Bienenfeld v. Bennett-White

HARRELL, Judge. A principal issue raised by this child custody case is whether evidence of the religious views or practices of a party seeking custody may be considered by a court in ⁴⁹³ making a custody determination. We hold that such evidence may be considered, along with other factors impacting upon the child’s welfare, if such views or practices are demonstrated to bear upon the physical or emotional welfare of the child. We also hold that the chancellor in the instant case did not abuse his discretion by considering such evidence.

Facts Appellant, Alice Bienenfeld (hereinafter “the mother”), and appellee, Reider J. White (hereinafter “the father”), were married on 17 September 1977. Three children were born of the marriage, Reider Junior (hereinafter “Reider”) on 28 June 1979, Shannon on 2 February 1981, and Vernon on 22 August 1983. The parties separated on 3 June 1988, and agreed informally to share custody of the children. They also agreed that the children would reside primarily with the mother, subject to liberal visitation privileges for the father.

The father moved to an apartment, while the mother and the children continued residing at 201 Sandee Road in Timonium, Maryland, where the family had lived for seven years. When the parties were married both were members of the Episcopal faith. On 8 May 1988, however, the mother and the children converted to Orthodox Judaism. While the father agreed to the children’s conversion, the parties had different interpretations of the significance of the father’s agreement.

The mother testified at the trial on the merits that she believed and desired that, from the time of the conversion, the children’s religious upbringing would be strictly according to the tenets of Orthodox Judaism. The father explained that he did not understand the children’s conversion, or his agreement thereto, to preclude him from exposing the children to the Episcopal faith. The parties’ failure to meet minds on this issue foreshadowed a series of bitter conflicts between them over the religion and education of the children. ⁴⁹⁴ On 8 May 1989, the mother filed a complaint for divorce and request for injunctive relief against the father in the Circuit Court for Baltimore County, alleging, in part, that the father had “embarked upon a program of mental and emotional harassment and torment” of her. She requested, inter alia, an order granting her temporary custody of the children.

The father answered and filed a counterclaim for temporary and permanent custody, alleging that the mother had attempted to prevent him from visiting the children. On 8 August 1989, the parties and their attorneys appeared for a hearing before a domestic relations master. The parties informed the master that they had agreed to the entry of an order providing for joint legal custody of the children, with the mother to have physical custody and the father to have visitation rights similar to those informally agreed upon earlier. The agreement, which was recited and consented to on the record, also provided generally that the parties would cooperate with respect to each other’s religious activities with the children, and that the children could attend a private Jewish day school at the expense of the mother.

The basic contents of the agreement was memorialized in an order drafted by the mother’s counsel and entered by the circuit court on 12 October 1989. In spite of the agreement, clashes over the religion and education of the children continued unabated. Several legal skirmishes occurred before the trial on the merits, including one involving the mother’s enrollment of the children in the Community Day School of Beth Tfiloh (hereinafter “Beth Tfiloh”) in the fall of 1989 and one involving the children’s vacation in the spring of 1990. The trial on the merits was heard by a chancellor, The Honorable James T. Smith, Jr., commencing 26 June 1990.

The chancellor found that both parents were fit, but that the children did not fare well with the mother’s then fiance, Sam Bienenfeld. For some time, the mother and the children had been in the practice of staying at Bienenfeld’s apartment on Sabbaths and religious holidays because of its ⁴⁹⁵ proximity to their synagogue. 1 The chancellor found that the children were “bored” and “unhappy” at the apartment due to a lack of stimulating activities in and around the apartment, and that there were personality conflicts between Sam Bienenfeld and the children. The chancellor also found that living in the Sandee Road house offered the children an important form of stability. “Sandee Road has been very important. They have friends in the neighborhood.

They have activities that they enjoy, and can describe, when they are home, and they are generally happy, and it is important that they have that stability.” In addition, the chancellor found that the parties had agreed after their separation that the children would be exposed to both the Orthodox Jewish and Episcopal faiths, but that the mother believed that their agreement was otherwise. He found that the mother had attempted to restrict the children’s access to the father because of her view that the children’s religious upbringing should be exclusively Orthodox Jewish. The chancellor found that the father had a cooperative attitude toward the mother’s religious activities with the children, so long as he was allowed to expose them to his own religion and his access to them was not unduly restricted. The chancellor concluded that the best interests of the children required that the father have physical and legal custody and use and possession of the Sandee Road house.

He granted liberal visitation rights to the mother, 2 and ordered a detailed, shared schedule of holidays, including visitation during the Jewish holidays of Rosh Hashanah, Yom Kippur, Hannukah, Passover, and Shavuot. Additionally, the chancellor required the father to allow the children ⁴⁹⁶ to continue attending Beth Tfiloh, so long as the children qualified to attend and the mother paid the entire cost of their attendance. 3 Following the entry of the chancellor’s order on 29 June 1990, the mother filed a motion for a new trial which was subsequently denied. The mother filed a timely appeal. On 25 July 1991, the father filed a motion for permission to enroll Reider in Ridgely Middle School, a public school.

The mother answered and filed a motion for contempt. The motion for contempt was premised on the father’s refusal to pay half the costs of a mathematics tutor for Shannon, as allegedly required by the 29 June 1990 order, and on the father’s contacts with Ridgely Middle School prior to his filing of the motion for permission to enroll Reider there. The mother contended that such contacts constituted contempt of the chancellor’s order that the children continue to attend Beth Tfiloh. Both motions were heard by the chancellor commencing on 13 August 1991.

The chancellor found that, while Reid-er’s preference for public school had not changed, the circumstances surrounding his preference had changed. More specifically, the chancellor found that Reider, who was at that time thirteen years old, was entering the middle school level, and that Beth Tfiloh had done nothing to evaluate the special educational needs he would have at that level. The evidence showed that Reider had certain learning problems, particularly with written comprehension and spelling, and that he had been in an individualized education program in public school before his enrollment in Beth Tfiloh. The chancellor found that Reider would be guaranteed evaluation of the special educational needs he would have at the middle school level in public school.

Further ⁴⁹⁷ more, the chancellor found that Reider had exhibited increased signs of anxiety since the time of the trial, and that giving him greater control over important decisions in his life, such as which school he attended, would help alleviate this anxiety and foster in him a positive sense of independence. Finally, the chancellor found that Reider was entering a stage at which most boys and girls at Beth Tfiloh prepare for their bar or bas mitzvah. 4 He found that Reider did not wish to be bar mitzvahed, that he was acutely aware of this difference between himself and his peers at Beth Tfiloh, and that the emotional stress or tension caused by this perception would not be present if Reider attended public school. The chancellor concluded that the best interests of Reider required that he be allowed to transfer to a public school. In an order dated 15 August 1991, the chancellor granted the father’s motion, treating it as a motion for modification of the 29 June 1990 order.

The chancellor also dismissed the mother’s motion for contempt, finding that the actions complained of did not constitute contempt of the 29 June 1990 order. In addition, the chancellor modified the schedule of shared holidays to provide that Reider could miss no more than one school day in connection with religious observances for each of four Jewish holidays for which the mother had visitation rights. This modification was evidently necessitated by the fact that Reider would no longer be attending Beth Tfiloh, where school was not in session during those holidays. Finally, the chancellor required that Reider, the mother, and the father participate in such psychological counselling as might be recommended by Dr. P. Gayle O’Callahan, the costs to be divided equally between the parties.

Dr. O’Callahan, a clinical psychologist, had ⁴⁹⁸ counselled Reider previously and had consulted with both the father and the mother. The mother filed a motion for a new trial or, in the alternative, to alter, revise or amend the 15 August 1991 order. After a hearing on the motion, the chancellor ordered minor modifications of the wording of the order. The mother then filed another appeal.

By order of this Court, the mother’s appeals were consolidated. We shall include additional facts as necessary in our discussion of the issues presented. The mother raises a number of issues for our consideration, which we have recast as follows: I. Did the chancellor abuse his discretion in awarding legal and physical custody of the children to the father?

II

Did the chancellor abuse his discretion in considering evidence of the views and practices of the mother regarding the children’s religious upbringing in making his custody determination?

III

Did the chancellor’s decision infringe upon the mother’s constitutional right to free exercise of religion?

IV

Did the chancellor abuse his discretion in modifying the 29 June 1989 custody order? V. Did the chancellor abuse his discretion in denying the mother’s motion for contempt? I. Did the chancellor abuse his discretion in awarding legal and physical custody of the children to the father? Initially, the mother contends that the chancellor improperly applied the “best interest of the child” standard because he was considering a change of custody previously ordered by the court.

The mother contends that the proper standard was whether there was evidence of a material ⁴⁹⁹ change in circumstances affecting the welfare of the children. We disagree. On 12 October 1989, physical custody of the children was awarded to the mother upon the agreement of the parties. We are mindful that the father never consented to the exact wording of the 12 October 1989 order.

Nevertheless, it is clear that the order reflects the agreement made by the father during the hearing before the master that the mother would have physical custody of the children. “We have treated as ‘final,’ subject to modification upon a sufficient showing of change, custody orders entered by the consent and upon the agreement of the parties.” McCready v. McCready, 323 Md. 476, 483 , 593 A.2d 1128 (1991) (citations omitted). 5 ⁵⁰⁰ Id. at 482 , 593 A.2d 1128 . See also Domingues v. Johnson, 323 Md. 486, 498-500 , 593 A.2d 1133 (1991) (discussing relationship between question of changed circumstances and best interests standard in modification of custody case). ⁴⁹⁹ In the limited situation where it is clear that the party seeking modification of a custody order is offering nothing new, and is simply attempting to relitigate the earlier determination, the effort will fail on that ground alone. * * * * * * In the more frequent case, however, there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child. Thus, the question of ‘changed circumstances’ may infrequently be a threshold question, but is more often involved in the ‘best interest’ determination, where the question of stability is but a factor, albeit an important factor, to be considered. ⁵⁰⁰ In the case before us, there was sufficient evidence of changes occurring since the entry of the agreement-based custody order to justify the application of the best interests standard.

For instance, the agreement-based order provided for equal visitation during the children’s spring vacation. Spring vacation coincided with Passover, and the mother, fearing that the children’s religious observances would be interrupted, sought to prevent the father from visiting the children during Passover. Resolution of the resulting dispute required a court order. Thus, there was evidence that the parties had failed to cooperate with respect to the religion and education of the children and that the mother had attempted to prevent the father from visiting the children.

See infra p. 501-502 (stating importance to children of significant contact with both parents). Accordingly, the chancellor did not apply the wrong standard. Several criteria must be considered in arriving at [the best interest of the child], including, inter alia, the fitness of the parents, character and reputation of the parties, desire of the natural parents and agreement between the parties, potentiality of maintaining natural family relations, preference of the child, material opportunities affecting the future life of the child, age, health and sex of the child, residences of the parents and opportunity for visitation, length of separation from the natural parents, and prior voluntary abandonment or surrender. Shunk v. Walker, 87 Md.App. 389, 397 , 589 A.2d 1303 (1991).

The chancellor has broad discretion in making a custody decision. We will not set aside factual findings made by the chancellor unless clearly erroneous, and we will not interfere with a decision regarding custody that is founded upon ⁵⁰¹ sound legal principles unless there is a clear showing that the chancellor abused his discretion. McCready, 323 Md. at 484 , 593 A.2d 1128 . The record supports the chancellor’s findings.

For instance, it was universally agreed that the children had a close relationship and strong bonds with both their mother and father. In individual interviews with the chancellor in chambers (with only a court reporter present), each of the children indicated that there was a dearth of activities for them in and around Sam Bienenfeld’s apartment. There was testimony from several sources, including the mother and Bienenfeld, that Bienenfeld had been involved in a number of violent altercations with Reider and Shannon. The evidence also showed that the children had lived in the Sandee Road house for many years and had many friends and activities there.

Also supported by the record were the chancellor’s findings that the parties previously agreed that the children would be exposed to both the Orthodox Jewish and Episcopal faiths and that the mother had attempted to restrict the children’s access to the father because of her religious views. The consensual custody agreement recited and consented to during the hearing before the master provided that “the parties will cooperate with each other with respect to religious observances of each other and those of the children.” 6 The mother testified that the father had agreed at the time of the conversion not to take the children to church, and indicated that she regarded his doing so as an interference with her prerogative to inculcate religious beliefs in the children. She also testified that she believed that the father was not adequately supportive of the children’s involvement with Orthodox Judaism. Additionally, the evidence showed that the mother had sought to deny ⁵⁰² the father visitation rights on occasions when she felt that such visitation would conflict with the children’s religious observances.

The chancellor concluded that, under the circumstances, the children’s interests would best be served by awarding the father physical and legal custody, while at the same time ensuring extensive continuing contact with the mother. We cannot say that the chancellor abused his discretion in reaching this conclusion. The chancellor recognized the desirability of maintaining stability in the children’s lives and repeatedly stressed the need for stability as a factor in his decision. Obviously, continued custody in the mother, who until then had been the children’s primary caretaker, would have provided a form of stability for the children.

The issue of stability may cut different ways in a given case, however. Domingues, 323 Md. at 502 , 593 A.2d 1133 . In the instant case, there was evidence that the mother intended to uproot the children from a very stable, familiar environment and settle them in an unfamiliar and somewhat less desirable situation. There was evidence that, as a result of the mother’s remarriage, the children would be living with a man with whom they had significant difficulties.

There was also evidence that the children’s ties to the father would be threatened if the mother were given custody. The importance to children of significant contact with both parents is well recognized. See id. (“How valuable the mature guiding hand and love of a second parent may be to a child is taught by life itself’) (citations omitted).

See also In re Marriage of Hadeen, 27 Wash.App. 566 , 619 P.2d 374, 382 (1980) (“to deny to the child an opportunity to know, associate with, love and be loved by either parent, may be a more serious ill than to refuse it in some part those things which money can buy”) (citations omitted). Clearly, then, the decision of which party should be awarded custody was neither easy nor clearcut. We have observed that “there is no such thing as a simple custody case,” and that “a judge agonizes more about reaching the right result in a contested custody issue than ⁵⁰³ about any other type of decision____” Montgomery County v. Sanders, 38 Md.App. 406, 414 , 381 A.2d 1154 (1978) (citations omitted). This is especially so in a case such as the one before us, where the chancellor did not find that either parent was unfit. “At the bottom line, what is in the child’s best interest equals the fact finder’s best guess.” Id. at 419 , 381 A.2d 1154 .

The chancellor had the opportunity to observe personally the witnesses, and his judgment of their credibility is entitled to deference. See id. (“we must afford great weight to the Chancellor’s opportunity to see and hear the witnesses, ... inasmuch as we are supplied with only the transcribed testimony”) (citations omitted). We are not free to substitute our judgment for that of the chancellor.

The determination of the best interests of the children was for him to make in the exercise of his discretion.

II

Did the chancellor abuse his discretion in considering evidence of the views and practices of the mother regarding the children’s religious upbringing in making his custody determination? The mother contends that the chancellor abused his discretion by giving consideration to evidence of her views and practices regarding the children’s religious upbringing in making his custody determination. We reject this contention. It is well established that child custody determinations must be made by careful examination of facts on a case-by-case basis.

See Montgomery County v. Sanders, 38 Md.App. 406, 419 , 381 A.2d 1154 (1978) (best interests standard varies with each individual case). Courts are not limited or bound to consideration of any exhaustive list of factors in applying the best interests standard, see id. at 420 , 381 A.2d 1154 , but possess a wide discretion concomitant with their “plenary authority to determine any question concerning the welfare of children within their jurisdic ⁵⁰⁴ tion[.]” Kennedy v. Kennedy, 55 Md.App. 299, 310, 462 A.2d 1208 (1983). This authority clearly empowers courts applying the best interests standard to consider any evidence which bears on a child’s physical or emotional well-being. Nevertheless, there are clear boundaries to the authority of courts in the matter of religion.

The first amendment of the Constitution of the United States, 7 which is made applicable to the states through the fourteenth amendment, Mercy Hospital v. Jackson, 62 Md.App. 409 , 415 n. 6, 489 A.2d 1130 (1985), vacated as moot, 306 Md. 556 , 510 A.2d 562 (1986), 8 prevents the government from preferring one religion over another and safeguards the free exercise of religion. Davis v. State, 294 Md. 370, 379 , 451 A.2d 107 (1982); Hopkins v. State, 193 Md. 489, 496 , 69 A.2d 456 (1949). “Freedom of religion means the right to pursue one’s religious beliefs without interference from any other religion, non-religion or the government.” Mercy Hospital, 62 Md.App. at 414 , 489 A.2d 1130 . It has been recognized that freedom of religion includes the right to direct the religious upbringing of one’s children. Wisconsin v. Yoder, 406 U.S. 205, 232 , 92 S.Ct. 1526, 1541 , 32 L.Ed.2d 15 (1972); Thomas v. Alleghany County Bd. of Education, 51 Md.App. 312, 316 , 443 A.2d 622 (1982).

The authority to make custody determinations does not give courts license to engage in constitutionally prohibited activities. Consequently, courts may not weigh the merits of different religions or different religious upbringings— including nonreligion — in resolving custody disputes. 9 See, ⁵⁰⁵ e.g., Levitsky v. Levitsky, 231 Md. 388, 398 , 190 A.2d 621 (1963) (recognizing that “the fact that a parent teaches a child religious doctrines which are at variance with those of the majority is not a ground for a change of custody”); Sanders, 38 Md.App. at 416 n. 10, 381 A.2d 1154 (“pronouncement that athiests or persons with ‘irreligious principles’ are unfit parents is without the ambit of the First Amendment.”). In Levitsky, 231 Md. at 392 ,