Wason v. Long

• Decision Date: 06 July 2016
• Docket Number: No. 0670,0670
• Parties: GILLIAN GILBERT WASON v. JEFFREY EDWARD LONG
• Court: Court of Special Appeals of Maryland

GILLIAN GILBERT WASON v. JEFFREY EDWARD LONG

No. 0670

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

July 6, 2016

UNREPORTED

ON MOTION FOR RECONSIDERATION

Krauser, C.J., Leahy, Friedman, JJ.

Opinion by Krauser, C.J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

While in an intimate relationship, Gillian Gilbert Wason, appellant, and Jeffrey Long, appellee, had a child together, two-year-old B., who is the subject of this appeal. When that relationship ended, Mr. Long filed a complaint, in the Circuit Court of Wicomico County, seeking physical custody and joint legal custody of B. Ms. Wason responded with a counter-complaint, requesting sole physical and legal custody, and supervised visitation for Mr. Long. At the conclusion of the trial which ensued, the circuit court, after granting joint legal custody, awarded Ms. Wason sole physical custody of B., and Mr. Long, unsupervised visitation. It then ordered Mr. Long to pay child support. That monthly payment was, however, subject to abatement depending upon where he exercised his right to visitation, that is, in Maryland, where he lived, or in Georgia, where Ms. Wason and B. lived.

On appeal, Ms. Wason presents three questions for our review. Rephrased, to facilitate that review, they are:

I. Did the Circuit Court make a finding of child neglect by Mr. Long, and, if so, did the lower court err by granting Mr. Long unsupervised visitation of B, absent a finding that there is no likelihood of further abuse or neglect?

II. Did the Circuit Court err in calculating Ms. Wason's income for the purposes of child support?

III. Did the Circuit Court err in permitting a deviation from Mr. Long's child support payments based on where he exercised his right to visitation?

For the reasons that follow, we shall vacate the circuit court's grant of unsupervised visitation to Mr. Long, and remand this case to that court for further proceedings regarding whether or not visitation should be unsupervised, in light of what appears to be a findingby that court of "neglect." Furthermore, we conclude that the circuit court did not err in calculation of Ms. Wason's income, though either party may, of course, petition the circuit court to modify child support, based on a change in circumstances, upon the remand of this case. Finally, as to whether an abatement of Mr. Long's child support was warranted based on where he chose to exercise visitation, we neither affirm nor reverse but remand for the circuit court to clarify its decision with respect to whether the mode of transportation, chosen by Mr. Long, affects the amount of that abatement.

I.

Ms. Wason and Mr. Long met in 2011, when both were users of illegal drugs, in particular, heroin, though Ms. Wason had purportedly terminated her use of such drugs by the end of that year. A year later, the two became engaged to be married. Then, months later, on September 2, 2013, B. was born to Ms. Wason, and Mr. Long, who was also the father of two other children. At that time, they were living together in Salisbury, Maryland. A month after the birth of B., Mr. Long claims that he, too, ceased using illegal drugs, a claim which Ms. Wason disputed at trial.

By September 2014, the couple's relationship had ended, whereupon Ms. Wason, with B., left their shared home. The next month, Ms. Wason moved to Georgia, where her mother lived, taking B. with her and without informing Mr. Long of her decision to do so. Upon learning of the relocation, Mr. Long filed a complaint, in Wicomico County Circuit Court, seeking custody of B. or, alternatively, visitation with her. At the end of that year, a pendente lite hearing was held. The resultant order gave Mr. Long supervised visitation with B., and, in lieu of child support, he was responsible for the expense of Ms. Wason'sair flights to Maryland, where Mr. Long exercised visitation. A few months later, Ms. Wason filed a counter-complaint, seeking sole legal and physical custody of B. and requesting that any visitation granted to Mr. Long, with B., be supervised.

In May of 2015, at the trial on this matter, evidence was presented by Ms. Wason, which Mr. Long does not dispute, that, during visitation with his two other children in 2011, he drove those children in a car, while under the influence of heroin, and then, acted in a highly inappropriate and disturbing manner in front of those children. Specifically, during that visitation, Mr. Long was, according to Ms. Wason, "most of the time either half naked or completely naked. He was swinging from the bannister rail . . . he was grabbing ahold of it and swinging on it . . . [he] was just completely incoherent and would lose touch with what was going on and where he was and what his surroundings were. . .." Mr. Long neither admitted nor denied this conduct, asserting only that he had no memory of it.

Testimony was also presented that Mr. Long left a gun in various unsecured locations at the home that he and Ms. Wason shared and that a child of a visiting friend of Ms. Wason, had observed that gun on a coffee table, ran over to it, and grabbed the weapon. Fortunately, Ms. Wason was able to quickly remove it from the child's possession.

At trial, evidence was also presented concerning the parties' employment and income. Specifically, Mr. Long testified that he had previously worked as a car salesman but that he expected to be working shortly as a "sous chef" for a restaurant, where he would be making $46,000 per year. In contrast, Ms. Wason testified that, while in Maryland, she worked as a waitress and a hairdresser, and, after moving to Georgia, she worked as a childcare provider for $50 per week. She expected, however, to be working as a vendor ata farmer's market for $480 per week beginning that May. She added, however, that that position was "seasonal," that is, she normally worked full-time through the summer, but, in August, her employment would be reduced to part-time, reflecting a seasonal adjustment. She failed to specify, however, whether her salary would be reduced in August, and, if it would be, by how much and for how long.

At trial, Mr. Long also presented evidence as to the cost of travel between Georgia and Maryland, which he had paid to visit B. under the pendente lite order, specifically, the expense of flying Ms. Wason and B. to Maryland. If, on the other hand, he chose to drive from Maryland to Ms. Wason's Georgia home, that car trip, he indicated, would be "eleven hours and 48 minutes" long. Finally, the court was advised by Ms. Wason that B. did not "do well" on long car rides. Specifically, Ms. Wason stated:

Having travelled multiple times with [B.] . . . she does not do well in car rides past a few hours . . . [W]hen I drove from Salisbury to Georgia . . . it took us two days because we stopped multiple times at attractions to keep her . . . entertained and stimulated . . . even then she was not happy to be in the car for that long of a time.

The court, after those proceedings ended, issued an oral opinion and a written order, in which it awarded joint legal custody to both parties, sole physical custody to Ms. Wason, and unsupervised visitation to Mr. Long. The court then calculated Mr. Long's child support obligation, stating that that obligation would vary, based upon either his mode of transportation, as Ms. Wason claims, or upon the location of visitation, as Mr. Long insists.

Then, in granting Mr. Long unsupervised visitation the court observed:

[Court:] I think [Mr. Long's] recitation of the law in the case is spot on, unless [Ms. Wason] can show that visitation with [Mr. Long] presents a clear and present danger to [B.], he is entitled by Maryland law to havevisitation . . . . I have heard a lot of testimony with regard to [Mr. Long's] drug usage, as well as [Ms. Wason's] drug usage. He goes off the wagon, so to speak, and when he does, does some fairly bizarre things . . . we heard testimony . . . that [Mr. Long] was a hard-working, productive employee. So this isn't a situation which [Mr. Long] is always off on a bender. He has obviously supported himself and [Ms. Wason] and their child. . . . So, I do share [Ms. Wason's Counsel's] concern and [Mr. Long's] concern, about him using drugs. That should be addressed . . . in order to have visitation, [Mr. Long] should submit to a chemical test to show that he doesn't have any illegal drugs in his system. . . .

* * *

When [Mr. Long] visits in Georgia, he flies down, has three days with her, say three eight-hour days with her, and again it's without supervision, there is not even a scintilla of evidence in the record that he would harm his daughter. . . . There is evidence that he has been neglectful. There is certainly evidence that he has been neglectful. Leaving a gun around in an apartment where there are kids? If something happens to a child, he would go to jail for reckless endangerment. So yeah, there were times when he has been negligent. There are no two ways about that.

But again, I think that with the, that he's probably been under influences of substances at that time, he hasn't been in his right mind, and the court is going to, hopes that his taking of drug tests will be proof that he is in his right mind.

(Emphasis added.)

Consequently, the court ordered Mr. Long to submit to chemical tests for drugs one week prior to any scheduled visitation. If Mr. Long tested positive, visitation would not occur.

Next, in calculating Mr. Long's child support obligation, the court found that Mr. Long's pre-tax income was $3,833 per month, based upon his upcoming employment as a "sous chef" and that $2,080 per month, was the amount Ms. Wason "can earn" based on her employment, at that time, as a vendor for a peach farm at a farmer's market.Immediately after that, the court stated, in...