Karanikas v. Cartwright

BERGER, J. This case involves an appeal from orders entered in the Circuit Court for Anne Arundel County. The orders awarded sole legal and physical custody of the parties’ nine-year-old child (“the child”) to appellee, Rachel Karanikas Cartwright (“Mother”), and ordered Konstantinos Karanikas (“Father”) to pay child support to Mother. This appeal followed. Father presents three questions for our review, which we have rephrased as follows: 1.

Whether the circuit court abused its discretion by denying Father’s motion to disqualify the trial judge. 2. Whether the trial judge abused his discretion due to the manner in which he conducted an interview with the parties’ daughter. 3. Whether the circuit court abused its discretion in granting the award of child support. For the reasons set forth below, we affirm the judgments of the Circuit Court for Anne Arundel County.

FACTUAL AND PROCEDURAL BACKGROUND Mother and Father are the parents of a nine-year-old daughter (“the child”), born on July 7, 2003. The parties are also the parents of a son, who is emancipated by reason of age, and is not a subject of the present litigation. Pursuant to the parties’ consent order and judgment of divorce, they were awarded joint legal custody of the child. In the event of a conflict with regard to long-range decisions, the parties were required to participate in mediation.

Mother was awarded primary physical custody of the child, and Father received a specific visitation schedule. The consent order and judgment of divorce also awarded Mother use and possession of the marital home for a period of four years. During Mother’s use and possession, she was ordered to pay the mortgage, taxes, and interest payment for the marital home. Mother’s use and possession period expired on October 5, 2012. ⁵⁷⁶ The child had resided in Maryland her entire life.

She attended Oak Hill Elementary School in Severna Park, Maryland. On March 1, 2012, Mother sent an e-mail to Father indicating that she intended to relocate to Pennsylvania with the child after the end of the school year. Father did not consent to the relocation. Thereafter, the parties participated in mediation, but were unable to reach an agreement regarding the relocation of the child.

Both parties filed pleadings with the circuit court requesting a modification of the consent order and judgment of divorce with regard to custody and visitation. The circuit court scheduled an expedited trial to address the relocation of the child. Both parties appeared at a pre-trial hearing, propounded and responded to written discovery requests, and participated in depositions. The relocation trial was scheduled for September 7, 2012.

On August 1, 2012, during the pendency of the litigation, Mother registered the child to attend a public school in Pennsylvania. Upon notification of the school registration, Father requested a temporary restraining order and other injunctive relief in the circuit court. The circuit court denied Father’s request for a temporary restraining order. Further, the court entered a pendente lite order prohibiting the child’s registration in school in Pennsylvania, and required the child to start the school year in Maryland until further order of the circuit court and completion of the relocation trial.

Accordingly, the child began school at Oak Hill Elementary in Maryland in August 2012. The trial began on September 7, 2012. Father’s counsel alerted the trial court that he planned to have the child testify either in open court or in chambers. At the conclusion of the first day of trial, the trial judge met with the child in chambers.

The trial was not completed on September 7, 2012, and was continued to September 12, 2012. At the beginning of the second day of trial, Father presented an oral motion to disqualify the trial judge, accompanied by a written memorandum of law in support of his motion. ⁵⁷⁷ Father alleged that the trial judge had demonstrated bias due to comments he made regarding testimony on the first day of trial. Additionally, Father alleged that the trial judge conducted the child interview inappropriately. Father argued that these actions required disqualification of the trial judge.

The trial judge initially entertained counsel’s argument on the motion for disqualification. At the close of counsel’s argument, the trial judge referred the motion to another judge for a ruling. As a result, the parties and counsel went to the second judge’s courtroom for a determination of the motion for disqualification. The second judge denied the motion for disqualification based upon her review of the written motion and memorandum of law.

The second day of trial proceeded before the original judge. Mother and Father testified regarding their financial resources and expenses. It was undisputed at the trial that the Maryland child support guidelines did not apply because the parties’ combined gross monthly income exceeded the guidelines. At the conclusion of the trial, the trial judge held the ease under advisement and indicated that his decision would be forthcoming.

Father’s counsel made an oral motion to stay any order to be issued by the trial judge in the event that the child was relocated to Pennsylvania. The trial judge did not rule on the motion to stay. On September 13, 2012, the trial judge signed a Memorandum and Interim Custody Order relocating the child from Maryland to Pennsylvania. The order required the child to relocate to Pennsylvania on September 15, 2012.

The trial judge faxed copies of the order to counsel the same day, but the order was not entered or docketed by the clerk. Father’s counsel called the trial judge’s chambers to inquire when he could be heard on the motion to stay that had been made in open court at the conclusion of the trial. Subsequently, Father’s counsel was informed that the trial judge decided to hold Father’s oral motion to stay under advisement, that the trial judge would not hear counsel’s argument on the motion to stay, and that a decision on any open issues in the ⁵⁷⁸ case, including the motion to stay, would follow in a further written order. On September 14, 2012, Father filed a Notice of Appeal and Emergency Motion for Injunction Pending Appeal.

At this time, the interim custody order had not yet been entered on the docket. This Court granted Father’s request in part, entering a temporary stay and setting a deadline for Mother to file any written response to Father’s motion. On September 17, 2012, the custody order was released from chambers to the clerk’s office for docketing. On September 17, 2012, the trial judge signed and entered a Custody, Visitation, and Support Order and an Order for Sale of Property.

This order modified custody, and awarded Mother sole legal and sole physical custody of the child, with a specific visitation schedule for Father. The order also required Father to pay child support to Mother in the amount of $2,883. The order further mandated that Father pay the mortgage and all associated expenses for the former marital home until it was sold. That same day, Father filed his second notice of appeal, appealing the following orders: the interim custody order entered on September 17, 2012; the custody, visitation, and support order docketed on September 17, 2012; the presiding judge’s refusal to disqualify himself from the case; and the second trial judge’s denial of Father’s motion for disqualification of the presiding trial judge.

Subsequently, after the case concluded, the trial judge disqualified himself from the case. DISCUSSION I. Motion for Disqualification Father’s first argument on appeal is that the trial court abused its discretion by refusing to disqualify the presiding trial judge on the basis of comments the trial judge made during testimony, and his handling of the interview of the child. In Father’s view, the behavior demonstrated bias, established the perception that the trial judge was not impar ⁵⁷⁹ tiai, and constituted a failure to uphold and apply the law. Mother responds that the judge’s conduct did not rise to the level that a reasonable person would perceive as improper or impartial.

We agree that the trial court did not abuse its discretion in denying Father’s motion for disqualification. A Maryland judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned ...” Md. Rule 16-813, Md.Code of Judicial Conduct Rule 2.11(a) (the “Rules”). Similarly, “[a] judge shall avoid conduct that would create in reasonable minds a perception of impropriety.” Rule 1.2(b). Impartiality under the Rules means the “absence of bias or prejudice in favor of, or against, particular classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” Rules, Section B. Further, a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” Rule 1.2(a).

The Rules also require that judges “uphold and apply the law and shall perform all duties of the office impartially and fairly.” Rule 2.2. Accordingly, “[a] judge shall not, in the performance of judicial duties, by words or conduct, manifest bias, prejudice or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” Rule 2.3. “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, court staff, court officials, and others with whom the judge deals in an official capacity ...” Rule 2.8. “When bias, prejudice or lack of impartiality is alleged, the decision is a discretionary one ...” Surratt v. Prince George’s County, 320 Md. 439, 465 , 578 A.2d 745 (1990). A “trial judge is presumed to know the law and apply it properly.” State v. Chaney, 375 Md. 168, 180 , 825 A.2d 452 (2003) (quotations omitted). The person seeking recusal bears a “heavy burden to overcome the presumption of impartiality.” Atty.

Grievance Comm’n v. Blum, 373 Md. 275, 297 , 818 A.2d 219 (2003). See also Reed v. Baltimore Life Ins. Co., 127 ⁵⁸⁰ Md.App. 536, 556 , 733 A.2d 1106 (1999) (citing Jefferson-El v. State, 330 Md. 99, 107 , 622 A.2d 737 (1993)) (“Maryland adheres to a strong presumption that a trial judge is impartial, thereby requiring a party requesting recusal to prove that the judge has a bias or prejudice derived from an extrajudicial-personal-source.”). We review a trial court’s recusal decision pursuant to an objective standard; namely, “[wjhether a reasonable member of the public knowing all of the circumstances would be led to the conclusion that the judge’s impartiality might reasonably be questioned.” In re Turney, 311 Md. 246, 253 , 533 A.2d 916 (1987).

A. Bias and Lack of Impartiality Father cites several instances in which the trial judge allegedly demonstrated bias and lack of impartiality due to comments he made regarding the testimony of Father and Father’s wife, Deanna Karanikas (“Step-Mother”). i. Father’s Testimony Father first alleges that he attempted to testify about a suggestion to Mother that the parties extend Mother’s use and possession period in the former marital home and that Father would continue to pay the mortgage. Mother’s counsel objected, characterizing the discussion as a settlement negotiation. Father’s counsel responded to the objection.

The trial judge replied: “It’s either a settlement offer or nonsense.” Mother argues that this comment is taken out of context, and provides the following complete citation for reference: That is a negotiation of some kind. I think the relevant, admissible and important part of that is that the Court has previously indicated that she would have exclusive use and possession of the house. Now, of course, the Court can’t chain somebody to a house, but she was given that right through October, and she moved out in what would seem about June. Now, I’ll let you explain to me at the end of the case why that’s relevant, but the fact that he might have offered some—it sounds like a bit like a hyperbole to say, ⁵⁸¹ ‘I’ll pay you to be there 10 years from now.’ It’s either a settlement offer or nonsense, so in any event, it’s stricken.

And I’ll admit, as I say, only discussions that he attempted to make it easier for her to stay for a longer period of time. Mother contends that the trial judge’s entire commentary makes clear that the trial judge was “merely acknowledging that the proffer contained some form of a negotiation, or settlement offer, and that he would take from it the relevant portions and strike those portions that he felt were irrelevant, or ‘nonsense.’ ” Next, when Father explained that he went to inspect the former marital home and brought someone with him to see the state of the home, the trial judge commented: “You brought a witness with you, huh? ... Do you normally take witnesses around with you when you go places?” Mother contends that the trial court was “merely attempting to clarify and understand what happened when Father inspected the house.” Mother provides the following citation to the entire exchange: THE COURT: Is this the U & 0 house, the formal marital home? [THE WITNESS]: Yes, the one— THE COURT: So no one had been living there for how long? [THE WITNESS]: Maybe a week to two weeks. THE COURT: Oh, just a—it was within a week? [THE WITNESS]: Yes, Your Honor.

THE COURT: Okay. All right. Brought a witness with you, huh? [THE WITNESS]: Yes. THE COURT: Why’d you bring a witness with you? [THE WITNESS]: Because I didn’t want anyone to think that I went in and did anything, and it was also videotaped.

THE COURT: So you brought a videotape. You want me to watch your videotape? [THE WITNESS]: No, Your Honor. No. ⁵⁸² THE COURT: Okay. All right.

Do you normally take witnesses around with you when you go places? [THE WITNESS]: I normally don’t, but for this situation, Your Honor, I felt it was necessary. THE COURT: All right. Next question. Mother contends that when reading the entire exchange, it is “unreasonable to interpret the trial judge’s questions of the witness as ‘improper’ or ‘hostile’ ” and that there is “no evidence of partiality or bias within this exchange.” Third, when Father attempted to explain the distance between his home and the child’s school, in both miles and driving time, the trial judge commented: “You better slow down.

It’s more than 60 miles an hour isn’t it?” Mother contends that this was nothing more than “a mere observation” after Father testified that to get from his home to the school, “[fit’s approximately a 15-minute drive and maybe about 18 miles away.” Mother asserts that it is “unreasonable for this comment to be perceived as partial or biased.” Additionally, the trial judge commented on Father’s salary and his employer, Hewlett Packard. After Father testified that his gross monthly income is $22,275.11, the trial judge remarked: Now that I’ve heard that number I have to tell you—and that’s a good number. I called Hewlett Packard last week to order a computer for my son who’s down in college and they couldn’t do it because their computers were down. Mother posits that it “is a significant stretch of the imagination for a person to perceive the trial judge’s comment as demonstrative of prejudice or bias based upon [Father’s] socioeconomic status.

To the contrary, the comment ... shows that the judge was impressed with [Father’s] earnings.” Finally, Father contends that during his cross-examination, Father’s counsel “was required to repeatedly object to questions ... by the judge himself, because the questions clearly mischaracterized the Father’s testimony with respect to his occasional work-related travel.” Mother argues that the trial judge merely “asked several questions of the witness in order ⁵⁸³ to clarify the frequency of his travel.” Further, Mother points out that, “it is not uncommon for a witness to be questioned, and for there to be objections to said questions .... a trial judge is vested with the responsibility of fact finding, and in order to do so, will often need to question a witness regarding his or her testimony. This, in and of itself, does not create a hostile and discourteous environment.” ii. Step-Mother’s Testimony Additionally, Father contends that the trial judge exhibited bias throughout StepMother’s testimony. After Step-Mother testified about her various residences over the previous five years, the trial judge asked: “Why so many moves?

Why have you live [sic] in four different houses in five years?” Mother asserts that this questioning was appropriate, because when making a custody determination, “the stability of the potential environment” is a relevant factor to be considered by the Court. Next, Step-Mother explained that in order to drive into the neighborhood of their current home, she travels along Bywater Street. The following exchange ensued: [MOTHER’S COUNSEL]: The public housing sections, right? [STEP-MOTHER]: Yes. [MOTHER’S COUNSEL]: So you got Bywater right outside of Kingsport, is that correct? [STEP-MOTHER]: Yes, that’s correct. THE COURT: Are you renting?

Are you renting? [STEP-MOTHER]: Well, we have a delayed purchase date, but yes, essentially. THE COURT: All right. You may want to think about that neighborhood. Father’s counsel then tried to elicit further testimony from Step-Mother regarding the safety of her neighborhood.

The trial judge interjected: ⁵⁸⁴ I’m going to take judicial notice. It’s a horrible, dangerous neighborhood. I mean, I don’t know about yours, but unless there’s a 40 foot wall between you and them, it’s a very dangerous neighborhood, counsel. Mother contends that it “is appropriate for a trial judge to consider the potential environment(s) in which a child may reside in making a determination regarding custody.

The comment is focused on the safety of the neighboring community, not the socioeconomic status ...” iii. Discussion Father contends that the trial judge’s conduct and comments pertaining to Father’s and Step-Mother’s testimony would create in any reasonable mind a perception of impropriety. For this reason, Father maintains that the trial court abused its discretion by finding that disqualification was unwarranted. Alternatively, Father contends that the second trial judge failed to expressly analyze the recusal request, and therefore, the decision not to disqualify the trial judge must be reversed.

In support, Father points out that we must “reverse a decision that is committed to the sound discretion of a trial judge” if we are “unable to discern from the record that there was an analysis of the relevant facts and circumstances that resulted in the exercise of discretion.” Maddox v. Stone, 174 Md.App. 489, 502 , 921 A.2d 912 (2007). Father contends that there was no such analysis here, and that reversal is, therefore, required. Mother argues that Father failed to overcome the strong presumption that the trial judge was impartial. We agree with Mother that the trial court adequately considered thé recusal motion, and did not abuse its discretion in denying the motion.

In ruling on the motion for disqualification, the second trial judge stated: Counsel, I have reviewed independently the motion to recuse Judge Goetzke and the memorandum of the law in ⁵⁸⁵ support of the disqualification of the trial judge. I am familiar with the case law ... ... I had read in great detail your memorandum in support of the disqualification of the trial judge, as well as attached Exhibit B, and I am familiar, as I indicated, with the case law in the area. I find that in light of the allegations, erring on the side of caution, I independently reviewed all that was submitted.

As I indicated, I read the memorandum, I’m very familiar with the Surat (phonetic) case, and I find that this does not rise to the level warranty [sic] disqualification of Judge Goetzke so I’m going to deny the motion. As an initial matter, we hold that the second trial judge did not fail to conduct the requisite analysis in ruling on the motion for recusal. Rather, the second trial judge made it abundantly clear that she had carefully considered Father’s motion and accompanying memorandum of law. The 16-page memorandum of law articulated each basis for Father’s request for disqualification, provided a detailed account of the judge’s specific instances of alleged misconduct (including a reproduction of the relevant parts of the trial transcript), and presented a discussion of the applicable law.

Although the second trial judge did not discuss the basis for her decision at length, she clearly considered the applicable facts and law. Thus, we find no merit in Father’s argument that there was an utter lack of analysis such that reversal is required. Likewise, we hold that the second trial judge did not abuse her discretion in denying Father’s motion for disqualification. We reiterate that a deferential standard of review applies on appeal, and there is a strong presumption that a trial judge acted impartially.

Upon reviewing the context surrounding the comments at issue, we hold it was not an abuse of discretion to find that the trial judge’s comments did not rise to a level warranting disqualification. ⁵⁸⁶ B. Failure to Uphold and Apply the Law 2 Next, Father contends that the trial judge should have been disqualified due to his failure to uphold and apply the law with respect to interviewing the child. We disagree. i. Initial Refusal to Conduct Child Interview First, Father argues that the trial judge “flatly refused to uphold and apply the law when he initially refused to interview the child at all ... ” Our review of the record, however, demonstrates that the trial judge did not “flatly refuse” to conduct the child interview at any point. Rather, when the issue was raised at the start of trial, the trial judge decided to reserve on that issue, explaining that other witnesses might be able to provide the same information, thereby making an interview with the child unnecessary.

The trial judge indicated his preference for the parties introducing sufficient evidence without the child’s testimony, in order to avoid putting the child in the middle of the dispute between her parents. Thus, since the presiding trial judge never refused to interview the child, the second trial judge did not abuse her discretion in rejecting Father’s argument. ii. Unreasonableness in Conducting Child Interview Next, Father contends that after the trial judge allegedly refused to initially conduct the child interview, he “then only agreed to do so in such an extremely limited and unreasonable fashion.” Our review of the record shows that Father renewed his request for the trial judge to conduct an interview with the child near the end of the first day of trial. The trial judge agreed.

He disclosed to counsel the general questions that he planned to ask the child, and noted that the questions would only take a few minutes. Father requested that the ⁵⁸⁷ trial judge specifically ask the child about her custody preference. After hearing Father’s argument, the trial judge stated: “... I’ll just ask again very generally what do you do here, what do you do there, and do you enjoy—we’ll see.” Upon completion of the interview in chambers, the trial judge explained to the parties that he asked the child general questions about her interests and hobbies, as well as the following questions: “Do you like being with both parents?”; “Do you like being at one place a little more than the other?”; and “If you could live at one place—with your mom or your dad, which would you prefer?” The child stated that she enjoyed her time with both parents, and had no preference for living with either parent.

Thus, the trial judge not only conducted the child interview, but asked the very questions requested by Father’s counsel. Accordingly, we hold that the second trial judge did not abuse her discretion in denying the motion for disqualification on this basis. iii. Bias Against Conducting Interviews with Children Third, Father contends that the trial judge did not uphold or apply the appropriate law in conducting the child interview, and “deprived counsel of appropriate time to present proper argument.” This argument is premised on statements that the trial judge made about the implications of conducting child interviews. In particular, after the trial judge initially indicated his desire to reserve on the issue of the child’s testimony, Mother’s counsel interjected: “Your Honor, may I just say for the record that I would ask the Court not to interview [the child] because I think at nine years old, I just think that’s not necessarily appropriate.

I think it puts her—no matter how innocuous the questions or discussion may be, I think it still puts her in a position of—” The trial judge agreed, stating: Yeah, I—you know, you’re right. I mean, if she were 14 or 15, maybe something else, but you have the other silly, silly, ridiculous part of this is when they’re young, the law says the wisdom is, well, go into chambers with them and don’t ask them about their presence [sic]. Well, why are they ⁵⁸⁸ going into chambers talking? Well, talk about where they hang their clothes and what cars they like and get a sense, you know, so in 15 minutes, the judge is supposed to become a psychiatrist and divine from listening to the child about where her friends are and what she likes to