Miller v. Bosley

HARRELL, Judge. Terry Lynn Miller, defendant below, appeals an order granting pendente Ute custody 1 of her daughter to Lori Sue Dell, the child’s paternal aunt. Mrs. Dell was not a party to the underlying custody action filed by the child’s father, Jeffrey Edward Bosley. The trial judge, based upon a report and recommendation of a master, issued his order establishing pendente lite custody and visitation for the minor child.

The trial judge ordered an immediate transfer of custody pursuant to Rule S74A, now codified as Md. Rule 9-207 2 . Ms. Miller appeals this interlocutory pendente lite order pursuant to Md. Cts. & Jud. Proc.Code Ann. § 12-303(3)(x). We shall vacate that order and remand.

FACTS On 15 July 1991, the parties’ daughter was born. The parties’ tumultuous relationship began in May 1989 and ended in May of 1995. Appellee initiated the judiciary’s involvement in the custody of his daughter by filing his 19 February 1993 Complaint for Immediate Custody and Motion for Emergency Hearing/Ex Parte Relief. A hearing ensued that same day.

Ms. Miller appeared at that hearing pro se and Mr. Bosley appeared with assistance of counsel. The court exercised appropriate jurisdiction over the matter, ordered that custody was to remain with the mother, and held its final determina ³⁸⁶ tion regarding custody in abeyance until it received a report from the Department of Social Services. The custody portion of this matter 3 thereafter remained dormant for many months. As appellee admits in his brief, this case is one plagued by delay.

Postponements, changes of attorneys, and at least one attempted reconciliation between the parties, delayed farther judicial consideration of custody until 9 November 1995. A master, pursuant to Rule S74A(a)(l)(F) 4 , was charged with conducting a hearing regarding the custody of the child on that date. At the hearing, apparently a total of thirteen witnesses testified concerning the parents’ fitness to care for the child. For reasons we shall address more fully below, the record does not contain a transcript of that hearing.

Following the master’s hearing, Mrs. Dell petitioned the court to be named a party to the action. We found no indication in the record that her request was granted. The master issued his report, and mailed copies to the parties, on 28 December 1995. The portion of that report purporting to reveal the master’s findings and recommendations is reproduced below.

I find as a fact that the Plaintiff, age 28 and the Defendant, age 25, are the biological parents of [the child] who was born on [15 July 1991]. These parties had a relationship from May, 1989 until the end of May, 1995; in this relation ³⁸⁷ ship the parties lived together at various places and they often separated and for periods of time did not live together at all. Little, if anything else, can be stated as a fact. Little faith can be put in the Defendant’s testimony; she is contradicted by her own witnesses.

During much of the parties’ relationship, the Defendant appears not to have worked either at a job or as a parent. There is an abundance of testimony supporting the conclusion that she was content to let others take care of the child while she apparently took it easy and did nothing. It is certain that she used bad vulgar language in the presence of the child because this is testified to by her own witnesses as well as witnesses for the Plaintiff. As to her lack of cleanliness and lack of attention to the child, the testimony is contradictory.

The Defendant denies having used drugs since the birth of the child but other witnesses testify clearly that she has used drugs since then including up to the present time. Interestingly enough, the Defendant admitted that on [1 June 1995] she wrote a letter to the Plaintiff attempting to restore visitation between him and the child and turned around on [14 June 1995] and applied for a domestic violence Order. Now at the end of May, the 29th according to his testimony and the 31st according to her testimony, the parties were discussing their pending marriage on [11 November 1995] when the Defendant abruptly left the place where the parties were living. There is no testimony to explain why she applied for a domestic violence Order and it apparently had little validity for it was dismissed.

These are among the reasons we have concluded that the Defendant is not a credible witness. The Plaintiffs track record is not as bad as the Defendant’s but it too leaves much to be desired. He has two children by another woman and her testimony is that he pays no attention to them. Whether he presently uses drugs is also uncertain.

There is nothing in his case to lead us to believe that he is truly dedicated to this child. He testified that he has not given the Defendant money for child support because he fears she will spend it on herself. ³⁸⁸ His relationships with women seem to be solely based by his sexual needs with no real sense of commitment to either woman or the child or children of his that she bears. Faced with the dilemma of not knowing who to believe and doubting the responsibility of both parents, we believe, on a pendente lite basis, that the best interests of this child will be served by granting custody to the Plaintiffs sister, Lorri[e] Sue Dell. She appears to be sincerely interested in the welfare of this child and expressed under oath, in response to a question by the master, that she would be willing to raise this child.

Moreover, she testified that her husband has a responsible job and that he too would be willing to take over the care and custody of this child. Finally, we suggest to the Court that a very thorough and complete investigation be conducted in order to better understand the nature and desires of the biological parents of this child. Md. Rule S74A incorporates the use of masters in domestic relations matters. Under that Rule, and Md. Rule 2-541 5 , masters have the power to issue subpoenas, administer oaths to witnesses, rule on admissibility of evidence, examine witnesses, conduct a hearing, recommend sanctions to the court, and make findings of fact and conclusions of law.

A review of the master’s report, however, reveals that he found and recommended very little. We paraphrase his factual.findings and recommendations below. — The parties are the child’s biological parents. — The parties had a relationship. — The Defendant [appellant mother] is not credible and used vulgar language in the child’s presence. — The Plaintiff [appellee father] is not much better. ³⁸⁹ — The best interests of the child are served by granting pendente lite custody to Ms. Dell. [This finding is not a “first-level” fact. 6 ] — The court should investigate the nature and desires of the child’s parents. The master’s report was devoid of any factual finding indicating that an immediate transfer of custody was necessary or even warranted. The master, however, attached a proposed order, which included, inter alia, language recommending that custody be transferred to Mrs. Dell immediately, pursuant to Md. Rule S74A(f)(2).

The trial judge held a hearing, as required by Md. Rule S74A(f)(2), on 4 January 1996. After oral argument, the judge signed that same day the proposed order, altering only the visitation granted therein. The judge and the parties continued on the record of the 4 Januaiy hearing to discuss what the deadline would be for filing written exceptions to the master’s report. After considering the time computation provisions of Md. Rule 1-203, it was determined that the deadline would fall during the following week.

The deadline passed without a filing of exceptions 7 and appellant noted this appeal of the judge’s 4 January 1996 order on 31 January 1996. ³⁹⁰ Appellant claims that the judge erroneously deprived her of custody of her daughter. Her appeal is founded on the judge’s application of Md. Rule S74A(f)(2) to effect an immediate transfer of custody and the lack of an adequate basis for the ultimate award of pendente lite custody to Mrs. Dell. ISSUES We perceive that appellant raised the following issues, rephrased below, on appeal. 8 I. Was the judge’s disposition of the matter authorized under any provision of Md. Rule S74A(f)?

II

Did the judge properly award pendente lite custody to a third party based upon the master’s report and recommendations? ANALYSIS Preface Before we address the merits of this case, we must comment on the documentation, or lack thereof, provided to this panel by the parties. This is an expedited appeal of a child access case governed by Md. Rule 8 — 207(b) (applying “to every appeal to the Court of Special Appeals ... contesting a judgment granting, denying, or establishing custody of or ³⁹¹ visitation with a minor child”). The parties did not file an agreed statement of the case.

Without an agreed statement, appellant was not excused from filing an adequate record extract pursuant to Md. Rule 8-501(a). Certain excerpts from the record were included as an appendix to appellant’s brief. The appendix did not include copies of the order appealed from (specifically required by Md. Rule 8-501(c)), docket entries, or a custody ruling previously entered in this matter, however. Although we ordinarily will not dismiss an appeal for failure to file a proper record extract, we could direct the filing of an adequate extract pursuant to Md. Rule 8-501(m).

We did not do so in this matter in the interests of justice and mindful of the expedited status of this appeal, deciding instead to conduct our own review of the record. We note that we are never required to “ferret out” from the record evidence omitted from the extract. Hamilos v. Hamilos, 52 Md.App. 488 , 497 n. 3, 450 A.2d 1316 (1982); Eldwick Homes Ass’n v. Pitt, 36 Md.App. 211 , 373 A.2d 957 , cert. denied, 281 Md. 736 , 741 (1977). Our decision to do so in this case stems from our concern for child custody cases generally and especially those in which extraordinary circumstances are asserted as a basis for immediate change of custody.

Our failure to sanction the parties should not be construed as condonation of these serious omissions. /. Before delving into the facts, such as they are, we shall state and discuss those portions of Md. Rule S74A integral to our analysis. Rule S74A. Referral of Matters to Masters. ****** c.

Findings and Recommendations. The master shall notify each party of the master’s recommendations, either on the record at the conclusion of the hearing or by written notice served pursuant to Rule 1-321.... ³⁹² d. Exceptions. Within five days after recommendations are placed on the record or served pursuant to section c of this Rule, a party may file exceptions with the clerk.

Within that period or within three days after service of the first exceptions, whichever is later, any other party may file exceptions. Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in exceptions is waived unless the court finds that justice requires otherwise. f. Entry of Orders (1) In General.

Except as provided in subsections (2) and (3) of this section. (A) the court shall not direct entry of an order or judgment based upon the master’s recommendations until the expiration of the time for filing exceptions, and if exceptions are timely filed, until the court rules on the exceptions; and (B) if exceptions are not timely filed, the court may direct the entry of the order or judgment as recommended by the master. (2) Immediate Orders as to Pendente Lite Relief Upon a finding by a master that extraordinary circumstances exist and a recommendation by the master that an order concerning pendente lite relief be entered immediately, the court may direct the entry of an immediate order after reviewing the file and any exhibits, reviewing the master’s findings and recommendations, and affording the parties an opportunity for oral argument. The court may accept, reject, or modify the master’s recommendations.

An order entered under this subsection remains subject to a later determination by the court on exceptions. (3) Contempt Orders. On the recommendation by the master that an individual be found in contempt, the court may hold a hearing and direct the entry of an order at any time. ³⁹³ We recently interpreted certain portions, including Section (d), of Md. Rule S74A in Morales v. Morales, 111 Md.App. 628 , 683 A.2d 1124 (1996). In that case, we construed the Rule in accordance with the plain meaning of its language.

Id. at 632 , 683 A.2d 1124 . “When interpreting a rule the same standards and principles apply as those utilized in interpreting a statute.” Id. at 632 , 683 A.2d 1124 (quoting Stach v. Stach, 83 Md.App. 36, 40 , 573 A.2d 409 (1990)). We shall not deviate from this approach in the instant case as we are able to interpret the Rule consistent with the plain meaning of its language. Preliminarily, we note that Section (d) applies to all matters referred to a master pursuant to Md. Rule S74A. The general effect of exceptions is that “any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise”.

This waiver applies to all cases, independent of the entry of the order under Section (f). In short, in all cases lacking timely exceptions, any claim that the master’s findings of fact were clearly erroneous is waived. Because no exceptions were filed in the instant case and to the extent that the master made first-level findings of fact, we, the chancellor, and the parties must accept those facts as established for purposes of the pertinent proceedings leading to this appeal. In other words, if appellant’s sole basis for appeal was that the master’s factual findings, such as they are, were clearly erroneous, her failure to file exceptions would have proven fatal to such an argument.

We perceive, however, that appellant, accepting as she must that the master’s first-level fact finding is unassailable here, assigns error to the trial judge in the exercise of his independent judgment as to the propriety of his disposition of the case from those facts. We conclude that, under the circumstances in this case, we may review the chancellor’ actions. Section (f) specifically limits the power of the trial judge to enter an order following a master’s hearing. The trial judge purported to issue his opinion under subsection (2) of that section.

Appellee has not argued that the judge’s ³⁹⁴ order was sustainable on any other basis. Accordingly, we limit our analysis to that subsection and do not consider whether the chancellor’s disposition would have been proper under the other provisions of Md. Rule S74A(f). Md. Rule S74A(f)(2) allows the judge to act immediately if the master finds “extraordinary circumstances” and recommends immediate disposition. As we noted in the fact section of this opinion, the master did not make the requisite finding that extraordinary circumstances exist, although he did recommend an immediate change of custody.

We conclude that the master’s failure to predicate his recommendation on a finding of “extraordinary circumstances” prevents disposition under Md. Rule S74A(f)(2). In so concluding, we note that the lengthy delay of fifty days between the master’s hearing and the issuance of his report supports a reasonable inference that there was no immediate threat to the child constituting an extraordinary circumstance. This is a further reason why the master’s omission of any clear explanation of what could have been an extraordinary circumstance prevented the chancellor from relying on the master’s report as a predicate for his action to order an immediate change in custody.

II

We further determine that, even had extraordinary circumstances been discemable from the report of the master, clear error still existed. We explain. Generally, the court stands as a guardian to all children, and may take action to protect and advance their welfare and interests. See Boothe v. Boothe, 56 Md.App. 1, 6-7 , 466 A.2d 58 (1983).

Such action can include an award to a third party, even in the absence of abandonment or neglect, if that award is in the best interests of the child. See Thumma v. Hartsook, 239 Md. 38 , 210 A.2d 151 (1965) (holding that circuit court could award temporary custody to the Montgomery County Welfare Board even though the Welfare Board was not a party