Bussell v. Bussell

ARRIE W. DAVIS, J. On January 23, 2009, appellee, Komesi Bussell, filed a Complaint for Absolute Divorce in the Circuit Court for Charles County against her husband, appellant, Blake G. Bussell. 1 The circuit court entered a pendente lite order to address the issues between the parties during the pendency of the divorce proceedings. Appellant appeals from the entry of the pendente lite order which provided as follows: appellee was granted sole legal and physical custody of the parties’ two minor sons, appellant was provided with “reasonable and liberal visitation” on alternating weekends, holidays were divided equally between the parties, appellant was granted four weeks with the children during summer vacation, both parties were prohibited from making “disparaging or negative comments regarding the parties in the presence ...” of the children, appellant was required to pay child support in the amount of $782 per month, alimony in the amount of $500 per month and appellee’s attorney’s fees in the amount of $750, appellee was granted sole use and possession of the marital home, the parties were required to share the children’s medical expenses and both parties were permitted equal access to the children’s medical, dental and educational records. Appellant, proceeding pro se on this appeal, presents six questions, 2 which we have rephrased and consolidated as follows: I. Did the trial court err in granting appellee pendente lite use and possession of the marital home? ¹⁴¹ II. Did the trial court err in granting appellee pendente lite custody of the two minor children?

III

Did the trial court err in ordering appellant to pay pendente lite alimony to appellee? We answer each of appellant’s questions in the negative. Accordingly, we affirm. FACTUAL BACKGROUND On September 30, 2009, the circuit court held a pendente lite hearing to make determinations regarding custody, child ¹⁴² support, alimony and related issues pending the resolution of the divorce action between the parties.

Appellee requested custody of the children, “financial assistance” to assist her in leaving the family home and relocating with the children or, alternatively, exclusive use and possession of the family home to raise the children. In addition, she requested that appellant be required to pay her attorney’s fees. Appellee testified that she married appellant in 1995. During the marriage, the parties had two sons, Brama and Brenton.

Her husband, appellant, who worked for Prince George’s County Schools as a physical education teacher, provided the primary income for the family. According to appellee, appellant spent little time at home with the children and instead spent most of his time outside of the house with a person who she believed was his girlfriend. She testified that she was the day-to-day caretaker of the couple’s children, preparing meals and getting them to school. She also worked full-time as a manager at a Dollar Tree store from open to close and on alternating weekends.

She further testified that she was unable to move out of the family home with the children or afford to live in the family home with the children based solely on her income. Appellee entered into evidence a “financial statement” and copies of her pay stubs in support of this contention. Appellee explained that the parties had a tumultuous marriage, but in the past three years the arguing and dysfunction increased. Appellee related two incidents where appellant failed to pay the family’s bills.

On one occasion, appellant failed to pay the electric bill and appellee was forced to live in the home with the children, without electricity, for one week. She had to apply for assistance from Social Services and other charities to pay the bill and have the electricity restored. The bills and her applications for assistance were entered into evidence. Appellee also testified, although in less detail, to a similar incident where the water was shut off due to failure to ¹⁴³ pay the water bill.

Appellant asserted that appellee was responsible for the water and electric bills and was thus responsible for the interruption of utility services. Appellee also related that approximately three years ago, her daughter from a prior relationship reported that appellant had sexually abused her while she was living in the family home. 3 As a result of that accusation, appellee “moved out” of the couple’s bedroom and into her daughter’s bedroom, where she remained because she could not afford to leave the family home. The Best Interest Attorney for the children elicited testimony from appellee that the parties often engaged in “screaming and yelling” which had negatively impacted the children; as a result, appellee enrolled herself and her children in therapy. Appellant likewise testified that the marriage had deteriorated to the point that the couple could no longer be in each other’s presence without arguing.

He recounted that, on a number of occasions, appellee accused him of cheating and attempted to turn his children against him. Appellant vehemently denied that he had a girlfriend. Appellant further related that he believed himself to be the primary caregiver for the children, as evidenced by the fact that he enrolled the boys in baseball, would take them on vacations and have family barbeques with them. He complained that appellee’s lifestyle was detrimental to his sons because she permitted them to eat their meals in front of the television and did not keep the house tidy.

He also stated that he believed that his wife suffered from bipolar disorder. According to appellant, appellee was the one who would yell and scream and the only times that he engaged in such behavior was to “cover up” what she was saying so that his children would not hear it. ¹⁴⁴ With regard to his employment, appellant explained that his primary source of income was his teacher’s salary, which was approximately $51,000 per year, although he often had “side jobs” doing security work on the weekends and during the summer to generate extra income. He approximated that doing one such side job over the previous summer earned $l,500-$3,000. He acknowledged that appellee makes “about half of what [he] make[s].” 4 At the conclusion of his testimony, appellant admitted that the dysfunction in the household had to end for the sake of his children, but that he believed that it was in their best interest to be in his custody and to remain in the family home, which the parties rented on a month-to-month basis.

The children’s attorney provided the court with the following analysis: The children have been living in chaos. I think we all agree it’s been two and a half years but perhaps longer than that. Perhaps this is a marriage that was doomed for a really long time. Both of these parents love their children.

Their testimony was clear about that in the ways that they spoke about their children. They love their children. Both have a desire to have custody of these children. We can’t chop the children up in little bits.

And, if [sic] fact, there was no testimony that the children should be split with one having one and one having the other. And, in fact, after speaking with these children on several occasions I know they want to be together. Splitting them is not an issue here. The one factor in the list of factors the Court considers when they decide where children should live most of the time that hasn’t been discussed today because the children are not here is the preference of the child.

I did not want the children in court today, and I said specifically that they ¹⁴⁵ should not be here ... But, Brenten clearly favors his mother. He loves his mother. He loves them both.

But, he’s really close to his mother.... Just a recognition of that and understanding the Brenten really, really wants to be with his mom ... and I think there was some testimony about this a little bit where Brama is less inclined that way but wants to be with his brother. They’re a pair. They do a lot of things together.

I think the Court should recognize the preference of the child because they have reached a certain age.... The trial court made the following findings before ruling: From what I ... well, from most of, not all, from most of what I have been told here today I have the sense ... I’ve deduced that these kids would be okay in the custody of either of these parents as long as the other parent wasn’t there to make trouble of the sort we’ve heard described by both of them here today.... Since I am able to say that, I suppose my function becomes one of trying to discern what kind of outcome from a logistical [sic] and, if you will, fiscal perspective, is going to be the least onerous among all concerned.

Accordingly, the court ruled orally from the bench on September 30, 2009 and awarded appellee sole legal and physical custody, granted appellant liberal visitation to be no less than alternating weekends, divided the holidays between the parties and ruled that appellant was required to pay child support in the amount of $782 per month and alimony in the amount of $500 per month. Further, the court stated that it was “going to order” that, by October 15, 2009, appellant pay appellee’s attorney’s fees “accrued up to this point.” The court further stated that “we are going to enter a use and possession order with regard to the Kalmia Court house in favor of the custodial parent, effective October 15th ...” At the conclusion of the hearing, the court instructed appel-lee’s counsel as to what should be included in the court’s Order: ¹⁴⁶ And, as far as I’m concerned, [appellee’s counsel], you’re going to have to draft the order.... I should thrown [sic] in in [sic] case the thing endures until next summer ... I hope it doesn’t ...

Mr. Bussell is entitled to four weeks -with the kids in the summertime. Either ... my guess is that he’d probably prefer two separate one week ... I mean two separate two week intervals. Unless the parties agree otherwise, they’re going to start on the 4th of July....

Put all that in the order. Thereafter, appellant requested that a provision be added to the order regarding division of payment for medical expenses and the children’s attorney requested that a provision be added to prevent the parties from disparaging each other in the presence of the children. The court granted both requests. The parties discussed the logistics of drafting and circulating the order between them for edits and revisions, the court indicated that the order should be submitted “no later than 30 days from now.

And the sooner, the better.... ” The proceedings concluded after the court directed the parties to set the case in for a status conference. The docket entries summarize the foregoing and also state, in pertinent part: Plaintiffs attorney to prepare and submit order within 30 days. Parties to appear for Status Conference 30 days from today unless order has been submitted. Appellant noted an appeal on October 5, 2009.

The order was not submitted until October 28, 2009. The status conference, originally set for October 30, 2009, was postponed until November 3, 2009, when appellee and the children’s attorney appeared. Appellant did not appear. The court signed the written order, documenting its earlier oral rulings, in open court and it was docketed that same day.

No subsequent notice of appeal was filed. Additional facts shall be supplied infra as warranted. ¹⁴⁷ APPEALABILITY Ordinarily, a pendente lite order granting use and possession of a family home, though not a final judgment under Md.Code (2006 Rep. Vol., 2009 Supp.), Courts and Judicial Proceedings, C.J.P. § 12-301, is immediately appeal-able as an interlocutory order, pursuant to C.J.P. § 12-303; Pitsenberger v. Pitsenberger, 287 Md. 20 , 24 n. 3, 410 A.2d 1052 (1980). Similarly, a pendente lite order pertaining to payment of alimony or child support is immediately appeal-able.

Pappas v. Pappas, 287 Md. 455, 462 , 413 A.2d 549 (1980) (“Orders for the payment of alimony or child support are not expressly covered by the statute. However, our cases make clear that such orders are orders ‘[f]or ... the payment of money’ under § 12-303.”). An order that deprives a parent of his or her child is also a statutorily recognized appealable interlocutory order. C.J.P. § 12-303(3)(x); see Frase v. Barnhart, 379 Md. 100, 117-19 , 840 A.2d 114 (2003).

Thus, appellant was entitled to note an appeal from the interlocutory order “... entered by the circuit court in a civil case” based upon each of these grounds. C.J.P. § 12-303. Appellant noted his appeal on October 5, 2009, subsequent to the court’s oral ruling from the bench, but prior to the signing of the order and its entry on the docket. Accordingly, we must treat his appeal as premature in our analysis.

The parties have failed to observe this procedural defect, but the court may raise this issue sna sponte, as the existence of a final judgment, or in this case, an appealable interlocutory order, is a “jurisdictional fact” that is a “prerequisite to the viability of an appeal.” Jenkins v. Jenkins, 112 Md.App. 390, 399 , 685 A.2d 817 (1996) (citations omitted). “The date of entry of a final judgment, under Md. Rule 8-202, fixes the post-judgment schedule for filing of certain documents, including the notice of appeal.” Id. (footnote omitted). Maryland Rule 8-202(a) provides: “Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.... ” The appeal before ¹⁴⁸ us in the instant case is from an interlocutory order. The Court of Appeals has explained: From the standpoint of judicial administration permitting appeals from oral rulings which would be appealable interlocutory judgments if properly entered is subject to the same objection as permitting appeals from oral rulings which would be final judgments if properly entered.

Billman v. Maryland Deposit Ins. Fund Corp., 312 Md. 128, 132 , 538 A.2d 1172 (1988). The Court further explained that “the appealable interlocutory judgment partakes, insofar as it is appealable, of the nature of a final judgment.” Id. at 133 , 538 A.2d 1172 . Maryland Rule 8-602(d), however, saves appellant’s prematurely filed appeal.

This Court examined the applicability of this Rule in a similar case, in Jenkins, supra, where the circuit court issued a written opinion on October 24, in which it stated that “counsel shall prepare an appropriate declaratory judgment and, if necessary, an order in the nature of a QDRO.” 112 Md.App. at 397 , 685 A.2d 817 . An appeal was noted on November 8 and, thereafter, the other party submitted the order to the court embodying the court’s ruling, which was signed by the judge on January 31 and docketed on February 9. Id. at 398 , 685 A.2d 817 . We held that the appeal was premature and that the defect could not be “cured” by Maryland Rule 8-602(d) because the trial judge expressly contemplated further action in the case prior to its decision becoming final.

At the time, Maryland Rule 8-602(d) provided: “A notice of appeal from a ruling, decision, or order that would be appealable upon its entry on the docket, filed after the announcement of the ruling, decision, or order by the trial court but before entry of the ruling, decision, or order on the docket, shall be treated as filed on the same day as, but after, the entry on the docket.” Id. at 410 , 685 A.2d 817 (quoting Md. Rule 8-602(d)). We held that, “[w]hen a written or oral opinion indicates that a written embodiment of the judgment will follow, the ¹⁴⁹ opinion cannot be a final, unqualified disposition. It is not ripe, therefore, for appeal.” Id. at 403 , 685 A.2d 817 . We quoted the earlier decision of the Court of Appeals in Rohrb-eck v. Rohrbeck, which originally set forth the rule: “Lest there be any lingering questions about the matter, we now make clear that, whenever the court, whether in a written opinion or in remarks from the bench, indicates that a written order embodying the decision is to follow, a final judgment does not arise prior to signing and filing of the anticipated order unless (1) the court subsequently decides not to require the order and directs entry of judgment in some other appropriate manner or (2) the order is intended to be collateral to the judgment.” Id. at 403 , 685 A.2d 817 (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 42 , 566 A.2d 767 (1989)).

See also Popham v. State Farm Mut. Ins. Co., 333 Md. 136, 143 , 634 A.2d 28 (1993). We observed that the rule, as set forth in Rohrbeck, supra, is that the judge’s intent regarding finality controls.

In Rohrbeck and Jenkins , the trial court indicated its intent that the judgment would not be final because it contemplated that an order would follow its ruling. Jenkins, 112 Md.App. at 407 , 685 A.2d 817 . Compare Waller v. Maryland Nat’l Bank, 332 Md. 375, 377-80 , 631 A.2d 447 (1993) (Although the judge intended the judgment to be final and the clerk erroneously indicated on the docket that a written order would follow, the final judgment was not properly entered on the docket as required by Maryland Rule 2-601); Bd. of Liquor License Comm’rs v. Fells Point Café, Inc., 344 Md. 120, 126-33 , 685 A.2d 772 (1996) (trial court’s oral ruling and subsequent written and signed order constituted the final judgment despite the fact that another Memorandum Decision and Order followed that restated his conclusions; thus, the appeal was not premature). We engaged in a thorough analysis of the history of Maryland Rule 8-602(d) in Jenkins and explained that the Rule “contemplates an appealable order, and not a mere announcement of the intended order to be released later.” Jenkins, ¹⁵⁰ 112 Md.App. at 411 , 685 A.2d 817 (footnote omitted).

Thus, we explained that a subsequent order, as contemplated by the Rule, is one that is confirmatory in nature, following an announcement or decision that was intended at the time of its announcement by the court as the final judgment. Id. at 421 , 685 A.2d 817 . Comparing Jenkins to Waller, supra, we explained: We note that in Waller a confirmatory order was not contemplated in the original oral judgment. Had it been, the original oral judgment could not have been considered final by the trial judge and the Court would have been faced with facts similar to the instant case.

The judge’s oral decision, however, was the final, unqualified disposition of the matter. His ruling lacked facial finality only because of an improper docket entry. Once the proper entry is provided, resulting from the hypothetical confirmatory order, the judge’s original oral decision would become a final judgment. Because the Waller notice of appeal would have been filed between the original oral order and the hypothetically correct docket entry, the appeal would have been saved by Md. Rule 8-602(d).

Id. Similarly, we noted that the analysis was also consistent with our decision in Woodfin Equities Corp. v. Harford Mut. Ins. Co., 110 Md.App. 616, 630 , 678 A.2d 116 (1996), rev’d in part on other grounds, 344 Md. 399 , 687 A.2d 652 (1997).

We opined: In a similar fashion, we deemed the appeal in Woodfin Equities Corp. v. Harford Mut. Ins. Co., 110 Md.App. 616, 630 , 678 A.2d 116 (1996), timely. In Woodfin, this Court employed Md. Rule 8-602(d) to save an otherwise premature appeal.

In that case, the trial judge issued a bench ruling granting appellee’s motion for judgment. Appellant filed his notice of appeal after the clerk’s entry of the ruling on the docket. The docket entry read “Court finds in favor of [appellee] against [appellant].... Order to be submitted”.

Because, the docket entry contemplated further action, the judge’s ruling could not become final without a correct ¹⁵¹ docket entry or the filing of the written order. Appellant filed his notice of appeal after the contingent docket entry. Later, the trial judge filed a final written order. Jenkins, 112 Md.App. at 421-22 , 685 A.2d 817 (citing Woodfin, supra).

We continued, observing that “this Court determined that the trial judge’s grant for the motion of judgment [in Wood-fin ] was intended to be final ... the formal written order, not contemplated by the trial judge’s oral decision, served the same purpose as the hypothetical confirmatory order in the Waller footnote....” Id. (Emphasis added). Thus, the appeal was saved by Md. Rule 8-602(d) in Woodfin. Id.

Because the memorandum opinion in Jenkins contemplated that the parties would create and submit an order to be signed by the judge, we found that it was distinguishable from Waller and Woodfin, supra. We concluded: The opinion in the instant case, therefore, could not become an order that would become “appealable upon its entry on the docket” because it was never intended as the final, unqualified disposition of the matter before the trial court. Only the 31 January 1996 judgment could become a final judgment. It did so on 9 February 1996 when it was correctly docketed by the clerk.

Mr. Jenkins, therefore, had to file his notice of appeal between the announcement of this judgment on 31 January 1996 and 9 February 1996 in order to benefit from Md. Rule 8-602(d). Simply put, in order to benefit from Md. Rule 8-602(d), a notice of appeal must be filed between the announcement of a decision, order, or ruling intended to be the final, unqualified disposition of the case and a docket entry correctly indicating that final judgment has been entered. Id. at 423, 685 A.2d 817 (emphasis added). Subsequent to our decision in Jenkins , we addressed the 1997 amendment to Maryland Rule 8-602(d), although in a slightly different context in Carr v. Lee, 135 Md.App. 213 , 762 A.2d 142 (2000).

Carr appealed from a trial court’s ruling that Lee had acquired title to real property by adverse possession ¹⁵² and the dismissal of her claim against another party. Lee moved to dismiss the appeal on the grounds that it was prematurely filed. Id. at 221 , 762 A.2d 142 . On December 9, 1999, the circuit