Wise-Jones v. Jones

CATHELL, Judge. Marquita E. Wise-Jones appeals from judgments of the Circuit Court for Prince George’s County that 1) entered an immediate order which implemented a master’s recommendation that custody of the parties’ child, Aaron M. Jones, be with Thomas Ellsworth Jones, appellee; 2) denied her exceptions to the master’s recommendation; and 8) modified- a prior judgment of divorce so that appellee was granted custody of the child with appellant retaining reasonable rights of visitation. We shall reverse the judgments of the circuit court. The Facts On 7 September 1994, appellant and appellee were granted a judgment of absolute divorce.

As part of that divorce decree, appellant retained custody of the parties’ minor child and appellee was afforded reasonable rights of visitation. Appellee filed a Motion for Contempt and Request for Modification of Judgment of Absolute Divorce on 22 January 1996. In that motion, he alleged that appellant had denied him access to Aaron and requested that the court award him sole custody of the minor child. Following a “home study” conducted by the Department of Social Services, a hearing was held on 18 June 1996 before a Master for Domestic Relations Causes (master) regarding the modification of child custody.

Additional testimony was taken on 20 June 1996 regarding health insurance coverage that was to be provided by appellee. The master ultimately recommended, in a written report sent to the parties on 12 July 1996, that “the Judgment of Absolute Divorce dated 9/2/94 be modified to grant [appellee], Thomas Ellsworth Jones, Jr. custody of the one minor child, Aaron M[.] (5/24/90) with reasonable rights of visitati[o]n granted to [appellant], Marquita E[.] Wise-Jones every other weekend.” Appellant promptly filed exceptions to the Master’s recommendations on 22 July 1996. ⁴⁹³ On 29 August 1996, appellant filed a Motion to Extend Time for the filing of the transcript of the Master’s hearings. Along with that motion, appellant filed pages one through fifty-eight of the transcript of the 18 June 1996 hearing. This motion for extension of time was granted by the trial court on 4 September 1996, and appellant was given until 22 September 1996 to produce a transcript of the hearing.

A transcript of the remainder of the 18 June 1996 hearing was filed on 10 September 1996. The transcript of the 20 June 1996 hearing was not produced until 18 November 1996. On 3 September 1996, appellee filed a pleading entitled “Ex Parte Motion for Temporary Custody.” In that motion, appellee requested an “ex parte” order for temporary custody. The reasons for appellee’s requested relief included: 1.

That Master Rumsey held a plenary hearing on June 18, 1996 and found that [appellant] had abused her six-year old child, Aaron Jones, and that the child feared the mother. 2. In addition, the Master awarded [appellee] custody. 3. That [appellant] filed exceptions to the ruling on July 18,1996, but has not produced a transcript. 4. That a hearing is not scheduled yet and the child must start school. 5.

To avoid further abuse and allow the child to attend one school until a hearing is held or the exceptions are dismissed, [appellee] is requesting that he be awarded temporary custody. Although a hearing as to appellee’s “ex parte” motion was not held, the trial court granted the motion on 5 September 1996. The court’s order provided that appellee “be, and hereby is forthwith, awarded custody of Aaron Jones.” A hearing on appellant’s exceptions to the master’s written report also was never held by the trial court. In a memorandum sent by the trial court to appellant’s counsel prior to the dismissal of appellant’s exceptions, the court explained the procedural posture of the case at that time: This memorandum is in response to your memorandum of November 19, 1996, indicating ex parte relief had been ⁴⁹⁴ granted against your client without notice or opportunity for a hearing.

There was a full hearing on [appellant’s] Motion to Modify a Judgment of Divorce, which had granted custody to [appellee]. Both parties were pro se at the time. On April 18, 1996, the Master took some testimony and requested a Department of Social Service home study. On June 18, 1996, the Master recommended that the Judgment be modified to grant custody to [appellee].

Those recommendations were based upon the Master’s finding that [appellee] is a fit and proper custodian for the child and that [appellant] had conducted a long-term and meritless course of action to deny any meaningful visitation to [appellee]. Accordingly, the Master felt that it would be in the best interest of the child to be placed with [appellee]. [Appellant] then hired Ms. Chesson-Wureh, who excepted to the Master’s recommendations. [Appellee] then hired Mr. Janus, who opposed the exceptions. When Mr. Janus filed his Ex-Parte Motion for Temporary Custody on September 8, 1996, the Master considered the fact that his goal of placing the child situated in a stable school environment would be defeated if he were to remain with [appellee] pending the exceptions, and then be transferred in the middle of the school year.[ 1 ] For those reasons, the Master recommended a Forthwith Order. The Master indicates that Ms. Chesson-Wureh was notified of [appellee’s] request for Ex-Parte Temporary Custody....

The only “ex-parte” issue was whether to modify his recommendations of June 18th to provide for an immediate Order. For the reasons previously given, the Master felt an immediate Order was appropriate____ ⁴⁹⁵ The Court is of the opinion that although [appellee] filed an Ex-Parte Motion for Custody on September 3, 1996, the Master’s actions were not ex-parte. All he did was supplement his recommendations, which were made after a full hearing, to make them forthwith. Furthermore, the Court is of the opinion that all of this is moot, in that the transcript pertaining to the exceptions on the merits was not timely filed. [Some emphasis added.] The trial court later filed its order on 6 January 1997.

It provided: “ORDERED, that [appellant’s] Exceptions be, and hereby are, dismissed as moot; and it is further, ORDERED, that the Judgment of Absolute Divorce dated September 2, 1994 be, and hereby is, modified to grant [appellee] ... custody of ... Aaron M. Jones____” Appellant filed a timely notice of appeal on 29 January 1997. Appellant presents four questions on appeal: 1. Did the trial court err in granting [a]ppellee ex parte custody while exceptions were pending and without finding an emergent need to protect the child and without granting a hearing on the order? 2.

Did the trial court err when it dismissed [appellant’s] exceptions as moot because she did not file a transcript of a contempt hearing even though [appellant’s] exceptions related only to the Master’s recommendations and [the] hearing on modification of custody? 3. Did the trial court err in modifying custody when it failed to make findings of fact or conduct an independent review of the case? 4. Did the trial court violate [appellant’s] right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution? Discussion 1.

Did the trial court err in granting [a]ppellee ex parte custody while exceptions were pending and without finding an emergent need to protect the child and without granting a hearing on the order? ⁴⁹⁶ In order to resolve successfully this issue, we must examine the trial court’s authority to enter an immediate order based upon a master’s recommendations. Although appellee’s motion below was framed as an “ex parte” motion, it was in essence a request that the trial court enter an immediate order transferring custody of the child to appellee prior to a final determination of appellant’s exceptions to the master’s recommendation. We shall first examine a case that is factually similar to the case sub judice. Although the ultimate holding in that case is not controlling because of statutory modifications to the authority of the trial court to enter immediate orders, its discussion of the trial court’s authority is instructive.

In Stack v. Stack, 83 Md.App. 36 , 573 A.2d 409 (1990), following a hearing regarding pendente lite custody, child support, and visitation, the master recommended that custody remain with the mother. The father immediately filed exceptions to the master’s recommendations. Prior to a hearing on the exceptions, the trial court, pursuant to a motion filed by the mother, entered an immediate order implementing the master’s recommendations. On appeal, the father argued that the trial court did not have the authority to enter such an order.

We stated: As we have already pointed out, this matter was referred to a master for a hearing on the issues of custody, support, and visitation of children pendente lite. Maryland Rule 2-541(b)(2). As we have also said, appellant timely filed exceptions to the master’s recommendations. Under these circumstances, the authority of the circuit court to enter an immediate order based upon the master’s recommendations is very limited.

Id. at 41 , 573 A.2d 409 . We ultimately held “a circuit court is without authority to pass an immediate order awarding custody of children pendente lite, upon the recommendation of a master, when exceptions to the master’s recommendations have been timely filed and a hearing on those exceptions has been requested and has not been held.” Id. at 43 , 573 A.2d 409 . ⁴⁹⁷ It is clear that the circuit court’s authority is no longer circumscribed in such a manner. Former Maryland Rule S74A(i), now Maryland Rule 9 — 207(f), clearly provides for the entry of immediate orders awarding custody of children based upon a master’s recommendations. 2 A party may seek an immediate custody order by a circuit court “[u]pon a finding by a master that extraordinary circumstances exist and a recommendation by the master that an order concerning pendente lite relief be entered immediately.” Md. Rule S74A(f)(2) (emphasis added). Following such findings by the master, “the court may direct the entry of an immediate order after reviewing the file and any exhibits, reviewing the master’s findings and recommendations, and affording the parties an opportunity for oral argument.” Md. Rule S74A(f)(2) (emphasis added).

We recently discussed Maryland Rule S74A(f)(2) in Miller v. Bosley, 113 Md.App. 381 , 688 A.2d 45 (1997). In that case, the master conducted a hearing on the issue of child custody. Following that hearing, the master issued a report recommending that custody of the parties’ child be granted immediately to the father’s sister. After the trial court conducted its own hearing, it entered an immediate order implementing the master’s recommendation as to custody.

On appeal, the mother, who did not file exceptions to the master’s recommendations, argued that the trial court improperly granted an immediate order pursuant to Maryland Rule S74A(f)(2). We noted in Miller that the master made few findings and recommendations. The master found: 1) the parties were the child’s biological parents; 2) the parties had a relationship; 3) the mother and father were not credible and used vulgar language; 4) the best interests of the child would be served by granting pendente lite custody to the father’s sister, and 5) the court should determine the “nature and desires of the child’s parents.” Id. at 389 , 688 A.2d 45 . We ultimately held: ⁴⁹⁸ Section (f) [of Maryland Rule S74A] specifically limits the power of the trial judge to enter an order following a master’s hearing.

The trial judge purported to issue his opinion under subsection (2) of that section. [The father] has not argued that the judge’s order was sustainable on any other basis. Accordingly, we limit our analysis to that subsection and do not consider whether the chancellor’s disposition would have been proper under the other provisions of Md. Rule S74ACQ. Md. Rule S74A(f)(2) allows the judge to act immediately if the master finds “extraordinary circumstances” and recommends immediate disposition. As we noted in the fact section of this opinion, the master did not make the requisite finding that extraordinary circumstances exist, although he did recommend an immediate change of custody.

We conclude that the master’s failure to predicate his recommendation on a finding of “extraordinary circumstances” prevents disposition under Md. Rule S74A(f)(2). In so concluding, we note that the lengthy delay of fifty days between the master’s hearing and the issuance of his report supports a reasonable inference that there was no immediate threat to the child constituting an extraordinary circumstance. This is a further reason why the master’s omission of any clear explanation of what could have been an extraordinary circumstance prevented the chancellor from relying on the master’s report as a predicate for his action to order an immediate change in custody. Miller, 113 Md.App. at 393-94 , 688 A.2d 45 .

While the master made recommendations in the case sub judice, as we have indicated, the record, as contained in the extract, does not support that the master made any findings, of fact at all. The master’s report merely provided that custody should be granted to appellee. The report contained only recommendations. Moreover, the report did not indicate extraordinary circumstances present that would justify an immediate change in custody. 3 Accordingly, the trial court was ⁴⁹⁹ not justified in issuing the immediate order based upon the master’s report.

In addition, the approximately twenty-three-day delay from the date of the hearing to the issuance of the report indicates that such extraordinary circumstances did not exist. We also note the trial court erred for another reason. Following appellee’s “ex parte” motion, which was in reality a request that the trial court enter an immediate order transferring custody, ie., a forthwith order, an order was issued that had affixed to it the signature of the master and a stamped signature of the trial judge. That order provided that appellee “be, and hereby is forthwith, awarded custody of Aaron Jones.” As we have noted previously in this opinion, the power of the trial court, as well as the authority of the master, is limited by the Maryland Rules and the statutes providing for the use of masters in domestic relations cases.

Maryland Rule S74A(f)(2) provides: [T]he court may direct the entry of an immediate order after reviewing the file and any exhibits, [after] reviewing the master’s findings and recommendations, and [after] affording the parties an opportunity for oral argument. The court may accept, reject, or modify the master’s recommendations. An order entered under this subsection remains subject to a later determination by the court on exceptions. [Emphasis and bracketed material added.] As the rule indicates, the