Domingues v. Johnson
| Decision Date | 01 September 1990 |
| Docket Number | No. 10,10 |
| Citation | 323 Md. 486,593 A.2d 1133 |
| Parties | E. John DOMINGUES v. Diane L. JOHNSON. , |
| Court | Maryland Court of Appeals |
Glenn M. Cooper (Hope B. Eastman, Paley, Rothman, Goldstein, Rosenberg & Cooper, all on brief), Bethesda, for petitioner.
Stephen E. Moss (Scott M. Strickler, Nancy A. Sachitano, Moss, Strickler & Weaver, P.A., all on brief), Bethesda, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.
E. John Domingues and Diane L. Johnson were married on 25 June 1982. Two children were born of the marriage, Kathryn on 8 December 1982 and Matthew on 5 February 1984. The parties separated on 14 May 1985, and by a separation agreement and addendum agreed that they would "have joint custody of their minor children," and that the children would reside primarily with the mother but be with the father from Tuesday evening until Wednesday evening each week, and from Friday evening until Sunday evening on alternate weekends. The parties were divorced in the Circuit Court for Montgomery County on 23 December 1986, and the provisions of the amended separation agreement were incorporated into the decree.
On 26 February 1988, the mother married a military officer. At the time she decided to marry him, she knew he was scheduled to be transferred from this area for a two-year tour of duty elsewhere. On 11 March 1988, she filed a petition for modification of the existing decree to 1) modify the father's visitation schedule to accommodate her projected move with her new husband to San Antonio, Texas and, 2) increase the father's obligation for payment of child support. The father answered, and filed a motion seeking sole custody of the children.
An extensive hearing, requiring five hearing days and producing 1300 pages of transcript, was held before a domestic relations master. The master filed an 84-page report, finding there had been a substantial change of circumstances since the entry of the divorce decree, and recommending that primary custody be given to the father. The mother filed exceptions, which were heard by Judge Calvin R. Sanders. The chancellor was provided with the transcript of the proceedings before the master, but no additional testimony was taken. After hearing the arguments of counsel, the chancellor overruled the exceptions and entered an order implementing the master's recommendations. 1
The mother appealed and the Court of Special Appeals reversed, holding that the chancellor improperly applied the "best interest of the child" standard, when he should instead, have determined whether there was sufficient evidence of a change in circumstances affecting the welfare of the children. Johnson v. Domingues, 82 Md.App. 128, 570 A.2d 369 (1990). The intermediate appellate court further held that the record failed to show a demonstrable adverse effect upon the children to the date of the hearing, and therefore, as a matter of law, the chancellor should have granted custody to the mother. We ordered a stay of that court's mandate, and thereafter granted the father's petition for certiorari. We now reverse.
We do not agree that the chancellor erred when he considered the best interest of the children. Nor do we agree that the evidence compels but a single result. We hold, however, that the chancellor incorrectly accepted the recommendations of the master upon a finding that those recommendations were not clearly erroneous, instead of subjecting the master's fact-finding to a clearly erroneous test and then exercising his independent judgment concerning the proper conclusion to be reached upon those facts. Because the case ultimately must be remanded to the chancellor for further proceedings, we shall in the course of this opinion discuss in greater detail the function of the chancellor vis-a-vis the master, and the legal principles applicable to this case.
In his opinion, the chancellor recited that the master had found changes in circumstances, including: 1) the remarriage of the mother and her removal with the children to San Antonio, Texas; 2) interference by the mother's new husband with the relationship between the father and his children; 3) the failure of the mother to communicate with the father with respect to the children; and, 4) the failure of the mother to encourage an appropriate relationship between the father and his children. The chancellor further found that the evidence supported the conclusions of the master that "neither of the parties to this action has exhibited that maturity of conduct necessary to enable them to share custodial responsibility with respect to their children," and that the actions of the mother and her new husband demonstrated "active interference with the [father's] efforts to communicate with his children," and "represented a concerted effort to alienate the children from their father." The chancellor then stated:
The Master also concluded that it would be to the benefit of the children to return them to Montgomery County in their father's custody, since this County had been their home prior to their mother's move to Texas, and since their grandparents, aunts and uncles on both sides of the family reside here. Also considered by the Master was evidence of drug dependency on the part of the [mother's] husband, notwithstanding his successful completion of a rehabilitation program.
Having considered all of the testimony at the hearings, the Master concluded that a continuation of the present joint custodial arrangement is impractical, due primarily to the actions of the [mother] and her husband. Having so found, and weighing the respective advantages and disadvantages of placing sole custody with [mother] or [father], she concluded that the best interests of the children would better be served by the granting of sole custody to their father, with liberal visitation provided to [mother]. These conclusions by the Master are well supported by the evidence.
In making her determinations the Master properly concluded that the proposed change in custody is justified by either the "best interests of the children" test or the "change in circumstances" test. The appropriate test for such a modification is a combination of both.
The conclusions and judgments of the master to which the chancellor referred are those that must be made by the chancellor, upon his independent review of the record and of the facts properly found by the master. The ultimate conclusions and recommendations of the master are not simply to be tested against the clearly erroneous standard, and if found to be supported by evidence of record, automatically accepted. That the conclusions and recommendations of the master are well supported by the evidence is not dispositive if the independent exercise of judgment by the chancellor on those issues would produce a different result.
The evidence in a given case may be sufficient to support an award of custody to either parent. Notwithstanding the oft-repeated reference in the cases to "fit" and "unfit" parents, it is quite often the case that both parents are entirely "fit" to have legal and/or physical custody of a child, but joint custody is not feasible. In such cases, the chancellor must exercise his or her independent discretion to make the decision. This does not mean that the chancellor must disregard the recommendations of the master. Consideration may and should be given to those recommendations, but in the final analysis, the decision must be made by the chancellor.
Litigants in a child custody proceeding, as in all judicial proceedings, are entitled to have their cause determined ultimately by a duly qualified judge of a court of competent jurisdiction.... While the system of resorting to Masters is one of long standing and undoubtedly has salutary effects resulting in the more expeditious dispatch of the judicial process, the system cannot supplant the ultimate role of judges in the judicial process itself. (Citations and footnote omitted.)
Ellis v. Ellis, 19 Md.App. 361, 365, 311 A.2d 428 (1973).
The chancellor's decision in a contested custody case, frequently among the most difficult a judge is called upon to make, is of critical importance. It significantly impacts upon the lives of the parents and children involved. It is unlikely to be overturned on appeal. 2 And, once that decision has been entered as a judgment, it will ordinarily not be modified except upon a showing of a change in circumstances justifying a change in custody to accommodate the best interest of the child. Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969).
Because the opinion of the chancellor in this case suggests that he accepted the master's recommendations for final disposition upon a finding that they were not clearly erroneous but were "well supported by the evidence," rather than exercising his independent judgment on those issues, the case must be remanded for further consideration. Because the chancellor's order of 22 May 1989 has controlled custody and visitation continuously since its entry, we direct that it continue in effect until vacated, modified, or affirmed by the chancellor after further consideration.
Before leaving the subject of the appropriate interaction between the chancellor and master, we comment briefly on the fact-finding process. The Court of Special Appeals concluded that "many of the Masters' findings of fact are second level findings of fact and therefore not entitled to deference." Johnson v. Domingues, supra, 82 Md.App. at 131 n. 1, 570 A.2d 369. The findings to which the court referred are as follows:
1. There has been a significant change of circumstance since the Judgment of Absolute Divorce was filed on December 23, 1986. At that time and until the summer of 1988, both parties lived in Montgomery County. The [mother] has now moved to San Antonio, Texas.
2. The [mother's] husband interferes with the relationship...
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...by her, the court rejected those findings without explanation, even though they were supported by the record. See Domingues v. Johnson, 323 Md. 486, 490, 593 A.2d 1133 (1991); Best v. Best, 93 Md.App. 644, 650-51, 613 A.2d 1043 (1992); Wenger v. Wenger, 42 Md.App. 596, 602, 402 A.2d 94 The ......
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Lemley v. Lemley
...erred in failing to provide an adequate statement of the reasons for his decision on each exception, as required by Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991). Mrs. Lemley contends with equal vigor that the issues raised by Mr. Lemley have been waived because the "rambling inco......
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