Leary v. Leary

ROSALYN B. BELL, Judge (Retired), Specially Assigned. Appellant, Richard J. Leary, III, asks us to resolve several issues raised by his divorce from appellee, Barbara C. Leary. The main issues in this case focus on the custody of the parties’ two minor children. These issues were decided by a judge in the Circuit Court for Wicomico County.

Mr. Leary has appealed, contending that the trial court erred: -in failing to enter a judgment of absolute divorce in his favor; -in awarding Ms. Leary sole legal custody of the children when she had testified that she was asking the court to award joint legal custody; -in failing to instruct the children’s counsel as to her duties and whether that error was further magnified by counsel’s failure to represent her clients adequately; -in failing to strike the testimony and report of the children’s counsel because they were hearsay; -in failing to conduct an in camera examination of the children; ³² -in refusing to accept Katherine Kennan as an expert witness; and -in awarding sole physical custody to Ms. Leary and undefined “reasonable” visitation to Mr. Leary. After reviewing the trial judge’s decision declining to award joint custody, we hold he was not clearly erroneous in making his factual findings, nor did he abuse his discretion. While we will affirm the trial judge’s decisions on the issues of custody, counsel for the children, and the expert witness, we do conclude that the trial judge erred in failing to resolve the divorce issue between the parties. Hence, we remand the case to determine that issue.

For purposes of clarity, we will deal with the three issues relating to counsel for the children together. THE FACTS Richard and Barbara Leary married in 1973. They have two children, Brendan, age 12, and Barry, age 10. After a number of years of family discord, Ms. Leary left the family home with the children on or about January 27, 1989.

Mr. Leary filed a complaint on April 26, 1989, seeking custody of the two children and a divorce on the grounds of desertion and adultery. Ms. Leary filed an answer, also seeking custody of the children and denying the desertion. On or about February 14, 1991, Ms. Leary filed a counterclaim for absolute divorce, alleging a two-year separation; Mr. Leary answered, denying that allegation. Mr. Leary later filed a supplemental complaint, alleging, in addition to the grounds originally stated, a two-year separation.

The parties also sought financial relief, but resolved those issues before trial. On July 27, 1992, the trial judge issued an opinion and order granting custody of the two children to Ms. Leary. A divorce decree was not a part of that order. 1 We will recite additional facts as they become relevant. ³³ THE DIVORCE The trial judge stated in his opinion and order of July 21, 1992 that “all issues concerning absolute divorce ... have been resolved by agreement.” He made no finding on the facts supporting any of the grounds alleged and entered no order of divorce. Mr. Leary contends that the trial court’s statement is in error because the parties contested the grounds for divorce in their pleadings and at trial.

In addition, Mr. Leary contends that the court must adjudicate the legal rights of the parties based upon the actions the parties have taken, Flohr v. Flohr, 195 Md. 482, 488 , 73 A.2d 874 (1950), and not upon what may have been agreed. Historically in Maryland, divorce was a legislative function, obtained only by an Act of Assembly. In 1841, the Legislature enacted the first general divorce statute, giving equity courts the jurisdiction to decree divorce on grounds of impotence, illegality, adultery, or abandonment. Since the case of Wright v. Wright’s Lessee, 2 Md. 429, 448 (1852), the Court of Appeals has acknowledged that the equity courts’ jurisdiction to grant a divorce decree is limited to the grounds specifically enumerated in the statute.

Grounds for an absolute divorce in Maryland have expanded to include voluntary separation, conviction of a felony, two-year separation, and insanity. Md.Fam.Law Code Ann. § 7-103 (1984, 1991 RepLVol.). Parties can agree to separate voluntarily and, if the agreement is executed under oath before the complaint for divorce is filed, that agreement is full corroboration of the plaintiffs testimony that the separation was voluntary. Md.Fam.Law Code Ann. § 8-104 (1984, 1991 RepLVol.).

In the instant case, while neither party saw fit to include the “agreement” resolving the divorce issue referred to by the trial judge, we did locate a stipulation dated ³⁴ May 7, 1992 in the transcript of the record. That stipulation does not, however, remotely relate to the grounds for divorce. Despite § 8-104, the court may not grant a divorce based simply upon the agreement of the parties. Dougherty v. Dougherty, 187 Md. 21, 29-30 , 48 A.2d 451 (1946).

The plaintiff must testify, Md.Fam.Law Code Ann. § 1-203(c) (1984, 1991 Repl.Vol.), and that testimony must be corroborated. Md.Fam.Law Code Ann. § 7-101(b) (1984, 1991 Repl. Vol.). The court cannot simply allow the parties to agree to divorce; the court has a duty to listen to the testimony, adjudicate the legal rights of the parties, and, where appropriate, enter a judgment of divorce.

Flohr, 195 Md. at 488 , 73 A.2d 874 . Therefore, we must remand the case in order for the trial judge to consider the issue of divorce. If grounds were established by either party, the trial judge should make appropriate findings and award a decree to the proper party, specifying the grounds upon which it was based. Borne v. Borne, 33 Md.App. 578, 588 , 365 A.2d 359 (1976).

In light of our holding in Noffsinger v. Noffsinger, 95 Md.App. 265, 279-80 , 620 A.2d 415 (1993), relative to stale testimony 2 and, in view of the substantial time that has passed since the hearing in the instant case, the trial judge should at least consider the constraints of Rule S75, as it relates to stale testimony. ³⁵ CUSTODY —The Award of Sole Legal Custody Where Joint Custody Was Sought— At the hearing on October 31, 1992, during direct examination, Ms. Leary stated that she wished the court to award joint legal custody: “Q You’re asking the Court to award you joint legal custody, is that correct? “A That’s correct. “Q And you know what joint legal custody is. “A Yes, I do. “Q Do you believe that you and Mr. Leary can work together on major decisions affecting the children’s lives? “A Yes, I think so. “Q Such as education. “A Yes. “Q And religion. “A (Shaking head yes.) “Q And moral values. “A And moral values, yes.” At the hearing on May 18, 1992, however, Ms. Leary asked the court to make her primary physical custodian of the children because she felt that the children would be better off living with her in her home during the school year. Mr. Leary, on the other hand, in his pleadings sought sole custody. 3 The trial judge denied Mr. Leary’s sole custody request and ordered, “Case [sic] and custody of the minor children ... be awarded to Barbara C. Leary.” Mr. Leary is unhappy about this and points to Ms. Leary’s testimony to vindicate his position that the trial judge should, at a minimum, have awarded joint custody of the children. ³⁶ The trial judge has the authority to determine custody, regardless of whether “joint custody has existed in the past, or award custody to one of the parents, or to a third person, depending upon what is in the best interests of the child.” Taylor v. Taylor, 306 Md. 290, 301 , 508 A.2d 964 (1986). The Court of Appeals in Taylor, 306 Md. at 296 , 508 A.2d 964 , stated: “Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” The Court in Taylor went on to state that “joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.” In determining the propriety of joint custody, the Court opined that “joint custody is not appropriate in every case. Indeed, it has been suggested that it is appropriate only in a small minority of cases.” Taylor, 306 Md. at 302-03 , 508 A.2d 964 .

The most important factor in determining whether an award of joint legal custody is appropriate is the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare. According to the Taylor Court, “[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.” Taylor, 306 Md. at 304 , 508 A.2d 964 . In the instant case, the trial judge had ample opportunity to observe the parties and to determine whether the parties could effectively communicate. The trial judge found, in pertinent part: “From the testimony, it is evident to the Court that Mrs. Leary appears to be the primary party responsible for taking the children to the dentist and the doctor and caring for their needs in this regard.

She has additionally as ³⁷ sumed the costs for uncovered medical & dental expenses. (This may occur because her income is above his; Mr. Leary has not[,] however, contributed even though this has been requested.) “The parents are both devoted and dedicated to their children; and while we will not set forth or belabor in detail the involvement of each parent in all the activities, we find them to be as set forth in each memorandum submitted by the parties. “The bottom line in any custody dispute is: what is in the ‘best interests’ of the children?, Ross v. Hoffman, 280 Md. 172 [ 372 A.2d 582 (1977) ]; and a judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders. The agony is complicated even more when both parties are dedicated and devoted, as we have previously found these parties to be. “We further find that neither parent is unfit and that they sincerely love their children. “This is, however, subject to caveat. It is apparent to the Court — and we so find — after having heard the testimony and judged the credibility of the parties[ ] and their witnesses that Mrs. Leary is more mature than Mr. Leary who, even at this stage of his life, appears to be subject to parental domination.

She is more sincere, more realistic in her approach to life and is better equipped to plan for the future best interests of the minor children, and we award her custody.” (Emphasis in original.) (Footnote omitted.) Given the fact that the parties requested different types of custody at different times in the proceedings, we wish the judge’s order had defined custody more clearly. When questioned about the possibility of sharing custody, Ms. Leary testified that she thought that it would be possible. In addition, at one point she asked for “physical” custody. Mr. Leary at all times was firm in his position that he wanted sole custody of the children.

We are, however, constrained to read ³⁸ the judge’s order in a manner that assigns the words contained in it their plain meaning. We have reviewed the record and find ample evidence to support the award of sole legal custody to Ms. Leary. For instance, at one point near the end of the marriage, Ms. Leary suggested marital counseling, but, according to the evidence, Mr. Leary declined to participate; therefore, Ms. Leary went alone. There was also evidence that Mr. and Ms. Leary were unable to discuss their respective medical problems with each other and Ms. Leary was afraid to tell Mr. Leary of the specific date that she was moving out of the marital home based on her fear that he would physically assault her.

The record is also replete with examples of the parties’ lack of ability to communicate. Moreover, the evidence supports the court’s finding that Ms. Leary was, and continued to be, the principal caretaker of the children. With respect to the way decisions regarding the children were made, Mr. Leary testified that he was dissatisfied with the way Ms. Leary communicated and failed to cooperate in connection with the children’s activities. Although he placed the responsibility for this situation on Ms. Leary, the trial judge did' not make a finding on that point either way.

Mr. Leary argues that, by denying him joint custody, the children will be deprived of an added benefit that he is able to provide. Specifically, his airline employment permits the children to travel stand-by free of charge and the children have taken advantage of this opportunity on numerous occasions to visit family members and ejoy vacations. He contends that if he loses his status as joint legal custodian, airline regulations will not allow the children to fly at no cost and that this “would severely impact on the children’s ability to maintain their ties with their paternal family.” We do not comment on this particular issue as it was not before the trial judge; hence, neither he nor we could consider this allegation. Mr. Leary argues that he did not present any evidence because he was lulled into complacency, thinking that he ³⁹ would have at least been named joint custodian, but that does not alter our range of review.

See Rule 8-131(a). Custody was sought by both parties in their pleadings and custody was the issue being tried by the court. In view of this, Mr. Leary was not justified in taking joint custody as a given. The test is not whether we would have made the same decision the trial judge made.

The test is whether the trial judge was clearly erroneous in his findings — we cannot say he was; and whether, given those findings, he abused his discretion — we cannot say he did. COUNSEL FOR THE CHILDREN At the conclusion of the October 31, 1992 hearing in which both parties presented their case-in-chief, but prior to any rebuttal testimony, the trial judge decided to appoint counsel for the minor children. In making the decision to appoint counsel for the children, the trial judge commented that he would not place “a whole lot of credence in talking to children” because, in his experience, the children often express preferences to live with one parent for improper or immature reasons. This action to appoint counsel was not lightly taken by the trial judge, as he had denied a prior request for such an appointment.

Mr. Leary complains that “[d]ue process requires that the parties know precisely what the role of child counsel will be from the time of his or her appointment, in order to properly prepare for, and respond to, the evidence child counsel will present.” The short answer is that Mr. Leary failed to ask for such instruction when the judge stated that he was going to appoint counsel, failed to object that no specific instruction was given after counsel was appointed, and failed to object to lack of instruction when counsel testified. The more relevant answer is that, regardless of whether appointed counsel was properly instructed, she did in fact provide the trial judge with what he needed. In a report by the Counsel for Kids Subcommittee of the Maryland State Bar Association Family Law Section (Counsel ⁴⁰ Report), the Subcommittee noted that in practice there exists “a lack of clarity of the purpose for the appointment and the role of the attorney.” The report identifies three roles that counsel for the child could fulfill: the waiver role (to decide whether to waive the patient-psychiatrist privilege for the child) Nagle v. Hooks, 296 Md. 123, 128-29 , 460 A.2d 49 (1983); the guardian ad litem role (attorney for the child) Levitt v. Levitt, 79 Md.App. 394, 403-05 , 556 A.2d 1162 cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989); and the role of investigator (an investigative report to the court by counsel, social worker, psychiatrist, psychologist, or trained investigator with or without recommendations) see Counsel Report, supra, at 3-4. Other roles identified for attorneys have been as mediator or as an amicus curiae in an independent fact-finding position.

See Elrod, Linda D. Counsel for the Child in Custody Disputes: The Time is Now, 26 Fam.L.Q. 53, 57 (Spring 1992). The Counsel Report concludes by stating that “the Court should identify the responsibilities [of the court-appointed attorney] in its order appointing counsel.” Counsel Report, supra, at 5. Each one of the roles that an attorney for the children can assume may lead to an inherent tension between the attorney’s role as advocate for the child and his or her duty to the court. In some cases, this may lead the attorney perilously close to violating the Model Code of Professional Responsibility.

This subject has recently received a great deal of attention by both courts and commentators and is worth taking a closer look at since it is raised in the context of this case. —The Attorney As Guardian or Advocate?— When the court appoints an attorney to be a guardian ad litem for a child, the attorney’s duty is to make a determination and recommendation after pinpointing what is in the best interests of the child. Elrod, supra, 26 Fam.L.Q. at 59. The attorney who assumes the traditional guardian ad litem role has a responsibility primarily to the court and therefore has absolute immunity for “judicial functions,” which include testifying and making reports and recommendations. ⁴¹ This more traditional role is defined by the court and the attorney looks to the court for direction and remuneration. 4 If, however, the attorney takes on a task that is outside of the clearly defined scope of the guardianship duties, judicial immunity may well not attach. A dichotomy exists between the attorney as guardian and the attorney as advocate, and the lines become very easily blurred.

An attorney who has been appointed by the court has to be ever mindful of the Rules of Professional Conduct. In particular, an attorney may run afoul of the dictates of Rule 1.14, which sets forth the guidelines for representation of a client under a disability. 5 The Comment that accompanies Rule 1.14 states in part: “The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a mental disorder or disability, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, an incapacitated person may have no power to make legally binding decisions.

Nevertheless, a client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.” ⁴² Perhaps the best example, for purposes of illustration, is when the child expresses an interest in living with one parent, yet the attorney believes that this would not be in the child’s “best interests.” Does the attorney vigorously advocate the child’s position as required by the Rules, or does the attorney make the decision as to what is best for the child and present that to the court? The question is more easily explored than answered.

At this writing, the answer is “it depends.” There appears to be two schools of thought in answering that question: “One school holds that the child’s preference is but one fact to be found, while the other maintains that without full advocacy of the preference there would be little reason to have a child’s representative at all.” Note, Lawyering For the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126 , 1141 (1978). An intermediate view suggests that there should be a “continuum of roles rather than the extremes of advocate and factfinder.” 87 Yale L.J., supra, at 1141. In a study of 18 Connecticut attorneys who had received appointments as counsel for children in divorce-related disputes, the researchers observed that some of the attorneys would characterize their role as either advocate or factfinder, yet they would discuss responsibilities that were inconsistent with the characterization. 87 Yale L.J., supra, at 1146. Those attorneys who stated that they served an advocate’s role explained that this meant representing the child the way that they would an adult client. 87 Yale L.J., supra, at 1146.

These same “advocates,” however, also stated that there were instances in which they felt compelled to serve child-protective functions, which included counselling the parents, attending to the child’s emotional needs during the litigation, and, in one extreme instance, making a recommendation that was the direct opposite of what the child/client wanted. 87 Yale L.J., supra, at 1147. One attorney who was questioned during the study described his role as that of an advocate; however, upon questioning, it was determined that the attorney never discussed ⁴³ or discerned his client’s custodial preference. 87 Yale L.J., supra, at 1149. Instead, the attorney stated that he spent his time with the parents trying to concentrate on a resolution “in which the ‘losing parent’ would not feel ‘terribly embittered, vilified.’ ” 87 Yale L.J., supra, at 1149. The Yale article concludes that this type of deviation from a pure advocacy role might not be such a bad thing: “Attorneys who identified themselves as advocates had clear conceptions of that role.

An advocate should work to persuade the court to follow the client’s preference by making motions, asserting arguments, drawing stipulations, and taking appeals if necessary. An advocate should help the adversary process by freeing parents’ lawyers to give their clients undiluted loyalty. In practice, however, these attorneys performed in ways not suggested by their own role conceptions. They ignored, evaluated, or rejected the preference of the child; they worked to gather all available facts and sometimes did not advance a position to the court; they mediated between and counseled parents and tried to help them develop realistic perspectives.

By responding to the needs of children in the process as well as in the outcome of adjudications, these attorneys may have advanced the interests of their clients more than would an attorney who limits himself to advocacy.” 87 Yale L.J., supra, at 1150. The Yale authors also examined the role of attorneys who identified their tasks as aiding the court by fact finding. Some of the members of this group stated that their role was to “take on advocacy, counseling, and mediating responsibilities.” 87 Yale L.J., supra, at 1150. Others explained that their roles were to make sure that the court had all the facts available.

In doing so, one attorney surveyed “investigated allegations of abuse, tracked down police records of a mother’s boyfriend, and questioned neighbors to check out the stories given by both sides.” 87 Yale L.J., supra, at 1151. “In sum, attorneys who labeled themselves factfinders frequently described ways in which they evaluated evidence, shaped an argument for the court, decided to curtail an ⁴⁴ investigation, and negotiated settlements. The one attorney who confined himself to investigation concluded that this failed to protect the interests of the child. For the other attorneys, who went ahead and took on duties other than factfinding, the theoretical role conceptions proved simply irrelevant and were discarded unnoticed as the attorneys responded to their perceptions of the child’s interests.” 87 Yale L.J., supra, at 1153. Recognizing that there is a growing need to define more clearly an attorney’s role in custody disputes, the American Bar Association is looking toward drafting standards.

Also the bar associations in various states, such as Connecticut, are in the