Shurupoff v. Vockroth

• Court: Maryland Supreme Court
• Writing for the Court: WILNER.
• Citation: Shurupoff v. Vockroth, 372 Md. 639, 814 A.2d 543 (Md. 2003)
• Decision Date: 07 January 2003
• Docket Number: No. 31,31
• Parties: Lawrence J. SHURUPOFF v. Carol E. VOCKROTH, et vir.

814 A.2d 543

372 Md. 639

Lawrence J. SHURUPOFF v. Carol E. VOCKROTH, et vir.

No. 31, Sept. Term, 2002.

Court of Appeals of Maryland.

January 7, 2003.

Thomas G. Bodie (Bodie, Nagle, Dolina, Smith & Hobbs, P.A., on brief), Towson, for petitioner.

Laura V. Bearsch (Love, Fleming, Bearsch & Attanasio, LLC, on brief), Bel Air, for respondents.

Argued Before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

WILNER, Judge.

In Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), we announced standards and guidelines for the judicial resolution of child custody disputes between the child's parent and someone who is not the child's parent—a third party. Synthesizing holdings and statements from earlier cases, we made clear, first, that "the best interest of the child standard is always determinative in child custody disputes," including those kinds of cases. Id. at 178, 372 A.2d at 587. More particularly, we held that, in disputes between a parent and a third party, "it is presumed that the child's best interest is subserved by custody in the parent," but "[t]hat presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child." Id. at 178-79, 372 A.2d at 587.¹ We then stated:

"[I]n parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodian disposition."

Id. at 179, 372 A.2d at 587. Those statements and conclusions have been confirmed by us on a number of occasions and, except as stated later in this Opinion, remain expressive of the Maryland law. See Sider v. Sider, 334 Md. 512, 531, 639 A.2d 1076, 1085 (1994); Monroe v. Monroe, 329 Md. 758, 773-74, 621 A.2d 898, 905 (1993).

This appeal arises from a battle over the custody of Kimberly S., nearly twelve years old at the time of trial. The disputants are Kimberly's father (petitioner here) and her maternal grandparents, the Vockroths. After hearing seven days of testimony and considering the wishes expressed by Kimberly, the Circuit Court for Harford County granted custody of Kimberly to the grandparents, with whom she had been living for about a year. Petitioner complains that (1) the court did not apply the proper standard of proof in determining that the presumption announced in Ross v. Hoffman had been rebutted, (2) the court misapplied the Ross v. Hoffman standards in any event, and (3) those standards are in need of some modification and clarification.

We agree that some clarification is necessary, and we shall provide it, but we do not agree that the court applied an incorrect standard of proof, that it erred in its application of the Ross standards, or that its ultimate conclusion constituted legal error or an abuse of discretion.

BACKGROUND

Kimberly is the child of petitioner and Pamela Vockroth. Petitioner and Pamela met and began living together in 1980, when both were employed in the Washington, D.C. area. In January, 1985, they moved to Michigan. In early 1987, Pamela announced that she was pregnant. The relationship at that time was somewhat strained, and, indeed, petitioner initially doubted whether he was the father and urged Pamela to abort the pregnancy. She refused and, in the spring, returned to her parents' home in Maryland. Kimberly was born here in October, 1987. She and Pamela lived with the Vockroths until December, 1988, when they moved into an apartment about 10 minutes away. The Vockroths cared for Kimberly, both when she was staying with them and after she and Pamela moved.

Petitioner was not immediately informed of Kimberly's birth, and, although he and Pamela discussed reconciliation on a number of occasions, he apparently did not see the child until she was a year old. Thereafter, he had only sporadic contact with Kimberly and did not provide regular support for her. In April, 1989, petitioner and Pamela married but remained for a time in their separate residences. Pamela and Kimberly moved to Michigan in August. Pamela did not seek employment but instead stayed home to care for Kimberly. Once again, the relationship began to deteriorate, apparently over Pamela's drinking and excitable behavior. There was evidence that Pamela was a chronic abuser of alcohol; there was also evidence that she was a manic-depressive. In May, 1990, without notice, she and Kimberly returned to Maryland and took residence in her parents' home. Petitioner visited Pamela from time to time and there was some telephone contact, but he had little contact with Kimberly. During this period, the Vockroths were deeply involved with Kimberly and provided financial support for her and Pamela. In December, Pamela and Kimberly moved to a nearby apartment. The Vockroths continued to support them and remained involved with the child, taking her to medical and dental appointments and participating in various other activities with her.

In April, 1991, after but two years of marriage, Pamela and petitioner were divorced. The judgment of the Michigan court gave them joint legal custody of Kimberly but awarded sole physical custody to Pamela. It made no provision for specific visitation but did order petitioner to pay child support, which he then began faithfully to do. Petitioner, a patent lawyer, visited with Kimberly on a number of occasions, but only when business or some other activity took him to the Maryland area, and those visits lasted only a few hours. During the period 1992-1994, petitioner took Kimberly on two trips to Florida to visit his parents, on two overnight trips to New York, and on two apparently overnight trips to an amusement park. Additionally, in 1994, Kimberly spent six days with him in Michigan. During that visit, she wrote a number of letters to the Vockroths in which she complained that she was homesick and unhappy.

In 1992, Pamela met and began living with Charles Hall. Eventually, the household consisted of Pamela, Kimberly, Hall, and Hall's two daughters, one of whom was Kimberly's age and one a year older. Hall helped Pamela with her drinking problem and also helped to raise Kimberly. He and the child became close enough for Kimberly to begin referring to Hall as "daddy." She also became close with Hall's children. The Vockroths remained a part of Kimberly's life, visiting her several times a week and taking her to their home on weekends. Petitioner made no attempt to alter the custody arrangement, even when Pamela and Hall were evicted from their apartment and were forced to live, for a time, in a small trailer in need of repair. Nor, except for a visit to New York in 1995, did he have any extended visits with the child in 1995, 1996, 1997, or 1998.

In 1995, petitioner met Maria and, within six months, began living with her. Shortly thereafter, Maria became pregnant; the baby was born in September, 1996. Petitioner did not disclose the child's existence to Kimberly until 1998. In the summer of 1997, Kimberly informed petitioner that she wanted to visit him in Michigan but, because petitioner had just started a new, and stressful, job, he was unable to accommodate her. Meanwhile, Kimberly was spending every other weekend and several weeks during the summer with the Vockroths, who also took her on other excursions. She had her own room at their house. Petitioner visited Kimberly in Maryland six to eight times in 1997 and 1998.

On August 11, 1998, Pamela suffered a stroke which, twelve days later, proved fatal. Immediately after the stroke, Kimberly went to stay with the Vockroths. Petitioner was notified and came to Maryland in connection with a planned business trip. He saw Kimberly several times during the week but did not exercise any overnight visitation. After consulting an attorney in Michigan, however, he did discuss with the Vockroths taking Kimberly back to Michigan. One of those discussions occurred immediately after Pamela's funeral, at the Vockroths' home.

The testimony was in some dispute regarding that conversation, but it apparently was a pivotal event. It is clear that, after the funeral, petitioner went to the Vockroth home, with their permission, and spoke privately with Kimberly in the kitchen. He either asked her whether she wanted to return with him to Michigan (his version) or told her that he was taking her (her and the Vockroths' version), but, in either event, she kept saying "no, no, no" and began to cry. At that point, Mrs. Vockroth intervened and had Kimberly leave the room. When Mr. Vockroth entered, Mrs. Vockroth left the room to console Kimberly, and petitioner and Mr. Vockroth continued the conversation. It was clear that Kimberly was distraught, the Vockroths were upset, and the battle lines were drawn. The Vockroths were no longer supportive of contact between Kimberly and petitioner and acted to make such contact difficult. The trial court faulted the Vockroths for their conduct, which it found inappropriate.

On August 28, within days after that argument, the Vockroths filed a complaint in the Circuit Court for Harford County for immediate custody of Kimberly and other ancillary relief. After an ex parte proceeding, apparently without notice to petitioner, the court granted them temporary custody and set a hearing on the matter. Petitioner then filed a similar action in Michigan and contested the jurisdiction of the Maryland Circuit Court. At a hearing on October 5, 1998, the Circuit Court struck its ex parte order upon an agreement that, pending resolution of the jurisdictional issue, Kimberly would remain with the Vockroths. After a conference with the Michigan court, the Circuit Court assumed jurisdiction, and petitioner filed a...