Hadick v. Hadick

⁷⁴² CATHELL, Judge. Appellant, Clayton Hadick, seeks review of a custody decision from the Circuit Court for Montgomery County. On February 14, 1990, Appellant filed suit for a divorce vinculo matrimonii against Appellee, Susan P. Hadick, and for custody of their three minor children: Aaron, age 15; Micah, age 12; and Leah, age 10. Appellee answered and subsequently filed a counter suit for divorce.

On April 10, 1990, an order was issued referring the matter of custody to a Domestic Relations Master for a hearing. Thereafter, an order was entered appointing Mr. Mininsohn as counsel to represent the minor children regarding the issue of consent to release medical records. 1 On June 15, 1990, a second order was entered appointing Mr. Mininsohn to represent the children in all matters arising out of the custody dispute. In July, at a hearing as to custody, the master issued an oral opinion recommending that custody of Aaron and Micah be given to Appellee and Appellant receive custody of Leah. She subsequently issued her Report and Recommendation in accordance with that oral opinion.

Appellant filed exceptions to the Report and Appellee filed a response to those exceptions. On December 19, 1990, a hearing on the exceptions was held in which the trial judge issued a decision accepting without modification the ⁷⁴³ Report and Recommendations of the master. Appellant timely noted this appeal. The issues raised in this appeal are: I. Whether the Chancellor was clearly erroneous and abused his discretion in accepting the Report and Recommendations of the Master which contained findings of fact which were without basis in the record and which were inadequate to support the ultimate findings.

II

Whether the Chancellor erred as a matter of law in dividing custody of the siblings without a compelling reason when such a decision is contrary to Maryland precedent.

III

Whether the Chancellor abused his discretion in awarding custody of Aaron and Micah to Appellee when such a placement is not in the best interests of all the children. IY. Whether the Report of the children’s attorney was based on improper information and an inadequate foundation. We remand the case to the trial court for appropriate findings consistent with the standards stated by the Court of Appeals in Domingues v. Johnson, 323 Md. 486 , 593 A.2d 1133 (1991).

That Court stated: We hold, however, 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 conclusions and judgments of the master to which the chancellor referred are those that must be made by the chancellor, upon his independent review of the record and of the facts properly found by the master. The ultimate conclusions and recommendations of the master are not simply to be tested against the clearly erroneous ⁷⁴⁴ standard, and if found to be supported by evidence of record, automatically accepted. That the conclusions and recommendations of the master are well supported by the evidence is not dispositive if the independent exercise of judgment by the chancellor on those issues would produce a different result. 323 Md. at 490-92 , 593 A.2d 1133 . The trial judge’s actions in the case sub judice, with respect to the master’s findings, do not comport with the requirements of Domingues 2 The trial judge, in rendering his decision stated: The record in this case, in the Court’s view, supports the resolution of the question that has already been made by the master.

It is supported by the record. I don’t find it is an abuse of discretion. I don’t find that it is inappropriate. I also find that it is consistent with what would be in both the short term and long term interests of all of the children of the parties, and therefore the Court is not going to modify the master’s finding and it shall not be disturbed.

As we perceive the language of the chancellor, he is accepting the recommendations of the master and is refusing to “modify” or “disturb” them. Domingues requires an independent exercise of judgment resulting in the trial court’s own fact-based conclusions. The Court in Domingues stated: “Because the opinion of the chancellor ... suggests that he accepted the master’s recommendations ... upon a finding that they were not clearly erroneous but were ‘well supported by the evidence,’ rather than exercising his independent judgment on those issues, the case must be remanded____” 323 Md. at 493 , 593 A.2d 1133 . The Court subsequently discussed the appropriate method to be used by chancellors to address issues coming from a master’s hearing and recommendations, saying: ⁷⁴⁵ The chancellor must carefully consider the mother’s allegations ... and decide each such question.

The chancellor should, in an oral or written opinion, state how he resolved those challenges____ [T]he chancellor must then exercise independent judgment to determine the proper result. As we have attempted to make painfully clear, the burden cast upon a chancellor in a case of this kind is substantial. Id. at 496-97 , 593 A.2d 1133 (emphasis added). In remanding, we are cognizant of, and direct the chancellor’s attention to, the Domingues Court’s overview of the feasibility of utilizing masters in contested custody cases.

Although we are remanding, we shall, nevertheless, opine on certain issues raised in this extremely difficult case that have caused us some concern so that they may be more appropriately addressed upon remand. See Md.Rule 8-131(a); Montgomery County v. Maryland Soft Drink Ass’n, Inc., 281 Md. 116, 122-23 , 377 A.2d 486 (1977); County Comm’rs of Queen Anne’s County v. Miles, 246 Md. 355, 373 , 228 A.2d 450 (1967); Montgomery County Bd. of Ed. ex rel. Carrier Corp. v. Glassman Constr. Co., 245 Md. 192, 198 , 225 A.2d 448 (1967).

We acknowledge that the sensitive matters and the unique factual setting of this custody controversy creates for the master, the chancellor, and this Court, an excruciatingly difficult situation when we, in our respective roles, attempt to resolve this dispute without causing an injustice. It may well be that no matter what the ultimate decision, an injustice to at least one of the parties will occur. All of us are forced to determine, as best we can, again given our respective roles, what is in the best interests of the children, knowing that the decision may well be both just and unjust. The master, in making her recommendations concerning custody of the children, among other reasons, stated: Sometimes the reason that it is better for the kids not to be together is that there is only a finite amount of ⁷⁴⁶ attention that a parent has to pay and if you have one child or two children or three children who need a lot more attention than the normal, average kid needs, if there is such a thing, then when you don’t have two parents together to shower the attention on the kids, you have to look at whether you think one child — one parent is going to be able to do it all.

Mrs. Hadick found out that given these three children she couldn’t do it all and my most serious question about how good a parent Dr. Hadick is comes from why he didn’t recognize what an enormous responsibility those three kids were____ ****** But, on the other hand — and this is back to this question of how much attention is there available, how much strength does a parent have — Dr. Hadick [3] said in his deposition, but he said clearly here that he has made a real commitment to take care of Leah as long as he possibly can. I have a real concern that for the boys there just wouldn’t be nearly enough left if his commitment to Leah is that great and I am not suggesting that that is an inappropriate kind of commitment to make____ That is his decision, but once he has made that decision, it is my obligation in looking at the best interests of all three kids to see whether that commitment to Leah leaves it in the best interests of Aaron and Micah to reside in that one family unit and my conclusion is that it would not. The master stated, and the chancellor accepted, that both parents were “fit” to care for the children. There was' evidence establishing that both parents would be “fit” to care for the children.

Dr. Hadick is committed to taking care of Leah, participates in various athletic events with his sons, and helps the boys with their school work. He has ⁷⁴⁷ arranged for his mother to come and live with him if he gets custody of the children. Further, Appellant works only a mile from his home in Ohio. Although the evidence indicates that the boys get along well with Dr. Hadick’s mother, there is also some evidence that they do not.

Appellee has maintained a good deal of contact with Aaron’s principal and intends on enrolling Micah in the same school so that they can be together and make the same friends. She lives in a nice residential area and she works within 20 minutes of the home, which will make her accessible to the children. We perceive no error or abuse in the chancellor’s finding that both parents are fit. See Ross v. Hoffman, 280 Md. 172, 187 , 372 A.2d 582 (1977); Davis v. Davis, 280 Md. 119, 125 , 372 A.2d 231 (1977); McAndrew v. McAndrew, 39 Md.App. 1, 9 , 382 A.2d 1081 (1978).

We have stated that “[t]here can be no tie-breaker in a custody case because ... there should never be a tie. The determination of custody is an area in which discretion is vested in a judge____” McAndrew, 39 Md.App. at 9 , 382 A.2d 1081 (citation omitted). Therefore, where, as here, both parents are found to be “fit”, the trial judge has the discretion to decide which parent will receive custody. The Court of Appeals has stated that: The evidence in a given case may be sufficient to support an award of custody to either parent.

Notwithstanding the oft-repeated reference in the cases to “fit” and “unfit” parents, it is quite often the case that both parents are entirely “fit” to have legal and/or physical custody of a child, but joint custody is not feasible. In such cases, the chancellor must exercise his or her independent discretion to make the decision. This does not mean that the chancellor must disregard the recommendations of the master. Consideration may and should be given to those recommendations, but in the final analysis, the decision must be made by the chancellor.

Domingues, 323 Md. at 492 , 593 A.2d 1133 . It is also a paramount principle of child custody that the best interest and welfare of the child is of primary ⁷⁴⁸ consideration. McCready v. McCready, 323 Md. 476, 481 , 593 A.2d 1128 (1991); Queen v. Queen, 308 Md. 574, 587 , 521 A.2d 320 (1987); Ross v. Hoffman, 280 Md. 172, 175 , 372 A.2d 582 (1977); Wallis v. Wallis, 235 Md. 33, 36 , 200 A.2d 164 (1964); Glick v. Glick, 232 Md. 244, 248 , 192 A.2d 791 (1963); Hild v. Hild, 221 Md. 349, 359 , 157 A.2d 442 (1960); Cullotta v. Cullotta, 193 Md. 374, 384 , 66 A.2d 919 (1949); Kartman v. Kartman, 163 Md. 19, 23 , 161 A. 269 (1932); Monroe v. Monroe, 88 Md.App. 132, 140 , 594 A.2d 577 (1991); Skunk v. Walker, 87 Md.App. 389, 396 , 589 A.2d 1303 (1991); Newkirk v. Newkirk, 73 Md.App. 588, 592 , 535 A.2d 947 (1988); Vernon v. Vernon, 30 Md.App. 564, 566 , 354 A.2d 222 cert. denied, 278 Md. 737 (1976). But, “[ojrdinarily, the best interests and welfare of the children of the same parents are best served by keeping them together to grow up as brothers and sisters under the same roof.” Hild, 221 Md. at 359 , 157 A.2d 442 (citations omitted).

Generally, Maryland law frowns upon the division of siblings. See Melton v. Connolly, 219 Md. 184 , 148 A.2d 387 (1959) (in most cases, a child should be raised with his or her brothers and sisters); Roussey v. Roussey, 210 Md. 261 , 123 A.2d 354 (1956) (divided control is to be avoided); Dunnigan v. Dunnigan, 182 Md. 47 , 31 A.2d 634 (1943) (well being of children would best be served by keeping them together as brothers and sisters). But see Davis v. Davis, 280 Md. 119 , 372 A.2d 231 , cert. denied, 434 U.S. 939 , 98 S.Ct. 430 , 54 L.Ed.2d 299 (1977), reh’g denied, 434 U.S. 1025 , 98 S.Ct. 754 , 54 L.Ed.2d 774 (1978) (upheld division of custody where youngest child had resided for two years with the mother without her siblings and had adjusted well to that arrangement); Bryce v. Bryce, 229 Md. 16 , 181 A.2d 455 (1962) (upheld division of custody where one parent was suffering from a mental disease that may have had a detrimental effect on a 4-year-old, but the two older children remained with the sick parent because they had already formed their personalities and would not likely be affected); Jordan v. Jordan, 50 Md.App. 437 , 439 A.2d 26 cert. denied, 293 Md. 332 (1982) (upheld separation ⁷⁴⁹ where the agreement of the parents divided custody of brothers for a period of more than two years and the separation caused neither to suffer from physical, mental or emotional adverse effects). In the case sub judice, relying in part on our decision in Kennedy v. Kennedy, 55 Md.App. 299 , 462 A.2d 1208 (1983), and to a certain extent on the facts of this case and certain unsupported or poorly supported inferences, the master, and,