Gillespie v. Gillespie

• Decision Date: 29 June 2012
• Docket Number: Nos. 960,2153,Sept. Term, 2011.,s. 960
• Citation: 47 A.3d 1018,206 Md.App. 146
• Parties: Victoria GILLESPIE v. David GILLESPIE.
• Court: Court of Special Appeals of Maryland

206 Md.App. 146

47 A.3d 1018

Victoria GILLESPIE

v.David GILLESPIE.

Nos. 960, 2153, Sept. Term, 2011.

Court of Special Appeals of Maryland.

June 29, 2012.

Joel Marc Abramson (Abramson & Rand, LLC, on the brief), Columbia, MD, for Appellant.

Scott M. Strickler (Geoffrey S. Platnick, Shulman, Rogers, Gandal, Pordy & Ecker, PA, on the brief), Potomac, MD, for Appellee.

Panel: KEHOE, BERGER, RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

BERGER, J.

This case arises from an Order of the Circuit Court for Frederick County modifying custody of the children of the parties. On August 24, 2009, Victoria Gillespie (“Mother”) and David Gillespie (“Father”) signed a voluntary separation and property settlement agreement, agreeing to joint physical and legal custody of their three minor children.¹ The separation agreementprovided that the children were to alternate weeks between Mother and Father, spending fifty percent of their time with each parent. A hearing was held on September 11, 2009, and the parties were granted an absolute divorce on October 5, 2009, incorporating the terms of the separation agreement.

On June 9, 2010, Father filed a motion to modify custody. The custody modification trial took place on April 19, 20, and 22, 2011. The circuit court rendered its opinion from the bench at the conclusion of trial and subsequently issued a written order on May 5, 2011. The order modified the physical access of the children, granting significantly more access to Father than Mother. The court also modified legal custody granting Father tie-breaking authority in the event of an impasse. Mother filed motions to alter and amend and for a new trial, which the circuit court denied on June 13, 2011. This timely appeal followed.

Father filed an appeal from the circuit court's orders requiring him to pay outstanding fees owed to the court appointed evaluator, Rebecca L. Snyder, Psy.D (“Dr. Snyder”), and the children's best interest attorney, Richard M. Winters (“Winters”).² This Court elected to treat Father's appeal as a cross-appeal.

On appeal, Mother presents two issues for our review, which we have rephrased as follows:

I. Whether the circuit court erred in admitting the report of R. Allen Lish, Psy.D (“Lish Report”).

II. Whether the circuit court erred in modifying custody of Mother and Father's three minor children.

Father presents one issue for our review, which we have rephrased as follows:

I. Whether the circuit court erred in ordering Father to pay the balance due to the best interest attorney and the court appointed evaluator.

For the reasons set forth below, we affirm the judgment of the Circuit Court for Frederick County modifying custody. Because we conclude that the circuit court erred in orderingFather to pay the balance due to the best interest attorney and the court appointed evaluator, we vacate that order and remand for the limited purpose of determining the fees for the best interest attorney and court appointed evaluator in accordance with the statute.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother were married on August 28, 1993. They have three minor children: a son, age eleven, a daughter, age nine, and a daughter, age seven. The parties entered into a Voluntary Separation and Property Settlement Agreement (“Agreement”) on August 24, 2009. At that time, the parties and the three children resided together at the marital home. The Agreement specified that the parties would separate on September 13, 2009, and the parties separated on September 12 and 13, 2009. The Agreement provided for joint legal and physical custody with the children alternating between the parents on a weekly basis. The Agreement also provided a holiday schedule for the children.

Mother and Father were divorced on October 5, 2009, following a hearing before a Family Law Master on September 11, 2009. The Agreement was incorporated but not merged into the Judgment for Divorce, and the court granted the parties joint legal and shared physical custody. Following the divorce hearing, during the weekend of September 12, 2009, Mother moved out of the marital home and initially moved into the home of her sister, Lisa Adkins (“Adkins”). Mother intended to remain at Adkins' home until the construction of her new home was completed. The parties initially followed the alternate week schedule, but there were soon deviations from the schedule. At various times throughout the fall of 2009, Mother asked Father to keep the children additional nights or delay drop-off or pick-up for various reasons, including Mother's work obligations and because Mother did not want the children to be around Adkins' boyfriend.

The parties agreed to temporarily postpone the alternating weeks schedule in February 2010 because Adkins' boyfriend was planning to move in and Mother did not want to expose the children to him. From February through April 2010, the children lived predominantly with Father. The children did not stay overnight with Mother at Adkins' home, but Mother spent time with the children regularly during the week and on weekends. At the end of April 2010, the parties agreed that the girls would resume alternate weeks while their son would continue to reside primarily with Father. Mother believed that the alternate weeks would resume for all three children once she moved into her own house.

Since the divorce, there has been increasing volatility in the relationship between Mother and the parties' son. Both parties agree that the son has been increasingly disrespectful to Mother since the divorce. One evening in February 2010, at approximately 11:20 p.m., Mother telephoned Father and told him to “get [the son]'s ass out of [her] house” and said that the son needed to stay with his father until he could act respectfully toward her. Mother claimed that she believed the son was sleeping when she made this statement, but she since learned that the son had heard her comments. Father testified that the son was extremely upset by his mother's statement and that the son felt that his mother did not want him in her home. Mother testified that she and the son have had difficulty getting along at times but that she has made efforts to improve her relationship with the son.

On May 25, 2010, Mother moved out of Adkins' home and into her new home but the alternating weeks schedule did not resume. The girls spent the week of May 28, 2010 with Mother pursuant to the separation agreement but the son did not. Father filed a motion to modify custody on June 9, 2010. The following alternate week, the week of June 11, 2010, the girls again came to Mother's home but the parties' son did not. Mother complained about Father's refusal to allow her access to the son. She called and emailed Father to remind him of his breach of the Agreement. The following alternate week, the week of June 25, 2010, the girls again came to Mother's home but the son remained with Father. At this point, Mother again notified Father that he was in breach of the Agreement and she filed a petition for contempt and show cause on June 25, 2010.³

All three children stayed with Mother for the entire week of July 9, 2010, and Mother testified that everything went well during that stay. All three children also spent the entire week with Mother during the weeks of July 23, 2010 and August 6, 2010. The son did not go to Mother's home for the week of August 20, 2010 and instead spent the week with Father and Mary Ann Grenis (“Grenis”), Father's girlfriend.⁴ The following alternate week, September 3, 2010, all three children spent the week with Mother and Mother testified that the week went well. Throughout the fall of 2010, the son often did not spend time with Mother pursuant to the Agreement.

At the custody modification trial, the parties testified regarding various other events that occurred during the period between the parties' separation and divorce in the fall of 2009 and the custody modification trial in April 2011. On May 26, 2010, an altercation occurred between Mother and Grenis. Grenis had known the family for several years prior to Father and Mother's divorce. After the divorce, Father and Grenis began dating. On May 26, 2010, at a youth baseball game at the Mount Airy Youth Athletic Association (“MAYAA”) baseball fields, Mother and Grenis had an argument relating to the time Grenis spent with the children. Mother struck Grenis in the face, and law enforcement personnel were called to the scene. Mother was charged with criminal assault and she ultimately pleaded guilty to second degree criminal assault. Mother was placed on unsupervised probation until January 2012. One of the conditions of probation was that she stay away from Grenis, but Grenis testified that Mother gave her “the finger” in view of the children in April 2011. Additionally, Mother was banned from the MAYAA baseball fields for one year.

Father further testified that Mother treats the son differently than the daughters and that Mother has made comments to the daughters such as, “[l]ook at [the son]. That is what a bad boy does.” Father testified that in June 2010, Mother allowed the daughters to go on a beach vacation but did not allow the son, saying that he “didn't deserve to go.” Both parties have admitted to giving “the finger” to each other in front of the children, and Father testified that on one occasion, Mother said, “fuck off, jackass” to him in the presence of the children. Father acknowledged that he did not put Mother's name or contact information on the YMCA after school program emergency contact card but instead left the section for “mother” blank.

There was also an incident on October 31, 2010. Father and Mother had a disagreement in front of the children regarding Younger Daughter's Halloween costume. Father testified that the son made a statement to which Mother replied, “You got a bad attitude. [sic] You can't stay here and you know, you just, you can just go back with your dad.” Fath...