Posts made in September 2019

When should a parent be able to get a custody trial postponed?

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court considered an appeal by a parent whose request to postpone a child custody trial was denied.

In general, a trial court has discretion to continue or postpone hearings ‒ and to refuse to do so. The Court of Special Appeals can reverse the trial court’s decision if there was an abuse of discretion or, in cases of exceptional circumstances, reversible error.

In Barriga v. Simich, Mother filed a complaint for sole legal custody and physical custody against Father. At the time, Father was living in Peru and was served with the papers in Peru. Father filed a counter-complaint against Mother for joint legal custody and visitation.

A custody hearing was scheduled for September 10, 2018. At Mother’s request, the Court moved the custody hearing to July 30, 2018. On its own, the Court then rescheduled the custody hearing for August 1, 2018.

Father filed a motion to postpone the July 30 hearing, asserting that he lived in Peru, received notice of the hearing on July 20, and was unable to attend the hearing due to the short notice and inability to miss work to travel to the United States. Father stated that he could travel to the United States the second week of December.

The Court wrote a note on top of Father’s motion, stating that the motion was moot because the case had been reset to August 1. The custody hearing was held on August 1, and Father was not present for the hearing. The Magistrate awarded Mother sole physical custody, sole legal custody, and child support. Father appealed. Father argued that the trial court failed to consider his request for a postponement.

Maryland courts have previously recognized cases of exceptional circumstances. Exceptional circumstances have included: 1. the Court holding a hearing when a parent is not present, without asking why the parent was absent, and without giving any consideration to whether the missing parent’s testimony would be competent or material; and 2. the Court holding a hearing when no prejudice to the other party was shown, no objection by the other party was made, and there was no urgency in holding the hearing.

Here, the Court of Special Appeals held that exceptional circumstances existed and reversed the trial court’s decision. The Court of Special Appeals found that the trial court failed to consider Father’s motion and gave no explanation for denying Father’s motion, despite Father living in Peru and not being able to travel until mid-December. There was also no urgency requiring that the custody hearing be held immediately.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.

Does retirement, on its own, justify a modification or termination of alimony?

By Nogah B. Helfant

In a recent unreported* decision Maryland’s intermediate appellate court considered a trial judge’s decision to deny a dentist’s request to terminate or reduce alimony, even though the dentist had retired.

Under MD Fam. Law Code § 11-107(b), the court may modify the amount of alimony awarded as circumstances and justice require. In addition, under MD Fam. Law Code § 11-108(3), alimony can be terminated if the court finds that termination is necessary to avoid a harsh and inequitable result.

In Miller v. Miller, the parties entered into a Memorandum of Understanding (“MOU”) on October 10, 2000, which was incorporated into the parties’ Judgment of Absolute Divorce. In the MOU, Dr. Miller agreed to pay Mrs. Miller alimony of $3,600 per month. Sixteen years after the MOU was signed, Dr. Miller decided to retire. Dr. Miller went to court to terminate or reduce alimony.

Evidence presented at trial showed that in his final year of employment, Dr. Miller, at age 72, earned over $188,000 and owned net assets of almost $2.9 million. Mrs. Miller, at age 68, was not employed at all, and was living off income from $1 million in assets she received under the MOU. During the marriage, Mrs. Miller had only worked sporadic part-time jobs, and earned at most just over $22,000.

Each party hired financial experts to testify about Dr. Miller’s ability to continue to pay $3,600 per month once he retires. Both experts considered Dr. Miller’s current age, life expectancy, average rate of return on his assets, and inflation. Mrs. Miller’s expert included all of Dr. Miller’s assets, including a substantial inheritance and the sale of his dental practice, while Dr. Miller’s expert only included the amount in Dr. Miller’s IRA. However, both experts agreed that Dr. Miller would not run out of money if he continued to pay Mrs. Miller $3,600 per month in alimony for the next five years.

In addition, Dr. Miller argued that Mrs. Miller had not made efforts to become self supporting. Mrs. Miller maintained she could not work due to her age, health, and difficulty finding minimum wage work at her age. Dr. Miller hired a vocational expert who testified that, based upon Mrs. Miller’s previous experience in child care, if Mrs. Miller worked part time as a child care provider and supplemented her position as a part time nanny or baby sitter, she could potentially earn $18,000-$19,000 per year.

In its analysis, the trial judge relied on the holding in Blaine v. Blaine, 336 Md. 49, 74 (1994), which states that an increase or decrease in the payor’s income is one of a totality of circumstances to be considered by the court when a request to modify alimony is made. The trial judge ruled that, while Dr. Miller’s retirement is a change of circumstance, it was not material to Dr. Miller’s ability to continue pay alimony at $3,600 per month. The trial judge also ruled that Dr. Miller’s total assets were more than sufficient to support him after he retires and, at the same time, allow him to continue to meet his alimony obligation.

As for Dr. Miller’s argument that the trial judge failed to consider Mrs. Miller’s lack of effort to become self supporting, the Court of Special Appeals held that there is no requirement that courts must consider the receiving spouse’s efforts to become self-sufficient when deciding to modify or terminate alimony.

The Court of Special Appeals affirmed the trial judge’s decision.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.