Kovacs v. Kovacs

BLOOM, Judge. Randy S. Kovacs appeals from a judgment of the Circuit Court for Baltimore City granting an absolute divorce to appellee, Malcolm L. Kovacs, and from post judgment orders of the court relating to custody of and support for the parties’ minor children. She presents six questions, the first four of which raise issues that have not heretofore been addressed ²⁹⁵ either by the Court of Appeals or this Court. We restate the issues as follows: 1.

Whether the chancellor erred in adopting the ruling of the Beth Din concerning the beneficial interests of the children without first exercising independent judgment before issuing the Judgment for Absolute Divorce. 2. Whether the chancellor erred in refusing to modify or vacate the ruling of the Beth Din. 3. Whether the chancellor abused his discretion in refusing to appoint independent counsel for the children. 4. Whether the chancellor improperly delegated his judicial authority by appointing a social worker to conduct fact finding on behalf of the court. 5.

Whether the chancellor abused his discretion by modifying a pendente lite custody order without a showing of a change of circumstances. 6. Whether the chancellor abused his discretion in denying Mrs. Kovacs’s Motion to Modify Child Support. We shall affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. FACTUAL BACKGROUND The parties are Orthodox Jews, married on 17 February 1975.

Six children, four boys and two girls, were born of their marriage. At the time of the lower court proceedings, the children were minors, ranging in age from six to seventeen. When the couple’s marital discord came to a head, they turned to their rabbis, who urged them to resolve their differences in a Beth Din 1 (a Jewish court proceeding before a panel of three rabbinic judges). On 30 April 1991, the parties executed an agreement entitled “Shtar Berrurin and Submission Agreement,” which is captioned “In the Matter of the Arbitration Between” Malcolm and Randy Kovacs.

The docu ²⁹⁶ ment makes several references to arbitration and states that the parties agree to submit their controversy “to arbitration by the Bais Din in accordance with Jewish law as set forth in the Shulchan Oruch (Code of Jewish Law) as interpreted by the Bais Din.” Under this agreement, the parties petitioned the Beth Din to dissolve their marriage and issue a ruling concerning a “separation agreement, child support, custody, visitation rights, division of joint property etc.” The Beth Din issued two interim rulings, in April and June, 1991, directing the parties to rotate possession of the family home every two weeks. The party having possession of the home was responsible for the care of the children. This procedure continued from June 1991 until September 1991, when the mother refused to comply further with the arrangement. On 11 February 1992, she filed a complaint for limited divorce in the circuit court.

On 23 March 1992, Judge Edward J. Angeletti issued a pendente lite order terminating the rotation system, granting the parties joint legal custody with primary physical custody to Mrs. Kovacs, barring Mr. Kovacs from the family home, granting Mrs. Kovacs use and possession of the family home, and directing Mr. Kovacs to pay all major monthly bills plus $200.00 per month in child support as ordered by the Beth Din. Judge Angeletti offered the parties the opportunity to withdraw from the jurisdiction of the Beth Din, but neither party elected to do so. He thereupon ordered the parties to continue proceedings before the Beth Din. The Beth Din held three hearings, on 5, 12, and 19 May 1992, with counsel present.

The Beth Din asked Dr. Edwin Susskind, a psychologist, to meet with the Kovacs family for a sufficient period of time to enable him to make recommendations concerning the divorce. On 3 August 1992, the Beth Din issued its ruling, which was forwarded to Judge Angeletti along with Dr. Susskind’s report. The Beth Din ruled: (1) the father would have custody of the four youngest children and the mother would have custody of the two oldest children; (2) the father would pay the mother $250.00 per month per child for child support for a ²⁹⁷ total of $500.00; (3) each party would have visitation with all six children one weekend per month, with the parties to exchange the children of whom each had custody one weekend per month; (4) the father would have possession of the family home with the mother to receive $20,000.00 for her interest in that property; (5) the mother would not receive any rehabilitative alimony; (6) Mr. Kovacs would grant a “Get” (Jewish divorce) to Mrs. Kovacs; and (7) the ruling would become effective 30 August 1992. On 6 August 1992, Mr. Kovacs filed with the circuit court a petition to confirm the arbitration award of the Beth Din, a Counterclaim for Absolute Divorce, and a motion to shorten the time requirements for Mrs. Kovacs’s reply in light of the 30 August 1992 effective date established by the Beth Din.

His complaint was scheduled to be heard on 14 August 1992. At that hearing, Mrs. Kovacs submitted a petition to vacate the arbitration award or, in the alternative, to modify or correct the arbitration award. Mrs. Kovacs also moved to have the chancellor appoint independent counsel for the children, and requested “a full evidentiary hearing.” At the August 14th hearing, Judge Angeletti found that the Beth Din proceeding was in accordance with the Maryland Uniform Arbitration Act and that Mrs. Kovacs had voluntarily entered into the arbitration process. He denied Mrs. Kovacs’s request for an evidentiary hearing and took testimony to establish the grounds for an absolute divorce.

Mr. Kovacs’s Counter-Complaint for Absolute Divorce, alleging a one-year voluntary separation, was answered and admitted by Mrs. Kovacs and corroborated by testimony. The court granted Mr. Kovacs a Judgment for Absolute Divorce dated 18 August 1992, in which the ruling and awards of the Beth Din were adopted and set out almost verbatim. Mrs. Kovacs’s complaint for a limited divorce was dismissed by the court as moot. Mrs. Kovacs promptly appealed.

On 28 August 1992, a panel of this Court granted, in part, Mrs. Kovacs’s Emergency Motion for Stay Pending Appeal, staying those portions of the Judgment for Absolute Divorce ²⁹⁸ concerning custody of the children and use and possession of the family home. Judge Angeletti’s pendente lite order of 23 March 1992, therefore, remained in effect with respect to custody and possession of the family home. On 19 September 1992, one of the parties’ daughters revealed that she was sexually abused by one of her brothers while left unsupervised in the care of Mrs. Kovacs on 17 September. The next day Mr. Kovacs took the children to a psychologist, Dr. Barbara Gaver.

After speaking with the girls, Dr. Gaver notified the Department of Social Services (“DSS”), Child Protective Services Division, which promptly acted to remove the four younger children from the care of Mrs. Kovacs. On the same day, Mr. Kovacs filed a Petition for Modification of Custody. Judge Marvin B. Steinberg conducted evidentiary hearings on that petition on seventeen days over the period from 24 September 1992 through 24 February 1993. On 24 September 1992, Judge Steinberg issued an initial temporary order granting Mr. Kovacs custody of the four younger children, thereby superseding Judge Angeletti’s pendente lite order, which had placed all six children in the care of Mrs. Kovacs.

On 20 and 25 November 1992, Judge Steinberg issued orders temporarily continuing the existing division of custody, pending the appointment of someone to do an evaluation of the family. He appointed Dan Meranski, a social worker associated with the Jewish Family Services Agency, to conduct an investigation and prepare a custody report for the court. On 16 February 1993, Mr. Meranski delivered his written report to Judge Steinberg. Mr. Meranski recommended that no change of custody should be made and that the division of custody pursuant to Judge Steinberg’s earlier temporary custody orders should continue.

On 24 February 1993, Judge Steinberg delivered from the bench an oral summary of his findings. He stated specifically that his order as to custody and visitation was based on Mr. Meranski’s recommendations and was temporary until the ²⁹⁹ Court of Special Appeals heard the case and could issue its decision. Judge Steinberg stated: The custody that I am giving is temporary. Visitation I’m giving is temporary.

The court is very impressed by Mr. Moransky’s [sic] recommendation ... and the Court has concluded that at least for the time being, that might be only for a day or two, I have no idea, this court is going to keep the status quo of these children exactly the way it is, the four younger ones with the father, two older ones with the mother. With respect to child support, Judge Steinberg ruled that he did not find changed circumstances to justify modifying the support that had been ordered by Judge Angeletti, who had adopted the figure set by the Beth Din. On 3 March 1993, Judge Steinberg issued these rulings in his last order. Exercise of Independent Judgment by Chancellor Mrs. Kovacs argues that, because Judge Angeletti failed to exercise independent judgment before adopting the ruling of the Beth Din as the basis for the award of custody in the Judgment for Absolute Divorce, this Court must vacate at least that portion of the judgment.

We agree. The record supports the conclusion that Judge Angeletti adopted the ruling of the Beth Din concerning custody, visitation, child support, alimony, and possession of the family home as the basis for the Judgment for Absolute Divorce without exercising his,own independent judgment as to matters decided by the Beth Din. In his Memorandum Opinion, Judge Angeletti stated that, as a matter of law, once a trial court recognizes a voluntary arbitration agreement and compels the parties to participate in the arbitration, “the hearing Judge’s role ceases.” Acknowledging “[t]he skilled judgment brought by the arbitrators to this case,” he incorporated into the divorce decree the decisions of the Beth Din. Md.Code (1984, 1991, 1993 Supp.), § 8-103(a) of the Family Law Article (hereinafter “F.L.”) provides: ³⁰⁰ The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.

(Emphasis added). The word “may” in this statute grants the chancellor discretion to modify an agreement before the court regarding the care, custody, education, or support of a minor child. In order to exercise this discretion, the chancellor must first assess the impact of the agreement on the child and determine if the agreement is in his or her best interest. Consequently, when there is a challenge to such an agreement, the chancellor cannot refuse to consider its effect on the child.

An agreement to arbitrate issues that concern the best interests of children, such as custody and support, is equivalent to an agreement on those matters. If parents cannot bind the court by an agreement affecting the interests of their children, they cannot bind the court by agreeing to let someone else, an arbitrator, make such a decision for them. Or, as stated in Agur v. Agur, 32 A.D.2d 16 , 298 N.Y.S.2d 772, 777 (1969), appeal dismissed, 27 N.Y.2d 643 , 313 N.Y.S.2d 866 , 261 N.E.2d 903 , appeal dismissed, 32 N.Y.2d 703 , 343 N.Y.S.2d 607 , 296 N.E.2d 458 (1973), “An agreement to arbitrate custody is not distinguishable from an agreement to give custody.” Cf., Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103 , 468 A.2d 91 (1983) (“Arbitration is the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them. Arbitration is a matter of contract which the parties should be allowed to conduct in accordance with their agreement”).

The agreement to arbitrate executed by Mr. and Mrs. Kovacs and the result of that agreement, the ruling of the Beth Din, are subject to F.L. § 8-103(a). Consequently, when Mrs. Kovacs challenged that arbitration award, the chancellor was required to determine whether the decision of the Beth Din was in the best interests of the children. He erred in assuming that his role as chancellor ceased as soon as the ³⁰¹ arbitration award was made and in failing to make independent findings regarding the decision of the Beth Din. The failure of a chancellor to exercise independent judgment with respect to matters concerning the best interests of children constitutes a neglect of the duty of parens patriae entrusted to the circuit court.

As the representative of the State, the chancellor’s responsibility to ensure the best interests of the children supersedes that of the parents. Dietrich v. Anderson, 185 Md. 103, 116, 118 , 43 A.2d 186 (1945) (parental rights are subordinate to those of the sovereign state and a court of chancery stands as a guardian of all children to protect and advance their welfare); Wentzel v. Montgomery General Hospital, Inc., 293 Md. 685, 702 , 447 A.2d 1244 (1982), cert. denied, 459 U.S. 1147 , 103 S.Ct. 790 , 74 L.Ed.2d 995 (1983) (parens patriae power of equity courts is plenary to afford minors whatever relief may be necessary to protect their best interests). The Court of Appeals emphasized the obligation of the chancellor to exercise independent judgment with respect to custody of children in Domingues v. Johnson, 323 Md. 486, 490-91 , 593 A.2d 1133 (1991), in which the Court held that a chancellor cannot accept the recommendations of a master without first exercising his independent judgment concerning the proper conclusion to be reached based upon the facts found by the master. As Judge McAuliffe stated: The chancellor must carefully consider the mother’s allegations that certain findings of fact are clearly erroneous, and decide each such question.

The chancellor should, in an oral or written opinion, state how he resolved those challenges. Having determined which facts are properly before him, and utilizing accepted principles of law, the chancellor must then exercise independent judgment to determine the proper result. 323 Md. at 496 , 593 A.2d 1133 . By analogy, we hold that a chancellor cannot adopt an arbitration award that concerns the beneficial interests of children without first exercising independent judgment to ³⁰² determine whether the best interests of the children are met by that award. See Lieberman v. Lieberman, 149 Misc.2d 983 , 566 N.Y.S.2d 490, 495 (1991) (arbitrators, such as a Beth Din, have the authority to decide matters of custody, visitation, and economics so long as the results do not adversely affect the child).

Although the issues concerning the custodial arrangements for the Kovacs children should not have been adopted by the chancellor without exercising his own independent judgment as to the best interests of the children, the award made by the Beth Din with regard to alimony and property issues, if otherwise valid, was appropriate to be adopted without further consideration. Except as to matters affecting the best interests of children, a valid settlement agreement may be made part of a judgment for divorce without the chancellor having to make independent findings, provided the agreement is not facially unjust or inequitable. Jackson v. Jackson, 14 Md.App. 263, 269 , 286 A.2d 778 (1972). While, for reasons we shall now explain, we uphold the Judgment for Absolute Divorce with regard to alimony and property issues, we vacate those portions of the Judgment of Absolute Divorce that concern custody of and visitation with the parties’ children.

Validity of Arbitration Mrs. Kovacs argues that Judge Angeletti should have vacated the entire award of the Beth Din because its proceedings were not in accordance with the Maryland Uniform Arbitration Act (the “Act”), Md.Code (1989, 1993 Supp.) § 3-201 et seq. of the Courts & Judicial Proceedings Article (C.J.). Specifically, Mrs. Kovacs alleges that her counsel was not permitted to make an opening or closing statement or cross-examine witnesses called to testify, and that the Beth Din relied on evidence not introduced during the proceedings. She also contends that the arbitration could not confer jurisdiction on the circuit court to enter judgment on the award of the Beth Din because the arbitration agreement did not state ³⁰³ it was “under the law of the State” as required by C.J. § 3-202 of the Act. . To support these allegations, Mrs. Kovacs proffers the affidavit of her attorney; she does not, however, provide a transcript or record of what transpired at the proceedings of the Beth Din.

Mr. Kovacs disputes her account of the proceedings and in opposition thereto presents the affidavit of his counsel, which states that at the three hearings of the Beth Din “[b]oth parties exercised their right to present evidence material to the controversy ..., to cross examine witnesses who appeared at the hearing ..., [and b]oth parties were represented by attorneys.... ” There is no record to support Mrs. Kovacs’s allegations concerning deficiencies in the Beth Din’s proceedings. Nor is there any explanation for the absence of a record. Presumably, the proceedings before the Beth Din were not recorded; perhaps it is not customary to record them, either stenographically or electronically, but there is no assertion that the Beth Din forbade the parties to record its proceedings. In the absence of a record, Mrs. Kovacs has simply failed to support her allegations that her counsel was not allowed to cross-examine witnesses or otherwise represent her effectively.

A party asserting that error was committed by an arbitration panel bears the burden of showing, by the record, that the error occurred. Mere allegations and arguments contesting the validity of an award, unsubstantiated by the record, are insufficient to meet that burden. The failure to provide the court with a transcript warrants summary rejection of the claim of error. Azcon Construction Co., Inc. v. Golden Hills Resort, Inc., 498 N.W.2d 630, 635-36 (S.D.1993) (owner failed to establish that arbitration panel exceeded its jurisdiction in construction dispute where record contained no transcript of arbitration proceedings); Marra Constructors, Inc. v. Cleveland Metroparks System, 82 Ohio App.3d 557 , 612 N.E.2d 806, 810 (1993) (appellate court presumed regularity of arbitration proceeding where city park district failed to provide verbatim transcript or other complete record of evidence ³⁰⁴ when challenging arbitration award to contractor); Tayco Constr.

Co., Inc. v. La Cuisine Restaurant, Inc., 593 So.2d 954, 955-56 (La.App. 4 Cir.1992) (claim that party was denied due process during arbitration proceeding was dismissed on appeal when that party failed to provide either the trial court or the appellate court with a transcript of the proceedings); Lorenzini v. Group Health Plan, Inc., 753 S.W.2d 106, 109 (Mo.App.1988) (an incomplete record, such as the lack of a transcript of the proceeding, precludes appellate review of whether the evidence presented was sufficient to support the arbitrator’s award). Cf. Newell v. Richards, 83 Md.App. 371, 385 , 574 A.2d 370 (1990), rev’d on other grounds, 323 Md. 717 , 594 A.2d 1152 (1991), in which this Court presumed that evidence before the chairman of a medical malpractice arbitration panel was uncontroverted where the patient did not provide the Court with the record upon which the chairman based his decision. Even if Mrs. Kovacs could have substantiated her allegation that the Beth Din did not conduct its proceedings within the procedural requirements of the Act, such violation would not invalidate the award.

Based on our reading of the Maryland Rules, we conclude