Jordan v. Jordan

• Decision Date: 07 January 1982
• Docket Number: No. 345,345
• Citation: 50 Md.App. 437,439 A.2d 26
• Parties: Robert F. JORDAN v. Linda S. JORDAN.
• Court: Court of Special Appeals of Maryland

Page 437

50 Md.App. 437

439 A.2d 26

Robert F. JORDAN v. Linda S. JORDAN.

No. 345.

Court of Special Appeals of Maryland.

Jan. 7, 1982.

James J. Cromwell and Beverly A. Groner, Bethesda, with whom were Spriggs, Cromwell, Myers, Nicholson & Spire, P. A., Silver Spring, and Groner & Groner, Chartered, Bethesda, on the brief, for appellant.

Jeffrey N. Greenblatt, Rockville, with whom were Brodsky, Greenblatt & Renehan, Chartered, Rockville, on the brief, for appellee.

Argued before MORTON, MOYLAN and LISS, JJ.

LISS, Judge.

Robert F. Jordan and Linda S. Jordan, appellant and appellee, respectively, were married on June 15, 1963 in Hartford, Connecticut. In September of 1976 the parties separated voluntarily and on November 17, 1977, executed a separation and property settlement agreement, under the terms of which they agreed that the custody of their two minor sons, Christopher, born December 12, 1966, and Garrett, born August 31, 1972, was to be with the mother. The agreement provided, inter alia, for detailed visitation rights by the father and the mother agreed that the father was to have "free access and unhampered contact with the children." The parties were subsequently divorced by a decree a vinculo matrimonii on April 28, 1978. The separation and property settlement agreement was merged into the divorce decree.

Both minor children thereafter resided with their mother in the former marital home in Potomac, Maryland. The appellant remarried and moved to Darien, Connecticut. Subsequently, Christopher had moved by his own request and by agreement of the parties to the custody of the appellant in Connecticut, while Garrett remained with his mother in Maryland. Although, as was perhaps to be expected, some friction arose in the implementation of the father's visitation rights with the younger child, no serious problem occurred until September 1, 1979, when the appellant filed a petition for custody of both minor children and for other relief including prayers that: (1) the Circuit Court for Montgomery County ratify the then existing custody of the minor child Christopher in the appellant; (2) the appellee be enjoined from removing either of the said minor children from their respective places of abode in Connecticut and Maryland except for the implementation of visitation rights until the matter of custody had been finally determined by the court; (3) the court pass an appropriate order as to visitation rights; (4) the court make an appropriate award for support of the minor children; (5) the court award the appellant counsel fees; (6) the case be advanced for hearing; and (7) the court grant the appellant such other and further relief as the court deemed just and proper. On the same date the bill of complaint was filed, the chancellor signed an ex parte order granting custody of Christopher to the appellant, enjoining the appellee from removing either of the children from their respective places of abode, except for visitation until the controversy had been finally adjudicated, and ordered the existing plan for visitation to continue.

On November 26, 1979, appellee filed an answer to appellant's petition in which she prayed: (1) the court to dismiss appellant's bill of complaint; (2) that the injunction and order of September 11, 1979 be dissolved; (3) that all costs and legal fees incurred by appellee be paid by the appellant; and (4) for such other and further relief as the court might deem just and proper.

On May 5, 1980 appellant filed a supplemental amended petition in which he requested the court to grant the relief prayed in the original petition and grant him custody of both minor children with appropriate rights of visitation reserved to the appellee. On October 14, 1980, after a series of hearings extending over a period of several months, the chancellor ordered that the injunction previously issued against the appellee be dissolved effective October 17, 1980. Appellant noted an appeal on October 16, 1980. On the same date appellant filed a petition to stay operation of the chancellor's interlocutory order dissolving the injunction previously issued on September 11, 1979, pending the disposition of the appeal to this Court. An answer to this petition was filed by the appellee and the petition to stay was heard by this Court on October 17, 1980. We ordered that the appellant's motion to stay the chancellor's order of October 14, 1980 dissolving the injunction previously entered against the appellee be granted with the additional provision that the stay remain in effect until the issues on appeal were resolved in this Court.

On October 31, 1980, the chancellor signed an order dissolving the injunction entered on September 11, 1979 (effective October 17, 1980); granting custody of Christopher to the appellant; reserving reasonable visitation rights to the appellee; denying appellant's request for change of custody of Garrett; allowing the appellee to move outside the United States with Garrett; permitting appellant visitation with Garrett both in and outside the United States; accepting the parties' stipulation concerning support for the minor child; ordering the appellant to pay the appellee $2,225 as suit money; ordering the appellant to pay appellee $20,000 in counsel fees and court costs; ordering that the award of counsel fees and court costs be paid from appellant's share in the proceeds of the sale of the marital home, when sold; and denying appellant's petition for contempt. Appellant seasonably filed an appeal to this Court from the order of October 31, 1980. On December 2, 1980 a revised order was issued by the chancellor exactly duplicating the order of October 31, 1980, except that the trial court's prior order of October 31, dissolving the injunction entered against the appellee on September 11, 1979, was made subject to this Court's order of October 17, 1980 that stayed the effect of the dissolution pending the resolution of the appeal to this Court. From the judgments as set out in the chancellor's revised order of December 2, 1980 this appeal has been seasonably filed.

Appellant has raised five issues to be decided by this appeal:

I. Whether the chancellor erred as a matter of law when he awarded custody of Garrett Jordan to the appellee in the absence of any finding by the chancellor that such an award would be in the best interests of the child?

II. Whether the chancellor erred as a matter of law when he found that the appellant had not shown that a change of circumstances had occurred which justified the transfer of Garrett Jordan's custody from the appellee to the appellant?

III. Whether the chancellor abused his discretion by keeping the custody of Garrett Jordan separate from that of his brother Christopher?

IV. Whether the chancellor abused his discretion when he awarded custody of Garrett Jordan to the appellee in a manner that drastically reduces, without justification, Garrett's and appellant's rights of visitation with each other and impinges harmfully on Garrett's relationship with his brother Christopher, by allowing the removal of Garrett 8,000 miles away to South Africa?

V. Whether the chancellor erred in awarding an attorney's fee of $20,000 to the appellee when (a) the only proof of any fee was in an amount almost $1,000 less than that awarded, (b) the amount of time billed was substantially inflated and (c) no part of the total fee was charged to appellee herself although her independent financial earning power was not disputed?

I., II., and IV.

We shall consider these three issues raised by this appeal together. Appellant concedes that he has the burden of showing that strong reasons exist for changing the child's custody. See Vernon v. Vernon, 30 Md.App. 564, 354 A.2d 222 (1976). He also, at least tacitly, agrees that a custody determination by a chancellor below is not reversible unless against the manifest weight of the evidence or "clearly contrary" to the best interests of the child. See Feldman v. Feldman, 55 Mich.App. 147, 222 N.W.2d 2 (1974). As Judge Digges said, in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977):

(I)t is within the sound discretion of the chancellor to award custody according to the exigencies of each case, (citation omitted) and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. (280 Md. at 125, 372 A.2d 231).

The reason why the chancellor is vested with such broad discretion is:

(B)ecause only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor. (Id., at 125, 372 A.2d 231).

The Court of Appeals reaffirmed the standards enumerated in Davis, supra, in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), wherein it said:

It is not enough that the appellate court find that the chancellor was merely mistaken in order to set aside the custody award. Rather, the appellate court must determine that the judicial discretion the chancellor exercised was clearly abused. (280 Md. at 186, 372 A.2d 582).

It is clear from our reading of the extensive testimony included in the several volumes of the record extract filed in support of this appeal that the appellant had no serious complaint concerning the care furnished Garrett by his mother until he was advised that the appellee was contemplating marriage to her fiance and was proposing to move to South Africa with her husband and the child for a comparatively long period of time. It is not seriously contended that Garrett, at the time of the filing of the petition for custody, was not a happy, healthy, well adjusted child. At no point in the course of these long and drawn out proceedings has the appellant suggested that the mother is not a proper...