Van Schaik v. Van Schaik

WOODWARD, J. Appellant, Stephen Van Schaik, and appellee, Judith Van Schaik, were awarded joint legal and physical custody of the parties’ minor children. On March 14, 2010, appellant moved the children from Maryland to South Carolina without informing appellee. After the Circuit Court for Caroline County issued an ex parte order awarding appellee sole custody of the children, appellee traveled to South Carolina and retrieved the children. Thereafter, two hearings were held before the circuit court — an emergency hearing on April 9, 2010, and a merits hearing on July 22 and July 27, 2010.

Following the merits hearing, the circuit court awarded sole legal and primary physical custody of the children to appellee, with visitation granted to appellant. This appeal arises from orders of the court regarding: (1) the appointment of the children’s best interest attorney as the “tie-breaker” to resolve any future disagreements between the parties regarding their children; (2) the payment of the best interest attorney’s outstanding legal fees; (3) the best interest attorney’s authority to decide how to apportion her legal fees between the parties in future disputes; and (4) the payment of appellee’s attorney’s fees. Appellant presents four questions for our review, which we have rephrased: I. Did the circuit court err by designating the minor children’s best interest attorney as the “tie-breaker” decision-maker if the parties cannot reach a mutual ¹²⁹ agreement on future disputes regarding the minor children?

II

Did the circuit court err in holding the parties jointly and severally liable for the outstanding legal fees of by the minor children’s best interest attorney?

III

Did the circuit court err by delegating authority to the minor children’s best interest attorney to apportion between the parties any legal fees that she incurs in resolving future disputes regarding the minor children?

IV

Did the circuit court err by ordering appellant to pay appellee’s attorney’s fees? For the forgoing reasons, we shall affirm in part, vacate in part, and remand the case to the circuit court with instructions. BACKGROUND The parties are the parents of two minor children, Brandon, born on November 13, 1994, and Jacob, born on October 4, 1996. The parties were divorced on June 25, 2001.

In an order filed on December 17, 2003, the circuit court awarded the parties joint legal and physical custody of the children. The order provided that, during the school year, appellant would have the children “from five o’clock p.m. Sunday, until the end of the school day on Thursday,” and appellee would have the children overnight on Thursdays. Also during the school year, each party would have the children on alternate weekends “from five o’clock p.m.

Friday, until five o’clock p.m. Sunday.” Pursuant to the order, appellee was granted physical custody of the children for eight weeks during the summer, with appellant to have the children for two weeks each summer. In August 2009, appellant’s girlfriend, Joan Cutchin, moved from Maryland to South Carolina to take a new job. Appellant continued to reside in Maryland, but visited Cutchin in South Carolina every other weekend.

Although appellant did not have immediate plans to move to South Carolina, he ¹³⁰ testified that he informed appellee that such a move “was a possibility.” Appellant also informed Brandon and Jacob that he was looking for a house in South Carolina and that they were “going to move down there” if Cutchin’s job “stay[ed] stable.” On March 14, 2010, appellant moved Brandon and Jacob to South Carolina. Brandon and Jacob were not made aware of the move until after they arrived in South Carolina. In addition, appellant did not notify appellee of his plans to move the children to South Carolina. On March 16, 2010, appellee contacted Brandon’s and Jacob’s schools and was informed that their records had been transferred to schools in South Carolina.

Appellee called appellant twice that day, once at 12:00 p.m. and a second time at 6:30 p.m., but appellant did not answer his telephone. After meeting with school administrators, appellee learned that the children had moved to South Carolina. On March 17, 2010, appellee filed a Motion for Emergency Hearing and for Ex Parte Relief and a Petition for Contempt in the circuit court. The next day, the court issued an ex parte order awarding appellee sole legal and physical custody of the children and permitting her to travel to South Carolina to retrieve the children.

Appellee then drove to South Carolina, picked the children up from the schools that they were attending, and drove them back to Maryland. On April 2, 2010, appellant answered appellee’s Motion for Emergency Hearing and for Ex Parte Relief and Petition for Contempt. On April 8, 2010, appellee filed a Motion for Modification of Custody and Child Support. Appellant then filed a Petition to Modify Child Custody, Visitation, and Child Support on April 9, 2010, which requested that the court “[mjodify the Order entered on December 17, 2003” and award appellant “sole legal and physical custody of the minor children of the parties, both pendente lite and permanently.” A hearing was held before the circuit court on April 9, 2010.

Upon consideration of the testimony and evidence presented at the hearing, the court issued a pendente lite order holding ¹³¹ appellant in contempt of the December 17, 2008 custody order. Thereafter, on July 22 and July 27, 2010, the court held a merits hearing on the parties’ respective motions for modification of custody and support. The court received evidence from both parties and heard arguments from counsel, as well as argument from Leigh Melton, Esq., the best interest attorney appointed by the court to represent the children. At the conclusion of the hearing, the court stated: The first observation is that the move to South Carolina by [appellant] ... was a material change in circumstances since the Order of ...

December the l[7]th, 2003. Now this Court is seriously concerned about how [appellant] went about that move. He did so without telling [appellee], he didn’t even tell the boys. He packed them up and move[d] them to South Carolina.

He says because of financial reasons, because his significant other obtained a job after being [ ] unsuccessful in getting a job here, took a job in South Carolina. And that may very well be, but the way it was handled was clearly inappropriate and certainly suggests to this Court something about [appellant] that is now rather eviden[t]. [Appellant] wants to have his way and only his way and it’s either my way or the highway with [appellant]. Unfortunately, [appellant’s conduct [ ] violates the Order of December [ ] 17th, 2003. And with a Court Order it is not my way or the highway, it is a[n] Order of this Court that must be obeyed and must be adhered to.... [Appellant] took it upon himself to violate the Order and he’s taken it upon himself to move to South Carolina and he’s going to have to live with the consequences of that decision....

This Court is convinced that the parents cannot cooperate, that is well demonstrated, amply shown by the behavior of the parents throughout the life of this case. The father is over controlling, he’s obsessive about control. He’s a bully. Mom, [appellee] is inconsistent in what she does with these children.

She lacks discipline. She needs to be a better parent, but primarily both parities [sic] have lost the fine art of communicating with each other over ¹³² what’s best for these boys, so the essential parenting skill is not here. In an order filed on August 13, 2010, the court awarded sole legal and primary physical custody of the children to appellee, with visitation for appellant. The order further provided, in relevant part: ORDERED, that except in emergencies, the parties shall communicate through e-mail and any contentious matters or disputed e-mail issues shall be forwarded to the attorney for the minor children, Leigh R. Melton, Esquire, for her review.

In the event [appellant] and [appellee] cannot reach a mutual agreement on any disputed matter regarding the minor children within twenty-four (24) hours, then the attorney for the minor children shall serve as the “tie-breaker” and resolve the dispute, it is further ORDERED, that both [appellant] and [appellee] shall be jointly and severally responsible for the payment of all fees and costs incurred by counsel for the minor children, Leigh R. Melton, Esquire, in the resolution of any disputes between them regarding the minor children, as apportioned by counsel for the minor children, it is further ORDERED, that [appellant] shall pay the sum of Five Thousand dollars ($5,000.00) towards [appellee]’s attorney’s fees within ninety (90) days of this Order, it is further ORDERED, that [appellant] and [appellee] shall be jointly and severally responsible for the payment of all outstanding fees and costs incurred by the minor children’s attorney, Leigh R. Melton, Esquire, in the amount of $5,568.75 ($1,000.00 of which was prepaid in trust and is now released from trust) said balance of fees and costs in the amount of $4,568.75 to be paid within thirty (30) days of the date of this Order[.] This timely appeal followed. Additional facts will be set forth below as necessary to resolve the questions presented. ¹³³ STANDARD OF REVIEW Our review of the circuit court’s judgment is governed by Maryland Rule 8-131(c). As this case was tried without a jury, we “review the case on both the law and the evidence.” Rule 8-131(c). We “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.” Id.

The clearly erroneous standard does not apply to legal conclusions. Karsenty v. Schoukroun, 406 Md. 469, 502 , 959 A.2d 1147 (2008). “Where a case involves the application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo standard of review.” Clancy v. King, 405 Md. 541, 554 , 954 A.2d 1092 (2008) (quotations omitted). DISCUSSION I. The Court’s Designation of the Best Interest Attorney as a “Tie-Breaker” On appeal, appellant argues that “[t]he trial court committed legal error by appointing the minor children’s Best Interest Attorney as the ‘tie-breaker’ decision-maker if the parties are not able to reach an agreement.” Relying on In re Mark M., 365 Md. 687 , 782 A.2d 332 (2001), and Shapiro v. Shapiro, 54 Md.App. 477 , 458 A.2d 1257 , cert. denied, 296 Md. 655 (1983), appellant contends that the court “improperly delegated judicial authority to the Best Interest Attorney, a non-judicial person.” Thus appellant asserts that “[t]he Court’s appointment of the Best Interest Attorney as the ‘tiebreaker’ ... should be vacated.” Appellee counters that the court did not err by appointing the best interest attorney as the “tie-breaker.” Citing Meyr v. Meyr, 195 Md.App. 524 , 7 A.3d 125 (2010), appellee claims that, “where the delegation of authority is related to ancillary ¹³⁴ matters and the Court retains judicial review of the decisions concerning those issues, it is not improper delegation.” Ap-pellee points out that the trial judge in the present matter “granted sole legal and primary physical custody of the minor children to Appellee” and “did not state that the authority of the Best Interest Attorney extended to matters of custody and visitation.” Accordingly, appellee contends that there was not an improper delegation of judicial decision-making authority to the best interest attorney. We agree with appellant and explain. “The question whether a court has improperly delegated judicial authority to a non-judicial person is an issue of law subject to de novo review.” Meyr, 195 Md.App. at 546 , 7 A.3d 125 .

Maryland cases have made clear that a court may not delegate to a non-judicial person decisions regarding child visitation and custody. See In re Mark M., 365 Md. at 704 , 782 A.2d 332 (“[A] trial court may not delegate judicial authority to determine the visitation rights of parents to a non-judicial agency or person.”); Shapiro, 54 Md.App. at 484 , 458 A.2d 1257 (“Jurisdiction over custody and visitation, as well as guardianship, legitimation, maintenance and support of children, is vested in the equity courts. There is no authority for the delegation of any portion of such jurisdiction to someone outside the court.” (Citation omitted)). In the case sub judice, the court issued an order on August 13, 2010, which stated, inter alia, that “[i]n the event [appellant] and [appellee] cannot reach a mutual agreement on any disputed matter regarding the minor children within twenty-four (24) hours, then the attorney for the minor children shall serve as the ‘tie-breaker’ and resolve the dispute.” (Emphasis added).

The issue we must address is whether the delegation of authority to Melton, a non-judicial person, to resolve “any disputed matter regarding the minor children” was permissible. Meyr is instructive in this regard. In Meyr , the trial court awarded the parties, appellee wife and appellant husband, a limited divorce. 195 Md.App. at 541 , 7 A.3d 125 . The court also issued an Order Regarding ¹³⁵ Custody and Visitation, which awarded primary physical custody of the parties’ minor children to the appellant, with visitation granted to the appellee.

Id. The order included a provision authorizing the children’s best interest attorney “to coordinate the children’s reunification therapy with [the appel-lee], for as long as she deems said therapy is needed by the