McAllister v. McAllister

ARTHUR, J. This appeal involves a particularly acrimonious custody dispute. The Circuit Court for Howard County denied the father’s complaint to modify custody and rejected his attack on the attorney whom the court had appointed to represent his two minor children. In the process, the court held the father in contempt for willfully refusing to pay child support, alimony, and other childcare expenses and ruled that he lacked substantial justification to prosecute his case after the first of several hearings. We shall affirm.

Factual and Procedural History The parties to this dispute are Brian and Theresa McAllister, the natural parents of 13-year-old Ian McAllister and 10-year-old Ethan McAllister. We recount the pertinent facts in ³⁹⁰ the light most favorable to Ms. McAllister, the party who prevailed below. L.W. Wolfe Enters., Inc. v. Maryland Nat’l Golf, L.P., 165 Md.App. 339, 343 , 885 A.2d 826 (2005). A. Separation, Divorce, and the Initial Disputes Over Custody The McAllisters’ marriage deteriorated, resulting first in separation and then, on February 28, 2012, with a judgment of absolute divorce that incorporated prior written agreements between the parties.

Those agreements included a “parenting agreement” that awarded Ms. McAllister sole legal custody and primary physical custody over the children; Mr. McAllister received visitation rights. In the period leading up to the divorce and in its immediate aftermath, neither parent behaved admirably. Ms. McAllister admitted that she was angry and that she said and wrote inappropriate things at the time. On one occasion, in December 2011, she called the police in an apparent effort to get the children away from Mr. McAllister.

On another, in January 2012, she insulted him, threatened to call the police, and gratuitously reminded him that she had sole custody. Both before and after the divorce, she would depart from the terms of the parties’ visitation agreement, keep the children during her husband’s time, and interfere with his visitation rights. Mr. McAllister saved videorecordings from the same period, evidently believing, erroneously that they would cast him in a favorable light. At the trial of this matter, the domestic master disagreed, calling one of the recordings “particularly disturbing.” That recording showed the parents arguing, in the children’s presence, while the older child, Ian, was becoming visibly “uncomfortable.” Neither parent acted responsibly by disengaging.

B. Mr. McAllister’s Arrest on April 14, 2012, and Its Consequences Even before the divorce, Mr. McAllister’s relationship with Ian had become strained. The strained relationship deterio ³⁹¹ rated further on April 14, 2012, when Ms. McAllister received a text message from her younger son, Ethan, in which the child reported that his father was “beating Ian.” Ms. McAllister responded by calling the police, who came to Mr. McAllister’s residence, interviewed the children, and placed him under arrest. Ms. McAllister followed up by pressing criminal charges against her ex-husband and pursuing a protective order on the children’s behalf. The district court eventually denied a final protective order, the Department of Social Services found that the charges against Mr. McAllister were unsubstantiated, and the State entered a nolle prosequi on the criminal charges.

Nonetheless, the domestic master found, in this case, that “whatever happened” on April 14, 2012, “was frightening and upsetting to the children.” 1 After his arrest, Mr. McAllister did not have any visitation with Ethan until July or with Ian until October. In fact, on at least two occasions, Ian affirmatively refused to go with his father when Mr. McAllister attempted to pick him up at school and to take him to school. Mr. McAllister asserted that his ex-wife had obstructed his visits and tried to turn his sons against him. Ms. McAllister, in turn, argued that the children simply refused to see him even though she continually encouraged them to go. 2 C. Mr. McAllister’s Custody Complaint, His Cessation of Alimony and Support Payments, and the Appointment of the BIA On July 30, 2012, Mr. McAllister filed a complaint for modification of custody, requesting sole custody of the chil ³⁹² dren.

At about the same time, Mr. McAllister began to withhold his monthly alimony and child support payments and to apply them to the mortgage payments on the family home which had been listed for sale, but had not yet found a buyer. Mr. McAllister justified his conduct by arguing that his wife, who was living in the house, had not made the payments even though the divorce judgment did not obligate her to do so. He sought, but failed to obtain, a court order that would have authorized him to redirect the alimony and child support payments to the mortgage payments. Ms. McAllister responded to her husband’s redirection of the alimony and child support payments by petitioning to have him held in contempt.

She responded to the complaint for modification of custody with an answer and motion asking the court to appoint a best interests attorney or “BIA” to represent her sons. See Maryland Guidelines for Practice for Courh-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access, § 2.1.1. Over Mr. McAllister’s objection, the court appointed a BIA on October 18, 2012. In what might be regarded as retaliation for Ms. McAllister’s contempt petition, Mr. McAllister petitioned to have her held in contempt in November 2012 for allegedly denying him his visitation rights.

D. The Conference Call with the BIA on January 23, 2013 The court scheduled a hearing on the custody issue for January 30, 2013. A week before the scheduled hearing date, on January 23, 2013, counsel for both parties participated in a conference call with the BIA, who told them that she would recommend that Mr. McAllister’s custody complaint be dismissed. During that call, counsel for Mr. McAllister expressed his desire that Ian participate in “reunification counseling” with Stanley Sack, Ph.D. Ms. McAllister consented, but the BIA reserved judgment on Dr. Sack. ³⁹³ E. The First Hearing on January 30, 2013 The parties appeared for a hearing before a master on the custody issue on January 30, 2013. After arriving half an hour late, counsel for Mr. McAllister protested that the court had allocated only three hours to the issue, terming it a “violation” of his client’s “due process rights.” With the consent of the administrative judge, the master agreed to allow Mr. McAllister to have additional time to present his case and to give Ms. McAllister a comparable amount of time.

Mr. McAllister took the entire day to present his case, calling three witnesses (including himself) and introducing numerous exhibits. At the end of the day, he rested his case, without reservation, and reserved no time for rebuttal. For her part, Ms. McAllister reiterated her consent to reunification counseling with Mr. McAllister’s counselor of choice, Dr. Sack. The BIA agreed as well.

The court eventually scheduled the hearing to resume on April 15, 2013. F. The McClelland Letter Meanwhile, Mr. McAllister had received (and apparently solicited) an unsigned letter, dated January 29, 2013, from Karen McClelland, a licensed clinical social worker who had counseled Mr. and Ms. McAllister (both jointly and individually) and had conducted two “reconciliation therapy” sessions with Ian and his father. In her letter, Ms. McClelland expressed the opinion that Ian was “moderately to severely alienated from his father and visibly conflicted about having a relationship with him.” She asserted that Ms. McAllister had withdrawn Ian from the sessions even though she (the therapist) claimed to have observed progress. She recommended that the court order “reconciliation therapy” and expressed her skepticism that Ms. McAllister would consent (even though Ms. McAllister already had consented to reunification counseling with Dr. Sack).

Mr. McAllister’s attorney had actually spoken with Ms. McClelland before the January 30, 2013, hearing, and had ³⁹⁴ learned that she would not be able to testify on that date. He did not, however, apprise the master of her existence or of her opinions before resting his case, without reservation, at the end of the hearing on that day. Instead, after he had rested his case, he attempted to persuade the BIA to call Ms. McClelland. The BIA, who had also spoken to Ms. McClelland before the hearing, initially took no position on whether Mr. McAllister could reopen his case and call Ms. McClelland.

But when Mr. McAllister submitted a written motion to reopen the case, she opposed it (as did Ms. McAllister). On April 12, 2013, just before the hearing was to resume, the circuit court denied the motion to reopen and awarded attorneys’ fees to Ms. McAllister. G. Mr. McAllister’s Motion to Strike the BIA In the midst of the dispute about whether he could reopen his case, Mr. McAllister opened another front by moving to “strike” the BIA—ie., asking the court to disqualify his children’s lawyer. His motion contained numerous arguments, including allegations that the BIA had been incompetent in failing to “pinpoint” the reason why visitation was not occurring, that she had “concealed” Ms. McClelland’s opinion regarding alienation, that she had engaged in “inexcusable delay” before making a recommendation regarding counseling, that she had incorrectly asserted a privilege as to the children’s communication with a church-based counselor, and that she had exhibited “bias” in her cross-examination of Mr. McAllister at the first day of the hearing.

The circuit court denied the motion and ordered Mr. McAllister to pay the resulting attorneys’ fees and costs. H. The Conclusion of the Custody Hearing on April 15, 2013 Mr. McAllister’s attorney arrived late, again, when the trial resumed on April 15, 2013. Once the proceedings were under way, Ms. McAllister presented her case, which included candid admissions that she had behaved poorly in the past. She ³⁹⁵ claimed, however, that she now encouraged visitation and that Ian simply refused to cooperate.

She also claimed that her ex-husband had exacerbated the tensions with his son by refusing to apologize for his conduct on the day of the arrest, among other things. Two witnesses corroborated Ms. McAllister’s assertion that she urged her children, without success, to see their father. Although Mr. McAllister’s complaint had sought both legal and physical custody, he changed his position in closing argument by abandoning his request for physical custody, instead asking only for sole legal custody. Under his new position, his wife would retain physical custody.

I. The Master’s Report and Recommendation Regarding Custodg Four days later, on April 19, 2013, the master issued her report and recommendation regarding custody. The master’s evenhanded findings assign blame to both parents, but effectively reject Mr. McAllister’s contention that his ex-wife had alienated the children from him. The master specifically found “no evidence” that the lack of visitation after Mr. McAllister’s arrest on April 14, 2012, “was [the] mother’s doing.” She also found that Mr. McAllister was too focused on professing his innocence to perceive how his children had perceived the events of that date. The master emphatically rejected Mr. McAllister’s belated assertion that he should have legal custody while his wife retained physical custody: it would be “a disaster for this family,” she said.

Particularly in a family that had experienced this level of discord, it would not benefit the children if the noncustodial parent had the legal power to control and direct the custodial parent’s choices, the master found. Thus, the master recommended that the children receive counseling, but that physical and legal custody be undisturbed. Finally, the master found that Mr. McAllister was in contempt because of his failure to pay $11,217.85 in alimony, child support, and childcare expenses after visitation had ceased in ³⁹⁶ May 2012. At the same time, the master rejected Mr. McAllister’s contempt allegations, finding that “it is Ian who is refusing to visit” and that there was “no clear evidence” that Ms. McAllister had refused visitation.

J. The Master’s Report and Recommendation on Fees At a hearing on June 5, 2013, the master considered the issue of the allocation of fees as between the parties, including the BIA’s fees. On June 7, 2013, the master issued a report and recommendation on the subject of fees. In that report, the master found that once the parties agreed to use Dr. Sack for reunification therapy for Mr. McAllister and Ian on January 30, 2013, Mr. McAllister lacked substantial justification to maintain the action. Hence, the master recommended that Mr. McAllister be required to pay all of the $8,515.00 in fees that his ex-wife had incurred after that date.

The master also recommended that the parties be required to split the remaining fees, including the BIA’s fees, in proportion to their respective incomes (with Mr. McAllister paying 65 percent, and his ex-wife paying 35 percent). Because the parties, collectively, had incurred over $110,000.00 in fees, the recommendation would require Mr. McAllister to reimburse his wife for another $19,522.23 in fees (in addition to the $8,515.00 in fees that he was required to pay for maintaining the action without substantial justification after January 30, 2013). Turning last to the BIA, the master expressly found that she “went the extra mile to try to understand the situation, the demeanor of the parties, the nature of the conflict, and the needs of her clients.” The master went on to find that the BIA “did an excellent job for the children, and went above and beyond what would be expected of a BIA.” She concluded by finding that the BIA’s efforts were “appropriate” and that her bill was “fair and reasonable.” She recommended that Mr. ³⁹⁷ McAllister be ordered to pay 65 percent of the BIA’s fee of $11,630.00. 3 Mr. McAllister noted exceptions. K. The Circuit Court’s Rejection of the Exceptions On August 12, 2013, the circuit court held a hearing on Mr. McAllister’s 27 exceptions.

Four days thereafter, the court fully adopted the master’s recommendations. In particular, the court found Mr. McAllister in contempt for failing to pay alimony, child support, and childcare expenses; allowed him to purge his contempt by paying the $11,217.85 that the master found him to have withheld; rejected Mr. McAllister’s contempt allegations against his ex-wife; denied his request to modify custody; modified visitation to permit Ian and his father to meet in supervised public places and to participate in joint counseling with Dr. Sack (at Mr. McAllister’s expense); and ordered him to pay the attorneys’ fees and expenses that the master had recommended. To date no reunification counseling has taken place. This timely appeal followed.

The Motion to Dismiss the Appeal Before we proceed to the substance of Mr. McAllister’s appeal, we must first address a preliminary procedural matter: Ms. McAllister’s motion to dismiss the appeal because of deficiencies in the record extract. Consistent with the parties’ general inability to cooperate or work constructively with one another, a dispute arose concerning the contents of the record extract. As the appellant, Mr. McAllister had the duty to prepare the record extract, Md. Rule 8-501(a), which began with the duty to designate those ³⁹⁸ parts of the record that he proposed to include in the extract. Md. Rule 8—501(c)(1).

But while Mr. McAllister’s designations included large portions of the transcripts from the various hearings in the circuit court, he omitted other portions that apparently did not support his contentions or did not depict him in the best light. Ms. McAllister responded by asking Mr. McAllister to include hundreds of additional transcript pages. Mr. McAllister replied that the additional pages were irrelevant and that his ex-wife had requested their inclusion simply to subject him to unnecessary burden and expense. Citing Md. Rule 8-501(d)(4), he took the position that he would include those pages in the record extract only if Ms. McAllister’s attorneys supplied him with a certified check in the amount of $400.00, which he said represented the projected cost of copying them. 4 Ms. McAllister did not respond.

Instead, after Mr. McAllister filed a record extract that omitted the portions of the record that she had asked him to include, she exercised her right, under Rule 8-501(e), to file an appendix to her brief, which included 276 additional pages of pleadings and transcripts. In addition, she moved to dismiss Mr. McAllister’s appeal for noncompliance with Rule 8-501 or, in the alternative, to “correct the record.” 5 ³⁹⁹ Having reviewed Ms. McAllister’s brief and its many important citations to materials that appear only in her appendix, we agree that Mr. McAllister did not comply with his obligation to prepare a record extract that “contain[s] all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal.” Md. Rule 8-501(c). “Ordinarily,” however, “an appeal will not be dismissed for failure to file a record extract in compliance with” Rule 8-501. Md. Rule 8-501(m); accord Goldstein v. Miles, 159 Md.App. 403, 420 , 859 A.2d 313 (2004), cert. denied, 384 Md. 581 , 865 A.2d 589 (2005); Reed v. Baltimore Life Ins. Co., 127 Md.App. 536, 547 , 733 A.2d 1106 (1999).

For an appellate court, the “preferred alternative” is always “to reach a decision on the merits of the case.” Joseph v. Bozzuto Mgmt. Co., 173 Md.App. 305, 348 , 918 A.2d 1230 (2007). Consequently, this Court typically will not dismiss an appeal, even in the face of noncompliance with Rule 8-501, unless the appellee sustains prejudice. Kemp-Pontiac Cadillac, Inc. v. S & M Constr.

Co., 33 Md.App. 516, 524 , 365 A.2d 1021 (1976); accord Joseph, 173 Md.App. at 348 , 918 A.2d 1230 ; see Reed, 127 Md.App. at 547 , 733 A.2d 1106 (noting the absence of prejudice in declining to dismiss an appeal because of noncompliance with Rule 8-501). Here, Ms. McAllister has eliminated any prejudice by diligently supplying the omitted material in the appendix to her brief. Accordingly, we shall not dismiss the appeal. We shall, however, “impose the cost of printing the omitted material on the appellant.” Kemp-Pontiac, 33 Md.App. at 524 , 365 A.2d 1021 ; accord Joseph, 173 Md.App. at 348 , 918 A.2d 1230 ; Reed, 127 Md.App. at 547 , 733 A.2d 1106 . 6 ⁴⁰⁰ Questions Presented Turning, at last, to the substance of the appeal, Mr. McAllister raises four issues, which we restate as follows: 1.

Did the trial court abuse its discretion in denying Mr. McAllister’s motion to reopen his case-in-chief and for awarding attorney’s fees to Ms. McAllister? 2. Did the trial court abuse its discretion in denying Mr. McAllister’s motion to strike the BIA for alleged inadequate representation of Ian, and for awarding attorney’s fees to Ms. McAllister? 3. Did the trial court abuse its discretion by limiting Mr. McAllister’s time to present his case? 4. Did the trial court err in overruling Mr. McAllister’s exceptions to the master’s recommendations regarding custody, visitation modification, contempt and attorney’s fees?

For the reasons that follow, we answer in the negative and affirm each ruling. Discussion A. The Court Did Not Abuse Its Discretion in Denying the Motion to Reopen Mr. McAllister argues that the circuit court erred in denying his motion to reopen his case-in-chief so that he could call the social worker, Ms. McClelland, after he had rested without reservation at the end of the first day of trial on January 30, 2013. We disagree. Mr. McAllister correctly concedes that we must review the circuit court’s ruling for abuse of discretion.

Under that lenient standard, the ruling “will not be reversed simply because the appellate court would not have made the same ruling.” North v. North, 102 Md.App. 1, 14 , 648 A.2d 1025 (1994). Instead, “[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. ⁴⁰¹ We see no abuse of discretion in this case. Mr. McAllister demanded and received additional time to present his case (after arriving late for trial). The court allotted him an entire