Boswell v. Boswell

DAVIS, Judge. On October 5, 1994, appellee Kimberly Boswell filed a Complaint for Limited Divorce (Complaint) from her husband, appellant Robert Boswell, in the Circuit Court for Anne Arundel County. She requested, inter alia, sole custody of their two young children (Ryan and Amanda), alimony and child support, pendente lite and permanently, use and possession of the family home, and reasonable counsel fees and costs. At the time of the hearing, Ryan was eight years old and Amanda was one month shy of her fifth birthday.

On January 20, 1995, the circuit court ordered that the children remain with appellee; appellant was granted visitation each Wednesday and every other weekend, pending a later order. The court also imposed a moratorium on the sale of any marital property. On February 2, 1995, the parties were ordered to meet with the Maryland Department of Social Services (DSS), and the DSS was instructed to report to the court on custody and visitation. Appellant answered the Complaint and, in July 1995, filed a Countercomplaint for Absolute Divorce, alleging adultery and requesting joint custody of the children, as well as an order directing appellee to obtain full-time employment and contribute to the mortgage and other expenses.

Appellee amended her original Complaint in August 1995, requesting an Absolute Divorce and stating that she had to leave the marital home when appellant informed her that he was a homosexual. She reiterated her requests for relief stated in the original Complaint. Appellant filed an Answer to the Amended Complaint, reiterating the relief requested in his Countercomplaint. In November 1995, the DSS filed its report with the circuit court.

On December 12, 1995, the court signed a Pre-trial Order that listed grounds for divorce, custody, visitation, child ⁶ support, and a monetary award as uncontested issues. 1 The only contested issues listed were alimony and counsel fees. The Order projected a one-day trial. Nevertheless, the parties never reached a final agreement before trial, which occurred on March 12, 13, and 14, and April 1 and 5, 1996. On April 5, the parties agreed on financial issues pertaining to the divorce, later incorporated in the Judgment of Absolute Divorce (Judgment).

Most financial aspects of the Judgment are not at issue in this appeal, and we will not delve into them. After a chambers conference during trial, counsel for appellant asked the presiding judge, Judge Lawrence Rushworth, to recuse himself because of comments during the conference that appellant thought indicated a predisposition toward requiring appellant’s live-in partner, Robert Donathan, to leave the home permanently, or at least not be present when the children were visiting their father. Appellant claimed that these comments demonstrated undue prejudice toward his case. Judge Rushworth denied the motion.

The circuit court did not issue a written opinion. In an oral opinion announced from the bench on April 5, 1996, the court awarded sole custody to appellee, with daytime visitation rights to appellant every other weekend and on Wednesdays. Although not requested by appellee, the court prohibited overnight visitation. The court also prohibited visitation with the children in the presence of Donathan or “anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship.” The court also, inter alia, ordered appellant to obtain medical insurance for Ryan and Amanda and thereafter to pay any of their uncovered medical bills.

On August 22, 1996, at the second request of counsel for appellant, Judge Rushworth recused himself from the case. Appellant appealed the Order, ordering and filing a transcript of the trial under Md.Rule 8-411 and 8-412. The ⁷ record was filed on November 25, 1996. Appellant filed a brief on January 6, 1997.

On January 13, appellee’s attorney for this appeal, Cynthia Young, entered her appearance. After discovering that a small portion of the record of the proceedings on April 5, 1996 was not transcribed and transmitted to this Court, appellant filed a Motion to Correct the Record under Rule 8-414 on February 5, 1997. He also asked permission to file a new brief. On February 12, 1997, appellee filed a Motion to Dismiss under Rule 8-603. 2 After receiving the submissions, a panel of this Court dismissed the appeal on March 18, 1997.

On Motion for Reconsideration filed by appellant, the Court vacated its dismissal on April 23, 1997, reinstating the appeal pro tempore and leaving it to the appellate panel to decide whether to dismiss the appeal. The Court’s order did not address appellant’s request to file a new brief, but said that appellee’s brief would be due on June 2, 1997. Appellee filed her brief on June 18, 1997, and appellant filed her reply brief on July 17, 1997. 3 Appellant presents two questions for our review and appellee presents one. We restate all three questions as follows: I. Should we grant appellee’s Motion to Dismiss?

II

Did the court abuse its discretion in setting forth its restrictions on appellant’s visitation with his children?

III

Did the court err by failing to detail on the record its reasons for deviating from the Maryland Child Support Guidelines and ordering appellant to pay all of the children’s unreimbursed medical expenses? We answer the first question in the negative, denying appellee’s Motion to Dismiss. We answer the second and third questions in the affirmative. ⁸ INTRODUCTION Their names are Ryan and Amanda. They are the minor children of the protagonists in the instant case.

What is in their best interest is our singular focus and our only concern in determining the propriety of restrictions imposed on visitation privileges. Much like the prolific batter engaged in our national sports pastime, we must (and we believe that counsel would be well served if they would) keep our eyes on the ball. Bombarded by platitudes from both sides, we are told by appellant that, relevant to our decision herein is the fact, inter alia, that “the mental health literature demonstrates that children with gay and lesbian parents are as happy and healthy as other children and are not adversely affected by their parents’ sexual orientation.” Because of the manner in which the parties have sought to buttress their respective positions and because there has been an attempt to cast the issues in this case in more universal terms than is warranted, we are constrained, at the outset, to delimit the parameters of our review in this appeal. This is not a case about gay and lesbian rights, nor do we break new ground, in our ultimate holding, infra, that the evidence must support a factual determination of adverse impact on the children to sustain restrictions on visitation.

Concomitant with and undoubtedly influenced by societal norms and mores, Maryland law traditionally entertained a presumption that children exposed to the adulterous partners of their parents were harmed by such exposure. The notion that exposure to an adulterous relationship, ipso facto, constituted a sufficient basis for a finding that a parent was unfit was laid to rest by the Court of Appeals in Davis v. Davis, 280 Md. 119 , 372 A.2d 231 (1977). Consonant with the Court’s decision in Davis , this Court in Swain v. Swain, 43 Md.App. 622 , 406 A.2d 680 (1979) (custody determination of adulterous parent) and North v. North, 102 Md.App. 1 , 648 A.2d 1025 (1994) (determination of overnight visitation by homosexual parent), reiterated that exposure to the parent’s adultery or ⁹ sexual orientation may be considered only insofar as the minor child is actually harmed thereby. Simply put, while we shall review the factual findings as well as the evidence supporting the decision to impose restrictions on visitation in this case, this review is only toward the end of deciding, consistent with the proper standard of appellate review, whether such restrictions are in the best interests of the children in this case.

Because there is no longer any presumption of unfitness in Maryland, all such cases are fact specific. Consequently, the exhaustive compendium of articles and treatises, submitted by appellant, chronicling studies which conclude that approximately six million children are raised in same-sex households and “not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect” are immaterial to our narrowly focused consideration of whether the evidence supports a finding that Ryan and Amanda are adversely affected by such exposure. In other words, assuming, arguendo, that the trial judge had been presented evidence at trial that actual harm causally connected to the sexual orientation of appellant had been suffered by the Boswell children, we would uphold any reasonable restriction imposed on visitation designed to prevent the demonstrated adverse effect even if there had also been presented at trial conclusive evidence that not one of the six million children in same-sex households that were studied had been adversely affected by a parent’s sexual orientation. Appellee, for her part, chooses to thrust and parry.

We observe, however, as we did at oral argument before us, that we recognize counsel’s right and obligation, within ethical bounds, to vigorously advocate on her client’s behalf. This includes invoking all available procedural rules in advancing her client’s cause. While we acknowledge counsel’s motion to dismiss this appeal is not technically frivolous, we believe, as we so indicated at oral argument, that reaching the merits concerning promotion of the welfare of the two children involved should, in this particular case, take precedence over procedure. ¹⁰ At oral argument, appellant alluded to comments which, according to appellate counsel, were made by the trial judge in chambers without the benefit of the court reporter. These remarks, reflected, according to the assertions set forth by counsel for appellant in her brief (referring to the prohibition in the court Order against visitation in the presence of “anyone having homosexual tendencies”), “biased preconceptions rather than the best interests of the children____” We shall review the propriety of the wording of the Order, infra; however, we are constrained to note that the language of the Order speaks for itself and we are not here concerned with the question of judicial bias.

Bias itself, independent of the language of the Order, has not been asserted as a ground for appellate relief. We note that a Motion to Recuse was made and was granted and, thus, the trial judge will have no further involvement in these proceedings. Accordingly, we stress that our inquiry is limited to the propriety and reasonableness of the Order and not to the motives of the trial judge. We intimate no view as to the propriety of the trial judge’s conduct of the proceedings because, as we said in Braxton v. Faber, 91 Md.App. 391, 398-409 , 604 A.2d 543 (1992), appellate review of the proceedings over which a judge presides considers judicial misconduct only as it impinges upon the rights of the parties.

Alleged judicial misconduct or bias is reserved for another day and is not properly before us in this appeal, since the trial judge is afforded no opportunity to refute or explain the genesis of the objectionable language, nor are his motives pertinent to a determination of whether the language in the Order 4 was proper. Id. ¹¹ Having disabused the parties of the belief that the above matters are germane to our decision in this case, we hold that, in the case sub judice, the restriction prohibiting “visitation of the children with the father in the presence of Mr. Robert Donathan or anyone having homosexual tendencies or such persuasions, male or female, or anyone that the father may be living with in a non marital relationship” is unreasonable on its face. As will be discussed in greater detail below, the prohibition against “anyone having homosexual tendencies or such persuasions” would require inquiry of the sexual orientation of every person with whom the children might come in contact, for instance, at a shopping mall or on a casual outing or picnic and would not necessarily be within appellant’s control. We further hold that, although the fact-finding of the lower court was flawed, a review of the evidence ultimately indicates the principal concerns expressed by the expert witnesses for the children dealt with adjustments that all children must make upon a separation of their parents, irrespective of the assimilation of any new mate into the daily routine of one of the parents.

Therefore, the evidence was insufficient in that manifest from the record before us is no actual harm, i.e., detriment to health, poor academic performance, emotional trauma, shown to be caused by exposure to appellant’s sexual orientation. Pursuant to our analysis below, we vacate the judgment of the circuit court and remand the case for further proceedings consistent with our holding in Part III infra and for passage of a proper order consistent with this opinion. FACTS From the procedural quagmire of this case, the following facts emerge. Appellant and appellee were apparently happily married until appellant told appellee in August 1994 that he was homosexual.

There was also trial testimony that appellee had an affair around this time; specifically, appellee stated ¹² that after her husband’s revelation, she became intoxicated with a male acquaintance and had sex with him. The couple separated in August. In February 1995, after divorce proceedings had begun, Donathan began living with appellant. Visitation as ordered by the circuit court on January 20, 1995 occurred with Dona-than present and living with appellant.

At trial, appellant testified that at first, he and Donathan slept in the same bedroom when the children came for visitation. When court proceedings revealed that this was upsetting Ryan, appellant testified that he and Donathan began sleeping in separate bedrooms during visitation. Appellant testified that he and Donathan agreed that Donathan would not take an active role in the discipline of the children, and the trial testimony indicated that Donathan generally abided by this arrangement. Donathan would play with the children during visitation and participated in activities with appellant and the children during visitation.

Marcia Kabriel was the social worker appointed by the court to investigate the situation and to make a recommendation on custody and visitation. She testified that she conducted over twenty interviews with the parties involved by the time she filed her report on October 30,1995, and the children had bonded well with both parents. Although she recommended that the primary residence of the children remain with appellee, she recommended liberal visitation with appellant. She also recommended that neither parent include others or their grandparents in the children’s extracurricular activities for at least a year, that neither parent interfere with the children’s participation in all family functions of both sides of the family, that the parents alternate visitation on major holidays, that appellant have a week with the children each of the summer months, and that the children stay with appellant every other weekend and have time with appellant on Wednesday evenings.

At the time of her initial recommendations, Kabriel did not recommend overnight visitation on Wednesdays. Later, be ¹³ cause the acrimonious relationship between appellant and appellee was not improving, Kabriel concluded that “it was important for the children to have a — a time to see their father in between the two-week period, that that was a long period of time [to go without seeing him].” Thus, she recommended that the children stay with their father overnight on Wednesdays. Kabriel indicated that the children were “confused” by the relationship between their father and Donathan, and that while Amanda was adjusting fairly well to the situation, Ryan was having difficulty accepting it. When pressed by counsel for appellee to clarify whether the cause of the confusion was the homosexual aspect of the relationship between appellant and Donathan, however, Kabriel replied: The children would have been confused if it had been a man or a woman.

The children routinely in the first year or two after a separation and divorce have hopes that their parents will reconcile. They want them together and so the whole situation would be confusing to them. Kabriel perceived no indications that appellant and Donathan engaged in sexual activity in front of the children. She did recount Ryan’s complaint that Donathan had once “grabbed his arm” when he was running, and that his father would at first lock his bedroom door at night so that Ryan could not go to him if he was frightened.

When asked whether it would be better for the children if Donathan were absent whenever they visited appellant, Kabriel replied: Well, most certainly as I expressed to both of the parents, ah, it made things much more difficult with the children in the initial separation and break up and unfortunately, ah, as Doctor Standley expressed to me about it, their treatment was very slow. I think that if the parents could begin to work together and communicate and plan for these children and reduce the tension between — that exists between the parents, this makes more sense in terms of [Donathan] has been in these children’s lives now for over a year and I don’t ¹⁴ think that he’s just going to go away. So in a sense the children have already had their experience with him and have a relationship with him. Dr. Kay Standley, a child psychologist with whom the children were in therapy, testified as an expert witness for appellee.

She had begun seeing Ryan in January 1995 and Amanda in April 1995, both on a weekly basis, and she was still seeing them at the time of trial. Standley testified that Amanda’s problems were related to the animosity between appellant and appellee and that Ryan’s “period of adjustment” was more difficult because he suffers from Attention Deficit Disorder, has a “pretty poor self-concept,” and has difficulties with peer relationships. When asked whether the temporary visitation schedule was working, Standley testified that the weekend visits had become more pleasant and that the children did not seem as distressed as they once were. Standley said, however, that overnight visitation on Wednesday evening would detract from the consistency and stability she felt the children needed, and she recommended that there be no overnight visitation “during the week” because of the disruption it would cause.

She maintained that mid-week visits should continue, however. When asked about the effect appellant’s homosexual relationship with Donathan was having on the children, Standley testified that Ryan was “distressed by the relationship between his father and his friend. One time in particular he was concerned that they slept together face to face and he didn’t understand that.” When asked whether it would be better for the children if Donathan were not present during visitation, Standley focused her answer on the effect any relationship of appellant’s, whether homosexual or heterosexual, would have on the children: In any situation like this as the children adjust to a parental separation, divorce and the realignment of parents with new partners, it’s very, very important whether that is the same sex or an opposite sex partner that there be a very slow ¹⁵ period of exposure to the — to the children of that — that new partner. That should proceed deliberately and very slowly.

In this instance I think it’s complicated somewhat because, for especially Ryan, Amanda doesn’t seem to be — she seems to be more flexible about this but for Ryan especially, he seems to be having difficulty adjusting to the presence of his father’s friend all the time. They — children in a situation like this really need to be reassured that they have the affection and the continuing relationship of each parent ... and that — that no other person, no other relationship will— will interfere with that. Standley had this to say about the children’s adjustment to their father’s relationship with Donathan: I think initially [their father’s new relationship] was very difficult for them. I think they’re doing a little bit better now.

I think they’re getting used to it. I think it was very unfortunate initially, how quickly that they were exposed to all that but they seem to be adjusting a little bit better now. Standley did venture that Donathan’s disappearance from visitation would not be “much of an issue” for the children, and may even be a relief. Appellee testified to many financial and personal circumstances surrounding the separation and divorce proceedings.

Regarding circumstances relevant to this appeal — i,e., visitation — appellee testified that appellant told her one night shortly before the separation that he was homosexual and had been having an affair with a man named Jeff Hancock. The next day, appellee said, she met with a female friend and later got drunk and had sex with a male acquaintance in his truck. She never saw this person with whom she had sex again. When asked her preference on visitation between appellant and the children, appellee stated unequivocally that appellant should have visitation rights every other weekend and midweek every week.

She agreed with Kabriel’s recommendation that appellant take the children for one week per month during the summer months, but expressed a wish that there ¹⁶ be no visits in August and that the summer visits not be scheduled for consecutive weeks. Appellant testified that both children held good feelings toward Donathan and that Donathan enjoyed friendly and pleasant relations with them. When notified by his son’s school of a report that he or Donathan had sexually abused one of the children, appellant arranged for an investigation by the police department. The investigating officer, Elizabeth Parsons, testified that, based on an investigation that included interviews with all parties involved, there was no evidence that any abuse had occurred.

On April 4, 1996, three weeks into the trial, appellant testified that, since he had learned that Ryan was upset by appellant and Donathan sleeping in the same room, he had arranged for the two of them to sleep in separate bedrooms. He stated his willingness to continue with this arrangement. When asked about an allegation that Donathan had abused Ryan, appellant replied that he had once asked Donathan to stop Ryan from running and throwing objects off of a balcony until appellant came upstairs. Apparently, Donathan grabbed Ryan’s arm to restrain him.

Before trial, the judge held videotaped, in camera interviews with each of the children. They each indicated that they preferred to live with their mother. Concerning overnight visitation, the following colloquy occurred: THE COURT: When you go to visit your father and it’s overnight, are you concerned? Does anything happen that frightens you or anything of the sort?

RYAN: In the daytime once when I was rollerblading, my dad’s friend pulled me down and hit my knee very bad. 5 Ryan told the judge that Donathan “grabs my arms a lot.” When the judge asked the children whether either of them had seen “Mr. Rob” in the shower, they answered that they had not. In its Order setting visitation, the court would later depend heavily on the following colloquy: ¹⁷ RYAN: My dad says that we were going — when we moved into our new house, there was going to be three beds, but there’s — I mean, four beds, but there’s only three, and dad and Mr. Rob sleep in the same bed. 6 THE COURT: So you prefer that there be more beds for your dad to— RYAN: One more bed. THE COURT: What? One more bed?

RYAN: One more bed, and they would move from his office, downstairs. THE COURT: Uh-huh. So when you go to visit then, would you prefer not to have overnight visitation? RYAN: I don’t like sleeping over there.

Maybe my dad could pick me up early each weekend and the only thing different would be that I wouldn’t spend the night. He would pick me up. I would go to my mom’s — (Inaudible). THE COURT: Well, you tell me then.

Would you prefer that, not to have overnight? RYAN: (No response.) THE COURT: And Amanda, have you been over there overnight as well? AMANDA: Uh-huh. THE COURT: And how do you feel about that?

AMANDA: I don’t know. THE COURT: Would you prefer visitation where Mr. Rob is not there? AMANDA: Uh-huh. RYAN: (No audible response.) THE COURT: Both indicating that.

Amanda, would you prefer visitation when Mr. Rob is not there? To go visit when Mr. Rob isn’t there and only your dad? AMANDA; I just want to visit my dad. Not Mr. Rob.

Only sometimes I want to visit Mr. Rob. ¹⁸ THE COURT: Sometimes you want to visit him? So you get along with Mr. Rob? AMANDA: Uh-huh. RYAN: She does.

I don’t. THE COURT: Okay. But, Ryan, you’re certain about that? You would rather not visit with your dad when Mr. Rob is there?

Is that— RYAN: Yeah, but I don’t want him to move away, because he has a dog and I really like the dog. THE COURT: Okay. The court made the following findings on the record after its conversation with Ryan and Amanda: The Court has had the opportunity to, on the record, speak with the minor children, Ryan and Amanda. The gist of that conversation would indicate to the Court that they are both intelligent children, had no difficulty in speaking with the Court and voicing their opinions.

Obviously, Ryan, the older child, was able to articulate to a better extent. His feelings are that he would prefer visitation with his father without the presence of Mr. Rob, and he would be willing to, he said, get up early and start the day early and stay later if the visitation were not overnight. He had indicated some concern that he was promised apparently by his father living accommodations which would amount to three bedrooms, and apparently one of those rooms is used as an office, and Mr. Rob and his father use the same bed. This is what he said in any case.

He is concerned about being with Mr. Rob, related an incident of some pushing or scolding by Mr. Rob. I didn’t believe — the Court didn’t believe it amounted to a great deal, but he showed some concern about that. On the other hand, he indicates to us, as does Amanda, that Mr. Rob apparently has a dog, so he doesn’t wish to offend Mr. Rob and wishes to continue visitation with the dog. I don’t know how we can effect that. ¹⁹ Amanda pretty much mimics what her brother had indicated.

The closest she comes to any visitation with her father in the presence of Mr. Rob is that she said that she would prefer just to visit with her father, but, then again, she followed it up with a statement that she would also like to on occasion visit Mr. Rob. So the Court will factor in that conversation, which again, Counsel, is on the record, as it’s required to be, there being no waiver____ Also testifying in relation to Donathan’s presence during visitation were Officer Elizabeth Parsons, who testified that she found no evidence supporting allegations of child abuse by appellant or Donathan, and Officer Keith Bauman, an Anne Arundel County police officer, who testified that he had known appellant for several years and would feel comfortable leaving his eight-year-old daughter alone in the company of appellant and Donathan. As noted supra, appellant filed his initial brief and transcripts without filing a transcript of the proceedings that occurred on the morning of April 5, 1996. It is undisputed that this failure was due to an oversight of the Court Reporter who ordered the transcripts from Gore Reporting Company at appellant’s request.

At the time of the filing of the initial brief, appellant had at his disposal the transcript of the proceedings in which the judge orally ruled on visitation. The court made no findings of fact in the comments from the bench of which appellant had transcripts at the time of his filing, and the principal argument in appellant’s brief was that the failure of the court to make any findings of fact upon which to base its visitation Order mandated reversal under our opinion in North, 102 Md.App. 1 , 648 A.2d 1025 . In the portion of the hearing that initially went untranscribed (an error since corrected), the court made these comments from the bench concerning visitation: Visitation is an interesting question and without addressing or surmising, assuming, that there is any relationship other than the — I think what’s been testified to, the affection ²⁰ between [appellant] and Mr. Donaldson [sic], presently residing together, the Court treats this as it would, at least initially, as it would treat any relationship and there are many of them. I have ruled on this time and time again and been affirmed at least by the Special Court, that where there is a situation with minor children and where there is a — a paramour involved; the Court most often addressing it where there is a third party to the triangle who is ... usually of the opposite sex, the party to receive that visitation, and where that party is present.

I have often, time and time again, restricted visitation. I think that’s only appropriate. Certainly where we have a situation where the husband should run off with a female companion with some relationship of that nature which certainly in the female we — where up to this time we have thought in terms of an adulteress and where the relationship continues, an inappropriate relationship. It is certainly inappropriate to do something other than restrict the relationship.

So the Court is concerned. It has considered the testimony of the expert witnesses and Ms. Kabriel the Court has— has been in front of the Court on numerous times. Uh, but — and has considered the testimony of Dr. Kay Standley who suggests that overnights are not appropriate. So under those circumstances the Court would restrict the visitation to be no overnight---- Certainly the — there is no reason to address any visitation of the children with Mr. Donaldson[sic].

That visitation seems to be, if it is desired at all by them, seems to be predicated on the fact that the dog is present. I would hope not to restrict any visitation with the dog but if it becomes necessary to — if that has to be coupled by Mr. Donaldson [sic] or anyone else in — in a relationship, ongoing relationship of that type, then certainly it goes to the — the well-being of the children and the concern that the children has [sic] in their interest, Carter v. Carter. So the visitation on Wednesday seems to be agreeable. Even though it is a — it is an arrangement which may well interfere with the — eventually interfere with schooling, et cetera, and the activities of these children, the Court ²¹ deems that if it must get specific, then — then I’ll do so in holding down the — the visitations of both the weekend and Wednesday and restricting during this period any overnight visitation.

Clearly the Court is convinced that the, uh, that there is a relationship, at least up until this time, and no concern to change before this time, that the Defendant is sleeping with — with another person without the cloak of a marital relationship. The — the Court notes that — that the home has four bedrooms. I think that was the testimony, or at least three bedrooms. And so if the visitation to take out of that particular environment is — if it’s necessary to visit outside of the home or enter into a new home where the Defendant is concerned, so be it.

That will have to be adjusted for the benefit of the children. I would hope that the parties could work out