Gruber v. Gruber

• Decision Date: 31 October 2001
• Docket Number: No. 0341,0341
• Citation: 784 A.2d 583,141 Md. App. 23
• Parties: David A. GRUBER v. Kathie M. GRUBER.
• Court: Court of Special Appeals of Maryland

784 A.2d 583

141 Md. App. 23

David A. GRUBER v. Kathie M. GRUBER.

No. 0341, Sept. Term, 2001.

Court of Special Appeals of Maryland.

October 31, 2001.

William M. Ferris (Krause & Ferris on the brief), Annapolis, for appellant.

Barbara E. Palmer (Steven L. Gonzales and Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A. on the brief), Rockville, for appellee.

Argued Before ADKINS, PAUL E. ALPERT, (Retired, Specially Assigned), JOHN J. BISHOP, JR., (Retired, Specially Assigned), JJ. ADKINS, Judge.

This case features a race to the courthouse and a novel question about the tactics one party used to win that race. Courts in two states have entered orders exercising jurisdiction over a custody dispute regarding a single child. Each court rejected a jurisdictional challenge by the non-resident parent. A court in Tennessee, where the child lived with her parents until her mother left the marital home in March 2000, concluded that Tennessee is the child's home state and the most convenient forum to resolve custody issues. Then the Circuit Court for Anne Arundel County, where the child has lived since her mother left Tennessee, concluded that Maryland is the child's home state, as well as the place where the first custody complaint was filed and the most convenient forum.

In this interlocutory appeal, we must decide whether the circuit court erred in concluding that Maryland is the home state, and in deciding to exercise jurisdiction even though the Tennessee court already had determined that it would do so. In resolving the latter question, we address the father's complaint that the mother deliberately misled him in order to prevent him from seeking custody in Tennessee during the six-month period that the child's home state was undisputedly Tennessee, not Maryland.

FACTS AND LEGAL PROCEEDINGS

David Gruber, appellant, and Kathie M. Gruber, appellee, lived together in Tennessee for approximately one year before they married in Memphis, on November 23, 1998. On May 5, 1999, their daughter Katarina was born, also in Memphis. The family lived together until March 18, 2000. On that day, Ms. Gruber left the marital home with ten-month-old Katarina. At that time, Ms. Gruber was not ready to talk to Mr. Gruber about certain issues. She testified that when Mr. Gruber asked when she would be ready, they agreed that it would be around the time of her birthday, which was approximately six months away.

Ms. Gruber returned to Maryland, where she had previously lived. She and Katarina arrived on March 21, 2000. She had family members in Maryland, including her ten-year-old son, who was then living with her first husband.

The Grubers continued to correspond about their relationship. Ms. Gruber preferred e-mail communication because she felt that Mr. Gruber could not monopolize it.

Mr. Gruber testified that from the time Ms. Gruber left Tennessee in March until late September, she continued to hold out the possibility of a reconciliation. He cited e-mail exchanges in June as evidence that Ms. Gruber asked him to be patient while she decided whether she wanted to stay in the marriage, and that she promised that she was not "stringing him along," all in an effort to dissuade him from seeking custody of Katarina during the six months after she arrived in Maryland.

In a June 17, 2000 e-mail, Mr. Gruber pressed Ms. Gruber for some indication of whether he should abandon his hope of reconciliation.

I don't see the problems as insurmountable, yet. It would be a long row to hoe, to be sure, but doable, at least at this point. But it would take two, and time is running out.... [You] appear to still be stuck where you were when you left 3½ months ago. I don't see any miraculous breakthroughs happening in the 2½ months left in your self-imposed timeout, if ever. We're past the half way point, and we've got Zippo good stuff going on, with no prospects or interest from you, indicated. I think we could still have something good together, if you spoke up RIGHT NOW, and told me you wanted to TRY to make something together, and we started working towards it. Only you know whether that's what you want to do, or not. All I'm trying to say, is, NOW is the time to speak up, if you are ever going to do it. I've had enough heartache, and I'm ready to go on my life, with or without you in it. I want you to know that I miss you, and would REALLY like you to be a part of my life, but am ready to have a happy life without you, if that's what you choose to do. I can't make that choice for you, that's something only you can do. Right now you can choose to speak up, or choose to do nothing, and that will determine where things go. (Emphasis added.)

On June 18, Mr. Gruber sent a follow up e-mail, specifically asking whether he had any reason to wait before filing "divorce papers."

I have to confess being a bit concerned that I haven't heard from you in a while. In an earlier email, you said you weren't ignoring me, but it kind of looks that way. Maybe you've been busy, or maybe it's something else. I would like to know why I haven't heard from you. If you have issues about us, there is still time to discuss them, and work something out, at least for a little while longer. If you've decided that you aren't interested in an "us", then I deserve to know that, too, so I can go ahead and file the divorce papers, and not prolong this any longer than necessary. Lastly, if you aren't sure, you need to let me know just where you are at, so we can figure out TOGETHER where to go next. Your shields are WAY up, and you aren't letting me see anything.... I have more at stake in this deal, than anyone else in the whole world! I'm fighting for me, I'm fighting for you, and most of all, I'm fighting for Kat to have a family! (Emphasis added.)

In a June 19 reply, Ms. Gruber told him that she was not yet ready to answer his questions, and that he should not expect an answer any time before six months from when she left Tennessee.

You continue to ask the question I can't answer. I have told you repeatedly I am not prepared to answer the question now, that I *guessed* I'd need the 6 months, and that it's looking like at least that much is the case. But you were pressing me less than a month after I left. I am working intensely on me; finding a job, place to live, setting up counseling.... I am NOT where I was when I left, AND I can't answer your question with the sort of information I had hoped to have when asked it. If YOU can't wait that long, and you DO need to do what you need to for you. I will answer the question, prepared or not, at that 6 month mark, unless I KNOW something sooner. Right now, I'm still reacting to you, so I know I haven't got what it takes to work on "us" if I wanted to. It wouldn't be a healthy move....

I don't mean to string you along. I have said, and I'll say again, I do NOT wish to commit to filing until I can work through some of these issues. I don't want to do something I regret. AND, I still feel everything I have said. That I can't change you and I can't live with your ways. And away from [my son]. I haven't waffled about this. I've been a broken record. It's NOT that I've been stuck; I guess it's that I'm not yet strong enough to be able to even Choose a yes answer. I'm still reacting into the "no" zone. I have no idea how long it will take; 6 months was a guess....

Anyway, if you need to file, you need to. I understand about the limbo. But, please, stand by your own previous words where you said it's up to me to say something, to initiate. You have never been patient.... I feel pressured and everything takes a step backward....

I'll try to communicate better, but, ... I have been doing the best I can! (Emphasis added.)

What Ms. Gruber did not say in this correspondence was that she already had filed a complaint seeking sole custody of Katarina. Twelve days before her June 19 e-mail, on June 7, 2000, she filed a complaint against Mr. Gruber,¹ asking the Circuit Court for Anne Arundel County to award her "sole legal and primary physical custody" on the grounds that she had been Katarina's primary caretaker and was "a fit and proper person to have custody of the parties' child." She alleged that "it is in the best interest of the child ... that this Court assume jurisdiction," but did not state that Katarina had been living in Maryland for only eleven weeks. Instead, she asserted a "substantial contacts" basis for jurisdiction—that "[t]here is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships."

Ms. Gruber maintained her silence about her custody complaint in her subsequent correspondence with Mr. Gruber. She did not mention it in her e-mail of June 30, in which she discussed arrangements for Mr. Gruber to come to Maryland for a visit with Katarina, and again emphasized that his inquiries about her intentions would drive her away.

Let me say it AGAIN, maybe in different words. I do NOT want to connect at this time. I am AFRAID to because I am STILL reacting to you.... You ARE pushing, have been pushing, keep pushing, won't stop pushing, causing me to want to increase the distance and CREATING stress that has otherwise eased incredibly. You continue to ask the "us" question when I tell you the answer is "no," because you're asking now. I HAVE NO FUTURE GUARANTEES, but I guarantee that your asking now will get a no. If that means that the options aren't open, in your mind, then I can do nothing about it.

Nor did she mention it during Mr. Gruber's ensuing visit with Katarina.

Ms. Gruber waited until September 26, five days after the six-month anniversary of Katarina's arrival in Maryland, to advise Mr. Gruber that she did not intend to reconcile. In a single sentence e-mail, Ms. Gruber informed Mr. Gruber that "[a]s the 6 months are up, and you deserve the answer, I still realize that I can't be in a relationship, therefore I've seen a lawyer...