Alexander v. Alexander

Shelton Alexander v. Tamara Alexander, No. 1320, September Term 2020. Opinion by Salmon, James P. (Senior Judge, Specially Assigned). CUSTODY AND VISITATION – Under Maryland Code, Family Law Article § 9-105, the court can deny make-up time to a parent who has unjustifiably been denied visitation access, if the court finds that such a denial is in the best interests of the child.

Circuit Court for Frederick County Case No. 10-C-13-002794 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1320 September Term, 2020 ______________________________________ SHELTON ALEXANDER v. TAMARA ALEXANDER ______________________________________ Friedman, Ripken, Salmon, James P. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Salmon, J. ______________________________________ Filed: July 28, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-01-06 10:39-05:00 Suzanne C. Johnson, Clerk Shelton Alexander (“Father”) and Tamara Alexander (“Mother”) were married in 2004. A son (“S.”) was born to the marriage in August of 2006. The marriage was ended on July 28, 2014 when the Circuit Court for Frederick County, Maryland entered a final judgment of divorce.

Father appealed from the entry of that judgment, but this Court affirmed it in an unreported opinion. Alexander v. Alexander, No. 2189, Sept. Term, 2014 (filed July 16, 2015). More litigation followed, most of it concerning custody and visitation issues. In 2017, Father moved to modify custody, visitation and child support and in October of that year, Mother filed a counter-motion asking the court to grant her sole legal and primary physical custody of S. An eleven-day merits hearing was held on that matter, which ended on August 8, 2019.

On September 3, 2019, the Circuit Court for Frederick County filed a custody order (“the final custody order”) that granted Mother sole legal and primary physical custody of S. Father was granted access to S. every other weekend from after school on Friday until Monday morning, plus every Wednesday evening from 6:30 P.M. to 8:15 P.M., so that S. could attend a church youth group. The court set forth in its order a detailed holiday schedule and granted each party two-week blocks of summer access in July, with the orders of the blocks alternating year-to-year. Father appealed that order, but we affirmed the judgment in another unreported opinion. Alexander v. Alexander, No. 1417, September Term, 2019 (filed June 1, 2020).

While the last-mentioned appeal was still pending, Mother, on March 18, 2020, sent Father an email that read: Given [S.’s] Diabetes and thus his vulnerability to getting serious complications from COVID-19 if he contracts the Coronavirus, I plan on keeping him here at home until the CDC Coronavirus guidelines are lifted and schools are back in session. We can discuss makeup time once it is safe to do so. During the next few days, several emails between Father and Mother were exchanged. Father took the position that Mother had no right to disobey a court order and that obeying the visitation order would not endanger S.’s health.

Mother maintained that because she had been given the authority to make medical decisions for S., she had the right to ensure his safety by halting, temporarily, Father’s right to have visitation with his son. Therefore, she announced that Father’s weekend visitation with S., scheduled for March 20, 2020, would be canceled as well as future visitation until school reopened. She wrote in an email to Father dated March 19, 2020: I do agree with you that waiting for school to resume might be an untenable resolution, so I have come up with a creative solution to ensure you and [S.] stay connected, yet we keep him as safe as possible. I will give you extended Facetime/virtual time with him over the weekend for gaming or for you to just spend time with him.

This is a good way to put his health first, yet keep you two connected. I also would like everyone in both households to get tested for the Coronavirus as soon as testing is available for the general public. Right now, they are prioritizing testing for those with symptoms, so I am not sure when testing will become available. However, can we agree that we will all get tested and share the results when testing becomes available?

We can continue to evaluate this situation on a daily basis. The parties did not resolve their differences and on March 27, 2020, Father filed an “Emergency Motion to Enforce Court’s Order Regarding Access During COVID[-]19 Pandemic” (“the emergency motion”). In the emergency motion, Father had two main 2 complaints. The first was that almost immediately after the September 3, 2019 final custody order was docketed, Mother curtailed “Wednesday evening access and extra- curricular activities[.]” Secondly, Father alleged that he was being deprived of his right to visitation because Frederick County public schools and all of Maryland public schools were currently closed until April 24, 2020 because of COVID-19, and Mother had advised him by email that she was “keeping [S.] in [her] house until all restrictions are lifted and the kids are allowed to go back to school.” Father also alleged that despite Mother’s claims of “health concerns,” she had recently traveled to New Orleans for Mardi Gras and had been “diagnosed with bronchitis after her return” from that city.

Father asked the court to grant his emergency motion and to sign an order: 1) requiring mother to immediately comply with the terms of the final custody order; 2) granting Father extra visitation as “make-up time” for the period that Mother had withheld visitation; and, 3) grant him “attorney’s fees.” Mother, by counsel, filed an opposition to Father’s emergency motion in which she alleged that she was justified in withholding visitation because of the risk to S.’s health presented by the COVID-19 pandemic. She maintained that “since the public schools were closed after March 13, 2020,” “neither [she] nor [S.] ha[d] left their residence and no other individual(s) have entered the residence.” She also noted that Maryland Governor Lawrence Hogan, Jr. had, on March 30, 2020, issued an executive order for the safety of all citizens that required, during the COVID-19 pandemic, all “non-essential citizens to remain in their homes beginning on March 30, 2020 at 8:00 P.M. except for the performance of essential activities as further defined by the Order.” 3 Mother denied Father’s allegation that she had violated the provision of the final custody order concerning Wednesday night access. Lastly, Mother alleged that she had offered Father “day for day make up time” once the pandemic problem abated but Father had rejected that offer. On April 1, 2020, Father filed a reply to Mother’s opposition.

He alleged that S.’s type 1 diabetes was well controlled. He also asserted that literature provided by the American Diabetes Association made “it clear that a diabetic is not at a greater risk of having severe complications from COVID-19 than the general population if the diabetes is managed well.” The issues raised in the motion for an emergency order were heard in the Circuit Court for Frederick County on September 10, 2020. The motions judge was the same judge who had conducted the eleven-day hearing that resulted in the September 3, 2019 final custody order. Father called Mother as an adverse witness and he also testified.

Father also called two other witnesses, but their testimony is not relevant to the issues raised in this appeal. At the conclusion of the hearing, the motions judge delivered an oral opinion, which was followed by a written order that was docketed on December 22, 2020. The order read, in material part, as follows: ORDERED, that Defendant’s [Father’s] Emergency Motion to Enforce Court’s Order Regarding Access During COVID[-]19 Pandemic be, and the same is hereby DENIED; and it is further, ORDERED, that on each Friday which begins Defendant’s weekend access, while the minor child is in school virtually, the Defendant shall pick up the minor child at 3:30 P.M., and thereafter, when school resumes in the 4 classroom, Defendant shall pick up the minor child after school on the Friday which begins his weekend access, as provided in this [c]ourt’s Final Order entered on September 3, 2019; and it is further, ORDERED, that each party’s request for an award of attorney’s fees be, and the same is hereby DENIED; and it is further, ORDERED, that all other provisions of this [c]ourt’s Final Order, entered on September 3, 2019, not inconsistent with the provisions of this Order, shall remain in full force and effect. In this timely appeal, Father, acting pro se, raises the following questions:1 (1) Did the circuit court err in denying Father make-up time based upon an incorrect legal premise?

(2) Did the motions judge abuse her discretion when she consulted with a magistrate judge prior to announcing her decision that she would not award Father make-up time? (3) Did the motions judge abuse her discretion in denying the motion to enforce Wednesday-night access, which Mother denied in part for over a year? (4) Did the circuit court err in modifying the court-ordered access for Father and abuse its discretion in denying the motion to enforce the weekend-access pick-up time afforded Father? (5) Did the motions judge abuse her discretion in denying attorney fees to Father? 1 In his brief, Father did not list any questions presented.

But he did make four arguments that we have converted into questions presented; the arguments were: 1) “The [c]ourt abused its discretion in consulting with a [m]agistrate and denying [a]ppellant make-up time based upon an incorrect legal premise”; 2) “The [c]ourt erred in modifying the court-ordered access for [a]ppellant and abused its discretion in denying the motion to enforce Wednesday-night access, which [a]ppellee denied in part for over a year”; 3) “The [c]ourt erred in modifying the court-ordered access for [a]ppellant and abused its discretion in denying the motion to enforce the weekend-access pick-up time afforded [a]ppellant”; and 4) “The [c]ourt abused its discretion in denying the awarding of attorney fees to [a]ppellant.” 5 Mother, pro se, filed a brief asking us to affirm the order filed on December 2, 2020.2 I. Background Facts Both Father and Mother live in the city of Frederick. Since their divorce, the parties have engaged in almost constant litigation concerning matters of custody and visitation. While they are both very good parents, the trial judge found that the two are incapable of cooperating with one another concerning child rearing issues. At the time of the hearing, S. was 14 years old and a student at Tuscarora High School in Frederick where he excels academically.

In 2018, S. was diagnosed as suffering from type 1 diabetes, which, fortunately, has been kept under good control. In March of 2020, Mother became concerned that S. would contract the coronavirus. More specifically, she feared that if he did contract that virus, he was more likely than others to have severe medical consequences due to his diabetes. She felt that her fear was substantiated by medical literature that she reviewed.

Because of that fear, with one exception, Mother and S. did not leave their house for any reason from March In her brief, Mother recites several “facts” that are unsupported by anything in 2 the record. In his reply brief, Father does the same, although to a lesser extent. In this opinion we have ignored all factual allegations by the parties that are not supported by the record. 6 18 to May 5, 2020.3 During that period, Frederick County public schools were closed due to the COVID-19 pandemic. As mentioned, on March 18, 2020, Mother informed Father that she was denying him the visitation that he was entitled to under the final custody order.

Under the terms of that order, Father was entitled to have weekend visitation with S. starting on Friday, March 20, 2020 after school until the following Monday at 8:00 A.M. Father was also entitled to weekend visitation on alternating weekends thereafter. As a consequence of Mother’s actions, Father was also denied access for the 2020 Easter weekend4 and S.’s Spring break from school that year. On May 14, 2020, Governor Hogan announced that he was relaxing the shelter in place order that previously was in effect. Mother notified Father on that date that she would allow S. to resume visitation with Father on Friday, May 15, 2020.

She also told Father at that time that because he had missed 18 days of access to S., she would allow him to have 18 straight days of visitation, i.e., from May 15, 2020 until June 8, 2020. Father rejected that offer. At the hearing concerning Father’s motion to enforce, counsel for Father attempted to undermine Mother’s contention that she withheld access because she feared 3 The one exception occurred on May 3, 2020. On that date, S.’s half-sister, who lives with Father, celebrated her first birthday.

On May 3, 2020, Mother drove S. past Father’s house with the hope of having S. participate in a “drive-by” celebration of his sister’s birthday. Because the parties did not cooperate, S. did not get to see his sister that day. 4 In 2020, Easter Sunday was on April 12, 2020. 7 for S.’s health. Father’s counsel suggested, by his questioning, that Mother had jeopardized S.’s health by going to Mardi Gras in New Orleans in 2020 during the pandemic where she caught bronchitis and thereafter, refused to quarantine in Maryland when she returned from Louisiana. Mother testified that she had bronchitis in February 2020, that Mardi Gras ended on February 25, 2020 and that she was in New Orleans after the Mardi Gras celebration from March 5 to March 9, 2020.

She also testified that to her knowledge, no person had contracted coronavirus in New Orleans while she was there.5 Mother testified that she cut off Father’s access because, as the parent with decision making authority concerning medical issues, she feared for S.’s safety. To compensate Father, she contended that she substantially increased S.’s virtual time with Father. In that regard, Mother introduced a chart which, if accurate, showed extensive virtual contact between Father and S. in the March 18 to May 15, 2020 period. According to Mother, in the last-mentioned period, S. and Father spent many hours virtually with one another; i.e., on the telephone, on Facebook or playing computer games.

Father testified that the chart introduced by Mother was inaccurate in that it overstated the amount of virtual contact. According to Father, there were many days during the approximate two-month period when he was denied telephone and other types of virtual contact with S. Mother testified that when she offered 18 days make-up time on May 14, 2020, Father replied by email that she could “pick [S.] up on Monday [May 18], as stated by the 5 The parties stipulated that the first “presumptive case relating to COVID-19” in New Orleans was announced on March 9, 2020. 8 court order” and that he would “get directions from the [c]ourt on the make-up time.” In his testimony at the hearing, Father asked the court to award him access to S. for 10 weekends straight (rather than every other weekend), plus access to S. for Easter 2021. Mother testified that she no longer believed the court should award make-up time. She explained that her reasons were the same as those that her counsel talked about in his opening statement, viz.: I offered him back the 18 days[6] the moment that I could.

He refused it, stopped all negotiations, and said he wants to go to litigation and have the [c]ourt decide. So, I just don’t think that that’s an appropriate way to, to co-parent. During Mother’s testimony, counsel for Father asked several questions as to whether Mother had abided by the following provision in the final custody order: ORDERED, that [Mother] be, and she is hereby awarded the sole physical care and custody of the minor child, subject to rights of visitation, as expressly delineated herein, afforded to [Father] as follows: * * * B. Every Wednesday evening from 6:30 P.M. until 8:15 P.M., for the express purpose of attending the Youth Group activity at [Father’s] church. [Mother] shall drop off and pick up the minor child at Church. This access need not occur in the event of illness or injury of the minor child; unforeseen emergent conditions; the imposition of a snow emergency plan for Frederick County . . . .

The youth group mentioned in the final custody order was one that Father conducted, in his capacity as the youth pastor for his church. In response to Father’s 6 Previously, Mother in her testimony spoke of 21 days of make-up time but that offer included three days of visitation (starting May 15, 2020) to which Father was already entitled. 9 complaint that Mother did not take S. to the youth group meetings at 6:30 P.M. but instead delivered him to the meetings at 7:00 P.M., Mother testified that because the youth group meeting sometimes started at 6:45 P.M. and sometimes at 7:00 P.M., her habit was to deliver S. to the church at the actual starting time. Mother testified that currently the youth group meetings were being held virtually due to the pandemic and S. “attended those meetings.” In regard to the youth group meeting, Father stressed that Mother intentionally disobeyed the court order by ignoring the requirement that she should deliver S. to the meeting at 6:30 P.M. Nevertheless, he did not contradict Mother’s testimony as to when the youth meetings started nor did he contend that S. was ever late for a youth group meeting. Although the motions judge did not say so explicitly, she indicated by her comments at the evidentiary hearing, that she did not consider Mother’s “late” arrival at the youth group meeting to be a serious violation of the final custody order because, according to the judge, the intent of the provision was to ensure that S. attend the church’s youth group meeting – not to provide Father with extra visitation rights.

Also, because at the time of the September 10, 2020 hearing the Wednesday meetings were being held virtually, the issue of when Mother delivered S. to the meetings did not appear to be a current problem. At the hearing, it was undisputed that Mother intentionally withheld visitation from Father for about two months. Father contended that Mother was not justified in doing so. The motions judge said that because of the pandemic, Mother should have filed 10 a motion and requested a modification of the final order; nevertheless, the judge indicated that Mother’s actions were perhaps understandable because at the time she withheld visitation, the dangers posed by the pandemic were truly frightening and at that point, no one knew the dangers posed by the COVID-19 crisis.7 There was one other issue in contention at the September 10 hearing.

The final custody order provided that Father, beginning September 6, 2019, had a right of visitation with S.: [E]very other weekend from after school on Friday until Monday at the beginning of the school day, if school is in session that day or 8:00 A.M., whichever occurs first. The [Father] . . . shall pick up the minor child from school on Friday and deliver the minor child to school on Monday if school is in session that date. . . . In the summer, [Father] shall retrieve the minor child from the [Mother’s] residence at 3:30 P.M. on Friday. Father’s complaint was that prior to the pandemic, at the school that S. attended, classes stopped at 3:30 P.M. on Friday, but since the pandemic, S.’s virtual classes ended at noon but Mother refused to allow S. to be picked up until 3:30 P.M. Father’s position was that this deprived him of over three hours of visitation each weekend that he had a 7 After admonishing Mother for disobeying provisions of the final custody order by means of “self-help,” the judge went on to say: [t]hat being said, I recognize that we were facing something that was wholly different than anyone had ever faced before maybe in 1919, or whatever it was, with the flu pandemic they had going around, but, in our lifetimes, we had never experienced this.

It was very scary and I understand that. And I understand that [S.] is, in fact, in the very compromised group. He also is younger, which, you know, I think is proving out now that the younger you are the better off you are to some degree, but he is in the group that is more heavily affected by this virus as we know it today. 11 right of access. At the hearing, Mother’s testimony as to why she did not allow Father to pick up S. earlier on Fridays was based on the school schedule.

That schedule provided that between 8:30 A.M. and noon, classes and other activities were to be conducted virtually; thereafter, a one-half hour lunch break was to begin. The school schedule then spelled out what was to occur during the periods between 12:30 and 1:45 P.M. Under the heading “Student Support,” the schedule for that time period read: • Virtual F2F [Face to Face] Instruction • Intervention • On-Line Resource and Service Delivery • IEP/EL Skill Recovery Activities for the period between 1:45 P.M. and 3:30 P.M., were listed under the heading “Self-Directed Student Work Time” as follows: • Reading and researching • Completing projects • Responding to teacher feedback • Engaging in online lessons and practice Mother explained that she kept S. until 3:30 P.M. on Fridays because the school schedule indicated that school was open until 3:30 P.M. In her words, “[i]f they [the high school authorities] intended kids to stop at 12:00, they would have ended at 12:00. And, so, I just want to protect that time, so [S.] has the time to do his work.” Put another way, according to Mother, the school had issued a schedule that states that between 1:45 and 3:30 P.M., “Monday through Friday there’s supposed to be self-directed student work time,” and she abided by that schedule. Father, in his testimony, contended that under the school schedule, between 12:30 and 3:30 P.M., S. was supposed to be doing homework, 12 and that S. could do his homework at Father’s house just as conveniently as at Mother’s residence.

Additional facts will be set forth in order to answer the questions presented.

II

Make-Up Time Father contends that the motions judge abused her discretion in denying him make-up time because the court’s denial was based on “an incorrect legal premise.” In her oral ruling concerning make-up time, the trial judge said: [Father] wants make-up time, and that’s where I get to this isn’t a contract case. If this were a contract case, I could say write a check for X amount of dollars, and that will remedy this problem. My concern is what is best for [S.], and I gave a custody order that I believed was necessary for [S.’s] best interest last year. I still believe that schedule is necessary for [S.’s] best interest.

You [S.’s parents] cannot communicate historically. Through [many] days of trial [in 2019, it has] become very, very clear, even about basic medical decisions you can’t communicate, you can’t agree. I can’t, in good conscience, say that in order to rectify this, I go away from what I already decided what was in [S.’s] best interest. So, therefore, I’m not going to give you any make-up time, because it’s not about making you whole.

It is about [S.’s] daily life, and I understand [S.] was harmed by not seeing you, I’m not disagreeing with that. We were all harmed [by COVID-19]. All of these kids that are sitting at desks in their home are being harmed. Some of that is there’s nothing anyone can do about it.

Nobody likes it, but there’s nothing anyone can do about it, but I found previously that the schedule I outlined was what was necessary given the level of distrust and discord between the two of you, and I still find that that’s accurate. So, therefore, the motion for make-up time is denied, but I am going to caution [Mother] very strongly that a motion is required [to change the final custody order]. Sole legal or whatever, does not give you authority to say I’m overriding the visitation schedule that this [c]ourt ordered, that is not accurate. You must file a motion, but, again, the acrimony and distrust 13 is so great that I don’t find a modification of the order I had entered to make-up visitation is appropriate.

(Emphasis added.) Father takes issue with the part of the judge’s opinion where she said, “I’m not going to give you any make-up time, because it’s [the decision as to whether or not to award make-up time] not about making you whole. It is about [S.’s] daily life[.]” In support of his contention that the aforementioned statement was not “supported by law,” Father directs our attention to Maryland Code (2019 Repl. Vol.), Family Law Article, § 9-105, which provides: In any custody or visitation proceeding, if the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order;