Wagner v. Wagner

CATHELL, Judge. In an Order dated November 17, 1994, the Circuit Court for Carroll County (Beck, J., presiding) awarded permanent custody of the parties’ two minor children to appellee, Richard Wagner (Mr. Wagner). The court further found appellant, Robin Wagner (Ms. Wagner), 1 to have voluntarily impoverished herself. She now appeals to this Court, charging, inter alia, that the circumstances leading to the trial court’s Order deprived her of due process of law.

Namely, she contends that she was not given notice of, and an opportunity to prepare for, various hearings that took place in the years following her divorce from Mr. Wagner. She is further aggrieved by other of the court’s rulings and presents the following questions for our consideration, which we renumber as follows: 1. Did the court violate appellant’s constitutional due process rights to notice, opportunity to be heard, opportunity to prepare for the hearing and opportunity to defend claims, during the proceedings below? 2. Did appellee satisfy his burden of proving a change of circumstances to justify a change in Erika’s custody, either in 1992 or 1994? 3.

Did the trial court abuse its discretion when on April 2, 1992 it granted appellee “immediate custody” of Erika without making any provisions to protect Erika from the risk of continued sexual abuse and without an evidentiary hearing? ¹¹ 4. Did the court err in failing to acknowledge that appellant was justified in declining to send eight-year-old Erika for grandparent visitation where appellant had reason to believe that Erika would be exposed to the danger of continuing sexual abuse by appellee and such action was against Colorado DSS recommendations and court motion? 5. Did the trial court err when it ruled that appellant had voluntarily impoverished herself? 6. Did the trial court abuse its discretion when it relied on the statements made by the children at the in camera interviews, absent questions establishing their competency? 7.

Did the trial court abuse its discretion in assessing counsel fees against appellant where the court failed to make the findings mandated by statute, Md.Code, Family Law Art. § 12-103, to justify such assessment? 8. Did the trial court abuse its discretion when it denied appellant’s request to transfer this case to Anne Arundel County? As we attempt to wade through the plethora of pleadings that has characterized the instant case from its outset, the gravity of the situation presented to this Court and to which the two children involved have been subject will become apparent. We also keep in mind that “[o]verarching all of the contentions in disputes concerning custody or visitation is the best interest of the child[ren].” Hixon v. Buchberger, 306 Md. 72, 83 , 507 A.2d 607 (1986).

CHRONOLOGY OF THE CASE The parties were wed on February 16, 1979. Of the union, two children were born: Kristopher Richard (Kris), on June 9, 1981, and Erika Ashley, on April 21, 1984. The family moved to Carroll County in December of 1986; one month later, Ms. Wagner declared her desire that the parties divorce. On March 30, 1987, Ms. Wagner initiated a separation by leaving the marital home with two-year-old Erika; five-year-old Kris ¹² refused to go.

The next day, after an unsuccessful and surreptitious attempt by Ms. Wagner to remove Kris from school, Mr. Wagner filed in the Circuit Court for Carroll County a Complaint for Immediate Custody of both children. Thereafter, he filed an Amended Complaint for Limited Divorce. On April 1, 1987, Ms. Wagner filed in the Circuit Court for Anne Arundel County a Complaint for Limited Divorce on grounds of extreme cruelty. The matter was transferred by consent to the Circuit Court for Carroll County on May 4,1987.

Pendente Ute custody arrangements, ordered on April 7, 1987, called for Erika to remain with Ms. Wagner, and Kris with Mr. Wagner. This pendente Ute order was followed by a hearing before a Master on July 7, 1987, at which twenty-nine witnesses took the stand over a course of four days. The Master’s ensuing recommendation continued the pendente Ute arrangement and rejected each party’s claim that the other was an unfit parent. No exceptions were taken therefrom, and the trial court incorporated the Master’s recommendations in an Order issued October 6, 1987, which similarly continued the existing pendente Ute custody arrangements.

No allegations of sexual child abuse surfaced at this time. A five-day trial on the merits of the parties’ complaints began on May 16, 1988 and was characterized by the trial court as all out “warfare” to portray the other party as an “unfit parent.” [Ms. Wagner] attempted to portray [Mr. Wagner] as an alcoholic who “did not know his own strength” when drinking. [Mr. Wagner] attempted to portray [Ms. Wagner] as an adulterous woman who placed her career and extramarital relationships ahead of her children. Despite the week long trial and multitude of witnesses, the parties were totally unsuccessful in besmirching each other’s character. The trial court subsequently granted Mr. Wagner a divorce a vinculo matrimonii on grounds of desertion, having found Ms. Wagner to be at fault for the demise of the marriage.

The court denied Ms. Wagner’s Complaint, and the pendente Ute ¹³ custody arrangements were accorded permanent status. Thereafter, a visitation schedule was devised. No allegations of sexual child abuse were made during the trial. The litany of pleadings did not abate following the parties’ divorce.

In fact, it increased substantially, characterized, on one hand, by allegations that Ms. Wagner was impeding Mr. Wagner’s visitation with Erika and, on the other, by accusations of Mr. Wagner’s violence and abuse against Ms. Wagner. Each pleading sought a change in custody or modification of visitation. Mr. Wagner’s Complaint for Ex Parte Relief, filed September 16, 1988, was no exception. This was to be his first of eight such complaints.

It alleged that Ms. Wagner was planning to leave Maryland with Erika, without informing him thereof or seeking his consent. Though the court granted Mr. Wagner temporary custody of the child, that order was rescinded on September 80, 1988, and Ms. Wagner regained custody of Erika, expressly conditioned upon her continued residence in Maryland. No allegations of sexual child abuse were made during those proceedings. The issue of Ms. Wagner’s relocation remained at the forefront of the case until December of 1989, when the court approved an agreement between the parties, whereby it was agreed that Ms. Wagner could move to Colorado with Erika.

A revised visitation schedule as well as provisions for telephone contact between Erika and her brother and father were included in the Agreement. No allegations of sexual child abuse surfaced at the time of the agreement. Thereafter, Mr. Wagner filed the following Supplemental Complaints requesting changes to the original decree: Second Supplemental Complaint, on January 5, 1990, based on, inter alia, Mrs. Wagner’s alleged failure to adhere to the Agreement with regard to his telephone visitation with Erika;[ 2 ] ¹⁴ Third Supplemental Complaint, on January 18, 1991, wherein Mr. Wagner sought, among other things, child support and contended that Mrs. Wagner had allowed Erika to return to Maryland on several occasions without notifying him; Fourth Supplemental Complaint, on February 26, 1991, alleging Mrs. Wagner’s intentional frustration of attempts to agree as to terms surrounding Erika’s visit during the Easter holiday;[ 3 ] and Fifth Supplemental Complaint, on May 3, 1991, in response to further thwarting by Mrs. Wagner of his visitation with Erika and alleging a substantial change in circumstances that mandated a change in custody of Erika to him. Trial was scheduled for February 5, 1992.

In addition to supplemental complaints, as we have noted, appellee filed several petitions that he characterized as ex parte pleadings. Before his third Complaint for Ex Parte Relief, filed April 11, 1991, could proceed to hearing, Mr. Wagner interposed a fourth ex parte Complaint, 4 on April 12, 1991. In it, Mr. Wagner disclosed that Ms. Wagner had, on April 9, 1991, secured an Ex Parte Temporary Restraining Order in Colorado, the equivalent of a Maryland Domestic Violence Protective Order, upon her assertion that Mr. Wagner had threatened her over the telephone. The order, which foreclosed Mr. Wagner from maintaining any contact with either his daughter or his ex-wife, was served upon him on ¹⁵ April 11, 1991.

Apparently, Ms. Wagner did not, even at this late stage, allege in the Colorado Court the occurrence of sexual child abuse. On April 12, 1991, the Circuit Court for Carroll County denied the Park County, Colorado court order full faith and credit and directed that visitation occur as had been previously arranged, between April 12 and April 15, 1991. Another Complaint for Ex Parte Relief, filed on June 17, 1991, was again based on Ms. Wagner’s failure to permit Mr. Wagner and Erika to engage in telephone visitation. The court deferred consideration of the Complaint until the then scheduled September 11, 1991 hearing date.

On October 16, 1991, Mr. Wagner filed a Motion for Emergency Hearing and for Contempt when Ms. Wagner obtained another Colorado court order based on allegations made for the first time that Mr. Wagner and Kris had sexually abused Erika. 5 Ms. Wagner, by her attorney-in-fact, responded with a Motion for Contempt and Other Relief on October 18, 1991, claiming that Mr. Wagner was refusing to allow her to visit with Kris on the telephone. She also responded with a Motion to Strike his Motion for Emergency Hearing on October 31, 1991. Thereafter, Mr. Wagner’s October 30, 1991 request that Maryland formally assert its jurisdiction over the matter was immediately followed by his sixth Complaint for Ex Parte Relief, filed November 1, 1991. The latter was prompted by his complete inability to visit with Erika as a result of the two Colorado ¹⁶ court orders.

Ms. Wagner in turn requested, on November 13, 1991, that Maryland defer jurisdiction to Colorado. On December 20, 1991, the court, following a hearing the preceding day on Mr. Wagner’s Supplemental Motion for Emergency Hearing and Other Relief, issued an Order that formally asserted Maryland’s jurisdiction in the matter, that denied Ms. Wagner’s request for deferral of jurisdiction to Colorado, that temporarily suspended the court’s 1988 visitation order, and disallowed Kris from visiting in Colorado, in light of his mother’s conduct. 6 A trial on the various issues of child support, child visitation, and attorney fees was held on February 5, 1992, and was continued until April 23, 1992. It was, however, again postponed on this date. In the interim, based on the testimony taken on February 5, 1992, Mr. Wagner’s mother requested visitation with Erika successfully.

It was scheduled for the week of March 21 to March 27, 1992. The court also stated that Mr. Wagner could visit with Erika during three of those days, provided the visits were supervised. On March 23,1992, Mr. Wagner’s seventh Complaint for Ex Parte Relief revealed that, while visitation arrangements were being made with Erika’s grandmother, Ms. Wagner had sought yet another restraining order in Colorado three days earlier; the Colorado court declined, however, to hear the matter in light of the formal assertion of jurisdiction by Maryland. It was then that Ms. Wagner appeared to employ a different avenue for preventing her daughter’s scheduled visitation in Maryland, by informing Mr. Wagner that Erika was ill and thus unable to fly to Maryland.

A March 26, 1992 Order by the Circuit Court for Carroll County directed that visitation be rescheduled for March 28 to April 3, 1992. Ms. Wagner did not heed this Order either, and on April 2, 1992, Mr. Wagner filed his ¹⁷ eighth Complaint for Ex Parte Relief. The Complaint advised the court of Ms. Wagner’s continued disregard of its visitation Order. It further revealed that Erika had not been at school and that Ms. Wagner was “absent without leave” from her job with the Department of Defense. “In short, it appeared that [Ms. Wagner] had absconded from Colorado with Erika and had gone ‘underground.’ ” After a hearing on the matter, the trial court ordered, on April 2,1992, that Mr. Wagner be given “immediate custody” of his daughter. 7 While the trial court did not characterize its written order as a pendente lite, or temporary, order, it made comments consistent with pendente lite status.

Two years later, in an opinion rendered on all open issues, it noted that the April 2, 1992 Order had been a temporary one. It was on or about April 23, 1992 that Mr. Wagner was finally able to locate his ex-wife and Erika; they were in California at a woman’s shelter, using assumed names. The trial court’s April 2,1992 Order was then enrolled in California and accorded full faith and credit. Based thereon, Mr. Wagner was able to effect the return of Erika to Maryland.

Shortly after her daughter’s return to Maryland, Ms. Wagner returned as well, residing with her parents in Anne Arundel County. She thereafter filed a Complaint for Visitation on June 2,1992. A hearing was held on December 24, 1992 before a Domestic Relations Master in order to determine the amount of child support Ms. Wagner would be obligated to pay. Both parties excepted to the Master’s recommendations.

Prior to the trial court’s April 23, 1993 hearing on the matter, Ms. Wagner’s parents interposed an unsuccessful request that the case be transferred to the Circuit Court for Anne Arundel County in order that they might argue their claim for grandparental visitation in that court. Subsequently, on May 7, 1993, the court issued an Order that Ms. Wagner pay $1,180 per month ¹⁸ in child support. The obligation, however, was suspended as of April 23,1993 in light of the fact that Ms. Wagner had been laid off from work; the obligation would resume once she secured other employment or was found to be voluntarily impoverished. The court did not rule on Mr. Wagner’s claim for retroactive child support for the period between April 23, 1992, when Mr. Wagner regained custody of Erika, and the December 24,1992 hearing.

Mr. Wagner subsequently filed a Complaint for Modification of Visitation on May 10, 1993, requesting that any visitation granted to Ms. Wagner be supervised. The trial court again heard from Mr. Wagner on July 20, 1993, when he filed a Complaint for Contempt based on Ms. Wagner’s failure to pay child support despite having obtained employment. A hearing on all open matters, scheduled for February 22, 1994, did not take place, and the matter was continued. The court did conduct, at Ms. Wagner’s request, in camera interviews with Erika and Kris at that time.

Because a hearing on all issues could not readily be held, one solely addressing visitation took place on April 6, 1994 at the request of counsel. Mr. Wagner’s initial Complaint for Modification of [Ms. Wagner’s] Visitation was considered moot in light of a voluntary agreement reached by the parties for unsupervised visitation. A visitation schedule was established, and a third party was appointed to act as intermediary to facilitate the exchange of the children. The court later conducted further interviews with the children in conjunction with the full hearing that was held on September 28, 1994.

During those interviews, which the court “did not conduct ... to establish the children’s preference,” the children relayed what the court later termed “disturbing revelations” about Ms. Wagner’s behavior when they visited with her. Kris stated that Ms. Wagner had electronically taped one of their visits. He also stated that Ms. Wagner maligned her ex-husband, repeatedly stating to the children that he would hurt or kill her, and that he had lied to them. She is said to have slapped Kris and used profanity in his presence.

Kris then told the court of a baseball game from ¹⁹ which Ms. Wagner removed him because Mr. Wagner “showed up.” More important, Kris described an incident relating to Erika’s allegations of sexual abuse. He stated: KRIS: ..'. [W]e were sitting on the couch. I don’t know why, but for some reason, Erika asked her [Ms. Wagner] that question. THE COURT: Asked who?

KRIS: ... She said, “Why did you make me lie about that question?” And I can’t remember what I said---- I was right there sittin[g] next to her [Ms. Wagner].... ... And she [Ms. Wagner] said, “Well, we did,” meaning dad and me abused [Erika]. Kris went on to admit that it was he who had requested that visitation with Ms. Wagner be supervised.

He stated that he would “feel more comfortable if someone would be there, because I know she wouldn’t do that [among other things, “say bad stuff about dad,” “calling him a liar,” “hitting us and trying to wash our mouth out”] in front of maybe a Mend or someone else.” Kris added that he would like to continue visiting with his mother “[a]s long as she stops lying and just acts like a normal mother.” By “normal,” Kris meant “[s]top telling lies about dad and me.... Like she can put me in time out or something, but she doesn’t have to wash my mouth out____ She doesn’t have to slap me____” By way of explaining her conduct, the trial court noted that a psychologist counseling Ms. Wagner testified that Ms. Wagner was suffering from “symptoms consistent with post traumatic stress syndrome; that Ms. Wagner suffered anxiety because of abuse from Mr. Wagner during the marriage; that Ms. Wagner had herself been sexually abused as a child by a relative; that Ms. Wagner suffers ‘flashbacks’ when she comes to court; [and] that Ms. Wagner considered the trial court’s rulings as ‘acts of abuse’ against her.” Erika confirmed much of what Kris had told the court. She also described several instances in which Ms. Wagner took away medicine that had been given to her and to Kris by Mr. ²⁰ Wagner’s new wife, a doctor who practices with the children’s regular pediatrician. Erika further stated that, though her mother had never done so, she had threatened to take Erika out of a sporting event if her father appeared to watch her, because, “ ‘It’s not [his] time [with her].’ ” When questioned about her feelings concerning continued visitation with her mother, Erika indicated that two weeks with her mother in the summer was “too long” and “boring,” and that she was unsure whether the visits she did have with her should be supervised, given that the supervisor would be with them the entire weekend.

She did, however, indicate that she “[did]n’t really want to go to mom’s if she’s not gonna act right,” meaning “not smacking us and not yelling at us just because we have ... medicine and taking it away from us. I don’t want her to say ... any more cuss words.” She admitted feeling uncomfortable during visitation but was agreeable to its continuation if her mother ceased to do that which she had described to the court. When the interview turned to Erika’s allegations of abuse by her father and brother, she stated: “I tr[ied] to tell mom that it’s not really true, [be]cause it’s not. I just didn’t want to get grounded.

But she doesn’t listen to me. She said, ‘Yes. It’s really true.’ ... I keep trying to tell her, but she says, ‘No.’ ...

She won’t believe me.” Erika then stated that Ms. Wagner had told Kris that she knew that he and Mr. Wagner “did that to Erika.” The September 28, 1994 hearing was on all pending is sues—namely, Mr. Wagner’s Fifth Supplemental Complaint seeking permanent custody of Erika (including his eight complaints for “ex parte” relief), Ms. Wagner’s Complaint for Visitation, the retroactivity of child support, Mr. Wagner’s Complaint for Contempt, arising from nonpayment of child support, and the reimbursement of Mr. Wagner’s attorney’s fees. The trial court held the matter sub curia and, on November 17, 1994, issued the Order from which Ms. Wagner appeals. The trial court, as shall we, addressed each issue seriatim. Regarding the custody of Erika, the trial court recounted the testimony of those witnesses it deemed important in ²¹ reaching its decision that the best interests of Erika, as well as Kris, lay in remaining in Mr. Wagner’s custody permanently.

The court further concluded: [Ms. Wagner]’s allegations of [Mr. Wagner'J’s abusive behavior are pure fiction and self-serving at best. This is particularly true given the fact that although the parties had been through a four ... day Master’s hearing and a five ... day Court trial during which the central issue was custody, no allegations regarding abuse were ever made. Indeed, the first such allegation was made after [Mr. Wagner] requested a change in custody. The children were found to be “flourishing” in Mr. Wagner’s care, doing well in school, and participating in sports; consideration of the criteria set forth in Montgomery County Dep’t of Social Servs. v. Sanders, 38 Md.App. 406, 420-21 , 381 A.2d 1154 (1977), 8 pointed toward a custody award to Mr. Wagner.

The court then, with “some degree of hesitation,” granted Ms. Wagner’s request for unsupervised visitation. The court did note, however, that continued conduct by Ms. Wagner in the form of disparaging statements about Mr. Wagner and Kris “could possibly give rise to a finding that supervised visitation is in the children’s best interests.” Relying on Maryland Code (1984, 1991 Repl.Vol.), § 12-204(b) of the Family Law Article (FL) and Krikstan v. Krikstan, 90 Md.App. 462 , 601 A.2d 1127 (1992), the court awarded retroactive child support for the period between April 23 and December 24, 1992. Additionally, the court found that Ms. Wagner had voluntarily impoverished herself to avoid paying child support. The court declined, however, to find Ms. Wagner in contempt of its May 7, 1993 Order—which called ²² for reinstatement of Ms. Wagner’s child support obligation either two weeks after she became employed, upon a finding of voluntary impoverishment, or upon the court’s order— because Ms. Wagner had not realized any income from her new job and because she had not previously been found to be voluntarily impoverished.

The court did, however, recalculate her obligation as being $1,011.10, and ordered that she contribute $2,500.00 toward Mr. Wagner’s attorney’s fees given the fact that “many of the proceedings necessitated in th[e] case were the result of [Ms. Wagnerj’s unreasonable conduct ... [and her] refusal to pay child support as a result of her voluntary impoverishment.” We now address appellant’s questions. L Did the court violate appellant’s constitutional due process rights to notice, opportunity to be heard, opportunity to prepare for the hearing and opportunity to defend claims, during the proceedings below? Ms. Wagner contends that her constitutional due process rights were “continually violated during the proceedings below.” She claims that she was not provided with notice of hearings in some instances and that ex parte orders were issued without a hearing in others. We first note that these procedural matters became subsumed in later proceedings that have not given rise to specific due process arguments.

In any event, Mr. Wagner disputes these assertions on procedural as well as substantive grounds. We agree substantially with him, noting, from the outset, that Ms. Wagner’s contentions in this regard have become moot. While interlocutory orders in domestic cases may, in most instances be appealed after a final order, in some circumstances, the final order moots the issues that might have existed earlier in the proceedings. In the case sub judice, we hereafter affirm that the trial court neither erred nor abused its discretion when it rendered its 1994 custody order.

We lack the power to reverse time in order to transfer the child’s ²³ custody between 1992 and 1994 to Ms. Wagner, even were we to desire to do so. In respect to this particular issue, no remedy is now possible. The issue has become, by passage of time and subsequent court action, moot. However, the due process concerns are raised in a factual context that has not heretofore been addressed, i.e., a custodial parent fleeing from a court having jurisdiction and going underground with a child under assumed names in order to avoid the reach of that court, resulting in an emergency hearing that itself results in a modification of custody.

We believe it important to resolve whether the holding of such emergency hearings under these circumstances is a violation of due process standards. Once we resolve the issue, it need not, when subsequent proceedings in future cases moot preliminary issues, be again addressed. Article 24 of Maryland’s Declaration of Rights states: “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land.” 9 Just what process is due is determined by an analysis of the particular circumstances of the case, including the functions served and interests affected. Techem Chemical Co. v. M/T Choyo Maru, 416 F.Supp. 960, 968 (D.Md.1976).

Due process, however, does not mean that a litigant need be satisfied with the result. Bugg v. Maryland Transport. Auth., 31 Md.App. 622, 630 , 358 A.2d 562 (1976), appeal dismissed, 429 U.S. 1082 , 97 S.Ct. 1088 , 51 L.Ed.2d 529 (1977). Neither does it necessarily mean “judicial process.” Indeed, it is sufficient if there is at some stage an opportunity to be heard suitable to the occasion and an opportunity for judicial review at least to ascertain whether the fundamental ²⁴ elements of due process have been met.

Burke v. Fidelity Trust Co., 202 Md. 178, 188 , 96 A.2d 254 (1953). Moreover, with respect to legal issues, due process does not even necessarily require that parties be given an opportunity to present argument. Blue Cross of Maryland, Inc. v. Franklin Square Hosp., 277 Md. 93, 103-04 , 352 A.2d 798 (1976). Due process, thus, is a flexible concept that calls for such procedural protection as a particular situation may demand.

International Caucus of Labor Comm. v. Maryland Dep’t of Transport., 745 F.Supp. 323, 329 (D.Md.1990); Department of Transp. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191 (1984), rev’d on other grounds, 311 Md. 64 , 532 A.2d 1056 (1987); Attorney Grievance Comm. v. Reamer, 281 Md. 323, 333 , 379 A.2d 171 (1977); Lomax v. Comptroller of the Treasury, 88 Md.App. 50, 57 , 591 A.2d 1311 (1991); Vavasori v. Commission on Human Relations, 65 Md.App. 237, 245 , 500 A.2d 307 (1985), cert. denied, 305 Md. 419 , 504 A.2d 1152 (1986). It does not require procedures so comprehensive as to preclude any possibility of error. International Caucus, 745 F.Supp. at 329-30 . Stated another way, due process merely assures reasonable procedural protections, appropriate to the fair determination of the particular issues presented in a given case.

See generally Plato v. Roudebush, 397 F.Supp. 1295, 1310 (D.Md.1975); see also Golden Sands Club Condominium, Inc. v. Waller, 313 Md. 484, 496 , 545 A.2d 1332 (1988) (Whether the method of notice given in a particular case is reasonable depends on the specific circumstances of that case.). Therefore, the asserted denial of due process is to be tested by an appraisal of the totality of the facts in a given case. Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252, 1256 , 86 L.Ed. 1595 (1942). Notably, there is no requirement that actual prejudice be shown before denial of due process can be established.

Town of Somerset v. Montgomery County Bd. of Appeals, 245 Md. 52, 66 , 225 A.2d 294 (1966). Once it is determined that an interest is entitled to due process protection, the pertinent inquiry then becomes what process is due, a determination that requires consider ²⁵ ation and accommodation of both government and private interests; a balancing of the various interests at stake. See Pitsenberger v. Pitsenberger, 287 Md. 20, 30 , 410 A.2d 1052 , appeal dismissed, 449 U.S. 807 , 101 S.Ct. 52 , 66 L.Ed.2d 10 (1980). Plainly stated, due process is not to be evaluated in a vacuum.

Its purpose is to assure basic fairness of procedure and, if departure from procedure results in unfairness, it may be said to deny due process; if no unfairness results, there is no denial of due process. Moss v. Director, Patuxent Instit., 32 Md.App. 66, 74 , 359 A.2d 236 (1976), rev’d on other grounds, 279 Md. 561 , 369 A.2d 1011 (1977). With these considerations in mind, we turn to the case sub judice. Ms. Wagner alleges that her due process rights were abridged when she was not provided with “notice, opportunity to be heard, opportunity to prepare for a hearing and opportunity to defend claims.” As stated, to be entitled to the protection of procedural due process, an individual must have a property or liberty interest warranting protection by the Fourteenth Amendment.

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 , 92 S.Ct. 2701, 2705 , 33 L.Ed.2d 548 (1972); Baruah v. Young, 536 F.Supp. 356, 364 (D.Md.1982). Ms. Wagner, as a parent, has a protectible liberty interest in the care and custody of her children, Weller v. Department of Social Servs., 901 F.2d 387 , 391 (4th Cir.1990), and when a state seeks to affect the relationship of a parent and child, the due process clause is implicated, Williams v. Rappeport, 699 F.Supp. 501, 505 (D.Md.1988), aff'd sub nom. Williams v. Dvoskin, 879 F.2d 863 (4th Cir.), cert. denied, 493 U.S. 894 , 110 S.Ct. 243 , 107 L.Ed.2d 193 (1989); see also Lassiter v. Department of Social Servs., 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981). Nevertheless, although Ms. Wagner correctly states that the right to a hearing embraces an adequate opportunity to defend, Christhilf v. Annapolis Emergency Hosp.

Ass’n, 496 F.2d 174, 178 (4th Cir.1974), even if she was not afforded an oral hearing (and we do not so hold), it does not necessarily mean that she was denied due process, Monumental Health Plan, Inc. v. Department of Health & Human Servs., 510 F.Supp. 244, 248 (D.Md.1981). ²⁶ Though the opportunity to be heard is commonly considered a procedural right, its denial vel non must be determined “by the substance of things, and not by mere form.” Simon v. Craft, 182 U.S. 427, 436 , 21 S.Ct. 836, 839 , 45 L.Ed. 1165 (1901). We therefore look, as we must, to the facts and interests involved and to the proceedings to determine whether Ms. Wagner either appeared or had the opportunity to appear. In essence, we shall determine if, in the instant case, Ms. Wagner was afforded the due process warranted by the interests at issue. At the time of the April 2, 1992 hearing, the trial court was faced with knowledge that Erika had not been at school for a significant period of time, Ms. Wagner had neither reported to work nor complied with the court’s visitation orders, and neither mother nor child could be located with any certainty.

The court was familiar with the case and the plethora of pleadings that characterized it. Erika had borne the brunt of her parents’ acrimonious domestic dispute, and the court was naturally concerned about her whereabouts and welfare. In the multitude of prior pleadings and proceedings, Ms. Wagner had never alleged that Mr. Wagner had sexually abused the child. This issue only arose after Mr. Wagner sought a change in custody.

(While the timing of such an allegation is certainly relevant in assessing credibility, the timing is not necessarily the conclusive factor in that assessment. There may well be many factors that contribute to the timing of these types of allegations, including that, in many cases, they may be inherently difficult to make.) At the final hearing, the trial court concluded that Ms. Wagner’s sexual abuse allegations had been investigated “four times in three jurisdictions” and had been found to be unsubstantiated. Moreover, the court noted that it was the director of the California “safe house” to which Ms. Wagner fled that had informed Mr. Wagner of Erika’s whereabouts out of concern for Erika’s safety in light of Ms. Wagner’s behavior. The facts, as presented by Mr. Wagner and accepted by the trial court, warranted swift action, and our review of ²⁷ the record finds support for the trial court’s immediate transfer of pendente lite custody to Mr. Wagner.

We note again that Ms. Wagner’s attorney was present at the hearing and was heard on her behalf. Thus, Ms. Wagner was aware of the proceeding, or should have been aware of it, through counsel. Additionally, Ms. Wagner had the opportunity to appeal the order if she felt aggrieved thereby, but choose not to do so. In Erika’s best interests, the court ordered custody transferred to Mr. Wagner, but strongly urged Ms. Wagner’s attorney (who, as we have said, had notice of and was present at the hearing) to file an immediate request for relief if there were a “satisfactory explanation” for Ms. Wagner’s conduct: “[T]he best course of action is to change custody, find this child, and get an explanation from [Ms. Wagner].” We agree that, given the history of the instant case and the allegations contained in the petitions, most of which the trial court later substantiated, it was virtually the only correct course of action.

It was Ms. Wagner who chose to abscond to California with the child rather than appear for the hearing. Her own attorney, who was present at the hearing to represent her interests, indicated that she had left six to eight messages for Ms. Wagner over a five-day period but had not heard back from her. Ms. Wagner’s absence from the hearing was of her own doing. Due process does not mandate a prior hearing in cases where emergency action may be needed to protect a child, Weller, 901 F.2d at 393, especially when the missing party’s attorney of record is fully apprised of the proceeding and attends.

The trial court was concerned about the child and her whereabouts. We cannot say that, under these circumstances, appellant was denied due process or that the court then erred in awarding Mr. Wagner temporary custody.

II

Did appellee satisfy his burden of proving a change of circumstances to justify a change in Erika’s custody, either in 1992 or 1994? We first note that, at oral argument, Ms. Wagner’s counsel seemed to argue that the trial court should not have based its ²⁸ decision in respect to a change in circumstances on the circumstances that existed in 1994, but, rather, should have resolved that issue based on the situation as it existed in 1992. As we read the trial court’s November 17, 1994 Opinion and Order, we do not perceive that it there made any decision at all as to a change in circumstances. It had found a change in circumstances in 1992 and, at that time, ordered a change in custody, albeit on a temporary basis, to Mr. Wagner.

Before addressing the case law pertinent to Ms. Wagner’s argument, it may be helpful to redefine the procedural steps required to be taken in child custody modification cases. A change of custody resolution is most often a chronological two-step process. First, unless a material change of circumstances is found to exist, the court’s inquiry ceases. In this context, the term “material” relates to a change that may affect the welfare of a child.

See McCready v. McCready, 323 Md. 476 , 593 A.2d 1128 (1991). Moreover, the circumstances to which change would apply would be the circumstances known to the trial court when it rendered the prior order. If the actual circumstances extant at that time were not known to the court because evidence relating thereto was not available to the court, then the additional evidence of actual (but previously unknown) circumstances might also be applicable in respect to a court’s determination of change. If a material change of circumstance is found to exist, then the court, in resolving the custody issue, considers the best interest of the child as if it were an original custody proceeding.

Certainly, the very factors that indicate that a material change in circumstances has occurred may also be extremely relevant at the second phase of the inquiry—that is, in reference to the best interest of the child. If not relevant to the best interest of the child, the changes would not be material in the first instance. Because of the frequency with which it occurs, this two-step process is sometimes considered concurrently, in one step, ie., the change in circumstances evidence also satisfies—or does not—the determination of what is in the best interest of the child. Even if it alone does not satisfy the best interest standard, it almost certainly will afford evidentiary support in ²⁹ the resolution of the second step.

Thus, both steps may be, and often are, resolved simultaneously. If, however, in respect to the previously known circumstances the evidence of change is not strong enough, i.e., either no change or the change itself does not relate to the child’s welfare, there can be no further consideration of the best interest of the child because, unless there is a material change, there can be no consideration given to a modification of custody. The threshold—but not paramount—issue is the existence of a material change. Once material change, if any, is established, the further relevance of that evidence depends upon how it relates to the best interest of the child; thereafter, the best interest of the child standard controls, ie., is paramount in the trial court’s further determination as to whether to modify custody.

In other words, there can be no modification of custody unless a material change of circumstance is found to exist. Even if a material change is found to exist, however, custody can only be modified if it is in the best interest of the child to do so. It is in the “best interest” analysis that the case-created standards of Sanders, swpra, and its progeny apply. “The guiding principle of any child custody decision, whether it be an original award of custody or a modification thereof, is the protection of the welfare and best interests of the child.” Shunk v. Walker, 87 Md.App. 389, 396 , 589 A.2d 1303 (1991) (citing, inter alia, Queen v. Queen, 308 Md. 574, 587 , 521 A.2d 320 (1987), and Skeens v. Paterno, 60 Md.App. 48, 61 , 480 A.2d 820 , cert. denied, 301 Md. 639 , 484 A.2d 274 (1984)); see also Levitt v. Levitt, 79 Md.App. 394, 397 , 556 A.2d 1162 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989). Indeed, a noncustodial parent is never foreclosed from seeking a change in custody, and Ms. Wagner correctly states that a change in circumstances must be proven by the movant to justify a change in custody.

In the more frequent case, however, there will be some evidence of changes which have occurred since the earlier determination was made. Deciding whether those changes ³⁰ are sufficient to require a change in custody necessarily requires a consideration of the best interest of the child [because, to be material, the change must relate to the welfare of the child]. Thus, the question of “changed circumstances” may infrequently be [only] a threshold question, but is more often involved in the “best interest” determination. McCready, 323 Md. at 482 , 593 A.2d 1128 ; see also Domingues v. Johnson, 323 Md. 486, 498-500 , 593 A.2d 1133 (1991); Bienenfeld v. Bennett-White, 91 Md.App. 488, 499 , 605 A.2d 172 , cert. denied, 327 Md. 625 , 612 A.2d 256 (1992).

In McCready , the mother contended that the chancellor erred in utilizing a best interest of the child standard in considering a change of custody. The Court of Appeals disagreed, opining: The appropriate standard for determining a contested custody case is the best interest of the child____ The question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case____ ... 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---- “While 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.” ... In the limited situation where it is clear that the party seeking modification of a custody order is offering nothing new, and is simply attempting to relitigate the earlier determination, the effort will fail on that ground alone.

In that instance, ... the absence of a showing of a change in circumstances ordinarily is dispositive, and ... the chancellor does not weigh the various factors to determine the best interest of the child. McCready, 323 Md. at 481-82 , 593 A.2d 1128 (emphasis added; brackets, footnote, and citation omitted). It is this two-fold ³¹ burden—that a sufficient change in circumstances exists to sanction a change in custody and that a change would be in the child’s best interests—that a noncustodial parent must bear in order to prevail in a petition seeking a modification of custody. Once entered, a custody decision “will ordinarily not be modified except upon a showing of a change in circumstances justifying a change in custody to accommodate the best interest of the child.” Domingues, 323 Md. at 492-93 , 593 A.2d 1133 (emphasis added) (citing Hardisty v. Salerno, 255 Md. 436, 439 , 258 A.2d 209 (1969)).

We also regard instructive in our resolution of this issue Skunk v. Walker, supra, 87 Md.App. 389 , 589 A.2d 1303 , a case bearing close factual similarity to the case at bar. There, upon the parties’ divorce, the father was awarded custody of their minor child, and the mother was granted visitation rights. Shortly thereafter, the father moved out of state with the child. This, perforce, decreased the mother’s ability to visit with the child.

Court orders specifying the dates visitation was to take place were disregarded and, as a result, the mother filed numerous motions, including, but not limited to, a motion to modify custody. The father continued to absent himself from the proceedings, and it was soon discovered that he had fled with the child to Canada. In addition to finding the father in contempt, the chancellor awarded custody of the child to the mother, finding that the father’s conduct “in failing to appear and produce the child prevented the court from effectively safeguarding the best interests of the child, and created a significant change in circumstances that could well affect the welfare of the child.” 87 Md.App. at 395 , 589 A.2d 1303 . On appeal, the father alleged that the chancellor erred in awarding custody to the mother because there was no evidence to indicate that his conduct adversely affected the child’s welfare.

We did not agree. Following an exposition of the relevant law, we stated that, in cases where a change in custody from the custodial parent to the noncustodial parent is sought, “[t]he burden ... is clearly on the party ‘who affirmatively seeks action by the chancellor ... to show why the court should take that action, and, if he fails to meet that ³² burden, the action should not be taken.’ ” Id. at 397 , 589 A.2d 1303 (quoting Jordan v. Jordan, 50 Md.App. 437, 443 , 439 A.2d 26 , cert. denied, 293 Md. 332 (1982)). We continued: To warrant a modification of custody, a party must establish that the modification is necessary to safeguard the welfare of the child____[ 10 ] When a chancellor finds that the moving party has satisfied this heavy burden and established a significant justification for a change in custody, those findings must be accorded great deference on appeal, and will only be disturbed if they are plainly arbitrary or clearly erroneous. Id. at 398, 589 A.2d 1303 (emphasis added, citations omitted).

The father correctly argued that his mere relocation could not serve to justify a change in custody. It did, however, not only render the mother’s visitation more difficult, but effectively discontinued any contact between the two given that the child’s whereabouts were unknown. It was obviously a change that might have affected the child’s welfare. Under those circumstances, we held that the trial court’s finding that the father was not the proper person to maintain custody of the child was clearly supported: “[B]y moving twice within brief periods, [the father] has nullified the presumed advantages of continuity and stability.” Id. at 400 , 589 A.2d 1303 .

The same may be said for the case sub judice. Ms. Wagner contends that Mr. Wagner failed to sustain “his burden of proving a change of circumstances to justify a change in Erika’s custody, either in 1992 or 1994.” Mr. Wagner, on the other hand, asserts that he put forth ample evidence to substantiate a change in custody. In asserting that Mr. Wagner failed to prove a change of circumstances sufficient to justify a transfer of custody to him, Ms. Wagner ³³ challenges the trial court’s April 2, 1992 and November 17, 1994 Orders (1992 Order and 1994 Order, respectively). It is evident from the record that Mr. Wagner’s April 2, 1992 Complaint for Ex Parte Relief was not an attempt to relitigate previously presented custody arguments.

He, at that time, had had no contact with his daughter for upwards of two months, and his wife could not be located. Whether this change was sufficient to call into question the court’s prior custody decree was a matter for the trial court to determine. In other words, was this change material? Was it