Koffley v. Koffley

MURPHY, Chief Judge. The parties to these combined appeals from the Circuit Court for Prince George’s County — Lynn M. Koffley, appellant, and Joseph J. Koffley, Jr., appellee — were married on May 28, 1988, and were divorced by a judgment of absolute ⁶³⁶ divorce signed on December 20, 1999 and docketed on December 27, 1999. They are the parents of a sixteen year old daughter, a fourteen year old son, and an eleven year old daughter. Their failure or refusal to agree on what is in the best interest of their children has resulted in an enormous amount of litigation, including (1) nine contempt petitions filed by the appellant, (2) seven contempt petitions filed by the appellee, (3) the combined appeals that we address in this opinion, (4) several other appeals to this Court, (5) Protective Order proceedings in the District Court of Maryland for Prince George’s County, and (6) proceedings in the United States Bankruptcy Court for the Eastern District of Virginia.

As a result of the orders that we review in these combined opinions, (1) the appellee has been awarded custody of the children, (2) the appellant’s right to visitation has been “suspended,” and (3) further circuit court proceedings are scheduled to take place on February 18, 2005. Subsequent to oral argument in No. 46, the appellant filed with this Court an “Emergency Motion to Immediately Vacate Custody and Visitation Orders and to Transfer Custody of Patrick to Appellant.” This motion included the assertion that, because the present custody and visitation orders are “on appeal,” the circuit court has been divested of jurisdiction to change any of the provisions in those orders. According to the appellant, unless and until this Court reverses or vacates the orders at issue, the circuit court does not have jurisdiction to order a change in custody. Relevant Factual Background In June of 1997, the circuit court entered an order granting “sole” custody of the children to the appellee, and awarding visitation to the appellant.

In October of 1997, the circuit court entered a pendente lite order directing the appellant to pay $1,644.77 per month in child support. This order included the. provision that the appellant’s support obligation would “remain in full force and effect until superseded by further Order of court.” Although the parties were before the circuit court on numerous occasions in 1998, 1999, 2000, 2001, 2002, ⁶³⁷ and 2003, the appellant’s right to visitation was not “suspended” until February 13, 2004, on which date the circuit court entered a FORTHWITH ORDER that is at issue in Case No. 46. The pendente lite support order was not superseded until the conclusion of a June 21, 2004 hearing, following which the circuit court entered the orders at issue in Case No. 910. The appellant argues that the circuit court erred and/or abused its discretion in entering several orders, including orders providing: that all visitations between the [appellant] and the involved three minor children, be ...

SUSPENDED ...; that Judgment be ... awarded against the [appellant], in favor of the [appellee] in the amount of $16,141.25 as and for a contribution toward [the appellee’s] counsel fees in these proceedings; that the [appellant] ... is hereby found to be in arrears in child support as of June 18, 2004, in the amount of Four Thousand Five Hundred Fifty-One Dollars and Forty Seven Cents ($4,551.47); that the [appellant’s] Motion to Modify the amount of child support be ... denied; and that a rehearing on the issue of the [appellant’s] right to visit with her children be ... scheduled for February 18, 2005, at 9:00 a.m., at which time the three (3) minor children shall be present. In light of the appellee’s agreement that the appellant should be granted some type of “supervised” visitation with the children, the order “suspending” her visitation must be vacated. We shall therefore direct (1) that the order that presently controls the appellant’s right to visitation be converted to a pendente lite order until the parties are once again before the circuit court, and (2) that further proceedings in the circuit court adhere to the procedure required by Frase v. Barnhart, 379 Md. 100 , 840 A.2d 114 (2003). Because the appeal of a custody order does not divest the circuit court of jurisdiction to enter a “new” custody order upon proof that, as a result of a material change in circumstances, a change of ⁶³⁸ custody is in the child’s best interest, we shall deny the “Emergency Motion” that the appellant has filed in this Court.

We shall otherwise affirm the judgments of the circuit court. Appellant’s Arguments as to the Orders Entered on February 13, 2004 and June 21, 2004 In No. 46, the appellant argues that: 1. The Judge Should Have Recused Himself When His Failure to Timely Adjudicate a Parent’s Earlier Claims Caused Him to Have a Personal Stake in Ruling Against Her in a Larter [sic] Custody Proceeding[.] 2. The Judge Abused His Discretion When He Sua Sponte Schedule[d] a Custody Hearing and Terminated All Visitations Between a Parent and Her Children Based on Complaints He Had Previously Rejected[.] 3.

The Judge Erred as a Matter of Law by Requiring a Parent to Testify Whether Her Children Had Lied About Disputed Events[.] 4. The Judge Erred by Engaging a Single Attorney Without Any Guidance to Represent Three Children with Potentially Conflicting Interests[.] 5. The Judge Erred by Refusing to Consider Psychological Testimony Concerning the Children’s Estrangement from Their Mother[.] In case No. 910, the appellant argues that: 1. The Order of Court entered 1 July 2004 should be reversed as a consequence of the trial judge’s prior refusal to recuse himself. 2.

The trial court violated appellant’s right to due process in extending the suspension of her right of visitation indefinitely without taking evidence. 3. The trial court violated due process by failing to decide appellant’s motion to modify child support for 57 months. 4. The court erred in assessing child support arrears based on a disputed proffer from the father’s counsel. ⁶³⁹ 5. The court erred in distributing marital property in violation of a federal bankruptcy stay.

Appellant’s “Recusal” Arguments There is no merit in either recusal argument, which is based upon the fact that the appellant wrote a letter of complaint to the Chief Judge of the Court of Appeals, in which she complained that the circuit court had failed to decide issues that should have been decided more promptly. As both of the appellant’s counsel conceded during oral argument, the fact that a litigant has made a complaint against the trial judge does not require that the trial judge grant the litigant’s recusal motion. To hold otherwise would vest every dissatisfied litigant with the power to recuse the trial judge. Appellant’s “Procedural” Arguments The appellant argues that the circuit court abused its discretion by (1) “sua sponte” scheduling a custody hearing, (2) questioning appellant about the accuracy of information supplied by the children, and (3) appointing only one attorney to serve as Guardian Ad Litem for the parties’ three children.

There is no merit in any of these arguments. Both parties had ample time to prepare for the hearing. While it is not particularly useful to question a witness about the accuracy of information provided by some other person, such questioning does not constitute reversible error. See Fisher v. State, 128 Md.App. 79, 152-53 , 736 A.2d 1125 (1999), aff'd, 367 Md. 218 , 786 A.2d 706 (2001).

While it is true that there are situations in which a separate Guardian Ad, Litem should be appointed for each child, the case at bar does not present a situation in which there is a potential conflict between the best interest of one child and the best interest of another child. Should such a conflict arise in the future, we are confident that (1) the Guardian Ad Litem will bring that fact to the court’s attention, and (2) the court will take appropriate action. Appellant’s “Financial” Arguments While we do not disagree with appellant’s contention that the child support and marital property issues should have ⁶⁴⁰ been decided more promptly, because the record includes evidence that is sufficient to support the factual findings at issue, we are not persuaded that the circuit court erred or abused its discretion in resolving those issues. While appellant’s recusal arguments present the question of whether these issues should have been resolved in the first instance by a different circuit court judge, because of our holding that there is no merit in the recusal arguments, we affirm the child support and marital property rulings at issue in these appeals.

Appellant’s “Due Process” Arguments The appellant also argues that the circuit court abused its discretion by (1) refusing to receive expert testimony about the children’s “estrangement” from their mother, and (2) “terminating” all visitations, pending a “rehearing on [that] issue.” These arguments are moot in light of (1) the appellee’s agreement that the appellant is entitled to some type of visitation, and (2) the hearing that is presently scheduled for February 18, 2005, at which the circuit court is hereby directed to apply the procedure set forth in Frase v. Barnhart, 379 Md. 100 , 840 A.2d 114 (2003), in which the Court of Appeals noted its “disagreement with the procedure ... of ... subjecting [the appellant-mother] to periodic review hearings.” Id. at 120 , 840 A.2d 114 . As the Frase Court explained: It is common — and in some instances required — for juvenile courts, in dealing with children who have been found in need of assistance (CINA), to have periodic review hearings to monitor the progress of the child, the child’s parents, and any other guardian or potential custodian. In that setting, of course, the child has already come under the direct jurisdiction and supervision of the court and may well be in the legal custody of the court. By statute, the court’s comprehensive jurisdiction extends until either the child turns 21 or the jurisdiction is affirmatively terminated by the court.

See CJP § 3-804(b). The context, which justifies the direct and continuing supervision of the court, is that, as part of the CINA finding, the court has determined ⁶⁴¹ that court intervention is required to protect the child’s health, safety, and well-being. See CJP § 3 — 801(f) and (m). The court’s role is different in a normal private custody dispute.

It is to take evidence and decide the dispute, so that the child and the other parties can get on with their lives. The court does not retain jurisdiction until the child turns 21, or even 18. Although the matter of custody, visitation, and support may