Wagner v. Wagner

• Decision Date: 01 September 1995
• Docket Number: No. 608,608
• Citation: 674 A.2d 1,109 Md.App. 1
• Parties: Robin L. WAGNER (Schwartz) v. Richard B. WAGNER. ,
• Court: Court of Special Appeals of Maryland

Page 1

109 Md.App. 1

674 A.2d 1

Robin L. WAGNER (Schwartz) v. Richard B. WAGNER.

No. 608, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 6, 1996.

Reconsideration Denied April 30, 1996.

Mercedes C. Samborsky, Joppatowne, for appellant

Marc G. Rasinsky (Scott & Rasinsky, on the brief), Westminster, for appellee.

Argued before BLOOM, FISCHER and CATHELL, JJ.

CATHELL, Judge.

In an Order dated November 17, 1994, the Circuit Court for Carroll County (Beck, J., presiding) awarded permanent custody of the parties' two minor children to appellee, Richard Wagner (Mr. Wagner). The court further found appellant, Robin Wagner (Ms. Wagner), ¹ to have voluntarily impoverished herself. She now appeals to this Court, charging, inter alia, that the circumstances leading to the trial court's Order deprived her of due process of law. Namely, she contends that she was not given notice of, and an opportunity to prepare for, various hearings that took place in the years following her divorce from Mr. Wagner. She is further aggrieved by other of the court's rulings and presents the following questions for our consideration, which we renumber as follows:

1. Did the court violate appellant's constitutional due process rights to notice, opportunity to be heard, opportunity to prepare for the hearing and opportunity to defend claims, during the proceedings below?

2. Did appellee satisfy his burden of proving a change of circumstances to justify a change in Erika's custody, either in 1992 or 1994?

3. Did the trial court abuse its discretion when on April 2, 1992 it granted appellee "immediate custody" of Erika without making any provisions to protect Erika from the risk of continued sexual abuse and without an evidentiary hearing?

4. Did the court err in failing to acknowledge that appellant was justified in declining to send eight-year-old Erika for grandparent visitation where appellant had reason to believe that Erika would be exposed to the danger of continuing sexual abuse by appellee and such action was against Colorado DSS recommendations and court motion?

5. Did the trial court err when it ruled that appellant had voluntarily impoverished herself?

6. Did the trial court abuse its discretion when it relied on the statements made by the children at the in camera interviews, absent questions establishing their competency?

7. Did the trial court abuse its discretion in assessing counsel fees against appellant where the court failed to make the findings mandated by statute, Md.Code, Family Law Art. § 12-103, to justify such assessment?

8. Did the trial court abuse its discretion when it denied appellant's request to transfer this case to Anne Arundel County?

As we attempt to wade through the plethora of pleadings that has characterized the instant case from its outset, the gravity of the situation presented to this Court and to which the two children involved have been subject will become apparent. We also keep in mind that "[o]verarching all of the contentions in disputes concerning custody or visitation is the best interest of the child[ren]." Hixon v. Buchberger, 306 Md. 72, 83, 507 A.2d 607 (1986).

CHRONOLOGY OF THE CASE

The parties were wed on February 16, 1979. Of the union, two children were born: Kristopher Richard (Kris), on June 9, 1981, and Erika Ashley, on April 21, 1984. The family moved to Carroll County in December of 1986; one month later, Ms. Wagner declared her desire that the parties divorce. On March 30, 1987, Ms. Wagner initiated a separation by leaving the marital home with two-year-old Erika; five-year-old Kris refused to go. The next day, after an unsuccessful and surreptitious attempt by Ms. Wagner to remove Kris from school, Mr. Wagner filed in the Circuit Court for Carroll County a Complaint for Immediate Custody of both children. Thereafter, he filed an Amended Complaint for Limited Divorce. On April 1, 1987, Ms. Wagner filed in the Circuit Court for Anne Arundel County a Complaint for Limited Divorce on grounds of extreme cruelty. The matter was transferred by consent to the Circuit Court for Carroll County on May 4, 1987. Pendente lite custody arrangements, ordered on April 7, 1987, called for Erika to remain with Ms. Wagner, and Kris with Mr. Wagner. This pendente lite order was followed by a hearing before a Master on July 7, 1987, at which twenty-nine witnesses took the stand over a course of four days. The Master's ensuing recommendation continued the pendente lite arrangement and rejected each party's claim that the other was an unfit parent. No exceptions were taken therefrom, and the trial court incorporated the Master's recommendations in an Order issued October 6, 1987, which similarly continued the existing pendente lite custody arrangements. No allegations of sexual child abuse surfaced at this time.

A five-day trial on the merits of the parties' complaints began on May 16, 1988 and was characterized by the trial court as

all out "warfare" to portray the other party as an "unfit parent." [Ms. Wagner] attempted to portray [Mr. Wagner] as an alcoholic who "did not know his own strength" when drinking. [Mr. Wagner] attempted to portray [Ms. Wagner] as an adulterous woman who placed her career and extramarital relationships ahead of her children. Despite the week long trial and multitude of witnesses, the parties were totally unsuccessful in besmirching each other's character.

The trial court subsequently granted Mr. Wagner a divorce a vinculo matrimonii on grounds of desertion, having found Ms. Wagner to be at fault for the demise of the marriage. The court denied Ms. Wagner's Complaint, and the pendente lite custody arrangements were accorded permanent status. Thereafter, a visitation schedule was devised. No allegations of sexual child abuse were made during the trial.

The litany of pleadings did not abate following the parties' divorce. In fact, it increased substantially, characterized, on one hand, by allegations that Ms. Wagner was impeding Mr. Wagner's visitation with Erika and, on the other, by accusations of Mr. Wagner's violence and abuse against Ms. Wagner. Each pleading sought a change in custody or modification of visitation. Mr. Wagner's Complaint for Ex Parte Relief, filed September 16, 1988, was no exception. This was to be his first of eight such complaints. It alleged that Ms. Wagner was planning to leave Maryland with Erika, without informing him thereof or seeking his consent. Though the court granted Mr. Wagner temporary custody of the child, that order was rescinded on September 30, 1988, and Ms. Wagner regained custody of Erika, expressly conditioned upon her continued residence in Maryland. No allegations of sexual child abuse were made during those proceedings.

The issue of Ms. Wagner's relocation remained at the forefront of the case until December of 1989, when the court approved an agreement between the parties, whereby it was agreed that Ms. Wagner could move to Colorado with Erika. A revised visitation schedule as well as provisions for telephone contact between Erika and her brother and father were included in the Agreement. No allegations of sexual child abuse surfaced at the time of the agreement.

Thereafter, Mr. Wagner filed the following Supplemental Complaints requesting changes to the original decree:

Second Supplemental Complaint, on January 5, 1990, based on, inter alia, Mrs. Wagner's alleged failure to adhere to the Agreement with regard to his telephone visitation with Erika; ² Third Supplemental Complaint, on January 18, 1991, wherein Mr. Wagner sought, among other things, child support and contended that Mrs. Wagner had allowed Erika to return to Maryland on several occasions without notifying him;

Fourth Supplemental Complaint, on February 26, 1991, alleging Mrs. Wagner's intentional frustration of attempts to agree as to terms surrounding Erika's visit during the Easter holiday; ³ and

Fifth Supplemental Complaint, on May 3, 1991, in response to further thwarting by Mrs. Wagner of his visitation with Erika and alleging a substantial change in circumstances that mandated a change in custody of Erika to him. Trial was scheduled for February 5, 1992.

In addition to supplemental complaints, as we have noted, appellee filed several petitions that he characterized as ex parte pleadings. Before his third Complaint for Ex Parte Relief, filed April 11, 1991, could proceed to hearing, Mr. Wagner interposed a fourth ex parte Complaint, ⁴ on April 12, 1991. In it, Mr. Wagner disclosed that Ms. Wagner had, on April 9, 1991, secured an Ex Parte Temporary Restraining Order in Colorado, the equivalent of a Maryland Domestic Violence Protective Order, upon her assertion that Mr. Wagner had threatened her over the telephone. The order, which foreclosed Mr. Wagner from maintaining any contact with either his daughter or his ex-wife, was served upon him on April 11, 1991. Apparently, Ms. Wagner did not, even at this late stage, allege in the Colorado Court the occurrence of sexual child abuse. On April 12, 1991, the Circuit Court for Carroll County denied the Park County, Colorado court order full faith and credit and directed that visitation occur as had been previously arranged, between April 12 and April 15, 1991.

Another Complaint for Ex Parte Relief, filed on June 17, 1991, was again based on Ms. Wagner's failure to permit Mr. Wagner and Erika to engage in telephone visitation. The court deferred consideration of the Complaint until the then scheduled September 11, 1991 hearing date. On October 16, 1991, Mr. Wagner filed a Motion for Emergency Hearing and for Contempt when Ms. Wagner obtained another Colorado court order based on allegations made for the first time that Mr. Wagner and Kris had sexually abused Erika. ⁵ Ms. Wagner, by her attorney-in-fact, responded with a Motion for Contempt and Other Relief on October 18, 1991, claiming that Mr. Wagner was refusing to allow her to visit with Kris on the telephone....