Giffin v. Crane

Decision Date01 September 1997
Docket NumberNo. 30,30
Citation351 Md. 133,716 A.2d 1029
PartiesJames M. GIFFIN v. Donna L. (Valtri) CRANE. ,
CourtMaryland Court of Appeals

Cynthia E. Young, Annapolis (Jo B. Fogel, Rockville), all on brief for petitioner.

Joseph M. Quirk (John G. Nalls (argued), Rowan, Quirk & Nalls, Rockville; Kelly A. Koermer, Towson; Kevin G. Hessler, Rockville) all on brief for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW and RAKER, JJ., and JOHN F. McAULIFFE and ROBERT L. KARWACKI, Judges (retired), Specially Assigned.

BELL, Chief Judge.

James M. Giffin, the petitioner, and Donna L. (Valtri) Crane, the respondent, the parents of two daughters, Emily Stoughton, born December 22nd, 1982, and Sarah Ellen, born June 26th, 1988, separated in May, 1992, after more than 12 years of marriage. At separation, the petitioner and the parties' two daughters remained in the marital home, while the respondent lived nearby and maintained regular visitation with the children. A year later, the respondent moved to Louisville, Kentucky.

Both parties sought to obtain a divorce. The petitioner filed his complaint for an absolute divorce first, in the Circuit Court for Montgomery County, alleging voluntary separation in excess of one year, or, in the alternative, separation for more than two years. The respondent countered by filing her complaint for divorce on the grounds of voluntary separation in excess of one year. The petitioner and the respondent both asked for custody of the two children, child support, and attorney's fees. The custody and visitation issues were resolved by the parties when they entered into, and placed on the record, a written agreement, "intended to resolve all issues between the parties as to the custody of their children, but to leave to the court decision on the issue of child support and attorney's fees." 1 In addition to maintaining the status quo with respect to the petitioner's being the children's custodian--the petitioner had sole physical custody of both minor children--the agreement provided for joint legal custody. The agreement also contained detailed and comprehensive provisions concerning the respondent's visitation with the children.

The agreement contemplated the possibility of annual reviews of the residential status of the children, to be conducted, at the requesting party's expense, by a mental health professional as to whom the parties agreed. With respect to such reviews, § 1.4 of the agreement thus provided:

"Either party shall have the right at his or her expense after contribution by all available insurance to request a comprehensive review of the residential status of the children by Dr. Mary Donahue or another mental health professional agreed by the parties. The purpose of this review will be determined by Dr. Donahue's using professional standards and her discretion. It is anticipated by the husband that as part of this review Dr. Donahue will consult with teachers and others who have knowledge of the children and their needs. The parties agree that Dr. Donahue will meet with the children within 30 days after the signing of this agreement so as to have a basis of information and that she may make inquiry of the court appointed attorney or others as she sees fit. The parties shall divide the uninsured costs of the first meetings within 30 days.

"The wife desires that Dr. Donahue conduct a review of the children's residential status in 1995. The parties agree that thereafter each will be entitled to request such a review on not more than an annual basis; the parent requesting the review shall be responsible for the payment therefor."

The respondent, having indicated in the agreement her desire that Dr. Mary Donahue conduct such a review, Dr. Donahue proceeded to do so. As a result of her investigation, Dr. Donahue recommended that physical custody of the children be changed from the petitioner to the respondent. 2 By the time Dr. Donahue had completed her investigation and communicated her recommendation, the court had resolved all the outstanding issues, ordering the respondent to pay child support, declining to award the petitioner attorney's fees, and granting the petitioner a divorce. 3 When the petitioner refused to accept Dr. Donahue's recommendation and relinquish custody of the children, the respondent filed a petition for modification of custody and child support.

A hearing was held on the respondent's motion, during which the court, over a span of six days, received testimony from more than twenty witnesses and viewed a number of exhibits, including private investigators' reports and a videotape. At that hearing, the interests of the children were represented by an attorney appointed by the court. 4 The court granted the respondent's Petition for Modification of Residential Custody, thus modifying the custody agreement by transferring custody of the children from their father to their mother. The court explained its decision as follows:

"The record will reflect in this case what we are about, and what we are about is the issue of custody insofar as residence of the children [is] concerned.

"Now, this was brought about and applied because as a result of an agreement that was made between the parties. There has not been raised in this case nor is there an issue relative to joint custody.

"The evidence in this case exemplifies to the court that both parents are able to communicate with each other concerning the important matters concerning the welfare of the children, and this Court believes they will continue to do so; so joint legal custody is not an issue, and the children remain under that cloak, that there is joint legal custody with both parents over both of the children.

"Now the issue returns as to whether or not there should be a change in the physical custody of the children. This Court feels that the--this concept is governed under Maryland law, that--by the best interest of the child or children, and whether or not there is any material change to circumstances.

"Now, there is no question again in this case that both parents are caring parents, loving parents. There is no doubt by looking at the record that the father, with whom the children have resided this past period of time, is a parent who can attend to all of their physical needs relevant to growing up in a healthy physical situation.

"The Court gleans from its interview with the two children, in addition to what it communicated before and didn't withhold this, but it comes to mind now, that these two very well oriented, adjusted children, who accept the circumstances under which they are living, and also accept that they are loved and cared for by both parents in different ways relative to physical arrangements.

"These children, by no stretch of the imagination, imagine that if they would remain with the father or move to the mother's residence that one parent or the other would gloat over this situation, would consider themselves a winner or a loser, but feel absolutely certain in the love and affection and care that they are entitled to by each parent, and I hope that each parent understands this and abides by those things that these children believe in.

"Sometimes out of the [mouths] of children the wisest things are said. It is interesting that the issue of the young adulthood of Emily in this case did come to the fore. It is also interesting that at the same time Emily expressed the conclusion that she was more able to communicate with her mother. She did not enlarge upon that to me, and there has been no testimony as to what exactly she meant or what specifically she meant insofar as communication, but the Court gleans from this and the testimony from at least one expert in this case relative to a girl child having particular need for her mother has seemed to come to the fore and is a necessary factor in my determinations in this case.

"Sarah and Emily have a tremendous bond and should by no stretch of the imagination be separated at all during this time of their life.

"The Court feels that the best interests of the children and the material change of circumstances, as exemplified by the reaching an age where Emily at the very least exemplifies a need for a female hand, causes the Court to come to the conclusion that the children should reside with their mother.

"It is interesting that these children would benefit by the influence of their father's fiancee. It is interesting that the Court feels they will benefit from the influence of the husband of the birth mother.

"The children indicate that they adjust and get along well with the children of the husband of their mother and that they could get along with almost anybody.

"The decision of the Court, therefore, is the best interest of the children having expressed what it considers to be a material change of circumstances indicate that the physical custody of the children will be with the mother at this time, that to begin at the end of the school year.

"I would also order and hope that the parties will be able to reach the appropriate agreement, that there be a continuing contact and visitation with the father and that it be extensive as it has been exemplified by that contact with the mother.

"If there are any financial matters that have to be decided, the Court refers those matters to the domestic relations master." (Emphasis added).

The petitioner appealed the judgment to the Court of Special Appeals. He argued in that court that the trial court erred by considering the sex of the parents as a factor in its determination of custody. In an unreported opinion, the intermediate appellate court held, inter alia, that "[t]he consideration of gender was a valid consideration in determining residential custody in this case."

In response, the petitioner filed a petition for a writ of certiorari, which this Court granted. In this Court, the petitioner argues, citing Maryland statutory...

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