Braun v. Headley

⁵⁹² ADKINS, Judge. We must determine in this appeal whether the Court of Appeals’s decision in Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991), which holds that the relocation of a child may constitute a change in circumstances sufficient to trigger a review of custody, applies a standard that violates a custodial parent’s constitutional right to travel. Relying on the Supreme Court’s recent decision in Saenz v. Roe, 526 U.S. 489 , 119 S.Ct. 1518 , 143 L.Ed.2d 689 (1999), appellant argues that the Domingues standards must be modified. 1 Appellant further argues that we should reverse the decision of the Circuit Court for Harford County to transfer custody from Leslie K. Braun, appellant, to Jeffrey David Headley, appellee, after appellant’s relocation from Maryland to Arizona, because the change in custody was not in the best interests of the child. FACTS AND LEGAL PROCEEDINGS The minor child, Theresa, was born on November 11, 1993.

Appellant filed a complaint to prove paternity and establish child support on May 11, 1994, naming appellee as the father. Following the determination that appellee was the father, custody was awarded to appellant and appellee was ordered to pay approximately $316 monthly in child support. 2 Appellee was granted reasonable visitation, and subsequently, a visitation schedule was established. The visitation order of March 7, 1995, initially granted appellee visitation from 9:00 a.m. Saturday morning until 9:00 p.m.

Saturday evening for two consecutive Saturdays, and then every other weekend with rotating holidays. ⁵⁹³ On October 16, 1998, appellant moved to Arizona. On that same date, appellant filed a complaint to modify visitation stating that due to her “chronic pain” and “illness,” she had “decided to move” to a “dryer climate, which [would] enable her to better tolerate her various health problems.” Appellant also contended in the motion that visitation should thereafter “be conditioned on [appellee] paying all transportation costs incident to such visitation, in advance; or, providing round-trip airline tickets for each scheduled visitation.” Ap-pellee filed an answer and a counter-complaint for sole custody and/or for modification of custody, requesting an emergency custody hearing. A hearing was set for and held on December 16,1998, and the matter was continued. On December 17, 1998, the court ordered that assessments of both parties and Theresa be conducted by the Office of Family Court Services.

On January 26, 1999, the hearing was held to receive the report of John Mahlmann, Ph.D, of the Office of Family Court Services. Dr. Mahlmann interviewed the parties and Theresa, and recommended that “both parties attend the Divorce Education Program” and that each party have a “psychological evaluation.” After receiving the report from the doctor, the court concluded that a trial was necessary. The court ordered that appellant, appellee, and Theresa each have a psychological evaluation by Dr. Michael Gombatz, and the evaluations were scheduled. 3 Subsequently, the court appointed an attorney for Theresa. A two-day trial was held in mid-April.

At the trial, Dr. Gombatz’s report was admitted into evidence. Dr. Gombatz reported that on February 23, 1999, for the scheduled joint interview with both parties, appellant “was approximately a half hour to an hour late.” He stated that appellant “interrupted several times” during appellee’s presentation. He stated that appellant was “inflexible unless it was to her advantage,” and that she “was consistently vague and non-responsive ... [and] it appeared that [appellant] did deny [appellee] visitation, rationalizing the reasons for it.” ⁵⁹⁴ After conversing with Dr. Mahlmann, Dr. Gombatz reported that there was no record of any current significant health conditions facing Theresa, contradicting appellant’s diagnosis that Theresa had asthma. Nor was Theresa being treated for asthma.

When questioned by Dr. Gombatz as to why she “appear[ed] not to be telling me the truth?” appellant answered: “It is very oppressive. I’m tired of it.” The doctor also conducted individual evaluation sessions of each of the parties, first with Theresa, and then alone. Again, appellant “arrived over an hour late” for the appointment, and stated that, “It was not my fault.” When Dr. Gombatz interviewed Theresa alone, appellant, “instead of going into the waiting room like I asked, [ ] put her ear against the door in an attempt to listen to our conversation.” Shortly after the questioning began, the doctor left the office to get appellant and “was startled to see her standing by the door.” Dr. Gombatz reported that appellant “started berating” him regarding his questioning of Theresa. Dr. Gombatz reported that appellee’s “clinical profile was essentially within normal limits” and his “projective testing is valid.” In contrast, appellant’s clinical profile suggests borderline-narcissistic personality disorder.

Her scores suggest deficits in mood stability, relationships and particularly with her own sense of identi-ty____ She tends to experience intense emotions and frequent mood swings with recurring periods of depression, anxiety and anger followed by dejection and apathy---- In addition, [appellant] is quite self-centered. She has an expectation entitlement which, if given the opportunity she will exploit people and manipulate them. She ... thinks primarily of herself.... Projective testing indicates she has deficiencies in her capacity for control and tolerance for stress.

Dr. Gombatz recommended that appellee “is the more competent parent and Theresa’s interests would be served if custody and placement were with him.” His reasons included his finding that appellant acts “as if Theresa is her property ⁵⁹⁵ ... rather than a young girl whose development is to be fostered.” He further reported: (1) “There is ... no doubt in my mind that the move to Arizona was precipitated by a desire to limit Theresa’s contact with her birth father. The claim that she moved to Arizona for Theresa’s medical benefit . .. has no merit;” (2) appellee “has a healthier relationship with Theresa than” appellant; and (3) appellee “would likely be much fairer in allowing Theresa contact with [appellant] than [she] would be with him.” Both appellant and appellee testified at trial, as well as other witnesses called by each side. Appellee described the circumstances of appellant’s move to Arizona, and how she notified him by telephone message on her day of departure that she was leaving, but failed to provide any information about her new residence until about six weeks later. After appellee learned of appellant’s new residence and telephone number, he made frequent attempts to call Theresa, but appellant substantially and repeatedly interfered with his ability to speak with the child.

Appellee also described how Theresa would not call him dad or other appropriate name, and addressed him without any appellation. Wade Headley, Theresa’s paternal grandfather, testified that Theresa said that “if I call him Daddy, I will get punished at home.” Appellee’s mother also described how appellant made Theresa give away toys and other gifts, including a picture painted by her, that were given to Theresa by her paternal grandparents. Appellee testified that Matthew, appellant’s son from another relationship, repeatedly referred to him as “Doo-doo.” Appellant described the early history of Theresa’s life, and emphasized how appellee had originally denied his paternity of Theresa. She ascribed her move to Arizona to health reasons, explaining that she thought that Theresa had asthma, and that the drier climate would be better for Theresa. 4 Although ⁵⁹⁶ Theresa’s medical records were introduced into evidence, appellant was unable to point to any indication in the records that Theresa suffered from asthma.

She testified that Theresa did not like to visit with her father. She acknowledged giving away the gifts from Theresa’s grandparents, indicating that she did not have sufficient room in her residence to store all the “junk” that a child accumulated. She acknowledged that Matthew referred to appellee as “Doo-Doo.” On April 20, 1999, the court issued an opinion from the bench that awarded custody of Theresa to appellee, and reserved visitation with appellant “until further order of this [cjourt.” This appeal was timely noted. Additional facts will be added as necessary to our discussion of the issues.

DISCUSSION I. Standard of Review A trial court cannot, in the exercise of its discretionary power, infringe upon constitutional rights enjoyed by the parties. See Lewis v. Warden, 16 Md.App. 339, 342 , 296 A.2d 428 (1972). Because appellant asserts that her right to travel under the United States Constitution is implicated, our standard of review in considering this issue (in Section II of this opinion) shall be an independent constitutional appraisal. See Ebert v. Md. St. Bd. of Censors, 19 Md.App. 300, 316 , 313 A.2d 536 (1973).

Our review of the issue of whether the trial court erred in holding that the best interests of Theresa called for an award of custody to appellee shall be governed by the abuse of discretion standard. The determination of which parent should be awarded custody rests within the sound discretion of the trial court. See Robinson v. Robinson, 328 Md. 507, 513 , 615 A.2d 1190 (1992). The court’s exercise of discretion must be guided first, and foremost, by what it believes would promote the child’s best interest.

See Kemp v. ⁵⁹⁷ Kemp, 287 Md. 165, 170 , 411 A.2d 1028 (1980). Additionally, the trial court’s opportunity to observe the demeanor and credibility of both the parties and the witnesses is of particular importance. See Petrini v. Petrini, 336 Md. 453, 470 , 648 A.2d 1016 (1994). When a trial court finds that the moving party has satisfied the burden and established a justification for a change in custody, those findings must be accorded great deference on appeal, and will only be disturbed if they are plainly arbitrary or clearly erroneous.

See Scott v. Dep’t of Social Services, 76 Md.App. 357, 382-83 , 545 A.2d 81 , cert. denied, 314 Md. 193 , 550 A.2d 381 (1988).

II

Custody and Right to Travel Appellant argues that the Supreme Court’s recent decision in Saenz, supra, requires a change in Maryland law respecting the consideration of one parent’s relocation of residence for purposes of deciding whether custody should be modified. She contends that the Domingues holding that relocation of residence by a parent could itself constitute the basis for a finding of a material change in circumstances is no longer valid. She asserts that the Domingues standard violates a person’s constitutional right to travel, as recently defined in Saenz . Appellant insists that in the present case the court ordered a change of custody based exclusively on her relocation, thereby violating her constitutional rights.

We hold, for the reasons set forth below, that the standards established by the Court of Appeals in Domingues do not violate the rights of a custodial parent to travel. The Domingues Court was called upon to evaluate our holding in Jordan v. Jordan, 50 Md.App. 437 , 439 A.2d 26 , cert. denied, 293 Md. 332 (1982), that relocation of a parent cannot constitute the basis for a modification of custody. See Domingues, 323 Md. at 500 , 593 A.2d 1133 . In so doing, the Court examined our statement in Jordan that “Relocating as a result of remarriage, employment and the like cannot of ⁵⁹⁸ itself render a parent to whom custody has been granted unfit and thereby constitute the basis for a modification of custody.” Id. at 500 , 593 A.2d 1133 (quoting Jordan, 50 Md.App. at 447 , 439 A.2d 26 , in turn quoting Hoyt v. Boyer, 5 Fam.

L. Rptr. 2135, 2135-36 (N.Y. Fam. Ct. Sullivan County, 1979), modified on other grounds, 77 A.D.2d 685 , 429 N.Y.S.2d 792 (1980)). The Court, overruling our holding in Jordan , observed: The statement approved by the Court of Special Appeals strikes us as far too absolute in its terms. In the first place, it is not necessary that a parent be declared unfit before joint or sole custody can be changed from that parent.

Moreover, changes brought about by the relocation of a parent may, in a given case, be sufficient to justify a change in custody. The result depends upon the circumstances of each case. The understandable desire of judges and attorneys to find bright-line rules to guide them in this most difficult area of the law does not justify the creation of hard and fast rules where they are inappropriate. Indeed, the very difficulty of the decision-making process in custody cases flows in large part from the uniqueness of each case, the extraordinarily broad spectrum of facts that may have to be considered in any given case, and the inherent difficulty of formulating bright-line rules of universal applicability in this area of the law.

Domingues, 323 Md. at 500-01 , 593 A.2d 1133 . The Supreme Court has recognized the importance of a citizen’s right to travel between states, see e.g., Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969), overruled in part, Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974). This right includes the right “to migrate, resettle, find a new job, and start a new life....” Shapiro, 394 U.S. at 629 , 89 S.Ct. at 1328 . Although the treatment and handling of a custodial parent’s decision to relocate has been addressed by many jurisdictions, see Carol S. Bruch and Janet M. Bowermaster, The Reloca ⁵⁹⁹ tion of Children and Custodial Parents: Public Policy, Past and Present, 30 Fam.

L.Q. 245 (1996) (and cases cited therein), only a few courts have considered how the custodial parent’s right to travel plays a role in a court’s decision regarding custody under these circumstances. See Tabitha Sample and Teresa Reiger, Relocation Standards and Constitutional Considerations, 10 J. Am. Acad. Matrim.

Law. 229 , 237 (1998) (“Sample and Reiger”). Like many other states, our Court of Appeals has thoroughly addressed the issue of relocation by a custodial parent, and has clearly set forth the standard and burden of proof involved in making determinations of this issue, see Domingues, supra; McCready v. McCready, 323 Md. 476 , 593 A.2d 1128 (1991), but has not been called upon to address the constitutional right to travel in this context. 5 The right to travel is not explicitly set forth in the United States Constitution, but the Supreme Court “long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or -restrict this movement.” Shapiro, supra, 394 U.S. at 629 , 89 S.Ct. at 1329 . ⁶⁰⁰ The Supreme Court’s Saenz Decision The Supreme Court revisited the right to travel in Saenz, supra, when the Court was called upon to interpret the constitutionality of a statute that limited the maximum welfare benefits available to state residents who had resided in a state under twelve months. Under the statute, residents would receive only the amount of benefits they would have received in the state of their prior residence for the first year that they resided in their new home state. Two California residents filed an action challenging the minimum residency requirement of the statute.

California argued that the statute was not enacted for the purpose of inhibiting migration and that “it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence.” Saenz, 526 U.S. at 499 , 119 S.Ct. at 1525 . The state further argued that it would save millions of dollars in annual welfare costs, and that this “was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel.” Id. at 497 , 119 S.Ct. at 1523 . California argued that the statute should be upheld if it is supported by a rational basis and the state’s interest in saving millions of dollars meets that test. See id. at 500 , 119 S.Ct. at 1525 .

The Supreme Court took this opportunity to address the issue of the right to travel. According to Saenz , “[t]he word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Id. at 498 , 119 S.Ct. at 1524 (citation omitted). “[T]he right is so important that it is ‘assertable against private interference as well as governmental action ... a virtually unconditional personal right....’” Id. (quoting Shapiro, 394 U.S. at 643 , 89 S.Ct. at 1336 (Stewart, J. concurring)).

The right to travel “embraces at least three different components.” Id. at 500, 119 S.Ct. at 1525 . The Court explained the components as: (1) the right of a citizen of one state to enter and leave another state; (2) the right of a citizen of one ⁶⁰¹ state “to be treated as a welcome visitor rather than an unfriendly alien when temporarily present” in the state; and (3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of’ the state. Id. Although the precise source of this right is obscure, see Shapiro, 394 U.S. at 630 n. 8, 89 S.Ct. at 1329 n. 8, it originated out of concern over state discrimination against outsiders, rather than concerns over the general ability to travel interstate.

See Saenz, 526 U.S. at 497-99 , 119 S.Ct. at 1524 . In contrast to appellant, the Saenz plaintiffs were the subject of discrimination because their rights to welfare benefits from the state were automatically limited by their move to California, regardless of their need for welfare. As the Court said: Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds to be distributed among its needy citizens.

Id. at 507 , 119 S.Ct. at 1528 . The component of the right to travel implicated in Saenz rests on the first sentence of Article IV, § 2 of the Constitution, which provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” It was the “third aspect of the right to travel — the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State,” id. at 502, 119 S.Ct. at 1526 , that was implicated by the discriminatory welfare classification. The welfare classification based on duration of residence was held a violation of the right to travel and a penalty “since the right to travel embraces the citizen’s right to be treated equally in her new State of residence....” Id. at 505 , 119 S.Ct. at 1527 . In contrast, the Domingues Court created no discriminatory classification between those who are already residents of a ⁶⁰² state, and those who migrate to that state for residence. 6 The Court simply recognized that a determination of custody is a multi-faceted decision, but that the best interests of the child must override all other competing interests, including the parent’s interest in retaining custody, if a relocation would be adverse to the child.

For this reason, we do not see Saenz as shedding new light on the subject of how the right to travel should interplay with the concerns of a court in addressing the best interests of the child in the context of a custodial parent’s relocation. The Constitutional Right to Travel Is Qualified We think, however, that the constitutional right to travel should not be ignored in custody decisions involving the decision of one parent to relocate. Our research discloses only a few other jurisdictions in which the constitutional right to travel was asserted to defend against a change in custody based on a proposed relocation by the custodial parent. In the few cases that we have found where the constitutional right to travel was asserted, the court found that the right was implicated under such circumstances.

See LaChapelle v. Mitten, 607 N.W.2d 151, 163 (Minn.App.2000); In Re Custody of D.M.G. and T.J.G., 287 Mont. 120 , 951 P.2d 1377, 1381 (1998); In Re Marriage of Cole, 224 Mont. 207 , 729 P.2d 1276, 1280 (1986); Jaramillo v. Jaramillo, 113 N.M. 57 , 823 P.2d 299, 304 (1991); In Re Marriage of Sheley, 78 Wash.App. 494 , 895 P.2d 850 (1995); overturned on other grounds, In re Marriage of Littlefield, 133 Wash.2d 39 , 940 P.2d 1362 (1997); Watt v. Watt, 971 P.2d 608, 615-16 (Wyo.1999). See also Sample and Reiger, supra; Paula M. Raines, Joint Custody and the Right to Travel: Legal and Psychological Implications, 24 J. Fam. L. 625 , 630-638 (1985-86) (“Raines”); Arthur B. LaFrance, Child Custody and Relocation: A Constitutional Perspective, 34 U. Louisville J. Fam. L. 1, 67-80 (1995-96) (“LaFrance”).

Most of these cases, in recognizing the role of the constitutional right to travel, hold that the right to travel is qualified, ⁶⁰³ and must be subject to the state’s compelling interest in protecting the best interests of the child by application of the best interests standard. See LaChapelle, 607 N.W.2d 151 ; Cole, 729 P.2d 1276 ; D.M.G., 951 P.2d 1377 ; Jaramillo, 113 N.M. 57 , 823 P.2d 299 ; cf. Sheley, 78 Wash.App. 494 , 895 P.2d 850 (right to travel is qualified by state’s compelling interest in protecting best interests of children, but to meet constitutional test, requires showing of detriment to child if relocation is made). Only one case, Watt , finds a “best interests” analysis insufficient recognition of the parental right to travel, and holds that the threshold requirement that a material change of circumstances exists, which triggers the best interest analysis, cannot be established merely by proving relocation of the custodial parent. In Watt , the Supreme Court of Wyoming placed a higher priority on the constitutional right to travel than other states discussing the right: The constitutional question posed is whether the rights of a parent and the duty of the courts to adjudicate custody serve as a premise for restricting or inhibiting the freedom to travel of a citizen of the State of Wyoming and of the United States of America.

We hold this to be impossible. The right of travel enjoyed by a citizen carries with it the right of a custodial parent to have the children move with that parent. This right is not to be denied, impaired, or disparaged unless clear evidence before the court demonstrates another substantial and material change of