Kadish v. Kadish

• Citation: 254 Md.App. 467,274 A.3d 482
• Decision Date: 27 April 2022
• Docket Number: 275, Sept. Term, 2021
• Parties: Miranda S. KADISH v. Craig M. KADISH
• Court: Court of Special Appeals of Maryland

254 Md.App. 467

274 A.3d 482

Miranda S. KADISH

v.Craig M. KADISH

No. 275, Sept. Term, 2021

Court of Special Appeals of Maryland.

April 27, 2022

Argued by Donald Douglas Hecht, Baltimore, MD, for Appellant.

Argued by Steven M. Caplan, Towson, MD, for Appellee.

Nazarian, Leahy, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Leahy, J.

In considering whether to impose discovery sanctions in the underlying child custody case, the trial court was confronted with a party that repeatedly failed to comply with discovery obligations and court orders. In an earlier case, A.A. v. Ab.D. , we explained that the "best interests of the child standard is the leading consideration for the court in deciding whether to preclude a party from introducing evidence as a discovery sanction in a child custody case." 246 Md. App. 418, 422, 228 A.3d 1210, cert. denied , 471 Md. 75, 238 A.3d 270 (2020). We held that the court erred in prohibiting mother from presenting evidence "without considering the impact that the sanction would have on the best interests of the children." Id. at 447, 228 A.3d 1210. By contrast, in this case, we conclude that the court safeguarded the child's right to have her best interests fully considered while appropriately imposing a series of escalating sanctions for the recalcitrant party's discovery violations.

Appellant Miranda S. Kadish ("Mother") appeals from an order of the Circuit Court for Baltimore County adjudicating several motions relating to the care of the parties’ child, S., in favor of appellee Craig M. Kadish ("Father"). Among other things, the court granted Father sole legal and physical custody, subject to Mother's visitation rights; determined that Mother was in contempt of the Judgment of Divorce; and denied Mother's motion for contempt and retroactively modified Father's child support obligations. Mother presents four questions for our review, which we have consolidated and recast as follows:¹

I. Did the trial court err and/or abuse its discretion by issuing a series of escalating discovery sanctions for Mother's repeated failure to adequately respond to Father's discovery requests, culminating in the imposition of a rebuttable presumption as to S.’s best interests?

II. Did the trial court err and/or abuse its discretion in finding a material change of circumstances and granting Father primary physical custody and sole legal custody?

III. Did the trial court err and/or abuse its discretion when it failed to adjudge Father in contempt?

Discerning no error or abuse of discretion, we affirm the judgment of the circuit court.

BACKGROUND

Mother and Father married on September 8, 2014 and are the parents of S. (or "Child"), who was born in 2015. Mother and Father separated as of March 1, 2018. After the separation, Mother relocated to the State of Nevada, and Father remained in Maryland. A judgment of absolute divorce was entered on July 8, 2019.

Separation and Property Settlement Agreement

The parties entered into a "Separation and Property Settlement Agreement" ("Agreement") on June 24, 2019, which was then incorporated, but not merged, into the judgment of divorce. The judgment granted the parties joint legal and shared physical custody of S. "subject and pursuant to the terms set forth in the Agreement."

The Agreement required the parties to consult with each other "regarding the emotional, moral, educational, physical and general welfare of the Child" and gave both parties the "right to participate fully and equally" in making decisions with respect to the "education, medical treatment, illness, operations (except in emergencies)[,] health, welfare and other matters of similar importance affecting the Child." Although each party was charged with making "day-to-day decisions" concerning S. while she was in their physical custody, the Agreement allowed the parties to have "co-equal authority to make all ‘Major Decisions,’ affecting the Child (i.e., all decisions concerning permanent residence, school/education, summer camp, serious medical care, religious training/upbringing and participation in extra-curricular activities)." To resolve any conflict between the parties regarding any Major Decisions, the Agreement provided for the appointment of a parenting coordinator, who was tasked with facilitating a joint resolution. In the event a joint resolution could not be reached, the parenting coordinator was to "determine the resolution of the Major Decision."

The Agreement broadly contemplated that S. would reside primarily with Mother in Nevada during the school year and with Father in Maryland during the summer. Correspondingly, the Agreement required Mother to "propose a fully licensed and accredited pre-school for the Child to attend for the 2019-2020 academic year" on or before July 15, 2019, subject to Father's approval, which "shall not be unreasonably withheld."²

The Agreement entitled Father to an "access period" of nine overnights each month during the school year and Mother to eight overnights each month during the summer. The parties also received "telephone and/or FaceTime access with the Child not less than once every three (3) days" while S. is in the other party's care.

The monthly travel arrangements for the pick-up and return of S. between Nevada and Maryland at the start and end of each access period were specified under the Agreement. Each May, Father was to "travel to Nevada to pick-up the Child to commence his Summer access period." Mother was required to "both pick-up and return the Child at the start and at the end of each of her access periods in June and July" and to "travel to Maryland to pick-up the Child at the end of Father's Summer access period in August." Father was required to pick-up and return S. at the start and end of his access periods in September, November, January, and March; and Mother at the start and end of Father's access periods in October, December, February, and April. If S. traveled with Mother or Father "by air," the other party had to be notified in writing at least a week in advance.

Among other things, the Agreement also required Father to pay to Mother $2,816.00 per month in child support and to maintain life insurance for S.’s benefit.³

Petition for Contempt

On November 19, 2019, Father filed a "Petition for Contempt and For Enforcement of Separation Agreement, Etc." In his petition, Father averred that "anticipating ongoing difficulties in attempting to co-parent S[.] with [Mother], [Father] (through counsel) sought to ensure, to the maximum extent possible, that the Agreement's provisions relative to S[.]’s care, custody, etc., were set forth in substantial and unmistakable detail." Among other issues, Father asserted that Mother: (1) "frustrat[ed] S[.]’s much needed corrective eye surgery"; (2) delayed the appointment of a Parenting Coordinator; (3) failed "to designate any pre-school" or enroll S. full-time in a compliant pre-school until late October 2019; and (4) failed "to have S[.] attend pre-school on at least eight (8) of the fifteen (15) school days" since she began school on October 28. Father also said that Mother failed to comply with the Agreement's travel and travel notification provisions and did not visit S. at all during "almost four (4) months that [Father] had S[.]’s physical custody."

A few months after filing this petition, on January 7, 2020, Father propounded interrogatories and a request for production of documents. Father also served Mother with a notice of deposition set for February 13, 2020. Mother did not respond to any discovery requests and failed to appear for her deposition.⁴

On March 18, 2020, Father filed an "Amended and Supplemental Petition for Contempt and for Enforcement of Separation Agreement, Etc." The amended petition did not assert additional grounds for contempt but provided additional detail to the contentions in Father's prior petition. Mother did not respond to the original contempt petition and failed to respond to the amended petition until June 19, 2020.

Discovery Dispute Related to Contempt Petition

On March 18, 2020, along with the amended petition for contempt, Father filed a "Motion for Sanctions and/or to Compel." He alleged, among other things, that Mother: (1) failed to serve answers to interrogatories; (2) failed, despite receiving multiple extensions, to respond or produce any documents in response to requests for production; (3) failed to appear for her deposition; and (4) failed to respond to efforts to reschedule her deposition. Again, Mother did not respond.

On April 9, 2020, the circuit court granted Father's motion, in part, and ordered Mother to respond to Father's discovery requests and produce any responsive documents no later than May 1, 2020. Due to the COVID-19 emergency, the court denied, "without prejudice at this time," Father's request that Mother appear at her deposition.

Rather than answer the interrogatories or produce documents as directed, on April 24, Mother filed a "Motion to Vacate & Dismiss Prior Judgment for Discovery." In her motion, Mother asserted that Father "has filed endless frivolous lawsuits against [Mother] through abuse of power," and that Father "is in contempt of court by failing to pay [Mother] child support while refusing to release shared minor child to [Mother]." The court denied Mother's motion on May 14 and ordered her to "provide written discovery responses and documents as previously ordered."

After Mother failed to provide the discovery first requested in January 2020 and twice ordered by the court on April 9 and May 14, Father filed a "Renewed/Second Motion for Discovery Sanctions" on June 12. Father noted that Mother "had thirty (30) days since the [c]ourt's latest Order compelling discovery, sixty-four (64) days since the [c]ourt's original Order compelling discovery and one-hundred fifty-seven (157) days since [ ] the discovery requests were served upon her (at a time when she was represented by counsel)" but still had not...