Schaefer v. Cusack

MARVIN H. SMITH, Judge (Retired, Specially Assigned). We have here a custody battle between Stephanie Schaefer (Stephanie) and Michael Cusack (Michael). It is on appeal from the Circuit Court for Baltimore City. Multiple issues were raised.

Fortunately, several have been settled by stipulation since the appeal was. filed. We shall discuss the issues seriatim, setting forth such facts as may be necessary for an ²⁹¹ understanding of each issue. We shall affirm in part and reverse in part. Not only do we have multiple issues, but we have a motion to dismiss Stephanie’s appeal and a motion to dismiss what Michael calls his “contingent cross-appeal”.

I. MOTION TO DISMISS THE APPEAL Michael moves to dismiss the appeal arguing that “[a] claimant cannot accept the benefits of a trial judge or chancellor’s ruling in a disputed case, and then later attack the validity of that ruling on appeal. Suburban Dev. Corp. v. Perryman, 281 Md. 168 , 377 A.2d 1164 (1977).” He contends that here Stephanie “has taken the benefits of the trial judge’s Orders” in each of the subjects of “custody and visitation/parental time,” “child support”, “monetary award”, and “award of Attorneys fees.” Oddly enough at no time did either party cite to us Dietz v. Dietz, 117 Md.App. 724 , 701 A.2d 1144 (1997), rev’d, Dietz v. Dietz, 351 Md. 683, 720 A.2d 298 (1998), where this Court dismissed an appeal seeking an increase in a monetary award because the appellant had accepted payments under the award as rendered. We deny this motion to dismiss on the basis of Dietz . 1 II.

AWARD OF FUTURE CUSTODY The parties were married on July 11, 1992, in Baltimore City. Their only child, the subject of this litigation, Garrett Michael Cusack (Garrett), was born September 15, 1993. The parties separated in April, 1994. The trial judge (Brynes, J.) ordered “that physical custody of the minor child Garrett is granted to the plaintiff until thirty days following his completion of the fifth grade.

At that point in time, physical custody is awarded to Michael Cusack until Garrett’s ²⁹² eighteenth birthday____” Stephanie contends that “the trial court abused its discretion in ordering an in futuro change in custody 30 days after Garrett completes fifth grade (approximately eight years from the date of the final judgment)”. We agree. Stephanie relies upon Sullivan v. Auslaender, 12 Md.App. 1 , 276 A.2d 698 (1971), asserting that there “this court determined that a separation agreement which contemplated an automatic change in custody in the future was not in the best interests of the children.” What she does not tell us, however, is that in that case the Court of Special Appeals substituted its judgment for that of the trial judge and that in Davis v. Davis, 280 Md. 119 , 372 A.2d 231 (1977), Judge Digges said for the Court of Appeals: [Tjhere is some confusion in our cases with respect to the standard of review applicable to the chancellor’s ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, see, e.g., Spencer v. Spencer, 258 Md. 281, 284 , 265 A.2d 755, 756 (1970)(per curiam); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 26 , 265 A.2d 264, 266 (1970), we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability.

However, we also repudiate the suggestion contained in some of our predecessors’ opinions, see, e.g., Melton v. Connolly, 219 Md. 184, 188 , 148 A.2d 387, 389 (1959); Butler v. Perry, 210 Md. 332, 339-40 , 123 A.2d 453, 456 (1956); Burns v. Bines, 189 Md. 157, 164 , 55 A.2d 487, 490 (1947); cf. Ex Parte Frantum, 214 Md. 100, 105 , 133 A.2d 408, 411 , cert. denied, 355 U.S., 882 [ 78 S.Ct. 149 , 2 L.Ed.2d 112 ] (1957) (adoption case), and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md.App. 1, 3-5 , 276 A.2d 698, 700-01 (1971), and its progeny, see, e.g. Sartoph v. Sartoph, 31 Md.App. 58 , 64 & n. 1, 354 A.2d 467, 471 (1976); Vernon v. Vernon, 30 Md.App. 564, 566 , 354 A.2d 222, 224 (1976), that appellate courts must exercise their “own sound judgment” in determining whether the conclusion of the chancel ²⁹³ lor was the best one. Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407 , 62 A.2d 293, 298 (1948), and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581 , 263 A.2d 820, 822 (1970).

Id. at 124-125, 372 A.2d 231 . “The determination of which parent should be awarded custody of a minor child rests within the sound discretion of the trial court.” Giffin v. Crane, 351 Md. 133, 144 , 716 A.2d 1029 (1998), citing cases. The parties in this case can agree on but little. They do agree that we apply the best interest standard and that the trial judge’s determination stands absent an abuse of discretion. 2 In Ross v. Hoffman, 280 Md. 172 , 372 A.2d 582 (1977), Judge Orth said for the Court: In performing its child protection function and its private-dispute settlement function the court is governed by what is in the best interests of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance.

In Burns v. Bines, 189 Md. 157, 162 , 55 A.2d 487, 489 (1947), quoting Barnard v. Godfrey, 157 Md. 264, 267 , 145 A. 614, 615 (1929), we observed that the statute ²⁹⁴ giving equity courts jurisdiction over the custody of children ‘is declaratory of the inherent power of courts of equity over minors, and [such jurisdiction] should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.’ We noted in Dietrich v. Anderson, 185 Md. 103, 117 , 43 A.2d 186 (1945) that the statute has been so uniformly construed. We said in Butler v. Perry, 210 Md. 332, 342 , 123 A.2d 453, 458 (1956): ‘Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.’ Id. at 174-175, 372 A.2d 582 . More recently in Robinson v. Robinson, 328 Md. 507 , 615 A.2d 1190 (1992), Judge Karwacki said for the Court: The primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. We have repeatedly stated the test originally set forth in Hild v. Hild, 221 Md. 349 , 157 A.2d 442 (1960) as follows: “For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child.

It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.” Id. at 519, 615 A.2d 1190 . A change in circumstances ordinarily has been required for a change of custody. In McCready v. McCready, 323 Md. 476 , 593 A.2d 1128 (1991), Judge McAuliffe said for the Court: The question of whether there has been a material change in circumstances which relates to the welfare of the child is, ²⁹⁵ however, often of importance in a custody case.

The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability. Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order.. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim. An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child.

As we said in Hardisty v. Salerno, 255 Md. 436, 439 , 258 A.2d 209 (1969), ‘[w]hile custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.’ Even this general statement may be subject to exception in the case of prior facts existing but unknown and not reasonably discoverable at the time of the entry of the original order, such as the fact that a parent to whom custody had been granted was, and continues to be, a sexual abuser of the child. See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263,1266-71 (1982). Id. at 481-482 , 593 A.2d 1128 . See also Domingues v. Johnson, 323 Md. 486 , 498 593 A.2d 1133 (1991).

Ordinarily, in determining custody the courts look to the situation as it exists at the time. This is well illustrated by Raible v. Raible, 242 Md. 586 , 219 A.2d 777 (1966), where custody was awarded to an admittedly adulterous mother. 3 In that case Judge Oppenheimer said for the Court: ²⁹⁶ No question of adultery is involved. The period of misconduct of the wife took place after her divorce and terminated two years before the hearing below. As Judge Hammond said for the Court in Trudeau v. Trudeau, 204 Md. 214, 218 , 103 A.2d 563 (1954), ‘no custody matter is the image of another and in none can the proper paths be plotted automatically on a map of the principles laid down by the cases.’ See also, Daubert v. Daubert, 239 Md. 303, 308 , 211 A.2d 323 (1965).

The paramount, overriding consideration is the welfare of the children. In Trudeau , as here, the wife had ceased the conduct which was the basis for the attack upon her fitness, and the conclusion of the Chancellor that the mother’s custody of the children should be continued (subject, always, to the continuing jurisdiction of the court) was affirmed. We found in Trudeau , as we find here, that there was no compelling reason which made the continuation of the mother’s custody not in the best interests of the children. Id. at 593, 219 A.2d 777 .

Attitudes relevant to adultery have changed somewhat as indicated by Robinson, supra. See also the discussion for the court by Judge Digges in Davis, 280 Md. at 127 , 372 A.2d 231 . That does not change the fact, however, that in Raible the Court was looking at the situation as it existed at the time of the hearing. Although the procedure followed in Sullivan was disapproved, there was no disapproval of — nor was there an issue before the Court relative to — the language of Judge Orth for the Court of Special Appeals in Sullivan .

Judge Orth said for the court: It is our best judgment that the children remain in the custody of their mother. We believe that the compromise solution of the chancellor does not give due regard for the welfare of the children and find no strong reason affecting the welfare of the children to depart from the custody award under the divorce decree with which appellee had at one time been content. We cannot conceive how it would be in the best interest of the children to take them from the mother, place them with the father in Israel for three years, ²⁹⁷ then uproot them again and return them to the mother in the United States for three years, leaving their future at the end of the six year period to be later determined. Sullivan, 12 Md.App. at 17-18 , 276 A.2d 698 .

The principle of requiring a change in circumstances for a change of custody is another indicator of looking at the circumstances as they exist at the time the custody order is passed. In Hild v. Hild, 221 Md. 349, 357 , 157 A.2d 442 , (1960), as Judge Karwacki pointed out for the Court in Robinson , Judge Horney discussed for the Court factors to be considered in determining custody. This was summed up more recently in Montgomery County v. Sanders, 38 Md.App. 406 , 381 A.2d 1154 (1978), Chief Judge Gilbert for this Court said that the factors to be considered in determining custody of a child include: “but [are] not limited to, 1) fitness of the parents, 2) character and reputation of the parties, 3) desire of the natural parents and agreements between the parties, 4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child, 7) age, health and sex of the child, 8) residences of parents and opportunity for visitation, 9) length of separation from the natural parents, 10) prior voluntary abandonment or surrender.” (citations omitted). Id. at 420 , 381 A.2d 1154 .

We have not the faintest idea of what the situation of the parents may be at the time when this child completes the fifth grade, obviously a number of years hence. We know not what the living conditions of the parties at that time will be. We know not where the parties will be living. We do not know what their incomes will be.

We have no idea of what kind of physical condition the parents or child will be in at that time. We do not know what the preference of the child at that time may be. We have no idea whatever as to the condition under which the parents will be living. Although thus far there has been no hint of immorality, we do not know what the situation ²⁹⁸ will be at the time of the contemplated change in custody.

We do not know what effect a change in custody might have on the child. All of these are relevant considerations. It is hard enough to look into the future and to determine what may be perceived as the best interest of the child on the basis of circumstances as they exist at the time of a custody hearing. We consider it to be an abuse of discretion to attempt to look ahead and to determine now that it will be in the best interests of a child who has not yet entered kindergarten to have his custody changed upon completion of the fifth grade.

III

CHILD SUPPORT AND OTHER FINANCIAL MATTERS Issues were briefed on appeal contending that the trial judge abused his discretion when he awarded in futuro child support, when he attributed certain annual income to Stephanie, and when he ordered her to execute a yearly waiver of the income tax dependency exemption for Garrett. At oral argument we were advised that we are not obliged to address those issues by virtue of a consent order entered into by the parties on January 12,1998.

IV

SUMMER VISITATION Stephanie contends that the trial judge abused his discretion in awarding Michael six weeks of summer visitation “in light of Michael’s extensive work and travel schedule.” She refers to the fact that “the obligations of Michael’s employment are demanding on his time,” that “he works late nights, weekends and travels out of the country on a monthly basis.” From this she argues that he “will have no choice but to place Garrett in the custody of a third party while Michael works.” That does not necessarily follow. If Michael has visitation it will be up to him to work out just how he handles ²⁹⁹ the matter, subject, of course if necessary, to the approval of the trial court. We perceive no abuse of discretion. y. COUNSEL FEES Stephanie complains because she says the trial judge failed to address her request for counsel fees.

Michael’s reply to that is that “[t]he trial judge stated throughout his opinions that the conditions that would justify the award of counsel fees were not present in this case.” Unfortunately, however, Michael gives no citation to the record extract to back up this assertion. In ACandS v. Asner, 344 Md. 155, 190 , 686 A.2d 250 (1996), Judge Rodowsky said for the Court of Appeals, after referring to the requirement of Maryland Rule 8-501(c) that the record extract “contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal,” “[the Court of Special Appeals] has appropriately held that a party may lose the right to appeal on an issue by failing to indicate in that party’s brief the location in the record where the alleged error occurred. See Mitchell v. State, 51 Md.App. 347, 357-58 , 443 A.2d 651, 657 , cert. denied, 459 U.S. 915 , 103 S.Ct. 227 , 74 L.Ed.2d 180 (1982).” Id. at 192, 686 A.2d 250 . Maryland Code (1991, 1997 Cum.Supp.), § 12-103, Family Law Article, provides in relevant part that “[t]he court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person ... applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties.... ” This issue must be addressed.

In Scott v. Scott, 103 Md. App. 500, 524-25 , 653 A.2d 1017, 1029 (1995), this Court said, “The trial court never addressed Wife’s request for fees and costs. Accordingly, we remand so the trial court may determine whether Wife is entitled to the attorney’s fees she requested. The court shall articulate the basis for its deci ³⁰⁰ sion.” (Citing Bagley v. Bagley, 98 Md.App. 18, 41 , 632 A.2d 229 (1993), cert. denied 334 Md. 18 , 637 A.2d 1191 (1994)). On the remand we respectfully but strongly recommend that the chancellor ask some other judge to consider the issue of counsel fees.

VI. 401k PLAN Stephanie next contends that the trial court committed-reversible error by valuing Michael’s 401k plan as of June 30, 1995, which was twenty months prior to the divorce decree’s becoming final. She claims, “At the post-judgment motions hearing Stephanie requested the court to value the plan as of the date of divorce. (E.362-363). The trial court refused, This was clear error.” Pages 362 and 363 in the record extract are pages 41 and 42 in the transcript.

Page 364 is transcript page 49 and page 365 is transcript page 50. These have no relation to the issue at hand. Nowhere on extract 362 or 363 does the trial judge rule on this contention. If he did so rule at some other place, it was the responsibility of counsel for Stephanie to provide a proper citation to the record extract.

There is ample authority over the last fifty years or more to the effect that appellate courts are not obliged to go through the record to find where a point was actually ruled upon, if it was. Moreover, as Michael suggests, a trial judge is permitted to use a wide variety of methods to calculate value, citing, correctly, Deering v. Deering, 292 Md. 115, 129 , 437 A.2d 883 (1981). He further asserts that a judge “can use any method he or she considers appropriate to the circumstances,” citing Goldberg v. Goldberg, 96 Md.App. 771, 780-781 , 626 A.2d 1062 (1993). The point appears not to have been preserved for appellate review.

Moreover, if we were to consider it on its merits, it would appear that we would be obliged to affirm. ³⁰¹ VII. PAYMENT OF MONETARY AWARD Without citation of authority Stephanie argues: The trial court ordered Stephanie’s monetary award of $7,008.28 payable over 36 months. (E.400). Michael earns over $152,000 per year as a Vice-President of First National Bank.

He had assets titled in his name worth at least $432,000 (E.038). He is under an order to pay child support of $883.00 per month. (E.221). He is ordered to pay nothing more.

Under these circumstances, it was an abuse of the trial court’s discretion in failing to order Michael to pay the $7,008.28 monetary award in a lump sum. That is the complete argument presented on this point. Maryland Code (1991, 1997 Cum.Supp.), § 8-205, Family Law Article, states in pertinent part: (a) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in a pension, retirement, profit sharing, or deferred compensation plan from one party to either or both parties, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded. (b) The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both, after considering each of the following factors: (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; ³⁰² (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both; (9) the contribution by either party of property described in 8 — 201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.

It will be observed that nothing has been pointed out by Stephanie to indicate that the trial judge failed to consider any factor set forth in § 8-205(b). ■ Not too long ago, in Scott, 103 Md.App. at 517 , 653 A.2d 1017 , the parties were arguing over whether payments should be made in an immediate lump sum payment or in installments. This Court said: It is well established that both the amount and manner of payment of a monetary award are committed to the discretion of the trial court. Ross v. Ross, 90 Md.App. 176, 188 , 600 A.2d 891 , vacated on other grounds, 327 Md. 101 , 607 A.2d 933 (1992). ‘The entire