Wolinski v. Browneller

• Decision Date: 01 September 1996
• Docket Number: No. 1353,1353
• Parties: Diane WOLINSKI v. Gary C. BROWNELLER, et ux. ,
• Court: Court of Special Appeals of Maryland

Page 285

115 Md.App. 285

693 A.2d 30

Diane WOLINSKI v. Gary C. BROWNELLER, et ux.

No. 1353, Sept. Term, 1996.

Court of Special Appeals of Maryland.

April 30, 1997.

Motion for Reconsideration Denied on May 27, 1997.

Judith A. Ringle, Dundalk, for Appellant

Gary N. Bowen, Baltimore, for Appellees.

Argued before WENNER, DAVIS and HARRELL, JJ.

DAVIS, Judge.

Diane Wolinski appeals from a judgment of the Circuit Court for Baltimore County that affirmed a Master's written report and recommendations concerning grandparent visitation rights to Destiny, appellant's daughter. On September 12, 1995, Gary and Jane Browneller, appellees, filed an action in the circuit court in order to establish a set schedule for their visitation with their granddaughter, Destiny. Appellant also requested a court order of reasonable visitation, but requested that the order conform to her proposed schedule of visitation. Immediately after a hearing held on December 12, 1995, Master in Chancery Jacqueline D. Wyman entered an Emergency Order that granted overnight visitation rights to On December 21, 1995, the court filed an Emergency Pendente Lite Order that granted appellees visitation rights according to the terms set forth in the Master's recommendations. On January 14, 1996, the circuit court granted appellant's motion to stay the execution of the Order. ¹ The court held a hearing on the exceptions on February 2, 1996. By a Memorandum Opinion and Order filed on March 7, 1996, the court affirmed the Master's findings and recommendations.

the grandparents in a set schedule different than that proposed by appellant. By its terms, the Order was to expire on March 11, 1996. Appellant immediately filed exceptions to the Master's ruling, requesting an expedited hearing on the exceptions. One week later, on December 19, 1995, appellant amended her exceptions, asserting that the Order violated appellant's Fourteenth Amendment privacy rights and that the Master erred in excluding testimony on prior efforts to establish reasonable visitation hours for appellees. Appellant also filed a motion to stay the ordered visitation pending a ruling on the exceptions.

The Order expired on March 11, 1996. On March 12, appellant filed a Motion to Amend or Alter the Judgment under MD.RULE 2-534 (1996), pointing out that the Master recommended mediation by the parties through the Custody and Mediation Division of the circuit court. In a ruling filed on April 3, 1996, the circuit court approved this recommendation and granted appellant's motion, ordering the parties to proceed with mediation "in due course." The court ordered the visitation schedule set by the Master, including the overnight visitation, to continue in place pending the recommendations of the Custody and Mediation Division. The chancellor On April 3, 1996, appellant filed her notice of appeal from the judgment of the circuit court entered on March 7, 1996. Appellant amended her notice of appeal on April 11, 1996, acknowledging the receipt of the chancellor's April 3 ruling. ³ Appellant presents three questions for our review, which we restate as follows:

issued another order on May 22, 1996, denying appellant's second motion to stay the visitation order. ²

I. Did the chancellor err by not applying a presumption that appellant's proposed schedule of visitation was in Destiny's best interests?

II. Did the chancellor abuse his discretion by failing to consider testimony that overnight visitation was harmful to Destiny?

III. Did the chancellor abuse his discretion in refusing to allow testimony concerning post-complaint visitation by appellees?

We answer in the affirmative to the first question, we do not reach the second, and we answer the third in the negative. We vacate the chancellor's decision and remand.

FACTS

Destiny was born on March 4, 1994. Destiny's father, Nicholas Browneller, joined the U.S. Navy and left home in September 1994. Before Nicholas joined the Navy, appellees received overnight visits from Destiny every other weekend, from Saturday to Sunday afternoon. ⁴ Appellant testified at Nicholas came home for Christmas on December 24, 1994. He left again on January 9, 1995. He, appellant, and Destiny were together during that period; appellant testified that appellees saw Destiny almost daily at this time, including during Christmas. After Nicholas returned to duty on January 9, appellees' previous visitation schedule resumed until March 1995.

the hearing before the Master that Destiny "would come home irritable and cranky and more clingy to me" after these visits.

On an unspecified day in March, Destiny was visiting appellees at their home. Appellant called appellees and requested that they return Destiny to her by 1:30 p.m. so that appellant could take Destiny to a baby shower for a friend. Appellees said that they were planning to take Destiny out to dinner until 3:00 p.m. and that they would call appellant when they returned. ⁵ Appellant called the police, and appellees returned Destiny to appellant at 1:30 p.m. From that day in March until the end of May 1995, appellant allowed visitation by appellees only in appellant's home.

Appellees claim that the incident in March was not the real reason for the disruption of overnight visitation. They claimed that Nicholas "broke up" with appellant in that month. From that point on, appellees alleged, appellant used Destiny as a "pawn" to strike at Nicholas and his parents. This manipulation allegedly intensified after September 1995, when Nicholas allegedly returned to his parents' home with a new girlfriend. Appellees allege that in that month, appellant announced that she intended to deny appellees and Nicholas all visitation. Appellees assign blame for the problems with On May 12, 1995, appellant sent to appellees a handwritten proposal that appellees would have visitation, at their home, with Destiny for eight hours a day on every other Saturday and Sunday. Appellees agreed to this by signing the proposal and sending it back to appellant on May 26, 1995. Until September, regular visitation occurred as previously agreed. Appellant claims that Destiny was irritable, cranky, and "overly clingy" to her mother after each visit.

overnight visitation, then, to petty jealousy and intransigence on appellant's part.

On September 4, 1995, appellees took Destiny out of the State (in contravention of the agreement) to pick up her father at D.C. National Airport when he arrived on leave from the Navy. Afterward, according to appellant, Destiny was terrified and developed pneumonia later in the week. Appellant also testified that Nicholas threatened her life over the telephone during his time at home, causing her to obtain a restraining order against him. As noted supra, appellees maintain that appellant was furious when Nicholas brought home a new girlfriend. The parties hold fast to their respective versions of events; appellant claims to have extended an invitation to the Brownellers and Nicholas to visit Destiny at appellant's home, and appellees claim that appellant announced that she intended to deny appellees and Nicholas all visitation. For purposes of this appeal, events culminated with the filing of the Complaint on September 12, 1995.

ANALYSIS

MARYLAND CODE (1984, 1996 Supp.), § 9-102 of the FAMILY LAW ARTICLE (F.L.) reads as follows:

An equity court may:

(1) consider a petition for reasonable visitation of a grandchild by a grandparent; and

(2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent.

Id. The Court of Appeals has interpreted the permissive language of the statute as investing the chancellor with discretion A Master's findings of fact are merely tentative and do not bind the parties until approved by the court. Doser v. Doser, 106 Md.App. 329, 343, 664 A.2d 453 (1995). Upon due consideration of the facts found by the Master, "the court may use the master's facts to support what it concludes in its independent judgment is the optimal resolution." Id. Consequently, our task on review is to determine whether the chancellor abused his discretion in his award of visitation. See Beckman v. Boggs, 337 Md. 688, 703, 655 A.2d 901 (1995).

to award visitation according to the facts and circumstances of each case. "The statute's use of the word 'may,' rather than 'shall,' signifies that the steps prescribed in § 9-102 are available, but not mandatory; such is the ordinary and natural import of the word." Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993).

A

Appellant first challenges the constitutionality of the chancellor's application of the grandparent visitation statute. She forgoes a constitutional challenge to the legislature's authority to mandate grandparent visitation against a parent's wishes; conceding that the chancellor possessed constitutional and statutory authority to award visitation to appellees, appellant chooses a more sharply defined ground upon which to fight. She argues that the Fourteenth Amendment mandates applying a rebuttable presumption that her proposed schedule of visitation was in Destiny's best interests. This presumption, appellant argues, is rebuttable only by evidence that the schedule would be harmful or neglectful of Destiny. By failing to apply the presumption in setting the schedule of appellees' visitation with Destiny, appellant concludes, the Master and the chancellor violated appellant's Fourteenth Amendment liberty interest to be free from excessive governmental interference in matters of child-rearing.

We note at the outset that appellant does not base her claim on the language of the statute or the intent of the General Assembly in passing the Grandparent Visitation Act.

In fact, conspicuously absent from her argument is any suggestion that the statute, by expression or implication, mandates a rebuttable presumption that a parent's wishes regarding visitation schedules are in the child's best...