached his conclusions in the area the Appellee said he was retained to analyze. Asmussen is not controlling in this case.
Experts, within reason, may clarify or provide more support to their expert opinions. See Katz, Abosch, Windesheim,
JUDGMENT
Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC, 485 Md. 335 (2023). In Katz, the Supreme Court of Maryland, analyzed the opinion of a CPA who changed her calculations leading up to a Daubert-Rochkind hearing. Id. at 347. The expert re-examined the available data and updated her calculations. Id. at 352–53. The Court said that these adjustments “did not implicate the reliability of her methodology.” Id. at 382. Instead, the adjustments went to the care of her conclusion, which could be explored on cross-examination. Id. at 382.
Regarding the stock analysis, the same happened here, as Mr. O’Connell’s method did not change, but rather he received new information in the form of the income tax return and updated his results accordingly. This change did not implicate the reliability of Mr. O’Connell’s methodology. Further, the Appellant did not ask for a hearing to challenge the reliability to any of Mr. O’Connell’s changes to his methodology, or a postponement to analyze the reports further. The Appellant’s issue was limited to the surprise from the document. Regarding the change to the analysis of the 401(k) reports, the Appellant was able to cross-examine Mr. O’Connell on the changes to his methodology and attack the method’s reliability.
The Appellant would have wanted the reports excluded from evidence, but the “[e]xclusion of evidence for a discovery violation is not a favored sanction and is one of the most drastic measures that can be imposed.” Morton v. State, 200 Md. App. 529, 543 (2011) (quoting Thomas v. State, 397 Md. 557, 572 (2007)). The court recognized in its ruling that this was a discovery issue, stating that Mr. O’Connell “effectively changed his valuation and/or method of valuing those interests with limited or any notice to [Appellant].” While the court did not exclude the evidence, it also found that the Appellee could not properly trace the pre-marital 401(k) assets or T. Rowe Price stock. The trial court was permitted to admit the evidence and subsequently conclude that the evidence did not meet the Appellee’s burden of proof for non-marital property. Any prejudicial effect is lessened because the trial judge disagreed with Mr. O’Connell’s conclusions.
The Appellant argues that even though the trial court did not adopt Mr. O’Connell’s conclusions, there was still prejudice because the monetary award was based upon Mr. O’Connell’s conclusions and had the reports been excluded then those amounts would not have been considered. As we discussed above, there was no abuse of discretion in granting the monetary award and the trial judge had sufficient evidence to reach his conclusion. We will again affirm that decision here.
The trial court did not abuse its discretion in admitting Mr. O’Connell’s updated reports.
CONCLUSION
Accordingly, we affirm the judgment of the Circuit Court for Talbot County.
FOOTNOTES
1 The court also references issues with discovery on both sides, describing that the “discovery required in this case likely exceeded what was necessary, and supplementation of it, on both sides, was untimely.” The court noted that it had excluded an expert from the Appellant because of the delay in discovery and that the Appellee’s expert changed his valuation and method with limited or no notice to the Appellant, referring to Mr. O’Connell and the reports discussed in the fourth issue.
2 The statute does require awarding attorney’s fees when the court finds there was an absence of substantial justification and no finding of good cause to the contrary, but that finding was not made here, so the decision remained within the trial court’s discretion. Md. Code, Fam. Law § 8-214(d).
3 Had the car been acquired during the marriage, as the Appellant argued, then under the definition of marital property, the car would be marital property even if titled in the Appellee’s name alone. Md. Code, Fam. Law § 8-201(e)(1). However, since the car is a 1972 Datsun, it is presumably possible that the car was purchased by the Appellee between 1972 and 1993 when the parties married, which would make the car non-marital property. The age of the car allowed for the rebuttable presumption that would not have been present for an item that was necessarily purchased during the years the parties were married.
