Fitzzaland v. Zahn

³¹⁶ WOODWARD, J. Douglas Henry Zahn (“Douglas”), born December 1, 1993, and Thomas Andrew Zahn (“Thomas”), born January 16, 1997, are the children of Beryl Zahn, a/k/a Beryl Fitzzaland, appellant, and Jeffrey Zahn, appellee. Appellant and appellee were divorced on November 26, 2001. The divorce judgment awarded appellant and appellee joint legal custody of Douglas and Thomas, and gave appellee sole physical custody of the children, with liberal visitation for appellant. Child support was not awarded to either party.

From the fall of 2002 until 2010, appellant lived in the State of Washington. While appellant lived in Washington, Douglas was diagnosed with an autism spectrum disorder, anxiety, oppositional defiant disorder (“ODD”), and attention deficit/hyperactivity disorder (“ADHD”). Douglas and Thomas had limited contact with their mother while she resided in Washington, but upon her return to Maryland in 2010, appellant and appellee established an informal visitation schedule. On April 30, 2012, appellee filed a Motion for Child Support in the Circuit Court for Frederick County.

Appellee asked the court to: (1) find that Douglas was a destitute adult child; (2) order appellant to pay child support for Douglas and Thomas retroactive to the date of filing the motion; (3) order appellant to contribute to the children’s extraordinary medical and other expenses retroactive to the date of filing the motion, and (4) order appellant to pay appellee’s reasonable attorney’s fees. Appellant opposed the motion, and later filed a motion requesting that she be awarded custody of Thomas. After four days of trial, the circuit court, among other things, denied appellant’s motion to change custody of Thomas, determined that Douglas was a destitute adult child, and ordered appellant to pay appellee child support for both children and attorney’s fees. Appellant appealed the circuit court’s decision and presents three questions for our review, which we have slightly rephrased: 1.

Did the circuit court err in determining that the parties’ son, Douglas, is a destitute adult child? ³¹⁷ 2. Did the circuit court err in awarding child support for Douglas to appellee? 3. Did the circuit court err in awarding attorney’s fees to appellee? For the reasons set forth herein, we answer each of these questions in the negative and affirm the judgment of the circuit court.

BACKGROUND On November 26, 2001, the circuit court entered a judgment of absolute divorce in favor of appellee against appellant. The judgment gave appellant and appellee joint legal custody of their children, Douglas and Thomas. Appellee was awarded sole physical custody of the children, and appellant received reasonable and liberal visitation. The divorce judgment did not include any child support requirements.

Appellant was living in Virginia at the time of the divorce. Sometime in the fall of 2002, appellant left Virginia and moved to the State of Washington. Appellant remained in Washington for eight years, and during that time had limited contact with Douglas and Thomas, occasionally speaking with them on the phone and exchanging emails. Douglas and Thomas never visited appellant in Washington, but appellant visited Maryland twice, one time staying at appellee’s home for part of her visit.

In 2010, appellant relocated to Maryland, and the parties established an informal visitation schedule allowing Douglas and Thomas to see appellant every other weekend. During the time appellant lived in Washington, Douglas was diagnosed with an autism spectrum disorder, anxiety, ODD, and ADHD. 1 Douglas was placed in an Individualized Education Program (“IEP”) in school, in which he was allowed extra time to complete assignments and was permitted to have ³¹⁸ a scribe take notes for him and help him organize and complete his work. Douglas was enrolled in some honors classes in high school, and did well in school until his junior or senior year when his IEP ended. Without the additional support and supervision provided by the IEP, Douglas’ grades dropped significantly.

In August 2011, appellee and Douglas filled out an application for Douglas to participate in services offered by the Maryland Department of Education, Division of Rehabilitative Services (“DORS”). DORS assists persons with disabilities to choose and maintain jobs, and provides various other services and counseling based on an individual’s needs. On September 23, 2011, Douglas completed an initial assessment with vocational rehabilitation specialist, liana Novitzky, who determined that Douglas was qualified for DORS services. Novitzky categorized Douglas as a person with “the most severe disability,” meaning that three or more areas of Douglas’ life were affected by his disabilities, including social behavior and communication skills, life and independent living skills, as well as self-direction, planning, and organization.

On June 12, 2012, Douglas graduated from high school. The summer after his graduation, Douglas worked at appellee’s office. On more than one occasion, appellee found Douglas playing video games in the bathroom instead of working, and, according to appellee, Douglas needed to be supervised constantly in order for him to complete a task. Although appellee paid Douglas for his work, Douglas did not know how much money was in his bank account, and did not think that he could manage his own money.

Douglas confirmed such inability to manage money by spending the money he made over the summer on video games and applications for his computer and iPad. In September 2012, Douglas began a community living skills training program at DORS’s Workforce Technology Center (“WTC”) in Baltimore. The center trains students in life skills including cooking, cleaning, basic money management, and social skills, and provides a career assessment designed to ³¹⁹ help the students determine what employment they could realistically attain. The career assessment showed that Douglas would need accommodations for successful employment, and he eventually received the help of a job coach in applying and interviewing for work.

While Douglas was attending the WTC, he was placed on a behavior plan after having social interaction problems and offending others at the center. He was warned that, if another inappropriate or offensive conversation occurred, he would not be permitted to complete the program. In December 2012, however, Douglas completed the WTC program. In January 2013, Douglas began receiving a new service through DORS called employment development skills (“EDS”), in which he worked at Goodwill as a way to develop his employment experience.

The same social and interpersonal problems arose at Goodwill as had occurred at the WTC, and the store’s manager had to speak with Douglas on a regular basis about his inappropriate social interactions. Douglas also arrived late to his job at Goodwill “almost every time he would get there.” Douglas was able to obtain a driving learner’s permit with the help of DORS services, and received assistance from a job coach. As of April 2013, however, Douglas stopped receiving DORS benefits, because appellee had not yet paid the complete DORS bill from the previous year, and Douglas was ineligible for new services until payment was complete. DORS cost appellee $3,400.00 for a year of services.

Douglas currently resides at appellee’s home. Douglas is responsible for his own personal hygiene, but cannot have needed orthodontic work performed, because he does not brush his teeth enough. Douglas is also responsible for taking his medication daily, but admits that he sometimes forgets and that appellee or his stepmother must remind him to take it. Appellee also has to remind Douglas to do his chores and to complete those chores when he leaves them unfinished.

Although Douglas interviewed for at least three jobs, he was not ³²⁰ employed at the time of the hearing on appellee’s Motion for Child Support. On April 30, 2012, appellee filed a Motion for Child Support in the circuit court. He asked the court to, among other things: (1) find Douglas to be a destitute adult child; (2) order appellant to pay child support for both children retroactive to the date of filing the motion; (3) order appellant to contribute to the children’s extraordinary medical and other expenses retroactive to the date of filing the motion, and (4) order appellant to pay appellee’s reasonable attorney’s fees. On June 5, 2012, appellant filed an answer to appellee’s Motion for Child Support, and subsequently amended her answer on June 11, 2012.

Trial on appellee’s Motion for Child Support began on March 12, 2013, with appellee presenting the testimony of Novitzky as an expert in vocational rehabilitation. The case could not be concluded that day, and was continued to April 25, 2013. Prior to the second day of trial, on March 20, 2013, appellant filed a Petition to Enforce Agreement, or Alternatively, to Modify Custody/Visitation (“Custody Petition”). In the Custody Petition, appellant requested that the circuit court enforce the parties’ original Marital Settlement Agreement that gave the parties joint physical custody of Douglas and Thomas and required appellee to pay appellant child support.

Alternatively, she requested that the court grant her sole or joint custody of Thomas, establish a formal access schedule for her to see Douglas and Thomas, and award her attorney’s fees. On March 26, 2013, appellee filed an Opposition to [Appellant’s] Petition to Enforce Agreement, or Alternatively to Modify Custody/Visitation (“Opposition”). Appellee asked that appellant’s Custody Petition be denied, that appellee be awarded attorney’s fees, and that the trial scheduled for April 25, 2013 go forward. The Opposition also asserted that appellant’s motion “was filed solely as an attempt to avoid payment of child support.” ³²¹ The same day, appellee filed a Motion to Dismiss [Appellant’s] Petition to Enforce Agreement, or Alternatively to Modify Custody/Visitation (“Motion to Dismiss”).

In the Motion to Dismiss, appellee argued that the Marital Settlement Agreement was superceded by the November 21, 2001 divorce judgment, noting that the judgment incorporated the Marital Settlement Agreement except for those provisions relating to Douglas and Thomas. Appellee also argued that there had not been “any material changes in circumstances affecting Thomas’ (and Douglas’) well-being” that would warrant a change in custody. On April 9, 2013, appellant filed a response to appellee’s Motion to Dismiss. On April 25, 2013, trial on appellee’s Motion for Child Support resumed.

At that time, the circuit court also considered the motions the parties filed after the March 12, 2013 hearing. The court denied appellee’s Motion to Dismiss, and appellee decided to litigate appellant’s Custody Petition in the same proceeding as his Motion for Child Support. The parties were again unable to conclude the trial on April 25, 2013, and the case was continued to May 1, 2013. On May 1, 2013, testimony was completed, and trial counsel presented closing arguments on May 2, 2013.

That same day, May 2, 2013, the circuit court orally presented its findings of fact and conclusions of law. In pertinent part, the court held that (1) circumstances had not changed to warrant a change of physical or legal custody of Thomas, but that appellee would have final decision-making authority, (2) Douglas was a destitute adult child, (3) appellant would pay child support to appellee in the amount of $850.00 per month for both children, to be withheld from her earnings as of May 1, 2013, (4) appellant owed child support arrears in the amount of $10,200.00, which could be paid by adding $50.00 per month to appellant’s child support payments and (5) appellant would pay $7,500.00 to appellee in attorney’s fees. The court’s written order was entered June 20, 2013. Appellant noted her appeal to this Court on May 31, 2013, and filed a supplemental notice of appeal on June 28, 2012, after the circuit court’s final written decision was entered. ³²² DISCUSSION I. The Destitute Adult Child Determination Appellant argues that the circuit court erred in determining that Douglas is a destitute adult child, by “improperly equating] Douglas’ mental diagnosis and his current lack of employment with being a destitute adult child.” According to appellant, the court was required to find a causal link between Douglas’s mental infirmity and the lack of capacity to be self-supporting, which it could not do, because the evidence from the trial supported the conclusion that Douglas could obtain employment and become self-supporting.

Appellant pointed to the testimony of appellee’s expert, Novitzky, regarding Douglas’s above average test results from his career assessment at WTC, and argued that Novitzky never testified that Douglas could not be self-supporting in the future. Appellant argues that the circuit court also failed to consider Douglas’s total expenses, which the court was required to review. Appellee responds that there was ample evidence in the record for the circuit court to determine that Douglas was a destitute adult child. Appellee contends that the determination of whether a person is a destitute adult child is not a permanent one, and thus appellant’s contention that Douglas could become self-supporting in the future is irrelevant.

Appellee additionally argues that, even if Douglas could attain and keep a job, simply having a job would not preclude a finding of destitute adult child if Douglas was still not self-supporting. We review the circuit court’s determination that Douglas is a destitute adult child for clear error. Corby v. McCarthy, 154 Md.App. 446, 484 , 840 A.2d 188 (2003). Under the clearly erroneous standard, we look at the record in the light most favorable to the prevailing party, and if there is any competent, material evidence to support the circuit court’s findings of fact, we cannot hold that those findings are clearly erroneous.

Mayor & Council of Rockville v. Walker, 100 Md.App. 240, 256 , 640 A.2d 751 (1994), cert. dismissed, 337 Md. 360 , 653 A.2d 909 (1995). ³²³ Maryland Code (1984, 2012 Repl.Vol.), § 13-102(b) of the Family Law Article (“F.L.”), creates a statutory duty for a parent to support his or her destitute adult children so long as the parent has sufficient means to provide that support. See also Cults v. Trippe, 208 Md.App. 696, 703 , 57 A.3d 1006 (2012). F.L. § 13-101(b) defines a destitute adult child as “an adult child who: (1) has no means of subsistence; and (2) cannot be self-supporting, due to mental or physical infirmity.” In reviewing each of the statutory factors in F.L. § 13-101(b), “only resources that are currently available to a child should be considered.... ” Cutts, 208 Md.App. at 704 , 57 A.3d 1006 . A child’s potential for employment and his ability to obtain future resources take no part in the circuit court’s analysis.

See id. at 704-05 , 57 A.3d 1006 (holding that a trust fund not currently available to the child could not be considered as part of a destitute adult child analysis); Presley v. Presley, 65 Md.App. 265, 278-79 , 500 A.2d 322 (1985) (holding that a child’s potential to become a tenured, rather than a probationary employee, had no effect on her current financial situation, and was thus “completely irrelevant”). Having set out the basic framework in which the destitute adult child analysis takes place, we turn to the first prong of F.L. § 13-101(b)—whether the adult child “has no means of subsistence.” What encompasses “no means of subsistence” has been expanded to “include not only individuals with no means of subsistence, but also those with expenses that exceed their resources.” Cutts, 208 Md.App. at 708 , 57 A.3d 1006 ; see also Corby, 154 Md.App. at 488 , 840 A.2d 188 (holding that an individual with an income of $22,000.00 qualified as a destitute adult child); Presley, 65 Md.App. at 271, 278-79 , 500 A.2d 322 (holding that a individual’s income of $14,200.00 did not automatically preclude her from being adjudicated a destitute adult child). Thus, there are two types of individuals who may qualify as having no means of subsistence: ³²⁴ First, there are those with no financial resources or earning capacity, and thus by definition destitute. Second, there are individuals who have financial resources, but nevertheless are destitute due to a net deficit between reasonable living expenses and financial resources—a finding that can only be ascertained by conducting a balancing analysis [of financial resources against reasonable expenses].... [Requiring courts to go through the motions of a balancing test in cases where a child has no source of income would be meaningless; if a child has no resources whatsoever, any showing of reasonable expenses will, by default, constitute a deficit.

Cutts, 208 Md.App. at 709-10 , 57 A.3d 1006 . Douglas falls into the first category, to wit, a person who has no financial resources, and thus, by definition, has “no means of subsistence.” See id. at 709 , 57 A.3d 1006 . In Cutts v. Trippe, we held that nineteen-year-old Sarah, who had been diagnosed with “mild mental retardation” and had attended a school for students with an IQ lower than seventy, had “no means of subsistence” because she was not employed, did not receive disability benefits or other assistance, and did not have any other available financial resources. Id. at 700, 709 , 57 A.3d 1006 .

Similarly, in the instant case, at the time of trial Douglas was not employed and had no other income or means of support. 2 Although appellee had applied for Supplemental Social Security Income for Douglas, no determination had been made concerning his eligibility as of the time of trial. In addition, Douglas testified at trial that his expenses for food, clothing, and shelter were paid or provided for by appellee and appellee’s wife. Consequently, as was the case in Cutts , Douglas has “no means of subsistence.” Appellant’s contention that the circuit court erred by not considering Douglas’ expenses fails in light of our determina ³²⁵ tion that Douglas has no financial resources. As we stated in Cutts , once the circuit court has determined that the adult child has no financial resources, “there was no need for the trial judge to go any further and weigh [the adult child’s] financial resources against [his] expenses, because there were simply no financial resources to consider.” Id. at 709 , 57 A.3d 1006 .

Thus, Douglas’ expenses would only be a part of the “no means of subsistence” analysis if Douglas had financial resources at the time of trial. In the absence of such resources, the circuit court did not err in declining to balance Douglas’ reasonable expenses against his non-existent financial resources. Next we consider the second prong of F.L. § 13—101(b)— whether Douglas cannot be self-supporting due to mental or physical infirmity. Because we have already determined that Douglas has no means of subsistence, it follows that he is not self-supporting.

Thus the question we must answer is whether the circuit court was clearly erroneous in its finding that Douglas’ current inability to be self-supporting is due his autism and other disabilities. The record demonstrates that Douglas’ disabilities pervade his day-to-day life and are the cause of his inability to be self-supporting. Although multiple witnesses testified to the effects of Douglas’ disabilities on his ability to be self-supporting, appellee’s expert in vocational rehabilitation, Novitzky, alone presented ample testimony to demonstrate this causal link. Accordingly, we will summarize her opinions, observations, and conclusions about Douglas here.

Novitzky worked with Douglas through DORS, and met with him four times prior to trial. She determined that Douglas was an individual “with the most severe disability,” and explained: An individual with most severe disability, that means that three or more areas of life are affected by that disability. And so in Doug’s case I believe that three or more areas were affected such as social behavioral area, communication ³²⁶ skills area, life skills, independent living skills, as well as self-direction, planning, organization, things like that. Novitzky testified that Douglas received a career assessment and four months of community living skills training at the WTC, which was intended to help Douglas learn to live on his own.

Novitzky explained that the career assessment revealed that Douglas’ autism, anxiety, and ODD placed limits on Douglas, such as difficulty in sustaining