Kalman v. Fuste
| Citation | 52 A.3d 1010,207 Md.App. 389 |
| Decision Date | 05 September 2012 |
| Docket Number | Sept. Term, 2011.,No. 1617,1617 |
| Court | Court of Special Appeals of Maryland |
| Parties | Janet KALMAN v. Jose FUSTE. |
OPINION TEXT STARTS HERE
Joyce M. Kosak, Rockville, MD, for appellant.
Ross D. Hecht, College Park, MD, for appellee.
Panel: EYLER, DEBORAH S., MATRICCIANI, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.
On July 31, 2008, the Circuit Court for Frederick County awarded appellee, Jose Fuste (“Father”), an absolute divorce from appellant, Janet Kalman (“Mother”). The court granted the parties joint legal custody of their Daughter and granted Mother primary physical custody, with Father to have liberal visitation.
Despite Mother's relocation to Florida with Daughter, the parties continued to litigate custody disputes in Maryland. On January 20, 2011, Father filed a petition to modify his visitation with Daughter in the Circuit Court for Montgomery County. On April 13, 2011, Mother filed a petition to modify custody, also in Montgomery County, along with her answer to Father's petition to modify visitation. The circuit court conducted a scheduling hearing on May 2, 2011, where it set a merits hearing on the modification petitions for August 29, 2011.
Just prior to the August 29 merits hearing, Father filed an Emergency Motion for Custody with an accompanying affidavit asserting that Mother had been arrested in Florida and charged with felony possession of a controlled dangerous substance (the drug hydrocodone) with intent to distribute. Mother did not respond to this motion, but a circuit court judge granted the motion the day it was filed, pending the outcome of the hearing on August 29, 2011.
Mother appeared with counsel for the hearing on August 29 and challenged the Maryland court's continuing jurisdiction over Daughter's custody, as well as the basis for emergency jurisdiction. A second judge found that the Circuit Court for Montgomery County had continuing jurisdiction over Daughter and concluded that the Mother's legal troubles in Florida created an emergency requiring a modification in custody. The court awarded Father temporary sole legal and physical custody of Daughter, with reasonable visitation for Mother and Daughter's grandparents, pending the outcome of further custody proceedings. The court set a status conference for November 30, 2011, to reevaluate the parties' situations. The judge suggested that one of the parties would have to file a complaint in order to obtain a “final custody” hearing. Mr. Fuste did that on September 6, 2011. On October 3, 2011, Ms. Kalman noted an appeal from the temporary custody order dated September 2, 2011.
Appellant's brief presents three questions for our review, which we have combined into two as follows:
I. Did the circuit court err when it held that it had continuing exclusive jurisdiction to entertain appellee's emergency motion without determining whether the jurisdictional requirements of FL § 9.5–202(a) were satisfied?
II. Did the circuit court err in finding that the unstable circumstances of appellant in Florida constituted an emergency requiring a temporary modification of child custody?
For the reasons that follow, we answer yes to both questions, we vacate the judgment of the circuit court, and we remand for further proceedings.
The parties were married in 1997 and resided in Maryland until Mother became pregnant with their child. At that point the parties separated and Mother moved to Florida, where she gave birth to Daughter on July 14, 2006. The parties finalized their divorce in the Circuit Court for Frederick County in July of 2008, agreeing that Mother would be Daughter's primary physical custodian and that Father would retain the right to liberal visitation.
Mother raised Daughter in Florida with the help of Daughter's maternal grandmother and paternal grandparents. Father visited three to four times each year until 2011, when he began visiting monthly. Prior to the events of this case, Daughter had spent only one week in Maryland, on the occasion of her fifth birthday in July of 2011.
On August 14, 2011, Daughter was with Father's parents when Florida police detained Mother on a charge of shoplifting. The arresting officers found in her possession a bottle of hydrocodone whose prescription label bore someone else's name. Mother was arrested and charged with theft and drug trafficking, held overnight, and released on her own recognizance.
When Father learned of Mother's arrest, he decided to remove Daughter to Maryland. He traveled to Florida and told Mother that he and his parents would watch Daughter overnight on August 23, 2011, while Mother finished moving into a new residence. That evening, Father returned to Maryland with Daughter, and the next day filed an emergency motion for custody in the Circuit Court for Montgomery County. In an affidavit supporting his motion, Father stated that he believed Mother was using and possibly selling drugs and would abscond with Daughter to Switzerland, where Mother is also a citizen. Father averred that Mother had been terminated from her employment and could lose her license to practice nursing, and that she was residing with her sister, who had two pending theft charges, and with “a live-in boyfriend who has a prior drug conviction.” Father stated that Mother's “arrests are a drastic change in [her] behavior which makes me very concerned for the safety and well-being of my [daughter].”
The circuit court granted Father temporary sole custody of Daughter, pending a hearing on the merits of his emergency motion. On August 29, 2011, the parties appeared before the court for that hearing, where Father testified to the foregoing facts.1 Mother moved for judgment at the close of Father's case, arguing in part that the court lacked emergency jurisdiction over the matter. The court rejected Mother's argument:
Mother then took the stand and testified that on the night of her arrest, she had finished shopping and wanted to rent a movie from an automated kiosk at the store's entrance; in attempting to do so, she took her shopping cart past the checkout lines, which led to her being accused of shoplifting. Mother further testified that she had accidentally brought home a dead patient's hydrocodone from her work as a hospice nurse, and she had it in her purse only so that she could destroy it later that night, at work.
Father introduced a printout of a commercial website showing that Mother had been arrested twice before, once in 2008 and once in 2009. Mother testified that in 2009, Daughter had an accident in a store, and when Mother hastily left to change Daughter's clothes, she unintentionally carried out a pair of the store's underwear. Mother averred that the charges were dropped, and Father introduced no evidence of a conviction. Mother had earlier testified that this was her only prior arrest; when confronted with the computer printout showing an arrest in 2008, she stated that she did not remember that occurrence.
Mother testified that she was fired after her most recent arrest because company policy forbade possession of patients' drugs outside of the workplace; but Mother stated that she had found a better-paying job with a firm that will hire her as long as she is not convicted of drug trafficking. Mother introduced the results of random drug tests that had been conducted for her job—including one from two days after her arrest—none of which indicated the presence of narcotics. Mother also testified that she had been denied communication with Daughter since her removal to Maryland.
In his closing argument, counsel for Father reviewed the evidence and argued that the court should temporarily grant sole physical and legal custody to Father:
[Father is] very concerned that either Ms. Kalman has a drug problem or something is going on in her life that is going to take a registered nurse, a person in a highly respected career and have them be arrested two, three times for petty theft and now a petty theft with unexplained prescriptions in her pocketbook.
Those factors gave Mr. Fuste a good faith basis to believe that his daughter was not being cared for in the best manner possible.
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[S]he's facing a very serious felony charge in Florida for prescription drug fraud. That can have negative consequences for her in a couple of critical ways as it affects [Daughter], as Your Honor knows, a felony, incarceration possible.
Also, even if she does a sentence, as Your Honor knows, many felonies get pled out to something less. If she ends up with a lesser charge and she's on probation she still very well could lose her, her medical license so that she still has real factors that are negatively impacting on her life.
* * *
But what we are saying is Your Honor, at this stage we don't know what's going to happen with Ms. Kalman. She may prevail on all charges and might come back in and make an argument that she is the fittest parent in the room and that may well be the case, Your Honor. But at this present juncture, I don't think that she can say that she's in, on par with her ex-husband. She's got serious felony charges.
She runs the risk of everything that I just suggested, even in addition to the possible easy out of going to Switzerlandwhich she's denied. It's a concern, Your Honor, but the primary concern is the best interest of the child. The best interest of [Daughter], we believe Your Honor in the short term, would be to leave her with her Father.
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Ms. Kalman doesn't even have a trial date yet, she has an arraignment set for September. I was going to...
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