Maryland’s new custody statue more ‘child-centric’
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Balancing pets and custody in divorce cases
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to previous case law, attorneys need to study the new statute too.
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Nathan Volke, an attorney with Silverman Thompson in Baltimore, said that while the statute is similar
Vol. XXXVI, No. 10
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3 Child Advocacy: Reasonable efforts before and during CINA case
4
Cover Story: New custody statue is hailed as more ‘child-centric’
6 In the News: Pet custody in divorce cases
Courts often struggle with how to treat family pets in divorce cases. Should they be treated as property like a car or couch, or should their bonds shared with humans be considered with the best interest for the animal involved?
7 In the News: Custody award was supported by evidence
In Virginia, an appeals court found that the awarding of primary custody to the wife was in the children’s best interest and the circuit court properly considered statutory factors based on evidence.
8 Monthly Memo
South Florida matriarch sentenced to life in prison in hired killing of former son-inlaw. … Oklahoma counselor releases book helping blended families thrive. 9 Family Law Digest
Reasonable efforts before and during a CINA case
Before seeking to remove a child from their home, the Department of Social Services is required to make reasonable efforts to prevent the removal of children from their family, except in certain statutorily defined emergency circumstances.
Reasonable efforts must be targeted, specific, and tailored to prevent removal.
They may include referring parents to substance use or mental health treatment; referring children to therapeutic services; providing financial assistance for housing, food and transportation; and implementing a plan that allows the child to remain in the home with a safety plan.
If the Department removes children from their home, the Department must immediately petition the juvenile court, and a shelter care hearing must be held on the next day that the court is open. MD Code, Cts. & Jud. Proc., §3815(c).
The court may only continue shelter care to the Department if (1) returning the child to their home is contrary to the child’s safety and welfare; and (2) removing the child from their home is necessary due to an alleged emergency situation and to provide for the safety of the child, or reasonable efforts were made but were unsuccessful in preventing or eliminating the need for removal of the child from their home. MD Code, Cts. & Jud. Proc., §3-815(d).
If the Department removes children from their family without first providing reasonable efforts to prevent the removal, and there is not an emergency circumstance that necessitated immediate removal, then the court should return the children to a parent’s custody at the shelter care hearing.
Attorneys for parents and children must ensure that the Department
M. WEAVER SHANNON
Child Advocacy
made reasonable efforts to keep families together prior to removal of children, except where emergency circumstances and imminent risk to a child’s health or safety were present.
If a child is committed to the Department and enters the foster care system, the Department’s obligation to make reasonable efforts towards reunification continues.
The Department is required to make reasonable efforts to finalize the child’s permanency plan. MD Code, Cts. & Jud. Proc., §3-816.1(b) (2)(i).
Consider the case of an infant removed from his parents after a hospital reported that he suffered a traumatic brain injury and multiple skeletal fractures in different stages of healing, and that the injuries were diagnostic for physical abuse.
If the Department did not have prior involvement with this family, then the removal will be based on the emergency circumstance of the child’s physical injuries and to provide for the child’s safety.
In this scenario, the Department could request to waive the requirement for reasonable efforts towards reunification if the physical abuse is found to be chronic and severe.
If there is no request, or the court does not find clear and convincing evidence to waive reasonable efforts to reunify the child, then the Department must make reasonable efforts to reunify this child with his parents.
Such efforts may include following up on the child’s medical diagnoses and ensuring the child receives medical treatment and
services; identifying the parents’ needs and referring them to any appropriate programs, classes, or therapeutic services; providing parent-child visitation; and providing assistance with any other needs for the family to achieve reunification.
If a parent cannot safely and timely achieve reunification, and the Department made reasonable efforts to support the plan of reunification, then the court may change the child’s permanency plan, where doing so is in the child’s best interest. MD Code, Cts. & Jud. Proc., §3-823.
When a child’s permanency plan is changed, the Department is required to make reasonable efforts towards the new plan, which is usually achieving permanency with a relative or non-relative through adoption or custody and guardianship.
Reasonable efforts towards plans of adoption or custody and guardianship may include assessing the safety and stability of the child’s placement; providing therapeutic or other services to the child and family; and completing a home study to determine the suitability of the placement resource as an adoptive parent or legal guardian for the child.
Significant efforts by the Department are necessary to ensure that children do not linger in foster care.
The Department must make every reasonable effort to support timely reunification with a parent, generally within one year of the child entering foster care.
Where reunification is not deemed safe, the Department must make reasonable efforts to ensure that the child obtains permanency with his relative or non-relative caregiver.
Shannon M. Weaver is a Supervising Attorney at Maryland Legal Aid.
New custody statute hailed as more ‘child centric’
By Hope Keller
Special to The Daily Record
Family law attorneys are enthusiastic about Maryland’s new custody statute, saying the factors the court must now consider are more specific and “child-centric” than the case law factors previously relied upon.
The statute (Md. Code, Family Law Section 9-201), which took effect Oct. 1, enumerates 16 factors that a court needs to weigh when deciding how to
award legal and physical custody of a child.
“The previous factors were very general,” said Michelle Smith, a member of the MSBA’s family law section council and chair of the legislative committee. “The standard has always been the best interests of the child, but those factors were sometimes vague and hard to understand.”
For example, the previously used case law factors referred to the “fitness
of the parents” or the “character and reputation” of each party.
“Those could be interpreted in a variety of different ways,” said Smith, a partner at Trainor, Billman, Bennett, Milko & Smith in Annapolis. “Now we have factors that are not party-centered but child-centered and that are a product of a very in-depth, court-ordered study that involved professionals who specialize in children and custody matters.”
SUBMITTED PHOTO
Nathan Volke, an attorney with Silverman Thompson in Baltimore, said that while the statute is similar to previous case law, attorneys need to study the new statute too.
Smith noted that before the law took effect this month, Maryland was one of only eight states that did not have a custody statute.
Sarah Zimmerman, a founding partner at Tucker Family Law, which has offices in Bethesda, Washington, D.C., and Virginia, said she saw a silver lining in Maryland’s delay.
“I think that the benefit of this statute coming in late is that it’s more informed by modern culture and the experience of the bar and the professionals in this area,” she said.
Greater specificity
Zimmerman said she appreciated the level of detail in the new statute.
“Instead of just saying ‘the child’s developmental needs,’ it specifically (cites) physical safety and emotional safety, positive self-image, intellectual growth, interpersonal skills,” she said.
In particular, Zimmerman hailed the new emphasis on determining whether parents can place their child’s needs above their own.
“You really need to protect the child from the negative effects of conflict between the parents,” she said. “Research shows that conflict is one of the worst things for children, whether they’re in an intact or non-intact family.”
Continued Zimmerman: “I think the fact that the statute, and therefore the court, is homing in on this really makes it so much more child-centric.”
Parents and attorneys benefit from the new statute, Zimmerman said.
“It provides some predictability both for the parents about what’s going to be considered by the court, as well as for the lawyers, who are deciding whether it makes sense to take a case to trial,” she said.
The statute’s provisions also might encourage more people to settle, she added: “I think actually having more detailed, distinct factors for people to weigh can actually lead to more settlements and more thoughtful parenting plans for people who are settling.”
Presenting the case
Nathan Volke, of Silverman
Thompson in Baltimore, noted that the factors enumerated in the new statute were similar in some regards to the case law factors, which were drawn from Taylor v. Taylor (1986) and Montgomery County v. Sanders (1978). But he urged attorneys to study the new statute.
“It might be misleading to think, ‘Oh, they just took the Taylor and the Montgomery County factors and improved them in the statute,’ ” he said. “There’s a lot of overlap, but there are some specific, different factors that are coming in. How the courts are going to interpret those is where I think we as practitioners are now going to have to figure out, ‘OK, what’s the way that you want to present your case to hit this factor?’ ”
Continued Volke: “It will change what we’re presenting, how we’re presenting it and also how the courts are going to receive it.”
The new statute also requires judges to articulate their findings of fact on the record or in a written opinion, including their consideration of
each of the 16 factors.
Judges have generally noted the factors they considered, as it helps protect the record for appeal, Volke noted.
“So when it says in (the statute), ‘Hey, they have to enumerate the factors,’ that’s already happening by and large,” he said. “But (has it been) happening to the level that every attorney or every litigant would like? No, not necessarily.”
Pro se litigants
Attorneys emphasized that the statute was a boon to self-represented litigants, who, they say, make up a significant and growing percentage of the parties in family law cases. (According to a 2016 article in the Hastings Law Journal, at least one party appears without a lawyer in nearly 80% of family cases.)
“One clear advantage is that pro se litigants who are not experienced in doing case law research are able to more easily find the factors that the judge is going to consider when they come to court,” Smith said.
SUBMITTED PHOTO
Michelle Smith is a member of the MSBA’s family law section council and chair of the legislative committee.
Pet custody in divorce cases: Pure property v. best interest of the animal
Bridgetower Media Newswires
Divorce is rarely simple. Missouri courts are accustomed to navigating the complexities of dividing property and, in cases involving children, applying the “best interest of the child” standard to determine custody arrangements. Yet in cases involving pets, courts face a unique challenge. Should a dog or cat be treated like a car or couch under the rules of equitable distribution? Or should the law recognize the living, sentient nature of animals and the deep bonds they share with humans?
This tension lies at the heart of pet custody disputes in Missouri. Although historically animals were firmly placed in the category of personal property, modern Missouri case law and emerging national trends are grappling with whether that framework adequately addresses the realities of modern pet ownership.
Case Spotlight: England v. England
Missouri follows an equitable distribution model in divorce cases. This means marital property is divided fairly, though not necessarily equally, based on contributions, length of the marriage and other financial considerations. Pets, under this framework, are considered property. As such, courts have limited authority in resolving pet custody disputes.
The case England v. England, 454 S.W.3d 912 (Mo. App. W.D. 2015), is the leading case on pet custody disputes in Missouri and highlights the effects of the current pure property approach. In this case, the wife argued she should take custody of the dog because she was the primary caregiver for the dog, she was the one who would walk, feed, and water the dog, and she had an emotional bond with the dog to the point that she would refer to the dog as her “baby.” By contrast, the husband’s argument for custody was simply that the dog was a gift to him alone, and therefore was separate prop-
erty rather than marital property.
The court in England determined the dog was marital property rather than the husband’s separate property, noting that if the husband’s gift argument had prevailed, no consideration of care, attachment, or emotional bond would have been relevant. Because the dog was marital property, the court was able to review the equities and use its discretion in distributing property.
The case highlights the limited authority Missouri courts have in resolving pet custody disputes. Under Missouri law, there is no provision for joint custody of animals. In cases involving pet custody disputes, the judge must award sole custody of the pet to one party regardless of what might be best for the animal. The ultimate decision regarding who takes custody may come down to a technical property analysis without any consideration for the animal’s welfare or each party’s emotional bonds with the animal.
Balancing Property Rights, Animal Welfare, and Legal Consistency
Two central questions loom for Missouri courts and lawmakers: (1) Should Missouri law move beyond strict property classification? Treating pets purely as property may ignore emotional reality for families. Failing to account for that risks decisions that many feel are unjust to litigants; and (2) How should courts balance discretion? Expanding judicial discretion to consider caretaking and welfare may allow for more humane decisions, but also risks inconsistent outcomes and pets being unjustly removed from their owners.
Some states, such as California, New York, and Illinois have laws permitting courts to consider the welfare of the animal in divorce proceedings. Under these laws, such as the Illinois Dissolution of Marriage Act, 750 ILCS 5/503(n), courts
may order joint ownership and shall take the well-being of the animal into consideration. This allows the court to examine factors such as the primary caretaker, the emotional bond each person has with the animal and the pet’s living condition. These laws help ensure pets’ well-being and acknowledge their special status as more than mere property but generally stop short of treating pets like children.
Some scholars argue Missouri should follow Illinois’s example. Some go further and advocate for a true “best interest of the pet” standard, akin to child custody. Others suggest a hybrid approach, treating pets as “special property” that warrants more than a financial assessment. Critics of reform, however, warn against blurring doctrinal boundaries. They argue expanding custody-style analysis to animals could create unpredictability in litigation and open the door to broader claims involving animals outside the family context.
Conclusion
The treatment of pets under Missouri law sits at the crossroads of tradition and change. The property paradigm provides predictability but may not capture the lived experience of families who see their animals as more than assets. For now, Missouri courts remain bound by the principle that pets are property. But the growing recognition of their emotional and familial significance suggests reform may not be far off. Whether through incremental case law developments or legislative action, the challenge for Missouri is clear: how to respect established legal doctrine while honoring the bonds that make companion animals part of a family.
Joseph DaVault is the Associate Executive Director for the Missouri Alliance for Animal Legislation and serves as Vice Chair of The Missouri Bar’s Animal Law Committee.
Custody award was supported by evidence
Bridgetower Media Newswires
RICHMOND, VA -- Where the circuit court properly considered the statutory factors based on the evidence presented, and found that awarding wife primary custody was in the children’s best interest, that decision was affirmed.
Background
Huy Le appeals the circuit court’s final order of divorce.
Jurisdiction
Husband contends that the circuit court erred by “assuming subject matter jurisdiction without proper evidence or investigation” of wife’s “suspected” bigamy. He emphasizes that wife’s original complaint for divorce alleged that M.P. was her child from a “previous marriage” and that the attorney who filed her amended complaint withdrew due to “[p]rofessional and ethical considerations.”
However wife’s amended complaint substituted her original complaint. Therefore, the original complaint husband primarily relies on was, in effect, never filed. Regardless, wife’s mother testified that wife had not been married previously, and husband conceded that the parties could “move forward” based on her testimony. As such, there is no evidence that shows that the wife was either married previously or had failed to obtain a divorce from a previous marriage.
Children
The circuit court expressly considered each of the statutory factors before awarding wife primary custody of the children. It found, among other things, that wife was able to assess and meet the children’s physical, emotional and intellectual needs. By contrast, the circuit court was dubious about husband’s ability to do so and his “disturbing pattern of discipline.”
Similarly, the circuit court recognized that husband took the children to “activities,” but it found that
he did so infrequently. In sum, the circuit court properly considered the statutory factors based on the evidence presented and found that awarding wife primary custody was in the children’s best interest.
Husband asserts that the circuit court nevertheless erred by equally dividing the responsibility for transporting the children between the parties. He argues that wife’s relocation to Fairfax was not in the children’s best interest and that “it would have been more equitable for [wife] to be responsible for the transportation.”
But “when a trial court evaluates relocation for the first time in the initial custody order, it need only consider the best interests of the children, which is the test regularly used to determine custody.” As stated above, the circuit court properly considered the statutory factors and found that ordering the parties to share the responsibility of transporting the children to be in their best interest.
Health insurance
Husband contends for the first time on appeal that the circuit court erred by failing to order wife to provide health insurance for the children. Though he did not preserve his argument below, he asks that this court consider it under the ends of justice exception to Rule 5A:18 based on “the facts and circumstances of the case.”
Code § 20-60.3(8)(a) required the circuit court to order wife to provide health care coverage for the children. By failing to order wife to provide health insurance to the children, the circuit court’s final order allows her to discontinue the children’s health insurance policy to their detriment and an improper windfall to herself.
More importantly, the order in its present form, although providing for the cost of health care, does not mandate its existence nor contain
incentives to keep health care coverage for the children, allowing the parties to drop coverage for the children without any notice and without any repercussions.
Mortgage
The related bank statements do not show that husband used separate funds to pay the parties’ mortgage. Instead, they show that the parties received deposits in their joint Citibank account in varying amounts and from many sources. Husband’s counsel acknowledged at trial that husband had “commingled . . . funds all over the place.” Thus, the circuit court was not plainly wrong in finding that he failed to prove that he had paid the mortgage with separate funds.
529 accounts
The parties stipulated that the children’s 529 accounts were husband’s separate property. By ordering equal division after post-secondary education or age 23, the circuit court treated the children’s 529 accounts as marital property. The court remands the case to the circuit court to classify the children’s 529 accounts as husband’s separate property without condition and to reconsider its equitable distribution award accordingly. And “because we reverse [this portion of the] equitable distribution award and remand for reconsideration, we further direct the [circuit] court, on remand, to reconsider the issue of spousal support.”
Affirmed in part, reversed in part and remanded.
Le v. Le, Record No. 0596-24-4, Sept. 16, 2025. CAV (unpublished opinion) (Frucci). From the Circuit Court of Frederick County (Eldridge IV). Minji Kim (Prosper Law PLLC, on briefs), for appellant. Demian J. McGarry (Curran Moher Weis, P.C., on brief), for appellee. VLW 025-7255. 15 pp.
Monthly Memo In the News
South Florida matriarch sentenced to life in prison
TALLAHASSEE, Fla. — Donna Adelson, the matriarch of a wealthy South Florida family who was convicted in the hired killing of her former son-in-law, was sentenced Monday to life in prison for her role in the 2014 murder-for-hire of Daniel Markel.
A prominent Florida State University law professor, Markel was locked in a bitter custody battle with his exwife, Adelson’s daughter, when he was gunned down in 2014 at his home in Tallahassee.
Adelson, 75, was found guilty last month of first-degree murder, conspiracy and solicitation after a weekslong trial. She was sentenced to life without
the possibility of parole for the murder charge, with an additional 30 years for the other two counts, to be served consecutively. Adelson has pledged to appeal.
Associated Press
Oklahoma counselor releases book helping blended families thrive
OKLAHOMA CITY, OK -- Nearly 40% of children in the U.S. will experience their parents’ divorce by age 16. Oklahoma ranks among the top 10 states for high divorce rates.
An Oklahoma counselor, author and family advocate has released a new book addressing blended families. Steve Hudgins of Broken Arrow
authored “Piece by Piece: My Blended Experience of Mosaic Family.”
“I know firsthand how hard it can be to find your way after a life transition,” Hudgins said in a news release. “Piece by Piece is my way of giving parents and children hope, along with practical steps to help them be seen, heard, supported, and heal.”
In his private practice, Hudgins regularly works with families navigating divorce, remarriage and coparenting, giving him a front-row seat to the struggles of both parents and children. Motivated by these realities and a commitment to help families, he drew from his personal journey, clinical practice and doctoral research to write the book.
Bridgetower Media Newswire
Family Law Digest
Use the topic and case indexes at the back of this issue to find the full-text opinions that are of most interest to you.
IN THE MARYLAND APPELLATE COURT: FULL TEXT UNREPORTED OPINIONS
CUSTODY; MATERIAL CHANGE; SUFFICIENT EVIDENCE
Lauren Anne Plate v. John Gallagher No. 1816, September Term 2024
The Appellate Court affirmed the Howard County Circuit Court’s modification of custody. The circuit court had sufficient evidence to support a finding that a material change of circumstances had occurred: (1) mother’s move to Arlington and (2) the parties inability to communicate effectively regarding matters affecting the child’s welfare.
FINAL JUDGMENT; EVIDENTIARY CHALLENGES; MOOTNESS
Nathan M.F. Charles, Esq. v. Tiffany Summerfield Charles No. 1721, September Term 2023; No. 2388, September Term 2023
Argued before: Berger, Nazarian, Ripken, JJ
Opinion by: Nazarian, J.
Filed: July 23, 2025
The Appellate Court dismissed husband’s appeal from various evidentiary issues, the Montgomery County Circuit Court’s child support order and the denial of his motion to reconsider the denial of his preliminary injunction. Given that there is a final judgment of absolute divorce, husband’s issues with the evidentiary rulings and injunctive relief are moot. And the final judgment superseded the pendente lite order that husband is challenging.
RECOMMENDATION; FINAL JUDGMENT; APPEAL DISMISSED
Malik D. Brandon v. Meghan Welch No. 2282, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Arthur, J.
Filed: July 24, 2025
The Appellate Court dismissed father’s appeal of the magistrate’s written report containing her findings and recommendations. Because father noted the appeal before the entry of the final judgment—the Charles County Circuit Court’s order approving the magistrate recommendations—his appeal was premature. As such, his appeal had no force or effect. And when the circuit court actually approved the recommendations and entered the final judgment, father failed to file a notice of appeal.
BREACH OF CONTRACT; UNJUST ENRICHMENT; INCONSISTENT VERDICT
Edward Gazvoda Jr. v. Zachary Wentz No. 1653, September Term 2023
The Appellate Court vacated the Frederick County Circuit Court’s verdict awarding the decedent’s grandsons a total of $28,000 in damages on their claim that they did not receive full life insurance benefits: $5,000 for breach of contract, and $23,000 for unjust enrichment. The verdicts for breach of contract and unjust enrichment were irreconcilably inconsistent, and the circuit court erred as a matter of law in permitting them to stand. On remand, the grandsons must elect their remedies.
CHILD SUPPORT; RETROACTIVE; INEQUITABLE
Tyrena Jonnell Myers v. Jonathan Chege No. 1017, September Term 2024
The Appellate Court vacated the Baltimore County Circuit Court’s award setting the effective date of father’s child support obligation as Aug. 1, 2024. If a party requests child support pendente lite in an initial pleading, the court must award child support from the date of that initial pleading unless the court finds that doing so would lead to an inequitable result. The circuit court did not explicitly find or explain why awarding child support from the time of mother’s initial pleadings (Oct. 18, 2022) would lead to an inequitable result.
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of a motion to intervene. When the circuit court denied the motion, there was a lack of a justiciable controversy because there was no open case in which the intervenor could intervene, and no remedy the court could provide.
The Appellate Court affirmed the Baltimore City Circuit Court’s ruling that the paternal grandmother had not established de facto parenthood, and its award of sole legal and physical custody of child to mother. Mother left child in grandmother’s care because of safety concerns and other realities that mother endured after giving birth at age 16. The court properly found that mother was a fit and proper person and that custody with her was in the child’s best interest.
SUPERVISED VISITATION; BEST INTERESTS; FINDINGS
Reiko Asano v. Molefi Asante
No. 965, September Term 2022; Nos. 1920, 2015 and 2367, September Term 2024
Argued before: Wells, C.J., Graeff, Berger
Opinion by: Wells, C.J.
Filed: July 17, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s order regarding visitation and parenting time. Although mother argued the record did not support the circuit court’s finding that mother required supervised visits with the children, the circuit court made “specific factual findings based on sound evidence in the record” before ordering supervised visitation. Those findings support the circuit court’s determination that supervised visitation is in the children’s best interests.
The Appellate Court affirmed the Charles County Circuit Court’s denial of husband’s motion to revise its order appointing a trustee to sell the marital home. The court was not persuaded by husband’s arguments that the circuit court either committed legal error or abused its discretion in denying his post-judgment motions.
EXTRAORDINARY MEDICAL EXPENSE; INSURANCE; CONTEMPT
The Appellate Court affirmed the Baltimore County Circuit Court’s order: (1) that the cost of treating a teenager’s medical condition was an “extraordinary medical expense” under the State Child Support Guidelines and (2) holding father in contempt for refusing to pay his share of the costs of that treatment that were not covered by insurance.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Howard County Circuit Court’s modification of custody. The circuit court had sufficient evidence to support a finding that a material change of circumstances had occurred: (1) mother’s move to Arlington and (2) the parties inability to communicate effectively regarding matters affecting the child’s welfare
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..
On November 2, 2022, the parties executed a Separation and Marital Settlement Agreement (“MSA”). The MSA said the parties would share joint legal custody of L.G. The parties agreed neither parent would relocate from his or her current residence without providing a minimum of thirty days’ notice. The parties agreed they would regularly consult with each other about “their child’s education, religious training, health and other issues relating to her development and general welfare,” including seeking out medical and educational professionals when needed. The parties also agreed to a physical custody schedule of “2-2-5-5.”2 On January 6, 2023, the judgment of absolute divorce was finalized. The judgment incorporated, but did not merge into, the MSA. At the time the MSA was signed the parties lived separately less than a mile apart from each other.
Lauren Anne Plate, the Appellant, and John Gallagher, the Appellee, divorced at the end of 2023 after a marriage where the parties had one minor child. As the divorce was being finalized, the Appellant moved from Howard County, Maryland to Arlington, Virginia. The Appellee filed a motion to modify the parties’ physical custody based on the Appellant’s move. After a three-day hearing, the circuit court found a material change in circumstances from the Appellant’s move and the parties’ inability to communicate. The court ordered that the parties share joint legal custody with the Appellee having tie- breaking authorities and that the physical custody schedule would be modified with the Appellee eventually having primary physical custody of the minor child. The Appellant appealed both of those orders.
In bringing her appeal, Appellant presents two questions for appellate review:
Whether the circuit court abused its discretion in awarding Appellee tie-breaking authority for legal custody decisions?
Whether the circuit court abused its discretion in modifying the physical custody access schedule?1
For the following reasons, we affirm the judgment of the Circuit Court for Howard County.
FACTUAL & PROCEDURAL BACKGROUND
The Appellant and AppelWlee married on November 4, 2017. The parties then had a minor child, L.G., in March of 2020. The parties moved to Fulton in Howard County, Maryland from New York City, New York in July of 2020.
In November of 2022, the Appellant informed the Appellee that she would be moving from Howard County to Arlington, Virginia for work-related reasons. She confirmed her move to Arlington in December 2022 and then moved at the end of the month. On December 13, 2022, after learning about this move, the Appellee filed a motion to modify the physical custody agreement. The Appellee argued that the Appellant’s move to Arlington, Virginia would result in a material change of circumstances.
On June 14, 2023, the Appellee renewed his motion to modify physical custody, making the same argument that the Appellant’s move was a material change. The Appellee requested primary physical custody of the minor child.
The Appellant responded on July 11, 2023, arguing the physical custody schedule from the MSA could be maintained with a slight modification about pick-up times. The Appellant argued that there were no material changes in circumstance, but that if the court found there were, then her custodial time with the minor child should be increased.
The Appellant then filed an amended counterclaim on January 22, 2024. The Appellant said that the Appellee had become increasingly hostile and can no longer co- parent on important issues. The Appellant requested that the parties continue to have joint legal custody, but for the Appellant to be granted tie-breaking authority. The next day, the Appellee also amended his motion, arguing a similar breakdown in communication between the parties. The Appellee requested sole legal custody or to have tiebreaker authority and requested primary physical custody.
This case was heard by the Honorable Quincy L. Coleman over a three-day hearing from July 30 to August 1, 2024. At the hearing, both parties testified to conflicts they had with the other party since the MSA was signed. The parties shared
communications between them that were hostile, along with detailing specific instances of conflict over issues like religion and schooling. The Appellee’s mother, the Appellant’s then-boyfriend, and L.G.’s preschool teacher also testified to the relationship between the parties.
Judge Coleman issued a memorandum opinion in this case on November 6, 2024. Judge Coleman found a material change in circumstances from the Appellant’s move to Arlington, Virginia and the parties’ inability to communicate effectively. The court ordered that the parties should have joint legal custody, and the Appellee should have tie-breaking authority. Regarding L.G.’s physical custody, the court modified the schedule to a 4-3 schedule in favor of the Appellee,3 and then the Appellee would get primary physical custody when L.G. begins kindergarten. The Appellant timely appealed this ruling on November 13, 2024.
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) (citing In re Yve S., 373 Md. 551, 586 (2003)). We have previously described these standards as follows:
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. at 586). We must give “due regard . . . to the opportunity of the lower court to judge the credibility of the witnesses.” Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012) (quoting In re Yve S., 373 Md. at 584). We use the abuse of discretion standard because only the trial court “sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child.”
Id. (quoting In re Yve S., 373 Md. at 586). The trial court “is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.”
Id. (quoting In re Yve S., 373 Md. at 586).
DISCUSSION
Modification of Legal Custody
On this first issue, the Appellant argues that the circuit court should not have awarded the Appellee tie-breaking authority for legal custody when the Appellant herself should have been awarded tie-breaking authority. The Appellant contends that the Appellee “sought conflict at every opportunity and had no respect for [Appellant’s] input whatsoever.” The Appellant points to conflicts over L.G.’s faith, flu vaccinations, and schooling as times when the Appellee engaged in improper
conflict and miscommunication. The Appellant argues further that she had greater involvement than the Appellee in L.G.’s medical and educational life. Based on the facts the Appellant says were presented at the hearing, the Appellant argues the circuit court abused its discretion in awarding joint legal custody without tie-breaking authority for the Appellant.
The Appellee first notes that the circuit court found the Appellee to be more credible than the Appellant in making its ruling. The Appellee says that the circuit court properly found there was an inability to communicate between the parties and granted tie-breaking authority to the party that the Appellee argues the circuit court found more credible.
The Family Law Article of the Maryland Code allows equity courts to “direct who shall have the custody or guardianship of a child” and “from time to time, set aside or modify its decree or order concerning the child.” Md. Code, Fam. Law § 1-201(c)(1)–(4). As a part of this power, “equity courts have ‘plenary authority to determine questions concerning the welfare of children.’” Conover v. Conover, 450 Md. 51, 82 (2016) (quoting Stancill v. Stancill, 286 Md. 530, 534 (1979)).
This power means that awards of custody are not entirely beyond modification and “such an award therefore never achieves quite the degree of finality that accompanies other kinds of judgments.” Kadish, 254 Md. App. at 503 (quoting Frase v. Barnhart, 379 Md. 100, 112 (2003)).
In order to modify child custody, the court must first determine whether there has been a material change in circumstances. Gillespie, 206 Md. App. at 171 (citing McMahon v. Piazze, 162 Md. App. 588, 594 (2005)). In this context, the term “material” means “a change that may affect the welfare of a child.” Id. (quoting Wagner v. Wagner, 109 Md. App. 1, 28 (1996)). The moving party has the burden “to 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)). If the court finds a material change in circumstances, then the court “consider[s] 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).
Turning to this case, we first hold that the circuit court had sufficient evidence to support a finding that a material change of circumstances had occurred. The circuit court pointed out two material changes in circumstances: first, the Appellant moved to Arlington, Virginia and, second, the parties were unable to communicate effectively regarding matters affecting the child’s welfare. Under the original agreement both parties lived in Howard County, Maryland. The Appellant’s move to Arlington, Virginia was a material change in circumstance because the move meant that there was more time spent transporting the minor child between homes, with the trips taking on average an hour and a half. Every two- week period there would be five trips between Arlington and Howard County, and the Appellee noted “[s]ometimes there’s more than that.” The Appellee testified that during the exchanges in Silver Spring, Maryland, L.G. would be “sobbing, shrieking,
coming in to [the Appellee], [in] hysteria, hyperventilating in some cases.” The circuit court, noting that the Appellee “believes the number of exchanges has caused the child to exhibit abnormal behavior,” found that the current access schedule had become burdensome for the minor child.
Regarding the inability to communicate, the circuit court detailed numerous examples of issues over which the parties cannot reach a shared decision. The court noted that both parties have accused the other of “creating narratives” in their communications that could be used to benefit themselves in court. The court detailed conflicts over where the parties’ child would attend school in the fall of 2025 including issues with the application process, the lack of discussion of the consequences of the Appellant’s move, the feasibility of the current access schedule, whether the minor child should have received a flu shot, difficulty in agreeing on how to handle an incident involving blood in the child’s underwear, and what church the child should attend, among other detailed conflicts in the months leading up to the hearing. The circuit court was able to collect ample evidence from the record showing that the parties could no longer communicate effectively with each other. Based on the evidence presented, we find that the circuit court did not abuse its discretion in holding that the parties had a material change in circumstances.
Given that there was a material change in circumstances, the next step for the circuit court was to consider the best interests of the child in order to determine custody. The Appellant takes issue with the circuit court’s determinations on both legal and physical custody. The first issue concerns the circuit court’s ruling over the legal custody of the parties’ minor child.
Custody includes both physical and legal custody. Taylor v. Taylor, 306 Md. 290, 296 (1986). Physical custody means “‘the right and obligation to provide a home for the child and to make’ daily decisions as necessary while the child is under that parent’s care and control.” Santo v. Santo, 448 Md. 620, 625 (2016) (quoting Taylor, 306 Md. at 296). “‘Legal custody carries with it the right and obligation to make long range decisions’ that significantly affect a child’s life, such as education or religious training.” Id. (quoting Taylor, 306 Md. at 296). “Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.” Taylor, 306 Md. at 296.
Courts have wide discretion in making decisions about the best interests of children. Id. at 504–05 (citing Azizova v. Suleymanov, 243 Md. App. 340, 345 (2019)). Maryland courts have previously given guidance on the factors a court may consider when making custody decisions, which include the factors laid out in Taylor v. Taylor, 306 Md. 290 (1986): (1) capacity of parents to communicate and to reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3) fitness of parents; (4) relationship established between child and each parent; (5) preference of child; (6) potential disruption of child’s social and school life; (7) geographic proximity of parental homes; (8) demands of parental employment; (9) age and number of children; (10) sincerity of parents’ request; (11)
financial status of parents; (12) impact on state or federal assistance; and (13) benefit to parents.
J.A.B. v. J.E.D.B., 250 Md. App. 234, 256 (2021) (citing Taylor, 306 Md. at 304–11). The first Taylor factor, the capacity of parents to communicate and reach shared decisions affecting the child’s welfare, is “clearly the most important factor in the determination of whether an award of joint legal custody is appropriate.” Taylor, 306 Md. at 304; see also J.A.B., 250 Md. App. at 256 (quoting same). As we have stated, “[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child.” Taylor, 306 Md. at 304. If parents cannot make these long- range decisions together because “they are unable to put aside their bitterness for one another, then the child’s future could be compromised.” Santo, 448 Md. at 628. Even if the parents cannot effectively communicate, a court may, “under appropriate circumstances and with careful consideration articulated on the record,” grant parents joint legal custody. Id. at 646.
Joint legal custody with a tie-breaker “has unquestionably been recognized in Maryland.” Kpetigo v. Kpetigo, 238 Md. App. 561, 584 (2018) (quoting Santo, 448 Md. at 632–33). Tie-breaking authority in a legal custody arrangement “proactively anticipates a post-divorce dispute.” Id. at 585 (quoting Shenk v. Shenk, 159 Md. App. 548, 560 (2004)) (cleaned up). This authority should only be used by its holder “when both ‘parties are at an impasse after deliberating in good faith’ and by ‘requir[ing] a genuine effort by both parties to communicate, as it ensures each has a voice in the decision-making process.’” Id. (quoting Santo, 448 Md. at 632–33).
In this case, the circuit court weighed the credibility of the parties and analyzed the evidence presented throughout the hearing. The circuit court engaged in the following analysis of the Taylor factors, detailed above:
• Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare: As described in more detail above, “the parties cannot communicate effectively regarding the child’s welfare.” The court then spent nearly ten pages detailing all of the difficulties in communication that have arisen.
• Parent’s willingness to share custody: “[B]oth parties are willing to share custody . . . . [T]hey want the minor child to have a relationship with both of her parents.”
• Fitness of the parents: “[B]oth parties are fit parents, although evidence was presented that [Appellee] has driven with the child while the child’s seatbelt straps were loose.”
• Relationship established between the parents and child: “[T]he parties each have healthy, loving relationship with the minor child. Both parties properly feed, bathe, and clothe the child, guide the child in her activities, and are mindful of the minor child’s health.”
• Preference of the child: “[T]he minor child did not testify and the [c]ourt will consider this factor neutral.”
• Potential disruption of the child’s social and school life: “[T]here is great potential for disruption” because “[t]he parents cannot decide what school the minor child will attend starting in kindergarten” and “[t]he distance between the parties has already disrupted the child’s schedule.” “[T]he child has established friendships with at least one child at the [Appellant’s] nanny share program, with the children of [Appellant’s] boyfriend, and with her paternal grandmother, in addition to the parties. The current custody schedule allows the child to spend time with these friends. It is in the best interest of the child that she continues to develop the friendships she has made.”
• Geographical proximity of the parent’s homes: The Appellant lives in Fulton, Maryland and the Appellee lives in Arlington, Virginia. “The distance between the parties is moderate, but the distance is exacerbated by traffic on the roads between the parties.”
• Demands of parental employment: Both parents have flexibility in their schedules. The Appellee “always has something to do with his time and sometimes works on weekends.” The Appellant “works on a hybrid schedule” where she is in the office three days a week.
• Age and number of children: The parties have one minor child who is four years old.
• Sincerity of parent’s requests: “[B]oth parties are sincere in their requests.”
• Financial status of the parents: “[B]oth parties earn over $100,000.00 per year.” The Appellee “is CEO of a business which currently operates three (3) dental practices.” The Appellant earns approximately $250,000.00 a year as “an Executive Vice President and operations leader at Edelman since 2021.”
• Impact on state and federal assistance: “[N]one.”
• Benefit to the parents: “[O]ther than the love that they receive from the minor child, there will be no benefits.
The court analyzed all of the Taylor factors in coming to its decision, taking great care to explain its reasoning. After analyzing the evidence, the circuit court determined that the Appellee should have tie-breaking authority.
The Appellant argues that the circuit court’s ruling is the reverse outcome from Kpetigo v. Kpetigo, 238 Md. App. 561 (2018). In that case, the trial court granted joint legal custody with tie-breaking authority to one parent. Id. at 585–86. The trial court found that both parents were fit and cared deeply for their child, but they suffered from communication issues that prevented the minor child from taking full advantage of the opportunities the parents could provide. Id. The trial court determined that the father was “at times angry, untruthful, vindictive and mean-spirited toward” the other parent and found his testimony was not credible. Id. at 587. The father also testified he was willing to share custody with the other parent. Id. This court found the lower court did not abuse its discretion in awarding joint legal custody with tiebreaking authority to the other parent
because the tie-breaker “is appropriate in situations like this when parents have difficulties communicating and acting in the best interests of their child.” Id.
The Appellant argues that the Appellee “sought conflict at every opportunity” and “constantly made belittling and derogatory remarks” to the Appellant. We do not hold that the characterization of the Appellee’s comments by the Appellant is entirely supported by the record, but the allegations made by the Appellant reflect the conflict between the parties. Given the evidence presented at the hearing, we do not hold that this case is the opposite of Kpetigo. The circuit court noted issues with both parties in its opinion. The circuit court found that the Appellee took an action not in the best interests of the child when the Appellee “unilaterally ceased allowing the child to FaceTime with [Appellant].” The circuit court also found that the Appellant moved “without first engaging in productive discussion” with the Appellee about the effect of that move, and the Appellant testified that she had been contemplating moving out of Howard County prior to signing the MSA and signed a lease and moved by December of 2022. Additionally, the court noted that the Appellant applied to a school for the minor child without giving the Appellee the opportunity to review or sign the application, though she rectified this issue on a follow- up application after the Appellee discovered the application.
Additionally, the circuit court noted that “[t]he fact that [the Appellant] had been looking for a new residence in October of 2022 while negotiating a settlement agreement which specifically contemplated that the child would attend the Goddard School in Columbia, Maryland demonstrates that [the Appellant] was not forthcoming in her negotiations for the MSA.” The court found that the Appellant’s “failure to keep [the Appellee] apprised of her plans to move residences [was] not in the best interest of the child.” Both parties at times took actions that were not in the best interest of the child, and as the circuit court noted, both parties have accused the other of “creating narratives” in their communications that could be used to benefit themselves in court.
As in the Kpetigo case, the parties have difficulties communicating about issues affecting the welfare of their child. Another similarity is that both parties in both cases testified that they were willing to share legal custody. The circuit court concluded that the inability to communicate in this case “necessitates that one party have tie-breaking authority as to major decisions affecting their child’s welfare.”
Given the trial court’s careful analysis, it was permitted to make this decision about joint legal custody despite the difficulties in communication.
Giving “due regard. . . to the opportunity of the lower court to judge the credibility of the witnesses” we do not hold that the circuit court abused its discretion in awarding tie- breaking authority to the Appellee. Gillespie, 206 Md. App. at 171 (quoting In re Yve S., 373 Md. at 584). The circuit court was in a far better position “to weigh the evidence and determine what disposition will best promote the welfare of the minor.” Id. (quoting In re Yve S., 373 Md. at 586). This Court “will defer to the fact-findings of trial judge or jury whenever there is some competent evidence which, if
believed and given maximum weight, could support such findings of fact.” Washington v. State, 191 Md. App. 48, 79 (2010) (quoting Morris v. State, 153 Md. App. 480, 489 (2003)).
There was sufficient competent evidence to support the circuit court’s decision in this case. As discussed above, there were times that both parties acted against the minor child’s best interest, but the circuit court noted multiple actions by the Appellant that were not in the minor child’s best interest. This does not take away from the “healthy, loving relationship” the circuit court noted that both parties had with the minor child. But given the inability of the parties to communicate and the conflict that would likely result from joint custody, the circuit court concluded that the Appellee should have tie-breaking authority to resolve any conflicts that arise. This was a proper exercise of the circuit court’s discretion weighing the evidence before it, and we will not disturb that determination on appeal.
Modification of Access Schedule
On the second issue, the Appellant argues that the circuit court’s modification of the physical custody schedule was an abuse of its discretion. The Appellant says that this modified schedule does not adequately account for the child’s best interest and does not foster stability for the child. The Appellant argues that the circuit court ignored the Appellant’s involvement in L.G.’s school and health and in L.G.’s travel times while in the Appellee’s custody. Lastly, the Appellant argues that the Appellee exhibits “constant deprecating and degrading behavior” towards the Appellant, which means the circuit court abused its discretion in its decision.
The Appellee argues that the circuit court did not abuse its discretion in modifying the access schedule after the Appellant moved to a different state. The Appellee contends that the circuit court’s decision properly tried to maintain stability in the minor child’s life. The Appellee argues that the factual contentions argued by the Appellant in her brief were not supported by the record at the hearing. Additionally, issues the Appellant argued were not considered by the circuit court the Appellee points out were included in the court’s decision making.
As discussed above, physical custody is “‘the right and obligation to provide a home for the child and to make’ daily decisions as necessary while the child is under that parent’s care and control.” Santo, 448 Md. at 627 (quoting Taylor, 306 Md. at 296). When determining physical custody, courts apply the Taylor factors cited above and any other relevant conditions.
Here, the circuit court analyzed multiple additional factors in determining physical custody:
• Parental fitness: “both parties are fit parents.”
• Character and reputation of the parties: The court found that the Appellant “was not forthcoming in her negotiations for the MSA” based on her already looking for a new residence in Virginia. “[T]he [c] ourt finds that [Appellant’s] failure to keep [Appellee] apprised of her plans to move residence is not in the best interest of the child.”
• Potential for maintaining natural family
relations: “[T]here is still potential for maintaining natural family relations, as both parents love the child very much, both parents have sincere beliefs in what is best for their child, and both parents have the support of their own family and loved ones to help raise their child.”
• Material opportunity affecting the child’s future life: “Both parties have enrolled the child in activities, taken her on vacation, and live in locations with plenty of amenities such as pools and parks which will contribute to the child’s happiness.”
• Health of the child: The parties share a four-year-old female child who is in good health, with “allergies to cashews, pistachios, tree nuts, and fish.”
• Opportunity for visitation: “The opportunity for visitation is still good, although traffic on the road exacerbates the distance the parties must drive to facilitate visitation.” The Appellant was planning on moving in with Joseph Knight and Mr. Knight testified that his children get along with the minor child, “that he has good relationship with the parties’ minor child, and that he helps care for the child by cooking for her and looking after her when with [Appellant].”
• Length of separation from natural parents: “[N]o great separation from the natural parents.”
After weighing these additional factors, the circuit court concluded that the physical distance between the parties made the 5-5-2-2 schedule not in the best interests of the minor child. The court found that the current access schedule was “burdensome” for the minor child based on the number of exchanges and commute required for an exchange.
The court noted that as the child begins kindergarten in the fall, this arrangement would become unworkable. As a result, the court modified the current schedule to the Appellee having custody Sunday through Wednesday nights and the Appellant having custody Thursday through Saturday nights. When the minor child begins kindergarten, the court modified the schedule to give the Appellee primary physical custody with the Appellant to have visitation on Friday and Saturday nights. Over the summers, the court said the parties would have an alternating weekly schedule.
The Appellant argues that this new schedule is “contrary to the child’s best interest” because it minimizes the school transitions in favor of in-person exchanges, which “were causing the child great difficulty.” The order says that in the initial arrangement, exchanges would take place on Thursday at the minor child’s daycare, and when the child attends kindergarten, the exchanges on Friday would take place at the minor child’s school. The order does not appear to double the number of exchanges, as the Appellant argued, as there are now only two exchanges per week on consistent days. The circuit court did not abuse its discretion in trying to balance the minor child having access to both parents with the reality of the physical distance between the parties.
The Appellant argues that the circuit court ignored the Appellant’s involvement in L.G.’s school and health and
in L.G.’s travel times while in the Appellee’s custody. The circuit court’s opinion did discuss the Appellee’s travel with the minor child, such as going swimming, going to church, or travelling to Ocean City. The opinion shows that the circuit court weighed this evidence about the minor child’s travel but did not determine this travel to be controlling against the Appellee’s custody. Regarding the decision about school, the circuit court noted that the Appellee testified he cannot afford private school. The court also agreed with the sentiment that the minor child should attend a school close to one of the parents so that friends and activities would also be close to that parent and transportation would be easier than a school between the parties’ homes. Therefore, with the Appellee getting primary physical custody, the minor child would attend the public school in the Appellee’s area. There was no abuse of discretion where the circuit court showed that it considered the evidence before it that the Appellant claims it ignored and made a decision the court determined was in the best interest of the minor child supported by the evidence presented.
The Appellant’s final argument is that the Appellee exhibited “constant deprecating and degrading behavior” towards the Appellant. The Appellant cited to some comments in the
record that were negative towards the Appellant, such as the Appellee’s mother saying, “Every one of [Appellant’s] mothering instincts are bad, it’s tragic.” However, the Appellant did not cite any occasions where this kind of behavior occurred in front of the minor child. There was conflicting testimony about whether the Appellee called the Appellant “vile” during an in-person exchange of the minor child, though the Appellee denied saying this. As there was conflicting evidence, we must “defer to the fact-findings of the trial judge” who had the ability to weigh the credibility of the two parties and, after doing so, ruled in favor of the Appellee. Washington, 191 Md. App. at 79 (quoting Morris, 153 Md. App. at 489).
The circuit court properly weighed the evidence before it and the burden placed on the minor child based on the current custody schedule. We do not hold that the circuit court’s decision on the issue of physical custody was an abuse of its discretion.
CONCLUSION
Accordingly, we affirm the judgment of the Circuit Court for Howard County.
JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED; COSTS TO APPELLANT.
FOOTNOTES
1 We rephrase the Appellant’s questions, which were originally presented as:
I. Whether the trial court abused its discretion in awarding Father tie- breaking authority for legal custody decisions when Father’s actions towards mother generated constant conflict, and when father perjured himself about prior medical decisions made for the child?
II. Whether the trial court abused its discretion in awarding an access schedule in which Father has more parenting time during the work/school-week and the exchanges would create more conflict in front of the child rather than less?
2 Under this agreement, the Appellant had custody of the minor child every Monday and Tuesday night, the Appellee had custody of the minor child every Wednesday and Thursday night, and the parties alternated custody every Friday, Saturday, and Sunday night.
3 The 4-3 schedule gave custody to the Appellee from Sunday through Wednesday night, and to the Appellant from Thursday through Saturday night. The parties would exchange L.G. through the child’s daycare and by meeting at a diner in Silver Spring as the parties had already been doing.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 10 MFLU Supp. 17 (2025)
Final judgment; evidentiary challenges; mootness
Nathan M.F. Charles, Esq. v.
Tiffany Summerfield Charles
No. 1721, September Term 2023; No. 2388, September Term 2023
Argued before: Berger, Nazarian, Ripken, JJ
Opinion by: Nazarian, J.
Filed: July 23, 2025
The Appellate Court dismissed husband’s appeal from various evidentiary issues, the Montgomery County Circuit Court’s child support order and the denial of his motion to reconsider the denial of his preliminary injunction. Given that there is a final judgment of absolute divorce, husband’s issues with the evidentiary rulings and injunctive relief are moot. And the final judgment superseded the pendente lite order that husband is challenging.
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..
A. Factual Background
Husband and Wife were married on May 21, 2011, in Lebanon County, Pennsylvania. Their marriage produced two children. Since marrying, the couple experienced a variety of strains, including financial, professional, and personal setbacks. Around the end of 2020, Wife asked Husband for a divorce multiple times. On July 20, 2023, Wife emailed Husband stating that she “no longer want[ed] to be in [their] marriage” and that she would be “pursuing a divorce.”
B. Procedural Background
1.
Commencing Divorce Proceedings
After Nathan M. F. Charles, Esq. (“Husband”) filed for limited divorce from Tiffany
A. Summerfield1 (“Wife”) in the Circuit Court for Montgomery County, the parties sought various forms of preliminary relief. One of Husband’s filings sought a preliminary injunction, which the court denied. Husband moved for reconsideration, the court denied it, and Husband appealed to this Court. Then, the circuit court held a pendente lite hearing, denied Husband’s requests for pendente lite alimony, and granted Wife’s request for pendente lite child support and arrears, as well as attorneys’ fees. Husband again filed a motion to reconsider, and the court again denied it. He appealed the pendente lite order and the motion to reconsider the pendente lite order. In the time since, the circuit court held a merits hearing on the divorce and issued its judgment. We hold that the divorce judgment, which now is the subject of a separate appeal, rendered all issues moot except the attorneys’ fees, which we affirm.
BACKGROUND
These appeals are the second and third in this divorce action. We recounted the background in the first appeal, Charles v. Charles, Md. App. , No. 2342, Sept. Term 2023 (filed May 30, 2025), and pick up from there.
After receiving that email, Husband filed a complaint for limited divorce, alleging actual and constructive desertion. In his complaint, he sought joint primary and physical custody, child support, alimony, health insurance for himself and the children, and use and possession of the marital home. On August 8, 2023, the parties signed a custody agreement under which Wife would have “temporary use and possession of the Marital Home . . . until further Agreement or Court Order.” The custody agreement also barred Husband from contacting or attempting to contact Wife, “except that the parties may contact each other via e-mail for purposes of child access/visitation or sharing pertinent information about the wellbeing of the Children.” They filed their custody agreement in the circuit court on August 9, 2023.
2. Husband’s Motions
a.
Alimony Pendente Lite
On August 21, 2023, Husband filed a motion for alimony pendente lite. He sought
$1,000 per month, incurred, he argued, due in part to this divorce litigation, which caused him to relocate to Pennsylvania. The next day, Wife filed an Answer, asking the court to deny Husband’s complaint for limited divorce. Wife then moved to strike Husband’s motion for alimony pendente lite, arguing that it did not comply with Maryland Rules. Husband opposed her motion the next day, asserting that he had complied with the rules, that the court should strike Wife’s motion to strike, and that the court should impose sanctions on Wife’s counsel for filing the motion for an improper purpose.
On October 3, 2023, the circuit court granted Wife’s motion to strike Husband’s motion for alimony pendente lite, striking Husband’s motion “in its entirety as it contains improper, immaterial, impertinent, and/or scandalous matter.” The next day, Husband filed a motion for reconsideration or clarification
asking that the court revise its order or provide “additional specificity” to place him on notice of what the court found offensive. Wife opposed that motion. On October 31, 2023, the court denied Husband’s motion for reconsideration or clarification. Husband filed a notice of appeal encompassing the October 3 and 31, 2023 Orders.
b. Motion for a Preliminary Injunction
On September 18, 2023, Husband filed a motion for a preliminary injunction to compel Wife to “either sell or refinance the marital home in the above action.” In her opposition, Wife asked the court to deny Husband’s motion for a preliminary injunction and grant her $1,050 in attorneys’ fees. Six days later, on October 9, 2023, Husband filed a reply. He emphasized his need for a home because he was living in Pennsylvania with his parents, and he asked the court to deny Wife’s claim for attorneys’ fees. On November 3, 2023, the court denied Husband’s motion for a preliminary injunction, reasoning that the “matters relating to distribution of marital property are properly addressed in a divorce merits hearing.” The court added that attorneys’ fees would be addressed either at a divorce merits hearing or at a future hearing that the court sets.
That same day, Husband filed a motion to reconsider. He argued that his requested “injunction has nothing to do with the disposition of any marital assets.” Wife opposed the motion and asked again that the court deny Husband’s motion for reconsideration and grant her attorneys’ fees, this time in the amount of $350. Later that day, Husband filed a reply arguing that the court had abused its discretion when it denied his request for a preliminary injunction. On December 1, 2023, the court denied Husband’s motion and reiterated that the attorneys’ fees issue would be addressed at the merits hearing or at another hearing that the court would set. Husband filed a notice of appeal from that order.
c. Husband’s Jury Demand
On September 21, 2023, Husband filed a “Line” demanding a “trial by jury” in this divorce case. Wife moved to strike this demand on October 3, 2023. She asserted that only courts sitting in equity had jurisdiction over family law cases, citing Md. Code (1999, 2019 Repl. Vol.), § 1-201(b) of the Family Law Article (“FL”). She also requested $455 in attorneys’ fees. On October 9, 2023, Husband filed an opposition, arguing that Wife hadn’t asserted any authority that prevented courts sitting in equity from empaneling a jury and that the court should deny Wife’s claim for attorneys’ fees. The court granted Wife’s motion in part and struck Husband’s jury demand on November 13, 2023. That order was silent about attorneys’ fees.
d. Husband’s Motion to Consolidate
On October 16, 2023, Husband filed a motion to consolidate the divorce proceedings with another case he instituted against Wife for defamation per se. He also included a jury demand for the consolidated case. Wife did not file an opposition, but the court denied Husband’s motion to consolidate on November 6, 2023.
3. The Pendente Lite Hearing
On January 3, 2024, the parties appeared before the circuit court for a hearing on Husband’s request for pendente lite alimony and Wife’s requests for pendente lite child support, arrears, and attorneys’ fees. Husband asked the court to deny Wife’s attorneys’ fees request, and Wife asked the court to deny Husband’s alimony claim. After opening arguments, the circuit court heard testimony from Husband, then Wife, and during both received exhibits into evidence. The court heard closing arguments from both sides and concluded the hearing.
The court convened everyone on January 8, 2024 to announce its ruling. The court began by explaining that because some of the evidence it had admitted during testimony contained settlement discussions, the court was going to amend its rulings and readmit that evidence subject to redactions of the settlement material. The court emphasized that it did not consider or read the settlement material.
Then came the rulings. The court denied Husband’s claim for alimony pendente lite. The court granted Wife pendente lite child support in the amount of $1,935 per month with arrears of $7,740; Husband was to pay down the arrears by $350 monthly, bringing his total monthly child support obligation to $2,285. And lastly, the court awarded Wife 60% of her attorneys’ fees, a total of $27,017.91. The court memorialized its findings in an order issued on January 11, 2024.
On January 9, 2024, Husband filed a motion to reconsider the pendente lite order. Wife filed an opposition on January 25, 2024, arguing that the court should deny Husband’s motion and award her $2,345 in attorneys’ fees for having to file her opposition. On February 16, 2024, Husband noted his appeal from the pendente lite order. Five days later, on February 21, 2024, the court denied Husband’s motion and deferred the attorneys’ fees issue to the next hearing. Husband filed a notice of appeal that same day from that February 21, 2024, order.
4. This Court’s Involvement
On February 23, 2024, Husband filed a motion (in this Court) to stay proceedings in the circuit court. He argued that the circuit court was exercising jurisdiction over the divorce proceedings wrongfully and despite Husband’s “pending interlocutory appeal.” He asked this Court to suspend “further proceedings in the Circuit Court pending the outcome of [his] appeal.” Alternatively, he asked us to provide guidance as to the circuit court’s remaining jurisdiction pending his appeal.
The following month, on March 4, 2024, we issued an order addressing Husband’s notices of appeal and his motion to stay further proceedings. We noted that Husband’s first and second notices of appeal (treated as the first appeal) stemmed from the October 3, 2023 order striking his motion for alimony pendente lite, the October 31, 2023 order denying reconsideration of that decision, and the December 1, 2023 order denying reconsideration of the order denying Husband’s request for a preliminary injunction. We stated that the first two orders Husband was
appealing were not final judgments and thus not immediately appealable, so we dismissed them. Next, we denied Husband’s motion to stay proceedings in the circuit court, highlighting that the circuit court retained jurisdiction in the divorce notwithstanding Husband’s premature appeal. What remained was the appeal from the December 1, 2023 order denying Husband’s motion to reconsider the denial of his preliminary injunction.
We recognized as well that Husband’s other notices of appeal stemming from the pendente lite order and the denial of his motion to reconsider the pendente lite order would be the second appeal. We then consolidated that second appeal with what remained of the first.
5. Back to the Divorce Proceedings
Wife answered Husband’s complaint for limited divorce on August 21, 2023 and asked the court to deny his request. On September 18, 2023, she filed a counter complaint for absolute divorce. She amended it on July 25, 2024, asserting grounds of a six-month separation and irreconcilable differences. She also sought, among other things, child support; an equitable distribution of all marital property; a monetary award; and attorneys’ fees.
On August 1, 2024, Husband also filed an amended complaint for absolute divorce, asserting grounds of a sixmonth separation. He sought, in part, joint physical and legal custody, division and valuation of all marital property, and a monetary award. The circuit court held a merits trial on August 26 and 27, 2024. On May 23, 2025, the court granted Wife an absolute divorce. The court also ordered, among other things, that Husband pay Wife monthly child support at a rate of $2,503; that Husband be entitled to a credit against the accrued pendente lite child support of $22,527; that all requests for alimony be denied; and that Wife refinance the marital home or assume the mortgage.
6. This Court’s Show Cause Order
On June 27, 2025, this Court issued a show cause order after reviewing the record, Husband’s appeals, and the final judgment. We asked that Husband “show cause to this Court, in writing, why [his] appeals should not be dismissed as moot, except as to the order for pendente lite attorney’s fees.” In his response, Husband argued that deeming his appeals moot “overlooks a fundamental point of law and equity” and that not addressing them would “insulate and perpetuate a miscarriage of justice rooted in procedural sleight-of-hand, misrepresentation, and selective admissibility.” He added that this Court would still have to address those issues because they resolved his attorneys’ fees issue. He thus asked this Court not to dismiss his issues as moot.
We include additional facts as necessary throughout the discussion below.
DISCUSSION
Husband presents several issues2 which we have rephrased and consolidated as two.
First, are Husband’s challenges to evidentiary rulings and
the court’s decision to deny reconsideration of its denial of Husband’s motion for preliminary injunction moot in light of the final judgment of absolute divorce? Second, did the court err in awarding attorneys’ fees to Wife? We hold that Husband’s appeals of pendente lite evidentiary rulings and the denial of his motion for preliminary injunction are moot and that the court didn’t err in awarding attorneys’ fees to Wife.3
A. Given That There Is A Final Judgment of Absolute Divorce, Husband’s Issues With The Evidentiary Rulings And Injunctive Relief Are Moot.
At the pendente lite hearing, Husband sought pendente lite alimony, whereas Wife argued that the court should deny his request and grant her pendente lite child support and attorneys’ fees. During the hearing, Husband noted certain objections that would become the subject of his appeal. On appeal, he challenges various evidentiary issues, the court’s analysis in awarding child support, and the denial of his motion to reconsider the denial of his preliminary injunction. He contends that the circuit court abused its discretion by admitting altered evidence, which violated his due process rights and misapplied the rule of completeness. With regard to child support, Husband argues that the court erred by including his teaching stipend as income and in calculating his parenting time. Wife counters that Husband did not preserve his due process argument and that, in any case, the court did not abuse its discretion in admitting the evidence over Husband’s rule of completeness objection. Wife argues as well that the court’s voluntary impoverishment analysis, which assessed Husband’s teaching stipend, fell appropriately within the bounds of the factors a court assesses when considering voluntary impoverishment. And finally, Wife contends that Husband didn’t present any “substantive argument” when faulting the circuit court’s parenting time analysis.
Husband argues also that the court erred in denying him a preliminary injunction to reclaim his veteran’s affairs mortgage benefits. He submits that the court erred as a matter of law because a “nonveteran has no legal right to retain her former spouses’ VA mortgage after a divorce.” At the time he sought the injunction, the parties had not had a merits hearing and their divorce wasn’t final. Wife responds that the circuit court didn’t abuse its discretion in denying Husband’s motion for a preliminary injunction.
At this point, though, the entry of a final judgment of divorce renders these questions moot. “An issue is moot ‘when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy.’” Cabrera v. Mercado, 230 Md. App. 37, 85 (2016) (quoting O’Brien & Gere Eng’rs, Inc. v. City of Salisbury, 447 Md. 394, 405 (2016) (cleaned up)). We cannot provide an effective remedy at this point, and that ends the inquiry.
Pendente lite orders are “designed to provide for purely temporary needs on a short term basis, whereas the provisions for [spousal or child] support in a final judgment of divorce are perforce intended to be more permanent and
cover equally essential but less frequently recurring living expenses.” Payne v. Payne, 73 Md. App. 473, 481 (1988). As a result, a final divorce decree supersedes a pendente lite order, Speropulos v. Speropulos, 97 Md. App. 613, 617 (1993), and the final judgment here superseded the pendente lite order that Husband is challenging. The orders he challenges are no longer in force, and any relief we might have afforded him would be overtaken by the final judgment as well.
In Krebs v. Krebs, 183 Md. App. 102 (2008), a father filed for emergency custody of his two children after filing for divorce. Id. at 106. The court held the emergency hearing but highlighted that the children’s mother was absent, so the court determined that the hearing and its disposition would be pendente lite. Id. at 106–07. The court then granted the father pendente lite custody until the merits hearing. Id. at 107. Sometime later, the mother moved to have a pendente lite custody hearing, which the court denied. Id. at 108–09. At the merits hearing, the court awarded the father custody and the mother visitation.
Id. at 109. The mother appealed, claiming due process violations from the court’s decision to hold an ex parte emergency hearing granting custody and its refusal to hold another pendente lite hearing. Id. She argued that if the court indeed had found an emergency, it should have granted custody only until she could be present at a second interim hearing, and only then on a pendente lite basis pending a merits hearing. Id.
We held that these arguments were moot. Id. If everything the mother argued was correct, at best, this Court could only have vacated the pendente lite order and remanded the case for a new hearing where she could participate. Id. at 109–10. But we determined that the issue was moot because the mother had already been heard on the merits at trial. Id.; see Cabrera, 230 Md. App. at 86 (“[The] issue is moot because the final custody order is the current governing order and would still govern even if we vacated the emergency temporary custody order.”); see also Wright v. Phipps, 122 Md. App. 480, 487 (1998) (“As a necessary predicate for alimony pendente lite, there must be actual litigation then pending, not a mere possibility of future litigation.”).
These principles apply the same way here. Suppose Husband is correct, and the circuit court had abused its discretion in admitting evidence that was, as he called it, “deliberately altered,” or in violation of the rule of completeness, or even the partially redacted emails. The best-case scenario for him would be for us to vacate the pendente lite order and grant him a new pendente lite hearing. But that would be pointless and, more importantly, afford him no relief now that there is a final judgment of divorce. Payne, 73 Md. App. at 482 (citations omitted).
Husband’s appeal of the court’s decision to deny a preliminary injunction is moot as well. Husband asked the circuit court to “issue an injunction requiring [Wife] to sell or refinance the family home because [Husband] satisfies all the [preliminary injunction] requirements in spades.” But as with the child support order, the final judgment of absolute divorce resolves this issue definitively: Wife “shall refinance or assume the mortgage connected with the Marital Home, such that [Husband] is removed of all liability therefor.” That
order essentially granted Husband the relief he sought from a preliminary injunction, but in any event leaves us no relief to grant him. See Cabrera, 230 Md. App. at 87 (“[E]ven if we granted [the mother] relief, it would have no consequence because a final custody order is already in place.”).
Husband’s arguments in response to the show cause order don’t alter our analysis. He contends that the evidentiary rulings shaped the record not only for the pendente lite order, but for the remainder of the case. But again, the pendente lite order has been overtaken by the final judgment of divorce, so we couldn’t give him any relief even if we agreed with him. And more importantly, Husband’s opportunity to appeal from the final judgment of divorce lies ahead, and nothing about the mootness of his appeal from the pendente lite orders deprives him of any appealable arguments underlying the final judgment.
B. The Court Awarded Wife Attorneys’ Fees Properly.
Next, Husband argues that the court abused its discretion in admitting correspondence between the parties from their settlement negotiations, which is inadmissible under Maryland Rule 5-408. He argues as well that the court erred by finding any of his attempts to intimidate Wife to be worthy of sanctions. Wife responds that the parties’ correspondence was not admitted to prove the validity of a claim, but in connection with other matters before the court, namely, attorneys’ fees. She adds that the court did not abuse its discretion in finding Husband’s attempts to intimidate her as support for a fee award.
Ordinarily, we will not modify an attorneys’ fees award on appeal unless the award is arbitrary or clearly wrong. Gravenstine v. Gravenstine, 58 Md. App. 158, 182 (1984) (citing Lopez v. Lopez, 206 Md. 509, 520–21 (1955)). “It is within the court’s sound discretion to award such fees and we shall only disturb the court’s ruling upon a showing of an abuse of that discretion.” Welsh v. Welsh, 135 Md. App. 29, 44 (2000). “A court has discretion to base its award of attorney’s fees on the fact that a litigant has engaged in conduct that produced protracted litigation.” Frankel v. Frankel, 165 Md. App. 553, 590 (2005).
Although sanctions under Maryland Rule 1-341 are available in divorce proceedings, that rule “may be utilized only when ‘the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification.’” Miller v. Miller, 70 Md. App. 1, 12 (1987) (quoting Md. Rule 1-341). A “court may not impose sanctions under Rule 1–341 without rendering specific findings of fact on the record as to a party’s bad faith or lack of substantial justification in pursuing a cause of action.”
During the pendente lite hearing, both Husband and Wife argued over whether Husband had acted in “bad faith,” using the Rule’s language. However, the court stated explicitly that “two statutes” that are “identical” govern Wife’s request for attorneys’ fees, given that the hearing concerned child support in the context of a divorce case. Those statutes are
FL §§ 7-107 and 12-103. That does not mean that Rule 1-341 could not have applied, Miller, 70 Md. App. at 12, but on this record we read the circuit court to be grounding its decision in those statutes—especially given that after identifying those two statutes, the court went on to base its rationale solely on a lack of substantial justification on Husband’s part.
“The award of attorneys’ fees and costs in child support proceedings is controlled by [FL § 12-103].” Davis v. Petito, 425 Md. 191, 199 (2012). That statute focuses ultimately on the financial status of the parties, their needs, and whether there was substantial justification for bringing, maintaining, or defending the case:
(a) The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person:
(1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; or * * *
(b) Before a court may award costs and counsel fees under this section, the court shall consider:
(1) the financial status of each party;
(2) the needs of each party; and
(3) whether there was substantial justification for bringing, maintaining, or defending the proceeding.
(4) 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. In the divorce proceeding context, the relevant statute defines the same parameters:
(b) At any point in a proceeding under this title, the court may order either party to pay to the other party an amount for the reasonable and necessary expense of prosecuting or defending the proceeding.
(c) Before ordering the payment, the court shall consider:
(1) the financial resources and financial needs of both parties; and
(2) whether there was substantial justification for prosecuting or defending the proceeding.
(d) Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party the reasonable and necessary expense of prosecuting or defending the proceeding.
FL § 7-107(b)–(d).
The circuit court must “consider the parties’ financial status, needs and whether there was a substantial justification for bringing, maintaining or defending a proceeding.” Davis, 425 Md. at 200. Indeed “the ‘absence of substantial justification of a party for prosecuting or defending the proceeding,’ would, without good cause, result in an award of attorneys’ fees and costs to the other party, so long as those fees and costs are reasonable.” Id. at 201 (quoting FL § 12-103). Substantial justification is “measured by the issues presented and the merits of the case, not the amount of attorneys’ fees charged.”
Id. at 202. The circuit court must assess those merits against the reasonableness of each party’s position. Id. at 204.
The court here did not abuse its discretion in awarding Wife attorneys’ fees because Maryland Rule 5-408 and the rule of completeness are inapplicable, so the court did not violate them, and the record supported the court’s finding that Husband protracted the divorce litigation without substantial justification.
First, Rule 5-408 didn’t require the court to exclude documents generated in the context of party communications simply because they included settlement demands or offers. The Rule makes inadmissible any evidence offered “to prove the validity, invalidity, or amount of a civil claim in dispute . . . .” Md. Rule 5-408(a). But that evidence is “not excluded under this Rule when offered for another purpose.” Md. Rule 5-408(c). Husband doesn’t specify which disputed claim the evidence was offered to prove. And he doesn’t argue that Wife offered the evidence to prove a disputed claim. He does argue that the circuit court compounded its errors by “redacting the emails” that included communications he characterized as settlement negotiations. But those emails, as offered during the hearing, were admitted for another purpose—attorneys’ fees—not the validity (or invalidity) of a disputed claim. It’s true that the court redacted part of the email chains, but that was to prevent the court from viewing the settlement information and allowing it to creep into the evidence. Indeed, the court even informed the parties that once it came upon settlement discussions, it “immediately stopped reading those discussions and [was] totally unaware of the particulars.” The court didn’t abuse its discretion by navigating these emails in this fashion.
Second, the rule of completeness doesn’t apply here either. At the hearing, Wife had attempted to introduce an email chain when Husband objected on relevance grounds, an objection the court overruled. The court reasoned that the emails pertained to Wife’s attorneys’ fees claim. Before issuing its decision on the pendente lite issues, the court informed the parties that it would be re-admitting some of the already admitted evidence subject to redactions. The email chain Wife had introduced was one of those. Husband objected again, this time citing the rule of completeness.
The rule of completeness requires that “[w]hen part or all of a writing or recorded statement is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Md. Rule 5-106. It “allows a party to respond to the admission, by an opponent, of part of a writing or conversation, by admitting the remainder of that writing or conversation.” Conyers v. State, 345 Md. 525, 541 (1997). What it does not allow is inadmissible evidence entered under the guise of completing the objected-to evidence. See id. at 545 (“The doctrine of verbal completeness does not allow evidence that is otherwise inadmissible as hearsay to become admissible solely because it is derived from a single writing or conversation.”); see also Richardson v. State, 324 Md. 611, 622–23 (1991) (highlighting that a party may not offer irrelevant or inadmissible evidence under the rule of
completeness) (citations omitted).
This situation doesn’t implicate completeness. Husband argued that the email chain should have been excluded in its entirety. But the Rule would only have permitted him to admit the remainder of the email chain, not to exclude the whole thing. Md. Rule 5-106. Moreover, the remainder of the chain contained settlement material, which, as Husband points out, was inadmissible under Md. Rule 5-408. Here, he argues that the court’s decision to redact these emails meant that the court “picked out the bits that made [Husband] look mean, and then, by [the court’s] own admission, omitted and failed to consider the parts where [Husband] was making a generous settlement offer in order to dispose of the litigation in a reasonable and timely manner.” Yet Husband argues also that the communications the court admitted were “inadmissible under Rule 5-408.” He cannot have it both ways: either the court could have considered this evidence or it could not have. As the court ruled in response to Husband’s objection, Husband “didn’t want settlement negotiations as part of the record. And [the court] sustain[ed] that objection” and admitted the parts that didn’t contain settlement discussions.
Third, the record supports the court’s finding that Husband protracted the divorce litigation, and crucially, did so without substantial justification. The court began by assessing each party’s financial status. It walked through Husband’s monthly expenses, which were $1,325. When it assessed alimony pendente lite, the court had identified Husband’s monthly expenses as $1,825. We recognize that conflicting factual findings as to one spouse’s income may bar this Court from affirming an award of attorneys’ fees. See Simonds v. Simonds, 165 Md. App. 591, 616 (2005) (“[An] appellate court cannot affirm [the denial of attorneys’ fees] when the circuit court has made conflicting findings of fact on the issue of the other spouse’s income.”). But on this record, we think the circuit court misspoke when assessing alimony. After all, it walked through Husband’s financial statement, identifying each expense and how that total should have been $1,325. The court’s math was correct. Then later, when assessing attorneys’ fees, the court reiterated that Husband’s monthly expenses were $1,325.
As for Husband’s ability to pay, Wife testified that Husband had offered to pay her attorneys’ fees. The court recognized Husband’s offer, and took him at his word. The court then assessed Wife’s expenses, which grew due to her attorneys’ fees. As with Husband, the court relied on Wife’s financial statement to identify her monthly expenses at $23,405.77, grounding this finding in the record. Part of that included a $14,700.88 deficit, which also came from her financial statement. The court’s approach followed the statutory factors relating to the parties’ financial statuses and their needs and the court did not abuse its discretion. See FL § 12-103(b).
Next, the court assessed Husband’s litigation positions and actions and determined reasonably that they weren’t substantially justified. A notable theme throughout Husband’s litigation tactics for the circuit court was what the court perceived as Husband’s anger toward Wife for the divorce and his desire for retribution. And as the record reflects,
Husband expressed the desire to prolong the divorce and exhaust Wife’s financial resources:
• In text messages dated July 8, 2023, Husband wrote: It is certain that a divorce will destroy one or both of us financially. It is certain that a divorce will destroy one or both of us financially. It is certain that a divorce will destroy one or both of us financially. It’s worth repeating. It is certain that a divorce will destroy one or both of us financially. The only way this doesn’t destroy one of us is if that person attempts to take everything. Neither of us has the facts or the law to attain that kind of outcome, note[sic] would I want to do that to you even if I were able.
* * *
There is simply no way we can afford to get divorced right now. So this is what I propose: Table this divorce for six months.
The court found here that Husband was attempting to destroy Wife financially and get her to regret seeking a divorce. The court noted that although Husband initiated the divorce proceedings, the evidence before the court indicated that it was Wife who wanted the divorce, not Husband.
• Email dated August 22, 2023: Husband states that Wife runs the risk in this litigation that he attains “a finding that [she] lied to a judicial officer. In that event, [Wife] will almost immediately go on the ‘Giglio List’ at the Justice Department. She will never be permitted to testify in any proceeding for the remainder of her career — assuming she keeps her job and security clearance.” The court found that while this pertained to separate litigation, Husband was using it as leverage in this divorce litigation to intimidate Wife. He even conceded in this Court that he was doing so, labeling this “tough talk designed to encourage [Wife] into a settlement.”
• Email dated October 11, 2023: Husband states that Wife “will be bankrupt by January.” The court found that this was Husband’s intent. Given that he was representing himself and that he did not want a divorce, he was able to avail himself of attorney-level work without incurring monetary costs. In turn, he could prolong the litigation. On the other hand, Wife would have had to pay for her representation, as she had hired counsel.
• Email dated October 24, 2023: Husband states that he “will not negotiate with Defense Counsel. [He] will not participate in mediation.” He wants his “day in court to expose all the circumstances of [their] failed marriage to scrutiny.” He adds that this “is the price that [Wife] pays for trying to cheat the system.” As the court found, this was an email to Wife’s Counsel, with the parties’ court-assigned mediator attached to it.
• Email dated October 27, 2023: Husband wrote to Wife’s counsel stating that “if you talk your friends at the courthouse into abusing their discretion, this case is probably going to end up on appeal (I love appellate litigation). How do you think that is going to affect [Wife’s] bottom line?” The court found this as further proof of Husband trying to make the litigation “impossible financially” for Wife to continue.
* In the same email chain, upon the parties receiving
confirmation and scheduling for their court-ordered mediation, the circuit court directed the parties to submit a Pre-Mediation Statement that captures the dispute as they see it, including the legal issues and the strengths and weaknesses of their respective cases. Husband responded, stating in part that he would not accept any settlement terms except those he had already expressed and that he would not take “time out of [his] week to do homework.”
* He followed those emails up stating that he would not be paying Wife anything because he did not “have any money,” and that the court could only “blame [Wife] or itself for that. It took six months just to get a [pendente lite] hearing.”
• Email dated October 31, 2023: after threatening Wife with appellate litigation, he emails his Notice of Appeal to Wife’s counsel, again with the court-appointed mediator attached, with the words “I warned you.”
• Email dated December 22, 2023: Husband states that he does not “care if [Wife] burns through her life savings and her inheritance fighting this case, nor will [he] shed a single tear if [Wife’s] sister ends up spending a few days in jail. If you think [Husband has] been a jerk up to this point — stand by.”
• Email dated December 30, 2023: Husband wrote that Wife’s counsel knew “next to nothing about appellate litigation,” so he would be their teacher. He referred to Wife’s motions as “petulant and nonsensical....” Husband added that because he filed “proper notices of appeal,” the circuit court could not adjudicate the remaining matters until this Court issues its decision. During that time, according to Husband, the circuit court would be “powerless to enter even a pendente lite order granting [Wife] interim support of any kind. And [Husband was] not giving her anything out of the goodness of [his] heart at this point. She will get nothing for as long as it takes for [this Court] to clear its log jam.” The court found that Husband’s actions and litigation strategy protracted the litigation and made it more expensive.
The court recognized as well that Husband had treated his previous litigation foes in a similar manner, such as when he threatened one adversary that they would be fighting Husband for decades because he would be unrelenting: [I]f you fail to take me up on this offer, this is going to get a lot worse for you before it gets better, even if you manage to win. You will spend decades fighting me. I will come at you with the ferociousness and tenacity that earned me my Trident and which killed Osama bin Laden.
Although she wasn’t his adversary in that litigation, Husband copied Wife on that email, presumably to bolster his point. As the court recognized, Husband’s anger and hostility in his tone persisted across his communications with Wife and her counsel.
Aside from his communications with Wife’s counsel, the court also reviewed some of Husband’s filings in the circuit court and found that they too protracted the litigation. These included a motion to
show cause against himself as to why he should not be held in contempt. The court found that Husband filed this motion in response to Wife’s counsel informing Husband that he was violating the parties’ consent order. During the hearing, he explained his actions there, revealing that he did so to silence Wife’s counsel:
[DEFENSE COUNSEL]: You filed in this matter not just the request for a jury trial, but you also filed a petition for contempt against your own self, right?
[HUSBAND]: Yes. Because you kept — they kept making unreasonable threats against me, and I just needed to get you to quiet down, frankly.
[DEFENSE COUNSEL]: Let’s be clear. Your — the consent order that you signed prohibits you from contacting your wife about anything that’s not related to the children, right?
[HUSBAND]: Yes.
[DEFENSE COUNSEL]: And you continue to contact her about a lot of other things, right?
[HUSBAND]: No.
[DEFENSE COUNSEL]: You sent her love poems.
[HUSBAND:] Sure.
[DEFENSE COUNSEL]: Right? And I said, Mr. Charles, you need to stop so you’re not in contempt, right?
[HUSBAND]: Yes.
[DEFENSE COUNSEL]: And in response to me saying to you stop, you filed a petition for contempt against yourself.
[HUSBAND]: Yes.
[DEFENSE COUNSEL]: And then we had to file an opposition to your petition against yourself.
[HUSBAND]: You didn’t have to file an opposition. If you don’t like me and you want me to be sanctioned, why would you file an opposition to get — to a motion I filed against myself? You didn’t have to do anything. You could have just let it ride.
[DEFENSE COUNSEL]: Oh, sure. And then go to court over that?
[HUSBAND]: No. If I file — if I file a motion against myself and you don’t oppose it, then just grant it. I have no idea why you filed an opposition to that.
THE COURT: Is this some sort of a joke on the legal system that you’re filing a petition for contempt against yourself?
[HUSBAND]: It’s because they kept threatening me with contempt. I said fine, just, just go ahead and file it. They wouldn’t do it. So I did, I did it.
THE COURT: But you realize then the court system has to process that paperwork and schedule a hearing, correct? You realize that?
[HUSBAND]: But — but she didn’t.
THE COURT: But are you telling me that you’re okay with then the court system having to engage in this type of work because you want to make a snarky point to opposing counsel?
[HUSBAND]: No, it wasn’t a snarky point. I thought what I did was fine. I thought it was consistent with the terms of the agreement. I said if you think this is wrong, go ahead and file it. And I — and they — they just —
THE COURT: But what — why is it okay to file a petition for contempt against yourself? What’s the purpose of that?
[HUSBAND]: To get a — to get a determination as to whether what I was doing was actually problematic. I didn’t think it was problematic.
THE COURT: To get an advisory opinion from the Court.
[HUSBAND]: Well, it’s not advisory. I mean, it actually comes with sanctions.
THE COURT: Okay.
As the court pointed out, this behavior was unreasonable and was carried out for the purpose of being “snarky.” It created unnecessary work for the court, increased Wife’s attorneys’ fees as her attorneys would have to respond. And yet, as the court found, Husband’s actions were not substantially justified.
The court found that Husband’s other filings dragged Wife through a mire of litigation, and the record supported that finding. After filing for a limited divorce, Husband filed a jury demand. The circuit court recognized that Wife responded by filing a motion to strike the jury demand, informing Husband that FL § 1-201(b) does not permit jury demands in Maryland divorce cases. Husband then filed an opposition to that motion. Husband—a barred Maryland attorney who operates his own law firm—asserted that he “did not know the law when [he] filed [his] jury demand,” and that filing a jury demand “was an error.” The Court viewed Husband’s efforts as designed to “paper the defense to death.”4 After all, Wife’s counsel had informed him of the statutory provision that grants courts sitting in equity their jurisdiction over divorces, but Husband filed his opposition anyway.
Husband’s other filings included a motion for alimony pendente lite despite his complaint for limited divorce already requesting alimony. The court found correctly that this motion was unnecessary5 and another way for Husband to embarrass Wife. The motion included exhibits, some of which contained the email Wife sent requesting a divorce, Wife’s interim protective order, and Husband’s communications threatening Wife with divorce. The record supported the court’s conclusions.
Husband also filed a motion for one of the judges on the circuit court that had adjudicated one of his earlier motions to recuse. The court found that Husband simply picked out one of the judges who ruled against him to file this motion against and that the motion lacked substantial justification. The court noted as well Husband’s motion to consolidate his defamation suit against Wife with this divorce litigation. This was an effort to embarrass and intimidate Wife, as Husband
aimed to air his grievances with her in front of a jury. Again, this motion came after Wife had already informed Husband that a court in equity has jurisdiction over a divorce case. Nevertheless, Husband persisted, stating in the motion to consolidate that Wife “has thus far resisted [Husband’s] demand for a jury trial in the divorce action.” The record amply supports the court’s finding that these positions were not substantially justified.
The court concluded with Husband’s motion for a preliminary injunction. Husband sought the injunction to force Wife to sell the marital home or refinance it so, he said, he could reclaim his veteran’s affairs benefits. The court denied this motion, reasoning that issues related to distributing marital property would be adjudicated at the merits hearing (and now they have been). Husband nevertheless filed a motion to reconsider.
As Husband communicated with Wife and her counsel and filed all these motions, Wife’s counsel had to respond. With each motion came an opposition. With each opposition came a reply. And as the court entered each order, Husband filed a motion to reconsider. He knew exactly what he was doing— he said the quiet parts out loud, both in his voice and by email, then followed through. As the circuit court put it, Husband ramped up Wife’s attorneys’ fees as an exercise of his anger and to dissuade her from continuing the divorce litigation. Not only that, when communicating with his adversary, the court found that Husband insulted Wife and her counsel. The court found, and we agree, that Husband’s behavior, strategy, and tactics protracted the litigation.
The court did not find that Husband had any good cause for the protracted litigation. Having found that Husband lacked a substantial justification to litigate his case in this manner, the court moved on to reasonableness. See Davis, 425 Md. at 206 (noting that if circuit court finds that party lacked substantial justification in bringing a claim under FL § 12-103 and there is no good cause finding to the contrary, only consideration left for court is reasonableness of opposing party’s attorneys’ fees). The court found Wife’s counsel’s fees reasonable, and Husband doesn’t argue otherwise. The court recognized that the work Wife’s counsel performed was not just reasonable but necessary. Her counsel could not sit by idly as Husband filed motion after motion. She had to respond and did so.
The court did not abuse its discretion in ordering Husband to pay Wife’s attorneys’ fees.
FOOTNOTES
1 At the time, Wife’s name was Tiffany Summerfield Charles, but in the parties’ judgment of absolute divorce, the circuit court granted her a name change.
2 Husband identified the Questions Presented in his brief as follows:
1. Whether the Circuit Court abused its discretion in denying Appellant a preliminary injunction to reclaim his VA mortgage benefits where Appellee has no right to the benefits as a matter of law.
2. Whether the Circuit Court had the authority to hold a PL hearing at all.
3. Whether the Circuit Court abused its discretion in admitting evidence over Appellant’s objection that the evidence had been deliberately altered.
4. Whether the Circuit Court abused its discretion in admitting evidence in violation of the rule on completeness.
5. Whether the Circuit Court abused its discretion in admitting partially redacted emails and other communications from settlement negotiations.
6. Whether the Circuit Court abused its discretion in finding that an attempt to intimidate Appellee into a settlement was proper grounds for imposing sanctions.
7. Whether the Circuit Court abused its discretion in imputing Appellant’s teaching stipend when he was also fulling[sic] employed as an attorney.
8. Whether the Circuit Court erred in calculating Appellant’s parenting time. Wife framed the Questions Presented as:
1. Did the Trial Court Abuse Its Discretion in Denying Appellant a Preliminary Injunction?
2. Did the Trial Court Abuse Its Discretion in Holding a Pendente Lite Hearing?
3. Did the Trial Court Abuse Its Discretion in Admitting Evidence Over Appellant’s Objection?
4. Did the Trial Court Err in Admitting a Partially Redacted Email Chain?
5. Did the Trial Court Err in Admitting Portions of Emails from Appellant That Were Specifically Not for Settlement Purposes Only and Which Were Otherwise Relevant to the Issues Before the Trial Court?
6. Did the Trial Court Abuse Its Discretion in Find[sic] that an Attempt to Intimidate Appellee into a Settlement Was Grounds for Imposing Sanctions?
7. Did the Trial Court Abuse Its Discretion in Finding the Appellant Had Voluntarily Impoverished Himself?
8. Did the Trial Court Abuse Its Discretion in Calculating Appellant’s Parenting Time?
3 We will not address Husband’s question about the calculation of his parenting time because no arguments in his principal brief addressed it. Under Maryland Rule 8-504(a)(6), all briefs filed in this Court must contain an “[a]rgument in support of the party’s position.” Should a party not abide by this rule, we have the discretion to “dismiss the appeal or make any other appropriate order with respect to the case ” Md. Rule 8-504(c). Husband’s only argument appeared in his reply brief. “[A]lthough reply briefs are permitted under the Rules of appellate procedure, their function is limited to responding to points and issues raised in the appellee’s brief.” Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 241 (2004). A party must “articulate and adequately argue all issues the appellant desires the appellate court to consider in the appellant’s initial brief.” Id.
4 Of note, in closing argument, Husband began by stating that he “shouldn’t have filed the — the jury demand.” Then, he qualified that statement, claiming that “the jury demand thing . . . did have a little bit substantial merit because [Husband] was trying to consolidate this case with the — with the defamation case.” Then, in response to a question from the court whether Husband thought he could consolidate the two cases, he answered “yes, if you have a case that involves both questions of, you know, of legal causes of action and equity causes of action, you can have a jury demand.” He concluded by stating that he did not know better at the time he filed his jury demand and that he was “pleading ignorance truthfully. [He] didn’t know what [he] was doing.” Whatever his true motives, and we don’t have to divine them here, Husband’s jury demand was never justified in the least.
5 In their Maryland Family Law treatise, the authors state that the “utility for a limited divorce today is as the basis for seeking temporary child support, alimony, custody, use and possession, etc.” Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 4-2 (7th ed. 2021). Notably, in the time since Husband filed his complaint for a limited divorce, the statute authorizing limited divorces in Maryland has since been repealed. Acts 2023, c. 645, § 1, c. 646, § 1 (repealed Oct. 1, 2023).
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 10 MFLU Supp. 26 (2025)
Recommendation; final judgment; appeal dismissed
Malik D. Brandon v. Meghan Welch
No. 2282, September Term 2024
Argued before: Nazarian, Arthur, Leahy, JJ.
Opinion by: Arthur, J.
Filed: July 24, 2025
The Appellate Court dismissed father’s appeal of the magistrate’s written report containing her findings and recommendations. Because father noted the appeal before the entry of the final judgment—the Charles County Circuit Court’s order approving the magistrate recommendations—his appeal was premature. As such, his appeal had no force or effect. And when the circuit court actually approved the recommendations and entered the final judgment, father failed to file a notice of appeal.
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..
person . . . due to continued threats and harassment from [Mother].” The magistrate “f[ound] it appropriate to proceed in his absence” and heard testimony from Mother alone. The magistrate announced her findings and recommendations on the record.
Among other things, the magistrate recommended that Mother should be awarded sole legal and primary physical custody; that Father should be granted reasonable rights of parenting time; and that Father should pay $488.00 per month in child support, in addition to $62.00 per month to satisfy his arrearages. The magistrate informed Mother that Father would receive a copy of her recommendations and that he would have ten days to file exceptions to those recommendations.
The Circuit Court for Charles County appointed a family law magistrate to hear the parties’ claims for child custody and child support. The father appealed from the magistrate’s written report before the circuit court entered its order accepting and implementing the magistrate’s recommendations. The father did not appeal from the order by which the circuit court actually accepted and implemented the recommendations.
We shall dismiss the appeal because it is not authorized by the Maryland Rules or other law and because the notice of appeal was not filed with the lower court within the thirtyday period prescribed by Maryland Rule 8-202. Md. Rule 8-602(b)(1)-(2).
BACKGROUND
Meghan Welch (“Mother”) gave birth to a daughter in June 2024. On July 5, 2024, Malik Brandon (“Father”) filed a complaint in the Circuit Court for Charles County, seeking joint custody and parenting time. Mother filed a counterclaim seeking primary physical custody, sole legal custody, and child support.
The circuit court appointed a family law magistrate to hear evidence and propose recommendations for resolving the parties’ claims. The magistrate held a hearing on January 14, 2025. Father did not attend the hearing because, he tells us, he “was unable and unconformable [sic] to appear in
The magistrate’s written report was entered onto the electronic case management system on January 16, 2025. Father filed a notice of appeal from the magistrate’s report on January 27, 2025, but he did not file exceptions to the findings and recommendations. The circuit court, seeing that Father had filed no exceptions, and upon reviewing the magistrate’s report, entered an order implementing the magistrate’s recommendations on February 5, 2025.
Father did not appeal from the circuit court’s order.
DISCUSSION
Generally, a party may appeal only “from a final judgment entered in a civil or criminal case by a circuit court.” Maryland Code (1974, 2020 Repl. Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“CJP”). To qualify as a final judgment, the order “must be intended by the court as an unqualified, final disposition of the matter in controversy[.]” Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989); Maryland Rule 2-602(a). “[T]o be an unqualified, final disposition, an order of a circuit court must be ‘so final as either to determine and conclude the rights involved or to deny the appellant the means of further prosecuting or defending his or her rights and interests in the subject matter of the proceeding.’” Metro Maint. Sys. South, Inc. v. Milburn, 442 Md. 289, 299 (2015) (quoting Rohrbeck v. Rohrbeck, 318 Md. at 41) (emphasis in original). “[W]e can raise the issue of finality on our own motion.” Zilichikhis v. Montgomery County, 223 Md. App. 158, 172 (2015); accord In the Matter of Broadway Servs., Inc., 265 Md. App. 343, 359 (2025).
In this case, Father has appealed from the magistrate’s written report containing her findings and recommendations, not from the circuit court’s order implementing those recommendations. The magistrate’s
report is not a judgment, much less a final judgment.
A court may appoint a magistrate to conduct hearings in domestic relations matters and other matters or issues not triable of right before a jury. Md. Rule 2-541(b).
Magistrates can hear testimony and recommend findings of fact and conclusions of law. Md. Rule 2-541(c); Md. Rule 9-208(b). Based on those recommended findings and conclusions, domestic relations magistrates must prepare written reports in which they make recommendations to the circuit court in the form of a proposed order. Md. Rule 9- 208(e)(1).
A magistrate’s report is a proposal or a recommendation; it is not an order or a judgment. “The [magistrate’s] report is advisory only[.]” O’Brien v. O’Brien, 367 Md. 547, 554 (2002); see also Grant v. Cnty. Council of Prince George’s County, 465 Md. 496, 542 (2019) (stating that a “magistrate’s report is merely advisory”). Even if a party files exceptions to a magistrate’s report and the court sustains or overrules the exceptions, the court’s ruling “does not end the case in the Circuit Court, and it therefore does not constitute a judgment.” O’Brien v. O’Brien, 367 Md. at 555-56. The case is “not over until a judgment, entered in conformance with Rule 2-601, is signed and entered on the docket.” Id. at 556.
Here, Father filed no exceptions. Instead, he noted an appeal from the magistrate’s report. Because Father noted the appeal before the entry of the final judgment—the court’s order approving the magistrate recommendations—his appeal was premature. As such, his appeal had no force or effect. See, e.g., Doe v. Sovereign Grace Ministries, Inc., 217 Md. App. 650, 662-63 (2014).1
Furthermore, when the court actually approved the recommendations and entered the final judgment, Father failed to file a notice of appeal. Consequently, it appears that this Court must dismiss the appeal. Md. Rule 8-602(b) (1)-(2).
There are only three exceptions to the general rule that a party may appeal only from a final judgment: “appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2-602; and appeals from interlocutory rulings allowed under the common law collateral order doctrine.” Salvagno v. Frew, 388 Md. 605, 615 (2005); accord McLaughlin v. Ward, 240 Md. App. 76, 85 (2019). None apply.
The statutory exceptions are contained in CJP § 12-303. The exceptions pertain to a specific set of “interlocutory orders entered by a circuit court in a civil case.” Id. In this case, however, Father has not appealed from an “order,” interlocutory or otherwise. He appealed only from an advisory report by a domestic magistrate. CJP § 12-303 does not permit his appeal.
Rule 2-602(b) permits a circuit court to direct the entry of a final judgment as to one or more but fewer than all of the claims or parties, provided that the court “expressly determines in a written order that there is no just reason for delay.” Here, we have no such determination. Nor, in any event, could the court have made such a determination, not least because the magistrate’s report is only an advisory recommendation. The report did not
resolve any claims involving any of the parties.
The collateral order doctrine is a “very narrow exception” to the general rule that a party may appeal from a final judgment. See, e.g., Dawkins v. Baltimore City Police Dep’t, 376 Md. 53, 58 (2003). “To qualify as a collateral order, a ruling must satisfy four criteria: ‘(1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment.’”
Maryland Bd. of Physicians v. Geier, 225 Md. App. 114, 131 (2015) (quoting Addison v. Lochearn Nursing Home, LLC, 411 Md. 251, 285 (2009)); accord McLaughlin v. Ward, 240 Md. App. at 88.
The magistrate’s report fails to satisfy most, if not all, of these requirements. The report does not conclusively determine anything; it is a mere recommendation. The report is not completely separate from the merits; rather, it makes recommendations about how the court should decide the merits. Finally, the merits of the report would have been effectively reviewable on an appeal from a final judgment, if Father had noted exceptions and the court had overruled them. In short, neither this exception nor any of the others will apply to save Father’s appeal.
We have also considered whether Father’s premature appeal could be saved by Maryland Rule 8-602(f). That rule provides as follows: “A notice of appeal filed after the announcement or signing by the trial court of a ruling, decision, order, or judgment but before entry of the ruling, decision, order, or judgment on the docket shall be treated as filed on the same day as, but after, the entry on the docket.”
Rule 8-602(f) cannot save the appeal. As previously stated, the magistrate’s report is not “a ruling, decision, order, or judgment.” The report is a mere advisory recommendation. Thus, when Father noted his appeal after the magistrate issued her advisory report but before the court had approved the report, he did not note an appeal “after the announcement or signing by the trial court of a ruling, decision, order, or judgment but before entry of the ruling, decision, order, or judgment on the docket.” Md. Rule 8-602(f).
Finally, we have considered whether we may treat Father’s notice of appeal as exceptions to the magistrate’s report and remand the case to the circuit court so that it may consider them. Although Father noted the appeal in the circuit court on the same day on which his exceptions would have been due, we have determined that we cannot treat the notice of appeal as the equivalent of exceptions. Father used a court-issued form as his notice of appeal. The notice of appeal need not, and does not, disclose the asserted error. Yet, under Maryland Rule 9-208(f), the party’s exceptions to a magistrate’s report must “set forth the asserted error with particularity.” Moreover, “[a]ny matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.” Id.
“[E]xceptions serve a dual purpose—to inform the court, first, that the excepting party is not satisfied with the
[magistrate’s] recommendation, and, second, of the reason why the court should not accept that recommendation.”
O’Brien v. O’Brien, 367 Md. at 555. Father’s notice of appeal served neither of those purposes. The circuit court had no reason to interpret the notice of appeal as though it were exceptions to the magistrate’s report.
In summary, Father noted an appeal from something that is not appealable—a magistrate’s report. Father
failed to note an appeal from the ruling that actually was appealable—the court order adopting the magistrate’s recommendations. Consequently, we must dismiss his appeal. Md. Rule 8-602(b)(1)-(2).
APPEAL DISMISSED. APPELLANT TO PAY COSTS.
FOOTNOTES
1. Because the premature notice of appeal had no force or effect, it did “not divest the trial court of jurisdiction to enter final judgment in the case,” Makovi v. Sherwin- Williams Co., 311 Md. 278, 283 (1987), which it did when it approved the magistrate’s report.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 10 MFLU Supp. 29 (2025)
Breach of contract; unjust enrichment; inconsistent verdict
The Appellate Court vacated the Frederick County Circuit Court’s verdict awarding the decedent’s grandsons a total of $28,000 in damages on their claim that they did not receive full life insurance benefits: $5,000 for breach of contract, and $23,000 for unjust enrichment. The verdicts for breach of contract and unjust enrichment were irreconcilably inconsistent, and the circuit court erred as a matter of law in permitting them to stand. On remand, the grandsons must elect their remedies.
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..
Plaintiff’s breach of contract and/or unjust enrichment claims?
We will address these questions in reverse order. First, we hold that there was sufficient evidence adduced at trial to support the Wentzes’ claims. Second., we conclude that Edward’s challenge to the concurrent verdicts in the motion for JNOV was not preserved for review. However, we hold that, following the motions for JNOV and for new trial, the court erred in failing to invoke its revisory powers to amend the inconsistent verdict. Accordingly, we vacate and remand to the circuit court for an election of remedies.
BACKGROUND
Factual Background
Marjorie Larson was born on March 3, 1938. She had two children: Edward A. Gazvoda, and Michelle Wentz. Edward1 had two children, Garrison and Grant Gazvoda. Michelle had two children, Zachary and Steven Wentz.2 From 2007 until her death in 2018, Ms. Larson lived in Maryland, near the Wentz family. Edward lived in Colorado. In 2017 and 2018, Grant lived with Ms. Larson in her home. Grant moved out in February of 2018, prior to Ms. Larson’s death.
This appeal arises from a dispute over the distribution of funds from a life insurance policy (“the Policy”) held by the decedent, Marjorie Larson (“Ms. Larson”). Appellant Edward A. Gazvoda, Ms. Larson’s son, was the direct beneficiary of the Policy and the personal representative of Ms. Larson’s Estate. Appellees Steven and Zachary Wentz (“the Wentzes”), who are Ms. Larson’s grandsons and Edward Gazvoda’s nephews, contended that they were entitled to receive $28,000 each from the proceeds of the Policy. However, Edward only sent the Wentzes two checks for $5,000 each, which he later cancelled. The Wentzes sued Edward Gazvoda in the Circuit Court for Frederick County on multiple theories of liability, including third-party beneficiary breach of contract and unjust enrichment. Following a jury trial, the jury awarded both Steven and Zachary a total of $28,000 in damages: $5,000 for breach of contract, and $23,000 for unjust enrichment. Edward moved for a judgment notwithstanding the verdict (JNOV) and a motion for new trial, and the circuit court denied both motions. Edward timely filed this appeal on October 23, 2023, and presents two questions for our review:
Did the Circuit Court err by sustaining the jury’s unjust enrichment award, where the Plaintiffs also recovered breach of contract damages?
Was there sufficient evidence adduced at trial to support
Although Edward lived primarily in Colorado, he regularly visited Ms. Larson. In the summer of 2017, he went with her to see an oncologist, where she was diagnosed with pancreatic cancer. The oncologist estimated that Ms. Larson would live about 18-24 months if she underwent chemotherapy. The oncologist recommended that Ms. Larson “get her affairs in order.” Later that year, on November 29, 2017, Ms. Larson changed the beneficiary of her $150,000 life insurance policy to Edward Gazvoda.
In December 2017, Ms. Larson was hospitalized with a serious bacterial infection. On December 14, 2017, while she was in the hospital, Ms. Larson executed five documents: a “Last Will and Testament,” (the “Will”) a “Power of Attorney,” an “Advance Medical Directive,” an “Appointment of Health Care Agent,” and an “Appointment of Agent to Control Disposition of Remains.” 3 All five documents were witnessed by Grant Gazvoda and Candie Kitts, Grant’s then-girlfriend. Edward was present when the documents were executed.
The Will directed $165,000 in cash bequests, including $28,000 to each of Ms. Larson’s four grandchildren. It also directed a special cash bequest of $5,000 to Grant Gazvoda “for being my caregiver.” The Will named Edward as the personal representative of Ms. Larson’s estate, and the Power of Attorney named Edward as Ms. Larson’s agent. On the same day the documents were executed, Edward signed an affidavit declaring that the Power of Attorney had become effective.
Edward did not take any action under the Power of Attorney at that time.
Ms. Larson died on October 21, 2018. The Will named Edward the personal representative of her estate and directed $165,000 in cash bequests. However, at the time of her death, Ms. Larson’s estate had less than $50,000 in assets. Ms. Larson did have two life insurance policies—one for $150,000 and the other for $240,000.4 Edward was the beneficiary of both life insurance policies and received the distribution for those policies upon Ms. Larson’s death.5
In November and December 2018, Edward wrote a series of checks, many to individuals and institutions named in the Will. These payments included $1,000 to George Washington University, $1,000 to American University, $1,000 to Waynesburg University, and $10,000 to David Larson— amounts corresponding to cash bequests in the Will. Edward transferred money to his son Grant in a series of increments, totaling around $33,000. However, Edward only gave $5,000 each to Garrison Gazvoda, Steven Wentz, and Zachary Wentz, rather than the $28,000 specified in the Will.
After the Wentzes received the $5,000 checks, Michelle took a picture of the checks and texted the picture to Edward, asking “if this was a down payment on what was due to them in the will or was it a bonus.” Edward responded, “no, that’s all they were getting. That’s all [Ms. Larson] wanted them to have.” At this point, the Wentzes contacted an attorney, who sent a letter to Edward demanding the $23,000 difference. Edward then sent an email to the Wentzes’ attorney advising that he had placed a stop payment on the checks. Despite receiving this email, the Wentzes attempted to cash their checks. Zachary was fined $20 by his bank for the returned deposit, and Steven was charged a fee of $12.50.
PROCEDURAL HISTORY
On July 1, 2019, the Wentzes filed a complaint against Edward in the Circuit Court for Frederick County. The initial complaint contained four counts: two for breach of third- party beneficiary contract, and two for dishonored checks.6 On November 4, 2020, following various other filings and nearly a year of discovery, the Wentzes filed an amended complaint. The amended complaint contained four counts applicable to both brothers: breach of thirdparty beneficiary contract, unjust enrichment, constructive trust, and dishonored check. Edward filed a motion for summary judgment on June 3, 2021. The Wentzes filed an opposition motion on July 7, 2021. The circuit court stayed the summary judgment motion until depositions could be completed, and heard argument on the motion for summary judgment on October 24, 2022. On October 26, 2022, the circuit court issued an order denying Edward’s motion for summary judgment.
TRIAL
The jury trial began on June 13, 2023, and lasted five days. The Wentzes called four witnesses: Edward Gazvoda, Michelle Wentz, Zachary Wentz, and Steven Wentz. Edward did not put on his own case; instead, his counsel cross-
examined the plaintiff’s witnesses and introduced evidence during cross-examination.
First Witness
The first witness called by the Wentzes was Edward Gazvoda. The Wentzes’ direct examination of Edward lasted over a day. Edward testified that he received $240,000 from a second life insurance policy but was unable to explain why documents related to this policy were not provided in discovery. Edward admitted that the income from Ms. Larson’s life insurance policy made up more than half of his income from 2018-2021 but asserted that he also lived off other funds.
Edward explained that his relationship with his sister, Michelle, became strained around 2015-2016, when she “used one of my friends to have my son [Grant] extradited from Arizona . . . to Maryland to face terrorist charges.” In addition, he stated that there was conflict between his son Grant and Michelle during the period that Grant lived with Ms. Larson in 2017 and 2018. He confirmed that Grant moved out of Ms. Larson’s home because he was told to leave.
Edward confirmed that he gave his mother the draft will to review on December 13, 2017, but denied taking part in drafting it. Edward stated that he discussed the Will and Power of Attorney with Ms. Larson between December 13 and 14, and that he advised her to sign them. Edward acknowledged differences between the draft will of December 13 and the final will executed on December 14, including the addition of $8,000 in cash bequests to Grant. However, he denied making the changes himself. He said that he did not recall whether Ms. Larson read the documents before signing them. Edward acknowledged that Grant and Grant’s girlfriend witnessed the documents. Edward testified that he did not ask them to come, and they only witnessed because they happened to be visiting Ms. Larson in the hospital.
Edward told the jury that he found out about the second life insurance policy, for $240,000, while Ms. Larson was in hospice. He stated that he “helped clean out the house and her documents” while she was in hospice and discovered the policy. Edward testified that he did not copy any documents related to the policy or share them with his sister. He acknowledged sending multiple checks after Ms. Larson’s death, many of which went to individuals or institutions named in the Will. He sent checks for $5,000 each to Steven and Zachary Wentz, but they had not received any money because he stopped payment on the checks. He also sent a check for $5,000 to his son Garrison in July 2018, nearly eight months after Ms. Larson’s death. Edward testified that he was “not eager” to give Garrison money at the time because he had been in protracted litigation with Garrison’s mother over custody, and Garrison decided to live with his mother. He acknowledged that the only one of the four grandchildren that received $28,000 or more was Grant.
Edward, as personal representative of Ms. Larson’s estate, testified that she had less than $50,000 in assets at the time of her death, and her estate therefore qualified as a “small estate.” He explained that at the time of her death, Ms. Larson had debts totaling $653,239, and that her home sold for about $599,000—approximately $50,000 less than what was owed
on it. He billed the estate $15,000 for funeral expenses, the statutory limit. Edward also acknowledged that, based on bank records, he transferred a total of about $27,400 to Grant in a series of increments.
In response to questioning by his counsel, Edward stated that he transferred approximately $27,400 to his son Grant because of Ms. Larson’s wishes expressed verbally to him. Edward recounted that it was Ms. Larson’s desire to give the Wentzes $5,000 each, and that he was willing to send them that amount. He stated that he only stopped payment when the Wentzes’ attorney demanded the whole $28,000. He claimed that Ms. Larson gave him verbal instructions on how to distribute the insurance proceeds, and that his distribution was in accordance with those instructions. Although he lived in Colorado, Edward said that he talked to Ms. Larson “every other day, probably. A few times a week.” He stated that he mainly talked to Ms. Larson over the phone.
Edward recounted that the Will was prepared by free counsel through Walter Reed, and that he had no bearing on what Ms. Larson chose to itemize as bequests in the will. He asserted that Ms. Larson asked him to give Grant $31,000. He related that Grant left Ms. Larson’s house in February 2018 because Grant pushed her, and Edward called him up and told him to leave. He added that after Grant left, however, Grant would communicate with Ms. Larson over FaceTime, and those conversations were “loving.”
When asked why Ms. Larson wanted to give the Wentzes $5,000 each, Edward responded, “She wanted them to have something, is what she told me. She thought giving them nothing wouldn’t be fair and she loved them. She cared a lot about Zach and Steve, and wanted them to each have $5,000.” When asked why Ms. Larson did not choose to give them any more than $5,000, Edward responded, “She felt that during the time that she really needed them, they didn’t communicate with her or visit her. Very infrequently. And she had higher expectations of what they would do when she was dying.” Edward asserted that he did not gain any benefits from being personal representative of Ms. Larson’s estate. He stated that Ms. Larson made him the sole beneficiary of the $150,000 life insurance policy because she did not trust Michelle and thought that Michelle “was going to kill her and steal her jewelry.”
Edward’s counsel then returned to the subject of the $240,000 life insurance policy. He explained that Ms. Larson never discussed the policy with him, and that it was a “total surprise” that she had another policy that directed the proceeds to go to him. He added that Ms. Larson did not instruct him to use to proceeds for anything, and that he was free to use the proceeds in any way he saw fit.
Edward testified that he was not living off the life insurance proceeds, and that he worked for a real estate development firm in 2018 and then started two other businesses. According to Edward, Ms. Larson was able to manage her own affairs from the time she was diagnosed with cancer in summer 2018, all the way until she entered hospice in October 2018. He confirmed that the Will contained no instructions on the distribution of her life insurance policies beyond giving all rights to him, and stated that Ms. Larson had the opportunity to change the Will in the ten months after it was executed,
but that she chose not to do so. Edward insisted that his disposition of insurance proceeds was in accordance with Ms. Larson’s wishes and had nothing to do with the Will.
Second Witness
The Wentzes then called their second witness, Michelle Wentz. She testified that her sons, Zachary and Steven Wentz, have speech impediments and dyslexia, which made it difficult for them to read, finish homework, and write papers. She explained that Ms. Larson had a PhD in special education, and that she would help Zachary and Steven with their homework after she moved to Maryland. According to Michelle, Ms. Larson went back to work full-time at a private school in Maryland that the boys were attending so she could work with them. Michelle related that Ms. Larson went to all kinds of events with Steven and Zachary, including sporting events and holidays. She estimated that between 2007 and 2018, Ms. Larson interacted with Zachary and Steven roughly three times a week. Michelle explained that her relationship with her brother, Edward, became strained during the period of her mother’s illness. She said that in June 2017, Grant threatened her, and she had to get a restraining order against him. Accordingly, she was unable to visit Ms. Larson’s home very frequently because Grant was living there, although they still met outside Ms. Larson’s home. Michelle admitted that there was some strain between her and her mother because Ms. Larson did not want her to have the restraining order against Grant. Michelle recounted that on Mother’s Day in 2018, she and Ms. Larson discussed the assistance Ms. Larson intended to provide to her grandchildren after her death. According to Michelle, Ms. Larson “said that she had a life insurance policy worth about $150,000 and that [Edward] and I were to get no money because she had already provided to us,” and “that she had already allocated $28,000 to four of the grandchildren for their education[.]” Michelle also overheard a conversation between Zachary and Ms. Larson during which Ms. Larson offered him a check for his college, but he declined the money. Michelle testified that she had no knowledge of the $240,000 insurance policy until the court case began. Michelle testified that she did not find out about the Will until Ms. Larson was in hospice and Edward handed it to her.
Third Witness
The third witness called was Zachary Wentz. Zachary testified that Steven Wentz was his twin brother. Zachary said that he knew Ms. Larson his “whole life,” and that he and his brother Steven helped her move up to Maryland in 2007. He recounted spending nearly every holiday with Ms. Larson, including Christmas, Thanksgiving, and Mother’s Day. Ms. Larson lived “walking distance” from him in Maryland, so he and his brother visited her house often. Zachary related that he was diagnosed with dyslexia and ADHD in eighth grade, and that Ms. Larson helped him all throughout high school, including helping him write his college essays. Zachary told the jury that when he was in sixth grade, Ms. Larson became a teacher at his school, and that he had English class with her every day and ate lunch with her.
According to Zachary, after his mother obtained a
protective order against Grant, his interactions with Ms. Larson did not really change. He testified that on Father’s Day 2017, when he committed to play Division One lacrosse, Ms. Larson offered to write him a check for $25,000 to pay his tuition. However, he declined the money, telling her, “You have more time here than you think.” Zachary said that in June 2017, Ms. Larson again reminded him that she had money set aside for college. He again declined, explaining that “[a]t that time, it was her money still. She was still living and I had no reason to use it because she was still alive and it was hers.” Zachary testified that he would regularly visit Ms. Larson while she was sick and help her around the house.
On cross-examination, Zachary was asked how Ms. Larson could have intended her life insurance policy to cover the bequests in her will when the life insurance policy was for $150,000, and the bequests in the will added up to $165,000. Zachary responded that Ms. Larson told him she bought Grant a Mercedes when he moved out, and that this was intended as an advance on Grant’s bequest. Zachary stated that he did not know the value of the Mercedes. Zachary confirmed that he did not have personal knowledge of the terms of any agreement between Ms. Larson and Edward regarding the distribution of the life insurance policy. When Ms. Larson offered to give him $25,000 for college on Father’s Day 2017, she did not tell him where the money would come from. However, Zachery testified that when she offered him money for college in June 2017, she said “that it was going to come from the life insurance policy.”
Fourth Witness
The fourth and final witness was Steven Wentz. Steven also testified that he knew Ms. Larson all his life, that she would visit his family for holidays while she lived in Florida, and that he helped her move to Maryland in 2007. He testified that Ms. Larson was his English teacher from sixth grade to seventh grade, when the private school he was attending shut down. Steven stated that Ms. Larson regularly gave him and his brother gifts for occasions like Christmas and birthdays, as well as special occasions like graduation and sporting events. He said he would help her out whenever he could; he would shovel her driveways in the winter, wash her patio furniture in the summer, and go grocery shopping for her if needed. In high school he installed fake wood tile flooring in her basement. Steven testified that at one point he returned home from college because “school was not for me.” During that period, he briefly took care of Ms. Larson when Grant wasn’t there. Steven would cook Ms. Larson breakfast and dinner, help with her laundry, clean her house, and spend time with her. Following Steven Wentz’s testimony and the introduction of some additional exhibits, the Wentzes closed their case.
Motion for Judgment
After the Wentzes closed their case, Edward made a motion for judgment under Maryland Rule 2-519. Edward’s counsel argued that the Wentzes had failed to meet their burden of proof on all four counts: breach of third-party contract, unjust enrichment, constructive trust, and dishonored checks. Regarding the third-party beneficiary claim, counsel contended that the Wentzes failed to prove that there was an
actual contract between Edward and Ms. Larson. Counsel argued that there was no evidence to suggest that Edward received a benefit in exchange for promising to distribute the life insurance proceeds. Counsel therefore contended that any purported promise by Edward would have been gratuitous and unenforceable.
Edward’s counsel argued that if the contract were to distribute the proceeds of the life insurance policy in accordance with the Will, that would have been impossible as there was not sufficient money in the life insurance policy. Counsel pointed out that there was no evidence on the specific instructions given by Ms. Larson to Edward. Based on evidence surrounding the relationship between Ms. Larson and the Wentzes, counsel asserted, “it is perfectly logical to conclude that Marjorie Larson at or around the time of her death did, in fact, instruct Edward to send [her] grandson $5,000 and not anything else.” Edward’s counsel then argued that there was no evidence of any undue influence, stating that there was no evidence that Ms. Larson was incompetent when she made the Will or changed the beneficiary of her life insurance. Counsel pointed out that the revised Will actually increased the bequest to the grandchildren, including the Wentzes. Counsel argued that it is reasonable to assume that Ms. Larson intended the bequests in the Will to come out of her estate and did not realize that her estate would not cover the bequests.
Edward’s counsel then made a brief argument on the second count, unjust enrichment:
As to plaintiff’s claim of unjust enrichment, under Maryland law to sustain a claim under the doctrine of unjust enrichment, three elements must be established: Number one, a benefit conferred upon the defendant by the plaintiff. An appreciation or knowledge by the defendant of the benefits and the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.
Again, plaintiff[s] bear the burden of proving what it is that they are alleging. And in Maryland, a claim for unjust enrichment can only stand when all three of those elements that I just mentioned to Your Honor have been met. There are no facts in this record that has been submitted over the past couple of days at trial to show that the plaintiffs are entitled to the sum of $28,000 from the life insurance proceeds. It is that simple.
Where the $28,000 came from in the will, her estate. But there is no evidence to suggest that they are entitled to $28,000 from the policy. As such, Defendant Gazvoda was the sole and proper beneficiary of the life insurance policy[. T]hat he used the policy to give money to several, more than several individuals, and in an amount acceptable to plaintiffs doesn’t make it wrong as to what he did. He didn’t retain any benefit to put the plaintiffs in an inequitable position. In fact, they were written checks for $5,000 each. Plaintiffs would have to
overcome that. The plaintiffs would have to show that they were, in fact, entitled to $28,000.
On the third count, constructive trust, Edward’s counsel argued that there was no evidence of a confidential relationship that would give rise to a constructive trust. Counsel analogized the case to Potts v. Emerick, 293 Md. 495 (1982), and argued that if Ms. Larson wanted the Wentzes to receive $28,000 from her life insurance policy, she could have made them beneficiaries or directed Edward as personal representative in the Will. Finally, on count four, dishonored checks, counsel argued that the Wentzes came to the court with unclean hands. Counsel argued that the Wentzes’ injuries were their own fault because they attempted to cash the checks knowing that Edward had placed a stop payment.
Arguing against the motion, the Wentzes’ counsel urged that there was sufficient evidence from which a jury could find for the Wentzes on each count. Counsel pointed to two cases holding that circumstantial evidence was sufficient to find the existence of an oral contract and create a thirdparty beneficiary claim. Counsel pointed to evidence of a confidential relationship between Edward and Ms. Larson. Counsel also argued that, because Edward did not provide any documentation surrounding the $240,000 life insurance policy in discovery, the jury was entitled to make an adverse inference against him. Various pieces of evidence, counsel argued, contradicted Edward’s version of events—such as the fact that Grant had to leave Ms. Larson’s house. Counsel also pointed out that even if the $150,000 life insurance policy was not sufficient to cover all bequests in the Will, it was enough to pay $56,000 to the Wentzes.
At this point the court interjected and engaged in an extended colloquy with the Wentzes’ counsel about Count III, constructive trust. The court pointed out that a constructive trust is not a cause of action, but an equitable remedy. The court discussed with counsel the implications if the jury found for Edward on counts I and II, and the Wentzes’ counsel agreed that a constructive trust could not be implemented in that situation.
The Wentzes’ counsel then argued on count four, dishonored check. Counsel argued that CL § 15-802 was applicable despite the Wentzes knowing that Edward had placed a stop payment.
The circuit court denied Edward’s motion for judgment with respect to counts I and II, third-party beneficiary contract and unjust enrichment. The court granted Edward’s motion for judgment on count III, constructive trust, and reserved judgment on count IV, dishonored checks, until further argument.
Edward then rested his case without putting on any evidence. Edward did not make a second motion for judgment. The parties then had a bench conference regarding jury instructions. After a lunch break, the parties returned and had further argument on count IV, so the court granted Edward’s prior motion for judgment on that count. Only counts I and II went to the jury.
Jury Instructions
The circuit court read a series of agreed jury instructions, largely based on the Maryland Pattern Jury Instructions.
Relevant here, the jury instructions related to third- party beneficiary contracts were as follows:
A contract is an agreement creating rights or obligations between two or more parties. A contract is an agreement consisting of five elements. There must be two or more parties. The parties must have legal capacity to make the agreement. The agreement must be mutual. The agreement must be stated with reasonable certainty. And there must be consideration for the agreement. A promise is an expression by words or conduct, that a person will perform or not perform certain acts.
A bilateral contract is an agreement wherein the parties exchange promises to each other. A unilateral contract is an agreement in which the promise of one party is given in exchange for the doing or not doing of an act by the other party. An express contract is an agreement by the parties that is oral or written. An implied contract is an agreement created by the conduct of the parties. An offer is a reasonably definite proposal made by one party to another under circumstances indicating an intent to enter into a contract. Acceptance is an agreement by the party to whom an offer has been made to unconditionally accept the terms of the offer.
To create a contract, an offer must be accepted within the time set forth by the party making the offer. If the party making the offer has not specified a time within which the offer is to be accepted, then the other party may accept the offer within a reasonable period of time after it was made. The party making an offer may withdraw the offer at any time before it is accepted by the other party by giving notice of the withdrawal.
An offer terminates when the party making the offer dies, or becomes legally disabled from entering into a contract. An offer terminates if the terms of the offer become illegal or impossible to perform. An offer terminates when it is not accepted within the time set by the party making the offer, or if no time has been set, within a reasonable time. A party to whom an offer is made may respond by making a counteroffer. A counteroffer terminates the original offer. Acceptance occurs when the accepting party so notifies the offering party.
In this case, the law does not require the agreement to be in writing. The agreement can be formed by either spoken words, a writing, or actions that indicate consent to the -- to this agreement. A contract may be entered into by parties who are not in each other’s physical presence at the time of contracting. The offer and the acceptance may be made while they are communicating with each other by any means.
For an agreement to be binding, it must involve consideration. Consideration can be anything of value to the other party. No particular or formal words are needed to make a contract. Each party
must agree to be bound by the terms and conditions. The agreement may be demonstrated in writing, orally, or may be shown by the conduct of the parties.
A person who is not a party to a contract may enforce it if that contract was expressly made for the person’s benefit, and that person was intended to be a primary beneficiary. A confidential relationship exi[s]ts between two persons when one of them, the trusting party, is justified in assuming that the other, the trusted party, will protect the welfare of the trusting party. In determining whether a confidential relationship exists, you may consider any differences in things like age, mental condition, education, business experience, health, and degree of dependence between the two parties.
Undue influence occurs if the trusted party takes advantage of the . . . trusting party in making a contract. If those parties enter into a contract, the trusted party bears the burden of proving that he provided full disclosure of material facts to the trusting party, and that the contract is fair to the trusting party.
When a confidential relationship is established, and the party occupying the position of dominion receives a benefit from the transaction, there is a presumption against its validity, placing upon the beneficiary the burden of establishing by clear and convincing evidence, that there has been no abuse of confidence and that he acted in good faith, and that the act by which he benefitted was free, voluntary, and independent act of the other party to the relationship. To be clear and convincing, evidence should be clearer, in the sense that it is certain, plain to the understanding, unambiguous, and convincing in the sense that it is so reasonable and persuasive to cause you to believe it.
A material breach by one party relieves the other party from duty and performance. A breach is material if it affects the purpose of the contract in an important way. Performance is excused if it is impossible, or impracticable, because of the extreme and unreasonable difficulty, expense, injury, or loss which would result from its performance.
The court then read the following instruction on unjust enrichment to the jury:
A plaintiff may recover from a defendant on a claim for unjust enrichment upon proving the following three elements: a benefit conferred on the defendant by the plaintiff; an appreciation or knowledge by the defendant of the benefit; the acceptance or retention by the defendant of the benefit under circumstances that would make it inequitable for the defendant to retain the benefit without the payment of its value. The measure of damages for unjust enrichment is the value of the benefit conferred upon the defendant. Neither counsel objected to the jury instructions prior to their reading, or afterwards.
Jury Verdict
After the parties finished closing arguments on June 21, 2023, the jury retired to deliberate. The following day, June 22, the jury found for the Wentzes on count I, breach of third-party beneficiary contract, and awarded them $5,000 each. The jury also found for the Wentzes on count II, unjust enrichment, and awarded them $23,000 each.7 The court asked the parties if they had anything further before the jury was dismissed, and counsel for both sides said that they had nothing further.
Motion for New Trial and Judgment Notwithstanding the Verdict
On July 3, 2023, Edward filed two motions: a motion for new trial and a motion for judgment notwithstanding the verdict (JNOV). 8 In these motions, Edward raised for the first time the issue of inconsistent verdicts.
On September 27, 2023, the circuit court held a hearing on Edward’s motions. Edward’s counsel argued that the two verdicts for breach of contract and unjust enrichment were inconsistent, and that the evidence was insufficient to find breach of contract. The Wentzes’ counsel argued that the evidence was sufficient, and that the verdicts were not inconsistent. After the parties concluded their arguments, the court thanked them and stated that it would render a decision on both motions by that afternoon. Later that day, the court issued two one-page orders denying Edward’s motions. Edward timely noted his appeal to this Court.
DISCUSSION
I.
Sufficiency of the Evidence
A. Parties’ Contentions
Edward argues there was insufficient evidence to support the jury’s finding on Count I that he breached any thirdparty beneficiary contract. Edward argues that there is no evidence in the record to establish any definite terms of the alleged oral agreement, and asserts that “the evidence in this case, circumstantial or not, falls way short of establishing the requisite contractual elements to sustain the existence of a contract.” Specifically, Edward argues that there is no “evidence by which a reasonable factfinder could conclude that any alleged contract was supported by consideration.”
“At best,” he argues, the evidence shows he “agreed to make gifts on behalf of the Decedent as she requested him to do[,]” which “does not give rise to the formation of a contract.”
The Wentzes’ brief on appeal is almost entirely focused on the inconsistent verdict issue. However, the Wentzes do quote the argument of trial counsel below, which pointed to two cases holding that circumstantial evidence was sufficient to find the existence of an oral contract and create a third-party beneficiary claim. The Wentzes argue that there is sufficient evidence to find that a contract existed between Edward and Ms. Larson, especially given Edward’s alleged spoliation of evidence related to the $240,000 life insurance policy.
B. Standard of Review
“We review the sufficiency of the evidence de novo,” considering the evidence in the light most favorable to the
prevailing party at trial. White v. Kennedy Krieger Inst., Inc., 221 Md. App. 601, 645 (2015); see B-Line Med., LLC v. Interactive Digital Sols., Inc., 209 Md. App. 22, 44 (2012). “In a jury trial, the quantum of legally sufficient evidence needed to create a jury question is slight.” B-Line Med., LLC, 209 Md. App. at 45 (quoting Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329 (2012)). “Evidence is legally sufficient if ‘reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented.’” White, 221 Md. App. at 645 (quoting Hoffman v. Stamper, 385 Md. 1, 16 (2005)). The appropriate standard of proof “in a civil action . . . is the ‘preponderance of the evidence’ standard.”9 Mathis v. Hargrove, 166 Md. App. 286, 310 n.5 (2005). “To prove by a preponderance of the evidence means to prove that something is more likely so than not so.” Id. (quoting Coleman v. Anne Arundel Cnty. Police Dept., 369 Md. 108, 127 n.16 (2002)).
C. Breach of Third-Party Beneficiary Contract
Legal Framework
“A contract is defined as a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Maslow v. Vanguri, 168 Md. App. 298, 321 (2006) (internal quotation marks and citations omitted). “A contract may be oral or written.” Id. “To be binding and enforceable, contracts ordinarily require consideration.” Cheek v. United Healthcare of Mid-Atl., Inc., 378 Md. 139, 147 (2003). “In Maryland, consideration may be established by showing ‘a benefit to the promisor or a detriment to the promisee.’” Id. at 148 (quoting Harford Cnty. v. Town of Bel Air, 348 Md. 363, 382 (1998)). An intended third-party beneficiary of a contract may bring a suit to enforce the contract. CR-RSC Tower I, LLC v. RSC Tower I, LLC, 429 Md. 387, 457 (2012).
Analysis
Considering that “[i]n a jury trial, the quantum of legally sufficient evidence needed to create a jury question is slight[,]” Gholston, 203 Md. App. at 329, a reasonable jury could have found the elements of breach of contract met below. This case is similar to Parlette v. Parlette, 88 Md. App. 628 (1991), in which a mother claimed the existence of an agreement between her deceased son and his father to pay the son’s life insurance proceeds to her. See id. at 632-33. In that case, the evidence showed that (1) the son bought the policy from the father’s insurance company; (2) the son instructed the father to make the mother the beneficiary; (3) the father filled out the life insurance policy and gave it to the son to sign; and (4) the son was much closer to the mother than the father. See id. at 633-34. Further, there was no evidence that the son ever personally read the completed policy. Id. at 633. On those facts, this Court held that there was sufficient evidence of breach of contract to take the case to a jury. Id. at 640.
In the instant case, there was evidence adduced at trial that, if believed by the jury, would establish: (1) Edward received a benefit from Ms. Larson in the form of the $240,000 insurance policy, he was named personal representative of her estate, and he received an extra bequest in the Will to his son Grant;
(2) Ms. Larson desired for some of her life insurance proceeds to be paid out to the Wentzes; (3) Edward encouraged Ms. Larson to change the beneficiary of the life insurance policies to himself; and (4) Ms. Larson had a closer relationship to the Wentzes than Edward and his sons. Further, there is no direct evidence that Ms. Larson reviewed the Will or life insurance policy herself; even Edward did not testify to this fact. Although there is no testimony to the specific terms of any contract between Edward and Ms. Larson, the evidence supports a reasonable inference that such a contract existed. Thus, there was sufficient evidence to support a verdict on the breach of third-party beneficiary contract claim.
D. Unjust Enrichment Legal Framework
“The doctrine of unjust enrichment is applicable where the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money, and gives rise to the policy of restitution as a remedy.” Bank of Am. Corp. v. Gibbons, 173 Md. App. 261, 267 (2007) (internal citations and quotations omitted). In general, unjust enrichment consists of three elements:
1. A benefit conferred upon the defendant by the plaintiff;
2. An appreciation or knowledge by the defendant of the benefit; and
3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value.
Hill v. Cross Country Settlements, LLC, 402 Md. 281, 295 (2007) (quoting Berry & Gould,
P.A. v. Berry, 360 Md. 142, 151-52 (2000)).
It is not necessary that a benefit conferred in an unjust enrichment action come directly to the defendant from the plaintiff’s own resources. Id. at 298; see also Plitt v. Greenberg, 242 Md. 359, 364 (1966) (“It is immaterial how the money may have come into the defendant’s hands, and the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.” (quoting Empire Oil Co. v. Lynch, 126 S.E.2d 478, 479 (Ga. Ct. App. 1963))). For example, in Alternatives Unlimited, Inc. v. New Baltimore City Board of School Commissioners, 155 Md. App. 415, 431-32 (2004), an alternative education provider was awarded a contract to run a “dropout prevention program” at a Baltimore City high school for the remainder of the 1999-2000 school year. The following year, the provider implemented another dropout prevention program despite having no formal contract with the Baltimore City Board of School Commissioners (the “Board”). Id. at 432. According to the provider, the Baltimore City School System received $284,750 from the State of Maryland because of the provider’s dropout prevention program. Id. at 436. However, the Board refused to pay the provider for the second year of the program. Id. at 433.
The provider sued the Board on a variety of legal theories, including unjust enrichment. Id. at 422-23. The provider’s case was complicated by the Supreme Court of Maryland’s
decision in Gontrum v. City of Baltimore, 182 Md. 370 (1943), the “overarching principle” of which “is that a governmental entity, unlike a private corporation, may never have an obligation imposed upon it to expend public funds except in the formal manner expressly provided by law.” Alternatives Unlimited, 155 Md. App. at 425. Based on the authority of Gontrum, the circuit court granted summary judgment in favor of the Board on the provider’s claim for unjust enrichment. Id. at 424. On appeal, we noted that the provider had two possible theories regarding the nature of the benefit conferred on the Board: the “non-cash benefit” of its professional services, or the “cash benefit” of “the monetary payments forwarded by the State to the Board as opposed to a direct cash benefit.” Id. at 506. We held that if the benefit conferred on the Board was a cash benefit, then the provider’s unjust enrichment claim would not be barred. See id.
We explained that the provider may be able to meet the first element of unjust enrichment, “[a] benefit conferred upon the defendant by the plaintiff[,]” as follows: With respect to the first element, it well may be that Alternatives will be able to prove that the State, because of Alternatives’s Drop-Back-In program, provided to the Board a certain amount of funding to which the Board would not otherwise have been entitled. . . . If, when all the figuring is completed . . . the Board was, indeed, enriched by monies it would not otherwise have received, there would seem to have been proved “a benefit conferred upon” the Board by Alternatives, the first element of an unjust enrichment claim.
Id. at 497. Finding that the provider could meet all three elements of unjust enrichment, we reversed the circuit court’s grant of summary judgment as to that claim.10 Id. at 497, 506, 511-12.
Analysis
A reasonable jury could also find that the Wentzes proved all three elements of unjust enrichment. As noted above, those elements are:
1. A benefit conferred upon the defendant by the plaintiff;
2. An appreciation or knowledge by the defendant of the benefit; and
3. The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value.
Hill, 402 Md. at 295 (quoting Berry, 360 Md. at 151-52). The second and third elements of unjust enrichment are clearly satisfied. With regard to the second element, the evidence shows that Edward understood he was receiving a benefit in the form of life insurance proceeds in the combined amount of $377,400, and that the total value of the estate was less than $50,000, qualifying it as a “small estate.” Facts alleged during trial that support the third factor include: (1) Edward was well aware that the Will bequeathed Steven, Zachary, Grant and Garrison $28,000 each because Edward was the personal representative and was in the room when the Will was executed; (2) Edward did not inform his sister about the
$240,000 life insurance policy (nor did he produce a copy of it at trial), but the entire amount of that policy was transferred to his bank account; (3) Edward did not inform his sister of the change in beneficiary to the $150,000 policy, and the entire amount of $137,00 remaining on that policy was transferred to his bank account; and, (4) Edward transferred at least $27,400 to his son, Grant, after receiving the life insurance distributions. The first element of unjust enrichment is less obvious—here, the benefit of the life insurance policies was directly conferred on Edward by Ms. Larson under those policies, not by the Wentzes. However, “the fact that [money] was received from a third person will not affect [the defendant’s] liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.” Plitt, 242 Md. at 364 (quoting Empire Oil, 126 S.E.2d at 479). The Wentzes’ theory of unjust enrichment is that the Wentzes indirectly conferred a benefit on Edward, because Ms. Larson directed that they were each entitled to $28,000 of the life insurance proceeds that Edward wrongfully retained.
This case is analogous to Alternatives Unlimited, in which the provider could proceed on a claim of unjust enrichment based on the theory that the provider indirectly conferred a benefit on the Board in the form of funding given to the Board by the State.11 See 155 Md. App. at 497. The provider alleged that it was entitled to a portion of the State funding because the Board would not have received those funds without the provider’s program. See id. Here, the Wentzes adduced sufficient evidence at trial to show that they indirectly conferred a benefit on Edward in the amount of $56,000 in life insurance proceeds that Edward retained. Evidence at trial showed that Ms. Larson promised a portion of her life insurance proceeds to the Wentzes. Both brothers maintained a strong relationship with Ms. Larson, and Edward acted wrongfully by failing to give them the $28,000 promised to them, as reflected in the Will. Under these facts, a reasonable jury could find that the Wentzes met the first element of unjust enrichment because they indirectly conferred a benefit upon Edward in the form of the life insurance proceeds that Edward failed to distribute to them.
II.
INCONSISTENT VERDICTS
A. Parties’ Contentions
Edward argues, “It is well-settled that an unjust enrichment claim cannot lie where there is an express contract between the parties concerning the subject matter upon which the unjust enrichment claim rests.” He contends that parties in Maryland are not precluded from raising the issue of inconsistent verdicts post-judgment because “irreconcilably defective verdicts cannot stand.” Edward argues that he preserved the inconsistent verdict argument in his motion for JNOV because when he moved for judgment at the close of the evidence during trial, the jury had not rendered a verdict and the issue of inconsistent jury verdicts could not have been raised at that time.
To the contrary, the Wentzes insist that there was a logical basis for the jury’s double verdict. They contend that there could be a contract to pay them $5,000 each, and an unjust enrichment claim to make up the remaining $23,000. Second,
the Wentzes argue that Edward’s inconsistent verdict argument was not preserved because Edward failed to object before the circuit court discharged the jury. The Wentzes also take issue with Edward’s reliance on Southern Management Corp. v. Taha, 378 Md. 461 (2003), which dealt with a verdict that found an employee non-liable but the employer liable through respondeat superior. The Wentzes point to this Court’s decision in AXE Properties & Management, LLC v. Merriman, 261 Md. App. 1 (2024), in which we held that a party must raise an inconsistent verdict argument in a motion for judgment at the close of the evidence to later make that same argument in a motion for JNOV. The Wentzes argue that Edward made no such argument at the close of the evidence, and his inconsistent verdict argument is therefore unpreserved.
B. Standard of Review
“Where a case involves the application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Spaw, LLC v. City of Annapolis, 452 Md. 314, 338 (2017) (internal quotations and citations omitted); see also Plank v. Cherneski, 469 Md. 548, 559 (2020). “The standard of review of a court’s denial of a motion for JNOV is . . . whether on the evidence presented a reasonable fact-finder could find the elements of the cause of action by a preponderance of the evidence.” B-Line Med., LLC v. Interactive Digital Sols., Inc., 209 Md. App. 22, 45 (2012). “The standard of review of the denial of a motion for new trial is abuse of discretion.” Id.
C. Legal Framework Preservation
Maryland Rule 2-532(a) states that “[i]n a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.” In AXE Properties & Management, LLC v. Merriman, 261 Md. App. 1 (2024), this Court addressed the irregularity of challenging an inconsistent verdict through a motion for JNOV. In that case, we observed that normally, a motion for JNOV would not be the proper motion to file after the entry of inconsistent breach of contract and unjust enrichment judgments, given that the motion may only be made upon the grounds advanced in support of the earlier motion for judgment, and under the doctrine of election of remedies, plaintiffs are generally not required to ‘elect’ which of two inconsistent or alternative remedies they will recover under until after the jury returns its verdict(s).
Id. at 30 (emphasis removed).12 We stated that “the better practice would have been to file motions to alter or amend and to revise under Rules 2-534 and 2-535,” as these motions would not have required the issue to have been raised in an earlier motion for judgment. Id. at 25.
We further noted, however, that a motion for JNOV is “sufficient to invoke the revisory power of the court under Maryland Rule 2-535.” Id. at 31 (citing Taha, 378 Md. 461); Allstate Ins. Co. v. Miller, 315 Md. 182 (1989)). Under Maryland Rule 2-535(a), “[o]n motion of any party filed
within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment[.]”13 A court’s revisory power includes the power to correct a judgment when the plaintiff doubly recovered under inconsistent verdicts. See AXE Props., 261 Md. App. at 31-32, 41. A court abuses its discretion if it allows an irreconcilably inconsistent jury verdict to stand. Taha, 378 Md. at 495.
Inconsistent Verdicts
“It is settled law in Maryland, and elsewhere, that a claim for unjust enrichment may not be brought where the subject matter of the claim is covered by an express contract between the parties.” Cnty. Comm’rs of Caroline Cnty. v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 96 (2000) (quoting FLF, Inc. v. World Publ’ns, Inc., 999 F. Supp. 640, 642 (1998)). Both written and oral contracts are considered “express contracts.” Dolan v. McQuaid, 215 Md. App. 24, 35 (2013). Unjust enrichment is incompatible with an express contract because “[w]hen parties enter into a contract they assume certain risks with an expectation of a return.” Dashiell, 358 Md. at 83 (quoting Mass Transit Admin. v. Granite Constr. Co., 57 Md. App. 766, 776 (1984)). Parties thus cannot turn to unjust enrichment for recovery when they have no remedy under an existing contract. Id. “[W]hile a plaintiff may allege causes of action for breach of contract and unjust enrichment concurrently ‘when there is evidence of fraud or bad faith,’ a plaintiff may not ultimately recover under both for any claim covered under the contract.” AXE Props., 261 Md. App. at 41 (quoting Dashiell, 358 Md. at 100) (emphasis removed). When two inconsistent verdicts are entered, the plaintiff must make an election of remedies prior to the entry of judgment. See Hauswald Bakery v. Pantry Pride Enterprises, Inc., 78 Md. App. 495, 506 (1989); 25 Am. Jur. 2d Election of Remedies § 13, Westlaw (database updated October 2024).
D. Analysis Preservation
Edward’s inconsistent verdict argument was not properly preserved in his motion for JNOV. At no point in Edward’s motion for judgment at the close of evidence did counsel mention a potential incompatibility between a verdict for breach of third-party beneficiary contract and a verdict for unjust enrichment. Although the parties did discuss a potential conflict with the jury’s verdict, this was only in relation to the first two counts and count III, constructive trust. However, Edward’s motion for JNOV was sufficient to invoke the court’s revisory power under Maryland Rule 2-535. See AXE Props., 261 Md. App. at 31. Therefore, despite Edward’s failure to properly raise the issue, the circuit court had the power to address the allegedly inconsistent verdicts and order an election of remedies. See id. Inconsistent Verdicts
We hold that the two verdicts are inconsistent, and that the trial court erred in not ordering an election of remedies. The Wentzes’ principal theory of this case was that there was an oral contract between Edward and Ms. Larson, and that the Wentzes were third- party beneficiaries of this contract. Under this theory, the verdicts for breach of contract and unjust enrichment are clearly incompatible. If the jury found
that Edward had a contract with Ms. Larson to give $5,000 to each of the Wentzes, then the Wentzes cannot go beyond the terms of the contract to claw money from Edward beyond the agreed amount. See Dashiell, 358 Md. at 101.
The Wentzes advance the following argument to reconcile these seemingly inconsistent jury verdicts:
The Appellees Zachary and Steven Wentz, were owed and promised exactly $28,000 from their grandmother, which third-party benefit was improperly interfered with by their uncle, [Edward], who refused to abide by his mother’s instructions, both written and verbal. This includes the separate $5000 that for all intents and purposes, was conceded by Appellants. This was therefore reasonably and logically, put by the jury, into the given “box” of Contractual Breach. No such box existed for the remainder, and so the jury again did what was sound, which is to review the Instructions on Unjust Enrichment, arising out of the greater “quasi-contractual” damages, as illustrated in the Will, and concluded it matched.
The Wentzes appear to be arguing that there was a separate contract between Edward and the Wentzes to give them each $5,000, created when the checks were sent, and that this accounts for the breach of contract verdict—separate and apart from their claim of unjust enrichment.
The problem with this theory is that there was no evidence presented at trial of any consideration given by the Wentzes to Edward in exchange for the $5,000 checks. The Wentzes presented evidence of consideration that could support a contract between Edward and Ms. Larson to give them each $28,000, including the $240,000 life insurance policy, being
named personal representative of her estate, and increasing Grant’s cash bequest in the Will. But there is no evidence that could lead a reasonable jury to conclude that there was a valid contract between Edward and the Wentzes that would give rise to an independent obligation on the part of Edward to pay the Wentzes each $5,000. In the absence of such a contract, Edward sending the Wentzes checks for $5,000 each would be merely a gratuitous promise.
There is no reasonable interpretation of the evidence that would support a finding that Edward breached two contracts worth $5,000, and separately owed the Wentzes $23,000 each based on unjust enrichment.14 These verdicts were irreconcilably inconsistent, and the circuit court erred as a matter of law in permitting them to stand. See Taha, 378 Md. at 495. Where the jury has returned these two inconsistent verdicts, the Wentzes must make an election of remedies. See AXE Props., 261 Md. App. at 30 n.15. Confronted with Edward’s post-trial motions, the circuit court erred in not invoking its revisory power to order an election of remedies. On remand, the Wentzes much choose whether to recover under Count I, Breach of Third-Party Beneficiary Contract, or Count II, Unjust Enrichment.
Therefore, we vacate the judgment of the Circuit Court for Frederik County granting Steven and Zachary Wentz damages for both breach of contract and unjust enrichment, and remand to the circuit court for an election of remedies between those claims. Following the election, the circuit court should enter judgment against Edward A. Gazvoda only in the amount awarded by the jury for the elected claim.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR FREDERICK COUNTY
FOOTNOTES
1. Because some of the parties and witnesses share the same surname, we shall refer to them by their first names throughout the opinion in order to avoid any confusion, and mean no disrespect thereby.
2. Michelle also had three stepchildren not related to Ms. Larson.
3. Drafts of these documents were prepared by the Bethesda Legal Assistance Office of Walter Reed Hospital. Various changes were made before these documents were executed on December 14, 2017.
4. There is scant information about this $240,000 life insurance policy in the record because Edward did not provide any documentation related to the policy in discovery. Accordingly, there are no documents in the record on appeal showing who the named beneficiaries of that policy were. However, Edward’s bank records show a $240,000 deposit and he acknowledged receiving the money from a life insurance policy in Ms. Larson’s name.
5. The evidence at trial showed that Edward received one deposit for $240,000 and another deposit for roughly $137,000. The latter deposit was in the amount of $137,000, rather than $150,000, because Ms. Larson took out a $12,421.32 loan on the policy in November 2017.
6. The claims for dishonored checks were based on Maryland Code (1975, 2013 Repl. Vol.), Commercial Law Article (“CL”) § 15-802, which imposes liability under certain circumstances “[w]hen a check or other instrument has been dishonored by nonacceptance or nonpayment.”
7. 7 Interestingly, the verdict sheet signed by the foreperson appears to contain a typo: after asking the jury for whom it finds on Count II of the Amended Complaint, it asks, “If you find in favor of Plaintiffs on Count I [sic], what if any damages do you find for each Plaintiff:” Below this, the jury wrote “23,000” twice—for both Zachary Wentz and Steven Wentz.
When the court hearkened the entire jury, however, it formulated the verdict correctly, asking: “And for the second do you find, on Count II for the amended complaint, unjust enrichment for the plaintiffs; Zachary Wentz, $23,000 and Steven Wentz, $23,000, as well.” To this, the jurors responded, “I do.” At oral argument, both parties agreed that this final hearkening takes priority.
8. These motions were filed within the period prescribed by Maryland Rules 2-532(b) and 2-533(a) because the tenth day after the verdict, July 2, 2023, was a Sunday, and so the period ran to the end of the following day. See Md. Rule 1-203(a).
9. Heightened standards of proof, such as the “clear and convincing evidence” standard required to prevail on a claim for fraud, see White, 221 Md. App. at 635, are not applicable here.
10. We noted, however, that the provider would “be restricted to proving benefits conferred before it was expressly directed on February 26, 2001, to terminate all operations.” Alternatives Unlimited, 155 Md. App. at 499.
11. Although it might be argued that the provider directly conferred a benefit on the Board in the form of the dropout prevention program, this Court specifically held that Gontrum would bar recovery for the conferral of such a “non-cash” benefit. See Alternatives Unlimited, 155 Md. App. at 504-05. Therefore, the relevant benefit in Alternatives Unlimited was the cash benefit allegedly conferred on the Board by the State.
12. In Axe Properties, the appellant had briefly raised the issue of incompatibility in its motion for judgment at the close of the plaintiff’s evidence presented at trial, arguing:
“[W]ith regard to re[scission] and unjust enrichment rescission and alternative remedy, plaintiff is obviously now seeking for money damages rather than rescission. So, you know, unfortunately I don’t think they could have both. You know, one is, ‘we’re seeking damages.’ That’s—on top of that, ‘we’re seeking re[s]cission with respect to unjust enrichment[.]’ There is a written contract. So unjust enrichment is improper.”
261 Md. App. at 26 (alterations in original). The appellant then “renew[ed]” its earlier motion for judgment at the close of all the evidence. Id. In that situation, we held that the appellant had preserved the issue of inconsistent verdicts “by advancing it in the motion for judgment at the close of the evidence and the post-trial motions for JNOV.” Id. at 31.
13. 13 After 30 days, a court may only exercise revisory power in cases of fraud, mistake, or irregularity. Md. Rule 2-535; see Facey v. Facey, 249 Md. App. 584, 611 (2021).
14. 14 The dissenting opinion states that the jury intended the “Wentzes to each recover the full $28,000 from their grandmother.” The law permitted the jury to award each of the Wentzes up to $28,000 in unjust enrichment damages, or, up to $28,000 in contract damages. Maryland law did not countenance rendering separate verdicts for both breach of contract and unjust enrichment in amounts that added up to $28,000.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court vacated the Baltimore County Circuit Court’s award setting the effective date of father’s child support obligation as Aug. 1, 2024. If a party requests child support pendente lite in an initial pleading, the court must award child support from the date of that initial pleading unless the court finds that doing so would lead to an inequitable result. The circuit court did not explicitly find or explain why awarding child support from the time of mother’s initial pleadings (Oct. 18, 2022) would lead to an inequitable result.
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..
issued an order denying Mother’s request for reimbursement of family expenses.
Mother filed a notice of appeal on July 23 and presents two questions for our review, which we rephrase slightly:1
Did the circuit court err in awarding Mother child support starting August 1, 2024?
Did the circuit court err in denying Mother’s request for reimbursement of family expenses?
Tyrena Jonnell Myers (“Mother”) and Jonathan Chege (“Father”) married in 2019 and gave birth to one child in 2020. The parties’ marriage quickly became strained, and they separated on September 26, 2022. On September 27, Mother filed a petition for a protective order in case No. C-03FM-22-810045. Also on September 27, Father filed a complaint for absolute divorce in the Circuit Court for Baltimore County in the underlying case. Mother responded by filing an answer on October 18 and a counter-complaint for absolute divorce or, in the alternative, limited divorce, custody, child support, and other relief on October 19. Mother sought child support pendente lite and permanently in both filings.
The parties entered into a temporary consent order by which they agreed to dismiss the protective order case. They also agreed, among other things, that during the pendency of the divorce action, they would deposit their earnings in a joint bank account and pay all family expenses from that account.
The circuit court held a merits hearing over three days on January 9, April 15, and May 15, 2024. During the hearing, Mother alleged that Father had not been depositing his earnings in the parties’ joint bank account and requested reimbursement from Father for certain family expenses she had incurred. On July 12, the court granted Father an absolute divorce and ordered him to pay Mother $78 a month in child support “starting August 1, 2024.” The same day, the court
First, we hold that the court erred in setting the effective date of Father’s child support obligation as August 1, 2024. Under Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”) § 12-101(a)(1), if a party requests child support pendente lite in an initial pleading, the court must award child support from the date of that initial pleading unless the court finds that doing so would lead to an inequitable result. Mother requested child support pendente lite in her October 18, 2022 answer to Father’s complaint for absolute divorce and her October 19, 2022 counter-complaint, and the court did not explicitly find or explain why awarding child support from the time of those pleadings would lead to an inequitable result. We therefore vacate the child support award and remand for the court to address whether Mother is entitled to retroactive child support.
Second, we affirm the court’s order denying Mother’s request for reimbursement because Mother failed to present any legal basis upon which the court could grant her request for reimbursement of family expenses and failed to adequately document the amount she was owed by Father.
BACKGROUND
Events Leading Up to the Divorce
Mother and Father married on January 18, 2019 in the State of Virginia and Mother gave birth to a child on September 25, 2020. When the parties wed, Father was on active duty with the military. He was deployed to New Mexico shortly thereafter and convinced Mother to come along with him. According to Father, the parties’ marriage became strained during their time in New Mexico, as Mother struggled to find work and began to exhibit depressive tendencies. In October or November of 2020, Mother returned to Maryland with the parties’ child. She began a new job and moved into an apartment. Father sent Mother money to furnish the apartment and care for the child, and came to Maryland to visit when his job allowed. In June of 2022, Father returned to Maryland to attend college and moved in with Mother. Although the parties attended marriage counseling, the relationship was “rocky.”
One night in September of 2022, Father attempted to enter the parties’ bedroom, where Mother and the child were sleeping, to retrieve clothing for a military obligation the next morning. After several hours of knocking, during which Mother did not acknowledge Father’s requests to enter the room, Father kicked in the door. He took his belongings and promptly left the room. Father left the marital home on September 26, 2022, and the parties have remained separated since.
On September 27, Mother filed a petition for a protective order in case No. C-03- FM-22-810045, alleging that Father had damaged the door when he kicked it in. He also “scream[ed] in [her] face,” including the words, “you stupid bitch, I will fuck you up.” The protective order court dismissed the petition on October 4, 2022, after noting “Order of Agreement to be filed.”
DIVORCE FILING
Meanwhile, Father filed a complaint for absolute divorce in the circuit court on September 27, 2022, requesting, among other things, joint physical and legal custody of the parties’ minor child and visitation.2 On October 18, 2022, Mother filed an answer requesting that the court deny the relief sought by Father in his complaint and requesting sole physical and legal custody of the child. Mother further requested, among other things, a pendente lite hearing, alimony “both pendente lite and permanently[,]” and child support “both pendente lite and at the merits of this case.” (Emphasis removed).
TEMPORARY CONSENT ORDER
A temporary consent order was entered in the circuit court on October 19, 2022 (the “Temporary Consent Order”). Through this order, the parties entered into a temporary agreement in the underlying divorce action and agreed to dismiss the final protective order case. The order specified that its terms were “temporary and without prejudice and shall remain in effect until further written agreement or order of the court.”
Under the Temporary Consent Order, the parties agreed, among other things, not to “abuse, to threaten to abuse, contact, [] attempt to contact, or harass” each other. Father agreed to “vacate, stay away from and not enter” the marital home. Mother was given temporary use and possession of the marital home, as well as temporary sole legal and physical custody of the parties’ child, while Father would have supervised visitation with the child “at a minimum, once per week, through the Baltimore County Supervised Visitation Center.” The Temporary Consent Order specified that “regarding finances, the parties shall continue to share a joint bank account and deposit their earnings into said account as they did when they resided together.” The parties agreed to “continue to pay the family bills, including, but not limited to, the mortgage and daycare, out of this bank account until further agreement or order of court.”
PENDENTE LITE HEARING
Mother filed a counter-complaint for absolute divorce or, in the alternative, limited divorce, custody, child support, and
other relief on the same day the Temporary Consent Order was entered—October 19. In her counter-complaint, Mother requested child support “to be calculated back to the time of the filing of her answer to [Father’s] Complaint and this Counter-Complaint, both pendente lite and permanently.” Father filed an answer to Mother’s counter-complaint on November 8.
The parties appeared before a magistrate for a pendente lite hearing held over two days on April 28 and August 18, 2023.3 On August 25, the magistrate issued a report in which the magistrate recommended, among other things, that Father “be granted unsupervised visitation beginning Saturday September 2 from 10 a.m. until 6 p.m. and then [] on Sunday September 10, from 10 a.m., until Sunday at 6 p.m[,]” and then every other weekend thereafter during the period that the Temporary Consent Order remained in effect. The magistrate reserved on the issue of child support, as Mother did not present evidence of her income at the pendente lite hearing.
Mother filed exceptions to the magistrate’s report and recommendation on August 31 and requested a hearing on her exceptions. Father filed a motion to dismiss Mother’s exceptions on September 11, which was denied. The court held a hearing on Mother’s exceptions on October 27 and issued a memorandum opinion and order on November 21 affirming the magistrate’s report and recommendation and denying Mother’s exceptions. The court then issued an order on November 27, 2023, granting Father unsupervised visitation with the minor child “on alternating weekends[.]”
MERITS HEARING
The court conducted a merits hearing over the course of three days: January 9, April 15, and May 15, 2024. At the hearing in January, Father testified that the parties separated on September 26, 2022 and had not reunited since that date. Father stated that he had not been paying child support to Mother because there was no court order requiring him to pay child support. However, Father explained that after Mother returned to Maryland in late 2020, after the birth of their child, he regularly sent her money to support both Mother and child. He would also visit regularly, and then in June of 2022, he moved to Maryland to be closer to Mother and child. At length, Father testified to the altercations between the parties, and to his version of the events in September of 2022 that led to Mother filing the protective order and Father filing for divorce. Father then recounted the many times Mother failed to bring child to the meeting points for Father’s supervised visitations pursuant to the Temporary Consent Order.
Father acknowledged that he was responsible for paying for “the daycare and mortgage and bills” under the Temporary Consent Order and introduced cashier’s checks that he had sent Mother to contribute to these expenses. He explained that he gave Mother $2,000 a month from November 2022 through April 2023, but that he began sending Mother only “$1,270” per month, because it was “what the military offered” him.4 On cross examination, Father agreed that his reduced payments covered less than half of the total
mortgage obligation of $2,900. Yet, Father testified that he “paid the $1,200 for mortgage and daycare,” insisting that he “absolutely” considered these payments a form of January 31, 2023, March 6, 2023, and April 3, 2023; and payments of $1,211.70 on May 10, 2023, June 1, 2023, July 11, 2023, August 29, 2023, September 29, 2023, November 27, 2023, and December 18, 2023. “support” for the minor child. Father testified that he “became aware that the house was in foreclosure” when he “started receiving [] emails” informing him that mortgage payments had been missed, but was unable to provide a date on which this occurred. The merits hearing was ultimately continued to April 15.
At the April 15 hearing, Mother gave her version of the events leading up to the divorce proceeding. She testified that the parties’ minor child had been attending “Sweet Potato Kids” school since March 18, 2024, which cost $270 per week, and that she had already paid a total of $1,495 for the minor child to attend this school, including a $145 registration fee. Mother stated that Father had not contributed to this expense and had not sent her any money since August 2023, with the exception of a single check in February 2024. She explained that although the child had initially been “enrolled in the Goddard School[,]” Father had not “provide[d] the necessary documents” for her to recertify her eligibility for military assistance, and that without such assistance, she could no longer afford the school’s $1,950 monthly tuition. She averred that she had incurred $19,000 in household bills, mortgage payments, and childcare since the parties separated.
Furthermore, Mother related that since the entry of the Temporary Consent Order in October 2022, Father had only deposited money into the parties’ joint bank account once, and even then had “quickly withdr[awn] it prematurely.” She said that she was also “supposed to get” military support each month, which she had not received since Father had stopped sending her checks. Overall, Mother averred that from November 2022 through March 2023, she received $2,000 per month from Father; and from April 2023 through August 2023, she received $1,211.70 per month from Father. She acknowledged that she had not paid the mortgage on the house since April 2023. She was notified that the house was in foreclosure in October, and she vacated the house on November 10, 2023. When asked by the court whether she sought “reimbursement” for the expenses she had paid without help from Father, Mother stated that she was “requesting child support going forward and reimbursement for the household bills and contribution for her child care.” In response, the court informed Mother that she would “have to . . . provide evidence” that Father had not contributed to the expenses for which she was requesting reimbursement. At the end of the second day of trial, the court continued the hearing to May 15, 2024. On May 15, the court and counsel for the parties sought to resolve the parties’ financial disputes. The court asked Mother’s counsel for a proffer as to the amount of reimbursement sought. Mother’s counsel stated that Mother sought half of the $4,295 in education expenses she had incurred, half of a $500 water and sewer bill, half of $1,510 she had incurred in homeowner’s fees, half
of a $2,040.99 gas and electric bill, and one third of “all her receipts that she ha[d] kept” since the parties’ separation. Father’s counsel protested that documentation of Mother’s expenses was not provided in discovery, and that Mother’s counsel was not “giving [Father] credit” for amounts he had already paid towards Mother’s expenses. At the conclusion of the hearing, the court stated:
I’m going to make my ruling in the form of a written opinion. I’m going to give each party 30 days[5] to submit an argument on this issue since it seems like this is the only thing that’s not resolved. Make reference to any exhibits that are already in evidence if you’ve already presented them or include the exhibits as attachments to upload into MDEC when you upload your argument. That will give me a chance to sit back and look at all of the records and figure out what the appropriate award, if any, should be.
On June 6, Mother’s counsel filed a line and attached a series of bills, asserting that Father owed Mother $7,747.62, but included neither legal argument nor any indication that credit had been given for the money Father had given her. Father’s counsel filed a reply on June 25, arguing that Mother’s “request for reimbursement should be summarily denied” because the Temporary Consent Order “does not order the parties to share equally in the expense[s.]” Father’s counsel further asserted that “the issue was not preserved as [Mother] did not file any pleadings” requesting reimbursement, and that the documents attached to Mother’s counsel’s line were “not presented during discovery and should not be considered[.]” Finally, Father’s counsel emphasized that Mother’s “argument does not consider [Father’s] contribution to [Mother] since October 2022.” Father’s counsel further averred that Mother’s request for reimbursement was “basically an allegation of failure to comply with” the Temporary Consent Order and that this allegation should have been made in a petition for contempt of that order.
JUDGMENT OF DIVORCE AND ADDITIONAL ORDERS
On July 12, 2024, the circuit court granted a judgment of absolute divorce in favor of Father. The court incorporated a custody and access schedule which, among other things, granted the parties joint legal and shared physical custody of the minor child, set a schedule for custody and exchanges of custody, and required Father to “pay child support directly to Mother in the amount of seventy-eight dollars ($78.00) each month starting August 1, 2024[.]” The same day, the court entered an order denying Mother’s request for reimbursement of family expenses. In that order, the court observed that Mother asserted a right to reimbursement for certain family expenses “[i]n the middle of the trial in this matter,” and had not raised such a request “in any pleading prior to trial.” The court further opined that Mother’s counsel “appeared to be presenting the argument in the form of an alleged contempt” of the Temporary Consent Order, which required the parties to deposit their earnings in a joint bank account and pay all family expenses from that account. The court noted that the Temporary Consent Order does “not require [the] parties to
equally split expenses” as contended by Mother’s counsel, and further that Mother’s counsel “failed to provide evidence of expenses paid by Mother in discovery.”
The court then denied Mother’s request for reimbursement of family expenses, reasoning that the request was “not properly before the court.” The court further stated that even if the request was properly before it, Mother’s counsel had not submitted legal argument in favor of her position as directed by the court during the merits hearing. Observing that Mother’s counsel’s June 6 line consisted entirely of “copies of various bills and expenses” that he acknowledged he had not provided in discovery, the court opined that Mother had “fail[ed] to show that she is entitled to reimbursement.” Mother filed notice of appeal from the July 12 orders on July 23.
DISCUSSION
I.
STANDARD OF REVIEW
Maryland Rule 8-131(c) provides that “[w]hen an action has been tried without a jury, an appellate court will review the case on both the law and the evidence.” 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 the witnesses.” Id.
II. CHILD SUPPORT
A. Parties’ Contentions
Mother asserts that under Maryland Code (1984, 2019 Repl. Vol.), Family Law Article (“FL”) § 12-101(a)(1), she was entitled to a retroactive award of child support from the time of her initial pleading in this case. She emphasizes that her answer to Father’s complaint for absolute divorce requested child support pendente lite, and that an award of retroactive child support is “mandatory” in this situation absent a finding that the amount of the award would produce an inequitable result. Father responds by pointing out that Mother specifically requested child support “going forward” at trial and not retroactive support. Father also emphasizes that he provided financial support in the form of monthly checks following the parties’ separation and argues that it would be inequitable to make him provide retroactive child support on top of these payments.
B. Legal Framework
The decision whether to grant retroactive child support “falls within a circuit court’s discretion” and is not mandatory. Sims v. Sims, Md. App. , , No. 1787, Sept. Term 2024, slip op. at 44 (filed June 30, 2025). Nevertheless, FL § 12-101(a) (1) directs that “[u]nless the court finds from the evidence that the amount” of a child support award “will produce an inequitable result, for an initial pleading that requests child support pendente lite, the court shall award child support for a period from the filing of the pleading that requests child support.” (Emphasis added). By its plain terms, FL § 12101(a)(1) “only applies to initial pleadings seeking pendente lite child support.” Tanis v. Crocker, 110 Md. App. 559, 570 (1996) (emphasis removed). Yet with respect to such
pleadings, “[t]he statute’s language is unambiguous[:] [u]nless the court finds that the award would create an inequitable result[,]” child support must be awarded retroactively from the date the initial pleading is filed. Sims, slip op. at 45. “For any other pleading that requests child support, the court may award child support for a period from the filing of the pleading that requests child support[,]” but does not have to. FL § 12-101(a)(3) (emphasis added). Thus, FL § 12-101(a)(3) “leaves to the discretion of the court that which [FL §] 12101(a)(1) makes mandatory.” Chimes v. Michael, 131 Md. App. 271, 295 (2000).
In Chimes, this Court considered whether a complaint “for [c]ustody that secondarily requested ‘child support in accordance with the guidelines, pendente lite and permanently[,]’” 131 Md. App. at 294-95 (emphasis removed), constituted an “initial pleading that requests child support pendente lite” within the meaning of FL § 12-101(a)(1). Chimes had initially filed a complaint for custody of a minor child he shared with his wife, Michael, and Michael had responded by counterclaiming for custody and divorce. Id. at 274. Chimes had then filed a counterclaim of his own for divorce, in which he again requested “a reasonable sum as and for child support, pendente lite and permanently[.]” Id. at 295. The circuit court granted a judgment of absolute divorce and ordered Michael to pay Chimes child support effective from March 1, 1999. Id. at 294.
Chimes appealed, contending, among other things, that the court should have made Michael’s child support obligation retroactive to May 7, 1998 – the date of his initial complaint –under FL § 12-101(a)(1). Id. We rejected Chimes’s argument, reasoning that his complaint for custody “was not . . . ‘an initial pleading that requests child support pendente lite,’ but, instead, was a [c]omplaint for [c]ustody that secondarily requested ‘child support in accordance with the guidelines, pendente lite and permanently.’” Id. at 294-95 (emphasis removed). “Moreover,” we reasoned, Chimes’s subsequent counterclaim “had the effect of superseding his initial [c] omplaint for [c]ustody” because it “did not incorporate by reference or adopt the original complaint.” Id. at 295. In essence, then, there was no initial pleading requesting child support pendente lite, “and no requirement to award child support retroactively.” Id. Therefore, FL § 12-101(a) (3) governed instead of FL § 12-101(a)(1), and the court “was within [its] sound discretion” to reject Chimes’s request for retroactive child support. Id. at 296.
More recently, in Sims, we held that the circuit court abused its discretion in declining to award retroactive child support from the date of a complaint requesting “child support ‘pendente lite and as long as permitted by law, retroactive to the filing in this case[.]’” Slip op. at 45 (emphasis removed). The court had awarded a wife, who had filed the complaint against her husband in November 2022, $1,000 a month in child support in a pendente lite order. Id. Although the husband began making pendente lite child support payments after the pendente lite order was entered, “those payments did not include arrearages that dated back to the filing of [the wife’s] complaint.” Id. At the merits hearing, the wife sought payment of these arrearages, but the court declined to order
it, finding that the husband “had paid part of the mortgage on the marital home, child support from the pendente lite order, and the minor child’s private school tuition once [the] [w]ife filed for divorce.” Id. Instead, the court (1) ordered the husband to “pay [the] [w]ife child support arrearages amounting to $12,626 dating back to May 1, 2024; (2) credited [the] [h]usband for payments made totaling $2,000; and ordered that [the] [h]usband was to pay $500 monthly in addition to his child support obligation until [the] [h]usband pays the arrearages in full.” Id.
In concluding that the court had abused its discretion, we emphasized that under FL § 12-101(a)(1), the court was required to “award the child support retroactively from the date [the] [w]ife filed her pleading unless the court finds that the award would create an inequitable result.” Sims, slip op. at 45. Although we deduced that the court had “found implicitly an inequitable result” based on its decision to award support “retroactively from May 1, 2024 and not the date [the] [w]ife filed her complaint” we observed that “the court didn’t explain why commencing the child support retroactively from the date of [the] [w]ife’s initial pleading would yield an inequitable result.” Id. at 45-46. We remanded the case for the court to explain its decision. Id. at 46.
Analysis
Mother filed an initial pleading that explicitly requested child support “both pendente lite and at the merits of this case[,]” and accordingly falls within the scope of FL § 12-101(a)(1). Unlike in Chimes, Mother’s countercomplaint—filed the day after her answer—explicitly incorporated, rather than superseded, her answer by specifically requesting that child support “be calculated back to the time of the filing of her answer to [Father’s] Complaint and this Counter-Complaint, both pendente lite and permanently.” See Chimes, 131 Md. App. at 295. Father asserts that when she explicitly requested “child support going forward[,]”during the merits hearing, Mother effectively waived the requests for pendente lite child support in her answer and counter-complaint. (Emphasis added). But as the Supreme Court of Maryland recently reaffirmed, parents cannot waive their minor child’s right to child support. In the Matter of the Marriage of Houser, Md. , , No. 34, Sept. Term 2024, slip op. at 11-12 (filed June 27, 2025). Moreover, FL
§ 12-101(a) makes clear that the parties’ pleadings, and not their subsequent statements at trial, govern the date from which child support must be calculated.
As the court was faced with “an initial pleading that requests child support pendente lite,” it was required to either make its award of child support to Mother retroactive to October 18, 2022—the date Mother filed her answer—or explicitly make findings that explain why doing so would produce an inequitable result. See Sims, slip op. at 44; Chimes, 131 Md. App. at 295. Father points out that “there was ample testimony and evidence” that he sent Mother monthly payments after the parties separated to support the parties’ minor child and argues that it would be inequitable to require him to pay retroactive child support on top of these payments. Father introduced six cashier’s checks addressed
to Mother for $2,000, dated between November 2022 until April 2023, and seven cashier’s checks addressed to Mother for $1,211.70, dated between May 2023 and December 2023, at the hearing. Mother testified that she only received one check from Father after August 29, 2023, in February 2024, but otherwise acknowledged that she had received $2,000 a month from November 2022 through April 2023 and $1,211.70 a month from May 2023 through August 2023.
Regardless of the exact amount, it is clear that Father sent Mother money for the mortgage on the marital home and the minor child’s daycare expenses during the pendency of this action. However, like the court in Sims, in its July 12, 2024 order, the court offered no explanation for why it set the effective date of Father’s child support obligation as August 1, 2024. Given the court’s selection of an effective date other than the date of Mother’s initial pleading, and the fact that Father gave Mother at least some money during the pendency of this action, we surmise that the court “found implicitly” that awarding retroactive support from the date of Mother’s initial pleading would produce an inequitable result. Sims, slip op. at 45. However, the court did not address the seven to eleven months during which Father apparently did not send any money to Mother. Depending, as explained above, on whether the court credits Mother or Father’s accounting, there is no evidence that Father sent Mother money from either August or December of 2023 to August 1, 2024. Accordingly, we must hold that the court abused its discretion in failing to explain why it selected August 1, 2024 as the effective date of Father’s child support obligation. See id. at 45-46.
We therefore vacate the circuit court’s award of child support and remand this case for the court to conduct further proceedings. Assuming the court selected August 1, 2024 as the effective date for Father’s support obligation because it found that awarding retroactive support from October 18, 2022 would produce an inequitable result, the court must explain (1) why awarding retroactive support from October 18 would produce an inequitable result and (2) why August 1, 2024 is an appropriate effective date.
III.
FAMILY EXPENSES
A. Parties’ Contentions
Mother points out that her “testimony at trial concerning expenses was not rebutted or disputed by” Father and argues that the circuit court erroneously based its decision to reject her request for family expenses on Father’s “bald allegation” that documentation of those expenses was never produced in discovery. Mother insists that the amount of her expenses was “well-known” to Father and that he was not prejudiced by her alleged failure to provide documentation of her expenses during discovery. She argues that Father’s failure to deposit his earnings in the parties’ joint bank account, along with her testimony, provides an accurate and unrebutted picture of the amount owed by Father.
Father responds by emphasizing that Mother’s counsel “failed to file a memorandum in support of her request for reimbursement” as instructed by the court, thereby foreclosing Mother’s ability to contest the issue on appeal.
He insists that “the mere fact that [Mother] submitted some bills, without any further explanation or argument,” does not support Mother’s contention that she is entitled to reimbursement and does not “take into account the monies that [Father] provided as support” from the time of the parties’ separation until the judgment of absolute divorce.
B. Analysis
Although Mother cites no legal authority whatsoever in her briefing in support of her argument that she is entitled to reimbursement for family expenses, see Benway v. Maryland Port Admin., 191 Md. App. 22, 32 (2010) (“noting that it is not the function of the appellate court “to seek out the law in support of a party’s appellate contentions”), we shall, nevertheless, consider her argument. Mother requested reimbursement for expenses for the first time during the merits hearing. The court informed Mother that she needed to “provide evidence” of the amount she was owed and, given that that Mother had failed to provide any documentation of her expenses in discovery, ultimately concluded that Mother’s request was not preserved. Still, the court gave Mother’s counsel thirty days to “submit an argument on [the] issue” and attach any relevant documentation.
Instead of following the court’s directive, Mother’s counsel filed a line that baldly asserted that “[t]he total amount owed to [Mother] is $7,747.62” and attached a series of bills.
Mother’s counsel’s line (1) did not present any argument on why her claim was preserved; (2) did not factor in the amounts Mother acknowledged Father did send her for support – at least $2,000 in November and December of 2022 and January, February, and March of 2023, and $1,211.70 in April, May, June, July, and August of 2023; and (3) did not identify any legal grounds upon which Mother was entitled to reimbursement. Under these circumstances, we cannot say that the circuit court erred or abused its discretion in rejecting Mother’s request for reimbursement of family expenses.
In sum, we vacate the court’s award of child support starting August 1, 2024 and affirm the court’s order denying Mother’s request for reimbursement of family expenses. Mother requested child support pendente lite in her October 18, 2022 answer to Father’s complaint for absolute divorce and her October 19, 2022 counter-complaint, and the court did not explain why awarding child support from August 1, 2024 rather than from the time of those pleadings would lead to an inequitable result. On remand, the court must either award child support from October 18, 2022 or explain why it selected August 1, 2024 as the effective date. We affirm the court’s denial of Mother’s request for reimbursement of family expenses, as Mother failed to adequately document the amount Father owed her or present a legal basis for the court to award the relief she sought.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AWARDING CHILD SUPPORT VACATED; JUDGMENT DENYING MOTHER’S REQUEST FOR REIMBURSEMENT OF EXPENSES AFFIRMED;CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE SPLIT EVENLY.
FOOTNOTES
1. Mother’s questions presented are: WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN CALCULATING CHILD SUPPORT WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT’S REQUEST FOR REIMBURSEMENT OF FAMILY EXPENSES
2. Father filed amended complaints for absolute divorce on October 11, 2022, September 26, 2023, and October 9, 2023.
3. Although the pendente lite hearing took place over the course of two days, only the transcript from August 18 is in the record.
4. Despite Father’s testimony that he paid Mother $1,270 after April 2023, the checks for “mortgage and daycare” that Father introduced at the hearing reflected as follows: payments of $2,000 to Mother on November 7, 2022, December 5, 2022, January 4, 2023,
5. The court subsequently clarified that Mother’s counsel would have 30 days to submit his argument, and that Father’s counsel would have 20 days to submit an argument in response.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Montgomery County Circuit Court’s denial of a motion to intervene. When the circuit court denied the motion, there was a lack of a justiciable controversy because there was no open case in which the intervenor could intervene, and no remedy the court could provide.
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..
a complaint for visitation. Id. The court granted the motion and ordered that she have visitation. Id. at *1-2. Grandmother died during the ensuing custody proceedings. Id. at *3.
Monica Dudley (“Aunt Monica”), Mother’s sister and the children’s aunt, also filed a motion to intervene, supplemented by a motion to modify custody and visitation. Id. at *2. Multiple motions were filed to modify the court’s order giving Ms. Rivera primary physical custody. Id. at *2-3.
This appeal arises from an order issued by the Circuit Court for Montgomery County denying Carroll Dudley, appellant, intervenor status in a custody dispute involving A. and I., the minor children of Juan Rivera (“Father”) and Michelle Dudley (“Mother”).1
On appeal, appellant presents the following question for this Court’s review:
Did the circuit court err or abuse its discretion in denying appellant’s Motion to Intervene?
For the reasons set forth below, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a complicated procedural history, including a prior appeal to this Court, arising from custody proceedings involving the children. We will briefly discuss the earlier proceedings and then discuss the proceedings relevant to this appeal.
I.
Earlier Proceedings
In a previous unreported opinion, Dudley v. Rivera, No. 0143, Sept. Term, 2023, 2023 WL 7401361 (Md. App. Ct. Nov. 9, 2023), we discussed the procedural history of this case. In essence, the multiple proceedings involved Stephanie Rivera, the children’s paternal aunt and appellee, filing petitions for guardianship and custody of the children in early 2017. Id. at *1.
Valerie Dudley, the children’s maternal grandmother (“Grandmother”), filed a motion to intervene, supplemented by
On September 26, 2022, Aunt Monica filed a motion requesting to be removed as an intervenor, which the court granted on October 19, 2022. Id. at *4. On September 30, 2022, the court amended its custody decisions, ordering that Ms. Rivera have sole legal custody of the children and primary physical custody, with Mother having supervised access according to an access schedule. Id. The court permitted Aunt Monica, whose motion to intervene had initially been granted, but who was subsequently removed as an intervenor at her request, to participate in supervised visitation, but it noted that she “shall not serve as a supervisor.” Id. at *3-4. The court set a hearing for February 10, 2023, to review the status of the supervised visitation. Id. at *4.
On February 10, 2023, the court began the status hearing by noting that Mother had died. Id. at *5. The court stated that nothing had been filed in the case regarding Mother’s death, and once the “suggestion of death” was filed, the matter involving Mother’s supervised visitation would be closed. Id.
On March 1, 2023, Aunt Monica filed a motion to intervene, supplemented by a complaint for visitation, stating that she was seeking intervention because she was the maternal aunt of the children, and prior to 2017, she “lived in very close proximity to” the children, “which caused a strong emotional bond . . . to be formed over the course of their childhood.” Id. In the attached complaint for visitation, Aunt Monica alleged that she was a de facto parent of the children, stating that she had “developed a longlasting, bonded, and dependent maternal/parental relationship with” the children, and visitation was in the best interests of the children because “[t]heir biological Mother is deceased, as her next of kin I want to make sure their bond with her side of the family remains strong.” Id. She noted that the children had a six-month-old half brother, and she wanted “that relationship to stay strong as well.” Id. Aunt Monica requested that the court grant visitation for “[e]very other weekend, rotating holidays and extended time during the summer and winter breaks.” Id.
On March 17, 2023, Ms. Rivera filed a motion in opposition to Aunt Monica’s motion to intervene. Id. Ms. Rivera stated that Aunt Monica lacked standing to intervene and seek custody because “[s]he is neither a parent or a grandparent of the minor children at issue.” Id. On March 24, 2023, the circuit court denied Aunt Monica’s motion to intervene. Id. The court did not provide
a reason for its decision, aside from a notation indicating that the court had considered the motion and Ms. Rivera’s opposition. Id.
On appeal from this ruling, this Court vacated and remanded the court’s judgment for further proceedings. Id. at *1. We explained that “remand to the circuit court is appropriate so the court can state the basis for its decision,” and if, “on remand, the court determines that dismissal is warranted because the motion did not adequately state the grounds to intervene, [Aunt Monica] could request leave to amend her pleading.” Id. at *7.
On September 22, 2023, the Circuit Court for Howard County issued a judgment of adoption. It noted Mother’s death, ordered that Father’s parental rights be terminated, and decreed that the children were the legally adopted children of Ms. Rivera and her husband, Jose Ortiz.2
II.
Proceedings at Issue on Appeal
On February 29, 2024, the circuit court addressed Aunt Monica’s subsequent motion to intervene and denied it. The court also granted Ms. Rivera’s oral motion to close the case.3 Aunt Monica did not appeal the circuit court’s order.
That same day, February 29, 2024, appellant filed a Motion to Intervene. He asserted that Mother had fostered a “parent-like relationship” between him and the children, and the children had lived with him, Grandmother, and Aunt Monica from their births until 2017. He claimed that, as a de facto parent of the children, he was entitled to intervene in the matter.
Ms. Rivera filed an opposition to appellant’s motion to intervene and requested sanctions. She asserted that she and her husband had legally adopted the children, and they lived in Howard County. She argued, therefore, that there was no justiciable controversy, and venue was no longer proper in Montgomery County. Ms. Rivera also noted that, prior to the children’s adoption, appellant had not attempted to intervene or otherwise participate as a party in the custody proceeding. She asserted that appellant’s motion to intervene was nothing more than a “poorly disguised refiling of” Aunt Monica’s Motion to Intervene, “down to the verbatim recitation of de facto parenthood factors that [Aunt Monica] attempted to argue in her prior Motions,” and nothing in the
record supported appellant’s claims that he was a de facto parent to the children.
On March 27, 2024, the circuit court, without a hearing, denied appellant’s motion to intervene. The court found that there was a lack of justiciable controversy, and it lacked jurisdiction over the children, who had been adopted and resided in Howard County.
This appeal followed.
DISCUSSION
Mr. Dudley contends that the circuit court erred or abused its discretion in denying his motion to intervene because the children had lived with him, or prior intervenors, until 2017. He asserts that, as a grandparent and de facto parent to the children, he was entitled to intervene.
Ms. Rivera counters that the circuit court did not abuse its discretion in denying appellant’s motion to intervene because there was no controversy before the court, and it did not have jurisdiction over the matter because she and the children do not live in Montgomery County, and they were not residents of that county on the date appellant filed his motion to intervene. On the merits, Ms. Rivera asserts that, because she and her husband adopted the children, they have the authority to make decisions regarding visitation and access by third parties. She contends that appellant lacks standing “to pursue any path forward for visitation with the minor children as an Intervenor in the case below,” and appellant provides no evidence to support his claim of de facto parenthood.
Ms. Rivera’s and Mr. Ortiz’s adoption of the children was finalized in September 2023. In February 2024, the circuit court granted Ms. Rivera’s oral request to close the case after denying Aunt Monica’s motion to intervene. On March 22, 2024, Ms. Rivera filed a Voluntary Stipulation of Dismissal, dismissing Father, the sole living defendant in the guardianship/custody matter, and the action, with prejudice. Therefore, when the circuit court denied Mr. Dudley’s motion to intervene on March 27, 2024, there was, as the court noted, a lack of a justiciable controversy because there was no open case in which Mr. Dudley could intervene, and no remedy the court could provide.4
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1. We will refer to the children by these initials to protect their identities.
2. There were further motions in the circuit court after this, but they are not relevant to this appeal, and therefore, it is not necessary to recount them.
3. No transcript of the hearing appears in the record.
4. Moreover, the record indicates, and Mr. Dudley does not dispute, that Ms. Rivera, the only remaining party to the custody action, and the children reside in Howard County, as they did at the time Mr. Dudley filed his motion to intervene. Pursuant to Md. Code Ann., Cts. & Jud. Proc. (“CJ”) § 6-202(5) (2020 Repl. Vol.), an action relating to custody, guardianship, maintenance, or support of a child is proper “[w]here the father, alleged father, or mother of the child resides, or where the child resides.” As neither the children nor either of their adoptive parents reside in Montgomery County, any action relating to their custody—including visitation—is no longer appropriate in that court.
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Baltimore City Circuit Court’s ruling that the paternal grandmother had not established de facto parenthood, and its award of sole legal and physical custody of child to mother. Mother left child in grandmother’s care because of safety concerns and other realities that mother endured after giving birth at age 16. The court properly found that mother was a fit and proper person and that custody with her was in the child’s best interest.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
care since he was ten months old.” That same month, Father consented to Grandmother’s petition for custody, agreeing that Grandmother should have primary physical and sole legal custody of Child. Mother’s attorney filed an answer and counter- complaint for custody, seeking primary physical and sole legal custody of Child. Grandmother obtained counsel and filed an amended complaint for custody in March 2024, claiming that she was Child’s de facto parent under the test outlined in Conover v. Conover, 450 Md. 51 (2016).
On the first day of the custody hearing in September 2024, the court asked Mother’s counsel if she was contesting Grandmother’s de facto parent status. Mother’s counsel responded: “No, I am not.” Mother’s counsel then asserted that Grandmother had acted as a de facto parent “for the last few years, but not with [Mother’s] consent.” The court sought clarification: “Hold on. Consent is an integral aspect of Conover. You can’t get to de facto parent unless you’ve got consent.” Mother’s counsel responded, “That’s right. And that’s the part of it that we’re contesting.”
This appeal stems from a child custody dispute between Appellant, Blanche Pryor- Smith (“Grandmother”), and CoAppellee, Brooke Page (“Mother”), concerning the custody of Mother’s biological son (“Child”), who is ten years old. Grandmother is Child’s paternal grandmother and the mother of the Co-Appellee Dedrick T. Pryor (“Father”), Child’s biological father.1 At the conclusion of a child custody hearing in September 2024, the Circuit Court for Baltimore City ruled that Grandmother had not established de facto parenthood. The court awarded sole legal and physical custody of Child to Mother. The court granted Father limited access at Mother’s discretion.
Grandmother timely appealed and presents three issues for our review,2 which we have consolidated into one question: Did the circuit court err in finding that Mother did not consent to the formation of a parent-like relationship between Grandmother and Child, and thus, Grandmother lacked de facto parent status?
For the following reasons, we affirm the judgment of the circuit court.
BACKGROUND
In May 2023, Grandmother, without counsel, filed a petition for custody, seeking primary physical and sole legal custody of Child. Grandmother asserted that Child had “been in [her]
During Grandmother’s case-in-chief, she and her husband, Alton Smith (Child’s paternal step-grandfather, “Grandfather”), testified. Grandfather stated that Child had lived with them since he was ten months old. Child had been diagnosed with Attention- Deficit/Hyperactivity Disorder (commonly known as ADHD), and he was on a waitlist for an autism assessment at the time of the custody hearing. Grandfather described the extensive parental duties that he and Grandmother performed for Child during the years preceding the custody hearing, including medical appointments, medication management, education support, extracurricular activities, and general caretaking. When asked about the parental duties he had assumed, Grandfather testified:
Some of those parental duties that I had to assume was when [Child] wasn’t feeling well, stay up with him all night or take him to the urgent care if it was that serious. When he may have had behavior issues at school, drop what I’m doing at my place of employment and -- and go do, like, a coaching intervention with [Child].
All of the mental health appointments, all of the [Individualized Education Program] appointments, all of the cognitive behavioral appointments, all of the speech therapy appointments, all of the extracurricular sports activities, the shopping, the giving of the medication, the feeding, everything that it takes in order for a child to live, I’ve done, and my wife has done as well.
Grandmother testified about the circumstances that led to Child living with the Grandparents. Child began living with the Grandparents because of unsafe living conditions at Child’s maternal grandmother’s home, where Child resided with Mother until October 2015 (when Child was about ten months old). Grandmother testified about the unsafe living conditions at Child’s maternal grandmother’s home: [Child] started living with me due to the fact that I called [Child Protective Services (“CPS”)] where he was currently living because he had rodents and things inside of his milk, he had bite marks on his body, and he would have soiled diapers. Also his clothing and his blankets would be soiled too. So I called and CPS apparently went to [his maternal grandmother’s] house and deemed that the living conditions was [sic] not fit for a child.
Child, Mother, and Father then resided with the Grandparents. Mother and Father’s daughter (“Daughter”) was born in April 2018. In July 2018, Mother, Father, and Child vacated the Grandparents’ home. In December 2018, Father returned Child to the Grandparents’ home because Father “needed help to take care of [Child].”
Grandmother testified that Mother drafted a document in December 2019, that Mother and the Grandparents signed, granting the Grandparents temporary guardianship of Child “until further notarized written notice.” The Grandparents and Mother were present when the document was signed before a notary at the Grandparents’ house. Grandmother told the court: “I had asked [Mother] for the guardianship for [Child] since he was in my care, and she said okay.”
From 2018 to 2020, Mother had “limited” participation in Child’s care. During that time, Mother babysat Child while Grandmother was at work. In August 2023, Father signed a notarized document granting Grandmother power of attorney for Child. Mother signed a notarized letter in October 2021, stating:
• “Since [Child] was approximately ten (10) months old, he has been in the care of [Grandmother] and [Grandfather].”
• “In 2015 I made the decision to grant temporary guardianship to [Grandmother] and [Grandfather].”
• “[Father] has not maintained gainful employment in over 10 years[,]” “has harmed [Mother] as well as [Child] both mentally and physically.”
• “[Father] is a known affiliate of a street gang[.]”
• “[B]y [Child] continuing to live with his grandparents, he will be able to maintain the home he is used to” and “attend the same school and activities he has in the past.”
• The Grandparents, Kennedy Krieger, and Child’s primary care provider “are ensuring [Child] stays in the best health possible.”
Grandmother testified that, in June 2023, Mother expressed an interest in having custody of Child. Two months later, Mother removed Child from Grandmother’s care. Until that time, the Grandparents financially supported Child. Mother and Father provided no financial support.
During Mother’s case, her husband, Timothy White, testified about their relationship and living arrangements. Mr. White and Mother met on a social media application while Mr. White was living in California. Two months later, in July 2021,
Mother moved to California for a job as an Amazon warehouse associate. Mother and Daughter moved in with Mr. White at that time. Mr. White and Mother married in November 2023. In January 2024, Mr. White, Mother, and Daughter relocated to Salt Lake City, Utah, because Mother received a promotion at Amazon. Mother and Mr. White have a daughter (“M.”) who was two and a half years old at the time of the 2024 custody hearing.
Mother testified about her history with Father. Mother was sixteen years old when she became pregnant, and her mother “had to tell [Father] to” attend Child’s birth “because he did not want to go.” Mother described Father’s domestic violence against her:
There was choking, there was hitting. You know, there was [sic] times where I didn’t know if I was going to actually make it out of the home. So when I did get a chance to leave, I left. And it wasn’t that I didn’t want to be with my son. It was a fear for my life.
Mother testified that Father threatened her about what would happen if she took Child. Those threats occurred around 2016 to 2017. After Mother left Grandmother’s home in 2016, Mother reunited with Father in mid-2017 and moved back into Grandmother’s home with Father and Child. Mother then became pregnant with her second child, Daughter.
When Grandmother learned that Mother was pregnant, Grandmother became upset and told Mother that she could not continue living in Grandmother’s home. Mother was eight months pregnant at that time. Mother testified about her working conditions at Target and caretaking responsibilities for Child while she was pregnant with Daughter: I was the only provider in the relationship with me and [Father]. So I had no choice but to work and I was exhausted, but I still came, you know, when I got into the home, I got there, you know, [Child] was there and I did everything possible that I could to take care of [Child] when he was in my care, you know.
After Mother gave birth to Daughter, Mother moved back into Grandmother’s home in April 2018. Mother left Grandmother’s home again in December 2019 when Father punched Mother and strangled her until she was unconscious.
Mother denied signing the 2019 notarized guardianship letter. She had no recollection of seeing or signing that document. She acknowledged, however, that she had signed the 2021 letter under duress because Grandmother threatened to sue her for custody of Child if Mother did not sign the document. Mother testified that she had no intention to permanently grant custody of Child to Grandmother.
After all evidence had been presented, the court ruled that Mother did not consent to the formation of a parent-like relationship between Grandmother and Child. As to the 2019 guardianship letter, the court stated that it “cannot reconcile any number of circumstances around the signing of this guardianship, including the fact that [Mother’s] name is spelled incorrectly, and the address is wrong, and she disputes that she signed it even though the signature appears to be hers.” As for the 2021 guardianship letter, the court observed that Mother testified “that she believed that this was temporary[.]” In addition, Mother “signed it because she was told by [Grandmother] that [Father] kept taking [Child] out of school and [Grandmother] didn’t know where [Child] was[,] [s]o an intervention was
necessary, which necessitated the guardianship.”
The court noted that Child initially came into Grandmother’s care because of CPS, not by Mother’s consent. Mother was sixteen years old when she gave birth to Child. Mother left Grandmother’s home on three occasions between 2015 and 2019, twice because she was abused by Father, and once because Grandmother told her to leave. Mother moved to California to improve her life circumstances and “to mature into a self- supporting adult.” Mother had Daughter with her, and according to Mr. White, Mother “intended to reunite with [Child] once she was able to care for him.” The court stated that: [a] reasonable person in her circumstances, which were complex and evolving, and included a lack of maturity and understanding, which she has grown into over time . . . would not have thought they were consenting to the formation of a parent-like relationship as opposed to a grandparent serving for the child’s care and support.
The court concluded that Grandmother was not a de facto parent and the court awarded sole legal and primary physical custody to Mother, finding that it was in Child’s best interests. The court ruled that Father was entitled to communication and visitation with the Child at Mother’s discretion.
STANDARD OF REVIEW
Because a merits hearing in a child custody dispute is an action tried without a jury, we “review the case on both the law and the evidence” and “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, [giving] due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). “When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.” Caldwell v. Sutton, 256 Md. App. 230, 263 (2022) (quoting E.N. v. T.R., 474 Md. 346, 370 (2021).
DISCUSSION
Grandmother argues that the trial court erred in finding that Mother did not consent to the formation of a parent-like relationship between Grandmother and Child. Specifically, Grandmother points to Mother’s execution of guardianship documents in 2019 and 2021 that formalized her consent to a parent-like relationship, and Mother’s conduct that demonstrated consent. Grandmother argues that Mother may not retroactively withdraw the consent that was previously given, and she relies, in part, on Caldwell v. Sutton, 256 Md. App. 230 (2022).
The Supreme Court of Maryland, in Conover, recognized de facto parenthood and, in doing so, adopted a test enunciated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995). Under the H.S.H.-K. test, a third party seeking de facto parenthood status must prove:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Conover, 450 Md. at 74 (quoting H.S.H.-K., 533 N.W.2d at 435–36). The Supreme Court explained, “these factors set forth a high bar for establishing de facto parent status, which cannot be achieved without knowing participation by the biological parent.” Id.
Here, the circuit court found that there was “no question that” Grandmother satisfied factors two through four of the Conover test. As to the first factor, however, the court determined that Grandmother had failed to establish that Mother consented to Grandmother’s formation of a parent-like relationship with Child. The court detailed the circumstances surrounding Mother’s decisions to leave Child with Grandmother. The court stated that Mother was only sixteen years old when she gave birth to Child in November 2014. Child initially came into Grandmother’s care not through Mother’s voluntary consent, but through CPS intervention when Child was approximately ten months old because of unsafe living conditions at the maternal grandmother’s home.
From December 2015 to December 2019, Mother vacated Grandmother’s home on three occasions, “all involuntarily or under severe duress. Twice because of abuse at the hands of [Father] and once because she was kicked out by [Grandmother].” Significantly, the December 2019 departure followed a severe domestic violence incident when Father strangled Mother “until she was unconscious” and “[s]he feared for her life.”
The court found that “[o]n each occasion” that Mother left Grandmother’s home, “there was no expressed understanding with [Grandmother] on [Child’s] case. [Mother] simply trusted that [Child] would be cared for. On each occasion, [Mother] intended for [Child] to return to her care,” and Mother “maintained contact with [Grandmother] who facilitated visits for [Mother] with [Child].” These factual findings, which were not clearly erroneous, supported the court’s determination that there was no agreement or consent to establish a parent-like relationship distinct from a grandparent-grandchild relationship.
The court also made factual findings about Mother’s move to California in July 2021. The court found that Mother moved “to improve her life circumstances” and “to mature into a selfsupporting adult.” The court noted that Mother “had [Daughter] with her, and as corroborated by [Mr. White], intended to reunite with [Child] once she was able to care for him.” The court observed that Mother “recognized at the time that she was unable to care for [Child], unable to take him with her, but had a plan to improve her condition in life.” After moving to California, Mother made two cross-country visits to see Child in September 2022 and April 2023. After the second visit, Mother “started acting upon her plan, conversing with [Grandmother] about [Child] coming to California,” and then Grandmother filed her petition for custody.
The court’s factual findings that Mother consistently intended
reunification were fully supported by the record. Mr. White testified that he and Mother had discussed the “end goal” of living with Child. Mother clarified that she did not want to take Child from Grandmother’s home until Mother could provide a stable environment for him. The court found that Mother can now provide that environment for Child.
The court recognized that the first guardianship document, dated December 2019, misspelled Mother’s name and address. Mother denied that she signed it, although she conceded that the signature looked like hers. The court determined that the document “wasn’t of great significance.” The second guardianship document, Mother agreed that she signed in October 2021. The court determined that Mother signed it but that she did so as a temporary solution. Mother testified: “[Grandmother] brought it to my attention that it was either she was going to go [to] court and go for custody or I was going to sign this paper in order to help her with [Child] because [Father] is taking [Child] out of school and all of that stuff.”
The trial court credited Mother’s testimony that she believed that the guardianship was temporary and not a permanent relinquishment of parental authority.
Grandmother, in her brief, mischaracterizes Mother’s attorney’s statement about conceding de facto parent status before testimony began at the custody hearing. Mother’s counsel immediately clarified that any purported de facto relationship occurred without Mother’s consent, and the court properly recognized that “[c]onsent is an integral aspect of Conover.”
Grandmother also cites Caldwell v. Sutton for support but it is not applicable. Caldwell involved a mother who murdered her child’s father and then relied on her mother (the child’s maternal grandmother) for childcare while incarcerated for eight years. 256 Md. App. at 240, 279–80. The mother took the child to the grandmother before turning herself in to the police and signed a form consenting to grandmother’s sole legal and physical custody of the child while she was incarcerated. Id at 279. Under those circumstances, the mother consented to a parent-like relationship between the grandmother and child. Id at 280. In a footnote, this Court cautioned that the conclusion in
Caldwell was based on those unique facts, and in other circumstances where a parent leaves a child with a third party for short-term temporary care due to the need for help for some reason, such as an addiction problem, to accommodate work travel, or other situations, it is unlikely that a court would find de facto parent status.
Id. at 280 n.17. Indeed, “parents should be encouraged to get help when they need it for their children.” Id
Lastly, Grandmother claims that the circuit court improperly relied on guidance from an unreported opinion, K.J. v. T.J., No. 1512, Sept. Term 2021, 2022 WL 2348791 (Md. App. June 29, 2022). We disagree. There, this Court observed that “parents should not be forced to harbor concern that allowing a child to spend substantial time . . . with a grandparent might convert a normal, healthy grandchild and grandparent relationship into a de facto parent relationship.” Id. at *5. In the present case, in rendering its decision, the Court stated: “Similar to the court’s caution in K.J. vs. T.J., [a] parent’s fear of established [sic] a de facto parent status, especially with a grandparent or other close relative, should not be a disincentive to doing what the parent thinks is best for the long term good for the child.” In our view, the court was merely acknowledging the difficult circumstances of the case. The court did not cite or otherwise rely on the opinion.
CONCLUSION
Based on the record before us, we hold that the circuit court did not err in determining that Grandmother was not a de facto parent. Mother left Child in Grandmother’s care because of safety concerns and other realities that Mother endured after giving birth, at age, sixteen.3 We also hold that the court did not err in awarding sole legal and primary physical custody to Mother. The court properly found that Mother was a fit and proper person and that custody with her was in the child’s best interest.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
FOOTNOTES
1 Both Mother and Father did not file a brief in this Court. As the circuit court noted, Father “didn’t participate meaningfully in the trial” and “chose not to testify.”
2 Grandmother phrased her questions presented as follows:
Did the Circuit Court err in finding that [Mother] did not consent to the formation of a parent-child like bond between [Grandmother] and [Child]?
Did the Circuit Court err in finding that [Grandmother] failed to meet her burden under the 4-pronged test established in Conover v. Conover to achieve de facto parent status of [Child]?
Did the Circuit Court err in failing to award a custody and visitation schedule entitling [Grandmother with] access to [Child]?
3 Grandmother does not challenge Mother’s fitness as a parent. Nor does she argue that exceptional circumstances warrant third-party custody. Having determined that the circuit court properly determined that Grandmother lacks de facto parent status, we need not address Grandmother’s remaining argument regarding custody arrangements and visitation schedules, as she lacks standing to seek such relief.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 10 MFLU Supp. 52 (2025)
Supervised visitation; best interests;
findings
Reiko Asano v.
Molefi Asante
No. 965, September Term 2022; Nos. 1920, 2015 and 2367, September Term 2024
Argued before: Wells, C.J., Graeff, Berger
Opinion by: Wells, C.J.
Filed: July 17, 2025
The Appellate Court affirmed the Baltimore City Circuit Court’s order regarding visitation and parenting time. Although mother argued the record did not support the circuit court’s finding that mother required supervised visits with the children, the circuit court made “specific factual findings based on sound evidence in the record” before ordering supervised visitation. Those findings support the circuit court’s determination that supervised visitation is in the children’s best interests.
Ed. note: This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B). Headnotes are not from the courts but are added by the editors. Page numbers are from slip opinions..
3. Did the circuit court abuse its discretion by denying Mother’s motions for reconsideration?
For the reasons set forth below, we conclude the circuit court did not err in any of its decisions. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts and issues underlying this case are discussed in detail in Asano I, but we provide background necessary for this appeal.
Mother and Father were in a relationship from 2015 to 2018 but never married. The Children were born in 2016. Asano I at *2. After their relationship ended, Mother filed for sole legal and physical custody in December 2018. Id. at *1. In a temporary consent order, Mother was granted primary custody of the Children with visitation rights for Father. Id. at *3.
This case involves four consolidated appeals filed by appellant Reiko Asano (“Mother”) challenging the Circuit Court for Baltimore City’s decisions pertaining to disputes with appellee Molefi Asante (“Father”) over the custody of their two minor twin daughters (“Children”). These appeals follow this Court’s affirmance of the circuit court’s order that adopted a magistrate’s proposed order and “Report and Recommendation.” Asano v. Asante (Asano I), No. 486, 2022 WL 17547044 (2022), cert. denied, 483 Md. 271 (2023). The circuit court’s order resulted in Father obtaining primary physical custody and sole legal custody of the Children. In her four consolidated appeals, Mother challenges several of the circuit court’s decisions denying Mother’s motions and requests for reconsideration.
Mother submits five questions for our review.1 For reasons explained in the Motion to Dismiss section of this opinion, we do not consider Mother’s “Question 2” as presented in her verbatim questions. Accordingly, we consolidate and rephrase Mother’s four remaining questions into three:
1. Did Judge Tipton abuse her discretion by not recusing herself after becoming a judge on the circuit court?
2. Did the circuit court err by excluding Mother’s evidence of abuse during review hearings or by determining Mother required supervised visitation in the Order Regarding Visitation and Parenting Time?
The parties then engaged in several years of contentious litigation over the Children’s custody, filing numerous motions and engaging in discovery. Id. at *3–4. In December 2020, Father filed a petition to modify custody, seeking sole physical and primary legal custody of the Children. Id. at *4.
On March 4, 2021, the circuit court appointed a Best Interest and Privilege Attorney, Erika F. Daneman Slater (“BIPA”), to represent the Children. Id. In November 2021, four days of trial were held on Father’s December 2020 petition to modify custody before then-Magistrate Hope Tipton of the Circuit Court for Baltimore City.2, 3 Id.
On April 5, 2022, then-Magistrate Tipton issued a 124-page Report and Recommendation (“magistrate’s recommendations”) with a proposed order. Id. In her report the magistrate found no reasonable grounds to believe Father abused the Children. Id. at *3. The proposed order granted Father’s motion for custody. Id. The magistrate also recommended immediate implementation of her proposed order pursuant to then-Maryland Rule 9-208(h)(2).4 Id. at *11. A remote hearing on immediate implementation was held on April 7, 2022. Id. at *4. Following the hearing, the circuit court entered an “Immediate Order Regarding Modification of Custody and Visitation and Attorney’s Fees” on April 7, 2022 (the “April 7 Order”),5 granting Father primary physical custody and sole legal custody of the Children based on the magistrate’s recommendations. Id. The April 7 Order stated: “Father may travel to and from North Carolina with [Children] without any restriction as to the frequency of monthly trips, provided that he gives Mother one-week notice before each trip and it does not cause [Children] to miss school ” Further, the April 7 Order stated Mother
“shall have no visitation with [Children] until she submits to a custody and visitation evaluation with a psychological assessment ”6 On April 18, 2022, Mother filed exceptions to Magistrate Tipton’s Report and Recommendation. After a hearing, Judge DiPietro denied Mother’s exceptions in an order dated September 9, 2022, and filed September 29, 2022. Mother appealed the April 7 Order to this Court, arguing: (1) the circuit court erroneously modified the parties’ custody order as there was no material change in circumstances; (2) no extraordinary circumstances existed to warrant entry of an immediate order; and (3) Mother was denied due process because the April 7 hearing to consider the magistrate’s findings and implement the April 7 Order occurred only 48 hours after the magistrate released her Report and Recommendation and before considering Mother’s exceptions. Id. at *1. This Court disagreed with Mother and affirmed the circuit court in Asano I 7 Id. at *4.
While Asano I was pending and after it was decided, Mother filed four additional appeals to this Court which we now consider.
July 27, 2022, Appeal–No. 965, September Term, 2022
On June 17, 2022, Mother filed a “Complaint to Modify Custody, Visitation and Child Support”8 and “Motion for Preliminary and Permanent Injunction” in the circuit court, requesting the court to enjoin Father from relocating the Children to North Carolina before a review hearing scheduled for October 17, 2022, to determine Mother’s parenting time. On July 14, 2022, the circuit court denied Mother’s request for injunction. On July 27, 2022—before appealing the April 7 Order, which was the basis of our Asano I decision— Mother filed an interlocutory appeal of the circuit court’s denial of her request for injunction.9 On October 25, 2022, Mother filed another notice of appeal, specifically appealing the September 29, 2022, denial of Mother’s exceptions to the magistrate’s recommendations.10
September 2, 2024, Appeal–No. 1920, September Term, 2024
Hope Tipton presided as Magistrate over most of the hearings in this case. On February 17, 2023, Mother filed a Motion for Recusal of Magistrate Tipton from the case, which the circuit court denied on March 13, 2023. On March 18, 2024, then-Magistrate Tipton was elevated to the Circuit Court for Baltimore City. On April 22, 2024, Mother filed a “Motion for Referral of Custody and Visitation Modification Matters to Another Magistrate, and Request for Hearing,” which asked the circuit court to “assign another magistrate to matters arising from” Mother and Father’s custody disputes and sought an order that “prohibits any assignment of this litigation to Judge Tipton.” On July 2, 2024, Judge Tipton denied Mother’s motion.
On April 8, 2024, the Children’s BIPA filed a Petition for Attorney’s Fees and Expenses by Counsel for Children. The Petition outlined the expenses owed to the BIPA by the parties, stated Father paid all his expenses owed while Mother did not, and requested Mother’s expenses be reduced to a judgment. On May 3, 2024, the circuit court ordered judgment against Mother in favor of the BIPA in the amount
of $31,112.82, and the notice of recorded judgment was entered on May 10, 2024. On May 20, 2024, Mother filed a motion to reconsider the judgment.
On July 1, 2024, Mother filed a “Motion to Remove Children’s Counsel, Reorder Custody Evaluation of Defendant Father, and for Other Appropriate Pendente Lite Relief, and Plaintiff’s Request for Hearing,” which requested removal of the BIPA, re-evaluation of Father’s custody, and other pendente lite relief (“Motion to Remove Children’s Counsel and Other Relief”).
On August 21, 2024, the circuit court issued two orders: one denying Mother’s motion to reconsider the judgment for BIPA’s fees in an “Order Regarding Judgment for Best Interest Attorney’s Fees and Expenses” (“Order Regarding BIPA’s Judgment”), and the other denying Mother’s Motion to Remove Children’s Counsel and Other Relief. On September 2, 2024, Mother appealed the Order Regarding BIPA’s Judgment and the denial of Mother’s Motion to Remove Children’s Counsel and Other Relief.
During the same time period, the circuit court held multiple days of review hearings in March 2023, June 2023, October 2023, and July 2024, to determine Mother’s fitness for visitation and parenting time with the Children pursuant to the April 7 Order (the “Review Hearings”). After the Review Hearings, on August 14, 2024, the circuit court issued an “Order Regarding Visitation and Parenting Time,” which found the parties’ custody arrangement would be largely controlled by the April 7 Order and provided specific details as to Mother’s visitation, supervised custody, and holiday time with the Children. Although Mother’s September 2, 2024, appeal to this Court did not specifically appeal the Order Regarding Visitation and Parenting Time, the September 2024 appeal still preserved our review of the merits of that order. See Green v. Brooks, 125 Md. App. 349, 363 (1999) (“[T] hat appellant’s notice of appeal mentioned only the court’s order of February 6, 1998, which denied the motion to revise, does not bar us from considering the order of August 1997. It is clear that the language used in appellant’s notice of appeal does not determine what we may review.”).
December 9, 2024, Appeal–No. 2015, September Term, 2024
Mother filed a motion to reconsider the Order Regarding Visitation and Parenting Time on September 16, 2024. The motion to reconsider was denied on December 2, 2024, and docketed on December 3, 2024. On December 9, 2024, Mother filed a general notice of appeal to this Court.
January 29, 2025, Appeal—No. 2367, September Term, 2024
Mother filed a “Motion to Immediately Stay and/or Modify the Order Regarding Visitation and Parenting Time, and Request for Hearing” on November 26, 2024 (“Motion to Stay”). The circuit court denied the Motion to Stay on January 8, 2025, and the denial was docketed on January 14, 2025. On January 29, 2025, Mother filed a general notice of appeal to this Court.
We address each of the appeals in turn, below. We will add additional facts as necessary.
MOTION TO DISMISS
An appellee’s brief may contain a motion to dismiss if it is based on Rule 8-602(b)(1), (b)(2), (c)(1), (c)(7), or (c) (8). Md. Rule 8-603(c). Rule 8-602(c)(8) allows a court to dismiss an appeal if “the case has become moot.” “[A] case is moot if no controversy exists between the parties or ‘when the court can no longer fashion an effective remedy.’” D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 351–52 (2019) (quoting In re Kaela C., 394 Md. 432, 452 (2006)).
Additionally, this Court may dismiss an appeal under Rule 8-602 on its own initiative. Rule 8-602(a). Rule 8-602(b)(1) states this Court must dismiss an appeal if it “is not allowed by these Rules or other law.” Rule 8-602(c) also outlines situations where we may dismiss appeals on a discretionary basis. Rule 8-602(c)(6) states a court may dismiss an appeal if “the style, contents, size, format, legibility, or method of reproduction of a brief, appendix, or record extract does not comply with Rule[] . . . 8-504[.]” In turn, Rule 8-504, among other things, requires a brief to include “a concise statement of the applicable standard of review for each issue” and “[a] rgument in support of the party’s position on each issue.” 8-504(a)(5)(6).
In his brief to this Court, Father included a motion to dismiss, requesting us to dismiss Mother’s appeals in Case Numbers 965 and 1920 because the issues are moot or because Mother failed to make an argument in support of her contentions. We agree with Father as it relates to Case Number 965, and in addition, this Court dismisses Mother’s arguments pertaining to Case Number 2367. However, we do not grant Father’s motion to dismiss Case Number 1920.
Case Number 965
Father argues Mother’s appeal of the denial of her request for injunction in Case Number 965 should be dismissed as moot because he provided Mother proper notice of his move to North Carolina in accordance with the April 7 Order, that order granted him sole legal and physical custody of the Children, and he has been living with the Children in North Carolina for several years. Because the relief sought in the request for injunction was to stop him from moving to North Carolina, Father contends the issue is moot because he already relocated to North Carolina and the Children have not suffered adverse consequences from the move. Additionally, Father argues the denial of the April 7 Order and Mother’s exceptions was addressed in Asano I, and her argument in this appeal is barred by law of the case doctrine.
In Mother’s reply brief, she states her appeal of the denial of her request for injunction is not moot because Mother objected to Father’s relocation to North Carolina, “and their dispute remains an existing controversy.” In regard to her appeal of the denial of her exceptions to the magistrate’s recommendations, Mother argues the law of the case doctrine does not bar her arguments because Asano I decided different legal arguments related to the magistrate’s recommendations than those she raises here.
We agree with Father and dismiss Case Number 965. Mother fails to make any argument in her brief related to her request for injunction. See Rule 8-504(a)(6) (requiring a brief
to include “[a]rgument in support of the party’s position on each issue”). Mother makes one reference to the request for injunction in her background section. Likewise, the request for an immediate order is referenced in the background and Mother mentions it as part of a 2024 motion to reconsider, which had nothing to do with the request for an immediate order. No argument was made regarding the merits of the motion for injunction or the April 7 Order, and Judge Tipton was still a magistrate during these proceedings, so Mother’s contentions related to her recusal have no bearing on those decisions.
Next, we hold Mother’s appeal of the denial of her exceptions to the magistrate’s recommendations is moot. Mother argued in Asano I that her fundamental due process was denied when the “trial court failed to timely consider Mother’s Exceptions to the Magistrate’s Report and Recommendation as required by Maryland Rule 9-208(h)(2).” Asano I at *1 n.2. We rejected this claim, concluding the magistrate complied with Rule 9208(h)(2). Id. at *13. But our decision addressed whether Mother’s due process was violated by the circuit court’s adoption of the magistrate’s report and recommendations before she could file exceptions, not the actual denial of her exceptions, which did not occur until after she noted her appeal in Asano I. However, we affirmed the circuit court’s entry of the April 7 Order in Asano I, and the Supreme Court of Maryland denied certiorari. As a result, the April 7 Order became a final order that will not be revised except for a finding of fraud, mistake, or irregularity, none of which Mother alleges here. See Md. Rule 2-535(b) (“On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”). Moreover, in Asano I we already ruled rejected Mother’s contentions related to the April 7 Order, which ratified the magistrate’s recommendations. Our holding in Asano I, rejecting Mother’s contentions, is now the law of the case. Kline v. Kline, 93 Md. App. 696, 700 (1992) (“[A] ruling by an appellate court upon a question becomes the law of the case and is binding on the courts and litigants in further proceedings in the same manner. Neither the questions that were decided nor questions that could have been raised and decided on appeal can be relitigated.” (citations omitted)).
Accordingly, we cannot provide Mother relief by reviewing the denial of her exceptions, and the issue is moot.
Additionally, Mother failed to state an argument related to the denial of her exceptions. Mother devotes her second question to the denial of her exceptions, but it is not clear from her brief how she is alleging the circuit court erred. As far as we can tell, Mother argues the circuit court erred by finding “Mother’s ‘paranoid and irrational thinking’ require[d] policing.” Mother cites this statement as being made by Judge Tipton during a Review Hearing in August 2024. But, as far as we can tell, the Review Hearings had nothing to do with Mother’s exceptions to the magistrate’s recommendations. Mother additionally cites case law for the proposition that parents are required to report sexual abuse and implies she was penalized for reporting alleged abuse of Father, which “impact[ed] the ‘perhaps oldest’ [d]ue [p]rocess liberty interest.”11 But neither party in this case disputes that parents should report sexual abuse of their children,
and Mother does not reference any specific findings by the circuit court in either the April 7 Order adopting the Report and Recommendation or the exceptions hearing suggesting she was penalized for reporting alleged abuse. Because “[a] rguments not presented in a brief or not presented with particularity will not be considered on appeal[,]” we dismiss Mother’s appeal under Case Number 965. Anne Arundel Cnty. v. Harwood Civic Ass’n, Inc., 442 Md. 595, 614 (2015) (quoting Klauenberg v. State, 355 Md. 528, 552 (1999)).
Case Number 1920
Father argues Mother’s arguments under Case Number 1920, which appealed the BIPA’s fees and denial of her Motion to Remove Children’s Counsel and Other Relief, should be dismissed as moot or waived for failing to make an argument. Father argues BIPA’s duties concluded when the April 7 Order became final, so the issue of her removal is moot. Because a final order is already in place, Father also asserts the request for an evaluation of Father is moot. Finally, Father asserts that a pendente lite order is also moot because it only has short-term effect.
Mother states her arguments about the BIPA’s fees are not moot because the question of whether Judge Tipton had authority to enter an order regarding payment to the BIPA has not been resolved. In Mother’s view, Judge Tipton lacked such authority because she should have recused herself. Further, Mother argues the BIPA has continued to represent the Children in proceedings after the institution of the April 7 Order.
We decline to grant Father’s motion to dismiss Mother’s appeals in Case Number 1920, but we recognize that several of her contentions in this particular appeal are moot. Mother’s argument in her Motion to Remove Children’s Counsel and Other Relief was entirely dedicated to her attempt to remove the BIPA based on allegedly improper conduct. Mother then used that argument as a springboard to request the circuit court reverse practically every decision the circuit court made up to that point. Mother essentially wanted the court to institute a pendente lite custody order that was favorable to her, which was in place before the April 7 Order. As stated, the April 7 Order is a final order affirmed by this Court. The April 7 Order does not require Father to undergo a custody evaluation, and Mother’s requested pendente lite relief cannot be provided because the April 7 Order is final. See Krebs v. Krebs, 183 Md. App. 102, 109–10 (2008) (finding moot a mother’s contention that pendente lite relief given to father was improper because the court held a subsequent plenary hearing on the merits).
The only viable contention in this particular appeal appears to be her accusations about the BIPA’s conduct during the Review Hearings. But in her briefs to this Court, Mother does not make any arguments regarding the BIPA’s conduct and instead focuses on Judge Tipton’s failure to recuse herself, which Mother argues requires reversal of all the court’s decisions after Judge Tipton became a judge. Likewise, Mother’s arguments to this Court regarding the court ordering her to pay the BIPA’s fees are entirely based on her allegation that Judge Tipton should have recused herself. Because the issue of Judge Tipton’s recusal seems viable and
should be addressed, we will not dismiss Case Number 1920 as Father asks.
Case Number 2367
In the argument section of her brief, Mother makes one reference to her Motion to Stay the Order Regarding Visitation and Parenting Time, the court’s denial of which is the sole subject of her appeal in Case Number 2367. But in her brief, Mother contends the court erred in denying the motion to reconsider because it failed to admit into evidence a supplementary report from a medical expert at one of the Review Hearings. In other words, her argument does not mention the motion to stay at all, only the motion to reconsider. Even if Mother had appealed the motion to stay, she does not provide a legal argument to support a contention that the court’s decision to exclude evidence during the Review Hearings somehow required the circuit court to grant the motion to stay. Therefore, we dismiss Case Number 2367 as Mother makes no argument related to the Motion to Stay the Order Regarding Visitation and Parenting Time. See Md. Rule 8-504(a) (stating a brief must contain “[a] clear concise statement of the facts material to a determination of the questions presented . . .” and “[a]rgument in support of the party’s position on each issue”).
DISCUSSION
I Judge Tipton Did Not Abuse Her Discretion by Not Recusing Herself After Becoming a Judge on the Circuit Court.
A. Standard of Review
We review a judge’s decision to recuse his or herself for abuse of discretion:
The canon [addressing judicial participation in proceedings when impartiality might reasonably be questioned] has not been interpreted to require a trial judge, who has presided over a prior case, involving the same defendant or incident, automatically to recuse him or herself from presiding over a subsequent trial involving the defendant. This is so because there is a strong presumption in Maryland, and elsewhere, that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified. The recusal decision, therefore, is discretionary, and the exercise of that discretion will not be overturned except for abuse.
To overcome the presumption of impartiality, the party requesting recusal must prove that the trial judge has “a personal bias or prejudice” concerning him or “personal knowledge of disputed evidentiary facts concerning the proceedings.” Only bias, prejudice, or knowledge derived from an extrajudicial source is “personal.” Where knowledge is acquired in a judicial setting, or an opinion arguably expressing bias is formed on the basis of information “acquired from evidence presented in the course of judicial proceedings before him,” neither that knowledge nor that opinion qualifies as “personal.”
Mother contends Judge Tipton should have recused herself from the proceedings in this case, particularly after she became a judge on the circuit court. Judge Tipton’s failure to recuse herself, Mother argues, was a violation of Mother’s due process right to a fair and impartial hearing by an unbiased judge. Mother argues Judge Tipton was required to recuse herself under the Code of Judicial Conduct because she ruled based on personal experience, had personal knowledge of disputed facts, and was a de facto witness to the case when she received evidence in camera. Additionally, Mother points to numerous parts of the record she claims support her contention that thenMagistrate Tipton showed an appearance of bias against Mother.12
Father replies, first, that Mother waived her argument because she failed to include the applicable standard of review or state her arguments regarding judicial recusal with particularity. Accordingly, Father argues, we may dismiss Mother’s appeal pursuant to Rule 8-504(a)(5) and (6), which states a brief must include “a concise statement of the applicable standard of review for each issue” and “[a] rgument in support of the party’s position on each issue[.]”13
On the merits, Father argues Judge Tipton need not have recused herself because her knowledge of the facts came from judicial proceedings, not personal knowledge or extrajudicial sources. For the same reason, Father contends Judge Tipton was not made a de facto witness by reviewing CPS records in camera because this was done in her judicial capacity. Finally, Father disagrees that the record reflects bias or prejudice against Mother just because Judge Tipton previously made findings and rulings that were not in Mother’s favor.
C. Analysis
“[T]he question of recusal, at least in Maryland, ordinarily is decided, in the first instance, by the judge whose recusal is sought.” Surratt v. Prince George’s Cnty., 320 Md. 439, 464 (1990). “Generally speaking, a judge is required to recuse himself or herself from a proceeding when a reasonable person with knowledge and understanding of all the relevant facts would question the judge’s impartiality.” In re Russell, 464 Md. 390, 402 (2019) (citing Jefferson-El, 330 Md. at 106–07).
To overcome the presumption of impartiality, the party requesting recusal must prove that the trial judge has a personal bias or prejudice concerning him or personal knowledge of disputed evidentiary facts concerning the proceedings. Only bias, prejudice, or knowledge derived from an extrajudicial source is personal. Where knowledge is acquired in a judicial setting, or an opinion arguably expressing bias is formed on the basis of information acquired from evidence presented in the course of judicial proceedings before him, neither that knowledge nor that opinion qualifies as personal. Jefferson-El, 330 Md. at 107 (internal citations and
quotation marks omitted). The Maryland Code of Judicial Conduct sets forth a non-exhaustive list of instances in which a judge must recuse themselves:
1) The judge has a personal bias or prejudice concerning a party or a party’s attorney, or personal knowledge of facts that are in dispute in the proceeding.
2) The judge knows that the judge, the judge’s spouse or domestic partner, an individual within the third degree of relationship to either of them, or the spouse or domestic partner of such an individual . . .
(D) is likely to be a material witness in the proceeding.
5) The judge . . .
(B) served in governmental employment, and in such capacity participated personally and substantially as an attorney or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy;
(C) previously presided as a judge over the matter in another court; or * * * *
Md. Rule 18-102.11(a). The Code of Judicial Conduct also applies to magistrates. Md. Rule 18-200.2(a).
Maryland appellate decisions also recognize the importance of “the judicial process not only being fair, but appearing to be fair,” and apply an objective test when the appearance of impropriety is at issue:
The test to be applied is an objective one which assumes that a reasonable person knows and understands all the relevant facts We disagree with our dissenting colleague’s statement that recusal based on an appearance of impropriety ... requires us to judge the situation from the viewpoint of the reasonable person, and not from a purely legalistic perspective. Like all legal issues, judges determine appearance of impropriety—not by what a straw poll of the only partly informed man-in-thestreet would show—but by examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.
Jefferson-El, 330 Md. at 107–08 (emphasis in original) (internal quotation marks omitted) (quoting Boyd v. State, 321 Md. 69, 86 (1990)).
Mother’s first motion to recuse then-Magistrate Tipton was filed on February 17, 2023. Then-Magistrate Tipton recommended the circuit court not recuse her, and the circuit court denied Mother’s motion on March 13, 2023. Then, five days later, on March 18, 2024, Magistrate Tipton became Judge Tipton. This prompted Mother to file a “Motion for Referral of Custody and Visitation Modification Matters to Another Magistrate, and Request for Hearing,” another motion for Judge Tipton to recuse herself. Judge Tipton denied the motion on July 2, 2024. On July 15, 2024, Mother’s counsel renewed their recusal motion orally during a hearing. The colloquy between Mother’s counsel and Judge Tipton
went as follows:
[MOTHER’S COUNSEL]: Yes, Your Honor, may it please the Court, and as we indicated in the motion that was filed and denied, we renew our objection to the Court continuing to preside over the matter based on your judicial appointment for the reasons that it’s inconsistent with the statutory scheme, and it’s a deprivation of Dr. Asano’s due process.
THE COURT: It is not, Counsel. It’s still -- I am still a member of the Judiciary as a magistrate; I’m a member of the Judiciary as a Judge. It has not changed. And on top of it, it would not be in the children’s best interest for the Court to just basically throw out eight days of testimony, 51 exhibits, ten witnesses, and just say let’s start over. Dr. Asano has not seen her children in over two years. That would simply delay even more time. And you’re not -- she’s not entitled to have anybody hear this case unless it’s an establishment. And only then by statute does it have to be a judge. Your motion was denied. It remains denied. You have covered your record. Anything else?
[MOTHER’S COUNSEL]: I understand. Thank you, Your Honor. No, Your Honor. That was it from our end.
It seems the underlying premise of Mother’s recusal argument is that magistrates are not “member[s] of the [j] udiciary,” and then-Magistrate Tipton’s involvement in the case was something akin to a government employee whose role was personal in nature. For support, Mother cites State v. Weigmann and other cases for the proposition that magistrates are not judicial officers. 350 Md. 585, 593 (1998). While it is true magistrates are not judicial officers, they are still members of the judiciary as officers of the court:
A [magistrate] is, however, an officer of the court, appointed by the circuit court; that court has constitutional authority to make such appointments. Md. Const. art. 4, § 9 (“The Judge, or Judges of any Court, may appoint such officers for their respective Courts as may be found necessary.”); Md. Rule 2–541(a)(3) (“A [magistrate] serves at the pleasure of the appointing court and is an officer of the court in which the referred matter is pending.”).
Wiegmann, 350 Md. at 594–95; see also Merchant v. State, 448 Md. 75, 102 (2016) (“Magistrates are arms of the judiciary whereas [Administrative Law Judges] perform executive functions.”). Although magistrates do not have all the powers of a judge, they are still acting in a neutral, court-appointed position in which they rule on the admissibility of evidence, examine witnesses, and recommend findings of fact and law. Rule 9-208(b); see Vogel v. Touhey, 151 Md. App. 682, 709 n.8 (2003) (“[A magistrate] is authorized to take testimony, and a [magistrate’s] findings of fact are to be treated as prima facie correct and are not to be disturbed by the court unless found to be clearly erroneous . . . .” (citation and internal quotation marks omitted)).
Mother’s citations to the record that she purports show Judge Tipton had personal knowledge of facts or evidence were, in fact, instances in which Judge Tipton acted in her
official, court-appointed capacity as a member of the judiciary. As such, Maryland law is clear that Judge Tipton was not required to recuse herself because her exposure to evidence and testimony in this case was not done in a personal capacity but rather as a member of the judiciary. Jefferson-El, 330 Md. at 107 (“Only bias, prejudice, or knowledge derived from an extrajudicial source is personal.”). Likewise, Judge Tipton’s findings contrary to Mother’s interpretation of the facts were not personal in nature.
Furthermore, Mother has not met her burden showing that Judge Tipton’s words or actions during proceedings gave the appearance of bias against her. The quoted portions of Judge Tipton’s statements that Mother provides do not persuade us that a “reasonable person knowing and understanding all the relevant facts would recuse the judge.” Jefferson-El, 330 Md. at 108 (citation omitted).
Finally, Mother argues in her brief that Judge Tipton “deprived Mother of her rights to a de novo judicial review of the record and the magistrate’s recommendations[.]” This is not true. We do not see an instance in the record where Judge Tipton adopted any recommendations she made while a magistrate. If Mother’s argument is in reference to the April 7 Order, that Order was signed by Judge DiPietro. Mother does not cite any law for the proposition that Judge Tipton could not preside over the Review Hearings, order her to pay the BIPA’s fees, modify her visitation, deny her request to stay, or deny any of her motions to reconsider these decisions. See Rule 9-208(a)(1)(F) (“[T]he following matters arising under this Chapter [including modification of an order or judgment as to custody or visitation] shall be referred to the standing magistrate as of course, unless, in a specific case, the court directs that the matter be heard by a judge[.]”). Mother was still able to obtain judicial review of Judge Tipton’s decisions by this Court, which she is doing in this case. Accordingly, we conclude Judge Tipton did not err in declining to recuse herself, and, consequently, Mother suffered no due process violation.14
II. The Circuit Court Did Not Err by Excluding Mother’s Evidence of Alleged Abuse by Father During Review Hearings or by Determining Mother Required Supervised Visitation in the Order Regarding Visitation and Parenting Time.
A. Standard of Review
This Court reviews child custody determinations utilizing three interrelated standards of review. Gillespie v. Gillespie, 206 Md. App. 146, 170 (2012) (citing In re Yve S., 373 Md. 551, 586 (2003)). Specifically: 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. (alteration in original) (quoting In re Yve S., 373 Md. at 586). Further,
We recognize that “it is within the sound discretion of the [trial court] to award custody according to the exigencies of each case, and . . . a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the [trial court] because only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.”
Id. at 171 (alteration in original) (quoting In re Yve S., 373 Md. at 585–86).
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.” Alexander v. Alexander, 252 Md. App. 1, 17 (2021) (cleaned up). “Put simply, we will reverse the trial court [under the abuse of discretion standard] unless its decision is ‘well removed from any center mark imagined by the reviewing court.’” Santo v. Santo, 448 Md. 620, 626 (2016) (quoting In re Adoption/ Guardianship No. 3598, 347 Md. 295, 313 (1997)). “A finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md. App. 620, 628 (1996).
B. Analysis
Mother contends the Order Regarding Visitation and Parenting Time should be vacated because (1) the circuit court did not allow Mother to admit evidence of Father’s abuse of the Children during hearings to evaluate Mother’s visitation, and (2) the record does not support the circuit court’s finding that Mother required supervised visits with the Children. We take each of these arguments in turn and explain why the court did not err in either decision.
1 The Circuit Court Did Not Err by Excluding Mother’s Evidence of Alleged Abuse by Father During Review Hearings.
Mother contends the circuit court’s Order Regarding Visitation and Parenting Time should be vacated because the circuit court refused to admit what she alleges is evidence of physical and sexual abuse by Father during the numerous Review Hearings. Mother contends § 9-101.1 of the Family Law (“FL”) Article of the Maryland Code requires trial courts to consider evidence of abuse against parents or children committed by a party in custody or visitation disputes. Mother then lists several instances throughout the Review Hearings in which Judge Tipton sustained Father’s objections to Mother’s attempts to admit evidence of alleged abuse by Father.15
Father responds that the Maryland Rules of Evidence applied during the Review Hearings and Judge Tipton properly excluded Mother’s evidence of alleged abuse by Father because it was not relevant to the hearings—which were to determine Mother’s fitness for visitation with the
Children—and several exhibits were unauthenticated. Furthermore, Father argues, the circuit court already found there were not reasonable grounds to believe Father abused the Children, and Mother was trying to re-litigate abuse allegations already addressed in hearings prior to the April 7 Order. Finally, Father points out the court did allow Mother to enter some evidence of Father’s alleged abuse during the Review Hearings, considered the evidence of alleged abuse, expressly acknowledged its obligation to consider abuse allegations under FL § 9-101.1, and expressed it understood Mother’s beliefs regarding the alleged abuse of the Children.16
FL § 9-101.1(b) states:
In a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against:
(1) the other parent of the party’s child;
(2) the party’s spouse; or
(3) any child residing within the party’s household, including a child other than the child who is the subject of the custody or visitation proceeding.
“If the court finds that a party has committed abuse . . . the court shall make arrangements for custody or visitation that best protect: (1) the child who is the subject of the proceeding; and (2) the victim of abuse.” FL § 9-101.1(c). However, as Father points out, Maryland Rule 5-101(a) states the Maryland Rules of Evidence “apply to all actions and proceedings in the courts of this State.” Rule-5-101(b) contains a list of proceedings in which the rules of evidence do not apply, none of which apply to child custody and visitation proceedings under Title 9 of the Maryland Rules. Of importance to the issue in this appeal is Rule 5- 402: “Evidence that is not relevant is not admissible.” 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.” Rule 5- 401.
Mother’s contention that her evidence of Father’s alleged abuse was required to be entered under FL § 9-101.1 is incorrect. Mother makes no attempt to argue the relevance of the alleged abuse evidence. We agree with Father, and the circuit court, that Mother’s evidence was properly excluded for lack of relevance pursuant to Rule 5-402. In Asano I, we affirmed the April 7 Order adopting the magistrate’s finding that there were “no reasonable grounds to believe that Father has abused a child, including [the] Children” and, ultimately, granting Father primary physical custody and sole legal custody of the Children. Asano I at *3. Unlike the hearings preceding the April 7 Order, the purpose of the Review Hearings was to determine Mother’s fitness for visitation with the Children, not Father’s custody. Therefore, we affirm the circuit court’s decision to exclude Mother’s evidence of Father’s alleged abuse from the Review Hearings.
2. The Circuit Court Did Not Err in Determining Mother’s Visitation Must Be Supervised.
Mother contends the circuit court erred in determining her visitation with the Children requires supervision, arguing the court’s “entire rationale to abrogate Mother’s custody were the judge’s ipse dixit conjectures.”17 Mother cites various parts of the record she contends highlight her fitness as a
parent. She also cites testimony and evidence from various medical professionals, including: clinical psychologist and court appointed evaluator, Dr. John Lefkowits; Mother’s therapist, Dr. Sandra Jones; dialectical behavior therapist, Dr. Kerstin Youman; and psychologists hired by Mother, Drs. Stephanie Wolf and Stephanie DeBoard-Lucas. Mother argues the medical professionals’ testimony and evidence presented during the Review Hearings refutes the court’s finding that supervision was needed to ensure the Children’s physical, psychological, and emotional well-being. Mother further argues there was no evidence showing her concern that her Children were being abused by Father resulted in harm to the Children.
In response, Father contends the court did not err in determining Mother’s visitation requires supervision. Father argues the court’s determination was supported by expert testimony, and Mother’s references to testimony from medical professionals “misrepresents the record” as it leaves out key caveats. For example, while Dr. Lefkowits testified he did not think Mother’s acute stress disorder would impair her ability to parent, Dr. Lefkowits deemed Mother’s psychological testing largely invalid. Father additionally argues the “Children’s health and well-being are precisely the result of Mother’s notable absence from their lives and the court’s decision to deny her unsupervised access[.]”
“[T]he non-custodial parent has a right to liberal visitation with his or her child ‘at reasonable times and under reasonable conditions[.]’” Boswell v. Boswell, 352 Md. 204, 220 (1998) (quoting Myers v. Butler, 10 Md. App. 315, 317 (1970)). While the non- custodial parent’s “right of visitation is an important, natural[,] and legal right, . . . it is not an absolute right, but one which must yield to the good of the child.” North v. North, 102 Md. App. 1, 12 (1994) (quoting 2 William T. Nelson, Divorce and Annulment, § 15.26, at 274–75 (2d ed. 1961)). For example, “[i]n situations where there is evidence that visitation may be harmful to the child, the presumption that liberal unrestricted visitation with a non- custodial parent is in the best interests of the child may be overcome.” Boswell, 352 Md. at 221. When limiting a parent’s access to their child, such as by requiring supervised visitation, “[t]he ultimate question is whether that limitation is a reasonable one The determination of what is reasonable, in this context, is a matter resting within the trial court’s discretion.” North, 102 Md. App. at 12. Additionally, “before a trial court restricts the non-custodial parent’s visitation, it must make specific factual findings based on sound evidence in the record.” Boswell, 352 Md. at 237.
FL § 9-101 outlines the steps a court must take if the court believes a party to a custody or visitation proceeding abused or neglected a child:
(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that
party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.
FL § 9-101. “The preponderance of the evidence standard applies when the court determines whether reasonable grounds exist” under FL § 9-101(a). Baldwin v. Baynard, 215 Md. App. 82, 106 (2013).
FL § 9-101 does not require the court to find a parent unfit or to have abused the child before imposing supervised visitation. Id. at 108 (“[T]he circuit court was not required to base its decision regarding supervised visitation solely on § 9-101 of the Family Law Article.” (emphasis added)). “[T]he source of [a] court’s authority to make custody and visitation determinations does not stem from [FL] § 9-101 alone.” Id. Namely, this Court and the Supreme Court of Maryland have held that “[o]verarching all of the contentions in disputes concerning custody or visitation is the best interest of the child.” Hixon v. Buchberger, 306 Md. 72, 83 (1986); see also Baldwin, 215 Md. App. at 108. And importantly for this case, “[t]he best interests of the child standard is also used to limit or restrict custody and visitation.” Boswell, 352 Md. at 225.
The circuit court in this case applied FL § 9-101 and found that, by a preponderance of the evidence, there were no reasonable grounds to believe Father abused the Children. The court ultimately made the same finding with respect to Mother but expressed concerns about Mother’s fitness as a parent:
[T]he Court has serious concerns about Mother’s continuous allegations of abuse against Father. Sadly, the Court finds that despite Mother having limited access with minor children with over two years, Mother continues to believe that Father is abusive towards minor children.
The Court finds that very little about Mother’s mindset has changed from our hearing in November of 2021. The Court finds that Mother remains preoccupied and fixated with minor children being injured. While the Court does not find that this rises to the level of abuse, it does go directly to her fitness. Ultimately, the Court finds that by a preponderance of the evidence there are not reasonable grounds to believe that Mother has abused a child, including minor children.
After making findings pursuant to FL § 9-101, the circuit court then found that “until Mother properly addresses and treats her underlying trauma, and the Cluster B traits in Mother’s personality,[18] Mother’s visitation should be supervised, which is in minor children’s best interest.” The court went on to find that “supervised visitation is the only way to be assured that minor children’s physical, psychological, and emotional well being are not harmed by Mother’s untreated trauma and systems of [C]luster B personality traits.” In determining supervised visitation with Mother was in the Children’s best interest, the circuit court considered the ten factors outlined in Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 420 (1978): (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 opportunities for visitation; (9) length of separation from the natural parents; and (10) prior voluntary abandonment or surrender. The circuit court also considered Mother’s psychological assessment mandated by the court in the April 7 Order.
While discussing the Sanders factors and Mother’s psychological assessment, the circuit court made numerous findings that support its order imposing supervised visitation. Namely, the court found “Mother is still very fixated on her belief that Father is abusing minor children[,]”leading the court to express its concern “about minor children having an adverse child experience, physically and psychologically, due to the continued abuse allegations made by Mother.” The court also contrasted what the Children’s lives were like when they were in Mother’s primary care versus Father’s: [I]t’s important to consider what minor children’s lives have been like when they were in the primary care of Mother. The Court finds that minor children have been subjected to CPS investigations, . . . abuse evaluations, medical appointments, questions from Mother, and therapy since they were three years old. The fact that minor children do not want to talk to Mother about any perceived injuries should not be surprising to anyone. These little girls have spent over half their life talking to professionals about Mother’s concerns.
The Court finds that minor children have not reported any allegations of abuse since the change in custody [from Mother to Father], which was April 7, 2022. The Court finds that there is no evidence that CPS has been called since the minor children have been in Father’s care and custody. The Court finds that no one in North Carolina, such as minor children’s teachers, pediatrician, extracurricular activity providers have expressed any concerns to Mother.
In light of what the Children’s lives were like when in Mother’s primary care, the circuit court found the Children “would benefit from having access with [M]other provided it is conducted in a safe and healthy manner, focused on minor children and their activities and interests, and not Mother’s allegations of abuse by Father and his caregivers.” The court additionally noted its concern that the Children’s “unsupervised access with Mother will result in the same situation that existed in November of 2021[,]” that is, the Children being “constantly subjected to false allegations of abuse, CPS investigations, and unnecessary appointments.”
Notwithstanding Mother’s arguments to this Court, we conclude the circuit court did not abuse its discretion in determining Mother’s visitation of the Children must be supervised. As an initial matter, the circuit court could rely on the best interests of the child standard to require Mother’s visitation be supervised. See Baldwin, 215 Md. App. at 108; Boswell, 352 Md. at 237. Additionally, the circuit court complied with Boswell by “mak[ing] specific factual findings
based on sound evidence in the record[,]” before ordering supervised visitation. 352 Md. at 237. Those findings support the circuit court’s determination that supervised visitation is in the Children’s best interests. Accordingly, we conclude the circuit court did not abuse its discretion in ordering Mother’s visitation be supervised as it is a reasonable limitation on Mother’s access to the Children that is not “well removed from any center mark imagined by [this] reviewing court.” Santo, 448 Md. at 626 (quoting In re Adoption/Guardianship No. 3598, 347 Md. at 313).
III The Circuit Court Did Not Err by Denying Mother’s Motions for Reconsideration.
A. Standard of Review
“An appeal from the denial of a motion asking the court to exercise its revisory power is not necessarily the same as an appeal from the judgment itself.” Green, 125 Md. App. at 362 (cleaned up). Specifically, the scope of review for a denial of a motion to reconsider is “limited to whether the trial judge abused his [or her] discretion in declining to reconsider the judgment.” Grimberg v. Marth, 338 Md. 546, 553 (1995).
“Except to the extent that they are subsumed in [the question of whether the trial court abused its discretion in denying the motion for reconsideration], the merits of the judgment itself are not open to direct attack.” Sydnor v. Hathaway, 228 Md. App. 691, 708 (2016) (alteration in original) (citing Stuples v. Baltimore City Police Dep’t, 119 Md. App. 221, 241 (1998)). While a “decision on the merits . . . might be clearly right or wrong[, a] decision not to revisit the merits is broadly discretionary,” even “boundless” or “virtually without limit.” Steinhoff v. Sommerfelt, 144 Md. App. 463, 484 (2002). Under the abuse of discretion standard, this Court will not reverse a trial court’s decision to decline to exercise its revisory power “unless there is a grave reason for doing so.” Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 724 (2002). In this context, “even a poor call [in denying a motion to reconsider] is not necessarily a clear abuse of discretion.”
Stuples, 119 Md. App. at 232. The denial of a motion to revise a judgment should be reversed only if the denial “was so far wrong—to wit, so egregiously wrong—as to constitute a clear abuse of discretion.” Id. (emphasis in original). “It is hard to imagine a more deferential standard than this one.” Est. of Vess, 234 Md. App. 173, 205 (2017).
B. Parties’ Contentions
Mother argues the circuit court erred by denying four motions to reconsider: (1) her “unopposed February 2024 motion to reconsider and revise the magistrate’s findings, the immediate orders, the orders denying mother’s exceptions, the court’s refusal to enjoin Father’s relocation of the children, and its ruling to exclude evidence of abuse”; (2) her motion to reconsider the $31,112.82 judgment to the BIA; (3) her motion to reconsider the Order Regarding Visitation and Parenting Time; and (4) her motion to reconsider the Motion to Stay the Order Regarding Visitation and Parenting Time. Mother argues these rulings violated her due process right to an independent judicial review by an unbiased judge.19 More specifically, Mother contends her “first, third, and fourth motions proffered evidence that supported her good faith and fitness,” namely the evidence the circuit court
excluded from the Review Hearings for lack of relevance and evidence that was not permitted at the “November 2021 custody trial and April 2022 Immediate Hearing.” Regarding the second motion to reconsider the $31,112.82 judgment to the BIA, Mother argues the circuit court entered the judgment “without considering substantial justification and the needs and resources of the parties[.]”
In response, Father argues many of Mother’s contentions relate to proceedings before Asano I and were not subject to revision by the circuit court. Father contends the remaining issues relate to reconsideration of the court excluding evidence of Father’s abuse were properly denied by the circuit court as irrelevant, so it was not an abuse of discretion to deny reconsideration. Finally, Father presents no argument regarding the motion to reconsider the BIPA’s fees because he “is not a party to that judgment.”20
C. Analysis
We already explained, supra, that Judge Tipton’s decision to not recuse herself did not violate Mother’s rights, so we do not consider Mother’s argument regarding judicial bias. Additionally, we already dismissed Mother’s appeal under Case Number 2367 as it relates to the motion to reconsider the Motion to Stay, which Mother never filed. For the remaining three motions to reconsider, Mother largely reiterates her arguments on the merits of the circuit court’s decisions and presents no additional reason the circuit court abused its discretion in denying the motions. See Steinhoff, 144 Md. App. at 484 (“Appellate consideration of a denial of a motion to reconsider . . . does not subsume the merits of a timely motion made during the trial.”). Therefore, as explained below, we conclude the circuit court did not err in denying Mother’s motions for reconsideration.
Starting with Mother’s first motion for reconsideration, we are unsure what Mother’s “February 2024 motion” specifically refers to.21 To the extent Mother’s first motion
was to reconsider the April 7 Order—and decisions to exclude evidence in the November 2021 trial and April 2022 immediate hearing that led to the April 7 Order, those issues were addressed in Asano I. See Kline, 93 Md. App. at 700 (“Neither the questions that were decided nor questions that could have been raised and decided on appeal can be relitigated.”). To the extent Mother’s motion was to reconsider the motion to enjoin Father’s relocation to North Carolina, that is the subject of Case Number 965, which we dismissed as moot at the beginning of this opinion.
Mother’s motions to reconsider her “February 2024 motion” and the Order Regarding Visitation and Parenting Time are both based on her assertions that the circuit court improperly excluded evidence at the Review Hearings.22 The only argument Mother provides for why the circuit court erred in denying her motions to reconsider is that the excluded evidence “supported her good faith and fitness.” This does not explain why the court erred or otherwise persuade us that the circuit court was “so egregiously wrong” by denying her motion for reconsideration. Stuples, 119 Md. App. at 232.
Finally, we disagree with Mother that the circuit court abused its discretion by denying the motion to reconsider the $31,112.82 judgment to the BIPA. Mother simply asserts the circuit court should have considered “substantial justification and the needs and resources of the parties” but provides no reference to law or legal argument to support her assertion. This does not persuade us the circuit court abused its discretion.
Mother’s arguments regarding the circuit court’s denial of her motions for reconsideration are an attempt to have us review the merits of the underlying decisions. We already addressed the merits of many of those decisions, and Mother makes no argument as to how the circuit court abused its discretion by not putting these decisions “back on the table.” Accordingly, we affirm the circuit court’s decisions to deny Mother’s motions for reconsideration.
APPEAL NUMBER 965 FROM THE SEPTEMBER 2022 TERM AND NUMBER 2367 FROM THE SEPTEMBER 2024 TERM ARE DISMISSED. THE REMAINING JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY ARE AFFIRMED. APPELLANT TO PAY THE COSTS.
1 Mother’s verbatim questions are:
FOOTNOTES
Question 1: Whether the court’s denials of Mother’s motions to recuse and reassign the case based on the appearance of bias and conflicted roles of the magistrate and later judge, including as a de facto witness and advocate during the litigation, deprived Mother of Due Process and her rights under Maryland law to an independent judicial review?
Question 2: Whether the court’s denial of Mother’s exceptions to the magistrate’s recommendations to revoke Mother’s custody for reporting suspected child abuse and participating in investigations arising from her children’s disclosures and signs of abuse violated Due Process and Maryland law governing protection of children?
Question 3: Whether the court erred by refusing to consider evidence of Father’s abuse of the children and Mother?
Question 4: Whether the court’s findings that Mother’s “rigid, inflexible thinking” require third-party supervision of her good parenting were clearly erroneous?
Question 5: Whether the court erred by denying Mother’s motions to reconsider, modify, or stay its rulings that abrogated Mother’s parental rights?
2 In Asano I, we indicated the trial was only two days, taking place on November 15 and 16, 2022. Asano I at *4. This appears to be an error as the April 7 Order and the parties indicate the hearings were four days long, from November 15 to 18.
3 Throughout the litigation leading up to the trial, Mother made numerous allegations to various social services, medical professionals, and local and federal police agencies that Father was physically and sexually abusive toward the Children. Asano I at *2–3. This led to several investigations by Child Protective Services (“CPS”), medical examinations of the Children, forensic interviews, and professional therapy for the Children. Id. The magistrate heard evidence on the abuse allegations at the November 2021 trial, which included evidence from Mother as well as the Children’s therapist, teacher, and two caretaker/nannies—all of whom gave testimony contrary to Mother’s allegations. Id. at *2–4.
4 Rule 9-208(h)(2) was amended and recodified as Rule 9-208(i)(2) as of January 1, 2024. This did not change the substance of the rule pertinent to this appeal. The current Rule 9-208(i)(2) states in relevant part:
If a magistrate finds that extraordinary circumstances exist and recommends that an order be entered immediately, the court shall review the file, any exhibits, and the magistrate’s findings and recommendations and shall afford the parties an opportunity for oral argument. After the opportunity for oral argument has been provided, the court may accept, reject, or modify the magistrate’s recommendations and issue an immediate order. An order entered under this subsection remains subject to a later determination by the court on exceptions.
5 This was referred to as the “Immediate Order” in the circuit court orders and Asano I
6 The April 7 Order initially denied any visitation to Mother before she received a psychological assessment. Eventually, Mother underwent a court-ordered psychological assessment. After this assessment, a November 10, 2022, consent order granted Mother telephone and videoconferencing access to the Children for set periods of time each day of the week.
7 Mother filed a petition for writ of certiorari to the Supreme Court of Maryland, which was denied on March 27, 2023. Asano v. Asante, 483 Md. 271 (2023).
8 The Modification Complaint alleged Father’s move to North Carolina was a material change in circumstances requiring modification of the Children’s custody. Neither of the parties’ principal briefs provides argument based on the Modification Complaint.
Proceedings and motions related to the Modification Complaint are still pending before the circuit court.
9 In Asano I, we noted Mother withdrew her argument that Father’s move to North Carolina violated her due process rights, and we dismissed her argument as moot. Asano I at *1 n.1.
10 The October 2022 appeal also specifically appealed the April 7 Order and Injunction. The April 7 Order was already the subject of Asano I, and the Injunction was already noted in the July 2022 notice of appeal. The July and October 2022 appeals were both filed in this Court under Case Number 965.
11 Based on Mother’s citation to Troxel v. Granville, we assume Mother is referring to “the interest of parents in the care, custody, and control of their children.” 530 U.S. 57, 65 (2000).
12 Specifically, on pages 25 and 26 of Mother’s brief, she states:
Without hearing a single witness, the magistrate warned “I don’t know, frankly, you want me on this case… I just think
the damages that are being done to you-all’s girls is tremendous, unless there’s going to be some form of definitive proof that there’s been any kind of abuse, kind of thing.” She disclosed discomfort in “these cases.” She refused to allow Mother access to the concealed CPS records she relied on. She disrupted counsel and interrogated every witness, especially Mother. She falsely found that Mother filed charges for Father’s arrest. She expounded from her private experiences and voiced lay opinions on the children’s psychological reactions to medical vaginal exams. She refused to enforce the “global agreement” for supervised pendente lite access after Father and the BIA rescinded it. She permitted them to cross-examine Mother over collateral matters even she labeled irrelevant. As Judge Tipton, she found “very offensive” testimony by Dr. Jones, Mother’s therapist and pastoral counselor, regarding Mother’s Japanese language and the court. She criticized Dr. Jones for “strong boundary issues” because Dr. Jones submitted subpoenaed sealed records to the clerk’s office. See Rule 2-510(i). E361-62, 364-65, 379-80, 393, 431-38, 443-49, 730-32, 740-45, 1463-66, 1587-90, 1602, 1631-32, 1651-52, 1711-13, 1753-57, 1773-80, 1879-99, 1908-27, 1962-74, 2036-40, 2050-51, 2071-73, 2075-77, 2082-84, 2121-24, 2133-36, 2166-70, 2171-73, 2178-80, 2213-18, 2238-45, 2252, 2259-62, 2269-71, 2280-2311, 2473, 2476, 2489-91, 2510, 2513-14, 2522-26, 4262-74, 4369-71, 4402-05, 4440-42, 4462-65, 4472-75, 4547-69, 4643, 4690-97, 4737, 4759-65, 5106-07, 5194-95, 5262-76, 5287-5331, 5342-43, 5758, 5761-67, 5775-79.
(citation spacing altered). Mother’s citations to the record are difficult to follow as it is unclear which citations contain the quoted material in the paragraph. When attempting to review the numerous citations to the 30-volume record, many of them do not appear to be related to Mother’s arguments.
13 In Mother’s reply brief, she claims Father’s contention is “wrong” because Rule 8-504(a)(3) does not require a standard of review. And she directs us to specific pages in her brief containing a standard of review.
Father’s brief did not cite 8-504(a)(3), which requires appellant briefs to include a statement of questions presented. He cited 8-504(a)(5), which does require appellants’ briefs to include a “concise statement of the applicable standard of review for each issue .
.
. .” Mother’s references to pages in her brief contain the standard for reviewing general custody determinations and a recitation of case law related to due process and the importance of judges maintaining impartiality. Although Mother briefly quotes Code of Judicial Conduct Rule 18-102.11(a), she never mentions the abuse of discretion standard.
Regardless, we exercise our discretion and do not dismiss Mother’s recusal argument because of her counsel’s failure to articulate a proper standard of review. Maryland law recognizes that “dismissing an appeal on the basis of an appellant’s violations of the rules of appellate procedure is considered a drastic corrective measure . .
. reaching a decision on the merits of a case is always a preferred alternative.” Rollins v. Capital Plaza Associates, L.P., 181 Md. App. 188, 202 (2008). Although Mother’s counsel’s misrepresentations of facts, arguments, and law in this appeal, including the Maryland Rules here, tempt this Court to take up Father’s offer, we do not wish to prejudice Mother because of her counsel’s conduct and failure to comply with the Maryland Rules.
14 Mother’s appeals of the Order Regarding BIPA’s Judgment and denial of her Motion to Remove Children’s Counsel and Other Relief in Case Number 1920 were entirely based on her argument that Judge Tipton should have recused herself. Because we reject Mother’s recusal argument, we only consider her challenges to the circuit court’s denial of her motions to reconsider those decisions, which are addressed in Section III, below.
15 Specifically, Mother complains she was not allowed to testify regarding: “the relationship being ‘(v)ery abusive,’” being pressured to abort the Children, the Children’s “disclosures and behaviors,” Father striking one of the Children being a factor in believing the children were human trafficking victims, hearing one of the Children’s “bone-chilling” scream during a remote session, Father forcing Mother to sign a contract, Father strangling Mother, the court punishing Mother for trying to protect the Children from abuse, and other general testimony that Father abused the children.
Additionally, Mother complains the court sustained objections to Mother’s attempts to enter the following evidence: Mother’s access to CPS records for its abuse allegations; a 2018 video of Father striking one of the Children from Mother’s arms; evidence of the “Code of Supreme Understanding” allegedly written by Father; admission of Dr. Champion’s 2021 evaluation of abuse and neglect allegations and testimony regarding her 2021 report; Dr. Lefkowits’ evidence supporting Mother’s abuse allegations; Dr. Krugman’s testimony that Mother had reasonable grounds to suspect child abuse; and nanny-cam recordings of the Children’s sexual acts.
16 Father also contends Mother waived this issue because she failed to set forth an applicable standard of review, present a meaningful legal analysis, and articulate a legal theory. As explained before, although we agree in large part with Father’s
contentions, we exercise our discretion and address the merits of Mother’s argument.
17 Mother argues the circuit court’s determination that her visitation must be supervised was a clearly erroneous factual finding. The circuit court’s order imposing supervised visitation was not a factual finding, but an ultimate conclusion we review for abuse of discretion. See Gillespie, 206 Md. App. at 170.
18 Here, the circuit court is referencing Dr. Lefkowits diagnosing Mother with “traits of Cluster B personality disorder, which can be displayed as excessively dramatic, histrionic, emotional manipulation, narcissism, erratic and unpredictable behavior, such as antisocial behaviors.”
19 Mother also makes a reference to the circuit court violating her “immunity for reporting and participating in investigations of abuse.” Mother makes no argument explaining her immunity or how the court specifically violated it, therefore we do not consider it further.
20 Father also argues, again, that Mother did not comply with Rule 8-504(a)(5) by failing to include a standard of review for motions for reconsideration and a proper remedy. Although we agree Mother lacks a coherent standard of review or remedy, we continue to exercise our discretion and decline to reject her arguments for failing to comply with procedural rules.
21 As far as we can tell, based on Mother’s brief and citations to the record, Mother’s “February 2024 motion” refers to a motion titled “[Mother]’s Motion to Reconsider and Revise Rulings Not Disposing of Entire Custody and Visitation Action, and Request for Hearing.” The motion requested the court to reconsider multiple pieces of evidence of alleged abuse by Father that Mother argued was improperly kept out of the Review Hearings, but it has nothing to do with the April 7 Order or Injunction. The motion was filed on July 12, 2023—although the table of contents filed in the record to this Court indicates it was filed February 23, 2024. The record does not contain any other motions filed in February 2024.
22 Specifically, Mother references “evidence reviewed by the custody evaluators, the 2018 video of Father’s assault on [one of the Children], and the 2020 nanny-cam recordings of the children’s sexualized behaviors at 3 years old”; “reports from the court- approved supervisors who corroborated her fitness”; and the “supplementary report of Dr. Krugman, the medical expert in evaluating child abuse[.]”
In the Maryland Appellate Court: Full Text Unreported Opinions
The Appellate Court affirmed the Charles County Circuit Court’s denial of husband’s motion to revise its order appointing a trustee to sell the marital home. The court was not persuaded by husband’s arguments that the circuit court either committed legal error or abused its discretion in denying his post-judgment motions.
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..
one: Did the circuit court abuse its discretion in denying Husband’s motions to revise its order appointing a trustee to sell the marital home?
For the reasons that follow, we affirm the judgment of the circuit court.
BACKGROUND
Marriage and Divorce
Husband and Wife were married in 2018. In June 2018, they purchased the marital home, which was titled in both of their names as tenants by the entireties.
The parties financed the purchase with a mortgage loan, secured by a purchase money deed of trust. Husband and Wife were both listed on the deed as borrowers, and they each executed the deed.
The parties separated in 2019, when Wife vacated the marital home. Husband remained in possession of the home.
On September 27, 2019, the Circuit Court for Charles County granted an absolute divorce to appellant Willie James PruDe, Jr. (“Husband”), and appellee, Dianna Latay PruDe Jones (“Wife”).1 The court incorporated, but did not merge, the terms of their settlement agreement into the judgment.
In March 2023, Wife filed a petition for contempt against Husband because of his alleged failure to adhere to the terms of the settlement agreement. In that petition, Wife sought to compel Husband to execute a quitclaim deed conveying the marital home to her so that she could sell it.
Following a show cause hearing on Wife’s petition, a family law magistrate afforded Husband four months to refinance the marital home and to remove Wife’s name from the mortgage. The magistrate warned that if Husband failed to do so, the marital home would be sold.
When Husband failed to refinance the marital home, a second magistrate recommended that the court appoint a trustee to sell it. Rather than hold Husband in contempt, however, the magistrate proposed that the court order the sale pursuant to the provision of Wife’s petition in which she requested “any other appropriate relief.”
On January 11, 2024, the circuit court adopted the magistrate’s recommendations, ordered that the marital home be sold, and appointed a trustee to effectuate the sale.
On April 12, 2024, Husband moved to vacate the order to sell the marital home.
The court denied that motion at a hearing on June 6, 2024. Husband, representing himself, noted a timely appeal. He presents five issues, which we have consolidated into
On June 18, 2019, Wife filed a complaint for absolute divorce on the ground of mutual consent. The complaint was accompanied by a “Voluntary Separation and Property Settlement Agreement,” executed by the parties one day earlier. Among other things, the agreement envisioned that Husband would relinquish his interest in the marital home, that Wife would prepare a deed by which Husband would convey his interest in the home to her, and that Husband would execute the deed within ten days.
On September 27, 2019, the circuit court entered a judgment of absolute divorce. The judgment incorporated, but did not merge, the Voluntary Separation and Property Settlement Agreement.
The Contempt Petition and Show Cause Hearing
On March 21, 2023, Wife filed a petition for contempt, alleging that Husband had breached the Voluntary Separation and Property Settlement Agreement—and thereby violated the divorce decree—by “fail[ing] to sign the deed within the allowed 10 days and refus[ing] to sell the property.”
On May 8, 2023, a magistrate conducted a show cause hearing on Wife’s contempt petition. At that hearing, Wife testified that she had learned that two homeowners’ association liens had been filed against the marital home. In addition to reporting that liens had been filed against the home, Wife testified that Husband was “over nine months in arrears” on the mortgage and that the home was “in foreclosure . . . due to nonpayment.” According to Wife, Husband had not made any mortgage payments on the marital home since September 6, 2022. Additionally, Wife recounted a conversation with the lender’s representative,
who informed her that Husband had applied for $30,000.00 in “COVID relief funds to bring the mortgage current[.]”
As Husband seemed to be unable to refinance the mortgage in his name alone, Wife sought an order directing that the marital home be sold. Husband opposed the sale and sought exclusive ownership of the marital home. According to him, Wife had vacated the marital home in April 2019, and he alone had made the monthly mortgage payments since then.
Husband testified that he and Wife had executed an “Amendment of Property Settlement Agreement” and a quitclaim deed in October 2019—after the judgment of absolute divorce had been entered. Those documents, which Husband offered as exhibits, provide that he would remain in the marital home, that he would be solely responsible for all related expenses (including mortgage payments), and that Wife would relinquish any interest in the marital home. The magistrate noted the sharp difference between the amended agreement, under which Wife would “just . . . walk away without getting anything,” and the first agreement, under which Wife was entitled to “all of the proceeds” from a sale of the marital home.
The Amendment of Property Settlement Agreement and quitclaim deed were both signed by the parties and notarized. The Amendment of Property Settlement Agreement, however, had not been incorporated into any court order, nor had the quitclaim deed been recorded. Husband testified that he was unable to record the quitclaim deed because Wife had retained the original signed instrument, and the Office of Taxation did not accept his copy.2
When the magistrate asked whether he “want[ed] to keep the home[,]” Husband answered that he did. He claimed that he had submitted a “borrower’s response package” to the lender and applied for financial assistance through the Maryland Homeowner Assistance Fund (“HAF”). He testified that all he needed to obtain the HAF funds was a letter from the homeowners’ association and a utility bill. Reasoning that she lacked the authority to compel the lender to release Wife from the loan, the magistrate explained that the only way to obtain the release, if Husband could not refinance the loan, was to order the sale of the marital home. Husband insisted that he would “refinance and [re]move [Wife] off of the loan entirely” “[a]s soon as the borrower’s response package . . and the [HAF] application [were] complete[.]”
The magistrate elected to continue the show cause hearing to afford Husband an opportunity to refinance. She asked Husband how long he needed. Husband answered that “it would be roughly ninety days for Maryland to finish with the bank,” and “then a few months after that I will refinance.”
Rather than grant Husband the open-ended continuance that he requested, the magistrate set a second show cause hearing for September 6, 2023, roughly five months in the future. The magistrate cautioned that she would order the sale of the marital home if Husband had not been approved for refinancing by the next hearing.
The Second Show Cause Hearing
On September 6, 2023, a second show cause hearing occurred before a different magistrate. Husband still had not refinanced the loan.
After reiterating her version of the relevant facts, Wife argued that Husband’s failure to refinance the loan over the preceding four months demonstrated his inability to do so. The magistrate responded that if Husband was unable to refinance the marital home, “[W]e will have to sell it.”
Turning to Husband, the magistrate inquired about any developments that had occurred since the previous hearing. Husband answered that he had prepared a signed and notarized letter of intent to assume the mortgage and sent it to Wife for her signature. According to Husband, however, Wife had never returned the document, which the lender purportedly required to “move forward with the assumption of the loan.”
Wife responded that the lender would not allow Husband to assume the mortgage, because, she said, it was “sixty-six days” delinquent and $8,439.04 in arrears. Husband did not dispute that the mortgage remained approximately $8,000 in arrears. Instead, he maintained that he had secured funds sufficient to cure the default and claimed that those funds were in escrow with the lender. He asserted that, based on his communications with the lender, the lender would proceed with the assumption of the loan upon receipt of the letter of intent signed by Wife.
Based on Husband’s spotty payment history, the magistrate predicted: “You are going to have a really hard time showing anybody that you can refinance the house. It is going to end up having to be sold.” Noting that Husband had not presented any evidence of his ability to refinance the mortgage in his own name, the magistrate took a brief recess to confer with the magistrate who had conducted the earlier hearing.
When the hearing reconvened, the magistrate informed the parties that she had reviewed her colleague’s orders at the close of the first show cause hearing and that she had “clearly articulated that the goal was to get the [loan] refinanced by today or it would be sold.” With that goal in mind, and with the absence of alternative means of removing Wife’s name from the mortgage, the magistrate recommended the appointment of a trustee to sell the marital home.
The magistrate advised Husband that he could file exceptions to her recommendations if he successfully refinanced the marital home before the ten-day exceptions period expired. See Md. Rule 9-208(f). The magistrate clarified the scope of her recommendation by explaining that she did not find Husband in contempt, but instead recommended the appointment of a trustee to sell the marital home pursuant to Wife’s request for “any other appropriate relief.” She deferred a recommendation regarding the distribution of the proceeds from the sale.
Magistrate’s Recommendations and Husband’s Exceptions
The magistrate memorialized her decision in written recommendations entered on September 8, 2023. She specifically recommended that a trustee be appointed to sell the marital home, that the proceeds be held in escrow, and that a hearing be scheduled to determine how to allocate the proceeds.
On September 15, 2023, Husband filed exceptions to those recommendations. He argued that the magistrate had not considered the letter of intent as evidence that the process of removing Wife from the mortgage had “already begun.” He seemed to assert that the magistrate had erroneously disregarded his testimony that “the process for a loan assumption takes more
than a day,” particularly given Wife’s failure to sign the letter of intent. He attached correspondence from the lender, which he had not presented at the hearing. The correspondence indicated that the processing time for mortgage assumption applications was at least sixty days.
The circuit court held a hearing on Husband’s exceptions on December 4, 2023. We have no transcript of the hearing. Three days later, the court overruled the exceptions, concluding that the magistrate had committed no error.
In two orders entered on January 11, 2024, the court granted Wife’s contempt petition “as it relates to other appropriate relief” and appointed a trustee to sell the marital home. One of the orders contained a typographical error, stating “that a trustee shall be appointed to sell the former marital home known as 46667 Pebble Beach Court[.]” (Emphasis added.) The other order correctly listed the address, appointing a trustee “for the limited purpose of selling the real property and improvements located at 4667 Pebble Beach Court[.]” (Emphasis added.)
Husband’s Motions
Husband did not challenge the court’s orders until after the trustee executed a contract for the sale of the marital home on April 4, 2024, which set the purchase price at $540,000.00 and scheduled settlement for May 1, 2024.
On April 12, 2024, Husband filed three motions seeking to prevent or delay the sale. First, in a “Request to Remove Trustee,” he noted the typographical error in one of the orders and argued that the trustee had been appointed “to sell a property that is different from the [one] ordered to be sold[.]” He also argued that the trustee had incorrectly dated the certificate of service for a “Request to Set Bond and/or to Waive Bond,” filed on January 19, 2024.3 In that same motion, Husband asked the court to remove the realtor retained by the trustee, alleging that she had improperly advised Wife against signing the Letter of Intent.
In addition to the “Request to Remove Trustee,” Husband filed a “Motion to Vacate” and a “Motion to Stay” the January orders that appointed the trustee. In both motions, he asserted that the lender had “agreed to release [Wife] from the promissory note” and had sent her a release of liability on April 1, 2024. He argued that Wife was no longer liable on the promissory note and, thus, that it was unnecessary “to sell the [marital home] to remove [her] from the mortgage.” His motions were accompanied by a “Partial Release and Reaffirmation Agreement,” which provided in part: “[The lender] has agreed to release only [Wife] from the Promissory Note and Security Instrument in accordance herewith Such release is explicitly conditioned on [Wife] executing this Agreement[.]” Although Husband and the lender had executed the agreement, Wife had not.
On April 25, 2024, the trustee filed an opposition to Husband’s motions and requested that the circuit court ratify the contract of sale for the marital home. In opposing Husband’s motions, the trustee urged the court to deny them as moot. With respect to the contract, the trustee argued that, absent ratification, the marital home was at risk of foreclosure. The following day, Husband filed both a reply to the trustee’s response and a “Motion to Remove Petition and Strike from Record,” alleging that Wife’s contempt petition misrepresented the relevant facts.
The Motions Hearing
On June 6, 2024, the circuit court held a hearing on Husband’s four motions and the trustee’s ratification request. The court invited the parties to present any additional information bearing on Husband’s motions. In response, Husband proffered that the lender had “agreed to release [Wife] from the promissory [note] and remove her from the mortgage” and had provided Wife with a “release of liability” to that effect. Although Wife confirmed that the release had been sent to her on April 1, 2024, she emphasized that Husband had not offered any evidence of her removal from the mortgage at the September 6, 2023, hearing— as was necessary to prevent the sale of the marital home.
Husband responded that the release was not available on September 6, 2023, and added that Wife did not sign the release because she was advised against doing so by “someone representing [the trustee’s] office[.]”
In denying Husband’s motions, the circuit court reasoned: “There are no valid grounds to remove the trustee or vacate the [c]ourt’s [o]rder[]” and that “[t]he trustee . . . has not breached any fiduciary duty.” The court determined that the order was neither based on clearly erroneous fact-finding nor an abuse of discretion. It found that “the parties w[ould] suffer if the contract and closing d[id] not go forward.” Finally, it directed Husband to vacate the marital home by June 28, 2024.
In a written order entered that same day, the court ratified the contract of sale, referred the matter to an auditor to state an account, and stated that it was “satisfied that the sale of the [marital home] was fairly and properly made,” provided that the purchaser did not default and that settlement occurred on or before June 28, 2024. Husband noted this appeal on June 25, 2024.
DISCUSSION Appealability
On January 11, 2024, the court had entered the orders appointing the trustee to sell the marital home. Those orders were immediately appealable pursuant to Maryland Code (1974, 2020 Repl. Vol., 2023 Supp.), § 12-303(3)(v) of the Courts & Judicial Proceedings Article (“CJP”), which permits an appeal from an order “[f]or the sale, conveyance, or delivery of real . . . property . . . or the refusal to rescind or discharge such an order[.]”
Although Husband could have appealed from the orders appointing the trustee, he did not do so within the thirty-day period prescribed by Maryland Rule 8-202(a). Nor did he move to alter or amend the orders within ten days, which would have tolled the deadline for filing an appeal. See Andrews v. O’Sullivan, 256 Md. App. 532, 538-41 (2022). Accordingly, Husband’s appeal is untimely with respect to the orders appointing the trustee. To the extent that the subsequent denial of his various motions amounted to a “refusal to rescind or discharge” the orders, the matter is properly before us.
Rule 2-535(b) Revisory Motions
We construe the motions underlying this appeal as motions to revise a judgment in the form of the appealable interlocutory orders appointing the trustee. Those interlocutory orders are not final judgments, as they do not put the parties out of court and deprive them of the further ability to pursue their
rights. Nonetheless, the orders appointing the trustee meet the definition of a “judgment” in the Maryland Rules, because they are “order[s] of the court final in nature entered pursuant to” the rules. Md. Rule 1- 202(a); see Andrews v. O’Sullivan, 256 Md. App. at 538-41 (holding that an appealable interlocutory order denying a stay of a foreclosure proceeding was a “judgment”).
Because Husband filed the revisory motions more than thirty days after the court entered the orders appointing the trustee, we interpret them as having been filed under Rule 2-535(b). Under that rule: “On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”
“The terms ‘fraud, mistake, or irregularity’ as used in Rule 2-535(b) . . . are narrowly defined and are to be strictly applied.”
Early v. Early, 338 Md. 639, 652 (1995). In the context of Rule 2-535(b), “fraud” means “extrinsic fraud”—that is, “fraud [that] actually prevents an adversarial trial” and “prevent[s] the actual dispute from being submitted to the fact finder at all.” Hresko v. Hresko, 83 Md. App. 228, 232 (1990).
“Mistake” “means jurisdictional mistake, such as where the court lacks the power to enter the judgment because it does not have jurisdiction over the person or . . . subject matter.” Facey v. Facey, 249 Md. App. 584, 639 (2021). “[I]rregularity” means “a failure to follow required process or procedure[,]” as occurs, for example, when the court clerk fails to properly notify the parties of judgments entered in a case. Early v. Early, 338 Md. at 652.
To prevail on a Rule 2-535(b) revisory motion, the movant bears the burden of establishing the existence of fraud, mistake, or irregularity by clear and convincing evidence. See Facey v. Facey, 249 Md. App. at 601. On appeal from the denial of such a motion, “‘the only issue before the appellate court is whether the trial court erred as a matter of law or abused its discretion in denying the motion.’” Canaj, Inc. v. Baker & Div. Phase III, LLC, 391 Md. 374, 400-01 (2006) (quoting In re Adoption/ Guardianship No. 93321055/CAD, 344 Md. 458, 475 (1997)).
Analysis
In challenging the denial of his motion to strike Wife’s petition for contempt, Husband claims that the petition contained material misrepresentations upon which the circuit court subsequently relied. Assuming, solely for the sake of argument, that Wife’s contempt petition included material misrepresentations, as Husband claims, any such misrepresentations constituted intrinsic—rather than extrinsic—fraud. Therefore, the alleged misrepresentations do not give rise to a cognizable basis for post-judgment relief under Rule 2-535(b). See Facey v. Facey, 249 Md. App. at 605.
“In determining whether or not extrinsic fraud exists, the question is not whether the fraud operated to cause the trier of fact to reach an unjust conclusion, but whether the fraud prevented the actual dispute from being submitted to the fact finder at all.” Hresko v. Hresko, 83 Md. App. at 232. Extrinsic fraud includes acts of deceit performed by one party that prevent the other from appearing in court. Intrinsic fraud, by contrast, encompasses “the use of forged documents [or] perjured testimony,” Schwartz v. Merchants Mortg. Co., 272 Md. 305, 308 (1974), as well as “misrepresentation in a court pleading[.]” Green v. Ford Motor Credit Co., 152 Md. App. 32, 50 (2003).
Husband alleges that Wife’s contempt petition contained material misrepresentations. In other words, he alleges that Wife made “misrepresentation[s] in a court pleading,” Green v. Ford Motor Credit Co., 152 Md. App. at 50, which is intrinsic rather than extrinsic fraud. The alleged misrepresentations, therefore, afford no basis to revise the orders appointing the trustee.
Elsewhere, Husband appears to contend that the circuit court erroneously disregarded post-judgment evidence of the lender’s alleged willingness to release Wife from the mortgage. Specifically, he cites the release, which was sent to Wife on April 1, 2024—nearly three months after the court entered the orders appointing the trustee. This new development, however, does not amount to “fraud, mistake, or irregularity” in a preexisting judgment and is not, therefore, grounds for revising a judgment under Rule 2- 535(b).
In addition to reiterating the foregoing arguments that he originally made in his post-judgment motions, Husband now advances three additional arguments that he failed to raise therein. First, he contends that Wife’s contempt petition was barred by the three- year statute of limitations set forth in CJP § 5-101. Second, he claims that the court erred in appointing the trustee to sell the marital home because the magistrate presiding over the initial show cause hearing had merely required him to show that he was capable of refinancing the mortgage in his own name. Third, Husband maintains that he was improperly denied representation by the Office of the Public Defender. Because Husband did not raise these issues in the motions underlying this appeal, they are not preserved, and we decline to address them. Md. Rule 8-131(a).
CONCLUSION
To the extent that they are properly before us, we are not persuaded by Husband’s arguments that the circuit court either committed legal error or abused its discretion in denying his post-judgment motions. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR CHARLES COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
1 The appellee is now known as Diane Latay Jones.
FOOTNOTES
2 The quitclaim deed was recorded on January 4, 2024, and is available via the Maryland State Archives at www.mdlandrec. net. On January 5, 2025, Husband recorded another deed by which he purported to reconvey the property to himself.
3 The court had granted the request to waive bond in an order entered on March 21, 2024.
In the Maryland Appellate Court: Full Text Unreported Opinions
Cite as 10 MFLU Supp. 69 (2025)
Extraordinary medical expense; insurance; contempt
The Appellate Court affirmed the Baltimore County Circuit Court’s order: (1) that the cost of treating a teenager’s medical condition was an “extraordinary medical expense” under the State Child Support Guidelines and (2) holding father in contempt for refusing to pay his share of the costs of that treatment that were not covered by insurance.
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 reasons explained below, we affirm the Circuit Court’s rulings on the first question concerning “extraordinary medical expenses” and contempt. We vacate the court’s ruling on the second question concerning the basis of the child support award and remand to that court for clarification of its ruling under the applicable law.
As to the first question, we agree with the Circuit Court that the cost of treating J’s medical condition was an “extraordinary medical expense” under the Child Support Guidelines. The Circuit Court did not abuse its discretion in holding Father in civil contempt for refusing to pay his share of the costs of that treatment that were not covered by insurance.
This appeal concerns an award of child support by the Circuit Court for Baltimore County in a family law case that began nearly a decade ago. Appellant Dominic Burgess (“Father”) and Appellee Melissa Lewis-Ransom (“Mother”) are the parents of three children – two boys, one who attained majority during the pendency of this case and one who is still a juvenile, and one girl. For ease of reference and to preserve the children’s privacy, we shall refer to the older son as “M,” the younger son as “J,” the two collectively as “Sons,” and the girl as “Daughter.”
Father contests an April 2023 order of the Circuit Court holding him in civil contempt as well as several aspects of that court’s May 2023 judgment modifying his obligation to provide financial support for M and J. He presents the following issues1:
1. Did the Circuit Court err when it concluded that the cost of treating J’s medical condition was an “extraordinary medical expense” under the State Child Support Guidelines and when it held Father in contempt for violating the order that required him to pay a share of those costs?
2. Did the Circuit Court err when it calculated Father’s child support obligation with respect to M and J and, in particular, in its determination of the starting point for the retroactive modification of that obligation and its determination of the “overnights” attributable to Father as part of that calculation?
As to the second question, the Circuit Court was apparently mistaken as to the date on which Father first requested modification of his child support obligation with respect to M. The court also appears have applied a relatively recent amendment of the definition of “shared physical custody” rather than the definition that applies to this nine-year old case. Finally, it is unclear from the record available to us how the court determined the allocation of “overnights” credited to each parent for purposes of applying the Guidelines in a case of shared physical custody. We do not suggest that the Circuit Court’s award of child support was itself inappropriate. Rather, we remand the case to that court to address these issues and exercise its discretion as to whether to modify the award of child support in light of the applicable law.
I BACKGROUND
Mother and Father are the parents of three children: M, who is no longer a minor; J, who is now a teenager; and Daughter, who is approaching middle-school age. Mother and Father apparently never lived together for an extended period of time and have never married.
The Circuit Court first became involved with deciding the parents’ rights and obligations with respect to the children in February 2016, when Father filed a petition in which he sought joint legal custody of Sons, who had been living solely with Mother. Daughter was born later that year. A separate case concerning her support was docketed and consolidated with the case concerning Sons’ support in 2017.
In 2018, the Circuit Court specially assigned a judge to the case. That judge presided over the proceedings for the next five years, at times remotely during the Covid pandemic. Throughout, the parties filed multiple petitions and protests
about each other’s conduct. Mediation largely failed. Their attorneys came and went; at times, one or both parties were unrepresented; and at times, the children were represented by a best interest attorney.
In 2023, after an evidentiary hearing on child support, custody, and a contempt petition filed against Father by Mother, the Circuit Court issued the judgment and the civil contempt order that are the subject of this appeal. Neither party has appealed either the arrangements that the court set for custody and visitation or the child support order as it pertains to Daughter. This appeal concerns only Father’s child support obligation with respect to Sons and the contempt order related to Father’s support obligation as to J. Additional facts and the relevant Circuit Court proceedings are described in greater detail below in the discussion of the issue to which they pertain.
II
DISCUSSION
A. Issues Relating to Expenses Incurred for Medical Treatment of J
In 2018, the Circuit Court issued a consent order that required, among other things, that Mother provide the children with health insurance through her employment and that Mother and Father share any “extraordinary medical bill” of more than $100.00. Under the order, Father’s share of any such bill was to be 63%.
J has a skin condition for which he received a series of medical treatments that were only partially covered by Mother’s insurance. Despite a request from Mother, Father did not pay a share of those costs. At the request of Mother and following a hearing, the Circuit Court held Father in civil contempt of the consent order in an order issued in April 2023.
On appeal, Father contends that the providers’ charges for J’s treatments were not “extraordinary medical bills” and that, even if they were, the Circuit Court should not have held him in contempt.
1. “Extraordinary Medical Expenses” under the Child Support Guidelines
By statutory mandate, a circuit court charged with calculating the total amount of money needed to support a child under the child’s circumstances, and each parent’s respective shares of that amount, must generally do so in accordance with the Child Support Guidelines contained in Maryland Code, Family Law Article (“FL”), §§12-201 et seq Under those Guidelines, the court is to factor health care costs into that calculation as follows:
(1) Any actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible shall be added to the basic child support obligation and shall be divided by the parents in proportion to their adjusted actual incomes.
(2) Any extraordinary medical expenses incurred on behalf of a child shall be added to the basic child support obligation and shall be divided between the parents in proportion to their
adjusted actual incomes.
FL §12-204(h).
At the time the consent order was issued by the Circuit Court in 2018, the Guidelines defined the phrase “extraordinary medical expenses” to “mean[] uninsured costs for medical treatment in excess of $100 in any calendar year.” FL §12201(g)(1).2 Under FL §12-201(g)(2), the phrase “includes uninsured, reasonable, and necessary costs for orthodontia, dental treatment, vision care, asthma treatment, physical therapy, [and] treatment for any chronic health problem ….”
This Court has held that the term “extraordinary medical expenses” in a child support order includes the cost of treatment that insurance only partially covers. See Ruiz v. Kinoshita, 239 Md. App. 395, 435 (2018).
The Consent Order, the Expenses at Issue, and the Contempt Order
2. In December 2018, the Circuit Court issued a Consent Custody Order signed by Mother’s and Father’s respective attorneys and the Sons’ best interest attorney. Pertinent to this issue, that order required Mother to keep Sons covered under the health insurance policy provided through her employment. The order further provided that “the parties shall utilize all ‘in plan’ providers for the children, and they are to notify each other immediately upon incurring any medical bill which may exceed $100.00, and they are to share the extraordinary medical bill in excess of $100.00 according to their pro rata share, currently Father paying 63% Mother paying 37%[.]” The order also required the parties to “pay the extraordinary medical bills within 45 days of receipt of the bill.”3
Beginning in 2019, J underwent certain dermatological treatments for a skin condition. Insurance covered part of the cost, but bills for the remainder exceeded $100. Mother paid the amounts not covered by insurance and sought reimbursement from Father for Father’s share of those expenses. When Father did not pay her, Mother filed a petition asking the court to find Father in contempt of the consent order.
At the hearing on Mother’s petition, Father testified that he considered the condition to be “cosmetic” and the treatment to be ineffective and unnecessary. He paid some copays for the treatments but refused to pay the bills not covered by insurance. Mother testified that the treatments were important because the condition could spread and turn into other conditions, and that her medical insurance would not have covered the treatments at all if they had been merely cosmetic.
The Circuit Court granted Mother’s petition. Ruling from the bench, the court found that the consent order “was a valid court order,” that its language was “clear, … unambiguous, … and concise,” and that the parties were represented by counsel when they consented to it. The court further found that J’s dermatology treatments were medically necessary, that an in-network provider had provided them, that Mother had paid the provider’s bills, that Father had been asked to pay his share but had refused, and that Father had not established an inability to pay.
The Circuit Court then issued a contempt order. That
order, dated April 21, 2023, required Father to reimburse Mother $2,199.48 within 90 days, imposed a $100.00 sanction, which the court suspended, and recited that the court had found Father in contempt by clear and convincing evidence.
3. Whether the Bills for J’s Treatments were “Extraordinary Medical Expenses”
Father asserts various arguments in support of his contention that he did not violate the consent order by failing to reimburse Mother for the uncovered costs of J’s treatments. Some of Father’s arguments require interpretation of the consent order, while others relate to provisions in the Family Law Article. In both instances, the Circuit Court’s interpretation presents a question of law subject to de novo review. See Hearn v. Hearn, 177 Md. App. 525, 534-35 (2007) (applying de novo review to a circuit court’s interpretation of a consent order); Kowalczyck v. Bresler, 231 Md. App. 203, 209 (2016) (interpretation of a statute subject to de novo review).
First, positing that the Circuit Court had found J’s condition “to be extraordinary,” Father argues that that the classification of J’s condition as “extraordinary” was “open to interpretation” because neither the consent order nor the contempt order defined the word. That argument overlooks the context in which the consent order referred to “extraordinary medical bills.” The consent order was based on the Child Support Guidelines, which require a court to address parents’ respective shares of medical costs not paid through insurance, and, in so requiring, define “extraordinary medical expenses” to “mean[] uninsured costs for medical treatment in excess of” a specified amount “in any calendar year” and to “include” various categories of treatment, such as vision care, orthodontia, and chronic health problems. FL §12-201(g). That definition relates to “costs” and thus makes clear that the adjective “extraordinary” modifies “expenses.” The definition does not focus on whether a child’s condition or, for that matter, the treatment for it, is “extraordinary.”
Read in conjunction with FL §12-204(h) and §12-201(g), the Circuit Court’s orders with respect to “extraordinary medical bills” comport with the Guidelines. Next, Father argues that the definition of “extraordinary medical expenses” limits the scope of that phrase to the specific conditions or types of treatment set forth in FL §12- 201(g)(2). His argument does not take into account the Legislature’s choice of words in paragraphs (g)(1) and (g)(2) of that section. Paragraph (g)(1) provides that the phrase “means uninsured costs for medical treatment in excess of [a specified amount] in any calendar year” (emphasis added). By contrast, paragraph (g)(2) merely “includes uninsured, reasonable, and necessary costs” for the specified items (emphasis added). The verbs used in those two paragraphs of the definition are significant. In using the verb “means” in (g)(1), the General Assembly indicated that the phrase in question relates specifically to “costs” for medical treatment4; in using the verb “includes” in (g)(2), the General Assembly provided a non-exhaustive list of what those costs might relate to. See Tribbitt v. State, 403 Md. 638, 647-48 (2008) (explaining that statutory drafters use the term “means” to denote an exhaustive definition and the term “includes” to
indicate “illustration and not … limitation”) (citation and quotation marks omitted); see also Maryland Code, General Provisions Article, §1–110 (“‘Includes’ or ‘including’ means includes or including by way of illustration and not by way of limitation.”).
Finally, Father argues that treatments partially covered by insurance are not “uninsured costs” for purposes of FL §12201g)(1). This Court has previously rejected that argument. In Ruiz v. Kinoshita, a parent asserted that FL §12-201(g) should be interpreted “to mean that any ‘reasonable[ ] and necessary costs’ for the enumerated conditions that health insurance partially covers cannot be considered an extraordinary medical expense.” 239 Md. App. at 435. In concluding otherwise, this Court stated: “Such a rigid definition of ‘uninsured’ is inconsistent and would lead to untenable results – forcing one parent of an insured child to pay for all medical expenses that the insurance does not cover, so long as the insurance covers at least a portion of the cost.” See also Frankel v. Frankel, 165 Md. App. 553, 578–79 (2005) (referring to the unreimbursed portion of medical expenses as “extraordinary medical costs”).
In sum, the Circuit Court correctly concluded that the unreimbursed portion of J’s medical expenses was an “extraordinary medical expense” under the consent order and the Guidelines.
4. Whether the Circuit Court Properly Found Father in Contempt
Alternatively, Father argues that the Circuit Court should not have held him in civil contempt5 for failing to pay his share of the unreimbursed medical costs to Mother. Father contends that even if the unreimbursed costs of J’s medical treatment constituted “extraordinary medical expenses” under FL §12-201(g), Father had based his refusal to pay his share on his good faith belief that they did not fall within that definition. Father asserts that the definition of “extraordinary medical expenses” in FL §12-201(g) is “open to interpretation” and that his conduct lacked the element of willfulness needed for a contempt finding.
An appellate court “generally will not disturb a contempt order absent an abuse of discretion or a clearly erroneous finding of fact upon which the contempt was imposed.” Kowalczyk v. Bresler, 231 Md. App. 203, 209 (2016). In assessing the sufficiency of the evidence to support a circuit court’s finding of willfulness, an appellate court will view the evidence and inferences drawn from that evidence in the light most favorable to the prevailing party. Gertz v. Md. Dept. of Env’t, 199 Md. App. 413, 430 (2011). In this case, Mother was the prevailing party. Willfulness may be inferred from an ability to comply with a court-ordered duty, but not from a negligent failure to comply. Id. at 430-31; see also, e.g., Att’y Grievance Comm’n v. Boyd, 333 Md. 298, 309 (1994) (“[W] illfulness may be established merely by proving a voluntary, intentional violation of a known legal duty.”).
In addition, Maryland Rule 15-207(e) specifically applies to a court’s exercise of the civil contempt power in proceedings in child support cases. Section (e)(2) of that rule authorizes a court’s use of the contempt power and spells out the applicable burden of proof as follows: “[T]he court may make a finding of contempt if the petitioner proves by clear and convincing
evidence that the alleged contemnor has not paid the amount owed, accounting from the effective date of the support order through the date of the contempt hearing.”
Section (e)(3) provides two defenses. The first, which relates to willfulness, is the alleged contemnor’s inability to comply with the order: “The court may not make a finding of contempt if the alleged contemnor proves by a preponderance of the evidence that (A) from the date of the support order through the date of the contempt hearing the alleged contemnor (i) never had the ability to pay more than the amount actually paid and (ii) made reasonable efforts to become or remain employed or otherwise lawfully obtain the funds necessary to make payment….” Father has not challenged the Circuit Court’s finding that “there was no inability for the father to pay those bills[.]” The second defense is the expiration of the statute of limitations as to the particular unpaid obligation. Father did not assert that defense.
Section (e)(4) spells out what an order of constructive civil contempt for failure to pay spousal or child support must include: “(A) the amount of the arrearage for which enforcement by contempt is not barred by limitations, (B) any sanction imposed for the contempt, and (C) how the contempt may be purged.”
Here, the Circuit Court noted in its oral ruling that Father had been represented by counsel when he entered into the consent order; that the language in the order was “clear,” “unambiguous,” and “concise”; that Father had been asked to pay his share; and that he had not shown an inability to do so. In its written order, the court found that Father’s failure to pay his share of extraordinary medical expenses pursuant to order was proven by clear and convincing evidence, that the amount of the arrearage was $2,199.48, that Father could purge the contempt by paying it within 90 days, and that the court was setting and suspending a $100.00 penalty. The court’s findings are sufficient to establish a willful failure to comply with the consent order, and to satisfy the requirements of Rule 15-207(e). The record of the contempt hearing supports those findings.
In sum, the Circuit Court did not abuse its discretion in holding Father in civil contempt for failure to pay his share of J’s extraordinary medical expenses.
B. Whether the Circuit Court Erred in its Calculation of Child Support for Sons
Father contends generally that the Circuit Court erred in ruling on his request for modification of his child support obligation with respect to Sons, with specific reference to its worksheets applying the Guidelines and supporting its May 2023 order. He argues that the court erred in determining the extent to which the modification should be made retroactive. He also asserts that the court, in its worksheets, failed to credit him with the appropriate number of “overnights” with M and incorrectly credited Mother with certain sums actually paid by Father.
1. The Calculation of Child Support under the Child Support Guidelines
As noted above, a circuit court charged with calculating the total amount of money needed to support a child in the child’s
particular circumstances, and each parent’s respective shares of that total amount, must generally do so in accordance with the Child Support Guidelines. See FL §12-201 et seq. The beginning point for such calculations is a schedule in FL §12204(e), which sets forth the total monthly amount of child support – called the “basic child support obligation” – based on the parents’ “combined adjusted actual income” and the number of their children.6 As a general rule, the pertinent total amount derived from the statutory schedule is to be divided between the parents in proportion to each parent’s adjusted actual income. FL §12-204(a)(1). Those calculations are subject to adjustment for other items addressed by the statute, such as child care expenses, health insurance, and extraordinary medical expenses. E.g., FL §12-204(g), (h).
There is a rebuttable presumption that application of the Guidelines in a particular case, whether in establishing or modifying a child support award, yields the correct amount of child support for that case. FL §12-202(a)(1), (2). The presumption that an award generated by application of the Guidelines is correct “may be rebutted by evidence that the application of the Guidelines would be unjust or inappropriate in a particular case.” FL§12- 202(a)(2)(ii). The statute lists various factors that the court “may consider” in assessing that evidence, including such matters as other court orders, other debts, the presence of other children that a parent is obligated to support, and the right to occupy the family home. FL §12-202(a)(2)(iii).
Thus, a circuit court may issue a child support order that departs from the Guidelines, if it determines that application of the Guidelines would be “unjust or inappropriate in a particular case” and makes a finding on the record stating the reasons for departing from the Guidelines. FL §12-202(a)(2) (v). Among other things, the court must specify the amount of child support that the Guidelines would have required, how the order varies from that amount, and how the deviation from the Guidelines serves the child’s best interests. Id
1. Adjustment When Parents Have “Shared Physical Custody”
a. Generally
Pertinent to this case, a somewhat complex adjustment formula applies under the Guidelines when there is “shared physical custody” of children by the parents. “Shared physical custody” is defined in Guidelines to mean that “each parent keeps the child or children overnight for more than [a certain percentage] of the year and that both parents contribute to the expenses of the child or children in addition to the payment of child support.” FL §12-201(o) (1). (As we shall see, in a 2020 statutory amendment, the General Assembly changed the threshold percentage in this definition during the pendency of this case). When there is shared physical custody, the court is to multiply the “basic child support obligation” in the Guidelines by one and onehalf to obtain an “adjusted basic child support obligation” and then use that figure in a statutory formula that allocates the child support obligation between the parents based on (1) the parents’ respective incomes and (2) the percentage of time that the children spend with each parent. FL §12-204(f), (m).
In short, the amount of time the child spends with each
parent plays a role in the calculation of the parents’ respective shares of the support obligation only if the parents had “shared physical custody,” as then defined in the Guidelines, of the child.
b. Applicable Definition of “Shared Physical Custody” in this Case
When Father initiated this litigation concerning the support of Sons in 2016, the threshold percentage of overnights in the statutory definition of “shared physical custody” was 35%. FL §12-201(m)(1) (2012 Repl. Vol. & 2015 Supp.). In other words, the adjustment formula for shared physical custody applied only if each parent kept the child in question overnight for more than 35% of the year.
In 2020, four years after this case had been initiated, the General Assembly passed identical cross-filed bills that, among other things, amended the definition of “shared physical custody” in the Child Support Guidelines to lower the threshold from 35% to 25% of overnights. Chapters 142, 143, Laws of Maryland 2020. The 2020 amendment specified that it would “apply only to cases filed on or after the effective date of this Act,” which was October 1, 2020. Id., §§2, 3. Thus, that reduction in the threshold percentage for shared custody does not apply to this case. Rather, the 35% threshold for application of the portion of the Guidelines related to “shared physical custody” that existed at the time Father filed this action continues to apply in this case.
c. Determining Whether the Threshold Percentage is Met
At the time Father filed his complaint, the statute defined “shared physical custody” as follows:
(1) “Shared physical custody” means that each parent keeps the child or children overnight for more than 35% of the year and that both parents contribute to the expenses of the child or children in addition to the payment of child support.
(2) Subject to paragraph (1) of this subsection, the court may base a child support award on shared physical custody:
(a) solely on the amount of visitation awarded; and (b) regardless of whether joint custody has been granted.
FL §12-201(m) (2012 Repl. Vol. & 2015 Supp.). 7
In 2018, this Court had occasion to explain how a circuit court determines whether the threshold for “shared physical custody” in this definition is met. Rose v. Rose, 236 Md. App. 117 (2018), reconsideration denied (Mar. 28, 2018), cert. denied, 459 Md. 417, 187 (2018). The Rose Court observed that the statute contains both mandatory and discretionary provisions. The court stated: “[Paragraph (1)] requires the court to use the shared physical custody formula for child support where a parent has actually kept the child for more than 35% of the overnights, while [Paragraph (2)] permits the court, in its discretion, to use the shared physical custody formula where a parent is awarded more than 35% of the overnights, but has actually kept the child for 35% (or fewer) of the overnights.” 236 Md. App. at 136 (emphasis in original).
A circuit court thus must make a preliminary finding
whether each parent actually kept the child overnight for more than the 35% threshold. If so, the mandatory Paragraph 1 requires application of the shared physical custody formula. If not, the court has discretion under Paragraph 2 to use that formula – or not – if the governing custody order “on its face” allocates to each parent the threshold number of overnights. Rose, 236 Md. App. at 137. To meet the 35% threshold under Paragraph (1), a child had to “stay overnight with each parent for a minimum of 128 nights.” Id. at 135 (quoting Guidash v. Tome, 211 Md. App. 725, 748-49 (2013)).
3. Modification of a Child Support Award
The Family Law Article authorizes a circuit court to modify a child support award, but sets certain conditions on that authority. A circuit court “may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.” FL §12-104(a). However, a circuit court “may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” FL §12-104(b).8 Within those constraints, the circuit court has the discretion to determine “whether and how far [to] retroactively ... apply a modification of a party’s child support obligation[.]” Ley v. Forman, 144 Md. App. 658, 677 (2002); see also Petitto v. Petitto, 147 Md. App. 280, 310 (2002) (“The decision to make a child support award retroactive to the filing of the [relevant motion] is a matter reserved to the discretion of the trial court.”).
The court is to apply the Guidelines schedule in modifying a child support award as well as in establishing one. FL §12202(a)(1). However, a revision to the Guidelines is not itself a material change of circumstances for the purpose of a modification of a child support award. FL §12-202(c).
4. The Circuit Court’s May 15, 2023 Child Support Order
On May 15, 2023, the Circuit Court issued the child support order at issue in this appeal. In it, the court found that Father had filed a motion for modification of support on August 26, 2019. The court then retroactively modified his child support obligation for M from that date forward to June 6, 2022, the date of M’s high school graduation – when the parents’ support obligation for M concluded.
Father had asked the court to modify child support for M as of early 2019 to account for the fact that M had lived with Father full-time for a period of time pursuant to a temporary custody order that the court had issued at that time. The court denied Father’s request for the earlier effective date solely on the grounds that FL §12-104(b) prohibited it from retroactively granting that relief prior to the date of the filing of a motion for modification.
Attached to the May 15, 2023 Child Support Order are four sets of worksheets that contain calculations of support that pertain variously to the children as of various dates. All are on SASI-CALC forms9 labeled “Post October 1, 2020 Guidelines.” The pages of the worksheets relating to support of M and J bear a typewritten notation reading “Child Support Obligation: Shared”; the worksheet pages pertaining to Daughter do not include the term “shared.”
Worksheet #1, dated August 26, 2019,10 shows a bottom line calculation of $1,635 for Father’s monthly support obligation for Sons. The court’s May 15, 2023 order awarded monthly child support in that amount to Mother for the period from
August 26, 2019 to September 28, 2021.
Worksheet #2, dated September 28, 2021, shows a calculation of $1,473 for Father’s monthly support obligation for Sons. The court’s May 15, 2023 order awarded monthly child support in that amount to Mother for the period from September 28, 2021 to June 6, 2022.
Worksheet #3, dated June 6, 2022, shows a calculation of $1,050 for Father’s monthly support obligation as to J alone. The court’s May 15, 2023 order awarded monthly child support in that amount to Mother for the period from June 6, 2022 to April 24, 2023. Worksheet #4, dated April 24, 2023, shows a calculation of $907 for Father’s monthly support obligation as to J alone. The court’s May 15, 2023 order awarded monthly child support in that amount to Mother for the period from April 24, 2023 forward.
All of the pages of the worksheets pertaining to Sons show 273 overnights with Mother and 92 overnights with Father, calculated on the forms to be 74.8% and 25.2% respectively of overnights for the year. Father contests the accuracy of both the number of overnights and certain other adjustments for payments entered on the worksheets.11
5. Whether the Circuit Court Erred or Abused its Discretion in its Child Support Order
Although child support orders “generally” fall within a circuit court’s discretion, we apply a de novo standard of review to the extent that a child support order turns on an interpretation and application of Maryland statutory and case law. Walter v. Gunter, 367 Md. 386, 391-92 (2002); see also In the Matter of the Marriage of Houser, Md. (June 27, 2025), slip op. at 10.
a. Use of August 26, 2019 as the Date of the Filing of Father’s Request for Modification of Child Support for M
Father asserts that the Circuit Court erred by not retroactively modifying the child support for M to account for the fact that, under the terms of two court orders, Father had sole physical custody of M from March 17, 2019 to August 7, 2019 and shared physical custody from August 7 to June 6, 2022.
As noted above, a circuit court “may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” FL §12-104(b). Here, the record shows, and the Circuit Court found, that Father filed a motion for modification on August 26, 2019. However, that was not the first request that Father had filed concerning modification of his child support obligation with respect to M.
On January 25, 2019, Father had filed pro se a request for a hearing as to M on a court-provided form labeled “Request for Hearing or Proceeding.” That form provided check-off boxes for eleven types of “matters … at issue” for a petitioner to check off. Father checked the boxes for “custody” and “child support,” and requested an emergency hearing. His handwritten explanation of the need for an emergency hearing focused on M’s custody. On February 5, 2019, the court noted on Father’s petition “Request for a hearing granted.” The court heard the case on February 26, 2019. On March 27, 2019, the court ordered that M be placed in
Father’s custody pending further proceedings. In that order, the court “reserve[d] on addressing the outstanding issues of child support” and stated that it would address them at the hearing scheduled for April 25, 2019.
The court clerk’s Family Hearing Sheet for the April 25, 2019 hearing shows that testimony was taken and a hearing held that day and that the hearing was to resume on May 7, 2019. The hearing sheet form has a pre-printed box for “custody.” The clerk checked that box, wrote in a box for “child support,” and checked that box as well. The May 7, 2019 Family Hearing Sheet has the same entries on that section of the form, as does a hearing sheet for June 13, 2019. No transcripts of these hearings appear in the record available to this Court.
On August 7, 2019, the Circuit Court issued an order that awarded each parent 50% physical and legal custody of M until his high school graduation in June 2022 and set a schedule for his overnights and visits. The order states that the court had held hearings on April 25, May 7, and June 13, 2019, and that “due to the nature of the Request for an Emergency Hearing,” it had held that the hearings “were to be limited solely to deal with the custody of [M].…” The order did not address the “outstanding issues of child support” to which the March 27, 2019 order had referred.
On August 26, 2019, Father filed a new motion to modify the December 13, 2018 Child Support Order as to M. In it, he requested that his obligation be re-calculated retroactively to reflect the period when M lived with Father full-time (listed as beginning on December 28, 2018), or to his January 25, 2019 request for an emergency hearing, or to the February 26, 2019 Interim Order, or to the August 12, 2019 custody order.
Under the circumstances, we conclude that Father’s filing of the form hearing request on January 25, 2019, coupled with the court’s recognition that the request concerned child support as well as other issues, and undertaking to address it, met the filing requirement of FL §12-104(b) as to M.12 The record does not reflect an earlier request to modify child support as to J.13
We therefore remand the case to the Circuit Court to exercise its discretion as to whether to make its child support award for M retroactive to an earlier date that is not before January 25, 2019, the date of Father’s first filing.
b. Calculation of Child Support Based on Sons’ Overnights with Each Parent
Father argues that the Circuit Court “incorrectly input the number of overnights [on the SASI-CALC worksheets], resulting in an improper calculation of support payments.” Specifically, Father asserts that the applicable orders had neither accounted for the period during which M lived with him full-time nor reflected the court’s orders that set the number of Father’s overnights with both sons. Father’s request that we review the Circuit Court’s calculation on Sons’ overnights with him involves as a threshold matter the trial court’s interpretation and application of the Guidelines provisions on shared physical custody.
c. Application of the Appropriate Threshold for Shared Physical Custody As noted earlier, the applicable threshold for determination whether there was shared physical custody is whether Mother and Father
each had at least 35% of the overnights with a child. As also noted earlier, the Guidelines require a finding as to whether that threshold is met by the actual number of overnights; if it is not, the Guidelines give a circuit court some discretion to refer to the number of overnights awarded in its custody orders in determining whether to apply the shared physical custody formula. Under Paragraph 1 of the definition of “shared physical custody,” if the court determined that Father and Mother each kept M for more than 35% of the overnights, it would be required to apply the shared physical custody formula. Alternatively, if the court determined that one of the parents did not have M for the requisite number of overnights but had been awarded that number of overnights, the court had discretion to use the shared custody formula.
As best we can tell, the record is silent as to what method the Circuit Court used to determine the overnights entered on the worksheets for Sons and on what facts it based its computation of 273 overnights with Mother and 92 with Father.14
More to the point, it appears from the worksheets that the Circuit Court found that 35% threshold was not met in this case. The worksheets attached to the court’s May 15, 2023 order appear to indicate that the court found that Father had only slightly more than 25% of the overnights. However, the Guidelines applicable to cases filed before October 1, 2020, such as the case involving child support for M and J, did not give the court the discretion to lower the threshold to 25% without making the findings required by FL §12- 202(a)(v) for departures from the Guidelines.
The Circuit Court did not explain in its oral ruling how it determined the allocation of overnights in the worksheets. Father’s brief is of minimal assistance in this regard.15 In his brief, Father asserts that the “actual number of overnights” that should be attributed to him is 150 – which would exceed a 35% threshold as well as the 25% threshold that the Circuit Court seemed to be applying in the worksheets. In referring to the “actual number” of overnights, Father appears to be invoking the mandatory Paragraph 1 of the definition of “shared physical custody.” However, Father has not pointed to anything in the record or any material in the Record
Extract supporting an assertion that the actual experience of the family was that M spent 150 overnights with him. Rather, he relies on the number of overnights allocated to him in the consent custody order – which would be the Paragraph 2 route to finding shared physical custody – an approach within the discretion of the Circuit Court. To the extent that Father is relying solely on the language of the custody order without regard to actual experience, the Circuit Court has discretion to find that the threshold is met, but is not required to do so.16
d. Disposition
Our resolution of this issue necessitates a remand for the re-calculation of Father’s and Mother’s respective child support obligations for M and J, subject to the constraints placed by FL §12-104 and the case law relevant to the retroactive modification of a child support award. See, e.g., Corapcioglu v. Roosevelt, 170 Md. App. 572, 612-13 (2006) (concerning the trial court’s discretion to order recoupment for “overpayment” when a child support order is reversed on appeal).
III
CONCLUSION
For reasons explained above, we hold that:
The Circuit Court neither erred legally nor abused its discretion when it found Father in contempt for failure to pay J’s extraordinary medical expenses.
It appears that the Circuit Court based its calculation of child support for Sons on the current definition of shared physical custody rather than the definition that applies to this nine-year old case. Also, the court may have believed that it lacked discretion to set an earlier date for its order modifying child support that would coincide with Father’s initial request for modification. Finally, it is not clear how the court derived the number of overnights used in the calculations related to shared physical custody. Accordingly, we will vacate and remand the child support orders for Sons for the Circuit Court to exercise its discretion under the applicable Guidelines and in accordance with the statutory and case law on the retroactive modification of a child support award.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED IN PART AND VACATED IN PART. CONTEMPT ORDER AFFIRMED; CHILD SUPPORT ORDER VACATED AND REMANDED FOR THE CIRCUIT COURT TO EXERCISE ITS DISCRETION UNDER THE LAW AS DESCRIBED IN THIS OPINION. COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
FOOTNOTES
1 We have derived these issues from the legal arguments made in Father’s brief. Neither that brief nor the informal response submitted by Mother explicitly identifies the issues on appeal.
Although Father is represented by counsel in this appeal, his brief omits a statement of the questions presented, contrary to Maryland Rule 8-504(a)(3). That brief also omits a table of contents, a table of citations, and cover page applicable to this case – contrary to Maryland Rule 8-503(c). Instead, it contains tables that apparently belong to a brief in a different case, and its cover page lists the wrong circuit court and presiding judge. The record extract that accompanies Father’s brief omits the Circuit Court’s docket entries and is mostly unpaginated, contrary to Maryland Rule 8-501.
Mother, appearing pro se, has filed a document opposing Father’s appeal. Mother’s response largely does not address Father’s legal arguments, but rather critiques the adequacy of the record extract filed by Father and refers to certain factual disputes between the parties that do not appear to be related directly to Father’s legal arguments.
This Court may dismiss an appeal when the brief or record extract does not comply with the rules. Maryland Rule 8-602(c)(6); see also Rule 8-504(c) (applicable to non- compliance with Rule 8-504). Here, addressing the merits best serves the paramount interest of the parties’ children. Tannehill v. Tannehill, 88 Md. App. 4, 10-11 (1991) (admonishing counsel for non-compliance with appellate rules, but deciding not to dismiss appeal for that reason “because this case involves child support, it is the children who would suffer, rather than the parties, if this appeal were dismissed”).
2 In 2019, the definition of “extraordinary medical expenses” in FL §12-201(g)(1) was amended to increase the threshold amount to $250 with respect to expenses incurred on or after the effective date of the amendment – October 1, 2019. Chapter 436, §§2, 3, Laws of Maryland 2019. That increase does not affect the resolution of the issue raised by Father in this case.
3 The Circuit Court had issued a similarly-worded order in 2016. At that time, it required Father to pay 64% of “uncovered medical bills … in excess of $100.00.”
4 It is unclear whether Father is arguing in this Court that the expenses were not “medical.” In that event, we would defer to the Circuit Court’s finding of fact that the treatments were “medically necessary.” The evidence before the court –providers’ bills and Mother’s testimony that they fell within her health insurance coverage – supported that finding.
5 For a description of the various types of contempt, see, e.g., Bryant v. Howard Cnty. Dep’t of Soc. Servs. ex rel. Costley, 387 Md. 30, 46 (2005) (“[C]ontempt could be criminal or civil and it could be direct or constructive, leaving the prospect of a direct criminal contempt, a direct civil contempt, a constructive criminal contempt, and a constructive civil contempt.”). The contempt found in this case falls into the category of a constructive civil contempt.
6 The schedule in the Guidelines does not apply when the parents’ combined adjusted actual income exceeds the highest level listed there. FL §12-204(d). Mother’s and Father’s combined income fell within the amounts to which the schedule applies, so that provision is not relevant here.
7 Since 2016, this definition has been recodified, first as FL §12-201(n) and more recently as FL §12-201(o), where it is located today. Apart from the 2020 amendment that reduced the threshold percentage of overnights to 25%, the wording and substance of the definition has remained the same.
8 See Harvey v. Marshall, 389 Md. 243, 264-68 (2005) (explaining that some of the limitations on modification of child support awards were intended to conform Maryland law to a federal law that conditioned federal funding on a state’s adoption of laws to limit some courts’ practice of reducing or forgiving arrearages).
9 SASI-CALC is a software application that generates a “Recommended Child Support Order” by applying the calculations required by the Guidelines to the numbers that the user enters on a worksheet. The form has lines for items such as each parent’s income, the child’s overnights with each parent, and expenses as listed in various provisions of the Guidelines.
10 As best we can tell, the dates that appear on Worksheets #1, 2, and 3 for M and J correspond to the following events: August 26, 2019 is the date on which Father filed a motion to modify child support that the Circuit Court identified as his first request for modification; September 28, 2021 was a date of a hearing conducted by the court on the issue; and June 6, 2022 was the date of M’s high school graduation, when the parents’ support obligation with respect to him concluded.
11 As indicated above, each worksheet also includes a separate page calculating Father’s support obligation with respect to Daughter. Those calculations, which are not based on shared physical custody, are not at issue in this appeal.
12 At the same time, the Circuit Court’s reliance on the August 26, 2019 filing date is understandable. The docket does not describe the petition for an emergency hearing as a request for modification of child support. We do not express an opinion on whether checking a box on a hearing form suffices by itself, without other circumstances such as those recounted above, to establish the date from which a child support modification may run.
13 The Circuit Court’s May 15, 2023 child support order refers generally to a request on August 26, 2019 as to Sons. Father’s motion on that date requests relief regarding visitation for both Sons, and child support modification only as to M.
14 Earlier, on December 13, 2018, the Circuit Court had issued in Sons’ case a Child Support Order that referred to an attached SASI-CALC worksheet for them. The worksheet was calculated on a shared custody basis, but it showed that Sons spent 58.9% of their time, or 215 nights, with Mother and 41.1%, or 150 nights, with Father, percentages that met the then-applicable threshold for shared custody.
15 Mother’s pro se response to Father’s brief does not address this question.
16 As noted, Father also contends that the Circuit Court, on several lines of the worksheets that accompanied its May 2023 order, erroneously credited Mother with certain payments that had been made by Father. The alleged error is not apparent to us and Father has not pointed to any facts in the Record Extract nor, as best we can tell, in the record generally that support that argument.
