Aumiller v. Aumiller

EYLER, JAMES R., J. Appellants, Thomas and Valerie Aumiller, seek reasonable grandparent visitation with the two children of their deceased ⁷⁴ son, Kevin Aumiller, and his former wife, appellee Sumintra Aumiller. The Circuit Court for Baltimore County, applying the best interests of the child standard, awarded appellants visitation over the objection of appellee. While an appeal of that judgment was pending, however, the Court of Appeals announced a modified standard for third party visitation in Koshko v. Haining, 398 Md. 404 , 921 A.2d 171 (2007). Consequently, this Court vacated the judgment of the trial court and remanded the case for reconsideration based on the new standard.

The remand hearing was limited to a determination of whether appellants made the threshold showing of exceptional circumstances, which would then have permitted the court to apply the best interests standard. Concluding that the evidence did not create a prima facie case of exceptional circumstances, the trial court granted appellee’s motion for judgment. This appeal followed. Appellants’ sole contention is that the trial court erred in concluding that the evidence did not create a prima facie showing of exceptional circumstances.

In support of this contention, appellants argue that the trial court (1) misinterpreted the test for third party visitation outlined in Koshko as precluding it from considering future harm to the children when determining the existence of exceptional circumstances; and (2) erred in concluding that (a) appellee’s unjustified past refusal to allow contact between the children and appellants, and (b) appellee’s withholding of information from the children about their deceased father were not in and of themselves exceptional circumstances. In response, appellee characterizes these arguments as an attempt to circumvent the threshold test of parental unfitness or exceptional circumstances mandated by Koshko , and to move directly to a best interest analysis. We shall address each of these arguments and, finding no reversible error, shall affirm the judgment of the trial court. Facts and Proceedings Appellee married Kevin Aumiller on January 16, 1998, and the couple had two children together, Devon Aumiller, born ⁷⁵ August 13,1998, and Ariella Aumiller, born September 8,1999 (collectively “children” or “grandchildren”).

Appellants learned that appellee was pregnant with Devon, and that she and Kevin planned to marry in what Valerie Aumiller testified was her first meeting with appellee. Valerie further testified that she felt Kevin was not ready to be a father and the couple’s decision to marry was rash. Appellants were not present at the wedding. After Devon was born, Valerie testified that she and Thomas Aumiller frequently invited appellee and Kevin over for meals, but the couple only came on holidays.

Kevin explained that appellee did not want to visit appellants. According to Valerie, her requests to come to appellee’s home to spend time with Devon were also typically rebuffed, and as a consequence, she was unable to develop a meaningful relationship with her granddaughter. Appellants did not learn that appellee was pregnant with her second child, Ariella, until Kevin called Valerie the day Ariella was born. Valerie testified that appellee had forbade Kevin from telling her about the pregnancy, whereas appellee claimed that it was Kevin who did not want his parents to know.

Several incidents exacerbated the early tension in the relationship between appellants and appellee. Kevin was addicted to illegal drugs, and shortly after Devon’s birth, was hospitalized for an overdose. Appellee called appellants in the middle of the night to tell them the news, and Valerie responded by telling appellee that this would not have occurred if she was “any kind of a wife.” Valerie called to apologize the next day, but the animosity created by this exchange appears to have lingered. Appellants also refused appellee’s request to corroborate Kevin’s adultery during the couple’s divorce proceeding.

Appellee and Kevin were divorced on September 25, 2001, with primary custody of Devon and Ariella awarded to appellee, and reasonable visitation granted to Kevin. ⁷⁶ Appellants’ contact with the grandchildren was limited following the divorce. Valerie drove Kevin to appellee’s home for visits, but would wait in the car while Kevin went inside. Valerie testified that her requests to see the grandchildren were consistently refused by appellee and their last communication was in March 2003. Appellee contended that Valerie contacted her only once after the divorce to arrange a visit.

Eventually, Valerie concluded that an amicable agreement with appellee regarding visitation was no longer possible and retained the assistance of counsel. On February 25, 2004, Kevin Aumiller died of a cocaine and heroin overdose. Valerie went with Crystal Aumiller, Kevin’s second wife, to tell appellee, but they were forced to leave a note informing her of the death after appellee did not answer the door. Appellants did not communicate with appellee about visiting the grandchildren after Kevin’s death.

On August 5, 2004, appellants filed a complaint for reasonable grandparent visitation with Devon and Ariella. In September 2004, the parties were ordered to attend mediation, but they were unable to reach an agreement. That same month, Valerie began doing volunteer work at the grandchildren’s school, which included one-on-one reading with the students. Vajerie testified that she provided full disclosure to the school principal regarding the dispute between her and appellee prior to beginning the work, but that she never informed appellee of her plan to volunteer at the school.

On October 19, Valerie read with Devon in the hallway as part of her volunteer duties, and had some brief contact with Ariella in the cafeteria during lunch. What precisely was said during these encounters was disputed by the parties, but appellee testified that Devon was confused and upset, and afraid to attend school afterwards. 1 Mary Sizemore, Devon’s second grade teacher, testified that Devon seemed confused, but not upset., or scared. Valerie received a letter from the ⁷⁷ school after the incident stating that she was no longer permitted to work there and would be arrested if she entered school property. The trial eventually took place on October 4, 2005, and concluded with the court finding that it was in the best interests of the grandchildren to have some visitation with appellants.

The court ordered three-hour visits, once per month for the first three months, followed by regular six-hour visits on the third Saturday of every month. On October 12, 2005, a written judgment setting forth the terms was docketed. On October 20, 2005, appellee moved to alter or amend the judgment or for a new trial, arguing that she was ordered to allow visitation without any showing that she was unfit or that it was in the children’s best interests. On December 13, 2005, the court granted the motion, and on April 6, 2006, the court conducted a new trial.

By stipulation, testimony from the original proceeding was admitted at the new trial, and further testimony was received from appellants, appellee, and additional witnesses. In a memorandum opinion dated June 23, 2006, the trial court concluded that visitation with appellants was in the best interests of the grandchildren. The parties were ordered to attend mediation to discuss the conditions of visitation, and at a review hearing to be held on July 31, 2006, update the court on their progress. On July 7, 2006, appellee filed a notice of appeal and moved to stay the visitation order.

The parties had made no progress through mediation by the July 31 hearing, and on September 13, 2006, the court issued an order granting appellants visitation once per month for three hours, and denying appellee’s motion to stay. In the order, the court recognized the “special weight” afforded to decisions made by a fit parent, but noted that it was not required to find exceptional circumstances to award grandparent visitation. On September 21, 2006, appellee filed a second motion for stay and notice of appeal, arguing that appellants had not ⁷⁸ rebutted the presumption that appellee, as a fit parent, was acting in the best interests of her children by refusing visitation. Appellants did not respond to the motion for stay, and on October 24, 2006, the court granted it.

In the period between the filing of appellee’s brief and appellants’ reply brief in this Court, the Court of Appeals issued its decision in Koshko v. Haining, 398 Md. 404 , 921 A.2d 171 (2007), addressing the constitutionality of the grandparent visitation statute (“GVS”), Maryland Code (2006 Repl.Vol., 2007 Supp.), § 9-102 of the Family Law Article. Koshko newly interpreted the GVS to require a threshold showing of parental unfitness or exceptional circumstances before applying the best interests standard. Both parties conceded, at oral argument before this Court, that Koshko modified the analysis required by a trial court in grandparent visitation cases, and they agreed that a remand was required in light of this development. This Court concurred and remanded for further proceedings.

On February 21, 2008, on remand, the trial court conducted a hearing for the limited purpose of receiving evidence and hearing argument on the existence of exceptional circumstances. At the close of appellants’ case, the court concluded that appellants had failed to produce legally sufficient evidence of exceptional circumstances, and it granted appellee’s motion for judgment. Discussion The overarching issue before us is whether appellants established a prima facie case of “exceptional circumstances,” under the Court of Appeals’ holding in Koshko , which requires a trial court in grandparent visitation cases to make a threshold determination of parental unfitness or exceptional circumstances before it applies the best interests standard. We shall not attempt to review the history of Maryland law surrounding third party custody and visitation disputes, as that task was already ably performed by the Koshko Court, but some brief background is in order. ⁷⁹ The threshold test of parental unfitness or exceptional circumstances is not new, but prior to Koshko , its application in Maryland was limited to cases in which third parties sought custody, rather than visitation.

Compare McDermott v. Dougherty, 385 Md. 320, 374-75 , 869 A.2d 751 (2005) (requiring proof that a parent is unfit or that extraordinary circumstances exist before a court may apply the best interests standard in third party/parent custody disputes), with Fairbanks v. McCarter, 330 Md. 39, 47-48 , 622 A.2d 121 (1993) (holding that a threshold showing of parental unfitness or exceptional circumstances is not required in grandparent visitation cases), overruled in part by Koshko, 398 Md. 404 , 921 A.2d 171 . The rationale for this distinction, as outlined in Fairbanks, was twofold: first, the plain text of the GVS did not require a threshold showing; and second, visitation was considered a “less weighty matter than outright custody of a child,” and therefore, it did not “demand the enhanced protections, embodied in the exceptional circumstances test, [attending] custody awards.” 330 Md. at 47-48 , 622 A.2d 121 ; see also Herrick v. Wain, 154 Md.App. 222, 231-32 , 838 A.2d 1263 (2003) (applying Fairbanks in a grandparent visitation dispute), overruled in part by Koshko, 398 Md. 404 , 921 A.2d 171 . In Koshko , the Court of Appeals faced a substantive due process challenge to the constitutionality of the GVS, prompting it to reevaluate the test for third party visitation. 398 Md. at 407 , 921 A.2d 171 . The constitutionality of the GVS was called into question by the Supreme Court’s plurality opinion in Troxel v. Granville, 530 U.S. 57 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), which struck down a Washington State third party visitation statute under the federal Due Process Clause, in part because it failed to recognize a presumption that fit parents will act in their child’s best interest.

See Id. at 420-26 (discussing Troxel and its implications for the constitutionality of the GVS). Thus, in order to save the GVS from per se invalidation, the Court of Appeals agreed with this Court’s reasoning on that issue and read into the GVS the well established presumption that a fit parent’s decisions regarding ⁸⁰ custody or visitation with third parties is in the child’s best interest. Id. at 426-28. The Court of Appeals next addressed the