Shunk v. Walker

• Decision Date: 01 September 1990
• Docket Number: No. 1124,1124
• Citation: 87 Md.App. 389,589 A.2d 1303
• Parties: David S. SHUNK v. Vicki L. WALKER
• Court: Court of Special Appeals of Maryland

Page 389

87 Md.App. 389

589 A.2d 1303

David S. SHUNK v. Vicki L. WALKER.

No. 1124 Sept. Term, 1990.

Court of Special Appeals of Maryland.

May 14, 1991.

Charles S. Rand and Donna H. Lapin, Rockville, for appellant.

No brief or appearance by appellee.

Submitted before MOYLAN, BLOOM and IRMA S. RAKER, (Specially Assigned), JJ.

BLOOM, Judge.

Appellant, David S. Shunk, was awarded custody of Joanna Shunk, the minor child of the parties, when he and appellee, Vicki L. Shunk (now Walker), were divorced in October 1988. On 8 May 1990, the Circuit Court for Howard County (Dudley, J.) passed an order awarding temporary custody of the child to appellee. Counsel for Mr. Shunk, who has had no contact with his client since 1 February 1990, filed this appeal on behalf of his client, and presents the following issues for our consideration:

I Whether the chancellor erred in transferring custody to appellee, pendente lite.

II Whether the chancellor erred in considering certain hearsay evidence regarding a change of circumstances.

III Whether the chancellor erred in holding a show cause hearing on a petition for modification of custody without allowing appellant 15 days in which to file an answer to the petition.

Perceiving no reversible error, we shall affirm the judgment.

Facts

The parties were divorced on 27 October 1988. The relevant portion of the divorce decree awarded custody of the parties' minor child, Joanna, who was six years of age at the time of the divorce, to appellant, and granted appellee the right of reasonable, supervised visitation. ¹ In November 1989, appellant moved, with the child, to Melvindale, Michigan, for employment reasons.

Distressed by her inability to visit her daughter as a result of appellant's move to Michigan, appellee, on 15 December 1989, filed a motion to modify visitation, a motion to enforce visitation rights, a motion for contempt, and an emergency motion for increased visitation. In response to the emergency motion for increased visitation, and prior to receiving a response to the motion from appellant, the chancellor issued an order on 19 December 1989, in which he required appellant to produce the child for supervised visitation on 23 December 1989. The chancellor also issued an order requiring appellant to appear on 9 January 1990 for a show cause hearing concerning the motions for contempt and for modification of visitation. The 9 January 1990 hearing was subsequently postponed to 1 February 1990.

Both parties appeared at the 1 February 1990 hearing and agreed to a consent order that required appellant to have the child evaluated by a psychiatrist in the Detroit metropolitan area and to submit the report of the psychiatrist to the court within 60 days. Appellant was required to pay for all of the costs related to the evaluation, report, and any necessary therapy. The agreement also provided that the court would contact Dr. Charles Goshen of Columbia, Maryland, who had been evaluating appellee pursuant to the terms of the divorce decree, for the purpose of determining whether any present need existed to continue the supervision of appellee's visits with the child. Finally, the agreement provided that supervised visitations would continue, temporarily, and specified the dates of such visitations for the months of February, March, April, and May. The terms of the agreement were incorporated into an order of the court on 13 March 1990, at which time the hearing on all of the motions was postponed until 16 April 1990.

Thereafter, on 15 March 1990, appellee filed a petition to cite appellant for contempt, and a show cause order was issued on that date. Although an answer to the petition was filed by counsel for appellant, it was not signed or adopted by appellant. Further, appellant did not appear at the hearing on the show cause order, which was held on 22 March 1990, nor did he produce the child as directed by the court. Counsel for appellant informed the court that he had not been in personal contact with appellant since 1 February 1990, although he had mailed copies of all documents to appellant's last known address in Michigan. Appellee testified that she had not seen her daughter since 23 December 1989, as a result of appellant's failure to comply with the visitation dates specified in the court order. She also stated her belief that appellant had taken the child to Canada. At appellee's request, the hearing was continued until the 16 April 1990 motions hearing.

On 6 April 1990, appellee filed a petition to modify custody and for contempt. A show cause order was issued on that date directing appellant to appear at the 16 April 1990 hearing. Appellant did not respond to the petition.

Although counsel for appellant appeared at the 16 April 1990 hearing, appellant did not appear nor did he produce the child. During the hearing, Dr. Goshen testified that he knew of no reason why the visitations should be supervised or why appellee should not be awarded custody of the child. Appellee testified, over the objections of appellant's counsel that she had been informed by a relative of appellant that he and the child were living in Canada, that the principal of the school her child had been attending in Michigan had informed her during a telephone conversation that the child had been absent continuously since 16 February 1990, and that appellant had contacted the school by a letter postmarked Quebec, Canada. The only other witness at the hearing was Ms. Busy Graham, who had known appellee for five years and who had hired appellee to provide day care for her minor son. Ms. Graham testified that she believed that appellee was a fit and proper parent and posed no threat whatsoever to the child, Joanna.

On 8 May 1990, the chancellor issued a Memorandum and Order in which he found appellant guilty of contempt of court, but postponed the disposition of the contempt until such time as appellant appears before the court. The chancellor further found that appellant's contumacious conduct in failing to appear and produce the child prevented the court from effectively safeguarding the best interests of the child, and created a significant change in circumstances that could well affect the welfare of the child. Consequently, the chancellor granted appellee's request and awarded her temporary custody of the child, pending any further hearings on the issues of custody or visitation.

I

Appellant's first contention is that the chancellor erred in awarding custody to appellee because he failed to find a change in circumstances sufficient to justify a transfer of custody. Specifically, he argues that since there was no evidence presented to indicate that his conduct adversely affected the welfare of the child, there was no justification for the chancellor's ruling. ² We disagree.

The guiding principle of any child custody decision, whether it be an original award of custody or a modification thereof, is the protection of the welfare and best interests of the child. Queen v. Queen, 308 Md. 574, 587, 521 A.2d 320 (1987); Ross v. Hoffman, 280 Md. 172, 175, 372 A.2d 582 (1977); Skeens v. Paterno, 60 Md.App. 48, 61, 480 A.2d 820, cert. denied, 301 Md. 639, 484 A.2d 274 (1984); Vernon v. Vernon, 30 Md.App. 564, 566, 354 A.2d 222 (1976). This principle is not considered merely as one of many factors, "but as the objective to which virtually all other factors speak." Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986). The reason for the court's concern with the best interests of the child is obvious and was explained eloquently by Judge Orth in Ross v. Hoffman, supra:

In such disputes it is always the child who is not only the innocent victim, but who has the most at stake. Caught in the wake of marital discord, or adult indiscretion, or economic adversity, the well-being of the child, both present and future, is usually profoundly affected by the court's resolution of the private dispute over who shall be entrusted with its care. In more primitive societies where the large kinship group is the basic societal unit, child custody problems are solved by leaving the child with the dominant clan. In our society today, however, the social mores do not provide an automatic answer to custody questions. See Comment, 73 Yale L.J. 151 (1963).

280 Md. at 173-74, 372 A.2d 582.

Indeed, such custody questions routinely require courts to exercise the wisdom of Solomon ³ and render the most difficult of decisions. Recognizing this fact, Chief Judge Gilbert observed, in Montgomery County v. Sanders, 38 Md.App. 406, 381 A.2d 1154 (1978),

Unfortunately, there is no litmus paper test that provides a quick and relatively easy answer to custody matters. Present methods for determining a child's best interest are time-consuming, involve a multitude of intangible factors that ofttimes are ambiguous. The best interest standard is an amorphous notion, varying with each individual case, and resulting in its being open to attack as little more than judicial prognostication. The fact finder is called upon to evaluate the child's life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future. At the bottom line, what is in the child's best interest equals the fact finder's best guess.

38 Md.App. at 419, 381 A.2d 1154.

Several criteria must be considered in arriving at that "best guess," including, inter alia, the fitness of the parents, character and reputation of the parties, desire of the natural parents and agreement between the parties, potentiality of maintaining natural family relations, preference of the child, material opportunities affecting the future life of the child, age, health and sex of the child, residences of the parents and opportunity for visitation, length of separation from the natural parents, and prior voluntary abandonment or surrender. In reviewing those factors, Chief Judge Gilbert concluded that "while the court...