Braun v. Headley

• Court: Maryland Court of Appeals
• Writing for the Court: ADKINS.
• Citation: Braun v. Headley, 750 A.2d 624, 131 Md.App. 588 (Md. App. 2000)
• Decision Date: 26 April 2000
• Docket Number: No. 405,405
• Parties: Leslie K. BRAUN v. Jeffrey David HEADLEY.

750 A.2d 624

131 Md. App. 588

Leslie K. BRAUN v. Jeffrey David HEADLEY.

No. 405, Sept. Term, 1999.

Court of Special Appeals of Maryland.

April 26, 2000.

Francis A. Pommett, III, Baltimore, for appellant.

Todd K. Mohink (Law Offices of David L. Ruben, on the brief), Ellicott City, for appellee.

Argued before DAVIS, HOLLANDER and ADKINS, JJ.

ADKINS, Judge.

We must determine in this appeal whether the Court of Appeals's decision in Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991), which holds that the relocation of a child may constitute a change in circumstances sufficient to trigger a review of custody, applies a standard that violates a custodial parent's constitutional right to travel. Relying on the Supreme Court's recent decision in Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), appellant argues that the Domingues standards must be modified.¹ Appellant further argues that we should reverse the decision of the Circuit Court for Harford County to transfer custody from Leslie K. Braun, appellant, to Jeffrey David Headley, appellee, after appellant's relocation from Maryland to Arizona, because the change in custody was not in the best interests of the child.

FACTS AND LEGAL PROCEEDINGS

The minor child, Theresa, was born on November 11, 1993. Appellant filed a complaint to prove paternity and establish child support on May 11, 1994, naming appellee as the father. Following the determination that appellee was the father, custody was awarded to appellant and appellee was ordered to pay approximately $316 monthly in child support.² Appellee was granted reasonable visitation, and subsequently, a visitation schedule was established. The visitation order of March 7, 1995, initially granted appellee visitation from 9:00 a.m. Saturday morning until 9:00 p.m. Saturday evening for two consecutive Saturdays, and then every other weekend with rotating holidays.

On October 16, 1998, appellant moved to Arizona. On that same date, appellant filed a complaint to modify visitation stating that due to her "chronic pain" and "illness," she had "decided to move" to a "dryer climate, which [would] enable her to better tolerate her various health problems." Appellant also contended in the motion that visitation should thereafter "be conditioned on [appellee] paying all transportation costs incident to such visitation, in advance; or, providing round-trip airline tickets for each scheduled visitation." Appellee filed an answer and a counter-complaint for sole custody and/or for modification of custody, requesting an emergency custody hearing. A hearing was set for and held on December 16, 1998, and the matter was continued. On December 17, 1998, the court ordered that assessments of both parties and Theresa be conducted by the Office of Family Court Services. On January 26, 1999, the hearing was held to receive the report of John Mahlmann, Ph.D, of the Office of Family Court Services. Dr. Mahlmann interviewed the parties and Theresa, and recommended that "both parties attend the Divorce Education Program" and that each party have a "psychological evaluation." After receiving the report from the doctor, the court concluded that a trial was necessary. The court ordered that appellant, appellee, and Theresa each have a psychological evaluation by Dr. Michael Gombatz, and the evaluations were scheduled.³ Subsequently, the court appointed an attorney for Theresa. A two-day trial was held in mid-April.

At the trial, Dr. Gombatz's report was admitted into evidence. Dr. Gombatz reported that on February 23, 1999, for the scheduled joint interview with both parties, appellant "was approximately a half hour to an hour late." He stated that appellant "interrupted several times" during appellee's presentation. He stated that appellant was "inflexible unless it was to her advantage," and that she "was consistently vague and non-responsive ... [and] it appeared that [appellant] did deny [appellee] visitation, rationalizing the reasons for it." After conversing with Dr. Mahlmann, Dr. Gombatz reported that there was no record of any current significant health conditions facing Theresa, contradicting appellant's diagnosis that Theresa had asthma. Nor was Theresa being treated for asthma. When questioned by Dr. Gombatz as to why she "appear[ed] not to be telling me the truth?" appellant answered: "It is very oppressive. I'm tired of it."

The doctor also conducted individual evaluation sessions of each of the parties, first with Theresa, and then alone. Again, appellant "arrived over an hour late" for the appointment, and stated that, "It was not my fault." When Dr. Gombatz interviewed Theresa alone, appellant, "instead of going into the waiting room like I asked, [] put her ear against the door in an attempt to listen to our conversation." Shortly after the questioning began, the doctor left the office to get appellant and "was startled to see her standing by the door." Dr. Gombatz reported that appellant "started berating" him regarding his questioning of Theresa.

Dr. Gombatz reported that appellee's "clinical profile was essentially within normal limits" and his "projective testing is valid." In contrast, appellant's

clinical profile suggests borderline-narcissistic personality disorder. Her scores suggest deficits in mood stability, relationships and particularly with her own sense of identity.... She tends to experience intense emotions and frequent mood swings with recurring periods of depression, anxiety and anger followed by dejection and apathy.... In addition, [appellant] is quite self-centered. She has an expectation entitlement which, if given the opportunity she will exploit people and manipulate them. She ... thinks primarily of herself.... Projective testing indicates she has deficiencies in her capacity for control and tolerance for stress.

Dr. Gombatz recommended that appellee "is the more competent parent and Theresa's interests would be served if custody and placement were with him." His reasons included his finding that appellant acts "as if Theresa is her property ... rather than a young girl whose development is to be fostered." He further reported: (1) "There is ... no doubt in my mind that the move to Arizona was precipitated by a desire to limit Theresa's contact with her birth father. The claim that she moved to Arizona for Theresa's medical benefit ... has no merit;" (2) appellee "has a healthier relationship with Theresa than" appellant; and (3) appellee "would likely be much fairer in allowing Theresa contact with [appellant] than [she] would be with him."

Both appellant and appellee testified at trial, as well as other witnesses called by each side. Appellee described the circumstances of appellant's move to Arizona, and how she notified him by telephone message on her day of departure that she was leaving, but failed to provide any information about her new residence until about six weeks later. After appellee learned of appellant's new residence and telephone number, he made frequent attempts to call Theresa, but appellant substantially and repeatedly interfered with his ability to speak with the child. Appellee also described how Theresa would not call him dad or other appropriate name, and addressed him without any appellation. Wade Headley, Theresa's paternal grandfather, testified that Theresa said that "if I call him Daddy, I will get punished at home." Appellee's mother also described how appellant made Theresa give away toys and other gifts, including a picture painted by her, that were given to Theresa by her paternal grandparents. Appellee testified that Matthew, appellant's son from another relationship, repeatedly referred to him as "Doo-doo."

Appellant described the early history of Theresa's life, and emphasized how appellee had originally denied his paternity of Theresa. She ascribed her move to Arizona to health reasons, explaining that she thought that Theresa had asthma, and that the drier climate would be better for Theresa.⁴ Although Theresa's medical records were introduced into evidence, appellant was unable to point to any indication in the records that Theresa suffered from asthma. She testified that Theresa did not like to visit with her father. She acknowledged giving away the gifts from Theresa's grandparents, indicating that she did not have sufficient room in her residence to store all the "junk" that a child accumulated. She acknowledged that Matthew referred to appellee as "Doo-Doo."

On April 20, 1999, the court issued an opinion from the bench that awarded custody of Theresa to appellee, and reserved visitation with appellant "until further order of this [c]ourt." This appeal was timely noted.

Additional facts will be added as necessary to our discussion of the issues.

DISCUSSION

I. Standard of Review

A trial court cannot, in the exercise of its discretionary power, infringe upon constitutional rights enjoyed by the parties. See Lewis v. Warden, 16 Md.App. 339, 342, 296 A.2d 428 (1972). Because appellant asserts that her right to travel under the United States Constitution is implicated, our standard of review in considering this issue (in Section II of this opinion) shall be an independent constitutional appraisal. See Ebert v. Md. St. Bd. of Censors, 19 Md.App. 300, 316, 313 A.2d 536 (1973).

Our review of the issue of whether the trial court erred in holding that the best interests of Theresa called for an award of custody to appellee shall be governed by the abuse of discretion standard. The determination of which parent should be awarded custody rests within the sound discretion of the trial court. See Robinson v. Robinson, 328 Md. 507, 513, 615 A.2d 1190 (1992). The court's exercise of discretion must be guided first, and foremost, by what it believes would promote the child's best interest. See Kemp v. Kemp, 287 Md. 165, 170, 411 A.2d 1028 (1980). Additionally, the trial court's opportunity to observe the demeanor and...