J.A.B. v. J.E.D.B.

J.A.B. v. J.E.D.B., Case No. 519, September Term 2020. Opinion filed on April 27, 2021, by Berger, J. CHILD CUSTODY – GROUNDS AND FACTORS IN GENERAL – FACTORS RELATING TO PARTIES SEEKING CUSTODY – ABUSE OF PERSON OTHER THAN CHILD – COMMISSION OF CRIME – WELFARE AND BEST INTERESTS OF CHILD Where a trial court expressly finds that Mother was subjected to abuse by Father, the court is required to consider Md. Code Ann., § 9-101.1 of the Family Law Article in its custody determination. The trial court must make arrangements to best protect both the child and the victim of the abuse. Merely including an additional, mandatory consideration in its analysis does not equate to prioritization of that consideration by the trial court.

The trial court did not err by considering the safety of Mother in its custody determination pursuant to Family Law § 9-101.1. CHILD CUSTODY – GROUNDS AND FACTORS IN GENERAL – FACTORS RELATING TO CHILD – WELFARE AND BEST INTERESTS OF CHILD Where a trial court analyzes and explains its analysis of the factors relating to the best interests of the minor children, we will not disturb those findings unless they were clearly erroneous or a clear showing of an abuse of discretion. The trial court considered all factors relevant to the best interests of the minor children and determined that this case was not appropriate for joint legal custody due to the history of violence between the parties and their inability to communicate. Further, the trial court considered the history of the parties and the protection of the victim of abuse, Mother, and determined Mother having primary physical custody with Father having unsupervised visitation was in the best interest of the minor children.

There was no showing of clearly erroneous findings of fact or any evidence of a clear abuse of discretion by the trial court. EVIDENCE – ADMISSIBILITY – IN GENERAL – WITNESSES – PROCEEDINGS – CREDIBILITY AND IMPEACHMENT – MANNER OF TESTIFYING To allow a participant to testify via remote electronic participation without consent of the parties, the participant must be essential to the proceeding, not able to appear in person due to a significant hardship, and her testimony must not substantially prejudice any party or adversely affect the proceeding. Here, a neighbor who possibly heard evidence of abuse from Mother through a shared wall of the home was not essential to the proceeding. Further, due to the nature of the neighbor’s proffered testimony, the credibility and demeanor of the participant would be critical, and the trial court could not evaluate credibility via the telephone.

Finally, Mother’s ability to cross-examine the participant would be limited if required to do so by telephone. The trial court did not abuse its discretion in refusing to allow the neighbor to testify via telephone. Circuit Court for Harford County Case No. 12-C-17-001373 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 519 September Term, 2020 ______________________________________ J.A.B. v. J.E.D.B. ______________________________________ Berger, Leahy, Eyler, James R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: April 27, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-10-28 14:38-04:00 Suzanne C. Johnson, Clerk This case involves a custody dispute originating in the Circuit Court for Harford County.

J.A.B. (“Father”) filed a complaint for limited divorce against J.E.D.B. (“Mother”) on June 2, 2017.1 Father subsequently filed a complaint for absolute divorce on January 4, 2019. The circuit court, after an eight-day trial, awarded sole legal custody and primary physical custody to Mother.2 The court further ordered Father to have visitation with the minor children every other weekend and once or twice during the week depending on whether school is in session.

The court issued its Memorandum Opinion and final custody order on May 14, 2020. Father noted a timely appeal. Father presents three questions for our review,3 which we have reordered and rephrased as follows: 1 We shall refer to the parties by their initials in order to protect their and their children’s privacy. 2 “Physical custody . . . means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.” Taylor v. Taylor, 306 Md. 290, 296 (1986). “Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” Id. 3 Father’s original questions presented are as follows: I. Did the Trial Court commit legal error by prioritizing the protection of the Appellee over the best interests of the Minor Children in its evaluation pursuant to § 9-101 et. seq. of the Family Law Article?

II

Did the Trial Court commit reversible error and an abuse of discretion in refusing to allow the telephonic testimony of a non-party witness during Appellant’s rebuttal case? I. Whether the trial court erred, as a matter of law, by prioritizing the protection of Mother from Father pursuant to Md. Code Ann., § 9-101.1 of the Family Article over the best interests of the parties’ minor children.

II

Whether the trial court abused its discretion in its analysis of the best interests of the minor children and ultimately limiting Father’s time with the minor children.

III

Whether the trial court abused its discretion in refusing to allow a non-party witness to testify telephonically. For the reasons explained herein, we shall affirm. FACTS AND PROCEEDINGS Mother and Father married on July 4, 2009 in Baltimore County, Maryland. The parties lived together as husband and wife following the marriage.

Throughout the marriage, there were periods of time in which the parties were separated and lived apart. The parties had two children as a result of their marriage: A. and W., who were ages 7 and 5 respectively, at the time of the trial.4 Throughout the marriage, both parties were abusive to each other. Father verbally, physically, and sexually abused Mother several times, some of which occurred in the view of the minor children. Mother reacted to Father’s abuse in different ways, both physically and verbally.

On different occasions, Father encouraged III. Did the Trial Court abuse its discretion in its analysis of what is in the best interests of the Minor Children by restricting the Appellant’s time with the Minor Children? 4 We shall refer to the children by only their first initial to protect their privacy. 2 A. to strike or hit Mother and W. There was no evidence presented that either party ever physically abused the minor children. In April of 2017, the parties and the minor children moved in with Mother’s parents during a period of construction on their family home. One evening during their stay, the parties became angry while they were putting the children to bed.

Mother’s father, Mr. D., approached the parties and asked Father to be quiet. At that point, Father engaged in an angry tirade against Mr. D. while Father was holding W. Mr. D. and his wife both testified that Father assaulted Mr. D. during the rant. It was this incident which resulted in the filings of petitions for protective orders against Father. On June 2, 2017, Father filed a complaint for limited divorce in the Circuit Court for Harford County.

At the time of the filing, four petitions for protective orders were pending before the trial court. One petition was filed against Mother by Father. Further, three petitions were filed against Father by Mother and both of her parents, stemming from the incident in April of 2017. The trial court held a hearing on June 12, 2017 in which the parties agreed to the terms of a Consent Order relating to the care and custody of the minor children.

Notably, the Order drafted on June 12, 2017 was never signed by either party due to a dispute between the parties’ counsel as to the contents of the Order. The trial court held two hearings regarding Father’s visitation with the minor children, first on July 27, 2017 and then again on August 1, 2017. An Order was issued on August 1, 2017 that dictated Father’s supervised access to the minor children. On July 7, 2017, Mother filed an answer to Father’s complaint for limited divorce and a counterclaim for limited divorce.

Father requested joint physical and legal custody of the minor children while Mother requested sole physical and legal custody. On 3 August 30, 2017, the trial court referred the parties for a psychological evaluation with Dr. Syretta James (“Dr. James”). At the time, a no-contact order between the parties was in effect. Therefore, the evaluation was conducted jointly, but took place in the courthouse using a jury deliberation room.

Dr. James filed her completed psychological evaluations with the trial court on October 31, 2017. Dr. James found that Father was the aggressor in the parties’ relationship and that any abusive behavior by Mother was reactive to Father’s violence and coercive control over her. Further, Dr. James noted one specific incident during a family interview when Father tried to influence and change A.’s responses to questions centering around the abuse within the family. Later, the parties agreed to the appointment of a Best Interest Attorney on behalf of the minor children.

Further, the parties agreed to obtain a Parenting Assessment and an Intimate Partner Violence Assessment. The trial court ordered that Dr. James would perform both Assessments. The trial court issued an Order mandating both Assessments on December 4, 2017. After a request for an extension, Dr. James filed the Assessments with the court on April 9, 2018.

While the case was pending, Father enrolled in, and completed, an Abuser Intervention Program based on a recommendation from Dr. James. Additionally, Father attended individual therapy with Dr. Carlene Gibson (“Dr. Gibson”). On August 9, 2018, the parties filed a joint request for postponement due to Father’s retention of new counsel, the complex nature of the litigation, and a lack of exchange of discovery materials. The trial court granted the request on August 14, 2018.

On August 28, 2018, the parties appeared before the court for a pretrial conference. Both parties proffered their respective positions on the issue of Father’s access with the minor children until the 4 trial could be held. At that time, the trial court permitted Father to have supervised visitation with the minor children every other weekend and twice during the week. On December 3, 2018, the parties entered into a Consent Order outlining the scheduling of depositions of various witnesses presented by both parties.

On December 31, 2018, Mother and both of her parents were deposed. Father filed a supplemental complaint for absolute divorce on January 4, 2019. Subsequently, Father filed an amended complaint for absolute divorce. On March 20, 2019, Father filed a motion for postponement due to the hospitalization of his counsel.

Father’s motion was granted the same day. Trial began on September 17, 2019. The trial was originally scheduled for four days, to conclude on September 20, 2019. The parties, however, required an additional four days.

The parties appeared before the trial court on December 18 and 19, 2019, and again on February 19 and 20, 2020. The trial was held solely on custody related issues because Father had filed for bankruptcy.5 At the proceedings on February 19, 2020, Father indicated his intent to call two rebuttal witnesses, one being the parties’ former neighbor, N.S.. Father requested for the trial court to allow N.S. to testify telephonically regarding Father’s contention that Mother was the abuser in the family dynamic. The trial court denied Father’s motion. 5 The trial court stayed any proceedings related to non-custodial issues until Father’s bankruptcy case resolved.

At this time, the stay has been lifted as Father’s bankruptcy case has concluded. 5 The trial court issued its Memorandum Opinion on May 14, 2020. The trial judge expressly found that Father was abusive to Mother throughout the course of their marriage. Further, the trial court awarded Mother sole legal custody and primary physical custody of the minor children. The Memorandum Opinion outlined specific and limited access between the Father and the minor children.

The trial court lifted the supervision requirement for Father’s visits with the minor children. Father filed a motion to revise the judgment on June 15, 2020. On the same day, Mother filed a motion for clarification of the Memorandum Opinion. On June 30, 2020, the trial court denied Father’s motion.

The same day, the trial court granted Mother’s motion and clarified the parties’ access schedule related to the Mother’s Day holiday. Father timely appealed to this Court on July 24, 2020.6 6 Generally, a notice of appeal must be filed within thirty days after the entry of judgment from which the appeal is taken. Md. Rule 8-202(a). Nevertheless, “[i]n a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry” of a withdrawal of the motion or an order denying or disposing of the motion.

Md. Rule 8-202(c). Maryland Rule 8-202(c) “also extends the time period for noting an appeal to this court when a party files a revisory motion under Rule 2-535 within 10 days after entry of judgment.” Estate of Vess, 234 Md. App. 173, 194 (2017). Critically, [i]f a party files a post-trial revisory motion more than 10 days after judgment and if, in ruling on the motion, the court does revise its earlier ruling in some respect, the revised ruling becomes the final judgment. Thus, parties gain a renewed right to appeal if they appeal within 30 days after the docketing of the revised judgment.

Judge Kevin F. Arthur, Finality of Judgments and Other Appellate Trigger Issues § 19 (The Maryland State Bar Association ed., 3d ed. 2018) (citing Gluckstern v. Sutton, 319 Md. 634, 651 (1990)). 6 DISCUSSION Standard of Review We review child custody determinations utilizing three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). The Court of Appeals described the three interrelated standards as follows: [W]e point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second,] if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless.

Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion. Id. (internal citations omitted). In our review, we give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

Id. at 584 . We recognize that it is within the sound discretion of the [trial court] to award custody according to the exigencies of each case, and . . . a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the [trial court] because only [the trial judge] sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in far better position than is an appellate court, which has only a cold Here, both Mother and Father’s motions to revise the trial court’s opinion were filed more than ten days, but less than thirty days, after the entry of the opinion. Accordingly, the filing of the motions alone did not extend the time for filing a notice of appeal.

Critically, however, the trial court granted Mother’s motion on June 30, 2020 and revised the earlier judgment “in some respect.” Id. This action by the trial court extended the time for filing of a notice of appeal to thirty days after the entry of this Order. Father filed his notice of appeal on July 24, 2020. Therefore, his appeal was timely filed. 7 record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.

Id. at 585–86. When a custody decision involves the interpretation of a statute, we “must determine whether the trial court’s conclusions are legally correct, and, if not, whether the error was harmless.” Gizzo v. Gerstman, 245 Md. App. 168 , 191–92 (2020) (citing Burak v. Burak, 455 Md. 564 , 616–17 (2017)). The trial court is vested with a broad authority in determining the admissibility of evidence. See Md. Rule 5-104(a).

This includes the authority to decide whether to admit certain testimony, and by what methodology. Bey v. State, 140 Md. App. 607, 623 (2001). We will only disturb a decision made within the discretion of the trial court “where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” In re Adoption/Guardianship No. 3598, 347 Md. 295 , 312–13 (1997) (internal citation omitted). We will not make our own determination as to a child’s best interest.

See Gordon v. Gordon, 174 Md. App. 583 , 637–38 (2007). Rather, “the trial court’s decision governs, unless the factual findings made by the [trial] court are clearly erroneous or there is a clear showing of an abuse of discretion.” Id. Generally, “[a] trial court’s findings are not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Azizova v. Suleymanov, 243 Md. App. 340, 372 (2019) (internal citation omitted). 8 I. The trial court properly considered Md. Code Ann., § 9-101.1 of the Family Law Article as an additional consideration related to its custody determination in conjunction with all other factors and did not improperly prioritize any factor over another. First, we turn to Father’s contention that the trial court improperly prioritized the protection of Mother in its custody determination.

Section 9-101.1 of the Family Article of the Maryland Code provides: (b) In a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against: (1) the other parent of the party’s child; (2) the party’s spouse; or (3) any child residing within the party’s household, including a child other than the child who is the subject of the custody or visitation proceeding. * * * (c) If the court finds that a party has committed abuse against the other parent of the party’s child, the party’s spouse, or any child residing within the party’s household, the court shall make arrangements for custody or visitation that best protect: (1) the child who is the subject of the proceeding; and (2) the victim of the abuse. Md. Code (1991, 2019 Repl. Vol.), § 9-101.1 of the Family Law Article. This provision contains the word “shall,” which means that compliance is mandatory.

See 75-80 Props., LLC v. Rale, Inc., 470 Md. 598 , 631–32 (2020) (citing Harrison-Solomon v. State, 442 Md. 254, 269 (2015)); see also Md. Rule 1-201(a). Therefore, the trial court was required by law to consider the abuse of a party against the other parent of the party’s child as an 9 additional consideration in its custody determination and “make arrangements to best protect the child and the victim of the abuse.” Gizzo, supra, 245 Md. App. at 197 ; see also Family Law § 9-101.1(c). Father’s contention relating to the trial court’s prioritization of the provision in Family Law § 9-101(c) over other custody determination factors is an issue of first impression before this Court.7 The legislative history of Family Law § 9-101.1 indicates recognition by the Legislature of a deep concern over the effect on a child of being in the maelstrom of any domestic violence within the home, including the abuse of adults and other children, whether or not those victims are related to the child whose custody or visitation is at issue. In re Adoption No. 12612, 353 Md. 209 , 236–37 (1999) (emphasis in original).

When enacting this statute, the legislature considered “the adverse effects on children from abusive households generally.” Id. at 237 . These effects include the psychological harm from witnessing violent behavior and the increased likelihood “that violence directed against others, including adults in the home, will eventually be directed against [the children] as well.” Id. “Abuse,” as used in the statute, includes “assault in any degree.” Md. Code (2001, 2019 Repl. Vol., 2020 Suppl.), § 4-501(b)(1)(iii) of the Family Law Article. 7 This Court recently issued an opinion in a case concerning the application of Family Law § 9-101.1. See Gizzo, supra, 245 Md. App. 168 .

Critically, in Gizzo, the issue before us was whether a trial court is required to specifically reference and acknowledge Family Law § 9-101.1 in its opinion to meet the requirement provided in the statute. See id. at 196–98. We held that specific reference to the statute was not necessary so long as it was obvious in the trial court’s opinion that the requisite factors were considered. Id. at 198–99. 10 The Court of Appeals and this Court have identified several factors for a trial court to consider when making a custody determination as to a minor child.

Taylor, supra, 306 Md. 290 ; Montgomery Cnty. Dep’t of Social Servs. v. Sanders, 38 Md. App. 406 (1978). Critically, the Court noted in Taylor that the factors described in these cases were not an exhaustive list and made it permissible for a court to consider “other factors” when making a custody determination. Taylor, supra, 306 Md. at 311 .

Indeed, “a trial court should carefully set out the facts and conclusions that support the solution it ultimately reaches.” Santo v. Santo, 448 Md. 620, 630 (2016). Here, the trial court received evidence that Father was abusive to Mother throughout the marriage. Further, the trial court found Mother’s testimony to be “extremely credible” and Father’s testimony “not credible.” “‘Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder.’” State v. Smith, 374 Md. 527 , 533–34 (2003) (quoting State v. Stanley, 351 Md. 733, 750 (1998)). The trial court noted in its Memorandum Opinion that Mother was subjected to abuse such as sexual assault, physical strikes, bites, and verbal rants.

Once the trial court made a finding that Mother, as the parent of the parties’ minor children, was subjected to abuse, the trial court was obligated to consider Family Law § 9-101.1 in its custody determination due to the mandatory nature of the provision. See Family Law § 9-101.1(c); Md. Rule 1-201(a). In its Memorandum Opinion, the trial court analyzed and explained in detail its findings regarding each of the required factors addressed in Sanders and Taylor. The trial court indicated that while many of the factors did not weigh in favor of either party, five of the factors weighed in favor of Mother.

The trial court indicated that both parents love 11 their children and have good relationships with them. Critically, the trial court found that Father repeatedly attempted to “portray [Mother] as being mentally unstable” and refused to truly accept responsibility for his role as the aggressor in the relationship. The court further noted the importance of the violent incident between Father and Mr. D. that occurred in full view of W. The trial court also expressed concern over the repeated encouragement from Father to A. to strike and physically assault her younger brother and Mother. The very last consideration recognized by the trial court concerned the effect of Family Law § 9-101.1 on its custody determination.

Indeed, the court indicated its discussions of spousal abuse and expressly found that Father had committed abuse against Mother. By making this determination, the trial court considered the protection of both the minor children and the victim of the abuse, Mother. See Family Law § 9-101.1(c). While noting that Father had taken steps to address the intimate partner violence that occurred in the marriage, the trial court determined that there had been no evidence presented of continued abuse since the parties’ separation.

The court further noted that the parties’ inability to communicate effectively was a direct result of the violence suffered by Mother at the hands of Father. Therefore, in order to protect both the minor children and Mother, the court did not find it appropriate for joint legal custody in this case. This decision, the court noted, would protect Mother from any further abuse or coercive control by Father. Nevertheless, the trial court required that Mother notify and advise Father of all events concerning the children. 12 Regarding physical custody, the trial court awarded primary physical custody to Mother, with Father having unsupervised visitation every other weekend and once or twice a week, depending on whether school was in session.

Critically, the trial court ordered that the exchanges occur at a police precinct or any other public location agreed upon by