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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.

Even if you live in Maryland, your custody case may not be decided in Maryland!

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court shows that, although you live in Maryland, your custody case may not be decided in Maryland even if a Maryland court has the right to make the decision.

In Brooks v. Brooks, at the time of their child’s birth, the family was living in Maryland. The family later moved to Texas and, after Mom got a protective order against Dad, Mom and the child moved to California.

Dad filed in Maryland for custody. Mom asked the Court to dismiss Dad’s request for custody, which was denied by one judge. On review, another judge held a jurisdiction hearing. Dad was present at the hearing in Rockville, Maryland, but Mom was present in a Los Angeles County courtroom before a judge there. The two judges discussed the case both on and off the record.

The case turned on the judges’ interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a law enacted by every state and the District of Columbia. Under Maryland’s UCCJEA, a Maryland court only has jurisdiction to hear a custody case if:

(1) Maryland is the home state of the child, or (2) Maryland was the home state of the child within 6 months before the start of the case, and the child no longer lives in Maryland, but at least one parent still does live in Maryland. The “home state” of a child is where the child has lived more than half of the time during the last 12 months. Under this standard, Maryland could have decided the Brooks case.

However, Maryland may decline to exercise jurisdiction at any time if the court determines that Maryland is an inconvenient forumand another state would be a more appropriate forum. In determining whether Maryland is an inconvenient forum, the court considers 8 factors:

(i) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

(ii) The length of time the child has resided outside this State.

(iii) The distance between the court in this State and the court in the state that would assume jurisdiction.

(iv) The relative financial circumstances of the parties.

(v) Any agreement of the parties as to which state should assume jurisdiction.

(vi) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

(vii) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

(viii) The familiarity of the court of each state with the facts and issues in the pending litigation.

In Brooks, the Maryland court decided that Maryland is an inconvenient forum, and gave up jurisdiction. The judge zeroed in on 3 factors: (1) the child had been living outside Maryland for more than a year when the decision was made, (2) the child is 2 years old and will not testify, and (3) the people in California with whom she lives and who provide care to her are critical in determining her best interests.

Dad appealed. The Court of Special Appeals affirmed the trial court’s decision and found that Maryland was an inconvenient forum. The Court of Special Appeals determined that the trial court properly applied the factors to the facts of this case:

(i) There was a domestic violence altercation between the parties which led Mom and the child to move to California.

(ii) At the time of the hearing, the minor child had resided outside of Maryland for almost an entire year.

(iii) The distance between California and Maryland is 2,620 miles.

(iv) Both parties were gainfully employed and Mom was not in a superior financial position over Dad.

(v) There was no agreement between the parties on which state should assume jurisdiction.

(vi) Mom’s mother (the child’s grandmother), her pediatrician, maternal extended family, play dates, church/bible school, and swimming classes were all in California.

(vii) Both jurisdictions could decide the issue expeditiously.

(viii) Mom never submitted to Maryland’s jurisdiction because she never filed an answer in Maryland, but Dad submitted to California’s jurisdiction when he filed an answer in California.

* 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.

A court’s contempt order must have teeth to be enforceable.

By Vincent M. Wills

Contempt orders – orders issued by a court to force a person to comply with a prior court order – must contain a sanction and a purge provision to be enforceable. Dolet v. Martin, a recent unreported* decision of Maryland’s intermediate appellate court, holds that to be valid a court’s contempt order must contain a sanction and a provision that allows the person in contempt to purge the contempt.

Mr. Dolet (“Husband”) and Ms. Martin (“Wife”) entered into a separation agreement that was incorporated into their judgment of absolute divorce. By incorporating the agreement into the Judgment of Absolute Divorce, the court obtained the ability to enforce the agreement with its contempt powers. The parties agreed that the Husband would be the owner of property located in Bowie, Maryland. However, the parties also agreed that if the Husband vacated the property he would transfer the property to the Wife. When the Husband vacated the property, he refused to transfer the property to the Wife. In response, the Wife filed a motion for contempt, asking the court to order the Husband to deed the property to her. During the hearing on her motion for contempt, the Wife argued that the Husband was in contempt of court for failing to deed the property to her as required by the divorce decree.

Contempt is an inherent power of a court to enforce compliance with its orders. There are two classifications of contempt – civil and criminal. The purpose of civil contempt is to coerce present or future compliance with a court order. A civil contempt proceeding is used to enforce the rights of a private party to a case and to compel obedience to orders made to benefit such party. In contrast, criminal contempt is used to punish someone for past misconduct or disobedience to a court order.

Contempt may be direct or constructive. A direct contempt is something that occurs in the presence of the court and affects the proper functioning of the court. For example, saying something derogatory to a judge or flipping an inappropriate hand gesture to the judge are examples of direct contempt. In contrast, a constructive contempt occurs outside the presence of the court. For

example, failing to pay court-ordered child support is an example of constructive contempt.

Because civil contempt is used to force a party to obey a court order and not for punishment, it is remedial in nature. As a result, the sanction or penalty in a civil contempt must provide for purging. A purge provision is some action or monetary payment that a party is required to take or make in order to undo the finding of contempt. A purge provision has been described as having “the keys to the prison in his or her pocket.” Except for child support cases, before a court can make a finding of contempt, the person subject to contempt must have the present ability to comply with the purge provision.

Since the penalty imposed in a criminal contempt is intended as punishment, it does not have to provide for purging. If there is no purge provision to enforce compliance, the court is limited to using criminal contempt.

In Dolet v. Martin, the trial judge found the Husband to be in civil contempt. The judge stated that the Wife was entitled to any relief awarded by the court in a separate breach of contract suit that she also filed against the Husband. The Order did not contain a sanction, nor did it contain any provision that would allow the Husband to purge himself of the contempt.

On appeal, the Maryland Court of Special Appeals decided that the trial court’s civil contempt order was invalid, because it did not contain a sanction, nor did it contain a purge provision.

* 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.

Maryland Extends Standard For Stepparents, Grandparents and Others to Seek Custody or Visitation

On August 30, 2018, the Maryland Court of Special Appeals ruled that the status of de facto parent – sometimes called ‘psychological parent’ – which was recognized by the Court of Appeals in Conover v. Conover, 450 Md. 51 (2016), is not limited to same sex couples. A de facto parent is a non-related adult who claims custody or visitation rights based upon the party’s special relationship in fact with a non-biological, non-adopted child.

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals approved a ruling by the Circuit Court for Montgomery County, Maryland that a stepmother qualified as a de facto parent and was, therefore, permitted to have visitation rights with her stepson. De facto parent status is important, because, unlike anyone other than a biological or adoptive parent, when seeking custody or visitation of a child, a de facto parent does not have to prove that another parent is either unfit or that exceptional circumstances exist in order to overcome the presumption that it is in the best interest of a child to be in the custody of a parent or to allow the parent to decide who can visit the child.

Generally, grandparents, stepparents, and others do not stand on equal footing with biological or adoptive parents, because fit parents have a constitutional right to raise their own children. If a third party files a claim for custody or visitation, the third party must first prove that the parent is unfit or that exceptional circumstances exist before a court ever decides whether custody or visitation is in the best interest of the child. Unlike other third parties, a de facto parent stands on equal footing with a parent and does not have to overcome the presumption. Instead, the de facto parent merely has to prove that it is the child’s best interest for the de facto parent to have custody or visitation of the child.

In Conover v. Conover, the Maryland Court of Appeals recognized de facto parenthood status. The Court approved the following four-part test to establish de facto parenthood: (1) that the biological or adoptive parent consented to, and fostered, the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) that the de facto parent and the child lived together in the same household; (3) that the de facto parent “assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation;” and (4) that the de facto parent “has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals ruled that the trial court properly applied the four-part test established in Conover. The stepmother lived with the child from the time he was three years old until the time he was eleven. During that time, she took care of all of his needs. She bathed him, changed him, and put him to bed at night. She took the child to and from school, doctor and dental appointments, play dates, and extracurricular activities. She cooked his meals and packed his lunches, went to parent-teacher conferences, and arranged for his daycare, babysitters and camps. She helped to select his school. She also paid for the child’s camps and other things. She treated the child the same way that she treated her biological child with Mr. Kpetigo. When the child was young, he clung to his stepmother and would not go to anyone else. The child went on vacation with the stepmother’s family and referred to her family members as aunt or uncle. The Court of Special Appeals stated that once the stepmother proved that she was a de facto parent, the trial court properly found that it was in the child’s best interest to have visitation with his stepmother.

Neal J. Meiselman and Vincent M. Wills to Conduct a Seminar on October 26, 2018 for the Montgomery County, Maryland Bar Association Family Law Section

Neal J. Meiselman and Vincent M. Wills will conduct a Seminar entitled, “Determining Income for a Self-Employed Parent When Calculating Child Support” on Friday, October 26, 2018 from 9:00 a.m. to 3:30 p.m. at The Universities at Shady Grove, Building III, Room 4230, 9636 Gudelsky Drive, Rockville, MD. The program is sponsored by the Family Law Section of the Montgomery County, Maryland Bar Association.

The Seminar will focus on how to determine a parent’s income for purposes of child support when the parent is self-employed, a partner in a partnership, or a member of an S Corporation. The program will cover the law pertaining to calculating child support in cases where the combined income of the parents exceeds $180,000 per year. The program will focus on the relevant tax forms that are used to obtain information about a self-employed parent’s income.

Neal J. Meiselman is the founding Partner at Meiselman Helfant & Wills, LLC and has been a practicing attorney for almost forty years. Vincent M. Wills joined Meiselman Helfant & Wills, LLC as a Partner in August 2018. He has been a practicing attorney for over twenty-seven years.

Welcome Vince Wills!

Meiselman Helfant & Wills, LLC (formerly Meiselman & Helfant, LLC) is pleased to announce that Vincent M. Wills, Esquire has joined the firm as a partner.

The three partners at Meiselman Helfant & Wills together provide almost 85 years of experience representing families. The firm will continue to provide representation to clients in all aspects of family law including custody, child support, divorce, spousal support, distribution of marital property, transfers of retirement interests, and appellate litigation. The firm also provides mediation services to parties and attorneys in all family law matters.

Mr. Wills joins Meiselman Helfant & Wills after 22 years with Dragga, Hannon & Wills, LLP. Beginning in 1991, Mr. Wills practiced in Baltimore, Maryland for 5 years focusing in the areas of general civil litigation and family law. Since 1996, his practice has been concentrated in family law and particularly on complex litigation involving high net worth clients and issues including alimony, valuation of privately held businesses, and appellate matters.

Vince is a member of the American Academy of Matrimonial Lawyers and former chair of the Family and Juvenile Law Section of the Maryland State Bar Association. In 2017, he was named as the Family Law Practitioner of the Year by the Family Law Section of the Montgomery County Bar Association. He is a frequent lecturer for the State Bar Association and Montgomery County Bar Association. In February of 2018, he developed and presented a program about determining child support in high income cases to Judges and Magistrates at the Judicial College of Maryland. He has also co-authored numerous articles and training materials on family law. Before becoming a lawyer, Vince served on active duty in the United States Air Force, achieving the rank of Captain. He has been married for 36 years and has two adult children.

Neal J. Meiselman, Esquire is a well known and respected family law lawyer and mediator who has been practicing law in Maryland since 1978. His practice has also been focused on all aspects of family law, including mediation, complex litigation, and appellate matters. Nogah B. Helfant, Esquire has concentrated her practice in the area of family law in Maryland since 2000. Ms. Helfant has extensive litigation, mediation, and negotiation experience in contested divorce cases, protective orders, high conflict custody cases, modification, and post-divorce enforcement proceedings.

Living together

In 2006, the Maryland Court of Appeals considered the case of Ricketts, a couple who lived together in the same house, but in separate bedrooms and without cohabitation. The husband filed a complaint for limited divorce based on
constructive desertion, and for custody and visitation.The trial court dismissed the complaint because the parties were not living “separate and apart.” The husband appealed.

The Court of Appeals had to determine whether either or both causes of action — limited divorce and custody — could be maintained while the parties were “living under the same roof.” The Court decided that both causes of action could be
maintained, each for different reasons.

While acknowledging that “both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home,” the Court of Appeals revived a long-dormant framework for constructive desertion
based on refusal of sexual relations when the parties continue to reside together. To the chagrin of many couples, merely sleeping in separate bedrooms and ceasing to having marital relations will not suffice.

First, there must be “permanent refusal [by one spouse] … to have sexual intercourse with the other spouse, from no consideration of health or other good reason.”

Second, accompanying the permanent refusal of sexual intercourse, unless the nonrefusing spouse makes an “effort toward reconciliation, it is presumed that both spouses prefer to live under such circumstances” and the divorce will not be
granted.

As often occurs, what was left unspoken piques curiosity. The Court of Appeals noted that the only issue before it was the sufficiency of the pleadings. Mr. Ricketts sought a limited divorce based on constructive desertion, a fault ground, so the Court addressed the sufficiency of that claim. The Court did not address whether and under what circumstances parties residing in the same house might be able to obtain a limited or absolute divorce based on no-fault grounds.This possibility would be more in keeping with contemporary enthusiasm for and public policy favoring mediation, and other no-fault marital dissolution options.

Maryland law recognizes 12-month separation as grounds for an absolute divorce, if: (i) the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and (ii) there is no reasonable expectation of reconciliation. Maryland law has a similar provision for a limited divorce based on voluntary separation for less than 12 months.

Historically, the term “separate and apart” has meant the opposite of physically “living under the same roof.” In a 1964 case, where the parties “intermittently lived in the same house” during the statutory period, the Court of Appeals held “they were not living ‘separate and apart, without any cohabitation'” even though they slept in separate bedrooms and did not engage in sexual relations with one another.

Similarly, in 1972, the Court of Special Appeals (Maryland’s intermediate appeals court) held that “the separation contemplated by the statute does not occur until the parties cease living in the same house even though they may have ceased sexual relations prior to that time.”

However, in what might become a useful footnote in the 2006 case, the Court of Appeals explained: “By the phrase ‘live under the same roof,’ we mean that the parties are technically living together but are not cohabitating, sharing the same bedroom or engaging in marital relations.” The footnote goes on to equate “live under the same roof” with “cohabitation” as that term was re-defined in a 1996 case, Gordon v. Gordon.

In the Gordon case, in the course of interpreting a separation agreement, the Court of Appeals “formulated a [non exhaustive] list of factors to consider in determining whether a relationship constitutes cohabitation.” The factors are: 1. establishment of a common residence; 2. long-term intimate or romantic involvement; 3. shared assets or common bank accounts; 4. joint contribution to household expenses; and 5. recognition of the relationship by the community.

In theory, then, maybe it is possible to live “separate and apart” while only “technically living together.” Whether a limited or absolute divorce on no-fault grounds would be granted by a Maryland court under these circumstances
remains to be seen.

Meanwhile, back in Ricketts case, the Court of Appeals held that “jurisdiction to determine the custody and support of children and establish the visitation rights of the noncustodial parent … exists without regard to whether one of the parties has been granted, or is entitled to, a limited divorce.”

However, an award of custody is not required. The Ricketts opinion cites earlier cases, which held that “custody should be awarded and jurisdiction should be retained for the purpose of awarding support and maintenance if the circumstances should warrant such action.”