Jordan v. Jordan

Liss, J., delivered the opinion of the Court. Robert F. Jordan and Linda S. Jordan, appellant and appellee, respectively, were married on June 15, 1963 in Hartford, Connecticut. In September of 1976 the parties separated voluntarily and on November 17, 1977, executed a separation and property settlement agreement, under the terms of which they agreed that the custody of their two minor sons, Christopher, born December 12, 1966, and Garrett, born August 31, 1972, was to be with the mother. The agreement provided, inter alia, for detailed visitation rights by the father and the mother agreed that the father was to have "free access and unhampered contact with the children.” The parties were subsequently divorced by a decree a vinculo matrimonii on April 28, 1978.

The separation and property settlement agreement was merged into the divorce decree. Both minor children thereafter resided with their mother in the former marital home in Potomac, Maryland. The appellant remarried and moved to Darien, Connecticut. Subsequently, Christopher had moved by his own request and by agreement of the parties to the custody of the appellant in Connecticut, while Garrett remained with his mother in Maryland.

Although, as was perhaps to be expected, some friction arose in the implementation of the father’s visitation rights with the younger child, no serious problem occurred until September 1,1979, when the appellant filed a petition for custody of both minor children and for other relief including prayers that: (1) the Circuit Court for Montgomery County ratify the then existing custody of the minor child Christopher in the appellant; (2) the appellee be enjoined from removing either of the said minor children from their ⁴³⁹ respective places of abode in Connecticut and Maryland except for the implementation of visitation rights until the matter of custody had been finally determined by the court; (3) the court pass an appropriate order as to visitation rights; (4) the court make an appropriate award for support of the minor children; (5) the court award the appellant counsel fees; (6) the case be advanced for hearing; and (7) the court grant the appellant such other and further relief as the court deemed just and proper. On the same date the bill of complaint was filed, the chancellor signed an ex parte order granting custody of Christopher to the appellant, enjoining the appellee from removing either of the children from their respective places of abode, except for visitation until the controversy had been finally adjudicated, and ordered the existing plan for visitation to continue. On November 26, 1979, appellee filed an answer to appellant’s petition in which she prayed: (1) the court to dismiss appellant’s bill of complaint; (2) that the injunction and order of September 11, 1979 be dissolved; (3) that all costs and legal fees incurred by appellee be paid by the appellant; and (4) for such other and further relief as the court might deem just and proper. On May 5, 1980 appellant filed a supplemental amended petition in which he requested the court to grant the relief prayed in the original petition and grant him custody of both minor children with appropriate rights of visitation reserved to the appellee.

On October 14, 1980, after a series of hearings extending over a period of several months, the chancellor ordered that the injunction previously issued against the appellee be dissolved effective October 17,1980. Appellant noted an appeal on October 16,1980. On the same date appellant filed a petition to stay operation of the chancellor’s interlocutory order dissolving the injunction previously issued on September 11, 1979, pending the disposition of the appeal to this Court. An answer to this petition was filed by the appellee and the petition to stay was heard by this Court on October 17,1980.

We ordered that the appellant’s motion to stay the chancellor’s order of October 14, 1980 dissolving the injunction previously entered ⁴⁴⁰ against the appellee be granted with the additional provision that the stay remain in effect until the issues on appeal were resolved in this Court. On October 31, 1980, the chancellor signed an order dissolving the injunction entered on September 11, 1979 (effective October 17,1980); granting custody of Christopher to the appellant; reserving reasonable visitation rights to the appellee; denying appellant’s request for change of custody of Garrett; allowing the appellee to move outside the United States with Garrett; permitting appellant visitation with Garrett both in and outside the United States; accepting the parties’ stipulation concerning support for the minor child; ordering the appellant to pay the appellee $2,225 as suit money; ordering the appellant to pay appellee $20,000 in counsel fees and court costs; ordering that the award of counsel fees and court costs be paid from appellant’s share in the proceeds of the sale of the marital home, when sold; and denying appellant’s petition for contempt. Appellant seasonably filed an appeal to this Court from the order of October 31, 1980. On December 2, 1980 a revised order was issued by the chancellor exactly duplicating the order of October 31, 1980, except that the trial court’s prior order of October 31, dissolving the injunction entered against the appellee on September 11, 1979, was made subject to this Court’s order of October 17,1980 that stayed the effect of the dissolution pending the resolution of the appeal to this Court.

From the judgments as set out in the chancellor’s revised order of December 2, 1980 this appeal has been seasonably filed. Appellant has raised five issues to be decided by this appeal: I. Whether the chancellor erred as a matter of law when he awarded custody of Garrett Jordan to the appellee in the absence of any finding by the chancellor that such an award would be in the best interests of the child?

II

Whether the chancellor erred as a matter of law when he found that the appellant had not shown that a change of circumstances had occurred which justified the transfer of Garrett Jordan’s custody from the appellee to the appellant? ⁴⁴¹ III. Whether the chancellor abused his discretion by keeping the custody of Garrett Jordan separate from that of his brother Christopher?

IV

Whether the chancellor abused his discretion when he awarded custody of Garrett Jordan to the appellee in a manner that drastically reduces, without justification, Garrett’s and appellant’s rights of visitation with each other and impinges harmfully on Garrett’s relationship with his brother Christopher, by allowing the removal of Garrett 8,000 miles away to South Africa? V. Whether the chancellor erred in awarding an attorney’s fee of $20,000 to the appellee when (a) the only proof of any fee was in an amount almost $1,000 less than that awarded, (b) the amount of time billed was substantially inflated and (c) no part of the total fee was charged to appellee herself although her independent financial earning power was not disputed? I., II., and IV. We shall consider these three issues raised by this appeal together.

Appellant concedes that he has the burden of showing that strong reasons exist for changing the child’s custody. See Vernon v. Vernon, 30 Md. App. 564 , 354 A.2d 222 (1976). He also, at least tacitly, agrees that a custody determination by a chancellor below is not reversible unless against the manifest weight of the evidence or "clearly contrary” to the best interests of the child. See Feldman v. Feldman, 55 Mich.

App. 147 , 222 N.W.2d (1974). As Judge Digges said, in Davis v. Davis, 280 Md. 119 , 372 A.2d 231 (1977): [I]t is within the sound discretion of the chancellor to award custody according to the exigencies of each case, [citation omitted] and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. [ 280 Md. at 125 ]. ⁴⁴² The reason why the chancellor is vested with such broad discretion is: [B]ecause only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor. [Id., at 125]. The Court of Appeals reaffirmed the standards enumerated in Davis, supra, in Ross v. Hoffman, 280 Md. 172 , 372 A.2d 582 (1977), wherein it said: It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused. [280 Md. at 186], It is clear from our reading of the extensive testimony included in the several volumes of the record extract filed in support of this appeal that the appellant had no serious complaint concerning the care furnished Garrett by his mother until he was advised that the appellee was contemplating marriage to her fiancé and was proposing to move to South Africa with her husband and the child for a comparatively long period of time.

It is not seriously contended that Garrett, at the time of the filing of the petition for custody, was not a happy, healthy, well adjusted child. At no point in the course of these long and drawn out proceedings has the appellant suggested that the mother is not a proper person to have the care and custody of Garrett. Appellant urges that the suggested removal of Garrett to South Africa is in and of itself a sufficient change in circumstances to justify a change in custody. We do not agree.

This Court, in Sartoph v. Sartoph, 31 Md. App. 58 , 354 A.2d 476 (1976) (Davidson, J.) discussed the circumstances under which a change in custody should be considered: ⁴⁴³ The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, the change in conditions must have occurred which affects the welfare of the child and not that of the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests. [Footnotes omitted]. [ 31 Md. App. at 66-67 ].

The burden is on the appellant, who affirmatively seeks action by the chancellor in changing the custody of the minor child, to show why the court should take that action, and, if he fails to meet that burden, the action should not be taken. See McAndrew v. McAndrew, 39 Md. App. 1 , 382 A.2d 1081 (1978). Appellant complains bitterly that the chancellor, in rendering his oral opinion, failed to mention that he was making his decision "in the best interests of the child” and that the failure to enunciate these magic words indicated that the chancellor’s decision was clearly erroneous. We do not agree.

We note that we said in Hebb v. State, 31 Md. App. 493, 499 , 356 A.2d 583 (1976): Judges are presumed to know the law. Samson v. State, 27 Md. App. 326, 334 , 341 A.2d 817, 823 (1975). See Schowgurow v. State, 240 Md. 121, 126 , 213 A.2d 475, 479 (1965). Absent an indication to the contrary, we must assume that judges apply the law correctly to the case before them.

That the chancellor in this case was well aware of the legal nuances of this hotly contested custody battle is evidenced from a portion of his oral opinion in which he called attention to the original separation agreement between the parties. He noted that the separation agreement provided: ⁴⁴⁴ [T]he best interests and welfare of the parties’ children are of paramount consideration for both of them. They should make every effort to foster the respect and love of the children for each other and shall do nothing which in any way would estrange the children from the other party and each shall exert every reasonable effort to retain free access and unhampered contact between the children and each of the parties. Although the chancellor did not specifically state in his opinion that his conclusion was based on what he perceived to be the best interests of the child, a review of the entire record extract and his lengthy opinion convinces us with unmistakable clarity that he was not clearly erroneous in his implicit application of the "best interest of the child” standard.

Appellant argues vigorously that the chancellor failed to give adequate consideration and weight to the testimony of appellant’s witnesses concerning the "horrifyingly un-American way of life” in the society of South Africa to which it was proposed to introduce young Garrett in his pre-adolescent years. Appellant charges that by his decision in this case, the chancellor erred because he implicitly held that the Union of South Africa, "a State whose governmental and legal system is utterly antithetical to that of the United States, is a fine place to bring up an American boy because he would enjoy material wealth there and because appellee’s fiancé approves of it.” We consider this attack on the chancellor a "cheap shot.” The record extract amply demonstrates that the chancellor gave both sides in this dispute wide latitude in introducing into evidence the opinions of experts as well as other witnesses as to the kind of society which would be found in South Africa. That he weighed this testimony carefully is demonstrated by that portion of his opinion in which he stated: I do not find from the testimony in this case that there is an effort on the part of Mrs. Jordan to ⁴⁴⁵ eradicate the child from his American heritage. I find only for a limited period of time that Mrs. Jordan and perhaps her new husband, if she elects to marry him, will be living in the Union of South Africa whose policies I hardly approve of, but simply because I disapprove of them, that in and of itself is not sufficient reason for me to forbid her from taking the child to that state, and I expressly say in my order that her custody is not limited to her remaining in the United States, but that she may follow the dictates of her own happiness and marry if she so chooses, and she has custody of Garrett Jordan pending further order of this Court.

I find nothing of her action that is an attempt to deprive this child of his right to American heritage. I believe that she will see to it that this child remembers this country, remembers the teachings of our democratic republic, and that when he returns, as I fully anticipate he will, he will be back into step with the thinking, with the feeling, and with the teachings of his heritage. I do not believe that there is any particular danger that has been demonstrated by the evidence. There is nothing in the testimony of the expert witnesses that indicates that this child is going to be harmed by a sojourn that he has in South Africa.

I think the most poignant part of the testimony of Mr. Carlson was that when he was asked how many white, and perhaps he should have been asked foreign bom boys of the age of eight years have been arrested for violation of the Terrorism Act, his answer was he knows of none, and this is a strawman that has been raised solely to panic the Court into feeling that his residence in South Africa is going to visit upon him an untold hardship, and his custody shall remain in the hands of Mrs. Jordan subject to the right of Mr. Jordan to have reasonable visitation, and that reasonable visitation I define as being no less than one month during every calendar year. That month to ⁴⁴⁶ be during that portion of the year when he is having his vacation from his schooling. His father shall have the right of such further visitation as he may reasonably elect to have. He may visit