TheDailyRecord.com/Maryland-Family-Law February 2015 Vol. XXVII, No. 2 A Coordinated Approach

How to resolve conflicts without going to court

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Patricia Cummings, Aza Butler and Paul Reinstein Table of Contents 3 Guest column The single biggest factor in financial plan- ning is how significant the emotional complexity is Vol. XXVII, No. 2 for people experiencing all of the changes inherent in divorce. TheDailyRecord.com/Maryland-Family-Law 4 Cover story: A coordinated approach 11 East Saratoga Street Professionals work with parents on conflict resolu- , Maryland 21202 tion skills, with the goal of teaching them to resolve Main Number: 443.524.8100 disputes based on what’s best for their children. Main Fax: 410.752.2894 7 From the courts Suzanne E. Fischer-Huettner, Publisher The Court of Special Appeals said a Baltimore judge erred in ruling, during the custody hearing, that the Barbara Grzincic, Esq., Editor Special Immigrant Juvenile findings would require a separate guardianship petition and hearing. Tracy Bumba, Audience Development 8 Legislative update A state Senate committee heard testimony for and Director against a bill that would prevent accused rapists from claiming parental rights over children con- Rickie Roberts, Advertising Director ceived during an alleged sexual assault.

Erin Cunningham, Special Products Editor 9 Child advocacy Children and young adults currently in foster care are among the most at-risk individuals in society. Maximilian Franz, Senior Photographer The early warning signs of problems often appear in the schoolhouse in the form of academic and/ Alissa Gulin, Danny Jacobs, or behavioral problems. Steve Lash, Esq. and Lauren Kirkwood 10 Monthly Memo Contributing Writers Del. Kathleen Dumais leaps to the defense of her fel- low family-law practitioners ... Judge Wade McCree Maryland Update (USPS #014-143), published monthly, is a Jr. is immune from suit after affair with woman review of events as they affect the practice of domestic relations in law whose case he presided over... Private investigators in the state of Maryland published by The Daily Record, 11 E. Saratoga Street, Baltimore, MD, 21202. ©2015 The Daily Record Company, all rights find more business with online snooping reserved. No portion of this publication may be reproduced in any form without the express written permission of the publisher. Annual subscription price $385 (MD residents please add 6% sales tax). Family law digest Periodicals postage paid at Baltimore, MD. Postmaster, send address 11 change to: The Daily Record, 11 E. Saratoga Street, Baltimore, MD 21202. The laws of every may differ, and the facts are capable of Full Text Reported Opinions many interpretations. The contents of this publication are not to be 14 construed as legal advice and should not be acted upon without consult- ing an attorney. Letters selected for publication are subject to editing. Letters from litigants in pending cases or their representatives will not be Full Text Unreported Opinions accepted for publication until after their cases have been finally decided. 20 Address letters and comments to Editor, Maryland Family Law Update, 11 E. Saratoga Street, Baltimore, MD 21202. Maryland Family Law Update and The Daily Record Company are owned by The Dolan Company. Case index 2 Md. Fam. L.U. ___ (2015) 122 123 Topic index

2 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Guest column Divorce financial planning: What’s the difference? BY DORIE FAIN around collecting them. n What are the passwords? In I’ve often been asked by financial a world that is increasingly online, planning colleagues as well as legal login information is required to ac- and tax professionals to describe the cess account records. Keep a list of difference between general financial usernames and passwords for all key planning and the specifics related to online accounts as well as any safe divorce financial planning. combinations and locations of safe These differences are something deposit box keys. that I have given great thought to as n How much do we spend an- I see more of the nuances relating nually? Women especially experi- to divorce financial planning — nu- ence significant anxiety about what ances that can be missed under the they can afford when their circum- basic principles of financial plan- stances change. Having a general ning. idea of the household budget items The single biggest factor in di- ‘Need to know’ financial facts and the associated annual expenses vorce financial planning is how sig- For a client, knowing what they will create a solid starting point for nificant the emotional complexity need, what they have and where it understanding how much money is is for people experiencing all of the will come from explains the divorce required on a yearly and monthly changes inherent in divorce. In the financial planning process in the sim- basis to provide for herself and fam- midst of profound upheaval in their plest terms. This is even more daunt- ily. ing to the person who hasn’t been lives, those going through the pro- n Where is the money? Assets cess are faced with making financial involved with the finances through- can live in many places: financial decisions that have a long-lasting im- out the marriage and often hasn’t institutions, safes, and safe deposit pact and often can’t be changed as had access to this type of informa- boxes or even under the mattress. time goes on. tion. Particularly at the beginning of Know the locations, names of institu- The emotional aspect cannot be the process, people often ask, “What tions, contact people, account num- underestimated. Much of the role are the ‘need to know’ facts about bers, account titles and approximate that a divorce financial planner my financial life?” values. n Similar to the serves for clients is to help them Who do I call? n How much are our valuables list parents keep in case of emer- manage the range of emotions they worth? Art, collections, jewelry, feel, while remaining focused on gency (cell phone numbers, pediatri- precious metals ... do you have sig- providing reliable information from cian, fire, police) an updated list of nificant assets other than cash or fi- which they can make sound deci- key advisors and their contact infor- nancial investments that need to be sions. mation including attorney, CPA, in- taken into consideration. A good deal of the emphasis is surance agent, investment managers, Attorneys who recognize the full on helping clients adjust to their and other key advisors. range of issues their clients are fac- n new reality post-divorce — and the Where are the documents? ing in divorce, not only in the area financial framework helps to shape Having a roadmap of where all of of legal strategy, are far more likely this picture. A spouse who, for exam- the financial and legal documents to secure a successful outcome — ple, wants to keep the family home are goes a long way when it’s time one that goes beyond the settlement may reconsider when presented with to make changes or new decisions or judgment to extend over the long the true cost of doing so — not only about finances. Are the documents term of their clients’ lives. in dollars and cents, but in missed filed in hard-copy form in the house, opportunities to accomplish other online, at the advisor’s office or Dorie Fain, CFP® is the founder and goals. somewhere else? Everything should CEO of &Wealth, a Baltimore based Without bringing together the be spelled out on paper. Generally, boutique financial advisory firm facts and figures with the human it is better to keep these documents dedicated to providing smart financial side of what people need, our work in a central location, clearly marked guidance for women who are is not complete. so time isn’t wasted having to run recreating their lives.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 3 Cover story A coordinated approach Teaching parents to resolve conflicts without going to court

maximilian franz Paul Reinstein, center, says he asks his clients, ‘Do you want to pay me $500 an hour to talk about your child having hotdogs for dinner, or do you want to split the cost with your ex and go to a parent coordinator to resolve these issues?’ He is flanked by his fellow panelists at the MSBA’s Family Law University in Annapolis, mediator Aza Butler and Patricia Cummings, LCSW.

By Lauren Kirkwood those sorts of things are less significant fessionals such as licensed social work- [email protected] from a legal perspective, but are still im- ers, attorneys or psychologists work portant to the parents,” said Paul Rein- with parents on conflict resolution n a high-conflict divorce case stein, a family law attorney and partner skills, with the goal of teaching them to involving a child custody dis- at the Bowie firm Reinstein, Glackin, resolve disputes based on what’s best pute, attorneys for both parents Patterson & Herriott LLC. for their children, instead of focusing may deal with phone call after Luckily, Reinstein said, there’s a on winning their case. phone call regarding matters better way to handle these types of is- The practice was the subject of a that seem, to them, inconse- sues — both for the attorneys and for session at the Maryland State As- Iquential. the parents involved. The only problem sociation’s Family Law University CLE “What mom’s feeding Johnny for is that not enough people know enough event in Annapolis in early February. dinner, and the sports gear not coming to take advantage of it. Adopted in 2011, Maryland Rule back and forth from house to house — During parenting coordination, pro- of Procedure 9-205.2 allows a court

4 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law What they can and can’t do (7) in response to a subpoena issued at the request of a party or an attorney for a child of the parties, or upon Added in 2011, Rule 9-205.2 sets forth the action of the court pursuant to Rule 2-514 or 5-614, pro- standards for qualifying, training, certifying, and duce documents and testify in the action as a fact witness; using court-appointed parenting coordinators. It also (8) if concerned that a party or child is in imminent lists what the coordinator can and can’t do: physical or emotional danger, communicate with the court or court personnel to request an immediate hear- (g) Services Permitted ing; and As appropriate, a parenting coordinator may: (9) decide post-judgment disputes by making minor, (1) if there is no operative custody and visitation temporary modifications to child access provisions or- order, work with the parties to develop an agreed plan dered by the court if (A) the judgment or post-judgment for custody and visitation; order of the court authorizes such decision making, and (2) if there is an operative custody and visitation order, (B) the parties have agreed in writing or on the record assist the parties in amicably resolving disputes about the that the post-judgment parenting coordinator may do so. interpretation of and compliance with the order and in making any joint recommendations to the court for any (h) Services Not Permitted changes to the order; A parenting coordinator may not: (3) educate the parties about making and implement- (1) except as permitted by subsections (g)(7) and (8) ing decisions that are in the best interest of the child; of this Rule, communicate orally or in writing with the (4) assist the parties in developing guidelines for ap- court or any court personnel regarding the substance of propriate communication between them; the action; (5) suggest resources to assist the parties; (2) testify in the action as an expert witness; or (6) assist the parties in modifying patterns of behav- (3) except for decision making by a post-judgment ior and in developing parenting strategies to manage and parenting coordinator authorized pursuant to subsection reduce opportunities for conflict in order to reduce the (g)(9) of this Rule, make parenting decisions on behalf impact of any conflict upon their child; of the parties. to appoint a parenting coordinator in high-conflict cases. While the coordi- nator may be authorized in some cases to make “minor, temporary modifica- tions” to access arrangements, such as one-time changes in the time or place for transferring the child from one par- ent to the other, the coordinator may not make “parenting decisions” that would, for example, shift physical cus- tody from one parent to the other. The family support services coordi- nator of the for each juris- diction maintains a list of professionals who are qualified to serve as parenting coordinators. Before judgment is en- tered, the court can appoint a coordina- tor from this list either on its own or at the request of one or both parties. After the custody award, consent of both par- ties is required. While it’s an effective tool for par- ties in highly litigious cases, Reinstein said, too many attorneys and judges in Maryland aren’t aware of it.

See Coordinators page 6

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 5 Coordinators: Continued from page 5 No more instant no’s Reinstein was joined on the MSBA session’s panel by Patricia Cummings, a licensed clinical social worker, and Aza Butler, a Towson-based mediator, both of whom serve as parenting coordina- tors (also called parent coordinators). In a custody case, the role of a par- ent coordinator is not to make parent- ing decisions, the panelists said, but rather to facilitate healthy communi- cation between parties who seem to be locked in battle, and to work with the parents to resolve disputes. “In many cases, you’re dealing with children that have really special needs, maybe psychological or medi- cal, or a learning disability,” Reinstein said. “When you’ve got kids like that, you need parents to really be on the Maximilian Franz Patricia Cummings, right, gestures as she talks about the challenges facing parent same page with coordinating medical coordinators at MSBA’s Family Law University, while Paul Reinstein and Aza Butler look on. appointments, psychological appoint- ments, medication.” of taking a step back and reflecting on each circuit court develops and adopts And in order to help both parents what to say before responding to an ac- maximum fee schedules for parenting get on the same page, Cummings said, cusation or insult. coordinators, taking into account the the coordinator has to understand the “Rather than reacting instantly, I availability of qualified individuals will- reality of the family’s situation, which make them say the words: ‘Let me think ing to provide parenting coordination can be difficult when both sides are about it.’ There are no more instant services and the ability of litigants to highly defensive and unwilling to take no’s,” Butler said. “You’d be amazed pay. The Montgomery County Circuit the blame. at how vulnerable some of these peo- Court, for example, lists an approved “I’m not a magician; I don’t have a ple are. They have no self-protection range of $100 to $250 an hour, or up to magic wand,” she said. “They have to against the other parent.” $500 an hour in an “extraordinary situ- make the choices. You have parents While primarily aimed at helping ation” if approved by the Parent Coor- that are very focused on, ‘everybody divorcing couples figure out how to dinator Committee. else is wrong and I’m right,’ and you co-parent their children, parent coordi- The main beneficiary in any parent have to work with that.” nation also has practical advantages for coordination case should be the chil- But talking to the children them- family lawyers, Reinstein said. dren, all three panelists said. selves is usually the best way to start, “It’s an enormous benefit to attor- “It really is all about the children she said. neys because it reduces frustration,” — it is a child-focused job,” Cummings “There’s nobody that can tell me the he said. “I’ll say, do you want to pay me said. “In my eyes, the clients are the story better than the child, and what $500 an hour to talk about your child children in terms of how are we going they disclose to me is between me and having hotdogs for dinner, or do you to make their lives better.” them, unless they want me to speak to want to split the cost with your ex and Even if it’s only possible for the par- the parents about various things,” Cum- go to a parent coordinator to resolve enting coordinator in a given case to get mings said. these issues in the context of a real dis- through to one parent, that’s better than As an experienced mediator, But- cussion about it?” neither parent having those conflict res- ler said, she has learned to zero-in on According to the Maryland Rule, the olution skills, Butler said, and it often parents’ physical reactions to their ex- court that appoints the parent coordi- results in a visible improvement for the spouse’s words — a biting of the lip or nator also designates how the coordi- child. a slightly flushed face when a certain nator will be paid, and by whom. In a “They’ve given their children a 50 subject is mentioned, such as the ex’s case where both parents have the finan- percent chance of seeing successful new husband or wife, can illuminate cial means to pay, the cost of the par- normal interaction if just one of them more about the relationship than what ent coordinator may be split between does it, because now they have a role the person is actually saying, she said. them, but the court has the power to model that isn’t terrified of conflict,” When advising the parents, Butler order either or both parties to pay. she said. “They see conflict doesn’t said, she emphasizes the importance The county administrative judge of mean hatred.”

6 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law From the courts One less step for immigrant kids Custody judge erred in requiring 2nd petition, hearing on SIJ factors

BY STEVE LASH case to circuit court for SIJ review. in February 2013 and Simbaina filed Contributing writer “It is clear from cases in other ju- a counter claim the following month risdictions and from relevant provi- for divorce and custody, seeking In cases involving custody of sions of Maryland law that a circuit the court’s finding that “it is not in an undocumented immigrant child, court hearing an ordinary custody Nathaly’s best interest to return to Maryland circuit courts must, upon proceeding can enter factual find- her home country and reunification request, make factual findings on ings relating to SIJ status without with [Bunay] is not viable due to whether the child should qualify as requiring a separate filing, such as a abuse, neglect or abandonment.” a “Special Immigrant Juvenile” — a petition for guardianship.” At an April 2014 hearing, Judge critical rung on the ladder toward Simbaina’s attorney, Jonathan Melissa Phinn granted Simbaina’s lawful permanent resident status, a S. Greene, praised the decision as unopposed request for custody but state appeals court has decided. making it easier not only for lawyers balked when the mother asked for The Court of Special Appeals but for self-represented litigants to the SIJ factual findings. said a Baltimore judge erred in pursue SIJ determinations for un- According to the appellate ruling, during the custody hearing, documented immigrant children court’s Feb. 3 opinion, the judge that the SIJ findings would require without the need to file additional told Simbaina that “there is a plead- a separate guardianship petition and motions in a separate proceeding. ing that needs to be filed with the hearing. “This decision is critical for court concerning any immigration The federal Immigration and immigrant children to be able to issues” and that the pleading in- Nationality Act and related regula- pursue legal rights created by Con- cludes a “petition for some type of tions specify that factual determina- gress,” said Greene, a Columbia solo guardianship.” tions regarding a child’s SIJ status practitioner. “This is the first re- Two days later, the court granted be made by state “juvenile courts,” ported decision from Maryland’s ap- Simbaina and Bunay an absolute di- which include courts where custody pellate courts recognizing the right vorce but made no factual finding is determined, the Court of Special to pursue this relief. Immigrant chil- on Nathaly’s SIJ status. Appeals said. dren are now guaranteed greater op- Simbaina then asked the court to In the case at hand, Maria Sim- portunities in the Maryland courts.” amend the judgment and include SIJ baina was in Baltimore City Circuit Federal law requires undocu- factual findings. The court rejected Court to gain full legal and physical mented immigrant children to ob- the request without a hearing on custody of her daughter, Nathaly, tain a state juvenile court order that July 2, 2014. an Ecuadorian citizen. Simbaina’s they qualify for SIJ status based on Simbaina then sought review in ex-husband, Segundo Bunay, had factors including that it is not in the Court of Special Appeals on the not opposed the motion, and the their best interest to return to their question of whether a circuit court judge granted it before denying Sim- home country and that they cannot must make SIJ factual findings upon baina’s request for factual findings be reunited with a parent because request during custody proceedings. as to Nathaly’s SIJ status. of abuse, abandonment or neglect. Bunay, though the named appel- “The circuit court accepted the The court order enables the lee, did not challenge Simbaina’s custody arrangement and awarded child to file for SIJ status with U.S. appeal. Simbaina sole custody of Nathaly, Citizenship and Immigration Ser- Zarnoch was joined in the opin- thus making a decision about her vices. A child with SIJ status can ion by Judges Kevin F. Arthur and ‘custody and care,’” Judge Robert then apply for lawful permanent res- Andrew L. Sonner, a retired jurist A. Zarnoch wrote for the Court of ident status, according to the Court sitting by special assignment. Special Appeals. of Special Appeals’ opinion. The case is Simbaina v. Bunay, “The federal government del- Nathaly, who was born in 2000, CSA No. 1092, Sept. Term 2014. The egated the powers to make initial lived with her maternal grandpar- reported opinion is available on SIJ factual findings to state juvenile ents in Ecuador until she moved to the court’s website and will be re- courts because of the expertise that Baltimore in 2010 to live with her printed in full in the March edition these courts have in issues relating parents, who married that year. of Maryland Family Law Update. to the care and custody of juve- Simbaina and Bunay separated in niles,” Zarnoch added, returning the April 2012. Bunay filed for custody [email protected]

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 7 Legislative update No consent, no parental rights? BY NATE RABNER allow the woman “to petition the court 30 organizations. She emphasized the Capital News Service to demonstrate that the man should broad spectrum of groups that support have no rights in a case like that.” the act, including the Maryland Catho- ANNAPOLIS — A state Senate The bill outlines a “clear and con- lic Conference. committee heard testimony Feb. 5 for vincing evidence” standard, common “Getting those two organizations on and against a bill that would prevent in state family law, for finding that the the same page is probably a fantastic accused rapists from claiming parental alleged rape occurred. additional reason to be able to support rights over children conceived during The state public defender’s office this bill,” Finkelstein said. an alleged sexual assault. opposes the proposed law because it The Maryland Judicial Conference, Under the Rape Survivor Family does not require a criminal rape con- which represents the state judiciary, is- Protection Act, sponsored by state Sen- viction, which carries higher standards sued a memorandum opposing the bill ator Jamin B. ‘Jamie’ Raskin, D-Mont- to prove guilt. because it would allow a court to order gomery, a court could declare that a “Both the standard of proof and the the former father to pay child support. man is not the legal father of a child he standard of evidence that’s being pro- “This is contrary to Maryland law conceived from an alleged rape. posed by this bill is less than what is re- regarding the rights and obligations of Maryland law currently allows quired in our criminal justice system,” parents,” the memorandum said. a man accused of fathering a child said Ricardo Flores, government rela- The conference also mentioned through rape to weigh in on custody tions director for the public defender’s that the act “may present due process and adoption decisions, including po- office. “It basically codifies hearsay.” issues” with regard to notifying the tentially preventing the mother from Flores said prior statements made father. Twenty-nine senators joined putting that child up for adoption, pro- by the child’s mother regarding the Raskin as co-sponsors of the bill, but ponents of the bill said. circumstances of conception wouldn’t previous iterations of the legislation “I think if you ask 15 people on the be allowed as evidence in criminal pro- have failed in recent years. In the 2013 street what they think the law is, most ceedings. The bill would allow courts and 2014 sessions, a bill passed through of them think it’s absolutely outra- to consider these statements in what the Senate, but House of Delegates ver- geous that a rapist would have paren- Raskin described as a concession to sions with more than 70 co-sponsors tal rights,” said Lisae Jordan, legislative “skeptics” who oppose the legislation. died in the House Judiciary Committee counsel for the Maryland Coalition Just four of 34 states to consider without being voted on. Against Sexual Assault, who testified this issue have found that a rape con- “We’re hopeful with so many new at the committee meeting. viction is not necessary for a court to members in the House of Delegates, More than a dozen state groups lent revoke parental rights, Flores said. that perhaps they’ll be able to encour- their voices to Raskin’s bill, in person Proponents of the bill said the “clear age a vote and put some more pressure or in writing, including women’s ad- and convincing” standard is consistent to have the issue resolved,” Jordan said. vocacy groups, Catholic and Jewish with other family law cases and more House Judiciary Committee Chair groups, family planning organizations, beneficial to the child compared to the Joseph Vallario declined to comment social workers, the state attorney gen- lengthy criminal conviction process. about the bill. eral’s office, the Governor’s Office of The bill would require an initial There were 1,169 reported rapes Crime Control and Prevention, the court hearing within 30 days of the in Maryland in 2013, according to the state Department of Health and Men- mother’s request to terminate paternal Governor’s Office of Crime Control and tal Hygiene and the office of Baltimore rights. Prevention. Mayor Stephanie Rawlings-Blake. “Many of the reasons that we ter- John Greene, an Annapolis adop- Proponents said the act would pro- minate parental rights already involve tion lawyer who said he has been tect a rape survivor and her child by ex- crimes” such as child abuse and ne- involved with about 1,400 adoption cluding her accused rapist from family glect, Jordan said — and those cases proceedings in 25 years of practice, decision-making. don’t require a conviction. “We should said rape “fairly frequently” results in “Right now we don’t distinguish not subject rape victims to a higher a birth. between men who [beget] the ordinary level of proof,” she said. “There are situations — and I’ve way and men who [beget] through the Jodi Finkelstein, executive direc- seen many over the years — where course of rape,” Raskin told the com- tor of NARAL Pro-Choice Maryland, people have been impregnated through mittee. “There have been cases where testified as a representative of NARAL rape, and the law in Maryland is that men have intervened ... to block an and the Maryland Legislative Agenda adoption,” he said, and the bill would for Women, which includes more than See Consent page 9

8 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Child advocacy Improving educational outcomes for foster youth BY RONALD GROVE nections”). the Elementary and Secondary Educa- Fostering Connections requires tion Act (as amended by the No Child Children and young adults currently child-welfare agencies to develop a Left Behind Act) specifically obligate in foster care are among the most at- school stability plan as part of each them to focus attention on closing the risk individuals in society. The early child’s social service case plan. More- achievement gap between high and low warning signs of problems often ap- over, Fostering Connections requires performing students. pear in the schoolhouse, in the form of that, when making a placement de- In Maryland, engaging the Depart- academic and/or behavioral problems. cision, a state or local child welfare ment of Education to partner with the Compared to their peers, foster chil- agency take into account the appro- DSS to provide additional educational dren have lower scores on standardized priateness of the child’s present edu- support to children in foster care has tests and higher tardiness, absentee- cational setting and the proximity of been challenging. Court oversight of ism, truancy, and dropout rates. And the placement option to the school in that communication and decision-mak- research shows that adults who were which the child is enrolled at the time ing, with the Educational Stability Act, formerly in foster care are more likely of placement. has just begun. than the general population to become Finally, Fostering Connections spe- In an innovative program enacted homeless, incarcerated, or reliant on cifically mandates that a child’s case in , an educational liaison is as- state sponsored support. plan include assurances that the child signed to each youth in foster care ex- Michael is a 17-year-old student welfare agency has “coordinated” with periencing educational disruption, both who is repeating the 9th grade for the local educational agencies to ensure to support the youth and to develop an third time. He has been in foster care that a child remains in his school at the individualized graduation plan. Schools for approximately 10 years; he is cur- time of placement, or, if this is not in must adopt a credit-recognition policy rently residing in his fifth foster place- the child’s best interest, that the child is that ensures that partial credits count ment and has attended at least as many immediately and appropriately enrolled towards graduation. Furthermore, it schools. in a new school with all school records. provides access to credit recovery and Michael has a history of tardiness In Maryland, juvenile courts are remedial programs as well as access to and poor school attendance. He does required to make a finding whether a state-issued diploma for students who not like school and has begun to ex- the local Department of Social Ser- meet state graduation standards. press that he may drop out and attempt vices made reasonable efforts to meet Michael is not unlike many young to find employment. When challenged the needs of the child, “including the people currently in foster care. When on the viability of this plan, Michael ad- child’s health, education, safety and foster youth change schools, tutoring, mits it is probably not a good idea — preparation for independence.” Md. counseling and close assessment of the but he does not believe continuing on Code Ann., Cts. & Jud. Proc. §3-816.1(b) youth’s school progress should auto- his current academic course is a practi- (2)(ii). Further, with the passage of the matically be provided to identify spe- cal alternative either. He begrudgingly Educationally Stability Act in 2014, cific educational needs and to support acknowledges that he does not know the juvenile court is required to make the youth’s success in school. Although how to proceed and would like more specific inquiries concerning a foster this is a higher level of service that both assistance from the Department of So- child’s educational progress. Md. Code the Department of Social Services and cial Services toward obtaining his high Ann., Cts. & Jud. Proc. §3-816.4. the Department of Education must pro- school diploma. Education agencies also have an vide, it will significantly support better Federal law requires that state agen- essential stake in improving the edu- educational outcomes for youth in fos- cies educate children in foster care. cational outcomes of children in care ter care. This is most evident in the Fostering — not only because they are charged Connections to Success and Increasing with the duty of educating all school- Ronald Grove is a staff attorney Adoptions Act of 2008 (“Fostering Con- aged students, but because laws like at Maryland Legal Aid. Consent: Continued from page 8 that rapist has the same rights to make said Greene, who testified at the senate raped and want to make the best deci- a decision as to whether an adoption committee hearing. “And that’s just ap- sion for themselves, and also for that should happen as the biological mom,” palling to those people who have been child.”

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 9 Monthly Memo

Dumais on defense: — did not amount to a deprivation of due process under long- ‘Not in this for the money’ standing Supreme Court precedent. Del. Kathleen Dumais may have been an invited guest of The 6th Circuit stopped just short of pushing King to file the Senate Judicial Proceedings Committee on Jan. 29, but the cert petition, saying that, while it was bound by Supreme that didn’t stop her from leaping to the defense of her fel- Court precedent, “whether judges should receive judicial im- low family-law practitioners when a hearing on custody de- munity for all judicial acts is a question not free from doubt.” cision-making factors veered off onto the topic of litigation The Supreme Court denied King’s petition without com- costs in custody cases. ment. Sen. Jim Brochin, D-Baltimore County , voiced concern with the expense of child custody proceedings, saying his Spy now or forever hold your peace constituents have told him they’ve had to dip into savings to Think the deluge of personal information online has put pay their attorneys and that “it doesn’t take long for a bill to private investigators out of business? Think again. According hit six digits,” Lash reported. to no less a business authority than the Wall Street Journal, Divorced parents are wondering, “What happened to my background checks for “deal-breaking secrets and habits” money and what happened to my kid’s college account?” have surged in the last few years as the “Web Sends Lovers Brochin added. Flocking to Private Eyes to Find Out Truth.” Dumais responded that greater use of , arbitra- It turns out that a little knowledge is not just a danger- tion and collaborative resolution would reduce much of the ous thing; it’s a downright addictive thing: “Investigators … expense of litigation. say the uptick in business reflects a world in which a person But she also defended herself and other family-law prac- can divine the outline of another’s life with a simple Google titioners against what she called “spurious” accusations that search. The Internet, they say, is like a gateway drug to pro- they deliberately file motions and drag out litigation to in- fessional snooping,” author Joe Palazzolo writes. crease their fees. Census data show the industry doubled in revenue be- “Most of the lawyers and certainly me are not in this tween 2002 and 2012, going from $2.6 million to $5.2 million, to make money,” said Dumais, of Ethridge, Quinn, Kemp, the article says. McAuliffe, Rowan & Hartinger in Rockville. “I’m in this to People are also calling in the sleuths a whole lot earlier, help people. I practice in this area because I make a differ- too, hoping to find out whether that online dating-site profile ence.” is in the ballpark of the truth — or at least on the same side of the Mississippi — before it’s too late, Palazzolo writes. Dad can’t sue child-support judge Sounds like a good time to brush up on your prenup skills. for sleeping with child’s mother A judge who had an affair with a woman while handling Mark your calendar the felony child-support — March 4: March forth to the County Courts Building case she brought against in Towson for the third installment of Family Law Litigation the father of her child is im- 101, an evening series presented by the Baltimore County Bar mune from suit. Association’s Family Law and Young Lawyers’ Committee. The Supreme Court on The March session, “Trying a Marital Property Case,” fea- Jan. 26 rejected the cert pe- tures William P. “Sam” Englehart and Judge Michael J. Finif- tition by the father, Robert ter. On April 1, Kristine K. Howanski and Judge Nancy M. King, leaving in place this Purpura present “Trying a Custody Case: Tips & Pointers.” summer’s decision by the The 90-minute sessions start at 5:00 and cost $10-$20 per ses- 6th U.S. Circuit Court of sion. Register online at: www.bcba.org Appeals. — Save the date: On April 9, the MSBA presents “47 Judge Wade McCree Things Every Mediator and Collaborative Professional Jr.’s affair with Geniene Should Know,” a day-long training event presented by inter- La’Shay Mott cost him his national trainer Forrest “Woody” Mosten. That’s followed by seat on the bench and a a dinner featuring Judge Lynne A. Battaglia as speaker and chance to run for reelec- the presentation of the Bell Award by retired Chief Judge ASSOCIATED PRESS Robert M. Bell. For details or to register, go to: http://www. tion. However, the 6th Judge Wade McCree Jr. Circuit found McCree had msba.org/events/adr/47things.aspx judicial immunity for the actions he took that involved King directly, while his non-judicial acts — like sleeping with Mott Have an item for Monthly Memo? Email me at in his chambers and discussing McCree’s sentence with her [email protected] or follow me @bgrz

10 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Family Law Digest

The full-text opinions that follow are required to do so. Page 73 printed in chronological order by court and status. Use this Topical digest or the indexes CHILD SUPPORT: MODIFICATION: RES JUDICATA at the back of this issue to find those of most interest to you. Margot R. Proctor v. James M. Proctor CSA No. 2025, Sept. Term 2013. Unreported. Opinion by Woodward, J. Filed Dec. 8, 2014. REPORTED OPINIONS BY SUBJECT Appeal from Montgomery County. Affirmed. TDR #14-1208-03, 15 pages. Mother’s second petition to modify child support was VISITATION: ABUSE OR NEGLECT: barred by res judicata, and the court properly dismissed PREPONDERANCE OF EVIDENCE STANDARD it without a hearing and awarded attorneys’ fees to father, where the first petition had been denied by an Michael Gerald D. v. Roseann B. order filed just 33 days earlier, the second petition was CSA No. 0047, Sept. Term 2014. Reported. identical to the first and did not claim any material change Opinion by Krauser, C.J. Filed Dec. 17, 2014. in circumstances since the first petition’s denial, and Appeal from Anne Arundel County. Affirmed. mother’s appeal of the denial was pending. Page 38 TDR #14-1217-02, 21 pages. In determining whether there are “reasonable grounds to believe” abuse or neglect has occurred for purposes CHILD SUPPORT: MODIFICATION: VOLUNTARY of Family Law §9-101, accusations of sexual abuse by a IMPOVERISHMENT parent must be judged under the “preponderance of evi- dence” standard the Court of Appeals used in Volodarsky v. Tarachanskaya, 397 Md. 291 (2007); while Voladarsky Tracy Sharon Brackett v. Susan Lynn Brandow was a supervised visitation case — and expressly declined CSA No. 1924, Sept. Term 2012. Unreported. to reach the question — no higher standard applies when Opinion by Salmon, J. (Retired, Specially Assigned). a court denies all visitation. Page 14 Filed Dec. 18, 2014. Appeal from Howard County. Affirmed. TDR #14-1218-01, 38 pages. UNREPORTED OPINIONS BY SUBJECT The circuit court’s voluntary impoverishment finding was supported by the record, where, although appellant claimed she started her own business rather than take ADMINISTRATIVE LAW: DEVELOPMENTAL a demotion spurred by her employer’s bias against her DISABILITIES: FINAL JUDGMENT transgender status, the evidence showed her employer had valid reasons for restructuring and had offered In Re: Adoption/Guardianship of Dustin R. appellant a under which she would have been CSA No. 2709, Sept. Term 2013. Unreported. highly compensated, which she rejected while knowing Opinion by Arthur, J.; Dissenting opinion by Leahy, J. she had an obligation to pay alimony and child support. Filed Dec. 22, 2014. Page 61 Appeal from Montgomery County. Dismissed. TDR #14-1222-00, 57 pages. The “Proposed Findings and Order” of the juvenile CINA: PERMANENCY PLAN: APPEAL MOOTED BY court, directing that Dustin R. should continue to receive TPR services for his developmental disabilities once he turned In re: Caitlyn S. 21, was not a final order from which an appeal could be taken; thus, the appellate court could not resolve the CSA No. 1047 Sept. Term 2013. Unreported. Department’s claim that the juvenile court exceeded its Opinion by Reed, J. Filed Dec. 30, 2014. statutory authority by ordering services after age 21 or Appeal from Montgomery County. Dismissed. Dustin’s competing claim that the court was statutorily TDR #14-1230-00, 4 pages.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 11 The Court of Appeals’ decision in In re: Karl H. based on mother’s relocation per se, but alleged that the established that the parents’ appeal of a change in the current schedule and the long commute to the transfer CINA permanency plan is not moot while their appeal of point adversely affected the education of his now-school- an order terminating their parental rights is pending in age son. Page 90 the Court of Special Appeals; here, however, the Court of Special Appeals had already affirmed the TPR order, which rendered the CINA appeal moot. Page 95 CUSTODY: MODIFICATION: RELOCATION OF PARENT CINA: VISITATION: MODIFICATION Ibrahima Dione v. Mwelu C. Ndeti In Re: Sunshyne E. and Noah I. CSA No. 0282, Sept. Term 2014. Unreported. Opinion by Berger, J. Filed Dec. 4, 2014. CSA No. 0771, Sept. Term 2014. Unreported. Appeal from Montgomery County. Affirmed. Opinion by Nazarian, J. Filed Dec. 8, 2014. TDR #14-1204-03, 16 pages. Appeal from Montgomery County. Affirmed. Family Law §9-106 allows a court to include, as a TDR #14-1208-05, 16 pages. condition of a custody or visitation order, a requirement Given the mother’s history of abusing daughter, daugh- that the parties provide written notice of their intent to ter’s reaction to testifying against mother and mother’s relocate at least 90 days in advance; however, the law lengthy involvement with DSS, the circuit court acted well does not impose such a requirement where, as here, the within its discretion when it responded to daughter’s anx- court never ordered it. Page 20 iety about resuming overnight visits by suspending those visits, while otherwise continuing unsupervised visits and the permanency plan of reunification; no evidence of DIVORCE: ALIMONY AND CHILD SUPPORT: abuse or neglect was necessary to modify the parameters PENDENTE LITE ON REMAND of unsupervised visitation in the best interest of the child. Page 33 Kerrin S. Smith f/k/a/ Kerrin S. Avedon v. Robert P. Avedon CUSTODY: DISCOVERY SANCTIONS: ON MOTION FOR RECONSIDERATION TALIAFERRO FACTORS CSA No. 2069, Sept. Term 2012. Unreported. Opinion by Meredith, J. Filed Dec. 30, 2014. Michelle Bourdelais v. John Durniak Appeal from Anne Arundel County. Amended ruling OMR. CSA No. 2389, Sept. Term 2013. Unreported. TDR #14-1230-04, 28 pages. Opinion by Eyler, D., J. Filed Dec. 4, 2013. After finding errors in the circuit court’s valuation Appeal from St. Mary’s County. Vacated and remanded. of marital property and determination of Husband’s TDR #14-1204-00, 26 pages. yearly income, and vacating the awards and remanding In a dispute over which parent was better suited to the case, the Court of Special Appeals on motion for have custody, the circuit court erred and abused its dis- reconsideration specified that, pending the circuit court’s cretion in (1) prematurely sanctioning mother for not order on remand, the alimony and child support awards complying with an order to compel discovery, and (2) that were vacated as “final” judgments should be given the imposing a sanction that precluded mother from rebutting force and effect of pendente lite awards, pursuant to Md. father’s testimony and evidence, without taking into con- Rule 8-604(a)(6). Page 105 sideration the Taliaferro factors. Page 25

CUSTODY: MODIFICATION: MATERIAL CHANGE DIVORCE: CONTEMPT: PURGE PROVISION OF CIRCUMSTANCES Theodore C. Julio v. Lisa Julio Erica L. Young a/k/a Erica Durr v. Dale Dykes CSA No. 1910, Sept. Term 2013. Unreported. CSA No. 0272, Sept. Term 2014. Unreported. Opinion by Graeff, J. Filed Dec. 30, 2014. Opinion by Reed, J. Filed Dec. 29, 2014. Appeal from Baltimore County. Affirmed in part, Appeal from Prince George’s County. Reversed and vacated in part. remanded. TDR #14-1230-06, 28 pages. TDR #14-1229-00, 15 pages. The circuit court did not err or abuse its discretion In modifying custody, the erred in finding in finding appellant in contempt for failing to make two that mother’s relocation to Ohio was a material change installment payments, totaling $1 million, to his ex-wife, in circumstances, since the existing custody arrangement as required by their divorce decree, nor in entering had been triggered by that same relocation two years separate money judgments against him for those amounts; earlier; in fact, father’s request for modification was not however, the trial court’s failure to specify that appellant

12 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law could purge the contempt by paying those judgments was DIVORCE: MONETARY AWARD: EQUITABLE a technical error that requires a remand to that court. DISTRIBUTION Page 96 Lisa Villagaray v. Rafael Villagaray DIVORCE: GROUNDS: CONSTRUCTIVE DESERTION CSA No. 2071, Sept. Term 2013. Unreported. Opinion by Hotten, J. Filed Jan. 5, 2015. Ann R. Thomas v. Timothy E. Thomas Appeal from Baltimore County. Affirmed in part, CSA No. 2160, Sept. Term 2013. Unreported. reversed in part. Opinion by Kehoe, J. Filed Dec. 10, 2014. TDR #15-0105-07, 21 pages. Appeal from Montgomery County. Affirmed. The trial court had jurisdiction over appellant and TDR #14-1210-03, 26 pages. did not abuse its discretion in denying her a continuance Given the conflicting evidence at trial, the court due to absence of counsel; however, the court did abuse was not clearly erroneous in rejecting wife’s claim of its discretion in not granting her a monetary award. constructive desertion; the judge considered the While the property distribution need not be equal, it must testimony of wife and her adult children regarding be equitable, and absent a reasonable explanation, a husband’s alleged resumption of drugs and alcohol and distribution that leaves one party with less than $5,000 and the effect it had on his behavior and mood, but was not the other with nearly $70,000 falls short of that standard. persuaded that his actions put wife in such fear for her Page 115 health, safety and self-respect that she could not remain in the marriage. Page 48 DIVORCE: PLEADING: GENERAL CLAIM FOR RELIEF DIVORCE: INDEFINITE ALIMONY: FUTURE HOUSING EXPENSE Jodi Annette Grimes v. Jay Todd Grimes Rosibeth Molina v. Albarth Molina CSA No. 2419 Sept. Term 2013. Unreported. Opinion by Hotten, J. Filed Dec. 16, 2014. CSA No. 1213, Sept. Term 2013. Unreported. Appeal from Washington County. Affirmed. Opinion by Reed, J. Filed Dec. 10, 2014. TDR #14-1216-05, 12 pages. Appeal from Montgomery County. Vacated and The trial court did not abuse its discretion in granting remanded. husband’s motion in limine to preclude a monetary award, TDR #14-1210-02, 13 pages. indefinite alimony or rehabilitative alimony to wife, as The circuit properly found a gross disparity in the her pleadings failed to request such relief and she never couple’s standards of living would justify an award of filed the necessary financial forms; wife’s general claim indefinite alimony, but, in determining the amount, failed for “any relief within the Family Law Article” is not to give adequate consideration to appellant’s future sufficiently specific, and the court cannot consider the housing expenditures and the fact that appellee would no parties’ alleged discussions during mediation as evidence longer be paying the mortgage. Page 43 of notice. Page 56

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 13 In The Court of Special Appeals: Full Text Reported Opinions

Cite as 2 MFLU Supp. 14 (2015) Ed. note: Reported opinions of the state courts of appeal are Visitation: abuse or neglect: preponderance of evi- subject to minor editing by the courts prior to publication. dence standard Headnotes are not from the courts but are added by the edi- tors. Page numbers are from slip opinions.

Michael Gerald D. child, Emily, was born. When Emily was fifteen months old, the family moved to Annapolis from Virginia, where v. they lived together for the next five years. During that time, appellant was employed by the Federal Bureau Roseann B. of Investigation, first in Washington, D.C., and then in No. 0047, September Term, 2014 Virginia and, due to his long commute, primarily spent time with Emily on weekends. Argued Before: Krauser, C.J., Nazarian, Leahy, JJ. In June of 2012, when Emily was six years old, Ms. Opinion by Krauser, C.J. B. separated from appellant, and, with Emily, moved to Filed: December 17, 2014. Reported. New Jersey, where Ms. B.’s family lived.3 Two months later, Ms. B. filed a complaint, in the Anne Arundel County circuit court, for absolute divorce, seeking sole In determining whether there are “reasonable physical and legal custody of Emily. The complaint grounds to believe” abuse or neglect has occurred specifically requested that appellant be denied “any for purposes of Family Law §9-101, accusations of visitation with the minor child until” he had undergone sexual abuse by a parent must be judged under the “preponderance of evidence” standard the Court of “intense counseling for his behavioral issues,” though, Appeals used in Volodarsky v. Tarachanskaya, notably, the complaint did not allege that appellant had 397 Md. 291 (2007); while Voladarsky was a super- abused Emily in any way. vised visitation case — and expressly declined to After Ms. B. had filed for divorce in the Anne reach the question — no higher standard applies Arundel County circuit court, she sought, in New Jersey, when a court denies all visitation. a temporary restraining order against appellant, alleging that appellant was texting and calling her “50–80 times a day at least 3–4 times a week,” conduct that continued The principal issue presented by this appeal is notwithstanding her requests that appellant “leave her whether a court must, before denying a noncustodial alone.” A temporary restraining order was issued by a parent all visitation with his or her minor child, under New Jersey court, directing appellant to have no contact 1 section 9-101 of the Family Law Article (“FL”), find that with either Ms. B. or Emily. That order was ultimately that parent had abused or neglected the child in ques- followed by a consent order setting forth provisions gov- tion by “clear and convincing evidence,” as appellant erning appellant’s future contact with both Ms. B. and demands, or by a “preponderance of the evidence,” as Emily. Among other things, the consent order specifi- the court below declared. Employing the latter standard cally prohibited appellant from contacting Ms. B. with of proof, the Circuit Court for Anne Arundel County respect to any topic that was not related to Emily. It fur- 2 found that appellant, Michael D., had sexually abused ther limited appellant to “one initiated communication his daughter, Emily. It thereupon awarded custody of [regarding Emily] to [Ms. B.] per day,” either by email Emily to her mother, Roseann B., and denied appellant or text message. And, of particular factual significance all right of visitation with his daughter. to the case before us, it granted appellant “temporary Appellant challenges that ruling, claiming, first, that supervised parenting time” at a New Jersey courthouse, the circuit court should have found that sexual abuse where he could see Emily on alternate Saturdays “for no occurred, not by a preponderance of the evidence, but more than two hours.” This form of supervised visitation by clear and convincing evidence before denying him all began on September 15, 2012, and continued for the visitation with his daughter; and, second, that the court next nine months, until June of 2013. abused its discretion in declining to order supervised But only six months after supervised visitation visitation. We hold, however, that the circuit court nei- between Emily and appellant had commenced, Emily, ther erred in applying a preponderance-of-the-evidence in March of 2013, disclosed to her mother, and then to standard nor abused its discretion in refusing to grant a counselor associated with a therapy program4 that appellant supervised visitation. Emily had been attending, that her father would play Background “the bug game” with her during his visits with her. Emily said that, during that game, appellant would tickle her, On April 23, 2005, appellant and Ms. B. married. and, in so doing, would touch her chest, vagina, and but- Eight months later, on December 13, 2005, their only tocks, both above and underneath her clothes, while she TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 14 and appellant sat in the back of the courthouse visitation She went on to explain that she would go into her room. Although there is no dispute that there were video father’s bedroom5 early in the morning to watch cartoons cameras in the visitation room, the parties disagree as and that, upon getting into his bed with him, her father to whether those cameras were positioned so that they would tell her to go under the covers and “look at it” and were able to scan every corner of the visitation room “touch [his] thing” or to “touch the back of it.” He would and thus would have recorded the episodes in question. then, according to Emily, ask her to “do something Whatever videotapes there were of appellant’s super- like shaking” his penis, which Emily demonstrated, for vised visits with Emily, they were not shown to the cir- Ms. Harger, by moving her hands up and down. In light cuit court, nor are they part of the record before us. of these new allegations of sexual abuse, Ms. Harger Both Ms. B. and Emily’s counselor subsequently con- contacted the Maryland Department of Social Services, tacted the New Jersey Division of Child Permanency and which thereupon launched a new investigation. Protection. Separate investigations by the New Jersey Ms. Harger, in delving into her evaluation at the trial Division and the Maryland Department of Social Services below, testified that she had a “concern” that there was a into Emily’s allegations followed, and appellant’s super- “likelihood that abuse occurred,” as Emily’s new disclo- vised visitation continued without interruption. The New sures appeared to be “valid.” She further stated that she Jersey investigation ultimately found that the allegations did not believe that Emily had been “coached” or that were “unfounded,” while the Maryland investigation her mother was attempting to “alienate” Emily from her “ruled out” “neglect” (but did not address sexual abuse). father. Finally, she described Emily, in her testimony, as Although neither of the final reports of the two state “delightful,” “alert,” and “very engaging,” and considered investigations is part of the record before us, a “Notice Emily’s “demeanor, her affect and her language to be of Investigation Closing” indicating that the Maryland appropriate” for a child of her age. Department had ruled out “neglect” was admitted into Ms. Harger’s evaluation recommended that Ms. B. evidence at trial and is part of the appellate record. have sole custody of Emily, that Emily receive individual In June of 2013, Ms. B., after learning that the therapy tailored for victims of child sexual abuse, and Federal Bureau of Investigation (appellant’s employer that “[a]ny contact with [appellant] should be super- at the time) had issued a “Be On The Lookout” notice for vised in a professional setting that is closely monitored” appellant, obtained a New Jersey court order suspending and that the monitor should “never leave[ ] the room” appellant’s supervised visitation with Emily. That “Be and should provide “notes regarding each contact.” Ms. On The Lookout” notice was apparently issued in error. Harger expressed concern about any visitation between Nonetheless, appellant’s visitation with Emily remained Emily and her father, observing that, “if the incidents suspended. happened as [Emily] describe[d] . . . reintroducing [her] On July 1, 2013, the Anne Arundel County circuit to her father would be traumatic.” Ms. Harger further court ordered a limited custody evaluation that was to recommended that, if Emily were to have visitation with “include custody/visitation recommendations based on appellant, it should be of a therapeutic nature. information gathered.” Terri Harger, a custody evaluator Noreen Startt, a social worker for the Anne Arundel for the Anne Arundel County Custody Evaluation Unit, County Department of Social Services, also testified at performed that evaluation but could not make a recom- the proceeding below. She investigated the allegations mendation regarding custody or visitation because of that Emily was sexually abused by her father at the fam- “the amount of information the investigator has yet to ily’s Annapolis home. As part of that investigation, Ms. gather.” Upon subsequent request by her to “expand the Startt interviewed Emily and her mother and spoke to scope of this evaluation,” the court ordered a full custo- Ms. Harger and to social workers in Maryland and New dy evaluation, which was completed by Ms. Harger on Jersey, who had previously investigated Emily’s “bug December 17, 2013. game” disclosures, as well as the detective from the In the course of completing that evaluation, Ms. Anne Arundel County police department, who had inter- Harger interviewed Emily for approximately three hours viewed appellant. on September 30, 2013. During the interview, Emily said Ms. Startt stated that she “had questions about or that her father played the “bug game” with her at the concerns about” Emily’s demeanor during their inter- visitation center and touched her above and underneath view, explaining that Emily was “very matter of fact” her clothes, while she and her father sat at tables either and showed “no change of expression or affect when in the corner of the visitation room or in the back of that she was disclosing particularly disturbing information,” room. Then, when Emily indicated that her father also which Ms. Startt found “extremely unusual.” Ms. Startt played the bug game with her in the family’s Annapolis was also troubled by the fact that Emily “said nothing home, Ms. Harger asked Emily if there were “any other positive about her father” and that some of her descrip- times that she was alone with her father that he played tions of her father’s penis were “inconsistent or unex- the bug game or did something else that was similar.” plainable.” And she had “questions about when he would That question prompted Emily to disclose, for the first have had the opportunity to sexually abuse” Emily, given time, that, during the time she lived in Annapolis, her that appellant’s lengthy commute to and from work father had had her touch his penis. meant that he was frequently away from home for long

15 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law stretches of time. After noting that appellant had “received no ther- Ms. Startt explained that, at the conclusion of her apy to address” the issue of sexual abuse and did not investigation, she “made an unsubstantiated finding “seem to have any real understanding as to this issue or [of abuse] in the case,” which meant that there was, in its impact on Emily,” the court said it could not make her words, “some evidence to suggest that the abuse a specific finding, under FL § 9-101, that there was no occurred and some evidence to suggest that it did not.”6 likelihood that appellant would further abuse or neglect Her report, however, was not provided to the circuit Emily. It then went on to find that appellant habitu- court and is not part of the record before us. ally “put[ ] himself and his interests before his child” At the proceeding below, the circuit court conducted and did “not always interact with [Emily] appropriate- an in-chambers interview of Emily. It thereafter read the ly.” The relationship between appellant and Emily was notes it had taken, during that interview, into the record “not good,” the court declared. It explained that Emily in open court. During that interview, Emily stated that “understands that her father abused her and that that is her father, during his supervised visits with her, would having a detrimental impact on anything — on any rela- have her “sit in the corner . . . so that the visitation tionship that they have had in the past and might have in people didn’t see” and then would play the bug game the future.” with her, touching her chest, vagina, and buttocks, both After acknowledging that restricting or denying vis- above and underneath her clothes. She also said that, itation with the noncustodial parent, under FL § 9-101, when she lived in Annapolis, her father would have her “is a component of the best interest standard and not a go under the covers of his bed and “touch [his] pee pee.” separate and distinct standard,” the court reviewed more When the court asked Emily if her father’s penis had than fifteen factors in determining whether it would touched any other part of her body, Emily disclosed, be in Emily’s best interest for appellant to have visita- for apparently the first time, that “sometimes he would tion with her, including the fitness of both parents, the touch this,” in reference to her vagina, with his penis, character and reputation of the parents, the length of and “that sometimes his pee pee . . . would go in the time Emily and appellant had been separated, and the middle of it and sometimes it wouldn’t.” As a result of relationship between appellant and Emily. None of the Emily’s disclosures during this interview, the court con- factors addressed by the court were resolved in favor of tacted the Department of Social Services, whereupon the appellant’s request for visitation. The court concluded its Department initiated another investigation. decision by denying appellant all visitation, supervised This third and final investigation was not completed or otherwise, stating: before the proceedings in the circuit court concluded. On the issue of visitation, as I have found that But, in a motion for reconsideration filed by appellant I am not satisfied that it has been proven that after the court below rendered its decision, appellant there is no likelihood of further abuse, the only attached a copy of the Department’s report from this access I can give or — or would give in any investigation. In that report, the Department “ruled out” scenario is supervised access. However, I find sexual abuse because, in its words, “Emily did not dis- that based on the abuse and the evidence that I close any new allegations of abuse [and] the information have heard regarding [appellant], as well as his that was disclosed ha[d] been previously investigated by demeanor and his lack of credibility that I have other agency workers and findings were made.” observed during this proceeding, it is not in On the eleventh and final day of the proceedings — Emily’s best interest to have supervised visita- which, at this point, had spanned four months7 — the tion with [appellant]. circuit court announced its decision, a decision which I find that the Court would not be assured that was, in the court’s words, “in very large part . . . based — that Emily would be safe, physiologically, on [its] ability to be able to observe the witnesses who psychologically, or emotionally. Therefore, I testified and judge their credibility.” Applying a “prepon- decline to order any visitation in this matter. derance of the evidence standard” — the standard of proof now at issue — the circuit court found, under FL Discussion § 9-101, that there were “reasonable grounds” to believe I. that appellant had sexually abused Emily. The court Appellant contends that the circuit court erred in specifically noted that Emily’s in-chambers disclosures applying the preponderance-of-the-evidence standard were “appropriate and consistent with what one would in finding that he had sexually abused Emily and then expect in this particular factual scenario,” and that there in denying him any visitation. Before imposing that pro- was nothing to suggest that Emily “had been coached hibition, the court must find, he claims, by “clear and in any way.” It further observed that Emily “used age convincing evidence” that he had sexually abused his appropriate words” in her descriptions and “included daughter. idiosyncratic details,” “details” which it did not “believe In all custody and visitation determinations, the best she could have known without experiencing what she interest of the child is the “overarching consideration.” experienced.” The court therefore “found Emily,” in its Baldwin v. Baynard, 215 Md. App. 82, 108 (2013). “Thus, words, “to be a credible little girl.” while a parent has a fundamental right to raise his or her own child . . . the best interests of the child may take pre- TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 16 cedence over the parent’s liberty interest in the course his daughter. Appellant therefore still retains his right of a custody, visitation, or adoption dispute.” Boswell v. to communicate with his daughter, even though he was Boswell, 352 Md. 204, 219 (1998). Moreover, while, as a denied the right to visit with her. general rule, a parent, who is not granted custody, will Next, FL § 9-101 does not address the steps that a be given “a right to liberal visitation with his or her child parent, who is denied visitation with his or her child, at reasonable times and under reasonable conditions,” may take to regain some form of visitation in the future. this right “is not absolute,” and “when the child’s health Nor does it affect the parent’s legal right to move to or welfare is at stake visitation may be restricted or even modify a visitation order upon a showing of “a mate- denied.” Id. at 220–221 (internal quotations marks and rial change of circumstances.” See, e.g., Shurupoff v. citations omitted). Vockroth, 372 Md. 639, 653, 658 (2003); McMahon v. Indeed, FL § 9-101 “requires the court, when faced Piazze, 162 Md. App. 588, 593–94 (2005). While we with a history of child abuse or neglect by a party seek- acknowledge that the court below did not mention what ing custody or visitation, to give specific attention to the appellant could do to regain visitation, or that he could safety and well-being of the child in determining where request modification of the visitation order based on a the child’s best interest lies.” In re Adoption No. 12612, showing of a material change in circumstances, it did 353 Md. 209, 238 (1999). And, in cases “where evidence not, on the other hand, suggest that, if appellant were of abuse [or neglect] exists, courts are required by [FL § to seek a form of supervised visitation sometime in the 9-101] to deny custody or unsupervised visitation unless future, it would flatly deny such a motion. Moreover, the court makes a specific finding that there is no likeli- given the well-settled legal precept that visitation orders hood of further child abuse or neglect.” In re Mark M., are subject to modification upon a showing of a material 365 Md. 687, 706 (2001) (emphasis in original). change in circumstances, we have no reason to doubt The question we are asked to decide, in the instant that appellant was informed of this possibility by coun- case, is the burden of proof that must be satisfied before sel, regardless of whether the court expressly mentioned a parent may be completely denied his right of visitation it in rendering its decision or not. with his child, for an indefinite period of time. FL § 9-101 With that in mind, we turn now to what the plain governs the approach a trial court must take when child language of the does address. FL § 9-101 requires abuse or neglect has been raised in a custody or visita- that a circuit court, facing allegations of child abuse or tion proceeding. If the text of that statute clearly and neglect in a custody or visitation proceeding, first deter- unambiguously addresses and resolves the issue before mine whether it has “reasonable grounds to believe” that us, we need proceed no further in our analysis. See, e.g., the parent seeking custody or visitation has abused or Opert v. Criminal Injuries Comp. Bd., 403 Md. 587, 593 neglected a child. FL § 9-101(a). Then, upon a finding (2008). that reasonable grounds exist to believe that abuse or FL § 9-101 states: neglect has occurred, the court must make an addition- (a) Determination by court. — In any custody al specific finding as to whether further child abuse or or visitation proceeding, if the court has reason- neglect is likely to occur if custody or visitation rights able grounds to believe that a child has been are granted to the parent responsible for the abuse or abused or neglected by a party to the proceed- neglect. FL § 9-101(a). If the court finds that it is unable ing, the court shall determine whether abuse or to make that specific finding, it is required to deny cus- neglect is likely to occur if custody or visitation tody or visitation rights to the abusive parent, though rights are granted to the party. the court may, but is not required to, approve a super- (b) Specific finding required — Unless the vised visitation arrangement that assures the safety and court specifically finds that there is no likeli- well-being of the child. FL § 9-101(b). hood of further child abuse or neglect by the The question before us turns on the meaning of party, the court shall deny custody or visita- the phrase “reasonable grounds to believe,” as it is tion rights to that party, except that the court used in FL § 9-101, and the burden of proof that locu- may approve a supervised visitation arrange- tion mandates. The answer may lie in Volodarsky v. ment that assures the safety and the physiolog- Tarachanskaya, 397 Md. 291 (2007). That case presents ical, psychological, and emotional well-being of a set of facts and issues similar to those now before the child. us. There, as here, the court below was presented with (Emphasis added.) a dispute between a mother and father over which of Before we ponder what FL § 9-101 addresses, we them should have custody of, or visitation with, their shall briefly note what it does not. To begin with, it daughter, a dispute that revolved around conflicting tes- does not speak to the issue of future “contact” between timony as to whether the father had sexually abused the a parent and his or her child — that is, by telephone, child. Id. at 292–93. “[P]ersuaded” that the child at issue email, letter, and so on — when the parent has been had been “exposed to sexual behavior,” although “not denied all visitation for an indefinite period of time. And . . . convinced by a preponderance of the evidence that although the circuit court denied appellant all visitation [she had] been the victim of sexual abuse, or that her with Emily, it did not deny appellant all contact with father [had] perpetrated sexual abuse,” the Volodarsky

17 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law circuit court, after awarding sole custody of the daughter grounds for denying any and all visitation by the parental to the mother, nonetheless precluded visitation with the abuser. father “other than in a therapeutic setting.” Id. at 302–03. Lest any doubt remain as to the validity of this inter- It did not, however, totally deny the father all right of vis- pretation of FL § 9-101, we note that the Governor’s itation, as did the court below. Task Force on Child Abuse and Neglect, which drafted The pertinent issue before the Court of Appeals in and proposed FL § 9-101 in 1984, explained that the Volodarsky was whether the circuit court’s “finding or statute “expressly requires a court to restrict or deny determination” that abuse or neglect had likely occurred custody or visitation rights to a party if abuse or neglect must “at a minimum . . . be made by at least a prepon- has previously occurred and there is any likelihood derance of the evidence.” Id. at 304 (emphasis in origi- that abuse or neglect may continue to occur.”8 January nal). The Court of Appeals concluded that, “in the con- 1984 Preliminary Report of the Governor’s Task Force text of [FL] § 9-101,” the reasonable-grounds-to-believe on Child Abuse and Neglect, at 5 (emphasis added). language of the statute and the preponderance-of-the-ev- Moreover, there is nothing in the legislative history of idence standard were not “different standards of proof.” the statute to suggest that either the Task Force, when it Id. In fact, the preponderance standard, the Court of proposed the new law, or the Legislature, when it enact- Appeals opined, was the correct standard for the cir- ed it, intended to impose one standard of proof when cuit court to apply in determining whether there were supervised visitation between the abusive parent and reasonable grounds to believe that abuse or neglect had his or her child is ordered, but another, higher, standard occurred. Id. at 308. of proof when completely denying visitation between We do take note, however, as appellant requests, them. Rather, the statute was written so that “reasonable that the Volodarsky Court stated, in a footnote, that it grounds to believe” that abuse or neglect has occurred was “not asked . . . to address, and [it did] not address” would require the court to deny visitation rights. And whether “a standard higher than preponderance might “reasonable grounds to believe” means, as the Court of be required where the effect of the finding [that abuse Appeals has pointed out, a “preponderance of the evi- or neglect occurred] might be to deny a parent all right dence.” For us to hold otherwise, that is, that clear and of visitation with his or her child and must be, at a min- convincing evidence of abuse or neglect is required to imum, to place significant limits on such visitation.” Id. deny a parent all right of visitation, would be in clear at 306 n.5. Appellant relies on this footnote to argue that contradiction of the “reasonable grounds to believe” lan- the Court of Appeals intended that a burden of proof guage of FL § 9-101 and would impose a burden of proof greater than a preponderance of the evidence must be not contemplated by the Legislature. Such a change lies met before all visitation is denied a parent. We are not within the purview of the Legislature, not the judiciary. persuaded, however, that the footnote at issue contained Ultimately, our decision in this case must be con- such a message. In our view, the footnote simply left it sistent with what we believe to be the clear language an open question as to whether a greater burden of proof and intent of FL § 9-101. As we have explained, a circuit might be required when all visitation is denied. We shall court that has “reasonable grounds to believe” that a now attempt to answer that question. parent has abused or neglected a child and that cannot We begin by returning to the language of FL § 9-101. specifically find that there is no likelihood of further The plain language of that statute clearly states that the abuse or neglect is required, under the statute, to “deny same evidentiary standard of proof — that is, the “rea- custody or visitation rights” to that parent. And, as the sonable grounds to believe” standard — is the appro- Court of Appeals has explained, “[i]t is by using the pre- priate standard whether the court is granting visitation, ponderance standard that the [circuit court] determines supervised visitation, or none at all. Subsection (a) whether reasonable grounds exist,” under FL § 9-101, of that section states that if the court has reasonable to believe that child abuse or neglect has occurred. grounds to believe that a party to the proceeding has Volodarsky, 397 Md. at 308. For this reason, and all of abused or neglected a child, it “shall determine” whether the reasons noted above, we decline appellant’s invi- abuse or neglect is likely to occur if that party is granted tation to adopt a greater burden of proof in instances custody of, or visitation with, the child. Subsection (b) where the circuit court denies all visitation between then instructs that custody or visitations rights “shall” parent and child, and hold that the court below did not be denied to that party if the court is unable to specif- err in applying the preponderance-of-the-evidence stan- ically find that there is no likelihood of further abuse dard in determining that it had “reasonable grounds to or neglect. There is no indication in the statutory lan- believe” that appellant had sexually abused his daughter. guage that a burden of proof greater than “reasonable grounds to believe” is required before visitation can be II. denied. Rather, the statute unambiguously states that Appellant contends that the circuit court abused its “reasonable grounds to believe” that abuse or neglect discretion in not granting him at least supervised visi- has occurred — which the Court of Appeals has said tation with Emily. In reviewing that decision, we apply is indistinguishable from proof, by a preponderance of an abuse of discretion standard. North v. North, 102 Md. the evidence, that abuse or neglect has happened — is App. 1, 12–13 (1994). That standard requires reversal only when we find that the circuit court has acted “with- TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 18 out reference to any guiding rules or principles,” or that appellate court, to second-guess those findings. “no reasonable person would take the view adopted by In light of the lower court’s determination of whether the [circuit] court,” or that the decision of that court is visitation with appellant would be in Emily’s best inter- “well removed from any center mark imagined by the ests, the evidence presented regarding appellant’s abuse reviewing court and beyond the fringe of what that court of Emily in supervised visitation settings, and the cred- deems minimally acceptable.” Id. at 13–14 (internal cita- ibility determinations made by that court, we conclude tions and quotation marks omitted). that it did not abuse its discretion in declining to award With respect to the “guiding rules or principles” appellant supervised visitation with his daughter. applicable in the proceeding below, the circuit court dutifully considered what would be in Emily’s best inter- JUDGMENT OF THE CIRCUIT COURT FOR ests and incorporated, into that determination, its anal- ANNE ARUNDEL COUNTY AFFIRMED. ysis under FL § 9-101. Specifically, it found, by a pre- COSTS TO BE PAID BY APPELLANT. ponderance of the evidence, that appellant had sexually abused Emily, and then considered whether it could “specifically find[ ]” that there was no likelihood that Footnotes appellant would further abuse or neglect Emily if he 1. Md. Code Fam. Law § 9-101 (1984, 2012 Rep. Vol.). was awarded visitation rights, and said that it could not 2. To protect the privacy of the parties’ child, we shall not use make that specific finding. Upon reviewing the numer- the parties’ last names but, instead, shall refer to them by the ous factors as to what would be in Emily’s best interests, first initials of their respective last names. it concluded, “based on the abuse and the evidence that 3. Ms. B. had separated from appellant once before, during the [it had] heard regarding the [appellant], as well as his summer of 2011, and had taken Emily with her to New Jersey. demeanor and his lack of credibility,” that it was not in At the end of that summer, however, Ms. B. and Emily returned Emily’s best interest to have supervised visitation with to Maryland, and the couple attempted marriage counseling. appellant, and that Emily’s physical, psychological, and 4. Ms. B. described this therapy program, at trial, as one geared emotional well-being could not be assured if such visita- toward children who had experienced or witnessed domestic tion was allowed. Consequently, the court “decline[d] to violence within their families. order any visitation in this matter.” 5. Appellant and Ms. B. had slept in separate bedrooms since the beginning of their marriage. Furthermore, the court’s decision not to order any 6. Under the Code of Maryland Regulations 07.02.07.12(B), visitation between Emily and appellant was neither one A finding of unsubstantiated child abuse is appropriate when that no reasonable person would adopt nor “beyond there is insufficient evidence to support a finding of indicated the fringe of what [this] court deems minimally accept- or ruled out child abuse. A finding of unsubstantiated may be able.” As the Court of Appeals has noted, “where there based, but is not required to be based, on the following: is evidence that visitation may be harmful to the child,” (1) Insufficient evidence of a physical or mental inju- visitation may be “restricted or even denied.” Boswell, ry, sexual molestation, or sexual exploitation; 352 Md. at 221. We note that the court below heard testi- (2) Insufficient evidence that the individual alleged to mony from several witnesses, and also heard from Emily be responsible for the child abuse was a parent, care- herself when the court interviewed her in chambers, that taker, or household or family member; appellant had touched Emily inappropriately during their (3) The lack of a credible account by the suspected supervised visitation sessions. In light of the evidence victim or a witness; that abuse had previously occurred during visitation, and (4) Insufficient evidence that the child’s health or wel- in a supervised setting, it was not unreasonable for the fare was harmed or was at substantial risk of being court to deny appellant supervised visitation with Emily. harmed; or Finally, in reviewing a visitation order, we must give (5) Despite reasonable efforts, an inability to com- “due regard . . . to the opportunity of the lower court plete the investigation due to factors such as: to judge the credibility of the witnesses,” because that (a) Lack of access to the child or individual alleged to court, which “sees the witnesses and the parties, hears be responsible for the child abuse; or the testimony, and has the opportunity to speak with (b) Inability to obtain relevant facts regarding the the child,” is in “a far better position than is an appellate alleged child abuse. court . . . to weigh the evidence and determine what dis- 7. The court heard testimony for four days in October of 2013, position will best promote the welfare of the [child].” In two days in November of 2013, two days in December of 2013, re Yve S., 373 Md. 551, 584, 586 (2003) (internal quotation and two days in January of 2014. The court announced its deci- sion on the record on February 4, 2014. marks and citation omitted). The circuit court’s decision 8. FL § 9-101 was enacted, in 1984, in exactly the same form as to deny appellant any visitation with Emily was, in its proposed by the Governor’s Task Force. The only difference words, “in very large part . . . based on [its] ability to be between FL § 9-101 as it was originally enacted and the current able to observe the witnesses who testified and judge language of the statute was the addition, in 1985, of the phrase their credibility.” The court also found Emily to be a cred- “and the physiological, psychological, and emotional well-be- ible witness, a finding that it did not make as to appellant, ing” near the end of subsection (b). Md. Laws Ch. 659 (1985). whose credibility it found lacking. It is not our role, as an

19 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 20 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Custody: modification: relocation of parent ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Ibrahima Dione See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Mwelu C. Ndeti bers are from slip opinions. that the alleged abuse has occurred? No. 0282, September Term, 2014 2. Was This Court granting Appellee abso- Argued Before: Berger, Nazarian, Leahy, JJ. lute divorce on the basis of voluntary Opinion by Berger, J. separation in February 5, 2008 in light of the protective order legally correct when Filed: December 4, 2014. Unreported. Maryland Rule 7-103(3) requires voluntary separation? Family Law §9-106 allows a court to include, as a 3. Maryland Rule 11-106(b)(2) requires reha- condition of a custody or visitation order, a require- bilitation for the spouse to go back to ment that the parties provide written notice of their school or acquire needed skills that would intent to relocate at least 90 days in advance; how- enable the spouse to be competitive in the ever, the law does not impose such a requirement job market. Was this Court after granting where, as here, the court never ordered it. appellee three years of rehabilitative main- tenance to finish her college degree while the Appellee holds a Bachelor’s degree in This appeal arises out of an order of the Circuit 1992 in Grinnell College and Master Degree Court for Montgomery County on a motion for appro- from The John Hopkins University in 1996 priate relief and a motion to modify custody and and held gainful employment with the access, filed by appellant, Ibrahima Dione (“Father”). World Bank since 1997, legally correct? The circuit court denied Father’s motion for appro- 4. Was this Court denial of the Appellant priate relief and granted in part and denied in part witness to testify and granting Appellee Father’s motion to modify custody and access. Father witness to testify, legally correct when and Mwelu C. Ndeti (“Mother”) are the parents of Maryland Rules 1-203 and 9-209 require minor children Waly K. Dione and Imani K. Dione (col- both parties to have oral testimony, in lectively, “the Children”). Father’s motion for appropri- person, and in the courtroom, to obtain a ate relief sought reimbursement from Mother for var- divorce? That testimony has to be corrob- ious items of marital property, and Father’s personal orated by a witness, someone or some- property, that Father contends were improperly sold thing other than the parties to the divorce by Mother. Father also sought reimbursement from requires Maryland Rule 7-101(b). That wit- Mother for Father’s share of in the family home ness testimony also has to be oral and in that was lost when the home was sold at a foreclosure court “unless otherwise ordered by the sale. Father’s motion to modify custody and access court for good cause” requires Maryland requested joint legal custody of the Children, in light Rule 9-209. of Mother moving to Kenya, Africa with the Children in 5. Was this Court’s denial of Ordering sell- 2012 and declining to respond to Father’s attempts to ing the marital property after the 3 years communicate. of maintenance, legally correct when On appeal, Father presents six issues for our Maryland Rule 8-210(a)(2) requires the review, which we have reproduced, verbatim,1 below: family home or family use personal prop- 1. Was this Court in August 2006 after issu- erty shall terminate no later than 3 years ing a protective Order to the Appellant after the date on which the Court grants to vacate the marital property and within an annulment or a limited or absolute the required time an investigation of child divorce? Welfare Services reported to this Court 6. Was this Court legally correct by denying no neglect or child abuse occurred, legally Appellant motion to modify legal custody correct when Maryland Rule 4-507(c)(1) when Maryland Rule 9-106 requires party (ii) requires clear and convincing evidence to provide advance written notice of at

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 20 least 45 days to the court, the other party, the Children, in the United States and Kenya. Father or both, of the intent to relocate the per- and Mother agreed that Mother could move with the manent residence of the party or the child Children to Kenya. In that event, Father would have either within or outside the State? visitation with the Children in the United States during For the reasons that follow, we affirm the judgment their summer holiday. The parties further agreed that of the Circuit Court for Montgomery County. Father could visit with the Children in Kenya, provided he gave proper advance notice to Mother. Factual and Procedural Background Several months later, Mother did in fact move to Father and Mother were married on December Kenya with the Children. Father alleges that he was 31, 2001 and are the parents of the Children, born on not provided with advance notice of the move, and August 15, 2003 and February 25, 2005. On August 3, only found out that Mother and the Children were 2006, Mother obtained a Temporary Protective Order living abroad through the school that the Children for- against Father from the District Court for Montgomery merly attended in the United States. Father repeatedly County.The order awarded Mother temporary custody attempted to contact Mother and the Children in Kenya, of the Children, pending a final protective order hear- but those efforts were met with little success. ing. Our review of the record indicates that, after this On February 24, 2012, Father filed a motion for hearing, Mother was granted pendente lite physical and appropriate relief seeking reimbursement from Mother legal custody of the Children.2 Mother subsequently for improperly selling marital property, disposing of filed for an absolute divorce from Father, custody of Father’s personal property that was stored in the family the Children, and other relief. home, and failing to pay her share of credit card debt On February 5, 2008, the Circuit Court for incurred during the marriage. Additionally, Father’s Montgomery County granted Mother an absolute motion for appropriate relief sought to recover Father’s divorce from Father on the grounds that Mother and share of equity in the family home, which had been sold Father had been mutually and voluntarily separated at a foreclosure sale due to a failure to pay a series of for one year. The circuit court further awarded Mother overdue mortgage payments. use and possession of the family home for up to three On March 13, 2012, Father filed a motion for mod- years. The court ordered that once this three-year ification of custody and access seeking joint legal cus- period had elapsed, the family home was to be listed tody of the Children. In support of his request, Father for sale, with the proceeds from the sale to pay the alleged that Mother denied Father communication with $172,376 marital property award to Mother. The circuit the Children and failed to provide Father with access court also ordered Father to make monthly child sup- to the school and medical records of the Children. port payments to Mother, in addition to paying alimony Additionally, Father claimed that Mother failed to make to Mother for a rehabilitative period of three years. On the Children available for their scheduled visitation March 25, 2008, Father filed a notice of appeal in con- with Father. nection with the judgment of absolute divorce. Father’s A hearing on Father’s motions was held before appeal was ultimately dismissed because he failed to a Family Law Master of the Circuit Court for comply with Maryland Rule 8-413. Montgomery County on August 5, 2013. Mother failed Father and Mother reached an agreement concern- to appear. Following the hearing, the master made ing custody of the Children, embodied in a Consent oral recommendations to the court and Father filed Order entered by the Circuit Court for Montgomery exceptions to those recommendations, which the court County on April 20, 2010 (the “2010 Consent Order”). denied. On April 9, 2014, the court entered an order The parties agreed that Mother would have sole legal denying Father’s motion for appropriate relief and and physical custody of the Children while Father granting in part and denying in part Father’s motion to would have telephone access to the Children, as well modify custody and access. The court denied Father’s as access to their medical and school records. The 2010 request for joint legal custody of the Children and Consent Order further provided that Father would have ordered Mother to comply with the visitation and visitation with the Children on alternate weekends as access provisions of the 2011 Consent Order. The court well as on certain holidays, including the last day of further ordered Mother to promptly respond to Father’s Ramadan, if the Children did not have school. communications and to provide Father with current Father and Mother agreed to a subsequent Consent contact information for herself and the Children. Order, entered by the court on December 27, 2011, Father, proceeding pro se, filed this timely appeal.3 (the “2011 Consent Order”) that clarified their existing custody and access arrangement. The 2010 Consent Discussion Order remained in full force and effect, but the 2011 Consent Order was needed to address Mother poten- I. Permissible Scope of Appeal tially moving to Kenya with the Children. The 2011 Of the six questions presented by Father in this Consent Order provided that Mother would retain sole appeal, supra, only the sixth question,4 pertaining to physical and legal custody of the Children, with Father the denial of Father’s request for joint legal custody having full access to the medical and school records of of the Children, was properly appealed to this Court. 21 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law The remaining five questions presented by Father’s an examination of the appropriate standard of review appeal are not related to the judgment of the Circuit applied to trial court rulings on requests for modifica- Court for Montgomery County, entered on April 9, 2014, tion of child custody, infra. from which Father is appealing in the present case. Rather, Father’s first question presented5 pertains to II. Standard of Review the grant of a Temporary Protective Order to Mother This court reviews child custody determinations by the District Court for Montgomery County in 2006. utilizing three interrelated standards of review. In re Father’s second and third questions presented6 pertain Yve S., 373 Md. 551, 586 (2003). The Court of Appeals to the judgment of absolute divorce entered by the cir- described the three interrelated standards as follows: cuit court in 2008. Father’s fourth question presented7 We point out three distinct aspects of review does not itself identify a particular proceeding, order, in child custody disputes. When the appellate or judgment from which he is appealing. Our review of court scrutinizes factual findings, the clearly Father’s brief, however, indicates that Father’s fourth erroneous standard of [Rule 8-131 (c)] applies. question presented concerns the divorce proceedings [Second,] if it appears that the [court] erred as before the circuit court that culminated in the 2008 to matters of law, further proceedings in the judgment of absolute divorce. Father’s fifth question trial court will ordinarily be required unless presented8 also fails to identify a particular proceed- the error is determined to be harmless. Finally, ing, order, or judgment from which he is appealing. when the appellate court views the ultimate Nevertheless, our review of the record indicates that conclusion of the [court] founded upon sound the circuit court, in its judgment of absolute divorce legal principles and based upon factual findings entered in 2008, ordered that the family home “shall that are not clearly erroneous, the [court’s] be listed for sale” after Mother’s three years of use and decision should be disturbed only if there has maintenance expired.9 been a clear abuse of discretion. Maryland Rule 8-201 provides that “the only meth- Id. at 586. In our review, we give “due regard . . . to the od of securing review by the Court of Special Appeals opportunity of the lower court to judge the credibility [,other than applying for leave to appeal while litiga- of the witnesses.” Id. at 584. We recognize that “it is tion is proceeding in the trial court,] is by the filing of within the sound discretion of the [trial court] to award a notice of appeal within the time prescribed in Rule custody according to the exigencies of each case, and . 8-202.” Md. Rule 8-201. Maryland Rule 8-202 further . . a reviewing court may interfere with such a determi- provides that a “notice of appeal shall be filed within 30 nation only on a clear showing of abuse of that discre- days after entry of the judgment or order from which tion. Such broad discretion is vested in the [trial court] the appeal is taken.” Md. Rule 8-202. because only he sees the witnesses and the parties, In the instant case, Father filed his notice of appeal hears the testimony, and has the opportunity to speak with this Court on April 25, 2014 (the “April 25 Notice with the child; he is in a far better position than is an of Appeal”). Less than 30 days earlier, on April 9, 2014, appellate court, which has only a cold record before it, the circuit court entered an order denying Father’s to weigh the evidence and determine what disposition motion for appropriate relief and granting in part and will best promote the welfare of the minor.” Id. at 585- denying in part Father’s motion to modify custody and 86. “Whether to grant a modification [of child support] access. Therefore, the April 25 Notice of Appeal, which rests with the sound discretion of the trial court and generated the instant appeal, properly noted an appeal will not be disturbed unless that discretion was arbi- from the circuit court’s order of April 9, 2014. The April trarily used or the judgment was clearly wrong.” Ley v. 25 Notice of Appeal, however, could not note an appeal Forman, 144 Md. App. 658, 665 (2002). from the circuit court’s grant of a Temporary Protective III. Partial Denial of Motion to Modify Custody and Order or judgment of absolute divorce, entered by the Access court in 2006 and 2008 respectively. Indeed, Father In analyzing a child custody modification request, previously attempted to appeal the court’s judgment of trial courts engage in a two step process. Wagner v. absolute divorce by filing a notice of appeal on March Wagner, 109 Md. App. 1, 28 (1996). “First, unless a 25, 2008. That appeal was ultimately dismissed by the material change of circumstances is found to exist, Court of Special Appeals on October 31, 2008 because the court’s inquiry ceases.” Id. “If a material change Father failed to file a timely initial pleading and pre- of circumstance is found to exist, then the court, in pare the case record in compliance with Maryland Rule resolving the custody issue, considers the best inter- 8-413. Father’s initial failure to appeal properly the cir- est of the child as if it were an original custody pro- cuit court’s judgment of absolute divorce does not enti- ceeding.” Id. In the context of custody modification, tle him to a second chance at appealing that decision. “[a] material change of circumstances is a change in We thus turn our attention to Father’s only argu- circumstances that affects the welfare of the child.” ment that was properly appealed to this Court, namely, Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012) whether the circuit court’s denial of Father’s request (citing McMahon v. Piazze, 162 Md. App. 588, 594 for joint custody was legally correct. We begin with (2005)). “Moreover, the circumstances to which change

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 22 would apply would be the circumstances known to the tody, (3) fitness of parents, (4) relationship trial court when it rendered the prior order.” Wagner, established between child and each parent, (5) supra, 109 Md. App. at 28. preference of child, (6) potential disruption of In the instant case, Father contends that the cir- child’s social and school life, (7) geographic cuit court was legally incorrect in denying his request proximity of parental homes, (8) demands of for joint legal custody of the Children. To support his parental employment, (9) age and number of argument, Father points to §9-106 of the Family Law children, (10) sincerity of parents’ request, (11) Article10 which provides, in pertinent part: financial status of parents, (12) impact on state [I]n any custody or visitation proceeding the or federal assistance, and (13) benefit to par- court may include as a condition of a custody ents. or visitation order a requirement that either Baldwin v. Baynard, 215 Md. App. 82, 109-10 (2013) party provide advance written notice of at least (citing Taylor v. Taylor, 306 Md. 290, 304–11 (1986)). 90 days to the court, the other party, or both, of The Court of Appeals has held that these factors are the intent to relocate the permanent residence not necessarily weighed equally, and that the most of the party or the child either within or outside important factor is the capacity of the parents to com- the State. municate and reach shared decisions regarding the chil- Md. Code (1984, 2012 Repl.Vol.), § 9-106 of the Family dren’s welfare. Taylor, supra, 306 Md. at 302-304. Law Article. Father contends that because Mother In considering Father’s request for joint custody, failed to provide him with advance written notice at the master proceeded to analyze the Taylor factors least 90 days before she moved to Kenya with the to determine whether an award of joint legal custody Children, she should not be entitled to sole legal cus- would be appropriate. The master began her analysis tody of the Children. Father, however, fails to identify with Father’s and Mother’s ability to communicate any custody or visitation proceeding in which the court and reach joint decisions regarding the Children. As specifically included this notice requirement as a condi- part of this analysis, the master noted that Mother has tion of Mother’s custody. always had primary physical custody and sole legal Indeed, Father misreads the statute as automat- custody of the Children. The master further noted the ically grafting a notice requirement onto every court absence of any evidence that Father and Mother had a order determining child custody. The actual language history of making joint decisions. The fact that Father of the statute, however, merely permits courts to had difficulty contacting Mother after Mother moved include such notice requirements when reaching deci- to Kenya with the Children further illustrated Mother’s sions concerning child custody. Our review of the 2010 reluctance to include Father in decisions concerning Consent Order and the 2011 Consent Order in this case, the Children. Therefore, the master concluded that, in indicates that the court never required such notice light of the Taylor factors, she could not recommend as a condition of Mother’s sole legal custody of the that the court award joint legal custody of the Children Children. We hold, therefore, that the circuit court did to Father and Mother. not abuse its discretion by granting in part and denying For the foregoing reasons, we hold that the court in part Father’s motion to modify custody and access. did not abuse its discretion by following the oral rec- In so deciding, the court followed the oral recom- ommendations of the master in granting in part and mendations of the Family Law Master who presided denying in part Father’s motion for modification of over the August 5, 2013 hearing. The master found custody and access. The master’s analysis of Father’s that Mother, after moving with the Children to Kenya, request for joint legal custody of the Children fully had refused to allow Father access to the Children as complied with applicable Maryland law. Furthermore, required by the 2011 Consent Order. The master con- Father has failed to identify any evidence that would cluded that this noncompliance with the 2011 Consent persuade us that the circuit court wrongly or arbi- Order constituted a material change in circumstances trarily denied his request for joint legal custody of the which could serve as a predicate for a modification of Children. child custody. Having found that a material change in circum- JUDGMENT OF THE CIRCUIT COURT FOR stances had occurred since the court’s last custo- MONTGOMERY COUNTY AFFIRMED. dy order in the case, the master proceeded to ana- COSTS TO BE PAID BY THE APPELLANT. lyze whether it would be in the best interests of the Children for Father and Mother to have joint legal cus- tody of them. In deciding whether joint legal custody is Footnotes appropriate in a given case, courts must consider the 1. We elect to reproduce Father’s questions presented in his following factors (the “Taylor factors”): own words because, as we discuss infra, the first five of (1) capacity of parents to communicate and Father’s six questions presented are not properly preserved to reach shared decisions affecting child’s wel- for our review. As Father’s first five questions presented con- fare, (2) willingness of parents to share cus- cern issues that we cannot address, we refrain from attempt-

23 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law ing to rephrase or consolidate them into cognizable appellate separation? issues. Maryland Rule 11-106(b)(2) requires rehabilitation 2. Father has included a copy of the Temporary Protective for the spouse to go back to school or acquire need- Order in his record extract, but the court proceedings related ed skills that would enable the spouse to be compet- to that order are not included in the record before us, which itive in the job market. Was this Court after granting begins with Mother’s filing for absolute divorce on October appellee three years of rehabilitative maintenance 10, 2006. The final protective order hearing was scheduled to finish her college degree while the Appellee holds for August 10, 2006. Accordingly, the record before us does a Bachelor’s degree in 1992 in Grinnell College and not include a transcript of that hearing or any orders subse- Master Degree from The John Hopkins University quently issued by the court. Nevertheless, the oral recommen- in 1996 and held gainful employment with the World dations made by the Family Law Master of the Circuit Court Bank since 1997, legally correct? for Montgomery County during the August 5, 2013 hearing 7. The fourth question presented by Father’s appeal asks: indicate that “going back to the initiation of this matter . . . Was this Court denial of the Appellant witness to tes- [Mother] has always had primary physical custody and sole tify and granting Appellee witness to testify, legally legal custody.” correct when Maryland Rules 1-203 and 9-209 require 3. We note that Mother did not file a brief with this Court. both parties to have oral testimony, in person, and 4. The sixth question presented by Father’s appeal asks: in the courtroom, to obtain a divorce? That testimo- Was this Court legally correct by denying Appellant ny has to be corroborated by a witness, someone motion to modify legal custody when Maryland or something other than the parties to the divorce Rule 9-106 requires party to provide advance writ- requires Maryland Rule 7-101(b). That witness testi- ten notice of at least 45 days to the court, the other mony also has to be oral and in court “unless other- party, or both, of the intent to relocate the perma- wise ordered by the court for good cause” requires nent residence of the party or the child either within Maryland Rule 9-209. or outside the State? 8. The fifth question presented by Father’s appeal asks: 5. The first question presented by Father’s appeal asks: Was this Court’s denial of Ordering selling the mari- Was this Court in August 2006 after issuing a pro- tal property after the 3 years of maintenance, legally tective Order to the Appellant to vacate the marital correct when Maryland Rule 8-210(a)(2) requires the property and within the required time an investiga- family home or family use personal property shall tion of child Welfare Services reported to this Court terminate no later than 3 years after the date on no neglect or child abuse occurred, legally correct which the Court grants an annulment or a limited or when Maryland Rule 4-507(c)(1)(ii) requires clear absolute divorce? and convincing evidence that the alleged abuse has 9. We note that the record extract prepared by Father occurred? includes a real estate listing for the family home dated 6. The second and third questions presented by Father’s September 4, 2011. Therefore, our review of the record appeal ask: demonstrates that Mother complied with the court’s order Was This Court granting Appellee absolute divorce that the family home “be listed for sale” after her three year on the basis of voluntary separation in February 5, period of use and possession expired on February 5, 2011. 2008 in light of the protective order legally correct 10. In Father’s brief, Father mistakenly cites §9-106 of the when Maryland Rule 7-103(3) requires voluntary Family Law Article as “Maryland Rule 9-106.”

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 24 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 25 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Custody: discovery sanctions: Taliaferro factors ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Michelle Bourdelais See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- John Durniak bers are from slip opinions. the Circuit Court for St. Mary’s County. On February No. 2389, September Term, 2013 22, 2012, the court entered a judgment of absolute Argued Before: Eyler, Deborah S., Reed, Sonner, divorce. The issue of custody was not litigated in the Andrew L., (Ret’d, Specially Assigned), JJ. divorce matter because a custody case was pending in Opinion by Eyler, Deborah S., J. the Juvenile and Domestic Relations Court for Henrico County, Virginia (“Virginia Court”). Filed: December 4, 2014. Unreported. In May of 2012, Mother moved with the children to Calvert County, Maryland. She subsequently relocated In a dispute over which parent was better suit- to California, Maryland, near Father’s residence in St. ed to have custody, the circuit court erred and Mary’s County. abused its discretion in (1) prematurely sanctioning On August 17, 2012, the Virginia Court entered an mother for not complying with an order to compel order granting the parties joint legal and shared phys- discovery, and (2) imposing a sanction that pre- ical custody (“the Virginia Order”). Mother’s residence cluded mother from rebutting father’s testimony was designated the “primary residence” for purposes and evidence, without taking into consideration the Taliaferro factors. of determining the children’s school district. Under the shared physical custody schedule, the children would be in Father’s custody every other week from Wednesday or Thursday evening through Monday Michelle Bourdelais (“Mother”), the appellant, morning. During the other weeks, Father would have challenges an order of the Circuit Court for St. Mary’s one evening visit on a day of his choosing, from the County that modified an out-of-state custody order so end of the school day until 7:30 p.m. Father was as to grant her ex- husband, John Durniak (“Father”), required to give Mother 48 hours’ notice of his select- the appellee, sole legal and primary physical cus- ed day. During the summer each party would have two tody of the parties’ two children. She presents two two-week blocks of uninterrupted summer visitation questions for review, which we have condensed and with the children. The Virginia Order also established rephrased as one: a comprehensive holiday visitation schedule. Did the trial court err or abuse its discre- On November 9, 2012, Father filed a request in tion by sanctioning Mother for her failure to the Circuit Court for St. Mary’s County to register the respond to discovery by precluding her from Virginia Order, pursuant to Md. Code (1984, 2012 Repl. presenting any evidence to rebut Father’s evi- Vol.), section 9.5-305 of the Family Law Article (“FL”). dence bearing on which parent was better His request was granted and the Virginia Order was suited to be the sole legal and primary physi- registered. cal custodian of the children?1 On February 22, 2013, Mother, through counsel, Because we answer this question in the affirma- filed the instant action, seeking to “enroll” the Virginia tive, we shall vacate the custody order and remand Order (which already had been accomplished in this case to the circuit court for further proceedings. Father’s case) and to modify it. She alleged numerous Facts and Proceedings material changes in circumstances that she claimed Mother and Father have two children together, would justify a modification of custody to give her Katarina (Katie), age 11, and Sonia, age 8. During sole legal and primary physical custody of the chil- their marriage, they lived in Richmond, Virginia. The dren. The alleged material changes in circumstances record does not reflect when the parties separat- included that the parties were unable to co-parent ed, but it is clear that by 2009 Father had moved successfully; that Mother had lost her job as a result to Lexington Park, Maryland, which is in St. Mary’s of actions taken by Father; that Mother’s “area of pro- County, and Mother and the children continued to live fessional expertise” required her to move to live closer in Richmond. to a major city; and that Father had refused to find a In August of 2010, Mother filed for divorce in “suitable home or townhome for his children.” 25 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law On April 12, 2013, Father, through counsel, filed By joint request of the parties, the June 17, 2013 a countercomplaint for modification, seeking sole modification hearing was continued until August 6, legal and primary physical custody of the children. 2013, to give both parties time to complete discovery. He likewise alleged numerous material changes in On June 20, 2013, Mother’s attorney moved for circumstances to justify modification of the Virginia leave to withdraw. He attached to his request a letter Order, including that Mother recently announced plans notifying Mother of his intention to withdraw. His to move with the children to North Carolina; that she motion was granted on July 5, 2013. had moved three times in the past 14 months; that she On July 22, 2013, Father filed a motion to compel had engaged in verbal abuse; that she had disparaged discovery, asserting that Mother had not furnished him in front of the children; that she had attempted to any responses to his discovery requests. He further remove the children from after-school care on a day asserted that on July 19, 2013, his attorney had sent a when they were scheduled to be in his custody; that letter to Mother’s attorney in an attempt to resolve the she had made false allegations of abuse and had peti- discovery failure.2 July 19, 2013, was two weeks after tioned for protective orders as a litigation strategy; and the court had stricken Mother’s counsel’s appearance, that she had refused to disclose her current address. however. The “Certificate of Service” on the motion Father asked the court to order Mother to pay child showed service upon Mother’s former attorney, not support and requested an award of attorneys’ fees. He upon her. attached as an exhibit to his countercomplaint a copy On July 30, 2013, the court signed an order grant- of a “30 day notice” Mother had sent to him on March ing the motion to compel. The order to compel was not 21, 2013, stating her intention to move to Cary, North docketed that day, and indeed only was docketed on Carolina, and attaching a lease agreement she had August 6, 2013, the date of the modification hearing. executed on March 19, 2013, for an apartment in that The order to compel stated: town. ORDERED that [Mother] shall comply On the same day, Father moved for an emergency with [Father]’s Discovery Request within 5 hearing based upon Mother’s stated intention to move days of the date of this Order. out of state with the children. ORDERED that the facts in this mat- On April 26, 2013, Mother filed an opposition to ter are conclusively established in favor of the motion. She alleged that she had “abandoned” her [Father] and [Mother] is prohibited from intro- intention to move out of state and instead had moved ducing contrary evidence if [she] does not less than an hour away, to Sunderland, in Calvert comply with this Order. County. ORDERED that the issue of [Mother’s] On May 1, 2013, the court held a status conference paying the reasonable attorney’s fees of at which the modification hearing was set for June 17, [Father] in preparing and presenting this mat- 2013. The court directed the parties to draft and sub- ter is hereby reserved by the Court. mit a custody and visitation schedule that would be in (Italicized emphasis added.) The docket entries do not force until the modification hearing. reflect that the order to compel ever was mailed by the On May 15, 2013, Father propounded interroga- court to Mother. tories and requests for production of documents to On August 1, 2013, Father’s counsel filed notices Mother. The next day, Mother propounded interrog- that he had sent discovery responses, by mail and atories and requests for production of documents to facsimile, to Mother’s former counsel and that the father. discovery responses had been mailed by United Parcel On May 17, 2013, the court entered a pendente Service to Mother’s P.O. Box. lite custody order. The order directed that the chil- The modification hearing went forward as sched- dren would keep attending the elementary school uled on August 6, 2013. Father appeared with counsel in Sunderland until the end of the school year; the and Mother appeared pro se. In her opening statement, location for custody exchanges would be the Calvert Mother advised the court that she was seeking “full County Police Station in Solomon’s Island; and the custody during the school year” and for Father to Virginia Order otherwise would remain in effect. receive the whole summer vacation, as well as spring On June 11, 2013, Mother notified the court that, break and Christmas vacation. She suggested that this as of April 17, 2013, she had been enrolled in the would “reduce the number of contact points between Maryland Safe at Home Program for victims of domes- third parties” and would be in the best interest of the tic violence, an address confidentiality program admin- children because of the “toxic” nature of the parties’ istered by the Maryland Secretary of State. See FL § relationship and the “ongoing abusiveness” and “prior 4-520 et seq. As a participant in the program, she had domestic abuse.” Mother also told the court that she been issued a P.O. Box address. All of her mail was had not received any mail from Father’s attorney in directed to that address and then was forwarded to her some time and had “no idea what has been going on in at her confidential street address by a program admin- this case at all.” istrator. The court noted that it had “sent [her] some signed

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 26 order.” This could not have been the order to compel, Father discussed at length his “concerns” about for the reasons discussed above. Mother said she had Mother’s efforts to interfere with his access to the received “the court stuff.” children. He testified that she recently had “unilateral- In his opening remarks, Father’s lawyer discussed ly,” removed the girls from Evergreen Elementary and the order to compel just entered that day. He stated enrolled them at Sunderland Elementary, in Calvert that it was his understanding from that order that County, without “notice or consent.” He only found Mother would not be “permitted to present any con- this out when he went to Evergreen to pick them trary evidence” because she had failed to respond to up and was told by school personnel that they did the discovery propounded to her. not attend that school anymore. He explained that The court asked Mother if it was true that she Sunderland is 30 miles away, but with traffic it takes had not responded to the discovery. She answered close to an hour to drive from his house to the girls’ that Father also had not responded to the discovery new school. This made the custody schedule in the requests propounded to him. (As mentioned, Father Virginia Order unmanageable. had sent his discovery responses to Mother’s former Father testified about three incidents in the past attorney and to her P.O. Box just five days prior to the six months when Mother denied him visitation with hearing. Mother had not received them before the hear- the children. He complained that when Mother did ing date.) The court advised Mother that when a party comply with the visitation schedule, she routinely was fails to comply with discovery he or she is “precluded 45 minutes late for the custody exchange or she often from entering evidence that hasn’t been discovered or would cancel at the last minute, telling him to keep the hasn’t been given to the other side.” girls an additional day because she could not make it Mother again pointed out that Father also had to the exchange location on time. Father said he wel- not provided discovery responses. The court stated comed any extra time with his children, but needed that, because Father had filed a motion to compel, more notice because of work scheduling and because but Mother had not, the court only could rule upon it “stress[ed] out the children.” Father’s request. Mother responded that she had not Father also testified that Mother had told the chil- received a motion to compel, nor had she received dren to lie about him. He had noticed on several occa- the court’s order granting the motion to compel. She sions that Katie was very “secretive” with her cell explained that if the court had mailed the motion phone and was using it to send text messages when to compel six days earlier (on July 30, 2013) to her she was supposed to be reading. After Katie went to P.O. Box address she would not have received it yet bed, he checked her cell phone to read her texts. He because the address confidentiality program often discovered text messages between Katie and Mother results in a delivery delay of about four days after mail that he photographed using his phone. The photo- is received at the P.O. Box. The court responded that graphs, which were introduced into evidence, showed that was “a situation [Mother] ha[d] created” and the that Mother had instructed Katie to text message a court could not take responsibility for a delay caused police hotline to report Father for driving while intox- by the address confidentiality program.3 icated. According to Father, these text messages were Mother then asked the court whether she would sent by Mother when he, Katie, and Sonia were home be allowed to present any evidence at the hearing. The eating Christmas dinner together. Mother also instruct- court advised that it would have to “apply the rule as ed Katie to delete the text messages between them. the situation arises.” In addition, according to Father, there were text In his case, Father testified that he had lived in messages from Mother to Katie telling her that Father St. Mary’s County for four years, during which he had had “locked [her] out of [ ] daycare,” and had “called been employed at the Patuxent River Naval Air Station the police on [her].” In one text message Mother as a flight test engineer. Before accepting that job in described Father as “cray cray,” which is slang for 2009, he had worked for five years as a quality control crazy. Father testified that he did not think it was water inspection engineer,4 in Richmond. About two appropriate “to tell a young child” about custody dis- years before the hearing he moved from Lexington putes between parents and that parents should try to Park to a two-bedroom, two-bathroom apartment in “shelter” children from these issues. Father explained the Wildewood community in California, Maryland. He that as a result of Mother’s ongoing efforts to alienate made that move because Wildewood offered signifi- the children from him, they were anxious around him, cant community amenities, such as bike paths, fishing, at least for the first hour of each custody period. and a pool, and because the children could attend Father testified that he was concerned about the local elementary school, Evergreen Elementary, Mother’s stability. She had “moved 5 different times in which was within three miles of his apartment. Katie the past 14 months” since moving from Virginia. She and Sophia attended a before- and after-care program lived in three residences for two months each, one res- at that school. Father explained that the girls shared a idence for six months, and moved to a fifth residence bedroom at his apartment, sleeping in bunk beds, and about a month before the hearing. Father said he did they had their own bathroom. not understand why Mother was moving so much; his

27 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law concern was about “how that impacts the children and socialized together with their children and that Father their friendships and [his] relationship with the kids.” is a good father. Father also expressed concern about Mother’s Mother called two character witnesses: Laura recent letter, in which she stated her intention to move Girard, a friend from Richmond, and Sylvia Rayland, with the children to North Carolina. He noted that, a friend from St. Mary’s County. Both testified that although Mother had abandoned that intention, her she is a good mother. At various points during their most recent move was made without giving him 30 testimony, Mother asked them questions about recent days’ notice, in violation of the Virginia Order. conflicts between her and Father and about domestic Father testified that Mother, who is a website violence during the parties’ marriage. The court sus- developer, has had three different jobs in the last four tained objections to these questions based upon the years, and she was unemployed at the time of the hear- “discovery violation.” ing. According to Father, Mother has trouble retaining Mother asked for permission to call Katie and jobs because she has “a problem with getting along Sonia as witnesses. The court denied her request, con- with people, in a work environment and pretty much cluding that the children were too young and that it almost every type of environment.” He characterized would be “inappropriate” to take their testimony. her as “aggressive towards people” and “very confron- Before Mother took the stand, the court advised tational.” her that she would be “limited to certain testimo- As an example of this behavior, Father explained ny.” She would be allowed to testify about the chil- that the children’s before- and after-care program dren’s lives and her involvement in their lives, but recently had gone on lockdown during an incident she would not be “allowed to say anything negative in which Mother had threatened Father at the cen- about what [Father] [had] already testified to, because ter. As a result of this incident and others, St. Mary’s it violates the rule.” Mother complied. She testified County Public Schools (“SMCPS”) had issued “No about the children’s schooling and extracurricular Trespassing” notifications to both parties, prohibiting activities. She asked the court to grant her sole legal them from entering the children’s former elementa- and physical custody and to allow for her to move ry school, Evergreen. SMCPS also had conducted an closer to her mother in Pennsylvania. Alternatively, investigation into the parental dispute. On March 15, she suggested that she could move with the children to 2013, the Director of Safety and Security for SMCPS Annapolis, where they could attend St. Mary’s School. issued a 12-page report. (The report was admitted into She suggested that Father be awarded visitation on evidence.) It identified Mother as the source of most Thanksgiving and during Christmas, spring, and sum- of the conflict, noting that she had sent voluminous mer breaks. inappropriate e-mails to staff members at Evergreen, Mother testified that she is employed in a position and detailing a series of confrontations she had had working 32 hours per week. She earns $80,000 annu- with staff at the school, and at the associated before- ally. The court would not permit Mother to introduce and after-care program. The report concluded that, her pay stubs into evidence because of the discovery to avoid further contact between the parties, the “No violation. Trespassing” order would remain in place and the After hearing closing arguments from both parties, parties only would be allowed on the grounds of any the court held the matter sub curia. SMCPS building with advance notice and permission On August 15, 2013, the court entered a or for pick-up and drop-off outside the school. “Memorandum and Order of Court.” In it, the court Father asked the court to modify the Virginia noted that the hearing had been “hampered by Order to grant him custody of the children during [Mother]’s failure to respond to [Father]’s request for the school year from Monday through Friday and to discovery” and by Mother’s not being represented by grant Mother custody three weekends per month, from counsel. As a threshold matter, the court found that Friday after school until Monday morning, with exten- there had been a material change in circumstanc- sions for school holidays. He suggested that Mother es because the joint custody arrangement was “not be awarded five weeks’ visitation during the summer workable or in the best interest of the children at and he would have the children during the remaining [that] time” and because there was heightened conflict three weeks. Father further suggested that if Mother between the parties. moved back to St. Mary’s County, the schedule be kept The court turned to the issue of which parent the same as under the Virginia Order except with the was “best suited for custody,” and made the follow- parties’ roles reversed (i.e., Mother would receive the ing findings. Father had maintained steady employ- same alternating weekend visitation as Father had ment throughout the litigation but Mother had “had received under the Virginia Order). Father also asked problems maintaining her employment.” Father had the court to award him sole legal custody. “maintained his place of residence throughout,”5 while Mother was permitted to cross-examine Father. Mother had “moved multiple times in the last eighteen Father called one witness, Thomas Carron, a (18) months,” resulting in the children having “attend- co-worker. Carron testified that he and Father often ed three (3) different schools in the last thirteen (13)

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 28 months.” Mother’s last move was made without notice 4, 2013, Mother filed a motion to “Alter or Amend to Father. The SMCPS investigative report showed that Order of Court Dated October 21, 2013.” She argued Mother had difficulty “dealing with others” and was that the original judge could not rule on the motion to “uncooperative” with the school system. Mother had alter or amend because he had recused himself and the refused to tell Father her address and had on “more case had been reassigned to another judge. than one occasion” denied him his court-ordered visi- On December 6, 2013, Mother noted an appeal to tation. Finally, the “evidence was clear and undisputed this Court. On December 17, 2013, she dismissed the that [Mother] enrolled or tried to enroll the children appeal and filed a “Motion to Correct Format of Order in a course of action reporting, by texting, to Law Pursuant to Maryland Rule 2-601(A).” She asserted in Enforcement that their Father was drinking and driv- her motion that the August 15, 2013 Memorandum and ing.” Order did not comply with that Rule because the judg- The court concluded that the “children need to be ment of the court was contained in the same document in a stable environment for educational and emotional as its memorandum opinion. development, their school needs to remain the same On January 9, 2013, the court, by the reassigned and they need to be in a stable residence.” It awarded judge, denied Mother’s motion to alter or amend. Father “sole physical and legal custody” with Mother On January 14, 2013, the court, by the recused to have “reasonable rights of visitation,” which were judge, granted Mother’s motion to correct format and not specified. It reserved on the issue of child support. entered a new “Memorandum of Court” and a separate It ordered Mother to pay $13,027.50 toward Father’s “Order of Court.”6 The substance of the memorandum attorneys’ fees. In a separate “Memorandum of Court” and order were unchanged. The court specified that it entered the same day, the court directed that within 30 was not entering the memorandum and order nunc pro days the parties file memoranda on the issue of child tunc.7 support and a Guidelines Worksheet with attached pay On January 24, 2013, Mother noted the instant stubs. appeal. We shall include additional facts as relevant to On August 23, 2013, Mother, now represented by our discussion.8 new counsel, filed a motion for new trial or, in the alternative, to alter or amend the August 15, 2013 Discussion Memorandum and Order. She argued that Father had Mother contends the court erred by sanctioning mailed the motion to compel to her former attorney, her for a discovery failure without considering any instead of to her. Moreover, by rule, she had 15 days of the factors identified by the Court of Appeals in to respond to the motion, but the court granted it a Taliaferro v. State, 295 Md. 376 (1983), or exercis- “mere eight (8) days after [it] was filed.” She asserted ing any discretion with respect to the sanction to be that she did not receive the order granting the motion imposed, if any. She maintains that the court abused to compel until August 8, 2013, two days after the mod- its discretion by denying her the opportunity to present ification hearing. She argued, under the authority of evidence bearing on the best interests of the children, Flynn v. May, 157 Md. App. 389 (2004), that the court in direct contravention to this Court’s decision in abused its discretion by modifying the Virginia Order Flynn, supra. She also argues that the court erred by to award Father sole legal and physical custody with- granting Father’s motion to compel before her time to out permitting her to fully present her case. She asked respond to it had expired. the court to reopen the record, schedule a hearing, and Father counters that the court did not err or abuse allow her to present evidence. its discretion by sanctioning Mother for her complete On September 5, 2013, Mother moved for con- failure to respond to interrogatories and requests for tempt, alleging that Father was not allowing her to production. He points out that Mother never offered have any visitation with the children. any explanation for her discovery failure. He emphasiz- On September 23, 2013, the judge who had pre- es, moreover, that the court permitted Mother to testi- sided over the modification hearing signed a “Line” fy and call two witnesses despite her discovery failure. recusing himself from “any further matter” in the case In a custody modification case, the court must based upon the “appearance of impropriety” occa- “engage in a two-step process.” Gillespie v. Gillespie, sioned by his long time friendship with the husband 206 Md. App. 146, 170 (2012). First, it must determine of Mother’s new counsel. That “Line” was entered whether there has been a material change in circum- on the docket more than a month later, however, on stances since the prior custody determination was October 25, 2013. Meanwhile, on October 10, 2013, the made. Wagner v. Wagner, 109 Md. App. 1, 28 (1996). Administrative Judge signed an order reassigning the If the court finds a material change in circumstances, case to a different judge. That order was entered on then, and only then, does the court “proceed[ ] to con- October 16, 2013. sider the best interests of the child as if the proceeding On October 21, 2013, the recused judge signed an were one for original custody.” McMahon v. Piazze, order denying Mother’s motion for a new trial. That 162 Md. App. 588, 594 (2005). In doing so, the court order was entered on October 25, 2013. On November should consider a nonexclusive list of factors relevant to the best interest inquiry: 29 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law (1) fitness of the parents; (2) character and custody is appropriate, but in doing so reputation of the parties; (3) desire of the nat- we recognize that none has talismanic ural parents and agreements between the par- qualities, and that no single list of cri- ties; (4) potentiality of maintaining natural teria will satisfy the demands of every family relations; (5) preference of the child; case. (6) material opportunities affecting the future We emphasize that in any child life of the child; (7) age, health and sex of the custody case, the paramount concern child; (8) residences of parents and opportuni- is the best interest of the child. ... The ty for visitation; (9) length of separation from best interest of the child is therefore the natural parents; and (10) prior voluntary not considered as one of many fac- abandonment or surrender. tors, but as the objective to which vir- Montgomery County Dep’t of Social Servs. v. Sanders, tually all other factors speak. 38 Md. App. 406, 420 (1978) (citations omitted). (Emphasis supplied). In Flynn, 157 Md. App. at 389, a father filed a peti- In Ross v. Hoffman, 280 Md. 172, 174-75, 372 A.2d tion seeking primary physical custody of his six-year- 582 (1977), Judge Orth stressed that the best interest old son, and asking for child support. The mother and of the child is always the paramount and overriding father, who never married, had separated when the consideration: child was four years old and the mother had been the In performing its child protection function the child’s primary custodian since that time. By agree- court is governed by what is in the best inter- ment between the parties, the father had visitation on est of the particular child and most conducive weekends and two evenings per week. to his welfare. This best interest standard is The mother, who was not represented by counsel, [firmly entrenched in Maryland and is deemed mailed an answer to the court, but did not include to be] of transcendent importance. In Burns v. a certificate of service. As a result, her answer was Bines, 189 Md. 157, 162, 55 A.2d 487 (1947), we returned to her. She never re-filed a proper answer. observed that the statute giving equity courts Upon motion by the father, the court entered an order jurisdiction over the custody of children “is of default against the mother. The mother did not declaratory of the inherent power of courts of move to vacate that order and, ultimately, the court equity over minors, and [such jurisdiction] granted a default judgment against her. Thereafter, should be exercised with the paramount pur- the mother appeared at the merits hearing with five pose in view of securing the welfare and pro- witnesses who were ready to testify on her behalf. It moting the best interest of the children.” We was only then that she learned that she would not be said in Butler v. Perry, 210 Md. 332, 342, 123 permitted to testify or call any witnesses. The court A.2d 453 (1956): Of course, it is too elementary did not take testimony from the father or any of his to be stressed that the welfare of the child is witnesses either. It granted the father’s petition and the controlling test in a custody case. awarded him sole legal and physical custody of the The best interest standard controls when child. It ordered the mother to pay child support. the dispute over custody of a child is between On appeal from the custody order, this Court his biological father and mother. reversed. As relevant here, we opined as follows about (Emphasis supplied). the “Special World of Child Custody”: Ross v. Hoffman then catalogued the many ways [D]efault judgment cannot substitute for a full in which the Maryland cases have attempted to express evidentiary hearing when a court, in order to the paramount importance of the best interest of the determine custody, must first determine the child: best interest of the child. Characterized as “of transcendent impor- The absolute obligation on the trial judge tance” in Dietrich v. Anderson, 185 Md. 103, to undertake a thorough examination of all 43 A.2d 186 (1945) the decisiveness of the best possible factors before determining child cus- interest standard is emphasized by the various tody was forcefully set out by Judge McAuliffe other ways reference is made to it in our opin- in Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d ions. For example, it was characterized as the 964 (1986): “ultimate test” in Fanning v. Warfield, 252 Formula or computer solutions Md. 18, 248 A.2d 890 (1969); the “determining in child custody matters are impossi- factor” in Heaver v. Bradley, 244 Md. 233, 223 ble because of the unique character of A.2d 568 (1966); the “paramount consider- each case, and the subjective nature ation” in Glick v. Glick, 232 Md. 244, 192 A.2d of the evaluations and decisions that 791 (1963); the “sole question” in Young v. must be made. At best we can discuss Weaver, 185 Md. 328, 44 A.2d 748 (1945); the the major factors that should be con- “paramount question” in Piotrowski v. State, sidered in determining whether joint 179 Md. 377, 18 A.2d 199 (1941).

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 30 280 Md. at 175 n.1, 372 A.2d 582 (emphasis supplied). Flynn and the cases cited therein, it was Katie and 157 Md. App. at 407-09. Sonia’s best interests that were being litigated. Katie We emphasized that it is the child’s rights that are and Sonia did not forfeit their right to have the custody at issue in a disputed custody case and that a child has determination made in their best interests after a “full “an indefeasible right to have any custody determina- evidentiary hearing” by reason of Mother’s failure to tion concerning him [or her] made, after a full eviden- answer interrogatories and respond to requests for tiary hearing, in his [or her] best interest.” Id. at 410. production. We likened the mother’s failure to plead to the failure Procedurally, the circuit court clearly erred in of a parent in another case, Rolley v. Sanford, 126 Md. ruling on Father’s motion to compel eight days after it App. 124 (1999), to respond to discovery requests in was filed, which, if Mother received the motion on the her child support case. In Rolley, the court dismissed day it was mailed, which she did not, is seven days less a mother’s complaint for child support as a sanction than the time period for her to respond, under Rule for her refusal to provide discovery responses she had 2- 311(b). Father acknowledges that this was error, but been ordered to furnish. On appeal, we vacated the dis- argues that it did not prejudice Mother. We disagree. missal order, concluding that the mother’s procedural The court’s premature ruling is what ultimately result- violations, although serious, did not justify depriving ed in Mother’s being precluded from introducing evi- her children of the right to receive child support for dence to contradict Father’s evidence. their benefit. For all of these reasons, in Flynn, we We also agree with Mother that the circuit court vacated the custody order and remanded for a full evi- erred and abused its discretion in issuing and enforc- dentiary hearing. ing its order to compel mandating that the facts in We return to the case at bar. Father argues that the case would be conclusively established in favor Flynn is inapposite because there the court granted a of Father and precluding Mother from introducing default judgment against the mother and did not take contrary evidence if she did not comply with the order any testimony or admit any evidence before granting within five days of the date it was signed. As dis- the father custody. Here, in contrast, the court heard cussed, the order to compel, signed by the judge on extensive testimony from Father and his witness; per- July 30, 2013, was not docketed until August 6, 2013, mitted Mother to call two witnesses, who testified that and, most important, never was mailed by the court she was an excellent mother; and permitted Mother to to Mother. Obviously, Mother had no way to know testify and introduce evidence showing that she was a that the consequence of her not furnishing discovery fit and proper person to have primary physical custody responses to Father by August 4, 2013, was that the of the children. facts would be conclusively established in Father’s We disagree and hold that the court abused its dis- favor and she would be precluded from presenting evi- cretion by modifying the Virginia Order to grant Father dence to counter them. It was an abuse of discretion sole legal and physical custody without holding a “full for the court to sanction Mother for not complying evidentiary hearing.” Mother and Father were in agree- with the order to compel when she was not provided it ment that they were unable to co-parent their children until the day of the hearing. and as a result the Virginia Order no longer was work- Finally, we agree as well with Mother that the able. They also were in agreement that any modified court abused its discretion by imposing as a sanction custody order should provide ample visitation time for for Mother’s discovery failure that Father’s facts would the non- custodial parent. They disagreed, however, on be established as true and Mother would be precluded the central issues of which one of them was best suited from contradicting him, without taking into consider- to have sole legal custody — i.e., to be a decision-mak- ation the factors discussed in Taliaferro, 295 Md. at er for the children — and which one of them was best 376. Those factors include suited to have primary physical custody. whether the disclosure violation was techni- On these issues, Father testified at length about cal or substantial, the timing of the ultimate the reasons he would be better able to give the chil- disclosure, the reason, if any, for the violation, dren a stable home and make important decisions the degree of prejudice to the parties respec- affecting their lives and about the reasons Mother tively offering and opposing the evidence, would not be suited to do either. Mother was pre- whether any resulting prejudice might be cured cluded from testifying or introducing any evidence by a postponement and, if so, the overall desir- to the contrary. In reaching its ultimate decision to ability of a continuance. grant Father sole legal and primary physical custody, Id. at 390-91. The court in the case at bar did not con- the court relied on his unrebutted testimony about sider any of these factors, and did not exercise any dis- Mother’s frequent moves, job changes, and difficulty cretion. Rather, it imposed the preclusion sanction by getting along with people. It did so without the benefit rote. The failure to exercise discretion when the court of any explanation by Mother. has discretion is an abuse of discretion. 101 Geneva While we do not downplay the seriousness of a LLC v. Wynn, 435 Md. 233, 241-42 (2013). party’s failure to respond to discovery, here, like in For all these reasons, we shall vacate the January

31 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law 14, 2014 Memorandum of Court and Order of Court and 2. The Certificate of Good Faith attached to Father’s motion remand for a full evidentiary hearing.9 stated that the letter had been sent on May 15, 2013. That clearly was in error because it is the same day Father sent ORDER VACATED. CASE REMANDED TO the original discovery requests to Mother’s counsel. THE CIRCUIT COURT FOR ST. MARY’S COUNTY 3. Again, the record does not reflect that the order to compel FOR FURTHER PROCEEDINGS NOT INCONSISTENT ever was mailed to Mother. WITH THIS OPINION. COSTS TO BE PAID 4. He explained that this position involved inspecting semi- BY THE APPELLEE. conductor chips prior to their installation in computers and gaming devices. 5. In fact, Father had lived in two locations during the litiga- tion, not one. 6. On March 10, 2013, the judge to whom the case had been Footnotes reassigned issued an order denying the motion to correct for- 1. The questions as posed by Mother are: mat. She subsequently learned that that motion already had I. Did the trial court err and/or abuse its discre- been granted by the recused judge and entered an ordering tion when it failed to consider any of the case striking her order denying the motion. law factors of Taliaferro v. State, 295 Md. 376 7. Father moved to alter or amend this order to make it nunc (1983), before imposing the sanction of forbidding pro tunc to August 16, 2013. His motion was denied. Appellant to present evidence contrary to Appellee’s 8. After this appeal was noted, Mother and Father entered at trial, and when it disregarded Flynn v. May, 157 into a Consent Order resolving Mother’s motion for con- Md. App. 389 (2004)? tempt. The Consent Order, which was entered on February II. Where the time for answering Appellee’s 19, 2014, establishes a visitation schedule. Pursuant to that motion had not yet expired, had been served on order, Mother has visitation with the children every other counsel whose appearance had been previously week from Thursday after school through Monday morning stricken, the trial court’s order compelling discovery and has a Thursday night dinner visit on the weeks she does was not docketed until the day of trial, and there is not have weekend visitation. The Consent Order also sets no indication in the record that the court actually forth a summer and holiday visitation schedule. exercised discretion, did the trial court err and/or 9. The parties agree that the court correctly found a material abuse its discretion in automatically imposing the change in circumstances. The record supports that finding. sanction against Appellant Bourdelais, of excluding Accordingly, the hearing on remand shall address legal and her evidence? physical custody, child support, and attorneys’ fees.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 32 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 33 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- CINA: visitation: modification ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. In Re: Sunshyne E. and Noah I. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from No. 0771, September Term, 2014 the courts but are added by the editors. Page num- Argued Before: Berger, Nazarian, Leahy, JJ. bers are from slip opinions. Opinion by Nazarian, J. at least once tried to choke her, apparently because Filed: December 8, 2014. Unreported. she wet herself and fought with her brother.2 The Department removed the children from Mother’s care Given the mother’s history of abusing daughter, on September 7, 2012, and entered a “no-contact” order daughter’s reaction to testifying against mother that prohibited Mother from visiting Daughter for sev- and mother’s lengthy involvement with DSS, the eral months. circuit court acted well within its discretion when Although Mother had supervised visits with Son it responded to daughter’s anxiety about resuming and Daughter as of November 20, 2012, she concurrent- overnight visits by suspending those visits, while ly faced charges of child abuse arising from Daughter’s otherwise continuing unsupervised visits and the injuries. In fact, Daughter was slated to testify about permanency plan of reunification; no evidence the abuse and had met with a prosecutor about her tes- of abuse or neglect was necessary to modify the parameters of unsupervised visitation in the best timony — an obviously difficult and painful ordeal for interest of the child. a young child: During the week prior to [Mother’s] criminal trial, [the prosecutor] met with [Daughter] on Sunshyne E. (“Daughter”) and Noah I. (“Son”) have multiple occasions to prepare her for potential lived with a foster family since September 2012, when testimony. The foster mother reported that the Circuit Court for Montgomery County declared [Daughter] exhibited signs of stress before them children in need of assistance (“CINAs”) and the and after these meetings. She stated that Montgomery County Department of Health and Human [Daughter] did not sleep well and wet the bed, Services (“the Department”) removed them from the which she had not done since . . . first coming care of their mother, Andrea L. (“Mother”). Since that into foster care. She also wanted to sleep in time, the court has continued a permanency plan of the foster parents’ room and told them she was reunification, and Mother has taken part in visits with very nervous. It is clear that [Daughter] con- the Children, supervised at first, and later unsuper- tinues to experience anxiety surrounding the vised. But after Daughter expressed reservations about physical abuse from [Mother]. overnight visits with Mother, the court stopped them, (Emphasis added.) Mother ultimately pled guilty to and Mother appeals that decision. Because the circuit second-degree child abuse and was sentenced on May court acted well within its discretion when it respond- 1, 2013 to five years of probation, with conditions that ed to Daughter’s concerns about staying overnight with included parental classes and anger management coun- Mother, particularly given Mother’s lengthy history of seling. involvement with DSS and the surrounding circum- A psychologist examined Mother on June 10, 2013 stances, we affirm. and noted that Mother “had difficulty coping with mul- tiple stressors,” including her own background and I. Facts being involved in a “hostile, abusive relationship with Mother’s history with the Department predates by [Children’s] father,”3 which, along with other problems, several years the circuit court decision before us in led her to become “overly critical . . . of [Children] this appeal, and that history sets the stage.1 The record when their behavior is challenging, and this contrib- reveals no fewer than three Department investigations utes to further distress in the family and to harmful between 2008 and 2012 that grew out of reports that patterns of parenting.” The psychologist recommend- Mother had neglected or abused Daughter. The last ed that Mother take part in individual psychotherapy, of these began on September 6, 2012 after Daughter work with an educational/vocational counselor, see a (then seven years old) arrived on the first day of school physician to address certain medical issues, join a sup- dirty and with multiple injuries. A teacher notified port group for single parents, use a parenting coach, the Department and Daughter informed authorities in and undergo monitoring of her “occasional substance an interview that Mother had hit her with a belt and abuse.”

33 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law The Children’s visits with Mother were bumpy, ed that they had fun during the visit. Neither of although they did progress from supervised to unsuper- them expressed any concerns or reservations vised visits. Mother showed affection to the Children, about being in their mother’s home or about but inconsistently: although she showed genuine inter- the events that transpired during the visit. This est in them at times, she also overtly violated her agree- worker asked [Mother] if [Daughter] had wet ment not to affect their placement when she asked the bed during the visit and she stated she them where and with whom they wanted to live. Mother had, but [Mother] did not say or do anything also inserted herself in the Children’s relationship with in response that would have conveyed she was Father, pressing them in a February 2013 visit about angry with [Daughter]. their stays with him and apparently getting angry when (Emphasis added.) she perceived that Daughter wanted to “get her way” in Although another visit was scheduled to take place how visits were scheduled. A social worker expressed over the weekend of March 21, 2014, Mother contacted concern that Mother “handled her emotions inappropri- the social worker, expressed concern that she did not ately” during the visit and also saw Mother favoring Son have enough food for the Children, and suggested that over Daughter during at least one visit. the visit that weekend should be a day visit rather than On December 20, 2013, the court ordered unsuper- an overnight. The Department agreed to this request, vised visitation between Mother and the Children at but overnight visits picked up again thereafter for sev- least once a week, and allowed for the possibility of eral weeks, including a two-night visit over the April 18, overnight visits. The first overnight visit took place on 2014 weekend. March 15, 2014, and reviews were mixed. The May 2, According to the social worker, Daughter told her 2014 progress report of a social worker recounted the on May 2, 2014 that she did not want to go to Mother’s details, including Daughter’s anxiety upon returning to house overnight. Although Daughter gave several rea- the foster home: sons that she felt this way, none seemed to rise to the [Mother] stated that [the Children] seemed to level of abuse: have a good time. [Mother] expressed frustra- [Daughter] stated that she “doesn’t want to tion that there were “too many” scheduling and go” to her mother’s home. When asked why communication issues during the visit related she felt this way, she first replied that [Son] to meeting the foster parents for pick up and looks at her when she is changing or taking drop off, as well as the CASA worker coming to a bath, and that this bothers her. She stated the home during the visit. This worker pointed that she tries to change in her room alone out that [Mother] seemed to be preoccupied and take a bath with the door closed, but that with these frustrations rather than on the fact [Son] still comes in to the room. [Daughter] that her first overnight visit was successful. stated that she has not told her mother that [Mother] acknowledged that the visit went well this bothers her, and her mother has not acted overall and that she should be more flexible on the situation. After being asked if there and patient when scheduling or communication were other reasons she did not want to go issues arise, and focus on spending positive to her mother’s home, [Daughter] stated that time with her children. her mother does not have a shower curtain, The foster parents reported to this worker that so [Daughter] has to take a bath instead of a there were some “challenges with the visit . . shower. She also expressed that she and her . due to the fact that [Mother] misunderstood mother “don’t always get along.” This worker the pick up and drop off arrangements and asked [Daughter] to give examples of times that also asked for a ride back to her home with they did not get along, and [Daughter] stated the children. Additionally, the foster parents that during a recent visit, she and [Son] were reported that [Son] told them [Daughter] wet arguing and [Daughter] started to say some- the bed and Mommy got mad.” The foster par- thing mean to him, but stopped. [Mother] then ents stated that they “don’t think anything asked her “what did you say?” and [Daughter] happened,” but that [Daughter] was “very replied “nothing.” [Mother] then “smacked her hyper” when she returned from the visit. They lips and said ‘that’s why me and you don’t get stated that they asked [Daughter] if she was along.’” This worker asked [Daughter] how she feeling nervous about going “back home,” and felt when her mother said this, and [Daughter] she replied “no, this [foster home] is home.” replied that she “didn’t feel good.” This worker The foster father then explained to her that she asked how [Daughter] would feel about telling would likely be going back home to live with her mother . . . how the comment made her her mother at some point, and that [Daughter] feel, and she stated that she did not want to tell expressed that she wasn’t sure if that is what her but that this worker could speak with her she wanted.” When this worker met with the mother about it. children to discuss the overnight visit, they stat- The court held a hearing on May 12, 2014 (the

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 34 “Hearing”), ten days after this report. The best inter- stressed that if there were any changes in the circum- ests attorney who had represented the Children was stances, the parties could seek a request in the order ill and unable to appear that day, so substitute counsel before the next hearing. Mother filed this timely appeal. appeared on her behalf. Although the court initially attempted to reschedule the Hearing, the parties could II. Discussion not find a suitable date, so the court pressed on. Stand- Not surprisingly, Mother views her history with in counsel related Daughter’s reluctance to stay over- Children far differently than the Department does.4 night: “[Daughter] stated to [counsel] that she does not From her standpoint, no circumstance justified remov- want to have overnight with her mother at this time. ing overnight stays from the reunification plan given Wasn’t very forthcoming on a reason, but was very that her conduct “was and would continue to be clear on the fact that she does not want overnights.” appropriate during overnight visitation.” In contrast, Counsel for Mother made no objection. Counsel for the Daughter — who has been the subject of serious phys- Department stated that “the general philosophy of the ical abuse at Mother’s hand — expressed understand- Department . . . especially where [Daughter] is right able reluctance not just about staying with Mother now is that the transitioning to the mother would . . . overnight, but also, on numerous occasions before, [happen] in a very, very, slow and orderly and careful about Mother’s care. Mother argues in her brief that “[t] way, given, especially, where [Daughter] is in the way he fact that [Daughter] expressed that she did not want that she’s talking about the visits at this point.” The to have an overnight visitation should have carried little court saw things similarly: weight [with the circuit court].” But although we under- It seems to me like this is at a pretty delicate stand that Mother may find the process frustrating, point right now. I think . . . it appears that some the circuit court properly kept the best interests of the of the issues that brought the children into care children in the forefront, and properly looked not to may be reappearing. . . . [T]he whole report the isolated question of overnight visits, but at wheth- reads like we’re in this really trying period of er overnight visits remained appropriate in light of time. . . . Mother’s history with Daughter and Daughter’s extreme * * * anxiety surrounding the relationship. So, again, I think this is at a really delicate A. We Deny The Children’s Motion To Dismiss. place as far as what happens next. . . . I’m say- ing all of this because at some point of course, Before getting to the merits, we pause to address the balance will tip toward making a determi- the Children’s Motion to Dismiss, in which they argue nation about a permanent placement for the that Mother’s appeal must fail because the circuit children, and getting them out of the foster care court’s decision is not a final judgment. The rule gov- system. And so some significant progress has erning appealability permits an appeal of the juvenile got to get made in the next six months. court’s decision under certain limited circumstances: After making some general findings about the Children “A party may appeal . . . [a]n order [d]epriving a par- continuing to be CINAs, the court made a final decision ent, grandparent, or natural guardian of the care and about the overnights: custody of his child, or changing the terms of such an I’m not prepared at this point, frankly, to order.” Md. Code (2006, 2013 Repl. Vol.), § 12-303(3) order the overnights, given that the child is (x) of the Courts & Judicial Proceedings Article (“CJ”) saying she’s not comfortable with it. . . . I’d (emphasis added). The Court of Appeals has provided need to have different information than I have specific guidance as to what constitutes a “depriva- now, other than that she’s not comfortable with tion” of care. See In re Billy W., 387 Md. 405 (2005). it, in order to order it to proceed. I guess what Billy W.’s mother appealed the circuit court’s order to I’d say about it is that if whatever it is that’s continue a permanency plan, and the Court held that concerning [Daughter], and, of course, it con- because certain aspects of the order operated to the cerns me that she doesn’t feel ready to do this, Mother’s detriment, the orders were interlocutory in given how the case came in, but if she turned nature and therefore appealable under CJ § 12-303(3) out that whatever the issues are have been (x). It explained that the order changed visitation by resolved, there’s no reason that there couldn’t eliminating the mother’s unsupervised visitation alto- be a motion filed to request that the order be gether will respect to Billy W. and another of her chil- amended so that it could be overnights. dren: (Emphasis added.) The court noted again later in the [T]he court orders . . . eliminated [mother’s] Hearing that it wished to “focus on moving [the chil- unsupervised visitation [and] infringe[] upon dren] toward viable permanency with a parent.” [mother’s] opportunities to interact with, and Mother objected to the court’s decision to elim- care for, the boys and to potentially build inate overnight visits, arguing that there had been stronger relationships with them. Because no evidence at the Hearing to justify a change in the the orders . . . changed the terms of [moth- prior order. After more back-and-forth, the court again er’s] visitation to her detriment, the orders are appealable as interlocutory orders under [CJ §]

35 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law 12-303(3)(x). In the context of this statute, Mother claims that Id. at 426 (emphasis added). Daughter’s comments were “blown out of proportion,” The standard laid out in Billy W. requires that we and actually improperly slowed down the process of hear Mother’s appeal. Billy W. found that changing vis- reunification.5 its from unsupervised to supervised interfered with a In response, the Department argues that FL § 9-101 parent’s ability to bond with a child. If a change restrict- need not guide the circuit court’s decision, and that ing supervision inures to a parent’s detriment, the elim- there was no reason to “limit [the] court’s authority ination of overnight visits could have the same effect to place parameters on unsupervised visitation.” This in kind (if perhaps not in degree), and the decision is authority, according to the Department, gave the circuit appealable by that measure. See, e.g., In re Marriage of court the authority to suspend overnights in light of Chehaiber, 917 N.E.2d 5, 9 (Ill. App. 2009) (distinguish- the stress Daughter was known to have gone through ing between “modifying” visits, where, for example, when having to testify against Mother, and the admitted one day is eliminated from a weekend visitation, and abuse on Mother’s part, among other factors. “restricting” visits, “which limits, restrains, or confines We agree with the Department. We note first that visitation within bounds. A termination of visitation is a FL § 9-101 does not eclipse the best interest standard, restriction, as is a prohibition on overnight visitation. but simply gives the court an additional decision-mak- Likewise, a requirement that visitation be supervised ing tool: “the source of the court’s authority to make . . . is a restriction.’” (quoting In re Marriage of Lee, custody and visitation determinations does not stem 615 N.E.2d 1314, 1327 (1993))). from [FL] § 9-101 alone. . . . The best interest of the child standard is the overarching consideration in all B. The Circuit Court Properly Exercised Its custody and visitation determinations.” Baldwin, 215 Discretion When It Suspended Overnight Visits. Md. App. at 108 (emphasis added). We review the circuit court’s decision to suspend Second, the language of FL § 9-101 is prohibitive in overnight visits for clear error on the facts and for any event. That is, once the court has determined per abuse of discretion on its ultimate conclusion. In re Yve FL § 9-101(a) that a child “has been abused or neglect- S., 373 Md. 551, 585-86 (2003). A family law court in a ed” by a party, the court “shall deny” visitation rights CINA proceeding can and should examine not only the in keeping with FL § 9-101(b), other than a supervised facts surrounding the immediate question, but also the visitation arrangement that keeps the child’s best inter- history of the child’s relationship with her parent lead- ests in mind. Id.; see also Adoption No. 12612, 353 Md. ing up the decision. See In re Priscilla B., 214 Md. App. 209, 237-38 (1999) (noting that the court has authority 600, 633 (2013) (affirming circuit court’s finding that a independent of FL § 9-101 to deny custody or limit vis- child was a CINA, where it properly looked not just to itation where evidence of past abuse leads the court to the surroundings DSS found her in at the time of the conclude there is a likelihood of abuse or neglect). particular incident, but also at “[t]he family’s history Finally, nothing in the language of FL § 9-101 pur- with DSS[, which] provided the court with an appropri- ports to restrict the trial court’s ability to limit visita- ate context for its decision”). And of course, the single tion by taking away overnight stays with Mother. This overarching consideration is the best interest of the decision lies solidly within the court’s discretion. In re child. Baldwin v. Baynard, 215 Md. App. 82, 108 (2013). Shirley B., 419 Md. 1, 19 (2011) (stating that a review- Mother contends here that in order for the court ing court should be “mindful that ‘[q]uestions within the to curtail overnight visits, it was required to find a discretion of the trial court are much better decided by “likelihood of further abuse or neglect.” She cites for the trial judges than by appellate courts, and the deci- this proposition Md. Code (1984, 2012), § 9-101 of the sions of such judges should only be disturbed where it Family Law Article (“FL”), which is entitled “Rejection is apparent that some serious error or abuse of discre- of Custody or Visitation if Abuse Likely”: tion or autocratic action has occurred’” (quoting In re (a) In any custody or visitation proceeding, if Yve S., 373 Md. 551, 583 (2003))). the court has reasonable grounds to believe In this case, the record revealed ample reason to that a child has been abused or neglected by a suspend overnight visits: party to the proceeding, the court shall deter- • Daughter had already suffered abuse by mine whether abuse or neglect is likely to Mother, who pled guilty to the offense. occur if custody or visitation rights are granted • Daughter had to testify against Mother and to the party. showed palpable anxiety about doing so. (b) Unless the court specifically finds that there is no likelihood of further child abuse or • By Son’s account, Mother got angry with neglect by the party, the court shall deny custo- Daughter after she wet the bed at an overnight dy or visitation rights to that party, except that visit. the court may approve a supervised visitation • Daughter expressed concern about Mother’s arrangement that assures the safety and the getting mad at her when she fought with Son. physiological, psychological, and emotional • Daughter told counsel she did not want to well-being of the child. spend the night at Mother’s house.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 36 • The social worker noted Daughter’s expressing discretion slowed down the progression toward more concern about overnights. overnight visits rather than imperil the already-fragile All these factors painted a picture that the trial parent-child relationship. judge saw as not worth the risk — and indeed, it seems JUDGMENT OF THE CIRCUIT COURT FOR to us that Daughter’s discomfort alone would have suf- MONTGOMERY COUNTY AFFIRMED. ficed to put the brakes on overnight visits, at least for a COSTS TO BE PAID BY APPELLANT. time. Moreover, the court only suspended the visits “for a time” (though admittedly not one with a specific end- point), stressing that Mother could revisit the order and seek modification. Footnotes Mother points us to two cases that impliedly sup- 1. That history includes a prior appeal to this Court, in which port her position. In the first, North v. North, 102 Md. we affirmed the CINA finding in spite of Mother’s claim that App. 1 (1994), we concluded that the circuit court the circuit court erred when it relied on a pediatrician’s report abused its discretion when it denied a father overnight and diagnosis of Daughter as suffering from physical child visits with his children. The marriage there ended when abuse, and in declaring Son a CINA based on its findings about Daughter. See In re Sunshyne E. and Noah I., No. 2135, Mr. North informed his wife that he was HIV-positive, Sept. Term 2012 (Md. App. May 31, 2013). and had contracted the virus from a male partner whom 2. Mother has asked that we “strike” certain information he intended to marry. When he also told his wife that he recounted in the Department’s brief as not supported by the planned to inform their three children, all under the age circuit court’s findings. Specifically, although the original of ten, about his plans, she terminated his visitation and CINA petition refers to Mother’s “history of mental health filed for divorce. Id. at 4. issues,” this information was omitted from the amended CINA We held that the trial court unreasonably restricted petition. And although the Department also refers in its brief Mr. North’s access seemingly on the basis of his life- to an eye injury Daughter ostensibly suffered at Mother’s style rather than any specific concerns for the children hands, the information evidently came to the Department if they were to stay with him overnight. Id. at 17. And in through Daughter’s foster mother, so the circuit court made John O. v. Jane O., 90 Md. App. 406 (1992), we affirmed no findings of fact in that regard. Rather than strike these allegations from the record, we have not considered them in the trial court’s decision to prohibit a father from hav- evaluating the decision before us here, which, as we discuss ing overnight visits with his minor son based on the below, is amply supported by other evidence indisputably in son’s allegations that his father had abused him and the record. credible evidence of the father’s pedophilic tendencies. 3. Although the Children’s father participated in at least one Id. at 434-35. hearing by phone, he is not a party to this appeal. These two cases do not apply. Both North and John 4. Mother presents the following question for our review: O. both involved a trial court’s assessment of a parent’s Did the court err in revoking permission for over- lifestyle and how that affected the practicability of night visits between [Children] and [Mother]? overnight visits — in the former case, it should not have 5. Mother also vaguely suggests in her Reply Brief that the (because the father’s homosexuality should not have court should not have admitted the statements of counsel borne on the trial court’s decision about the propriety as representing Daughter’s position, but we are comfortable of overnight visits), and in the latter, it was eminently that the court did not stretch the bounds of the hearsay rule beyond the relaxed evidentiary rules that accompany CINA appropriate for the trial court to prevent overnight vis- proceedings. See In re Ashley E., 387 Md. 260, 293-94 (2005) its (to protect the child from a real possibility of harm). (at disposition hearings, “‘the court may, in the interest of This case doesn’t even fall on that spectrum: the trial justice, decline to require strict application’ of the Rules of court here had before it evidence that raised serious Evidence ‘other than those relating to the competency of wit- concerns about Daughter’s comfort level with over- nesses.”’). Moreover, Mother never raised this objection at the nights that the court could not ignore. The exercise of Hearing.

37 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 38 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Child support: modification: res judicata ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Margot R. Proctor See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- James M. Proctor bers are from slip opinions. No. 2025, September Term, 2013 Background The background for this case is set forth in the Argued Before: Woodward, Wright, Graeff, JJ. factual and procedural history of this Court’s unreport- Opinion by Woodward, J. ed opinion in the appeal of the trial court’s denial of Filed: December 8, 2014. Unreported. appellant’s first petition: Appellant, Ms. Proctor, and appellee, Mr. Proctor, had a turbulent marriage. The two Mother’s second petition to modify child support parties were separated several times over the was barred by res judicata, and the court properly course of their 12 year marriage. They had dismissed it without a hearing and awarded attor- two children, Joshua and Jason. Their journey neys’ fees to father, where the first petition had been denied by an order filed just 33 days earlier, through the court system was equally tumul- the second petition was identical to the first and tuous. The trial court granted the parties an did not claim any material change in circumstances absolute divorce on February 24, 2004, but since the first petition’s denial, and mother’s appeal they stayed mired in litigation for years after- of the denial was pending. ward. We have summarized the litigation histo- ry relevant to this appeal below. In granting the absolute divorce in 2004, Margot Proctor, appellant, and James Proctor, the trial court awarded appellant the following: appellee, were divorced in 2004 in the Circuit Court 1) a marital award of $75,317.50; 2) rehabilita- for Montgomery County. Pursuant to an order entered tive alimony for three years beginning in March on May 3, 2007, appellee was required to pay appel- 2004, in the amount of $3,500 per month for the lant $2,104 per month in child support for the parties’ first twenty-four months, and $2,500 per month minor children. In May of 2010, the trial court ordered for the next twelve months; 3) child support that the child support payments remain at $2,104 per of $1,364 per month for the first twenty-four month. On August 7, 2012, appellant filed a petition months, $1,503 per month for the next twelve for modification of child support (“first petition”). months, and $1,854 per month thereafter; and The trial court denied appellant’s first petition in an 4) use and possession of the marital home until order entered on May 15, 2013, following a hearing on September 2006. The trial court also ordered March 11, 2013. Appellant appealed the trial court’s appellee to pay half of the mortgage payments order, which was affirmed by this Court in an unre- on the marital home until the sale of the home, ported opinion on March 24, 2014. While that appeal which was to take place in 2006. Finally, the was pending, appellant filed a second petition for mod- trial court ordered each party to pay their ification of child support (“second petition”) on June respective attorney’s fees. Appellee then filed 17, 2013. Appellee filed a motion to dismiss appellant’s a motion to alter or amend this judgment. second petition and for an award of attorney’s fees, The trial court issued an amended judgment which the trial court granted in its entirety. of absolute divorce that reduced the marital Appellant raises two questions for our review, award to $43,000.50 on April 5, 2004. which we have rephrased: Appellant appealed to our court, and 1. Did the trial court err when it dismissed we remanded to determine if appellant was appellant’s second petition? entitled to indefinite alimony. On remand, in 2. Did the trial court abuse its discretion in 2006, the trial court issued an amended judg- awarding attorney’s fees to appellee?1 ment that denied appellant indefinite alimony, For the reasons set forth infra, we answer both ques- but gave her an additional $1,000 for the last tions in the negative and affirm the trial court’s order. twelve months of alimony. She appealed. In the interim, the parties continued to litigate

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 38 over the child custody arrangements and addi- denying appellant’s first petition for modification of tional payments. On May 3, 2007, the trial court child support, as well as denying her petition to cite increased the child support payments to $2,104 appellee in civil contempt. Proctor, slip. op. at 1. per month. Then, recognizing that the mort- gage payments were in arrears, the trial court Discussion on March 18, 2009 ordered appellee to pay I. Modification of Child Support the entirety of the mortgage payments on the marital home from March 2009 through June Appellant argues that the trial court “failed to con- 2009, and to bring those payments current. This sider let alone hear the particular facts of the case” obligation resulted in appellee contributing when it dismissed her second petition, “without having more than $100,000. After June 2009, the court taken any testimony and without the benefit of evi- ordered the parties to revert to an even split in dence.” Appellant contends that the dismissal with prej- the mortgage payments. udice was improper, because it suggests that appellant is “precluded from pursuing an action to modify child In response to appellant’s alimony appeal support in the future[,] which would be contrary to the from 2006, we issued a remand for the trial tenants [sic] of the applicable child support provisions.” court to determine the future earning capacity Appellee responds that the trial court did not err of appellant. On remand, in May 2010, the trial when it dismissed appellant’s second petition without court ordered the following: 1) that appellee a hearing, because the second petition was barred by pay rehabilitative alimony in the amount of the principle of res judicata. According to appellee, $2,000 per month for two years beginning on appellant’s appeal “is based on the argument that a June 1, 2010; 2) that each party pay his or her party has an absolute right to file for a modification of own attorney’s fees; 3) that the child support child support as frequently as they would like, and an payments remain at $2,104 per month; and 4) absolute right to be heard with each filing, even where, that the marital home be placed on the market as in the case at bar, a hearing was held only three for sale immediately. months earlier and no new change in circumstances As stated above, on August 7, 2012, appel- has been alleged.” Appellee notes that appellant could lant filed a motion for a modification of child have alleged, but did not, a material change in circum- support payments, and filed a petition for con- stances since the order denying her first petition (1) tempt against appellee. [On March 11, 2013, t] in her second petition, (2) in an opposition to appel- he trial court denied appellant’s motion to mod- lee’s motion to dismiss, or (3) in her motion to alter ify child support, and declined to find appellee or amend. Appellee argues that entitling appellant to a in contempt. This timely appeal followed. hearing with every petition to modify child support to Proctor v. Proctor, No. 0315-13, slip op. at 1-3 (Md. App. determine whether a material change in circumstances Mar. 24, 2014) (footnotes omitted). has occurred “would completely gut the application of Before this Court issued the above opinion, appel- the doctrine of res judicata as applied in child support lant filed her second petition for modification of child and alimony modifications.” We agree with appellee. support on June 17, 2013 — three months and six days The Court of Appeals recently set out the standard after the trial court’s oral ruling at the conclusion of its for appellate review of motions to dismiss based on the hearing on March 11, 2013, and thirty-three days after res judicata doctrine: the entry of the corresponding order on May 15, 2013. In reviewing a lower court’s ruling on a Appellee filed a motion to dismiss appellant’s second motion to dismiss, we must determine wheth- petition on July 3, 2013, arguing that the second peti- er the court was legally correct. We accept all tion was identical — word for word — to appellant’s well-pled facts in the complaint, and reason- first petition, the denial of which was then pending on able inferences drawn from them, in a light appeal.2 In his motion, appellee also asked for an award most favorable to the nonmoving party. We also of attorney’s fees in the amount of $900, because the interpret Maryland case law to review whether second petition was “filed without substantial justifi- the lower courts’ conclusions were correct as a cation. “No opposition was filed by appellant.3 The trial matter of law. court entered an order on August 23, 2013, granting The doctrine of res judicata bars the relit- appellee’s motion, dismissing appellant’s second peti- igation of a claim if there is a final judgment in tion “without leave to amend and with prejudice,” and a previous litigation where the parties, the sub- ordering appellant to pay appellee $900 in attorney’s ject matter and causes of action are identical fees. On August 30, 2013, appellant filed a motion to or substantially identical as to issues actually alter or amend the trial court’s order, which was denied litigated and as to those which could have or in an order entered on October 23, 2013. On November should have been raised in the previous litiga- 22, 2013, appellant filed her timely notice of appeal. tion. As we have previously described, the res On March 24, 2014, in an unreported opinion, this judicata doctrine embodies three elements: Court affirmed the trial court’s May 15, 2013 order (1) the parties in the present litigation are the

39 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law same or in privity with the parties to the earlier modify the award if thereafter litigation; (2) the claim presented in the current there comes about material change action is identical to that determined or that in circumstances which justify the which could have been raised and determined action. in the prior litigation; and (3) there was a final Therefore, the exact same considerations apply judgment on the merits in the prior litigation. to a modification of child support: a change Cochran v. Griffith Energy Servs., Inc., 426 Md. 134, in circumstances must be shown to sustain a 139-40 (2012) (citations and internal quotation marks modification of child support contained in a omitted). divorce decree. Section 12-104(a) of the Family Law Article (“FL”) Reese, 50 Md. App. at 711-12 (emphasis added) (alter- sets forth the conditions for modifying a child sup- ations in original) (citations and internal quotation port award: “The court may modify a child support marks omitted). award subsequent to the filing of a motion for modi- Applying the three res judicata elements to the fication and upon a showing of a material change in present case, there is no question that (1) the trial circumstance.” The Court of Appeals has noted two court’s May 15, 2013 order denying appellant’s first “obvious ways” that a change in circumstances would petition for modification of child support was a final be “relevant” for the modification of child support: judgment on the merits, and (2) the present parties are an event that caused the level of child support, which the same parties to the earlier litigation. See Cochran, “a child is actually receiving or entitled to receive,” 426 Md. at 140. Therefore, the only issue is whether to increase or decrease, or a change in the parents’ appellant’s claim in her second petition is identical to combined income. Drummond v. State, 350 Md. 502, the claim adjudicated in the March 11, 2013 hearing and 509-10 (1998). Nevertheless, “the requirement that the the May 15, 2013 order. See id. change be ‘material’ limits a court’s authority to situa- Appellee is correct that appellant’s second petition tions where a change is of sufficient magnitude to jus- is identical, word for word, to her first petition for mod- tify judicial modification of the support order.” Wills v. ification of child support, which formed the basis of the Jones, 340 Md. 480, 488-89 (1995). The party requesting trial court’s May 15, 2013 order. Both petitions state, in modification must make an “affirmative showing” of a relevant part: material change, which requires more than “conclusory That since the entry of the Order awarding assertions.” See Payne v. Payne, 132 Md. App. 432, 442- child support to [appellant], the circumstances 43 (2000). of the parties have changed in that including, This Court analyzed the application of the res judi- but not limited to, the following: (a) the income cata doctrine to a petition for modification of child of [appellee] has increased; (b) the expenses support in Reese v. Huebschman, 50 Md. App. 709, 711, relative to the minor children have increased; cert. denied, 293 Md. 547 (1982). In Reese, we stated: (c) that [appellant] is no longer receiving ali- Any issue that was litigated or could have mony from [appellee]; (d) the financial needs been litigated in the divorce proceeding of the children have increased and (e) [appel- may not be relitigated in a subsequent lant’s] income has decreased. petition to modify the support. The basis The trial court’s March 11, 2013 hearing focused of a petition to modify child support may primarily on any material change of circumstances only be an issue that was not and could not since the court’s May 13, 2010 order, and the court have been raised earlier, viz., a change in found that no such change had occurred. This Court the circumstances of the parties. affirmed the trial court’s May 15, 2013 order denying In Lott v. Lott, 17 Md. App. 440 (1973), we the appellant’s first petition, wherein we noted the fol- held that the rule for modifying child support lowing: was the same as that for modifying alimony. We Here, the trial court denied the modi- held that the court may modify alimony at any fication of the child support award because time, if there is sufficient cause, but that it may appellant failed to show that the award not should be adjusted based on the needs relitigate matters that were or should of the children. While the parties stipulated have been considered at the time of that the children’s expenses increased, appel- the original award. . . . [A]ll questions lant failed to convince the trial court that this concerning alimony which are or ought increase resulted in the children’s needs not to be determined in a divorce proceed- being met. Although appellant claimed that the ing are res judicata in a subsequent trial judge did not allow her to present the evi- proceeding in the same jurisdiction. . dence she needed to establish additional child . . It is, of course, equally established support, we reject this argument. The trial that the equity court which made judge offered her numerous opportunities the original award of alimony may to explain how the children’s needs were

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 40 not being met, but she failed to produce tion; and (4) it provides for the speedy resolu- actual evidence of it. For instance, appellant tion of frivolous claims and defenses. never provided the court with an estimate of 154 Md. App. 420, 429 (2003) (emphasis added) (cita- how much the children’s expenses increased or tions and internal quotation marks omitted). with a list of activities that the children had to In the context of a petition for modification of forego as a result of the cost. Instead, the focus child support, the petitioner must allege a material of appellant’s testimony was how she lacked change in circumstances occurring after the entry of money. While she offered a financial statement the previous order relating to child support. See Rule from 2010 to show that the children’s expenses 2-303(b); Ledvinka, 154 Md. App. at 429; Reese, 50 Md. had increased, she admitted that the financial App. at 711-12. In the instant case, appellant failed to statement did not reflect their actual expenses, allege in the second petition a material change in cir- but rather, how she felt they should be living. cumstances from the trial court’s May 15, 2013 order. Moreover, she conceded that appellee pays the Appellant alleged that “the circumstances of the parties majority of other expenses that the children have changed” “since the entry of the Order awarding incur in addition to his child support payments. child support.” Such “Order” could not refer to the May As a result of these additional payments, there 15, 2013 order, because the latter denied appellant’s was no indication that the children were being first petition; it did not “award[ ] child support.” The deprived of anything. “Order awarding child support” could only refer to While it is undisputed that appellee’s the May 3, 2007 order establishing the award of $2,104 income has increased since the child sup- per month or the May 13, 2010 order reaffirming that port award . . . , the trial court found that award. The trial court addressed the alleged materi- factor alone was an insufficient basis for al change in circumstances from those orders in its increasing appellant’s child support award, denial of the first petition. Moreover, in her motion to and we agree. The court also rejected alter or amend the dismissal of her second petition, appellant’s argument that her decreased appellant again claimed that “she is permitted to seek a income meant she was entitled to addition- modification of the child support from the last date the al money because it found that her income order was entered establishing support.” (Emphasis was never very high and that she had never added). Therefore, it is clear that appellant’s second made an effort to become self-sufficient. petition alleged the exact same claim as the first peti- Because we think there is ample evidence in tion. Accordingly, the trial court did not err in dismiss- the record to support these findings, we do ing appellant’s second petition on the ground of res not disturb them. We are not persuaded that judicata. the trial court abused its discretion in denying Finally, the trial court did not err in dismissing modification of the child support award. appellant’s second petition with prejudice. Contrary to Proctor, slip. op. at 4-6 (emphasis added) (footnotes appellant’s assertions, the trial court’s action does not omitted). bar appellant from ever filing a new petition for mod- Rule 2-303(b) requires a pleading to “contain only ification of child support, if appellant alleges a mate- such statements of fact as may be necessary to show rial change in circumstances since the trial court’s the pleader’s entitlement to relief or ground of defense. last order. See FL § 12-104(a). Appellant is, however, It shall not include argument, unnecessary recitals of barred from filing the same petition that she has now law, evidence, or documents, or any immaterial, imper- filed twice, alleging a change in circumstances from the tinent, or scandalous matter.” The Court of Appeals same order or orders. has stated that “[m]ere conclusory charges that are not II. Attorney’s Fees Award factual allegations may not be considered” upon review of a motion to dismiss. Arfaa v. Martino, 404 Md. 364, Section 12-103 of the Family Law Article sets out 380 (2008). This Court stated the importance of proper the conditions for awarding costs and counsel fees in a pleading in Ledvinka v. Ledvinka: petition to modify child support: Despite the fact that Maryland has long Conditions for award of costs and fees since abandoned the necessities of common (b) Before a court may award costs and coun- law pleading, it is clear that the pleading sel fees under this section, the court shall requirements remain important elements in the consider: process of bringing a case to trial, and cannot (1) the financial status of each party; be dispensed with altogether. Pleading serves (2) the needs of each party; and four important purposes: (1) it provides (3) whether there was substantial justi- notice to the parties as to the nature of fication for bringing, maintaining, or the claim or defense; (2) it states the facts defending the proceeding. upon which the claim or defense allegedly Whom costs and fees awarded to exists; (3) it defines the boundaries of litiga- (c) Upon a finding by the court that there was

41 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law an absence of substantial justification of a of the parties and the needs of the parties, and consid- party for prosecuting or defending the pro- ered whether appellant had substantial justification to ceeding, and absent a finding by the court bring the instant proceeding. See FL § 12-103(b); see of good cause to the contrary, the court also Walker, 170 Md. App. at 266 (noting that relevant shall award to the other party costs and factors in setting child support in an above Guidelines counsel fees. case “include the parties’ financial circumstances”). We review the award of attorney’s fees, including In addition, appellant never asserted below, either the amount of such award, under an abuse of discretion in an opposition to appellee’s motion, or in her own standard, and “we will not disturb an award unless the motion to alter or amend, that the trial court failed to exercise of discretion was arbitrary or the judgment consider the statutory factors under Section 12-103(b), was clearly wrong.” Malin v. Mininberg, 153 Md. App. or that the fee awarded was unreasonable. Indeed, 358, 435-36 (2003). In reviewing attorney’s fee awards appellant never mentioned the award of attorney’s fees under Section 12-103, this Court has stated that, “[e] in her motion to alter or amend. For these reasons, we ven though the trial court does not have to recite any conclude that the trial court considered the statutory magical words, it must be clear on appeal that the court factors in Section 12-103(b), and had a reasonable basis considered the statutory factors. The only way we can for awarding attorney’s fees in the amount of $900. determine whether the court considered the statutorily Accordingly, the trial court did not abuse its discretion mandated factors is by reviewing the court’s statements in awarding attorney’s fees to appellee.5 on the record.” Walker v. Grow, 170 Md. App. 255, 291- 92 (internal citations and quotation marks omitted), JUDGMENT OF THE CIRCUIT COURT FOR cert. denied, 396 Md. 13 (2006); see also Petrini v. MONTGOMERY COUNTY AFFIRMED; Petrini, 336 Md. 453, 468 (1994) (“Consideration of the APPELLANT TO PAY COSTS. statutory criteria is mandatory in making the award [of attorney’s fees] and failure to do so constitutes legal error.”). In Walker, this Court vacated the denial of an Footnotes award of attorney’s fees and remanded the case to the 1. Appellant raises a third issue, namely, “Whether the deci- trial court, because the record did “not indicate that sion of the Circuit Court for Montgomery County, Maryland the court gave consideration to the financial disparity should be vacated and remanded for a New Trial.” We do not between the parties and their respective incomes and consider this to be an issue for appellate review, but rather an needs.” 170 Md. App. at 292. issue of appropriate relief if we agreed with appellant. As dis- In the present case, the trial court granted appel- cussed infra, we do not agree with appellant, and thus do not lee’s motion to dismiss and for an award of attorney’s need to address this issue. fees in an order that stated: “Upon consideration of 2. The only difference between appellant’s first and second [appellee’s] Motion to Dismiss [appellant’s] Petition petitions is in the title: appellant’s first petition was titled to Modify Child Support and for Other Relief, and for “Counter Petition for Modification of Child Support and Award of Counsel Fees” (emphasis added). Appellee’s Other Relief,” while her second petition is titled “Petition for motion to dismiss included a memorandum in support Modification of Child Support and Other Relief.” 3. In her motion to alter or amend the order denying her thereof, which referred to the March 11, 2013 hearing. second petition, appellant argued that she never received At the March 11, 2013 hearing, the following relevant appellee’s motion to dismiss. Appellant does not raise this exhibits were admitted into evidence: (1) both parties’ argument on appeal, and thus we need not consider it. See wage statements and tax returns from 2010, 2011, and Rule 8-504. 2012; (2) appellant’s wage statement for the pay peri- 4. Appellant’s counsel, at oral argument before this Court, od ending on February 15, 2013; (3) appellee’s wage stated that appellant was the only person who testified at the statements for the pay periods ending on January 5 and March 11, 2013 hearing, and that no evidence was presented March 2, 2013; (4) appellee’s child support payments on behalf of appellee. While it is true that appellant was the in 2010, and his alimony payments from 2010 through sole witness at the hearing, appellee’s tax returns and wage 2013; and (5) both parties’ mortgage obligations from statements, as well as the child support, alimony, and mort- gage payments, from 2010 through 2013, were admitted into 2010 through 2013.4 The trial court also received infor- evidence. In fact, the alimony and mortgage payment sched- mation regarding both parties’ financial needs and life- ules were submitted as a joint exhibit. Therefore, these exhib- style through appellant’s testimony and unobjected-to its were all properly before the court for its consideration. proffers from appellee’s attorney. Appellee’s memoran- 5. Even if the trial court had failed to comply with Section dum also made reference to the court’s findings from 12-103, we would nevertheless affirm pursuant to Rule 1-341, that evidence, as well as to appellee’s attorney’s rate where a court may award reasonable attorney’s fees upon and time spent responding to appellant’s second peti- finding that the opposing party filed an action or proceeding tion. Therefore, when ruling on appellant’s request for “in bad faith or without substantial justification.” Clearly, an award of attorney’s fees, the court had considered appellant’s second petition, filed three months after a hearing all the testimony and evidence presented at the March on appellant’s first petition and raising the exact same claim 11, 2013 hearing, which included the financial status as the first petition, was filed “without substantial justifica- tion.”

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 42 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 43 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: indefinite alimony: future housing expense ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Rosibeth Molina See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Albarth Molina bers are from slip opinions. appellee immigrated to the United States, followed No. 1213, September Term, 2013 by appellant a few months later. The parties had one Argued Before: Berger, Nazarian, Reed, JJ. child, a daughter, in 1988. Opinion by Reed, J. Both appellant and appellee worked in the restau- rant industry initially. Appellant and appellee testified Filed: December 10, 2014. Unreported. that appellant became a homemaker and stay-at-home mother by mutual agreement and that appellee began The circuit properly found a gross disparity in a construction business a few years after coming the couple’s standards of living would justify an to the United States. While initially living modest- award of indefinite alimony, but, in determining ly, appellee’s construction business flourished and the amount, failed to give adequate consideration eventually afforded the couple the means to increase to appellant’s future housing expenditures and the their standard of living. For instance, appellant and fact that appellee would no longer be paying the appellee purchased a marital home, a vacation home mortgage. in Ocean City, Maryland, and a condominium — the latter eventually deeded in part to their daughter, as This case stems from a judgment of absolute well. Appellant and appellee owned personal vehicles, divorce entered in the Circuit Court for Montgomery regularly took vacations to destinations such as New County, dissolving the marriage of appellant, Rosibeth York and Florida, and engaged a cleaning company Molina, and appellee, Albarth Molina. In dividing the for service every other day. former couple’s assets, appellant was granted a mon- Appellant and appellee experienced marital dif- etary award and alimony for an indefinite duration. ficulties beginning in 2000 or 2001, and eventual- Appellant appealed and presents three questions for ly, on January 29, 2006, appellee moved out of the our review, which we have slightly rephrased as fol- marital home. During their separation, appellee sup- lows: ported both his new separate household and the 1. Did the circuit court abuse its discretion in former marital household, occupied solely by appel- determining the amount of indefinite alimony lant. Appellee’s support to appellant during this time awarded to appellant? averaged approximately $9,000 per month, however 2. Did the circuit court err in determining the appellant was expected to pay, and did pay, the mort- amount of the monetary award to appellant gages and condominium fees on the couple’s three by including in its calculations an encum- Maryland properties, as well as various other co-min- brance on the marital home? gled expenses, such as car and life insurance, from this amount. 3. Did the circuit court abuse its discretion in On August 9, 2011, appellee filed for divorce. A denying appellant’s request for additional pendente lite support order was entered by consent attorneys’ fees? in November 2011, which reduced the total monthly For the following reasons, we vacate the circuit support and fixed it at $8,500 beginning in December court’s judgment. We hold that the circuit court 2011. Appellant was expected to continue to pay erred in not considering appellant’s housing expense the expenses noted above from this amount, which in its determination of the alimony award. We also she did. The circuit court calculated that after pay- vacate the monetary award and the circuit court’s ing those expenses, which included most of appel- order denying appellant’s request for attorneys’ fees, lant’s housing costs, appellant received approximately because of our disposition of the alimony award. $3,065 for her personal expenses. Factual and Procedural Background A divorce merits trial was conducted in July, September, and May. On June 17, 2013, the circuit Appellant and appellee were married on February court issued an oral ruling and a written order was 18, 1985 in Costa Rica. Shortly after marrying, in 1986, entered six days later. The circuit court granted a

43 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law divorce based on a two-year voluntary separation, as it could not order their sale. In order to adjust for the was originally pled in the divorce filings. The no-fault equities and rights of the parties, the circuit court divorce was entered even though both parties con- entered a monetary award. tended at trial that the other’s infidelity had ended the Regarding the marital home, the circuit court marriage. ordered that all liens, encumbrances, and costs be The circuit court specifically addressed three paid from the proceeds of the house’s sale before issues that remained contested throughout the divorce being split equally between appellant and appellee. proceedings — alimony, a monetary award, and attor- The encumbrances against the house included a mort- neys’ fees. Noting that alimony and monetary awards gage, which was not disputed. The encumbrances, are “significantly interrelated and largely inseparable” however, also included a Home Equity Line of Credit in Maryland, the circuit court addressed in detail the (“HELOC”), which was disputed. Appellant contended twelve factors to be considered pursuant to Md. Code that the balance of the HELOC, $44,948, was incurred Ann., Family Law (“F.L.”) § 11-106(b) when awarding solely to benefit appellee as the funds were used to alimony, as well as relevant case law. The circuit purchase a vehicle for appellee and were non-marital. court imputed $2,500 per month immediate earning Appellee, on the other hand, argued that the balance potential to appellant and the court imputed $20,022 was incurred for marital purposes; that the funds ben- per month income to appellee. The circuit court noted efitted both parties in so far as the funds were used that, even after reaching full progress toward self-suf- to support both appellee’s and appellant’s households ficiency, the respective standards of living of appel- and to pay appellant’s attorneys’ fees; and that appel- lant and appellee would remain unconscionably dispa- lee was the only party making payments towards the rate under F.L. § 11-106(c). debt. In its indefinite alimony award determination, the The circuit court also reviewed appellant’s request circuit court excluded appellant’s housing expenses to have the balance of her attorneys’ fees paid by and found that the “mortgage payments and utility appellee. In reviewing the request, the circuit court bills, all of which have been paid by her husband for considered appellee’s previous payment towards those the last seven years . . . should not have been listed as fees, the monetary award granted to appellant, and the an expense.” Further, the circuit court stated, “[u]pon alimony awarded to appellant. Based on those factors, the parties’ divorce and the sale of the marital home, the circuit court declined appellant’s request for an she obviously will have housing costs, but the court additional award towards her attorneys’ fees. was not presented with any testimony as to what her Appellant noted a timely appeal contesting the future plans might be in terms of whether she is going amount of the indefinite alimony award; the calcula- to remain in Maryland or return to Costa Rica, where tion of the encumbrances on the marital home includ- she owns property in her sole name. . . . Now, [appel- ed as part of the monetary award; and the decision to lee] has been paying the sum of $8,500 to [appellant] deny the request for additional attorneys’ fees. every month. Out of that amount, she is supposed to pay the marital home mortgage in the amount of Discussion $2,550.50, $1,150 condo fee for the Promenade apart- I. Alimony ment, . . . and $1,259.78 for the Ocean City property.” Based on its findings and analysis, the circuit court A. Parties’ Contentions awarded $2,000 per month indefinite alimony to appel- Appellant contends that the circuit court erred lant. in awarding indefinite alimony in that the amount of The circuit court next addressed a monetary alimony awarded does not rectify the unconscionable award based on the property interests of appel- disparity in standards of living that the court found. lant and appellee. The circuit court noted that, in In order to correct the disparity in standards of liv- Maryland, the property interests of spouses “should ing, appellant argues that the circuit court should be adjusted fairly and equitably with careful consider- have awarded a greater amount of indefinite alimony. ation being given to both monetary and non-monetary Appellee counters that the circuit court properly con- contributions made by the respective spouses to the sidered the twelve factors enumerated under F.L. § wellbeing of the family.” After considering the mari- 11-106(b) in deciding the indefinite alimony award to tal property of the couple in Maryland, as well as its appellant. encumbrances, the circuit court ordered the immedi- ate sale of the marital home, the vacation home, and B. Standard of Review condominium, with the proceeds, if any, split between Because the circuit court did not consider appel- appellant and appellee. The circuit court also entered lant’s future housing expenditure, we vacate the indef- a judgment against appellee for a little over $170,000, inite alimony award and remand for further consid- which was approximately one-half the value of five eration, so that the court may consider appellant’s marital properties in Costa Rica. Because the circuit future housing expenses in its determination of the court did not have jurisdiction over these properties, amount of an indefinite alimony award.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 44 The amount of alimony awarded by a trial court (i) all income and assets, including is reviewed under an abuse of discretion stan- property that does not produce dard. Solomon v. Solomon, 383 Md. 176, 196 (2004). income; Accordingly, “[a]n alimony award will not be dis- (ii) any award made under §§ turbed upon appellate review unless the trial judge’s 8-205 and 8-208 of this article; discretion was arbitrarily used or the judgment below (iii) the nature and amount of the was clearly wrong.” Tracey v. Tracey, 328 Md. 380, financial obligations of each party; 385 (1992). As long as the trial court’s findings of fact and are not clearly erroneous and the ultimate decision is (iv) the right of each party to not arbitrary, the decision will be affirmed, even if the receive retirement benefits; and appellate court might have reached a different result. Reese v. Huebschman, 50 Md. App. 709, 712 (1982). (12) whether the award would cause a Moreover, “appellate courts will accord great defer- spouse who is a resident of a related ence to the findings and judgments of trial judges, institution as defined in § 19-301 of the sitting in their equitable capacity, when conducting Health-General Article and from whom divorce proceedings.” Tracey, 328 Md. at 385. alimony is sought to become eligible for Alimony is governed by F.L. § 11-101, et seq., medical assistance earlier than would which provides in pertinent part: otherwise occur. (a) Court to make determination. — (c) Award for indefinite period. — The (1) The court shall determine the amount court may award alimony for an indefi- of and the period for an award of alimo- nite period, if the court finds that: ny. (1) due to age, illness, infirmity, or dis- (2) The court may award alimony for a ability, the party seeking alimony cannot period beginning from the filing of the reasonably be expected to make substan- pleading that requests alimony. tial progress toward becoming self-sup- porting; or (3) At the conclusion of the period of the award of alimony, no further alimony (2) even after the party seeking alimo- shall accrue. ny will have made as much progress toward becoming self-supporting as can (b) Required considerations. — In making reasonably be expected, the respective the determination, the court shall consid- standards of living of the parties will be er all the factors necessary for a fair and unconscionably disparate. equitable award, including F.L. § 11-106. (1) the ability of the party seeking alimo- ny to be wholly or partly self-supporting; C. Analysis (2) the time necessary for the party seek- Alimony is not meant to provide a lifetime pension ing alimony to gain sufficient education but to provide enough financial support to allow an or training to enable that party to find economically dependent spouse to become self-sup- suitable employment; porting. Dave v. Steinmuller, 157 Md. App. 653, 672 (3) the standard of living that the parties (2004). Alimony is intended to facilitate “a transition established during their marriage; for the parties from the joint married state to their (4) the duration of the marriage; new status as single people living apart and inde- (5) the contributions, monetary and non- pendently.” Tracey, 328 Md. at 391. An economical- monetary, of each party to the well-being ly dependent spouse should be required to become of the family; self-supporting even though that might result in a reduced standard of living. Holston v. Holston, 58 Md. (6) the circumstances that contributed to App. 308, 321 (1984). Indefinite alimony will, however, the estrangement of the parties; be awarded in exceptional circumstances. Turisi v. (7) the age of each party; Sanzaro, 308 Md. 515, 531 (1987). (8) the physical and mental condition of Maryland courts have found unconscionable dis- each party; parity based on the relative percentage of the depen- (9) the ability of the party from whom ali- dent spouse’s income when compared to the other mony is sought to meet that party’s needs spouse’s income. Solomon, 383 Md. at 198. The Court while meeting the needs of the party of Appeals noted that relative percentages “offer some seeking alimony; guidance” in assessing whether the amount of an (10) any agreement between the parties; indefinite alimony award adequately alleviates the unconscionable disparity in standards of living. . (11) the financial needs and financial Id But the Court of Appeals has also noted that “no hard resources of each party, including:

45 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law and fast rule can be laid down, and . . . each case must son living alone, the purpose of indefinite alimony in depend upon its own circumstances . . . . ” Boemio v. this case . . . was to remove an unconscionable dispar- Boemio, 414 Md. 118, 141 (2010) (citations omitted). ity between the parties. The trial court properly found The determination of whether the party’s standard of that Husband’s current income was sufficient to main- living will be unconscionably disparate under F.L. § tain the parties’ former standard of living, thus, mak- 11-106(c) “requires projection into the future, based ing that the measure of ‘necessity’ in this case.” Id. on the evidence, beyond the point in time when a (internal citations omitted). See Waters v. Waters, 191 party may be expected to become self-supporting. Md. 436, 440-41 (1948) (“An important factor in deter- It requires a projection to the point when maximum mining ‘needs’ is the station in life of the parties at the progress can reasonably be expected.” Roginsky v. time of the divorce or enforced separation.”); see also Blake-Roginsky, 129 Md. App. 132, 146 (1999). F.L. § 11-106(b)(3), (b)(11) (when awarding alimony, a Here, the circuit court correctly awarded appel- court must consider “the financial needs and financial lant indefinite alimony pursuant to F.L. § 11–106(c). resources of each party,” and “the standard of living Because appellee’s income of $240,264 per year is that the parties established during their marriage”). so much greater than appellant’s imputed income of Similar to the court in Benkin, 71 Md. App. at 204, $30,000 per year, the court found a gross disparity and Reynolds, 216 Md. App. at 226, the circuit court between them. Noting that this disparity alone is not failed to consider appellee’s future housing expendi- determinative, the court focused upon the parties’ ture, which must be considered pursuant to various future earning abilities and respective living standards factors under F.L. §11-106, including (1) the ability in awarding indefinite alimony. Therefore, we agree of the party seeking alimony to be wholly or partly with the circuit court’s decision to award indefinite self-supporting, (3) the standard of living that the alimony. parties established during their marriage, and (11) the The circuit court went through each of the statu- financial needs and financial resources of each party. tory factors outlined in F.L. § 11-106(b) in its decision In the present case, the circuit excluded her hous- to award indefinite alimony in the amount of $2,000. ing expenses and found that the “mortgage payments But we find that the circuit court failed to give ade- and utility bills, all of which have been paid by her quate consideration to the fact that after the sale of husband for the last seven years . . . should not have the marital home, appellant will be required to pay for been listed as an expense.” Further, the circuit court her own housing expense, and it will no longer be nec- stated, “[u]pon the parties’ divorce and the sale of the essary for appellee to pay the marital home mortgage marital home, she obviously will have housing costs, of $2,670 (increased from $2,550), $1,150 condo fee but the court was not presented with any testimo- for the Promenade apartment, and $1,259.78 for the ny as to what her future plans might be in terms of Ocean City property. whether she is going to remain in Maryland or return In Benkin v. Benkin, 71 Md. App. 191 (1987), to Cosa Rica, where she owns property in her sole this Court explained that the trial court failed to give name. . . . Now, [appellee] has been paying the sum of adequate consideration to the fact that upon the sale $8,500 to [appellant] every month. Out of that amount, of the marital home, Mrs. Benkin would be required she is supposed to pay the marital home mortgage pay for her own housing, since Mr. Benkin would no in the amount of $2,550.50, $1,150 condo fee for the longer have to pay a mortgage payment. Id. at 204. We Promenade apartment, . . . and $1,259.78 for the Ocean held that the decision to award a five year declining City property.” Although the circuit court considered alimony award was not supported by the record. Id. the mortgage contributions made during the marriage “The [circuit] court’s finding of both, a current and and the separation, it failed to make a “projection” continuing disparity in the incomes of the parties not into the future regarding the parties’ abilities to pay only fail[ed] to support the amounts awarded but, for housing expenditures. Roginsky, 129 Md. App. at on the contrary, indicat[ed] something more [wa]s 146. required as to the amount as well as the time limita- In addition, contrary to the circuit court’s con- tion.” Id. clusion that the court was not presented with any In Reynolds v. Reynolds, 216 Md. App. 205 (2014), testimony as to what appellant’s future housing plans this Court held that the wife’s mortgage expenses con- might be, the transcript demonstrates that appel- sidered in its alimony award were reasonably neces- lant testified that her investigations revealed that sary. Id. at 226. In that case, Husband attacked Wife’s her future monthly rent in Bethesda would be close $5,470 mortgage payment as an unreasonable amount to $2,500 to $3,000, a figure close to the marital in the court’s consideration of the wife’s alimony home mortgage payments of $2,670 (increased from award, on the basis that the wife’s large home, and the 2,550.50). housekeeping services were “unnecessary” for a sin- Furthermore, the “unconscionable disparity” cases gle, unemployed person. Id. We explained that, “while cited with approval in Solomon involved awards of we would ordinarily agree that a four-bedroom home permanent alimony that ranged from a dependent and domestic help are luxuries for an unemployed per- spouse making 16 percent of the other spouse’s

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 46 income to a dependent spouse making 43 percent of consider the amount which appellant will be required the other spouse’s income. 383 Md. at 198. Similar to to expend for housing in its determination of an indef- these ratios, the disparity in income in the present inite alimony award. case is 25 percent. Appellee’s annual income less In addition, because of our disposition of the ali- alimony payments is $216,264, compared to appel- mony award, we vacate the monetary award and the lant’s income of $55,000 ($30,000 imputed income circuit court’s order denying appellant’s request for and $24,000 alimony payments). “The raw comparison attorneys’ fees. Turner v. Turner, 147 Md. App. 350, alone is strong support for questioning the amount of 400 (2002). the original indefinite alimony award.” Id. at 199-201. In light of the circuit court’s failure to adequately JUDGMENT OF THE CIRCUIT COURT FOR consider those important facts, the alimony award is MONTGOMERY COUNTY VACATED AS TO vacated and remanded to the circuit court. The circuit ALIMONY, MONETARY AWARD, AND ATTORNEYS’ court erred in not considering appellant’s housing FEES. expense in its determination of the alimony award. On COSTS TO BE PAID BY APPELLEE. remand, it will be necessary for the circuit court to

47 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 48 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: grounds: constructive desertion ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Ann R. Thomas See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Timothy E. Thomas bers are from slip opinions. Ms. Thomas both had jobs in the computer field. Ms. No. 2160, September Term, 2013 Thomas continued to advanced professionally, but Mr. Argued Before: Woodward, Kehoe, Moylan, Charles E., Thomas had a substance abuse problem and was con- Jr. (Ret’d, Specially Assigned), JJ. victed of violating federal drug trafficking laws in 2007. Opinion by Kehoe, J. Mr. Thomas was incarcerated from late 2007 until 2009. After his release from federal prison, Mr. Thomas Filed: December 10, 2014. Unreported. lived in a halfway house for several months. Upon Mr. Thomas’s discharge from the halfway house, the cou- Given the conflicting evidence at trial, the court ple resumed their marital relationship. was not clearly erroneous in rejecting wife’s claim The parties’ marriage reached a turning point in of constructive desertion; the judge considered the May 2012. Ms. Thomas took a trip to Texas and, upon testimony of wife and her adult children regarding her return, asked Mr. Thomas to move out of the husband’s alleged resumption of drugs and alcohol house. He refused. Ms. Thomas then moved into a sep- and the effect it had on his behavior and mood, but arate bedroom. The parties lived separate and apart, was not persuaded that his actions put wife in such fear for her health, safety and self-respect that she albeit under the same roof, until the date of trial. could not remain in the marriage. On August 2, 2012, Ms. Thomas filed a complaint for a limited divorce on the grounds of construc- tive desertion, specifically that “[Mr. Thomas] . . . The Circuit Court for Montgomery County, the engage[d] in such conduct as to render it impossible Honorable Joan E. Ryon presiding, granted Timothy for [Ms. Thomas] to remain in the relationship with E. Thomas an absolute divorce from Ann R. Thomas, safety, health, and self-respect.” Mr. Thomas filed a appellant. The court granted Mr. Thomas temporary Counterclaim, seeking a limited divorce, and, after alimony, a monetary award, a share of Ms. Thomas’s passage of the statutory period, an absolute divorce. retirement account, and attorney’s fees. Ms. Thomas Mr. Thomas also sought alimony, a determination and challenges all of these rulings on appeal. division of marital property, a monetary award, and Our examination of the record reveals neither attorney’s fees and litigation expenses. error nor abuse of discretion on the part of the trial After a three day trial, the trial court entered a court, and we will affirm its judgment in all respects. judgment awarding Mr. Thomas an absolute divorce on the grounds of constructive desertion, a monetary Background award of $20,000, alimony in the amount of $1,500 Mr. Thomas and Ms. Thomas were married in per month for a period of 36 months from the date of Montgomery County, Maryland, on August 10, 1990. divorce, a 50% interest in Ms. Thomas’s 401(k) account, Mr. Thomas and Ms. Thomas did not have any children and attorney’s fees of $10,000. together, but each had children from a previous mar- Standard of Review riage. Ms. Thomas’s children resided with Mr. Thomas and Ms. Thomas at the time of their marriage, and peri- The parties’ appellate contentions implicate all of odically thereafter. the modalities of appellate review. We can set aside a After they were married, Mr. Thomas moved into trial court’s factual determinations only if we conclude Ms. Thomas’s residence at 4113 Ferrara Drive in Silver that the court was clearly erroneous, and we must Spring, Maryland. Ms. Thomas acquired title to this defer to the trial court’s ability to weigh the credibil- property as part of the property settlement from her ity and persuasiveness of witnesses. Maryland Rule first marriage. The conveyance took place after Mr. 8-131(c). We review the court’s legal rulings de novo. Thomas and Ms. Thomas were married. Mr. Thomas Ms. Thomas contends that the circuit court abused and Ms. Thomas resided at the Ferrara Drive residence its discretion in certain of its rulings. We can reverse throughout their marriage. discretionary decisions by a trial court only when the At the time they were married, Mr. Thomas and trial court has “abused its discretion.” This Court, TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 48 speaking through then Chief Judge Wilner, explained ior on her at trial. In particular, Ms. Thomas asserts that in order for a trial court decision to be overturned that the trial court’s finding that “[Mr. Thomas] did not based on an abuse of discretion “[t]he decision under use alcohol or drugs after 2009 [was] simply clearly consideration has to be well removed from any cen- erroneous” in light of the unrebutted testimony given ter mark imagined by the reviewing court and beyond by Ms. Thomas and her three children that Mr. Thomas the fringe of what [the appellate] court deems mini- continued to use drugs and drink alcohol, in violation mally acceptable.” North v. North, 102 Md. App. 1, 14 of his probation, after he was released from prison in (1994). Another way of expressing this concept is that 2009. Mr. Thomas, on the other hand, contends that the an appellate court will find error in discretionary rul- trial court was entitled to grant him an absolute divorce ings only when they are “arbitrary and clearly wrong.” because he presented legally sufficient evidence of con- Rosenberg v. Rosenberg, 64 Md. App. 487, 538 (1985). structive desertion. Several of Ms. Thomas’s contentions also arise Maryland law provides for both limited and abso- from the trial court’s failure to be persuaded by the lute divorce. A limited divorce allows “‘the injured evidence presented. Convincing an appellate court that spouse the right to live separate and apart from the a trial court erred in failing to be persuaded by a par- one at fault,’” but “‘there is no severance of the marital ty’s evidence is a very difficult task. As Judge Moylan bonds.’” Ricketts v. Ricketts, 393 Md. 479, 486 (2006) explained in Starke v. Starke, 134 Md. App. 663, 680-81 (quoting Courson v. Courson, 213 Md. 183, 188 (1957)). (2000), An absolute divorce, on the other hand, “effects a com- [I]t is far easier to sustain as not clearly erro- plete severance of the marital bond and entitles either neous the decisional phenomenon of not being of the parties, or both, to remarry.” Id. at 487. persuaded than it is to sustain the very dif- As Mr. Thomas and Ms. Thomas have each sought ferent decisional phenomenon of being per- divorce on the grounds of desertion, we will tailor suaded. Actually to be persuaded of something our discussion accordingly. A limited divorce may be requires a requisite degree of certainty on the sought on the ground of desertion pursuant to Md. part of the fact finder (the use of a partic- Code Ann., (1984, 2012 Repl. Vol.) § 7-102(a)(3) of the ular burden of persuasion) based on legally Family Law Article (F.L.).1 Desertion may be actual or adequate evidentiary support (the satisfaction constructive. Ricketts, 393 Md. at 487-88. The Court of of a particular burden of production by the Appeals has explained that: proponent). There are with reasonable fre- actual desertion [is] “the voluntary separation quency reversible errors in those regards. Mere of one of the married parties from the other, or non-persuasion, on the other hand, requires the refusal to renew suspended cohabitation, nothing but a state of honest doubt. It is virtu- without justification either in the consent or ally, albeit perhaps not totally, impossible to the wrongful conduct of the other party . . . [F] find reversible error in that regard. urthermore, the separation and intention to (Emphasis added.) See also Bricker v. Warch, 152 Md. abandon must concur, and desertion does not App. 119, 137 (2003); Pollard’s Towing v. Berman’s exist without the presence of both.” Body Frame, 137 Md. App. 277, 289-90 (2001). Id. at 488 (quoting Boyd v. Boyd, 177 Md. 687, 688 (1940) (citations omitted)). With regard to construc- Analysis tive desertion, the Court of Appeals has said that “‘[a] In addressing Ms. Thomas’s contentions on appeal, ny misconduct of the husband will justify the wife in we will first review the trial court’s award of an abso- leaving him when it makes it impossible for her to live lute divorce to Mr. Thomas, and then the court’s find- with him without loss of her health or self-respect, or ing regarding Ms. Thomas’s dissipation of a marital gives her reasonable apprehension of bodily injury.’” asset. After addressing these matters, we will consid- Id. (quoting Scheinin v. Scheinin, 200 Md. 282, 290 er the economic relief awarded to Mr. Thomas, and (1952)). An absolute divorce may be granted on the Ms. Thomas’s contentions that the trial court erred in grounds of desertion if: “(I) the desertion has continued sanctioning her for failure to comply with discovery. for 12 months without interruption before the filing of Finally, we will address the trial court’s treatment of the application for divorce; (ii) the desertion is deliber- Mr. Thomas’s alleged perjury. ate and final; and (iii) there is no reasonable expecta- tion of reconciliation.” F.L. § 7-103(a)(2). I. An Absolute or a Limited Divorce? The complaining spouse “ha[s] the burden of prov- Ms. Thomas asserts that the trial court erred in ing the facts he has alleged” in seeking a divorce, denying her request for a limited divorce. Ms. Thomas Ricketts, 393 Md. at 493, and “every element to justify contends that divorce, either absolute or limited, is the relief sought must be corroborated.” Kerber v. appropriate on the ground of constructive desertion “if Kerber, 240 Md. 312, 316 (1965). the evidence supports a finding that the complaining With all of this as background, we turn to the criti- party can no longer continue in the marital relationship cal findings by the trial court: with health, dignity, or respect,” and further that she It is . . . clear that until May of 2012, the parties established the negative effects of Mr. Thomas’s behav-

49 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law were maintaining the marital relationship. Just months after Ms. Thomas asked Mr. Thomas to vacate before [Ms. Thomas] left for her trip, they went the marital home, and shortly after she filed her com- out to dinner together . . . . When she returned plaint for a limited divorce, Ms. Thomas liquidated the from her trip she asked [Mr. Thomas] to leave account. By the time of trial, she had spent the money. and when he refused, she moved out of the The trial court found that she had dissipated this asset. marital bedroom where she has remained. . . . Ms. Thomas asserts that the court’s finding was errone- It is clear that [Ms. Thomas]’s move[ ] to anoth- ous.2 er bedroom and subsequent behavior was her “[D]issipation [occurs] where one spouse uses final and deliberate act undertaken to end the marital property for his or her own benefit for a pur- marital relationship. It was not consensual and pose unrelated to the marriage at a time where the has continued without interruption since May marriage is undergoing an irreconcilable breakdown.” 2012. There is no reasonable hope of a recon- Omayaka v. Omayaka, 417 Md. 643, 651 (2011) (quota- ciliation tion marks and citation omitted). Generally, dissipation . . . . is found where one spouse spends marital money with These findings did not come in a vacuum. The trial the intent of reducing the marital property available court also noted that “[t]he evidence presented does for distribution to the other spouse. Id. at 652. Thus, not support [Ms. Thomas]’s allegations that due to in reviewing claims for dissipation trial courts are [Mr. Thomas]’s resumption of drinking and smoking, concerned with the timing of the expenditure and the volatile behavior, and mood swings she was unable individual’s intent in making the expenditure. Id. at to remain in the marital relationship without loss of 654. The party asserting dissipation has the “ultimate safety, health, or self-respect.” The court summarized burden of persuasion.” Id. at 656. Only after the party the testimony of Ms. Thomas and her adult children asserting dissipation has made a prima facie case, is about Mr. Thomas’s alleged drug and alcohol use, but the opposing party required to “‘produce evidence suffi- ultimately concluded “there was no evidence presented cient to show that the expenditures were appropriate.’” to support her contention that he has resumed drinking Id. at 657 (quoting Jeffcoat v. Jeffcoat, 102 Md. App. to such an extent, or using drugs to such an extent that 301, 311 (1994). her health and safety are compromised.” The trial court found that Ms. Thomas dissipat- “‘[An] appellate court must consider evidence pro- ed the proceeds of the IRA. Mr. Thomas established duced at the trial in a light most favorable to the pre- that Ms. Thomas spent part of the money paying for vailing party and if substantial evidence was presented her adult daughter’s college tuition, paying attorney’s to support the trial court’s determination, it is not fees, and paying off a credit card balance. Beyond clearly erroneous and cannot be disturbed.’” Clickner that, there was little evidence before the court as to v. Magothy River Ass’n, 424 Md. 253, 266 (2012) (quot- what Ms. Thomas did with the money because, as the ing Ryan v. Thurston, 276 Md. 390, 392 (1975)). In this court noted, Ms. Thomas “refused to provide concrete context, “substantial” evidence is competent and mate- answers to the questions regarding the use of these rial evidence. Della Ratta v. Dyas, 414 Md. 556, 565 funds and failed to offer any documents reflecting the (2010). When there is conflicting evidence, appellate same.” Furthermore, the trial court found that many of courts must “give due regard to the opportunity of the Ms. Thomas’s responses to questions on this topic, both trial court to judge the credibility of the witnesses.” Md. at trial and at the pendente lite hearing, were evasive. Rule 8-131(c). There is, of course, nothing improper in paying for The teachings of Starke and similar cases comes a child’s college tuition. However, appellant’s daugh- into play at this point. To be sure, there was conflicting ter was an adult and was not the offspring of both evidence before the trial court, but, nonetheless, there parties. The trial court did not err in concluding that, was competent evidence in the form of, among other under these circumstances, the tuition payment was things, Mr. Thomas’s own testimony, to support the an expenditure that was “unrelated to the marriage.”3 trial court’s factual conclusions. In effect, Ms. Thomas The same is true for paying attorney’s fees. Thus, Mr. asks us to ascribe error to the trial court’s conclusion Thomas met his initial burden of production. As a that Mr. Thomas’s evidence was more persuasive than result, it was incumbent upon Ms. Thomas to present was Ms. Thomas’s. But in making that analysis, we evidence that these expenditures were appropriate. must defer to the trial court’s conclusions as to the pro- Where, as here, the judge’s determination is based on bative value of evidence and witness credibility. Within the testimony offered at trial, we can say only that “the these limitations, we cannot say that the decision to Circuit Court was entitled to accept–or reject–all, part, grant an absolute divorce was clearly erroneous. or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborat- II. Dissipation of a Marital Asset ed by any other evidence.” Omayaka, 417 Md. at 659 At the time of their separation, Ms. Thomas owned (emphasis in original). It is clear that the court did not an individual retirement account with a balance of find Ms. Thomas’s explanations as to how she spent $66,341. (Ms. Thomas also owned a 401(k) account the money to be credible. In deciding whether a trial that we will discuss later.) By October 2012, about six

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 50 court’s factual finding are erroneous, we must give due Thomas’s counsel justified the noncompliance on the regard to the trial court’s assessment of the credibility basis that Ms. Thomas was seeking a limited divorce of witnesses because the trial court had an opportuni- and her opinion that Mr. Thomas would not prevail on ty to observe the witnesses as they testified. See Md. the merits. Ms. Thomas told the trial court, “if the court Rule 8-131(c). Based upon the record before us and the grants our petition and does not grant his petition there constraints placed upon the scope of our review, we is no monetary award, there is no basis for marital cannot say that the trial court’s dissipation finding was property.” The trial court responded that Rule 9-207(d) clearly erroneous. provides that: “‘If a party fails to comply with this rule the court may enter any orders including an order that III. Economic Relief the property shall be classified as marital or non-mar- A. The Monetary Award ital and in accordance with the statement filed by the complying party.’” The trial court then proceeded to Ms. Thomas’s next contention on appeal is that inform Ms. Thomas’s counsel of the consequence of her the trial court erred in awarding Mr. Thomas a mon- decision, stating “if you don’t want to be a part of the etary award in the amount of $20,000. Ms. Thomas joint statement I’m accepting his as being all truth.” Ms. asserts that the court incorrectly calculated the value Thomas’s counsel accepted the consequence, stating of the marital home, assigning the home a value of zero, “Okay. Your honor, if [unintelligible] that’s the risk we rather than a negative value reflecting the amount by took.” which it was encumbered.4 Mr. Thomas, on the other In its oral opinion, the trial court addressed the hand, contends that the trial court conducted the anal- issues of classification and valuation of marital proper- ysis prescribed by F.L. § 8-205, and that the court did ty: not abuse its discretion in determining the monetary In this matter, steps one and two have been sat- award. isfied by the marital and non-marital property Monetary awards are ordered in divorce proceed- statement filed by [Mr. Thomas]. [Ms. Thomas] ings in order to balance an otherwise inequitable “divi- chose not to insert any figures in that state- sion of property by title.” Flanagan v. Flanagan, 181 ment and they agreed at the onset of the hear- Md. App. 492, 519 (2008). F.L. § 8-205(a)(1) governs ing that should we reach this issue, the num- monetary awards and prescribes a three-step analysis bers in [Mr. Thomas]’s statement would be that courts must employ in making such determina- accepted as joint numbers. tions. This court described the analysis as follows in In light of Ms. Thomas’s refusal to participate in Flanagan: the filing of the joint statement after she was warned of First, for each disputed item of property, the the consequences of inaction by the court, we are satis- chancellor must determine whether it is mar- fied that the court did not err in using the information ital or non-marital. F.L. §§ 8-201(e)(1); 8-203. contained in Mr. Thomas’s Rule 9-207 statement as the Second, the chancellor must determine the basis for identifying and valuing marital property. value of all marital property. F.L. § 8-204. Third, We move now to the monetary award itself. F.L. § the chancellor must decide if the division of 8-205(b) sets out eleven factors that must be consid- marital property according to title would be ered in making a monetary award.5 unfair. If so, the chancellor may make a mon- The trial court thoroughly addressed each of the etary award to rectify any inequity “created by § 8-205(b) factors before concluding that Mr. Thomas the way in which property acquired during mar- was entitled to a monetary award in the amount of riage happened to be titled.” Doser v. Doser, $20,000.6 106 Md. App. 329, 349 (1995). In addressing the second factor, “the value of all 181 Md. App. at 519-20. In reviewing the trial court’s property interests of each party,” the court said “4113 monetary award in this case, we will first discuss the Ferrara Drive, Silver Spring, Maryland, this property court’s marital property determination and valuation, is in [Ms. Thomas]’s name. It has fair market value and then discuss the monetary award. of $275,000 and is encumbered by means totaling In divorce cases involving monetary award claims, $351,142. Clearly it is under water and has a value of Md. Rule 9-207(a) requires the parties to “file a joint zero.” Ms. Thomas bases her opposition to the mone- statement listing all property owned by one or both of tary award on the court’s finding that the marital home them.” Through the joint statement, the parties identify “has a value of zero.” We do not find Ms. Thomas’s con- the property they agree is marital, agree is not marital, tention to be persuasive. and disagree as to its classification, as well as how the The law in Maryland is clear — a marital asset, for property is titled, its fair market value, and whether it purposes of calculating the value of marital property, is encumbered. The joint statement must be filed “at can never have a negative value. See C. Callahan and T. least ten days before the scheduled trial date,” and the Ries, Fader’s Maryland Family Law 5th ed. § 12-11(d) rule provides the court with discretion to sanction par- (“The trial court must value separately each item of ties that fail to comply. Rule 9-207(b)–(d). marital property. The lowest value that property may Ms. Thomas refused to comply with the rule. Ms.

51 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law have is zero. ‘There is no authority for the deduction mony, and in determining the appropriate amount. The of the loss incurred by a spouse in a bad investment court found that Mr. Thomas “has not made as much from the value of the other marital property titled in progress for becoming self-supporting as could reason- his name.’ Step No. 3 may prove an appropriate time to ably be expected.” The court concluded: consider negative values.” (quoting Green v. Green, 64 So having considered all of the factors as noted Md. App. 122, 141-42 (1985)) (emphasis omitted)). This above especially the length of the marriage, the is not to say that debt encumbering marital property is age, and health of the parties, [Mr. Thomas]’s irrelevant to the court’s analysis; rather, it is consid- education and training and the absence of any ered later in the court’s analysis. As Judge Callahan and effort on his part to further bring current — Mr. Ries point out, F.L. § 8-205(b)(3) requires courts to to further and bring current his computer evaluate the “economic circumstances of each party at skills, the monetary award made in this action the time the award is to be made[.]” This includes debt. and the retirement benefits he will receive, the Moreover, F.L. § 8-205(b)(11) provides courts with dis- court will award alimony to [Mr. Thomas] in cretion to evaluate any other factor deemed necessary the amount of $1,500 per month for a period of to arriving at a “fair and equitable monetary award.” 36 months from the date of divorce. (Emphasis This can also include debt. The trial court did not err in added.) valuing the “under water” marital residence at $0. The record clearly shows that the trial court con- sidered Mr. Thomas’s employment history in making its B. The Alimony Award alimony determination. We can set the trial court’s rul- Ms. Thomas sets forth two grounds upon which ing aside only if we conclude that it was “arbitrary and she asserts the trial court erred in awarding alimony to clearly wrong[.]” Rosenberg, 64 Md. App. at 538. The Mr. Thomas.7 First, Ms. Thomas asserts that we should trial court’s factual findings were not clearly wrong. In remand the alimony award for further consideration light of the length of the parties’ marriage and the dis- because “the court did not properly valuate the marital parity in their incomes, we cannot say that the award of estate.” As we explained in addressing the court’s mon- alimony was arbitrary. etary award, we find no error in the trial court’s valua- tion of the marital estate. C. The Allocation of the 401(k) Account Second, Ms. Thomas contends that the trial court Ms. Thomas next argues that the trial court erred should have found that Mr. Thomas had voluntarily in awarding 50% of the balance of her 401(k) retirement impoverished himself by refusing to accept a job offer account through her current employer, Info Pro. Ms. that would have paid him $28 per hour in 2006 and by Thomas asserts that the trial court erroneously valued continuing to indulge in various forms of substance the parties’ marital property.9 Mr. Thomas defends the abuse. In furtherance of this argument, Ms. Thomas court’s award as appropriate, equitable, and lawful. asserts that there is a “void” in Maryland law as to As we have previously explained, we find no error whether trial courts should be required to consider in the court’s valuation of the parties’ marital prop- voluntary impoverishment in awarding alimony. Mr. erty. Moving beyond valuation, the law of this State Thomas counters that the trial court undertook “a prop- is clear — “[a] chancellor has broad discretion ‘when er and thorough analysis” of the factors set forth in F.L. determining the proper allocation of retirement ben- § 11-106(b).8 efits between the parties. . . .’” Bangs v. Bangs, 59 F.L. § 11-106(b) provides a non-exclusive list of Md. App. 350, 367 (1984) (quoting Deering v. Deering, factors to guide a trial court’s exercise of discretion 292 Md. 115, 130 (1981)). Here, Mr. Thomas and Ms. in determining alimony award issues. The Court of Thomas were married for over twenty years, and were Appeals has made clear that trial judges are not limited married prior to the start of Ms. Thomas’s employment to the factors enumerated in F.L. § 11-106 stating, “[i]t with Info Pro. Ms. Thomas’s 401(k), up until the date is well-settled that Section 11-106 does not preclude a of divorce, was a marital asset, and was thus subject to trial court from considering other factors in addition to distribution. Further, in awarding Mr. Thomas a portion the twelve mentioned.” Boemio v. Boemio, 414 Md. 118, of Ms. Thomas’s 401(k), the court was entitled to con- 132 (2010). sider Ms. Thomas’s dissipation of the individual retire- Ms. Thomas’s assertion that there is a “void” in ment account, which we have previously addressed. Maryland as to whether trial courts are required to In summary, based on the law, and the record consider voluntary impoverishment is incorrect. As the before us, we cannot conclude that the trial court Court explained in Boemio, § 11-106 permits a court to abused its discretion in valuing Ms. Thomas’s 401(k) or consider factors in addition to those set out in the stat- in making its award to Mr. Thomas. ute itself. Voluntary impoverishment on the part of the party seeking alimony can be such a factor. D. The Award of Attorney’s Fees Ms. Thomas’s other voluntary impoverishment con- Prior to trial, the circuit court granted a motion to tentions are not persuasive. It is clear from the record compel discovery filed by Mr. Thomas. The motions that the trial court did consider Mr. Thomas’s erratic court judge also awarded Mr. Thomas attorney’s fees, employment history in deciding whether to award ali- in an amount to be determined by the trial court at the

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 52 trial on the merits. The trial court made an award of ing error, to point to the portions of the trial record $10,000. On appeal, Ms. Thomas asserts that this award that support her contentions. But Ms. Thomas failed was in error. In her brief, her argument is limited to the to provide any citation to the extract to support her following: argument. It is not appropriate for us to sift through the Ms. Thomas further submits that Mr. Thomas record to find the information, if it exists, that supports simply did not prove that appellant’s leaving Ms. Thomas’s contention. See Pulte Home v. Parex, the marital bedroom was unjustified. Having 174 Md. App. 681, 760–61 (2007) (“We decline to comb not met his burden of proof, he was simply through the eight-volume, 3,876–page record extract to not entitled to an absolute divorce, a monetary ascertain information that Parex should have provided award based upon a property determination — a clear reference to a page or pages of the record including a finding of dissipation, alimony or extract that show the matter was presented to the trial attorneys’ fees. court.”); Konover v. WHE, 142 Md. App. 476, 494 (2002) We have held that the trial court did not err in (“We will not rummage in a dark cellar for coal that granting an absolute divorce to Mr. Thomas. This con- isn’t there [or] attempt to fashion coherent legal theo- clusion is dispositive of her attorney’s fee contention. ries to support appellant’s . . . claims.”). Ms. Thomas’s contention that the trial court abused its discretion in IV. The Discovery Contentions refusing to allow her to present evidence of domestic A. Testimony about Domestic Violence violence is not preserved for appellate review. During trial, Ms. Thomas sought to introduce evi- B. The Drug Test Results dence of an incident of alleged domestic violence. Mr. Ms. Thomas contends that the trial court erred in Thomas objected on the ground that the incident had admitting a business record of Counseling Plus, which not been disclosed in a response to an interrogatory. established that Mr. Thomas had tested negative for The trial court sustained the objection, ruling that tes- drugs “sometime in 2009 or 2010.” Ms. Thomas asserts timony regarding specific instances of physical abuse that the record was admitted in violation of Md. Rule that were not identified in Ms. Thomas’s answers to Mr. 5-902 because Mr. Thomas provided Ms. Thomas with Thomas’s interrogatories would not be admitted, and the record on the day of trial, and not ten days prior to Ms. Thomas asserts that it erred in doing so. the trial as Md. Rule 5-902 requires. Ms. Thomas also Ms. Thomas asserts that Mr. Thomas had actual contends that the record was not “an adequate toxi- notice that domestic violence would be raised at trial cological report” because it failed to state the dates because Mr. Thomas was asked about incidents of on which Mr. Thomas was tested or the substances domestic violence during his deposition. Further, Ms. for which he was tested, and further that introduction Thomas contends that it was error to exclude evidence of the record violated her right to confrontation. Mr. of domestic violence in a case involving constructive Thomas, on the other hand, contends that he complied desertion because the “intolerable” behavior of one with Md. Rule 5-902, explaining that he provided Ms. spouse was at issue. Mr. Thomas counters that Ms. Thomas’s counsel with the letter from Counseling Plus Thomas’s position is not supported in the law. There is on September 3, 2013, and informed Ms. Thomas’s a fundamental, and fatal, flaw in Ms. Thomas’s conten- counsel via letter dated September 12, 2013, that he tions. intended to authenticate the letter by means of Md. When the trial court sustained Mr. Thomas’s objec- Rule 5-902(b)(1). September 12 was eleven days before tion, it imposed a sanction for what the court viewed the letter was introduced at trial. Mr. Thomas also as Ms. Thomas’s failure to comply with discovery. argues that Ms. Thomas waived her right to object to Whether the trial court erred in so doing depends upon the letter’s admissibility because she failed to file a consideration of the following factors: written objection to the introduction of the letter pur- (1) whether the disclosure violation was tech- suant to Rule 5-902. nical or substantial; (2) the timing of the ulti- Md. Rule 5-902(b)(1) contains two provisions gov- mate disclosure; (3) the reason, if any, for the erning the introduction of self-authenticating business violation; (4) the degree of prejudice to the records. First, the proponent of the business record parties respectively offering and opposing the must provide opposing counsel with notice of his or evidence; and (5) whether any resulting prej- her intent to introduce a self-authenticating business udice might be cured by a postponement and, record, and a copy of the certificate and record, “at if so, the overall desirability of a continuance. least ten days prior to the commencement of the pro- The factors often overlap and do not lend them- ceeding in which the record will be offered into evi- selves to a compartmental analysis. dence.” Second, the rule requires opposing counsel to Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 725–26 make objections based on a lack of trustworthiness (2002) (citing Taliaferro v. State, 295 Md. 376, 390–91 within five days of receiving notice from the proponent. (1983)). If the proponent satisfies his obligations, and opposing A Taliaferro analysis is extremely fact intensive, counsel makes no objection on the basis of trustworthi- and it is the duty of Ms. Thomas, as the party assert- ness, the record is admissible.

53 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law The record shows that Mr. Thomas initially provid- In support of her contention, Ms. Thomas cites to what ed Ms. Thomas with the letter from Counseling Plus on she asserts are contradictory statements made by Mr. September 3, 2013, the first day of trial. On September Thomas, while under oath, concerning the terms of his 12, 2013, during which time there was a break in the probation. Ms. Thomas’s contentions are not preserved trial, Mr. Thomas sent Ms. Thomas a letter informing for our review because she does not indicate where her that he intended to introduce the letter as a self-au- she raised the issue of perjury with the trial court. thenticating business record, pursuant to Md. Rule Moreover, there is no obligation for a trial court sua 5-902(b)(1), when trial resumed on September 23, 2013, sponte to make such findings during the course of a and he included a certified copy of the business record. trial. Ms. Thomas cites to Furda v. State, 421 Md. 332, While we recognize that Maryland law has not clarified 354 (2011), as legal authority for her argument, but whether “commencement of the proceeding,” for pur- Furda is concerned with a criminal prosecution for poses of Rule 5-902, means that notice must be given perjury and related charges. There is nothing in Furda prior to the first day of trial or whether notice must that is relevant to the case before us. be given within ten days of the date on which counsel seeks to introduce the business record, we do not find Conclusion this to be the appropriate juncture to resolve this issue This divorce action was contentious and much of because, assuming that the trial court erred in admit- the evidence presented to the court was sharply con- ting the letter, this error was harmless. flicting. We are satisfied that the trial court performed In order for a decision of a trial court to be over- its duty carefully and fairly. We see no error in the turned on appeal, the complaining party must show court’s evidentiary rulings. The record in this case, both error and prejudice. In re Yve S., 373 Md. 551, 616 including, but not limited to, the trial court’s opinion, (2003). Here, in overruling Mrs. Thomas’s objection and demonstrates that the court thoroughly considered the admitting the letter into evidence, the court considered various statutory criteria relating to the economic relief the document to be of little probative value, stating “All it awarded and we cannot say that it abused its discre- right, I’m going to receive [the letter], but I’m going to tion in reaching the conclusions that it did. do so with the understanding — I think I’ve made it pretty clear — I don’t know that much weight is going THE JUDGMENT OF THE CIRCUIT COURT to be given to this, because I can’t even look at it for FOR MONTGOMERY COUNTY IS AFFIRMED. myself and ascertain what was done or when it was APPELLANT TO PAY COSTS. done.” (Emphasis added.) Moreover, the trial court never referred to the letter in issuing its findings in its Footnotes thorough oral opinion. Mrs. Thomas has failed to show 1. F.L § 7-102(a) provides in pertinent part: that the introduction of the letter was prejudicial, and (a) The court may decree a limited divorce on the based on the record before us we cannot conclude that following grounds: its introduction affected the court’s decision. * * * * Finally, Ms. Thomas asserts that introduction of (3) desertion; or the record was improper pursuant to the Court’s hold- * * * * ing in State v. Bryant, 361 Md. 420 (2000). We find Ms. 2. Ms. Thomas also asserts that a finding of dissipation is Thomas’s analogy unpersuasive. The issue on appeal improper where the trial court erred in awarding an absolute in Bryant was whether the trial court erred in admit- divorce. As we explained in Part I, the trial court did not err ting a toxicology report, which had not been properly in granting Mr. Thomas an absolute divorce. certified as a business record to what is now Md. Rule 3. The conclusion might be different if, for example, there had 5-902(b)(2). Bryant, 361 Md. at 427-28. Ms. Thomas been a history of tuition payments prior to the breakdown in does not assert that the document in question was not the parties’ marriage. But no such evidence was offered. properly certified and, in any event, the certification 4. Ms. Thomas also asserts that the monetary award must accompanying the letter complies with the require- be set aside because the trial court erred in awarding Mr. ments of the rule. Thomas an absolute divorce. For the reasons set out in Part I Further, Ms. Thomas’s contention that her right to of this analysis, we find this argument to be unpersuasive. 5. F.L. § 8-205(b) states: confrontation was violated is misplaced. The right to (b) The court shall determine the amount and the confrontation is applicable only in criminal cases. See method of payment of a monetary award, or the Tyler v. State, 342 Md. 766, 774 n.4 (1996) (“In a civil terms of the transfer of the interest in property case, there is no need to protect the defendant’s right described in subsection (a)(2) of this section, or of confrontation.”) The trial court did not err in admit- both, after considering each of the following factors: ting the letter as a business record. (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; V. Mr. Thomas’s Alleged Perjury (2) the value of all property interests of each party; Ms. Thomas’s final contention on appeal is that the (3) the economic circumstances of each party at the trial court erred in “refus[ing]” to find that Mr. Thomas time the award is to be made; “had committed perjury at any point during the trial.”

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 54 (4) the circumstances that contributed to the (1) the ability of the party seeking alimony to be estrangement of the parties; wholly or partly self-supporting; (5) the duration of the marriage; (2) the time necessary for the party seeking alimony (6) the age of each party; to gain sufficient education or training to enable that (7) the physical and mental condition of each party; party to find suitable employment; (8) how and when specific marital property or inter- (3) the standard of living that the parties established est in property described in subsection (a)(2) of this during their marriage; section, was acquired, including the effort expended (4) the duration of the marriage; by each party in accumulating the marital property (5) the contributions, monetary and nonmonetary, of or the interest in property described in subsection each party to the well-being of the family; (a)(2) of this section, or both; (6) the circumstances that contributed to the (9) the contribution by either party of property estrangement of the parties; described in § 8-201(e)(3) of this subtitle to the (7) the age of each party; acquisition of held by the parties as (8) the physical and mental condition of each party; tenants by the entirety; (9) the ability of the party from whom alimony is (10) any award of alimony and any award or other sought to meet that party’s needs while meeting the provision that the court has made with respect to needs of the party seeking alimony; family use personal property or the family home; and (10) any agreement between the parties; (11) any other factor that the court considers neces- sary or appropriate to consider in order to arrive at a (11) the financial needs and financial resources of fair and equitable monetary award or transfer of an each party, including: interest in property described in subsection (a)(2) of (I) all income and assets, including property that this section, or both. does not produce income; 6. Ms. Thomas’s assertion that “the court’s opinion does not (ii) any award made under §§ 8-205 and 8-208 of this demonstrate that the court considered any of the factors article; necessary pursuant to F.L. 8-205(b) in determining that the (iii) the nature and amount of the financial obliga- appropriate monetary adjustment should be twenty thousand tions of each party; and dollars ($20,000)” is not accurate. (iv) the right of each party to receive retirement ben- 7. As a preliminary matter, Ms. Thomas asserts that alimony efits; and is not proper where a divorce could not have been awarded. (12) whether the award would cause a spouse who We addressed the trial court’s finding of absolute divorce at is a resident of a related institution as defined in § length in Part I of this analysis. 19-301 of the Health-General Article and from whom 8. Section § 11-106 states in pertinent part: alimony is sought to become eligible for medical (a)(1) Court to make determination. — The court assistance earlier than would otherwise occur. shall determine the amount of and the period for an award of alimony. 9. Ms. Thomas also asserts that the trial court’s 401(k) award * * * * was in error because the trial court should not have granted (b) Required Considerations. — In making the Mr. Thomas an absolute divorce. As we explained in Part I of determination, the court shall consider all the fac- this analysis, this argument is unpersuasive because we con- tors necessary for a fair and equitable award, includ- clude that there was legally sufficient evidence to support the ing: trial court’s findings regarding constructive desertion.

55 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 56 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: pleading: general claim for relief ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Jodi Annette Grimes See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Jay Todd Grimes bers are from slip opinions. relative to matters discussed during those sessions No. 2419, September Term, 2013 unless a settlement agreement was reached. Argued Before: Eyler, Deborah S., Hotten, Friedman, JJ. On July 3, 2013, appellant filed a counter com- Opinion by Hotten, J. plaint for absolute divorce on the grounds of volun- tary separation for one year and adultery. Following Filed: December 16, 2014. Unreported. the unsuccessful mediation, the parties proceeded to trial on January 8, 2013. Appellant moved for a contin- The trial court did not abuse its discretion in uance which was denied. Following the circuit court’s granting husband’s motion in limine to preclude a denial, appellee argued a motion in limine to preclude monetary award, indefinite alimony or rehabilitative any monetary award or alimony, and any evidence alimony to wife, as her pleadings failed to request regarding those matters. The court granted appellee’s such relief and she never filed the necessary finan- motion, stating: cial forms; wife’s general claim for “any relief within And so, the Motion in Limine is grant- the Family Law Article” is not sufficiently specific, and the court cannot consider the parties’ alleged ed regarding [appellant] . . . [appellant’s] discussions during mediation as evidence of notice. request for alimony beyond alimony pendente lite. The Motion in Limine is granted for any request regarding a monetary award, which This case stems from a judgment of absolute would include a pension distribution. And the divorce entered in the Circuit Court for Washington Motion in Limine is granted regarding this [c] County regarding the marriage of appellant, Jodi ourt to determine, ah, any . . . any property Annette Grimes, and appellee, Jay Todd Grimes. A issues — marital, non . . . marital/non martial hearing was held, prior to considering the merits of property issues because there’s no notice of a the divorce, in which the circuit court granted appel- monetary award. . . . lee’s motion in limine to exclude evidence regarding The trial then proceeded on the merits and the court appellant’s request for indefinite alimony, a monetary entered a judgment of absolute divorce on January 27, award and property issues. Appellant appealed and 2014. presents one question for our review, which we have Appellant noted a timely appeal on January 30, rephrased for clarity:1 2014. Additional facts shall be provided, infra, to the I. Whether the circuit court abused its discre- extent they prove relevant in addressing the issues tion when it granted appellee’s motion in presented. limine? Standard of Review For the reasons outlined below, we shall affirm the judgment of the circuit court. A circuit court’s evidentiary ruling on a motion in limine “is left to the sound discretion of the trial Factual and Procedural History judge and will only be reversed upon a clear show- Appellant and appellee were married on October ing of abuse of discretion.” Ayala v. Lee, 215 Md. 19, 1991 in Washington County, Maryland. The par- App. 457, 474-75 (2013) (quoting Malik v. State, 152 ties produced one child born on April 25, 1996. On Md. App. 305, 324 (2003)). “An abuse of discretion or about March 5, 2012, the parties separated and is said to occur where no reasonable person would remained apart. On April 11, 2013, appellee filed a take the view adopted by the trial court, or when the complaint for an absolute divorce on the ground of court acts without reference to any guiding rules or voluntary separation for twelve months. Appellant principles.” Smith v. State Farm Mut. Auto. Ins. Co., filed an answer on May 28, 2013. On June 27, 2013, the 169 Md. App. 286, 298 (2006) (citation omitted) (omit Circuit Court for Washington County ordered the par- emphasis). Thus, upon review under an abuse of dis- ties to attend pretrial mediation. The parties signed cretion standard, a circuit court’s ruling, “will not be a meditation agreement and agreed to confidentiality reversed simply because the appellate court would TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 56 not have made the same ruling.” Consol. Waste Indus., and the husband to pay alimony and child support. Inc. v. Standard Equip. Co., 421 Md. 210, 219 (2011) Id. at 54. Two years later, the circuit court entered a (quoting King v. State, 407 Md. 682, 711 (2009)). decree of divorce and approved the property settle- Therefore, we review the particular circumstances of ment agreement, as well as an agreement of modifica- each individual case in determining whether the cir- tion the parties entered into the prior year. Id. at 55. cuit court abused its discretion. Id. (citation omitted). On his own account, the husband decided to reduce his alimony and child support payments because he Discussion was about to lose his job. Id. The wife thereafter filed Appellant avers that the circuit court erred in a petition in the circuit court to enforce the terms of granting appellee’s motion in limine and not consid- the agreements as incorporated in the divorce decree. ering appellant’s request for indefinite alimony and a Id. After the husband responded with a cross-petition monetary award which would include a pension distri- asking that his child support be reduced and alimony bution. In support of her argument, appellant cites to be reduced or eliminated, the parties entered into a Scott v. Jenkins, 107 Md. App. 440, 444 (1995), for the stipulation. Id. The stipulation acknowledged the prior proposition that do not require specificity agreements entered into by the parties and reduced because a general request for damages is sufficient to the alimony. Id. at 56. A year later, the husband initi- provide notice to a party. Unfortunately for appellant, ated an action to reduce the amount of child support the Court of Appeals overturned that decision in Scott “and for such other and further relief as the court may v. Jenkins, 345 Md. 21 (1997). find just and proper.” Id. at 56. He made no mention of In Scott, the Court of Appeals addressed whether the alimony and did not ask to modify or eliminate it. a complaint seeking monetary damages for a must Id. In response, the wife cross-petitioned to increase specifically make a claim for punitive damages. Id. at the amount of child support and “restore or increase, 25. The plaintiff filed a complaint against a police offi- according to evidence to be presented to the Court, cer alleging assault, battery, false arrest, false impris- the amount of alimony payable to her. . . .” Id. The onment, slander, and intentional infliction of emotion- show cause order issued by the court directed the al distress. Id. at 26. The plaintiff also filed an amend- wife to show cause “why the child support payments ed complaint which demanded judgments for each in the above caption matter should not be reduced[ ]” count. Neither the complaint nor amended complaint and directed the husband to “show cause why child referenced a specific claim for punitive damages. The support and alimony payments should not increased.” Court addressed the importance of pleadings stating: Id. at 57. The matter was referred to a domestic rela- Of the necessities for the prosecution of tions master, who concluded that reduction in alimony a successful lawsuit, none is more important was an issue in the case, despite it not being prayed than the pleading. It is the first, and some- in the petition or issued in the show cause order, and time[s] the last, opportunity a plaintiff has to therefore, reduced the wife’s alimony and child sup- make his or her case. . . . [P]leading plays four port. Id. distinct roles in our system of jurisprudence. The wife noted an appeal with our Court, con- It (1) provides notice to the parties as to the tending that “the only language in the [s]how [c]ause nature of the claim or defense; (2) states the [o]rder relevant to alimony directed the [husband] facts upon which the claim or defense alleged- to show cause why [the wife’s alimony should not ly exists; (3) defines the boundaries of litiga- be “increased.”” Id. at 57. In response, the husband tion; and (4) provides for the speedy resolu- maintained that a “reduction in alimony was permis- tion of frivolous claims and defenses. sible under his general prayer for ‘other and further’ Id. at 27-28. relief[.]” Id. at 60. We rejected the husband’s conten- The Court determined that a claim possibly sup- tion, noting: porting an award of punitive damages does not nec- [The husband] made no request in his petition essarily afford the defendant notice of the true claim for a reduction in alimony. Nor did he com- against him. Id. at 35. In conclusion, the Court held plain, in any of his averments, that the amount that “in order to properly plead a claim for punitive of alimony payable under the consent order damages, a plaintiff must make a specific demand for was excessive, that [the wife] was not in need that relief in addition to a claim for damages general- of it, or that he was unable to afford to pay it. ly. . . .” Id. at 37. His sole complaint concerned the amount of The facts in Terry v. Terry, 50 Md. App. 53 (1981), child support which, of course, had increased are similar to the instant case. We addressed wheth- significantly since the 1974 agreement. That, er the domestic relations master erred in reducing and that alone, is what the court directed [the the amount of alimony and child support the wife wife] to address. received. The parties entered into a property settle- Id. at 58 (footnote omitted). ment agreement which provided, among other things, In conclusion we stated: for the wife to have custody of their two children Alimony was in issue only in the context of

57 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law [the wife’s] petition to restore it to the pre- the [appellee] be reduced to judgment.” At the onset 1979 level, or to increase it beyond that. . . . of the motions hearing, appellee waived his requests [The husband’s] only complaint, as noted, con- concerning a monetary award and transfer of pension cerned child support. . . . [The wife] went into retirements, leaving no issue regarding a monetary the hearing entirely without warning that the award. current level of her alimony was in jeopardy Md. Rule § 9-202(e) provides: of being reduced. Neither [the husband’s] peti- Financial [s]tatement — Spousal [s] tion nor the show cause order issued pursuant upport. If spousal support is claimed by a to it fairly apprised her of such a possibility. party and either party alleges that no agree- [The husband] could, of course, have amended ment regarding support exists, each party his petition to challenge the alimony he had shall file a current financial statement in sub- ample time to do so but he chose not to do stantially the form set forth in Rule 9-203 (a). that. The statement shall be filed with the party’s Id. at 63-64. pleading making or responding to the claim. Appellant avers that the facts in the record estab- If the claim or the denial of an agreement is lish that alimony was being sought and her count- made in an answer, the other party shall file er complaint contained a paragraph requesting any a financial statement within 15 days after ser- relief within the Family Law Article that could be vice of the answer. given. Additionally, appellant alleges that the parties Marital property and non-marital property are discussed alimony and retirement benefits during governed by Md. Rule § 9-207. That provision reads, mediation and therefore, appellee had proper notice. in pertinent part, “(a) When required. When a mon- In response, appellee contends that a general claim etary award or other relief pursuant to Code, Family for relief is insufficient to provide notice that a party Law Article, § 8-205[2] is an issue, the parties shall is seeking specific relief in the form of alimony or a file a joint statement listing all property owned by monetary award. Further, appellee argues that appel- one or both of them.” The disclosures, in addition to lant failed to file the necessary financial disclosures other factors, are imperative for the circuit court to as are required by the Maryland Rules. Regarding the determine what property qualifies as marital and what mediation session, appellee asserts that there is no property is subject to division. Neither party filed a record evidence of what transpired during the media- financial statement which, in turn, precluded the cir- tion because the parties signed a confidentiality agree- cuit court from fairly assessing appellant’s claim for ment. alimony or a monetary award. It is well stated in Maryland that “[the court] has The parties’ signed mediation agreement stated: no authority, discretionary or otherwise, to rule upon The parties and attorneys whose signa- a question not raised as an issue by the pleadings, tures appear below agree that all proceedings and of which the parties therefore had neither notice at their mediation sessions and any exten- nor an opportunity to be heard.” Early v. Early, 338 sion of such sessions, including any statement Md. 639, 658 (1995) (quoting Gatuso v. Gatuso, 16 made or document prepared by any party, Md. App. 632, 633 (1973)). The language appellant is attorney, or other participant, are privileged referring to from her counter complaint is, “[t]hat the and shall not be disclosed in any subsequent [appellant] be awarded pendente lite alimony from the proceeding or document or construed for any [appellee]” and “[f]or such other and further relief as purpose considered as an admission against the nature of this cause may require.” interest. We are not persuaded. Similar to our decision in * * * Terry, we fail to see how a provision that attempts to No party may be bound by anything said encompass all matters related to a grant of absolute or done at the session(s) unless and until divorce provides appellee notice of indefinite alimony a settlement agreement is reached and one or a monetary award. Appellant had the opportunity of the following occurs: (1) such settlement to request indefinite alimony and a portion of appel- agreement is reduced to a writing signed by lee’s pension when she filed her counter complaint all parties; or (2) the specific terms of the set- for absolute divorce. Further, appellant could have tlement agreement are entered into the record filed an amended complaint to include those requests. by an officer authorized by law to administer The only issue involving alimony was regarding appel- oaths (such as a court reporter) in the pres- lant’s request for pendente lite alimony and the only ence of and with the consent of all parties issue regarding a monetary award was appellee’s (or their authorized representatives); or (3) request in his complaint for absolute divorce, which specified terms of the settlement agreement stated “[t]hat the [c]ourt make a monetary award to are recorded by audio or video tape and each the [appellee] after adjusting the parties’ rights in the of the parties (or his/her authorized represen- marital property” and a “monetary award in favor of tative) audibly acknowledges on the audio or

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 58 video tape that the terms are correct and that because [appellee] is waiving any request he he/she consents to be bound by those terms. had and apparently planned to do that at least (Emphasis in original). for some time. . . . The mediation agreement reflects that the parties’ dis- So, the last issue would be mediation. cussions were confidential, absent a settlement being Anything that happens in mediation is totally reached. Therefore, anything discussed during those confidential. And the purpose of that is to sessions is irrelevant to the case at bar. have people, ah, not be bound by something The circuit court addressed each of appellant’s that may have been offered as an incentive contentions during the motion in limine hearing and or an inducement in mediation to reach an stated: agreement. And if med . . . if that is done and Secondly, Maryland is a notice pleading an agreement is reached, then the agreement state. You have to . . . it doesn’t have to be comes in. But if an agreement is not reached, hugely specific, but you have to give the other nothing that happens in mediation is admissi- side notice of what you’re requesting. . . . ble, including any allegation that notice was * * * provided for claims of relief. So, therefore Ah, pendente lite alimony. And [appellee’s nothing can come in through the mediation, counsel] is right. Usually you see we request what was said in mediation is admissible for alimony pendente lite and indefinitely or reha- any purpose. bilitative alimony. This only . . . this pleading We are persuaded by the circuit court’s sound rea- only requests pendente alimony. It does not soning and explanation for granting appellee’s motion. mention rehabilitative . . . rehabilitative or Appellant has not presented evidence to support any indefinite alimony. abuse of discretion by the circuit court in granting the * * * motion. Accordingly, we perceive no error in the cir- Ah, pendente lite exclusive possession. cuit court’s determination. I’m looking at the second count. Basically JUDGMENT OF THE CIRCUIT COURT FOR requests the same relief — health insurance, WASHINGTON COUNTY IS AFFIRMED. ah, and then “I, the [appellant] be granted COSTS TO BE PAID BY APPELLANT. any other available relief under the Family Law Article and such further . . . such other and further relief as the nature of the cause Footnotes may require.” Those aren’t really specific as 1. Appellant’s original question was phrased as follows: to relief. For instance, a monetary award. I 1. The [c]ircuit [c]ourt is a Court of Equity and can don’t think you specifically request a pen- allow issues to be presented based on principles of sion distribution. You often see it. But a pen- fairness and the facts presented. The [c]ourt erred sion distribution is part of a monetary award. when it refused to allow consideration of [appel- And if a monetary award was request[ed] by lant’s] request for permanent alimony and the mari- [appellant], then I think a pension would be tal portion of [appellee’s] retirement. included. But nowhere in these pleadings is a 2. Marital Property — Award monetary award requested. And, ah, therefore, (a) Grant of award. — (1) Subject to the provisions I don’t think it’s noticed. of subsection (b) of this section, after the court determines which property is marital property, Again, it’s . . . it may be a harsh or ineq- and the value of the marital property, the court uitable result to [appellant]. But it would be may transfer ownership of an interest in property a harsh . . . it would definitely be a harsh or described in paragraph (2) of this subsection, grant inequitable result to [appellee] to make him to a monetary award, or both, as an adjustment of the proceed to court to resolve this case without equities and rights of the parties concerning marital notice, without a chance to prepare, without a property, whether or not alimony is awarded. . . . chance to go over a 9-207 . . . Rule 9-207 state- Required considerations ment to make determinations of what property (b) Factors in determining amount and method is disputed, what property is not disputed, of payment or terms of transfer. — The court shall what’s marital and what’s non-marital proper- determine the amount and the method of payment ty. of a monetary award, or the terms of the transfer of the interest in property described in subsection (a) [Appellee’s counsel] cites Rule 9-207 cor- (2) of this section, or both, after considering each rectly. “When a monetary award or other relief of the following factors: pursuant to Family Law 8-205 is an issue, the (1) the contributions, monetary and nonmonetary, parties shall file a joint statement listing all of each party to the well-being of the family; property owned by one or both of them.” And (2) the value of all property interests of each party; I don’t have that 9-207 statement. And appar- (3) the economic circumstances of each party at ently, no one even thought about preparing it 59 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law the time the award is to be made; (9) the contribution by either party of property (4) the circumstances that contributed to the described in § 8-201(e)(3) of this subtitle to the estrangement of the parties; acquisition of real property held by the parties as (5) the duration of the marriage; tenants by the entirety; (6) the age of each party; (10) any award of alimony and any award or other provision that the court has made with respect to (7) the physical and mental condition of each party; family use personal property or the family home; (8) how and when specific marital property or and interest in property described in subsection (a)(2) (11) any other factor that the court considers neces- of this section, was acquired, including the effort sary or appropriate to consider in order to arrive at expended by each party in accumulating the marital a fair and equitable monetary award or transfer of property or the interest in property described in an interest in property described in subsection (a) subsection (a)(2) of this section, or both; (2) of this section, or both.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 60 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 61 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Child support: modification: voluntary impoverish- ity. Rule 8-114. Unofficial publication of an unre- ment ported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. Tracy Sharon Brackett 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page num- v. bers are from slip opinions.

Susan Lynn Brandow 1, 2009. Appellant was also required to pay appellee $1,637.00 per month in child support commencing June No. 1924, September Term, 2012 1, 2010 and attorney’s fees in the amount of $70,000.00. Argued Before: Krauser, C.J., Berger, Salmon, James (The $70,000.00 attorney’s fees award was paid.) P., (Ret’d, Specially Assigned), JJ. Appellant failed to pay appellee any alimony for Opinion by Salmon, J. July or August of 2010 and did not pay child sup- port for June, July, or August, 2010. Moreover, as Filed: December 18, 2014. Unreported. of December 1, 2010, when a judgment was entered against appellant, her total alimony arrearage had The circuit court’s voluntary impoverishment find- grown to $77,000.00. ing was supported by the record, where, although On August 19, 2010, appellee filed a supplemental appellant claimed she started her own business complaint for absolute divorce, in which she sought rather than take a demotion spurred by her employ- equitable division of the property, spousal support, er’s bias against her transgender status, the evi- child support, legal fees and costs. A four-day trial dence showed her employer had valid reasons for commenced on December 13, 2010 that focused on the restructuring and had offered appellant a contract under which she would have been highly compen- issues raised in appellee’s supplemental complaint. sated, which she rejected while knowing she had an At the conclusion of the hearing, the trial judge took obligation to pay alimony and child support. the matter under advisement, and, on July 25, 2011, an order was docketed in which the court: 1. Ordered appellant to pay appellee indefinite This appeal has its origin in a 2009 domestic rela- alimony in the amount of $11,000.00 per month; tions action filed in the Circuit Court for Howard 2. Granted appellee a monetary award in the County. The case has been hotly contested as evi- amount of $501,044.05; denced by the record extract, which is contained in 3. Awarded appellee the use and possession of nineteen volumes. the marital home for a period of three years; The appellant is Tracy Sharon Brackett, f/k/a 4. Awarded appellee $125,000.00 in attorney’s Todd Steven Brackett. In 2011, appellant’s name was fees; changed to its present one.1 5. Awarded appellee child support in the Appellant and appellee, Susan Lynn Brandow, were amount of $1,724.00 per month; married in 1988 and separated in 2009 after twenty-one 6. Granted appellee an absolute divorce on the years of marriage. Two children were born of that grounds of mutual and voluntary separation. union, viz.: Steven Brackett (born January 26, 1994) On July 28, 2011, which was only three days after and Jacob Brackett (born December 30, 1995). the aforementioned judgment was docketed, appellant In July, 2009, appellant [Ms. Brackett] filed a com- filed a motion to alter or amend judgment. A little over plaint for custody and Ms. Brandow filed a count- one week later, appellant also filed a motion to modify er-complaint for limited divorce requesting, inter alia, judgment and a motion to stay the court’s July 25, 2011 child custody, alimony, child support, disposition of order. marital property and legal fees. On July 21, 2010, the On December 9, 2011, appellee filed a petition for Circuit Court for Howard County entered a Consent contempt due to appellant’s failure to pay the child Order regarding custody of the children. The Consent support and alimony previously awarded. Thereafter, Order incorporated an agreement by the parties pro- appellee filed three supplemental petitions for con- viding for shared legal and physical custody of the tempt based on appellant’s failure to pay the full children, who were to spend half of their time with amount of child support and alimony. each parent. On September 1, 2010, the court entered A hearing on appellant’s motion to alter or amend a pendente lite order requiring appellant to pay appel- judgment was commenced on January 20, 2012, after lee $7,000.00 per month in alimony, effective August which the court denied appellant’s motion. Appellant,

61 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law on February 17, 2012, filed a notice of appeal to this lant’s alimony obligation from $11,000.00 per month Court from the denial of her motion to alter or amend to $7,000.00 per month, commencing as of August judgment. But, on March 26, 2012, the parties reached 1, 2012. The trial judge ruled in favor of appellee in a partial settlement agreement. As a result of the set- regard to the latter’s petitions to hold appellant in con- tlement, appellant agreed to dismiss her appeal and tempt. After finding appellant in contempt, the court she did so. That meant that the July 25, 2011 judgment established a purge amount. The court also ordered became final on the date the appeal was dismissed. appellant to pay appellee an additional $65,000.00 in But the trial court still had to rule upon: 1) appellant’s attorney’s fees as well as $25,000.00 as a contribution motion to modify the alimony and child support awards toward appellee’s expert witness fees, which appellee based on a material change in circumstances and 2) incurred in opposing appellant’s motion to modify the appellee’s petitions for contempt. alimony and child support orders. We pause, at this point, to summarize the terms of On November 30, 2012, an amended order find- the March 2012 settlement agreement. As mentioned, ing appellant in contempt was filed. The court con- the court initially made a monetary award to appellee cluded that appellant had alimony arrearages in the in the amount of $501,044.05. Part of the monetary amount of $108,337.36 and child support arrearages of award was to be satisfied by appellant transferring $3,652.00 for the period of August 2010 through July her $137,764.10 equity interest in the marital home to 2012, and that, in order to purge the contempt, appel- appellee. Another portion of the marital award was lant was obligated to pay the amounts due ($3,652.00 to be satisfied when appellant transferred to appel- plus $108,337.36) in full by March 15, 2013. Appellant lee one-half of the marital portion of appellant’s 401k did not pay the monies owed. plan. That one-half interest was worth $166,640.60. As Appellant, pro se, filed a timely appeal to this court of the date of the settlement, that left $196,639.35 that in which she raises five issues,2 viz: appellant was obligated to pay to appellee to satisfy the 1. Whether the trial court properly found [that] marital award. Also, appellant owed appellee $14,000.00 [a]ppellant was voluntarily impoverished fol- for July and August 2010 alimony and $125,000.00 for lowing her job loss and properly imputed the attorney’s fees that the trial judge had awarded. income to [a]ppellant as a result. These three amounts totaled $335,639.35 ($196,639.35 + 2. Whether the trial court properly found the $14,000.00 + $125,000.00). In the settlement agreement, date [on which] [a]ppellant’s circumstances the parties agreed that in settlement of the $335,639.35 changed. owed, appellee would accept $275,000.00 payable as 3. Whether the trial court properly calculated follows. the child support arrearage owed by appellant. 1. $100,000.00 at the time of the signing of the 4. Whether the trial court properly held [a]ppel- agreement; lant in contempt. 2. $55,000.00 from money previously garnished 5. Whether the trial court properly granted [a] by appellee from appellant; ttorney’s fees to [a]ppellee. 3. An additional $55,000.00 on July 1, 2012; 4. The remaining $65,000.00 to be paid at the Backround Facts rate of $3,125.00 per month commencing April Both appellee and appellant are highly intel- 1, 2012. ligent persons and both are presently in their early The agreement provided that in the event of an 50’s. Appellee has a doctorate degree from Columbia uncured default, appellee would be entitled to exe- University as well as two master’s degrees. Beginning cute on the existing judgment in the full amount of in 1993, she was employed by the Naval Research $335,639.35. Laboratory as a research chemist. Unfortunately, how- On April 6, June 20, June 21 and September 12, ever, she later developed dystonia, a neurological con- 2012, the circuit court judge who had presided at the dition that adversely affects her breathing, her vocal pendente lite hearing and at the four-day hearing con- chords, her ability to sit for prolonged periods of time, cerning alimony, child support, marital award, etc., as well as her ability to walk and to write. The record is conducted an evidentiary hearing dealing with appel- clear that appellee is unable to work at present — and lant’s motion to modify alimony and child support and will not be able to work. appellee’s petitions to hold appellant in contempt for At the time of the divorce hearing, appellee was failure to pay child support and alimony. At the conclu- receiving disability payments from the federal employ- sion of the hearings, on September 12, 2012, the trial ee retirement system in the amount of $2,065.00 per judge gave an oral opinion in which she opined that month. In addition, she receives social security pay- appellant had proven that there was a material change ments of $1,851.50 per month. The Social Security in circumstances since the court had ordered appellant Administration also paid her $463.00 per month for to pay appellee $11,000.00 per month in alimony plus each of her two minor children. The trial judge estab- child support. The court, after finding that appellant lished appellee’s share of child support based on the had voluntarily impoverished herself, reduced appel- figures just mentioned. Appellant suffers from diabetes and had double TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 62 bypass heart surgery several years before the divorce or $73,406.65; hearing. She is, however, fully able to work on a full- c. Receive COBRA payments for medical and time basis. dental expenses for the five (5) month sev- Appellant is not a college graduate. But, prior to erance period; the divorce, she was very successful in business. At d. Sell PTR her shares of stock for the time of the divorce hearing, in 2010, and for sev- $305,691.16; eral years previously, appellant was president and e. Remain eligible to receive 5/12 of the 2011 chief executive officer for a software engineering com- executive bonus; and pany named The PTR Group, Inc. Until 2011, appel- lant owned 14,000 shares of stock in that company, f. Offered a consulting agreement whereby which represented 22 percent of all outstanding stock. appellant would perform services for The With bonuses, appellant’s earnings in 2009 totaled PTR Group at a rate of $175.00 per hour. $886,483.00; and total income for 2010 was $563,236.00.3 Appellant responded to the offer on April 7, 2011 When the initial hearings on alimony, child sup- in an e-mail to Dean Thompson (one of the majority port, etc., concluded on December 20, 2010, appellant stockholders in The PTR Group) and Joseph Tagliarini was still employed by The PTR Group as its president as follows: and chief executive officer. But, in the six months, As I had expressed to Joe [Tagliarini] any approximately, between the time the hearing concluded change in my present employment situation and July 25, 2011, the date the court signed the order comes to bear on the pending judgment on my awarding appellee $11,000.00 per month indefinite ali- divorce which includes a property settlement. mony plus child support, appellant severed her relation- If and when the judge finally makes a ruling I ship with The PTR Group. must have an immediate response for modifi- Evidence introduced concerning appellant’s motion cation ready as there is only a 10 day window. to modify showed that, beginning in 2010, the two Accordingly, and as I had expressed to Joe, major shareholders in The PTR Group became dis- I have to pass these figures past my divorce satisfied with appellant’s performance as president attorney to understand [what] the impact is and CEO and, accordingly, decided to replace her in on my divorce settlement. This weighs into these positions. In an email dated April 6, 2011, Joseph my decisions. Unfortunately she is out of town Tagliarini, an adviser to the two majority sharehold- until Monday and I do not expect a response ers of The PTR Group, summarized a discussion he from her before. So it will have to stew for a had with appellant concerning appellant’s termina- few days before I can begin further discussions. tion as CEO and president. Appellant was given (emphasis added). two options. The options were: After sending the April 7, 2011 email, appellant (1) Appellant would remain at PTR under the retained an attorney to negotiate on her behalf with following terms: The PTR Group. Ultimately, appellant and PTR entered a. Assume a position as Executive Director into a confidential settlement agreement on June 8, of SIS (Security Intelligence Systems) 2011. At the time of the settlement agreement, appel- Programs; lant had already formed a new company called Tiresias b. Be retained as an at-will employee of PTR; Technologies (“Tiresias”). The settlement agreement provided that The PTR Group would provide some c. Retain her stock ownership as it is current- marketing and administrative support for Tiresias, ly distributed; including designating Tiresias as a strategic partner of d. Remain as a PTR Board Member; The PTR Group, continuing sponsorship of appellant’s e. Report to the CEO; security clearance, access for appellant to a database f. Receive an annual salary of $100,000 per of potential federal opportunities, temporary consult- year; ing opportunities for appellant at $175.00 an hour and g. Continue to receive all other employee guaranteed subcontracting opportunities for Tiresias, benefits, including participation in the with a guarantee of sufficient hours to employ one full- Corporate Profit Sharing Plan, safe harbor time employee for two years.4 In her testimony, appel- 401(k), and medical benefits; and lant valued the guarantee term alone as being worth h. Receive an incentive/commission payment $500,000.00 or $250,000.00 per year. of 10% for all invoiced revenue she directly In regard to the monetary aspect of the settle- produced; or ment contract with The PTR Group, appellant was to receive $305,691.16 for the purchase of her shares. (2) Leave PTR under the following terms: Additionally, appellant was to receive severance pay a. Resign as a PTR employee, officer and of $14,681.00 per month for ten months and 5/12 per- Corporate Director effective June 1, 2011; cent of her 2011 bonus, which ultimately amounted to b. Receive a severance amount equal to her a bonus of $82,500.00. Additionally, she was to receive base salary for a period of five (5) months, reimbursement for her health insurance costs for ten 63 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law months. The monies due from The PTR Group were to testimony of the two representatives from The PTR be paid to appellant as follows: $203,794.11 immediate- Group (Dean Thompson and Joseph Tagliarini) was ly and the balance of $101,897.05 in two semi-annual credible. installments which were due on February 1 and July 1, Appellant took the position in the circuit court 2012. A total of $146,800.00, for ten months salary, was that because she was currently earning nothing from paid out to appellant in 2011. her new company, she should not be required to pay In her motion to modify alimony and child support, any alimony or child support. But counsel for appellee appellant contended that there had been a material argued that appellant had voluntarily impoverished her- change in circumstances since the trial judge heard tes- self. In support of the voluntary impoverishment argu- timony concerning the amount appellant should pay in ment, appellee’s attorney stressed that appellant could alimony and child support. Appellant focused upon the have earned a great deal of money, as Mr. Estabrook fact that her W-2 form for 2011 showed that she made had testified, if she had simply remained as an employ- $323,830.34 but in 2012, although she received a bonus ee of The PTR Group. Moreover, appellee’s attorney of $82,500 from The PTR group, she earned no other emphasized that since leaving The PTR Group appellant income from Tiresias or any other source. had never tried to get a job with any other company, At the aforementioned evidentiary hearing, appel- even though she was highly skilled and, according to lant called Dr. Jillian T. Weiss as an expert witness. Dr. appellant’s testimony, earning no money. Weiss voiced various opinions concerning the difficul- The trial judge, after hearing four days of testimony ties transgender male to female individuals faced in and considering 175 exhibits, concluded that appellant seeking employment. According to Dr. Weiss, such indi- had voluntarily impoverished herself. She found that viduals had less than a 16.5% chance of obtaining a job appellant had the ability to earn $298,000.00 per year appropriate to her education, experience, and income had she stayed with The PTR Group and, based on that history. Dr. Weiss admitted, however, that she did not latter figure, reduced alimony to $7,000.00 per month. know anything about the demographics of Maryland Child support was also reduced. counties, and therefore did not focus her research In arriving at her conclusion that appellant had toward any specific county in this state. Dr. Weiss voluntarily impoverished herself, the trial judge exam- also admitted that she did not know whether appellant ined closely the ten factors set forth in Goldberger had actually applied for a job and had been rejected v. Goldberger, 96 Md. App. 313 (1993) that are rele- because of her transgender status. The trial judge did vant when voluntary impoverishment is alleged. The not find Dr. Weiss’s testimony to be credible. Goldberger factors mentioned by the trial judge in her Appellee called Joseph Estabrook as an expert wit- oral opinion were: ness. He observed that had appellant opted to remain 1) appellant’s physical condition; with The PTR Group as a salaried employee with the 2) appellant’s level of education; title of executive director of Security Intelligence 3) the timing of any change in employment or Systems she would have had the right to ten percent financial circumstances relative to the divorce commissions. He opined that if appellant had accept- proceedings; ed The PTR Group’s offer, appellant had the ability to 4) the relationship of the parties prior to the earn between $300,000.00 and $500,000.00 per year in divorce proceedings; commissions. The commissions would have been in 5) appellant’s efforts to find and retain employ- addition to $100,000.00 per annum salary to which she ment; would have been entitled. The trial judge found that Mr. 6) appellant’s efforts to secure retraining if that Estabrook was a credible expert witness. is needed; At the hearings on the motion to modify, the par- 7) whether appellant ever withheld support; ties were at odds as to why appellant left The PTR 8) appellant’s past work history; Group. Appellant testified, in effect, that the two major 9) the areas in which the parties live and the stockholders of The PTR Group wanted her to leave status of the job market there; and their organization because of her gender change. On 10) any other considerations presented by the other hand, representatives of The PTR Group either party. testified that The PTR Group became dissatisfied with In regards to the first two Goldberger factors, the appellant because she was taking too much time off trial judge found that there was nothing about appel- from work and because the company’s business had lant’s current physical condition that would prevent plateaued. Accordingly, the majority stockholders of her from being fully employed and that, despite the PTR wanted the company to go in a new strategic direc- fact that appellant did not have a college degree, she tion. Nevertheless, according to those representatives, nevertheless had the ability, intellect, plus “sheer drive during the negotiations with appellant, they tried to and determination” to succeed that few possess. In the come to an agreement with her that would let appellant court’s words, appellant had “tremendous talent, tre- have an important place in the company (i.e., in charge mendous abilities, tremendous drive to succeed.” of SIS), but not as CEO. The trial judge found that the The trial judge weighed the fifth Goldberger fac-

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 64 tor (efforts to find and retain employment) against The issue of whether a party is voluntarily impover- appellant, finding that “there was a complete lack of ished and, if so, a determination of the party’s potential any efforts” to find a job except for her decision to be income, is: self-employed after making an election to form a new [L]eft to the sound discretion of the trial judge. company “in the present economic climate.” The court’s factual findings will not be dis- The trial judge also held Goldberger factor number turbed unless they are clearly erroneous, and seven against appellant. The court pointed out, accu- rulings based on those findings must stand rately, that appellant had shown a “consistent pattern,” unless the court abused its discretion. of failing to abide by alimony and child support orders, Reuter v. Reuter, 102 Md. App. 212, 221 (1994) (cita- thus requiring appellee to “jump through hoops in order tions omitted). to collect the [alimony and child support] money” that appellant had been ordered to pay. B. Merits The trial judge gave appellant credit for a good In Goldberger, 96 Md. App. at 327, we said that vol- work history — prior to leaving The PTR Group — but untary impoverishment occurs whenever a “parent has concluded, based on emails that were introduced into made the free and conscious choice, not compelled by evidence, that appellant’s decision to leave The PTR factors beyond his or her control, to render himself or Group was affected by the anticipation that she was herself without adequate resources.” going to file a motion to modify alimony and child Appellant first argues: “[T]hat the backlash against support. Also taken into consideration, and weighed her transgender status that she experienced at work against appellant, was the fact that under appellant’s and subsequent removal were ‘factors beyond her con- settlement agreement with The PTR Group, there were trol.’” Although she does not say so explicitly, we infer a number of monetary concessions set forth in that from her use of the phrase “removed,” that she con- agreement of which appellant failed to take advantage. tends that she was forced to leave The PTR Group. In the trial judge’s words, “there was no testimony pre- That implied argument overlooks the fact that the trial sented that [appellant] made an effort to be a strategic judge found that the testimony of Dean Thompson partner [with PTR] or to take advantage of the market- and Joseph Tagliarini was credible. If what those men ing and other non-economic benefits [offered in the said was true, appellant did not suffer any “backlash” contract] that had an economic impact” on appellant’s because of her transgender status and, although appel- new company. lant was removed from her positions as president and As mentioned, the trial judge imputed income to CEO, she was not “removed” from employment with appellant in the amount of $298,000.00 per annum or The PTR Group. As already mentioned, the majori- $24,833.00 gross per month. The court’s explanation as ty stockholders in the company offered appellant an to how it arrived at the $298,000.00 figure was as fol- important and potentially lucrative job with the com- lows: pany, which she refused. Moreover, it can be inferred, I’m going to impute because I think the evi- legitimately, that the rejection of that offer was caused, dence supports that this would have been or at least strongly influenced by, appellant’s belief that available, a base income to Ms. Brackett of the rejection might help her to modify any alimony or $100,000.00 a year. This is the amount that was child support order the court might render. available if she had stayed at PTR as a base sal- It is true that appellant did not voluntarily leave ary. There’s no question that some bonus mon- her positions as president and CEO of The PTR Group. ies[5] would have also been, and I’m suggesting The trial judge recognized this when she ruled that she had to stay there, it’s just in terms of impu- there had been a material change in circumstances. tation. That’s the best information, rather than But appellant’s failure to accept the offer to become just making speculative conjectures. the “executive director of SIS programs” for The PTR With respect to the line of work that she Group, receive a $100,000.00 per year salary, and is in, there’s certainly has been a history of receive an incentive/commission payment of 10% for all receiving bonuses in the past that would invoice revenues she directly produced, was a matter have continued. I am not convinced that Mr. of free choice. In other words, knowing that she had an Estabrook’s estimate of $400,000.00 in bonus obligation to pay alimony and child support, appellant monies is truly viable or supported by the evi- turned down an offer of a job for which she would have dence. But I do believe that the past bonus his- been highly compensated. tory is determinative and should be considered. Appellant next argues that her “removal from The So the past bonus history on 2011 annualized PTR Group was not the result of an intentional act basis was $198,000.00. designed to impoverish” herself. There would be con- siderable merit in this argument if the trial judge had I. accepted appellant’s contention that she was “removed Voluntary Impoverishment from The PTR Group” because of gender bias. The trial judge did not, however, believe that appellant was A. Standard of Review forced out of the company for that or any other reason.

65 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law As just mentioned, the trial judge believed that appel- are unpersuasive. First, as far as shown by the record, lant voluntarily elected to leave her job. from the time appellant commenced employment with The two cases appellant relies upon in support of The PTR Group in 2000 she was always an at-will her position in regard to the voluntary impoverishment employee. Second, her “total remuneration” could be issue are Wills v. Jones, 340 Md. 480 (1995) and Stull v. considered to be “less than one-third” of her prior total Stull, 144 Md. App. 237 (2002). Those cases are inappo- remuneration, only if one were to assume that if she site. In Wills, a parent could not be employed because had accepted The PTR Group’s offer she would have he was incarcerated. 340 Md. at 497. In Stull, a father earned no commissions. The trial judge concluded that could not pay child support because he was fired after appellant would earn at least $198,000.00 per year in having been caught falsifying documents. Stull, 144 Md. commissions,6 and that prediction was substantiated App. at 245. Unlike appellant’s situation, neither the by the testimony of Mr. Estabrook, who opined that obligor in Stull or Wills had the option of continued appellant would earn considerably more than that in employment. commissions. In support of her argument that the trial judge Appellant also asserts that her “decision to improve erred in finding that she had voluntarily impoverished her career prospects by starting her own company herself, appellant also maintains that she was “not [was] not evidence of voluntary impoverishment.” In required to accept a demotion as an alternative to her this regard, appellant argues: previous employment.” Appellant cites no authority Rather than accept a demotion in a com- that comes even close to supporting this broad state- pany that had rejected her, Appellant decided ment and we know of none. She does cite Moore v. to start her own company. This new company, Tseronis, 106 Md. App. 275, 283 (1995) for the proposi- Tiresias Technologies, is a company perform- tion that “[w]hile a parent must take into consideration ing Engineering Services similar to those that his or her child support obligation when making job Appellant had conducted for over a decade and location choices, such considerations should not with [T]he PTR Group. The appellant explained be immobilizing.” In Moore, the appellant, Kevin Moore, in great detail in testimony regarding the capa- was found by the circuit court to have voluntarily bilities of her new company, including cus- impoverished himself. Id. at 278. Mr. Moore was an auto tomer prospects, and her estimates of future technician who, at the time his child support obligation revenues of the company. Appellant present- was initially calculated, lived in the Baltimore City ed to the court detailed business information, area. While employed in Baltimore, Moore’s earnings marketing materials, government registrations were between $34,681.00 and $37,491.00 per year. Id. and other operational documents for Tiresias at 278-79. But in August of 1993, Mr. Moore moved to Technologies. Appellant’s decision to start a Garrett County, Maryland with his wife and went to new company rather than to continue to work work in Bedford, Pennsylvania where he believed he at her old one is not evidence of voluntary would make approximately $25,000.00 a year. Id. at 279. impoverishment. Unfortunately, however, because of the limited work Appellant accurately summarized her testimony. available, Mr. Moore only earned $18,720.00 a year But, as the trial judge said when prefacing her opinion in Pennsylvania. Id. Due to the lower than expected in regards to the issue of voluntary impoverishment, income, coupled with the expense of commuting 116 that decision was based, in large part, on her evaluation miles per day to Bedford, Pennsylvania, Mr. Moore of the credibility of the various witnesses. The trial elected to leave his Pennsylvania job and accept- judge made clear in her oral opinion that she was well ed employment in Garrett County, where he earned aware as to what had to be shown in order to conclude $16,120.00 per year. Id. at 279. In Moore, we held that that appellant had voluntarily impoverished herself. the trial court’s finding of voluntary impoverishment And, by implication at least, she rejected appellant’s was not warranted. We said that the obligation to pay testimony that she made her decision to leave The support “should not be immobilizing.” Id. at 283. In PTR Group in order to put herself in a better financial context, that statement meant that the obligation to position. The timing of appellant’s decision to leave pay support should not be geographically immobilizing The PTR Group, coupled with appellant’s long history for the parent who is obligated to pay support. Here, of failing to pay either child support or alimony when appellant’s choice had nothing to do with geography. due, along with the April 7, 2011 email appellant sent, Moreover, the Moore case does not support appellant’s supported the trial judge’s implied rejection of her tes- argument that a party does not have to accept a demo- timony. tion. Appellant takes issue with the trial judge’s finding Appellant also argues that she was justified in turn- that appellant had failed to look for employment and ing down the offer of continued employment because refused to use her prior employer’s help in setting up “that job offer was for at-will employment, for less than her new company. In support of appellant’s contention one-third total remuneration, and with no severance that these criticisms by the trial judge were unwarrant- payment or ability to collect a bonus.” These arguments ed, appellant refers us to her explanation as to why she

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 66 did not seek new employment or take advantage of the in November 1999, for writing a prescription using help offered by her old employer. If appellant’s expla- another doctor’s name for a patient that did not exist. nations had been credited, the judge’s criticisms would Id. at 374. After his arrest, Dr. Malin was a patient at a have been unwarranted. But it can be inferred, legiti- drug rehabilitation facility in Florida where he discon- mately, that the trial judge, in making the criticisms of tinued his use of drugs and alcohol. Id. at 375. Although appellant’s work efforts, rejected the appellant’s expla- he applied for a position as an anesthesiologist at nations based on the court’s evaluation of appellant’s Sibley Hospital, his application was rejected because credibility. The trial judge, although she did not say of his past drug use. Id. at 377. He applied to work at so explicitly, apparently did not credit appellant’s var- Georgetown Hospital but was not hired because of ious explanations. That was clearly within the judge’s his arrest record. Id. After these rejections, Dr. Malin prerogative. See Md. Rule 8-131(c) (when reviewing decided that it was in his best interest not to pursue factual findings of the trial judge, we will only reverse any employment in the medical field. Id. Instead, he the judge’s factual findings if such findings are clearly enrolled in the George Washington University Business erroneous). School in an effort to obtain a MBA degree. Id. He Appellant also argues: then began receiving disability payments from three The Maryland Court of Appeals has found in insurance policies which paid him $10,000.00 a month. favor of parents who have decided to make Id. at 378. The trial court “apparently considered it changes, whether out of necessity or out of a unreasonable for [Dr. Malin] to attempt to extricate desire to improve their long-term career out- himself from the field of medicine and its ready access look. In Malin v. Mininberg, 153 Md. App. to drugs, despite appellant’s prolonged history of sub- 358, 403 (2003), the Court of Appeals stated stance abuse[.]” Id. at 394. The trial court did not, that “there are limits on the extent to which a however, actually attribute potential income to Dr. court can ‘immobiliz[e]’ a parent, or ‘restrict’ a Malin for child support purposes. Id. at 407. In Malin, parent’s . . . job preferences.” (quoting Moore v. we said there was not a shred of evidence to suggest Tseronis, 106 Md. App. 275, 283 (1995). that Dr. Malin left the practice of anesthesia in an effort In Lorincz v. Lorincz, 183 Md. App. 312, to avoid his support obligations. Dr Malin had no job 341 (2008), the court found the wife did not offers in the medical field. On the other hand, based on voluntarily impoverish herself because she was the timing of appellant’s decision to leave the employ “engaged in a career change that will in very of The PTR Group, coupled with the fact that appellant short order result in a significantly improved had almost never paid her support obligations on time financial situation to the benefit of all parties.” prior to rejecting The PTR Group’s job offer, it can Quoting Malin, the Court continued to state be inferred, legitimately, that appellant left The PTR that in “a free society, appellant should not be Group with an intent to limit her child support and ali- forced to maintain a particular career when mony obligations. there is a reasonable basis to believe that to do In Lorincz v. Lorincz, 183 Md. App. 312, 316 so would jeopardize his health or liberty; . . . (2008), a parent, at the time of her divorce, was work- and the alternative career may yield a respect- ing towards her Ph.D at Johns Hopkins University able income. Put another way, a parent’s Medical School. The university paid her a stipend of child support obligation should not be used to $24,000.00 a year. Id. She voluntarily left the Ph.D pro- shackle the parent by preventing him or her gram in order to enter the University of Virginia School from making a needed lifestyle change, based of Law as a full-time student. Id. at 317. While her case on valid reasons.” Id. at 341 (quoting Malin, was pending, she was able to obtain a job as a sum- 153 Md. App. at 404). Additionally the court mer intern at a New York City law firm, that paid her stated that “[l]ong-term improvement . . . is a $36,424.00 for approximately twelve weeks work. Id. factor that cannot be totally disregarded.” Ibid. at 328. We held that the law student had not voluntarily The facts in Malin and in Lorincz were far different impoverished herself because, by going to law school, from those heard by the judge in the case sub judice. In she was currently earning more than she would have Malin, the trial judge, in determining child support, earned if she had stayed in the Ph.D program. Id. at found that Dr. Murray J. Malin had voluntarily impov- 329. As can be seen, in Lorincz, as a matter of undis- erished himself. Id. at 368. Dr. Malin, an anesthesiol- puted fact, the obligor did not impoverish herself. The ogist, developed an alcohol and drug addiction prob- same cannot be said here. lem during the marriage. In January 1998, Dr. Malin Lastly, appellant argues that the “fact that [she] has was terminated from his employment with Columbia been working to start a new company — exercising Anesthesia Services because his employer believed her skills as an entrepreneur — should be sufficient that he had tampered with patient medical records for evidence that [a]ppellant has not tried to voluntarily financial gain. Id. at 373. Dr. Malin then found part- impoverish herself.” Arguably, this may be true. But the time work at various outpatient surgery centers. Id. He question here presented is not whether appellant pro- relapsed, however, which was the cause of his arrest, duced evidence which, if believed, was sufficient to dis-

67 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law prove a voluntary impoverishment allegation. Instead, support. the question is whether the trial judge abused her dis- For all of the above reasons, we hold that the trial cretion when she found, based on all of the evidence, judge did not err in finding that appellant had voluntari- that appellant intended to and did voluntarily impover- ly impoverished herself. Nor did the trial court err in ish herself. There was more than sufficient evidence to attributing potential income to appellant in the amount show voluntary impoverishment, as demonstrated by of $298,000.00 per year. the trial judge’s analysis of the Goldberger factors. Alternatively, appellant argues that “even if the II. court had been correct to impute income, it incorrectly The Court’s Calculation Of The Date That A calculated how much Appellant could have made had Material Change In Circumstances Occurred she taken the job offered by The PTR Group.” The trial For Purposes Of Reducing Alimony judge, after finding that Mr. Estabrook’s testimony was Appellant contends that the trial judge erred when credible, thought that appellant, if she had remained she set August 1, 2012 as the date that appellant should with The PTR Group, could have earned $100,000.00 in commence paying alimony at $7,000.00 per month. salary and $198,000.00 in commissions.7 The $298,000.00 Appellant argues that the correct date should have been per year figure used by the trial judge was well below July 1, 2011. the estimate made by Mr. Estabrook. Under the cir- The trial judge, in explaining why she was mod- cumstances, we hold that the trial judge was not clearly ifying alimony and child support said that August 1, erroneous when she estimated that appellant could 2012 was the date that appellant’s “financial situation have earned $298,000.00 per year if she had stayed with changed.” She pointed out that although appellant’s The PTR Group. employment with The PTR Group terminated in June of Finally, appellant criticizes the manner in which the 2011, the “financial benefits” of that employment “went trial judge balanced one of the Goldberger factors. The far longer than [from] the time when” appellant was no factor at issue was whether appellant had ever with- longer physically on her former employer’s premises. held support. As mentioned, the trial judge found that The judge further explained that when she original- appellant had engaged in a consistent pattern of failure ly set the amount due from appellant for child support, to comply with prior orders for child support and ali- she used an income figure of $31,181.00 per month mony. Appellant does not dispute that finding. Instead, [$374,172.00 — annually] but when she set alimony at she explains her non-compliance by attributing it to her $11,000.00 per month, she based that award on an esti- “inability to meet . . . excessive spousal support obliga- mated income of $46,916.66 per month or $563,000.00 tions.” Appellant emphasizes that she, had to “borrow annually. The trial judge then noted that the imputed or make other loan arrangements” to meet obligations. income [$298,000.00 per annum] is “slightly” more than She then cites Rivera v. Zysk, 136 Md. App. 607, 615 one-half of appellant’s former estimated income in the (2001) for the proposition that an obligor under a sup- amount of $563,000.00. port order is not required to go into debt to satisfy the At the hearing on the motion to modify, appel- order of support. None of these arguments has merit. lant’s exhibit 28 was introduced, which showed that Three examples will suffice. At a time when appellant in 2010, appellant’s earned income was approximately was not paying what was due for alimony or child sup- $374,172.00. The higher figure [i.e., $563,000.00] upon port, she opened a new account at Howard Bank and which the original $11,000.00 per month alimony award deposited $54,973.86 into that account. These funds was based included $191,595.00 that appellant received came from a bonus check from The PTR Group, which from a distribution from her IRA account. appellant had been holding for several weeks. Yet, Appellant’s exhibit 36, showed that for the first while appellant held these monies, she failed to pay five months ending May 31, 2011, she had earned from the alimony and support due for any month. Instead, The PTR Group a total of $234,897.00 [$46,974.00 appellant paid what she felt like paying. Also, instead per month], which was very close to the figure the of paying the amount awarded for child support and court had used when she originally set the amount alimony, on July 21, 2011, she pre-paid her rent (for a of indefinite alimony. Additionally, in 2011, appellant house in which she resided) through August 1, 2012 received $146,813.80, which represented ten payments by transferring to her landlord $42,000.00. Also, while of $14,681.38 that was due to her under the settle- delinquent in support payments, she paid her attorney, ment agreement. Therefore, not counting sale of her between June 15 and October 31, 2011, over $46,000.00. stock in The PTR Group, and the 2011 bonus that was Furthermore, the trial court had before her undisputed paid in 2012, appellant received, in 2011, $381,710.00 evidence that for every month that appellant was delin- [$234,897.00 + $146,813.00]. In addition, in 2011, she quent in paying alimony and child support, appellant received $203,794.11 for her PTR Group stock. All told, had monies in her bank account that were more than for 2011, she received about $585,000.00. enough to satisfy that month’s alimony and child sup- Appellant makes the following argument in that port obligations. In no month was appellant forced to regard: borrow money to pay that month’s alimony or child [T]he trial court treated the stock payout as “additional funds,” as though Appellant were TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 68 receiving income. That trial court treated the to when to make the modification of alimony effective, July 1, 2012 final stock payout (outlined in the it is important to remember that the trial judge must Settlement Agreement with The PTR Group) as balance the interest and fairness “to both the payor and income, and used it as the basis for setting July the spouse receiving alimony[.]” Langston, supra, 366 1, 2012 as the date when Appellant’s [financial Md. at 516. situation] changed. However, this stock payout Here, the trial judge, in deciding when and wheth- had already been counted as marital property, er to modify alimony considered the interest of both and was actually paid directly to Appellee as appellee and appellant. The court noted that appel- part of the March 2012 Settlement Agreement lee’s needs had remained constant since the date regarding division of marital property. that $11,000.00 was set as the amount of alimony that Appellant also argues that when the trial judge should be paid. And, as far as appellant was concerned, originally set alimony, her conclusion that appel- one of the circumstances that the court looked at lant earned, in 2010, $563,000.00, was approximately was that after July 1, 2011 appellant still continued to $192,000.00 too high. receive a great deal of money from her former employ- We will address appellant’s second contention first. er including money from the sale of stock. If, as appellant contends, the original alimony award The trial judge was very well aware of appellant’s was too high because the trial judge thought that appel- circumstances and the source of her funds. In fact, lant made more money than she really did, then appel- almost all of the testimony and exhibits in the four day lant should have appealed and contested that matter hearing concerned appellant’s complicated financial in this Court. Instead, appellant dropped her appeal, situation. Given the fact that modification of alimony making the July 25, 2011 alimony award final — subject is only allowed as justice and circumstances require, only to a motion to modify based on a material change we cannot say that the trial judge abused her discre- in circumstances. It is now too late to successfully tion when she impliedly found that circumstances and argue that the court’s July 25, 2011 award was based on justice did not require that alimony be modified until erroneous fact-finding.8 See Blaine v. Blaine, 97 Md. August 1, 2012 in light of the fact that after July 1, 2011, App. 689, 702 (1993). appellant was still receiving a great deal of money from In regard to appellant’s other argument, which con- her former employer. cerns the court’s [alleged] improper treatment of the monies received from sale of stock, we are guided by III. the provision set forth in Md. Code (2012 Repl. Vol.), Child Support Modification Family Law Article (“FL”), section 11-107(b), viz: In her brief, appellant raises the issue of whether (b) Modification of amount. — Subject “the trial court properly calculated a child support to § 8-103 of this article and on the petition of arrearage to [a]ppellee?” In neither her opening or reply either party, the court may modify the amount brief does appellant present any argument as to that of alimony awarded as circumstances and jus- issue. Therefore, the argument is waived. See Beck v. tice require.[9] Mangels, 100 Md. App. 144, 149 (1994). The key language in the statute just quoted is IV. “as circumstances and justice require.” The Court of The Trial Judge’s Decision To Hold Appellant In Appeals emphasized this fact in Langston v. Langston, Contempt 366 Md. 490, 516 (2001), when it stated: The essential phrase of Section 11-107(b) Appellee’s counsel filed petitions to hold appel- which authorizes modification of alimony pay- lant in contempt on December 9, 2011, January 18, ments is “as circumstances and justice require.” 2012, April 5, 2012, and June 18, 2012. Attached to the A party requesting modification of an alimo- last petition for contempt, was an affidavit, signed by ny award must demonstrate through evidence appellee, that accurately set forth appellant’s history in presented to the trial court that the facts and failing to obey court orders. Referring to appellant as circumstances of the case justify the court “Plaintiff” the affidavit reads: exercising its discretion to grant the requested 6. Plaintiff still has not paid Defendant any modification. child support for June, July, or August 2010 as required by the Pendente Lite Support Order. The question then becomes: On what date did cir- Thus, Plaintiff still owes a total of $4,911 for cumstances and justice require that appellant’s alimony child support under the Pendente Lite Support payment be reduced? In answering that question, we Order. are mindful of the fact that we should not reverse a 7. Plaintiff has also failed to pay additional sup- trial judge’s decision regarding modification of alimo- port due under the [c]ourt’s most recent sup- ny unless the court’s decision is “an arbitrary abuse of port order, entered on July 25, 2011 (“July 25, discretion.” Ridgeway v. Ridgeway, 171 Md. App. 373, 2011 Order”). Specifically, Plaintiff has failed 384 (2006). Additionally, in determining whether the to pay child support, as required by the July 25, trial judge has abused his or her discretion in regard 2011 Order, as follows:

69 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law a. For August, September, November, and for child support under the September 1, 201[0] December 2011, Plaintiff paid child support Order was willful; of only $1,637 (short by $87 each month). 4. Plaintiff owed child support from August b. Plaintiff’s child support check for 2011 through June 2012 for a total of $1,426.00 October 2011 bounced, and Plaintiff failed per month, with $1,062.00 per month owed for to provide any more funds for child support Jacob and $364.00 per month owed for Steven; for October 2011. 5. Plaintiff owed child support for July 2012 c. For January, February, March, April, May of $1,062.00 per month for Jacob; and June 2012, Plaintiff paid only $1,637 for 6. Plaintiff paid child support of $1,637.00 child support (short by $87 each month). per month for August, September, November, 8. Similarly, Plaintiff has failed to pay alimony December 2011 and January through July 2012. as required by the July 25, 2011, Order, as fol- Plaintiff did not pay any child support for lows: October 2011. a. For August and September 2011, Plaintiff paid alimony of only $3,074.72 each month 7. Plaintiff’s child support arrearages for (short by $7,925.28 for each month). June through August 2010, after crediting over- b. Plaintiff’s check for October 2011 alimo- payments of child support made by Plaintiff for ny also bounced, and Plaintiff has failed to August, September, November, and December provide additional funds for alimony for 2011 and January through July 2012, total October 2011. $3,652.00; c. For November and December 2011, 8. The Defendant has proven by clear and Plaintiff paid alimony of only $2,902.64 convincing evidence that the Plaintiff has (short by $8,097.36 each month). not paid the amount owed for alimony under d. For January, February and March 2012, the [c]ourt’s Judgment of Absolute Divorce, Plaintiff paid alimony of only $2,902.64 entered by the [c]ourt on July 25, 2011, docket (short by $8,097.36 each month). entry number 150, from the date of said order e. For April, May and June 2012, Plaintiff through the last date of the Contempt Hearing, paid alimony of only $1,000.00 (short by July 20, 2012, for a total of $108,337.36 owed $10,000.00 each month). for alimony from August 2011 through July 9. Thus, as of the date of filing of the Third 2012; Supplemental Petition, Plaintiff owes $4,911 9. At the time each of these alimony pay- for child support for June, July, and August ments were due, funds were [ ] available to 2010, $97,337.36 for alimony from August 2011 make the payments; through June 2012, and $2,594.00 for child sup- 10. Plaintiff’s failure to pay the amount port for August 2011 through June 2012. owed for alimony under the July 25, 2011, 10. In total, Plaintiff owes $104,842.36 in alimo- Order was willful; ny and child support payments pursuant to the 11. Plaintiff failed to show by a preponder- [c]ourt’s Pendente Lite Support Order and the ance of the evidence that from the date of the July 25, 2011 Order. September 1, 2010, Order through the last date The trial judge found appellant in contempt for fail- of the Contempt hearing, September 12, 2012, ing to pay child support and alimony. In this regard, the the Plaintiff: trial judge made the following findings: (a)(i) Never had the ability to pay more 1. The Defendant/Counter-Plaintiff Susan than the amount of child support actu- Lynn Brandow (hereinafter “Defendant”) ally paid; and has proven by clear and convincing evidence (ii) Made reasonable efforts to become that the Plaintiff/Counter-Defendant Tracy or remain employed or otherwise law- Sharon Brackett (“Plaintiff”) has not paid the fully obtain the funds necessary to amount owed for child support under the [c] make payment; or ourt’s Pendente Lite Support Order, entered (b) That enforcement by contempt is on September 1, 2010, docket entry number barred by limitations as to each unpaid 115 from the date of said order through the last child support payment. date of the Contempt hearing, July 20, 2012, for 1[2]. Plaintiff failed to show by a prepon- a total of $4,911.00 owed for child support for derance of the evidence that from the date of June, July and August 2010; the July 25, 2011 Order through the last date of 2. At the time each of these child support the Contempt hearing, September 12, 2012, the payments were due, funds were available to Plaintiff: make the payments; (a)(i) Never had the ability to pay more 3. Plaintiff’s failure to pay the amount owed than the amount of alimony actually

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 70 paid; and contempt, that the trial judge gave no consideration to (ii) Made reasonable efforts to become her “financial status in this matter” and the trial court or remain employed or otherwise law- “ignored the monthly deficit found in the Appellant’s fully obtain the funds necessary to financial statement.” The trial judge did not ignore make payment; or either appellant’s financial status or her financial state- (b) That enforcement by contempt is ment. Appellant spent money freely in disregard of barred by limitations as to each unpaid her support obligations. Her rent expenses alone were spousal support payment. $42,000.00 annually. She listed monthly living expenses In sum, appellant had alimony arrearages in the of over $13,000.00. The trial judge explicitly considered amount of $108,337.36 and child support arrearages in appellant’s financial statement, but did not believe the the amount of $3,652.00 for a total of $111,989.36. The expenses shown were reasonable. The trial judge said: court ordered appellant to pay that amount by March [t]here is such a tremendous stream of money 15, 2013. To date, she has not done so. that has been present throughout and it really In her brief, appellant never comes to grip with the is, and I’m not making a judgment call on this, fact that she had the burden to show in the trial court, . . . it’s an individual decision as to how that that “despite making reasonable efforts [she] never money gets spent. But it is just incredible to me had the ability to pay more than was paid” in child how some of these expenses, you know there’s support or alimony. See Arrington v. Department of a mention of the amount of food expenses [by Human Resources, 402 Md. 79, 100-101 (2007). The trial appellant] for a four week period of time. I judge’s finding that appellant had not met her burden of mean Judges are human too. We have families, proof in this regard was supported by very strong evi- we buy food too. Some of these expenses are dence. Between August 2011 and June 2012, appellant’s just astounding.[11] available bank balances ranged between $97,802.70 We agree with appellee, who argues: in August 2011 to $19,799.75 in June of 2012. In every Contrary to [a]ppellant’s claim, the [c]ourt is one of those months, appellant was delinquent in the not requiring [a]ppellant to go into debt to payment of both child support and alimony. Moreover, pay support. The [a]ppellant is required, how- prior to August, 2011, when appellant was in arrears ever, to place a higher priority on paying her in paying alimony and child support, there was no evi- court-ordered support obligation than paying dence presented that showed that for any month that credit card bills, paying rent a year in advance, appellant was in arrears, she was unable to pay the or buying uniforms for a school in Ghana. Her amount due. choice to pay costs other than her support Appellant claims that the trial judge’s prior orders obligations, when she had the clear ability to required appellant to go into debt in order to pay court pay the support obligations, is the basis for the ordered support. This is not true. As mentioned ear- finding of contempt, which is not an abuse of lier, she failed to pay alimony and child support even discretion. As such, the [c]ourt’s ruling on the though she had more than enough money on hand to Petition for Contempt should be affirmed. do so. Also, rather than pay support due, appellant pre- paid her rent in the amount of $42,000.00 for one year V. and paid her lawyer large sums.10 Additionally, while Attorney’s Fees she was delinquent in her alimony and child support Appellee incurred attorney’s fees in the amount of payments, appellant paid the expenses to start two about $175,000.00 in regard to the post July 25, 2011 non-profit entities, Gender Rights Maryland and Gender efforts to oppose appellant’s motion to modify alimo- Rights Maryland Foundation, paying $4,000.00 in attor- ny and to have appellant held in contempt of court. ney’s fees to organize those entities and $1,000.00 to The trial judge ordered appellant to make a contribu- fund the bank accounts for those organizations. In the tion of $65,000.00 toward appellee’s attorney’s fees summer of 2011, appellant gave $500.00 to Christy Lee and $25,000.00 toward appellee’s expenses for a total Polis, a stranger who is transgender. Also in the sum- of $90,000.00. In this appeal, appellant contends that mer of 2011, she donated $775.00 to a school in Ghana. the court erred in awarding $65,000.00 in attorney’s In sum, she paid alimony and child support when fees. She makes two closely related assertions in this and in the amount she pleased in disregard of the rele- regard. First, according to appellant, “the trial court vant orders. did not properly attribute (sic) the financial status of Appellant also had the burden of proving that she the [a]ppellant to the decision to award fees.” Second, had made reasonable efforts to become or remain the court “may have made a . . . snap judgment about employed or otherwise lawfully obtain the funds nec- [a]ppellant’s financial resources [similar to the judg- essary to make payments. The court found that she had ment that] was made by the trial court in Reichert v. voluntarily impoverished herself, which, as previously Hornbeck [210 Md. App. 282 (2013)].” stated, was a finding supported by substantial evidence. These contentions will not detain us long. The Appellant also argues, in regard to the finding of court’s oral opinion made clear the court was very familiar with appellant’s financial situation, including 71 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law the fact that part of appellant’s problem was that she 3. Appellant’s tax returns show that of her $563,236.00 had voluntarily impoverished herself in order to avoid income, $191,565.00 was from distribution of monies held in paying her support obligations. As a result of appel- an IRA account. lant’s intentional actions including her failure to obey 4. As of the time of the hearing concerning appellant’s motion court orders when she had the ability to do so, appellee to modify, The PTR Group had not contacted appellant in regard to the payment of a salary to an engineer, nor, as far as was obligated to spend large sums in attorneys’ fees. In we can determine, did appellant contact her former employer this regard, the trial judge plainly did not make a “snap in this regard. judgment.” Instead, the record shows that the court 5. In her opinion, the trial judge referred to “bonus payments” made the attorney fee award only after balancing appel- or to “bonus monies” but, in context, it is clear that the court lant’s ability to pay, appellee’s need for help in order intended to say “commission payments” and/or “commission to pay her attorneys’ fees, appellant’s justification in monies.” bringing a motion to modify and appellee’s justification 6. See supra note 5. in defending against the motion to modify and filing 7. See supra note 4. contempt petitions. Under all of these circumstances, 8. Ordinarily, when attempting to show a material change the court did not err in its award of attorneys’ fees. in circumstances since the original order was entered, the movant attempts to prove that income was very high when JUDGMENT AFFIRMED; COSTS TO BE the original order was entered but presently income is low — PAID BY APPELLANT. in other words, the greater the difference in the incomes, the better it is for the movant who is attempting to show a materi- al change in circumstances. Therefore, it is unclear as to how Footnotes the appellant could possibly have been prejudiced even if we were to assume, arguendo, that the original order erroneously 1. During the marriage, appellant was diagnosed with gender was based on an income calculation that was too high. identity disorder. As a result of that disorder, appellant has 9. FL, section 8-103 is here irrelevant because it deals with undergone various medical procedures in order to transition obligations established by written agreement. to a female person. Appellant has incurred transition expens- 10. Between April 8, 2010 and June 8, 2012, appellant paid her es for inter alia, electrolysis, voice therapy, facial feminiza- attorney a total of $228,651.69. As of June 8, 2012, she owed tion surgery, breast augmentation and gender reassignment her attorneys an additional $131,704.00. surgery. 11. Appellant claimed she spent $1,729.00 for groceries each 2. We have re-ordered the issues presented. month.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 72 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 73 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Administrative law: developmental disabilities: final ity. Rule 8-114. Unofficial publication of an unre- judgment ported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. In Re: Adoption/Guardianship 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page num- of Dustin R. bers are from slip opinions. No. 2709, September Term, 2013 must conclude that this Court lacks the power to Argued Before: Eyler, Deborah S., Arthur, Leahy, JJ. resolve any of those issues. The “Proposed Findings Opinion by Arthur, J. and Order” did not direct DHMH to take any action at all, did not adjudicate any of Dustin’s claims, and Dissenting Opinion by Leahy, J. did not declare the rights of any party. Neither the Filed: December 22, 2014. Unreported. document itself nor the corresponding docket entry was sufficient to indicate that the underlying claim The “Proposed Findings and Order” of the juvenile had been resolved. Thus, there was no final order from court, directing that Dustin R. should continue to which an appeal could be taken. Accordingly, receive services for his developmental disabilities the appeal must be dismissed, and we cannot address once he turned 21, was not a final order from which the merits of either party’s position. an appeal could be taken; thus, the appellate court could not resolve the Department’s claim that the Factual and Procedural Background juvenile court exceeded its statutory authority by ordering services after age 21 or Dustin’s competing A. The Juvenile Guardianship claim that the court was statutorily required to do Dustin R. was born on December 16, 1992. During so. Dustin’s infancy, he was beset by a host of develop- mental disorders that left him permanently disabled and medically fragile. In 1995, the circuit court awarded guardianship This appeal concerns a juvenile guardianship that of Dustin to the Anne Arundel County Department ended on December 16, 2013, when Dustin R., the per- of Social Services (“DSS”). Since then, Dustin has son subject to the guardianship, turned 21 years old. lived in foster care at the home of Jacqueline and The Circuit Court for Anne Arundel County, sitting as Darrell P. DSS retained legal guardianship of Dustin, juvenile court, conducted a guardianship review hear- but granted the P.s the authority to make medical ing a few months before the termination of the guard- decisions for Dustin. In foster care, Dustin’s medical ianship case. The court orally announced that Dustin expenses have been paid by the Maryland Medical should continue to receive, after he turned 21 years Assistance Program (“Medicaid”), which is adminis- of age, the same services for his developmental dis- tered by DHMH. abilities that he had been receiving under his existing As Dustin grew older, his condition worsened. guardianship placement. After an emergency hearing in February 2005, the juve- In this appeal, the Department of Health and nile court ordered DSS to secure nursing services for Mental Hygiene (“DHMH” or “the Department”) alleges Dustin 24 hours a day, seven days a week. The cost of that the juvenile court ordered DHMH to provide spe- these services exceeded the maximum amount payable cific services to Dustin after he turned 21, at which to a care provider under Medicaid. Ultimately, DSS point Dustin would no longer be subject to the juris- reached an agreement to supplement the Medicaid diction of the juvenile court. The Department contends rates by splitting the additional private-nursing costs that the court’s ruling, as embodied in the “Proposed (approximately $16,000 a month) between DSS and Findings and Order” that the juvenile court signed, DHMH. Since that time, a rotating team of eight regis- exceeded the authorization granted to the juvenile tered nurses has monitored Dustin 24 hours a day. court by statute. Dustin contends that the guardianship In 2011, Dustin’s representatives filed a petition to statute requires the juvenile court, when reviewing the co-commit Dustin to the DHMH.1 In his petition, Dustin guardianship of a child with a disability, to order the requested that the court require DHMH to present a ongoing care that may be needed after the guardian- written plan for the continuation of his nursing care ship ends. after the termination of the guardianship on his twen- After reviewing the purported final judgment, we ty- first birthday.

73 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Around the end of 2012, DHMH and DSS began you know what those services are. They’re planning for Dustin’s transition out of his juvenile everything he’s getting now. . . . On September guardianship. DHMH eventually consented to the 27, 2013, in my view are going to be necessary co-commitment in April 2013, and the court ordered after he turns 21. DHMH to “continue the planning process for the tran- [DHMH:] Does that include payments to Mrs. sition of Mr. R. from foster care under the guardianship P.?2 of [DSS.]” The agencies continued to oppose Dustin’s THE COURT: It includes everything. . . . It request that the court require that the same services be includes . . . exactly what he’s getting now. . . . provided after he turned 21. There is no need to change any of that. During 2013, DSS proposed a plan with two alter- native arrangements: either the P. family could accept C. The Proposed Findings and Order guardianship of Dustin; or DSS would seek guardian- The hearing judge then signed a two-page docu- ship and transfer Dustin to a licensed group home or ment titled “Proposed Findings and Order,” which had alternative living unit. Under either option, Dustin been submitted by Dustin’s attorney. The full text of would receive medical assistance up to the allowable this document is as follows: Medicaid rates, but the agencies could not guarantee PROPOSED FINDINGS AND ORDER that his prior level of services would continue to be funded. DHMH rejected a proposed service plan from On August 26-27, 2013 and September 27, 2013 Dustin’s representatives to continue the budget “as is,” a Guardianship Review Hearing was held and including all supplemental funding for specialized nurs- Dustin R. requests that the Court makes the ing care. following Findings: 1) Dustin requires 24/7 one-on-one skilled B. The Guardianship Review Hearing nursing care provided by registered nurses The juvenile court conducted an annual review of that have been fully oriented to his care Dustin’s guardianship on August 26, 2013. The court needs and have demonstrated competence also agreed to rule on Dustin’s outstanding motions by in all of the tasks on the Skills Checklist determining whether Dustin was entitled to an order developed by the supervising nurse. requiring DHMH to assume responsibility for maintain- 2) Dustin requires the continuation of all ing the same level of medical and support services after services that will ensure that the agency is Dustin’s twenty-first birthday. able to retain the current nurses that have The court heard three days of argument and testi- been fully oriented to continue to care for mony on that issue, as the hearing extended to August him including but not limited to call-out 27, and then resumed on September 27, 2013. Dustin pay, orientation, holiday pay, and vaca- offered testimony about the nature of his needs and the tion. complexity of his care in the P. home. Witnesses from 3) It is in Dustin’s best interest to remain in DHMH and DSS testified about the care Dustin would the least restrictive setting in the home of receive in an alternative living unit. Dustin argued that the P. family who are willing to continue the alternative living unit would not employ registered to provide a home to him after he turns 21. nurses who were qualified to attend to his needs and 4) Dustin requires the continuation of all thus that the Department’s plan was inappropriate. other services currently provided that The judge orally announced findings at the conclu- enable Dustin to remain healthy and safe sion of the hearing. The court determined that Dustin’s in the P. home. existing level of services, most notably the 24-hour care by registered nurses, was clinically appropriate; that 5) DHMH has not provided a plan for Dustin any reduction in medical services likely would place of clinically appropriate services in the Dustin’s life at risk; that the P. residence was the least least restrictive setting. restrictive setting for Dustin; and that placement in a 6) That APPLA [another planned permanent group home would not be appropriate. After the judge living arrangement] is in Dustin’s best announced his findings, the following exchange contin- interest because of his ongoing extensive ued: and extraordinary medical conditions and THE COURT: I’ve looked at the order, his profound physical and developmental Proposed Findings of Fact and Order, and disabilities. before I place my signature on it, are there any Further, Dustin requests that this Court: other comments regarding the order? 1) ORDER that DHMH develop and approve [DHMH:] I would ask that the order list the spe- a written plan that ensures that Dustin cific services that the Court is ordering that the will continue to receive all of the services Department fund. and supports he is currently receiving THE COURT: Counsel, I don’t need to do that. including but not limited to all services If you’ve been paying attention at this trial, that will ensure that Dustin will receive

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 74 24/7, one-on-one skilled nursing care pro- For the reasons discussed below, we conclude that vided by registered nurses that have been this question has not been properly presented for our fully oriented to his care needs and have review, because this Court lacks jurisdiction to consid- demonstrated competence in all of the er DHMH’s appeal. tasks on the Skills Checklist developed by the supervising nurse. Discussion [3] 2) ORDER that DSS and DHMH each A. Requirements of a Final Judgment report to the court and all parties in writ- Except where the right of appeal is constitution- ing monthly a) the specific steps taken to ally required, the existence of appellate jurisdiction in ensure that Dustin’s current level of ser- Maryland is determined entirely by statute. Addison vices and supports will continue in the P. v. Lochearn Nursing Home, LLC, 411 Md. 251, 262 home. (2009). For this reason, even if neither party protests 3) ORDER that the Stipulation of the par- our exercise of appellate jurisdiction, this Court “must ties dated April 26, 2005, shall continue to dismiss a case sua sponte on a finding that we do not remain in effect; have jurisdiction.” Miller & Smith at Quercus, LLC v. 4) ORDER that this matter be sched- Casey PMN, LLC, 412 Md. 230, 240 (2010). This Court uled for hearing within 2 months, for a lacks the power to review the merits of a case unless a Guardianship Review to determine ade- final judgment has been rendered and properly entered. quacy of the progress toward the goal of See, e.g., Waterkeeper Alliance, Inc. v. Maryland Dep’t achieving a seamless transition that will of Agric., 439 Md. 262, 289 (2014). ensure Dustin’s health and safety and main- In general, “a party may appeal from a final judg- tain the continuity of his placement in the ment entered in a civil or criminal case by a circuit community in the P. home. court.” Md. Code (2013 Repl. Vol.), Courts and Judicial 5) ORDER that the Court continue to grant Proceedings Article, § 12-301. A judgment is created by Mr. and Mrs. Darryl P. the authority to two discrete occurrences: the rendition of judgment, make medical (including mental, dental i.e. “the court’s pronouncement, by spoken word in and vision health), educational and out of open court or by written order filed with the clerk, of state travel decisions on Dustin’s behalf. its decision upon the matter submitted to it for adju- (Emphasis added.) dication”; and the entry of judgment onto the docket by the clerk, which is “the ‘purely ministerial act’ of placing a judgment in the permanent record of a court.” In re Blessen H., 392 Md. 684, 716 (2006) (quoting Bd. of Liquor License Comm’rs for Baltimore City v. Fells Point Café, 344 Md. 120, 128 (1996)). Each judgment must be set forth on a separate document and proper- ly entered by the clerk onto the docket. See Md. Rule 2-601.5 The Court of Appeals has further explained: Determining whether a trial court’s ruling con- stitutes a final judgment requires an analysis Immediately below that paragraph, the judge of “three attributes”: (1) the court must intend signed his name on the signature line that had been it to be “an unqualified, final disposition of provided. the matter in controversy;” (2) “it must adjudi- After the hearing, the clerk made the following docket cate or complete the adjudication of all claims entries: against all parties,” and (3) “the clerk must (Emphasis added.) make a proper record of it” on the docket. On October 24, 2013, DHMH filed a notice of appeal Baltimore Cnty. v. Baltimore Cnty. Fraternal Order of 4 “from the order entered . . . on September 27, 2013[.]” Police Lodge No. 4, 439 Md. 547, 563-64 (2014) (quoting Question Presented Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)). “Except as provided in [Rule 2-602(b)],6 an order The Department’s appellate brief includes a single or other form of decision, however designated, that question for our review: adjudicates fewer than all of the claims in an action[,] . Did the juvenile court have the authority to . . or that adjudicates less than an entire claim, or that order the Department to provide specific ser- adjudicates the rights and liabilities of fewer than all vices to Mr. R. after he attained twenty-one the parties to an action . . . is not a final judgment” and years of age, at which time the juvenile court remains subject to revision at any time before the entry no longer had a statutory grant of jurisdiction of a final judgment. Md. Rule 2-602(a). over Mr. R.’s guardianship case? Section 5-310 of the Family Law Article of the

75 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Maryland Code7 authorizes this Court to review cer- “[T]o constitute an ‘unqualified final disposition’ an tain rulings made by a juvenile court made in connec- order must be ‘so final as to determine and conclude tion with a juvenile guardianship: “A party to a case the rights involved, or deny the appellant the means of under this subtitle may appeal to the Court of Special further prosecuting or defending his rights and inter- Appeals. . . from a final order.” (Emphasis added.) ests in the subject matter of the proceeding.’” Schuele, In this appeal, DHMH attempts to challenge a juve- 412 Md. at 571 (quoting United States Fire Ins. Co. v. nile court ruling that possessed only the first of the Schwartz, 280 Md. 518, 521 (1977)). three necessary attributes of a final judgment. The The underlying action in this case commenced with hearing transcript leaves no doubt that the trial court Dustin’s 2011 amended petition for co-commitment, subjectively intended to render an unqualified, final in which Dustin requested that the court “[o]rder that disposition of the claim. Nonetheless, the document DHMH and DSS present a written plan to provide for executed by the judge did not adjudicate the claim, the case of Dustin R. in the [P.] home, including 24 and, objectively speaking, it was not a final order. hour skilled nursing care, upon turning 21[.]” After Furthermore, although the clerk made a record of the DHMH consented to the co-commitment in 2013, Dustin document that the judge signed, the docket entry did then renewed that request through several motions for nothing to indicate that anything had actually been a hearing on the matter, each time reiterating the same determined. underlying facts. At the conclusion of a three-day hearing, the juve- B. The Absence of a Final Order nile court announced its intention to grant Dustin’s In Prince George’s County v. Vieira, 340 Md. 651 request. The document actually executed by the court, (1995), the Court of Appeals addressed the meaning of however, included no language either granting or deny- the word ‘order’ within the Maryland Code: “an ‘order’ ing Dustin’s motion. It included no language determin- emanates from a court and, in fact, constitutes a com- ing the rights of DHMH or DSS or of any of the parties mand or decree of the court.” Id. at 661. This under- involved. Thus, Dustin’s claim remained unadjudicat- standing of the word “order” is consistent with the ed, and the circuit court retained the ability to revise common legal definition: “‘A mandate; precept; com- its oral determination of the rights of the parties at mand or direction authoritatively given. . . . Direction of any time before entry of a final order. See Md. Rule a court or judge made . . . in writing, and not included 2-602(a). in a judgment.’” Id. (quoting BLACK’S LAW DICTIONARY In Taha v. Southern Management Corp., 367 Md. 756 (6th ed. 1991)); see also Long v. State, 371 Md. 72, 564 (2002), the trial court had entered a judgment 80 n.5 (2002) (“Generally, the term ‘order’ refers to the against one defendant after a , but failed written direction or command issued by the court . . . to enter judgments against other defendants to the and filed with the court clerk, as required by Md. Rule action. Taha, 367 Md. at 566-67. On appeal, the Court 2-601”). of Appeals held that no appealable final judgment had Notwithstanding the judge’s verbal expressions of been entered, because there were “no docket entries his intent to resolve the matter, the “Proposed Findings and no separate documents . . . indicating a final judg- and Order” was not an “order” in any legal sense of the ment[.]” Id. at 570. Certain oral comments made by word. It was not a mandate, not a precept, not a decree, the judge in connection with post-trial motions left not a command or direction authoritatively given. No little doubt that the court had intended to dispose of portion of the document directed any party to take any the entire action. Id. Nevertheless, the Court expressly action. The document only stated: “Dustin requests” rejected the argument that the oral expressions of the that the court make certain findings; and “Dustin judge’s intentions were sufficient to create a final judg- requests” that the court issue certain orders. The doc- ment, in the absence of a separate judgment and dock- ument was, in fact, a mere application for an order. It et entry evidencing the actual disposition. Id. (citing was a motion. See Md. Rule 2-311(a) (“An application to Estep v. Georgetown Leather Design, 320 Md. 277, 284 the court for an order shall be by motion which, unless (1990) (oral comment by judge insufficient to create made during a hearing or trial, shall be made in writing, final judgment)). and shall set forth the relief or order sought”).8 In its brief, DHMH places particular emphasis on Even if this document could be construed as an the judge’s oral comment that the court intended to order of some kind, the “Proposed Findings and Order” require that DHMH continue to fund all of the services was not a “final order” for the purpose of appealability. Dustin was receiving on September 27, 2013. An oral Although the Maryland Code includes no definition comment made by a judge, however clearly it may of the term “final order,” the Court of Appeals has be announced, remains subject to revision until it is explained that “[t]o be final in the traditional sense embodied in a written final order. See Cent. Collection . . . an order must not only settle an entire claim but Unit v. Columbia Med. Plan, 300 Md. 318, 325 (1984) also ‘be intended by the court as an unqualified, final (“Expressions of intention by the trial judge are not disposition of the matter in controversy[.]’” Schuele v. final orders because they are always subject to change Case Handyman & Remodeling Servs., LLC, 412 Md. by the judge”); see also Salamon v. Progressive Classic 555, 570-71 (2010) (quoting Rohrbeck, 318 Md. at 41).

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 76 Ins. Co., 379 Md. 301, 307 n.7 (2004) (holding that sep- could not constitute a final judgment “because it [wa] arate document requirement of Rule 2-601(a) prohibits s not readily apparent from the document itself that a judgment from incorporating by reference terms of an judgment ha[d] been issued”); Waterkeeper Alliance, oral ruling because “no one would be able to discern Inc., 439 Md. at 289 n.21 (noting that non-final order the actual declaration of rights from the document pos- did not facially indicate whether entire claim had been ing as the judgment”) (citations and internal quotation resolved).9 marks omitted). In the conclusion of the recent Hiob opinion, the Even before Rule 2-601 was amended to require Court of Appeals summarized its final judgment analy- that each judgment be set forth on a separate docu- sis under the following framework: ment, the Court of Appeals emphasized the primacy of [I]n order for there to be an entry of an effec- a written order: tive final judgment that triggers the time for The extemporaneous recitation of multiple or filing an appeal, there must be an affirmative complex rulings from the bench may be fine answer to the following questions: for letting the parties and their attorneys know • Is there a final judgment? what the court’s decision is in the case, but as • Is there a separate document? it is the actual judgment that will govern the • Is there a document in the court conduct, fortunes, and affairs of the parties, the file separate from the docket court must be especially careful that the judg- entry? ment itself is clear, complete, and precise. A • Does the document reflect a judi- written order prepared either by counsel (and cial action that grants or denies whenever possible consented to as to form by specific relief in an unqualified opposing counsel) or by the court itself gives way? the court an opportunity to review the lan- guage, discover and correct any inadvertent • Has the separate document been imprecisions or inconsistencies, and general- signed by the judge or the clerk? ly assure itself that the judgment accurately • Has the clerk docketed the judgment reflects its decision. in accordance with the practice of the Rohrbeck, 318 Md. at 46 n.7. court? The requirement of a separate written judgment Hiob, slip op. at 40. that states the rights of the parties “is not just a matter Thus, our analysis of the “separate document” of complying with a hyper-technical rule.” Salamon, question involves three sub-questions. In this instance, 379 Md. at 307 n.7. Rather, its function is to “giv[e] the we can answer in the affirmative only to the first and parties and the public fair notice of what the court third sub-questions, but we cannot circumvent the sec- has determined.” Id. At the very least, the document ond. The judge did indeed sign a document separate embodying a judgment must be sufficient to put liti- from the docket entry. That document, however, mere- gants and the public on notice that the claim has been ly requested certain relief; it did not grant or deny that resolved. See Tierco Maryland, Inc. v. Williams, 381 relief, much less do so in an unqualified way. Md. 378, 394 (2004). In other words, “Rule 2-601(a) The dissent argues that the document must be requires more than a piece of paper . . . accompanied construed as granting relief in an unqualified way, by by a docket entry.” Hiob v. Progressive American Ins. proposing that the judge’s signature itself operates as Co., ___ Md. ___, ___, No. 4, Sept. Term 2014, slip op. at the equivalent of unequivocal language granting the 19 (filed Nov. 20, 2014). The document itself must indi- requested relief. The dissent’s core proposition is that cate “that the issues have been fully adjudicated and the act of signing a list of requests “clearly” “effectu- that the court has reached a final decision.” Id., slip op. ated” the same result as if the court had “str[uck] out at 18. Additionally, the document must indicate “which the word ‘proposed’ from the title and replace[d] the party has prevailed on which issues and what type of phrase ‘Dustin requests that’ with ‘the court finds/ relief, if any, has been granted by the court.” Id. orders[.]’” Dissent slip op. at 1. This understanding of A document such as this one, which by its lit- the document is not based on any objective character- eral terms, does not resolve the underlying claim, istics, but instead upon other factors that the dissent cannot be treated as a final judgment. See Nnoli v. emphasizes: extrinsic facts (the judge’s oral expres- Nnoli, 389 Md. 315, 324-25 (2005) (holding that circuit sions of intent), as well as the parties’ subjective under- court ruling “was not a final judgment because it did standing of the court’s intent (which, admittedly, were not determine and conclude the rights of the parties informed by the court’s oral pronouncements). involved”); Kobrine, L.L.C. v. Metzger, 151 Md. App. We do not think that the purpose of Rule 2-601(a)’s 260, 270 (2003), vacated on other grounds, 380 Md. signature requirement is to allow the signature itself to 620 (2004) (no final judgment created by ruling that substitute for clear language granting or denying relief. envisioned entry of subsequent order); see also Hiob, The judge’s signature generally operates to approve slip op. at 31 (holding that stipulation of dismissal the language in its existing form, but not to replace or

77 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law alter that language. A judge’s handwritten name does waived the separate document requirement by fail- not express an unqualified grant of specified relief any ing to object, after we noted that the court’s final more than it indicates an unqualified denial of those disposition was reflected in the docket. The dock- requests, or some other partial or interlocutory action et entry in question read: “Court rules in favor of by the court. Nor can the judge’s signature alone mag- Plaintiff, BEKA Industries with a judgment against the ically rewrite the words on the page, so that a mere Worcester County Board of Education in the amount of request for relief suddenly becomes a specific list of $1,100,000.00 to be entered today and to draw interest findings and orders. In short, we cannot answer in the as of this point.” In these cases, as well as in Kirson, affirmative to the following question: “Does the doc- the separate document requirement could be waived ument reflect a judicial action that grants or denies because the docket entries themselves left no doubt as specific relief in an unqualified way?” Hiob, slip op. at to which parties had prevailed and what relief had been 40. The document requirement of Rule 2-601(a) has not granted. been satisfied. In the instant case, the clerk on September 30, 2013, made a docket entry that stated: “Proposed C. The Absence of a Proper Docket Entry Finding and order.” Much like the document itself, this Under certain circumstances, parties may proceed corresponding docket entry was insufficient to indicate with an appeal even though the court that purported the disposition of the claims. On its face, a docket entry to issue a judgment nonetheless “failed to create ‘any merely listing a “Proposed Finding and order” in fact document that look[ed] like a judgment.’” Suburban certifies the opposite of finality. Hosp., Inc. v. Kirson, 362 Md. 140, 154 (2000) (quot- In other contexts, the Maryland Rules specifically ing Bankers Trust Co. v. Mallis, 435 U.S. 381, 382 use the terms “proposed findings of fact” and “pro- (1978) (per curiam)). In Kirson, the trial court had posed orders” to refer to rulings that lack finality. For failed to effect entry of a separate judgment after a instance, Maryland Rule 11-111 (although not strictly special jury verdict. Kirson, 362 Md. at 153. The Court applicable to the facts of this case) provides important of Appeals held that the separate document require- context. Section (a) of that Rule authorizes a court to ment of Rule 2-601(a) may be waived if a circuit court assign special masters to hear certain matters regard- “clearly intended [that] the docket entries made by ing juvenile causes. The master is required to make that court’s clerk . . . be a final judgment and where reports including “proposed findings of fact, conclu- no party has objected to the absence of a separate sions of law, recommendations and proposed orders document.” Id. at 156. Nevertheless, the Court has cau- with respect to adjudication and disposition.” Md. tioned that a waiver of the separate document rule is Rule 11-111(b). The Rule is explicit that such proposed permissible only where a judgment is actually entered findings and orders “do not constitute orders or final on the docket. See Taha, 367 Md. at 569; Washington action of the court.” Md. Rule 11-111(a)(2); see also Md. Mut. Bank v. Homan, 186 Md. App. 372, 409 (2009); Code (2013 Repl. Vol.), Courts and Judicial Proceedings Forward v. McNeily, 148 Md. App. 290, 305-06 (2002). Article, § 3-807(d)(1); In re Kevin E., 402 Md. 624, 637 The justification for this limited doctrine is not simply (2008). Thus, the Maryland Rules use the term “pro- the lack of prejudice to the parties, but also the need to posed order” in direct contradistinction to the term account for circumstances where “the trial court clear- “final order.”10 ly intended for the docket entries to constitute a final Under comparable circumstances, the Court of judgment.” Kirson, 362 Md. at 157. Appeals has held that a final judgment has not been For example, in Collins/Snoops Assocs., Inc. properly entered where the corresponding docket entry v. CJF, LLC, 190 Md. App. 146, 160 n.2 (2010), “it expresses a lack of finality. In Waller v. Maryland appear[ed] that the trial court simply added ‘So National Bank, 332 Md. 375 (1993) (per curiam), a tran- ORDERED’ at the conclusion of its opinion.” We rea- script of proceedings indicated that the trial court had soned that “such an order does not satisfy the sepa- intended to enter summary judgment without the need rate document requirement of Rule 2-601(a).” Id. The for a subsequent written order. Id. at 377.11 At the end corresponding docket entry, however, contained the of the clerk’s docket entry reflecting the grant of sum- following unqualified language: “Memorandum and mary judgment, however, the clerk erroneously insert- Order of Court granting Judgment in favor of CJF LLC ed the words: “Order to be filed.” Id. et al for all claims brought against it by Collins/Snoops Even though it entertained no doubt about the & Assoc., Inc; and further granting Judgment in favor trial court’s intentions to enter judgment, the Court of of Colling/Snoops & Assoc., Inc for all claims against Appeals rejected as erroneous this Court’s conclusion it by CJF LLC et al.” Under those circumstances, we that “the unauthorized portion of the docket entry held that the separate document requirement could be could simply be disregarded, and the remaining portion waived through the parties’ failure to object. Id. treated as a final order.” Id. Under the circumstances, Similarly, in Board of Education of Worcester “[t]he record made by the clerk certified that the rul- County v. BEKA Industries, Inc., 190 Md. App. 668, ing was not final, because a subsequent order was to 684 n.6 (2010), aff’d in part, rev’d in part on other be filed.” Id. at 378 (citing Atl. Food & Bev. Sys., Inc., grounds, 419 Md. 194 (2011), we held that parties

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 78 v. City of Annapolis, 70 Md. App. 721, 725-27 (1987) (1994). Accordingly, “‘[t]he value of a simple docket (docket entry ending with statement “Attorneys to pre- entry which . . . make[s] clear to everyone the dis- pare Orders” not final)); see also Owings v. Foote, 150 position of each and every claim in a case cannot be Md. App. 1, 8-10 (2002) (docket entries with language overemphasized.’” Jones v. Hubbard, 356 Md. 513, 523 “order to be submitted” certified rulings as non-final). (1999) (quoting Fells Point Café, Inc., 344 Md. at 133). Even if the phrase “Proposed Finding and order” Generally, “the only method of securing review by the did not certify that the ruling was non-final, the entry Court of Special Appeals” (Md. Rule 8-201(a)) is by fil- was at best ambiguous as to whether a final order had ing a notice of appeal “within 30 days after the entry of been entered. This lack of clarity in the docket vitiates the judgment or order from which the appeal is taken.” the ruling’s appealability. In Walk v. Hartford Cas. Ins. Md. Rule 8-202(a). “[W]hether a final judgment has Co., 382 Md. 1, 11 n.4 (2004), the Court of Appeals been entered is determined by reference to the docket reasoned that a docket entry that is too unclear about entry[,]” and thus “the date and form of a docket entry its finality may be insufficient to establish a final judg- purporting to enter final judgment take on special sig- ment. In that case, the clerk had entered a docket nificance.” Waller, 332 Md. at 378. In particular, “the entry with the words “ordered from Judge without docket entry itself must be sufficient to show finality.” file January 7th, 03,” after a circuit court had granted Id. at 379 (citing Estep, 320 Md. at 287; Doehring v. summary judgment. Recognizing that the docket did Wagner, 311 Md. 272, 274-75 (1987)). not reflect the entry of judgment, Walk moved for A final judgment does not exist merely because the final judgment several months later and then noted an parties to the action subjectively understand that the appeal after the entry of that judgment. Id. The Court of court intended to render a final ruling. It is also import- Appeals held that the judgment had not been properly ant that “‘third persons can look at the file or docket to entered on the earlier date, but only after the clerk later determine when the judgment was entered, and [that entered a proper docket entry. Id.12 those third parties] are entitled to rely on that date Similarly, in Newborn v. Newborn, 133 Md. App. 64, as a public record.’” Waller, 332 Md. at 379 (quoting 75-80 (2000), this Court held that there can be no final Paul V. Neimeyer & Linda M. Schuett, Maryland Rules judgment where the docket entry itself gives no indi- Commentary 446 (2d ed. 1992)); see also Hiob, slip cation that anything has been determined. In Newborn, op. at 29-31. The requirements that each judgment be a trial judge had filed an opinion in connection with a formalized in a separate document resolving all claims divorce action. Id. at 79. The corresponding “docket and in a docket entry reflecting that resolution “are nei- entry dated April 3, 1998 . . . read[ ] in its entirety as ther burdensome nor obscure.” Tierco, 381 Md. at 394. follows: ‘Opinion by Judge Cawood (copies to Attys. Rather, the formalities of Rule 2-601 serve to “ensure Smith and Doud).’” Id.13 We held that this docket entry that litigants, third parties, and the public have access did not satisfy the requirements of Rule 2-601 regarding to the disposition of every claim brought in Maryland’s the entry of judgment, because “[o]ne cannot tell by circuit courts.” Id. In the instant case, a third party reading the April 3rd entry how the trial judge disposed without knowledge of the judge’s oral expressions of of any claim.” Id. We added: “A docket entry is sup- his intent would not have sufficient notice that the posed to make clear to all who read it the disposition of underlying claim had been resolved. Objectively, no a claim or claims.” Id. (citing Fells Point Café, Inc., 344 final judgment existed.14 Md. at 133). More recently, the Court of Appeals re-affirmed D. Inapplicability of Savings Provisions that the requirement of a proper docket entry is not The only notice of appeal in this case was filed satisfied when “[t]he docket entry is ambiguous as to prematurely, before the entry of a final judgment. whether a judgment has been entered[.]” Hiob, slip Hence, the notice of appeal has no legal effect. Doe v. op. at 36. In Hiob, the docket entry in question read Sovereign Grace Ministries, Inc., 217 Md. App. 650, “‘Voluntary Dismissal (Partial) as to Erie Insurance 662, cert. denied, 440 Md. 116 (2014). Upon discovery Exchange.’” Id. The Court emphasized that, even of such a jurisdictional defect, the appellate court must though the parties might have been able to understand dismiss the appeal. See id. at 655; Carr v. Lee, 135 that each claim in the case had been fully resolved, “[w] Md. App. 213, 221 (2000); see also Makovi v. Sherwin- ithout any indication of finality, the public [could] not Williams Co., 311 Md. 278, 282-83 (1987). discern from the docket entry that a final judgment The Maryland Rules include a limited savings pro- ha[d] been entered.” Id. For that reason, the Court held vision for a notice of appeal filed after the court’s ren- that the docket entry did not satisfy Rule 2-601(b) and dition of judgment but before the clerk’s entry of that thus did not effect an entry of judgment. Id., slip op. at judgment on the docket. Rule 8-602(d) provides: 15-16. (d) Judgment Entered After Notice Filed. The Court of Appeals has observed that “[t]he A notice of appeal filed after the announce- importance of docket entries in determining when a ment or signing by the trial court of a ruling, judgment has been entered is apparent throughout the decision, order, or judgment but before entry of Maryland Rules.” Davis v. Davis, 335 Md. 699, 717 n.3 the ruling, decision, order, or judgment on the docket shall be treated as filed on the same day

79 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law as, but after, the entry on the docket. In brief summary, Rule 2-602(b) applies in three This provision “does not provide an exception to narrow categories of cases: (1) cases where the court the final judgment rule.” Sovereign Grace Ministries, has disposed of all claims against one or more, but 217 Md. App. at 663. Instead, “it permits an appellate fewer than all, of the parties; (2) cases where the court court, ‘through the application of a legal fiction, to treat has disposed of one or more, but fewer than all, of the the [notice of appeal] as if timely filed after a final judg- “claims” in the case, in the narrow sense in which the ment.’” Id. (quoting Jenkins v. Jenkins, 112 Md. App. Court of Appeals has defined that term;16 and (3) cases 390, 410 (1996)). for “money relief alone,” where the court has granted The legal fiction, however, does not result in the summary judgment for some, but less than all, of the creation of a fictitious docket entry where one does amount requested. not yet currently exist; it merely posits that an other- For three reasons, Rule 2-602(b) does not apply wise premature notice of appeal is deemed to have here. First, the rule requires an order that disposes of been filed “on the same day as, but after, the entry something, but the circuit court here never entered on the docket.” Therefore, because the docket in this an order that actually disposed of anything. Second, case currently includes no entry of final judgment, even if we could rewrite the “proposed findings and Rule 8-602(d) does not rescue this premature notice of order” to transform it into an order that expressed the appeal.15 circuit court’s subjective intentions, that hypothetical Rule 8-602(e)(1) contains another, even more limit- order would dispose of all claims against all parties; ed, provision for saving a premature appeal. The text of it would not, as Rule 2-602(b) requires, dispose only that provision states: of the claims against some of the parties or of some, (e) Entry of Judgment Not Directed Under but not all, of the claims in the case. Finally, the last Rule 2-602. (1) If the appellate court deter- subsection does not apply, because the case does not mines that the order from which the appeal is concern monetary relief, let alone the entry of summa- taken was not a final judgment when the notice ry judgment for some, but not all, of the monetary relief of appeal was filed but that the lower court had requested. discretion to direct the entry of a final judg- ment pursuant to Rule 2-602 (b), the appellate Conclusion court may, as it finds appropriate, (A) dismiss Under the unusual circumstances of this case, we the appeal, (B) remand the case for the lower are confronted with: a signed document that does not court to decide whether to direct the entry of facially resolve any claims or mandate any action; and a final judgment, (C) enter a final judgment on a docket entry that facially certifies a lack of finality its own initiative or (D) if a final judgment was and does not indicate whether anything had been deter- entered by the lower court after the notice of mined. These elements do not add up to an appealable appeal was filed, treat the notice of appeal as if final judgment. To hold otherwise would be to under- filed on the same day as, but after, the entry of mine the purpose served by Rule 2-601, which was pro- the judgment. mulgated “to address ‘the need for clear, complete, and “Subsection (e)(1) requires the appellate court to precise judgments[.]’” Taha, 367 Md. at 568 (quoting make two threshold determinations[,]” which are “first, Reporter’s Note to Proposed Rule 2-601). It would be whether the order appealed was premature — not final error for this Court to deal with the merits of this case, — when the appeal was noted and second, whether the and we must go no further than dismissal of the appeal. trial court could have directed the entry of final judg- See Eastgate Assocs. v. Apper, 276 Md. 698, 703 (1976) ment pursuant to Rule 2-602(b).” Brown & Williamson (stating that an appellate court cannot logically exer- Tobacco Corp. v. Gress, 378 Md. 667, 677 (2003). We cise jurisdiction over the merits of a controversy when cannot employ Rule 8-602(e)(1) because the circuit it lacks jurisdiction over the matter).17 court could not “have directed the entry of final judg- ment pursuant to Rule 2-602(b).” Id. APPEAL DISMISSED. In full, that Rule provides: COSTS TO BE PAID BY APPELLANT. Rule 2-602. Judgments not disposing of entire action. Dissenting Opinion by Leahy, J. * * * In its analysis, the majority circumnavigates the (b) When Allowed. If the court expressly central fact concerning the validity of the order at issue determines in a written order that there is no in this appeal: the juvenile court judge signed the pro- just reason for delay, it may direct in the order posed order. Encompassing this determinative event the entry of a final judgment: (1) as to one or are the following circumstances: the judge signed the more but fewer than all of the claims or parties; proposed order after (1) rendering consistent rulings or (2) pursuant to Rule 2-501(f)(3), for some on the record; (2) noting that he had reviewed the but less than all of the amount requested in a proposed order; and (3) soliciting comments from the claim seeking money relief only. parties and making a minor revision at the request of

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 80 the parties (striking out “DSS”). As important: (1) the month-old. parties understood the order to be a final judgment; Dustin’s survival unequivocally depends on the (2) Appellant timely filed this appeal from the order; amount and quality of care he receives. Indeed, the and (3) neither party raised a concern about the form medical procedures and routines currently in place to of the order or the docket entry. That the court failed keep Dustin stable and alive are complex, comprehen- to strike out the word “proposed” from the title and sive, and constant. Thirteen medical specialists super- replace the phrase “Dustin requests that” with “the vise Dustin’s health, and a team of eight registered court finds/orders” does not render the signed docu- nurses — specifically trained to address his nuanced, ment a “motion” as the majority declares. By signing variable, and unpredictable needs — monitor Dustin 24 the document, the court quite clearly adopted the pro- hours a day, 7 days a week. posed order’s provisions as its own and effectuated the Members of the P. family, who have cared for findings and mandates contained therein. All parties Dustin since his parental rights were terminated when believed compliance with the order was necessary. he was two and a half years old, have renovated their The majority dismisses this appeal by declaring an home extensively, rendering it comparable to a mini order, signed by a judge, invalid simply because of its intensive care unit. According to Mrs. P., Dustin is “part form. In so doing, the majority steers past the order’s of [their] family, and he’s [their] son, and [they’ve] had attributes of finality — including the court’s intent him his whole life, and he lives in a family. [They’re] to enter a final judgment — and sails contrary to the not his staff. [They’re] not employees. [They’re] his guiding principle of the separate order requirement as family.” explained by the Supreme Court: that “[t]he rule should The proceeding from which this appeal aris- be interpreted to prevent the loss of the right of appeal, es concerned the amount and level of care that the not to facilitate loss.” Bankers Trust Co. v. Mallis, 435 Department of Health and Mental Hygiene (“DHMH” or U.S. 381, 386 (1978) (per curiam) (quoting 9 J. Moore, “the Department”) would continue to provide Dustin Federal Practice ¶ 110.08[2], p. 119-20 (1970)) (internal after he turned 21 years of age. Although DHMH quotation marks omitted). and the Anne Arundel County Department of Social It is important to underscore that the majority deci- Services (“DSS”) formulated two plans for Dustin’s sion does not merely conclude that there is no final, transition out of his juvenile guardianship at the end of appealable order. The majority concludes that there 2012, neither plan ensured that Dustin would receive is no order at all. The issue Appellant presents to this the same care that he was currently receiving. Because, Court is whether the juvenile court’s order to maintain according to his doctors, maintaining the same level Dustin’s care is valid and enforceable. Although the of care is imperative to sustain Dustin’s life, Dustin, majority purports to dismiss the case without deciding by and through an attorney provided by the Legal Aid the jurisdictional issue raised by Appellant, in my view, Bureau, filed a Petition for Co-Commitment to DHMH, the majority is making a de facto decision on the mer- requesting the juvenile court to order DHMH to provide its. Dustin will not be able to open a new proceeding in the same level of care after he attained age 21.18 the juvenile court because he is now past the age of 21. The juvenile court held a three-day hearing on The majority’s sua sponte determination that no order Dustin’s Petition. After hearing the testimony of ten was properly entered achieves the same result as if this witnesses as well as six experts, including doctors and Court had reached the merits and answered Appellant’s nurses who have cared for Dustin for many years, the question in the negative — invalidating the order that Court made the following oral rulings and findings: the parties have relied on in planning for and provid- 1. Dustin has a disability and is a medically ing Dustin’s care. Therefore, for the reasons explained fragile child per the COMAR definition; below, I believe we should construe the order as the 2. He needs ongoing care; judge and the parties intended and address the merits 3. He needs clinically appropriate services, of the appeal. which is ultimately, what I have to decide; I. 4. And that is keeping what he already has; it Before analyzing the applicable laws, I offer an cannot be decreased, it’s life-threatening expanded view of the facts and the judge’s oral rul- if it’s decreased, and his needs were the ings and findings. Dustin is an exceptionally medically same and probably will get more compli- fragile now 22-year-old male. He survives despite bat- cated as he gets older; tling numerous disorders, including glucose instability; 5. I believe the P. residence is the least immune system compromise; scoliosis; spastic quadri- restrictive setting; I’m not sure anybody’s plegia; cerebral palsy; hypoxia; respiratory congestion; going to dispute that he’s been there since mental retardation; severe seizure disorder; cortical age two — blindness; and neutropenia. He has fragile skin with 6. There are emotional ties; a history of pressure ulcers and global orthopaedic 7. We know a description of all the improve- impairments. He needs tubes to breathe and eat, and ments done to that house; his cognitive functioning is limited to that of a six-

81 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law 8. Everyone that currently cares for him at ten judgment under Maryland Rule 2-601. Although the P. house knows what he needs; the Maryland Rules do not define the term “order,” [9.] [19] I find clearly that 24/7 RN care, which as noted by the majority, the Court of Appeals has he’s already getting; addressed the meaning of the word “order” in the And I’m not sure how anybody can dispute context of the Maryland Code, stating that “an ‘order’ that finding because it’s already been agreed emanates from a court and, in fact, constitutes a com- to. It’s already been acknowledged that’s what mand or decree of the court.” Prince George’s Cnty. v. works and that’s what keeps him out of the Vieira, 340 Md. 651, 661 (1995). The majority stresses hospital. Anybody that suggests that it should that the “Proposed Findings and Order” contains lan- be decreased, whether it’s motivated by money, guage only requesting the court to reach certain fac- just is not looking at this case objectively — tual findings and to issue certain orders, but does not mandate DHMH to engage in any particular action.20 [10.] His needs will increase; As a result, the document, according to the majority, is [11.] As I stated, maintaining the status quo, in merely an “application” for an order or a “motion” and, my view, is a matter of life or death; consequently, cannot be an “order,” let alone a “final * * * order.” [12.] The current arrangement works and To be sure, when this document, unsigned, was should not be changed; submitted to the juvenile court, it operated as an appli- [13.] This case is a level-of-care issue; cation for an order. Indeed, parties regularly attach I find that it’s not only in the best interest drafts of orders to motions or pleadings that they wish of Dustin — and if we value life at all this is a the court to sign, which the court may reject entirely, life-and-death matter, in the view of this partic- edit, or sign verbatim. The majority asserts that “a ular member of the bench. Dustin is not a num- judge’s handwritten name does not express an unqual- ber. He’s not somebody that’s going to save the ified grant of specified relief any more than it indicates State of Maryland a few bucks in treatment – an unqualified denial of those requests, or some other partial or interlocutory action by the court.” But here [14.] A group home is clearly not appropriate; the court’s signature on the proposed order had only [15.] And all of the services that he’s current- one purpose and one result: to grant the relief request- ly getting, just so I’m clear as defined by ed. If the court intended to deny the relief requested, it the statute are “clinically appropriate ser- would not have signed the order. The court’s signature, vices.” therefore, does not lack qualification, as suggested by After rendering these factual findings, the court the majority, and render it ambiguous as to whether the signed the “Proposed Findings and Order” submitted court granted or denied relief. by Dustin as set out fully in the majority opinion. The Once the proposed order was signed, both the judge noted that he had reviewed the proposed order parties and the court understood the document to be and solicited comments from the parties before signing a signed order and binding command of the court. it. The signed order, consistent with the court’s oral Indeed, at oral argument, the panel posed the follow- ruling, instructed DHMH to develop a plan ensuring ing question to Appellant’s counsel: “What does this that “Dustin will continue to receive all of the services order by its literal terms require anybody to do?” In and supports he is currently receiving.” DHMH filed response, Counsel for DHMH stated that “it requires a timely appeal from this order, contending that the the Department to develop and approve a plan that juvenile court lacked the statutory authority to order a ensures that [Dustin] will continue to receive the ser- continuation of services beyond Dustin’s 21st birthday. vices that he was receiving [on] that day.” It is this separate written document that the majority The majority concludes that because there was claims (1) lacks the characteristics of a true “order,” no order, it follows that there was no separate written thereby leaving no “separate document” setting forth judgment. Maryland Rule 1-202(o) defines a judgment the judgment pursuant to Maryland Rule 2-601; and (2) as “any order of court final in its nature entered pur- lacks the attributes of a “final” judgment pursuant to suant to” the Maryland Rules. Maryland Rule 2-601(a) Maryland Rule 2-602, because it “requests” relief rather establishes the requirements for a properly entered than “orders” relief, and because the order was docket- judgment: ed by the clerk as “Proposed Findings and Order.” Each judgment shall be set forth on a sepa- rate document. Upon a verdict of a jury or a II. decision by the court allowing recovery only of What Constitutes an “Order” and Maryland Rule costs or a specified amount of money or deny- 2-601’s Separate Document Requirement ing all relief, the clerk shall forthwith prepare, The majority concludes that the “Proposed sign, and enter the judgment, unless the court Findings and Order” signed by the juvenile court does orders otherwise. Upon a verdict of a jury or not actually constitute an “order” and, accordingly, a decision by the court granting other relief, does not satisfy the requirement of a separate writ-

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 82 the court shall promptly review the form of U.S. at 386-87); see also Hummer v. Dalton, 657 the judgment presented and, if approved, F.2d 621, 624 (4th Cir. 1981) (“The sole purpose of sign it, and the clerk shall forthwith enter the . . . [the Rule 58 separate document requirement] is the judgment as approved and signed. A judgment protection of an appellant from dismissal of his appeal is effective only when so set forth and when for untimeliness. When the application of the Rule does entered as provided in section (b) of this Rule. not serve this purpose, it is unnecessary to abort an . . . appeal because of noncompliance with the Rule.”). (Emphasis added).21 The majority cites to very specific In Hiob, the Court of Appeals was specifically requirements that are prerequisites to finding “there to tasked with determining which court document and be an entry of an effective final judgment that triggers corresponding docket entry triggered the thirty-day the time for filing an appeal” as set out by the Court clock for filing a notice of appeal under Rule 8-202(a). of Appeals in Hiob v. Progressive Am. Ins. Co., ___ Id., slip op. at 1-2. Importantly, there were three sep- Md. ___, ___, Case No. 4, Sept. 2014, slip op. at 40 (filed arate documents and two defendants. The first doc- Nov. 20, 2014). (Emphasis added). I add the empha- ument was the circuit court’s September 2009 entry sis to show where I part from the majority. Namely, of summary judgment against one of the defendants. in my view, Hiob instructs that where timeliness of Id., slip op. at 13. The second document, filed over a an appeal is not at issue, courts should apply these year later, was the January 10, 2011, stipulated Line of requirements with the aspiration of preserving appeal Dismissal regarding claims against the second defen- rights. I explain. dant. Id. The third document was an order of the circuit The Maryland Rules did not require that the judg- court on February 8, 2011, stating that “final judgment ment be contained in a “separate document” until 1997, is entered.” Id. Although the Line of Dismissal effec- when the Maryland Rules Committee revised Rule 2-601 tively disposed of all claims in the action, no pro- in light of amendments made to its federal counterpart, nouncement of the court indicated that final judgment Federal Rule of Civil Procedure 58 (“Rule 58”). Hiob, had been reached regarding all claims and all parties. slip op. at 3, 6-7. The development of Rule 58 informs Because timeliness of the appeal was disputed, the our understanding and analysis of Maryland’s Rule “critical question” was whether the Line, in conjunction 2-601. Id., slip op. at 3. with the summary judgment order, satisfied the sepa- The Federal Rules Committee amended Rule 58 rate document requirement. Id., slip op. at 15. in 1963 to require a separate document to effectuate The Court concluded that the Line of Dismissal a final judgment in response to confusion regarding was not a final judgment because it did not constitute when a court’s opinion or memorandum constituted a a separate order and did not indicate that the court final judgment for appealability purposes. Id., slip op. had fully adjudicated the issues presented. The Court at 3-4. As the Court of Appeals explained in Hiob: instructed, “[i]t is apparent from . . . case law that a [I]t was often unclear whether a judge’s voluntary dismissal by stipulation, which is not pre- opinion or written memorandum con- sented to the court for approval, is not an order of stituted an effective final judgment and court and therefore is not a judgment.” Id., slip op. whether a docket entry correspond- at 21. “Under a mechanical application of Rule 2-601, ing to the opinion or memorandum started the Line of Dismissal is deficient because it was not the time for filing an appeal under the fed- signed by either the clerk or the judge.” Id., slip op. at eral rules. This confusion caused ‘inequities 33. The Court also noted that the Line did not explain . . . when a party appealed from a document the court’s final decision or whether the court intended or docket entry that appeared to be a final to rely on or modify a prior summary judgment order judgment of the district court only to have the against one or more of the defendants. “Thus, under appellate court announce later that an earlier [Progressive’s] theory, the parties or a member of the document or entry had been the judgment and public must assume that the prior, non-final order is dismiss the appeal as untimely.’ actually a final order against [Progressive], not because Id., slip op. at 3-4 (quoting Bankers Trust, supra, 435 the court issued any final determination on this issue, U.S. at 385). Thus, to protect the need for absolute but because an unrelated defendant settled.” Id., slip certainty regarding when a judgment becomes effec- op. at 31. tive, federal courts mechanically apply the require- Here, the court filed an order that complied with ment when determining whether an appeal is time- Rule 2-601: it constituted separate written documenta- ly. Id., slip op. at 5 (citing Bankers Trust, 435 U.S. tion of its oral ruling, signed by the court, and entered at 386-87). Critical to the case sub judice, however, by the clerk onto the docket. Here, unlike the case federal courts and the Maryland Court of Appeals in Hiob, the judge signed the order, and, in contrast have made it clear that where timeliness is not an to a mere line noting a dismissal, the order contains issue, this “mechanical application . . . is relaxed . . substantive findings and directions as confirmed by . when it will prevent the loss of a right to appeal.” the judge’s oral ruling.22 Moreover, unlike the parties Id. (emphasis added) (citing Bankers Trust, 435 in Hiob, the parties here do not object to the form

83 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law of the order or contest its finality. Finally and most document requirement to deny appeal rights. significant, unlike the case in Hiob, the timeliness of this appeal is not at issue. The majority views the III. “Proposed Findings and Order” under a technical lens The Requisites of a Final Judgment that would have been proper had timeliness been at As the majority has noted, in Rohrbeck v. Rohrbeck, issue, but here, where the timeliness of the appeal is 318 Md. 28, 41 (1989), the Court of Appeals identified undisputed, such a strict analysis of the form of the the three attributes an order must have to constitute a order and the docket entry is not appropriate. final judgment: “(1) it must be intended by the court as Even assuming, arguendo, that the “Proposed an unqualified, final disposition of the matter in con- Findings and Order” was not an “order” and therefore troversy, (2) unless the court properly acts pursuant to not a proper separate document as the majority main- Md. Rule 2-602(b), it must adjudicate or complete the tains, the parties have waived this issue. In Bankers adjudication of all claims against all parties, and (3) the Trust, supra, the district court dismissed a securities clerk must make a proper record of it in accordance action, and on appeal, the Second Circuit noted that the with Md. Rule 2-601.” I believe the order in this case “record fail[ed] to uncover ‘any document that looks possesses all three attributes. like a judgment’” but reviewed the merits anyway. 435 1. Intent to Enter an Unqualified Final Judgment U.S. at 382 (citation omitted). Upon grant of certiorari, In order to be conclusive and final, a “ruling must the Supreme Court addressed whether a conclusion necessarily be unqualified and complete, except as to that the judgment was set forth on a separate docu- something that would be regarded as collateral to the ment is a prerequisite to appellate jurisdiction. Id. at proceeding” and “must leave nothing more to be done 383. After reviewing the development and intention of in order to effectuate the court’s disposition of the Rule 58, the Supreme Court concluded that the parties matter.” Rohrbeck, 319 Md. at 41. For its contention could, and did, waive the separate judgment require- that the order in this case was not a final judgment, the ment: majority relies on the following quote from Scheule v. [T]he District Court clearly evidenced its intent Case Handyman & Remodeling Services, LLC: “[t]o that the opinion and order from which an be final in the traditional sense . . . an order must not appeal was taken would represent the final only settle an entire claim but also ‘be intended by the decision in the case. A judgment of dismiss- court as an unqualified, final disposition of the matter al was recorded in the clerk’s docket. And in controversy[.]’” 412 Md. 555, 570-71 (2010) (quoting petitioner did not object to the taking of the Rohrbeck, 318 Md. at 41).23 Indeed, the Court of Appeals appeal in the absence of a separate judgment. has stated that the question becomes: “did the court Under these circumstances, the parties should intend its ruling to be the final, conclusive, ultimate be deemed to have waived the separate-judg- disposition of the matter?” Rohrbeck, 318 Md. at 41 ment requirement of Rule 58, and the Court of (emphasis added). Appeals properly assumed appellate jurisdic- The majority agrees that “[t]he hearing transcript tion[.] leaves no doubt that the trial court subjectively intend- Id. at 387-88. The Court of Appeals adopted this prin- ed to render an unqualified, final disposition of the ciple in Suburban Hospital v. Kirson, 362 Md. 140, claim.” At the hearing, after articulating its factual find- 153-54, 157 (2000), which involved the trial court’s ings, the court stated: failure to enter a separate judgment on the special jury [COURT]: So that’s my decision. verdict, by stating that “[u]se of the waiver doctrine in I’ve looked the case sub judice fits squarely within the rationale of at the order, Proposed Findings of Fact Bankers Trust as it preserves the right to appeal where and Order, and before I place my signa- no objection has been made and the trial court clearly ture on it, are there any other comments intended for the docket entries to constitute a final regarding the order? [THE DEPARTMENT]: I would ask that the judgment.” order list the specific services that the Court is The majority concedes that an appeal may proceed ordering that the Department fund. under certain circumstances even where the trial court [COURT]: Counsel, I don’t need to do that. If fails to enter a separate judgment and where no party you’ve been paying attention at this trial, you has objected, but states that waiver of the separate know what those services are. They’re every- document requirement is permissible only where a thing he’s getting now. judgment is actually entered on the docket. But here, * * * the parties do not object to the form of the order or the [THE DEPARTMENT]: Does that includes pay- entry on the docket from which a timely appeal was ment to Mrs. P.? taken. Under Bankers Trust and Kirson, courts should [COURT]: It includes everything. apply the waiver doctrine in order to preserve appeal (Emphasis added). Not only did the court subjectively rights. This underscores the problem with the majori- intend to issue a final, conclusive ruling, the order, sup- ty’s sua sponte mechanical application of the separate ported by the court’s oral ruling, objectively manifests

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 84 this intent because it is signed by the judge. The court 4) ORDER that this matter be sched- also stated on the record that nothing further would be uled for hearing within 2 months for a issued or added to the order by the court. The court’s Guardianship Review to determine ade- ruling was unqualified, conclusive, and contemplated quacy of the progress toward the goal of no further action. The parties clearly understood the achieving a seamless transition. . . . court’s intent. Clearly the document itself — construed as an order by both the parties and the court despite the word “pro- 2. Adjudication of All Claims Against All Parties posed” in the title and the phrase “Dustin requests” — The majority concludes that because the “Proposed adjudicated all claims against all parties. Findings and Order” “included no language either granting or denying Dustin’s motion” and “no language 3. Docket Entry in Accordance with Rule 2-601(b) determining the rights of DHMH or DSS or of any of On September 27, 2013, the judge signed his name the parties involved[,]” “Dustin’s claim remained unad- on the signature line provided on the proposed order. It judicated.” But by signing Dustin’s proposed order, was subsequently entered on the docket by the clerk’s the court successfully granted all the relief sought by office on September 30, 2013. The Docket entries pro- Dustin. See Schuele, 412 Md. at 586 (“To be deemed vide: final in the traditional sense, an order must be com- Notably, on appeal, neither party disputes the suffi- pletely dispositive of an entire claim or party.” (cita- ciency of the docket entry, nor do they argue that it tion and internal quotation marks omitted)). That the represents anything less than the final judgment of the language of the order did not include a literal “decree” juvenile court. Furthermore, the docket should not stating that “the Court orders as follows” circles back cause a member of the general public to be confused to the majority’s overly-technical rationale that a signed about the general disposition of the case below, since “Proposed Findings and Order” cannot be an order at it clearly shows that following entry of the order, an all. In Dustin’s Petition, Dustin prayed for the following relief from the court: A. Order that Dustin R. be co-committed to the Anne Arundel County Department of Social Services and the Department of Health and Mental Hygiene; [24] B. Order that DHMH and DSS present a writ- ten plan to provide for the care of Dustin R. in the P. home, including 24-hour skilled nursing care, upon turning 21; C. Order that DHMH attend all future Guardianship Review hearings and pro- vide a report on the progress made toward this written plan; D. Grant further relief as may be required. In the signed “Proposed Findings and Order,” the appeal was noticed. orders included: In undermining the efficacy of the September 30, 1) ORDER that DHMH develop and approve 2013, docket entry, the majority relies on several cases, a written plan that ensures that Dustin will which are all distinguishable from the case sub judice. continue to receive all of the services and The majority cites to Hiob, supra, for the proposi- supports he is currently receiving includ- tion that no final judgment has been entered where ing but not limited to all services that will “the public [could] not discern from the docket entry ensure that Dustin will receive 24/7, one- that a final judgment had been issued.” Slip op. at on-one skilled nursing care provided by 36. However, as discussed supra, the majority fails registered nurses. . . . to place the Court’s decision in Hiob in the context in which it was decided. In doing so, it overextends the application of the requirement for an “indication 2) ORDER that DSS and DHMH each report of finality” in the docket, suggesting a strict linguis- to the court and all parties in writing tic requirement where the Court of Appeals has pro- monthly (a) the specific steps taken to nounced none. To the contrary, the Court has encour- ensure that Dustin’s current level of ser- aged that other requirements of Rule 2-601 be interpret- vices and supports will continue in the P ed “in favor of the preservation of appeal rights.” Id., home. slip op. at 11. * * * It was in the context of multiple documents and

85 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law multiple legal relationships, and “because the time for cannot cite such a case demonstrates that context mat- filing a notice of appeal does not begin until the sepa- ters. rate document is entered on the docket consistent with As its most potent example, the majority cites 2-601(b),” that the Court of Appeals in Hiob then turned Newborn v. Newborn, 133 Md. App. 64, 75-80 (2000), to briefly address the docketing requirements. Id., slip stating that “this Court held that there can be no final op. at 35. The pertinent docket entry read “Voluntary judgment where the docket entry itself gives no indi- Dismissal (Partial) as to Erie Insurance Exchange.” cation that anything has been determined.” However, Ascribing particular importance to the word “partial,” here again, the Court was presented with a timeliness the Court stated: issue. Specifically, the Court had to determine which Although the Hiobs and Erie may be aware that of two docket entries constituted the final judgment, the “partial” is in reference to the dismissal of thereby establishing the proper time to submit a notice only one defendant out of two, as opposed to of appeal. The first decision was in the form of an only a portion of the claims against Erie, the opinion letter, stating “[w]e have already granted the public cannot discern this information from the divorce,” and a docket entry which read “[o]pinion by docket entry. Without any indication of finali- Judge Cawood.” Id. at 79. The second docket entry read ty, the public cannot discern from the docket “Judgment of Final Divorce signed by Judge Cawood. entry that a final judgment has been entered. Certified Copies to Attorney’s [sic] Smith and Doud.” Id., slip op. at 36. The Court’s concern that patent- Id. Comparing these two entries, this Court determined ly ambiguous docket entries, which, if viewed by a that the first entry was ambiguous and the second, non-party, may create uncertainty regarding the final- more specific entry marked the point at which the ity of the judgment is a concern that I share with the clock began running for filing a notice of appeal. We majority. See, e.g., Waller v. Md. Nat’l Bank, 332 Md. did not decide in a vacuum that the disputed docket 375, 379-80 (1993) (per curiam) (no judgment was entry was ambiguous and thereby destroyed appealabil- issued despite judge’s intention and parties’ under- ity; rather, we looked to the facts of the case and deter- standing that a final judgment had been issued, where mined that the subsequent docket entry was the one there was no written order and the docket entry stated that alerted the public as to the grant of divorce. Id. “order to be filed”); Rohrbeck, supra, 318 Md. at 39, Unlike Newborn, there are no competing docket entries 43 (in the absence of a written judgment, the docket potentially setting different deadlines for the notice of entry stating “judgment entered” was not the entry of appeal. The September 30, 2013, docket entry fulfilled final judgment because the docket entry also indicated that purpose. a written order would follow). But the Hiob Court did Although these cases are instructive, reading them not look at the wording of the docket entry in a vacu- to implement a strict linguistic requirement governing um. At issue was a Line of Dismissal filed by the parties the words that a clerk must type or enter on the docket and not signed by the judge. Viewing the docket entry in order to maintain the right to appeal simply paints in light of the multiple documents, multiple parties, with too broad a brush. The majority’s strict docket- and affirmative ambiguity introduced by the word “par- ing rule places the validity of judicial decisions in the tial,” the Court found that the docket entry precluded hands of the clerk making the docket entries, even the public from discerning that a final judgment was where this Court has recognized, as has the majority, entered. that generally a clerk “acts only as a ministerial offi- As noted previously, in the case before us, we are cer of the Court,” Corey v. Carback, 201 Md. 389, 402 not dealing with a timing issue. There is no affirma- (1953). Certainly, we must examine docket entries tive ambiguity created by the docket entry indicating entered by the clerk when the issue is whether the that the resolution is only partial or that a subsequent entry alerted the parties that the clock is running on order is forthcoming, and there is no complicated liti- the time to file a notice of appeal. However, where gation structure that would prevent an individual from timeliness is not at issue, our precedent does not sup- discerning what judgment applied to which claims or port the denial of a party’s right to appeal based on the defendants. hyper-technical application of the standards governing The majority emphasizes the importance of docket a clerk’s ministerial duties. entries by citing to Tierco Md., Inc. v. Williams, 381 In sum, there is no affirmative ambiguity in the Md. 378, 391 (2004) (“According to the rule, there can docket entry here. All parties understood there to be be no final judgment without a written record in the a final judgment and proceeded accordingly. I would case file and a docket entry.” (citing Taha, 367 Md. at hold that the docket entry, viewed in the appropriate 564)). But Tierco was a case in which there was no context, serves the purpose of alerting the public of the written memorialization of the court’s final disposition. judgment in this case. Indeed, the majority cites to no Maryland case in which the finality and appealability of a judgment was denied IV. based solely on the contention that the docket entry Preservation of Appealability was ambiguously written, and the fact that the majority The precise decision of the majority, to which I take issue, is the determination that the order signed

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 86 and docketed in the circuit court is not an order at all. ment or make a factual determination necessary for an Here, issues regarding timeliness and finality are only appeal on the merits both prior to and following oral generated once that conclusion has been reached, and argument before this Court, see, e.g., Bacon v. Arey, analysis of the efficacy of the order should not be sub- 203 Md. App. 606, 625-27, cert. denied, 427 Md. 607 stantially based on cases in which timeliness or finality (2012) (stating that prior to hearing the case on the are the key issues. The present issue is necessarily dis- merits this Court issued an Order remanding the case tinct. to the circuit court for entry of final judgment where Even in cases where timeliness and finality are the court failed to enter a proper , legitimate issues, the appellate courts of Maryland rou- the docket did not reflect an adjudication of the cross- tinely exercise their authority to act in the interest of claim, and the record did not contain orders as to all preserving appealablity. As in the numerous cases cited parties), and in written opinion following oral argu- in both the majority and dissenting opinions, where the ment, Allstate Insurance Co. v. State Farm Mutual circuit court has not entered a final judgment consis- Automobile Insurance Co., 363 Md. 106, 130 (2001) tent with Rule 2-602 and has not exercised its discre- (remanding to the circuit court for entry of declaratory tion to certify an order as a final judgment, this Court judgment in conformance with the Court’s opinion). routinely exercises its authority pursuant to Maryland Moreover, pursuant to their revisory power, circuit Rule 8–602(e), to certify the order as a final judgment courts may, at any time, correct clerical errors, includ- on its own initiative and proceed to address the merits ing revisions to the docket. See Maryland Rule 2-535(d) of the case. Schuele, supra, 412 Md. at 569-70 (citing (“Clerical mistakes in judgments, orders, or other parts Silbersack v. AC & S, 402 Md. 673, 681 (2008)); see, of the record may be corrected by the court at any time e.g., Horsey v. Horsey, 329 Md. 392, 401 (1993) (“Where on its own initiative, or on motion of any party after a trial court’s order has the effect of putting the parties such notice, if any, as the court orders. During the pen- out of court, [it] is a final appealable order.” (citation dency of an appeal, such mistakes may be so corrected and internal quotation marks omitted)); Waters v. before the appeal is docketed by the appellate court, U.S. Fidelity & Guaranty Co., 328 Md. 700, 709-10 and thereafter with leave of the appellate court.”). (1992) (“The trial court in this case had discretion to Notably, in Waller, supra, 332 Md. at 380, a case relied enter a final judgment under Rule 2-602(b), intended on by the majority, the Court instructed that, upon dis- to do so, and would have accomplished such purpose missal for lack of a proper docket entry under the facts if it had made the requisite written determination. of that case, the circuit court could then amend the Consequently, we shall exercise our discretion under docket entry, thereby creating a final order from which Rule 8-602(e)(1)(C), enter a final judgment on our own the appellants could properly appeal. initiative[.]”); Shofer v. Stuart Hack Co., 324 Md. 92, 98 The Maryland Rules favor the preservation of (1991) (“The docket of the Circuit Court for Baltimore appeal rights in cases like the one before us where City reflects that no judgment has ever been entered there is no just cause for delay. No party to this action disposing of the third-party claim . . . [n]evertheless, we has argued that proceeding with this appeal would exercise our discretion under Maryland Rule 8-602(e) result in any prejudice. The juvenile court has effective- (1)(C) and hereby enter as a final judgment the judg- ly adjudicated all claims as to all parties. A minor error ment of the Circuit Court for Baltimore City dismissing on the face of what the court and all parties understood all of Shofer’s claims.”), cert. denied, 502 U.S. 1096 to be an order and a potentially ambiguous docket (1992); Walbert v. Walbert, 310 Md. 657, 661 (1987) entry should not be construed to destroy appealability. (concluding that the circuit court’s unqualified order Certainly justice would be better served in this case was a final judgment because it “put [appellant] out of by affording both parties the opportunity to have their court, denying her the means of further prosecuting the issues adjudicated, rather than declining to address the case at the trial level”); Doehring v. Wagner, 311 Md. merits while simultaneously invalidating the underlying 272, 275 (1987) (stating that the circuit court’s order order — upon which the parties have relied. It may be “terminating the litigation in that court” was a final that, were we to address this case on the merits, this judgment). Although the majority correctly contends Court would determine that the juvenile court did not that the instant case may not fit the prerequisite for have jurisdiction to order that Dustin’s life-saving care application of Rule 8-602(e) in that it does not dispose continue past his twenty-first birthday. However, such of all claims against fewer than all parties, the cases, a weighty decision should be borne by adjudication on cited by the majority, nevertheless demonstrate the the merits, rather than made de facto through dismissal Court of Appeals’ determination to effectuate the inten- for want of a flawless order. tion of the trial court in order to preserve the right to appeal. Footnotes Where justice will be served by permitting further proceedings, the appellate courts of Maryland also 1. Dustin first filed a petition for co-commitment to DHMH in March 2010. The court denied that petition without prejudice, regularly exercise their discretionary power pursuant after which Dustin filed an amended petition in June 2011, to Rule 8-604 to direct the circuit court to enter judg- which set forth more specific grounds for relief.

87 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law 2. In addition to the supplemental funds of approximately ties who are aggrieved by the final judgment”). $16,000 a month that DSS had been paying to private nursing 9. Maryland Rule 2-601 is modeled in part on Rule 58 of the providers, for many years DSS also paid a stipend directly to Federal Rules of Civil Procedure. The Court of Appeals has the P.s of approximately $2,400 a month above the monthly recognized that interpretations of Fed. R. Civ. P. 58(a) may board rate for foster care. inform our analysis of Rule 2-601(a). E.g., Suburban Hosp., 3. At DSS’s request, the judge crossed out the printed refer- Inc. v. Kirson, 362 Md. 140, 154-56 (2000). “Under Fed. R. Civ. ence to DSS and wrote his initials above the alteration. P. 58 the judgment must be self-contained and complete . . . 4. At the hearing on September 27, 2013, the judge also signed [and] must describe the relief to which the prevailing party is a different document, titled “Order,” which had been drafted entitled and not simply record that a motion has been grant- by DSS, and which included the findings required for the ed.” Am. Interinsurance Exch. v. Occidental Fire & Cas. Co. annual guardianship review. This document made no mention of N. Carolina, 835 F.2d 157, 159 (7th Cir. 1987) (holding that of the agencies’ responsibilities after Dustin’s twenty-first no final judgment existed where court produced no document birthday, and it stated that the matter was scheduled to ter- that disposed of all claims or described the relief granted); minate on December 16, 2013. The appellate brief submitted accord United Auto. Workers Local 259 Social Sec. Dep’t v. by DHMH quotes a portion of the document titled “Proposed Metro Auto Ctr., 501 F.3d 283, 287-88 (3d Cir. 2007) (holding Findings and Order” and makes no mention of the second that court order granting summary judgment did not consti- document. At oral argument, DHMH confirmed that it was tute final judgment under Rule 58, because document failed appealing from the “Proposed Findings and Order.” In addi- to specify the relief to which prevailing party was entitled). tion, the parties informed us that, pending appellate review, Similarly, the document in question in the instant case failed DHMH has agreed to maintain the level of services that to note the relief granted. Dustin has been receiving. 10. Maryland Rule 9-208 similarly authorizes the referral of 5. Rule 2-601, entitled “Entry of Judgment,” provides: other family law matters to masters, and requires the mas- (a) Prompt entry — Separate document. Each ter to prepare written recommendations accompanied by a judgment shall be set forth on a separate docu- proposed order. Md. Rule 9-208(e)(1). Other references to ment. Upon a verdict of a jury or a decision by the “proposed orders” in the Maryland Rules refer to documents court allowing recovery only of costs or a specified prepared by parties to assist the court. E.g. Md. Rule 8-431(a) amount of money or denying all relief, the clerk shall (requiring that motions to an appellate court be “accompa- forthwith prepare, sign, and enter the judgment, nied by a proposed order”). In either context, the term “pro- unless the court orders otherwise. Upon a verdict of posed order” contemplates a non-final action. a jury or a decision by the court granting other relief, 11. Waller was decided under a prior version of Rule 2-601(a), the court shall promptly review the form of the which did not require that each judgment be set forth on a judgment presented and, if approved, sign it, and the separate document. clerk shall forthwith enter the judgment as approved 12. The docket entry that entered the final judgment read: and signed. A judgment is effective only when so set “Order granting motion for entry of final judgment; denial of forth and when entered as provided in section (b) of plntf’s motion for summary judgment and granting of def’s this Rule. Unless the court orders otherwise, entry of cross motion for summary judgment is final; case is dis- the judgment shall not be delayed pending determi- missed, as to all claims and all parties.” nation of the amount of costs. 13. This Court reasoned: “The only docket entry that does (b). Method of Entry — Date of Judgment. The alert the public as to the grant of the divorce is the one clerk shall enter a judgment by making a record of entered on September 8, 1998, which reads: ‘Judgment of it in writing on the file jacket, or on a docket within Final Divorce signed by Judge Cawood. Certified copies to the file, or in a docket book, according to the prac- Attorney’s [sic] Smith and Doud.’” Newborn, 133 Md. App. at tice of each court, and shall record the actual date 79. of the entry. That date shall be the date of the judg- 14. This opinion should not be read to imply that the circuit ment. court or its clerk are solely responsible for the lack of an *** appealable judgment in this case. The parties have the right 6. Rule 2-602(b) generally applies to cases involving multiple and obligation to ensure both that the court has signed a doc- parties or multiple “claims,” as well as to claims for monetary ument that reflects its actual rulings and that the docket entry relief alone in which a court grants summary judgment as correctly reflects the court’s order. Moreover, the parties to less than all of the relief requested. The inapplicability of have the ability to request corrective action if the separate Rule 2-602(b) is examined in part D of the Discussion section document does not reflect the court’s rulings or if the docket below. entry is erroneous. 7. Section 5-310 of the Family Law Article also permits a party 15. We express no opinion as to whether Rule 8-602(d) might to take certain interlocutory appeals from the denial of the authorize a subsequent appeal if the clerk were to make a right to participate in a guardianship case before entry of an docket entry that accurately reflects the circuit court’s oral order for guardianship, or from a denial of the right to partici- rulings. pate in an adoption case. Neither provision is implicated here. 16. See, e.g., East v. Gilchrist, 293 Md. 453, 459 (1982) (for 8. Moreover, because the document, on its face, did not direct purposes of this rule, “[d]ifferent legal theories for the same DHMH to take any action at all, the Department had not yet recovery, based on the same facts or transaction, do not cre- been aggrieved by the juvenile court’s actions. Accordingly, ate separate ‘claims’ for purpose of the rule”); see also Med. independent of the finality concerns addressed in this opin- Mut. Liab. Soc’y v. B. Dixon Evander Assocs., 331 Md. 301, ion, DHMH’s appeal also must be dismissed because of the 310 (1993) (“[w]hen two counts are based upon the same absence of an aggrieved party. See Suter v. Stuckey, 402 Md. facts, and merely represent different legal theories upon 211, 224 (2007) (“The availability of appeal is limited to par- which the plaintiff can recover the same damages, the counts TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 88 constitute a single claim”). 381 Md. 378, 393-94 (2004) (concluding that a voluntary dis- 17. Regarding a party’s options for further proceedings missal, accepted by the court on the record, did not satisfy after this Court’s dismissal for lack of a final judgment, see Rule 2-601), or where timeliness of the appeal or a post-trial Houghton v. County Commissioners of Kent County, 307 motion was the issue and where mechanical application of Md. 216, 232 n.6 (1986). the separate document requirement was appropriate, see, 18. “Alternative 1” involved the P. family seeking guardian- e.g., United Auto. Workers Local 259 Social Sec. Dep’t v. ship of Dustin, in which case Dustin could participate in Metro. Auto. Ctr., 501 F.3d 283, 287-88 (3d Cir. 2007) (review- Medicaid’s Rare and Expensive Case Management Program ing the separate document requirement of Rule 58 in the (“REM”) and would be eligible for a Developmental Disability context of clarifying the timing for the filing of a post-trial Administration (“DDA”) waiver, which would provide support motion). Several other cases cited by the majority to support services. “Alternative 2” involved the P. family not seeking the technical application of the rule concern declaratory guardianship of Dustin, in which case Dustin would remain judgment actions, wherein a separate document is neces- eligible for REM and the DDA waiver, pursuant to which sary to “declare” the rights of the parties, as separate from Dustin could be placed in a state-funded residential pro- the supporting memorandum, for clarity. See, e.g., Salamon gram. In proposing these alternatives, DHMH explained that v. Progressive Classic Ins. Co., 379 Md. 301, 307 n.7 (2004) “nursing services will be available on the same terms and (reviewing the merits of the case, because the lack of a conditions applicable to other REM participants.” (Emphasis separate document in a declaratory judgment action is not added). Dustin’s doctors contend that this basic level of nurs- jurisdictional); Am. Interinsurance Exch. v. Occidental Fire ing services would be insufficient. & Cas. Co. of N.C., 835 F.2d 157, 159 (1987) (concluding that 19. The court misnumbered its findings; accordingly, we have several issues in the declaratory judgment order precluded bracketed the proper numerical order of the findings. finality and dismissing the appeal). 20. In a footnote, the majority also concludes this appeal 23. Because appeal of the order before us is permitted under should be dismissed because DHMH cannot have been § 5-310 of the Family Law Article of the Maryland Code, aggrieved by the juvenile court’s actions when its order did Schuele has limited application to this case. In Schuele, not direct DHMH to take any action at all. Even if the signed the Court of Appeals addressed whether an order denying order did not constitute a mandate, DHMH believed the order a motion to compel arbitration was a final judgment or an to be final and binding, and it has complied with the order appealable interlocutory order where there was no statute since its issuance. Only the majority has construed the docu- specifically authorizing appeal of such an order. 412 Md. at ment to fail as an “order” and to lack finality. DHMH, having 565. The Court found that the trial court had not exercised complied with the order it now contests, is an aggrieved party its discretion to certify the order as final under Rule 2-602(b), by the order, and the appeal cannot be dismissed for this rea- and that by its terms, the order did not constitute a final son. order because “an order denying a motion to compel arbitra- 21. Subsection (b), discussed infra, governs the method entry tion does not put the parties out of court but, instead, effec- of the judgment by the clerk. tively keeps the parties in court to litigate the claims remain- 22. Cases cited by the majority to support the propositions ing between them.” Id. at 572. that the document “failed to note the relief granted” or was 24. In an additional unappealed order entered on the same not a proper separate document are distinguishable because day, the court also continued co-commitment with DHMH, they either involved circumstances where there was no which had previously consented to co-commitment in April written judgment, see, e.g., Tierco Md., Inc. v. Williams, 2013.

89 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 90 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Child custody: modification: material change of cir- ity. Rule 8-114. Unofficial publication of an unre- cumstances ported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. Erica L. Young a/k/a Erica 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page num- Durr bers are from slip opinions.

v. vacation and alternate holidays. Mother timely noted this appeal. Dale Dykes On appeal, Mother presents two issues for review, 2 No. 0272, September Term, 2014 which we rephrased slightly as follows : 1. Did the circuit court err in its determina- Argued Before: Woodward, Leahy, Reed, JJ. tion that there was a material change of Opinion by Reed, J. circumstances? Filed: December 29, 2014. Unreported. 2. Did the circuit court err in its modifica- tion of the child custody order? For the following reasons, we answer both questions in In modifying custody, the trial court erred in find- the positive, and reverse and remand the circuit court’s ing that mother’s relocation to Ohio was a material change in circumstances, since the existing custody order. arrangement had been triggered by that same relo- Factual and Procedural Background cation two years earlier; in fact, father’s request for modification was not based on mother’s relocation Mother and Father met in November 2004 in per se, but alleged that the current schedule and Dallas, Texas while Father was on a business trip. the long commute to the transfer point adversely Shortly thereafter, the parties began a romantic rela- affected the education of his now-school-age son. tionship. Six months later, Mother moved into Father’s home in Washington D.C. The parties were never mar- ried, but entered into a domestic partnership. Mother This case arises from an Order of the Circuit Court was pregnant with Son, and during that time the par- for Prince George’s County modifying custody of the ties’ relationship began to unravel. Father testified that parties’ 5-year-old son (“Son”). Prior to the initiation after Mother suffered the loss of her mother and broth- of the instant litigation, and after learning Erica Young, er, the couple grew apart. Mother testified that after appellant (“Mother”), intended to move to Ohio to the loss of her family members, Father was unsupport- pursue a romantic relationship, Dale Dykes, appel- ive and unfaithful causing the breakdown in their rela- lee (“Father”), filed a Complaint for Joint Custody tionship. She also testified that there was one incident and a Motion for Emergency Hearing, and, or In the when Father threw her clothes down the stairs and Alternative Motion for Ne Exeat. After holding a hear- grabbed her roughly. ing, the circuit court issued the Consent Order, which Ten months after Son’s birth, Mother moved out provided joint legal and shared physical custody of of Father’s home with Son. While living in separate Son.1 Father had visitation on alternate weekdays, homes, the parties maintained a healthy co-parenting weekends, and specified holidays. The parties then relationship. Father saw Son about four to five times a entered into a consent agreement providing joint legal week, and Son also stayed with him on certain nights. and shared physical custody. They agreed to meet in Son was enrolled in pre-school at Celebree Learning Breezewood, Pennsylvania as the exchange location. Center. The parties were able to drop off and pick up On March 7, 2013, Father filed a Motion for Son from Celebree according to the visitation schedule. Modification of Child Custody and Visitation on the Mother became engaged to her current husband in basis that the commute time and the minor’s education May of 2011. In June 2011, Father learned that Mother was being adversely impacted, thus, creating a material took Son frequently to Ohio without any notice or change of circumstances. On December 16, 2013, the consultation. When Father went to pick up Son at day circuit court conducted a hearing on the merits, and care, Father learned that Mother gave the day-care delivered its ruling on March 31, 2014, modifying the two-week notice that Son would no longer be enrolled, original consent order, and granting Father primary because they were moving to Ohio. Upon hearing physical custody and joint legal custody of Son. The this, Father filed a Complaint for Joint Custody and order granted Mother visitation during Son’s summer Alternative Motion for Ne Exeat on June 9, 2011, and a

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 90 Motion for Emergency Hearing, on July 7, 2011. After a In addition, she testified that “[b]ecause of the current hearing, the circuit court ordered joint legal and shared arrangement, it’s hard for [Son] to be in an activity con- physical custody of Son. Mother had primary physical sistently.” Further, when Mother’s husband was asked custody and Father had visitation on alternate week- if he thought the “plan should stay the way it is,” he days, weekends and specified holidays.3 The parties testified “Oh, well, not with him getting ready to go to then entered into a consent agreement on December 29, school. That’s going to be a big issue.” 2011, providing joint legal and shared physical custody. The circuit court found that there was a material They agreed to meet in Breezewood, Pennsylvania as change in circumstances due to Son having reached the the exchange location. Mother married her current hus- age of pre-k or kindergarten, and “that the parties can- band sometime before the consent order. not continue to abide by that agreement in [Son’s] best On March 7, 2013, Father filed a Motion for interest.” At the conclusion of trial, the court requested Modification of Child Custody and Visitation on the post-trial briefs from the parties discussing the findings basis that the commute time and the minor’s education of facts and the factors considering the best interest of was being adversely impacted, thus, creating a mate- Son. rial change of circumstances. Father sought physical The court delivered its ruling on March 31, 2014, custody of Son during the academic year with reason- granting Father primary physical custody, and joint able visitation to Mother. The case proceeded to trial legal custody of Son. The order granted Mother vis- on December 16, 2013. The court heard testimony itation during Son’s summer vacation and alternate from Mother, Ryan Durr (Mother’s husband), Father, holidays. The circuit court held “[b]oth parties are fit Shaundace Williams (Father’s girlfriend), Crystal and proper parents and express deep love for [Son]. Riggins (Father’s employee), and Rochelle Tinsley However, the defendant’s location has necessitated that (Son’s former pre-kindergarten teacher). this Court make a determination as to who should have Father is a self-employed entrepreneur who start- primary residential custody of [Son].” It also stated: ed a successful audio-visual technology company. He [T]he court finds that there has been a material earned his Master’s in Business Administration from change in circumstances that warrants a mod- the University of Pennsylvania’s Wharton School of ification of custody. The [Mother] relocated Business. He previously worked as an investment bank- to Ohio and the [Father] wishes to raise his er on Wall Street. He is in a stable relationship, and son in Prince George’s County, Maryland. The plans to marry his significant other in the future. [Mother]’s voluntary relocation to Ohio from Mother is a school teacher who currently resides Maryland is certainly material. Given the great in Ohio with her husband, who is a middle school prin- distance between the Parties’ homes, it is vir- cipal. Mother has a daughter with her husband. All of tually impossible for the parties to have shared the witnesses testified that the parties’ are fit parents. physical custody as per the Consent Order. Mother testified about her concern that Father’s busi- (Emphasis in original). ness would prevent him from spending quality time The court modified the physical custody arrange- with Son. ment, stressing that the distance between the parties’ Father’s attorney stated that the material change in homes makes the prior custody arrangement unwork- circumstances justifying a modification of the custody able. The Court also stressed the importance of having order was Mother’s relocation to Ohio, and that the a positive male figure such as his Father in his life, the current custody agreement is longer tenable because it strong bond between father and son taking precedence prevents Son from regularly attending school. Mother’s over his sibling relationship with step-sister, the sub- attorney countered that Father knew she was relocat- stantial family roots in Maryland, and the educational ing to Ohio, and that it is the very issue that prompted and material opportunities that the greater Washington, the underlying litigation involving the custody agree- D.C. metropolitan area offered as opposed to Ohio. ment. Mother’s attorney also stated that the “change The court noted that it “decline[d] to take a position on in circumstance . . . [wa]s the child’s age” and that the whether [Mother] entered into the [custody] agreement current arrangement was adversely affecting Son. in bad faith, but does certainly consider her relocation Mother testified that to Ohio such a short time later as being entirely incon- [Son]’s doing well. . . . But it’s a transition for sistent with what the parties agreed to.” him when he has to take ten days out of the This timely appeal followed. On October 29, 2014, school month to come and be away from his Father filed a motion to dismiss on the grounds that teachers, his peers, and the learning environ- Mother failed to preserve her arguments on appeal, ment. So it’s a transition when he comes back and that the transcript contained an error. In addition, to understand where it is he’s coming back to. Father also contends that Mother waived her second He’s coming back to a classroom where they argument that the trial court misapplied the custody have desks. There’s not [sic] play areas for him. factors, because Mother declined to make a closing And [Son] is very playful. So he has to get back argument discussing these factors, but only narrowly into the routine of being in the classroom. discussed that a sibling relationship was paramount to

91 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law promoting Son’s best interest in her post-trial brief. with the child; he is in a far better position than is an appellate court, which has only a cold record before it, Discussion to weigh the evidence and determine what disposition will best promote the welfare of the minor.” Id. at 585- A. Parties’ Contentions 86. Mother argues that during trial, the circuit court made a limited finding that the material change of cir- C. Analysis cumstances was based upon scholastic changes as a result of Son reaching the age of Pre-kindergarten or i. Motion to Dismiss Kindergarten. Mother contends that the circuit court’s As a preliminary matter, we first address the opinion incorrectly concluded and contradicted itself motion to dismiss. Father’s motion to dismiss Mother’s when it found her voluntary relocation to Ohio from appeal for failure to provide complete record, filed Maryland was material and warranted a modification of ten days after Mother filed the complete record, was custody. Mother further avers that Father was aware of untimely, and is thus denied. Md. Rules 8-602(a)(6) & the fact that she was relocating to Ohio, at the time the 8-603(a)(1). We may dismiss an appeal on motion or on December 29, 2011, Consent Order was entered into, our own initiative. Rule 8-602(a). A Motion to Dismiss and Father is attempting to relitigate the earlier custo- must be filed in this Court no later than ten days after dy determination without offering anything new. the record was filed under Rule 8-412, if the motion is Mother also contends that the circuit court incor- based on Rule 8-602(a)(6). Rule 8-603(a)(1). Mother rectly applied the factors in determining a modification filed the record on June 19, 2014, and subsequently of physical custody. Specifically, she argues that the filed the transcript on October 2, 2014.4 Father filed his circuit court’s opinions and its findings of fact were motion on October 29, 2014, more than three weeks contrary to the findings in trial. after Mother filed the deficient record. See Boswell v. Father counters that the trial court correctly found Boswell, 118 Md. App. 1, 24 (1997), aff’d and remanded, that there was a material change in circumstances 352 Md. 204 (1998) (denying motion to dismiss where based on Son’s inability to attend school and partici- appellee filed motion to dismiss “two and one-half pate in extra-curricular activities based on the existing months after appellant filed the deficient record”). custody arrangement and the long-commute. Father’s argument that the transcript error on page eight also requires dismissal of the instant appeal is B. Standard of Review without merit. The transcript incorrectly identified Mr. This court reviews child custody determinations Milton (Father’s attorney) as Mr. Gordon (Mother’s utilizing three interrelated standards of review. In re Attorney), as he was discussing preliminary matters Yve S., 373 Md. 551, 586 (2003). The Court of Appeals relating to Mr. Milton’s appearance as Father’s attorney described the three interrelated standards as follows: on the first day of trial.5 Therefore, this portion of the We point out three distinct aspects of review transcript is completely irrelevant to the merits of the in child custody disputes. When the appellate case before us, and thus we decline to dismiss on this court scrutinizes factual findings, the clearly ground. erroneous standard of [Rule 8–131(c)] applies. Father also contends that Mother failed to preserve [Second,] if it appears that the [court] erred as her argument relating to the change of circumstances to matters of law, further proceedings in the issue, but the transcript shows that Mother clearly trial court will ordinarily be required unless raised the issue below when Mother’s attorney argued the error is determined to be harmless. Finally, that Father knew she was relocating to Ohio before when the appellate court views the ultimate entering into the consent order, and countered that the conclusion of the [court] founded upon sound child’s age was the material change in circumstances. legal principles and based upon factual findings Thus, this argument is also without merit and we reject that are not clearly erroneous, the [court’s] Father’s motion to dismiss. decision should be disturbed only if there has been a clear abuse of discretion. ii. Material Change Id. at 586. “A material change of circumstances is a change In our review, we give “due regard . . . to the oppor- in circumstances that affects the welfare of the child.” tunity of the lower court to judge the credibility of the Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012) witnesses.” Id. at 584. We recognize that “it is within (citation omitted). When presented with a custody the sound discretion of the [trial court] to award cus- modification request, the court must engage in a two- tody according to the exigencies of each case, and . . step process. . a reviewing court may interfere with such a determi- First, the circuit court must assess whether nation only on a clear showing of abuse of that discre- there has been a “material” change in circum- tion. Such broad discretion is vested in the [trial court] stance. If a finding is made that there has been because only he sees the witnesses and the parties, such a material change, the court then pro- hears the testimony, and has the opportunity to speak ceeds to consider the best interests of the child

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 92 as if the proceeding were one for original cus- change in circumstances that warrants a mod- tody. ification of custody. The [Mother] relocated McMahon v. Piazze, 162 Md. App. 588, 594 (2005) (cita- to Ohio and the [appellee] wishes to raise his tions omitted). son in Prince George’s County, Maryland. The “Therefore, we first consider whether the trial [Mother]’s voluntary relocation to Ohio from court erred in finding that a material change in cir- Maryland is certainly material. Given the great cumstances occurred. Second, we consider whether distance between the Parties’ homes, it is vir- the court abused its discretion in modifying custody.” tually impossible for the parties to have shared Gillespie v. Gillespie, 206 Md. App. 146, 170 (citing physical custody as per the Consent Order. McMahon, 162 Md. App. at 594. The Court of Appeals (Emphasis in original). has explained that although courts must engage in this Father’s Motion for Modification of Child Custody two-step process in evaluating a petition to modify cus- and Visitation was initiated as a result of Mother’s tody, the two steps are often interrelated. The Court relocation to Ohio. Thus, contrary to the circuit court’s explained: opinion, Mother’s relocation to Ohio cannot be a cir- In the more frequent case . . . there will be cumstance that was unknown to the court and Father some evidence of changes which have occurred at the time the original consent order was entered into, since the earlier [custody] determination was and cannot be a material change in circumstances. made. Deciding whether those changes are suf- During oral argument in this Court, Father’s attorney ficient to require a change in custody necessar- conceded that the circuit court’s material change find- ily requires a consideration of the best interest ing based on Mother’s move to Ohio was incorrect. of the child. Thus, the question of “changed Mother’s attorney also conceded that a material change circumstances” may infrequently be a threshold in circumstances may have existed due to Son reach- question, but is more often involved in the “best ing formal schooling age, but the circuit court erred, interest” determination, where the question of because its opinion and order did not rely on that stability is but a factor, albeit an important fac- ground. tor, to be considered. Father expressly stated in his Complaint for Joint McCready v. McCready, 323 Md. 476, 482 (1991). “The Custody, filed in June 2011, that Mother intended burden is then on the moving party to show that there to “leave the State of Maryland for Ohio to pursue a has been a material change in circumstances since the romantic relationship.” He also stated in his Motion entry of the final custody order and that it is now in the for Writ of Ne Exeat that Mother expressed her “inten- best interest of the child for custody to be changed.” tion to permanently leave the State of Maryland to Sigurdsson v. Nodeen, 180 Md. App. 326, 344 (2008), pursue a romantic relationship[,]” that he “learned of aff’d, 408 Md. 167 (2009). the [Mother’s] intentions from third parties” at Son’s This court explained in McMahon, 162 Md. App. at daycare, and “[t]hat the distance between Ohio and 596 (citing Domingues v. Johnson, 323 Md. 486, 498 Maryland is too great to even propose a timesharing (1991)): arrangement that will not deprive the child of one of The “material change” standard ensures that the parent’s affections.” Finally, Father, again, stated principles of res judicata are not violated by in his Motion for Emergency Hearing, and, or In the requiring that such a showing must be made Alternative Motion for Ne Exeat, filed a month later, any time a party to a custody or visitation that the purpose for his complaint and motions was order wishes to make a contested change, even to “prevent the [appellant], Mother, from absconding if it is to an arguably minor term. The require- with the parties’ minor two year old son, . . . to an ment is intended to preserve stability for the undisclosed location in the State of Ohio.” In addition, child and to prevent relitigation of the same Father testified that he learned Mother was moving to issues. Ohio in June 2011. Furthermore, Mother was engaged (Emphasis in original). to her current husband in May of 2011, and married “In the limited situation where it is clear that the before the December 29, 2011 consent order. Custody party seeking modification of a custody order is offer- of Son was resolved at that time by consent order. The ing nothing new, and is simply attempting to relitigate parties abided by the terms of the custody arrange- the earlier determination, the effort will fail on that ment and met halfway between Maryland and Ohio, in ground alone.” Bienenfeld v. Bennett-White, 91 Md. Breezewood, Pennsylvania as the exchange location App. 488, 499 (1992), cert. denied, 327 Md. 625 (1992). for over a year, until Father brought his Motion for After examining the record and the circuit court’s Modification of Child Custody and Visitation on March findings, we hold that the circuit court erred in its rea- 7, 2013. sons for finding that there was material change of cir- The trial transcript reflects that the circuit court cumstances. In its opinion and Order, the circuit court found a material change based on Son reaching the age held: of formal schooling, and the adverse impact of the com- [T]he court finds that there has been a material mute. Despite making these findings, the circuit court

93 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law does not mention these facts in its opinion and order. of the consent order. Rather, the circuit court’s reasons for finding a material change in circumstances were based on Mother’s move JUDGMENT OF THE CIRCUIT COURT FOR to Ohio and Father’s “wishes to raise his son in Prince PRINCE GEORGE’S COUNTY REVERSED AND George’s County, Maryland,” which we explained was REMANDED. COSTS TO BE PAID BY APPELLEE. known by the parties at the time they entered into the consent order. Before and after Mother’s move to Ohio, Son was enrolled in pre-school at Celebree Learning Footnotes Center, and the parties dropped off and picked up Son 1. The schedule provided that Son would be with Father from the pre-school according to the consent order. beginning on Thursday, December 8, 2011, and on alternating During trial, both parties testified that after Mother’s weekends from Thursday until Sunday, and then, beginning move to Ohio, the custody arrangement and the com- on Wednesday, November 30, 2011, he would thereafter mute would prevent Son from attending school consis- be with Father on alternating Wednesday afternoons until tently, and also prevent his involvement in extra-curric- Thursday evenings. ular activities. 2. Mother presented the following questions: 1. Whether the trial court erred in finding and deter- The parties cannot relitigate the same issues which mining that there was a material change of circum- were already decided. See Barrett v. Ayres, 186 Md. stances. App. 1, 18 (2009), cert. denied, 410 Md. 560 (2009) 2. Whether the trial court erred by incorrectly apply- (“Because the court does not want feuding parties to ing the factors in determining a modification of have the ability to relitigate the same issues which it Physical Custody. has already decided, claim and issue preclusion are 3. The schedule provided that the child would be with bases for denying motions to modify visitation or cus- Father commencing Thursday December 8, 2011 and on tody orders.” (citing McCready, 323 Md. at 481-82)). alternating weekends from Thursday until Sunday, and com- Mother and Father are physically in the same situation mencing Wednesday November 30, 2011 and on alternating today as they were when the matter was litigated in Wednesdays thereafter until Thursday. 2011. Specifically, Mother had already relocated to 4. Mother filed the record on June 18, 2014, but it was not Ohio and Father knew of this fact prior to the par- transmitted until June 19, 2014 because the ACS court system ties entering into the consent order and Father’s fil- was down and the transmittal reports could not be printed. ing of the Motion for Modification for Custody. Thus, On August 20, 2014, this Court issued an Order to show cause because the record was received without transcripts of the Mother’s move to Ohio was not a material change in proceedings. Mother filed the transcript and a motion to circumstances sufficient to warrant the court’s consid- accept transcript, which this Court accepted on October 2, eration of a custody modification. 2014. Therefore, we hold that the circuit court erred and 5. According to the transcript, Father was previously rep- reverse its order. Accordingly, on remand, the circuit resented by Mr. Vanzego, who was absent on the first day court must reconsider its finding that a material change of trial to attend a funeral, and thus Mr. Milton entered his in circumstances existed that warrants a modification appearance as substitute counsel.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 94 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 95 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- CINA: permanency plan: appeal mooted by TPR ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. In Re: Caitlyn S. See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from No. 1047, September Term, 2013 the courts but are added by the editors. Page num- Argued Before: Eyler, Deborah S., Reed, Salmon, James bers are from slip opinions. P. (Ret’d, Specially Assigned), JJ. Opinion by Reed, J. his home situation. On May 15, 2013, and June 26, 2013, it urged the court to change the permanency plan to Filed: December 30, 2014. Unreported. adoption by a non-relative. On July 2, 2013, the juvenile court issued its decision and held that the adoption by a The Court of Appeals’ decision in In re: Karl H. non-relative was the appropriate permanency plan. established that the parents’ appeal of a change in Appellants challenge the decision changing the per- the CINA permanency plan is not moot while their manency plan for Caitlyn from reunification with appel- appeal of an order terminating their parental rights lant, Mr. M, to adoption by a non-relative. is pending in the Court of Special Appeals; here, In light of our decision in In re Adoption/ however, the Court of Special Appeals had already Guardianship of Caitlyn S., No. 2615 (filed September affirmed the TPR order, which rendered the CINA 30, 2014, mandate issued October 15, 2014), affirming appeal moot. the termination of parental rights, this case is moot, because there is no relief upon which this Court can offer. See Rule 8-602(a)(10). Caitlyn S. was born on February 8, 2008. Mr. M and The Court of Appeals explained in In re Adoption Ms. S are her biological parents. On May 10, 2011, the of Jayden G., 433 Md. 50 (2013), that a CINA appeal Circuit Court for Montgomery County, sitting as the becomes moot after this Court has already affirmed an juvenile court, entered an order finding Caitlyn and her order terminating parental rights. Id. at 78 (“Although, older sister to be Children in Need of Assistance (“CINA”) without a stay of TPR proceedings, the outcome of the and placed them in foster care. Ms. S appealed, and on parent’s appeal of a change in the permanency plan may November 28, 2011, this Court reversed the CINA finding, be rendered moot, our holdings . . . simply do not add up as to Caitlyn, based on insufficient findings. On January to the conclusion” that automatic TPR stays should be 9, 2012, the juvenile court dismissed the original CINA granted when CINA cases are appealed. “Indeed, in Karl petition as to Caitlyn. The next day, the Department of H.[,] [394 Md. 402 (2006),] itself, in deciding to review Health and Human Services of Montgomery County (“the an appeal rendered moot by a subsequent TPR, we Department”) filed a new CINA petition for Caitlyn. acknowledged the possibility that this might happen in On February 16, 2012, the juvenile court found Caitlyn some cases” (citation omitted) (emphasis added)). was a CINA, and the permanency plan continued to be In further support of this, the Court of Appeals reunification with Ms. S. Ms. S did not appeal this CINA added “we accepted as a given that a juvenile court finding. On July 26, 2012, at the permanency plan hearing, may terminate parental rights while the CINA appeal is the juvenile court learned that Caitlyn and her sister were pending, and took for granted the possibility that our happy with her foster parents and observed Ms. S’s incon- own opinion in the CINA case may be rendered moot by sistent and contradictory testimony about her home and the resolution of the TPR appeal in the Court of Special work situation. The juvenile court issued on order chang- Appeals.” Id. at. 71-72. ing the plan from reunification with Ms. S to adoption. Ms. In In re Karl H., the Court of Appeals declined to S appealed this decision, and the Court of Appeals issued dismiss the CINA appeal as moot while the TPR case certiorari, on its own motion on December 14, 2012. The was pending before this Court, and this Court had not Court of Appeals affirmed the juvenile court’s permanency yet ruled on the TPR case. Id. at 410-11. Unlike In Re plan. In re Ashley S. and Caitlyn S., No. 4 (filed May 30, Karl H., in the case sub judice, this Court has already 2013). On December 27, 2012, the juvenile court conduct- affirmed the circuit court’s order terminating appellants’ ed its six-month review hearing on the permanency plan, parental rights. and changed the girls’ permanency plan from adoption to Accordingly, we dismiss the appellants’ appeal as reunification with her father, Mr. M. moot. Since then, the Department’s position changed after learning that Mr. M failed to disclose information APPEAL DISMISSED. regarding his criminal history, employment history, and COSTS TO BE PAID BY THE APPELLANTS.

95 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 96 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: contempt: purge provision ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Theodore C. Julio See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Lisa Julio bers are from slip opinions. For the reasons set forth below, we shall affirm, No. 1910, September Term, 2013 in part, and vacate, in part, the judgment of the circuit Argued Before: Graeff, Berger, Friedman, JJ. court. Opinion by Graeff, J. Factual And Procedural Background Filed: December 30, 2014. Unreported. On December 1, 2011, the Circuit Court for Baltimore County issued a Judgment of Absolute The circuit court did not err or abuse its discre- Divorce, which incorporated the terms of the parties’ tion in finding appellant in contempt for failing to agreement regarding marital property. Relevant to this make two installment payments, totaling $1 million, appeal, paragraph 6 of the judgment of divorce, enti- to his ex-wife, as required by their divorce decree, tled “Marital Settlement Payment,” provided that Mr. nor in entering separate money judgments against Julio “shall pay” to Ms. Julio, as a Marital Settlement him for those amounts; however, the trial court’s Payment, the following sums: failure to specify that appellant could purge the a. Six Hundred Thousand Dollars (600,000.00) contempt by paying those judgments was a techni- cal error that requires a remand to that court. on or before December 31, 2011; and b. Four Hundred Sixty Thousand Dollars ($460,000.00) on or before June 30, 2012; and This appeal arises from a petition for contempt c. Six Hundred Thousand Dollars (600,000.00) filed by Lisa Julio, appellee, against Theodore C. Julio, on or before December 31, 2012; and appellant, in the Circuit Court for Baltimore County. d. Four Hundred Thousand Dollars ($400,000.00) The petition and supplemental petition, alleged, inter on or before March 31, 2013 alia, that Mr. Julio failed to comply with the require- The above amounts shall not bear interest if ment in the parties’ December 1, 2011, Judgment of paid timely with the schedule set forth above Absolute Divorce that he make installment payments but if not paid timely shall bear interest from pursuant to a property settlement agreement. At the the date payment was due until the date pay- time of the hearing, Mr. Julio had failed to make pay- ment is made. ments of $1,000,000. The court found Mr. Julio in con- Paragraph 8 addressed the issue of attorney’s fees. tempt with respect to the unpaid installment payments, It provided that, “in the event of contempt, default or and it entered judgments, with interest, nunc pro tunc non-performance of any provision hereof, the non-per- from the dates that the payments were due, in favor of forming party shall be liable for all attorney’s fees and Ms. Julio. costs incurred by the other party in enforcing the pro- On appeal, Mr. Julio raises three questions for our visions hereof.” review,1 which we have rephrased and reorganized as On February 4, 2013, Ms. Julio filed a petition for follows: contempt, alleging, inter alia, that, “[i]n violation and 1. Was the circuit court required to hold a sep- contempt of the [judgment of divorce], [Mr. Julio] arate hearing before it could find Mr. Julio in has failed to . . . pay the Marital Settlement Payment contempt because the amount owed by Mr. installment due on or before December 31, 2012, in Julio was uncertain? the amount of $600,000.00.” She stated that she had 2. Was there a sufficient evidentiary basis from requested, through counsel, that Mr. Julio cure his con- which the court could find that Mr. Julio had tempt by paying the overdue installment, but he had the ability to pay? “failed and refused to purge and, therefore, remains in 3. Did the court’s order impose sanctions for contempt.” Ms. Julio also stated that she had incurred Mr. Julio’s contempt, thereby requiring it to attorney’s fees due to Mr. Julio’s contempt, and she include an express “purge provision” in its sought an award for such fees and costs. Ms. Julio order, pursuant to Md. Rule 15-207(d)(2)? requested that the court cite Mr. Julio for civil con-

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 96 tempt, enter a judgment in her favor “for all amounts Mr. Julio acknowledged that the parties had reached due and owing . . . to be effective as of the date each “an agreement . . . with regard to the marital property such amount was due,” and grant her attorney’s fees distribution and Mr. Julio . . . was obligated . . . to pay and costs. . . . $600,000 in December of 2012 and $400,000 in April On February 12, 2013, Mr. Julio moved to strike of 201[3].” Counsel also agreed that Mr. Julio had not Ms. Julio’s petition for contempt. He argued that the made those payments. She asserted, however, that in parties had agreed, per the terms of the judgment of December 2012, Mr. Julio was informed that he would divorce, that “the remedy for an alleged non-timely receive only approximately $680,000 in income for the payment of the Marital Settlement Payment is that the year 2013 through a “family distribution,” and there- Plaintiff would be required to pay interest, not for con- fore, he would not be able to make the payments to Ms. tempt,” and Ms. Julio was “not entitled to circumvent Julio. Counsel stated that she tried to set up a payment the agreed-upon remedy . . . by arbitrarily deciding to plan with Ms. Julio’s counsel, including reaching an impose an alternative remedy, that being contempt.” agreement as to what “credits” were due to Mr. Julio, Moreover, he asserted that he had “suffered his income and that the marital settlement payment included an to be reduced to less than one third of his income at “understanding that [the payments] may not be paid on the time of the divorce agreement,” and the “parties time and . . . if it’s not paid on time then at that point were well aware” of that possibility when entering into interest will accrue.” Counsel stipulated that whatever the consent agreement, “which preset the consequenc- amounts not subject to a credit were past due. es of delayed payment.” Mr. Julio stated that he had Mr. Julio testified that he had not paid either the made several good faith attempts to resolve the issues $600,000 or the $400,000 to Ms. Julio. His financial between the parties, including corresponding with Ms. statement, admitted into evidence, listed his assets as Julio’s counsel regarding his “material changes in cir- follows: cumstances.” He stated that he had abided by the terms Real Estate (net of mortgage) $1,073,589 of the agreement “to the best of his ability,” and he had Furniture $121,393 offered “plans . . . incorporating a timed payment of the Bank Account/Savings $330,000 funds remaining due, pursuant to the consequences to 401k $258,653 which the parties agreed: that he pay interest on the Personal Property $292,585 funds determined to be due.” Jewelry $40,000 On February 27, 2013, Ms. Julio opposed Mr. Julio’s Automobiles $137,000 motion. On March 18, 2013, the court denied Mr. Julio’s Wine Collection $400,000 motion. Also listed as an asset were “Stocks/Investments” in the In March 2013, Mr. Julio filed his own petition for amount of “$30,824,239 (Family).” Mr. Julio listed his contempt, alleging that Ms. Julio had failed to perform total assets at $35,853,870, and his total net worth at certain obligations set forth in the judgment of divorce $32,445,461. regarding the transfer of items of personal property, Mr. Julio explained that he is a partner in “vari- including a Nissan Murano.2 He also claimed that Ms. ous real estate LLC’s,” and his income is derived from Julio had received distributions totaling $45,519.77, a “onetime annual real estate partnership distribu- although she “refused to account or acknowledge these tion.” He does not have any control over the amount payments which reduced the funds due to her in 2012.” of the annual distribution he receives; his brother, On March 29, 2013, Ms. Julio filed a supplemental Lawrence, the managing partner, “controls everything.” petition for contempt. She re- asserted Mr. Julio’s fail- On December 13, 2012, Mr. Julio received $658,966.38 ure to pay the December 31, 2012, installment payment, as his annual distribution. That amount represented and she added a failure by Mr. Julio to pay child sup- his income for the following twelve months. Mr. Julio port as ordered in the judgment of divorce. Mr. Julio continued to pay $15,000 per month in child support to again filed a motion to strike Ms. Julio’s supplemental Ms. Julio, and he paid other expenses for the parties’ petition for contempt, which the court denied. children. On April 12, 2013, Ms. Julio filed an amended and Regarding his financial statement, Mr. Julio’s coun- supplemental petition for contempt. In that petition, sel asked him whether he had access to the $30,824,239 Ms. Julio added an additional claim of contempt arising in stocks/investments. Mr. Julio responded that those from Mr. Julio’s failure to pay “the Marital Settlement items could “only be sold to family members by mar- Payment installment due on or before March 31, 2013 riage or by blood,” and he did not know who he “would ($400,000.00).” Ms. Julio again requested that the court sell it to and at what price.” He also stated that he find Mr. Julio in civil contempt for non-compliance with could not take loans against his interest. Mr. Julio tes- the judgment of divorce, enter a separate judgment for tified that he had sold some of his wine collection for the outstanding installment payments, and grant her an $300,000 to $350,000, and he had used the proceeds for award of attorney’s fees. “ongoing expenses.” On July 15, 2013, the court held a hearing on the As soon as Mr. Julio received his disbursement various petitions. In opening statement, counsel for letter in December 2012, he knew that he would not be

97 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law able to make the two installments due to Ms. Julio. He [c]ourt ordered sums of money, vis-a-vis, a did not have any equity in the home that he could lever- monetary award, is not subject to having a age because it was “maxed out.” He had some horses, judgment, a monetary judgment entered against but he did not try to sell them because they “don’t nec- them in a contempt hearing? Is that your posi- essarily have any value.” tion? Catherine Wagner, Mr. Julio’s sister and a member [MR. JULIO’S COUNSEL]: Well, I’m, let me just, of the Julio family business, and Mark Julio, Mr. Julio’s 15-207(B), Your Honor, says when a [c]ourt cousin and a partner in the Julio family business, both makes a finding of contempt, the [c]ourt shall testified for Mr. Julio. They stated that family members issue a written Order that specifies the sanction do not have the ability to sell any of the assets of the imposed and the [c]ourt shall order how the business to anyone outside of the family, and they have contempt may be . . . purged. no control over the annual distributions. At that point, the court again indicated that it did At the conclusion of the evidence and closing argu- not believe the court was foreclosed from entering a ment, the following occurred: monetary judgment in the case. Counsel for Mr. Julio [THE COURT]: Well, why isn’t she entitled to a continued to talk about the procedure for a contempt judgment? proceeding, including a requirement of a provision * * * regarding how the contempt may be purged. She stated Contempt aside, why isn’t she entitled to either that counsel for Ms. Julio could have filed for enforce- a million dollars or, on your best day, a mil- ment of judgment, but counsel decided to file for con- lion less $46 and whatever, why isn’t she enti- tempt, and the court “can only do what the contempt tled to the judgment? He has failed to pay that provisions provide.” which he has been, he promised to pay and Ms. Julio’s counsel argued that the court could was ordered to pay. I don’t think I’m foreclosed enter a money judgment, noting that Md. Code (2012 from granting a judgment in a contempt case. I Repl. Vol.) § 8-213 of the Family Law Article (“FL”) don’t think it has to be filed in ex contracto. states that an order may be enforced by the Maryland Counsel for Mr. Julio stated that, pursuant to Md. Rules, and the Petition for Contempt and amended Rule 15-207, the rule regarding constructive contempt, petitions asked the court to enter a separate judgment “the [c]ourt is allowed to pass an Order and then is in favor of Ms. Julio for the amounts due and owing. allowed to set sanctions which must be amenable to Counsel stated that the action was for “enforcement purge and they both have to be subject to what he is by way of order of contempt and ancillary relief of a able to do.” The following then occurred: Judgment Order of this [c]ourt.” With respect to the [THE COURT]: You keep . . . going over into issue of interest, Ms. Julio’s counsel understood Mr. the contempt issues. At the end of the day, Julio’s argument to be that any order should assess if you carry the day, vis-a-vis, his not paying interest at six percent “from now forward,” but counsel this and persuade me he’s not in contempt, it argued that the judgment of divorce “says that interest doesn’t make his obligation disappear that he runs from the date the amount was due, not some day has defaulted on by his own admission. in the future.” [MR. JULIO’S COUNSEL]: And what we suggest Following the hearing, Mr. Julio filed a post-trial with regard to that, Your Honor, is, today’s date memorandum, asserting that the evidence adduced will be the first time that there is a set sum. In at trial was insufficient to support a finding of con- other words, as long as it is liquidated, in this tempt under Md. Rules 15-206 and 15-207. Specifically, case, we believe the $46,000, plus the $20,000 he argued that, because Ms. Julio chose to pursue a Murano . . . should be deducted. But whatever contempt action, she was required to prove that the amount Your Honor comes up with, he has a amount due was certain and that Mr. Julio had the good faith argument that he should have been present ability to pay the amount due. He asserted that given credit for the $46,000. Your Honor will she did not meet her burden in that regard. He argued make a decision as to what amount is due at that the amount due was not certain because: (1) the this point. At this point, we believe that at this agreement stated that the funds due under Paragraph point six percent interest should accrue and 6 would be reduced by funds due from a trust, the cash then . . . the law requires in any enforcement value of which was uncertain; and (2) that the date of a judgment, to file an ex contracto action, that would trigger a contempt finding was uncertain ask that it be reduced to judgment. Instead. . because “the agreement itself provided for a late pay- . . [Ms. Julio’s counsel] filed for contempt and ment being anticipated, with an undisclosed amount of what happens in a contempt, which is really not interest to accrue from whatever amount was paid after meant for an ex contracto issue. . . . the dates set forth.” Mr. Julio further argued that enter- [THE COURT]: Are you stating as a matter of ing judgment of the amount owed was not an appropri- law, now listen carefully, that someone who ate penalty for a contempt finding unless the court set a files a Petition for Contempt for failing to pay purge condition that he could meet.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 98 On July 30, 2013, the court issued its opinion and which Husband refuses to act upon and which order. It addressed the issues raised in the contempt is clearly most painful to him, he now takes the petition, counter-petitions, and supplemental petitions, position that he can’t pay the obligations. To finding as follows, in relevant part: this [c]ourt he was ordered to pay [and] the [c] (1) Husband’s failure to make the required ourt believes he has had and has the ability to timely marital settlement payments as reflect- pay them and he is in contempt. ed in paragraph 6 of the Judgment of Absolute The court then rejected Mr. Julio’s argument that Divorce. The evidence is clear and uncontra- he was entitled to a credit on the amounts due based dicted that Husband was ordered to pay the on the cash surrender value of a life insurance policy. sum of $600,000 to Wife on or before December Because this finding is not challenged on appeal, we 31, 2012. He failed to do so. It is equally uncon- need not discuss this in any more detail. tradicted that Husband was ordered to pay the The court next considered Ms. Julio’s request for sum of $400,000 to Wife on or before March 31, a money judgment. After noting that it had found Mr. 2013. He failed to do so. Julio “in contempt for failing to pay the $600,000 and (2) Wife’s allegation that Husband is in $400,000 payments,” which “sums were clear, specific cotempt for his failure to pay the $1,000,000 and unquestionably, definite,” the court stated: in payments to Wife. Husband argues he is not Does this [c]ourt have the authority under in contempt because, as a result of a greatly the circumstances of this case to enter money reduced distribution from his individual inter- judgments in the amounts of the unpaid pay- est in the family business, he could not make ments with interest thereon? This [c]ourt cer- the ordered payments (court’s emphasis). tainly believes so. Wife has not sought incarcer- Wife’s response to Husband’s position is that ation. She seeks enforcement of the [c]ourt’s his own financial statements belie the very order by way of these judgments. This [c]ourt position he takes in this regard. This [c]ourt believes that [FL § 8-105] grants this power to has carefully reviewed Wife’s exhibit number the [c]ourt. Having found Husband in contempt 11 which is a previously prepared financial for failure to pay a definite sum and having had statement under oath signed by Husband in the ability to do so, this [c]ourt has the author- February 2013. Additionally this [c]ourt has ity to enter money judgments to enforce the reviewed Husband’s own exhibit number 2 parties’ agreement contained in the Judgment which is his recently prepared financial state- of Absolute Divorce. ment dated July 12, 2013, also under oath. Each obligation was due on a specific date. To this [c]ourt, the evidence is rather clear. Each obligation was clear and this [c]ourt is Although Husband previously indicated under not persuaded that interest should begin to oath an investment in the family business val- run on any other date but the due dates at the ued at more than $32,000,000, these funds are legal rate of interest. By separate judgments not readily available to him. Family members concurrent with this Opinion and Order, this have testified under oath that they have no con- [c]ourt will enter a judgment of $600,000 in trol or access to these assets. They cannot bor- favor of Wife against Husband nunc pro tunc row on them, pledge them or sell them. This [c] to December 31, 2012, at the legal rate of inter- ourt accepts Husband’s position in this specific est. Additionally this [c]ourt will enter a judg- regard on the sole issue of contempt. ment in the amount of $400,000 in favor of Wife However, Husband’s position otherwise, against Husband nunc pro tunc to March 31, i.e., that he did not and does not have assets 2013, at the legal rate of interest. available to him to discharge his ordered obli- Accordingly, the court ruled that Mr. Julio was in con- gations is completely unpersuasive. Husband tempt. It granted Ms. Julio $6,000 in attorney’s fees, and states, under oath, his ownership of a home it ordered “[j]udgments in the amount of $600,000 and with over $1,000,000 in equity ($3,350,000 $400,000 nunc pro tunc to the original due date shall be minus $2,276,411). Although Husband clearly entered and interest shall run at the legal rate.”3 recognizes this asset value, he has made no real On September 3, 2013, Mr. Julio filed a motion to attempt to realize that equity in order to pay alter or amend judgment and motion for new trial. He his ordered obligations. Additionally Husband listed five reasons to vacate the judgment: (1) Ms. Julio indicates a wine collection worth $350,000 as of failed to meet her burden of establishing that he had July 12, 2013; a 401(k) account with $258,653; the ability to pay; (2) the court’s findings regarding $100,000 worth of automobiles; jewelry valued his assets were factually erroneous because it did not at $40,000 and furniture at more than $121,000. include the liabilities for those assets; (3) the court was It is clear to this [c]ourt that since payment required to include a “purge provision,” pursuant to Md. of these obligations as ordered would require Rule 15-207(d)(2), that Mr. Julio could satisfy in order liquidation of some of these assets, a reality to remove the contempt sanctions and the contempt

99 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law finding;4 (4) the interest rate assessed by the court was Droney, 102 Md. App. at 683-84. An abuse of discretion inconsistent with the parties’ consent agreement, which lies where no reasonable person would share the view “implie[d] that the interest to be assessed would be the taken by the trial judge. In re Adoption/Guardianship rate occurring without a judgment being sought,” i.e., No. 3598, 347 Md. 295, 312 (1997). Accord King v. at a pre-judgment interest rate of 6%; and (5) the court State, 407 Md. 682, 697 (2009) (“‘The decision under should not have awarded attorney’s fees, as the parties’ consideration has to be well removed from any center “agreed remedy for any alleged failure in the timely mark imagined by the reviewing court and beyond the payment of the marital settlement” was pre-judgment fringe of what that court deems minimally accept- interest, and the award of attorney’s fees was an “addi- able.’”) (quoting North v. North, 102 Md. App. 1, 14 tional sanction” inconsistent with the “specific conse- (1994)). “Ordinarily, in a review of contempt proceed- quence” set forth by the parties for Mr. Julio’s failure to ings, this Court does not weigh the evidence; rather, we timely pay. merely assess its sufficiency.” Droney, 102 Md. App. at The court denied Mr. Julio’s requests. It stated: 684. Husband argues that the evidence was insufficient to persuade this [c]ourt to rule as Discussion the [c]ourt stated i.e., to grant the Wife the I. judgments indicated as enforcement of the Procedure for Contempt Determination Judgment of Absolute Divorce. This [c]ourt is not persuaded. This [c]ourt found Husband in Mr. Julio contends that the court erred when it contempt and that he had the ability to pay the “failed to adhere to the procedural requirements pre- sums ordered. To this [c]ourt, as indicated, he scribed . . . [in] civil contempt in family law actions.” had the ability to pay but failed to pay. He did Relying on Kemp v. Kemp, 287 Md. 165 (1980) and not comply. Husband further argues that the [c] Boucher v. Shomber, 65 Md. App. 470 (1985), Mr. Julio ourt was in error to date the judgments to the asserts that, before enforcing a divorce decree on a time that the performance was required and petition for contempt, a court must hold a separate the time of Husband’s breach. Husband takes proceeding to determine the amount that was pre- exception to backdating the judgments and to viously undetermined in the judgment of divorce. In ordering that legal interest at the normal legal this case, he argues, the undetermined amount in the rate operate from that date. The [c]ourt gave judgment of divorce “was the rate of interest which its reasons and its understanding of the law in would be applied to any late payment of a marital prop- its Opinion as to this issue. This [c]ourt is not erty installment.” He asserts that, because the “rate of persuaded that the ruling and the judgments interest the payment due would bear” was “left unde- of this [c]ourt should be altered or amended in termined” in the judgment of divorce, the “amount this regard. needed to comply with the agreement was unknown and unknowable.” Thus, he argues, without a deter- This appeal followed. mination of the interest rate, “the amount due lacked Standard Of Review the certainty required for an enforceable order.” Mr. “A civil contempt proceeding is intended to pre- Julio contends that the court was required, pursuant serve and enforce the rights of private parties to a to Kemp and Boucher, to “hold [a] hearing as to what suit and to compel obedience to orders and decrees interest rate applied and what amount was therefore primarily made to benefit such parties.” State v. Roll, due,” make a ruling, and allow him the opportunity to 267 Md. 714, 728 (1973). Accord Bahena v. Foster, pay. According to Mr. Julio, only after those steps were 164 Md. App. 275, 286 (2005). “The failure to obey a completed could the court make a finding of contempt, court order may precipitate the initiation of contempt and the court’s sanctioning of appellant before com- proceedings.” Marquis v. Marquis, 175 Md. App. 734, pleting those steps was error. 746 (2007). “The order must be sufficiently definite, Mr. Julio states that he has “no quarrel” with the certain, and specific in its terms so that the party may court’s “assertion that [it] had authority to issue a understand precisely what conduct the order requires.” money judgment,” but he argues that the court’s action Droney v. Droney, 102 Md. App. 672, 684 (1995). Accord in issuing the “money judgments at an arbitrary interest Mattingly v. Houston, 252 Md. 590, 593 (1969). The rate . . . at too early a stage,” and awarding attorney’s standard of proof in a civil contempt proceeding is the fees at the same time it “resolved the ambiguity in the preponderance of the evidence. Bahena, 164 Md. App. actual amount due, was a clear violation of the Kemp/ at 286. Boucher rule.” The decision to hold a party in contempt is vest- Ms. Julio disagrees. She asserts that, pursuant to ed in the trial court, and this Court will reverse such Kemp and Boucher, the installment payments at issue a decision only upon a showing that a finding of fact “were already determined, fixed and express in certain upon which the contempt was imposed was clear- and definite terms, both as to amount and timing” in ly erroneous or that the court abused its discretion. the judgment of divorce. Because Mr. Julio indisput- ably failed to make the payments, “as required by the

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 100 already existing judicial order prescribing [Mr. Julio’s] ment of a divorce decree,” Boucher, 65 Md. App. at 477, fixed and definite obligation . . . the trial court was the court’s divorce decree incorporated the separation entitled to, and appropriately did, find him to be in con- agreement of the parties. One of the provisions of the tempt.” She asserts that Mr. Julio’s argument “that the separation agreement provided that Mr. Kemp would process of the case in the circuit court was not proper, pay the “reasonable medical and dental expenses” for for lack of a separate proceeding re-stating [Mr. Julio’s] the parties’ minor children. Kemp, 287 Md. at 167. After already, and obviously, fixed and definite obligation, is controversy arose between the parties, Mrs. Kemp simply wrong,” and the court “followed precisely the sought reimbursement for her payment of the parties’ procedure prescribed in Kemp for a determination of son’s medical expenses following his psychiatric treat- contempt.” ment. Id. at 168. The court ordered reimbursement, With respect to Mr. Julio’s argument that the lan- and the parties appealed. Id. The Court of Appeals guage in the judgment of divorce regarding interest for explained: untimely installment payments created an ambiguity, Once the court decides to incorporate an agree- thereby preventing the court from finding him in con- ment between the parties as part of its decretal tempt until it first held an additional proceeding to relief, something which it does not necessarily determine the amount of the additional interest, Ms. have to do . . . the agreement is included within Julio makes two arguments. First, she argues that this the order and is enforceable as a valid provi- contention is not preserved for appeal. She directs sion of the decree. This does not mean, howev- us to Mr. Julio’s closing argument, which “irrefutably er, that the equity court may invariably utilize demonstrates” that Mr. Julio did not argue that the the full panoply of the enforcement powers “purportedly ambiguous interest rate” rendered his granted to it by [Md. Rule 2-648], or that those underlying payment obligation indefinite. Instead, Mr. that are available may always be used without Julio’s claim in the circuit court was that he was enti- further proceedings. For instance, because the tled to various credits against “the otherwise fixed provision requiring the payment of all “reason- and certain” installment payments. Thus, she argues, able medical and dental expenses” here is not because Mr. Julio did not argue in the circuit court that a decree to pay a specified sum the court could any ambiguity existed in pretrial interest rates, he is not, without more, utilize its contempt powers precluded from making that argument in this Court. in enforcing this provision. The equity court Second, Ms. Julio asserts that the “interest rate would first have to hold such further proceed- ambiguity” argument is without merit. She notes that ings as it deems appropriate to determine the she did not assert a claim of contempt as to non-pay- amount owing under this provision, then enter ment of interest, and because the court did not make an order to pay a specified amount of money, a finding of contempt in that regard, the court was not which if deemed an award for support, could at required to hold a separate hearing, as urged by Mr. that time be enforced by the contempt power Julio. upon a failure to pay. Initially, we agree with Ms. Julio that this issue is * * * not preserved for our review. “Ordinarily, the appel- [W]e note . . . that the circuit court’s contempt late court will not decide any . . . issue unless it plain- power was not available to it here . . . since . . . ly appears by the record to have been raised in or this power could not be exercised until the pay- decided by the trial court.” Md. Rule 8-131(a). Accord ment of a sum certain had been ordered. Leake v. Johnson, 204 Md. App. 387, 406 (2012). See Id. at 175-76 (internal citations omitted). also O’Leary v. Shipley, 313 Md. 189, 208 (1988) (“It is Here, by contrast, there was a decree to pay a manifestly unfair to reverse a trial judge on a ruling he specified sum; the divorce decree clearly provided was never allowed to make-on an issue that was never for installment payments of $600,000 and $400,000 on placed before him.”). certain dates. Because payment of a certain, specified Here, Mr. Julio did not argue below, as he does on sum had already been ordered by the court, there was appeal, that an undetermined and ambiguous interest no need, as Mr. Julio asserts, for the court to hold a rate rendered the amount due uncertain and required a motions hearing to determine the amount due before separate proceeding before the court could find him in finding Mr. Julio in contempt for failing to make those contempt. To the extent that he argued regarding cer- payments.5 tainty and definiteness of his obligation, it was related only to credits for distributions that he claimed had II. been received by Ms. Julio. Because the “interest rate Inability to Pay Defense ambiguity” argument was not raised below, it is not pre- Mr. Julio next contends that, in contempt cases, the served for this Court’s review. “inability to comply is a defense even if the inability to Even if the issue was preserved, we would find it to comply was willful.” Here, he asserts, the court erred be without merit. In Kemp, 287 Md. at 167, the “seminal in finding him in contempt when there was “no allega- case on an equity court’s proceedings in the enforce- tion nor evidence that [his] inability to comply [with

101 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law the judgment of divorce] was of his own choosing.” ment, which indicated that he had assets sufficient to According to Mr. Julio, the uncontradicted evidence satisfy his installment payment obligations.7 The record was that, from December 2012 through December 2013, supports the court’s finding in that regard, and there his income, which was “made up from the annual part- was no error by the court in finding that Mr. Julio had nership distribution,” was insufficient, after paying the ability to pay the amount agreed to by the parties his and the parties’ daughters’ living expenses, other and ordered by the court. contractual expenses, and taxes, to allow him to make the installment payments. He opines that the basis for III. the court’s determination that he had the ability to pay Purge Provision the installment payments “appears to be based on Ms. Mr. Julio’s final contention is that the court erred Julio’s allegation in closing argument that” he could in finding him in contempt without including a purge have borrowed the money to satisfy his obligation. He provision in its order. He notes that proceedings for contends, however, that the court could not require him contempt are governed by Md. Rule 15-207(d), which to borrow in order to do so. Thus, he argues, absent requires that a court making a finding of contempt evidence from which the court could find that he had specify in its order how the contempt may be purged. the ability to pay, the court’s finding of contempt was Here, however, “the [c]ourt included no purge provi- improper. sion,” but nonetheless, it found Mr. Julio in contempt Ms. Julio argues that, if Mr. Julio’s “inability to pay” and issued “sanctions arising from the contempt in the defense was properly before the court, the court had a form of two judgments to be entered nunc pro tunc at sufficient evidentiary basis to reject his argument. With the legal rate and an award of attorney’s fees of $6,000 respect to preservation, Ms. Julio asserts that Mr. Julio against” him. raised no such affirmative defense of “inability to pay” Ms. Julio makes several arguments in response. in his answer to her petition for contempt.6 On the mer- First, she argues that the court did not impose any its, Ms. Julio contends that the court fully considered sanction on Mr. Julio, and therefore, “no purge provi- all evidence relevant to Mr. Julio’s ability to pay and, sion is necessary or required.” Ms. Julio argues that the in its discretion, it properly rejected Mr. Julio’s argu- court’s entry of a money judgment was not a sanction ments. for contempt, but rather, it was an ancillary reme- The sanction in civil contempt actions is meant “to dy “authorized not by the contempt rule ([Md. Rule] coerce compliance with court orders for the benefit of 15-207) but by” FL § 8-105(a)(2), which authorizes a a private party or to issue ancillary orders for the pur- court to enforce its earlier order either by contempt pose of facilitating compliance or encouraging a greater or “as an independent contract not superseded by the degree of compliance.” Dodson v. Dodson, 380 Md. 438, divorce decree.” Ms. Julio asserts that the court made 448 (2004). In a civil contempt action, there cannot be clear that the money judgments were granted as a stat- a finding of contempt “unless the defendant has the utory enforcement remedy, not as a contempt sanction. present ability to comply with the earlier court order or Second, in response to Mr. Julio’s argument that, with the purging provision.” Id. at 450. The “inability to even in the absence of affirmative contempt sanctions, comply is a defense even if the inability to comply was he is entitled to a purge opportunity to avoid the label willful.” Howard County v. Pack Shack, Inc., 138 Md. of “contemnor,” Ms. Julio argues that the court’s order App. 720, 744 (2001), rev’d on other grounds, 371 Md. “affords him that opportunity.” She argues that 243 (2002). it is pellucid, from the face of the Order even Here, the court found that Mr. Julio’s “inability to without necessity of using the term “purge,” pay” defense was “completely unpersuasive.” In review- that all [a]ppellant need do to “purge” his con- ing that finding, we note that tempt, and thus avoid what he may contend [i]t is not our task to re-weigh the credibility of to be the ongoing “sanction” of the contemnor witnesses, resolve conflicts in the evidence, or label is to make payment of the two (2) fixed second-guess reasonable inferences drawn by and definite sums the non-payment of which the court, sitting as fact-finder. Rather, the evi- resulted in his wearing that label to begin with. dence and all inferences drawn therefrom must Thus, she asserts, because the court’s order permits Mr. be viewed in the light most favorable to . . . the Julio to avoid the label of contemnor, it is not defective prevailing party, and the sole issue is whether due to the lack of a purge provision. the evidence, so viewed, is sufficient to support Third, Ms. Julio argues that, even if the court’s the court’s finding. order was “technically defective for failure to expressly Gertz v. Md. Dep’t of Env’t, 199 Md. App. 413, 430, cert. include, labeled as such, a ‘purge provision,’” reversal is denied, 423 Md 451 (2011). not required. She asserts that the only relief necessary Reviewing the record in this case pursuant to the herein is a remand with instruction that the otherwise above standard, we agree with Ms. Julio that there was apparent, if implicit, purge condition be expressly spec- sufficient evidence to support the court’s finding. The ified.” (Emphasis omitted.). court properly looked to Mr. Julio’s own financial state- We agree with Ms. Julio that, notwithstanding the

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 102 finding of contempt, the court did not impose a sanc- BY APPELLANT. tion on Mr. Julio. The court made clear that it was entering money judgments “in the amount of the unpaid payments with interest thereon,” pursuant to FL § Concurring Opinion by Berger, J. 8-105, to “enforce the parties’ agreement contained in I concur with the Court’s judgment. I write sepa- the Judgment of Absolute Divorce.” FL § 8-105 pro- rately, however, to express my concern about the spe- vides: cious nature of some of the arguments and the unfortu- nate actions of both counsel in this proceeding. As the Power of court to enforce or modify provisions. trial judge aptly wrote in his opinion and order dated (a) Enforcement by power of contempt. July 30, 2013, this “sad and contentious matter” came — (1) The court may enforce by power of con- before the trial court for a hearing on July 16, 2013. tempt the provisions of a deed, agreement, Prior to that date, counsel for both parties directed sal- or settlement that are merged into a divorce vos to each other throughout the regrettable course of decree. the hearing below. (2) The court may enforce by power of The record demonstrates that counsel for Mr. contempt or as an independent contract not Julio developed a litigation strategy that could only be superseded by the divorce decree the provi- described as one of delay and attrition. Various motions sions of a deed, agreement, or settlement that to strike were filed by Mr. Julio that had — at best — a contain language that the deed, agreement, or rather thin and obscure basis for their filing. The trial settlement is incorporated but not merged into judge denied the motions to strike. a divorce decree. After Mr. Julio achieved a four-month delay in even The court also may award counsel fees pursuant to FL permitting this rather straight-forward action from pro- § 8-214. ceeding, the trial court appropriately bifurcated both Thus, it is clear that the entry of the money judg- Mr. Julio’s child support modification requests and the ments, interest, and attorney’s fees was not a sanction petition as related thereto. At the hearing below, Mr. for contempt, but rather, it was enforcement of the Julio acknowledged his failure to pay — timely or at all independent contract between the parties, it was prop- — the final two installments of the Marital Settlement 1 er, even in the absence of a purge provision. Payment as required by the Divorce Judgment. The same cannot be said for the finding of con- The trial judge concluded that: tempt itself. Md. Rule 15-207(d) applies to “all proceed- The evidence is clear and uncontradicted ings for contempt other than proceedings for construc- that Husband was ordered to pay the sum of tive civil contempt based on an alleged failure to pay $600,000 to Wife on or before December 31, spousal or child support.” Pursuant to Rule 15-207(d) 2012. He failed to do so. It is equally uncon- (2): “When a court or jury makes a finding of contempt, troverted that Husband was ordered to pay the court shall issue a written order that specifies the $400,000 to Wife on or before March 31, 2013. sanction imposed for the contempt. In the case of a He failed to do so. civil contempt, the order shall specify how the con- Mr. Julio raised several defenses below, all of tempt may be purged.” Md. Rule 15-207(d)(2) (emphasis which were completely rejected by the trial court. One added). defense that was completely without merit contended Here, the court did not issue a written order speci- that Mr. Julio did not have the ability to pay $1,000,000 fying how the contempt may be purged. There is noth- notwithstanding the contents of his financial statement, ing in the order, contrary to Ms. Julio’s contention, admitted into evidence, that completely eviscerated that makes clear that the finding of contempt will such a finding. be removed if Mr. Julio pays the money judgments. In short, the record reflects that Mr. Julio’s defens- Because this was a technical error, however, we shall es were completely without merit. As a result, the trial remand to the trial court to specify that the finding judge easily concluded that the evidence was rather of contempt may be purged by Mr. Julio paying what clear. He, therefore, entered a money judgment in the he has admitted he owes to Ms. Julio ($1,000,000 plus amount of the unreasonably withheld payments by Mr. interest) as ordered on page 9 of the trial court’s opin- Julio, plus interest. ion and order dated July 30, 2013. As indicated, that Notwithstanding Mr. Julio’s counsel’s seemingly dil- does not have any bearing on the separate entry of the atory intent, Ms. Julio’s counsel’s actions were equally money judgments or the award of interest and attor- unavailing. The record reflects procedural defects in ney’s fees, which we have found to be a proper exercise Ms. Julio’s pleadings, including attaching to her brief in of the court’s discretion. this Court documents that are not relevant to the issues in this appeal. JUDGMENTS AFFIRMED WITH I do not mean to suggest that there is not a need REMAND FOR FURTHER for zealous advocacy in connection with any case. This PROCEEDINGS CONSISTENT WITH case -- like many similar proceedings — carried a lot of THIS OPINION. COSTS TO BE PAID emotions and strong feelings. Nevertheless, this “sad 103 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law and contentious” case was exasperated by the unfortu- believes the docket entry to be incorrect. nate actions of both counsel in this proceeding. Those 3. Pursuant to Md. Code (2013 Repl. Vol.) § 11-107(a) of the actions were most unnecessary and, indeed, regretta- Courts & Judicial Proceedings Article, the “legal rate of inter- ble. Fortunately, the trial judge rose above counsel’s est on a judgment shall be at the rate of 10 percent per annum actions and handled the matter most professionally. on the amount of judgment.” 4 Mr. Julio listed the sanctions imposed as the $62,000 in interest owed, plus the $6,000 in attorney’s fees. Footnotes to Main Opinion 5. As Ms. Julio notes, the court did not find Mr. Julio in con- 1. Mr. Julio phrases the questions presented as follows: tempt for failure to pay interest on the amounts owed. I. Whether the trial court erred in ordering imme- 6. Ms. Julio does not direct us to, and we are unaware of, any diate sanctions upon finding appellant in civil con- authority in Maryland requiring “inability to pay” to be pled structive contempt and by failing to set a purge as an affirmative defense. See Md. Rule 2-323(g) (setting forth provision in violation of the mandatory provisions of affirmative defenses that must be pled). Moreover, Ms. Julio Md. Rule 15-207(d)(2). concedes that the court permitted Mr. Julio to pursue that defense at trial. Accordingly, we are not persuaded by Ms. II. Whether the trial court erred in finding appel- Julio’s preservation argument. lant in contempt when there was insufficient evi- 7. The court did note, however, that, to meet his obligations, dence that he had the ability to comply. Mr. Julio would have to liquidate some assets, “a reality III. Whether the trial court procedurally erred when which [he] refuses to act upon and which is clearly most pain- it failed to first issue an order resolving the agree- ful to him.” ment’s uncertainty in the interest rate to be applied to late marital property payments before holding appellant in contempt for failing to comply with this payment and simultaneously sanctioning appellant Footnote To Concurring Opinion with this newly announced term. 1. As the Majority makes clear, the final two installments, 2. The docket entries indicate that this petition was filed on which are the subject of this appeal, total $600,000.00 and March 29, 2013. Mr. Julio states in his brief, however, that he $400,000.00 respectively.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 104 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 105 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: alimony and child support: pendente lite on ity. Rule 8-114. Unofficial publication of an unre- remand ported opinion does not alter the force of that rule. See Nicholson v. Yamaha Motor Co., 80 Md. App. Kerrin S. Smith 695, 566 A.2d 135 (1989). Headnotes are not from the courts but are added by the editors. Page num- (f/k/a Kerrin S. Avedon) bers are from slip opinions.

v. Court for Anne Arundel County for further proceed- ings. Pursuant to Maryland Rule 8-604(a)(6), we shall Robert P. Avedon order, pendente lite, that, pending further order of No. 2069, September Term, 2012 the circuit court upon remand, the alimony award and child support award that we vacate as “final” judg- ments shall be given the force and effect of pendente On Motion For Reconsideration lite awards, and Husband shall continue to pay to Wife Argued Before: Meredith, Zarnoch, Eyler, James R., the amounts of alimony and child support last ordered (Ret’d, Specially Assigned), JJ. by the Circuit Court for Anne Arundel County. See Simonds v. Simonds, 165 Md. App. 591, 613 (2005). Opinion by Meredith, J. Filed: December 30, 2014. Unreported. Facts And Procedural History When the parties met in 1989, both were working. Husband worked for an insurance brokerage firm in After finding errors in the circuit court’s valuation Greenbelt, Maryland, and Wife worked as a regional of marital property and determination of Husband’s sales manager for a legislative-database company on yearly income, and vacating the awards and remand- ing the case, the Court of Special Appeals on motion Capitol Hill. On June 23, 1990, the parties were mar- for reconsideration specified that, pending the cir- ried in a religious ceremony in Atlanta, Georgia. Four cuit court’s order on remand, the alimony and child children were born of the marriage: a daughter born support awards that were vacated as “final” judg- December 31, 1991; a son born April 21, 1995; a second ments should be given the force and effect of pen- daughter born May 28, 1997; and a second son born dente lite awards, pursuant to Md. Rule 8-604(a)(6). July 31, 2000. Wife continued working until it was decided by the parties, after the birth of their second child in 1995, that Wife would stay home to raise the This is an appeal by Kerrin S. Smith (“Wife” or children. “appellant”) from a judgment entered by the Circuit In 1992, Husband founded an insurance brokerage Court for Anne Arundel County relative to her divorce firm called the Avedon Group, Ltd. Husband is the from Robert P. Avedon (“Husband” or “appellee”). president and sole decision-maker for his company. The Avedon Group sells insurance (primarily health Questions Presented insurance) to businesses. It provides customer ser- Appellant presents four questions for our review, vice to its clients by being a problem-solver between 1 which we have reordered and condensed as follows: the clients and the insurance agencies. Its revenues 1. Did the trial court err in excluding from mar- are derived from commissions paid by the insurance ital property a portion of the good will in companies. Husband testified that he is licensed to sell Husband’s insurance brokerage company? insurance in Georgia, Florida, Delaware, Pennsylvania, 2. Did the trial court commit clear error in Maryland, Virginia, the District of Columbia, Kansas, determining appellee’s yearly income to be and Illinois, but the bulk of his company’s business $265,000 as of the date of divorce? comes from Maryland. 3. Did the trial court abuse its discretion in As president of the Avedon Group, Husband alone declining to award Wife indefinite alimony? determined his own compensation. His tax returns and 4. Was the trial court’s award of $25,000 in attor- W-2s were entered into evidence, and will be discussed ney’s fees to Wife an abuse of discretion? in greater detail below. During the marriage, Husband’s Because we conclude that the trial court erred in income enabled the family to enjoy a very comfortable its valuation of the marital property and in its determi- lifestyle that regularly included dining out at expensive nation of Husband’s yearly income, we will vacate all restaurants, boating, vacations, and season tickets to the above awards and remand the case to the Circuit college and professional sporting events, including the

105 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Miami Dolphins, Navy football, and Maryland basket- Despite the Agreement’s disclaimer that neither ball. One witness described the family’s standard of liv- party was to be considered legally at fault for the deci- ing as “an enviable lifestyle.” Although Husband, in his sion to separate, there was much testimony at trial brief, characterizes the lifestyle enjoyed by the family regarding Husband’s temper and domineering, boorish when it was intact as “rather commonplace for a family behavior. Wife testified that she signed the Agreement with four children,” the evidence on this point support- under pressure from Husband, and that it was not her ed Wife’s contention that the couple’s lifestyle was not desire to separate in 2004. Husband testified that the so commonplace. Wife testified about “many trips to marriage was over long before the separation, and that New York City,” and said: it did not end because of the affair that he began in the We started going to see the Rockettes every summer of 2004, but Wife’s witnesses testified that Wife year. So, we’d get tickets to see the Rockettes. was “just destroyed” and “felt blindsided” when she We started doing Disney trips. Our first trip to learned Husband was being unfaithful. Disney World was like in October. We stayed The divorce was granted on the basis of a two-year at the All Star Resort Hotel, but [Husband] voluntary separation. In addition to granting Wife a didn’t like that because he felt like it was too divorce, the trial court also decided, in the course of rednecky a place to stay. . . . [W]e stayed at the identifying and valuing the marital property, that the Grand Floridian Hotel right there on the mono- insurance brokerage business in Husband’s name had rail. So, we did Disney, we did it in October, we a fair market value of $497,000.00, but $100,000.00 of did it again in December. We would go down that sum was non-marital “personal good will.” In other for a couple Decembers. We did Disney cruises. words, the court found that $397,000.00 was the value We did a three-day Disney cruise, we did a four- of the marital property portion of Husband’s business. day Disney cruise. On that one we took his par- Using that value for the marital portion of Husband’s ents and then we did a seven-day Disney cruise. insurance business, the court essentially equalized the And we always did excursions, we always had marital property holdings by granting a marital award the outside rooms with the balcony. of $178,082.00 to Wife. We started going to — [Husband] and I took a With respect to Wife’s claim for alimony, the court trip to France probably around our 10th wed- found, based upon testimony from Husband’s voca- ding anniversary. We started going to Casa De tional expert, that Wife “does have the ability . . . at Campo down in the Dominican Republic, which some point to be self-supporting” by earning a potential was — it’s an exclusive resort where people annual income of $40,000.00 to $47,000.00.2 The court like Gloria Estefan and Oscar De Larante [sic] awarded Wife five years of rehabilitative alimony in the have — . . . it was a very high end resort where amount of $3,500.00 per month. — we would go in the off season, you would During the trial, Wife attempted to persuade the rent a villa, which came with a maid and a court that Husband was grossly understating the butler. The only way to get around was by golf income he derived from his insurance business. Wife cart. [Husband] was very comfortable there argued that Husband regularly paid personal living because he could speak Spanish. We used to expenses with pretax dollars by having the compa- laugh and call him Hollywood because peo- ny pay for items that were not business expenses. ple would ask him for — they thought he was Husband admitted that, every year from 1992 to 2008, somebody special because we were getting he had underreported his income to the Internal massages all the time and he was tipping every- Revenue Service, candidly remarking that, if he was body and the kids loved it, they had a great reporting honestly, he would have owed more in taxes. time. The court-appointed business valuation expert tes- But, at home, all was not paradise for the tified that, in his view, the company had paid for Avedons. On October 8, 2004, the parties entered approximately $88,000 worth of “non-operating per- into a “Mediated Temporary Voluntary Separation sonal expenses” for Husband in 2009. Husband’s tax Agreement.” The Agreement provided that the par- returns reported his income to be: $372,899 in 2007; ties “both desire to avoid litigation concerning their $345,553 in 2008; $248,000 in 2009. At the time of trial decision to separate” and that they “agree that neither in early 2010, based upon his year-to-date paychecks, party is at fault legally for this decision to separate[.]” Husband projected that his income for 2010 would Husband moved from the marital home into a home the decline to $204,000. The court found that Husband’s parties owned in the Round Bay community in Severna annual income was $265,000. Park, while Wife and the children remained in the mari- Both sides incurred substantial legal bills in this tal home in Arnold. Husband paid all the expenses asso- case, with each side’s bills for legal fees and litigation ciated with both households, including all the activities expenses, at the time of trial, being in the neighbor- of the parties’ children. At trial, he indicated that he hood of $130,000. The court opined that the fees were had paid “for 100 percent of absolutely everything since “excessive on both sides of the table,” and that “[t] I left in 2004.” here’s no question Mr. Avedon is in a position where he

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 106 can make a contribution to [Wife’s] legal fees because of Avedon Group. Rosenthal was an indepen- some aspects of this case were clearly justified.” The dent and neutral evaluator with no stake in this court ordered Husband to contribute $25,000.00 toward litigation and this Court was persuaded by his Wife’s attorneys’ fees. On March 29, 2010, a judgment of reasoning and methodology for determining absolute divorce was docketed. the fair market value of Avedon Group to be Wife timely pursued an in banc appeal to a three- $497,000. . . . Relying on the conclusion of the judge panel. The record reflects that the parties sub- court-appointed expert as to the fair market mitted memoranda, and then argued their respective value of the business, this Court finds that the positions to the panel on August 3, 2011. On June 28, fair market value of Avedon Group is $497,000 2012, the panel vacated the awards as to marital prop- . . . . erty, counsel fees, alimony, and child support, and This finding was well-supported by the evidence, remanded the case to the trial court “so that it may and was not clearly erroneous. But the trial court reconsider those awards, after receiving any additional declined to include the full fair market value of the testimony and/or argument it deems appropriate.” (The company in its assessment of marital property held trial court’s award of child support was not appealed to by Husband. The court found that part of the value of the in banc panel, but it was vacated nonetheless when Avedon Group was the panel determined that the trial court needed to a personal goodwill component based on the reconsider the parties’ marital property and Husband’s fact that the [Husband] was the sole owner of income. Child support is not an issue raised in the pres- the company, the business carried his name, ent appeal.) the company conducted minimal advertising The trial judge conducted a remand hearing on and marketing, the [Husband] held close rela- September 19, 2012. It took no new testimony or evi- tionships with a significant portion of the client dence. On October 26, 2012, the trial court issued an base and insurance companies, the [Husband] opinion and order that, in all material respects, reas- generated a significant amount of business, and serted its original awards. Wife appealed from that the [Husband’s] personal efforts were a large judgment.3 aspect of the company. As a result of its conclusion that there was personal Discussion goodwill, the court found that approximately 20% of the 1. Value of Avedon Group, Ltd. and Husband’s fair market value of the company was non-marital prop- Professional Good Will erty, stating: [T]he fair market value of Avedon Group, LTD, When the court identified and valued the marital is $497,000 and $100,000 of the fair market property, it concluded that the value of marital assets value constitutes the personal goodwill compo- in Husband’s sole name was $445,043, and the value nent, which is non-marital property. This Court of marital assets in Wife’s sole name was $87,401. The further finds that the marital property portion difference between these two numbers is $357,642. The of Avedon Group, LTD, is $397,000.00. court granted Wife a marital award of roughly half this Having found that the “fair market value” of this difference, in the amount of $178,082. (The amount company was $497,000, it was error for the court to awarded — $178,082 — is 49.8% of the difference.) exclude $100,000 of that amount from the marital prop- The largest component of the marital property erty assessment. When we apply the plain statutory held in Husband’s sole name was the Avedon Group. definition of marital property to the facts of this case, it Three business valuation experts testified at trial. The is clear that the Avedon Company was, in its entirety, a court-appointed expert, Robert Rosenthal, expressed marital asset, and its full fair market value should have the opinion that the fair market value of the company been considered marital property. Marital property is was $497,000. A business valuation expert called by defined in FL § 8-201(e) as follows: Wife, Mark Morris, did not take issue with the meth- (e) Marital property. — (1) “Marital prop- odology employed by the court-appointed expert, but erty” means the property, however titled, Wife’s expert asserted that the market value would acquired by 1 or both parties during the mar- have been higher — $811,000 — if Husband had not riage. paid so many personal expenses with company funds. An accountant called by Husband to testify about busi- (2) “Marital property” includes any ness valuation, Carter Heim, did not quarrel with the interest in real property held by the parties court-appointed expert’s opinion as to the fair mar- as tenants by the entirety unless the real ket value of the company. The court found that the property is excluded by valid agreement. fair market value of the Avedon Group was $497,000, (3) Except as provided in paragraph (2) explaining: of this subsection, “marital property” does After reviewing the reports and testimony not include property: of all three (3) experts, this Court accepted (i) acquired before marriage; Rosenthal’s opinion as to the fair market value (ii) acquired by inheritance or gift

107 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law from a third party; of the company was excludable from the definition of (iii) excluded by valid agreement; marital property pursuant to any of the exceptions set or forth in FL § 8-203(e)(3). (iv) directly traceable to any of Nevertheless, Husband argued that the value of any these sources. personal goodwill he had built up while owning and In Conteh v. Conteh, 392 Md. 436, 443 (2006), the managing the company should be considered non-mar- Court of Appeals described the statutory definition of ital property even though it was a marketable asset marital property as using “sweeping language” embrac- he had acquired during the marriage. Husband bases ing all property acquired during marriage unless spe- this argument on Prahinski v. Prahinski, 321 Md. cifically excluded. The Conteh Court noted, id., that, 227 (1990), and cases that have applied the holding of in Deering v. Deering, 292 Md. 115, 125 (1981), it had Prahinski. In Prahinski, the Court of Appeals held similarly that, because attorneys are not permitted to sell clients, relied upon “the sweeping language of” the personal goodwill in the law practice of an attorney Maryland’s marital property statute, under who conducted business as a solo practitioner was not which “‘marital property’ is defined as ‘all prop- a marketable asset, and therefore not marital property. erty, however titled, acquired by either or both The Court explained, id. at 239-41: spouses during the marriage.’” (Deering, 292 [W]e are of the opinion that the goodwill of a Md. at 125, 437 A.2d at 889, emphasis in origi- solo law practice is personal to the individual nal). Judge Digges pointed out that the “term practitioner. Goodwill in such circumstances property” is “‘of wide and rather comprehen- is not severable from the reputation of the sole sive signification,’” ibid., quoting Diffendall v. practitioner regardless of the contributions Diffendall, 239 Md. 32, 36, 209 A.2d 914, 915 made to the practice by the spouse or employ- (1965). ees. In order for goodwill to be marital proper- In holding that the pension benefits at issue in Conteh ty, it must be an asset having a separate value were marital property, the Court further commented from the reputation of the practitioner. on the statutory definition, 392 Md. at 449-50 (footnote We are not convinced that the goodwill of omitted): a solo law practice can be separated from the It is clear from the statutory language and reputation of the attorney. the cases that property acquired by either * * * spouse during the marriage, and not within a Because the instant case involves the prac- statutory exception, constitutes marital prop- tice of law, special considerations arise which erty regardless of which spouse’s “effort” was might not be present in other professional prac- directly responsible for the acquisition of the tices. . . . It is clear that an attorney, as distin- specific item of property. The “effort expended guished from other professionals, may not cov- by each party in accumulating the marital prop- enant to abstain from the practice of law, and erty” is expressly made one of the factors to be therefore, may not sell his or her goodwill. . . . considered in making an award or transferring Other professions do not have the prohibi- an interest in the property; it is not a factor in tion against the sale of goodwill. . . . determining initially what is marital property. Since a lawyer’s goodwill is not a saleable See § 8-205(b)(8) of the Family Law Article. asset, it has no commercial value. The methods If particular property directly acquired by the for valuing the marketable goodwill of a pro- efforts of only one spouse were not marital fession or business would not be applicable to property, one of the principal purposes of the an attorney’s nonmarketable goodwill. The fact marital property statute would be defeated. that a lawyer’s goodwill cannot be sold by the A chief reason for the statute was “giving rec- lawyer is another factor in our determination ognition to the non-monetary contribution of that it is not marital property. one spouse with regard to the acquisition of property by either or both spouses during the The specific holding of Prahinski — that the good- marriage.” Alston v. Alston, 331 Md. 496, 506, will of a lawyer who is a solo practitioner is not a 629 A.2d 70, 71 (1993). See also, e.g., Harper v. marketable asset and not marital property — does not Harper, 294 Md. 54, 61-64, 448 A.2d 916, 919- support the trial court’s conclusion that a portion of 921 (1982). the fair market value of the Avedon Group should be considered non-marital property. Prior to its ruling in It is clear from the evidence in this case that the Prahinski, the Court of Appeals had previously held in Avedon Group, although titled solely in the name of Archer v. Archer, 303 Md. 347, 357 (1985), that, because Husband, was wholly acquired during the marriage. a medical degree and license was a personal asset that The company was founded by Husband two years after could not be sold, those assets were not marital prop- the parties were married, and after the birth of their erty. But the Court of Appeals has never extended the first daughter. There was no evidence that any portion holding of Prahinski to exclude from marital property

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 108 marketable goodwill of other business entities acquired remanded the case to allow this Court to offer during marriage. an explanation as to how it factored in the This Court has interpreted the exclusion recog- Defendant’s business expenses, under-report- nized in Prahinski to apply the somewhat analogous ed income and other relevant evidence, when situation of a doctor who is the sole professional in his arriving at its finding as to the [Husband’s] practice. Skrabak v. Skrabak, 108 Md. App. 633, 649-50 annual income. At the remand hearing, [Wife] (1996) (insufficient evidence that there was marketable argued that an annual income in the amount of goodwill other than the anesthesiologist’s personal $338,000.00 should be attributed to [Husband] reputation); Strauss v. Strauss, 101 Md. App. 490, on the basis that this Court should have aver- (1994) (oral surgeon who was “the only board-certified aged the [Husband’s] reported incomes for specialist in oral and maxillofacial surgery in Western 2007, 2008, and 2009, and attribute an addi- Maryland”). But cf. Hollander v. Hollander, 89 Md. tional amount to compensate for [Husband’s] App. 156, 169 (1991) (“[W]e conclude that a solo dental underreporting. practice including its goodwill value is marital property In arriving at its determination, this Court that should be considered when granting a monetary relied on the [Husband’s] W- 2s and took note award.”). of the significant decrease in [Husband’s] The Hollander Court explained: “Because the reported income for the years 2009 and 2010. value of goodwill can be realized by sale, it would not This Court reviewed the W-2 reports for 2008, be inequitable to require the professional to pay the 2009, and 2010, and factored in the signifi- spouse a share of this asset.” Id. at 167. Indeed, in the cant decrease in income for those respective present case, unlike the lawyer in Prahinski, Husband years: [Husband’s] reported income in 2008 was could, if he chose to do so, sell the personal goodwill $326,000.00 and in 2009 reduced to $248,000.00. he has built up during his ownership of Avedon Group. As [the court-appointed expert, Mr. Rosenthal] That was the clear conclusion of the court-appointed testified, the economy has experienced a signif- business valuation expert whose opinion as to the fair icant downturn, and this Court, in determining market value of the company was adopted by the court. the [Husband’s] income, could not ignore this Given the “sweeping language” used by the General fact. Further, the Plaintiff’s [sic] own expert Assembly to define marital property, it was error for witness, Carter Heim, even testified that an the trial court to exclude a portion of the fair market executive president, like the [Husband] of value of Avedon Group. such a company as Avedon Group with reve- As a consequence of this error, we must vacate and nue in the amount of $1.135 million per year, remand for reconsideration not only the marital award, would earn approximately $177,134.00 in annu- but also the rulings regarding alimony and attorneys al income.[4] This figure is significantly lower fees. Turner v. Turner, 147 Md. App. 350, 400 (2002) than what [Wife] proffers is [Husband’s] annual (“the factors underlying alimony, a monetary award, income. This Court heard testimony that the and counsel fees are so interrelated that, when a trial projected gross income of Avedon Group, even court considers a claim for any one of them, it must during the economic downturn, amounted to weigh the award of any other”). For guidance of the well over one million dollars per year. court, we shall comment on the parties’ arguments As for the allegations of underreporting, regarding those other issues. Pursuant to Maryland this Court reiterated in its oral opinion on Rule 8-604(a)(6), we shall order, pendente lite, that, March 19, 2010 and at the remand hearing that pending further order of the circuit court upon remand, there was no evidence to substantiate [Wife’s] the alimony award and child support award that we allegation of underreporting. [Wife] continues vacate as “final” judgments shall be given the force to emphasize [Husband’s] underreporting of and effect of pendente lite awards, and Husband shall income and the fact that [t]his Court failed to continue to pay to Wife the amounts of alimony and properly factor in the non-business expenses child support last ordered by the Circuit Court for Anne that [Husband] attributed as business expenses. Arundel County. See Simonds, supra, 165 Md. App. at A forensic accounting analysis was not ordered 613. or requested by either of the parties, and there 2. Husband’s Annual Income was no independent auditing of the business, In its post-remand opinion, the trial court therefore [Wife] could not substantiate a claim explained its reasoning regarding its determination that that certain expenditures marked as business Husband’s annual income was $265,000 as follows: expenditures were in actuality personal expen- In its decision rendered from the bench ditures. Further, [Wife] made allegations of on March 19, 2010, and the Judgment of underreporting, but provided no actual evi- Absolute Divorce, docketed on March 29, 2010, dence to substantiate the actual amount of unreported income that should be attributed to this Court concluded that [Husband’s] annual [5] income equaled $265,000.00. The in banc panel [Husband]. For this Court to make a finding

109 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law as to the value of unreported income without compensation (who assumed for purposes of his val- any forensic accounting analysis or testimo- uation that the company had paid for approximately ny as to such an amount, would be a matter $88,000 worth of “non-operating personal expenses” of pure guesswork, which this Court refus- for Husband in 2009).6 In the “conclusion” paragraph es to engage in. However, because this Court quoted above, the court stated: “In conclusion, this believed that underreporting existed in this Court relied on the most recent W-2 of [Husband] case, this Court assessed [Husband’s] income from 2009, which reported [Husband’s] income for above his most recent W-2 to account for the 2009 as $248,000.00.” The court also indicated that it unreported income. “believed that underreporting existed in this case.” In making a determination as to Husband admitted receiving benefits worth $50,169 [Husband’s] income, this Court further exam- more than was reflected in his 2009 W-2. Mr. Rosenthal ined [Husband’s] credit card expenditures from had used the figure of $88,000. Adding either of these the single account that [Husband] utilized to numbers to the amount shown on the 2009 W-2 would pay all of his expenses. This Court noted that in indicate Husband’s actual income was well in excess 2007 and 2008, [Husband’s] credit card expen- of $265,000. Because the court’s finding regarding ditures were well over $160,000.00 per year. Husband’s income appears to be the product of these However, in 2009, [Husband’s] annual cred- erroneous supporting findings, we will vacate the find- it card expenditures significantly reduced to ing that Husband’s income is $265,000. $119,390.00. This evidence has some probative 3. Indefinite Alimony value, indicating that [Husband] did not have as much expendable income at his disposal, as Wife asserts that the court erred in finding that further reflected in his W-2 for 2009. there would be no unconscionable disparity in the par- ties’ standards of living after the divorce. Although, for In conclusion, this Court relied on the the reasons stated in the preceding section, the court most recent W-2 of [Husband] from 2009, must revisit Husband’s income on remand, even if the which reported [Husband’s] income for 2009 correct annual amount was $265,000, we would find as $248,000.00. Factoring in the downturn clear error in the court’s conclusion that there will be in the economy, the lost revenue in Avedon no unconscionable disparity in the parties’ standards Group from 2008 to 2009, and the decrease of living. If we use the court’s figure of $265,000 as in [Husband’s] credit card expenditures, this Husband’s total annual income, and the theoretical Court, in its discretion, believed that the most income of $40,000 the court found to be a possibility recent W-2 was reflective of [Husband’s] for Wife to achieve, we see that Wife’s income would actual income. This Court further assessed be just 15% of Husband’s. Although our case law makes [Husband’s] income above the reported income it clear that gross disparity in income, standing alone, for 2009 to account for the alleged underre- does not establish the unconscionable disparity in stan- porting. In its discretion, this Court attributed dards of living required to justify a award of indefinite $265,000 to [Husband’s] annual income. After alimony pursuant to FL § 11-106(c)(2), there are no review of its finding, the exhibits, financial other factors present in this case that would support information presented at trial, the testimony, a conclusion that such a gross disparity in financial and arguments advanced at the remand hear- resources was not unconscionable. As the Court of ing, this Court finds that attributing an annual Appeals observed in Boemio v. Boemio, 414 Md. 118, income of $265,000.00 to [Husband] was proper 144 (2010), courts and shall remain in effect. must be pragmatic in recognizing that a dispari- Because the standard of review for a factual find- ty in income is necessarily going to play a high- ing such as a party’s income requires deference to ly significant role in making a finding that ‘the the trial court’s weighing of the evidence, we would respective standards of living of the parties will have concluded that the finding regarding Husband’s be unconscionably disparate.’ FL § 11-106(c). income was not clearly erroneous if the court’s expla- In this context, ‘standards of living’ means how nation did not include several factual statements that, well the respective parties can live based on standing alone, are clearly erroneous. As the above their respective financial means. excerpt reflects, the court referred to relying in part At the time of trial, Wife was about to turn fifty on Husband’s 2010 W-2 (although the 2010 W-2 was years of age, was working part-time in retail, and had not in evidence); and the court stated that there was last held a full-time job in 1995, at which point she “no actual evidence to substantiate the actual amount and Husband agreed that it was in their mutual inter- of unreported income that should be attributed to est for her to become a full-time stay-at-home mom. [Husband]” notwithstanding the concession of Husband She removed herself from the business world to be and his counsel as to certain amounts (e.g., $50,169 in a home-maker and raise the couple’s four children. 2009) and the testimony of the court-appointed valua- Although Wife had been gainfully employed a couple of tion expert as to even greater amounts of unreported decades ago, Husband’s vocational expert testified that

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 110 there “may be some kinds of computer routines that ing the unconscionable disparity found by the she is not familiar with at this point in time,” which is court to exist. a reasonable concern. The court recognized that it was The Court of Appeals made the following observations unlikely Wife would ever be a big wage-earner, but con- about awards of indefinite alimony in Solomon, id. at cluded that she should be able to become self-support- 198-99: ing and earn $40,000 per year. There are very few reported Maryland As we stated in Simonds v. Simonds, 165 Md. App. cases in which a challenge to the adequacy of 591, 611-12 (2005), the court considering a request for the amount of an indefinite alimony award was alimony “cannot merely ‘do the math.’” We indicated mounted. Usually the attack has been on the in that case, there are certainly situations in which it threshold determination of whether an uncon- would not support a finding of unconscionable dispar- scionable disparity existed at all. There are ity for a divorcing spouse to have an earning capacity several cases in which Maryland appel- of over six times greater than the other spouse. Their late courts found unconscionable dispar- post-divorce standards of living might not be uncon- ity based on the relative percentage the scionably disparate if the marriage was brief and the dependent spouse’s income was of the other post-divorce living standards were comparable to their spouse’s income. See Tracey, 328 Md. at 393, pre-marriage standards of living, or if the spouse with 614 A.2d at 597 (28 percent); Caldwell v. limited earning capacity was independently wealthy or Caldwell, 103 Md.App. 452, 464, 653 A.2d 994, likely to receive a substantial inheritance or win the 999 (1995) (43 percent); Blaine v. Blaine, lottery. The standards of living might not be uncon- 97 Md.App. 689, 708, 632 A.2d 191, 201 (1993), scionably disparate if the marital award was so large aff’d on other grounds, 336 Md. 49, 646 A.2d that the investment income from that and other assets 413 (1994) (23 percent); Rock v. Rock, 86 permitted the spouse with lesser earning capacity to Md.App. 598, 613, 587 A.2d 1133, 1140 (1991) maintain a lifestyle that was not hugely different from (20-30 percent); Broseus v. Broseus, 82 the higher income spouse. And the disparity might not Md.App. 183, 186, 570 A.2d 874, 880 (1990) be unconscionable if the spouse with limited earning (46 percent); Bricker v. Bricker, 78 Md.App. capacity had not contributed to the career development 570, 577, 554 A.2d 444, 447 (1989) (35 per- and earning capacity of the high-earning spouse by pro- cent); Benkin v. Benkin, 71 Md.App. 191, viding family support and raising the couple’s children. 199, 524 A.2d 789, 793 (1987) (16 percent); But there was no evidence in this case that any of these Zorich v. Zorich, 63 Md.App. 710, 717, 493 A.2d circumstances will moderate the gross disparity in dis- 1096, 1099 (1985) (20 percent); Kennedy v. posable income that will be available to Husband and Kennedy, 55 Md.App. 299, 307, 462 A.2d 1208, Wife in this case. 1214 (1983) (33 percent). Although we do As Judge Theodore Bloom wrote for this Court in not adopt a standard that unconscionable dis- Rogers v. Rogers, 80 Md. App. 575, 591 (1989): parity exists based on a particular percentage On the basis of the record in this case, how- comparison of gross or net income, the relative ever, we see no logical reason for denying ali- percentages in these cases offer some guidance mony. Neither party was found to be at fault; us [sic] here in assessing whether the amount the divorce was granted on the non-culpable of the indefinite alimony award alleviated ade- grounds of two years separation. It would quately the unconscionably disparate situation seem, therefore, that a gross disparity in found to exist in the present case. We hasten to income, which ordinarily translates into a gross note, however, that each case must be evaluat- disparity in standards of living, would be an ed on its facts and not on some fixed minimum unconscionable disparity. or universal standard. See also Holston v. Holston, 58 Md. App. 308, 324 Turner v. Turner, 147 Md.App. 350, 809 (1984) (“chancellor’s failure to award indefinite alimo- A.2d 18 (2002), appears to be the only reported ny was a clear abuse of his discretion”). Maryland case where the amount of an indefi- In Solomon v. Solomon, 383 Md. 176 (2004), the nite alimony award established by a trial court Court of Appeals affirmed this Court’s remand of a case was reversed for inadequacy. In Turner, the even though the trial court had made an award of ali- Court of Special Appeals found the amount mony. The Court held that, despite the alimony income, of alimony awarded by the Circuit Court to there would still be an unconscionable disparity in the be insufficient to alleviate the harsh disparity standards of living, stating, id. at 197: between the parties’ incomes and standards of We agree with Mrs. Solomon and the Court of living. The intermediate appellate court based Special Appeals that the Circuit Court abused its conclusion on a numerical comparison its discretion in the amount of indefinite ali- of the parties’ post-divorce, annual incomes. mony awarded. On this record, that amount It calculated Mrs. Turner’s yearly income, does not achieve the required result of eliminat- including alimony and imputed earnings, to

111 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law be approximately $59,000, and calculated Mr. at 146. In remanding the case yet again, we noted that Turner’s yearly income, less alimony payments, the case dealt with “stale economic circumstances,” to be at least $151,000. Id. at 392, 400, 809 A.2d id. at 176, and that the court would need to refresh and at 43, 47. Including alimony, Mrs. Turner’s update its 1998 numbers to reflect the “parties’ econom- yearly income would have been approxi- ic circumstances at the time the award is made”: mately 35 percent of Mr. Turner’s income. We also hold that the trial court must keep in The court found the substantial gap in mind all eleven of the [FL] section 8-205(b) the Turners’ incomes and standards of factors upon remand. The modification of an living to be substantial and unconsciona- original monetary award on remand is still an ble, vacated the award, and remanded the “award,” triggering consideration of the section issue to the trial court for reconsideration. 8-205(b) factors. We find the analytical approach employed It is logical that a trial court be required to in Turner to be persuasive in the present reconsider the section 8-205(b) factors, even in case. a case such as this, where it essentially is revis- (Emphasis added.) ing an earlier monetary award. The weight that Approving the award of indefinite alimony in a court gives to the section 8-205(b) factors, Boemio, the Court of Appeals stated, 414 Md. at 145: and the size and nature of its ultimate award, The Circuit Court’s decision to find that may depend on the amount of marital property the disparity in standards of living was uncon- to be distributed. scionable was consistent with this settled law. When the extent of the marital property has Currently, Boemio [husband] earns four changed due to an appellate decision, the trial times what Seixas [wife] earns, and Judge court should rethink whether its original meth- Mason found that Seixas was unlikely to be od of allocation is still “equitable” in light of the capable of earning substantially more than that. new circumstances. Further, the court must As shown above, Maryland cases have awarded carefully consider whether there have been any indefinite alimony where the income disparity other changes in circumstance since its orig- has been considerably less drastic. See Digges inal award that may have caused the equities v. Digges, 126 Md.App. 361, 389-90, 730 A.2d to shift, justifying a different allocation of the 202, 218-19 (1999) (discussing numerous cases marital property. where indefinite alimony was awarded when Id. at 176-77 (footnote omitted). the parties seeking alimony earned less than half of the other spouses’ incomes). 4. Attorneys’ Fees (Emphasis added.) Similarly, the court must re-examine the attorney’s Although the trial judge in this case stated that “no fees issue. The parties’ legal bills were roughly the evidence was presented to substantiate a finding that same: $130,000 for each side. But the trial court here the respective standards of living of the parties will be was particularly critical of the fees charged by Wife’s unconscionably disparate,” there was ample testimony attorney, even though they were comparable in amount about Husband’s expensive tastes and ability to use to those charged by Husband’s legal team. In its oral Avedon Group’s financial resources to fund high-end opinion, the court stated, “I just felt based on my expe- trips, dining, vacations, sporting events, boats and cars. rience practicing law 28 1/2 years that the trial prepa- There was no reason to suspect he will not be able to ration in this case was excessive on both sides of the maintain such a lifestyle. On the other hand, if the court table.” Even though the court stated the trial prepara- is correct that Wife will be able to earn $40,000 per tion was excessive on both sides, the court commented year, there is no rational reason to believe that her life- in its remand opinion that it “was extremely troubled style will include any such luxury amenities. by the amount of the [Wife’s] attorney’s fees.” The The court will have a further opportunity to re-ex- award covered less than one- fifth of the amounts billed amine this issue on remand, and with four years having by Wife’s attorneys. passed since the trial in this case, the parties will have Although it is true that courts have wide discretion the right to present evidence of up-to-date financial in deciding whether or not to award attorneys’ fees, information. Fuge v. Fuge, 146 Md. App. 142 (2002). In discretion cannot be exercised in an arbitrary manner. Fuge, we examined a monetary award made in 1998, Coviello v. Coviello,. 91 Md. App. 638, 658 (1992). We at the time of the parties’ divorce. Both parties filed found such an abuse of discretion in Wassif v. Wassif, appeals following the 1998 divorce decree, and the 77 Md. App. 750 (1989), where a trial court declined circuit court looked at various issues in the case three to award attorneys’ fees even in the face of uncon- times on remand. In 2001, on its third remand, the cir- scionably disparate circumstances. We reversed the cuit court adjusted the 1998 monetary award, but, in circuit court’s finding that Mrs. Wassif — who was doing so, “it failed to reevaluate the parties’ economic unemployed, had been out of the workforce for a long circumstances in 2001,” which, we held, was error. Id. period of time, was not at fault for the breakup of the

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 112 marriage, and incurred the legal bills because of her FURTHER ORDER OF THE CIRCUIT COURT husband’s conduct — was not entitled to attorneys’ UPON REMAND, APPELLEE SHALL CONTINUE fees. We noted: TO PAY TO APPELLANT THE AMOUNTS OF Just because the marital assets which were ALIMONY AND CHILD SUPPORT LAST owned by the parties at the time of the divorce ORDERED BY THE CIRCUIT COURT FOR ANNE were divided equally hardly means that the ARUNDEL COUNTY. Wife is in an equal position to pay (or, for COSTS TO BE PAID BY APPELLEE. that matter, should have been required to 1. Appellant’s questions presented, verbatim, are: pay) her attorneys’ fees and other costs of 1. Over the course of the first fifteen years of the divorce proceeding, which amounted to their nearly twenty[-] year marriage, Ms. Smith left approximately $35,000. The income generated the workplace to assume the role of a “stay[-] at[-] from the monetary award of $83,976.50 (pay- home mother” for the parties’ four children, while able in installments of $2,709.66 per month) is Mr. Avedon pursued his career as the sole owner, not enough to pay off her attorneys’ fees and President, and financial decision maker for his com- other expenses of this litigation. Indeed, these pany, enabling him to earn hundreds of thousands of dollars annually. The trial court imputed to Mr. fees and costs would exhaust all the principal Avedon an income of $265,000.00 per year and fur- she has received to date. The $500 per week ther held that Ms. Smith — returning to the work- alimony, furthermore, is meant for her ordi- force as a retail sales clerk, at fifty years of age, nary living expenses. The expenses which the after a fifteen[-] year hiatus — could in theory earn Wife incurred for a private investigator were $40,000.00 per year. Assuming for the moment that occasioned by the Husband’s adultery. The these numbers are valid, Ms. Smith’s hypothetical expenses which she incurred for an accoun- income would be approximately 13% of Mr. Avedon’s tant were necessary because of the Husband’s actual income. In denying Ms. Smith’s request for substantial income and because she was seek- indefinite alimony, the trial court dismissed these ing alimony and child support. In view of all glaring statistical disparities, while apparently con- cluding that a “down economy” might cause a fur- of these facts and including the evidence that ther, future reduction in the parties’ respective life- the Husband paid for his attorneys’ fees out of styles. Was the trial court’s decision to deny marital assets, the Wife is entitled to an award Ms. Smith indefinite alimony an inequitable abuse of of suit money and a substantial portion of her discretion? attorneys’ fees that the court finds reasonable 2. Mr. Avedon’s income is derived from an insur- and necessary. We leave the actual amount in ance company of which he is the sole owner, the discretion of the trial court. President, and decision[-]maker — and in that role Id. at 765. he reported annual incomes in the nine years prior As in Wassif, the record here makes clear that to trial ranging from approximately $248,000.00 to Wife is in an distinctly inferior financial position as $885,000.00. From 2007-2010, Mr. Avedon’s reported compared to Husband, and that her future earning annual income averaged $322,150.66. That is what potential is a small fraction of Husband’s. The record he reported — but the fact that he intentionally makes plain that, even if there was, in the court’s view, underreported his income throughout that period was confirmed by Mr. Avedon’s own testimony, excessive litigation in this case, Wife’s legal expenses further substantiated by the findings of a court-ap- were driven in large part by Husband’s litigation pos- pointed expert accountant, and the admissions of ture. Husband here controlled the purse strings, and Mr. Avedon’s own counsel in this case. Was the could pay for his fees out of marital assets; Wife lacked trial court’s assessment of Mr. Avedon’s income at the same access to the assets that Husband had. Given $265,000.00 per year clearly erroneous? the court’s finding that Wife was “entitled to attorney’s 3. The trial court found the value of Mr. fees and that the [Husband] has the ability to contrib- Avedon’s company to be $497,000.00, and further ute,” an award of less than 20% of the amount of the found that Mr. Avedon had established non-trans- total attorney’s fees incurred by Wife appears punitive ferable, “personal good will” in the company val- and unreasonable. The fees were roughly the same for ued at $100,000.00, which the court then deducted both parties, and the court did not find that Wife’s legal before factoring the business into his marital prop- fees were five times greater than reasonable attorneys erty award to Ms. Smith. Did the trial court com- mit reversible error, where as a matter of law, in would have charged for litigating this case. On remand, extending the concept of “personal good will” to the 7 the court shall revisit the issue of attorney’s fees. principal of an insurance company (rather than the solo professional practices for which the doctrine JUDGMENT OF THE CIRCUIT COURT FOR has been recognized in reported decisions), and as a ANNE ARUNDEL COUNTY VACATED; CASE matter of fact, where there was no reliable testimony REMANDED FOR FURTHER PROCEEDINGS or evidence upon which the court could reach its NOT INCONSISTENT WITH THIS OPINION. $100,000.00 assessment? PURSUANT TO MARYLAND RULE 8-604(A)(6), 4. The trial court deemed it appropriate to award WE ORDER, PENDENTE LITE, THAT, PENDING Ms. Avedon [Smith] — the dependent spouse — a 113 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law total of $25,000.00 in attorneys’ fees, in a case where ited concessions regarding the freedom he had, as his com- both parties incurred approximately $130,000.00 in pany’s president and sole decision-maker, to spend compa- fees and costs. Whereas Mr. Avedon was clearly able ny funds and designate various personal expenditures as to pay for his legal services, Ms. Smith was not. The “business expenses.” For example, Husband testified that he trial court, beyond vague reference to certain of the flew to Florida twice a month, with all expenses paid by the invoices submitted by Ms. Smith’s counsel, failed to company. Husband claimed that every expense he incurred articulate how he determined, given the financial cir- in Florida was business-related, but had no evidence to sup- cumstances of these parties, that Ms. Smith was only port that assertion. He claimed that his Florida trips were entitled to $25,000.00 for legal services rendered in business-related and not related to the Miami residency of his the amount of $130,000.00, or to identify any actions girlfriend. taken by Ms. Smith in defense of her case that were Husband testified that his company, which his counsel unreasonable, or in any way inappropriate. Did the described as “tanking,” leased him a Land Rover for his use trial court abuse its discretion in awarding Ms. Smith in Florida, along with the Land Rover it leased for him in $25,000.00 for attorneys’ fees, with total fees exceed- Annapolis. Until the company purchased the Florida Land ing $130,000.00? Rover in June 2009 for $51,000, it was making monthly lease 2. In the court’s 2010 ruling, the court found that Wife was payments of $1,355. It was also making monthly lease pay- capable of earning $40,000.00 per year. Upon remand, the ments of $1,509 on the Annapolis Land Rover. Husband testi- court made a finding that Wife eventually “would be able to fied that he considered all car washes as legitimate business earn $47,000.00 [sic] in income per year.” But the court also expenses. reiterated that the court’s previous child support award “shall Husband’s company also paid the bills for his Coral remain in effect: this Court having found that the [Wife] earns Gables condominium, utilities, and associated fees. The com- or is capable of earning $40,000.00 [sic] per year. . . .” pany pays for meals and excursions in Florida, as well as for 3. Husband’s motion to dismiss the appeal (on the ground family vacations. In 2006, Husband purchased a sport-fishing that it was barred because Wife’s appellate rights had been boat for $187,635. He keeps the boat in Florida, and his com- exhausted in the in banc appeal) was denied. Clearly, Wife pany pays for storage (at $684 per month) and fuel. He never is appealing from a judgment that was entered subsequent to produced any documentation substantiating that any of these the remand ordered by the in banc panel. charges were incurred for a business purpose. 4. Carter Heim was not “Plaintiff’s own expert witness.” Wife 7. We note that, at the conclusion of Wife’s brief, she asserts: was the plaintiff in the underlying action. Mr. Heim was called “This case must be remanded for a new trial, before a new as Husband’s witness, and was accepted by the court as an judge, if there is to be any hope that the issues of alimony, expert “in the field of business evaluations.” marital award, and fees central to this appeal will actually be 5. In his testimony at trial, Husband agreed with his counsel’s examined and ‘considered’ under the proper legal standards admission that, in 2007, he received the benefit of his compa- and analytical framework.” Because there is no indication ny paying for personal non business expenses worth $44,484 that any request for recusal or disqualification was made in more than the income that was reflected on his 2007 W-2; the circuit court, there is no ruling before us to review. As we in 2008, he received benefits worth $48,802 more than was observed in Karanikas v. Cartwright, 209 Md. App. 571, 579- reflected on his 2008 W-2; and in 2009, he received benefits 80 (2013), there is a strong presumption that a trial judge is worth $50,169 more than was reflected on his 2009 W-2. impartial. Because of that strong presumption, we decline to 6. We note that, although Husband blamed his declining consider appellant’s request, without prejudice to Wife pursu- income on the unforseen loss of clients, Wife’s counsel elic- ing the issue in the circuit court on remand.

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 114 In The Court of Special Appeals: Full Text Unreported Opinions

Cite as 2 MFLU Supp. 115 (2015) Ed. note: Unreported opinions of the states courts of appeal are neither precedent nor persuasive author- Divorce: monetary award: equitable distribution ity. Rule 8-114. Unofficial publication of an unre- ported opinion does not alter the force of that rule. Lisa Villagaray See Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 566 A.2d 135 (1989). Headnotes are not from v. the courts but are added by the editors. Page num- Rafael Villagaray bers are from slip opinions. 30, 2013, and the court awarded physical and sole legal No. 2071, September Term, 2013 custody to appellee along with use and possession of Argued Before: Eyler, Deborah S., Hotten, Friedman, JJ. the marital home for three years. During this hearing, Opinion by Hotten, J. the court scheduled the divorce trial for November 19, 2013. A settlement conference was scheduled for Filed: January 5, 2015. Unreported. September 16, 2013, and while appellee and his coun- sel appeared, appellant did not. She later informed the The trial court had jurisdiction over appellant and court that she was in the hospital. This same date, the did not abuse its discretion in denying her a con- court mailed a hearing notice for the November 19, tinuance due to absence of counsel; however, the 2013 divorce hearing. court did abuse its discretion in not granting her Following the custody hearing, an incident a monetary award. While the property distribution occurred when appellant was visiting the children. need not be equal, it must be equitable, and absent Allegedly, appellant lunged at appellee with a butch- a reasonable explanation, a distribution that leaves one party with less than $5,000 and the other with er knife and chased him until a nearby police officer 3 nearly $70,000 falls short of that standard. drew his service weapon and ordered her to stop. Thereafter, appellee filed a complaint for modification of the custody order and motion for mental evaluation This case arises from the Circuit Court for of appellant. On September 27, 2013, the court issued Baltimore County’s grant of an absolute divorce. On a “Memorandum to File” [hereinafter “Memo to File”]. the day of the divorce hearing, the wife requested The Memo to File stated: a postponement challenging personal jurisdiction, The Motion for Mental Examination filed predicated on her claim that she had not been served, 8/22/13 is not a dispositive motion to be pre- and arguing that her counsel’s absence warranted a sented to a Judge at this time. Neither is the continuance. The court denied the request and granted Complaint for Modification. When this case the husband an absolute divorce. Appellant presents was closed by an order of court on 5/24/2013 five issues on appeal, which we have consolidated and all rights to service on the other party via first rephrased1: class mail ended. Let this file and the motion I. Did the circuit court err in denying appel- sit until there is compliance with the initial lant’s request for a continuance? service requirements of the Maryland Rules or II. Did the circuit court abuse its discretion the other party submits to the jurisdiction of in declining to award appellant a monetary the court. award? On November 18, 2013, the day before the divorce For the reasons that follow, we shall affirm in part and hearing, appellant faxed a letter to the court request- reverse in part the judgment of the circuit court. ing a postponement, stating that she had not been served with the complaint to modify custody, had Factual And Procedural History never received documentation regarding the divorce Appellant, Lisa Villagaray, and appellee, Rafael proceedings, and that her attorney was unable to be Villagaray, were married by civil ceremony on present. The next day, appellant appeared and raised February 14, 2003. The parties had two children during her request for a postponement. The court denied the the course of the marriage, aged six and twelve at request and appellant elected to represent herself. the time of trial. On February 17, 2012, appellee left During the proceeding, the parties provided testimo- the marital home.2 On September 5, 2012, appellant ny regarding the real and personal property acquired filed a pro se complaint for custody. On March 11, during the course of their marriage. The major assets 2013, appellee filed a counter-complaint for absolute were the marital home which was in foreclosure, a divorce. The court severed the custody and divorce joint bank account, individual bank accounts, a proceedings. The custody hearing was held on April PT Cruiser which had been repossessed, a motor-

115 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law cycle in appellee’s name, and individual retirement Bland v. Hammond, 177 Md. App. 340, 346-47 (2007) accounts. Appellant’s retirement account was valued at (quoting Das v. Das, 133 Md. App. 1, 15-17 (2000)) approximately $3,314.36 and appellee’s was valued at (internal citations omitted). $64,829.80. Following the testimony, and after explain- ing its reasoning, the court granted appellee an abso- Discussion lute divorce. It denied appellant’s request for alimony, and found that appellant was entitled to a monetary I. Did the court err in denying appellant’s request award, but appellee was also entitled to attorney’s fees. for a continuance? The court concluded that the two would “offset” each Appellant contends that the circuit court erred in other and accordingly, declined to grant either. denying her request for a continuance and advances Appellant noted a timely appeal. Additional facts two arguments in support. First, she asserts a jurisdic- shall be provided, infra, to the extent they prove rele- tional challenge, claiming that the court lacked person- vant in addressing the issues presented. al jurisdiction over her because she was not served. Second, she argues that even if the court had jurisdic- Standard Of Review tion, her lack of counsel was sufficient to warrant the In deciding “ ‘whether the trial court was legal- court granting a postponement. ly correct’ to exercise personal jurisdiction over [a A brief recap of this case’s procedural timeline party],” we review the court’s decision de novo. Himes is helpful in resolving this issue. Appellant filed her Associates, Ltd. v. Anderson, 178 Md. App. 504, 526 custody complaint pro se and later retained counsel (2008) (quoting Bond v. Messerman, 391 Md. 706, 718 to represent her. The custody hearing was held on (2006)). Unless a trial court has abused its discretion, April 30, 2013. On May 6, 2013, appellant’s counsel we will not reverse a court’s decision to deny a motion withdrew from the case. Appellee filed a complaint for for a continuance. See Touzeau v. Deffinbaugh, 394 modification of the custody order, and a motion for a Md. 654, 669 (2006); Greenstein v. Meister, 279 Md. 275, mental examination of appellant on August 22, 2013. In 294 (1977); Dart Drug Corp. v. Hechinger Co., 272 Md. response, on September 27, 2013, the trial court issued 15, 28 (1974); Butkus v. McClendon, 259 Md. 170, 173 a Memo to File, which stated: (1970). The Motion for Mental Examination filed We review a grant or denial of attorney’s fees and a 8/22/13 is not a dispositive motion to be pre- monetary award under an abuse of discretion standard. sented to a Judge at this time. Neither is the See Steinhoff v. Sommerfelt, 144 Md. App. 463, 487 Complaint for Modification. When this case (2002) (“The standard of review for the award of coun- was closed by an order of court on 5/24/2013 sel fees and costs in a domestic case is that of whether all rights to service on the other party via first the trial court abused [its] discretion in making or deny- class mail ended. Let this file and the motion ing the award.”) (citations omitted); Alston v. Alston, sit until there is compliance with the initial ser- 331 Md. 496, 504 (1993) (“The decision whether to grant vice requirements of the Maryland Rules or the a monetary award is generally within the sound discre- other party submits to the jurisdiction of the tion of the trial court. Nevertheless, even with respect court. to a discretionary matter, a trial court must exercise its During the divorce hearing on November 19, 2013, discretion in accordance with correct legal standards.”) appellant appeared but sought a postponement. She (citations omitted). informed the court that she had faxed a request for a Moreover, “appellate courts will accord great def- postponement the previous day. Appellant claimed that erence to the findings and judgments of trial judges, the Memo to File led her to believe that the divorce sitting in their equitable capacity, when conducting hearing was not to proceed, and this understanding was divorce proceedings.” Tracey v. Tracey, 328 Md. 380, why she did not have counsel present. Additionally, 385 (1992). A court has abused its discretion: she argued her lack of representation by counsel ren- [W]here no reasonable person would take dered her unprepared to proceed. The court denied her the view adopted by the [trial] court, or when request, stating that the Memo to File was in response the court acts “without reference to any guid- to appellee’s complaint for custody modification and ing rules or principles.” It has also been said motion for mental evaluation, not the divorce proceed- to exist when the ruling under consideration ings. “appears to have been made on untenable a) Did the court have personal jurisdiction grounds,” when the ruling is “clearly against the over appellant for the divorce hearing? logic and effect of facts and inferences before Appellant maintains that the circuit court erred in the court,” when the ruling is “clearly unten- denying her request in part because it lacked personal able, unfairly depriving a litigant of a substan- jurisdiction over her as reflected in the Memo to File. tial right and denying a just result,” when the Appellee responds that since appellant filed the original ruling is “violative of fact and logic,” or when complaint in this matter and attended the divorce pro- it constitutes an “untenable judicial act that ceeding, that jurisdiction over her was secured. defies reason and works an injustice.” The Court of Appeals has explained that in order TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 116 for a trial court to impose a ruling against a party, it appellee’s counsel had contacted her the previous must first have jurisdiction over that person. Altman v. night. A review of the record contradicts this claim. Altman, 282 Md. 483, 486-87 (1978). Appellant was placed on notice of the hearing twice: This personal jurisdiction, in turn, may be first at the April 29, 2013 custody hearing, and again exercised only if one of several jurisdictional on September 16, 2013 when the circuit court mailed “bases” exist. In Maryland these prerequisites the notice of the hearing date to the parties. Appellant to personal jurisdiction are largely dealt with was provided notice of the divorce hearing date by the by statute, and in particular Maryland Code court. Therefore, the court maintained jurisdiction over (1974, 1977 Cum.Supp.), [§§] 6-102 and 6-103 her and did not err. of the Courts and Judicial Proceedings Article. b) Did the court err in denying appellant’s [ ] Pursuant to [§] 6-102(a) of the Courts and request for a postponement to obtain counsel? Judicial Proceedings Article, a court of this Next, appellant contends that the court erred in state may exercise in personam jurisdiction proceeding with the divorce hearing after she requested over any “person domiciled in, served with a postponement to obtain counsel. process (while present) in, organized under the Maryland Rule 2-508 provides: laws of, or who maintains his principal place (a) Generally. On motion of any party or on its of business in (Maryland).” Furthermore, [§] own initiative, the court may continue a trial or 6-102(b) provides that the bases enumerated other proceeding as justice may require. in the preceding section are not exclusive; reli- In Touzeau v. Deffinbaugh, 394 Md. 654 (2006), ance on common law criteria is thus not pre- the Court of Appeals reviewed a similar dispute as the cluded. At common law, a state also has power instant case. There the parties, parents to a daughter, to exercise judicial jurisdiction over an indi- entered into a custody and visitation agreement with vidual who enters an appearance in an action the court. Id. at 656. They agreed to share legal custo- either personally or through a duly authorized dy, with the mother having primary physical custody, attorney. and that any party seeking to relocate had to provide Id. at 486-87. It is a long established principle — both two months advance notice. Id. In 2004, the mother in Maryland and federally, — that if a party volun- informed the father that she and the daughter would tarily appears at a court proceeding, the court has be moving approximately 40 miles away. Id. at 657. The obtained personal jurisdiction over them. See McSherry father filed an emergency motion to modify the custody v. McSherry, 113 Md. 395, 400 (1910) (“Where, howev- agreement prohibiting the mother from relocating the er, a defendant appears generally, either in person or by daughter and requesting permanent physical custody. attorney, or process is served upon him within the [s] Id. at 658. The mother proceeded pro se and filed a tate, the [c]ourt acquires jurisdiction over him for the counter petition seeking authority to relocate. Id. At a purpose of the suit.”); Pennoyer v. Neff, 95 U.S. 714, scheduling conference in September 2004, the mother 733 (1877). appeared pro se. The court scheduled the custody hear- Appellant claims that the court’s Memo to File ing for February 8, 2005 and ordered a custody evalu- indicated that it lacked jurisdiction. The Memo to File ation to be conducted in January 2005. Following the did reflect that appellee needed to obtain jurisdiction evaluation, the evaluator recommended that the father over appellant, but this regarded the custody matter. be granted legal and physical custody of the daughter It is clear that the Memo was referring to appellee’s with the mother receiving liberal visitation. Id. at 659. complaint for modification of the custody order and On January 28, 2005, one week after they received the motion for mental examination. This is further evi- evaluator’s recommendation, the mother filed a motion denced by the remark in the Memo to File that the for continuance of the February 8 custody hearing so matter was closed in May 2013. The Memo could not that she could attempt to obtain pro bono counsel. have been referring to the divorce matter because Id. The court denied the motion. At the hearing, the it was still outstanding. There was a pending hear- mother again moved to continue the hearing, arguing ing and no resolution to the pending divorce com- that she had obtained a pro bono attorney, however, plaint. The matter it referred to was the custody matter due to a conflicting court appearance, he could not which had been closed in May 2013. Furthermore, the appear on that date. Id. at 660. She informed the court Memo to File explicitly referenced the pleadings it was that she had been seeking pro bono counsel but had responding to, and did not mention the divorce hearing. difficulty obtaining one. The court denied the motion, Accordingly, we are not persuaded by appellant’s belief finding that the mother had known since September that the Memo to File had postponed the divorce hear- 2004 when the motion to modify the custody agreement ing. was filed, that there would be a hearing at some point Appellant knew that the divorce hearing was sched- and that she should have tried to obtain counsel earli- uled for November 19, 2013 because she appeared. In er. Id. at 662. The court awarded the father legal and her fax to the court the day before the hearing, she con- physical custody of the daughter. Id. at 664. The mother tended that she was only aware of the hearing because appealed to this Court, and in an unreported opinion,

117 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law we affirmed the circuit court’s denial of the contin- had in fact secured new counsel, he or she should have uance. We based our ruling on the fact that “despite entered a line of appearance prior to the date of the having had four months to prepare for the custody hearing. modification hearing, [the mother] waited until the last Akin to the circumstances in Touzeau, appellant moment to file a motion for a postponement, having was on notice regarding the divorce hearing date for at filed the motion only eleven days before the scheduled least six months. The trial court scheduled the divorce trial date.” Id. at 664-65. hearing during the April 29, 2013 custody proceedings The Court of Appeals granted certiorari, and began which appellant was present for. The circuit court then its opinion by observing that “the decision to grant a sent a notice of hearing on September 16, 2013, one continuance lies within the sound discretion of the trial month in advance. The notice informed the parties’ judge. Absent an abuse of that discretion [it] historical- regarding the appropriate steps to take if a continuance ly ha[s] not disturbed the decision to deny a motion for was warranted. Notwithstanding the above, appellant a continuance.” Id. at 669. The Court then recounted waited until the day before the hearing to request a several examples of instances when a continuance was continuance. She maintained that she had counsel, warranted: when the law mandates a continuance, see but provided various reasons why he was not present. Mead v. Tydings, 133 Md. 608 (1919), due to surprise First, she argued that the Memo to File led her counsel at trial, see Plank v. Summers, 205 Md. 598 (1954), to believe that the hearing was postponed. Then she and when there is an unforeseen event and counsel indicated that he could not be present because he was diligently strives to mitigate the surprise, see Thanos in court on other matters. Finally, she contended that v. Mitchell, 220 Md. 389 (1959). Id. at 669-70. The Court he was waiting for her to pay a retainer. None of these then addressed the underlying issue — whether a court constituted good cause for a postponement the day of abuses its discretion when it denies a continuance and trial. Appellant also remarked that she was not pre- that denial leaves a party without counsel for the pro- pared to defend against appellee’s allegations and need- ceeding. It held that the reluctance to find an abuse of ed counsel to represent her, to which the court replied: discretion is no different under these circumstances. You were here in April. So you’ve had Touzeau, 394 Md. at 674. The Court then cited Cruis seven months to have an attorney enter his or Along Boats, Inc. v. Langley, 255 Md. 139 (1969), her appearance on your behalf in this case. And where a defendant requested a continuance on the day no attorney has done so in this case. before trial because his counsel had a scheduling con- Back in April I said that we would have this flict. Touzeau, 394 Md. at 674. Considering that there hearing today on this divorce, because the case was prior notice of the conflict and that the defendant was not ready for the divorce back in April. So should have adequately prepared for such, the Court the other side does claim prejudice. The matter upheld the trial court’s denial of a continuance. Id. has been pending for quite a long time. The Court held that the mother’s circumstances did I’m not hearing good cause to grant a postpone- not possess the elements of surprise or adequate due ment today. diligence to mitigate an unforeseen circumstance. Id. at Based on the above reasoning, we conclude that the 675. It explained that she was aware that there would court did not abuse its discretion in denying her request be proceedings regarding the motion to modify custody for postponement. and that she should have anticipated that she would need counsel. Id. The Court found that the record II. Did the court err in its findings regarding appel- demonstrated a lack in diligence to secure counsel and lee’s request for a monetary award? accordingly, the trial court did not err in its denial of Appellant’s second assignment of error relates her continuance request. Id. to the court’s denial of her request for a monetary Returning to the case at bar, we perceive no error award. Accordingly, we begin with a review of mone- in the court’s finding that appellant failed to provide tary awards in a divorce case. good cause to substantiate her request for a post- A trial court’s grant of divorce and division of mar- ponement. Preliminarily, we observe that appellant is ital property is couched in principles of equity. See the party who initiated these proceedings. Appellant e.g., Wright v. Wright’s Lessee, 2 Md. 429, 432 (1852) knew that appellee had filed a counter-complaint for (noting that divorce proceedings in Maryland courts divorce and admitted that she also desired a divorce. were historically resolved in the old courts of equi- Presumably, she realized that there would be a hearing ty). Compare Ward v. Ward, 52 Md. App. 336 (1982) on the matter and after her first counsel withdrew, if (explaining that the purpose of a monetary award is to she still desired to be represented, it was her responsi- remedy any inequity in the distribution of marital prop- bility to obtain new counsel in time. Regarding appel- erty), and Bender v. Bender, 282 Md. 525, 530 (1978) lant’s claim that she had counsel but he did not attend (explaining that a court’s power to grant alimony in because of the Memo to File’s ambiguous language, as a divorce is based on principles of equity). Maryland explained previously, the Memo to File was not refer- Code, (1984, Repl. Vol. 2012), §8-205 of the Family Law encing the divorce hearing. Furthermore, if appellant Article (“Fam. Law.”), governs monetary awards:

TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 118 Grant of award. The purpose of a monetary award is to rectify any ineq- (a)(1) Subject to the provisions of subsection uity in the distribution of marital property that cannot (b) of this section, after the court determines be remedied by a grant of the physical property itself. which property is marital property, and the See Fam. Law §8-205(a)(1); Flanagan v. Flanagan, 181 value of the marital property, the court may Md. App. 492 (2008). A court must perform a three step transfer ownership of an interest in property analysis in determining whether to grant a monetary described in paragraph (2) of this subsection, award. grant a monetary award, or both, as an adjust- First, for each disputed item of property, the ment of the equities and rights of the parties court must determine whether it is marital or concerning marital property, whether or not nonmarital. [Fam. Law] § 8-203. Second, the alimony is awarded. court must determine the value of all marital (2) The court may transfer ownership of an property. [Fam. Law] § 8-204. Third, the court interest in: must determine if the division of marital prop- (i) a pension, retirement, profit sharing, erty according to title will be unfair; if so, the or deferred compensation plan, from one court may make an award to rectify the ineq- party to either or both parties. . . . uity. Dobbyn v. Dobbyn, 57 Md. App. 662, 679, Factors in determining amount and method 471 A.2d 1068 (1984). of payment or terms of transfer. Doser v. Doser, 106 Md. App. 329, 349-50 (1995). (b) The court shall determine the amount and Maryland Courts have previously decided that a the method of payment of a monetary award, court may transfer ownership of or grant a monetary or the terms of the transfer of the interest in award of a retirement fund that is marital property. See property described in subsection (a)(2) of this Robinette v. Hunsecker, 439 Md. 243 (2014) (affirming section, or both, after considering each of the this Court’s decision in Robinette v. Hunsecker, 212 following factors: Md. App. 76 (2013)). (1) the contributions, monetary and non- Appellant advances three arguments in support monetary, of each party to the well-being of of her argument that the court erred in denying her the family; request for a monetary award. First, she claims the (2) the value of all property interests of court erred in its finding that a monetary award would each party; be offset by a grant of appellee’s attorney fees. Second, (3) the economic circumstances of each she contends that the court failed to address the party at the time the award is to be made; required statutory factors of Fam. Law §8-205. Third, (4) the circumstances that contributed to she contends that the court erred in finding that appel- the estrangement of the parties; lee held a significantly larger portion of the marital (5) the duration of the marriage; property but denying appellant a monetary award. We (6) the age of each party; hold that the court abused its discretion in declining to (7) the physical and mental condition of award appellant a monetary award. each party; (8) how and when specific marital property 1. Denial of Monetary Award or interest in property described in subsec- Appellant maintains that the court itself admitted tion (a)(2) of this section, was acquired, that appellee’s retirement account was the largest mar- including the effort expended by each party ital asset and resulted in him owning a substantially in accumulating the marital property or the larger percentage of marital property than she did. She interest in property described in subsection argues that “[t]he court not only failed to engage in (a)(2) of this section, or both; equitable distribution of the martial property; it failed (9) the contribution by either party of prop- to engage in any distribution of said property.” erty described in § 8-201(e)(3) of this subti- A court has a duty to equitably distribute marital tle to the acquisition of real property held property. See Long v. Long, 129 Md. App. 554, 578 by the parties as tenants by the entirety; (2000). In Barnes v. Barnes, 181 Md. App. 390 (2008), (10) any award of alimony and any this Court upheld a grant of a monetary award of part award or other provision that the court has of the husband’s retirement account when the wife made with respect to family use personal had no retirement because the husband had assured property or the family home; and her they could live off of his retirement funds. To the (11) any other factor that the court consid- contrary, in Long, supra, 129 Md. App. at 573-74, we ers necessary or appropriate to consider upheld a denial of a portion of a husband’s pension in order to arrive at a fair and equitable account even though it was marital property because monetary award or transfer of an interest the trial court found that the wife had already received in property described in subsection (a)(2) a separate large monetary award. Elaborating, we stat- of this section, or both. ed “[i]f the court decides to award part of a retirement plan or similar account, it has considerable flexibility in 119 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law determining how and when payments will be received. the circuit court to reconsider appellant’s request for a . . . In our view, however, flexibility and discretion do monetary award with an eye towards an equitable dis- not equate to a mandate that every divorce litigant with tribution of the marital property. a retirement account must share it with an ex-spouse.” Id. at 574. 2. Statutory Factors In the case at bar, the trial court considered on the Appellant also alleges that the court failed to con- record the parties’ financial situations and concluded sider the proper statutory factors enumerated in Fam. that “the parties’ financial resources, financial needs, Law § 8-105(a)(2)(i). We conclude that the court did they seem[ed] to be in roughly similar positions.” The consider the proper factors, but its finding that appel- court found that the parties’ joint marital property, lant was not entitled to a monetary award was an abuse was valued at $27,484 — of which $24,628 was the of discretion. marital home and the remaining $2,856 was the value This Court has held on a number of occasions of the contents of the home. Appellant’s individual that in considering the factors relating to the grant marital property totaled $3,314, and appellee’s totaled of a monetary award, a trial court is not required to $67,329. Appellee’s retirement fund accounted for the explicitly state each factor and its reasoning related to vast majority of the marital property, and was valued each factor. In Doser v. Doser, 106 Md. App. 329, 338 at $64,829. The court observed the large difference in (1995), the wife filed for an absolute divorce, the mat- value of the marital property: ter was first heard by a master who issued facts and THE COURT . . . So the subtotal of marital findings to the circuit court. The circuit court relied on property in [appellee’s] name is $67,329. The the master’s findings, granted the wife a divorce and total of marital property in [appellant’s] name awarded her alimony and a monetary award. Id. at 341. is $3,314. She appealed, challenging in part, the court’s monetary The Court has to consider making a mone- and alimony award, asserting it failed to exercise its tary award to adjust the equity. He has far more independent judgment. Id. at 343. We noted that the cir- marital property in his name, you know, by a cuit court made no reference to its consideration of the multiple of twenty than she does. applicable statutory factors of 8-205(b), and according- * * * ly, we remanded back to the circuit court for re-consid- That’s what I said, this is all marital prop- eration of the awards. Id. at 349. We explained: erty. Much, much more is in his name. Even if While consideration of the factors is mandato- I don’t make it even, much, much more is in his ry, Holston, 58 Md. App. at 318-19, 473 A.2d 459, name. She has 3,000 and he has 67,000. the trial court need not “go through a detailed check list of the statutory factors, specifically * * * referring to each, however beneficial such a He still has an asset, he still has that sub- procedure might be . . . for purposes of appel- stantial marital asset in his name. And even if late review.” Grant, 53 Md. App. at 618, 456 I subtract the attorney’s fees, he still has far A.2d 75. If the court determines that the divi- more marital property than she does. sion of marital property based on title would Notwithstanding its observations, and contradicting be unfair, the court has several options. It may its prior statements, the court found that a monetary order a party to pay a fixed sum of cash and award would be offset by appellee’s attorney’s fees, immediately reduce that order to judgment; which totaled $21,000, and accordingly, declined to [Fam. Law] § 8-205(c); it may establish a sched- award either. We conclude that the court abused its ule for future payments of all or part of the discretion. There was testimony that as a result of the award; Ross v. Ross, 90 Md. App. 176, 188- parties’ failure to pay the mortgage, the marital home 89, 600 A.2d 891, vac. on other grounds, 327 was in foreclosure, and therefore, essentially worthless. Md. 101, 607 A.2d 933 (1992); it may transfer Adding the remaining joint marital property ($2,856), ownership of an interest in a pension, retire- and individual marital property would have resulted in ment, profit sharing, or deferred compensation appellant having $4,742, and appellee having $68,757. plan from one party to the other; [Fam. Law] § If the court had granted appellant half of appellee’s 8-205(a). retirement account ($32,414.50), and granted appellee Id. at 351. his attorney’s fees ($21,000), this would have left the Similarly, in Flanagan v. Flanagan, 181 Md. App. property division with appellant having $16,156 and 492 (2008), we explained: appellee having $36,342.50. This distribution still would Under discretionary review, “a trial judge’s have resulted in appellee holding a much larger per- failure to state each and every consideration centage of the marital property. While the court was or factor” does not, without demonstration under no duty to equally distribute the property, absent of some improper consideration, “constitute a reasonable explanation, we cannot conclude that in an abuse of discretion, so long as the record this case awarding appellee the majority of the marital supports a reasonable conclusion that appro- property was equitable. As a result, we remand back to priate factors were taken into account in the TheDailyRecord.com/Maryland-Family-Law Maryland Family Law Update: February 2015 120 exercise of discretion.” Cobrand v. Adventist Footnotes Healthcare, Inc., 149 Md. App. 431, 445, 816 1. Appellant’s original questions were: A.2d 117 (2003). I. Did the [c]ircuit [c]ourt err by proceeding with the Id. at 533. C.f. Doser v. Doser, 106 Md. App. 329, 356 divorce hearing after Judge Fader ruled, on October (1995) (internal citations omitted) (“In considering 9, 2013, that the Court did not have personal juris- these factors, the trial court need not use formulaic diction over [appellant], and [appellee] neither chal- language or articulate every reason for its decision with lenged this ruling nor served [appellant] in accor- respect to each factor. Rather, the court must clearly dance with the ruling before the November 19, 2013 hearing? indicate that it has considered all the factors.”). Returning to the case at bar, while the court did II. Assuming, arguendo, that the [c]ircuit [c]ourt did have personal jurisdiction over [appellant], given not explicitly state that it was considering Fam. Law Judge Fader’s October 9, 2013 Memorandum and §8-205(b), it addressed the relevant considerations of [appellant]’s interpretation thereof, which the [c] the section before issuing its ruling. A review of the ircuit [c]ourt found was not unreasonable, did the [c] record reveals that the court considered at least eight ircuit [c]ourt abuse its discretion by denying [appel- factors: (1) the parties’ respective monetary and non- lant]’s request for a continuance in order to obtain monetary contributions the marriage; (2) the value of counsel? the parties’ property interests; (3) the economic cir- III. Did the [c]ircuit [c]ourt err and abuse its discre- cumstances of each party; (4) the reason for estrange- tion by ruling that “[appellee] might be entitled to an ment; (5) the length of the marriage; (6) the parties’ award of attorney’s fees” which would be offset by a ages; (7) the physical and mental condition of each monetary award to [appellant], when: (a) there was party; (9) each parties’ contribution to any real prop- no proof of [appellant]’s ability to pay, (b) the Court erty owned as tenant by the entirety; and (10) any found that, “even if I subtract the attorney’s fees, he still has far more marital property than she does,” alimony award made. However, notwithstanding its and (c) the attorney’s fees pertained mostly to the consideration of these factors, it denied appellant a custody proceeding and several district court pro- monetary award when the evidence demonstrated that ceedings rather than the actual divorce proceeding? appellee held a substantially greater portion of the mar- IV. Did the [c]ircuit [c]ourt err and abuse its discre- ital property than appellant did. The court found that tion by failing to engage in the appropriate analysis even if it had awarded appellant a portion of appellee’s required by Md. Code Ann. [Fam. Law] §8-205(b) retirement account, it would have also granted appellee before denying [appellant]’s request for a portion of his attorney’s fees and the two would offset each other. [appellee]’s retirement account or monetary award? We disagree. As noted above, had the court granted V. Assuming, arguendo, that the [c]ircuit [c]ourt appellant half of appellee’s retirement account, and properly considered the appropriate statutory fac- had awarded appellee his attorney’s fees, the property tors before denying [appellant] a portion of [appel- distribution would have been $16,156 for appellant and lee]’s retirement account or a monetary award, was $36,342.50 for appellee. We remand this case back to the [c]ircuit [c]ourt’s decision erroneous and an the circuit court for it to reconsider appellant’s request abuse of discretion because, as the Court acknowl- for a monetary award, according to the statutory fac- edged, Mr. Vilalgaray’s retirement account result- ed in “substantially more marital property in Mr. tors of Fam. Law §8-205(b). Vallagaray’s name”? JUDGMENT OF THE CIRCUIT COURT 2. The parties dispute the date of separation. Appellee FOR BALTIMORE COUNTY IS claimed it was February 17, 2012 and appellant contended it AFFIRMED IN PART AND REVERSED IN was September 2012. However, this disagreement is not rele- vant to the issues on appeal. PART. CASE REMANDED FOR 3. Criminal charges relating to this incident were pending at PROCEEDINGS CONSISTENT WITH the time of the divorce hearing. At the hearing, appellee tes- THIS OPINION. COSTS TO BE SPLIT tified regarding the incident and appellant exercised her right 50/50 BY THE PARTIES. against self-incrimination.

121 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Case Index

BRIEFS FULL TEXT

Michelle Bourdelais v. John Durniak (Md.App.)(Unrep.) 12 25

Tracy Sharon Brackett v. Susan Lynn Brandow (Md.App.)(Unrep.) 11 61

Michael Gerald D. v. Roseann B. (Md.App.)(Rep.) 11, 1/15 14

Ibrahima Dione v. Mwelu C. Ndeti (Md.App.)(Unrep.) 12 20

Jodi Annette Grimes v. Jay Todd Grimes (Md.App.)(Unrep.) 13 56

In Re: Adoption/Guardianship of Dustin R. (Md.App.)(Unrep.) 11 73

In Re: Caitlyn S. (Md.App.)(Unrep.) 11 95

In Re: Sunshyne E. and Noah I. (Md.App.)(Unrep.) 12 33

Theodore C. Julio v. Lisa Julio (Md.App.)(Unrep.) 12 96

Rosibeth Molina v. Albarth Molina (Md.App.)(Unrep.) 13 43

Margot R. Proctor v. James M. Proctor (Md.App.)(Unrep.) 11 38

Maria Simbaina v. Segundo Bunay (Md.App.)(Rep.) 7 3/15

Kerrin Smith f/k/a Kerrin Avedon v. Robert Avedon OMR (Md.App.)(Unrep.) 12 105

Ann R. Thomas v. Timothy E. Thomas (Md.App.)(Unrep.) 13 48

Lisa Villagaray v. Rafael Villagaray (Md.App.)(Unrep.) 13 115

Erica L. Young a/k/a Erica Durr v. Dale Dykes (Md.App.)(Unrep.) 12 90

122 Maryland Family Law Update: February 2015 TheDailyRecord.com/Maryland-Family-Law Topic Index

BRIEFS FULL TEXT Administrative law: Developmental disabilities: Final judgment In Re: Adoption/Guardianship of Dustin R. (Md.App.)(Unrep.) 11 73 Child support: Modification: Res judicata Margot R. Proctor v. James M. Proctor (Md.App.)(Unrep.) 11 38 Child support: Modification: Voluntary impoverishment Tracy Sharon Brackett v. Susan Lynn Brandow (Md.App.)(Unrep.) 11 61 CINA: Permanency plan: Appeal mooted by TPR In re: Caitlyn S. (Md.App.)(Unrep.) 11 95 CINA: Visitation: Modification In Re: Sunshyne E. and Noah I. (Md.App.)(Unrep.) 12 33 Custody: Discovery sanctions: Taliaferro factors Michelle Bourdelais v. John Durniak (Md.App.)(Unrep.) 12 25 Custody: Immigrants: Special Immigrant Juvenile status Maria Simbaina v. Segundo Bunay (Md.App.)(Rep.) 7 3/15 Custody: Modification: Material change of circumstances Erica L. Young a/k/a Erica Durr v. Dale Dykes (Md.App.)(Unrep.) 12 90 Custody: Modification: Relocation of parent Ibrahima Dione v. Mwelu C. Ndeti (Md.App.)(Unrep.) 12 20 Divorce: Alimony and child support: Pendente lite on remand Kerrin S. Smith f/k/a/ Kerrin S. Avedon v. Robert P. Avedon OMR (Md.App.)(Unrep.) 12 105 Divorce: Contempt: Purge provision Theodore C. Julio v. Lisa Julio (Md.App.)(Unrep.) 12 96 Divorce: Grounds: Constructive desertion Ann R. Thomas v. Timothy E. Thomas (Md.App.)(Unrep.) 13 48 Divorce: Indefinite alimony: Future housing expense Rosibeth Molina v. Albarth Molina (Md.App.)(Unrep.) 13 43 Divorce: Monetary award: Equitable distribution Lisa Villagaray v. Rafael Villagaray (Md.App.)(Unrep.) 13 115 Divorce: Pleading: General claim for relief Jodi Annette Grimes v. Jay Todd Grimes (Md.App.)(Unrep.) 13 56 Visitation: Abuse or neglect: Preponderance of evidence standard Michael Gerald D. v. Roseann B. (Md.App.)(Rep.) 11, 1/15 14

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