Torboli v. Torboli

MARVIN H. SMITH, Judge, Retired, Specially Assigned. Appellant, Shawn R. Torboli (Mrs. Torboli), appeals from the judgment of the Circuit Court for Washington County declining to enforce the family maintenance provision of a protective order issued by that court against her husband, appellee Joseph A. Torboli (Mr. Torboli), because it found that the parties had reconciled during the term of the order. The circuit court held that the family maintenance provision was nullified. We rephrase the issues raised by Mrs. Torboli as follows: ⁶⁶⁸ I. Did the circuit court err in its finding that a reconciliation had occurred between the parties?

II

Did the circuit court err in holding that a reconciliation between the parties nullified family maintenance payments under Md.Code (1984, 1999 Repl.Vol.), § 4-506(d)(8) of the Family Law Article? We perceive no error by the circuit court. Accordingly, we shall affirm its judgment. FACTS On June 22, 1995, the Circuit Court for Washington County issued a protective order at the request of Mrs. Torboli against her husband.

The order was to remain in effect until January 8, 1996, approximately six months. Besides granting Mrs. Torboli temporary custody of the parties’ then twelve-year-old daughter, the protective order set forth several mandates. It said that Mr. Torboli was not to abuse, threaten, or harass Mrs. Torboli, and that he was to stay away from Mrs. Torboli’s place of employment and their daughter’s school. In addition, the order directed Mr. Torboli to pay emergency family maintenance to Mrs. Torboli in the amount of $750 a month.

The first payment was due on June 26, 1995. Each succeeding payment was due “on or before the 30 th day of each month thereafter....” Under the terms of the order Mrs. Torboli was to vacate the family home “immediately,” apparently because it was located in a secluded area and she did not wish to stay there. She was allowed to enter the marital home between the hours of 12 noon and 4 P.M. on June 24 “without the presence, of [Mr. Torboli] to remove her and her daughter’s personal clothing, shoes & personal items & effects.” Mr. Torboli was forbidden to enter the residence of Mrs. Torboli “at 2029 Reed Road or any future residence” of Mrs. Torboli. On October 4, 1996, almost ten months after the order expired, Mrs. Torboli petitioned the circuit court to enforce the family maintenance provision of the order.

She claimed that Mr. Torboli had paid but $640 of the $5,250 directed to be ⁶⁶⁹ paid under the terms of the order. The court dismissed the petition without a hearing, holding that it could not enforce a provision of a protective order after the order had expired. We reversed the circuit court’s holding on appeal and remanded to the circuit court for further proceedings. 1 The court held a hearing upon remand and took testimony from the parties, their daughter, and two co-workers of Mr. Torboli. Mrs. Torboli testified as to her and her daughter’s living arrangements after the order was issued.

She said that the first three weeks after issuance of the June 22 order she and her daughter stayed at her parents’ house. They then stayed at the apartment of Mrs. Torboli’s niece for about two months and then at two other apartments until they moved into a fourth apartment on December 1. Mrs. Torboli testified that she went to the marital residence “maybe once or twice a month! ]” to “do things” as long as Mr. Torboli was not there. She admitted to spending the night in the house “[j]ust a couple” of times, but again only when she knew Mr. Torboli would not be there.

Mrs. Torboli testified that by the end of July, her husband had paid her $640 of the family maintenance order. After that, he did not pay her any more money under the order. She said that while the order was in effect she cashed her husband’s paychecks for him and paid their household bills out of a joint account. She stated that she and her daughter left some of their personal items at the marital residence because Mr. Torboli would not allow her to take them.

The parties’ daughter testified that during part of the time the order was in effect her parents lived like a married couple at the Boonsboro Road home; at other times, her parents would fight and then she and her mother would move out. She said that sometimes her mother intentionally tried to avoid her father and sometimes her mother was willingly with her father. She recalled mornings when both her parents were present. She further recalled times her mother ate at ⁶⁷⁰ the house.

She testified that they did not move all their belongings out of the house until December, 1996. Mr. Torboli testified that after the court hearing, he, his wife, and his wife’s attorney discussed whether the parties would be able to reconcile. The consensus then was that the parties would separate for a while but that they could reconcile after that. Mr. Torboli stated that a couple of weeks after the court order both Mrs. Torboli and their daughter moved back into the house where they stayed, except for a few absences, until December 15 at which time they moved their belongings out.

He testified that he and his wife engaged in sexual relations during the time the court order was in effect. He also said that his wife paid their household bills and cashed his checks. Eric Norris, a co-worker and friend of Mr. Torboli’s for eighteen years, testified that he often carpooled with Mr. Torboli during the time that the order was in effect. On one such occasion he went to the Torbolis’ residence around 3:00 p.m. to pick up Mr. Torboli.

When he arrived, Mr. Torboli, his wife, and their daughter were present in the house. Mr. Norris also testified that he often telephoned the Torbolis’ residence regarding whether Mr. Torboli was picking him up. Mrs. Torboli answered the phone on maybe half-a-dozen occasions, and told him that Mr. Torboli was on his way. Norris also asserted that Mr. Torboli often drove Mrs. Torboli’s ear to work on the weekends, and that on the occasions that he picked up Mr. Torboli her car was in the driveway.

Jeff Riggleman, another co-worker and friend of Mr. Torboli’s for six years, testified that one evening in November he stopped by the Torbolis’ home at “maybe six, 7:00 o’clock in the evening.” Mr. Torboli, his wife, and their daughter were present. He recalled that at that time Mrs. Torboli had on what appeared to him to be flannel pajamas. When pressed on cross-examination he said, “they didn’t look like anything you would wear out on the street.” Riggleman said, and the court included this in the finding of facts, that on one occasion when he was at the marital home in the June to December ⁶⁷¹ period in question, Mrs. Torboli “offered [him] something to drink. Soda.” Mr. Riggleman and Mr. Torboli carpooled during the relevant time.

On those occasions that Mr. Riggleman called the Torboli home to find out about carpool arrangements Mrs. Torboli answered the telephone. The court’s findings of facts stated in part: The Court finds that sometime in July of 1995, before July 30th, 1995 ... that Mr. and Mrs. Torboli essentially began living together in the same house. Although frequently, Mr. Torboli was not there because of shift work and Ms. Torboli was out of the household for a period, I find as a fact, of three to four weeks after various arguments during the time period between July and December 1995. The daughter, JoAnna Torboli, further corroborated that she and Ms. Torboli were basically living in the family home for much of June through December, 1995.

And without going through all her testimony, she did appear to have a fairly good knowledge as to where she was living. I do not find Ms. Torboli to be particularly credible. I rely, in this regard, on my observations of her demeanor and manner of testimony. One example is, in that regard, she testified that Mr. Torboli would not give her access to get any property out of the home, yet she spent, by her own admission, one to two nights per month in the house for periods that were six to eight hours at a time, and obviously if she wanted to take things out of the homes, she could have removed them during those times.

The court said the testimony of Mr. Riggleman and Mr. Norris was credible. The court found “as a fact the parties did intend to reconcile and did, for the most part, live in the same residence between July 1 and December 15, 1995.” Believing that “a party cannot pick and choose which portions of the order that she wants to embrace[,]” and relying upon the decision in Thomas v. Thomas, 294 Md. 605 , 451 A.2d 1215 (1982), the court “f[ou]nd as a fact that the parties did ⁶⁷² not intend to rely on the protective order after sometime in July of 1995.” The court ordered Mr. Torboli to pay Mrs. Torboli $110, the difference between $750, the amount awarded under the protective order for June, and $640, the amount Mr. Torboli paid. It is from this ruling that Mrs. Torboli appeals. DISCUSSION I. Mrs. Torboli’s first argument on appeal is that the court’s finding that the parties had reconciled was in error because it was not supported by the facts in evidence.

We disagree. This case turns upon the factual findings of the trial judge. Accordingly, it is controlled by Md. Rule 8-131(c), which states: (c) Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. 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), Judge Digges said for the Court: The words of the rule itself make plain that an appellate court cannot set aside factual findings unless they are clearly erroneous, and this is so even when the chancellor has not seen or heard the witnesses. Sewell v. Sewell, 218 Md. 63, 71 , 145 A.2d 422, 426 (1958); see, e.g., Dorf v. Skolnik, 280 Md. 101, 117-118 , 371 A.2d 1094, 1103 (1977); Chalkley v. Chalkley, 236 Md. 329, 333 , 203 A.2d 877, 880 (1964). Id. at 124, 372 A.2d 231 .

There was testimony to support the findings made by the trial judge. It is elementary that a trier of fact, be it judge or jury, may elect to pick and choose which evidence to ⁶⁷³