Koshko v. Haining, 1302, September Term, 2005.

• Court: Court of Special Appeals of Maryland
• Citation: 897 A.2d 866,168 Md. App. 556
• Docket Number: No. 1302, September Term, 2005.,1302, September Term, 2005.
• Parties: Glen KOSHKO et ux. v. John HAINING et ux.
• Decision Date: 02 May 2006

897 A.2d 866 168 Md. App. 556 Glen KOSHKO et ux.
v.
John HAINING et ux. No. 1302, September Term, 2005. Court of Special Appeals of Maryland. May 2, 2006.

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Peter D. McDowell, Towson, for appellant.

Stephen J. Kleeman, Towson, for appellee.

Argued before ADKINS, KRAUSER and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

RODOWSKY, J.

This is a grandchildren-grandparents visitation case. The Circuit Court for Baltimore County ordered visitation with the appellees, John Haining (John) and Maureen Haining (Maureen) (sometimes collectively referred to as "Grandparents"), over the opposition to any visitation by the appellants, Glen Koshko (Glen) and Andrea Koshko (Andrea) (sometimes collectively referred to as "Parents"). Andrea is the oldest of the four children of the Hainings. Andrea is the mother of three children: Kaelyn (DOB 9/26/94), Haley (DOB 8/21/99), and Aiden (DOB 12/19/02) (the Children). Appellants contend that Maryland's Grandparent Visitation Statute (GVS), Maryland Code (1984, 2004 Repl. Vol.), § 9-102 of the Family Law Article (FL), is facially unconstitutional, or was unconstitutionally applied in this case to fit parents in an intact family.¹

We set forth the facts in the light most favorable to the Grandparents as the prevailing parties.² Andrea was raised in Middleton, New Jersey. At age eighteen she left home, "to get away," together with her then boyfriend, James Atkats. They lived in Florida where Andrea became pregnant with their child, Kaelyn. James Atkats abandoned Andrea, who then returned to the Haining family home in Middleton. James Atkats has never played any role in Kaelyn's life.³ After Kaelyn was born, Andrea and Kaelyn continued to reside in the Haining family home until 1997, when Kaelyn was three years old. During this period, Andrea worked as a waitress in the evening, and the Hainings actively participated in the care and raising of Kaelyn. Maureen described her participation as co-parenting.

Also during this period, Andrea and Glen began dating. In September 1997, Andrea moved out of the family home, and she, Glen, and Kaelyn lived in Point Pleasant, New Jersey. Their home was about a half-hour drive from the Grandparents,

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and Maureen saw Kaelyn "quite often." "[A] lot of times" Maureen would take Kaelyn out for the day.

Andrea and Glen became engaged to be married. The Hainings were prepared to pay for a formal wedding, with reception, but the couple, sometime in 1998, eloped. Andrea testified that the couple were anxious to bring Kaelyn under the health insurance coverage available through Glen's employment. The couple, over time, reimbursed the Hainings for the $2,000 deposit with a catering facility that was lost when the formal wedding was cancelled.

In about June 1999, the Parents, with Kaelyn, moved to Baltimore County, Maryland in connection with Glen's employment. At that time Kaelyn was three months shy of age five. They have resided in Baltimore County ever since. Haley and Aiden were born in Maryland.

Despite the approximately 150 miles separating the two households, the Children had a close relationship with the Grandparents until October of 2003. Sometimes the Grandparents visited at the Parents' home; other times the Parents drove the Children to the Grandparents' home. The parties agree that the Children saw their maternal grandparents approximately once a month. Further, between visits, the Children and the Grandparents maintained a relationship by telephone and through cards and letters.

To evidence that the relationship continued after the Koshkos moved to Maryland, the Grandparents produced photo albums, videos, and E-Z Pass billings. The circuit court also received into evidence a log, prepared by the Grandparents, demonstrating that they visited with the Children thirty-one times in the thirty month period between May 2001 and October 2003. These visits included two overnight stays by the Grandparents at the Parents' home and fourteen overnights at the Grandparents' home. On seven of these fourteen overnights the Children stayed without their Parents. Indeed, the Children kept toothbrushes at the Grandparents' home. The last of these Children-only visits was from October 9 to October 13, 2003, while Parents were at Glen's college homecoming in South Carolina.

In October 2003, Glen's mother was hospitalized in New Jersey with terminal cancer. She died in early December of that year. Maureen's own mother had died from cancer, and Maureen was emotional about the condition of Glen's mother. Glen did not visit his mother when one, the other, or both Parents delivered and picked up the Children in connection with the five day stay during homecoming. On the following Thursday, Maureen spoke to Andrea about this. Maureen offered to watch the Children if Parents came to New Jersey to see Glen's mother. Andrea said, "`No, Glen is not coming up. Glen is having a birthday party.'" Maureen pointed out that Glen's mother would not live much longer and that the Parents had gone away for four days the preceding weekend. At that point Glen came on the telephone and, Maureen testified, the following conversation ensued.

GLEN: "`You got something to say to me?'"

MAUREEN: "`Yeah, I'm just concerned. [Your] mother is dying, and you're acting like an asshole.'"

GLEN: "`It's none of your goddamn business.... You are not going to see your fucking grandchildren again.'"

Glen slammed the phone down.

When Maureen told John of the conversation with Glen, John first spoke to Andrea, who confirmed to him what Glen had said. John then unsuccessfully attempted to reach Glen on the latter's cell phone, but left a message telling Glen that he, John, was going to come down to Maryland

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"to knock some sense into him[,] to crack him [in the head] that evening."

At the time of this October 2003 incident, Andrea's sister, Tracey, was engaged to be married in August 2004. Tracey planned for the Children to be part of the wedding party. On November 17, 2003, Tracey wrote to Andrea urging that Andrea at least permit the Children to participate. Tracey offered to transport them and arrange for their wedding outfits. She received no reply.

On December 12, John e-mailed Glen and Andrea, apologized for "going off the handle and wanting to `crack'" Glen, and urged that Parents and Grandparents "sit down and talk." He said, "We Love you guys and, as you said in your Mom's eulogy Glen—life is too precious and short."

Through telephone calls and e-mails, and utilizing friends as intermediaries, Grandparents sought to restore the relationship with the Koshko family. On Valentine's Day, after being in Washington, D.C., they stopped by Parents' home, unannounced, and left gifts on the door step. They employed an attorney who wrote to the Parents on February 27, 2004, suggesting mediation. In April 2004, Parents offered to permit Grandparents to visit once with the Children, but would not commit themselves as to whether any subsequent visits could take place.

Kaelyn was nine years old, Haley age four, and Aiden about age two when the relationship between the parties ruptured in October 2003. The subject action was filed April 19, 2004, and tried on July 19 and 20, 2005. There was no expert testimony.

On cross-examination, Andrea acknowledged that, prior to the rupture, Kaelyn and Maureen had carried on a correspondence. The following colloquy then took place:

"Q So, tell the Court what did you tell your daughter when you just cut her grandparents out of their life, what did you tell her?

"A I didn't say anything.

"Q Just didn't talk about it?

"A Right.

"Q She never asked you one question about your parents, that's what you told me at the deposition?

"A She has not.

"Q You're under oath. Not a single question?

"A No, we have not talked about it. We have not talked about it.

"Q How do you answer that?

"A She has not asked me anything.

"Q Nothing?

"A Nothing, no.

"Q You think that's a healthy thing for her?

"A I don't know if it's healthy."

Focusing on the status of the Maureen-Kaelyn correspondence following the rupture, counsel for Grandparents asked Andrea:

"Q Have your parents written her since the problem?

"A Yes.

"Q What happens with those letters?

"A They were not letters, they would just send cards.

"Q What would happen to them?

"A Because of the escalation and fighting, I thought it might be best if she not see them.

"Q So, you hid them from her?

"A I didn't hide them from her.

"Q What did you do with them.

"A I didn't give them to her.

"Q What do you [do] with them?

"A I put them aside.

"Q Just to obliterate them from her life?

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"A What I'm trying to do is make more peace with everything, because she might start asking questions. So, I'm keeping her out of it. I am keeping her out of it at this point. Because of the position we are in, I thought it would be best. That was my opinion.

"Q You don't think an 8, 9 or 10-year-old child is able to understand when two people completely disappear out of her life? She has not asked you one question?

"A She really hasn't."

The circuit court delivered an oral opinion at the conclusion of the evidence. It found this testimony to be "credible" but "troubling." After explaining its legal reasoning, the court interwove a program of counseling with its visitation order.

Before describing the circuit court's rationale, it will be helpful to review Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the background against which this case was argued in the circuit court and here.

Troxel

Troxel involved a statute of the State of Washington which, in terms, permitted any person, at any time, to obtain court-ordered visitation if the court concluded that visitation was in the best interest of the child. The custodial parent, the mother, did not oppose entirely visitation by the grandparents, so long...