Leary v. Leary

• Decision Date: 01 September 1992
• Docket Number: No. 1558,1558
• Citation: 627 A.2d 30,97 Md.App. 26
• Parties: Richard J. LEARY, III v. Barbara C. LEARY. ,
• Court: Court of Special Appeals of Maryland

Page 26

97 Md.App. 26

627 A.2d 30

Richard J. LEARY, III v. Barbara C. LEARY.

No. 1558, Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 6, 1993.

[627 A.2d 32]

Barbara R. Trader (Adkins, Potts & Smethurst, on the brief), Salisbury, for appellant

Robert B. Fine, Salisbury, for appellee.

Argued before MOYLAN and FISCHER, JJ., and ROSALYN B. BELL, Judge (Retired) Specially Assigned.

ROSALYN B. BELL, Judge, (Retired) Specially Assigned.

Appellant, Richard J. Leary, III, asks us to resolve several issues raised by his divorce from appellee, Barbara C. Leary. The main issues in this case focus on the custody of the parties' two minor children. These issues were decided by a judge in the Circuit Court for Wicomico County. Mr. Leary has appealed, contending that the trial court erred:

-in failing to enter a judgment of absolute divorce in his favor;

-in awarding Ms. Leary sole legal custody of the children when she had testified that she was asking the court to award joint legal custody;

-in failing to instruct the children's counsel as to her duties and whether that error was further magnified by counsel's failure to represent her clients adequately;

-in failing to strike the testimony and report of the children's counsel because they were hearsay;

-in failing to conduct an in camera examination of the children;

-in refusing to accept Katherine Kennan as an expert witness; and

-in awarding sole physical custody to Ms. Leary and undefined "reasonable" visitation to Mr. Leary.

After reviewing the trial judge's decision declining to award joint custody, we hold he was not clearly erroneous in making his factual findings, nor did he abuse his discretion. While we will affirm the trial judge's decisions on the issues of custody, counsel for the children, and the expert witness, we do conclude that the trial judge erred in failing to resolve the divorce issue between the parties. Hence, we remand the case to determine that issue. For purposes of clarity, we will deal with the three issues relating to counsel for the children together.

THE FACTS

Richard and Barbara Leary married in 1973. They have two children, Brendan, age 12, and Barry, age 10. After a number of years of family discord, Ms. Leary left the family home with the children on or about January 27, 1989. Mr. Leary filed a complaint on April 26, 1989, seeking custody of the two children and a divorce on the grounds of desertion and adultery. Ms. Leary filed an answer, also seeking custody of the children and denying the desertion. On or about February 14, 1991, Ms. Leary filed a counterclaim for absolute divorce, alleging a two-year separation; Mr. Leary answered, denying that allegation. Mr. Leary later filed a supplemental complaint, alleging, in addition to the grounds originally stated, a two-year separation. The parties also sought financial relief, but resolved those issues before trial. On July 27, 1992, the trial judge issued an opinion and order granting custody of the two children to Ms. Leary. A divorce decree was not a part of that order. ¹ We will recite additional facts as they become relevant.

[627 A.2d 33]

THE DIVORCE

The trial judge stated in his opinion and order of July 21, 1992 that "all issues concerning absolute divorce ... have been resolved by agreement." He made no finding on the facts supporting any of the grounds alleged and entered no order of divorce. Mr. Leary contends that the trial court's statement is in error because the parties contested the grounds for divorce in their pleadings and at trial. In addition, Mr. Leary contends that the court must adjudicate the legal rights of the parties based upon the actions the parties have taken, Flohr v. Flohr, 195 Md. 482, 488, 73 A.2d 874 (1950), and not upon what may have been agreed.

Historically in Maryland, divorce was a legislative function, obtained only by an Act of Assembly. In 1841, the Legislature enacted the first general divorce statute, giving equity courts the jurisdiction to decree divorce on grounds of impotence, illegality, adultery, or abandonment. Since the case of Wright v. Wright's Lessee, 2 Md. 429, 448 (1852), the Court of Appeals has acknowledged that the equity courts' jurisdiction to grant a divorce decree is limited to the grounds specifically enumerated in the statute.

Grounds for an absolute divorce in Maryland have expanded to include voluntary separation, conviction of a felony, two-year separation, and insanity. Md.Fam.Law Code Ann. § 7-103 (1984, 1991 Repl.Vol.). Parties can agree to separate voluntarily and, if the agreement is executed under oath before the complaint for divorce is filed, that agreement is full corroboration of the plaintiff's testimony that the separation was voluntary. Md.Fam.Law Code Ann. § 8-104 (1984, 1991 Repl.Vol.). In the instant case, while neither party saw fit to include the "agreement" resolving the divorce issue referred to by the trial judge, we did locate a stipulation dated

May 7, 1992 in the transcript of the record. That stipulation does not, however, remotely relate to the grounds for divorce

Despite § 8-104, the court may not grant a divorce based simply upon the agreement of the parties. Dougherty v. Dougherty, 187 Md. 21, 29-30, 48 A.2d 451 (1946). The plaintiff must testify, Md.Fam.Law Code Ann. § 1-203(c) (1984, 1991 Repl.Vol.), and that testimony must be corroborated. Md.Fam.Law Code Ann. § 7-101(b) (1984, 1991 Repl.Vol.). The court cannot simply allow the parties to agree to divorce; the court has a duty to listen to the testimony, adjudicate the legal rights of the parties, and, where appropriate, enter a judgment of divorce. Flohr, 195 Md. at 488, 73 A.2d 874.

Therefore, we must remand the case in order for the trial judge to consider the issue of divorce. If grounds were established by either party, the trial judge should make appropriate findings and award a decree to the proper party, specifying the grounds upon which it was based. Borne v. Borne, 33 Md.App. 578, 588, 365 A.2d 359 (1976). In light of our holding in Noffsinger v. Noffsinger, 95 Md.App. 265, 279-80, 620 A.2d 415 (1993), relative to stale testimony ² and, in view of the substantial time that has passed since the hearing in the instant case, the trial judge should at least consider the constraints of Rule S75, as it relates to stale testimony.

[627 A.2d 34]

CUSTODY

--The Award of Sole Legal Custody Where Joint Custody Was Sought--

At the hearing on October 31, 1992, during direct examination, Ms. Leary stated that she wished the court to award joint legal custody:

"Q You're asking the Court to award you joint legal custody, is that correct?

"A That's correct.

"Q And you know what joint legal custody is.

"A Yes, I do.

"Q Do you believe that you and Mr. Leary can work together on major decisions affecting the children's lives?

"A Yes, I think so.

"Q Such as education.

"A Yes.

"Q And religion.

"A (Shaking head yes.)

"Q And moral values.

"A And moral values, yes."

At the hearing on May 18, 1992, however, Ms. Leary asked the court to make her primary physical custodian of the children because she felt that the children would be better off living with her in her home during the school year. Mr. Leary, on the other hand, in his pleadings sought sole custody. ³ The trial judge denied Mr. Leary's sole custody request and ordered, "Case [sic] and custody of the minor children ... be awarded to Barbara C. Leary." Mr. Leary is unhappy about this and points to Ms. Leary's testimony to vindicate his position that the trial judge should, at a minimum, have awarded joint custody of the children.

The trial judge has the authority to determine custody, regardless of whether "joint custody has existed in the past, or award custody to one of the parents, or to a third person, depending upon what is in the best interests of the child." Taylor v. Taylor, 306 Md. 290, 301, 508 A.2d 964 (1986). The Court of Appeals in Taylor, 306 Md. at 296, 508 A.2d 964, stated:

"Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare."

The Court in Taylor went on to state that "joint legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other." In determining the propriety of joint custody, the Court opined that "joint custody is not appropriate in every case. Indeed, it has been suggested that it is appropriate only in a small minority of cases." Taylor, 306 Md. at 302-03, 508 A.2d 964. The most important factor in determining whether an award of joint legal custody is appropriate is the capacity of the parents to communicate and to reach shared decisions affecting the child's welfare. According to the Taylor Court,

"[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future."

Taylor, 306 Md. at 304, 508 A.2d 964.

In the instant case, the trial judge had ample opportunity to observe the parties and to determine whether the parties could effectively communicate. The trial judge found, in pertinent part:

"From the testimony, it is evident to the Court that Mrs. Leary appears to be the primary party responsible for taking the children to the dentist and the doctor and caring for their needs in this regard. She has additionally assumed

the costs for uncovered medical & dental expenses. (This may occur because her income is above his; Mr. Leary has not[,] however, [627 A.2d 35] contributed even though this has been requested.)

"The parents are both devoted and dedicated to their children; and...