Malinowski v. Malinowski, 031219 MDSCA, 2224-2017

Docket Nº:2224-2017
Opinion Judge:SHAW GETER, J.
Party Name:ROBERT MALINOWSKI v. FLORENCE MALINOWSKI
Judge Panel:Fader, C. J. Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
Case Date:March 12, 2019
Court:Court of Special Appeals of Maryland
 
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ROBERT MALINOWSKI

v.

FLORENCE MALINOWSKI

No. 2224-2017

Court of Special Appeals of Maryland

March 12, 2019

Circuit Court for Cecil County Case No.: 07-D-09-000071

Fader, C. J. Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

OPINION [*]

SHAW GETER, J.

In 2010, the Circuit Court for Cecil County granted Mr. Robert Malinowski, appellant/father, and Ms. Florence Lippincott (f/k/a Malinowski), appellee/mother, an absolute divorce that incorporated a consent order regarding custody of their two minor children. Seven years later, in November 2017, the court denied dueling motions to modify custody, finding no material change in circumstances. Mr. Malinowski then filed a motion seeking a new trial, new venue, dismissal of the judgment, and a custody evaluation, which was denied by the court after a hearing. He presents seven questions on appeal, which we quote: 1. Did the trial court abuse [its] discretion in allowing recused Judge Sexton to reenter the case before closing statements?

2. Was the trial court of Cecil County prejudiced against the father after recused Judge Sexton reentered the case to lobby for the mother, Florence Lippincott?

3. Did Judge Baynes make an error in his discussion of his decision by placing weight on the testimony of the Appellee's, Florence Lippincott's, addiction expert after testimony revealed that Florence Lippincott was not truthful with her own expert in a self-reporting exam?

4. Did Judge Baynes make an error in not considering the best interest and safety of the children by not considering the possible use of alcohol mixed with a variety of guns being fired within 50 feet of the home?

5. Did Judge Baynes make an error in not ordering a "Best Interest Attorney" for the children after stating the case may have been different if one had been ordered?

6. Was Judge Baynes attempting to deny due process while abusing discretion during the January 4, 2018 hearing for a Motion for New Trial, New Venue, Dismissal of Judgment, and Custody Evaluation?

7. Did Judge Baynes make an error in dismissing the motion for new trial, custody evaluation, new venue when he dismissed for improper filing time?

Ms. Lippincott filed a cross appeal and in her brief addresses all seven of Mr. Malinowski's questions and presents one additional one for our review: 1. Did the trial court err when Judge Baynes functionally vacated Judge Murray's Order of June 9, 2017, thereby allowing the appellant to introduce evidence of his income at trial?

For reasons to be discussed, we find no merit in either party's contentions and affirm the judgment.

BACKGROUND

In December 2009, the parties agreed by consent order to joint legal and shared physical custody of their two minor children, operating on a one week on, one week off schedule. That order was incorporated into the parties' judgment for absolute divorce in April of 2010. In 2016, Mr. Malinowski filed a motion to modify custody and visitation alleging that his eldest child, S.M., wished to live with him fulltime. He also filed a separate request for modification of school enrollment, stating that both children wished to attend school in his district. At this time, the children were about 11 and 9 years old, respectively. Ms. Lippincott also filed a motion to modify custody seeking sole custody of the children and a recalculation of the child support obligations. In the motions, Mr. Malinowski and Ms. Lippincott each sought full custody of their children. Each parent alleged obtaining full custody was in the best interest of their children because the other parent was uncooperative regarding co-parenting decisions, talked maliciously about the other to the children, and alienated the other parent. In August 2017, a hearing on the dueling motions to modify was held.

After three days of testimony, the court found that there was no material change in circumstances and ordered that the 50/50 custody arrangement remain unchanged. The court did not alter child support at that time, but ordered that a child support hearing be scheduled for a future date. A few days after the ruling, Mr. Malinowski filed a motion for a "New Trial, New Venue, Custody Evaluation, and to Dismiss the Judgment." The court denied the motion after hearing argument by both parties.

DISCUSSION

Mr. Malinowski essentially makes five assertions on appeal: that (1) Judge Baynes erred when he spoke with Judge Sexton, off the record, before closing statements at the hearing on the motions to modify; (2) the court erred in assessing credibility of the testimony at that same hearing; (3) the court erred...

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