Boswell v. Boswell

• Citation: 118 Md.App. 1,701 A.2d 1153
• Decision Date: 01 September 1996
• Docket Number: No. 1466,1466
• Parties: Robert G. BOSWELL v. Kimberly BOSWELL. ,
• Court: Court of Special Appeals of Maryland

Page 1

118 Md.App. 1

701 A.2d 1153

Robert G. BOSWELL v. Kimberly BOSWELL.

No. 1466, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Oct. 29, 1997.

Reconsideration Denied Dec. 5, 1997.

Nancy Polikoff, Washington, DC (Beatrice Dohrn, New York City, and Andrea Colender, Annapolis, on the brief), for Appellant.

Cynthia E. Young, Annapolis, for Appellee.

Argued before DAVIS and SONNER, JJ., and PAUL E. ALPERT, Judge (retired), Specially Assigned.

DAVIS, Judge.

On October 5, 1994, appellee Kimberly Boswell filed a Complaint for Limited Divorce (Complaint) from her husband, appellant Robert Boswell, in the Circuit Court for Anne Arundel County. She requested, inter alia, sole custody of their two young children (Ryan and Amanda), alimony and child support, pendente lite and permanently, use and possession of the family home, and reasonable counsel fees and costs. At the time of the hearing, Ryan was eight years old and Amanda was one month shy of her fifth birthday. On January 20, 1995, the circuit court ordered that the children remain with appellee; appellant was granted visitation each Wednesday and every other weekend, pending a later order. The court also imposed a moratorium on the sale of any marital property. On February 2, 1995, the parties were ordered to meet with the Maryland Department of Social Services (DSS), and the DSS was instructed to report to the court on custody and visitation.

Appellant answered the Complaint and, in July 1995, filed a Countercomplaint for Absolute Divorce, alleging adultery and requesting joint custody of the children, as well as an order directing appellee to obtain full-time employment and contribute to the mortgage and other expenses. Appellee amended her original Complaint in August 1995, requesting an Absolute Divorce and stating that she had to leave the marital home when appellant informed her that he was a homosexual. She reiterated her requests for relief stated in the original Complaint. Appellant filed an Answer to the Amended Complaint, reiterating the relief requested in his Countercomplaint.

In November 1995, the DSS filed its report with the circuit court. On December 12, 1995, the court signed a Pre-trial Order that listed grounds for divorce, custody, visitation, child support, and a monetary award as uncontested issues. ¹ The only contested issues listed were alimony and counsel fees. The Order projected a one-day trial. Nevertheless, the parties never reached a final agreement before trial, which occurred on March 12, 13, and 14, and April 1 and 5, 1996. On April 5, the parties agreed on financial issues pertaining to the divorce, later incorporated in the Judgment of Absolute Divorce (Judgment). Most financial aspects of the Judgment are not at issue in this appeal, and we will not delve into them.

After a chambers conference during trial, counsel for appellant asked the presiding judge, Judge Lawrence Rushworth, to recuse himself because of comments during the conference that appellant thought indicated a predisposition toward requiring appellant's live-in partner, Robert Donathan, to leave the home permanently, or at least not be present when the children were visiting their father. Appellant claimed that these comments demonstrated undue prejudice toward his case. Judge Rushworth denied the motion.

The circuit court did not issue a written opinion. In an oral opinion announced from the bench on April 5, 1996, the court awarded sole custody to appellee, with daytime visitation rights to appellant every other weekend and on Wednesdays. Although not requested by appellee, the court prohibited overnight visitation. The court also prohibited visitation with the children in the presence of Donathan or "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship." The court also, inter alia, ordered appellant to obtain medical insurance for Ryan and Amanda and thereafter to pay any of their uncovered medical bills. On August 22, 1996, at the second request of counsel for appellant, Judge Rushworth recused himself from the case.

Appellant appealed the Order, ordering and filing a transcript of the trial under MD.RULE 8-411 and 8-412. The record was filed on November 25, 1996. Appellant filed a brief on January 6, 1997. On January 13, appellee's attorney for this appeal, Cynthia Young, entered her appearance. After discovering that a small portion of the record of the proceedings on April 5, 1996 was not transcribed and transmitted to this Court, appellant filed a Motion to Correct the Record under RULE 8-414 on February 5, 1997. He also asked permission to file a new brief. On February 12, 1997, appellee filed a Motion to Dismiss under Rule 8-603. ²

After receiving the submissions, a panel of this Court dismissed the appeal on March 18, 1997. On Motion for Reconsideration filed by appellant, the Court vacated its dismissal on April 23, 1997, reinstating the appeal pro tempore and leaving it to the appellate panel to decide whether to dismiss the appeal. The Court's order did not address appellant's request to file a new brief, but said that appellee's brief would be due on June 2, 1997. Appellee filed her brief on June 18, 1997, and appellant filed her reply brief on July 17, 1997. ³

Appellant presents two questions for our review and appellee presents one. We restate all three questions as follows:

I. Should we grant appellee's Motion to Dismiss?

II. Did the court abuse its discretion in setting forth its restrictions on appellant's visitation with his children?

III. Did the court err by failing to detail on the record its reasons for deviating from the Maryland Child Support Guidelines and ordering appellant to pay all of the children's unreimbursed medical expenses?

We answer the first question in the negative, denying appellee's Motion to Dismiss. We answer the second and third questions in the affirmative.

INTRODUCTION

Their names are Ryan and Amanda. They are the minor children of the protagonists in the instant case. What is in their best interest is our singular focus and our only concern in determining the propriety of restrictions imposed on visitation privileges. Much like the prolific batter engaged in our national sports pastime, we must (and we believe that counsel would be well served if they would) keep our eyes on the ball.

Bombarded by platitudes from both sides, we are told by appellant that, relevant to our decision herein is the fact, inter alia, that "the mental health literature demonstrates that children with gay and lesbian parents are as happy and healthy as other children and are not adversely affected by their parents' sexual orientation." Because of the manner in which the parties have sought to buttress their respective positions and because there has been an attempt to cast the issues in this case in more universal terms than is warranted, we are constrained, at the outset, to delimit the parameters of our review in this appeal.

This is not a case about gay and lesbian rights, nor do we break new ground, in our ultimate holding, infra, that the evidence must support a factual determination of adverse impact on the children to sustain restrictions on visitation. Concomitant with and undoubtedly influenced by societal norms and mores, Maryland law traditionally entertained a presumption that children exposed to the adulterous partners of their parents were harmed by such exposure. The notion that exposure to an adulterous relationship, ipso facto, constituted a sufficient basis for a finding that a parent was unfit was laid to rest by the Court of Appeals in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977). Consonant with the Court's decision in Davis, this Court in Swain v. Swain, 43 Md.App. 622, 406 A.2d 680 (1979) (custody determination of adulterous parent) and North v. North, 102 Md.App. 1, 648 A.2d 1025 (1994) (determination of overnight visitation by homosexual parent), reiterated that exposure to the parent's adultery or sexual orientation may be considered only insofar as the minor child is actually harmed thereby.

Simply put, while we shall review the factual findings as well as the evidence supporting the decision to impose restrictions on visitation in this case, this review is only toward the end of deciding, consistent with the proper standard of appellate review, whether such restrictions are in the best interests of the children in this case. Because there is no longer any presumption of unfitness in Maryland, all such cases are fact specific. Consequently, the exhaustive compendium of articles and treatises, submitted by appellant, chronicling studies which conclude that approximately six million children are raised in same-sex households and "not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect" are immaterial to our narrowly focused consideration of whether the evidence supports a finding that Ryan and Amanda are adversely affected by such exposure. In other words, assuming, arguendo, that the trial judge had been presented evidence at trial that actual harm causally connected to the sexual orientation of appellant had been suffered by the Boswell children, we would uphold any reasonable restriction imposed on visitation designed to prevent the demonstrated adverse effect even if there had also been presented at trial conclusive evidence that not one of the six million children in same-sex households that were studied had been adversely affected by a parent's sexual orientation.

Appellee, for her part, chooses to thrust and parry. We observe, however, as we did at oral argument before us, that we recognize counsel's right and obligation, within ethical bounds, to vigorously advocate on her client's behalf. This includes invoking all available procedural rules in advancing her client's cause. While we acknowledge counsel's ...