Tedesco v. Tedesco

• Decision Date: 01 September 1996
• Docket Number: No. 288,288
• Citation: 111 Md.App. 648,683 A.2d 1133
• Parties: Stephen TEDESCO v. Nancy TEDESCO. ,
• Court: Court of Special Appeals of Maryland

Page 648

111 Md.App. 648

683 A.2d 1133

Stephen TEDESCO v. Nancy TEDESCO.

No. 288, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Oct. 30, 1996.

William M. Ferris (Krause & Ferris, on the brief), Annapolis, for appellant.

Lindsay M. Barranco (Paula J. Peters and Hyatt, Peters & Weber, P.A., on the brief), Annapolis, for appellee.

Argued before CATHELL and HARRELL, JJ., and THEODORE G. BLOOM, Judge of the Court of Appeals (retired), Specially Assigned.

CATHELL, Judge.

The parties' marital union was ended by a Judgment of Divorce entered in the Circuit Court for Anne Arundel County. Appellant, Stephen Tedesco, appeals from that part of the court's order granting custody of two minor children, Bailey Farnham and Brent Tedesco, to appellee, Nancy Tedesco, ¹ and ordering the imposition of a constructive trust upon certain property owned by the parties during the marriage. Appellant alleges, inter alia, that exceptional circumstances exist sufficient to justify granting custody of the two children to him. He also claims that the trial court erred in finding that he had abused a confidential relationship with his former wife and, thereafter, in failing to undertake the three-step inquiry necessary to resolving contested property matters in divorce proceedings, as set forth in the Family Law Article (FL) of the Maryland Code (1984, 1991 Repl.Vol., 1995 Supp.). He raises the following questions on appeal:

1. Where two spouses have, in all respects, acted as a minor child's parents virtually from the child's birth, but where only one is the child's biological parent, is the fact that only one spouse is a biological parent so determinative of the issue of custody of that child that the biological parent is the only "rational" candidate for custody?

2. Where one child in a family unit is the biological child of only one of the spouses and the only other child in the household is biologically the child of both spouses, may a trial court treat biological parenthood as a virtually absolute reason for deciding custody of the first child, and then ignore the biological parentage of the second child and treat that child's half-sister as a "sibling" for purposes of applying the presumption against dividing custody of siblings?

3. May a trial judge properly exclude testimony by a child's teacher as to the likely effect on the child if the child's relationship with the person she has long regarded as her father were to be terminated?

4. May a trial court use the device of a constructive trust to avoid the application of the Maryland Marital Property Act to a family home, titled to the parties to a divorce as tenants by the entirety, that was acquired in part with funds that were the parties' marital property, and/or to avoid the prohibition in that Act on the court transferring title to stock from one spouse to the other?

5. Where one spouse owned a business before the parties' marriage, both spouses have worked extensively in it during their marriage, and the spouse who did not have prior ownership did so for little or no salary during the marriage, may a trial judge treat the business as entirely non-marital?

6. In a suit for an absolute divorce, may a trial court decline to grant a monetary award without following the three-step analysis mandated by the Maryland Marital Property Act?

THE PRELIMINARY FACTS

In 1989, while appellee was eight months pregnant with Bailey, she and her first husband, Carl Farnham, Bailey's biological father, were involved in a serious car accident. Carl Farnham was killed, and appellee sustained numerous injuries. Six weeks later, on November 13, 1989, Bailey was born. Shortly thereafter, the parties to the instant action began dating, and, on March 3, 1991, they married. Their child, Brent, was born on January 31, 1992. While the parties were married, appellant began working at Lallie, Inc., a printing firm that appellee had established prior to her first marriage. Appellant acquired increasingly important duties over time to the point that he handled much of the business affairs; appellee continued to focus upon the creative aspects of the company.

In March of 1992, appellee transferred title to a home she had owned since 1983 to herself and appellant as tenants by the entirety. She also transferred five hundred shares of stock in the printing company, half of the outstanding shares available, to appellant.

Several months later, the parties separated, and, on June 11, 1993, appellee filed a Complaint for Limited Divorce, Immediate Custody and Use and Possession and Other Relief. In an Opinion and Order dated September 28, 1993, the trial court found that the parties' relationship had not been characterized by physical violence or allegations of unfitness. The court also believed that appellee should have custody of the children at the family home. Thus, the court granted appellee use and possession of the family home and sole custody of Bailey. Joint custody of Brent was awarded, and a visitation schedule was established. Thereafter, on October 24, 1994, appellee filed a Complaint for Absolute Divorce. In it, she alleged, inter alia, that the parties operated within a confidential relationship and that appellant had abused that relationship in obtaining an interest in her assets. She also sought sole permanent custody of Brent.

Following a four-day trial on the merits of appellee's Complaint, the trial court, on July 3, 1995, rendered an opinion from the bench granting the divorce and awarding custody of both children to appellee. The court also found that appellant had exerted undue influence upon appellee and imposed a constructive trust upon appellant's ownership interest in the home and the printing company. Appellant's Motion to Alter or Amend was denied, and, on November 14, 1995, the Judgment of Absolute Divorce became final. Appellant filed a timely appeal therefrom.

I. Custody Issues

Judge Orth summarized the jurisdiction of Maryland courts in respect to child custody cases in Ross v. Hoffman, 280 Md. 172, 174-75, 372 A.2d 582 (1977):

In Maryland, resolving child custody questions is a function of the equity courts ... [which] may direct who shall have the custody of a child.... This jurisdiction is a continuing one, and the court may from time to time set aside or modify its decree or order concerning the child.

In exercising its jurisdiction over the custody of a child, the equity court performs two different but related functions: child protection and private-dispute settlement.... In performing [these functions,] ... 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. [Citations and footnote omitted.]

See also Montgomery County Dep't of Social Servs. v. Sanders, 38 Md.App. 406, 417-18, 381 A.2d 1154 (1977); Mullinix v. Mullinix, 12 Md.App. 402, 409, 278 A.2d 674 (1971).

Within the comprehensive framework of authority governing custody awards, the appellate courts of this State practice a limited review of a trial court's custody determinations. As outlined in Davis v. Davis, 280 Md. 119, 125-26, 372 A.2d 231, cert. denied, 434 U.S. 939, 98 S.Ct. 430, 54 L.Ed.2d 299 (1977),

[w]hen the appellate court scrutinizes factual findings, the clearly erroneous standard of Rule[ ] ... 1086 applies. If it appears that the chancellor 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 chancellor founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the chancellor's decision should be disturbed only if there has been a clear abuse of discretion. [Footnote omitted.]

See also Robinson v. Robinson, 328 Md. 507, 513, 615 A.2d 1190 (1992); Elza v. Elza, 300 Md. 51, 55-56, 475 A.2d 1180 (1984); Hoffman, 280 Md. at 186, 372 A.2d 582; Wagner v. Wagner, 109 Md.App. 1, 40, 674 A.2d 1 (1996); Burrows v. Sanders, 99 Md.App. 69, 75-76, 635 A.2d 82 (1994), cert. denied, 335 Md. 228, 643 A.2d 383 (1994); Levitt v. Levitt, 79 Md.App. 394, 398-400, 556 A.2d 1162, cert. denied, 316 Md. 549, 560 A.2d 1118 (1989); Scott v. Department of Social Servs., 76 Md.App. 357, 382-83, 545 A.2d 81, cert. denied, 314 Md. 193, 550 A.2d 381 (1988); Sanders, 38 Md.App. at 419, 381 A.2d 1154. Indeed, the chancellor's decision is unlikely to be overturned on appeal. Domingues v. Johnson, 323 Md. 486, 492 n. 2, 593 A.2d 1133 (1991) ("A chancellor's decision founded upon sound legal principles and based upon factual findings that are not clearly erroneous will not be disturbed in the absence of a showing of a clear abuse of discretion." (citations omitted)); see also Newkirk v. Newkirk, 73 Md.App. 588, 591, 535 A.2d 947 (1988) (custody decision is not a matter for the best judgment of the reviewing court). Additionally, the trial court's opportunity to observe the demeanor and credibility of the parties and witnesses is of particular importance. Petrini v. Petrini, 336 Md. 453, 470, 648 A.2d 1016 (1994); see also Wagner, 109 Md.App. at 40, 674 A.2d 1.

While the right of a natural parent to rear his or her child has been deemed to be "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), and of constitutional dimension, see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) (natural parents have fundamental liberty interest in the care, custody, and management of their child); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), a court must proceed with singular circumspection and deliberate solicitude in determining to whom the custody of a child will be awarded. See Wagner, 109 Md.App. at 37, 674 A.2d 1. "[T]he well-being of...