Herrick v. Wain

• Decision Date: 19 December 2003
• Docket Number: No. 15,15
• Citation: 838 A.2d 1263,154 Md. App. 222
• Court: Court of Special Appeals of Maryland
• Parties: Scott M HERRICK v. Kay WAIN.

838 A.2d 1263

154 Md. App. 222

Scott M HERRICK v. Kay WAIN.

No. 15, Sept. Term, 2003.

Court of Special Appeals of Maryland.

December 19, 2003.

Frani Cohen Wolfe, Rockville, for appellant.

Anne Marie Jackson (Rita M. Bank, Ain & Bank, P.C., on brief), Washington, DC, for appellee.

Argued before DAVIS, SHARER and JAMES R. EYLER, JJ.

SHARER, J.

This grandparent visitation case comes to this Court as a result of the deteriorating relationship between appellant, Scott M. Herrick ("Herrick"), who appeals from a visitation order of the Circuit Court for Montgomery County, and appellee, Kay Wain ("Wain"), the maternal grandmother of his children.

Wain filed a complaint for reasonable visitation, which was referred to the court's family law master, who made findings and recommendations, to which no exceptions were filed. The circuit court, therefore, entered a pendente lite visitation order allowing Wain visitation with the children on the third Saturday of every month from 11 a.m. until 4 p.m.; one weeknight visit per month; and several hours on specified Japanese days of celebration.

At a later hearing on the merits, from which this appeal was taken, the circuit court ordered that visits with Wain were not then in the best interests of the grandchildren. The court suspended visitation, to be resumed only after the parties attended specified visits with Dr. Mary Donahue, the childrens' therapist. The modified schedule called for visitation on alternate Friday afternoons, with Wain picking up the children after school and returning them to Herrick by 7:30 p.m.

Appellant has presented for our review two questions, which we have rephrased somewhat for clarity:

1. Did the trial court err in granting visitation over appellant's objection, in derogation of his due process right under the Fourteenth Amendment of the United States Constitution to make decisions about his children?

2. Did the trial court err in failing to apply a presumption in favor of appellant's decision to limit appellee's visitation with the children?

We answer both questions in the negative, and shall affirm the circuit court.

FACTUAL and PROCEDURAL HISTORY

Leta Wain ("Leta") and Scott Herrick ("Herrick") were married in 1992. Two children were born of the marriage, Leah Sumi Herrick ("Leah"), on May 15, 1993, and Kane Francis Herrick ("Kane"), on November 30, 1994. Wain is the mother of Leta Wain, and the children's maternal grandmother.

Herrick and Leta separated in 1998, and the children resided with their mother. Following the separation, and until Leta's terminal illness, Wain was present in the household with the children "just about all the time." Herrick and Leta were divorced on April 12, 2000. The Court ordered joint legal custody of the children, and granted their primary residential custody to Leta, who served as the primary caretaker of the children after the parties divorced. She subsequently bought a home for herself and the children in 2000, where Wain resided with Leta and the children.

During the separation, and before the divorce was granted, Leta became ill with cancer. During Leta's illness, Wain resided with Leta and the children for approximately one year, and became responsible for seeing to many of the childrens' needs, including feeding them, taking them to school, helping with their homework, and taking them on outings. Leta passed away on November 9, 2001.

Shortly before Leta's death, she authored a "Memorandum of Understanding" which provided that the children would transition from her custody into appellant's care when her physical condition significantly worsened. In order to assist the children in the transition, Herrick hired a full-time nanny, a choice approved by Leta. Additionally, Herrick arranged for the children to see a therapist, Dr. Donahue, to aid them in dealing with their mother's terminal illness and impending death. The children began visits with Dr. Donahue the first day that they returned to their father's care.

Leta's last will and testament, executed by her knowing of her terminal illness, emphasized her wish that her children have a relationship with Wain and the rest of her family despite the divorce. She wished that the children continue to be raised with an understanding and the benefit of both their father's Jewish culture and her Japanese heritage.

The parties have conflicting accounts of their relationship at the time Leta was admitted to the hospital for the final time. Wain claimed that Herrick "took" the children and never brought them to say goodbye to their dying mother. In contrast, Herrick claimed that he was never contacted to take the children to the hospital to visit their mother before her death.

The record clearly illustrates, and the parties acknowledge, their contentious relationship. Herrick denied Leah's requests to spend time with her grandmother prior to her mother's death. Wain claims that Herrick consistently tried to sabotage the children's visits with her, and points to an incident in May 2002 when she was scheduled to meet the children at a local deli to celebrate Boys Day, a Japanese holiday. Herrick took the children to the deli as scheduled, without telling them that there was to be a visit with their grandmother. He fed them before the visit and took the childrens' friend along. As a result, the children were surprised and upset by the visit and it was cancelled. Wain alleges that Herrick would always allow the children to have their friends present during their visits, therefore detracting from their time with Wain. Finally, Wain alleges that Herrick involved his children in his dispute with her by telling them that she had "stolen" money set aside for them by their mother in a trust.

For his part, Herrick alleges that Wain consistently voiced her disdain for him in front of the children, even before he and Leta had divorced. Herrick further testified that prior to Leta's death, he would call her house to speak to the children and was told by Wain that the children were outside, even though they could be plainly heard in the background. He also claimed that Wain engaged in inappropriate discipline of the children in his presence, spanking them when he saw no reason to do so. Herrick argues that Wain consistently contradicts the childrens' Jewish faith by telling them they are not Jewish, and sending them Christmas and Easter cards instead of a card celebrating the Jewish holidays. Additionally, Wain sent letters to the children that Herrick claims have a detrimental effect on them. She wrote to the children that their mother is watching them, despite the fact that Dr. Donahue told her such statements made the children uncomfortable in light of their Jewish faith. The letters were particularly problematic for Kane. Their relationship reached its nadir when a confrontation occurred at Herrick's home over Kane's pets, which escalated into a shouting match that ended with the police being called to remove Wain from the property.

Wain described her relationship with the children as "close." In an effort to teach the children about Japanese culture, she showed both children origami, the art of paper folding, and started to teach Leah the Japanese tea ceremony and Japanese flower arranging, called ichibana. Wain also celebrated Japanese holidays with the children, including Boys Day, Girls Day, the Japanese New Year, and her daughter's Memorial Day.

After Leta's death, Kane continued to act indifferently to Wain's visits, based on his perception that she showed favoritism to Leah. Leah demonstrated her disappointment by hiding or pretending to be asleep to avoid Wain.

On December 7, 2001, Wain filed a complaint for reasonable visitation by a grandparent pursuant to Md.Code Ann., Fam. Law § 9-102 (2003). Herrick filed an answer to the complaint on January 24, 2002, stating that he was not opposed to Wain's visitation with the children, but expressing concerns about the extent of the visits. As we have noted, a hearing was held on May 28, 2002 before the family law master, whose findings and recommendations were incorporated into a pendente lite order entered on June 10, 2002.

A merits hearing was held on Wain's complaint on December 4, 2002 and January 24, 2003, before the circuit court. The circuit court issued its opinion on February 27, 2003, and thereafter entered a visitation order. The court discussed the relationship between Wain and Herrick in relation to the best interests of the children and ruled:

Dr. Donahue's proposed access schedule is set forth above. Both parties also proposed access schedules for Plaintiff and the children. [Herrick] proposed that, at the present time, no visits take place. However, he did concede that he would be amenable to whatever Dr. Donahue recommended. The Court finds that [Herrick]'s access schedule is not entitled to deference because he appears more concerned about his need to be respected than the children's right to love even those whom he does not love. He would indeed be entitled to deference if this Court found he could subordinate his needs to the children's best interests. The Court will adopt Dr. Donahue's proposed access schedule.

However, in the instant case, at this time [Wain's] visits with her grandchildren are not in their best interest, in part because of her behavior and partly because of their father's behavior. With counseling, the two adults who are most important in these children's lives may be able to subordinate their own needs and feelings to those of the children. Instead, each tends to dislike that part of the other that separates them rather than realizing that the children are a composition of both—they are both Japanese and Jewish—and, they need to assist the children in being able to integrate both parts of themselves in order to develop into healthy whole adults.

The Court will order [Wain] and [Herrick] to meet with Dr. Donahue for two sessions to discuss the mechanics

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