Zerhusen v. Zerhusen

GILBERT, Chief Judge. This appeal represents the first occasion this Court has had to discuss the temporary ex parte orders that are issued by circuit and district courts in cases involving household violence. The factual pattern from which this matter arose is not complex. Timothy J. Zerhusen on June 16, 1987, sued his wife, Kimberly Ann Zerhusen, in the Circuit Court for Baltimore City, asserting that the wife had committed the marital offense of adultery.

The husband asked for an absolute divorce, custody of the couple’s child, and use and possession of the marital home, as well as child support. The wife responded timely. Notwithstanding the pending divorce action, the parties continued to reside in the same house. The case proceeded in normal fashion, that is, exchange of interrogatories, motions for custody investigation, and the like.

What was not so normal was the continued joint occupancy of the marital residence. ³⁸⁸ Almost six months after the divorce action was filed, the wife on December 3,1987, under oath, 1 petitioned the circuit court for “Protection from Domestic Violence.” She asserted to the court that on December 1, 1987: “Respondent [Timothy J. Zerhusen] starting arguing about the phone. Pet. had phone was going to her own bed room and his starting pushing her around and graving her arn and pushing her in the Back. He takes Pet. personal item from her.” On the strength of that ex parte petition, the chancellor ordered the husband from the marital residence until December 18, 1987, and awarded to the wife temporary custody of the minor child. The husband promptly moved to “quash the ... petition,” observing that the court’s order violated Md.Fam.Law Code Ann. § 4-505, which provides: “(a) ...—(1) If a petition is filed under this subtitle and the court finds that the petitioner has shown that a household member has been abused, the court, in an ex parte proceeding, may enter a temporary order to protect the petitioner or another household member from abuse.

(2) The temporary ex parte order shall order the alleged abuser to refrain from abusing household members and may: (i) except in a case of alleged child abuse, order the alleged abuser to vacate the family home immediately and grant temporary possession of the family home to the petitioner for not more than 5 days after service of the ex parte order; (ii) in a case of alleged child abuse, order the alleged abuser to vacate the family home immediately and grant temporary possession of the family home to an adult ³⁸⁹ household member for not