Best v. Best

DAVIS, Judge. This is an appeal by a father from an order issued by the Circuit Court for Prince George’s County awarding custody of the four children of the marriage to their mother after the trial court ordered a de novo hearing. The dispute was initially heard before a Master for Domestic Relations Causes. The master made detailed findings of fact regarding the issues presented and filed his report and recommendations on February 1, 1991, recommending that Mrs. Best be granted a divorce on the grounds of adultery.

That recommendation was adopted, and judgment of absolute divorce was entered on June 5, 1991 in favor of Mrs. Best. The master’s recommendation that Mr. Best be awarded custody of the children, however, was overruled after a hearing on Mrs. Best’s exceptions on June 5, 1991; and custody was granted to her. Appellant presents the following questions for our review: 1. Did the trial court err in ordering a de novo custody hearing before ruling on the exceptions? 2.

Did the trial court err in awarding custody of the children to Mrs. Best? FACTS Donnie Howard Best (Appellant) and Marsha Simms Best (Appellee) were married on March 10,1979. The parties are the parents of four children: Marshae Best, born January 23, 1980; Donnie Howard Best, Jr., bom October 10, 1981; DeAundra Best, bom October 10, 1983; and Daniel Best, bom September 30, 1985. In the fall of 1988, financial problems resulted in the foreclosure on the marital home; shortly thereafter, the parties separated.

Appellee moved to Florida during December 1988, two months after the couple’s separation. The children remained with appellant. A week after appellee moved to ⁶⁴⁸ Florida, also during December 1988, appellant took the children to Florida. The children remained with appellee until the end of the 1988-89 school year.

During the summer of 1989, appellant went to Florida and brought the children back to Maryland. Appellant returned with the children to Florida during the Thanksgiving holidays in 1989 and again during the 1989 Christmas vacation. At the end of the 1989 Christmas vacation, however, appellee refused to permit the children to return to Maryland with appellant. Early in 1990, Mr. Best returned to Florida and, without appellee’s knowledge, removed the three eldest children from school and left them with a friend in Georgia.

Appellee received a telephone call from the school and immediately informed Florida police. When appellant returned for the youngest child, Daniel, the police prevented appellant from obtaining physical custody of him. Appellant returned to Maryland with the three eldest children. The parties filed Complaints and Countercomplaints for Divorce in the Circuit Court in Duval County, Florida.

The Florida court refused to exercise jurisdiction in any custody dispute between appellant and appellee and determined that Maryland was the appropriate forum for a custody determination. In Maryland, the dispute was referred to a Master for Domestic Relations Causes, Arnold Yochelson. 1 At the time of the hearing before the master, the parties’ three eldest children — Marshae, Donnie, and DeAundra — were living with their father, Mrs. Rondy Warfield, and her two children in Oxon Hill, Maryland in a home owned by Mrs. Warfield. The parties’ youngest child, Daniel, continued to live with appellee in Florida. ⁶⁴⁹ The hearing resulted in extensive fact-finding and four ninety-minute audiocassettes of the testimony. The master also interviewed the children in chambers regarding their parental preferences.

The three eldest children wished to remain with their father and the youngest child with the mother. The master made detailed findings of fact regarding the issues presented and filed his report and recommendations on February 1, 1991. The master recommended that appellee be granted a divorce on the grounds of appellant’s adulterous relationship with Mrs. Warfield. The master also recommended awarding custody of the children to appellant.

Thereafter, appellee noted exceptions, and a hearing was scheduled for April 17, 1991 before the Honorable Audrey E. Melbourne. Appellee could not afford to have a transcript of the proceedings before the master prepared or transmitted to the trial court. Pursuant to Maryland Rule 2-541(h)(2), the parties agreed to present the trial court with electronic recordings (seven sides of cassette tapes). Appellee submitted the tapes to the trial court as a record of the proceedings before the master.

The trial judge was reluctant to accept the tapes and listen to the proceedings before the master because “Master Yochelson had the opportunity to observe the witnesses, to observe the children, their demeanor, their manner of testifying and I don’t.” After a brief recess, the trial court ordered a de novo custody hearing for June 5, 1991, to determine the effect of appellant’s adulterous relationship on the children. The proceedings on June 5, 1991 yielded essentially the same facts as the hearing before the master. After the hearing on June 5, 1991, the chancellor awarded custody of the children to appellee. A Judgment of Absolute Divorce was entered on July 17, 1991.

LEGAL ANALYSIS De Novo Hearing Appellant first argues that the chancellor erred in ordering a de novo hearing because Maryland Rule 2-541(i) ⁶⁵⁰ provides that exceptions are to be decided on the evidence presented to the master unless the excepting party sets forth with particularity the additional evidence to be offered and the reasons why such evidence was not offered before the master and the Court determines that such evidence should be considered. Appellant argues that the option of conducting a de novo hearing is predicated upon the Court’s determination that additional evidence should be considered, which in turn requires that the excepting party show with particularity the additional evidence to be offered. Appellee contends that the chancellor has absolute discretion to order a de novo hearing if, under any circumstances, the court is dissatisfied with the master’s fact-finding or the evidentiary record before the court. We agree.

Maryland Rule 2 — 541(i) provides: Hearing on Exceptions. — The Court may decide exceptions without a hearing, unless a hearing is requested with the exceptions or by an opposing party within five days after service of the exceptions. The exceptions shall be decided on the evidence presented to the master unless: (1) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (2) the court determines that the additional evidence should be considered. If additional evidence is to be considered, the court may remand the matter to the master to hear the additional evidence and to make appropriate findings or conclusions, or the court may hear and consider the additional evidence or conduct a de novo hearing. (Emphasis added.) The respective roles of the master and the chancellor have been discussed most recently by the Court of Appeals in Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991) , and Kirchner v. Caughey, 326 Md. 567 , 606 A.2d 257 (1992) .

The law is well settled that the chancellor may order de novo fact-finding in whole or in part (unlike an appellate court which defers not only to the fact-finding but any legitimate verdict, disposition, or judgment emanating ⁶⁵¹ from that fact-finding absent clear error). Wenger v. Wenger, 42 Md.App. 596, 602 , 402 A.2d 94 cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 1, 1980, citing Swisher v. Brady, 438 U.S. 204 , 98 S.Ct. 2699 , 57 L.Ed.2d 705 (1978). Where the chancellor elects to rely exclusively on the master’s report, he should defer to the fact-finding of the master where that fact-finding is not clearly erroneous. Id.

The chancellor, unlike the appellate court, reserves unto himself what to make of those facts since the decision-making function is vested exclusively in the chancellor. Id. In the case before us, significantly, the chancellor declined to rely on or consider the fact-finding of the master. Since the chancellor in the case sub judice did not rely on the fact-finding of the master, the narrow question we must decide is whether the chancellor may simply disregard the fact-finding of the master.

Clearly, she is authorized to do so. The Court of Appeals, in Domingues , held that the chancellor incorrectly accepted the recommendations of the master upon a finding that those recommendations were not clearly erroneous, instead of subjecting the master’s fact-finding to a clearly erroneous test and then exercising his independent judgment concerning the proper conclusion to be reached upon those facts. Id., 323 Md. at 490 , 593 A.2d 1133 . The Court of Appeals further held: Before leaving the subject of the appropriate interaction between the chancellor and master, we comment briefly on the fact-finding process.

The Court of Special Appeals concluded that “many of the Masters’ findings of fact are second level findings of fact and therefore not entitled to deference.” Johnson v. Domingues, supra, 82 Md.App. [128] at 131 n. 1, 570 A.2d 369 . The Court of Special Appeals took too narrow a view of the “facts” found by the master that should be presumed ⁶⁵² correct and rejected only if unsupported by the record or otherwise clearly erroneous. Id., 323 Md. at 493-94 , 593 A.2d 1133 . The Domingues Court opined that, where there are challenges to the findings of fact of the master, the chancellor should state, in an oral or written opinion, how he resolved the challenges.

Id., 323 Md. at 496 , 593 A.2d 1133 . Ultimately, the chancellor, “[hjaving determined which facts are properly before him, and utilizing accepted principles of law, ... must then exercise independent judgment to determine the proper result.” Id. Likewise, the Court of Appeals, in Kirchner, 326 Md. at 571 , 606 A.2d 257 , citing Domingues , vacated the order denying exceptions and remanded the case for further consideration because it determined that the chancellor there did not apply his independent judgment to the facts properly found by the master. The decisions in Domingues and Kirchner reinforce the well-established principle that it is ultimately the chancellor’s decision which “significantly impacts upon the lives of the parents and children involved.” Domingues, 323 Md. at 492 , 593 A.2d 1133 .

Although Domingues speaks directly to the requirement that the chancellor exercise independent judgment, the decision in no way changes the role of the masters as ministerial assistants to the judges. See Wenger v. Wenger, 42 Md.App. 596, 602 , 402 A.2d 94 , cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 1, 1980, citing Swisher v. Brady, 438 U.S. 204 , 98 S.Ct. 2699 , 57 L.Ed.2d 705 (1978); see also Levitt v. Levitt, 79 Md.App. 394, 398-99 , 556 A.2d 1162 cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989). Neither do the decisions in Domingues and Kirchner change the conclusion that “[ljitigants in a child custody proceeding, as in all judicial proceedings, are entitled to have their cause determined ultimately by a duly qualified judge of a court of competent jurisdiction.” See Ellis v. Ellis, 19 Md.App. 361, 365 , 311 A.2d 428 (1973), citing Md. Constitution, Article IV, § 1; Md.Ann.Code art. 26, § 30; ⁶⁵³ McLRule 71a. “While the system of resorting to Masters is one of long standing and undoubtedly has salutary effects resulting in the more