McMahon v. Piazze

RODOWSKY, J. The issue here is whether the Circuit Court for Montgomery County erred in dismissing for failure to state a claim, without leave to amend, appellant’s petition to modify a consent child custody order. As explained below, we shall remand in order to give appellant an opportunity to proffer facts in support of obtaining leave to amend. Appellant, Gary McMahon (McMahon), and appellee, Ada Inez Piazze (Piazze), are the parents of Patrick Piazze-McMa-hon (Patrick), born August 17, 1991. They executed a Voluntary Separation and Property Settlement Agreement (the Agreement) on April 8, 1999, which provided for joint legal and shared physical custody of their son.

One month later Piazze fíled a petition for full custody of Patrick, and McMahon counterclaimed for full custody. Further negotiations produced a Consent Custody Order (Consent Order) entered on January 11, 2000. The Consent Order grants the parties joint legal and shared physical custody of Patrick and details the allocation of Patrick’s time between the parties. The parties divorced in August 2000.

They continued to operate under the terms of the Consent Order until May 28, 2004, when McMahon filed a verified Petition for Modification of that Order (the Petition). The Petition, inter alia, sought changes to a number of provisions in the Consent Order relating to the allocation of physical custody between the parties, but McMahon did not ⁵⁹² request sole custody. In support of the relief requested in the Petition, he alleged: “7. The current situation, including the residents and circumstances of the home life at [Piazze’s] residence, and [McMahon’s] residence, Patrick’s age and maturity, and other things, constitute a material change of circumstances from the circumstances at the time the Consent Order was entered. “8.

It is in the best interest of Patrick that the foregoing adjustments be made to the parties^] Consent Custody Order.” McMahon attached to the Petition a proposed “Revised Consent Custody Order.” Piazze filed a verified Motion to Dismiss the Petition (the Motion), arguing that it had failed to state a cause of action in that no material change in circumstances affecting Patrick’s welfare was alleged. The Motion averred that “the changes [McMahon] seeks have nothing to do with Patrick’s welfare and everything to do with [McMahon’s] drive for added access at [Piazze’s] expense and his plan to move Patrick to Virginia with his new wife and ultimately to gain full custody of Patrick.” Piazze requested a hearing on the Motion. McMahon responded to the Motion, elaborating slightly on the alleged “material changes.” He explained: “[T]he presence of [Piazze’s] mother in her household, which existed when the parties entered the Consent Custody Order, has changed, back and forth, since then. The parties’ son has just recently reached an age where after-school care is not necessary[.]” 1 At the hearing on the Motion, McMahon argued that he need not show a material change in circumstances to obtain “minor” changes in the Custody Order. 2 The court did not ⁵⁹³ agree and dismissed the Petition, stating that “there is not sufficient material change in circumstances that is even alleged in the [Petition] to bring it to the level of being heard.” The order of dismissal did not expressly grant leave to amend.

See Maryland Rule 2-822(c). This appeal followed. McMahon raises the following questions for our review: “[1] Did Gary McMahon adequately plead a material change in circumstances? “[2] Did the lower court err in refusing to grant leave to amend the pleadings?” I. Legal Standards For Modification of the Order In resolving child custody disputes, courts must respect the fundamental nature of parental rights. As we have recognized, “[t]he right to rear one’s child has been deemed to be ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S.Ct. 625, 626 , 67 L.Ed. 1042 (1923), and encompassed within a parent’s ‘basic civil rights,’ Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110, 1113 , 86 L.Ed. 1655 (1942).

Therefore, a court must act with the utmost caution and circumspection in determining to whom a child’s custody will be awarded. ‘The well-being of the child, both present and future, is usually profoundly affected by the court’s resolution of the private dispute over who shall be entrusted with its care.’ ” Wagner v. Wagner, 109 Md.App. 1, 37 , 674 A.2d 1, 18-19 , cert. denied, 343 Md. 334 , 681 A.2d 69 (1996) (some citations omitted). In child custody cases, the circuit court functions as both a protector of the child and as the resolver of a dispute between the parents. See Ross v. Hoffman, 280 Md. 172, 174-75 , 372 A.2d 582, 585 (1977). When presented with a request for a change of, rather than an original determination of, custody, courts employ a ⁵⁹⁴ two-step analysis.

First, the circuit court must assess whether there has been a “material” change in circumstance. See Wagner, 109 Md.App. at 28 , 674 A.2d at 14 . If a finding is made that there has been such a material change, the court then proceeds to consider the best interests of the child as if the proceeding were one for original custody. See id.; Braun v. Headley, 131 Md.App. 588, 610 , 750 A.2d 624, 636 , cert. denied, 359 Md. 669 , 755 A.2d 1139 (2000), cert. denied, 531 U.S. 1191 , 121 S.Ct. 1190 , 149 L.Ed.2d 106 (2001).

These two analyses, however, often are interrelated. As the Court of Appeals has explained, although there sometimes clearly exists no change in circumstance triggering a reevaluation of the custody arrangement, “[i]n the more frequent case, ... there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child. Thus, the question of ‘changed circumstances’ may infrequently be a threshold question, but is more often involved in the ‘best interest’ determination[.]” McCready v. McCready, 323 Md. 476, 482 , 593 A.2d 1128, 1131 (1991).

A change in circumstances is “material” only when it affects the welfare of the child. Id. The issue in the above-cited cases was whether physical custody should be changed from one parent to the other. In the case before us, McMahon does not request that relief.

(Piazze would say, “Not yet.”) He does request certain modifications to the shared custody schedule, and in those respects the Petition is analogous to a request for a change in visitation. Because, as explained below, the purpose underlying the material change requirement is the same, whether the requested change is in custody or in a visitation schedule, we reject McMahon’s contention that a material change in circumstances is not required for a contested “minor” change. The Court of Appeals has explained that the requirement of a showing of “material change” has its roots in principles of claim and issue preclusion. ⁵⁹⁵ “The provisions of the chancellor’s decree with respect to the custody and maintenance of [an] infant are ... res judicata with respect to these matters and conclusive upon both husband and wife so far as concerned their rights and obligations at the time of the passage of the decree. But the conditions which determine the custody and care of the infant and the amount necessary for its maintenance are not fixed, and may change from time to time, and, so, from considerations of policy and the welfare of the infant, a material alteration in the substantial circumstances will take the particular provisions of the decree with reference to the custody and maintenance of the infant out of the rule of res judicata and authorize a change, from time to time, of the decree in these respects.” Slacum v. Slacum, 158 Md. 107, 110-11 , 148 A. 226, 228 (1930).

Similarly, this Court has held that res judicata does not apply to bar a successive termination of parental rights case where there has been a change in circumstances affecting the child’s welfare since the earlier hearing. Scott v. Prince George’s County Dept. of Social Servs., 76 Md.App. 357, 375-80 , 545 A.2d 81, 90-92 , cert. denied, 314 Md. 193 , 550 A.2d 381 (1988), cert. denied, 492 U.S. 910 , 109 S.Ct. 3226 , 106 L.Ed.2d 575 (1989). In Campbell v. Campbell, 477 S.W.2d 376 (Tex.App.1972), the court explained: “Except for the determination of venue, the distinction between a suit for change of custody and one for modification of visitation