Bourdelais v. Durniak
| Decision Date | 03 February 2017 |
| Docket Number | No. 602,602 |
| Parties | MICHELLE BOURDELAIS v. JOHN DURNIAK |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Nazarian, Reed, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.
Opinion by Nazarian, 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.
This is an appeal from a June 10, 2016 order by the Circuit Court for St. Mary's County (as we will explain, earlier orders are not before us) in a several years-long custody dispute between Michelle Bourdelais ("Mother") and her former husband, John Durniak ("Father"). The June 10 order followed a hearing after which the court (1) held Mother in contempt for violating an earlier order, (2) modified the operative custody order, (3) denied Mother's motion to recuse the judge, and (4) awarded attorney's fees to Father. We vacate the custody modification, but affirm the remaining decisions.
Mother and Father were divorced in Virginia, but they and their litigation later moved to Maryland, and they have battled ferociously over the custody of their two children, S and K, ever since. The longer-term history has been recounted in earlier appeals to this Court, see, e.g., Bourdelais v. Durniak, No. 1154, Sept. Term 2015 (Md. App. Apr. 8, 2016); Bourdelais v. Durniak, No. 2389, Sept. Term 2013 (Md. App. Dec. 4, 2014), and we need not recount it again here. Because of the volume and intensity of the litigation, the case was specially assigned to a judge from a neighboring county who sits by designation in St. Mary's County.
In Bourdelais, No. 2389, slip op. at 1, we vacated the parties' original Maryland custody order and remanded for further proceedings. In response, the circuit court conducted an evidentiary hearing in May and June 2015 and, on June 24, 2015, entered a new custody order that awarded sole legal and physical custody to Father and created a visitation schedule for Mother. In an understatement, Mother states in her brief that "[t]he June Order did not fully resolve the parties' disputes," and new litigation ensued, both inthe circuit court (and in the Circuit Court for Anne Arundel County).1 These included a petition by Father to find Mother in contempt, motions by Mother to amend the custody order, and others. The court resolved a group of motions on July 23, 2015, but further proceedings ensued, including a show cause order, dated November 17, 2015, directed to Mother in response to allegations that she had had third parties contact the children's therapists in violation of prior orders.
On January 28, 2016, the Circuit Court for St. Mary's County held a hearing to address, among several other issues, a Petition to Modify Visitation and the November show cause order. At the end of the hearing, the judge modified the custody order from the bench "to provide for supervised access by [Mother]." On the following day, the court issued a written order (and distributed it to the parties that afternoon) that reiterated the custody modification it made from the bench that required supervision during each of Mother's visits with the children. The court filed the written order on February 4.
Mother responded on February 5, 2016 with a Motion for Reconsideration (or in the Alternative Motion for a New Trial). The court denied that motion on February 25, 2016. On April 4, 2016, the circuit court received a Motion for En Banc Review, which the court denied on May 16, 2016 as untimely.
In the meantime, the circuit court issued a new Show Cause Order on February 26, 2016, directing Mother to show cause why she shouldn't be found in further contempt for making contact with the children without supervision, in violation of the February 4 Order. The court consolidated this show cause proceeding with a variety of other pending motions, including a Motion to Recuse that Mother had filed, and convened a hearing on May 13, 2016.
The hearing began with testimony from Brenda Winecke, a St. Mary's Recreation and Parks employee who supervises a school aftercare program in which K was enrolled. Ms. Winecke testified that Mother came to the aftercare program on February 12, 2016, and had unsupervised contact with her. After Ms. Winecke got off the stand, Joshua Lynch, an assistant principal for St. Mary's County Public Schools, testified that Mother visited S's school on January 29, 2016, and had unsupervised contact with her during lunchtime.
The court ruled from the bench and found that Mother had had unsupervised contact with both children. Based on those findings, the court concluded that Mother had violated the February 4 Order and held her in constructive civil contempt. The court used those same findings as grounds to modify Mother's visitation pursuant to Md. Code , § 9-105 of the Family Law Article ("FL"), specifically to prohibit overnight visitation. The court also denied the motion to recuse.
Later in the hearing, the court heard testimony from Mother regarding her ability to pay attorney's fees. After determining that Mother had the ability to pay, the judge awarded attorney's fees to Father. The court issued a written order reflecting the May 13findings on June 10, 2016. The June 10 Order further specified a purge for the contempt finding, that Ms. Bourdelais must "submit[] to psychological evaluation with a professional to be appointed or referred by the Court."
Mother filed a timely Notice of Appeal.
We have five issues to resolve.2 We address first whether matters decided during the January 28, 2016 hearing or the orders immediately following it have been preservedfor review. From there, Mother contends second that the court erred in finding her in contempt, and third, contests the decision to modify custody pursuant to FL § 9-105. Fourth, Mother asserts that the specially assigned judge should have recused himself from the case. And finally, Mother asks that we reverse the attorneys' fee award.
We review the contempt finding against a two-part standard:
The decision of whether to hold a party in contempt is vested in the trial court. This Court will only reverse such a decision upon a showing that a finding of fact upon which the contempt was imposed was clearly erroneous or that the court abused its discretion in finding particular behavior to be contemptuous. Ordinarily, in a review of contempt proceedings, this Court does not weigh the evidence; rather, we merely assess its sufficiency.
Droney v. Droney, 102 Md. App. 672, 683-84 (1995) (citations omitted). A similar structure applies to custody determinations—we review fact findings for clear error, legal determinations de novo, and the final decision for abuse of discretion. In re Yve S., 373Md. 551, 586 (2003); Van Schaik v. Van Schaik, 200 Md. App. 126, 133 (2011) (citing Karsenty v. Schoukroun, 406 Md. 469, 502 (2008)). "Where a case involves the application of Maryland statutory and case law," this Court must determine whether the trial court's "conclusions are 'legally correct' under a de novo standard of review." Clancy v. King, 405 Md. 541, 554 (2008) (quoting Walter v. Gunter, 367 Md. 386, 392 (2002)) (italics added).
"We review a trial judge's decision to recuse (or not) for an abuse of discretion." Bishop v. State, 218 Md. App. 472, 491 (2014) (citations omitted). "[T]he person seeking recusal bears a 'heavy burden to overcome the presumption of impartiality.'" Id. (quoting Karanikas v. Cartwright, 209 Md. App. 571, 579 (2013)). And likewise, "[a] court's decision to award attorney's fees generally is reviewed under an abuse of discretion standard." Henriquez v. Henriquez, 185 Md. App. 465, 475-76 (2009) (citations omitted), aff'd, 413 Md. 287 (2010). "If the court gives proper consideration to the statutory factors and the circumstances of the case, an award of attorney's fees will not be reversed 'unless a court's discretion was exercised arbitrarily or the judgment was clearly wrong.'" Id. at 476 (quoting Collins v. Collins, 144 Md. App. 395, 447 (2002)).
First, Mother seeks to challenge decisions made either from the bench at the close of the January 28, 2016 hearing or in the written orders immediately following it. We cannot, though, because they were not preserved.
A party initiates an appeal in this Court by filing a notice of appeal, which "[e]xcept as otherwise provided in this Rule or by law, . . . shall be filed within 30 days after entry of the judgment or order from which the appeal is taken." Md. Rule 8-202(a). The onset of the thirty-day period is delayed by certain post-trial motions until those motions are resolved:
when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534.
That's what happened here. After the court ruled against her following the January 28 hearing, Mother filed a timely Motion for Reconsideration (or in the Alternative for a New Trial) on February 5, which tolled her appeal period. The court denied her motion for reconsideration on February 25, which started the appeal period anew. Under Rule 8-202(c), then, Mother's notice of appeal was due 30 days from February 25, or March 28 (March 26 fell on a Saturday). She didn't file one until June 2, 2016.
This was not just an oversight. In the time between the February 25 order and the June 2 notice of appeal, Mother actually had hoped to have the circuit court review the January 28...
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