Wise-Jones v. Jones
| Decision Date | 01 September 1997 |
| Docket Number | No. 196,WISE-JONES,196 |
| Citation | 117 Md.App. 489,700 A.2d 852 |
| Parties | Marquita E.v. Thomas Ellsworth JONES. , |
| Court | Court of Special Appeals of Maryland |
Yvette Chesson-Wureh, Riverdale, for appellant.
Charles J. Janus, Temple Hill, for appellee.
Argued before MOYLAN and CATHELL, JJ., and ROSALYN B. BELL, Judge (retired), Specially Assigned.
Marquita E. Wise-Jones appeals from judgments of the Circuit Court for Prince George's County that 1) entered an immediate order which implemented a master's recommendation that custody of the parties' child, Aaron M. Jones, be with Thomas Ellsworth Jones, appellee; 2) denied her exceptions to the master's recommendation; and 3) modified a prior judgment of divorce so that appellee was granted custody of the child with appellant retaining reasonable rights of visitation.
We shall reverse the judgments of the circuit court.
On 7 September 1994, appellant and appellee were granted a judgment of absolute divorce. As part of that divorce decree, appellant retained custody of the parties' minor child and appellee was afforded reasonable rights of visitation.
Appellee filed a Motion for Contempt and Request for Modification of Judgment of Absolute Divorce on 22 January 1996. In that motion, he alleged that appellant had denied him access to Aaron and requested that the court award him sole custody of the minor child.
Following a "home study" conducted by the Department of Social Services, a hearing was held on 18 June 1996 before a Master for Domestic Relations Causes (master) regarding the modification of child custody. Additional testimony was taken on 20 June 1996 regarding health insurance coverage that was to be provided by appellee. The master ultimately recommended, in a written report sent to the parties on 12 July 1996, that Appellant promptly filed exceptions to the Master's recommendations on 22 July 1996.
On 29 August 1996, appellant filed a Motion to Extend Time for the filing of the transcript of the Master's hearings. Along with that motion, appellant filed pages one through fifty-eight of the transcript of the 18 June 1996 hearing. This motion for extension of time was granted by the trial court on 4 September 1996, and appellant was given until 22 September 1996 to produce a transcript of the hearing. A transcript of the remainder of the 18 June 1996 hearing was filed on 10 September 1996. The transcript of the 20 June 1996 hearing was not produced until 18 November 1996.
On 3 September 1996, appellee filed a pleading entitled "Ex Parte Motion for Temporary Custody." In that motion, appellee requested an "ex parte" order for temporary custody. The reasons for appellee's requested relief included:
1. That Master Rumsey held a plenary hearing on June 18, 1996 and found that [appellant] had abused her six-year old child, Aaron Jones, and that the child feared the mother.
2. In addition, the Master awarded [appellee] custody.
3. That [appellant] filed exceptions to the ruling on July 18, 1996, but has not produced a transcript.
4. That a hearing is not scheduled yet and the child must start school.
5. To avoid further abuse and allow the child to attend one school until a hearing is held or the exceptions are dismissed, [appellee] is requesting that he be awarded temporary custody.
Although a hearing as to appellee's "ex parte" motion was not held, the trial court granted the motion on 5 September 1996. The court's order provided that appellee "be, and hereby is forthwith, awarded custody of Aaron Jones."
A hearing on appellant's exceptions to the master's written report also was never held by the trial court. In a memorandum sent by the trial court to appellant's counsel prior to the dismissal of appellant's exceptions, the court explained the procedural posture of the case at that time:
This memorandum is in response to your memorandum of November 19, 1996, indicating ex parte relief had been granted against your client without notice or opportunity for a hearing.
There was a full hearing on [appellant's] Motion to Modify a Judgment of Divorce, which had granted custody to [appellee]. Both parties were pro se at the time. On April 18, 1996, the Master took some testimony and requested a Department of Social Service home study. On June 18, 1996, the Master recommended that the Judgment be modified to grant custody to [appellee].
Those recommendations were based upon the Master's finding that [appellee] is a fit and proper custodian for the child and that [appellant] had conducted a long-term and meritless course of action to deny any meaningful visitation to [appellee]. Accordingly, the Master felt that it would be in the best interest of the child to be placed with [appellee].
[Appellant] then hired Ms. Chesson-Wureh, who excepted to the Master's recommendations. [Appellee] then hired Mr. Janus, who opposed the exceptions. When Mr. Janus filed his Ex-Parte Motion for Temporary Custody on September 3, 1996, the Master considered the fact that his goal of placing the child situated in a stable school environment would be defeated if he were to remain with [appellee] pending the exceptions, and then be transferred in the middle of the school year.[ 1] For those reasons, the Master recommended a Forthwith Order.
The Master indicates that Ms. Chesson-Wureh was notified of [appellee's] request for Ex-Parte Temporary Custody....
The only "ex-parte" issue was whether to modify his recommendations of June 18th to provide for an immediate Order. For the reasons previously given, the Master felt an immediate Order was appropriate....
The Court is of the opinion that although [appellee] filed an Ex-Parte Motion for Custody on September 3, 1996, the Master's actions were not ex-parte. All he did was supplement his recommendations, which were made after a full hearing, to make them forthwith.
Furthermore, the Court is of the opinion that all of this is moot, in that the transcript pertaining to the exceptions on the merits was not timely filed. [Some emphasis added.]
The trial court later filed its order on 6 January 1997. It provided: "ORDERED, that [appellant's] Exceptions be, and hereby are, dismissed as moot; and it is further, ORDERED, that the Judgment of Absolute Divorce dated September 2, 1994 be, and hereby is, modified to grant [appellee] ... custody of ... Aaron M. Jones...." Appellant filed a timely notice of appeal on 29 January 1997.
Appellant presents four questions on appeal:
1. Did the trial court err in granting [a]ppellee ex parte custody while exceptions were pending and without finding an emergent need to protect the child and without granting a hearing on the order?
2. Did the trial court err when it dismissed [appellant's] exceptions as moot because she did not file a transcript of a contempt hearing even though [appellant's] exceptions related only to the Master's recommendations and [the] hearing on modification of custody?
3. Did the trial court err in modifying custody when it failed to make findings of fact or conduct an independent review of the case?
4. Did the trial court violate [appellant's] right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution?
1. Did the trial court err in granting [a]ppellee ex parte custody while exceptions were pending and without finding an emergent need to protect the child and without granting a hearing on the order?
In order to resolve successfully this issue, we must examine the trial court's authority to enter an immediate order based upon a master's recommendations. Although appellee's motion below was framed as an "ex parte" motion, it was in essence a request that the trial court enter an immediate order transferring custody of the child to appellee prior to a final determination of appellant's exceptions to the master's recommendation. We shall first examine a case that is factually similar to the case sub judice. Although the ultimate holding in that case is notNcontrolling because of statutory modifications to the authority of the trial court to enter immediate orders, its discussion of the trial court's authority is instructive.
In Stach v. Stach, 83 Md.App. 36, 573 A.2d 409 (1990), following a hearing regarding pendente lite custody, child support, and visitation, the master recommended that custody remain with the mother. The father immediately filed exceptions to the master's recommendations. Prior to a hearing on the exceptions, the trial court, pursuant to a motion filed by the mother, entered an immediate order implementing the master's recommendations. On appeal, the father argued that the trial court did not have the authority to enter such an order. We stated:
As we have already pointed out, this matter was referred to a master for a hearing on the issues of custody, support, and visitation of children pendente lite. Maryland Rule 2-541(b)(2). As we have also said, appellant timely filed exceptions to the master's recommendations. Under these circumstances, the authority of the circuit court to enter an immediate order based upon the master's recommendations is very limited.
Id. at 41, 573 A.2d 409. We ultimately held "a circuit court is without authority to pass an immediate order awarding custody of children pendente lite, upon the recommendation of a master, when exceptions to the master's recommendations have been timely filed and a hearing on those exceptions has been requested and has not been held." Id. at 43, 573 A.2d 409.
It is clear that the circuit court's authority is no longer circumscribed in such a manner. Former Maryland Rule S74A(f), now Maryland Rule 9-207(f), clearly provides...
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