Birch v. Birch, 0249

• Decision Date: 26 October 2015
• Docket Number: No. 0249,0249
• Parties: JAMES T. BIRCH v. LINDSEY A. BIRCH A/K/A LINDSEY A. JOHNSON
• Court: Court of Special Appeals of Maryland

JAMES T. BIRCH v. LINDSEY A. BIRCH A/K/A LINDSEY A. JOHNSON

No. 0249

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

October 26, 2015

UNREPORTED

Wright, Hotten, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by Hotten, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, James T. Birch, and appellee, Lindsey A. Birch, aka Lindsey A. Johnson, were divorced in 2009. Pursuant to the Judgment of Absolute Divorce, appellant was granted sole legal and physical custody of the parties' then five-year-old child (hereinafter referred to as "K.").¹ Years later, on March 24, 2015, a family magistrate made a recommendation for an immediate pendente lite order granting sole legal and physical custody of K. to appellee. The following day, the Circuit Court for Frederick County signed an order adopting the magistrate's recommendation, and appellant appealed, presenting three questions for our review, which we re-order as follows:

I. Whether the facts as determined by the magistrate and relied upon by the trial judge [were] sufficient enough to establish "extraordinary circumstances" such as to warrant an immediate order modifying custody of the parties' minor child in this case?

II. Whether the [circuit] court erred as a matter of law in failing to interview the child and ascertain the child's preference as a matter of law?

III. Whether the [circuit] court failed to utilize its independent judgment to determine the best interest of the child?

For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

By the terms of the parties' Judgment of Absolute Divorce entered on June 23, 2009, there was no visitation schedule between appellee and the minor child, K., and K. was to have no contact with Bruce Waldron ("Mr. Waldron"). Mr. Waldron was appellee'ssignificant other at the time of divorce, and had apparently threatened appellee and her family with physical harm unless appellee relinquished custody of K. to appellant.

In May of 2014, appellee sought full legal and physical custody of K. through a Motion to Modify Custody, Access, Child Support, and for Other Appropriate Relief, filed in the Circuit Court for Frederick County. Appellee alleged that "there has been a material change in circumstances since the entry of the Judgment of Absolute Divorce." Specifically, appellee averred that she was no longer in an abusive relationship with Mr. Waldron, that appellant has denied her access to K. in the previous month, that appellant did not allow K. to spend time with her on both Mother's day and Easter, that K.'s attendance and grades at school have suffered significantly during the 2013-2014 school year, that appellant is planning to move K. to Pennsylvania, that appellant has failed to communicate with her about K., and that she was concerned for K.'s wellbeing.

Prior to the beginning of the 2014-15 school year, appellant did in fact move K. from Frederick, Maryland to a house owned by appellant's fiancé, Eileen Harlan, in Windsor, Pennsylvania, outside of York. As a result of this move, ten-year-old K. was removed from Visitation Academy in Frederick County, where she had attended school since Kindergarten.

On September 8, 2014, the court appointed Thomas P. Sinton as best interest attorney for K., and on November 5, 2014, the court ordered that Lynda Mallory perform a custody evaluation.

After two pendente lite hearings and multiple consent orders, the parties came before Family Magistrate Richard Sandy for a third pendente lite hearing on March 23, 2015. During the first day of testimony, appellant moved to present K.'s preference for custody either through an in camera interview with the magistrate or through testimony at the hearing. The best interest attorney and appellee opposed this motion, contending that "the child's already been too involved in this process altogether." The magistrate ruled that the motion would be held in abeyance until he had heard from Lynda Mallory (hereinafter "the custody evaluator"), who was scheduled to testify the following day.

On March 24, 2015, the custody evaluator was qualified as an expert in custody evaluation and examined by the best interest attorney. After meeting with both parents, performing background checks, visiting both homes while K. was present, collecting documents from K.'s school/pediatrician, and interviewing K. at both homes, the custody evaluator recommended that "the physical and legal custody of [K.] be with mom [(appellee).]" According to the custody evaluator, she arrived at this conclusion based on some "pretty serious concerns" surrounding appellant. These concerns included appellant's tendency to undermine appellee's involvement in K.'s life, appellant's presentation of negative information about appellee to K., K.'s "feeling that she has to verbalize dislike of her mother... to preserve her relationship with her father[,]" and appellant's decision "to pull [K.] from the only school she'd known, from the environment where all of her extended family were, [and] moving her to Pennsylvania[.]" The custody evaluator was also concerned about appellant's testimony earlier in the pendente litehearing that K. had cut herself, and noted that appellant had entirely neglected to mention this to her when she had asked him about any concerns with K. during their interview.

Regarding the issue of whether K. should participate in an in camera interview, the custody evaluator opined that having K. testify "would be extremely detrimental to her[,]" because:

[K.] wants to be with both of her parents, but feels that she has to articulate what she knows her dad wants and I think that to put her in a situation where she would feel the need to have to articulate one preference or another, it would be extremely difficult for her.

The custody evaluator also noted that "[K.] at [eleven] is unable to differentiate between what are her own formed opinions about her mother for instance versus what are the opinions of her dad and what he shared with her or in her presence." Lastly, the custody evaluator remarked that K. had previously said the following while speaking with the custody evaluator regarding her preference: "Maybe we could go back to what it used to be. I'd be at Lindsey's [(appellee's)] for a week and then at my dad's for a week."

After the testimony of the custody evaluator, appellant renewed his motion to have K. interviewed in camera by the magistrate. In support of this motion, appellant argued that K. was intelligent and articulate. Appellant also proffered that talking to the magistrate in camera would not be traumatic for K., because she has already spoken to the custody evaluator and a therapist, and was not traumatized. Lastly, appellant pointed out that, under Montgomery Cnty. Dep't of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977), the court must consider the child's preference when determining the best interest of the child. Appelleeand the best interest attorney responded that having K. give an in camera interview or live testimony would be "extremely detrimental" in light of her feelings that "she has to verbalize a dislike of mom to preserve a relationship with [her] father." Appellee and the best interest attorney further argued that K. is without "considered judgment." After considering argument from the parties, the magistrate denied the request to have K. testify in court or speak with the magistrate in chambers.

The parties then gave closing remarks, during which the best interest attorney moved the magistrate to recommend an immediate custody order pursuant to Maryland Rule 9-208(h), which permits a magistrate to recommend that an order be entered immediately in "extraordinary circumstances." After reading factual findings into the record, the magistrate agreed that there were extraordinary circumstances justifying the recommendation for an immediate custody order. Pursuant to this recommendation, appellee was granted sole legal and sole physical custody of K. The magistrate also distributed his factual findings and recommendation to the parties in a 67 page handwritten document.

The following day, on March 25, 2014, the parties appeared before the circuit court for a ruling on the magistrates' findings and recommendation. During the parties' oral argument, appellant renewed his motion for K. to testify or be interviewed in camera concerning her preference. In response to this argument, the court stated that it "[s]ounds to me like Magistrate Sandy did decide for himself and decided not to interview the child."

Ultimately, the court reviewed the magistrate's findings, and adopted the magistrate's recommendation for pendente lite custody. The court found that there had been a material change in circumstances, allowing the court to revisit the 2009 custody order that was entered as part of the parties' divorce. The court justified this finding as follows:

Mr. Waldron's gone out of the child's life. Child has a, ah, [K.] now has a baby brother. She's taken out of Visitation [academy] where she attended school from kindergarten through fourth grade. She moved, by, her father moved her an hour and a half away. She's established a relationship with a woman [appellant's fiancé] who I have no doubt is a good woman, it's not her mother, and she's established a, a maternal relationship with someone, and father cut off visitation in April of 2014.

The court next determined that the recommendation of the magistrate to place custody of K. with appellee was in the best interest of K. The court remarked that the evidence before the magistrate had shown a "minimization of the mother in the child's life" by:

taking the child out of school without talking to the mother about it, moving the child

...