Barton v. Hirshberg

ADKINS, Judge. Lisa Barton, appellant, is unhappy with the trial court’s award of joint custody and child support. She attacks the child’s father, Alan Hirshberg, as unfit, and claims that his principal assets should have been considered in determining an award of child support. She also contends that the trial court’s denial of her request for a protective order against Hirshberg was error.

Appellant presents four issues, which we have rephrased and reordered: (1) Whether the trial court erred in calculating child support; (2) Whether the trial court erred in denying her petition for a permanent order of protection; (3) Whether the trial court erred in awarding the parties joint legal custody and shared physical custody, and denying her request that appellee’s contact with the child be limited to supervised visitation; and (4) Whether the trial court erred in denying her request for attorney’s fees. With the exception of the fourth issue, we rule in favor of appellee. ⁹ FACTS AND LEGAL PROCEEDINGS The parties resided together as an unmarried couple from January 1991 until June 1996. On December 29, 1993, the parties’ son, Adam, was born. The parties separated in 1996.

On June 4, 1996, they entered into a Custody, Child Support and Housing Agreement (“Agreement”). The Agreement provided that the parties would have joint legal custody of Adam and that “the principal residence of the child shall be with [Barton]” and provided a detailed visitation schedule between Hirshberg and Adam. The Agreement further contemplated that Hirshberg was to pay Barton $1,000 per month in child support. Additionally, the Agreement provided that Adam will be exposed to both of [the parties’] religions, but that he shall be raised primarily in the Jewish faith and will become a Bar Mitzvah. [Barton] agrees to support and encourage this participation in the Jewish faith.

Further, if possible and they can afford to do so, the parties agree that Adam will attend preschool/day care at the Jewish Community Center. On April 9, 1999, Hirshberg, unhappy with the 1996 Agreement, filed a Complaint for Child Custody, Enforcement and Modification of Agreement in the circuit court, seeking primary physical and legal custody of Adam or, alternatively, “a parenting access schedule for Adam that is consistent with his best interest.” Hirshberg contended, inter alia, that Barton breached the Agreement by: declaring “her intention not to raise Adam as a Jew;” unilaterally removing Adam from enrollment at the Jewish Community Center; failing to consult with Hirshberg on issues regarding Adam’s health; and failing to abide by the visitation schedule set forth in the Agreement. Barton also sought to change the Agreement, filing a Counter Petition for Custody, Child Support, and Enforcement of Agreement, contending that Hirshberg had “refused to allow the child to be exposed to [Barton’s] protestant religion,” and failed to pay for expenses and support as contemplated by the Agreement. Moreover, Barton contend ¹⁰ ed that the visitation schedule “provided in the Agreement is no longer in the minor child’s best interests.... ” Barton sought sole legal and physical custody of Adam, a modification of the visitation schedule, increased support, and attorney’s fees.

A hearing was held on the parties’ motions from October 19 through October 21, 1999. Both parties testified at the hearing. Barton testified that Adam has lived with her since birth and that she has been his primary caretaker. She stated that she encouraged his participation in many “Jewish” activities, and that she had participated in many of these activities with Adam even though she is not Jewish.

Moreover, she contended that she did not remove Adam from the Jewish Community Center; but rather, Adam stopped going to the Center because Hirshberg unilaterally refused to pay Adam’s babysitter for as many hours as needed. She denied being disruptive of Adam’s participation in Jewish activities and making negative comments about Judaism. Barton further testified regarding concerns she had about Hirshberg’s relationship with and treatment of Adam. She testified that Adam has resisted going to visitation with his father in the past.

In fact, upon a therapist’s recommendation, the parties mutually agreed to stop Adam’s overnight visitation with Hirshberg for two years after the Agreement was signed. During that time period, Adam would visit with Hirshberg on Thursday and Friday afternoons without overnights. 1 Additionally, Barton complained that Hirshberg failed to exercise his visitation “approximately a third of the time____because of his extensive travel-mostly for pleasure.” Barton testified about concerns she had with Hirshberg’s supervision of Adam. She testified that Hirshberg had previously left Adam alone in a car at an airport and in a condominium during a vacation. Moreover, she alleged that Adam was sexually assaulted during a trip to Wyoming in March 1998 when Hirshberg left Adam in the unsupervised care of an ¹¹ eight-year-old.

Moreover, she accused Hirshberg of using illegal drugs and claimed he kept a bag of marijuana in his freezer. Finally, Barton testified regarding alleged violence committed by Hirshberg against Adam and her on October 13, 1999, five days before trial. On that day, Barton, Hirshberg, and Adam were leaving Adam’s soccer practice and Hirshberg was taking Adam for his scheduled visitation. Barton testified that Hirshberg “appeared in a rage” and refused to allow Adam to say good-bye to her.

She alleged that Hirshberg subsequently “threw Adam into [his] car” and then “grabbed the seat belt and leaned his weight on top of Adam, who was struggling at the time ... and was trying to get the belt across him,” and that Adam “was having trouble breathing.” She further alleged that Hirshberg intentionally struck her on the leg when backing out of the parking space and that she suffered a severe bruise on her leg. 2 Hirshberg also testified at trial. He testified that he has a good relationship with Adam, but that Barton has acted to undermine that relationship. He claimed that Barton calls Adam “three times, four times a day” when Adam is visiting Hirshberg and that these phone calls upset Adam. Moreover, she did not allow Hirshberg to have visitation during Passover 1999 and Hirshberg’s birthday, as stipulated in the Agreement.

He admitted smoking marijuana “approximately three times” in the previous year and that he had marijuana in his freezer, but that he had never used marijuana around Adam. He further testified that he left Adam in the car at the Jackson Hole, Wyoming airport, for “a few minutes,” but that he “had a person from United Airlines essentially watch him” and that he could see Adam “at all times or almost all the time.” Finally, he denied “throwing” Adam into his car and having any knowledge of hitting Barton with his car on ¹² October 13, 1999. He testified that he did not believe he struck Barton and that she did not act in a manner consistent with him hitting her. Finally, he claimed Barton unilaterally removed Adam from the Jewish Community Center.

Dr. J. Burke Mealy interviewed the parties and Adam as a court appointed Custody Evaluator. Dr. Mealy concluded that Adam suffered from “Parent Alienation Syndrome” and “in a positive way idealize[d] his mother—my mother is perfect .... And negatively idealize[d] his father—my father is all bad.” He provided a thorough evaluation of the personality of each parent, focusing on both strengths and weaknesses. Regarding Hirshberg, Dr. Mealey reported: Psychological evaluation of Alan Hirshberg shows a man very open to experience for its own sake.

He is a person who seeks out novelty and variety. He is very responsive to beauty in art and nature, is attracted to new ideas and alternative value systems, is generally tolerant of others, and is more likely than most to adopt unconventional attitudes. He is somewhat extroverted, tends to be warm and affectionate toward others, and usually enjoys large and noisy gatherings. He has a high need for variety in his life and is interested in intellectual challenges and in unusual ideas and perspectives....

He is reasonably considerate of others and is reasonably dependable. He tends to plan for the future and exercises leadership skills.... [He] tends to be a strong minded, free spirit who thrives on variety and change. His curiosity and intellectual interests are likely to cover a wide range. He is able to adapt to new situations.... * * Hi Alan Hirshberg needs predictability and structure, and often seeks this by trying to get his own way.

At times he can be overly authoritarian and demanding, critical and uncompromising. However, when he does not feel threatened he can be relaxed, tolerant and able to function well in groups. He copes well with stress, is generally clear thinking, effective and resourceful. He may use these character ¹³ istics to influence, or even manipulate, others.

Although he generally takes others into account, particularly within the general, sociable exchanges which he enjoys, he can also be self-centered, bent on winning and relentless in trying to get his own way. At times his self-centered behavior is likely to produce interpersonal conflict. Since he is generally well liked, warm and charming, problems he experiences will be more likely to occur within long-term and close relationships. In the long run and in the big picture, Alan can be expected to “be there” for his son.

He will be likely to introduce Adam to intellectual stimulation, novelty, variety, cultural experience, art, nature, travel, etc. He may be expected to “spoil” Adam to some degree, offset by occasions where he indulges himself and puts Adam to the side. However, most of the time he can be expected to have Adam’s best interest in mind and to work creatively with Adam to develop a secure future. Dr. Mealey made similarly mixed observations about Barton. Lisa Barton is a person who makes great efforts to be congenial and to conform on the surface to the rules of those in authority.

She is not an introspective person and stringently avoids self disclosure. Although she is the person most likely to downgrade herself, she probably fears that revealing herself will be used against her. Her concern with public appearances is predominant and a means of trying to hide from herself and others feelings of inadequacy and insecurity. She tends to compensate for marked self-doubt by positioning herself to be in alignment with authority to be the good/righteous person as compared to some negative other.

As a parent she can be expected to be conscientious and cautious. She will tend to create a relatively pleasant atmosphere and will establish a structure which is regular and ¹⁴ repititions [sic]. She can be expected to teach Adam good rules of conduct and assure his conformity to societal expectations. Within the routine of their lives she can be expected to be protective, while cautiously exposing Adam to situations which vary in novelty or intensity.

She is resourceful and able to plan ahead and will help Adam plan for his own future. She has some tendency to be dependent and out of touch with her emotional needs. The risk exists that she would place Adam too much in a leadership role and rely upon him too much for her own emotional gratification, without truly being aware that she is doing so. In situations involving emotional intensity, such as those associated with romantic relationships, Lisa Barton is likely to be least stable.

Under those conditions, she might evidence impulsivity and emotional liability. For instance, it is possible that she might wish to change residences or even leave town somewhat on the spur of the moment in response to a romantic, or other emotionally intense, circumstance. Dr. Mealey concluded that “both parents are generally devoted to Adam and have much to provide him. Unfortunately, at the present time Adam feels caught in the middle and enormously anxious in regard to losing his mother.” Dr. Mealy concluded that this anxiousness led to him alienating his father and that “[t]his process is partially supported by his mother.” He recommended that the parties continue joint legal custody, with Barton receiving primary physical custody.

At the conclusion of the three-day trial, the trial court held that the Agreement was valid and enforceable. In so doing, the court reaffirmed the Agreement’s provision regarding Adam’s religious upbringing. Commenting on the usefulness of the report of a “neutral” person like Dr. Mealy, the court awarded the parties joint legal custody. It gave Barton primary physical custody, and ordered that a specific visitation schedule be implemented.

Additionally, the court awarded Barton $793 a month in child support and denied her request ¹⁵ for attorney’s fees. The court ruled that Barton had failed to show by clear and convincing evidence that Hirshberg had committed an act of domestic violence when he struck Barton with his car and denied her request for a Protective Order. The trial court found that the car did hit Barton, which resulted in a bruise, but declined to find that Hirshberg acted purposefully in doing so. With regard to the alleged abuse of Adam, the court found Hirshberg’s conduct toward Adam to be firm, but not abusive.

This appeal followed. Additional facts will be added as necessary to the following discussion. DISCUSSION I. Amount Of Child Support Barton contends that the trial court erred in awarding her $793 a month in child support. In making its child support award, the court held that neither party had become voluntarily impoverished and refused to impute any additional income to either party.

The court further found that Hirshberg’s monthly income was $9,246 and Barton’s was $4,530 a month. As the parties’ combined income exceeded the $10,000 monthly income guideline for computing support under Md. Code (1984, 1999 Repl.Vol.), § 12-204(e) of the Family Law Article (“FL”), the trial court computed child support in the following manner: The percentage of the income is 32.6 percent for Ms. Barton and 67.4 percent to Mr. Hirshberg.... [T]his child is going to spend about 42 percent of his time with his father and 58 percent of his time with his mother. So the basic child support for Ms. Barton is $600 a month, and Mr. Hirshberg is $1,241. When you adjust the percentage of time the child spends with [each parent], the net basic child support obligation is $469 a month.

Work-related child care is $480. ¹⁶ So, ... the actual amount that Mr. Hirshberg will pay as child support is $793 each month. In addition to that, each party will be required to pay their respective percentage share of any extraordinary medical expense not covered by insurance. Barton contends that the trial court erred in using $9,246 as Hirshberg’s monthly income. According to Barton, “it was error for the circuit court ... to specifically decline to consider [Hirshberg’s] significant assets, and thus, his true financial circumstances.” Specifically, Barton contends that the trial court failed to consider total assets as opposed to income and should have imputed income to Hirshberg on the grounds of voluntary impoverishment.

We are not persuaded by these contentions. In 1989, the General Assembly enacted the child support guidelines contained in FL section 12-201, et seq., in order to fulfill three goals: “(1) to ‘remedy a shortfall in the level of awards’ that do not reflect the actual costs of raising children, (2) to ‘improve the consistency, and therefore, the equity of child support awards,’ and (3) ‘to improve the efficiency of court processes for adjudicating child support.’ ” Voishan v. Palma, 327 Md. 318, 322 , 609 A.2d 319 (1992). In setting the guidelines, the General Assembly chose to utilize the income shares model. In Voishan , the Court explained that [t]he conceptual underpinning of this model is that a child should receive the same proportion of parental income, and thereby enjoy the same standard of living, he or she would have experienced had the child’s parents remained together.

Accordingly, the model establishes child support obligations based on estimates of the percentage of income that parents in an intact household typically spend on their children. Consistent with this model, the legislature constructed the schedule in § 12-204(e), which sets forth the basic child ¹⁷ support obligation for any given number of children based on combined parental income. Id. at 322-23, 609 A.2d 319 (citations omitted). In utilizing the income shares model, the trial court is required to determine the parties’ “combined adjusted actual income.” See FL § 12-201(e).

This figure is the sum of each party’s respective “adjusted actual incomes,” which is defined in FL section 12-201(d) as a party’s actual income minus (1) preexisting reasonable child support obligations actually paid; (2) except as provided in § 12-204(a)(2) of this subtitle, alimony or maintenance obligations actually paid; and (3) the actual cost of providing health insurance coverage for a child for whom the parents are jointly and severally responsible. After determining the parties’ combined adjusted actual income, a trial court should utilize the model set forth in FL section 12-204(e) to determine support obligations. See Voishan, 327 Md. at 323 , 609 A.2d 319 . In the instant case, the combined adjusted actual income of the parties exceeds $10,000 per month, which is the highest income contemplated by FL section 12-204(e).

In such a case, “[i]f the combined adjusted actual income exceeds the highest level specified in the schedule in subsection(e) ... the court may use its discretion in setting the amount of child support.” FL § 12-204(d). In Voishan , the Court of Appeals addressed the parameters of the trial court’s discretion in an above-guidelines case. In that case, the parties’ combined income exceeded $10,000 per month and the trial court found that “the parties’ earnings created a ratio of 83 to 17 for [the father and mother’s] respective percentages of their ... income.” Voishan, 327 Md. at 325 , 609 A.2d 319 . To calculate the father’s child support obligation, the trial court determined the reasonable expenses of the child and “then calculated 83% of that figure” to arrive at the appropriate amount of child support.

Id. ¹⁸ The Court upheld the child support award. In so doing, the Court rejected the arguments that it should restrict the trial court’s methods of above-guidelines child support calculations, and impose a fixed percentage of income for levels above the guidelines, or require extrapolation from the guideline tables. Id. at 326-28 , 609 A.2d 319 . The court reasoned that while extrapolation “may act as a ‘guide,’ ” discretion by the trial court was necessary in high income cases.

Id. at 329 , 609 A.2d 319 . The Court explained: [A]t very high income levels, the percentage of income expended on children may not necessarily continue to decline or even remain constant because of the multitude of different options for income expenditure available to the affluent. The legislative judgment was that at such high income levels judicial discretion is better suited than a fixed formula to implement the guidelines’ underlying principle that a child’s standard of living should be altered as little as possible by the dissolution of the family. Id. at 328 , 609 A.2d 319 .

Citing Voishan and the policy behind the guidelines, we held that the trial court abused its discretion in awarding child support in an above-guidelines case in Bagley v. Bagley, 98 Md.App. 18 , 632 A.2d 229 (1993), cert. denied, 334 Md. 18 , 637 A.2d 1191 (1994). In Bagley , the father’s income was just under $10,000 per month and the mother’s $1,374 per month. The mother claimed $4,577 in monthly expenses for the children, based on the following expenses: rent, utilities, telephone, food, clothing, medical/dental, transportation, automobile insurance, other household expenses, recreation, incidentals, and periodic payments. The master found that $1,850 of these expenses were “inappropriate expenses to be attributed to the children” and deducted this amount when fashioning a child support recommendation.

Id. at 23-24 , 632 A.2d 229 . The trial court denied the mother’s exceptions to these findings and “adopt[ed] the Findings and Recommendations of the Master as its own.” Id. at 28 , 632 A.2d 229 . ¹⁹ We held that the trial court abused its discretion when it adopted the master’s denial of certain expenses. We explained that the trial court failed to take into account whether the expenses claimed were for items that would be enjoyed by the children had the parents not separated. [T]he chancellor must determine if a child of a married couple living together as a family based on [the father’s] income and standard of living would have the benefits of attending summer camp, enjoying access to a recreational vehicle, receiving generous gifts, possessing adequate and modern furniture, vacationing with relatives, etc. The chancellor should be cognizant that a child’s needs, like an adult’s, increase proportionately with their opportunity to participate in educational, cultural, and recreational activities. Moreover, each opportunity builds upon itself creating new opportunities.

The end result, theoretically, is a child whose opportunities to realize his/her potential have not been diminished by divorce although the parent may incur greater expenses. Id. at 38-39 , 632 A.2d 229 . Barton relies on Bagley in support of her position. She contends that the trial court imputed insufficient income to Hirshberg, and erred in not considering his total assets as opposed to his net income.

In support of this position, Barton contends that the trial court erred in not considering a document entitled “Asset Split,” which detailed all of Hirshberg’s financial holdings. These holdings included investments in real estate, precious metals, retirement funds, common stock, taxable bonds and non-taxable bonds. Hirshberg’s financial statement, however, does contain the amounts received as income from these assets, including rental income, bond income, dividends, and income from the sale of assets. Barton’s reliance upon Bagley is misplaced.

Our discussion in Bagley dealt exclusively with income, not assets. The analysis in Bagley follows the express and unambiguous terms of section 12-204 of the Family Law Article, which directs that “[t]he basic child support obligation shall be divided between ²⁰ the parents in proportion to their adjusted actual incomes.” FL § 12-204(a)(l). The definition of actual income in Family Law section 12-201(c) contains numerous enumerated factors that constitute income, none of which includes unrealized gains or appreciation in asset value. Compare FL § 12 -201(c) with FL § 11—106(b)(ll)(i) (directing that, for the determination of alimony, the court shall consider “all income and assets, including property that does not produce income”) (emphasis added).

Our holding in this case should not be interpreted to mean that the assets of a party will never come into play when making a determination regarding child support. For example, if a parent voluntarily decreases his or her income in order to avoid support payments, a court may find that a parent has become voluntarily impoverished, and impute income based on assets readily adaptable to income production. Alternatively, in instances where the income of a parent is not adequate to provide support to a child sufficient to meet the standard of living established during the marriage, and the parent has assets that could be converted into income-producing assets, a court might look to the parent’s assets to determine above-the-guidelines support. We do not agree, however, that the mere ownership of non-income-producing assets alone constitutes a basis for reliance upon those assets in determining child support.

Moreover, the decision to devote assets to capital growth, rather than income production, should be within the discretion of a parent, as long as the children are provided reasonable support, consistent with that provided during the marriage or other relationship. It would be an unwise proposition, indeed, for a court to direct that a parent expend or convert his or her investments to provide support for children at a level above the guidelines, when the parent had consistently, during the marriage or other relationship, sought to utilize those assets for capital growth or other legitimate purposes which were not income-producing. In this case the trial court held that Hirshberg was not voluntarily impoverished, and we agree. Although Hirshberg ²¹ previously earned a higher income, the uncontroverted evidence is that he was involuntarily terminated from his previous employment.

At the level of income maintained by Hirshberg, the involuntary termination from employment justifies expenditure of less income for the family as a whole, even when assets could be sold to produce more money for child support. The parties’ income is still well above guidelines, and there is no indication in the record that Adam is experiencing