Schaefer v. Cusack, 880

• Citation: 124 Md. App. 288,722 A.2d 73
• Decision Date: 30 December 1998
• Docket Number: No. 880,880
• Parties: Stephanie SCHAEFER v. Michael CUSACK.
• Court: Court of Special Appeals of Maryland

722 A.2d 73

124 Md. App. 288

Stephanie SCHAEFER v. Michael CUSACK.

No. 880, Sept. Term, 1997.

Court of Special Appeals of Maryland.

December 30, 1998.

Paul A. Dorf and Russell G. Alion, Jr. (F. Kirk Kolodner and Adelberg, Rudow, Dorf, Hendler & Sameth, L.L.C., on the brief), Baltimore, for Appellant.

Samuel Sperling and Rhonda I. Framm (Samuel Sperling and Sperling & Framm, on the brief), Baltimore, for Appellee. Argued before MURPHY, C.J., and MOYLAN and MARVIN H. SMITH (Retired, Specially Assigned), JJ.

MARVIN H. SMITH, Judge (Retired, Specially Assigned).

We have here a custody battle between Stephanie Schaefer (Stephanie) and Michael Cusack (Michael). It is on appeal from the Circuit Court for Baltimore City. Multiple issues were raised. Fortunately, several have been settled by stipulation since the appeal was filed. We shall discuss the issues seriatim, setting forth such facts as may be necessary for an understanding of each issue. We shall affirm in part and reverse in part. Not only do we have multiple issues, but we have a motion to dismiss Stephanie's appeal and a motion to dismiss what Michael calls his "contingent cross-appeal".

I. MOTION TO DISMISS THE APPEAL

Michael moves to dismiss the appeal arguing that "[a] claimant cannot accept the benefits of a trial judge or chancellor's ruling in a disputed case, and then later attack the validity of that ruling on appeal. Suburban Dev. Corp. v. Perryman, 281 Md. 168, 377 A.2d 1164 (1977)." He contends that here Stephanie "has taken the benefits of the trial judge's Orders" in each of the subjects of "custody and visitation/parental time," "child support", "monetary award", and "award of Attorneys fees." Oddly enough at no time did either party cite to us Dietz v. Dietz, 117 Md.App. 724, 701 A.2d 1144 (1997), rev'd, Dietz v. Dietz, 351 Md. 683, 720 A.2d 298 (1998), where this Court dismissed an appeal seeking an increase in a monetary award because the appellant had accepted payments under the award as rendered. We deny this motion to dismiss on the basis of Dietz.¹

II. AWARD OF FUTURE CUSTODY

The parties were married on July 11, 1992, in Baltimore City. Their only child, the subject of this litigation, Garrett Michael Cusack (Garrett), was born September 15, 1993. The parties separated in April, 1994. The trial judge (Brynes, J.) ordered "that physical custody of the minor child Garrett is granted to the plaintiff until thirty days following his completion of the fifth grade. At that point in time, physical custody is awarded to Michael Cusack until Garrett's eighteenth birthday...." Stephanie contends that "the trial court abused its discretion in ordering an in futuro change in custody 30 days after Garrett completes fifth grade (approximately eight years from the date of the final judgment)". We agree.

Stephanie relies upon Sullivan v. Auslaender, 12 Md.App. 1, 276 A.2d 698 (1971), asserting that there "this court determined that a separation agreement which contemplated an automatic change in custody in the future was not in the best interests of the children." What she does not tell us, however, is that in that case the Court of Special Appeals substituted its judgment for that of the trial judge and that in Davis v. Davis, 280 Md. 119, 372 A.2d 231 (1977), Judge Digges said for the Court of Appeals:

[T]here is some confusion in our cases with respect to the standard of review applicable to the chancellor's ultimate conclusion as to which party should be awarded custody. Notwithstanding some language in our opinions that this conclusion cannot be set aside unless clearly erroneous, see, e.g., Spencer v. Spencer, 258 Md. 281, 284, 265 A.2d 755, 756 (1970)(per curiam); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 26, 265 A.2d 264, 266 (1970), we believe that, because such a conclusion technically is not a matter of fact, the clearly erroneous standard has no applicability. However, we also repudiate the suggestion contained in some of our predecessors' opinions, see, e.g., Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387, 389 (1959); Butler v. Perry, 210 Md. 332, 339-40, 123 A.2d 453, 456 (1956); Burns v. Bines, 189 Md. 157, 164, 55 A.2d 487, 490 (1947); cf. Ex Parte Frantum, 214 Md. 100, 105, 133 A.2d 408, 411, cert. denied, 355 U.S., 882 [78 S.Ct. 149, 2 L.Ed.2d 112] (1957) (adoption case), and relied upon by the Court of Special Appeals in Sullivan v. Auslaender, 12 Md. App. 1, 3-5, 276 A.2d 698, 700-01 (1971), and its progeny, see, e.g. Sartoph v. Sartoph, 31 Md.App. 58, 64 & n. 1, 354 A.2d 467, 471 (1976); Vernon v. Vernon, 30 Md. App. 564, 566, 354 A.2d 222, 224 (1976), that appellate courts must exercise their "own sound judgment" in determining whether the conclusion of the chancellor was the best one. Quite to the contrary, it is within the sound discretion of the chancellor to award custody according to the exigencies of each case, Miller v. Miller, 191 Md. 396, 407, 62 A.2d 293, 298 (1948), and as our decisions indicate, a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. See, e.g., Pontorno v. Pontorno, 257 Md. 576, 581, 263 A.2d 820, 822 (1970).

Id. at 124-125, 372 A.2d 231.

"The determination of which parent should be awarded custody of a minor child rests within the sound discretion of the trial court." Giffin v. Crane, 351 Md. 133, 144, 716 A.2d 1029 (1998), citing cases.

The parties in this case can agree on but little. They do agree that we apply the best interest standard and that the trial judge's determination stands absent an abuse of discretion.²

In Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), Judge Orth said for the Court:

In performing its child protection function and its private-dispute settlement function the court is governed by what is in the best interests of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance. In Burns v. Bines, 189 Md. 157, 162, 55 A.2d 487, 489 (1947), quoting Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615 (1929), we observed that the statute giving equity courts jurisdiction over the custody of children `is declaratory of the inherent power of courts of equity over minors, and [such jurisdiction] should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.' We noted in Dietrich v. Anderson, 185 Md. 103, 117, 43 A.2d 186 (1945) that the statute has been so uniformly construed. We said in Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458 (1956): `Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.'

Id. at 174-175, 372 A.2d 582.

More recently in Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), Judge Karwacki said for the Court:

The primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. We have repeatedly stated the test originally set forth in Hild v. Hild, 221 Md. 349, 157 A.2d 442 (1960) as follows:

"For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child."

Id. at 519, 615 A.2d 1190.

A change in circumstances ordinarily has been required for a change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991), Judge McAuliffe said for the Court:

The question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case. The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability.

Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim. An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child. As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), `[w]hile custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.' Even this general statement may be subject to exception in the case of prior facts existing but unknown and not reasonably discoverable at the time of the entry of the original order, such as the fact that a parent to whom custody had been granted was, and continues to be, a sexual abuser of the child. See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982).

Id. at 481-482, 593 A.2d 1128. See also Domingues v. Johnson, 323 Md. 486, 498 593 A.2d 1133 (1991).

Ordinarily, in determining custody the courts look to the situation as it exists at the time. This is well illustrated by Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966), where custody was awarded to an admittedly adulterous mother.³ In that case Judge Oppenheimer said for the Court:

No question of

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