Green v. Green

KENNEY, J. Jennifer Laird Green (“Mother”), appellant, and William R. Green, Jr. (“Father”), appellee, entered into a Modified Custody Agreement (the “Custody Agreement”) providing them with joint legal and physical custody of their daughter, Madison, “as specified [in the Custody Agreement].” The Custody Agreement provided that Madison would reside with Mother’s aunt and uncle (the “Millers”). The Custody Agreement was ⁶⁶⁵ incorporated by reference into the Judgment of Absolute Divorce entered by the Circuit Court for Queen Anne’s County on June 30, 2006. After completing a rehabilitation program for substance abuse, Mother filed a complaint to modify custody. At the conclusion of the merits hearing, on June 19, 2008, the master found, on the record, that Mother had not shown a material change in circumstances and recommended that Mother’s motion to modify custody be denied.

The master filed his written findings and recommendation on July 7, 2008, and, on July 14, Mother filed exceptions to the master’s recommendation—25 days after the master gave his oral recommendation at the hearing. Father filed, and the circuit court granted, a motion to strike the exceptions for not being timely filed. Mother moved to vacate the order and to reinstate the exceptions. The court heard the motion, along with argument on the exceptions.

It upheld its grant of the motion to strike exceptions and denied the motion to reinstate exceptions. It also indicated that, had the exceptions been timely filed, it would have overruled them. Mother appeals, presenting the following questions for our review: I. Are [Mother’s] exceptions properly preserved for Appeal?

II

Did the trial court err when it allowed [the Millers] to intervene as a third party to the case?

III

Did the trial court err when it found that the Agreement and Order of June 30, 2006, awarded primary physical custody of the minor child to the Millers?

IV

Did the trial court err when, absent a finding of unfitness or exceptional circumstances, the Court failed to apply the presumption in favor of a biological parent and shifted the burden of proof to the parent during the best interest of the child analysis in an Intervening Third Party custody case? V. Did the trial court err when it failed to exercise discretion by entering a pendente lite order entered into by ⁶⁶⁶ parties pending the conclusion of litigation as a final order intended to completely resolve the custodial arrangement of the minor child? We shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Mother and Father were divorced on June 30, 2006.

Their Custody Agreement was incorporated by reference into the Judgment of Absolute Divorce entered by the Circuit Court for Queen Anne’s County. Under the Custody Agreement, the parties shared joint legal and physical custody of their then eight-year-old daughter, Madison, “as specified [in the Custody Agreement].” The Custody Agreement provided the Millers with “primary residential custody” of Madison. When she entered into the Custody Agreement, Mother was undergoing rehabilitation for substance abuse. On March 19, 2007, after completing a rehabilitation program, Mother filed a Complaint to Modify Custody, seeking primary physical custody of Madison.

Father filed an answer on April 27, 2007, asking that Mother’s complaint be denied. The Millers, on May 14, 2007, filed, and the court granted, a Motion to Intervene. On August 21, 2007, the parties, after a settlement conference, reported the matter settled, placed the settlement on the record, and agreed to submit a proposed order to the court. After a significant delay in submitting the proposed order, the court conducted a status conference on December 20, 2007, in which the parties indicated that they could not agree on the proposed order and that matters remained unresolved.

The case was set for a merits hearing to be held on February 11, 2008. On February 8, 2008, the circuit court cancelled that hearing, issued a Memorandum and Pendente Lite Order Regarding Child Custody, based on the settlement reported to the court and placed on the record, and set the matter for a status conference on May 8, 2008. At the status conference, the matter was set for a master’s hearing on June 19, 2008. ⁶⁶⁷ At the conclusion of that hearing, the master announced on the record his findings and recommendations. Pertinent to this appeal, he stated: [T]he agreement as incorporated into the judgment says: The child shall reside primarily with [the Millers]. [The Millers] shall have primary residential custody of the child.

So that’s really where we start from in this case. I will find there’s an order that has awarded primary physical custody of the child to [the Millers] at this point in time [Y]ou start from where you are and then you have to go from there, so, really, its [sic] [Mother] coming back in demonstrating, one, that there has been a material change in circumstances and, two, that it is in the best interests of the child that the child remain primarily with her. So I really do think the burden lies there. When the Court is looking at a change of custody case, it really does a two-step analysis.

The first is to assess whether there is a change in circumstances and the second is whether ... if there’s a change in circumstances, whether that change, in effect, affects the best interests of the [child].... ❖ * * So, for the purpose of filing exceptions and appeals, the Court will determine that the burden in this case is going to be upon [Mother] to demonstrate that there has been a significant material change in circumstances that affects the welfare of the child, that makes it in the child’s best interests to be returned to her primary physical care and custody at this point in time. [T]he Court finds that there is [sic] exceptional circumstances in this case, if such were required---- Moving on to the best interests of the child, ... I will find that each parent is a fit parent at this point in time. ⁶⁶⁸ Character and reputation of the parties____No one has assailed [the Millers’] character or reputation at all today. With regard to [Father], [Mother] would indicate that his character and reputation are less than perfect.... He hasn’t been actively and overtly involved in the child’s life____That being said, I don’t find that makes him of poor character or reputation. [H]e’s kept his eyes open to the big picture and about what’s in the child’s best interests, and if there’s this village there to offer more to Madison than, perhaps, he feels he can offer himself, is that a bad thing?

I’ll say absolutely not. With regard to [Mother], her character and reputation. I guess, the assails that we have had upon her character and reputation have been that clearly and admittedly so, she’s had a past problem with mental illness and with substance abuse____ I will find that both parents in this case are of good character and reputation. Desire of the natural parents and agreements of the natural parents____Clearly, the desire of [Mother] is that the child reside with her primarily.

Clearly, the desire of [the Millers] and [Father] are that the present—that the status quo continue in this matter. The next factor the Court needs to consider is the potential of maintaining natural family relations____ íH It appears to me there have been natural family relations to date..... * * * Preference of the child; we really haven’t heard about the preference of the child. It is very, very clear to me that the child is very attached to everybody involved in this case Material opportunities affecting the future lives of the child I don’t find that material opportunities affecting the future lives [sic] of the child has really any importance in this case ⁶⁶⁹ Age, health, and sex of the child. The child is ten years old.

The child is in good health, but for hypothyroidism, for which she is appropriately and properly treated Residence of the parties and the opportunities for visitation. The Millers live just north of Centreville, [Mother] lives in Anne Arundel County----just about 40 minutes away..... Length of separation from the natural parent, I don’t think that the child has ever been separated from the natural parent for any substantial period of time I find that neither parent has voluntarily abandoned or surrendered the child I have concerns about [Mother] continuing to even have moderate levels of alcohol, while she continues to do this 12-step programs of AA and NA. I am very concerned about the dilute specimen that she provided to the health department.

We haven’t had any real explanation for that dilute, other than it was dilute and that can happen. These are concerns that I have. I think that based upon [Mother’s] underlying mental health condition, [her] past problems with substances, that any use of any substance that alters [her] mind puts [her] at great risk for relapse and, accordingly, if the child were in [her] care and custody, ... puts the child in a grave area for concern. So I am going to recommend that, at this point in time, that the Court deny the motion to modify custody....

In a subsequent Report, Finding of Facts and Recommendation of Master, filed July 7, 2008, the master stated: At the hearing on June 19, 2008, [Mother] presented evidence to indicate that she has stable sobriety, housing and employment, and it was suitable for the child to remain in her care and custody. For the reasons set forth on the ⁶⁷⁰ record, the Court found that their [sic] had not been a significant change in the circumstances of [Mother]’s life that would make it in the best interest of the child to be returned to the primary physical custody of [Mother]. The Court was very concerned about [Mother’s sobriety as a result of the dilute specimen submitted to the Health Department, her casual attitude toward continued treatment and attendance at AA/NA meetings and her continued consumption of alcohol in casual settings. While [Mother] seems to have established a stable and appropriate living environment, the location of that home would cause substantial change to Madison as it would cause her to attend school in a different county.

Further, while [Mother] has become employed at a stable job, she has only been there for a short time and, based upon history, it is appropriate that she establish a longer period of stable employment before it would be appropriate to consider having the child reside primarily with her. Accordingly, the master recommended that: 1. [Motherj’s Complaint to Modify Custody and Support be denied. 2. This Court’s order dated February 8, 2008, remain in full force and effect as a final order. 3. [Mother] pay the costs of this proceeding. Mother filed exceptions on July 14, 2008, and ordered the transcript of the hearing.

On July 17, 2008, Father filed a motion to strike the exceptions. On August 5, 2008, the circuit court granted the motion to strike the exceptions and entered the Pendente Lite Order Regarding Child Custody as a Final Custody Order. On August 6, 2008, Mother filed a motion to vacate the August 5, 2008, order and to reinstate the exceptions. The court heard this motion, as well as argument on the exceptions, on August 27, 2008, and ordered that “the ‘Motion to Vacate Order and Reinstatement of Exceptions’ be ...

DENIED,” and that “the exceptions filed by [Mother] be ... OVERRULED.” The court explained in its bench ruling that ⁶⁷¹ the February 2008 Custody Order was “now going to be the final order,” that the motion to reinstate exceptions was denied because the exceptions were not timely filed, and that the court “overrule[d] the exceptions, basically gratuitously.” Mother filed this timely appeal. DISCUSSION I. Are [Mother’s] exceptions properly preserved for Appeal? In regard to a matter before a master, Rule 9-208(e)(l) provides that “[t]he master shall notify each party of the recommendations, either on the record at the conclusion of the hearing or by 'written notice served pursuant to Rule 1-321.” Rule 9—208(f) provides: Within ten days after recommendations are placed on the record or served pursuant to section (e) of this Rule, a party may file exceptions with the clerk.

Within that period or within ten days after service of the first exceptions, whichever is later, any other party may file exceptions. Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise. In Morales v. Morales, 111 Md.App. 628, 629 , 683 A.2d 1124 (1996), this Court addressed the “narrow issue of when a party’s time for filing exceptions to a master’s recommendations ... begins to run.” In Morales , as in this case, the appellant filed exceptions within ten days of the filing of the master’s written recommendations but not within ten days of the master’s oral recommendations entered on the record on the hearing date.

Id. The Morales Court considered former Rule S74(A)(c), which stated, in part, that “the master shall notify each party of the master’s recommendations, either on the record at the conclusion of the hearing or by written notice ...,” id. at 631 , 683 A.2d 1124 , and former Rule S74(A)(d), which stated, in part, ⁶⁷² that “any written notice is required to issue within three days of the date of hearing.” Id. The appellant argued that it was unclear whether the ten days began to run from the conclusion of the hearing or his reception of the written recommendations, which were filed twenty-one days after the hearing. Id. at 632 , 683 A.2d 1124 .

The Court explained that, “[h]ad the master elected to serve the parties with written notice of his recommendations rather than notifying the parties at the conclusion of the hearing, he would have been required to serve such notice within three days of the hearing.” Id. at 633 , 683 A.2d 1124 . The same analysis applies to the current rule. Pursuant to Rule 9—208(e)(1), had the master elected to serve the parties with written notice of his recommendations rather than notifying the parties at the conclusion of the hearing, he would have been required to serve such notice “within ten days after the conclusion of the hearing.” The master did not file his recommendations until eighteen days after the hearing. In Morales , we stressed that the time to file exceptions runs from the date of notice to the parties as to the master’s recommendations and explained: [The Rule] keys the running of time for filing exceptions to the issue of notice....

Once the master orally delivers his recommendations on the record, the parties are on notice of the recommendations, and the time for filing begins to run. The issuance of subsequent written notice does not act to cancel the fact that the parties already are on notice. Id. at 632-33 , 683 A.2d 1124 . Here, as in Morales , the master gave his recommendation at the conclusion of the hearing.

Mother contends that she was denied “notice, fundamental fairness and equal protection under due process.” She argues that the master did not indicate that the conclusions he made on the record on the hearing date constituted his recommendation or if a written recommendation was forthcoming. According to Mother, the master “failed to indicate whether his analysis was ‘the’ recommendation and failed to advise the ⁶⁷³ parties of the ten day requirement to file exceptions pursuant to the same [T]he failure of [the master] to clearly advise the parties failed to place them on appropriate notice such that they [could] have a real opportunity to respond.” We are not persuaded. The record reflects that the master gave a lengthy discussion of his findings and recommendation at the conclusion of the hearing, and that he advised the parties of their rights to file exceptions. He clearly stated: So, I’m going to recommend, at this point in time, that the Court deny the motion to modify custody and prior to anybody seeking an alternate motion or further motion to modify custody, that the parties go to mediation to sort of try to work something out, as we go forward.

You each have the ability to file written exceptions with the Court, which is to point out to the ... Court what errors you think I made and why you think I made those. Mother also challenges the fairness of the Rule because “the moving party must decide between filing too early and being substantively deficient or filing too late and being procedurally deficient.” Again, we disagree. Under Rule 9-208(e)(2), if a master “issue[s] a supplementary report and recommendation on the master’s own initiative before the court enters an order of judgment^ a] party may file exceptions to new matters contained in the supplementary report and recommendations in accordance with section (f) of this Rule.” In addition, Rule 9—208(f) also provides a “second chance” in that a matter deemed waived by the specificity requirement could still be considered if “the court finds that justice requires otherwise.” The Rule provides an adequate opportunity for parties to take exceptions to masters’ recommendations.

If something that was not mentioned by a master’s oral recommendation appears in the written recommendation, exceptions to any new matters can be filed, and, even if an exception is not sufficiently specific, the matter will not be deemed waived upon a finding that “justice requires” its consideration. ⁶⁷⁴ Mother also argues that “the failure to file exceptions should not be a bar to the filing of an Appeal based upon the improper application of those (now) established facts to the prevailing law....” We agree. As we explained in In re Levon A., 124 Md.App. 103, 125 , 720 A.2d 1232 (1998), rev’d on other grounds, 361 Md. 626 , 762 A.2d 572 (2000), though failing to file exceptions to a master’s findings prevents a party from appealing the circuit court’s adoption of the master’s factual findings, a party is not precluded from appealing the trial court’s adoption of the master’s recommendation if the issues appealed concern the court’s adoption of the master’s application of law to the facts. Pursuant to our decisions in In re Levon A. and Miller v. Bosley, 113 Md.App. 381 , 688 A.2d 45 (1997), the factual findings that the circuit court adopted from the master’s findings, because no timely exceptions were filed, cannot be reviewed. Nevertheless, Mother’s questions III-V essentially challenge the master’s legal analysis and recommendations and the propriety of the circuit court’s actions in adopting that recommendation.

As we said in In re Levon A., 124 Md.App. at 123 , 720 A.2d 1232 (quoting Miller, 113 Md.App. 381 , 688 A.2d 45 ): We perceive that appellant assigns error not to the master, but to the trial judge in his exercise of his judicial responsibilities. Although exceptions are the proper vehicle for review of the master’s findings, this appeal may properly consider the propriety of the judge’s actions. See also Miller, 113 Md.App. 381 , 688 A.2d 45 ; In re Zephrin D., 69 Md.App. 755 , 519 A.2d 806 (1987) (This Court reviewed an order of restitution lodged against the mother, though only the juvenile, and not the mother, filed an exception to the master’s report.); Rule 9-208(h)(l)(B) (“[I]f exceptions are not timely filed, the court may direct the entry of the order or judgment as recommended by the master.” (emphasis added)); See generally Ellis v. Ellis, 19 Md.App. 361, 365 , 311 A.2d 428 (1973) (“Litigants in a child custody proceeding, as in all judicial proceedings, are entitled to have their cause deter ⁶⁷⁵ mined ultimately by a duly qualified judge of a court of competent jurisdiction.”); Compare, In the Matter of Tyrek S., 351 Md. 698 , 720 A.2d 306 (1998) (Master’s factual findings not excepted to or heard by the circuit court were not preserved for appellate review.) Moreover, the questions presented do not offend Md. Rule 8-131(a), which provides that “ordinarily” we will not decide any issue that does not “plainly appear[] by the record to have been raised in or decided by the trial court....” All of the questions raised on appeal were considered by the circuit court, albeit gratuitously, in denying the exceptions on the merits. Therefore, as in In re Levon A., where the court considered the issue “just in case,” the issues raised in this appeal were “squarely considered and ‘plainly decided’ by the circuit court.’ ” In re Levon A, 124 Md.App. at 125 , 720 A.2d 1232 .

II

Did the trial court err when it allowed [the Millers] to intervene as a third party to the case? The Millers moved to intervene as defendants pursuant to Md. Rule 2-214. In her answer, Mother argued that the Motion to Intervene “fails to comply with Rule 2-214(c)” and that “the Millers were not a party to the action or the agreement.” Upon consideration of the Motion to Intervene and the answer filed thereto, the court ordered that the Millers shall be added as additional defendants. On appeal, Mother argues that the Motion to Intervene did not comply with Md. Rule 2-214(c), as the Millers never filed any pleadings as required by the Rule, nor asked the court for any relief.

She also challenges their right to intervene, stating: “The Millers have failed to allege any facts that would support an ‘unconditional right’ to intervene.... Without the filing of a Complaint for Custody by the Millers, they have failed to allege any ‘interest’ necessary for standing to afford them relief or the ability to intervene in the first instance.” The Millers acknowledge that “[they] did not file a separate answer to the Motion To Modify Custody,” but argue that ⁶⁷⁶ “[Mother] did not seek an Order of Default,” and that she “treated the Millers as proper parties by propounding Interrogatories to them which they dutifully answered.” Rule 2-214(a) states: Upon timely motion, a person shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented. The Court of Appeals stated, in Conroy v. Southern Maryland Agricultural Ass’n, 165 Md. 494, 502-03 , 169 A. 802 (1934): While the authorities are not in accord as to the right of one interested in the subject-matter of an equity proceeding to intervene therein, the rule in this state, and one generally recognized elsewhere, is that the right to so intervene is not, unless the proceeding is in rem and the ultimate decree will finally determine some interest, claim, or property right of the petitioner, absolute, but rests in the sound discretion of the court. The Millers were “residential custodians” of Madison per the Custody Agreement, which was incorporated into a court order.

Therefore, we are not persuaded that the circuit court abused its discretion by granting their motion to intervene. See Dietrich v. Anderson, 185 Md. 103 , 43 A.2d 186 (Md.1945) (“Foster parents having custody of an infant child under an order of an equity court, are ‘persons parties to the suit’ within the statute authorizing an appeal.”). Rule 2-214(c) states: A person desiring to intervene shall file and serve a motion to intervene. The motion shall state the grounds therefor and shall be accompanied by a copy of the proposed pleading setting forth the claim or defense for which intervention is sought.

An order granting intervention shall designate ⁶⁷⁷ the intervenor as a plaintiff or a defendant. Thereupon, the intervenor shall promptly file the pleading and serve it upon all parties. Even though no pleading accompanied the Millers’ motion to intervene, it was clear to all parties that the Millers’ purpose for intervening was to resist the modification of the Custody Order and to maintain the status quo. That was the only issue before the court.

Certainly, the Millers should have filed the appropriate pleading, but, in the circumstances of this case, the alleged error elevates form over substance, and there was no prejudice to Mother. Not only was Mother aware of the Millers’ position, she sought and received discovery from them.

III

Did the trial court err when it found that the Agreement and Order of June 30, 2006, awarded primary physical custody of the minor child to the Mdllers? The Custody Agreement states, in pertinent parts: Husband and Wife shall have joint legal custody and physical custody of their minor Child as specified below. June Miller and Donnie Miller shall have the legal authority to consent to the care, education matters, and discretion regarding visitation for the minor Child. The Child shall reside primarily with June Miller and Donnie Miller.

June Miller and Donnie Miller shall have primary, residential custody of the Child. Husband shall have physical custody of the Child on an every other weekend schedule from Friday after school ... through Monday morning when Husband shall take the Child to school or make arrangements for the Child to get to school. Husband shall additionally have custody of the Child every Wednesday from after school, and if no school 9:00 a.m. through Thursday morning. ❖ * * Wife shall have physical custody of the Child on an every other weekend schedule from Friday after school through Sunday evening at 7:00 pm ⁶⁷⁸ The parties may arrange for additional periods of time with the Child; however, said arrangements shall be within the discretion of June Miller and Donnie Miller. The parents and the Millers shall both be permitted to participate, attend, and become involved in the Child’s performances, extracurricular activities, field trips, etc. upon the agreement of June Miller and Donnie Miller.

Any periods of time