Rifka v. Dillenburg
| Decision Date | 21 December 2016 |
| Docket Number | No. 2224,2224 |
| Parties | SAFA M. RIFKA v. MARGARET A. DILLENBURG |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Opinion by Meredith, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
This is an appeal by Safa Rifka ("Father"), appellant, of the denial, by the Circuit Court for Montgomery County, of a petition to modify custody of his twin teenage sons. Father appeals not only the denial of his petition to modify custody, but also the court's order that he pay $436,000 toward attorney's fees and costs accumulated by Margaret Dillenburg ("Mother"), appellee, in defending against Father's petition. Father also seeks a reduction in the amounts he was ordered to pay for the fees of his sons' Best Interest Attorneys. Father presents the following questions for our review:
Because we answer each of these questions "no," we will affirm, for the reasons explained below.
The parties to this case were married on January 23, 1999.1 On December 27, 1999, their twin sons, "J." and "M.," were born. M. is a healthy teenager, but J. suffers from profound intellectual disabilities, including autism and dyspraxia.2 J. is mostly non-verbal and requires extensive assistance with the activities of daily living. The evidence reflected that J. had a history of self-injurious and disruptive behavior, including pica.3
Father is a physician; Mother is an attorney; both have substantial financial resources. On September 20, 2004, the parties were divorced in the District of Columbia. The parties reached a Custody and Child Support Agreement in December 2004 ("Original Agreement"), which provided, generally, that the parties would have joint legal custody of J. and M.; that the boys would reside primarily with Mother; that the boys would be with Father overnight on Wednesdays, and every other weekend; and that Father would pay$6,000 per month to Mother directly for child support, along with all incidental expenses for the children, including the cost of care and therapy for J.'s special needs. The Agreement gave Father final decision-making authority regarding major medical decisions for the children, but that authority specifically excluded, among other things, "health care decisions relating to the treatment of [J.]'s Autism, Global Developmental Delay, and Dyspraxia." As to such issues, the parties agreed to "implement a treatment plan for [J.] in accordance with" his pediatrician's recommendations, with the treatment plan to be overseen by a "Treatment Coordinator" to be designated by the parties' respective counsel following an investigation to find a suitable and qualified person for that role. The Original Agreement further contemplated that the parties would utilize a qualified "Parenting Coordinator" (to be designated) to assist them "as to the matters they are to determine jointly[.]"4
In 2010, Father filed an action against Mother in the District of Columbia, complaining about her care of J., and seeking sole legal custody. But the October 29, 2010, final order in that case awarded Mother final decision-making authority on decisionsrelated to J.'s autism, developmental delay, and dyspraxia. Father retained final decision-making authority as to major medical decisions not involving the treatment of J.'s autism, global developmental delay, and dyspraxia.
Both parties subsequently sought clarification and/or modification of the October 29, 2010, custody order. On January 19, 2012, following a hearing, the D.C. Superior Court entered a pendente lite custody order awarding Mother temporary sole legal and physical custody of J. The order provided that Mother had "full and unconditional authority to make decisions on all issues relating to all aspects of [J.]'s health, education, and general welfare," and required her to "promptly and fully inform" Father of "all significant decisions" she made in that respect, but further noted that Mother "is not required to consult with [Father] before making treatment decisions on [J.]'s behalf, and [Father] has no right to participate in consultations or other meetings with [J.]'s treatment providers or to communicate directly with them."
On May 21, 2012, the D.C. Superior Court entered a consent custody order, continuing many of the provisions of the pendente lite order. Mother continued to have sole legal and physical custody of J., and to have "full and unconditional authority to make decisions on all issues relating to all aspects of [J.]'s health, education and general welfare," with no obligation to consult Father in advance of making such decisions. Although Mother was directed to ensure that J.'s providers sent progress reports, evaluations, IEPs, and the like to Father, the consent order confirmed that Father had "no right to participate in consultations or other meetings with [J.]'s providers or to communicate directly withthem[.]" Father ultimately caused the D.C. custody order to be enrolled in the Circuit Court for Montgomery County.
On January 14, 2013, Father filed, in Montgomery County, a petition to hold Mother in contempt of the D.C. consent custody order, complaining that Mother had failed to inform him of "decisions she has made concerning [J.]'s health and education, including failing to provide any information related to his therapy." Father additionally alleged that Mother had directed J.'s health care providers not to release information to him, and had failed on her own to provide him "with any evaluations, assessment and behavior plans, or IEP notes and summaries." Father also filed a motion requesting that a Best Interest Attorney be appointed for J., pursuant to Maryland Code (1984, 2012 Repl. Vol.), Family Law Article ("FL"), § 1-202(a)(1)(ii).
On February 19, 2013, Mother filed a motion to dismiss the contempt petition, pointing out, among other things, that it was "addressed as much to criticizing and challenging [Mother's] decisions --- the very decisions that she alone is empowered to make --- and to making a case for a joint decision-making construct, as it is to citing violations giving rise to contempt." Mother further noted that "[t]hese exact issues (i.e., which of the parties is the better decision-maker and the quality of [Mother's] decisions) have been the subject of extensive litigation in the District of Columbia, beginning in January 2010," and continuing to the time of the filing of Mother's motion to dismiss. Additionally, Mother pointed out that, although Father captioned his filing as a contemptpetition, what he really sought to do was re-litigate the custody order of May 21, 2012, an order to which Father had consented just nine months earlier.
On December 6, 2013, the Circuit Court for Montgomery County entered a consent order reflecting the parties' resolution of the contempt issue. The December 6 consent order provided Father the ability to "communicate with those persons at [Montgomery County Public Schools] who are involved in [J.]'s education," subject to the condition that, if Father were to disagree
Approximately two months later, on January 30, 2014, Father filed a complaint to modify custody and for other relief. This complaint addressed the custody of M. only. Father requested that the court award him joint physical custody of M., order that M. be permitted to spend up to one-half of his time with Father, and appoint a Child Advocate Attorney for M. FL § 1-202(a)(1)(i).
Father also filed, on February 7, 2014, a "Petition to Enforce the Terms of the [December 6, 2013] Consent Order, For Clarification of [Father's] Parental Rights with Respect to his Son's Education, and For Other Relief," complaining that, among other things, Mother had violated his rights under "both federal and Maryland law" by allegedly "order[ing] [J.]'s school to prohibit [Father] from bringing Dana Gold, Ph.D., a behaviorist who has been assisting [Father], as his guest to [J.]'s Individualized Education Program('IEP') meeting on January 29, 2014." Father asserted that he retained the right to bring Dr. Gold to an IEP meeting "without regard to determinations regarding legal custody," and that Mother "is attempting to use her sole legal custody --- and the [December 6, 2013] Consent Order—as a weapon to preclude [Father] from exercising the rights he has under federal and state law." Father also complained, as he had in the January 14, 2013, contempt petition (which, as noted, was resolved by consent), about certain of Mother's legal-custody decisions. In the February 7, 2014, petition, Father complained, in part, at ¶ 20:
Using her sole decision-making authority, [Mother]...
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