Kirchner v. Caughey

• Decision Date: 01 September 1991
• Docket Number: No. 131,131
• Citation: 326 Md. 567,606 A.2d 257
• Parties: Ronald E. KIRCHNER v. Kathleen M. CAUGHEY. ,
• Court: Maryland Court of Appeals

Page 567

326 Md. 567

606 A.2d 257

Ronald E. KIRCHNER v. Kathleen M. CAUGHEY.

No. 131, Sept. Term, 1991.

Court of Appeals of Maryland.

May 13, 1992.

Jan O'Connor and Charles E. Wehland, Ellicott City, for appellant.

Kevin B. Kamenetz (Moore, Libowitz & Thomas, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

The parties to this appeal were divorced in December of 1983, when their only child, Bridgette, was one and one-half years of age. The mother, Kathleen M. Caughey, was granted legal and primary physical custody of the child, and the father was given defined, liberal rights of visitation, all in accordance with an earlier agreement of the parties. Since that time, there have been disagreements between the parties and court proceedings dealing with claims for change of custody and modification of visitation rights. Until 1990, the parties were generally able to resolve their differences before final court action, and the resulting agreements were approved by the Circuit Court for Baltimore County and incorporated into amendments to the original decree. Throughout this time, the mother retained sole legal custody and primary physical custody of the child, and the father retained and exercised his liberal rights of visitation.

On 23 July 1990, the mother filed a petition seeking an increase in child support, a modification of visitation rights to exclude Sunday visitation, and a request that the father be enjoined "from all efforts to indoctrinate the child in the Baptist religion." The father filed an answer, together with a cross-petition seeking enlarged rights of visitation. The case was referred to a master who heard testimony and filed a report setting forth his findings of fact and recommendations for disposition. Judge Leonard Jacobson entered an immediate order ¹ adopting the master's recommendations, thereby increasing the amount of child support to be paid by the father from $50 to $118 each week, continuing the existing visitation schedule, and imposing additional restrictions upon the father in the following words:

ORDERED, that Ronald E. Kirchner shall be prohibited from and is hereby ordered not to have the minor child of the parties participate in any church or church-related activity while said minor child is in his care and custody during his visitation periods; and it is further

ORDERED, that if Ronald E. Kirchner violates the aforementioned prohibition regarding visitation, that all visitation shall be stopped pending further hearing by this Court....

The father filed timely exceptions, complaining of the additional restrictions and the extent of the increase in child support. The mother filed cross-exceptions, contending the father should not continue to have visitation on Sunday, and that the father should have been required to pay the mother's attorney's fees. The exceptions were heard by Judge Dana M. Levitz, who thereafter filed an order stating the nature of the exceptions and ruling, without further discussion of the issues, as follows:

It is the Court's opinion, after reviewing the transcript of the hearing before the Master and considering the arguments of counsel, that the Master's findings are correct. Accordingly, it is the ruling of the Court that Plaintiff's and Defendant's exceptions are DENIED.

We shall vacate the order denying the exceptions and remand the case for further consideration because of our concern, prompted by the language of the order, that the chancellor did not apply his independent judgment to the facts properly found by the master. In Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991), we emphasized the importance of a chancellor's decision in this type of case. We said:

The chancellor's decision in a contested custody case, frequently among the most difficult a judge is called upon to make, is of critical importance. It significantly impacts upon the lives of the parents and children involved. It is unlikely to be overturned on appeal. And, once that decision has been entered as a judgment, it will ordinarily not be modified except upon a showing of a change in circumstances justifying a change in custody to accommodate the best interest of the child.

323 Md. at 492-93, 593 A.2d 1133 (footnote and citation omitted). See also Hadick v. Hadick, 90 Md.App. 740, 743-745, 603 A.2d 915 (1992). In Domingues, we remanded the case for further consideration by the chancellor because the wording of his order suggested he had accepted the master's recommendations upon a finding that they were not clearly erroneous, rather than exercising his independent judgment on those issues. 323 Md. at 493, 593 A.2d 1133.

The order in the case before us similarly suggests that this chancellor accepted the master's recommendations simply because the master's findings of fact were found to be correct. There is no discussion of the issues by the chancellor, and no indication that he applied his independent judgment in reaching the conclusion he did. ²

We also said in Domingues, in commenting upon the responsibility of the chancellor when resolving challenges to a master's findings of fact, that

[t]he chancellor must carefully consider the mother's allegations that certain findings of fact are clearly erroneous, and decide each such question. The chancellor should, in an oral or written opinion, state how he resolved those challenges. Having determined which facts are properly before him, and utilizing accepted principles of law, the chancellor must then exercise independent judgment to determine the proper result.

Id. at 496, 593 A.2d 1133. We now make clear that the oral or written opinion of the chancellor should address as well the issues relating to the conclusions to be drawn from the facts found. Maryland Rule 2-522(a) provides:

In a contested court trial, the judge, before or at the time judgment is entered, shall dictate into the record or prepare and file in the action a brief statement of the reasons for the decision and the basis of determining any damages.

Rule 2-522(a) was derived from former Rule 18 b, which applied to law and equity actions and which required the trial judge in a non-jury case to "dictate to the court stenographer or reporter, or prepare and file in the action a brief statement of the grounds for its decision." A predecessor statute, Article 16, § 209 of the Maryland Code (1951), now repealed, required the chancellor to file an opinion whenever a final order "shall have passed upon argument, oral or in writing, on the part of any of the parties in [an equity case]." It is obvious from the history of the Rule as well as from its express wording that Rule 2-522(a) applies to a final judgment in every non-jury action, whether legal or equitable in nature.

Our predecessors noted the value to an appellate court of a trial judge's opinion in Weaver v. King, Admr., 184 Md. 283, 289-90, 40 A.2d 511 (1945). More recently in Shum v. Gaudreau, 322 Md. 242, 245, 587 A.2d 248 (1991), we reinforced the importance and mandatory nature of a similar rule requiring judges of the circuit court to file a written opinion "stating briefly the decision made on each issue" when deciding appeals on the record from the District Court. We think it is at least as important in a case of this kind that the chancellor's opinion should reflect consideration of the relevant issues and the reasoning supporting the chancellor's independent decisions on those issues, and we observe that Rule 2-522(a) requires no less.

For the guidance of the chancellor upon remand, and because we have had the benefit of full briefing and argument upon the sensitive issues involved in connection with the father's visitation rights, we offer certain comments on those issues.

When Bridgette was born in September of 1981, the father was a Catholic and the mother a Lutheran. According to the mother, the parties orally agreed at that time to raise the child in the Catholic faith, and the child was baptized in that faith. When the child became old enough to attend church, the mother took her to Lutheran services. The father converted to the Methodist religion after the parties were divorced. Religion did not become a problem between the parties until 1989, when the father again changed churches, this time to a fundamentalist Baptist church.

According to the mother, the child began to display signs of anxiety in late 1989. She said the child suffered anxiety attacks and had trouble sleeping just prior to scheduled visitations and would come home from visitations crying. The mother attributed these problems to the child's participation in certain activities of the father's church, and to conflicts arising from the ardor with which the father pursued newly-found fundamentalist beliefs in his conversations and dealings with the child. The mother discussed her concerns with the father and asked him not to take the child to the Baptist church. The father refused this request. The problems continued into the spring of 1990, when the mother discussed her concerns with the child's pediatrician and the child's teacher and, after again being rejected by the father, sought the services of Dr. Ulko Ulger, a psychiatrist with a sub-specialty in child and adolescent psychiatry.

The child was seen by Dr. Ulger in May and has been followed in counseling sessions by Ms. Patricia Schwarcz, a licensed certified social worker under Dr. Ulger's supervision. In July, the mother filed the petition at issue.

The master heard two days of testimony, and concluded that the issue of modification of visitation "is based in part on the decision of the father to involve the minor child in his religious practices." The master concluded that

by compelling the minor child to participate in his religious practices the father is harming the child and that such harm is, in fact, detrimental to her...