Burdick v. Brooks

ADKINS, J. Appellant, Debbie Burdick, challenges the Circuit Court for Harford County’s order modifying pendente lite custody and child support, assigning several errors. During a status conference, the circuit court transferred temporary custody of ⁵²² three out of four minor children to Appellee, George Brooks, and decreased the child support obligation of Brooks from $800/month to $200/month without applying the Child Support Guidelines. Burdick presents three questions for our review, which we have reformulated below: I. Did the Circuit Court violate Burdick’s due process rights when it awarded temporary custody of three minor children to Brooks at the March 18, 2004 status conference?

II

Did the Circuit Court’s modification of temporary custody at the March 18, 2004 status conference constitute an impermissible ex parte order or interlocutory injunction?

III

Did the Circuit Court err in modifying Brooks’ child support obligation without applying the Maryland Child Support Guidelines? We answer questions I and III in the affirmative, and therefore, vacate the modification order and remand to the circuit court for a hearing on the merits. We do not reach question II. FACTS AND LEGAL PROCEEDINGS Burdick and Brooks were married in Harford County, Maryland, on July 2, 1993.

Three children were born to the marriage: Brittany (age 12), Gabriella (age 11), and Georgeanna (age 10). In addition, in 1994, Brooks legally adopted Brock (age 14), Burdick’s son from a former relationship. On August 14, 2002, Burdick filed a Complaint for Absolute Divorce in the Circuit Court for Harford County, seeking, inter alia, sole legal and physical custody of the minor children and child support. The circuit court subsequently referred the parties to the Office of Family Court Services for an evaluation.

Thereafter, the parties reached a parenting agreement, under which the children would reside with Bur-dick, and visit with Brooks every Wednesday night and alternating weekends. The circuit court then entered an order incorporating the terms of the parenting agreement. ⁵²³ On May 6, 2003, the circuit court granted Burdick an absolute divorce from Brooks. The same day, by separate order, the court granted pendente lite custody of the minor children to Burdick, and ordered Brooks to pay pendente lite child support of $603 bi-weekly. In August 2003, the circuit court appointed a Guardian Ad Litem (G.A.L.) for the minor children.

The parties then attended a Master’s hearing, where a variety of issues were addressed, including custody and child support. Following the Master’s Recommendations, the circuit court modified child support to $800/month, but left the remainder of the May 6, 2003 order intact. On October 15, 2003, the circuit court ordered the parties to cooperate in psychological evaluations to be performed by the court-appointed psychologist, Dr. Michael Gombatz. The court order made clear that if the parties failed to attend scheduled appointments, appearance before the circuit court would be required to explain their non-compliance.

Tensions rose over the next few months, with both Burdick and Brooks moving the court to limit the other’s access to the minor children. At the request of the G.A.L., the circuit court scheduled a status conference for March 18, 2004. The court notified the parties of the status conference by letter, which stated, in part: Please be advised that this conference is approximately fifteen (15) minutes long. It is a chance for you to inform the Judge of the issues and he will decide how to proceed.

This is not a hearing or trial, [sic] there will not be time for witnesses to speak. (Emphasis added.) All parties and their counsel attended the March 18, 2004 status conference. During the conference, the circuit court read into the record two letters from Dr. Gombatz, one dated March 4, 2004, and the other dated March 17, 2004. Both letters detailed Burdick’s continuing non-cooperation in the evaluation process.

Over Burdick’s objection, the circuit court awarded temporary custody of the three youngest children to Brooks, with ⁵²⁴ visitation rights to Burdick. 1 The court cited Burdick’s noncompliance with the psychological evaluation order as the reason for the custody modification. In addition, the court reduced Brooks’s child support obligation from $800/month to $200/month, over Burdick’s objection. DISCUSSION I. Denial of Due Process Burdick argues that she was denied due process of law in violation of Article 24 of the Maryland Declaration of Rights 2 because the circuit court modified custody without adequate notice, a hearing, and any opportunity to rebut the allegations or information relied upon by the court at the March 18, 2004 status conference. As a parent, Burdick has a constitutionally protected liberty interest in the care and custody of her children.

See Wagner v. Wagner, 109 Md.App. 1, 25 , 674 A.2d 1 , cert. denied, 343 Md. 334 , 681 A.2d 69 (1996)(citing Weller v. Dep’t of Soc. Servs., 901 F.2d 387 , 391 (4th Cir.1990)). “Once it is determined that an interest is entitled to due process protection, the pertinent inquiry then becomes what process is due.” Pitsenberger v. Pitsenberger, 287 Md. 20, 30 , 410 A.2d 1052 , appeal dismissed, 449 U.S. 807 , 101 S.Ct. 52 , 66 L.Ed.2d 10 (1980) (citation omitted). In describing due process requirements, the Court of Appeals stated in Pitsenberger : ⁵²⁵ Determining what process is due requires consideration and accommodation of both the government and private interests. This essentially involves balancing the various interests at stake ...

Fundamentally, due process requires the opportunity to be heard “ ‘at a meaningful time and in a meaningful manner.’ ” Id. (citations omitted). Yet, due process “does not require procedures so comprehensive as to preclude any possibility of error.” Wagner, 109 Md.App. at 24 , 674 A.2d 1 (citing Int’l Caucus of Labor Comm. v. Md. Dep’t of Transport., 745 F.Supp. 323, 329-30 (D.Md.1990)). Instead, “due process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case.” Id.

(citations omitted). Therefore, a denial of due process claim is tested by analyzing the totality of the facts in the given case. Id. (citing Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252 , 86 L.Ed. 1595 (1942)).

We previously addressed due process requirements in the context of custody modification in Van Schaik v. Van Schaik, 90 Md.App. 725 , 603 A.2d 908 (1992). In Van Schaik , the court-appointed counsel for the child requested a hearing “ ‘with regard to visitation and other issues.’ ” Id. at 730 , 603 A.2d 908 . The hearing notice sent to the parents provided: “HEARING ON VISITATION AND CHILD’S POSSESSIONS has been scheduled for March 18, 1991 from 9:00 a.m. to 11 a.m.” Id. Both parents attended the hearing without counsel, and the only attorney present was the child’s counsel.

Id. At the conclusion of the hearing, the trial court terminated the father’s joint custody rights, even though no request for a change in custody had been made by either party, or the child’s attorney. Id. at 730 & n. 4, 603 A.2d 908 . On appeal, the father argued that he was “deprived of being a custodial parent without any notice that a change in custody was sought nor an opportunity to be heard on that issue.” Id. at 728-29 , 603 A.2d 908 .

We agreed and held that “[t]he lack ⁵²⁶ of notice constituted a denial of due process and itself constituted prejudicial error.” Id. at 739 , 603 A.2d 908 . We based our holding, in part, on section 9-205 of the Family Law- Article, which provided that “reasonable notice and opportunity to be heard shall be given to ... any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child.” Md. Code (1984, 1999 Repl.Vol., 2003 Cum.Supp.), § 9-205 of the Family Law Article (“FL”). 3 After citing FL section 9-205, the Van Schailc Court stated that “[i]t is clear that if a court is contemplating holding a hearing at which it will, or may, determine custody issues, a parent with custodial rights ... must be notified that such an issue may be the subject of the hearing.” Van Schaik, 90 Md.App. at 738 , 603 A.2d 908 (emphasis added). We further explained that neither parent had requested a change in custody, nor were they aware that custody was even at issue until the court made its ruling at the end of the hearing. Id. at 739 , 603 A.2d 908 . “ ‘[Ujnless ... a party otherwise receives