McCarty v. McCarty

MOYLAN, Judge. This case concerns the award of joint legal custody to the estranged parents of three-year-old Jessica McCarty. The appellant, Carol Marie McCarty (the Mother), and the appel-lee, Douglas Neal McCarty (the Father), were married on January 31, 1998. Jessica was born on August 8, 1999.

The parties separated on November 17, 2000. The Father filed a motion in the Circuit Court for Montgomery County, asking for both joint legal custody and joint ²⁷¹ physical custody of his daughter. The Mother filed a counter-complaint in the same court, asking for a limited divorce and for sole custody, both legal and physical, of her daughter. After three rounds of hearings stretching from July 2, 2001, through February 25, 2002, Judge Ann N. Sundt, on March 4, 2002, awarded sole physical custody to the Mother but joint legal custody to the Mother and Father.

The Mother has taken this appeal from that award of joint legal custody. Joint Legal Custody Versus Joint Physical Custody Initially, it will be helpful to contrast joint legal custody and joint physical custody. Although the landmark case of Taylor v. Taylor, 306 Md. 290 , 508 A.2d 964 (1986), discusses both forms of joint custody, it is careful to distinguish the two from each other. Writing for the Court of Appeals, Judge McAuliffe, 306 Md. at 296 , 508 A.2d 964 , first described joint legal custody. [A] distinction must be made between sharing parental responsibility in major decision-making matters and sharing responsibility for providing a home for the child.

Embraced within the meaning of “custody” are the concepts of “legal” and “physical” custody. 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. 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. (Emphasis supplied).

Contrasted with joint legal custody is the very different phenomenon of joint physical custody. Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality “shared” or “divided” custody. ²⁷² Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. 306 Md. at 296-97 , 508 A.2d 964 (emphasis supplied). Taylor v. Taylor cautions, 306 Md. at 297 , 508 A.2d 964 , that it is vitally important to keep the two phenomena distinct.

Proper practice in any case involving joint custody dictates that the parties and the trial judge separately consider the issues involved in both joint legal custody and joint physical custody, and that the trial judge state specifically the decision made as to each. (Emphasis supplied). The only issue before us in this case is joint legal custody, and not joint physical custody. A cautionary note is in order in that many of the “joint custody considerations” discussed and analyzed in Taylor v. Taylor are more pertinent to the issue of joint physical custody than they are to the distinct issue of joint legal custody.

A Deferential Standard of Appellate Review As we approach our review of Judge Sundt’s award of joint legal custody, we observe that the standard of appellate review is both limited and deferential. As Judge Adkins explained for this Court in Barton v. Hirshberg, 137 Md.App. 1, 24-25 , 767 A.2d 874 (2001): Appellate review of a trial court’s custody determination is limited. The standard of review in custody cases is whether the trial court abused its discretion in making its custody determination. See Robinson v. Robinson, 328 Md. 507, 513 , 615 A.2d 1190 (1992).

In Davis v. Davis, 280 Md. 119 , 372 A.2d 231 , cert. denied, 434 U.S. 939 , 98 S.Ct. 430 , 54 L.Ed.2d 299 (1977), the Court explained that “when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon ²⁷³ factual findings that are not clearly erroneous, the chancellor’s decision should be disturbed only if there has been a clear abuse of discretion.” Id. at 126, 372 A.2d 231 . Again, “[pjarticularly important in custody cases is the trial court’s opportunity to observe the demeanor and the credibility of the parties and witnesses.” Petrini v. Petrini, 336 Md. 453, 470 , 648 A.2d 1016 (1994). (Emphasis supplied). See also Leary v. Leary, 97 Md.App. 26, 35-39 , 627 A.2d 30 (1993).

Significantly, in none of the three decisions we have found dealing with joint custody was the discretionary decision of the chancellor overruled as a clear abuse of discretion. In Taylor v. Taylor the precise decision made by the chancellor was unclear and the case was, therefore, remanded simply for a clarification. In both Barton v. Hirshberg and Leary v. Leary, the decisions of the chancellors were affirmed as not having been clear abuses of discretion. Although appellate opinions frequently give a lot of advice, they rarely, if ever, actually find a reversible abuse of discretion on this issue.

In dealing with the standard of appellate review for assessing discretionary rulings as to child custody generally, the Court of Appeals, speaking through Judge Digges, could not have been more emphatic in Davis v. Davis, 280 Md. 119 , 131— 32, 372 A.2d 231 (1977): A case such as this, where custody might well have been awarded to either parent, aptly demonstrates the advisability of leaving to the chancellor the delicate weighing process necessary in child custody cases; to disturb the award here would require that we substitute our judgment for that of the chancellor, and an appellate court sits in a much less advantageous position to assure that the child’s welfare is best promoted. (Emphasis supplied). In affirming another custody decision in Ross v. Hoffman, 280 Md. 172, 186 , 372 A.2d 582 (1977), Judge Orth was equally emphatic about the highly deferential nature of appellate review of such discretionary decisions. ²⁷⁴ It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion of the chancellor exercised was clearly abused.

This is the principle which controls the review of any matter within the sound discretion of a trial court. (Emphasis supplied). See also Petrini v. Petrini, 336 Md. 453, 470 , 648 A.2d 1016 (1994); Robinson v. Robinson, 328 Md. 507, 513-14 , 615 A.2d 1190 (1992). The Significance of Apparent Unwillingness To Participate in a Shared Custody Arrangement The Mother points to two factors to support her claim that Judge Sundt was guilty of a clear abuse of discretion in awarding joint legal custody.

One is her own reluctance to share legal custody. One of the joint custody considerations . discussed by Taylor v. Taylor, 306 Md. at 307-08 , 508 A.2d 964 , is the “willingness of parents to share custody.” This is a factor that self-evidently applies to joint legal custody and joint physical custody alike. As Taylor v. Taylor discusses, 306 Md. at 307 , 508 A.2d 964 : Generally, the parents should be willing to undertake joint custody or it should not be ordered. In Taylor v. Taylor, however, the Court of Appeals rejected the proposition “that a trial judge may never order joint legal custody over the objection of one parent.” Id.

It was unwilling to grant either parent “veto power” over such a possibility. [W]e are unwilling to fashion a hard and fast rule that would have the effect of granting to either parent veto power over the possibility of a joint custody award. A caring parent, believing that sole custody is in the best interest of the child, may forcefully advance that position throughout the litigation but be willing and able to fully participate in a ²⁷⁵ joint custody arrangement if that is the considered decision of the court. 306 Md. at 308 , 508 A.2d 964 (emphasis supplied). The Mother’s reluctance to share legal custody, moreover, does not come across to us as an adamantine or Shermanesque refusal to participate in the event that such an arrangement were to be ordered by the court. She had moved, after all, for sole legal custody in herself and her position on joint custody, expressed in her brief, simply supports that position.

All pleadings filed by Appellant in