Kalman v. Fuste

MATRICCIANI, J. On July 31, 2008, the Circuit Court for Frederick County awarded appellee, Jose Fuste (“Father”), an absolute divorce from appellant, Janet Kalman (“Mother”). The court granted the parties joint legal custody of their Daughter and granted Mother primary physical custody, with Father to have liberal visitation. Despite Mother’s relocation to Florida with Daughter, the parties continued to litigate custody disputes in Maryland. On January 20, 2011, Father filed a petition to modify his visitation with Daughter in the Circuit Court for Montgomery County.

On April 13, 2011, Mother filed a petition to modify custody, also in Montgomery County, along with her answer to Father’s petition to modify visitation. The circuit court conducted a scheduling hearing on May 2, 2011, where it set a merits hearing on the modification petitions for August 29, 2011. Just prior to the August 29 merits hearing, Father filed an Emergency Motion for Custody with an accompanying affidavit asserting that Mother had been arrested in Florida and charged with felony possession of a controlled dangerous substance (the drug hydrocodone) with intent to distribute. Mother did not respond to this motion, but a circuit court judge granted the motion the day it was filed, pending the outcome of the hearing on August 29, 2011.

Mother appeared with counsel for the hearing on August 29 and challenged the Maryland court’s continuing jurisdiction over Daughter’s custody, as well as the basis for emergency jurisdiction. A second judge found that the Circuit Court for Montgomery County had continuing jurisdiction over Daughter and concluded that the Mother’s legal troubles in Florida created an emergency requiring a modification in custody. The court awarded Father temporary sole legal and physical custody of Daughter, with reasonable visitation for Mother and Daughter’s grandparents, pending the outcome of further custody proceedings. The court set a status conference for November 30, 2011, to reevaluate the parties’ situations.

The ³⁹³ judge suggested that one of the parties would have to file a complaint in order to obtain a “final custody” hearing. Mr. Fuste did that on September 6, 2011. On October 3, 2011, Ms. Kalman noted an appeal from the temporary custody order dated September 2, 2011. Questions Presented Appellant’s brief presents three questions for our review, which we have combined into two as follows: I. Did the circuit court err when it held that it had continuing exclusive jurisdiction to entertain appellee’s emergency motion without determining whether the jurisdictional requirements of FL § 9.5-202(a) were satisfied?

II

Did the circuit court err in finding that the unstable circumstances of appellant in Florida constituted an emergency requiring a temporary modification of child custody? For the reasons that follow, we answer yes to both questions, we vacate the judgment of the circuit court, and we remand for further proceedings. Factual and Procedural History The parties were married in 1997 and resided in Maryland until Mother became pregnant with their child. At that point the parties separated and Mother moved to Florida, where she gave birth to Daughter on July 14, 2006.

The parties finalized their divorce in the Circuit Court for Frederick County in July of 2008, agreeing that Mother would be Daughter’s primary physical custodian and that Father would retain the right to liberal visitation. Mother raised Daughter in Florida with the help of Daughter’s maternal grandmother and paternal grandparents. Father visited three to four times each year until 2011, when he began visiting monthly. Prior to the events of this case, Daughter had spent only one week in Maryland, on the occasion of her fifth birthday in July of 2011. ³⁹⁴ On August 14, 2011, Daughter was with Father’s parents when Florida police detained Mother on a charge of shoplifting.

The arresting officers found in her possession a bottle of hydrocodone whose prescription label bore someone else’s name. Mother was arrested and charged with theft and drug trafficking, held overnight, and released on her own recognizance. When Father learned of Mother’s arrest, he decided to remove Daughter to Maryland. He traveled to Florida and told Mother that he and his parents would watch Daughter overnight on August 23, 2011, while Mother finished moving into a new residence.

That evening, Father returned to Maryland with Daughter, and the next day filed an emergency motion for custody in the Circuit Court for Montgomery County. In an affidavit supporting his motion, Father stated that he believed Mother was using and possibly selling drugs and would abscond with Daughter to Switzerland, where Mother is also a citizen. Father averred that Mother had been terminated from her employment and could lose her license to practice nursing, and that she was residing with her sister, who had two pending theft charges, and with “a live-in boyfriend who has a prior drug conviction.” Father stated that Mother’s “arrests are a drastic change in [her] behavior which makes me very concerned for the safety and well-being of my [daughter].” The circuit court granted Father temporary sole custody of Daughter, pending a hearing on the merits of his emergency motion. On August 29, 2011, the parties appeared before the court for that hearing, where Father testified to the foregoing facts. 1 Mother moved for judgment at the close of Father’s case, arguing in part that the court lacked emergency jurisdiction over the matter.

The court rejected Mother’s argument: ³⁹⁵ [COUNSEL]: [T]here’s been no indication of any emergency with [Daughter], There’s been no indication that there has been any harm to the child or an impending harm. THE COURT: The Mother has been charged with a felony drug charge and you don’t consider that an emergency or harm? [COUNSEL]: Harm to the child? Not at this time, no sir. THE COURT: No?

I do. Mother then took the stand and testified that on the night of her arrest, she had finished shopping and wanted to rent a movie from an automated kiosk at the store’s entrance; in attempting to do so, she took her shopping cart past the checkout lines, which led to her being accused of shoplifting. Mother further testified that she had accidentally brought home a dead patient’s hydrocodone from her work as a hospice nurse, and she had it in her purse only so that she could destroy it later that night, at work. Father introduced a printout of a commercial website showing that Mother had been arrested twice before, once in 2008 and once in 2009.

Mother testified that in 2009, Daughter had an accident in a store, and when Mother hastily left to change Daughter’s clothes, she unintentionally carried out a pair of the store’s underwear. Mother averred that the charges were dropped, and Father introduced no evidence of a conviction. Mother had earlier testified that this was her only prior arrest; when confronted with the computer printout showing an arrest in 2008, she stated that she did not remember that occurrence. Mother testified that she was fired after her most recent arrest because company policy forbade possession of patients’ drugs outside of the workplace; but Mother stated that she had found a better-paying job with a firm that will hire her as long as she is not convicted of drug trafficking.

Mother introduced the results of random drug tests that had been conducted for her job—including one from two days after her arrest—none of which indicated the presence of narcotics. ³⁹⁶ Mother also testified that she had been denied communication with Daughter since her removal to Maryland. In his closing argument, counsel for Father reviewed the evidence and argued that the court should temporarily grant sole physical and legal custody to Father: [Father is] very concerned that either Ms. Kalman has a drug problem or something is going on in her life that is going to take a registered nurse, a person in a highly respected career and have them be arrested two, three times for petty theft and now a petty theft with unexplained prescriptions in her pocketbook. Those factors gave Mr. Fuste a good faith basis to believe that his daughter was not being cared for in the best manner possible. [S]he’s facing a very serious felony charge in Florida for prescription drug fraud. That can have negative consequences for her in a couple of critical ways as it affects [Daughter], as Your Honor knows, a felony, incarceration possible.

Also, even if she does a sentence, as Your Honor knows, many felonies get pled out to something less. If she ends up with a lesser charge and she’s on probation she still very well could lose her, her medical license so that she still has real factors that are negatively impacting on her life. But what we are saying is Your Honor, at this stage we don’t know what’s going to happen with Ms. Kalman. She may prevail on all charges and might come back in and make an argument that she is the fittest parent in the room and that may well be the case, Your Honor.

But at this present juncture, I don’t think that she can say that she’s in, on par with her ex-husband. She’s got serious felony charges. She runs the risk of everything that I just suggested, even in addition to the possible easy out of going to Switzer ³⁹⁷ land which she’s denied. It’s a concern, Your Honor, but the primary concern is the best interest of the child.

The best interest of [Daughter], we believe Your Honor in the short term, would be to leave her with her Father. Ms. Kalman doesn’t even have a trial date yet, she has an arraignment set for September. I was going to suggest that we come back in 90 days, Your Honor. We would ask that [Father] remain with custody, we can provide the Court with progress reports, give mom unlimited access in terms of skyping and telephone, things like that.

If she wants to come up to Maryland, dad is fine with her exercising her visitation. I’m not going to say, you know, she needs to be supervised given her representations to the Court, but Your Honor, we think that what would be worse [is] for [Daughter] to go back to Florida. Let’s assume Your Honor doesn’t feel that there’s sufficient evidence at this stage and [Daughter] goes back to Florida, and then mom has a negative turn of events at the Florida courts, Your Honor. Or, even if she gets probation dates, take her license, that’s going to cause Mom additional financial hardship and she’s, what if she can’t afford to take care of her daughter?

That’s going to be more stressful for [Daughter] to go back to Florida and then possibly have to come back up here and dad kind of pull [Daughter] out of the fire so to speak. Counsel for Mother again argued that the court should grant judgment for lack of emergency jurisdiction and proffered that Mother would pursue the matter in Florida on her own accord: My client has indicated that she will ask the State of Florida[,] which is the child’s proper home state[,] to become involved and to solidify the custody order down there. She’ll be asking for legal as well as physical custody. And Florida is also the appropriate place for Mr. Fuste to be asking for custody.

The emergency will arise out of a ³⁹⁸ conviction. If an arrest is grounds for a change in custody, that is for the State of Florida to decide. The court stated its ruling on the record, finding that Mother’s explanation of her arrests were not credible and that the court had jurisdiction over the parties’ custody dispute: This Court had jurisdiction, continues to have jurisdiction of those matters. That’s the reason why a petition as to modify were filed including your client, Ms. Kosak.

And there is not an existing case in Florida, there has been and continues to be an existing case in the State of Maryland. So one, this Court finds that it has jurisdiction in light of that, and secondly, I do find this to be an emergency situation because of the circumstances that clearly this child would be subjected to abuse under certain circumstances that could occur and have already occurred in this case. But for the fact that she had the defendant’s parents that were available to her she would have been in jail.[ 2 ] Mother subsequently noted this appeal, and at argument the parties informed us that proceedings in Florida have been initiated and are stayed pending resolution of the instant action. Discussion I. Continuing, Exclusive Jurisdiction Jurisdiction over child custody matters is governed by the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“the Act”), Maryland Code (1984, 2006 Repl.Vol.), §§ 9.5-101 to 9.5-318 of the Family Law Article (“FL”). 3 The existing custody order in this case was issued by a Maryland court and was consistent with the Act; thus, Family Law ³⁹⁹ § 9.5-202(a)(1) governs and provides that the circuit court has “exclusive, continuing jurisdiction” over the determination of Daughter’s custody “until a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationships[.]” 4 (Emphasis added.) See also Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) § 201 cmt.

(Draft 1997) (“[E]ven if the child has acquired a new home State, the original decree State retains exclusive, continuing jurisdiction, so long as the general requisites of the “substantial connection” jurisdiction provisions of Section 201 are met. If the relationship between the child and the person remaining in the State with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.”). 5 ⁴⁰⁰ Mother argued before the circuit court that Daughter had resided in Florida since her birth and that Daughter’s only connection to Maryland was her father’s residence and the one week of her life which she spent here, and that substantial evidence was not available to the court. 6 Rather than ruling on whether it did or did not have the required “significant connections” or “substantial evidence” to exercise continuing jurisdiction, 7 the circuit court presumed that it had continuing, exclusive jurisdiction over the custody dispute because Maryland was the decree state and the parties continued to litigate their divorce and its related matters in Maryland. 8 This, however, was an error of law. ⁴⁰¹ Under the Act, parties cannot confer jurisdiction upon the court by consent. UCCJEA § 201 cmt. (“[A]n agreement of the parties to confer jurisdiction on a court that would not otherwise have jurisdiction under this Act is ineffective.”); M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala.Civ.App.2008); Stauffer v. Temperle, 794 N.W.2d 317, 322 (Iowa App.2010); Friedman v. Eighth Judicial Dish Court of Nev., 264 P.3d 1161, 1167 (Nev.2011); Kelly v. Kelly, 806 N.W.2d 133, 138-39 (N.D.2011); In re Parentage of Ruff, 168 WashApp. 109, 118, 275 P.3d 1175 (Wash.App.2012).

Further, to hold that ongoing custody proceedings themselves create a “significant connection” satisfactory of § 9.5-202(a)(l) would introduce a circular definition of jurisdiction and defeat the principles embodied in the law by its drafters, the National Conference of Commissioners on Uniform State Laws, whose comments inform us that the Act should be interpreted so as to: (1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being; (2) Promote cooperation "with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child; (3) Discourage the use of the interstate system for continuing controversies over child custody; (4) Deter abductions of children; (5) Avoid relitigation of custody decisions of other States in this State; (6) Facilitate the enforcement of custody decrees of other States; ⁴⁰² UCCJEA § 101 cmt. (1997); Paltrow v. Paltrow, 283 Md. 291, 293 , 388 A.2d 547 (1978). 9 Finally, FL § 9.5-202(a)(1) grants Maryland continuing, exclusive jurisdiction over the dispute until the circuit court determines that this state lacks significant connections or substantial evidence. It is not the intent of the Act, however, to postpone those determinations and thereby extend continuing jurisdiction indefinitely, for this also would defeat the Act’s purposes. Although the circuit court retained continuing, exclusive jurisdiction over Daughter’s custody until it found that the requisites of FL § 9.5-202(a) were not satisfied by the facts of the case, the court erred when it presumed, that it retained jurisdiction simply because of the parties’ history of litigation in Maryland.

This error would have been rendered harmless if the circuit court had other grounds for jurisdiction, but as we now explain, it did not.

II

Temporary Emergency Jurisdiction Having failed to determine whether Maryland passed the “significant connection” or “substantial evidence” tests of FL § 9.5-202(a)(l), the trial court’s judgment could yet be upheld if it correctly ruled that it had temporary emergency jurisdiction under the Act. For the reasons that follow, we hold that it did not, and we therefore remand the case for further proceedings. Section 9.5-204(a) of the Act grants a Maryland court “temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened ⁴⁰³ with mistreatment or abuse.” Admittedly, our cases do not provide much guidance on what constitutes an “emergency.” Sometimes circumstances that appear to rise to an emergency situation in one judge’s judgment will not even gain a hearing before another court. But where the circuit court has entered a child custody order either by agreement of the parents or following an evidentiary hearing, it should not be subject to sudden modification based solely on the subjective judgment of another judge that an emergency justifies it, without some requisite fact finding.

Our question, then, is whether the facts of this case constitute actual or threatened “mistreatment or abuse” under FL § 9.5-204(a). This is a matter of statutory interpretation, which we address with the following rubric: [T]he paramount rule of statutory construction is to ascertain and effectuate the intent of the legislature. The starting point in the first instance is the plain language of the statute. We view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.

If the words of a statute are clear and unambiguous, our inquiry ordinarily ends and we need investigate no further, but simply apply the statute as it reads. We neither add nor delete words to an unambiguous statute in an attempt to extend the statute’s meaning. We interpret statutes to give every word effect, avoiding constructions that render any portion of the language superfluous or redundant. Gillespie v. State, 370 Md. 219, 221-22 , 804 A.2d 426 (2002) (internal citations and quotation marks omitted). “If ... the meaning of the plain language is ambiguous or unclear, we seek to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes on which the statutory framework was based.” Lewis v. State, 348 Md. 648, 653 , 705 A.2d 1128 (1998).

Further, when the statute to be interpreted is part of a statutory scheme, we read it in context, together with the other statutes on the same subject, harmonizing them to the extent possible. ⁴⁰⁴ Mid-Atlantic Power Supply Ass’n v. Pub. Serv. Comm’n, 361 Md. 196, 204 , 760 A.2d 1087 (2000). Finally, we