Levitt v. Levitt

• Decision Date: 01 September 1988
• Docket Number: No. 1274,1274
• Citation: 556 A.2d 1162,79 Md.App. 394
• Parties: Keith N. LEVITT v. Holly A. LEVITT. ,
• Court: Court of Special Appeals of Maryland

Page 394

79 Md.App. 394

556 A.2d 1162

Keith N. LEVITT v. Holly A. LEVITT.

No. 1274, Sept. Term, 1988.

Court of Special Appeals of Maryland.

May 2, 1989.

Gary H. Simpson (Alvin M. Ehrlich and Simpson & Ehrlich, P.A., on the brief), Bethesda, for appellant.

Ralph E. Hall, Jr., Rockville, for appellee.

Argued before BISHOP, ROSALYN B. BELL and POLLITT, JJ.

ROSALYN B. BELL, Judge.

Five-year-old Chad needs (1) parents who put his needs ahead of their own. He also needs (2) a lawyer. He has none of these. We are not able to provide him with the first, but we will furnish him the second.

A Master of the Circuit Court for Montgomery County recommended that the custody of Chad be changed from a form of joint custody to the sole custody of the father. The Chancellor disagreed and continued the custody as it had existed, but did increase the visitation of the father. We hold the record inadequate and remand for further proceedings.

In 1985, after a short and intensely stormy marriage, Keith and Holly Levitt sought a divorce. While a pendente lite hearing was in progress, they entered into a separation agreement in which they settled the custody of their then two-year-old son, Chad. They agreed to child support of $250 per month and alimony of $1,750 for 200 months. It is difficult to put a name to the type of custody arrangement the parties devised; counsel refer to it as serial or joint custody. Regardless of the name, the parties agreed that Chad would live with his mother. He was to be with his father on alternate weekends from Friday afternoon to Sunday at 7:00 p.m., Wednesday evenings until 9:00 p.m., and two weeks a year. The paternal grandparents were also to have the child one week per year. The parties would share all holidays, except the father was entitled to all Jewish holidays. ¹ The divorce was granted on October 30, 1986. In retrospect, this agreement seems to have served primarily to establish a new area in which the parties could continue their on-going controversies. Four separate Rules to Show Cause came before the Master, seeking various forms of relief, including modifications of custody on both sides and charges of contempt. Keith Levitt filed a Motion for a Change of Custody in September of 1987, alleging that Holly Levitt had violated a prior consent order which had been issued to remedy many of the visitation problems that had arisen since the divorce. Specifically, Keith alleged that Holly had failed to maintain a telephone answering machine ² and made harassing telephone calls to Keith at the hospital where he worked as an anesthesiologist. Keith alleged that Holly had interfered with visitation by sometimes refusing to let Chad go with him on regularly scheduled visiting days. His application for change of custody also alleged that Holly refused to transport Chad either to or from Keith's place of residence. Hearings were held before the Master, ³ who found that it was not in Chad's best interests to remain with his mother. The Master also found that joint custody was not appropriate.

The Master recommended that Keith be awarded custody of Chad, with reasonable rights of visitation reserved to his mother and that Keith pay to Holly as attorney's fees the sum of $6,000 plus $1,368.85 as deposition costs plus $60 for private process server's fees. The Master denied Holly's request that she be allowed to keep custody of Chad and move to Florida where her family resided. Holly had also requested that the Master modify the consent agreement to provide dates and certain times, and that Keith be required to increase child support, visitation and alimony; the Master denied the relief requested by Holly.

Exceptions were filed and granted at a hearing at which no added testimony was taken. The Chancellor ordered:

"that the child shall reside with the Defendant during the school year and during that time he will visit the father on the first, second and third weekends of each month from 5:00 p.m. Friday to 7:00 p.m. on Sunday; and it is further

"ORDERED that the child shall reside with the father during summer vacation time and that during that time he will visit with the mother on the first, second and third weekends of each month from 5:00 p.m. Friday to 7:00 p.m. on Sunday...."

He further specified whose responsibility it was to pick up and deliver the child to the other parent, a specific holiday and birthday visitation including specific dates and hours, and concluded by ordering that Chad have uninhibited telephone access to each parent.

--Change of Custody--

We are dealing here not with an original award of custody, but with a change of custody. They are quite different situations. They should be different, recognizing the importance of the child's need for continuity. Basically, if a child is doing well in the custodial environment, the custody will not ordinarily be changed.

In Sartoph v. Sartoph, 31 Md.App. 58, 66-67, 354 A.2d 467, cert. denied, 278 Md. 732 (1976), Judge Davidson opined for this Court:

"The custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child. To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not of the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests." (Footnotes omitted.) (Emphasis added.)

In Jordan v. Jordan, 50 Md.App. 437, 443, 439 A.2d 26, cert. denied, 293 Md. 332 (1982), after quoting the above passage with approval, this Court said:

"The burden is on the appellant, who affirmatively seeks action by the chancellor in changing the custody of the minor child, to show why the court should take that action, and, if he fails to meet that burden, the action should not be taken." (Citation omitted.)

--Deference to the Master's Fact Finding--

Deference will be accorded to the facts as found by the Master, but this only applies to "first-level" facts. First-level facts are those that answer the What?, Where? and How? questions. Deference is not accorded to "second-level" facts or to recommendations. Second-level facts are ultimate conclusions drawn from the first-level facts. See In re Danielle, 78 Md.App. 41, 60-61, 552 A.2d 570 (1989). Second-level facts are conclusions and inferences drawn from first-level facts. A first-level fact would be that one or both parents used drugs. A second-level fact would be that that use did or did not affect Chad. A recommendation would be a change or lack of change of custody.

As Judge Moylan opined for this Court in Wenger v. Wenger, 42 Md.App. 596, 607, 402 A.2d 94 (1979):

"A chancellor may defer to the master on such first-level facts as that a husband makes $50,000 a year; the yearly orthodontia bill is $1500; the rent is $300 a month; the bank account of thus and so is thus and so. On the other hand, such second-level, conclusory 'facts' as the wife's ultimate need or the husband's ultimate ability to pay are dispositional in nature and are the ultimate province of the chancellor."

We contrast the proper function of the Master with that of the Chancellor. The Master's primary responsibility is to develop the first-level facts. "In the interest of conserving valuable judicial resources, much laborious and time-consuming fact-finding has traditionally been carried on in the equity courts by masters (including auditors, referees, commissioners and examiners.)" Wenger, 42 Md.App. at 603-04, 402 A.2d 94. In order properly to find first-level facts, the Master, of course, is required to assess the credibility of the witnesses who testify. After establishing the factual record, the Master may then draw conclusions from the first-level facts and use these conclusions to make recommendations, which the Chancellor is free to disregard. It is the Chancellor's responsibility, not the Master's, to determine finally the parties' rights. Simply put, the Master is a ministerial and not a judicial officer. Wenger, 42 Md.App. at 602, 402 A.2d 94.

It is these first-level facts found by the Master which form the base on which the Chancellor makes his or her judicial determination. The Chancellor may choose to rely exclusively on the factual report of the Master and should defer to the fact-finding of the Master where that fact-finding is supported by credible evidence. If the Chancellor finds the Master's factual base inadequate, the Chancellor may remand to the Master or the Chancellor may conduct a de novo hearing, again so that a sound factual base exists for the ultimate determination. ⁴ We turn then to the instant case.

To reverse the Chancellor, we must conclude that the Master's first-level fact finding could lead to only one conclusion--namely, that these facts establish a change of circumstances affecting the welfare of the child which necessitate a change of custody. We do not so conclude. Nor do we know why the Chancellor recommended such a diametrically opposite disposition from that recommended by the Master. Without those reasons or some additional evidence on the record, we are at a loss to review the Chancellor's decision.

In his Report and Recommendations, the Master made the following "findings of fact":

"1. That it is not in the best interests of this minor child that he remain in the home of the [mother] acting as the custodial parent.

"2. That joint custody is not appropriate in this case.

"3. That the attitude of the [mother] towards the child and the [father] deprive the child of the necessary guidelines to develop in a normal manner.

"4. That the [mother] does not want to live in this area.

"5. That the [mother] has no immediate family in...