Miller v. Mathias

• Decision Date: 27 August 2012
• Docket Number: No. 146,Sept. Term, 2008.,146
• Citation: 428 Md. 419,52 A.3d 53
• Parties: Joseph D. MILLER v. Amanda Lee MATHIAS.
• Court: Maryland Court of Appeals

428 Md. 419

52 A.3d 53

Joseph D. MILLER

v.Amanda Lee MATHIAS.

No. 146, Sept. Term, 2008.

Court of Appeals of Maryland.

Aug. 27, 2012.

Jonathan S. Shurberg (Jonathan S. Shurberg, P.C., Silver Spring, MD), on brief, for appellant.

Daniel L. Owel (Paradiso, Taub, Sinay & Owel, P.C., Bethesda, MD), on brief, for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY^*, ADKINS and BARBERA, JJ.

BELL, C.J.

The appellant, Joseph D. Miller, in this case, presents three issues for review: whether the Circuit Court for Montgomery County erred in granting the Motion To Alter Or Amend, Or Alternatively To Revise Judgment, filed by the appellee, Amanda Lee Mathias, prior to when the answer was due, pursuant to Maryland Rule 2–311(b),¹ and, therefore, without first receiving and considering that answer during an in-person hearing pursuant to Maryland Rule 2–311(e),² whether the “inconvenient forum” provisions of Maryland Code (1984, 2006 Repl.Vol.), § 9.5–207 ³ of the Family Law Article apply to a child custody case in which the court has acquired “continuing, exclusive jurisdiction” pursuant to § 9.5–202⁴ of the same article; and whether, if the inconvenient forum provisions are applicable, the Circuit Court properly applied them or abused its discretion in doing so. We shall affirm the judgment of the Circuit Court. First we reject the appellant's arguments based on Rule 2–311(b) and (e), and hold that the court was not required to hold a hearing prior to granting the appellee's motion seeking to revise the court's dismissal of her action, and, in any event, the appellant suffered no prejudice. We also hold that § 9.5–207 of the Family Law Article clearly and unambiguously contemplates that a party or a court, upon motion, will raise the issue of inconvenient forum, even when the jurisdiction of the court is continuing and exclusive, pursuant to § 9.5–202. Finally, we shall hold that the Circuit Court did not abuse its discretion when it found Maryland to be an inconvenient forum for the underlying child custody dispute and therefore relinquished its jurisdiction to Virginia.

I. Background

The appellant and the appellee are the parents of a minor child, whose custody, legal and physical, they agreed to share. That joint custody agreement, contained in the Child Custody, Visitation And Child Support Agreement, executed when the parties both resided in Maryland, was incorporated, but not merged, into a Court Order of the Circuit Court and provided that “[t]he parties jointly agree that regardlessof the precise number of hours each party shall have custody of the minor child as set forth herein, neither party shall be deemed to have primary residential custody of the minor child.” Also addressed by the parties in that agreement was how future disputes arising under the agreement would be settled. Section III, entitled “Miscellaneous,” article 5, a mediation clause, indicates that they opted for mediation as the preferred dispute resolution mechanism.⁵ It provides:

“ Settlement of Future Disputes. The parties recognize that disagreements may arise between them in the future, and they agree to attempt to settle these disagreements without court action to the fullest extent that may be possible. If the parties cannot resolve a controversy as to the modification, interpretation or alleged breach of this Agreement, they agree to first attempt to resolve the controversy in three (3) hours of mediation with mutually agreed upon mediator and to share equally the costs of the mediation. In the event they are unable to resolve the controversy through mediation, either party may apply to a court of competent jurisdiction for resolution of the issue.”

Although when the agreement was signed, the parties both resided in Maryland, it was known and contemplated that the appellee would be moving to Virginia with her new husband. Now the appellant lives in Takoma Park, Maryland, while the appellee lives in Burke, Virginia, in Fairfax County, in northern Virginia.

For approximately two years, the circumstances of the parties remained unchanged. Thereafter, without first pursuing the mediation option, the appellee, who had, by then, moved to, and was living in, Virginia, filed, in the Juvenile and Domestic Relations Court of Fairfax County, Virginia, a Motion to Modify Custody. Concurrently, again without resorting to mediation, she filed, in the Circuit Court for Montgomery County, a Motion to Relinquish Jurisdiction to the Commonwealth of Virginia. In the Maryland motion, while acknowledging that, pursuant to 28 U.S.C. § 1738(A)(f), the Parental Kidnapping Prevention Act, and § 9.5–202, the Circuit Court, because it made the initial custody determination and the appellant continues to reside in the State, had “exclusive, continuing jurisdiction,” the appellee averred that the court could relinquish such jurisdiction “if it finds that it is an inconvenient forum,” offering a number of reasons why she believed the court to be an inconvenient forum.⁶ Specifically, the appellee averred:

“I. The nature and location of much of the evidence required to resolve the pending litigation is in the Commonwealth of Virginia, first and foremost, the child's school, health care professionals and church.

“J. The Plaintiff and the minor child have been attending a 21–week program in Fairfax County called ‘Nurturing Parenting,’ and the social workers associated with the program are expected to be witnesses in the custody action between the parties.

“K. Therefore, most of the witnesses essential in a custody and visitation proceeding such as teachers, doctors, therapists and coaches, are all in Virginia. It would be unduly burdensome for these witnesses to have to travel to Maryland to testify and unnecessarily costly for the Plaintiff to have to compensate professional witnesses for their time and their travel.

“L. The balance of hardships in terms of witnesses and evidence weighs heavily in favor of the Plaintiff.”

The appellant responded to both actions.⁷ The unifying theme of the motion he filed in the Virginia action to dismiss on jurisdictional grounds and the Opposition To Motion To Relinquish Jurisdiction To The Commonwealth Of Virginia, Or In The Alternative, Motion For Stay Of Proceedings, filed in the Circuit Court, was the allegation that the Maryland court had, and retained, “exclusive, continuing jurisdiction” of their child custody matter. As indicated, the appellee did not dispute this fact. The appellant, however, rejected the applicability of the inconvenient forum provision to that situation, where the custody decision has been made by the court which retains “exclusive, continuing jurisdiction.” Interpreting § 9.5–207 as being applicable only “in the circumstances of an initial custody determination, not a motion to modify a prior determination,” he argued:

“The issue is not whether the Court should ‘make a child custody determination,’ that was done in July 2006, by consent. Rather, the issue is whether the Court has ‘exclusive, continuing jurisdiction’ pursuant to § 9.5–202—Plaintiff freely acknowledges that this Court does have such jurisdiction, and that is and should be the end of this Court's inquiry. It makes a mockery of the term ‘exclusive, continuing jurisdiction’ to argue that such jurisdiction is neither exclusive nor continuing, yet that is precisely what the Plaintiff argues.”

The Circuit Court, upon consideration of the appellee's motion, the appellant's opposition and the entire court record, and without a hearing, denied the appellee's Motion to Relinquish. On the same day, the Virginia Court “denied [the appellant's motion to dismiss] without prejudice at this time,” stayed the proceedings and “Adjudged, Ordered and Decreed ...”

“1. As soon as a judge is appointed in the [appellee's] Motion to Relinquish Jurisdiction to Virginia, currently pending in the Montgomery County Circuit Court in MontgomeryCounty, Maryland,case number 52467–FL, counsel for [the appellee] shall immediately notify [the appellant's] counsel.

“2. The Honorable David S. Schell shall communicate with the presiding judge in Maryland on the question of jurisdiction pursuant to § 20–143.17 ⁸ and § 20–146.9 ⁹ of the Code of Virginia, 1950, as amended. Counsel shall set up a conference call between Judge Schell and the Maryland Judge. All parties shall be present at the communication and a record of said communication shall be made. Said communication shall take place via conference call, with Judge Schell appearing via telephone from Virginia.”

On August 1, 2008, 16 days after the Circuit Court entered its order denying her motion to relinquish jurisdiction, the appellee filed in that court a “Motion to Alter or Amend, or Alternatively to Revise Judgment.” In that motion, citing § 9.5–206(b)(2),¹⁰ as consistent, she referenced, and attached, the initial Virginia Court Order, as well as the Order issued subsequently by the next judge assigned to the case, which indicated that

“Both counsel ... agree that the Courts in Maryland and Virginia have not communicated per the requirements of UCCJEA. The Court will set two status hearings (8–6–08 9:30 A.M. and 9–22–08 11:40 A.M.) and counsel shall coordinate with Maryland to allow the two Courts to resolve jurisdiction.”

For those reasons, the appellee

“Request[ed] that the Court vacate its July 15, 2008 Order and allow this matter to proceed in accordance with the Orders issued by the Virginia Court; that is, that a telephone conference take place and that Judges from the respective Courts communicate with each other, with the parties and counsel participating, to determine where jurisdiction and venue are appropriate.”

The communication between the Maryland and Virginia courts occurred in the form of a telephone conference call hearing, initiated in Virginia and lasting approximately 20 minutes. In addition to Judge Ann Harrington of the Circuit Court and Judge Gayle B. Carr of the...