Mitchell v. Mitchell

• Decision Date: 01 September 1984
• Docket Number: No. 497,497
• Citation: 61 Md.App. 535,487 A.2d 680
• Parties: Lynne W. MITCHELL v. Paul Alan MITCHELL. ,
• Court: Court of Special Appeals of Maryland

Page 535

61 Md.App. 535

487 A.2d 680

Lynne W. MITCHELL v. Paul Alan MITCHELL.

No. 497, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Feb. 8, 1985.

Alan B. Moldawer, Rockville, for appellant.

Barry H. Helfand, Rockville, for appellee.

Argued before BISHOP, GETTY and KARWACKI, JJ.

BISHOP, Judge.

Lynne W. Mitchell appeals an order of the Circuit Court for Montgomery County (Calvin R. Sanders, J.) which granted appellee, Paul A. Mitchell, exclusive temporary custody of the parties' children "pending any further hearings on the issues of custody and related matters...." See, Md.Cts. & Jud.Proc.Code Ann. § 12-303(3)(x) (1984 Cum.Supp.); Etter v. Etter, 43 Md.App. 395, 397-98, 405 A.2d 760 (1979). She also challenges the court's finding of contempt which was based upon her taking the children out of the jurisdiction in violation of a previously issued order regarding custody of the children.

Lynne and Paul Mitchell were married in 1977 and have two children--Leigh, age eight, and Kathleen, age five. The parties separated in April, 1982, and thereafter each filed a bill of complaint seeking a divorce a mensa et thoro and custody of the two children.

On September 8, 1982, a "Consent Order" was entered regarding custody and child support, pendent lite. Both parties consented to this order through their respective attorneys. The order, signed by a circuit court judge, was filed with the Clerk of the Circuit Court for Montgomery County. The order provided, in pertinent part,

ORDERED, pendente lite, that the parties shall have joint custody and control of the minor children, subject to the following:

(a) That the children shall reside with the wife [subject to certain exceptions not at issue here]

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(e)(i) In order that each party's rights may not be impaired, each shall maintain a residence within a radius of fifty (50) miles of the City of Rockville. This provision, however, shall not prevent either party from taking the children on brief trips.

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(iii) If for any reason, one party desires to establish a residence outside the aforesaid radius, that party shall consult with the other and endeavor to secure his or her written consent thereto. Such consent shall not be unreasonably withheld. If such consent is not forthcoming, and the moving party wishes to pursue the matter, such party shall file for such release in the Circuit Court in any county in the State of Maryland in which that party and the minor children reside. In the event either party moves without the written consent of the other without seeking prior Court authorization, the custody or support provisions of this Agreement shall be suspended and the moving party agrees to indemnify and pay unto the registry of the Court, a reasonable amount as attorney's fees, lodging and travel expenses and court costs necessitated by the other party seeking to visit, obtain custody of the minor children, obtain visitation with the minor children or attempts to hold the moving party in contempt for a violation of this Order....

It is undisputed that on July 19, 1983, appellant left Maryland with the children, moved her residence to Nevada, and instituted an action for divorce and custody there. She did not seek appellee's approval prior to the change of residency, as required by the consent order. In response, appellee filed a "Petition for Contempt and Change of Custody" in the Circuit Court for Montgomery County, and a hearing was held before the Domestic Relations Master. See Rule 596 c 2, 6. ¹

In his report, the Master recommended that appellant not be held in contempt. He concluded that

While there is certainly a violation of the Order and certainly a contumelious act on the part of the plaintiff, a purge provision which is required in civil contempt could not be determined. Antonelli vs. Antonelli, 44 Md.App. 384 .

The Master also recommended that there be no modification of custody from that established by the consent order. He reasoned that

Since contempt was not considered, the mere moving by the defendant would not seem to justify a modification from joint custody to custody to the plaintiff. Jordan v. Jordan, 50 Md.App. 437 .

Appellee filed exceptions to this report and requested a hearing in the circuit court. After hearing argument from counsel for each of the parties, and considering the exceptions filed and motion in opposition, the circuit court issued the order appealed which found the appellant in contempt for taking the children out of the jurisdiction in violation of the consent order, and granted custody of the children to the appellee "pending any further hearings on the issues of custody and related matters...."

Appellant challenges that order, and asks

I. Whether the decision of the lower court in changing the custody of the parties' two minor children was clearly erroneous and an abuse of discretion?

II. Whether the lower court was clearly erroneous in finding the appellant in contempt of court and erred as a matter of law in entering an order of contempt without a purge provision?

I.

The applicable standards of review for child custody cases was summarized by the Court in Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (1984):

This Court set forth the boundaries of appellate review applicable to child custody cases in Davis v. Davis, 280 Md. 119, 372 A.2d 231, cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977). In that case, we examined the extent to which Maryland Rule 886 (applicable to this Court) and Rule 1086 (applicable to the Court of Special Appeals), which govern the review of cases tried by a court without a jury, control in child custody disputes. Our analysis resulted in the conclusion that three distinct standards of appellate review apply to such matters. They are as follows:

When the appellate court scrutinizes factual findings, the clearly erroneous standard of Rules 886 and 1086 applies. If it appears that the chancellor erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion. 280 Md. at 125-26, 372 A.2d 231 (footnote omitted).

300 Md. at 55-56, 475 A.2d 1180.

Appellant launches the following two-pronged attack seeking to establish that the chancellor abused his discretion by granting the appellee temporary custody of the children. Whether considered independently or in combination, these contentions do not establish abuse of discretion.

First, relying upon the fact that the chancellor did not receive any evidence, appellant contends that the chancellor should have deferred to the Master's findings of fact and left them undisturbed unless determined to be clearly erroneous. Wenger v. Wenger, 42 Md.App. 596, 402 A.2d 94, cert. granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 2, 1980.

In that case, we discussed, in detail, "the proper function of the chancellor vis-a-vis a Report and Recommendation of a Domestic Relations Master." Wenger, 42 Md.App. at 597, 402 A.2d 94:

When an appellate court, absent clear error, defers to a trial court, it defers not only to the fact-finding but to any legitimate verdict, disposition or judgment emanating from that fact-finding. The function of the chancellor vis-a-vis the master is quite different. He may, of course, order de novo fact-finding in whole or in part. Where he chooses to rely exclusively upon the report of the master, however, he should defer to the fact-finding of the master where that fact-finding is supported by credible evidence and is not, therefore, clearly erroneous. The chancellor, however, (unlike the appellate court) always reserves unto himself the prerogative of what to make of those facts--the ultimate disposition of the case.

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If the chancellor had no choice but to affirm the recommendation of the master (or his finding of the ultimate, conclusory fact which is indistinguishable from the recommendation) unless it was "clearly erroneous," this would be the forbidden delegation of the judicial function.

Id. at 602-03, 402 A.2d 94.

In the case sub judice, there is no dispute regarding findings of fact--that appellant moved with the children in violation of the consent order. Rather, appellant challenges the chancellor's findings on the "second-level, conclusory or dispositional facts" regarding the best interest of the children, and the final determination regarding custody. See Wenger, 42 Md.App. at 607, 402 A.2d 94. Wenger makes clear that these determinations, "the ultimate disposition of the case," must be made independently by the chancellor. Id. at 604, 608, 402 A.2d 94.

Appellant then contends that the only evidence regarding the best interest of the children was that the appellant left the jurisdiction with them and was residing in Nevada, and that a custodial parent's change of residence does not justify a change of custody. Jordan v. Jordan, 50 Md.App. 437, 439 A.2d 26, cert. denied, 293 Md. 332 (1982). This contention overlooks the circumstances surrounding the "change of residence" in the case sub judice.

In Jordan, the appellee had custody of one of the parties' children pursuant to a separation agreement which was merged into a decree of divorce a vinculo matrimonii. 50 Md.App. at 438, 439 A.2d 26. The appellant petitioned the court for a change of custody when he learned that the appellee contemplated marriage and a change of residence from Potomac, Maryland to South Africa. Id. at 442, 439 A.2d 26. He contended that the move "to South Africa is in and of itself a sufficient change in circumstances to justify a change in custody." Id. We affirmed the chancellor's order denying a change of custody and...