Baldwin v. Baynard

BERGER, J. This case arises from an Order of the Circuit Court for Anne Arundel County modifying custody of the parties’ 14- ⁸⁶ year-old daughter (“Daughter”). Prior to the initiation of the instant litigation, Amy Baynard (“Mother”) had primary physical custody and Scott Baldwin (“Father”) had visitation on alternate weekends and specified holidays. Pursuant to an agreement between the parties, the parties had joint legal custody. On April 3, 2009, Mother filed a Motion to Modify Custody and Visitation after learning about allegations of sexual abuse perpetrated by Father upon Mother’s niece.

Father’s visitation was initially suspended and then modified to allow supervised visitation pending trial. The matter ultimately proceeded to trial on January 14, 15, 16, 17, and 18, 2013. The court delivered its ruling on January 25, 2013, granting Mother primary physical and sole legal custody of Daughter, with supervised visitation to Father on alternate Sundays. The order also awarded attorney’s fees to Mother in the amount of $15,000.

This timely appeal followed. On appeal, Father presents three issues for our review, which we have rephrased as follows: I. Whether the circuit court erred in granting Father supervised visitation with Daughter.

II

Whether the circuit court erred in granting Mother sole legal custody of Daughter.

III

Whether the circuit court abused its discretion in awarding Mother attorney’s fees. For the reasons set forth below, we affirm the judgment of the Circuit Court for Anne Arundel County. FACTUAL AND PROCEDURAL BACKGROUND Father and Mother began a romantic relationship as teenagers in 1993. During their relationship, Mother and Father had a daughter, Daughter, who was born on April 7, 1999.

The parties were never married. Mother and Father’s relationship ended in May of 2001. Mother filed for custody in the Circuit Court for Anne Arundel County on September 8, 2003. Mother and Father entered into a custody agreement on March 18, 2004.

On November 29, 2007, pursuant to another agreement between the parties, the court entered a ⁸⁷ consent order regarding custody and visitation, providing that Mother have primary physical custody of Daughter. Under the agreement, Father had visitation on alternate weekends and specified holidays. The parties agreed to maintain joint legal custody. In April 2009, Mother learned that her niece (“Niece”) alleged that she had been sexually abused by Father over a period of five years.

Niece lived in North Carolina but visited Maryland during the summers for a period of six to eight weeks, usually staying either at Mother’s house or at her grandmother’s house. The alleged abuse began in the summer of 2000, when Niece was eleven years old, and continued through the summer of 2004, when Niece was fifteen years old. At the time the alleged abuse began, Father was twenty-one years old. In 2007, Niece disclosed the alleged abuse to her therapist, and in the spring of 2008, she disclosed the abuse to her mother (“Niece’s mother”).

Niece asked that her mother not tell the rest of her family because she felt ashamed. However, during the Easter weekend of 2009, Niece’s mother disclosed the abuse to Mother. 1 Subsequently, Mother and Niece discussed the abuse allegations. Based upon this new information, Mother filed a motion to modify custody and visitation, which is the subject of the instant case. On April 3, 2009, the court ordered that Father’s visitation be temporarily suspended.

On April 10, 2009, the court ordered that, pending trial, Father would receive one day of supervised visitation on alternate weekends. 2 The circuit court also ordered a custody evaluation, which was completed by Terri Hager, MSW (“the Evaluator”). ⁸⁸ The custody and visitation issues proceeded to trial on January 14, 15, 16, 17, and 18, 2013. 3 The court heard testimony from Niece, Niece’s mother, the Evaluator, Esther Carr (Mother’s mother), Wanda Ball-Gross (Father’s sister), Glenn Mosco (the father of Father’s fiancée), Mother, Kristine Lowe (Father’s friend), Matthew Maguire (Father’s friend), Nicole Surguy (Father’s friend), Rose Baldwin (Father’s mother), Maurice Baldwin (Father’s father), Father’s fiancée (“Fiancée”), and Father. Niece testified at length regarding the sexual abuse perpetrated by Father. She testified that the sexual abuse began with kissing during the summer of 2000. During the summer of 2001, when Niece was twelve years old, Father had Niece perform oral sex on him, masturbated in Niece’s presence, performed oral sex on Niece, and inserted his fingers in Niece’s vagina.

In the summer of 2002, when Niece was thirteen years old, Father engaged in sexual intercourse with Niece. Niece testified that the sexual abuse continued during the summers of 2003 and 2004. Niece testified that during the time she was being sexually abused, she believed that she and Father were in a relationship. Father told Niece that at some point in the future, they would be able to present themselves as a couple.

Father also told Niece disparaging information about her family as a way to distance Niece from her family and prevent her from disclosing their relationship. Father told Niece that if her family “found out about what was going on,” they would “have to run away together.” In 2004, when Niece was fifteen years old, the abuse ended when Niece ended the relationship with Father and began to avoid spending time alone with Father. At that time, Niece had not disclosed any of the abuse to anyone in her family. Niece acknowledged that she had ⁸⁹ substance abuse and mental health problems in the past.

Niece, however, testified that she has been “clean” since 2011. Niece’s mother testified about the sexual abuse allegations and also testified about Mother’s good character and reputation. Niece’s mother described Mother and Daughter’s relationship as close and testified that she found Mother to be a fit and proper parent. Niece’s mother did not believe Father was a fit and proper parent to have custody of Daughter.

Niece’s mother explained that Father has an intimidating personality and “withholds affection, if he doesn’t get what he wants.” Niece’s mother also expressed concerns for Daughter’s safety if Father were allowed to have unsupervised visitation, given the alleged abuse perpetrated by Father upon Niece. The Evaluator testified that Mother’s concerns for Daughter’s safety regarding allegations of sexual abuse were valid. 4 The Evaluator testified that she found Mother to be cooperative throughout the interview process. Father was usually cooperative as well, but on two occasions made threats of retribution to the Evaluator. Specifically, Father indicated that he would continue to appeal the matter if the Evaluator did not make the recommendations Father desired.

Father also told the Evaluator that he would seek to have her lose her professional license if she made recommendations that were unfavorable to Father. The Evaluator testified that Daughter reported that Father made disparaging comments about Mother, including telling Daughter that Mother would be going to jail. Daughter reported that Mother did not make disparaging comments about Father. Daughter was not aware of the sexual abuse allegations or the reasons the custody evaluations were taking place.

The Evaluator was aware of the allegations of sexual abuse perpetrated by Father upon Niece. She was also aware of prior allegations of sexual abuse by Father. Specifically, in ⁹⁰ 2006, the minor sons of Fiancée had alleged that Father sexually abused them. The Department of Social Services entered a finding of indicated abuse.

Father appealed to the Office of Administrative Hearings and an administrative law judge modified the finding to unsubstantiated. Fiancée’s father, Glenn Mosco, ultimately obtained permanent custody of Fiancée’s three minor sons on August 22, 2007. The Evaluator recommended that Mother be awarded sole legal and primary physical custody of Daughter and that Father have monitored visitation from Friday through Sunday on alternate weekends. 5 The Evaluator recommended the monitored status contingent on several factors: (1) Daughter would meet with a therapist monthly; (2) Mother would reinitiate individual therapy; and (8) Mother would follow all recommendations of the Talbot County Department of Social Services. 6 The Evaluator noted, however, that if the Court were to find that there had been inappropriate sexual contact between Father and Niece or between Father and Fiancée’s sons, the recommendation would change. In that instance, the Evaluator would recommend supervised visitation between Father and Daughter.

The Evaluator recommended sole legal custody because of ongoing communication issues between Mother and Father. The Evaluator explained: ⁹¹ What I believe is that right now it’s best to maintain sole custody, because I don’t ever believe that there’s potential for the two of you to have a better relationship than you currently] have. At this time, I have no reason to believe that [Mother] is going to feel differently about you, nor do I have any reason to believe that you are going to feel differently or be able to interact with her any better. Esther Carr, Mother’s mother and Daughter’s grandmother, testified about the allegations of sexual abuse perpetrated by Father upon Niece.

Ms. Carr testified that Mother and Daughter have a close and loving relationship and that Mother is a good parent. Ms. Carr testified that she believes that Mother is a fit and proper person to have primary physical and sole legal custody of Daughter. Ms. Carr explained that Daughter has a great support system with Mother and her extended family. Ms. Carr did not find Father to be a fit parent based upon the allegations of abuse, as well as Father’s controlling nature and anger issues.

Wanda Ball-Gross, Father’s sister, testified that Mother is a fit and proper parent to have primary.physical and sole legal custody of Daughter. Ms. Ball-Gross testified that she no longer has a relationship with Father. In 2003, an altercation occurred between Father, Mother, and Ms. Ball-Gross in which Father pushed Ms. Ball-Gross into Mother, causing Ms. Ball-Gross, who was nine months pregnant, to fall onto her stomach. Ms. Ball-Gross called 911, and Father was arrested.

Thereafter, an ambulance arrived to transport Ms. Ball-Gross to the hospital. Ms. Ball-Gross testified that she found Father to be arrogant, cocky, and controlling. Glenn Mosco, the father of Fiancée, testified that he currently has custody of three of his daughter’s children. 7 Mr. Mosco testified regarding the allegations of sexual abuse perpetrated by Father upon Fiancée’s sons. Mr. Mosco also testified that his daughter had previously threatened to harm ⁹² the children.

Mr. Mosco was awarded permanent custody of Fiancee’s three sons in 2006. Fiancée was awarded supervised visitation. Mr. Mosco testified that he believes that Father sexually abused his three grandsons. Mother testified that she and Father lived together from 1999, when Mother was pregnant with Daughter, until May of 2001.

She now lives in Easton in a home she rents from her mother. Mother has two children, both of whom reside with her: Daughter and a younger child, who is six years old. Mother was married to the younger child’s father, Scott Baynard, but they separated in December of 2008 and divorced on August 22, 2012. According to Mother, during the course of Mother and Father’s relationship from 1993 to 2001, Father was physically, verbally, and emotionally abusive.

Mother described, among other things, being choked, thrown downstairs, pushed, and locked outside in the cold. Regarding the verbal abuse, Mother testified that Father called her “crazy,” “nutcase,” “whore,” “slut,” “cunt,” and “bitch.” Father told Mother that she was worthless and that nobody would ever want her but him. Mother testified that the abuse lasted throughout the entire relationship, beginning approximately one year into the relationship. Mother also recounted the 2003 altercation between Father, Ms. Ball-Gross, and herself, which resulted in Ms. Ball-Gross falling on her stomach.

Mother explained that the argument began between Mother and Father over a disagreement about disciplining Daughter. Mother arrived at Father’s house and found Daughter sitting in the dark at the kitchen table, as a punishment for misbehavior. Mother told Daughter she could get up, but Father disagreed. The argument quickly escalated and became physical; ultimately Father pushed Ms. Ball-Gross into Mother, causing Mother to fall down the deck stairs and Ms. Ball-Gross to fall on her stomach.

At that point, Ms. Ball-Gross called 911. Father threatened to kill both Mother and Ms. Ball-Gross, and then pulled Daughter from Mother’s arms. After the police and ambulance arrived, Father was ⁹³ arrested and Ms. Ball-Gross was transported to the hospital. As a result of this incident, Mother filed for and was awarded a one-year protective order against Father.

The protective order awarded custody of Daughter to Mother. Since 2003, Mother has maintained primary physical custody pursuant to agreements entered into between the parties in 2004 and 2007. Mother testified that although Daughter is a typical teenager who sometimes pushes limits, Daughter and Mother share a close relationship. Daughter is very involved in her school band and plays the clarinet.

Mother believes that involvement in band has helped Daughter learn teamwork and gain responsibility. Daughter attends middle school and maintains grades in the A and B range. Mother testified that Daughter has close friends in Easton with whom she attends school and socializes with outside of school. Mother acknowledged that a representative from the Talbot County Department of Social Services recently came to her home after receiving an anonymous report.

The DSS worker told Mother a “ruled out” finding would be entered, but that Mother would still be eligible to receive services, including a referral for trauma counseling and assistance with purchasing items to better organize the home. Mother testified that Daughter’s health is good and her medical and dental appointments are up to date. Mother noted, however, that Daughter has been in counseling on and off since fifth grade. Father was not in agreement with ÁYvb\pQheiA in iberapy, and Mother described one instance in which Father refused to sign a consent for Daughter to enter into therapy.

Mother testified that Father “doesn’t believe in therapy,” but Mother believes that therapy is useful for Daughter in order for her to learn to cope with everything that has happened between Mother and Father. Mother also testified regarding her own mental health. Mother and Father had another daughter who was born in October 2000 and died a month later. Mother said that the time of year surrounding the anniversary of Emily’s death is challenging for her and that she tends to be depressed and ⁹⁴ anxious during that time of year.

As a result, Mother has a more difficult time keeping the home tidy during this time of year. To cope with her anxiety and depression, Mother previously saw a therapist, but did not feel a connection with her. The Department of Social Services referred Mother to a trauma therapist, with whom Mother was planning to begin therapy shortly after the trial. Mother testified regarding disputes surrounding Father’s weekend visitation days.

Pursuant to the April 2009 order, Father was entitled to one day of visitation on alternate weekends and was required to notify which day he would have visitation — Saturday or Sunday. One weekend when Father was scheduled to visit, Mother planned to take Daughter to Ocean City for her birthday. Mother had discussed the plan with Father and they agreed that Mother would take Daughter to Ocean City on Saturday and Father would have visitation on Sunday. Father told Mother that his work schedule had changed and he wanted to switch his visitation to Saturday.

Having already made the arrangements for the hotel in Ocean City, Mother did not change her plans. As a result, Father filed a petition for contempt and a request for emergency hearing. The trial court denied Father’s petition. Regarding the supervision of Father’s visitation, Mother expressed concerns over whether Father’s parents were providing adequate supervision.

Mother testified that she learned from Daughter that she and Father had been playing video games in the basement, out of the sight of Father’s parents. The April 2009 order requires Father’s parents to supervise visitation and keep Father within eyesight at all times. Mother testified that she does not believe that Father’s parents can adequately supervise Father’s visits with Daughter. Mother further testified regarding Niece’s visits to Maryland during the summers of 2000 through 2005.

Mother testified that Father and Niece had various opportunities to be alone together, including times Niece spent the night at Father’s home. Mother indicated that beginning during the ⁹⁵ summer of 2001, Niece engaged in self-mutilation by cutting her arms and legs. Mother testified that this was a change in Niece’s demeanor, beginning in 2001. Mother testified that she filed for an emergency change in custody and visitation after learning of Niece’s allegations of abuse by Father.

Mother testified at length regarding her financial status and employment. Mother is employed part-time at a restaurant, earning $8.25 per hour. Mother has no savings or credit cards, and Mother’s mother helps Mother pay her bills. Father called three friends and his parents as witnesses.

Kristine Lowe, Father’s friend who has known him since 2005, testified that Daughter loves Father. Ms. Lowe was aware of the Allegations involving Fiancée’s sons but testified that she did not believe Father abused the boys. Matthew Maguire, Father’s friend who has known him since 2009, testified that Father and Daughter appear to have a very close relationship. Mr. Maguire described Father as a good neighbor, a good friend, and a good parent.

Mr. Maguire did not believe that Father sexually abused either Niece or Fiancée’s sons. Mr. Maguire has not met Niece nor spoken to Fiancée’s sons. Mr. Maguire indicated that there were times he was at Father’s home and was with Father and Daughter in the backyard while Father’s parents were inside the home. Nicole Surguy has known Father for over twenty years.

She described Father as a “really, really great father” who is “very loving.” Additionally, Ms. Surguy testified that Father is kind, respectful, great-hearted, law-abiding, and a very upstanding citizen. Ms. Surguy did not consider Father controlling. Ms. Surguy saw Daughter fifteen or sixteen times within the past year and testified that she observed Father’s interactions with Daughter, as well as with Father’s two younger children, as very positive. Ms. Surguy testified that she does not believe that Father ever sexually abused a child.

Ms. Surguy was aware of the allegations surrounding Niece, but did not believe the allegations to be true. Rose Baldwin, Father’s mother and Daughter’s grandmother, testified that Father is a good parent. Ms. Baldwin was ⁹⁶ aware of Fiancée’s sons allegations, but did not believe them. Ms. Baldwin did not believe that Father’s visitation needed to be supervised.

Ms. Baldwin described Father as caring, kind, and generous. Further, Ms. Baldwin indicated that Father and Daughter have a close and loving relationship. Regarding Mother’s character, Ms. Baldwin testified that Mother is moody and changes from one minute to the next. Ms. Baldwin testified that her daughter, Wanda Ball-Gross, is an untruthful person.

Maurice Baldwin, Father’s father and Daughter’s grandfather, testified similarly to Rose Baldwin. Mr. Baldwin testified that he has no concerns regarding Daughter’s safety while in Father’s care, and that Father and Daughter have a good, loving relationship and that Father is a fit and proper parent. Mr. Baldwin testified that he has never observed Father engage in any kind of abuse. Mr. Baldwin stated that he supervised Father’s visitation with Daughter, but there were times that Father and Daughter went outside while Mr. Baldwin remained inside.

Still, Mr. Baldwin could see Father from within the house. Mr. Baldwin testified that Father remained within his eyesight except for when he had to use the restroom. Regarding Wanda Ball-Gross’s truthfulness, Mr. Baldwin testified that she has at times been untruthful. Fiancée testified that she has a close relationship with Daughter and has known Daughter since she was three years old.

Fiancée testified that Father is a great parent and that he is not controlling. Fiancée testified that she has three sons from a previous relationship who are currently in the custody of her father, Glenn Mosco. She knew that the Department of Social Services had initially made a finding of “indicated” sexual abuse by Father, but that it was later modified to “unsubstantiated.” Fiancée testified that she currently has supervised visitation with her three sons and she sees the boys once each year. Fiancée testified that her father keeps her from seeing the boys more frequently.

Fiancée acknowledged that she had been diagnosed with bipolar disorder and anxiety, for which she is currently in therapy and takes medication. Fiancée indicated that Father is supportive of her involvement ⁹⁷ in therapy. Fiancée testified that Daughter has friends near Father’s home and enjoys playing with her younger brother and sister when she visits. Fiancée further testified that she has no concerns leaving her children alone with Father.

Father testified and denied all allegations of sexual abuse. He further denied that there was an abusive relationship between himself and Mother. Rather, Father testified that he believed the allegations were fabricated by Mother in an attempt to retain custody of Daughter. According to Father, in the spring of 2009, Mother frequently argued with her then-husband, John Baynard, in front of Daughter.

Father was concerned that Daughter was exposed to fighting and told Mother he would be seeking custody. Father testified that he believes Mother somehow talked Niece into going forward with the abuse allegations only to keep Father from obtaining custody of Daughter. Father also emphasized that he was found not guilty of sexually abusing Niece in the criminal case, noting that the first criminal trial resulted in a hung jury and that, when the case was retried, Father was acquitted. Father testified that he spent $50,000 on his criminal defense.

Regarding his financial status, Father testified that he earns just under $18.24 per hour as an Equipment Operator for Anne Arundel County. At the time of trial, Father was receiving worker’s compensation in the amount of $800 biweekly due to neck surgery, but was scheduled to begin work without restrictions as of February 19, 2013. Father testified that he works full-time and often works overtime on Saturdays, for which he is paid time-and-a-half. He purchased his parents’ old home in 2005, and also sold a trucking business and purchased “a bunch of real estate,” including a house in California and two houses in Florida.

The court delivered its oral ruling from the bench on January 25, 2013. First, the circuit court explained that as a threshold matter, it found there was a material change in circumstances since the last order. Specifically, the material change in circumstances was the disclosure by Niece and the allegations of sexual abuse. Having found a material change ⁹⁸ of circumstances, the court turned to an analysis of the best interests of Daughter.

The court found that while Mother may have some areas in which she could improve (including obtaining mental health counseling or treatment), Mother had strengths as well. The court emphasized Mother’s love and commitment to Daughter, as well the fact that Daughter has done well academically, socially, and emotionally, while in Mother’s care. The court noted that Mother did an incredible job shielding Daughter from the allegations made against Father. The court found Mother to be a fit parent.

Regarding Father, the court found that he also loves and is committed to Daughter, but he is somewhat controlling and demanding. The court found it to be unfortunate that Father has made negative comments to Daughter about Mother. Considering the character and reputation of the parties, the court found that both parents have “a reasonably good reputation and character,” with some exceptions. Specifically, the court referenced the testimony that Father had a history of being verbally, physically, and emotionally abusive to Mother, as well as the allegations of sexual abuse.

Considering the desire of the parents, the court noted that each party currently desires primary physical custody of Daughter, but that, in the past, Mother has had primary physical custody. Regarding the potential for maintaining natural family relations, the court believed that Mother would attempt to include Father in Daughter’s life if she were awarded primary physical custody, but did not believe that Father would include Mother. The court considered the preference of the child, noting that Daughter is old enough and mature enough to explain her preference. Although Daughter did not testify, the court noted that based upon the evidence, it surmised that Daughter seemed to be happy and content living with Mother, and that Daughter also wished to spend more time with Father than she was currently.

Regarding material opportunities affecting the future life of the child, the court found that Father had a more consistent and meaningful work history and an increased ability to earn a ⁹⁹ living. Mother had struggled with maintaining full time employment, but the court found that had not been to Daughter’s detriment because of the financial generosity of Mother’s mother. Regarding the age, health, and sex of the child, the court found that Daughter was a thirteen-year-old girl in generally good health. The court, in considering the residence of the parents and the opportunity for education, found that each parent has adequate and appropriate housing.

Regarding the length of separation of the parents, the court noted that the parties have been separated for an excess of ten years; the court found this factor to not be particularly relevant to its consideration of custody and visitation. The court further found that there had been no abandonment or surrender of custody of Daughter. Regarding whether shared physical or joint legal custody was appropriate, the court considered additional factors, explaining: I look at the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare. At this point I do not think that — [Daughter's parents have the ability to communicate and reach shared decisions.

And I realize that they have agreed to have joint legal custody in the past. I am not sure that was even wise because I do not think they have had that ability for quite some time. I do believe, and I accepted the testimony, that [Father] was verbally, emotionally and physically abusive towards [Mother] in the past. It is unfortunate but the parties cannot even agree on how to do something that should not be too terribl[y] difficult, such as exchanging a Saturday visit for a Sunday visit.

And because they are challenged in that area ... that suggests to me that they just cannot, for whatever reason communicate effectively] with one another when it comes to [Daughter]’s welfare. The next thing I look at is the willingness of parents to share custody. Neither parent presented me during the course of the trial with any evidence or even argued that ¹⁰⁰ they would want to share legal of [sic] physical custody of [Daughter]. The court also considered the relationship between the child and each parent, emphasizing that Daughter clearly has a more substantial relationship with Mother given the amount of time she spends with her.

Regarding any disruption of Daughter’s social and school life, the court noted that a shared physical or legal custody arrangement would have a significant detrimental affect on Daughter, and that the “social and educational life that is occurring right now for [Daughter] would be damaged should I award joint legal custody or any type of shared custody arrangement.” The court emphasized that the parents live forty miles apart from one another. The court noted that neither party’s employment precludes them from actively parenting Daughter, and instead, looked at demands of parental employment. Regarding the sincerity of each parent’s request, the court noted that both parents said they wanted sole custody of Daughter. Considering the financial status of the parties, the court found that although Father has a more stable employment and earning history, Mother was receiving assistance from her Mother.

The court noted that it was not aware of any impact on state or federal assistance. The court found that the parents would not benefit from a joint legal or shared custody arrangement; rather, the court thought it would be more likely to cause additional stress to them, which could then trickle down to Daughter. In conducting the best interests analysis, the court explicitly stated that, “setting aside the allegations of child abuse, regardless of whether they are true or not, I would say that just looking at the factors I have given you and them and them alone, I would grant [Mother] primary physical and sole legal custody of