Kreyhsig v. Montes

⁴²⁰ NAZARIAN, J. Vanessa Kreyhsig (“Mother”) appeals the decision by the Circuit Court for Montgomery County to change the name of her minor child (“Son”) to include the surname of his father, Luis Alfonso Montes (“Father”). We agree with Mother that the issues Father raised in the petition before us had already been decided, and decided against him, and we reverse. I. BACKGROUND Son was born on January 6, 2009, and Mother (who has never been married to Father) named him “Kaio Henrique Stockmann Kreyhsig.” Father does not dispute paternity, but the parties do dispute the extent to which Mother has included Father in Son’s upbringing. Mother alleges that Father “took no part” in Son’s life for a year after he was born.

Father claims that Mother did not tell him when Son was born, kept him from seeing Son in the hospital, and did not list him as the father on Son’s birth certificate. Father first began trying to change Son’s name to reflect his during their custody and child support litigation, Case No. 82912-FL (the “Custody Case”). At the close of that case, on September 22, 2010, Father made an oral motion to change Son’s name, and the trial court granted the motion on February 24, 2011. 1 Mother sought en banc review, and on December 22, 2011, a panel of the circuit court vacated the name change order and “reversed and remanded for further hearing,” which the court ordered “shall be held before [the circuit court judge who presided over the custody case], as available.” Although the December 22, 2011 Order made reference to its “reasons stated on the record,” the record here does not reflect what those reasons were. And although numerous motions relating to custody, child support, and other issues caused that case to remain open, no further hearing on the ⁴²¹ name change was scheduled or held.

After about nine months passed with no activity, Mother moved to dismiss Father’s “cause of action for a name change.” On January 10, 2013, the court denied that Motion, but defined the procedural path Father should follow in that case: It appears that the [en banc Order] was never effectuated and no remand hearing was scheduled. If [Father] wishes to further pursue this matter, he shall request a hearing on the remand by no later than January 18, 2013. While the court believes that [Father] cannot be prohibited from seeking a name change for his minor child in the future, he will have to file a new petition to do so if no hearing is requested by January 18. In the meantime, Father kept trying, and actually had filed and lost a separate petition by the time the circuit court entered the January 10, 2013 order in the Custody Case.

On August 22, 2012, Father had filed a Petition for Name Change of A Minor, which bore a new docket number, Case No. 105554-FL (we will call it the “First Petition”), and asked the court to change Son’s name to “Kaio Henrique Montes.” Mother opposed the First Petition, and on December 11, 2012, the court denied it: UPON CONSIDERATION of [the First Petition], [Mother’s] Answer, and [Mother’s] Objection to the [First Petition] and Motion to Dismiss, and the Court being fully informed in the facts and circumstances of this case, it is therefore this 4th day of December, 2012, hereby ORDERED that the [First Petition] be and the same hereby is DENIED. (Emphasis added.) 2 Father filed a timely Notice of Appeal from the December 11, 2012 Order. But we dismissed the appeal on April 4, 2013, after Father failed to file a Civil Appeal Information Report. ⁴²² Father then filed a second Petition to Change Name, the one at issue in this appeal; it bore Case No. 118677FL (he amended it on April 25, 2014, so we will refer to as the “Amended Second Petition”). Mother moved to dismiss the Amended Second Petition, arguing that nothing had changed since the court had denied the First Petition, or in the alternative for summary judgment on the merits.

She asked as well for the court to declare Father a “vexatious litigant” and to order him to pay her attorneys’ fees and costs. On August 15, 2014, the court held a hearing and denied the Motion to Dismiss, reasoning that res judicata “doesn’t apply because there wasn’t a final decision on the merits.” The court also disagreed that Father was barred from refiling because he had “slept on his rights,” and found that the January 10, 2013 Order gave Father the right to file the First Petition. Then, on the merits, the trial court considered the factors listed in Schroeder v. Broadfoot, 142 Md.App. 569, 588 , 790 A.2d 773 (2002), and concluded that it would be in Son’s best interests for his name to be changed to “Kaio Henrique Montes Kreyhsig.” 3 Mother filed a Notice of Appeal.

II

DISCUSSION Mother argues that the trial court should have dismissed the Amended Second Petition (the only one before us) on the grounds of res judicata 4 We agree, even after recog ⁴²³ nizing the differences in the way res judicata applies to cases involving the care and custody of children. We review de novo the circuit court’s legal decision that res judicata did not bar the Second Petition. See Davidson v. Seneca Crossing Section II Homeowner’s Ass’n, Inc., 187 Md.App. 601, 633 , 979 A.2d 260 (2009) (“The defense of res judicata is before ‘the court as a question of law.’ ” (quoting Beach v. Mueller, 32 Md.App. 219 , 224 n. 3, 359 A.2d 232 (1976))). And because we agree with Mother that the trial court should have dismissed the Amended Second Petition, we need not address whether the trial court prematurely heard evidence on the substantive issues in the case or whether it correctly found that the name change was in Son’s best interests.

Father tried twice to change Son’s name before he filed the Second Petition. First, he won and lost the relief he seeks here during the Custody Case—he won at first, but an en banc panel in the Custody Case reversed, and, after an admittedly confusing delay, the court offered Father the opportunity for a further hearing that he opted not to pursue. Second, Father filed and lost the First Petition. Father responds that it was necessary for him to file three different cases because “each time [he] attempted to file his new Petition, he was advised by the [circuit court] Family Clerk’s window that the previous case was statistically closed and that he would need to open a new case.” Father excuses the seriatim filings by pointing to administrative confusion arising from the progression of the Custody Case and the First Petition, and he (mis)characterizes the decisions in those two proceedings as “dismissals” rather than denials of relief on the merits.

Mother’s res judicata argument depends on whether Father’s cause of action—in this case, his request to change Son’s name—had previously been decided on the merits: ⁴²⁴ Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” Powell v. Breslin, 430 Md. 52, 63 , 59 A.3d 531 (2013) (quoting Alvey v. Alvey, 225 Md. 386, 390 , 171 A.2d 92 (1961)). Generally speaking, res judicata precludes a claim when three conditions have been met: (1) the parties in the current litigation are the same or in privity with those in prior litigation; (2) the second suit concerns the same cause of action or claim as the first; and (3) “in the first suit, there must have been a valid final judgment on the merits by a court of competent jurisdiction.” Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 361 Md. 371, 389 , 761 A.2d 899 (2000) (quoting FWB Bank v. Richman, 354 Md. 472, 492 , 731 A.2d 916 (1999)). 5 These traditional elements apply slightly differently when the merits of the claim are grounded in the best interests of a child. See Hixon v. Buchberger, 306 Md. 72, 83 , 507 A.2d 607 (1986) (“Overarching all of the contentions in disputes concerning custody or visitation is the best interest of the child.”).

The merits of claims relating, for example, to child custody (and, we now hold, to name changes), can evolve over time as the child’s circumstances