Cousin v. Cousin

CATHELL, Judge. The Circuit Court for Montgomery County granted a divorce to Karen Cousin, appellee, from Hersh Cousin, appellant, on September 16, 1992. In addition, the lower court granted, in part, her exceptions to the master’s findings and recommendations, awarding her sole custody of the children and indefinite alimony in the amount of $1000 per month. Unhappy with this decision, Hersh Cousin appeals to this Court.

He presents two issues on appeal. 1. Whether the trial judge erred in sustaining the Appellee’s exceptions to the Master’s recommendation awarding joint custody of the parties’ minor children to them and thereafter awarding] sole custody to the Appellee. 2. Whether the trial judge erred in sustaining the Appellee’s exceptions to the Master’s recommendation that the Appellee receive three years of rehabilitative alimony and thereafter awarding] Appellee indefinite alimony. We hold that the lower court did not err in either regard.

Accordingly, we affirm the judgment of the lower court. THE FACTS The parties were married on February 14, 1981. As a result of this union, they had two children. One was adopted on May 10, 1985.

Their second child, Asher David, was born on November 1, 1988. The parties separated by mutual agreement on or about December 6, 1990. Karen Cousin filed suit for a limited divorce on December 10, 1990, alleging as grounds for the divorce voluntary separation and constructive desertion. In addition to the limited divorce, she sought sole custody of the couple’s two children, child support, and “rea ⁵⁰⁹ sonable” alimony.

After a hearing before a master, the circuit court awarded joint legal custody to the parties, placing the children with their mother but allowing appellant reasonable rights of visitation as set out in the pendente lite order. At the time the parties separated, appellee took the older child, Max, to various doctors and psychologists for testing at the recommendation of his school. He was eventually diagnosed with an attention deficit hyperactivity disorder. Currently, he receives both medication and treatment for this disorder.

On May 22, 1992, appellee filed an amended complaint for absolute divorce on the same grounds as the limited divorce. A three day hearing was held before a domestic relations master. On June 24, 1992, he issued his findings and recommendations, which recommended, inter alia, that the parties be awarded joint legal custody of their sons and that appellee receive alimony in the amount of $1000 per month for three years. Appellee filed exceptions to these findings and recommendations, asserting that the master erred in recommending joint legal custody and in recommending the amount and duration of the alimony.

She contended that her husband remained in opposition on two major issues, the educational and medical needs of their son Max. Among other things, she stated that he did not understand or accept the emotional difficulties nor the special educational needs of Max. She also argued that the master made no factual findings with respect to any of the elements to be considered in awarding alimony. In his answer, appellant asserted that he was interested in his children and that the parties could communicate with each other if they would only try.

Moreover, he maintained that joint custody was appropriate because the parties shared the same values. As to the alimony, he contended that his wife could be employed at $18,000 to $24,000 per year, and that after eighteen months she would be able to support herself. A hearing on the exceptions was held on August 11, 1992, after which the lower court sustained appellee’s exceptions in ⁵¹⁰ part. Appellee was awarded sole custody of the children, and the court ordered appellant to pay appellee alimony for an indefinite period in the amount of $1000 per month.

In so doing, the court commented: [W]ith respect to joint custody the Master concluded, and I quote, “It is in the best interest of the children that the inputs from both parents be [had] in connection with the children’s health, education, and welfare. Now, the parties in this case have been joint legal custodians of the children since the pendente lite order of February 4, 1991. This arrangement has not, over the past 18 months, resulted in any impasse or deadlock between the parties that has affected the welfare of the children. Furthermore, the Court concludes, as did the Master, that both parties are fit and proper custodians, although the wife may be entitled to a little better parenting grade than the husband.

Should not the husband, therefore, have an equal share in the important decisions regarding the children? In this regard, the Court concludes that Mr. Cousin should have input into the lives of the children but that Mrs. Cousin should have, as she has in the past, the final say with respect to the health, education, and welfare of the children. And this precludes, in the Court’s opinion, joint custody. On two major issues, and this is Max’s medical welfare and educational welfare, the parties do not seem to agree.

Dr. Donohue, who seemed to understand the joint custody concept, was of the opinion that joint custody would not be beneficial. Mrs. Cousin has made the important decisions affecting the children’s welfare throughout their fives. She should continue to do so. This does not mean, however, that she should not consult with her husband regarding the children’s welfare or that she should completely ignore what he has to say____ ⁵¹¹ With respect to alimony and support, the Court has reviewed the record with respect to the husband’s earnings.

The Master’s conclusion that the husband earn[s] $84,000 gross per year is supported by the evidence. Although there is some evidence to suggest that he has more spendable money than is reflected on his financial statement---- The Court will, however, sustain the exceptions with respect to the duration of the alimony. It is the Court’s best prognostication that, given Mrs. Cousin’s present vocational skill, the ages of the minor children, and considering the husband’s vocational expert’s opinion and testimony, it is the Court’s opinion that Mrs. Cousin will not become self supporting after three years, nor will she be within a foreseeable future. The Court believes that even after the wife makes maximum progress toward being self-supporting, the respective standards of living between her and husband will be unconscionably disparate.

LEGAL ANALYSIS STANDARD OF REVIEW The Court of Appeals in Domingues v. Johnson, 323 Md. 486, 490 , 593 A.2d 1133 (1991), held that “the chancellor incorrectly accepted the recommendations of the master upon a finding that those recommendations were not clearly erroneous, instead of subjecting the master’s fact-finding to a clearly erroneous test and then exercising his independent judgment concerning the proper conclusion to be reached upon those facts.” The Court opined: The chancellor must carefully consider the mother’s allegations that certain findings of fact are clearly erroneous, and decide each such question. The chancellor should, in an oral or written opinion, state how he resolved those challenges. Having determined which facts are properly before ⁵¹² him, and utilizing accepted principles of law, the chancellor must then exercise independent judgment to determine the proper result. Id. at 496 , 593 A.2d 1133 .

See Noffsinger v. Noffsinger, 95 Md.App. 265, 273 , 620 A.2d 415 (1993); Best v. Best, 93 Md.App. 644, 651 , 613 A.2d 1043 (1992); Krikstan v. Krikstan, 90 Md.App. 462, 469 , 601 A.2d 1127 (1992); Hadick v. Hadick, 90 Md.App. 740, 744-45 , 603 A.2d 915 cert. denied, 327 Md. 626 , 612 A.2d 256 (1992); Levitt v. Levitt, 79 Md.App. 394, 399 , 556 A.2d 1162 cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989); In re Danielle B., 78 Md.App. 41, 57-59 , 552 A.2d 570 (1989); Brandon v. Brandon, 66 Md.App. 214, 221-22 , 503 A.2d 264 (1986); Wenger v. Wenger, 42 Md.App. 596, 604 , 402 A.2d 94 , cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 1, 1980. The Court opined further in Kirchner v. Caughey, 326 Md. 567, 572, 606 A.2d 257 (1992), that the chancellor’s opinion, oral or written, “should address as well the issues relating to the- conclusions to be drawn from the facts found.” See Ross v. Ross, 327 Md. 101, 104 , 607 A.2d 933 (1992). On appeal, our review of the chancellor’s independent judgment is confined to whether the decision conforms to law and whether it constitutes an abuse of discretion. Robinson v. Robinson, 328 Md. 507, 513-14, 615 .

A.2d 1190 (1992). See Noffsinger, 95 Md.App. at 273 , 620 A.2d 415 ; Best, 93 Md.App. at 655 , 613 A.2d 1043 ; Krikstan, 90 Md.App. at 469 , 601 A.2d 1127 ; Rock v. Rock, 86 Md.App. 598, 607 , 587 A.2d 1133 (1991). I. With respect to the issue of custody, appellant first asserts that under Domingues the chancellor must defer to the master’s findings of “first-level” facts. In support of this proposition, he sets forth those findings of the master that he believes constitute “first-level” facts, which we rephrase as follows: 1.

The parties were married on February 14, 1981. 2. The parties are parents of two minor children: Max and Asher. ⁵¹³ 3. The parties mutually and voluntarily separated more than 12 months prior to the time the amended complaint was filed. 4. Both parties are fit and proper custodians to enjoy joint legal custody of the children. 5.

Max has been diagnosed as having an “attention deficit hyperactivity disorder” and is in need of the special program available at the Children’s Learning Center at Aspen Hill. 6. The lack of cooperation recited by the plaintiff with respect to decisions involving the children is brought about largely by the plaintiff and her unwillingness to accept the joint legal custody concept. 7. The lack of cooperation will disappear once the pressures and trauma of this litigation have passed. 8. The children need the strengths of each parent.

Since its filing, Domingues has become among the most frequently cited cases concerning custody. It is usually liberally cited by both sides to support their positions. It is often cited as the support for each conflicting assertion. Rarely, however, is it cited for what, in light of the continuing Domingues-type controversies arising from the trial courts, is becoming perhaps its most important comment: Although the use of masters has proven beneficial in a variety of cases, the question of the advisability of referring contested custody cases to a master in those instances where the trial court has discretion to do so, 'is one that should be carefully considered.

If a chancellor must essentially duplicate the effort and dedication of time of a master in order to ultimately decide a case, nothing has been gained by referral to the master. On the other hand, if, because of the expertise of the master, or for other reasons, parties often accept the recommendation of the master and exceptions are infrequently filed, the use of a master may be advisable. Domingues, 323 Md. at 497 , 593 A.2d 1133 (emphasis added, footnote omitted). ⁵¹⁴ The Court in Domingues commented only briefly on the fact-finding process. In so doing, the Court gave an example indicating that the “intent with which one acts, although found by use of inferences drawn from other facts, is a fact to be found by the master.” Noffsinger, 95 Md.App. at 275 , 620 A.2d 415 .

Unfortunately, the Court did not clarify the distinction between first and second level fact-finding any further. 1 It did state, however, that the view of the “facts” taken by the Court of Special Appeals was too narrow. Domingues, 323 Md. at 494 , 593 A.2d 1133 . The Court opined that the distinction between “first-level” facts and “second-level” facts made in Wenger, 42 Md.App. 596 , 402 A.2d 94 , “[t]hough certainly accurate ... suggests a rather simplistic distinction ... that may ... prove misleading.” Domingues, 323 Md. at 494 , 593 A.2d 1133 . In Wenger and the cases that followed, this Court attempted to distinguish between “first-level” facts, to which the chancellor must give deference unless clearly erroneous, and “more abstract, second-level, conclusory or dispositional facts,” which are not entitled to any deference whatsoever.

Wenger, 42 Md.App. at 607 , 402 A.2d 94 . As we said in Levitt v. Levitt, 79 Md.App. 394, 398 , 556 A.2d 1162 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989): Deference will be accorded to the facts as found by the Master,