Table of Contents Chair's Message

Table Of Contents Chair's Message ...... 2

Top 10 (Family Law) Things You Need to Know About the Tax Cuts and Jobs Act...... 3

A View from the Bench...... 4

Parenting Coordination: A Tool for Limiting Chronic Litigation...... 5

Case Note: State v. Sewell Md Court of Appeals, No. 20, September Term 2018...... 6

Trauma to Go: Bringing Your Work Stress Home...... 7

Case Note: Fulgium v. Fulgium MD Court of Special Appeals, No. 1753, September Term, 2017...... 8

Family & Juvenile Law Section - 2019 Legislative Update...... 9

Case Note: Celso Monterroso Romero v. Josefa Perez MD Court of Appeals, No. 27, September Term, 2018...... 10

Deena Hausner, Esq. ~ Family & Juvenile Law Section Chair Moges Abebe ~ Chief Editor Walter Herbert ~ Co-Editor Message From the Chair - Spring 2019 By: Deena Hausner, Esq. Chair of the MSBA’s Family and Juvenile Law Section

Happy Spring! I love this time of year: the trees are in their full Bottom line: none of us is immune from the stress that comes (and allergy-inducing) glory, the flowers are in bloom, and it’s from working with people who are going through one of life’s still light out when I drive home from work. The changing of the most traumatic experiences i.e. the break-up of their families. Be seasons and warming temperatures always put me in a hopeful mindful of how this stress affects you in both your professional mood. and personal lives and, above all, take care of yourselves. Do not hesitate to reach out to friends, family, colleagues or the MSBA Reflecting on the months gone by, although winter is often a for resources and referrals in your time of need. time of quiet contemplation and hibernation, the FJLSC was hard at work throughout the cold months. Our focus, as always, Leaving the Winter behind, Spring feels like a time of growth and between January and April was the ever-hectic Maryland General looking forward. First up on the horizon, in May we are partnering Assembly Session. As you will read in this issue’s legislative with the Legal Studies Institute at Anne Arundel Community update, this session saw the introduction of numerous family law College to host a training for Best Interests Attorneys and, of bills, including a group of bills that would have overhauled the course, in June we will head to the ocean for the annual Legal child support guidelines had they passed. So much work goes Summit. We look forward to connecting with many of you there into keeping up with the legislature, including tracking the status for education, humor, and fun. of dozens of bills, preparing written testimony, and organizing people to attend and testify live at committee hearings (a task that The approach of the annual meeting also has me looking ahead to is about as easy as herding cats). Kudos and thanks go to Ilene the end of my year as Chair of the Section Council. It has been Glickman and Daniel Renart, who both were outstanding in their a wonderful experience and an honor to be part of the FJLSC. I first-time roles as co-chairs of the Legislative Committee. We have had the opportunity to work with so many people with whom were also fortunate to have several non-Section Council members I would not usually cross paths, which, in my humble opinion, is help out with this year’s legislative effort; we can’t thank you one of the great benefits of taking part in Section activities. enough. If you have any interest in the legislative process, even if you have never experienced it before, please reach out to me; In addition to the people I have already mentioned, I want to thank we would love to have you join in the effort. Moges Abebe, who diligently organizes this newsletter, offers edits and inspiration, and keeps me and the many other contributors on track to meet publication deadlines. And I certainly want to express my gratitude to the rest of the Section Council leadership – Jim Milko, Chris vanRoden, Peter Markuski and Becky Fleming – for their time and dedication. “Thank you” doesn’t even begin to cover it.

To me, Spring is also about continuity and the cycle of time. Next September begins another FJLSC year under the capable leadership of incoming-Chair, Chris vanRoden (good luck, Chris!). We hope you’ll join us for whatever activities suit your The CLE Committee, spearheaded by Craig Borchers and time and your talents, whether as a repeat participant or for the Rebecca Fleming, put together an incredible full-day Family very first time. Law University in February, which focused on common issues that arise in contested custody cases. A variety of excellent presenters spoke on various topics including visitation monitors, Until then, thanks for a wonderful year. psychological evaluations, diagnosing children, and coercive control. The FJLSC’s own Samantha Rodier, along with Drs. Deena Hausner Paul Berman and Katherine Killeen, shared information about the vicarious trauma that often happens to family law practitioners.

2 Section of Family & Juvenile Law Spring 2019 TOP 10 (Family Law) Things You Need to Know About the Tax Cuts and Jobs Act By: Avigayil Pearlman, Esq.

10 A prenuptial agreement (probably) does not count as a “divorce or separation instrument.”

Child Tax Credit has replaced the “dependent exemption.” 9 • A child must be under age 17 (16 and younger) at the end of the year to qualify. • Still requires IRS Form 8332 to transfer to non-custodial parent (do NOT submit a copy of your MSA to the IRS).

Custodial parent is defined as the parent with whom the child 8 is (supposed to) spend the greatest number of nights in that particular year. If there is any controversy at all regarding this, clients should keep a contemporaneous calendar. • For those that don’t separate on January 1st, it is the parent with whom the child has spent the majority of their overnights for the rest of the year.

The Child tax credit is up to $2,000, but the maximum 7 refundable portion is only $1,400. • The child tax credit begins to phase out at a modified adjusted gross income (MAGI) of $200,000 for those filing single, or $400,000 for those filing jointly or as head of household.

(continued on page 11)

Check out our newsletter and more online at the Family & Juvenile Law Section's portion of MSBA's website at: www.msba.org/family

Spring 2019 Section of Family & Juvenile Law 3 A VIEW FROM THE BENCH By: Magistrate Bibi Berry Circuit Court for Montgomery County

In my last column, I focused on a few procedural and evidentiary seeking is appropriate. In order to meet your burden, it may be pointers. In this article, I address some cross-examination necessary to call the other side as a witness. Do not assume the techniques I have found most effective. Cross examination is one opposing counsel will call them to testify. Do not assume that of the most important tools attorneys have available to them in a once you have rested, you will be allowed to re-open your case trial, as it gives the attorney an opportunity to offer into evidence should the other side choose not to call the client. Do consult with that attorney’s own statements of relevant facts. It is one of the the opposing counsel about stipulations and order of witnesses, most unused or misused aids toward the successful trial of a family including an agreement that you will be able to go outside of the law case. This list is by no means exhaustive but illuminates some scope of direct examination as it relates to the issue. If you are on of those practices that I have found crucial to the efficient and the other side, there generally is no reason to deny that request, persuasive presentation of evidence. and it is appreciated by the Fact Finder when parties and counsel worked together to facilitate a more orderly and efficient flow of Leading Questions Revisited: testimony and evidence. I reiterate to those reading this, that there should be very few circumstances when it is appropriate to ask an opposing party a Summaries—Use the proper witness: non-leading question. The very purpose of cross examination is This is not directly on point, though it bears some discussion. When for the examiner to tell the court, through the witness, what the introducing summaries as substantive evidence (which should be former wants the court to know. There is no better way to control done whenever there are voluminous records), it is vital to offer a witness than to lead them. Do not allow the witness to tell his it through the proper witness. If an associate or staff member or her story or to explain his or her own perspective. If you do, created the summary, you may consider first seeking a stipulation you are doing the job of that witnesses’ attorney, and likely not of admissibility from the other side. If that is rejected, have the serving your client’s interest. person who created the summary testify to the underlying data and process for creating the summary. If it is your client who is While I am on leading questions, I must address one oft-made to testify about the summary, make sure the data is accurate and objection. A question in direct examination is not leading simply that he or she is competent to testify about it. Unless a summary because it calls for a yes or no answer. A question is a leading has been prepared by the other side, I advise against attempting question if it suggests to the witness the desired answer. For to offer the summary through the opposing party. The opposing example, “Have you ever struck your spouse?” warrants a yes or party generally is not competent to testify to the accuracy of the no response. However, it is not a question that suggests the desired summary, even if the underlying data came from that witness’ response, for example, “you have never struck your spouse, have documents. Trying to introduce a summary through the opposing you?” The fact that an attorney asks about a specific time, event party witness that was not generated by that person may prove or occurrence, does not make the question leading. For example, frustrating, wasteful of time and ineffective. “I want to ask you about the morning of Monday, April 29th. Did you encounter your spouse at any time that morning?” Bringing Stop! Just Stop!!! the witness’ attention to a specific event is not necessarily leading Most of us have heard, since we were baby attorneys, of the the witness. Understanding the difference between impermissible importance of knowing when to stop a line of questioning. leading questions and permissible yes or no questions is vital to Inevitably, however, we all ask one…or ten…questions too many. smooth and objection-free examination. Consider that the main purposes of examination, whether in direct or cross, is to present a relevant fact to the court and to highlight Make Your Case: credibility issues. The most impressive attorneys are those that I remind family law practitioners always to be aware of burdens have mastered the art of knowing the last question that should be of proof. For example, in a support case the party seeking support asked of a witness to serve these goals. bears the burden of proof of income and expenses sufficient to establish an appropriate support amount. If you represent the party In cross examination, using restraint is even more crucial. Asking seeking support, you must show the income of the other party. If too many questions on cross not only gives the witness a chance you are seeking imputed income, you must address the voluntary to wiggle from grasp, but also gives the attorney an opportunity impoverishment factors and the imputation of income factors. If to address the issue on redirect. One of the best examples of you are seeking a distribution of property and/or monetary award, one-too-many questions is the nose-bite case retold in the late you must show the identity and value of the marital property. If Judge Irving Younger’s video on the 10 Commandments of Cross you are seeking modification, you must show a material change Examination—a must see on YouTube for any litigator. Therein, in circumstances, and then show why the modification you are (continued on page 12)

4 Section of Family & Juvenile Law Spring 2019 Parenting Coordination: A Tool for Limiting Chronic Litigation By: Angela Silverstein, Esq.

Family law attorneys have used Parent Coordinators for many Parent Coordination is also an excellent option because the courts years as a last-ditch effort for those “boomerang” cases that just must issue final orders and do not have the authority to hold annual keep coming back to court because one or both of the parties simply status conferences to monitor cases on an ongoing basis. can’t or won’t co-parent in a constructive manner. Unfortunately, because of the difficulties associated in dealing with some of the Equally important as what a Parent Coordinator can do is what people involved in these kinds of cases, there are not very many a Parent Coordinator cannot do. For example, under Maryland Parent Coordinators available, and some judges are not adequately Rule 9-205.2(g)(9) the Parent Coordinator may “decide post- familiar with the purpose and usefulness of Parent Coordinators. judgment disputes by making minor, temporary modifications to Many competent attorneys and therapists are reluctant to enlist as child access provisions ordered by the court if (A) the judgment or Parent Coordinators; for example, until recently, there was only one post-judgment order of the court authorizes such decision making, Parent Coordinator on the list with the Circuit Court for Baltimore and (B) the parties have agreed in writing or on the record that County. Additionally, at times, judges are reluctant to appoint a the post-judgment parenting coordinator may do so.” A Parent Parent Coordinator to help the parents for fear that the parties will Coordinator may not, “make parenting decisions on behalf of the be “overly zealous” in their use of the Parent Coordinator and wind parties,” except for decisions authorized under subsection (g)(9). up spending money they don’t necessarily have, sometimes as a This should give some degree of comfort to parents in utilizing result of one party abusing the process. In my experience the use a Parent Coordinator in that they are not, as some may believe, of a Parent Coordinator more often than not saves the litigants simply handing over the decision making authority over their money and can spare the children years of witnessing constant children to a third party. Admittedly there is some debate among conflict between their parents. Parent Coordinators and family law practitioners as to exactly what constitutes a “parenting decision.” This article is not meant Parent Coordination in Maryland is primarily governed by to take up that debate but the family law practitioner should be Maryland Rule 9-205.2 which defines Parent Coordination as “a aware of that issue and be in close contact with their client during process in which the parties work with a parenting coordinator the process and select a Parent Coordinator they know and trust. to reduce the effects or potential effects of conflict on the parties’ child. Although parenting coordination may draw upon alternative It is important for the family law practitioner to be fully versed in dispute resolution techniques, parenting coordination is not the Maryland Rules relating to Parent Coordinators and advise their governed by the Rules in Title 17, except as otherwise provided clients appropriately as to their purpose, services permitted, and in this Rule.” MD Rule 9-205.2(b)(1). limitations. After determining that a Parent Coordinator would be the appropriate next step is in choosing one that is the right fit for The final sentence of the definition is an important distinction from the parents involved. Parent Coordinators can be mental health normal alternative dispute resolution, specifically as it relates to professionals, conflict management professionals and attorneys. confidentiality. Maryland Rule 9-205.2(g)(7) states that a Parent Each profession has certain traits and knowledge that can be useful Coordinator can, “in response to a subpoena issued at the request in managing parents through conflict. For example, attorneys may of a party or an attorney for a child of the parties, or upon action be inclined to take charge and take a firmer hand with clients; of the court pursuant to Rule 2-514 or 5-614, produce documents mental health professionals may have a softer touch and take a and testify in the action as a fact witness.” As the communications bit longer to get consensus on an issue. Whichever profession is and behaviors demonstrated in front of the Parent Coordinator ultimately decided upon the Parent Coordinator should meet the may, at some later date, become evidence to be considered by the requirements delineated under Maryland Rule 9-205.2 as well as Court, the parties are incentivized to be on their best behavior and be aware of certain guidelines under the Association of Family and at least try to demonstrate a willingness to resolve their issues. Conciliation Courts (AFCC). Additionally, MD Rule 9-205.2(g)(8) provides that the Parent Coordinator may, “if concerned that a party or child is in imminent In closing, a word of caution: at times, family law practitioners physical or emotional danger, communicate with the court or court can be guilty of “tossing” their case over to a Parent Coordinator personnel to request an immediate hearing.” These two sections in part because of litigation fatigue. Attorneys should be wary of Maryland Rule 9-205.2 are important protections to not only of that pitfall and be careful to still diligently make thought-out the process of resolving parental conflict but also in protecting recommendations as to who should be the Parent Coordinator and vulnerable parties and children because, with the appointment of advise their client carefully as to the advantages and disadvantages a Parent Coordinator, there is a neutral third party witness that has of employing one. the authority to testify in court and request an emergency hearing.

Spring 2019 Section of Family & Juvenile Law 5

(continued on page 12) Case Note: State v. Sewell Md Court of Appeals, No. 20, September Term 2018 By: Deena Hausner, Esq.

The Winter 2019 edition of this newsletter contained a case note The Court of Appeals Ruling on Sewell v. State, a Court of Special Appeals decision about Courts and Judicial Proceedings § 9-105 provides, “[o]ne spouse the marital communications privilege. In that opinion the Court is not competent to disclose any confidential communication of Special Appeals overturned Kevin Sewell’s convictions for between the spouses occurring during their marriage.” first-degree murder, first-degree child abuse, and neglect of a Communications between spouses are deemed confidential when minor child, ruling that a crucial piece of evidence, text messages they are “1) ‘expressly made so;’ or 2) ‘the subject is such that the between Sewell and his wife, were marital communications and communicating spouse would probably desire that the matter be the State had not met its burden of rebutting that those texts kept secret, either because its disclosure would be embarrassing were privileged. The Court of Appeals has since reversed the or for some other reason.’” Sewell, 2019 Md. LEXIS 169, 13 intermediate court, holding that spouses do not have a reasonable (citing Coleman v. State, 281 Md. 538, 542 (1977)). However, expectation of confidentiality “when one spouse communicated “the presumption of confidentiality can be rebutted by showing information to the other spouse that the other spouse is under a that the communication was made with the reasonable expectation statutory duty to disclose.” that a third party would learn of it.” Sewell at 18.

So that you need not search for the last edition of this newsletter, The Court of Special Appeals’ decision turned largely on whether here is a brief recap of the facts: Three-year-old Luke spent the spouses have a reasonable expectation of confidentiality with night with his aunt and uncle, Amanda and Kevin Sewell. Luke respect to their text message communications. The Court of spent a couple of hours playing with Kevin after which Amanda Special Appeals found that married parties do have such an noticed bruises on Luke’s neck, chest, arms and legs, as well as expectation, as modern technology affords people the ability black eyes and a knot on his forehead. Amanda alerted Luke’s to lock their phones and thus maintain the privacy of their text mother, but took no further action. The next morning, Amanda messages. The Court of Appeals, in dicta, agreed with this left for work, leaving Luke and his cousin with Kevin. When rationale, but overturned the intermediate appellate court’s ruling Amanda returned from work, Luke seemed to be asleep. Amanda on other grounds. drove Luke back home. Luke’s mother realized that something was wrong with the child and immediately took him to the Enter Family Law § 5-705(a)(1), which provides, “[e]xcept hospital, where he later died. The cause of death was “shaken / as provided [elsewhere in] this subsection, nothwithstanding slam syndrome.” Luke had 40-50 injuries over various parts of any other provision of law, including a law on privileged his body, including trauma to his abdomen and brain and several communications, a person in this State… who has reason to bite marks. believe that a child has been subjected to abuse or neglect shall notify the local department or the appropriate law enforcement agency.” (emphasis added). The Court of Appeals determined that the phrase “notwithstanding any other provision of law” includes the marital communications privilege. Because Kevin, like all other Marylanders, is presumed to know the law, the Court reasoned, he should have known that Amanda would have a duty to report his disclosures about abusing his nephew and therefore did not have a reasonable expectation of privacy in the text messages between himself and his wife.

The Court went on to opine, “[e]xcluding statements regarding child Between the time Amanda left for work and her return home, abuse from the realm of ‘confidential’ marital communications she and Kevin exchanged a series of text messages, which the is also sensible policy aligned with the privilege’s purpose. State introduced into evidence over Kevin’s objection based on The confidential marital communications privilege cannot be a the marital communications privilege. In the messages, Kevin safe harbor for abuse and predation – excluding the invaluable expressed frustration with Luke’s behavior, asked Amanda to testimony of one of the only likely witnesses to such intimate get him “a bottle” to help him recover from his “day from hell,” crimes against such vulnerable victims.” Sewell at 30. In and admitted to biting Luke. Kevin and Amanda also discussed short, disclosures related to child abuse trump the marital that there might be concern about “all the bruises” on Luke and communications privilege. that Amanda would tell her sister, Luke’s mom, that the bruises were already there.

6 Section of Family & Juvenile Law Spring 2019 Trauma to Go: Bringing Your Work Stress Home By: Samantha Rodier, Esq.

Are you familiar with the concepts of Vicarious Trauma or Secondary Traumatic Stress? As a family law attorney, you should be. I had the opportunity to learn about these concepts and how they are relevant to our practice as a result of presenting on the topic at two recent seminars, first with Paul C. Berman, P.h.D., and Laura J. Reagan, LCSW-C, at the Association of Family and Conciliation Courts’ 55th Annual Conference (on behalf of MSBA FJLSC) held in Washington, D.C. in June of 2018, and again with Dr. Berman and Katherine W. Killeen, P.h.D., at the MSBA Family Law University (FLU) held in January 2019 and organized by the Family and Juvenile Law Section. This article will highlight the main points of those presentations with the intention of bringing awareness to the impact of client-trauma on our well-being as attorneys.

Trauma has been defined as a deeply distressing or disturbing Exposure to the trauma of our clients can result in us, as experience which impairs functioning. Vicarious Trauma occurs practitioners, experiencing burnout and compassion fatigue, when, for example an attorney, or another individual in a helping which are symptoms of Vicarious Trauma and Secondary profession such as a therapist or a first-responder, experiences Traumatic Stress. Burnout has been defined as the progressive a negative transformation in his or her worldview as a result of loss of idealism, energy and goals as a result of high levels his or her empathetic engagement with traumatized clients and of personal or occupational stress over time (Figley 2012). their reports of traumatic experience. Secondary Traumatic Compassion Fatigue refers to the emotional and physical Stress differs slightly and has been described as a phenomenon exhaustion that can affect helping professionals and caregivers by which an individual actually becomes traumatized as a result over time, the most insidious aspect being that it attacks the of indirect exposure to trauma experienced by another through very core of what brings helpers into this work: our empathy the recounting of the other’s traumatic experience. and compassion for others (Figley 2012).

Trauma is prevalent in our society. If you are unfamiliar or Vicarious Trauma and Secondary Traumatic Stress, and the curious about the science which demonstrates that trauma symptoms thereof, can harm your emotional and physical health, has quantifiable effects on our physical and mental health, I your interpersonal relationships, and, if no other threat hits home suggest that you start by googling Dr. Nadine Harris’ TED hard enough for attorneys, your job performance and satisfaction. Talk on Adverse Childhood Experiences (ACEs) to get your In plain English, failing to manage your exposure to trauma and bearings.1 Exposure to trauma has been proven to result in higher the stress that said exposure causes can make you a malpractice incidences of chronic illness, cancer, depression, heart disease, risk. Even worse: stress kills. and other maladies. Trauma is not only a hot topic, but a real threat to public health. Signs of Compassion Fatigue might present as: • Exhaustion, Anger, Irritability How is this relevant to us as family law attorneys? Our clients, • Decreased ability to feel empathy and sympathy the litigants, often experience trauma. Working in this arena • Diminished sense of career satisfaction we hear our client’s stories of domestic violence, childhood • Changes to worldview (e.g. thoughts like “what’s the adversity etc. over and over, sometimes daily, assisting them over point?” or “the world is just a dangerous place or “It’s never long periods of time, often in close and confidential relationships; going to change.”) consequently we are at risk of vicarious traumatization and • Heightened anxiety, hypervigilance, never feeling safe secondary traumatic stress. anywhere

1 https://www.ted.com/talks/nadine_burke_harris_how_childhood_trauma_affects_health_across_a_ • Difficulty separating work life from personal life lifetime (continued on page 12)

Spring 2019 Section of Family & Juvenile Law 7 Case Note: Fulgium v. Fulgium MD Court of Special Appeals, No. 1753, September Term, 2017 By: Sarah J. Broder, Esq.

The Court of Special Appeals in Fulgium v. Fulgium presents “shall be granted the marital portion of Mr. Fulgium’s military valuable lessons regarding the calculation of the marital share of pension in accordance with the National Defense Authorization a military pension after the enactment of the National Defense Act of 2017.” Authorization Act of 2017 which was signed into law on December 26, 2016 (herein after “NDAA 17”). Presumably due to the confusion in the trial court’s calculation, the parties were unable to agree on the language for a constituted Brief Overview of Facts and Procedural History pension order (hereinafter “CPO”), so each party submitted Christopher Fulgium (hereinafter “Husband”) and Amy Fulgium his or her own, and the trial court ultimately signed a CPO that (hereinafter “Wife”) were married for a little less than 12 years awarded Wife with “15% of the disposable military retired pay at the time of their divorce trial on May 30, 2017. At trial, Wife of the Member.” requested that she be awarded a share of Husband’s military pension “from the date they got married until the date they got Wife filed a motion to alter or amend the Judgment and CPO, divorced.” which was denied. Wife subsequently filed a timely appeal.

In issuing its oral opinion, the trial court cited the NDAA 17. As The Appeal succinctly explained on the website for the Defense Finance and On appeal, Wife contended that Judge Anderson misinterpreted Accounting Service (hereinafter “DFAS”), the NDAA 17 changed, the Federal law and consequently erred in dividing Husband’s inter alia, the definition of disposable retired pay in the Uniformed military retirement. Predictably, Husband argued that the trial Services Former Spouses’ Protection Act (hereinafter USFSPA), court was correct in how it divided his military pension. at 10 U.S.C. § 1408, such that [i]n the case of a division of military retired pay as property (that Although it will not be addressed here, the opinion provides a becomes final prior to the date of a member’s retirement), the good history of the law regarding division of military retirement military member’s disposable income is limited to "the amount benefits. of retired pay to which the member would have been entitled using the member's retired pay base and years of service on Wife first argued that the traditional Bangs formula should have the date of the decree of divorce, dissolution, annulment, or been used to calculate her share of Husband’s military pension, legal separation" and increased by the cost-of-living amounts rather than Federal law. The Court quickly dismissed this argument granted to military retirees from the time of the (divorce) to because it was inconsistent with what Wife’s counsel argued at the the date the member retires. trial court level, which will be discussed below, and because the language of “[t]he formula set forth in the USFSPA, to the extent See https://www.dfas.mil/garnishment/usfspa/NDAA--17-Court- it is inconsistent with the Bangs formula, preempts state law.” Order-Requirements.html Wife’s next argument was that the Court incorrectly calculated In doing so, the trial court explained that the member’s disposable the formula set forth in USFSPA and that it should have been fifty income at the time of divorce is calculated using “the highest 3 percent (50%) of a fraction, the numerator of which is Husband’s years of continuous pay,” which is “often the most 3 recent years.” years of creditable service during the parties’ marriage and the Judge Anderson purported to estimate what Husband’s retired pay denominator of which is Husband’s total years of service as of would be at the time of the divorce by multiplying his highest three the date of the award. years of pay1 by the retired pay multiplier, which is 2.5 times his creditable service at the time of the order. Husband conceded that the analysis by the trial court in its oral opinion was incorrect, but maintained that the written order, which Judge Anderson used Husband’s three most recent W-2s to reached the same conclusion (i.e., 15% of Husband’s disposable calculate his high-3 and after plugging in the numbers, she retired pay), was correct. concluded that Wife would be entitled to 15% of the disposable retired pay Husband would have received had he retired as of the Given the inconsistency, the Court of Special Appeals found it date of the hearing. There was some confusion about how the trial necessary to remand the case back to the trial court for clarification court arrived at 15%, but Judge Anderson simply ordered that Wife on how it calculated the award to Wife of 15% of Husband’s disposable retired pay. 1 Hereinafter, this article will use the term “high-3” to refer to the servicemember’s highest 3 years of pay. (continued on page 13)

8 Section of Family & Juvenile Law Spring 2019 Family & Juvenile Law Section - 2019 Legislative Update By: Ilene Glickman, Esq. & Daniel Renart, Esq.

1. During the 2019 Legislative Session of the Maryland General 4. Child Support – Extraordinary Medical Expenses: HB Assembly, the Family & Juvenile Law Section provided 742 written and/or oral testimony on 21 bills. The Section Council further considered but did not reach consensus on several This bill alters the definition of “extraordinary medical expenses” other proposed legislation. under the child support guidelines to mean the uninsured costs for medical treatment in excess of $250 in a calendar Despite the large number of proposed bills relevant to our practice year and includes uninsured, reasonable, and necessary costs areas, very few proposed bills passed through the legislative for vision care. process. The following is a summary of the legislation that passed – some of which has not yet been approved by Governor Hogan: 5. Workgroup to Study Child Custody Court Proceedings Involving Child Abuse or Domestic Violence Allegations: 1. Family Law – Parentage and Adoption: HB 519/SB 897 SB 567

These bills make numerous changes to statutory provisions This bill establishes the Workgroup to Study Child Custody regarding parentage and adoption to address the parental Court Proceedings Involving Child Abuse or Domestic rights of same-sex couples and couples who conceive by Violence Allegations. The workgroup must (1) study State means of assisted reproduction. To this end, the bills alter child custody processes for when child abuse or domestic presumptions of parentage for purposes of inheritance and violence allegations are made during court proceedings; specified legal proceedings. The bills also establish an (2) study available science and best practices pertaining to expedited adoption process for an individual who (1) is children in traumatic situations, including trauma-informed married to the prospective adoptee’s parent at the time of the decision making; and (3) make recommendations about how prospective adoptee’s birth or (2) consented to the conception State courts could incorporate in court proceedings the latest of the prospective adoptee by means of assisted reproduction. science regarding the safety and well-being of children and other victims of domestic violence. An interim report must 2. Children in Need of Assistance – Qualified Residential be submitted by December 1, 2019 and a final report is due Treatment Programs (Family First Prevention services by June 1, 2020. Act): SB 1043 6. Criminal Law – Electronic Harassment and Bullying This bill requires a juvenile court to conduct a hearing to review (Grace’s Law 2.0): HB 181/SB 103 the status of a child placed in a “qualified residential treatment program” and determine the appropriateness of Grace’s Law makes several changes to the prohibitions against placement within 60 days after the child enters the placement. electronic harassment and bullying, including prohibiting The juvenile court must make related determinations at a person from maliciously engaging in an electronic a permanency hearing. The court must state in writing, communication if: (1) the electronic communication is part of the reasons for its decisions to approve or disapprove the a series of communications and has the effect of intimidating continued placement of a child in a qualified residential or harassing a minor and causes physical injury or serious treatment program. emotional distress to a minor; and (2) the person engaging in the electronic communication intends to intimidate or harass 3. Child in Need of Assistance – Guardianship by Local the minor, and intends to cause the minor physical injury Department – Financial Accounts: SB732 or serious emotional distress. Additionally, a person who violates the prohibitions with the intent to induce a minor SB732 requires a court, on request of a local department of social to commit suicide is guilty of a misdemeanor, punishable services that has been granted guardianship over a child in by imprisonment for up to 10 years and/or a $10 maximum need of assistance, to issue a separate order granting the fine. All other violations are misdemeanors, punishable local department guardianship authority to establish (1) an by imprisonment for up to three years and/or a $10,000 individual savings account; (2) an “Achieving a Better Life maximum fine. Experience” account, if unable to establish an individual savings account due to the child’s age, or (3) a pooled special 7. Juvenile Law – Continued Detention – Minimum Age: needs trust account. HB 659 (continued on page 15)

Spring 2019 Section of Family & Juvenile Law 9 Case Note: Celso Monterroso Romero v. Josefa Perez MD Court of Appeals, No. 27, September Term, 2018 By: Moges Abebe, Esq.

“Solo voy con mi pena Sola va mi condena Correr es mi destino Para burlar la ley Perdido en el corazón De la grande Babylon Me dicen el clandestino Por no llevar papel”

- Manu Chao (from the song “Clandestino”)

One of the places in which our domestic relations practices can to make a finding of neglect despite the undisputed evidence that intersect with immigration law are in petitions we bring in the the mother had forced the child, starting when he was ten years circuit courts on behalf of a parent requesting that the courts old, and every day for seven years to journey unsupervised and make findings of fact pursuant to the Immigration and Nationality barefoot into snake-infested mountains to gather and transport Act. The findings of the circuit court will then be presented in heavy loads of firewood and that the mother had failed to seek immigration court to help a child (or adult under the age of 21 medical attention for an injury to the child’s wrist and that the years) gain lawful permanent residency in this country. One of child was only able to escape from his harrowing situation by the criterion for the child to be eligible for such relief is securing fleeing to his father in the U.S. factual findings from a state juvenile court that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, The ruling of the Court of Appeals in this case has made our jobs neglect, or abandonment” and that “it would not be in the [child’s] in bringing SIJS cases and judges’ jobs in fact finding easier via best interest to be returned to the [child’s] or parent’s previous two key clarifications: (i) that the burden of proof for the moving country of nationality or country of last habitual residence.” party in an SIJS proceeding is the preponderance of evidence 8 U.S.C. § 1101(a)(27)(J)(i)-(ii). That’s where we, often in standard and (ii) that the circuit court judge should not engage in an coordination with the child’s immigration attorney, step in. exacting inquiry into whether the petitioner has sufficiently proven parental abuse, neglect or abandonment under the Immigration and The Romero v. Perez case originated as a petition before the Nationality Act but rather look at the totality of the circumstances circuit court for Baltimore City by Mr. Romero, that father of a and determine whether prior mistreatment of the child by the 17 year old child, against the child’s mother (i.e. Ms. Perez), a opposing parent precludes a workable reunification of the child resident of Guatemala, seeking sole custody and factual findings with that parent. illustrating the child’s eligibility for Special Immigrant Juvenile Status (SIJS). The circuit court granted the custody petition but Representing a parent on a “Complaint for Custody and Petition declined to find that reunification with Ms. Perez was not viable for Findings of Fact Supporting a Minor Child’s Application due to neglect by her of the child. The circuit court expressed for Special Immigrant Juvenile Status” can be among the most uncertainty about the proper burden of proof on an SIJS petition fulfilling work domestic relations practitioners can do because and found that regardless of whether the burden was clear and we know we are helping our usually undocumented parent client convincing or the lower preponderance standard that the petitioner by bringing security and stability to their child’s life. Thanks to had failed to carry his burden of proof. The circuit court declined this decision we can take on SIJS cases with greater confidence.

10 Section of Family & Juvenile Law Spring 2019 Top Ten... (Continued from page 3)

Qualified Residence Interest deduction is changing: for loans 6 obtained after 12/15/2017, only interest on the first $750,000 of a purchase money mortgage is tax deductible. • No HELOC interest credits for loans obtained after 12/15/17 except for bona fide improvements to the home. • There are nuances here, so consult an expert.

5 The Qualified Residence Interest is allowed on principle residence and one other (including a vacation home), HOWEVER... if a party moves out of the family home, but continues to pay the mortgage on it, they may still deduct the interest so long as their children continue to live in that home.

Legal fees, even those expended in an effort to produce income or 4 in connection with tax issues related to divorce, are no longer tax deductible (even for 2018). Other “standard deductions” that are disappearing in 2018 include: unreimbursed business expenses, brokerage fees, tax preparation fees, state and local taxes, etc.

For MSA’s signed and contested JOAD’s entered after Dec. 31, 3 2018, alimony will be tax deductible to the recipient only.

The change in alimony deductibility is NOT subject to the TCJA 2 sundown provision in 2025.

Post-Dec. 31, 2018 modifications made to existing alimony orders 1 are only subject to the new TCJA alimony tax provisions IF... Expressly elected in the modification – the new tax law willnot automatically apply to modifications of pre-2019 alimony. Make sure you thoroughly review all proposed modifications!

Don’t try this at home kids – if you’re not sure, call your local friendly CPA, CFP, CDFA or tax lawyer. (continued on page 11)

Spring 2019 Section of Family & Juvenile Law 11 View from the Bench... (Continued from page 4)

Judge Younger tells of the criminal defense lawyer cross-examining over a witness, that witness invariably will testify non-responsively. the prosecution’s witness. After a series of questions on cross, the The better attorneys do not get angry or frustrated. They might not person who has professed to have witnessed the incident for which even interrupt the witness, though it may be necessary in some the client stands accused reveals that during the moment of the cases. If the witness completes his/her non-responsive and non- nose-biting he was bird watching and was turned away, such that helpful testimony, object on the ground of non-responsiveness he could not have seen the Defendant bite off the victim’s nose. and any other appropriate ground. But do not stop there. If the Having gotten from the witness all of the testimony needed in testimony is offensive, move to strike it. Be specific about what order to establish that the witness could not personally attest to the testimony should be stricken. If you fail to have the offending gruesome extrication, the examiner then asks the one question too testimony stricken, then it is in evidence. If it is in evidence, it can many re-phrased here: “So, if you were bird watching and you had be used to your client’s detriment. Also, for the especially slippery your back turned at the time of the biting, then how is it that you opposing party witness, if your efforts to keep the witness in line possibly could know that it was my client who bit off the nose?” are unsuccessful, do not hesitate to ask the court to instruct the Answer: “I saw him spit it out.” witness to respond to the questions asked.

Move to Strike: I hope these comments are helpful. A special thank you to my One of the opportunities most often missed is to erase from the colleagues in the Bar who offered great ideas for this edition of record unwanted testimony. No matter how much control one has View from the Bench.

Trauma to Go... (Continued from page 7)

• Dreading going to work, or dreading working with certain traumatic experiences and to insulate ourselves against burnout types of people / situations and compassion fatigue is through the practice of self-care, (Stamm 2009) which can be quite easy to implement and extremely effective in improving you overall well-being if you are intentional in Burnout might present as: doing so on a regular and consistent basis. • Hopelessness • Cynicism During the presentations in DC over the summer of 2018 and • Helplessness at FLU in January of this year the audience was provided self- • Resentment assessment tools by which they stopped and took stock of both • Disengagement their exposure to trauma through their work and their risk for • Feeling numb negative impact as a result thereof. The attendees were tasked • Depression with: • Loss of motivation 1. Assessing their risk by honestly reflect on how they are • Increased physical illness doing (Smith, Segal & Segal, 2015) 2. Identifying changes that need to be made, and 3. Identifying a self-care plan that can be implemented almost Describe the type of people most at risk for burnout and you immediately might think you are reading a description of the qualities of the common litigator: perfectionists, Type-A personalities, persons Self-care can include vacations, but an occasional break from the unwilling to delegate, persons with tendencies to overwork, office is not sufficient or regular enough on its own. Self-care those lacking adequate sleep and lacking close and supportive needs to be a daily practice. Audience members discussed their relationships. various self-care practices including, but not limited to, regular exercise, healthy eating habits, meditation, spending time with Some of you are probably now thinking “great, as if the practice of law wasn’t stressful enough?” The good news is that the way (continued on page 13) to bolster yourself against the impact of exposure to our client’s

12 Section of Family & Juvenile Law Spring 2019 Trauma to Go... (Continued from page 12) family and friends, pets, and time in nature. Simply having fun • Fellitti, V. J., Anda, R. F., & Nordenberg, D. (1998). and finding simple joy in daily living, on a consistent basis, is Relationship of Childhood Abuse and Household far more effective in combating stress and trauma than ten days Dysfunction to Many of the Leading Causes of Death in in Aruba once a year. Adults: The Adverse Childhood Experiences (ACE) Study. American Journal of Preventive Medicine, 14(4), 245-258. There is an abundance of literature on Trauma, Vicarious Trauma and Secondary Traumatic Stress, as well as Burnout and If you are experiencing any troubling symptoms or are concerned Compassion Fatigue, should you be interested in learning more about a friend of colleague who may be impacted by trauma and about these concepts. Below are references of note: stress, MSBA members are encouraged to reach out to the free • Figley Institute, The Basics of Compassion Fatigue and confidential Lawyers Assistance Program (1-800-492- Workbook, 2012 1964) for help and guidance. • Understanding Secondary Trauma: A Guide for Lawyers Working with Child Victims, Christina [NB: This article would not exist without the generous • Rainville, ABA Child Law Practice, Vol. 34 No. 9, contributions of content, time, knowledge and expertise of Drs. September 2015 Berman and Killeen and Laura Reagan. Thank you.] • National Task Force On Lawyer Well-Being, Creating a Movement to Improve Well-Being in the • Legal Profession,August 14, 2017

Fulgium... (Continued from page 8)

The Court explained that the trial court properly performed the Although it was initially addressed in Hurt v. Jones-Hurt in the following steps: context of division of a servicemember’s disability pay, Fulgium 1. Determining Husband’s average salary for the three years solidifies Maryland’s position that our equitable distribution laws prior to the order (i.e., his “high-3”)2; are preempted by the USFSPA to the extent they are inconsistent 2. Calculating a hypothetical retired pay amount by using the therewith. standard retired pay multiplier of 2.5% times Husband’s years of creditable service3; and The Fulgium opinion also provides a very thorough background 3. Multiplying Husband’s high-3 by the hypothetical retired pay on the NDAA 17, explaining very clearly that the NDAA 17 multiplier, to get Husband’s hypothetical base pay amount essentially “freezes” a military servicemember’s disposable retired as if he had retired on the date of the award. pay as of the date of divorce for purposes of calculating a former spouse’s share of that pension. In doing so, the Court states that the According to the Court of Special Appeals, the trial court’s servicemember’s hypothetical retired base pay is calculated using misstep was in its calculation of the marital share of Husband’s his or her rank and years of creditable service as of the date of hypothetical disposable retired pay; it was unclear to the Court divorce, which is something the trial court in Fulgium did correctly. how Judge Anderson calculated Wife’s portion of the marital share of Husband’s military pension to be 15%. Therefore, the But what is still unclear, even after Fulgium, is how to calculate the Court remanded the case back to Judge Anderson to clarify her marital share of a servicemember’s hypothetical retired base pay. findings and calculation. As cited by the Court in Fulgium, the traditional Bangs formula Takeaway is a fixed percentage of any future payments the servicemember receives under the pension plan, payable to the former spouse, as, 2 The Court found this analysis to be “essentially correct” and likely did not dissect it because neither if and when paid to the servicemember. This usually translates into party objected to the Court’s calculation of Husband’s high-3. 3 This is the correct retired pay multiplier for servicemembers who entered service between 1984 and December 31, 2017. Commencing January 1, 2018, all servicemembers who enter service thereafter have a retired pay multiplier of 2.0%. (continued on page 14)

Spring 2019 Section of Family & Juvenile Law 13 Fulgium... (Continued from page 13) the following calculation: 50%4 times a fraction, the numerator following facts: (1) the servicemember’s high-3 is $50,000 per of which is the number of months of creditable service during the year (or $4,166.67 per month), (2) the servicemember had 12 years marriage and the denominator of which is the number of months (or 144 months) of creditable service during the marriage, which of creditable service as of the date of retirement. began on the date of marriage, (3) the servicemember retired after exactly 20 years of creditable service (or 240 months) and (4) the The Court states that “[t]he formula set forth in the USFSPA, to servicemember was not retired as of the date of divorce: the extent it is inconsistent with the Bangs formula, preempts state law,” but it does not go further to explain what parts of Bangs are Option 1: Freezing the Denominator at Date of Divorce (the inconsistent with the USFSPA other than to state that the amount of Fulgium approach) the future payments the servicemember receives under the pension 50% x 144 months = .50 or 50% plan are now calculated as if the servicemember retired with the 144 months years of service and rank he or she had as of the date of divorce. With this option, the former spouse would be entitled to $25,000 At the trial court level, Wife’s counsel argued that the NDAA per year, or $2,083.33 per month from the servicemember’s 17 altered the Bangs formula, stating that “the bottom number is disposable retired pay. frozen as of the time that the parties get divorced, so even though the pension will continue to grow for Mr. Fulgium, my client’s Option 2: Using the Bangs formula to calculate the marital share not entitled to share in that anymore and that’s nothing that this 50% x 144 months = .30 or 30% Court decides, it’s just what the Federal law now is.” 240 months

It does not appear from the Court of Special Appeals opinion that With this option, the former spouse would be entitled to $15,000 Husband ever disagreed with Wife’s contention in that respect, so per year, or $1,250.00 per month from the servicemember’s the Court of Special Appeals went with it. The problem is that if the disposable retired pay. bottom of the fraction in the Bangs formula is frozen, that change actually benefits the former spouse, which was not Congress’s It is clear from the above example that Option 2 is more beneficial intent in changing the definition of “disposable retired pay.” to the servicemember. Although the Court did not use that formula in Fulgium, it did not expressly state that Option 2 was Referring to a report from the Congressional Research Service5, prohibited. Given Congress’s intent behind NDAA 17, which was the Court of Special Appeals noted that Congress’s “rationale to prevent the former spouse from benefitting from post-divorce for using a ‘date of divorce’ method for pension valuation was promotions and creditable service, it makes more sense to keep that a former spouse would not receive a windfall benefit from the denominator as “total months of creditable service as of the promotions and other pay increases that accrued from the date date of retirement,” which reduces the overall coverture fraction in of divorce to the date of retirement, to which the former spouse favor of the servicemember. In other words, using the traditional made no contribution.” Bangs formula to calculate the marital share of the hypothetical retired pay is more consistent with the USFSPA, than what the A numerical example is helpful to see the difference. Assume the Court did in Fulgium.

4 The Court in Fulgium properly notes that there is no requirement that a former spouse receive 50% of It seems that we will have to wait for another reported opinion or the marital share of a pension benefit, but this article will use 50% for simplicity. legislation to clarify that issue. 5 Kristy N. Kamarck, Cong. Research Serv., RL31663, Military Benefits for Former Spouses: Legislation and Policy Issues, at 15 (2018).

14 Section of Family & Juvenile Law Spring 2019 Legislative Update... (Continued from page 9)

support award for families with a combined income of HB 659 prohibits the continued detention, beyond emergency $30,000.00, rather than the current $15,000.00, providing detention, of a child younger than age 12 unless the child is guidelines for cases in which the combined monthly income alleged to have committed a crime of violence or is likely to is less than $1,250 thereby lessening court discretion and leave the jurisdiction of the court. allowing for consistent outcomes in more cases.

Highlights: Proposed Legislation That Did Not Pass Other proposed child support bills included: (1) HB741 – Child Support Guidelines – Treatment of Alimony, which 1. Child Support: A significant amount of work was done prior addressed the treatment of alimony, which is now not to the Session by a child support commission to address many deductible by the tax payor for federal income tax purposes, in issues related to child support. Four bills were proposed as the calculation of child support. (2) HB937 – Child Support a result of the Commission’s works: – Eligibility of a Child Who Has Attained the Age of 18 HB 726/SB762 – Child Support – Potential Income, Voluntary Years which attempted to provide for child support though Impoverishment and No Support Order. These bills age 21 under certain circumstances. attempted to codify the case law regarding voluntary impoverishment and potential income and allow the court 2. Grounds For Divorce to decline to establish a child support order under certain circumstances. HB 402 authorized the court to grant an absolute divorce on the ground of separation of affection if the parties have not HB731/SB638 – Child Support – Shared Physical Custody. engaged in sexual relations for a 12 month period. The This bill was proposed to address the dramatic drop in child bill also proposed eliminating limited divorce and the 12 support once a parent reaches the 128 overnights with a child. month separation ground. The Section opposed the bill. The goal of this legislation was to have the focus of access However, the goal of making divorce more accessible to schedule negotiations and litigation be the best interests of families who for many reasons, including financial, are not the child, rather than the amount of child support to be paid. able to effectuate a physical separation is a concept that was supported by many. HB279/SB639 – Child Support – Multifamily Adjustment and Deviation from Guidelines providing for the calculation of 3. Domestic Violence a certain allowance required to be deducted from adjusted actual income under the child support guidelines in certain HB122/SB209 – Protective Order – Relief Eligibility – Rape circumstances when a parent has children from a relationship and Sexual Offenses. This proposed legislation removed other than the one at issue in the case at bar. Because of the rape and certain sexual offenses from the list of offenses increase in “blended families” and the need for a uniform alleged to have been committed by the respondent against approach to calculating child support in such families, the a victim for which a peace order is sought and altering the Section testified in support of these bills. definition of a “person eligible for relief’ for a protective order to include an individual who alleges the commission HB732/SB763 – Child Support Guidelines – Revisions. of a rape or certain sexual offenses. Because the current guidelines are based on economic data that is over a decade old this bill provided for revisions to 4. Marriage Age Requirement the schedule of the basic child support obligations used to calculate the amount of child support to be awarded, extended The Section testified in support ofHB855/SB231 which proposed the guidelines to provide for a presumptively correct child raising the age to marry to 18.

(continued on page 19)

Spring 2019 Section of Family & Juvenile Law 15 Maryland State Bar Association Section of Family and Juvenile Law 520 West Fayette Street Baltimore, Maryland 21201