E.S. v. S.S., 031219 MDSCA, 363-2018

Docket Nº:363-2018, 3103-2018
Opinion Judge:BEACHLEY, J.
Party Name:E.S. v. S.S.
Judge Panel:Fader, C.J., Kehoe, Beachley, JJ.
Case Date:March 12, 2019
Court:Court of Special Appeals of Maryland
 
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E.S.

v.

S.S.

Nos. 363-2018, 3103-2018

Court of Special Appeals of Maryland

March 12, 2019

Circuit Court for Howard County Case No. 13-C-15-103363

Fader, C.J., Kehoe, Beachley, JJ.

OPINION [*]

BEACHLEY, J.

In this case involving two consolidated appeals, Appeal No. 363 arises from a judgment issued by the Circuit Court for Howard County on March 30, 2018, granting appellee S.S.1 ("Father") unsupervised visitation with his two children. Appellant E.S. ("Mother") challenges that decision. Mother's principal contention on appeal is that, in light of the circuit court's finding that Father abused the children, the court erred in awarding unsupervised visitation without specifically finding "that there is no likelihood of further child abuse" as required by Md. Code (1984, 2012 Repl. Vol.) § 9-101(b) of the Family Law Article ("FL"). Mother presents the following issues for our review, which we have consolidated and rephrased: I. Did the circuit court violate FL § 9-101 in awarding unsupervised visitation to Father, who the court found had abused the children, in the absence of a specific finding that there is no likelihood of further abuse?

II. Did the circuit court abuse its discretion in precluding expert testimony concerning rehabilitation of child abusers?

III. Was the court clearly erroneous in finding that Mother attempted to interfere with Father's visitation?

IV. Did the circuit court err in excluding as hearsay testimony that Mother said "stop" during an incident where Father was allegedly raping Mother?

V. Did the circuit court violate FL § 9-101.1 by requiring Mother to keep Father "informed by e-mail or text message as to all of the children's school, health, and extracurricular activities?"

We answer the first question in the affirmative, and shall reverse the judgment of the circuit court and remand for further proceedings. Additionally, we hold that the court erred in finding that Mother attempted to interfere with Father's visitation, and that the court also erred in excluding testimony that Mother said "stop" when Father was allegedly raping her. Because we are reversing and remanding, however, the court may revisit these issues to the extent they are relevant in determining Father's visitation with the children.

With Appeal No. 363 pending, Mother filed a motion in our Court to stay the circuit court proceedings in an effort to prevent Father's unsupervised visitation. We granted Mother's motion to stay in an order dated June 29, 2018. Following our order, Father sought to obtain supervised visitation with the children, which Mother opposed. On December 17, 2018, the circuit court granted Father's request for supervised visitation and designated Father's mother as the visitation supervisor. Additionally, on November 29, 2018, Mother sought modification of the March 30, 2018 order as it pertained to her court-ordered communication with Father, which the circuit court denied without a hearing.

Mother then noted Appeal No. 3103, and presents the following issues which we have consolidated and rephrased: I. Did the circuit court abuse its discretion under FL § 9-101 and § 9-101.1 when it appointed Father's mother as the visitation supervisor for Father's visitation with the children?

II. Did the circuit court err in dismissing Mother's Motion for Modification of Judgment?

We conclude that the circuit court, under the particular circumstances present here, abused its discretion by appointing Father's mother as the visitation supervisor. We further conclude that the circuit court erred by summarily dismissing Mother's Motion for Modification of Judgment. Both of these issues must also be addressed by the circuit court on remand.

FACTUAL AND PROCEDUURAL BACKGROUND

Because the parties do not substantially challenge the circuit court's fact-findings, we rely on the court's memorandum opinion in recounting the history of this case. The parties were married on November 29, 2008. Mother initiated the divorce by filing for a limited divorce in April 2015; in April 2016 she filed an amended complaint for absolute divorce. The trial was originally scheduled for three days in May 2016, but did not conclude until over a year later in September 2017 after twelve days of trial. Most of the trial concerned legal and physical custody of the parties' two children, A. and M. As will be discussed infra, Mother presented extensive testimony about Father abusing her and the children. In its memorandum opinion, the court awarded Mother sole legal and primary physical custody of the children, but granted Father unsupervised visitation on alternating weekends and holidays, after school on Wednesdays, and two non-consecutive weeks during the summer. The court further required Mother to keep Father informed of the children's school, health, and extracurricular activities by e-mail or text. We shall provide additional facts as necessary to resolve the issues raised on appeal.

STANDARD OF REVIEW

We review child custody determinations utilizing three interrelated standards of review. In re Yve S., 373 Md. 551, 586 (2003). The Court of Appeals described the three interrelated standards as follows: [W]e point out three distinct aspects of review in child custody disputes. When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c)] applies. [Second, ] [i]f it appears that the [court] 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 [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court's] decision should be disturbed only if there has been a clear abuse of discretion.

Id. at 586.

DISCUSSION

Appeal No. 363

I. Mother's Challenge to the Visitation Award

Mother first argues that the circuit court misapplied FL § 9-101, which requires the court, after finding reasonable grounds to believe a party has previously abused or neglected a child, to assess the likelihood of further abuse. Specifically, Mother points out that the court found that Father had abused A. and that statements Father made about M. amounted to abuse. She also notes that visitation had been previously supervised "due to [Father's] treatment towards the children . . . as well as for the safety of the children." Given the court's finding of abuse, Mother maintains that the court erred by granting Father unsupervised visitation without making the predicate finding that "there [was] no likelihood of future abuse."

At oral...

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