R. F. S. v. M.E.
| Docket Number | 977-2022 |
| Decision Date | 06 June 2023 |
| Parties | R. F. S v. M. E. |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Montgomery County Case No. 168818FL
OPINION [**]
This appeal is from a judgment of the Circuit Court for Montgomery County, the Honorable Jill R. Cummins, presiding, that awarded R. F. S. ("S.") and M. E. ("E.") joint legal and shared physical custody of their two minor children, M. and D.[1] S. presents eleven issues, which we have consolidated and reworded:
We will affirm the trial court's well-reasoned resolution of this complex and challenging child custody case.
S. and E. were married in July 1998. During the marriage, the parties became parents of two minor children: M. and D. At all times relevant to the issues raised in this appeal, S. was writer for a labor organization, and E. owned a dog-walking business that operated out of E.'s residence. The trial court found that, prior to their separation, S. and E. often occupied different spheres of their children's lives-S. "handled the familial organization" and E. "spent more leisure time" with M. and D.
The evidence shows that the parties' relationship was a volatile one, marked by frequent verbal arguments and, on at least one occasion, a physical confrontation. The evidence indicated that the verbal altercations sometimes took place in the presence of their children, the physical altercation did not. The parties separated on March 28, 2020, which was when E. left the marital home with M. and D. and moved in with E.'s parents, who lived nearby. At the time of separation, M. was 11 years old and D. was 9. E. and the children were still residing with E.'s parents at the time of trial. The trial court categorized the parties' separation as "a high conflict divorce," one in which "the [marital relationship] ends and [the] war begins."
At trial, the court found that S.'s relationship with M. and D. had significantly deteriorated after the separation and that S.'s access to the children in the two years after E. took them out of the marital home could "best be described as minimal." Evidence at trial also indicated that the children experienced an "attachment bonding reluctance" with S., though the underlying issues were complicated and differed between the children.
Prior to the party's separation, M. began to exhibit symptoms of obsessivecompulsive disorder (OCD), which manifested as a fixation on cleanliness. At some point after the parties separated, S. became an object of M.'s obsessions, and M. became reluctant to spend time with S. M.'s reluctance to have a relationship with S. influenced D., who did not want to upset M. The court also found that S.'s behavior had at times alienated the children. The trial court additionally found that, after their separation, E. restricted S.'s access to the children and this contributed to the deterioration in S.'s relationship with them.
On April 20, 2020, E. filed a complaint for limited divorce, custody, child support, and other relief, and sought primary physical and sole legal custody, with tie-breaking authority if joint legal custody was awarded. S. initially filed a counterclaim seeking joint physical and legal custody, but by the end of trial S. had requested primary physical custody, with E. having supervised access, and sole legal custody or tie-breaking authority. The case came before the circuit court for trial on December 13-16, 2021, with an additional carry-over day on January 12, 2022.
The court issued its ruling from the bench on March 1, 2022, awarding the parties joint legal custody and shared physical custody, with S.'s physical custody to be implemented on a graduated basis. Additionally, the court ordered that both M. and D. were to participate in reunification therapy with S. and that S. and E. were to continue their existing therapy treatments. Both parties filed cross-motions for reconsideration requesting minor modifications, which were granted in part and denied in part and are not at issue here. Additional facts will be presented in our analysis as necessary.
S.'s contentions implicate three modalities of appellate review. We review a trial court's legal reasoning de novo. We review factual findings for clear error. In that process, we must defer to the trial court's assessment of the probative value of evidence as well as the credibility of witnesses. Maryland Rule 8-131(c). As a result, we will uphold a trial court's factual findings "if there is competent or material evidence in the record to support the court's conclusion." Azizova v. Suleymanov, 243 Md.App. 340, 372 (2019) (quoting Lemley v. Lemley, 109 Md.App. 620, 628 (1996)), cert. denied, 467 Md. 693 (2020).
Finally, as this Court recently observed, "there is no such thing as a simple custody case," and judges often "agonize more about reaching the right result" in child custody disputes than they do in "any other type of decision." Gizzo v. Gerstman, 245 Md.App. 168, 200 (2020) (quoting Bienenfeld v. Bennett-White, 91 Md.App. 488, 502-03 (1992)). For this reason, "trial courts are entrusted with 'great discretion in making decisions concerning the best interest of the child.'" Id. (quoting Petrini v. Petrini, 336 Md. 453, 469 (1994)). As the Supreme Court of Maryland[3] has explained:
Santo v. Santo, 448 Md. 620, 625-26 (2016) (cleaned up).
1. and 2. The Excluded Expert Testimony and the Admission of the Custody Evaluator's Report
S.'s first two appellate contentions are factually and procedurally intertwined. We will address them together.
Craig Childress, Psy.D.
S wished to call Dr. Craig Childress, a child psychologist, as an expert witness at trial. S. concedes that S. failed to designate Dr. Childress as an expert witness as required by the scheduling order entered in this action. S. asserts that this Court's holding and analysis in A.A. v. Ab.D., 246 Md.App. 418, 447 (2020), required the trial court to permit Dr. Childress to testify. Based on S.'s reading of A.A., S. contends that the court had a "supreme obligation" to determine what is in a child's best interest and that duty "may restrain the court's broad authority to exclude evidence as a discovery sanction." (Cleaned up.) We do not agree. Before addressing the details of S.'s arguments, we will review the relevant law.
The scheduling order in this case, issued pursuant to Md. Rule 2-504,[4]required S. to designate all proposed expert witnesses by no later than November 12, 2020. Pursuant to that order, and as required by Rule 2-504(b)(1)(B), S. was required to disclose "all information specified in Rule 2-402(g)(1)."[5] S. failed to designate Dr. Childress as an expert and failed to provide the information and written materials required by Rule 2-402(g)(1). While scheduling orders are not "unyieldingly rigid," Naughton v. Bankier, 114 Md.App. 641, 653 (1997), trial courts may impose sanctions if a party fails to substantially comply with the order or, "at the barest minimum, [make] a good faith and earnest effort toward compliance" with the scheduling order's requirements. Id. (emphasis in original). In the present case, S. (or, to be more precise, S.'s counsel) failed to meet either of these thresholds. As to Dr. Childress, S. neither substantially complied with the scheduling order nor did S. make a good faith and earnest effort towards compliance. In assessing appropriate remedies for violations of scheduling orders, courts look to what are generally referred as the Taliaferro factors.[6] Asmussen v. CSX Transportation, Inc., 247 Md.App. 529, 550 (2020).
We review trial courts' orders imposing sanctions for violations of scheduling orders for abuse of discretion, even when the rulings are outcome determinative. Id. at 549-52. This is the general rule. The landscape is different in custody cases, however.
The scope of the court's discretion to address discovery violations is limited in a child custody case because in such cases "the very object of the suit is [the child] whose best interest transcends that of either formal litigant." Flynn v. May, 157 Md.App. 389, 391 (2004). For this reason, we have recognized that "a child's best interests are best attained when the court's decision is as well-informed as possible." A.A. v. Ab.D., 246 Md.App. 418, 447 (2020) cert. den. 471 Md. 75. In A.A., and after reviewing the development of the concept of "the best interest of the child" in custody cases, this Court explained:
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