Sigurdsson v. Nodeen

³³¹ DEBORAH S. EYLER, J. This is an appeal from an order transferring a “complaint for modification of custody” of Wade Hampton Price, IV (“Wade”) from the Circuit Court for Calvert County to the Circuit Court for Anne Arundel County. Wade was born in Anne Arundel County on June 1, 2004. Before his birth, his father, Wade Hampton Price, III (“Father”), died in a drowning accident. When Wade was born, his mother, Anja Sigurdsson (“Mother”) was addicted to illegal drugs, and indeed tested positive for cocaine while at the hospital.

Wade was in Mother’s custody in Anne Arundel County from his birth until December 2004. Beginning then, he was in the custody of Kealy Roderer, one of Wade’s Father’s sisters (i.e., a paternal aunt). Until May 2005, Roderer lived at various addresses in North Carolina and northern Virginia. From May 2005 forward, she was living in northern Virginia with her sister, Janey P. Nodeen, and Janey’s husband, Thomas W. Nodeen.

The Nodeens also are Wade’s paternal aunt and uncle. On December 1, 2004, Mother executed a document agreeing to Roderer’s having custody of Wade. The document was not submitted to a court for approval. On December 13, 2004, in the Circuit Court for Anne Arundel County, Roderer obtained an emergency ex parte custody order for Wade.

In the same court, she sought legal and physical custody of Wade, against Mother. Eventually, for reasons not clear from the record, the Nodeens became Wade’s custodians and intervened as plaintiffs in the custody case, and Roderer dropped her custody claim. Mother’s mother, Marianne Sigurdsson (“Grandmother”), also intervened in the custody case, as a defendant. Beginning in August 2005, Grandmother was given visitation with Wade.

During her visits, she supervised visitation between Mother and Wade. The custody case was tried in the Circuit Court for Anne Arundel County for five days in June of 2006. Mother was present for the trial. The primary adversaries for custody of ³³² Wade were the Nodeens and Grandmother.

Recognizing that she did not have a sufficient track record of sobriety to keep custody of Wade, Mother did not assert her custody rights and stipulated to the need for Wade to be in the custody of a third party. Thus, the real issue before the court was whether Wade should be in the custody of the Nodeens or Grandmother. On July 11, 2006, the court awarded sole legal and physical custody of Wade to the Nodeens. It established a visitation schedule by which Mother and Grandmother would have Wade every other weekend; two non-consecutive weeks during the summer; and certain holidays.

All visitation between Mother and Wade was to be supervised by Grandmother. Mother noted an appeal of the decision, but voluntarily dismissed the appeal before her brief was due. As mentioned above, from Wade’s birth through December 2004, when Roderer filed for custody, Mother was living in Anne Arundel County. In December 2004, she was living in Annapolis.

In January 2005 and February 2005, she was living in Edgewater; and from June 2005 until February 2006, she was living in Glen Burnie. The record is unclear as to whether Mother still was living in Anne Arundel County when the case was tried in June 2006. On June 6, 2007, eleven months after the Circuit Court for Anne Arundel County granted custody to the Nodeens, Mother filed, in the Circuit Court for Calvert County, a “Complaint for Modification of Child Custody Order.” 1 The complaint named the Nodeens as defendants and listed Mother’s address as 3913 14th Street, Chesapeake Beach, a town in Calvert County. On October 15, 2007, Mother changed her address in the court’s file to a Post Office Box in Owings, Maryland, which also is in Calvert County. ³³³ The Nodeens filed a preliminary motion to dismiss or to transfer, for improper venue, asserting that the modification complaint properly, or more conveniently, should be handled in the Circuit Court for Anne Arundel County.

They alleged that Wade’s primary residence for most of his life had been Anne Arundel County or northern Virginia, never Calvert County; that, although their primary residence is in northern Virginia, they have a second home, which in fact is a yacht, that is harbored in Anne Arundel County, and where they and Wade spend many weekends; that, since Wade’s birth, Mother has lived at numerous locations, most of which are in Anne Arundel County; that the Anne Arundel County Child Protective Services Unit and the County Custody Evaluation Unit of the Circuit Court for Anne Arundel County had conducted investigations about Wade at the end of 2004 and in 2005; that Mother has another child with whom she has significant contact who lives with his father, Dana Winter, in Anne Arundel County, and Mr. Winter was a witness at trial in June 2006; and that Mother’s father (from whom Grandmother is divorced) lives in Anne Arundel County. In opposition to the motion to dismiss or transfer, Mother argued that Wade’s connections to Anne Arundel County are tenuous; that he was not currently living there, but in northern Virginia; and that only her current residence, in Calvert County, not her prior residences elsewhere, was relevant to the issue of venue. She further argued that Md.Code (1957, 2006 RepLVol., 2007 Cum.Supp.), section 6-202(5) of the Courts and Judicial Proceedings Article (“CJ”), controls venue in this case, and the only proper venue under that statute is Calvert County, where she lives. Moreover, under CJ section 6-202(5), Anne Arundel County is not a proper venue, as neither she nor Wade nor the Nodeens live there; and a circuit court is not authorized to transfer a case to a jurisdiction that is an improper venue.

Alternatively, Mother argued that, even if there is venue in Anne Arundel County, the balance of convenience weighed in favor of the case remaining in Calvert County. ³³⁴ On September 20, 2007, the court granted the Nodeens’ motion and ordered the case transferred to the Circuit Court for Anne Arundel County. Mother filed a notice of appeal from that order. In this Court, Mother is the appellant and the Nodeens are the appellees. We shall include more facts as pertinent to our discussion.

DISCUSSION (A) The general venue statute in Maryland, CJ section 6-201, states: (a) Civil actions. — Subject to the provisions of §§ 6-202 and 6-203 of this subtitle and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.... (b) Multiple defendants. — If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose. CJ section 6-202, entitled “Additional venue permitted,” states in relevant part that, in addition to venue as provided in CJ sections 6-201 and 6-203, “the following actions may be brought in the indicated county: ... (5) Action relating to custody, guardianship, maintenance, or support of a child— Where the father, alleged father, or mother of the child resides, or where the child resides.” (None of the provisions of CJ section 6-203 apply to the case at bar.) The venues in CJ sections 6-201 and 6-202 are alternative, in that neither one has a priority over the other.

Wilde v. Swanson, 314 Md. 80, 92 , 548 A.2d 837 (1988). Also, the residency of a child is the same as that of the person to whom custody of the child has been granted. Struzinski v. Butler, 24 Md.App. 672, 679 , 332 A.2d 713 (1975). Here, Wade’s residency is the residency of the Nodeens. ³³⁵ The defense of improper venue must be raised by preliminary motion, filed before an answer is filed.

Md. Rule 2-322(a). If the defense of improper venue is not so raised, and an answer is filed, the defense is waived. Id. See also Lampros v. Gelb & Gelb, P.C., 153 Md.App. 447, 456-57 , 837 A.2d 229 (2003); Pacific Mortgage and Investment Group, Ltd. v. Horn, 100 Md.App. 311, 323 , 641 A.2d 913 (1994).

Rule 2-327 governs the transfer of a civil action from one circuit court to another for a number of purposes, including improper venue, convenience of the parties and witnesses, and “[a]ctions involving common questions of law and fact.” Subsection (b), “Improper venue,” states that, “[i]f a court sustains a defense of improper venue but determines that in the interest of justice the action should not be dismissed, it may transfer the action to any county in which it could have been brought.” Thus, a meritorious motion to dismiss for improper venue may be disposed of by the court’s granting the motion and dismissing the case or by its issuing an order transferring the action to a court having venue. The civil forum non conveniens doctrine is set forth in subsection (c) of Rule 2-327, “Convenience of the parties and witnesses,” which states: On motion o f any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. Finally, subsection (d) allows, in certain circumstances, the transfer of a civil case when “civil actions involving one or more common questions of law or fact are pending in the same judicial circuit.” In that situation, “the actions or any claims or issues in the actions may be transferred in accordance with this section for consolidated pretrial proceedings or trial to a circuit court in which (A) the actions to be transferred might have been brought, and (B) similar actions are pending.” Rule 2-327(d)(l) (emphasis added). Thus, even when venue is proper, a circuit court may transfer the action to another circuit court, for forum non conveniens purposes, or to anoth ³³⁶ er circuit court in the same judicial circuit, when there are actions involving common questions.

In either situation, however, the circuit court to which the transfer is made must be a court having proper venue, ie., a court in which the action being transferred “might have been filed.” 2 (B) Mother contends that the Circuit Court for Calvert County erred in transferring her “Complaint for Modification of Child Custody Order” to the Circuit Court for Anne Arundel County because, when she filed the complaint in Calvert County, the Circuit Court for Anne Arundel County was not a court in which the complaint might have been filed. In other words, venue did not exist in Anne Arundel County when the complaint was filed and, therefore, transfer to the Circuit Court for Anne Arundel County was in error. Specifically, Mother maintains that, when she filed her complaint, the Nodeens were residing in northern Virginia, and hence neither they nor Wade were residents of Anne Arundel County or occupied any status that would make venue proper in Anne Arundel County for any of them, under CJ section 6 — 201(a); and that, under CJ section 6-202(5), Wade’s residence was northern Virginia, Wade’s Father was dead, and Mother was residing in Calvert County. Thus, not only was venue proper in Calvert County, it was the only county in which venue was proper when the complaint was filed.

In the alternative, Mother contends that, if there was venue in Anne Arundel County, the Circuit Court for Calvert County abused its discretion by transferring the case there. The Nodeens do not respond to Mother’s first contention, that transfer to Anne Arundel County was in error because, when her “Complaint for Modification of Child Custody Order” was filed, venue was not proper in that county. They do not argue, generally, that venue was proper in Anne Arundel County when the complaint was filed on June 6, 2007; specifi ³³⁷ eally, they do not argue that the presence of their yacht in a harbor in Anne Arundel County waters gave them, or Wade, residency in Anne Arundel County. 3 In response to Mother’s second contention, respecting forum non conveniens, the Nodeens argue that a circuit court has broad discretion in deciding whether to transfer an action to another circuit court, and must do so by applying a balancing test. Odenton Development Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235 (1990).

The balancing test requires the court to “ ‘weigh in the balance of the convenience of the -witnesses and those public interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of the interest of justice.’ ” Id. (quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 30 , 108 S.Ct. 2239 , 101 L.Ed.2d 22 (1988)). They maintain that, here, the numerous contacts that Wade has had and continues to have with Anne Arundel County in his short life, the presence of some witnesses in that county, and the involvement of the Circuit Court for Anne Arundel County in this case — in terms of custody investigations having been performed through that court, that court actually having tried the custody case and rendered a decision on it less than a year before, and, even more important, the presiding judge at trial having the most information necessary to decide the “complaint for modification” — all militate in favor of the court’s exercise of discretion to transfer the case to the Circuit Court for Anne Arundel County. The Nodeens make two additional arguments, by way of a motion to dismiss.

First, they assert that this appeal should ³³⁸ be dismissed as moot because, during its pendency, Mother has participated actively as a litigant in the case as transferred to the Circuit Court for Anne Arundel County. In particular, as the docket entries for the transferred case show, since Mother filed her notice of appeal on October 10, 2007, she has appeared at two scheduling conferences, propounded discovery, attended a court-ordered mediation session, attended a pendente lite hearing, and on April 28, 2008, attended a pre-trial conference, at which a September 9, 2008 merits hearing was scheduled, all without objection. In the Nodeens’ words, “As a result of [Mother's] complete participation in the litigation process, the underlying issue of modification of custody is in the process of being litigated in the Circuit Court for Anne Arundel County and, accordingly, the perceived issue of [Mother] that it was error to transfer the case to the Circuit Court for Anne Arundel County, is moot.” Although framed in terms of mootness, the Nodeens also use “waiver” to describe this argument, ie., that, by participating in the proceedings in the transferee court, Mother waived her right to challenge the transfer decision on appeal. Second, the Nodeens argue that principles of judicial estoppel apply, as Mother is attempting to forum shop in order to relitigate the issue of custody in another circuit court, with the object of obtaining a custody determination inconsistent with the custody decision made by the Circuit Court for Anne Arundel County just 11 months before she filed her complaint for modification.

In her reply brief, Mother asserts that the Nodeens’ mootness argument is contrary to the Court of Appeals holding in Leung v. Nunes, 354 Md. 217 , 729 A.2d 956 (1999), that, even after a civil tort case was tried to a verdict in a circuit court to which it was transferred, the question whether the transfer was wrongful was not moot, as the plaintiff had suffered prejudice merely by having the case tried by a jury in the transferee jurisdiction and the prejudice was of a sort that could be remedied, by vacating the verdict and directing that the case be transferred to the proper forum court for trial. ³³⁹ Mother also maintains that the doctrine of judicial estoppel is not applicable. (C) We shall first address the Nodeens’ motion to dismiss this appeal because, if there is merit in any of their arguments on that score, we need not address the merits. The motion to dismiss is not meritorious, however, as none of the doctrines the Nodeens invoke — mootness, waiver, or judicial estoppel— apply. A case is moot when a court cannot grant any relief to address the error argued.

Green v. Nassif, 401 Md. 649, 654 , 934 A.2d 22 (2007). This case is not moot. As the Leung case illustrates, relief can