Green v. Green
| Decision Date | 30 October 2009 |
| Docket Number | No. 01811, September Term, 2008.,01811, September Term, 2008. |
| Parties | Jennifer Laird GREEN v. William R. GREEN, Jr., et al. |
| Court | Court of Special Appeals of Maryland |
Jennifer Laird Green ("Mother"), appellant, and William R. Green, Jr. ("Father"), appellee, entered into a Modified Custody Agreement (the "Custody Agreement") providing them with joint legal and physical custody of their daughter, Madison, "as specified [in the Custody Agreement]." The Custody Agreement provided that Madison would reside with Mother's aunt and uncle (the "Millers"). The Custody Agreement was incorporated by reference into the Judgment of Absolute Divorce entered by the Circuit Court for Queen Anne's County on June 30, 2006.
After completing a rehabilitation program for substance abuse, Mother filed a complaint to modify custody. At the conclusion of the merits hearing, on June 19, 2008, the master found, on the record, that Mother had not shown a material change in circumstances and recommended that Mother's motion to modify custody be denied. The master filed his written findings and recommendation on July 7, 2008, and, on July 14, Mother filed exceptions to the master's recommendation—25 days after the master gave his oral recommendation at the hearing. Father filed, and the circuit court granted, a motion to strike the exceptions for not being timely filed. Mother moved to vacate the order and to reinstate the exceptions. The court heard the motion, along with argument on the exceptions. It upheld its grant of the motion to strike exceptions and denied the motion to reinstate exceptions. It also indicated that, had the exceptions been timely filed, it would have overruled them.
Mother appeals, presenting the following questions for our review:
I. Are [Mother's] exceptions properly preserved for Appeal?
II. Did the trial court err when it allowed [the Millers] to intervene as a third party to the case?
III. Did the trial court err when it found that the Agreement and Order of June 30, 2006, awarded primary physical custody of the minor child to the Millers?
IV. Did the trial court err when, absent a finding of unfitness or exceptional circumstances, the Court failed to apply the presumption in favor of a biological parent and shifted the burden of proof to the parent during the best interest of the child analysis in an Intervening Third Party custody case?
V. Did the trial court err when it failed to exercise discretion by entering a pendente lite order entered into by parties pending the conclusion of litigation as a final order intended to completely resolve the custodial arrangement of the minor child?
We shall affirm the judgment of the circuit court.
Mother and Father were divorced on June 30, 2006. Their Custody Agreement was incorporated by reference into the Judgment of Absolute Divorce entered by the Circuit Court for Queen Anne's County. Under the Custody Agreement, the parties shared joint legal and physical custody of their then eight-year-old daughter, Madison, "as specified [in the Custody Agreement]." The Custody Agreement provided the Millers with "primary residential custody" of Madison.
When she entered into the Custody Agreement, Mother was undergoing rehabilitation for substance abuse. On March 19, 2007, after completing a rehabilitation program, Mother filed a Complaint to Modify Custody, seeking primary physical custody of Madison. Father filed an answer on April 27, 2007, asking that Mother's complaint be denied. The Millers, on May 14, 2007, filed, and the court granted, a Motion to Intervene. On August 21, 2007, the parties, after a settlement conference, reported the matter settled, placed the settlement on the record, and agreed to submit a proposed order to the court. After a significant delay in submitting the proposed order, the court conducted a status conference on December 20, 2007, in which the parties indicated that they could not agree on the proposed order and that matters remained unresolved.
The case was set for a merits hearing to be held on February 11, 2008. On February 8, 2008, the circuit court cancelled that hearing, issued a Memorandum and Pendente Lite Order Regarding Child Custody, based on the settlement reported to the court and placed on the record, and set the matter for a status conference on May 8, 2008. At the status conference, the matter was set for a master's hearing on June 19, 2008.
At the conclusion of that hearing, the master announced on the record his findings and recommendations. Pertinent to this appeal, he stated:
[T]he agreement as incorporated into the judgment says: The child shall reside primarily with [the Millers]. [The Millers] shall have primary residential custody of the child. So that's really where we start from in this case. I will find there's an order that has awarded primary physical custody of the child to [the Millers] at this point in time
* * *
[Y]ou start from where you are and then you have to go from there, so, really, its [sic] [Mother] coming back in demonstrating, one, that there has been a material change in circumstances and, two, that it is in the best interests of the child that the child remain primarily with her. So I really do think the burden lies there.
* * *
When the Court is looking at a change of custody case, it really does a two-step analysis. The first is to assess whether there is a change in circumstances and the second is whether ... if there's a change in circumstances, whether that change, in effect, affects the best interests of the [child]....
* * *
So, for the purpose of filing exceptions and appeals, the Court will determine that the burden in this case is going to be upon [Mother] to demonstrate that there has been a significant material change in circumstances that affects the welfare of the child, that makes it in the child's best interests to be returned to her primary physical care and custody at this point in time.
* * *
[T]he Court finds that there is [sic] exceptional circumstances in this case, if such were required....
Moving on to the best interests of the child, ... I will find that each parent is a fit parent at this point in time.
Character and reputation of the parties .... No one has assailed [the Millers'] character or reputation at all today.
With regard to [Father], [Mother] would indicate that his character and reputation are less than perfect.... He hasn't been actively and overtly involved in the child's life.... That being said, I don't find that makes him of poor character or reputation.
[H]e's kept his eyes open to the big picture and about what's in the child's best interests, and if there's this village there to offer more to Madison than, perhaps, he feels he can offer himself, is that a bad thing? I'll say absolutely not.
With regard to [Mother], her character and reputation. I guess, the assails that we have had upon her character and reputation have been that clearly and admittedly so, she's had a past problem with mental illness and with substance abuse....
I will find that both parents in this case are of good character and reputation.
Desire of the natural parents and agreements of the natural parents.... Clearly, the desire of [Mother] is that the child reside with her primarily. Clearly, the desire of [the Millers] and [Father] are that the present—that the status quo continue in this matter.
The next factor the Court needs to consider is the potential of maintaining natural family relations....
* * *
It appears to me there have been natural family relations to date.....
* * *
Preference of the child; we really haven't heard about the preference of the child. It is very, very clear to me that the child is very attached to everybody involved in this case
Material opportunities affecting the future lives of the child I don't find that material opportunities affecting the future lives [sic] of the child has really any importance in this case
Age, health, and sex of the child. The child is ten years old. The child is in good health, but for hypothyroidism, for which she is appropriately and properly treated
Residence of the parties and the opportunities for visitation. The Millers live just north of Centreville, [Mother] lives in Anne Arundel County .... just about 40 minutes away.....
Length of separation from the natural parent, I don't think that the child has ever been separated from the natural parent for any substantial period of time
I find that neither parent has voluntarily abandoned or surrendered the child
* * *
I have concerns about [Mother] continuing to even have moderate levels of alcohol, while she continues to do this 12-step programs of AA and NA. I am very concerned about the dilute specimen that she provided to the health department. We haven't had any real explanation for that dilute, other than it was dilute and that can happen. These are concerns that I have.
* * *
I think that based upon [Mother's] underlying mental health condition, [her] past problems with substances, that any use of any substance that alters [her] mind puts [her] at great risk for relapse and, accordingly, if the child were in [her] care and custody, ... puts the child in a grave area for concern.
* * *
So I am going to recommend that, at this point in time, that the Court deny the motion to modify custody....
In a subsequent Report, Finding of Facts and Recommendation of Master, filed July 7, 2008, the master stated:
At the hearing on June 19, 2008, [Mother] presented evidence to indicate that she has stable sobriety, housing and employment, and it was suitable for the child to remain in her care and custody. For the reasons set forth on the record, the Court found that their [sic] had not been a significant change in...
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