Touzeau v. Deffinbaugh

• Decision Date: 19 September 2006
• Docket Number: No. 126, September Term, 2005.,126, September Term, 2005.
• Citation: 394 Md. 654,907 A.2d 807
• Parties: Tara M. TOUZEAU v. Scott E. DEFFINBAUGH.
• Court: Court of Special Appeals of Maryland

Page 807

907 A.2d 807

394 Md. 654

Tara M. TOUZEAU v. Scott E. DEFFINBAUGH.

No. 126, September Term, 2005.

Court of Appeals of Maryland.

September 19, 2006.

Stephen J. Cullen (Miles & Stockbridge P.C., Towson; Todd M. Reinecker, Miles & Stockbridge, P.C., Baltimore), all on brief, for Petitioner.

Debra Gardner, Baltimore, Brief of Amici Curiae Public Justice Center, Legal Aid Bureau and Maryland Volunteer Lawyers Service.

Stephen H. Sachs, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Baltimore, of Counsel for Petitioner.

David C. Driscoll, Jr. (Monica G. Harms, Stein, Sperling, Bennett, De Jong, Driscoll & Greenfeig, P.C., Rockville), on brief for Respondent.

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

BATTAGLIA, Judge.

This case presents us with the question of whether the trial judge abused his discretion when he denied the motion of Petitioner, Tara M. Touzeau, for continuance of a hearing to modify child custody. We hold that the trial judge did not abuse his discretion in denying Ms. Touzeau's motion and therefore affirm the judgment of the Court of Special Appeals.

Facts

Tara M. Touzeau and Scott E. Deffinbaugh are the biological parents of Victoria, born on June 27, 1994. In 1997, Ms. Touzeau and Mr. Deffinbaugh presented to the Circuit Court for Montgomery County a Child Custody, Visitation, and Child Support Agreement, which was adopted by the court and afforded the two shared legal custody of Victoria, granted Ms. Touzeau primary residential custody of their daughter, and gave Mr. Deffinbaugh liberal visitation rights. The agreement also provided that a party relocating outside of the D.C./Baltimore Metropolitan area would provide the other with at least sixty days' advance notice.

Since entering into the Agreement, Ms. Touzeau and Mr. Deffinbaugh have had numerous skirmishes in the courts. In 1999, Mr. Deffinbaugh, through counsel, moved to enforce the agreement's terms because he alleged that Ms. Touzeau was interfering with his mid-week visits with Victoria. The parties, both represented by counsel, were able to settle the dispute out of court by agreeing to greater visitation rights for Mr. Deffinbaugh.

In 2001, Ms. Touzeau, through counsel, petitioned to reduce Mr. Deffinbaugh's visitation schedule, and Mr. Deffinbaugh responded by requesting that he be granted residential custody of Victoria. The court subsequently ordered a custody/visitation evaluation, the report of which stated that, although Ms. Touzeau has "done much to contribute to the disputes between the parents," and has "little insight into how she is contributing to the problems," a change of residential custody at this point would not be in Victoria's best interests," and therefore recommended that the arrangement remain constant. A three-day trial ensued, at which both parties were represented by counsel, after which the judge ultimately ordered that Victoria continue to reside with Ms. Touzeau, that the two parents continue to share legal custody, and that Mr. Deffinbaugh be granted greater visitation rights.

In 2002, Mr. Deffinbaugh, pro se, filed an emergency motion to prohibit Ms. Touzeau from withdrawing Victoria from her private school in order to home school her, to which Ms. Touzeau responded, without the assistance of counsel. The court held an emergency hearing and ordered that Victoria be returned to school. Ms. Touzeau subsequently filed a motion requesting that she be granted sole legal custody of Victoria, and a hearing was held before a master on the merits of Ms. Touzeau's motion, at which both parties represented themselves. After hearing argument by both parties, the master recommended that Ms. Touzeau's motion be denied, and Ms. Touzeau subsequently filed exceptions on her own to the master's recommendations. The court agreed with and adopted the master's recommendations and ordered that Ms. Touzeau and Mr. Deffinbaugh continue to share legal custody of Victoria, that Victoria continue to live with Ms. Touzeau, and that Mr. Deffinbaugh continue to have liberal visitation rights.

On September 1, 2004, Ms. Touzeau informed Mr. Deffinbaugh that she and Victoria would be moving from Silver Spring to Churchton, Maryland¹ in two weeks, and Ms. Touzeau and Mr. Deffinbaugh agreed to meet with a court-appointed parent coordinator on September 22 to discuss Mr. Deffinbaugh's new visitation schedule and Victoria's schooling. During the meeting with the coordinator, Ms. Touzeau announced that she and Victoria would be moving to Churchton on October 2, and that Victoria would be attending a new school, the Cardinal Hickey Academy, beginning October 4. The two were not able to come to any agreement as to Mr. Deffinbaugh's new visitation schedule.

On September 28, Mr. Deffinbaugh, through counsel, filed an emergency motion for modification of custody and attorney's fees in the Circuit Court for Montgomery County, alleging that Ms. Touzeau's divorce from her husband and relocation to Churchton constituted a material change in circumstances sufficient to justify a modification in the custody arrangement. In his motion, Mr. Deffinbaugh requested injunctive relief prohibiting Ms. Touzeau from relocating Victoria to Churchton, temporary primary physical custody of Victoria until a court evaluation and a hearing on his petition could be conducted, and permanent primary physical custody of Victoria. When Ms. Touzeau later moved with Victoria to Churchton, Mr. Deffinbaugh amended his motion to include a request that Ms. Touzeau be held in contempt of court for restricting his access to Victoria through the relocation. Ms. Touzeau, proceeding pro se, responded by filing a petition for an emergency order and counter-petition to modify custody requesting tie-breaking authority with respect to legal custody of Victoria to enable her to relocate Victoria to Churchton and to enroll her in a new school. She also amended her initial petition, after she moved, to include a request that Victoria's visitation schedule with Mr. Deffinbaugh be altered so that Victoria no longer would be required to visit with her father during the school week because of the length of the commute. An expedited scheduling conference was set for September 30, 2004, at which Mr. Deffinbaugh appeared with counsel and Ms. Touzeau appeared pro se. The judge ordered that another custody/visitation evaluation be conducted, the results of which were to be announced at a January 21, 2005 settlement conference, and set a custody modification hearing for February 8, 2005.

The parties convened before a master at the January 21 settlement conference and were presented with the results of the court-ordered Custody/Visitation Evaluation Report. The evaluator recommended that Mr. Deffinbaugh be granted both residential and legal custody of Victoria and that Ms. Touzeau be consulted on major decisions with regard to Victoria and that she be granted liberal visitation. On January 28, 2005, Ms. Touzeau filed a motion for continuance of the February 8 custody modification hearing, alleging that, in light of the court evaluator's "unfounded recommendations," she was attempting to obtain pro bono counsel. The motion was denied.

At the custody modification hearing, convened on February 8, 2005, Mr. Deffinbaugh appeared with counsel and Ms. Touzeau appeared pro se. Before the proceedings began, Ms. Touzeau renewed her request for a continuance, and the following dialogue ensued:

THE COURT: I'm going to hear your motion to continue, and then whatever happens with that will either be heard by someone today or whenever they get to it or—

MS. TOUZEAU: Okay. With regards to the, I'm sorry.

THE COURT: Go ahead.

MS. TOUZEAU: Okay. With regards to the continuance. I filed a continuance following our pre-trial conference in light of the unwarranted findings and recommendations of the Court evaluator's report. That was on January 21, 2004. The master recommended at that time, because I was pro se, that I should seek counsel in light of the findings. I filed a motion for continuance. It was opposed by plaintiff and for the fact that it was considered a delaying tactic and it was denied. However, I have taken many steps even before to try to secure pro bono representation through, I tried to go through the legal aid bureau and they said they would only be able to even evaluate it if I got a continuance, which was denied. Last Thursday I met with Stephen Cullen of Miles and Stockbridge, he's a partner and the director of pro bono services for Miles and Stockbridge and he is willing to represent me on a pro bono basis, but was unable to file a line of appearance because he already had another commitment at today's hearing date. I have an affidavit from Mr. Cullen.[²] May I approach?

THE COURT: I don't need that.

MS. TOUZEAU: You don't?

THE COURT: No. Go ahead.

MS. TOUZEAU: So I would like to request a continuance in light of the fact that this is a serious nature regarding my daughter, so that I may be able to proceed with counsel.

THE COURT: All right. What I'd like to do is to decide the continuance issue first and then we'll see where we go after that, but I definitely want to figure out whether it's going to be heard today or not. All right. Anything else on your motion to continue?

MS. TOUZEAU: No.

Mr. Deffinbaugh responded that he was opposed to a continuance because of the urgency of the matter and argued that Ms. Touzeau had ample time to obtain counsel and that the request was nothing more than a delay tactic. Ms. Touzeau responded:

MS. TOUZEAU: Okay. I think it needs to be also pointed out to the Court that at the pre-trial conference, which was January 21st, is the first time we were even orally presented with the recommendations and findings. They vastly differed from the Court evaluator's report that had been done just a few years previous. And, in addition to that, I only received from the Court evaluator the full...