A.A. v. Ab.D.

A.A. v. Ab.D. No. 3499, Sept. Term, 2018 Opinion by Leahy, J. Family Law > Child Custody > Discovery Violations > Sanctions The best interests of the child standard is the leading consideration for the court in deciding whether to preclude a party from introducing evidence as a discovery sanction in a child custody case. Children have an indefeasible right to have their best interests fully considered. See Flynn v. May, 157 Md. App. 389, 410 (2004). Family Law > Child Custody > Discovery Violations > Sanctions Normally, we evaluate a trial courts’ discovery sanction in a civil case through a well- defined lens—abuse of discretion.

Rodriguez v. Clarke, 400 Md. 39, 57 (2007); see also Das v. Das, 133 Md. App. 1, 15 (2000) (“Abuse of discretion occurs ‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.”’ (quoting North v. North, 102 Md. App. 1 , 13–14 (1994))). However, before we look through that lens in a child custody case, we must be satisfied that the court has applied the best interests of the child standard in its determination. Family Law > Child Custody > Discovery Violations > Sanctions In a child custody case, the court has an absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child, as articulated in Montgomery Cty. Dep’t of Soc.

Servs. v. Sanders, 38 Md. App. 406, 420 (1977), and, with particular relevance to a consideration of joint custody, as articulated in Taylor v. Taylor, 306 Md. 290, 303 (1986). This supreme obligation may restrain the court’s broad authority to exclude evidence as a discovery sanction. Family Law > Child Custody > Discovery Violations > Sanctions We hold that the circuit court erred in prohibiting Mother from presenting any testimony or evidence, aside from the limited information Mother provided in response to Father’s discovery requests, without considering the impact that the sanction would have on the best interests of the children. We do not disturb the court’s conclusion that Mother’s responses were deficient and sanctionable, but the court’s discovery sanction effectively precluded the court from considering potentially significant evidence directly relevant to the Sanders- Taylor factors in its determination of what custody arrangement would be in the best interests of the children.

Family Law > Child Custody > Discovery Violations > Sanctions A court commits legal error when it makes a decision that impacts a custody determination without first considering how that decision will affect the child’s “indefeasible right” to have his or her best interests considered. See Flynn v. May, 157 Md. App. 389, 410 (2004). As a matter of first impression, we hold that it was error for the court to impose a discovery sanction that precluded the court from receiving evidence without first ascertaining whether the evidence was relevant [i.e. relevant to the Sanders-Taylor factors] in determining which custody arrangement was in the best interests of the children. Family Law > Child Custody > Discovery Violations > Sanctions The court’s independent obligation to the child[ren] requires that, before ordering the exclusion of evidence as a sanction, the court should take a proffer or otherwise ascertain what the evidence is that will be excluded, and then assess whether that evidence could assist the court in applying the Sanders-Taylor factors in its determination of the best interests of the child[ren].

When the court completes this assessment, we review any discovery sanction it imposes thereafter for an abuse of discretion. Circuit Court for Montgomery County Case No. 93208-FL REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1439 September Term, 2019 ______________________________________ A.A. v. AB.D. ______________________________________ Fader, C.J., Leahy, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: June 5, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-06-05 11:19-04:00 Suzanne C. Johnson, Clerk In this appeal from an order modifying child custody, we resolve that the best interests of the child standard is the leading consideration for the court in deciding whether to preclude a party from introducing evidence as a discovery sanction in a child custody case.

Children have an indefeasible right to have their best interests fully considered. See Flynn v. May, 157 Md. App. 389, 410 (2004). Appellant, A.A. (“Mother”), appeals from an order of the Circuit Court for Montgomery County granting the motion to modify child custody filed by appellee, Ab.D.

(“Father”). Among other things, the court ordered joint legal and shared physical custody and gave Father tie-breaking authority. Mother, who is self-represented in this appeal, raises numerous issues from which we have distilled one that is dispositive: 1 Did the circuit court fail to consider the best interests of the children by precluding Mother from introducing relevant evidence in a custody proceeding as a discovery sanction for Mother’s failure to adequately respond to Father’s discovery requests? We hold that the circuit court erred, under the circumstances of this case, by precluding Mother from presenting evidence as a discovery sanction without first considering whether that evidence was relevant to the court’s determination of the best interests of the children.

Accordingly, we vacate the circuit court’s order and remand to the circuit court for further proceedings consistent with this opinion. 1 The questions presented by Mother in her brief appear in Appendix A at the end of this opinion. BACKGROUND Mother and Father are the parents of two children: I.D., born in 2005, and A.D., born in 2009.2 Mother and Father lived together with I.D. and A.D. until 2010, when, according to Mother, she left the family home and established a separate residence for herself and the children. Father, in turn, moved to Florida in 2011, where he lived for approximately five years before returning to Maryland in March of 2016 with his new wife. Mother’s Custody Complaint In 2011, Mother filed a “Complaint for Custody and Other Relief” in the Circuit Court for Montgomery County requesting, among other things, sole legal and physical custody of the children.

Mother alleged that “it is the best interest” of I.D. and A.D. “that [Mother] be granted residential and sole legal custody” and requested that any visitation granted Father be supervised. Father was served with process by the sheriff but failed to file an answer to the complaint. Mother filed a request for an order of default, which was granted with leave to present testimony in the circuit court in support of her complaint for sole legal and physical custody. Father did not challenge the order of default.

Following a hearing, the circuit court awarded Mother sole legal and physical custody of I.D. and A.D on November 18, 2011. The court further ordered that “any visitation by [Father] with the Minor Child[ren] shall be supervised by [Mother’s] brother . . . and shall be established by prior agreement with [Mother] provided adequate notice is given to [Mother] for any such visitation request.” 2 The parties agree that they were “married religiously” but it appears from the pleadings filed that they disagree as to whether they were ever legally married. 2 Father’s Motion for Modification of Visitation On October 23, 2015, Father filed a “Motion for Modification of Visitation.” Father alleged that Mother had “interfered with [Father’s] visitation and communications” with I.D. and A.D. and “relegated [Father’s] visitation rights to accommodate her whims.” Father amended his motion for modification on June 2, 2016 to indicate that he had “relocated to Montgomery County, Maryland for the sole purpose of being closer to his children” and that Father lived “close enough to the minor children to allow for frequent, consistent, and unsupervised visits.” On June 7, 2016, the circuit court ordered a custody and visitation evaluation. The court-appointed custody evaluator appeared on August 26th and presented her findings and recommendations. Following three days of hearings, the circuit court ruled that “it’s in the child’s best interest that primary physical custody and sole legal custody remain with the mother at this time, but that the father will have access that will be unsupervised.” The circuit court declined to grant overnight access during the weekend, due to the Father’s schedule, or during the school week, because “it would be disruptive to the school schedule.” The court memorialized its ruling, on October 19, 2016, in a written order granting Father’s motion.

The order established a visitation schedule. Mother was ordered to “keep [Father] informed of all matters regarding the minor children as it relates to issues of legal custody, including but not limited to: school, grades, health, hospitalizations, medical treatment, doctor’s appointments, religious upbringing, etc.” Both parents were to attend their children’s therapy sessions and split the costs thereof. 3 Father’s Motion for Modification of Custody Less than two years later, on July 27, 2018, Father filed a “Motion for Modification of Custody” and alleged that, since the October 19, 2016 Order, “several changes have occurred which directly affect the minor children and their best interest.” Specifically, Father stated that his work schedule changed from the weekends to a ‘“regular’ work schedule [which] allow[ed] [Father] to have more time with the minor children.” Father also claimed that Mother had denied him access to the children, unilaterally altered the court-ordered visitation schedule, and “essentially ‘lord[ed]’ her position as the primary custodian, over [Father] to better serve her whims, and not the best interest of the minor children.” (Emphasis in original.) In his “Amended Motion for Modification of Custody” filed on August 30, 2018, Father further noted that Mother had elected to homeschool the children without consulting him and alleged that the academic calendar Mother developed reduced I.D. and A.D.’s vacation days, resulting in “a concomitant reduction in [his] access/visitation with the minor children.” In her answer to Father’s amended motion, Mother denied having interfered with the visitation schedule and further asserted that the children’s best interests would not be served if the parties shared custody because Father “has shown himself defiant of the orders of this [c]ourt with respect to child support and the children’s schedule, and he has demonstrated no desire to work cooperatively[.]” The circuit court set a hearing on Father’s motion to modify custody for March 18, 2019. 4 The Discovery Dispute In anticipation of the hearing on his amended motion for modification, on November 27, 2018, Father propounded interrogatories and a request for production of documents. Thereafter, new counsel for Mother entered her appearance, and Mother’s prior counsel withdrew from the case. Mother, though her new counsel, sent by electronic mail her responses to Father’s interrogatories on January 3, 2019.

Of the 23 interrogatories propounded to Mother, Mother’s counsel objected and did not otherwise respond to eight, claiming that they were irrelevant and that “much of the information was provided in previous litigation[.]” Counsel objected to—and did not answer—most of the interrogatories concerning her finances. Mother’s counsel further objected to Father’s interrogatory no. 14, which sought conversations between the parties concerning the children because this “[c]ommunication . . . takes place primarily through email[,] and [Father] has access to these emails. Production of such emails would be duplicative and overly burdensome.” Counsel also omitted the contact information of the individuals whom Mother identified as having knowledge of the facts underlying the case. Mother’s counsel did not respond to Father’s request for production of documents until February 14, 2019—almost three months after they were served.3 Of Father’s 65 discovery requests, counsel objected to 50, claiming that 45 of them were “irrelevant 3 Although Mother’s response is dated February 14, 2019, it lacked a certificate of service.

Mother did not file a notice of discovery with the court pursuant to Maryland Rule 2-401(d)(2). 5 document[s] . . . related to financials” and that the remaining five were either irrelevant or duplicitous. On February 15, 2019, the day after receiving Mother’s response, Father’s counsel filed a “Motion to Compel and for Sanctions,” alleging that Mother had not responded to his November 27, 2018 request for production of documents. In her answer to Father’s motion, Mother’s counsel claimed that she had timely responded to all of Father’s discovery requests. On March 13, 2019,4 Father’s counsel filed a “Second Motion to Compel,” along with a “Motion to Shorten Time” to require Mother to respond by noon on March 14.

In his second motion to compel, Father’s counsel alleged that Mother’s responses to his discovery requests were “highly deficient” and that her “failure to properly and fully respond” had prejudiced his ability to prepare for the hearing. In an order entered the following day, the court instructed Mother to file an answer to Father’s motion by 3:30 p.m. on March 14. Mother’s counsel did not, however, respond until March 18—the first day of the hearing on Father’s motion to modify custody. At the hearing, the circuit court received argument on Father’s second motion to compel (he conceded that the first motion was moot).

Father’s counsel argued that the second motion was predicated on “a number of deficiencies with both the interrogatory responses and the document production,” and expounded that, among other deficiencies, Mother “refused to produce a single financial 4 The certificate of service indicates that the motion was “sent via facsimile and mailed” to Mother’s counsel on March 12, 2019. 6 document,” refused to produce “any emails based on the fact that it would be duplic[ative],” and “[i]n essence, . . . barely produced anything in this case.” Counsel for Father moved in limine to exclude both the testimony of witnesses for whom Mother had failed to provide contact information and, with the exception of financial documents, any evidence Mother had declined to produce during discovery.5 In response, Mother’s counsel advanced three points. First, that she had not received any document requests addressed to Mother.6 Second, that, nevertheless, she had responded as required.7 And, third, that Mother was not required to produce documents and information that was already in Father’s possession. The following colloquy ensued: THE COURT: So is it your understanding of the general discovery requirements that if your client believes that the other side has information about the information they’re seeking that your client’s not obligated to answer the question? 5 As to Mother’s financial documents, Father requested that the court order Mother’s counsel to “produce them this evening so that we can review them for tomorrow.” 6 The document requests were addressed to Mother, but due to a scrivener’s error, the instructions in the first paragraph on page one of the requests were directed to another individual, unrelated to the dispute. The judge questioned how counsel could assert that the requests were not directed to Mother when “[t]here is no other plaintiff, and these can only be [served on] a party.” 7 Mother’s counsel asserted that Mother’s financial documentation was irrelevant because Father “won’t be able to prove to the [c]ourt that there are any circumstances that would warrant a change in custody, either in physical or in legal.” The court replied: Well, at this point, the motion to modify custody is not – it’s not simply a motion to modify access. [Father] is seeking a change of legal custody and physical custody from sole to joint.

I don’t know what the evidence is going to be, but that’s what they pled, so it’s not just simply an access case. It’s a custody case, so it’s a modification of legal custody, it’s a modification of physical custody. 7 MOTHER’S COUNSEL: It’s my understanding that if it would cost less, if it would be less burdensome for the requesting party to get the documents and the information requested, then it would be improper to require the other party to incur the expense and the burden to secure those documents when they already have them. THE COURT: Okay. So you don’t think it’s a requirement that if that’s the case to make that objection and to seek protection from the court to prevent your client from having to produce documents?

Or do you think it’s just a unilateral decision, we think he had it, therefore, we’re not going to turn it over? MOTHER’S COUNSEL: I think that it is a good idea to seek protection from the court. After the conclusion of the parties’ arguments, the court granted Father’s motion. The court ruled: [I]t is the obligation of parties to respond or, if they have a valid objection, to make the objection and to produce documents and to answer interrogatories.

In this case, the responses that are the production of documents from [Mother] [are] woeful at best. So, I’m going to grant [Father’s] motion where documents were requested, and they were not turned over, then [Mother] is not going to be permitted to introduce documents at this point. Where witnesses and information of witnesses was requested, and it wasn’t turned over, those people will not be permitted to testify. The Hearing on Father’s Motion to Modify Custody After resolving the motion to compel and request for sanctions, the circuit court proceeded with a two-day hearing on Father’s motion to modify custody.

Following opening arguments, Father’s counsel called Mother as the first witness. Mother testified that, although in her view the best interests of the children were served by letting them remain in her sole physical and legal custody under the current schedule, she was amenable to discussing changes to the schedule which would be “best for keeping [the 8 children’s] consistency and a good schedule for them.” Mother worried that I.D. and A.D.’s academic progress, social activities, community engagement, and family relations would suffer if Father were granted an overnight schedule during the week. Father testified next and explained that his work schedule had changed from weekends to Monday through Friday between the hours of 7:00 a.m. and 3:00 p.m. He pointed out that, at the 2016 hearing to modify visitation arrangement, the circuit court noted that it would “probably grant some weekend overnight if that could be done except that, with the [F]ather’s work schedule right now, I don’t think that that is practical.” Father added that he moved his residence in May of 2017 to be closer to I.D. and A.D. Father also testified that Mother had not kept him properly informed of issues relating to the Mother’s custody of I.D. and A.D. Specifically, Mother would schedule appointments and activities on Father’s scheduled visitation, and otherwise enroll the children in activities, without first consulting him.

Also, Father testified that Mother had unilaterally altered the children’s school schedule and placed the children in homeschool, which Father argued reduced his allotted visitation with I.D. and A.D. According to Father, before Mother homeschooled the children, Mother had requested that Father be offered only limited access to information from the children’s school and scheduled parent-teacher conferences without first consulting Father. In addition to limiting access from other sources, Father presented evidence that Mother had failed to respond to Father’s information requests regarding the children’s academic progress. While Father was reluctant for I.D. and A.D. to be homeschooled, he testified that he would drop the children off with Mother for instruction during his assigned days, if he were granted overnights on 9 a regular basis. Father maintained that he was willing to work with Mother for the benefit of their children.

Father also testified that Mother objected to Father’s participation in certain activities with the children. For example, Mother objected when Father had taken the children to get haircuts because, as Father testified, Mother felt that it undermined her authority as the custodial parent. Mother also refused to allow the children to attend a PG- 13 movie with Father, despite Father’s understanding that the children had viewed similarly rated films previously. According to Father, Mother’s failure to communicate resulted in less visitation than ordered.

Mother testified in her case, over Father’s objection.8 Mother’s testimony was limited by the circuit court, however, to the subjects she addressed in her answers to Father’s interrogatories. Accordingly, Mother was only permitted to testify concerning: her income (Interrogatory Nos. 3 and 4); her educational background (No. 13); the custody and/or visitation schedule that Mother believed to be in the best interests of the children (Nos. 15 and 16); whether Father was fit to have physical custody of the minor children (No. 19); the homeschooling program (No. 22); and Mother’s involvement in that program (No. 23). 8 Father objected to Mother’s testimony because she had not identified herself as a person of knowledge in her interrogatory responses. Mother’s counsel responded that Mother responded to the interrogatories and “identified herself solely[,]” and that it “would be a miscarriage of justice to issue an order without allowing the mother of the children at issue to testify as to important things relating to their education . . . and the potential schedule[.]” 10 Mother testified that she chose to place the children in homeschool because, among other reasons, I.D. and A.D. were having education difficulties and social anxiety. Mother also testified that she had financial constraints relating to paying for the children’s private school tuition and other obligations.

Mother attributed the children’s educational difficulties, in part, to the visitation schedule. However, the circuit court sustained an objection when Mother’s counsel attempted to elicit further detail concerning evidence of the children’s educational difficulties as reflected in their report cards, because the report cards were not produced in discovery: MOTHER’S COUNSEL: And after starting their visitation with their father? MOTHER: [I.D.]’s grades progressively declined. By the time that he exited [private] School in the spring of 2018, he was getting Cs and Ds, and this is after direct intervention - - FATHER’S COUNSEL: I’m going to object and move to strike, Your Honor.

These should have been provided. We should have these documents. THE COURT: I’ll sustain the objection. MOTHER’S COUNSEL: Your Honor, the plaintiff attested to this information in her interrogatory responses that before the children were visiting with [Father], they were doing fine, and then afterwards, they weren’t.

FATHER’S COUNSEL: But now we’re getting into actual grades, which is different. She’s saying they were fine, that’s fine. She can say they’re fine, but now she wants to say what their grade point averages were. THE COURT: Right.

I’ll sustain the objection. Mother further testified that she attempted to communicate with Father concerning the children’s activities, their appointments, and other aspects involving the children but that “in [her] experience, it hasn’t really been productive.” Mother continued, “it becomes 11 very burdensome to try to focus on my kids’ education, caring for them as a mom, work and also being bombarded with questions that, again, is [sic] my understanding have already been addressed.” Because of how difficult it was to communicate with Father, Mother testified that it would not be possible to share legal custody. The court sustained objections relating to Father’s contributions to the children’s private school education, Mother’s attempt to involve Father in the children’s homeschooling program, and how sharing physical custody would affect the children’s education. The objections were sustained because the topics were outside the scope of subjects on which Mother was permitted to testify under the court’s discovery sanction.9 Following closing arguments, the court elected to take the matter under advisement, so that the court could “review all of the evidence, testimony and exhibits in relation to the closing arguments[.]” Because Mother’s counsel had failed to include the contact information for the people whom Mother identified in her interrogatories as having “knowledge regarding the facts and/or circumstances involved in this action[,]” Mother was not able to call any 9 For example, the following exchange occurred in relation to Father’s contributions to the children’s private school education: MOTHER’S COUNSEL: What efforts, if any, did [Father] make to help you with that financial issue [maintaining enrollment in private school]?

MOTHER: None. FATHER’S COUNSEL: Objection. This goes outside the scope, Your Honor. This wasn’t addressed in any of the answers.

THE COURT: All right, sustained. 12 witnesses. Furthermore, Mother was limited to introducing into evidence only those documents that her counsel produced in response to the document requests. Consequently, approximately 60 of Father’s exhibits were introduced and admitted during the two-day evidentiary hearing, whereas Mother introduced two exhibits and had one admitted. Finally, the custody evaluator from the prior hearing was not called as a witness, nor was a revised report requested or presented.

The Court’s Ruling On August 12, 2019, the judge explained his findings and ruling in open court. At the outset, the court ruled that there had been material changes in circumstances. The court noted that Father’s new employment permitted Father to have a “more traditional work schedule” and be available on weekends. Father’s change of residence “to be closer to [Mother] [was] also . . . a significant fact that would allow an access schedule to be facilitated between the parties.”10 The court further determined that the best interests of the children would be served by changing the custodial arrangement.

The trial judge cited several reasons in support of 10 On appeal, Mother does not challenge the court’s ruling that material changes in circumstances had occurred following the prior court order in 2016. In determining whether to change an existing custody order, the court engages in a two-step analysis. First, the court must ascertain whether there has been a “material” change in circumstance. McMahon v. Piazze, 162 Md. App. 588, 593-94 (2005) (citing Wagner v. Wagner, 109 Md. App. 1, 28 , cert. denied, 343 Md. 334 (1996)). “If a finding is made that there has been such a material change, the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody.” Id.

We note that when the “visitor” parent seeks to transfer custody of a child from the “custodial” parent, the moving party bears the burden of “establish[ing] that the modification is necessary to safeguard the welfare of the child.” Shunk v. Walker, 87 Md. App. 389, 397-98 (1991). 13 his determination. First, he reasoned that under the prior arrangement, Mother had not kept Father apprised of the children’s academic performance and had unilaterally scheduled doctors’ appointments and teacher conferences “during the very few hours that [Father] had access to the children.” Second, the court deemed Mother’s decision to homeschool the children particularly significant to its finding. The trial judge noted that Mother had made that decision without advising Father or seeking his input beforehand. Finally, the court stressed that Mother had become overbearing and inflexible with respect to Father’s activities with the children.

In granting the parties joint legal and shared physical custody, and, in awarding Father tie-breaking authority, the court expounded: They both seem to be very interested in their children’s lives. . . . [Both] parents seem to be very active in their children’s lives and motivated to make decisions for the children. Given the history of [] this case, where I think [Mother] had not really done a very good job in keeping [Father] apprised of what’s going on, I’m going to grant joint legal custody, and I’m going to grant, in the event that the parents are unable to reach a mutual decision, I’m going to grant [Father] the tie-breaker decision authority in this case. I believe there has to be tie-breaking authority assigned to one or the other, and I believe if I granted that tie-breaker to [Mother], that things would not change as they are right now. That she would just simply continue to make decisions on her own.

So, my hope is that [Father] has learned from this experience, and . . . that the two will consult with one another, and make joint decisions as parents should do, and that [Father] w[ill] exercise tie-breaker authority with reasonable restraint when the time is required for that. Regarding the physical custody of the children, given now the age of the children and the proximity of where the parents now live to one another, and there was testimony . . . that the boys wanted to spend more time with each of the parents[,] I’m going to make this a shared physical custody 14 situation where the parents are going to share the custody of the boys 50- 50[.] The court then proceeded to establish a shared custody schedule. The court memorialized its ruling in a written order entered August 15, 2019. Mother noted a timely appeal. 2016 Custody and Visitation Evaluation11 The court-appointed custody evaluator, Ms. Jennifer Schwartz, testified on August 26, 2016 during the prior hearing on Father’s prior motion for modification and presented her oral report on the record.12 Ms. Schwartz first explained the scope of her evaluation.

She interviewed the parents and children individually and observed the parents with the children and members of their households. Ms. Schwartz also reviewed correspondence 11 Although the custody evaluator’s report was not introduced into evidence in the underlying 2019 custody hearing, the transcript of her testimony was included in the record and the Supplemental Record Extract. See Kennedy v. Kennedy, 55 Md. App. 299, 310 (1983) (“[T]he equity courts in Maryland have plenary authority to determine any question concerning the welfare of children within their jurisdiction, and such power does not terminate once the initial custody, support and visitation rights have been established. Rather, the courts are required to monitor the welfare of children in their jurisdiction and promote the children’s best interests.” (citations omitted)).

We