K.M. v. C.D., 011719 MDSCA, 1760-2017
| Opinion Judge | MEREDITH, J. |
| Party Name | K.M. v. C.D. |
| Judge Panel | Meredith, Kehoe, Berger, JJ. |
| Case Date | January 17, 2019 |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Howard County Case No. 13-C-13-097021
Meredith, Kehoe, Berger, JJ.
OPINION [*]
MEREDITH, J.
Although the parties to this appeal never married, they are the biological parents of two children: a son ("Son") born in February 2009, and a daughter ("Daughter") born 22 months later in December 2010.[1] In November 2013, K.M. ("Father"), appellant, filed a complaint in the Circuit Court for Howard County, seeking custody. C.D. ("Mother"), appellee, responded with a counterclaim for custody. As a result of a contested pendente lite hearing conducted by a magistrate (then referred to as a "master"), the magistrate recommended that the parties be granted shared physical custody and that Father have sole legal custody. The court filed a pendente lite order on April 3, 2014.
Before the court made a final determination, Father and Mother entered into a "Parenting Plan" on July 7, 2014, and that agreement was "incorporated, but not merged" into a "consent order" entered by the circuit court on July 11, 2014. That consent order provided, inter alia, that "Father and Mother shall have joint legal custody with tie-breaking authority to belong to Father," and "Father shall have primary physical custody of the minor children during the school year." The consent order provided Mother liberal opportunities for her to have physical custody of the children.
On May 3, 2016, Father filed a motion to modify custody and to establish child support. Mother responded by filing a counter complaint for modification of custody and for the establishment of child support. Evidentiary hearings on the competing custody claims spread over four days, conducted on March 13, June 8, June 9, and July 10, 2017. On September 15, 2017, the circuit court announced oral findings of fact and conclusions of law; a written order for modification, modifying the physical custody and legal custody of the children, was signed the same day, and docketed on September 18, 2017 ("the September 2017 order").
Father noted this timely appeal.
QUESTIONS PRESENTED
Father presents the following questions for our review, which we have condensed as follows:2
1. Did the trial court err when it found that there had been a material change in circumstances since the entry of the custody order on July 11, 2014?
2. Did the trial court err by not accounting for the benefit of continuing the existing custodial arrangement when assessing whether, and how, to modify custody?
3. Did the trial court err when it failed to take judicial notice of the findings of fact made by a master in February 2014?
4. Did the trial court err when it allowed Mother to introduce a report prepared for trial by her expert witness?
5. Did the trial court abuse its discretion when it excluded from evidence records from Child Protective Services and the children's school as a sanction for Father's failure to timely produce the documents during discovery?
6. Did the trial court abuse its discretion when it modified the provisions of the custody order entered July 11, 2014?
For the reasons explained herein, we shall affirm the judgments of the Circuit Court for Howard County.
FACTS AND PROCEDURAL BACKGROUND
On July 7, 2014, Father and Mother agreed to a parenting plan which was incorporated, but not merged, into a consent order dated July 8, 2014 (docketed July 11, 2014). The agreed plan granted joint legal custody with tie-breaking authority to Father, and gave him primary physical custody during the school year. The parenting plan provided Mother liberal access to the children. For example, Paragraph 6 stated that Mother would have the children on alternating weekends during the school year, and overnight on alternating Thursdays preceding the Father's weekends. Paragraph 8 provided for equal division of summer vacation time. Paragraph 4 further stated, inter alia: "Mother shall be entitled (but she is not required) to pick [Son and Daughter] up from [the daycare provider's] house and keep them until 8:00 p.m. on Mondays, Tuesdays, and Wednesdays so long as" Mother gave Father advance notice, and the visitation did not interfere with the children's homework and extra-curricular activities.
Paragraph 9 of the parenting plan read as follows: 9. Mother shall continue to show that she is alcohol and drug free and shall continue getting regular and frequent counseling as necessary. Mother shall submit to a drug and/or alcohol test within 12 hours of being requested by Father, and said results shall be provided to Father. If Mother fails to test when requested, or cannot provide a clean test, then all future visits with Mother shall stop until Mother is able to provide Father with proof of attendance at counseling and two clean urine tests.
The parenting agreement included the parties' representations that both Mother and Father had been "represented by counsel while negotiating and entering into this Parenting Plan," and that "[Mother and Father] have each had an opportunity to discuss [the plan] fully with our own attorneys."
On April 6, 2016, Father exercised his right under Paragraph 9 (quoted above) to request that Mother provide a clean drug and alcohol test before again taking physical custody of the children. Mother did not provide the requested test results, and Father withheld access to the children.
On May 3, 2016, Father filed a motion to modify custody and to establish child support. In the motion (later amended), Father requested sole legal custody and new restrictions on Mother's access to the children.
On August 29, 2016, Mother filed a cross complaint to modify custody and to establish child support. She alleged that she had begun treatment for depression and anxiety, refrained from alcohol use, lived in a stable home suitable for overnights with children, and had been gainfully employed for over a year. She requested sole legal custody and sole physical custody.
The Circuit Court for Howard County conducted evidentiary hearings on four days: March 13, June 8, June 9, and July 10, 2017. On September 15, 2017, the circuit court announced its findings and disposition from the bench. The court reviewed the evidence in detail, and stated that it found that there had been material changes in circumstances that warranted a modification of the custody terms set forth in the parenting plan that had been incorporated into the consent order in July 2014.
The court modified legal custody from joint with Father having complete tie-breaking authority, to joint with each of the parents having limited tie-breaking authority: Father received tie-breaking authority for educational and religious decisions; Mother received tie-breaking authority for medical decisions and extracurricular activities. The court modified the award of physical custody to a more explicitly defined equal division, including a detailed schedule for alternating holidays.
The court also modified Paragraph 9 of the parenting plan dated July 7, 2014, to disallow Father from unilaterally blocking Mother's access to the children if she failed to provide clean drug or alcohol test results whenever requested by Father.
The court explained its rationale for the modifications as follows: . . . [T]he Court does, in fact, find that there are material change[s] in circumstances to warrant modification and the Court is going to find that it is in the children's best interests to modify custody. The Court is considering the factors in Montgomery County versus Sanders and Taylor versus Taylor. First of all, as it relates to fitness of the parents the Court does find that both [Father] and [Mother] are fit parents. . . . That desire of the natural parents and any agreement between the parties, they each have a natural desire and there is an agreement for joint legal custody with what I would call liberal access because it's every Thursday and every other weekend and seeing the children after school, that's pretty much daily contact. The potentiality of maintaining natural family relations, there would be but they already have joint custody. The preference of the child, the Court doesn't have that information or testimony but also due to their ages, the Court is going to find that the children want to be with both of their parents. They have that. The main issue is that [Father] invoked that no-contact clause until he was presented with proof of counseling as well as clean urinalysis.
. . . Health of the child, they both appear to be healthy . . . . The residence of the parents. They both live in Howard County, not that far from one another. The length of separation from the natural parents. There really hasn't been any separation other than the limited restricted access [imposed by Father] during mainly the summer of 2016. And whether or not there were any prior abandonment or surrender, there hasn't been any voluntary prior abandonment or surrender.
Now, in the legal custody, the factors are very similar except one difference is the demands of the parental employment. Both are employed. We know [Father] has a legal practice and if he's in trial, it may be very demanding. . . . [Mother] is employed, thirty hours a week at Bob Evans and I believe that's during the mornings so she has her afternoons free.
The financial status of the parents. [Father] is having some financial problems. He's been with his business. He's been depleting his retirement assets in order to pay some expenses. I think his testimony was he had a couple of cases where he was expecting a big payout that never came through. That [Mother] is living in a transitional shelter. Her funds are, in fact, limited. That...
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