Nuts and Bolts: Family Law 101
September 16, 2015
Summary of Some Important Family Law Cases
Alimony
Boemio v. Boemio, 414 Md. 118 (2010)
Bradley v. Bradley, 214 Md. App. 229 (2013)
Walter v. Walter, 181 Md. App. 273 (2008)
Whittington v. Whittington, 172 Md. App. 317 (2007)
Award of custody while parents living together
Ricketts v. Ricketts, 393 Md. 479 (2006)
Child Interview by Judge
Marshall v. Stefanides, 17 Md. App. 364 (1973)
Shapiro v. Shapiro, 54 Md. App. 477 (1983)
Wagner v. Wagner, 109 Md. App. 1 (1996)
Child’s Surname
Lawrence v. Lawrence, 74 Md. App. 472 (1988)
Malin v. Mininberg, 153 Md. App. 358 (2003)
Schroeder v. Broadfoot, 142 Md. App. 569 (2002)
Child Support
Arrington v. Dep’t of Human Res., 402 Md. 79 (2007)
Bradford v. State, 199 Md. App. 175 (2011)
Cutts v. Trippe, 208 Md. App. 696 (2012)
Dep’t of Human Res. v. Mitchell, 197 Md. App. 48 (2011)
Flanagan v. Dep’t of Human Res. ex rel. Balt. City Dep’t of Soc. Servs., 412 Md. 616 (2010)
Guidash v. Tome, 211 Md. App. 725 (2013)
Kamp v. Dep’t of Human Servs., 410 Md. 645 (2009)
Petitto v. Petitto, 147 Md. App. 280 (2002)
Richardson v. Boozer, 209 Md. App. 1 (2012)
Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308 (2010)
Conditional Custody Awards
Cohen v. Cohen, 162 Md. App. 599 (2005)
Frase v. Barnhardt, 379 Md. 100 (2003)
Schaefer v. Cusack, 124 Md. App. 288 (1998)
Court’s Authority to Rule Limited by Pleadings
Gatuso v. Gatuso, 16 Md. App. 632 (1973)
Ledvinka v. Ledvinka, 154 Md. App. 420 (2003)
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Custody Evaluations: Parents’ Access
Sumpter v. Sumpter, 436 Md. 74 (2013)
Custody Factors
In re Adoption No. 12612, 353 Md. 209 (1999)
Bienenfeld v. Bennett-White, 91 Md. App. 488 (1992)
Davis v. Davis, 280 Md. 119 (1977)
Giffin v. Crane, 351 Md. 133 (1998)
John O. v. Jane O., 90 Md. App. 406 (1992)
Montgomery County Dep’t of Social Services v. Sanders, 38 Md. App. 406 (1978)
Robinson v. Robinson, 328 Md. 507 (1992)
Swain v. Swain, 43 Md. App. 622 (1979)
Taylor v. Taylor, 306 Md. 290 (1986)
Custody – Court Can’t “Predict the Future” to Change Custody
Schaefer v. Cusack, 124 Md. App. 288 (1998)
Discovery Sanctions
Flynn v. May, 157 Md. App. 389 (2004)
Heineman v. Bright, 124 Md. App. 1 (1998)
Fees for Child’s Counsel
Lapides v. Lapides, 50 Md. App. 248 (1981)
Meyr v. Meyr, 195 Md. App. 524 (2010)
Van Shaik v. Van Shaik, 200 Md. App. 126 (2011)
Improper delegation of Court’s decision-making authority
Tarachanskaya v. Volodarsky 168 Md. App. 587 (2006)
Joint legal custody
McCarty v. McCarty, 147 Md. App. 268 (2002)
Shenk v. Shenk, 159 Md. App. 548 (2004)
Taylor v. Taylor, 306 Md. 290 (1986)
Jurisdiction and Venue
Britton v. Meier, 148 Md. App. 419 (2002)
Krebs v. Krebs, 183 Md. App. 102 (2008)
Nodeen v. Sigurdsson, 408 Md. 167 (2009)
Marital Property
Aleem v. Aleem, 175 Md. App. 663, (2007)
Bangs v. Bangs, 59 Md. App. 350 (1984)
Crawford v. Crawford, 293 Md. 307 (1982)
Deering v. Deering, 292 Md. 115 (1981)
Falise v. Falise, 63 Md. App. 574 (1985)
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Flanagan v. Flanagan, 181 Md. App. 492 (2008)
Grant v. Zich, 300 Md. 256 (1984)
Harper v. Harper, 294 Md. 54 (1982)
Heger v. Heger, 184 Md. App. 83 (2009)
Kennedy v. Kennedy, 55 Md. App. 299 (1983)
Kline v. Kline, 85 Md. App. 28 (1990)
Randolph v. Randolph, 67 Md. App. 577 (1986)
Pope v. Pope, 322 Md. 277 (1991)
Schweizer v. Schweizer, 301 Md. 626 (1984)
Smith v. Smith, 193 Md. App. 29 (2010)
Williams v. Williams, 71 Md. App. 22 (1987)
Masters (now Magistrates)
Miller v. Bosley, 113 Md. App. 381 (1997)
Wise-Jones v. Jones, 117 Md. App. 489 (1997)
Modification of Custody
Domingues v. Johnson, 323 Md. 486 (1991)
Kaufman v. Motley, 119 Md. App. 623 (1998)
Koffley v. Koffley,160 Md. App. 633 (2005)
Levitt v. Levitt, 79 Md. App. 394 (1989)
McCready v. McCready, 323 Md. 476 (1991)
Shunk v. Walker, 87 Md. App. 389 (1991)
Money Damages for withholding visits
Corapcioglu v. Roosevelt, 170 Md. App. 572 (2006)
Khalifa et. al. v. Shannon, 404 Md. 107 (2008)
Parenting Coordinators
Brandau v. Webster, 39 Md. App. 99 (1978)
McCarty v. McCarty, 147 Md. App. 268 (2002)
Parent must have notice before court can decide custody
Burdick v. Brooks, 160 Md. App. 519 (2004)
Parentage testing
In re Roberto D. B., 399 Md. 267 (2007)
Relocation
Domingues v. Johnson 323 Md. 486 (1991)
Goldmeier v. Lepselter, 89 Md. App. 301 (1991)
Shunk v. Walker, 87 Md. App. 389 (1991)
Split Custody
Jordan v. Jordan 50 Md. App. 437 (1982)
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Third-Party Custody/Visitation
Aumiller v. Aumiller, 183 Md. App. 71 (2008)
Barrett v. Ayres, 186 Md. App. 1 (2009)
B.G. v. M.R., 165 Md. App. 532 (2005)
Conover v. Conover, No. 2099, Sept. Term, 2013
Janice M. v. Margaret K., 404 Md. 661 (2008)
Karen P. v. Christopher J. B., 163 Md. App. 250 (2005)
Koshko v. Haining, 398 Md. 404 (2007)
McDermott v. Dougherty, 385 Md. 320 (2005)
Ross v. Hoffman, 280 Md. 172 (1977)
When to Appoint Child’s Counsel
Meyr v. Meyr,195 Md. App. 524 (2010)
Nagle v. Hooks, 296 Md. 123 (1983)
Van Schaik v. Van Schaik, 200 Md. App. 126 (2011)
* An alphabetical index of cases and page numbers are at the end.
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In re Adoption No. 12612, 353 Md. 209 (1999)
Facts: Mother was convicted of murdering her 5 week old baby, imprisoned and then released. This
is a third party custody case regarding Mother’s remaining child. The trial court did not consider
Family Law § 9-101. Rather the court found that Mother “posed no threat of death or fatal abuse” to
the remaining child.
Holding: The Court of Appeals held that §§9-101 and 9-101.1 apply when abuse is directed against
a sibling of the child at issue. Since the sibling of the child in this case was murdered, the trial court
was required to determine whether abuse or neglect was likely to occur if custody or visitation
rights were granted to Mother, and unless it specifically found that there was no likelihood of
further child abuse or neglect by her, to deny custody and unsupervised visitation. The plain
meaning of the statute and its legislative history indicate that the focus of these statutes is on the
party guilty of the previous abuse, not the particular child that had previously been abused or
neglected, and that the goal of these statutes is to ensure that no child whose custody or visitation is
subject to the court’s control will be placed with such a person unless the court is convinced that
there is no likelihood of further abuse or neglect on the part of that person. The Court further held
that the trial court had erred in failing to apply these statutes and that its finding that Mother posed
no threat of death or fatal abuse was not sufficient to satisfy the statutory requirement.
Aleem v. Aleem, 175 Md. App. 663 (2007)
No comity for Talaq (Pakistani) law regarding divorce and marital property: The Circuit Court
declined to afford comity to the property division resulting from a Pakistani talaq divorce. The
parties, Pakistani citizens, had resided in Maryland for over 20 years and the wife was a permanent
resident of the United States. The parties were married in Pakistan, but they never lived together
there.
While the wife’s divorce action was pending in Maryland, the husband divorced the wife under
Pakistani law by talaq, simply saying, “I divorce you, I divorce you, I divorce you.” The “divorce”
took place in the United States and was registered in Pakistan. The alleged Pakistani marriage
contract, and Pakistani law addressing division of property upon divorce (that rights in property
follow title unless the marriage contract departs from its usual form to expressly provide the wife
with some right in her husband’s property), is contrary to Maryland public policy concerning
equitable distribution of marital property.
The appellate court noted that the “default” position under Pakistani law is that a wife has no rights
to property titled in her husband’s name, while the “default” position under Maryland law is that the
wife has marital property rights in property titled in her husband’s name. This conflict is so
substantial that applying Pakistani law would be contrary to Maryland public policy. The appellate
court held that the trial court did not err in declining to apply, under principles of comity, the law of
Pakistan in determining Wife’s rights in marital property titled in Husband’s name.
Arrington v. Dep’t of Human Res., 402 Md. 79 (2007)
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Arrington v. Dept. of Human Res., et al., No. 10, September Term, 2007, and McLong v. Oliver, No.
26 , September Term, 2007 (Cases were not consolidated but were argued on the same date.)
Holding: In a case of constructive civil contempt for failure to pay child support, the court may not
incarcerate a defendant for failure to meet a purge that the defendant is not able to make in time to
avoid the incarceration.
The Court in Arrington: The disposition in Arrington’s case was patently unlawful. Arrington was
sentenced, determinatively, to eighteen months which is a criminal sentence not permitted in a
civil contempt case even if a purge provision is added and especially when the purge is one that the
court must have known Arrington could not immediately meet. The purge provision in this case was
that Arrington enter Dismas House—a correctional facility—”and secure full-time employment
with earnings withholdings ...” At the time of sentencing, there was no indication that Arrington
would be accepted into Dismas House or that if he was accepted, that he could secure full-time
employment in time to avoid incarceration. The evidence only showed that he would be an
acceptable candidate for work release. The finding of contempt can stand, but the sanction imposed,
even though no longer in effect, must be vacated.
The Court in McLong: The sanction in McLong’s case is equally unlawful. McLong was given a
determinate sentence, of two years, which is itself unauthorized, with or without a purge. The initial
purge of $2,000 was obviously one that McLong could not meet; nor was the amended purge of
$200 and presentation of a GED certificate one that the court had any reason to believe could be
instantly met. It appears that the amended order was entered without a hearing, and therefore
without any evidence on McLong’s ability to meet that purge.The court determined that one may
not obtain a GED certificate unless and until the person passes a battery of tests, and there is
nothing in the record to show that McLong, still incarcerated, had any ability even to take the tests.
As with Arrington, the finding of contempt may stand, but the sanction must be vacated.
Aumiller v. Aumiller, 183 Md. App. 71 (2008)
In a grandparent visitation case, there must be a showing of unfitness or exceptional circumstances.
The court may consider future harm, as well as current detriment, as long as there is sufficient
evidence and not mere speculation. Prior to the death of the Father, the Mother refused to facilitate a
relationship between the minor children and the paternal Grandparents. Following their son’s death,
the paternal Grandparents sought reasonable grandparent visitation through the court. The trial court
granted their request, but while the case was on appeal, the Court of Appeals issued its opinion in
Koshko v. Haining, 398 Md. 404 (2007) causing the case to be remanded. On remand, the lower
court denied the paternal grandparents visitation; they appealed. The appellants asserted that since
the appellee prevented them from having a relationship with the minor children and are refusing to
inform the children about their father, the appellee would cause the children future harm. And
further, that these factors are tantamount to exceptional circumstances. The Court held that the
evidence introduced at trial was legally insufficient to show future harm and if the Court adopted
the appellants’ argument, it would render the holding in Koshko irrelevant.
Bangs v. Bangs, 59 Md. App. 350 (1984)
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Distribution of retirement benefits – the Bangs Formula: The spouse’s share is 50% multiplied by
the “marital share.” The marital share is a fraction, the numerator of which is the number of months
of employment during the marriage, and the denominator of which is the total number of months
and years of employment at the time of retirement.
Source of funds: During the marriage, the Husband’s mother conveyed property to herself and the
Husband as joint tenants. The Husband and the Wife lived in the home. The Husband and his
mother took out a mortgage on the home to build a second house on the property which became the
mother’s home. The Husband and the Wife made payments on the mortgage from marital funds,
and made substantial improvements to the property. A fire then destroyed the parties’ house, and it
was rebuilt from insurances proceeds and marital funds. Under the “source of funds” theory,
whenever property owned by one spouse is mortgaged as security for a loan, the proceeds of which
are used to acquire or improve the property, the property is not fully “acquired” until the mortgage
is paid.
Barrett v. Ayres, 186 Md. App. 1 (2009)
The paternal Grandparents filed a complaint for, and were granted, visitation under FL § 9-102 (the
Grandparent Visitation Statute, or GVS). The relationship between the Grandparents and the
Mother deteriorated to the extent that the Mother filed for modification of visitation, asking the
court to terminate the Grandparents’ visitation. The trial court denied the Mother’s request for
modification, and the Mother appealed. The Court of Special Appeals found in favor of the Mother,
holding that: (1) whenever a parent seeks to modify an order granting visitation to a third party, due
process requires that the third party make a threshold showing of unfitness or exceptional
circumstances; and (2) the Mother’s desired modification was a material change in circumstances
warranting modification.
B.G. v. M.R., 165 Md. App. 532 (2005)
Mother had sole legal and physical custody. Mother was murdered. The maternal Grandmother filed
a complaint for custody, asking for custody of children. The trial court granted custody to
Grandmother and Father appealed. The McDermott vs. Dougherty decision was issued by the Court
of Appeals between the trial court decision and the appellate court decision. The Court of Special
Appeals remanded the case, instructing the trial court to reconsider, in light of McDermott, its
finding that exceptional circumstances existed that would overcome presumption that father should
be awarded custody of children.
Bienenfeld v. Bennett-White, 91 Md. App. 488 (1992)
The Court of Special Appeals held that evidence of the parties’ religious views and practices may
be considered, along with other factors impacting upon the child’s welfare, if such views or
practices are demonstrated to bear upon the physical or emotional welfare of the child. The Court
emphasized that absent such a demonstration, courts have no business treading on the
constitutionally sensitive ground of religion.
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The Court also held that the trial court’s decision did not infringe on the mother’s right to free
exercise of religion because the mother retained unlimited prerogative to direct the children’s
religious upbringing during visitation periods, and the trial court specifically tailored the mother’s
visitation rights to coincide with particular religious holidays so that the children would be able to
fulfill the religious obligations imposed by her faith.
Boemio v. Boemio, 414 Md. 118 (2010)
Issue: Is the use of independent guidelines in addition to the required statutory consideration when
awarding alimony acceptable?
Facts: During a trial to determine the amount of alimony and child support the husband would pay,
the Circuit Court conducted the statutory analysis required under Md. Code (1984, 2006 Repl.
Vol.), §11-106 of the Family Law Article. In an effort to transform those statutory factors into a
final monetary award, the court also consulted an alimony formula promulgated by the American
Academy of Matrimonial Lawyers. The court acknowledged that this formula was subject to the
twelve statutory considerations in § 11-106, and applied it accordingly. The trial court ordered
alimony. The husband appealed, contending that the trial court erred in consulting guidelines that
were not expressly included in the Code.
Holding: Maryland’s alimony statute permits courts to consider “all the factors necessary for a fair
and equitable award, including [the twelve listed in the statute.]” Thus, courts are not limited to the
twelve enumerated in Section 11-106 of the Family Law Article. Given the difficulty of translating
predominantly qualitative factors into a numerical award, courts may consult guidelines developed
by a reliable and neutral source that do not conflict with or undermine any of the considerations
expressed in the statute when determining the amount and duration of alimony.
Bradford v. State, 199 Md. App. 175 (2011)
This case deals with a “delayed sentencing agreement” in a child support contempt case. “[U]nder
the terms of the DSA, Ms. Bradford admitted that she was in contempt of court and agreed to serve
a sixty day jail sentence to commence at a future date. The agreement provided for a monetary
purge which, if timely paid before the sentence commenced, would have discharged the contempt.
Ms. Bradford was not represented by counsel at the time she signed the agreement. The Department
then submitted the DSA to the circuit court, which, without holding a hearing, entered an order
holding her in contempt and imposing the sentence.
Contempt/Present Ability to Purge: “If the sanction for civil contempt is incarceration and the
purge is the payment of money, the question will be whether the defendant is then, on that day, able
to make that payment; the court may not order an incarceration to commence in the future, because
the finding of ability to purge must be contemporaneous with when the incarceration is to
commence and must remain in existence throughout the period of incarceration.”
Valid Waiver of Right to Counsel: In the DSA, Ms. Bradford admitted that she was in contempt of
court, agreed that she had the present ability to pay her child support obligation and address her
arrearage, and consented to a sixty day jail sentence if she failed to do so. While the DSA recited
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that Ms. Bradford waived her right to an attorney at the conciliation conference, there was nothing
in the DSA that suggests that her waiver was knowing or voluntary. On July 27, 2009, based solely
upon the DSA, the court held Ms. Bradford in contempt and imposed a sentence, without first
providing the advisement required under Rule 15–206(e). Indeed, because the court did not hold a
hearing, it made no inquiry whatsoever into whether appellant’s waiver was knowing and voluntary.
If, instead of signing the DSA, Ms. Bradford had appeared in court and consented to the July 27,
2009 order, Rule 15–206(e)(2) would have required the court to assure itself that she received a
notice pursuant to Rule 15–206(c)(2)(C),8 and, if she had not, to advise her of the notice’s contents.
If, in this hypothetical court proceeding, Ms. Bradford had indicated a desire to waive counsel, the
circuit court would have been required to “determine, after an examination of the alleged contemnor
on the record, that the waiver is knowing and voluntary.” Rule 15–206(e)(2)(B). The circuit court’s
failure to do so would have mandated vacating the order. Redmond, 123 Md. App. at 417, 718 A.2d
668.
Bradley vs. Bradley, 214 Md. App. 229 (2013)
Facts: After parties were divorced and had entered into a separation agreement which provided that
ex-husband pay ex-wife indefinite alimony, ex-husband filed motion to terminate the alimony
obligation.
Holding: Termination of indefinite alimony provision imposed pursuant to separation agreement
was not permitted. “The trial court is not permitted, even in order to purportedly avoid a “harsh and
inequitable result,” to terminate an indefinite alimony obligation that was imposed pursuant to a
separation agreement, where the agreement expressly stated that alimony was only terminable upon
the remarriage of ex-wife or the death of either party, the agreement stated that the parties waived
the right to have any court change or make a different provision for the support and maintenance of
the ex-wife, and there was no strong policy prohibiting a couple from agreeing to an indefinite
alimony provision that was not terminable.
Brandau v. Webster, 39 Md. App. 99 (1978)
At the hearing, two teenage children were interviewed in chambers. The record indicated that one
preferred to live with her mother, while the other preferred to finish her last year of high school with
her father. The father proffered evidence as to the purported testimony of several witnesses if they
were called to testify regarding a series of abuses by the mother on her five year old daughter during
a visit with her mother. The father also sought to call the five year old to testify, but the court
refused to conduct any inquiry as to her competence as a witness, maintaining instead that because
of her age, she could not qualify as a witness.
The Court of Special Appeals held that the trial court had erred in refusing to conduct the
examination of the proposed witness, either in court or in chambers, in order to determine whether
she was, in fact, a competent witness. Acknowledging that the decision as to the competency of a
witness (in this case, a child) is within the sound discretion of the trial court, the Court concluded
that the trial court must at least conduct such an examination as will disclose the factual basis on
which its conclusion as to competency rests.
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Britton v. Meier, 148 Md. App. 419 (2002)
Mother relocated to Maryland from Illinois with her minor child and sought to enroll and modify an
Illinois visitation order granting visitation to the child’s grandfather. The father of the child was
deceased. The trial court granted the grandfather’s motion to dismiss without communicating with
the Illinois court. Mother appealed.
The Court of Special Appeals found it was reversible error for the Maryland trial court to dismiss
the custody action without contacting the Illinois court, which had exclusive jurisdiction under the
Parental Kidnapping Prevention Act (PKPA), to determine whether the Illinois court wished to
decline jurisdiction in deference to Maryland. If Illinois declined jurisdiction, the Maryland court
could then modify the Illinois order under the Maryland Uniform Child Custody Jurisdiction Act
(UCCJA).
Burdick v. Brooks, 160 Md. App. 519 (2004)
The parties were married on July 2, 1993. The parties had three children, aged ten to twelve. In
addition, Father adopted the Wife’s child from a former relationship. Mother filed a Complaint for
Absolute Divorce. She sought sole legal and physical custody of the children. The parties reached a
parenting agreement under which the children resided with Mother and visited Father on
Wednesday night and alternating weekends. The Court granted an absolute divorce and, by separate
Order, the Court granted pendente lite custody of the children and child support to Mother. The
Court appointed a guardian ad litem. The following month, the Court ordered psychological
evaluations. The GAL requested a status conference, which was scheduled for five months later.
The Court sent the parties a letter regarding the status conference, which advised that the conference
was not to be a hearing or a trial and no witnesses would speak. At the status conference the Court
found Mother was not cooperating in the evaluations and, as a result, the Court transferred custody
of the minor children. Mother appealed, arguing the court could not award custody of minor
children without proper notice.
Holding: Citing Wagner v. Wagner, 109 Md. App. 1 (1996) the Court determined Mother has a
constitutionally protected liberty interest in the care and custody of her children. Next, the Court
turned to the question of what process is due. The Court found that due process requirements in the
context of custody modification had been discussed in Van Schaik v. Van Schaik, 200 Md. App.
126 (2011). “After citing Family Law § 9-205, the Van Schaik Court stated that ‘it is clear that if the
Court is contemplating holding a hearing at which it will, or may, determine custody issues, a parent
with custodial rights....must be notified that such an issue may be the subject of the hearing.’”
Cohen v. Cohen, 162 Md. App. 599 (2005)
Issue: May a court impose a condition on custody/visitation that is not requested by one of the
parties?
Holding: The Court held that the trial court had strong factual evidence supporting its decision to
base Father’s joint legal custody of his daughter on abstention from alcohol and that the trial court’s
requirement of such was reasonably related to advancing the child’s best interest. Citing Kennedy v.
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Kennedy, the Court held that the state can regulate a custodial relationship whenever necessary and
virtually without limitation when it is in the best interest of the child. A judge may, within his
discretion, impose such conditions upon the custodial and supporting parent as deemed necessary to
promote the welfare of the children. Kruse v. Kruse, 179 Md. 657, 664 (1941).
Conover v. Conover, No. 2099, Sept. Term, 2013
Issue: Whether Michelle Conover, non-biological, non-adoptive parent, of a child conceived by
artificial insemination before the marriage may invoke Maryland’s paternity laws to confer upon her
parental standing to seek custody or visitation without interfering with the constitutional rights of
the natural parent, Brittany Conover, and without satisfying the stringent standards of Janice M. v.
Margaret K. and Koshko v. Haining.
Facts: In this same-sex divorce case, the parties are divided over one spouse’s right of access to a
child conceived by agreement of the parties through artificial insemination but born before they
were married. Brittany Conover gave birth to the child and was listed as the mother on the birth
certification. No one was listed as father on the birth certificate. Michelle argued parental standing
existed under ET § 1-208(b) and argued in the alternative that extraordinary circumstances existed
that would warrant granting custody and/or visitation to a third party.
Holding: “A non-biological, non-adoptive spouse who meets one, two or even three tests under
ET § 1-208(b) is still a ‘third party’ for child access purposes. Under Janice M., he or she is not a
‘legal parent’ as Amici contend. He or she must still show exceptional circumstances to obtain
access to a child over the objection of a fit biological parent and to overcome the natural parent’s
due process rights. Moreover, there is no gender discrimination or sexual orientation discrimination
because all non-biological, non-adoptive parents face the same hurdle, no matter what sex or sexual
orientation they are.”
As to the exceptional circumstances argument, the court did not disturb the lower court’s ruling that,
“…although there may be a bond between [Michelle] and [the child], as she was a de facto parent,
that alone is not sufficient to establish exceptional circumstances. The child is still in a stable
environment, with a fit parent, with almost a year of no contact with [Michelle], and although an
active participant in his life when he was born, after analyzing the factors, this Court finds that there
is not enough evidence to establish sufficient exceptional circumstances in this case.
Corapcioglu v. Roosevelt, 170 Md. App. 572 (2006)
Issue: Did the Court err in holding that an award of $252,930.00 to the mother for fees and costs
incurred in securing the return of the parties’ son was not an award of child support?
Facts: Mother filed a complaint for custody. Father abducted the child, Darren, and took him to
Turkey. Mother filed a Motion for Child Support, asking that she be awarded a lump-sum amount
of child support equal to the sums she had spent in securing Darren’s return from Turkey for the last
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two years. The court awarded mother $252,930.00 but determined the award was for the counsel
fees and costs and not child support.
Holding: The trial court found that Mother’s motion was a request for reimbursement of counsel
fees and costs and not for child support, even though it was titled a Motion for Child Support.
Under MD law, counsel fees and costs incurred by a parent in a custody case are not child support,
even when they are for the benefit of the child. In enacting the child support guidelines and portions
of the child support, the legislature decided what specific expenses constitute child support. Those
expenses include actual child care expenses incurred due to either parent’s employment, pursuant to
Family Law § 12-204(g); extraordinary medical expenses, special or private school expenses,
expenses for transportation of the child between the parents’ homes, expenses related to medical
support, and a requirement that a parent include the child in that parent’s health insurance coverage.
Crawford v. Crawford, 293 Md. 307 (1982)
Spouse entitled to credit for what she paid into the home during the separation: Husband and Wife
separated and, during part of the separation, Wife lived in the marital home and paid the mortgage,
property taxes, and other expenses associated with the home. The parties then sold the home, and
put the proceeds in a savings account. Husband filed a complaint for absolute divorce. The judge
granted the divorce and, among other things, divided equally the contents of the savings account
holding the proceeds from the home. Wife appealed.
Holding: (1) The savings account should not have been divided equally. (2) The “presumption of
gift doctrine” does not apply to transactions between Husband and Wife when the parties are not
living together – in other words, the money Wife put into the home during the separation was not
presumed to be a gift to the marriage. (3) Wife was entitled to have what she paid into the house
during the separation deducted and credited to her prior to the division of the proceeds from the sale
of the house.
Crawford credits: The paying spouse may be entitled to a contribution (or a Crawford credit) from
the non-paying spouse for his/her share of the costs of maintaining the marital home. The awarding
of Crawford credits is discretionary; in other words, they are not guaranteed, but rather are part of
the overall marital property and equitable division analysis.
Cutts v. Trippe, 208 Md. App. 696 (2012)
Holding:
1. Adult child’s trust fund could not be considered as an available resource in determining if she
was a destitute adult child;
2. Evidence was sufficient to support trial court’s finding that adult disabled child was incurring
reasonable expenses that triggered parental support under the destitute adult child statute;
3. Trial court was not required to weigh adult child’s financial resources against her expenses to
determine if she qualified as a destitute adult child; and
4. Trial court did not abuse discretion in declining to depart downward from child support
guidelines based on fact that children spent a significant time at boarding schools.
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Davis v. Davis, 280 Md. 119 (1977)
The Court held that although the fact of adultery may be a relevant consideration in child custody
awards, no presumption of unfitness on the part of the adulterous parent arises from it. Rather, it
should be weighed, along with all other pertinent factors, only insofar as it affects the child’s
welfare. The Court based its decision in this case on the finding of the trial court, that even though
the mother had engaged in adulterous conduct in the past, there was no showing that it had ever
deleteriously affected the child.
Deering v. Deering, 292 Md. 115 (1981)
Pension benefits are marital property: Two cases, consolidated by the Court of Appeals: Deering v.
Deering and Andrews v. Andrews. In both, the Circuit Court judge held that the Husband’s
pension/retirement was not marital property. In each, the Wife appealed. The Court of Appeals held
that pension benefits are marital property under the Marital Property Act (now Family Law, § 8201, et seq.) The Court: “Where marital property is defined by statute as all property, however
titled, acquired by either or both spouses during marriage, it would be contrary to language and
purpose of statute governing property disposition in divorces and annulments to strip nonemployee
spouse of value of retirement asset by precluding chancellor from evaluating its worth prior to
adjudicating property rights of estranged marriage partners. When determining proper allocation of
retirement benefits between parties in divorce action, trial court should evaluate various
alternatives, such as considering amount of husband’s contributions to fund, plus interest, and
awarding wife appropriate share, attempting to calculate present value of husband’s retirement
benefits when they vest under plan, or determining fixed percentage for wife of any future payments
husband receives under plan, payable to her as, if, and when paid to husband.
Dep’t of Human Res. v. Mitchell, 197 Md. App. 48 (2011)
Issue: Is a defense of nonparentage available under UIFSA where parentage was previously
determined by a foreign tribunal?
Facts: Appellee and his wife were divorced in 1992 by a NY divorce decree, which provided that
the wife “shall have custody of the children of the marriage,” i.e., a son and daughter, and that
Husband shall pay child support “for all children” of $62.00 per week. Thereafter, Husband moved
to MD and Wife moved to AL. At the request of AL, the Montgomery County OCSE filed the 1992
NY divorce decree under UIFSA, resulting in a consent order that (1) increased Husband’s child
support obligation for the daughter, (2) eliminated any support obligation for the son, and (3)
established Husband’s total arrears. On the same day the consent order was submitted to the circuit
court, Husband filed a request to set aside the declaration of paternity, claiming that he was not the
father of the daughter. A paternity test established that Husband was not the biological father. The
circuit court vacated the registration of the New York divorce decree, vacated the consent modified
child support order, and nullified all child support arrears relating to the daughter.
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Held: Under NY law the NY divorce decree constituted a determination of Husband’s paternity of
the daughter and that, under § 10-327 of UIFSA, nonparentage is expressly prohibited as a defense
in a UIFSA proceeding where parentage has been previously determined.
Domingues v. Johnson, 323 Md. 486 (1991)
Issue: May the relocation of a custodial parent constitute a change in circumstances sufficient to
warrant a change in custody?
Facts: The separation agreement provided for joint custody; however, the children would reside
primarily with Mother and with Father on Tuesday and Wednesday of each week and Friday
through Sunday on alternate weekends. Mother later married and was scheduled to be transferred
out of state. Mother filed a petition for modification of Father’s visitation to accommodate her
move. Father answered and sought sole custody. The master found a change in circumstances
affecting the welfare of the child and granted custody to Father and, over Mother’s exceptions, the
trial court entered an order to that effect.
Court of Special Appeals: Reversed on the grounds that the trial court applied the best interest of
the child standard rather than determining whether there was sufficient evidence of a change in
circumstances affecting the welfare of the children. The Court of Special Appeals also held that the
record failed to show a demonstrable adverse effect upon the children and that the trial court should
have granted custody to the mother. The father petitioned for certiorari.
The Court of Appeals: Reversed the Court of Special Appeals’ decision, but nevertheless held that
the trial court incorrectly accepted the recommendations of the master upon a finding that those
recommendations were not clearly erroneous instead of subjecting the master’s fact-finding to a
clearly erroneous test and then exercising its independent judgment concerning the proper
conclusion to be reached upon those facts.
The Court explained that the ultimate conclusions and recommendations of the master are not
simply to be tested against the clearly erroneous standard, and if found to be supported by evidence
of record, automatically accepted. Consideration should be given to those recommendations, but the
decision must be made by the trial court. The Court concluded that in this case, there was sufficient
evidence of changes relating to the welfare of the children to justify a full consideration of whether
modification of custody was required.
The Court emphasized that changes need not have had a demonstrable adverse effect on the children
to justify a modification of custody; it is sufficient if the trial court finds that changes have occurred
which, when considered with all other relevant circumstances, require that a change in custody be
made to accommodate the future best interest of the children. It is neither necessary nor desirable to
wait until the child is actually harmed to make a change that the evidence shows is required. Thus,
changes brought about by the relocation of a parent may, in a given case, be sufficient to justify a
change in custody.
Falise v. Falise, 63 Md. App. 574 (1985)
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Real property acquired during the separation is marital: The trial court erred in classifying as nonmarital property some real estate that consisted of land acquired by the husband during parties’
separation and a house constructed during short period of reconciliation.
Flanagan v. Dep’t of Human Res. ex rel. Balt. City Dep’t of Soc. Servs., 412 Md. 616 (2010)
In a constructive civil contempt proceeding against a defendant for failure to pay child support in
accordance with a paternity and child support consent decree, a circuit court lacks personal
jurisdiction over the defendant where the defendant was not served properly, in accordance with the
Maryland Rules and the Family Law Article of the Maryland Code, with the show cause order and
petition for contempt.
Flanagan v. Flanagan, 181 Md. App. 492 (2008)
Monetary award: If the trial court finds that the division of marital property according to title would
be unfair, it may make a monetary award to rectify any inequity created by the way in which
property acquired during marriage happened to be titled.
Standard of review of monetary award decision is abuse of discretion: The ultimate decision in a
divorce action regarding whether to grant a monetary award to rectify inequity in division of marital
property, and the amount of such an award, is subject to review for abuse of discretion, under which
the reviewing court may not substitute its own judgment for that of the fact finder even if the
reviewer might have reached a different result.
Agreement in joint statement of marital and non-marital property may render property non-marital:
A joint statement of marital and non-marital property filed by the parties can, to the extent the
parties have resolved the disposition of marital property, serve to render property non-marital. But,
the fact that property may be excluded from the marital property pool by agreement of the parties in
a joint statement does not mean that the court may not consider such non-marital property as a
factor in its equitable distribution of the remaining marital property. In evaluating the equities
between the parties when making a monetary award in a divorce action, a court must consider all of
the property of each party, both marital and non-marital, including marital property that became
non-marital by virtue of the parties’ joint stipulation on marital and non-marital property.
Crawford credits – post separation occupancy of the marital home. The circuit court did not abuse
its discretion, when determining the wife’s contribution toward expenses the husband incurred in
maintaining the marital home after the wife moved out, by awarding Crawford credits to the
husband of less that 50% of his mortgage payments made during the separation, because the
husband enjoyed sole use of the marital home during that time period, and the wife was renting an
apartment. The contribution calculation effectively required the parties to split evenly both the rent
and mortgage payments.
Flynn v. May, 157 Md. App. 389 (2004)
Issue: May the Court enter a default judgment in a dispute over custody of a child?
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Holding: The Court goes into great detail about its conclusion that the Circuit Court applied the
default judgment too rigorously by failing to consider the flexibility also offered by Maryland Rule
2-613(e) and Maryland Rule 2-613(f). Through the use of Taylor v. Taylor, Ross v. Hoffman, and
Montgomery County v. Sanders, the Court stressed that a “default judgment cannot substitute for a
full evidentiary hearing when a Court, in order to determine custody, must first determine the best
interest of the child.” Last, prior to its holding, the Court stated that the child “had an indefeasible
right to have any custody determination concerning him made, after a full evidentiary hearing, in his
best interest. He did not lose that right when his Mother failed to file a proper responsive pleading
to the Father’s complaint.”
The Court held, “As sorely tempted as we are to hold flatly that the default judgment procedure of
Maryland Rule 2-613 is not applicable to child custody disputes, it is not necessary to go so far. We
are content to hold that, at the hearing on August 1, 2003, the trial court, in the circumstances of this
case, abused its discretion when it ordered a change in the primary physical custody of Bryant
without permitting witnesses to testify or other evidence to be offered. We nevertheless note that it
is impossible for us to conjure up a hypothetical in which a judgment by default might ever be
properly entered in a case of disputed child custody. We are not hereby transforming our dicta into a
holding. We are, however, unabashedly adding deliberate weight to the dicta. Our comments are not
random, passing, or inadvertent.”
Frase v. Barnhart, 379 Md. 100 (2003)
Issue: May a Court include certain conditions as part of a custody award?
Holding: “For good cause the court may hold a case open for a reasonable period to consider
additional evidence, not available at trial but which the court finds necessary to a proper decision.
What [the court] may not do, however, is to proceed to make findings that would dictate a particular
result and then subject the favored party to conditions inconsistent with that result and to continuing
review hearings. When it does that, the case never ends; the child and the parties remain under a
cloud of uncertainty, unable to make permanent plans. The court seemingly reserves the power to
alter the custody arrangement at any time, even in the absence of a new or amended petition, based
on a later review of circumstances known or predicted to exist at the time of the initial
determination. That is procedurally impermissible.”
If a parent is found fit, the imposition of uncertainty is reversible error. Citing Troxel v. Granville,
“As in Troxel, Ms. Frase was not opposed to visitation between Brett and Justin; she simply wanted
to control where it took place and to involve Tara. No deference was given to her view forcing her
to transport Brett to another place, occupied by a person or persons who had proved hostile to her, is
precisely the kind of interference that Troxel prohibits. The implicit requirement that she relocate,
with her children to St. Martin’s was an even more drastic interference. Ms. Frase explained why
she did not want to leave her present place of residence and why, in particular, she did not want to
move to St. Martin’s; she might have to give up her job and her day care resource and pay over to
St. Martin’s 30% of her income. As with the visitation issue, the court gave no deference at all to
her objection but decided that it knew best where she should live. That too, is the very kind of
interference that Troxel prohibits. Having found Ms. Frase to be a fit parent in her existing
circumstances and having found no exceptional circumstance that would make her custody of Brett
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detrimental to his best interest, the court had no more authority to direct where she and the child
must live than it had to direct where the child must go to school or what religious training, if any, he
should have, or what time he must go to bed.”
Gatuso v. Gatuso, 16 Md. App. 632 (1973)
A trial court has no authority, discretionary or otherwise, to rule upon a question not raised as an
issue by pleadings, and of which the parties therefore had neither notice nor an opportunity to be
heard.
Grant v. Zich, 300 Md. 256 (1984)
Source of funds. We also think that in making these determinations, including determinations as to
the disposition of the proceeds of the marital home …, the chancellor should apply the “source of
funds” theory, explained in Harper v. Harper, 294 Md. 54 (1982).
Allocation of retirement benefits. Nor do we think the method of evaluation selected by the
chancellor was inappropriate. He chose to use as the measure of the value of the retirement benefits
Mr. Zich’s contributions to the retirement fund during the marriage. This is one of the approaches
sanctioned by Deering and Ohm. While the chancellor did not evaluate other possible approaches,
he did not have a basis for doing so in this case. The evidence before him, as presented by Dr.
Grant, related only to Mr. Zich’s contributions to the fund. And while the chancellor did not add
interest to the contributions made by Mr. Zich during the marriage, we do not think he was
compelled to do so. The three approaches outlined in Deering were not intended to be mandatory
rules or inflexible formulae. Rather, they were presented as examples. As the court said, “any of the
just articulated approaches may represent the proper one for the trial courts of this State to take ...”
292 Md. at 131, 437 A.2d at 892. This language does not require a chancellor to follow precisely
any method of evaluation, nor does it preclude him from adopting some other method.
Where the Circuit Court failed to fully determine what was marital property by transferring disputed
property to the wife and in allocating its value to wife, the court erred in its consideration of the
value of all property interest of each spouse and of how and when specific marital property was
acquired, and therefore, erred in its application of nine factors prescribed by statute governing
monetary award in grant of absolute divorce.
Giffin v. Crane, 351 Md. 133 (1998)
Issue: Did the trial court err as a matter of law when it used gender to decide the issue of custody?
Facts: The 16-year-old daughter testified that she was better able to communicate with her mother.
The trial court awarded custody to the mother solely because the daughter had a particular and
specific need to be with her same sex parent.
Holding: The trial court erred as a matter of law when it assumed that the wife necessarily would
be a better custodian solely because she was a female and that the daughter had a particular and
specific need to be with her same sex parent. The Maryland Equal Rights Amendment “flatly
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prohibits gender based classifications, absent substantial justification, whether contained in
legislative enactments, governmental policies, or by application of common law rules.” Griffin at
149. And this Court has abolished the material preference presumption in Elza v. Elza, 300 Md. 51,
475 A.2d 1180 (1984), stating that “neither parent shall be given preference solely because of his or
her sex.”
Goldmeier v. Lepselter, 89 Md. App. 301 (1991)
Issue: Does a divorced spouse who is seeking to relocate the children have the burden of proving
that the move is in the best interests of the children?
Holding: The Court of Special Appeals held that the trial judge has the burden to weigh the
relocation and all its ramifications, together with the other information the court can garner, in
determining what is in the best interests of the children. The Court noted that at the time of Mr.
Goldmeier’s filing of his petition, the law with respect to relocation was that the trial court was not
required to conduct a full evaluation of the best interests of the child, absent a showing that the
move would have an adverse effect on the child. However, while on appeal, the Court of Appeals
reversed the Court of Special Appeals’ ruling in Domingues and issued its ruling in McCready v.
McCready, which held that the relocation itself is a sufficient change in circumstances so as to
trigger a full evaluation by the trial court of the future best interests of the child. The Court thus
concluded that now each parent has the burden of proving that he or she is a fit and proper person to
parent and serve as the primary custodian. The Court thus remanded the case for a reconsideration
and full evaluation of the best interests of the children.
Guidash v. Tome, 211 Md. App. 725 (2013)
Holdings:
1. Provision in separation agreement restricting modification of child support was void as
violative of public policy;
2. Former wife’s move from rent-free marital home to housing, for which she paid rent,
constituted material change in circumstances;
3. Evidence of repair expenses incurred by former husband to render his rental property
habitable was not relevant for calculating his actual income;
4. Determination that former wife incurred $433.00 each month in transportation expenses
associated with child’s education was supported by evidence; and
5. Evidence supported child support calculation based on sole custody, not joint custody,
worksheet.
Harper v. Harper, 294 Md. 54 (1982)
The statute governing property disposition in divorce and annulment does not indicate any
legislative preference for classification of property as marital, but to the contrary, indicates
legislative intent that the value of certain property is not be subject to equitable distribution and that
interests of spouses making non-monetary contributions should be protected without depriving the
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other spouse of non-marital property. To permit non-marital property to be “transmuted” into
marital property is contrary to legislative intent.
Source of funds: The appropriate analysis to be applied in determining distribution of property
partly acquired through marital and partly acquired through non-marital funds is the “source of
funds theory,” in which spouse contributing non-marital property is entitled to interest in property in
ratio of non-marital investment to total non-marital and marital investment property, with remaining
property characterized as marital property and its value is subject to equitable distribution.
The term “acquired” in the statute defining marital property as property acquired during marriage
refers to the ongoing process of making payments for property. The characterization of property as
non-marital or marital depends upon the source of each contribution as payments are made, rather
than the time at which legal or equitable title to or possession of property is obtained.
Heger v. Heger, 184 Md. App. 83 (2009)
Valuation of real property, part marital and part non-marital: The trial court’s valuation of the
marital property value of the family home at zero was not clearly erroneous; 32.4 percent of home’s
purchase price came solely from the former husband’s non-marital funds, and the parties stipulated
that the value of the home at the time of divorce was $360,000, subject to mortgage and two home
equity lines of credit, for a total indebtedness of $313,677. The former husband’s non-marital share
of the stipulated value was $116,640. Once the former husband’s non-marital interest was
subtracted from value of home, the remaining marital value of property was $243,360, and the total
indebtedness on the home exceeded marital value of property.
Dissipation of assets. “The burden of persuasion and the initial burden of production in showing
dissipation is on the party making the allegation. That party retains throughout the burden of
persuading the court that funds have been dissipated, but after that party establishes a prima facie
case that monies have been dissipated, i.e. expended for the principal purpose of reducing the funds
available for equitable distribution, the burden shifts to the party who spent the money to produce
evidence sufficient to show that the expenditures were appropriate. In litigating a claim that one
spouse has dissipated marital assets, the critical time is that between the separation or the time when
“the marriage is undergoing an irreconcilable breakdown, Sharp v. Sharp, 58 Md. App. 386, 401,
473 A.2d 499 (1984), on the one hand, and the ultimate divorce, on the other hand. The other
critical factor is the purpose on the part of the spending spouse for the expenditure. What matters is
not that one spouse has, post-separation, expended some of the marital assets, what is critically
important is the purpose behind the expenditure. The doctrine of dissipation is aimed at the
nefarious purpose of one spouse’s spending for his or her own personal advantage so as to
compromise the other spouse in terms of the ultimate distribution of marital assets.”
Heineman v. Bright, 124 Md. App. 1 (1998)
A trial court is entrusted with a large measure of discretion in applying sanctions for failure to
comply with the rules relating to discovery. In exercising that discretion, however, a trial court must
consider whether the disclosure violation was technical or substantial, the timing of the ultimate
disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively
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offering and opposing the evidence, and whether any resulting prejudice might be cured by a
postponement and, if so, the overall desirability of a continuance.
Janice M. v. Margaret K., 404 Md. 661 (2008)
The Court of Appeals declined to recognize the concept of de facto parents in any type of
proceedings holding that de facto parents must adhere to the same standard as a pure third party,
whether requesting custody or visitation. The parties, two women involved in a same-sex long term
relationship prior to Maryland’s marriage equality law, started a family when Janice M. adopted a
child. After several years living together as a family unit, the parties separated. Despite having been
a part of the child’s life and participating in all parental functions, Janice M. sought to limit and
place restrictions on visitation by Margaret K. After a custody hearing in the circuit court, which
granted Margaret K. visitation as a de facto parent, Janice M. sought appellate review. The Court of
Special Appeals upheld the lower court ruling holding that Margaret K. met the four factors
necessary to be deemed a de facto parent. However, the Court of Appeals held that in light of recent
cases regarding the standard in third parties custody disputes, any third party, whether grandparent,
step-parent or psychological parent, must overcome the fundamental presumption in favor of the
biological parent by showing either exceptional circumstances or that the natural parent is unfit.
John O. v. Jane O., 90 Md. App. 406 (1992)
Issue: Are a child’s desires regarding custody controlling for determination of custody?
Holding: The court held that the child’s views are to be considered by court-appointed counsel but
are not necessarily controlling and that the child received adequate representation by the courtappointed counsel. The court found that there was overwhelming evidence that the child’s own
wishes were not in the child’s best interest, and affirmed the decision of the lower court.
Jordan v. Jordan, 50 Md. App. 437 (1982)
Issue: Did the trial court err in failing to state specifically on the record that its custody decision
was based on the best interests of the child, and did it abuse its discretion in deciding to split the
custody of the children and permit the younger child to move with his mother to South Africa?
Holding: The Court of Special Appeals found that although the trial court did not specifically state
that its conclusion was based on the best interests of the child, a review of the record demonstrated
with unmistakable clarity its implicit application of that standard. The Court also held that the trial
court had not abused its discretion in splitting the custody of the children between the parents and
permitting the younger child to move with his mother outside the U.S. The fact that visitation would
become more difficult does not amount to such a change in circumstances would justify the trial
court in changing custody from the mother to the father. The Court acknowledged that ordinarily,
the best interests of the children of the same parents are best served by keeping the children together
to grow up as siblings under the same roof, but in this case, the children had been separated for
more than two years with one living in Connecticut and the other in Maryland and there was no
evidence that the younger child suffered any adverse effects as a result of the separation. The Court
noted that should the father avail himself of the days of uninterrupted visitation that was offered by
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the mother, the contact between the brothers might be greater than that afforded by their present
weekend visits.
Kamp v. Dep’t of Human Servs., 410 Md. 645 (2009)
Facts: The parties had 4 children; Child whose paternity is at issue in these proceedings was
conceived 5 years after Father had had a vasectomy. All parties admit that they always knew the
child wasn’t Father’s biological child. The couple entered into a separation agreement, in which
they stated that the four children were “born to the marriage.” The judgment of divorce referred to
the four children of the parties. Several years later DHS, on behalf of Mother, filed a complaint to
modify child support. Father answered that Child was not his child and requested a paternity test.
The master recommended the test, DHS excepted, and the recommendations were sustained. The
test showed Father was not the biological father, and he filed a motion to terminate support. The
master recommended support be terminated, saying the paternity test rebutted the presumption of
paternity, notwithstanding the fact that Father acted as Child’s father from 1992 through 2005. DHS
filed exceptions again, and the recommendations were again sustained. DHS appealed. Court of
Special Appeals vacated the order and remanded.
Finding: Where there is a belated request for DNA testing to challenge paternity, the success of
which requires the rebuttal of the presumption of paternity, the court must consider the “best
interests of the child” before ordering such testing. Under the best interests standard, the trial court
abused its discretion in granting the request for DNA testing and terminating support. The
assessment of whether DNA testing was in the child’s best interest could only be made by
considering the entirety of the relationship between child, former husband, and former wife. The
trial court focused, more narrowly, on whether child was aware of her parentage and whether there
was a family unit to protect. The knowledge of parentage, alone or in combination with the divorce
of the child’s parents, was not the entirety of the relationship.
Karen P. v. Christopher J. B., 163 Md. App. 250 (2005)
Issue: Did the Father prove the existence of exceptional circumstances sufficient to overcome the
presumption that it was in Claudia’s best interest to be in the custody of the Mother, a biological
parent?
Facts: Parties never married. They had a first child, Sebastian. The parties’ relationship began to
deteriorate and they separated for several months. The parties reconciled and shortly thereafter,
second child, Claudia was born, Mother learned that Father was not the biological father, but never
disclosed that to Father. Mother named Father on Claudia’s birth certificate. Father believed and
treated Claudia as his biological child and bonded as father and daughter as did Claudia and
Sebastian as brother and sister. The parties separated again. Mother filed a complaint for custody of
both children. Father filed a counter-complaint for custody of the children. Mother revealed to
Father he was not the biological father of Claudia. Mother packed up the children to move to NJ.
Mother refused to give any details about the move, refused to give an address or children’s
whereabouts. Mother requested a DNA test to determine Claudia’s paternity. Two days before trial,
the DNA test results were completed showing that the Father was not the biological father. The
court found that the Mother was a fit parent but further found that there were exceptional
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circumstances that rebutted the presumption that it would be in Claudia’s best interest to be in the
custody of Mother, her only identified biological parent. The court examined whether the Father
met any of the exceptional circumstances and then analyzed the physical custody factors in making
its determination. Having found exceptional circumstances in the instant case, the trial court then
addressed what custody determination would be in the children’s best interests. The trial court
found that the mother had acted selfishly, placing her interest above those of the children, treating
the Father’s role in their lives as unimportant, and attempting to alienate the children from him. The
trial court concluded that it would be in the children’s best interests for custody to be awarded to the
Father, with visitation for the Mother.
Holding: The Court relied on McDermott that in a custody case between a biological parent and a
third party, the presumption in favor of the biological parent may be rebutted by finding either, the
biological parent unfit or the existence of extraordinary circumstances significantly detrimental to
the child, if the child were to remain in the custody of the biological parent. In determining
exceptional circumstances, the court reviewed the factors set forth in Hoffman. The Court found the
trial court’s finding of exceptional circumstances was not clearly erroneous nor an abuse of
discretion. The finding of exceptional circumstances was not merely based on the existence of a
strong bond between the father and Claudia. The exceptional circumstances included the facts that
the Mother had little respect for the relationship between the Father and Claudia and what that
relationship meant to Claudia. Also, the Mother challenged and used the paternity to gain an
advantage in the custody case and had moved the children from Maryland, refused to disclose
where to, making it impossible for the Father to visit or communicate with them. The Court
concluded further: Granting custody to Karen made it more likely that Claudia would lose the only
father she had known, and suffer the pain that such loss would entail. Granting custody to
Christopher made it likely that Claudia would continue to have a mother and a father figure in her
life, and would not suffer emotionally beyond that which a child ordinarily suffers when the family
breaks up. The trial court’s finding that these were exceptional circumstances that would make
granting custody of Claudia to Karen detrimental to Claudia was not clearly erroneous, and its
decision to grant custody of Claudia to Christopher was not an abuse of discretion.
Kaufman v. Motley, 119 Md. App. 623 (1998)
Issue: Is a protective order issued under the Maryland Domestic Violence Act void if the trial court
fails to limit its duration as prescribed by statute, and may the court modify a child custody order
pursuant to the Act?
Holding: The Court of Special Appeals held that a protective order is not void despite the failure to
limit its scope, but is limited in its duration to two hundred (200) days (now one [1] year). The
Court distinguished between ex parte protective orders and orders issued following a hearing on the
merits. The latter imposes safeguards to ensure that both parties have an opportunity to be heard and
that the respondent can present defenses against the accusations of the petitioner, safeguards do not
exist with ex parte protective orders. The Court stated that despite the order being open-ended in
duration, the order was supported by clear and convincing evidence at the merits hearing and should
be limited according to the statute. The Court further held that a modification of custody under the
Maryland Domestic Violence Act is appropriate insofar as the right to be awarded temporary
custody of the children is one of the protections afforded by the Act. The Court emphasized,
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however, that such a modification order was only temporary in nature and limited to two hundred
(200) days, rather than a general custody modification.
Kennedy v. Kennedy, 55 Md. App. 299 (1983)
Use and possession for benefit of child, not spouse: Before a spouse can be awarded use and
possession of the family home, that spouse must be awarded custody of the minor child or children
and must show a need for the child or children to continue to live in the family home. However, a
spouse who obtains award of use and possession of family home and of family use personal
property need not be awarded custody of all of the family’s minor children. The statute confirms the
Court’s authority of award of use and possession of family home and of family use personal
property to the spouse with custody of a minor child “who has a need to live in the family home,
and the word “who” in the statute refers to the minor child and not to the spouse, and it is the child
whose need to live in the home must be demonstrated and it was not necessary to show that the
mother, who had custody of the parties’ daughter, had a need to live in the family home.
Khalifa et. al. v. Shannon, 404 Md. 107 (2008)
Court of Appeals held that Maryland law does recognize the tort of interference with child custody
and visitation rights; that the father was not required to allege economic loss of child’s services to
maintain action, a noncustodial parent with visitation rights can sue for interference with parentchild relations, and that the punitive damages awards were not excessive. After entering into a
Consent Order regarding the custody and visitation rights of their two minor children, the mother,
with the assistance of the maternal grandmother, abducted and absconded with the two (2) minor
children to Egypt in August 2001. Father filed a tort action for Intentional Interference with
Custody and Visitation Rights resulting in a jury award of $3,017,000.00 against both the mother
and grandmother. The Court of Appeals issued a writ of certorari prior to any proceedings and
upheld the decision of the trial court. The Court reasoned that based on English common law that
Maryland has recognized the tort of abduction and harboring of a child; however, the element of
“loss of service” was not applicable with young minor children. The Court further held that the jury
award of over three million dollars was not excessive due to testimony of the father as to the
Defendant’s wealth and the Defendants’ particularly heinous conduct.
Kline v. Kline, 85 Md. App. 28 (1990)
Whether property is “marital” has no relationship to who owns it: Under marital property law in
Maryland, when property is designated as marital or non-marital property, the court is using words
which have no relationship to any other judicial concept of property. Whether the property is
marital or non-marital has nothing whatsoever to do with who owns it, possesses it, or uses it.
The house purchased by the parties together prior to the marriage was not marital property, and was
not changed into marital property because of their subsequent marriage; the change in form of coownership from joint tenancy to tenancy by entireties was not an acquisition of property.
Koffley v. Koffley, 160 Md. App. 633 (2005)
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Issue: Does an appeal of a custody order divest the Circuit Court of jurisdiction to hear any
subsequent matters regarding custody?
Facts: The parties had three children, ages eleven to sixteen. A bitter custody and child support
struggle extended over years. The parties were divorced, the Father was awarded custody of the
three children, and the mother’s visitation was suspended. The Mother appealed the various orders
of the Circuit Court dealing with the custody award and suspension of her visitation. While the
appeal was pending the mother filed an Emergency Motion arguing that the best interest of one of
the children required an immediate transfer of custody to her. The mother’s Motion asserted that,
because the present custody and visitation orders were on appeal, the Circuit Court was divested of
jurisdiction to change any of the provisions in those orders and thus could not hear the Emergency
Motion.
Holding: The Court held that although the general rule is the noting of an appeal divests the lower
court of jurisdiction to proceed with regard to the issue appealed, any decision involving custody
will be an exception to the general rule. That is, a decision as to the custody of a child is never
absolutely final because it is always subject to modification and change under the continuing
jurisdiction of the divorce court. Accordingly, if a motion for change in custody is based upon the
assertion of a material change in circumstance occurring subsequent to the entry of the original
order, the fact that there is an appeal in the matter, will not divest the circuit court of jurisdiction to
hear the “new” custody issue.
Koshko v. Haining, 398 Md. 404 (2007)
Issue: Whether, under a substantive due process analysis, the Maryland Grandparent Visitation
Statute is unconstitutional because it fails to recognize a rebuttable presumption accorded to the
propriety of a parent’s determination of what is in his or her child’s best interest with respect to
visitation with a grandparent?
Facts: This case involves a “bitter familial conflict” between parents and maternal grandparents
over visitation of the minor children by the maternal grandparents. Andrea Haining, daughter of
John and Maureen Haining, moved out of their home at age eighteen to Florida. While in Florida
she became pregnant. The father of the child deserted Ms. Haining and she returned to her parent’s
home where the child, Kaelyn, was born. Andrea met and began dating Glen Koshko. The couple
moved in together and eventually married. The Hainings (maternal grandparents) maintained a close
relationship with Kaelyn. In June 1999, the Koshkos and Kaelyn moved to Maryland. While in
Maryland, the Koshkos had two additional children born to them, Haley and Aiden. Despite the
distance between the families, the Hainings continued to maintain a relationship with the Koshkos
and the grandchildren. In October 2003, the Koshkos and the Hainings became estranged over
family issues. On April 19, 2004, the Hainings filed a petition for visitation in the Circuit Court for
Baltimore County. After a two-day trial, the court entered an order granting the Hainings’ petition,
finding that visitation was in the best interests of the grandchildren, that the Hainings had rebutted
the presumption in favor of the parent’s determination of what is in their child’s best interests. The
Koshkos unsuccessfully moved for a new trial and then appealed the judgment to the Court of
Special Appeals challenging the constitutionality of the Maryland’s Grandparent Visitation Statute,
Md. Code Ann., Fam. Law § 9-102. The Court of Special Appeals affirmed the judgment of the
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Circuit Court for Baltimore County. The Koshkos filed a petition for writ of certiorari which was
granted by Maryland Court of Appeals.
Holding: The Court of Appeals held that the Maryland Grandparent Visitation Statue was facially
valid and construed the Statute to include the application of the parental presumption so that “it is
saved from per se constitutional infirmity.” The Court went on to further say that although a
visitation case may involve a lesser degree of intrusion than a custody case, there is no difference of
constitutional magnitude involved in the intrusion in either type of case. The Court held that “[a]
proceeding that may result in a court mandating that a parent’s children spend time with a third
party, outside of the parent’s supervision and against the parent’s wishes, no matter how temporary
or modifiable, necessitates stronger protections of the parental right. The importance of parental
autonomy is too great and our reluctance to interfere with the private matters of the family too
foreboding, whether it be in matters of custody or visitation, to allow parental decision-making to
remain that vulnerable to frustration by third parties.” Consequently, the Grandparent Visitation
Statute required a finding of parental unfitness or exceptional circumstances showing detriment to
the children, absent visitation from the grandparents, as a prerequisite to application of the best
interests analysis.
Krebs v. Krebs, 183 Md. App. 102 (2008)
Facts: After separating from his wife and children, father moved to Maryland from Arizona. Upon
retrieving the children from Arizona for a summer visitation, the father filed for divorce and
petitioned the Maryland court for emergency custody of the minor children. After Maryland granted
emergency custody to the father, the Maryland court and Arizona court conducted a conference call.
As a result of the conference call, Arizona determined that it had home state jurisdiction but
declined to exercise jurisdiction citing that Maryland was a more convenient forum. Custody was
awarded to father after a final merits hearing and mother appealed.
Holding: Court of Special Appeals held that Maryland’s appellate courts could not determine if
Arizona failed to apply the appropriate standard in declining to exercise jurisdiction and the mother
should seek review in the State of Arizona. Further, the court held there was no prohibition for a
court from considering facts relevant as of the date of the final merits hearing when a party is trying
to establish jurisdiction based upon significant contacts. Significant connection for determination of
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) can
be as of the time of the merits hearing.
Lapides v. Lapides, 50 Md. App. 248 (1981)
Issue: Was the attorney’s fee award for the guardian ad litem reasonable?
Holding: The Court of Special Appeals held that the evidence was sufficient to establish that the
award was reasonable based on the extensive work involved in the case on the part of children’s
attorney. The court also found that the children benefited from the attorney’s services and that the
fee was far from excessive. The Court of Appeals held that the children had a right to representation
in the appeal based on the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland §3-604’, which states: “The court, for good cause, may appoint an attorney to represent a
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minor in any action brought under this subtitle in which the issue of custody, visitation rights, or the
amount of support, is contested and may levy counsel fees against either or both parents as is just
and proper under all the circumstances. Any attorney appointed to represent a minor may not
represent any party to the action.” The court further opined that the statute provided that minors are
not only entitled to representation but that their counsel is entitled to compensation from the parents
and that the fact that a counsel is appointed indicates the children have standing to do that which is
necessary to protect the counsel and themselves. Family Law §1-202, which replaced CJ §3-604,
states, “In an action in which custody, visitation rights, or the amount of support of a minor child is
contested, the court may: (1) appoint to represent the minor child counsel who may not represent
any party to the action; and (2) impose against either or both parents counsel fees (CJ§ 3-604; 1984,
ch. 296, §2.).
Lawrence v. Lawrence, 74 Md. App. 472 (1988)
Issue: Did the court abuse its discretion in refusing the change the surnames of two minor children
of divorced parents to a hyphenated surname consistent with the custodial mother’s surname and in
refusing to allow the children to testify as witnesses?
Holding: The Court of Special Appeals held that the trial court had not abused its discretion in
refusing the change the surnames of the two minor children. Appellant argued that Article 46 of the
Declaration of Rights of the Constitution of Maryland guaranteed her the right to have her heritage
reflected in the children’s surname as per Lassiter-Geers v. Reichenbach. The Court distinguished
Lassiter-Geers: in that case the parents had failed to agree on a surname at the time of the child’s
birth, which occurred after the parents had separated. The Lassiter-Geers court thus applied the
“best interest of the child” standard in determining whether the child’s surname should be changed
from that of the mother’s maiden name to that of the father’s surname. In this case, however, the
trial court emphasized that the mother desired to change the surname that the daughters, now 11 and
12 years old, respectively, had used since birth. The Court found that there had been no suggestion
of any misconduct by the father that would cause embarrassment to his daughters. As such, and
because there had been no indication that any preference had been accorded the father based on his
sex, the Court concluded that the trial court had not abused its discretion in refusing to grant the
mother’s request. The Court also concluded that the same weight should be given in a name change
determination as that in a custody proceeding; that is, the preference of an intelligent child who has
reached the age of reason should be considered but is not controlling. The trial court thus has
discretion whether to grant or deny a continuance to enable the children to testify, and unless
arbitrary, its action will not be disturbed on appeal.
Ledvinka v. Ledvinka, 154 Md. App. 420 (2003)
The trial court’s authority to act in a given case is limited by the issues framed by the pleadings.
Levitt v. Levitt, 79 Md. App. 394, 556 A.2d 1162 (1989)
The custody of children should not be disturbed unless there is some strong reason affecting the
welfare of the child. To justify a change in custody, a change in conditions must have occurred
which affects the welfare of the child and not of the parents. The reason for this rule is that the
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stability provided by the continuation of a successful relationship with a parent who has been in day
to day contact with a child generally far outweighs any alleged advantage which might accrue to the
child as a result of a custodial change. In short, when all goes well with children, stability, not
change, is in their best interests.
Marshall v. Stefanides, 17 Md. App. 364 (1973)
Issue: May a trial court conduct an interview of the children involved in a custody dispute without
the parents being present and use the statements made by the children in its custody determination?
Holding: The Court of Special Appeals held that an interview of a child in a custody case outside of
the presence of the parties is proper where the interview is recorded and the court reporter reads it to
the parties immediately afterward. The court found that the Chancellor erred in not making the
substance of the in camera interview known to the parties.
McCarty v. McCarty, 147 Md. App. 268 (2002)
Issue: Was trial court's decision to award joint legal custody an abuse of discretion where the
mother is reluctant to share legal custody and the parties' track record for effective communications
is marginal?
Holding: The Court's decision to award joint legal custody was not an abuse of discretion despite
the Wife's reluctance to share legal custody and the marginal track record of effective
communication. The trial judge appointed a Parent Coordinator, Linda Gordon, to work with the
parents six (6) months before the trial, who testified that the parents had made some progress in
their communications. The trial judge ordered a continuation of the Parent Coordinator to resolve
disputes between the parents for six (6) months post-trial and improve parent communications. The
trial judge concluded that, despite the track record of poor communications between the parents,
with the help of a third-party, the parents could "do legal custody." The appeals court found that the
trial court engaged in "energetic measures" which were "highly commendable" by the use of a
Parent Coordinator before and after trial in an effort to ensure acceptable communications between
the parents.
McCready v. McCready, 323 Md. 476 (1991)
Issue: In determining whether a change in physical custody is appropriate, should a trial court base
its determination on whether a material change in circumstances has occurred that affects the
welfare of the child, or should the court apply "the best interest of the child" standard?
Holding: The Court of Appeals held that the proper standard to be applied in determining a change
in child custody is the best interest of the child. The Court reasoned that while custody decrees are
never final in Maryland, they must be afforded some finality to ensure that unsatisfied litigants are
not permitted to relitigate custody arrangements ordered by a court. Thus, any reconsideration of a
custody order should emphasize changes in circumstances that have occurred subsequent to a court's
previous determination. However, the Court emphasized that deciding whether those changes are
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sufficient to require a change in custody also requires a consideration of the best interest of the
child.
McDermott v. Dougherty, 385 Md. 320 (2005)
Issue: May the Court, after finding a natural parent fit, grant custody to third parties based on the
parent's employment requiring them to be absent for long periods of time?
Facts: Circuit Court for Harford County awarded the maternal grandparents sole legal and physical
custody of Child. The Court found Mother "unfit,” and although not finding Father an "unfit"
parent, the Court found that his employment in the merchant marines, requiring him to spend
month-long intervals at sea, constituted "exceptional circumstances" as that term was defined in
Ross v. Hoffman, and the "best interest of the child" and need for a stable living situation thus
warranted that custody be placed with the grandparents. The Court of Special Appeals affirmed the
lower court's decision in an unreported opinion. The Court of Appeals granted cert.
Holding: In a 113 page opinion the Court held "that in disputed custody cases where private third
parties are attempting to gain custody of children from their natural parents, the trial court must first
find that both natural parents are unfit to have custody of their children or that extraordinary
circumstances exist which are significantly detrimental to the child remaining in the custody of the
parent or parents, before a trial court should consider the `best interests of the child' standard as a
means of deciding the dispute. We further hold that under circumstances in which there is no
finding of parental unfitness, the requirements of a parent's employment, such that he is required to
be away at sea, or otherwise appropriately absent from the State for a period of time and for which
time he or she made appropriate arrangements for the care of the child, do not constitute
'extraordinary or exceptional circumstances' to support the awarding of custody to a third party."
After reviewing numerous cases in other states and Supreme Court cases, the Court wrote, "Where
the dispute is between a fit parent and a private third party however, both parties do not begin on
equal footing in respect to rights to 'care, custody, and control' of the children. The parent is
asserting a fundamental constitutional right. The third party is not. A private third party has no
fundamental constitutional right to raise the children of others. Generally, absent a constitutional
statute, the nongovernmental third party has no rights, constitutional or otherwise, to raise someone
else's child." The Court then went on to separate standards for custody determination into three
categories. Finding themselves in the minority view, the Court clarified what they meant in
Shurupoff when discussing Hoffman. The Court held, "We shall hold, as we indicated in the
beginning of our opinion, that, generally, in private actions in which private third parties are
attempting to gain custody of children of natural parents over the objection of the natural parents, it
is necessary first to prove that the parent is unfit or that there are extraordinary circumstances
posing serious detriment to the child, before the court may apply a 'best interest' standard. With this
clarification, Maryland will be consistent with the majority view in this country." The Court
concluded that the circuit court inappropriately found that the absences inherent in Mr. McDermott's
job requirements constituted “exceptional circumstances.”
Meyr v Meyr, 195 Md. App. 524 (2010)
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Issue: Did the trial court exceed its authority when it delegated to the best interest attorney the
decision of how long family reunification therapy should continue?
Holding: While a court cannot delegate decisions regarding child visitation and custody, the Court
held that the trial court did not delegate its authority as the court’s order vested power with the best
interest attorney subject to supervision and modification by the court. The Court held that the trial
court had resolved the primary issues of custody and visitation and that delegating authority to the
best interest attorney for the coordination of family reunification therapy was appropriate as an
ancillary matter.
Miller v. Bosley, 113 Md. App. 381 (1997)
Issue: Given the findings and recommendations by the Master, was it proper for the Court to enter
an immediate pendente lite custody order pursuant to 74A(f)(2)?
Facts: The father sued the mother for custody. The Court held an emergency hearing and awarded
the mother custody of the child pending its final determination regarding custody. The Master
thereafter held a custody hearing. After the custody hearing, the paternal aunt petitioned the Court
to be a named party. The record does not reflect whether the motion was ever granted. The Master
issued his report which recommended that custody be awarded to the paternal aunt pendente lite.
The Master did not issue any findings to indicate that an immediate transfer of custody was
necessary. However, the Master attached a proposed order which recommended an immediate
transfer of custody pursuant to Maryland Rule 74A(f)(2). The trial judge held a hearing, as required
by 74A(f)(2), and signed the Master's proposed order, altering only the visitation provision. Neither
party filed exceptions. The mother appealed, claiming that the Judge erroneously deprived her of
custody of her daughter.
Holding: Maryland Rule 74A(f)(2) permits the Court to enter an immediate pendente lite order
under certain, very specific, circumstances. Namely, only when the Master finds "extraordinary
circumstances" and recommends immediate disposition. Miller at 394. The Master's failure to do
either in this case precludes the Court's ability to enter an immediate order under 74A(f)(2).
Montgomery Co. Dep’t. of Social Services v. Sanders, 38 Md. App. 406 (1978)
Issue: Is it in the best interest of the child for a custody award to be determined based solely on the
socio-psychological theory of the “psychological parent,” where the psychological parent is the
person to whom a child under the age of five (5) becomes inextricably bonded after two (2) months
of separation from its natural parents?
Holding: The Court of Special Appeals held that the trial court had not abused its discretion in
refusing to award custody of Christopher to the psychological parent and in returning him to his
mother. The Court reasoned that the MCDSS approach reduced custody evaluation to a mere
mathematical formulation based on the child’s age at separation from the natural parents and the
length of time of the separation. The Court concluded that custody cases involve too many variables
involving people, conditions, and human emotions for such simplistic calculations. The Court set
forth ten (10) factors, all of which should be considered, along with the totality of the situation in
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the alternative environments, when determining child custody: (1) fitness of the parent, (2) character
and reputation of the parties, (3) desire of the natural parents and agreements between the parties,
(4) potentiality of maintaining natural family relations, (5) preference of the child, (6) material
opportunities affecting the future of the child, (7) age, health and sex of the child, (8) residences of
the parents and opportunity for visitation, (9) length of separation from the natural parents, and (10)
prior voluntary abandonment or surrender.
Nagle v. Hooks, 296 Md. 123 (1983)
Issue: Should the Court appoint an attorney in custody cases to assert or waive the child’s therapy
privilege?
Holding: The best interest of the child was found to be the controlling factor and the appointment
of an attorney to act as the guardian of the child for purposes of asserting or waiving the
psychiatrist/patient privilege at trial was necessary. The Chancellor reasoned that both parents
would have to waive the psychiatrist/patient privilege on behalf of the child in order for the
psychiatrist to be able to testify. The court found that because Mr. Nagle had requested the
Chancellor to appoint a guardian for the child and the Chancellor ultimately denied the request, the
Court of Appeals found that the Chancellor erred in refusing to appoint a guardian to act for the
child regarding the assertion or waiver of the psychiatrist/patient privilege. The court found that
although the custodial parent could argue that he or she alone should qualify as a previously
appointed guardian for purposes of asserting or waiving the privilege, the custodial parent has a
conflict of interest in acting on behalf of the child.
Nodeen, et ux. v. Sigurdsson, 408 Md. 167 (2009)
When presented with a forum non conveniens argument, the Court must balance the convenience of
the parties, witnesses and interests of justice and only when the evidence strongly favors the moving
party should the Court grant the motion. After a custody action granting custody to the paternal aunt
and uncle and only visitation to the maternal grandmother was decided in AA County, the
biological mother moved to Calvert County. Eleven months after the case was closed, the mother
filed in Calvert County for a modification of custody. The paternal aunt and uncle requested that the
case be moved to Anne Arundel County based on an argument of form non conveniens. The trial
court granted the motion and mother appealed to the Court of Special Appeals. The Court of Special
Appeals vacated the order stating that the modification was a new case and therefore, Anne Arundel
County was no longer a proper venue. The Court of Appeals held that Anne Arundel County
maintained continuing jurisdiction since they issued the original custody order. However, Calvert
County had general jurisdiction based on the mother’s residency. Since both counties had
jurisdiction, the paternal aunt and uncle needed to show that it was more convenient to have the
case heard in Anne Arundel County; however, they were unable to meet their burden.
Petitto v. Petitto, 147 Md. App. 280 (2002)
The mother and father divorced when they lived in Massachusetts, and their separation agreement,
which contained child support provisions incorporated in the divorce, recited that it was governed
by Massachusetts law, but by the time the father sought a modification of his support obligation, he
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lived in Virginia, and the mother and child lived in Maryland. The appellate court held that the fact
that Massachusetts law governed construction of the contract did not mean that Massachusetts child
support guidelines applied.
Parents cannot waive or bargain away appropriate child support. A parent has both a common law
and statutory duty to support his or her minor child. This policy is codified in the child support
guidelines.
A court has discretion to modify a child support award, provided that there has been a material
change in circumstances, needs, and pecuniary condition of the parties from the time the court last
had the opportunity to consider the issue. Although the court has the power to modify an agreement,
it ought not do so unless it finds that: (1) the provision in question does not serve the child’s best
interest; and (2) the proposed modification does.
A parent has no right to restitution or recoupment following a modification of child support. Child
support is the obligation of a parent to a child, not to the other parent. Therefore, a parent who
overpays has no absolute right to recoupment.
Voluntary impoverishment: To determine if a parent is voluntarily impoverished, a Maryland court
considers several factors. These include: (1) the parent’s current physical condition; (2) his or her
respective level of education; (3) the timing of any change in employment or financial
circumstances relative to the divorce proceedings; (4) the relationship of the parties prior to the
divorce proceedings; (5) his or her efforts to find and retain employment; (6) his or her efforts to
secure and retrain employment; (7) his or her efforts to secure retraining if that is needed; (8) his or
her past work history; (9) the area in which the parties live and the status of the job market there;
and (10) any other consideration presented by either party.
Imputed income: In determining a party’s potential income, the trial court must consider the
following factors: (1) age; (2) mental and physical condition; (3) assets; (4) educational
background, special training, or skills; (5) prior earnings; (6) efforts to find and retain employment;
(7) the status of the job market in the area where the parent lives; (8) actual income from any
source; and (9) any other factor bearing on the parent’s ability to obtain funds for child support. The
court’s inquiry is not limited to recent years. When a court determines that a parent is voluntarily
impoverished, it may consider any admissible evidence to ascertain potential income. In some
circumstances, a parent’s past work experience is taken into consideration in determining potential
income.
Randolph v. Randolph, 67 Md. App. 577 (1986)
If a marital asset is worth less than amount of debt incurred in acquiring it, the value of that item is
simply reduced to zero. The balance of the debt is not transferable to reduce the net value of any
other item of marital property.
Richardson v. Boozer, 209 Md. App. 1 (2012)
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Father filed motion for modification of child support payable incident to judgment of absolute
divorce, seeking to compel mother to pay child support and to reimburse father for overpayment of
child support. The Circuit Court granted motion, but ordered father to pay outstanding child support
balance of $7,101.00. Following denial of his motion for reconsideration, father appealed. The
Court of Special Appeals affirmed, holding that:
1. As matter of first impression, child’s enrollment at community college in attempt to make up
courses required for his high school graduation constituted enrollment in secondary school for
child support purposes;
2. Father had obligation to pay child support from time child returned to live with his mother
until child reached age of 19 because the child was still working toward his high school
diploma;
3. Trial court did not abuse its discretion in calculating parties’ respective child support
obligations and exercising discretion to determine that father owed mother total of $7,101.00;
and
4. Trial court did not abuse its discretion by refusing to address father’s claim with respect to
alleged overpayment of tuition, which was not raised in his pleadings.
Ricketts v. Ricketts, 393 Md. 479 (2006)
Issue: Whether a spouse’s complaint for a limited divorce alleging constructive desertion based on
lack of marital relations may be maintained when both parties continue to live under the same roof
but in different bedrooms and without marital relations; and whether given these circumstances, a
complaint for custody and visitation of the parties’ children may be maintained.
Holding: A limited divorce grants to the injured spouse the right to live separate and apart from the
one at fault. However, the parties remain spouses and there is no severance of the marital bonds.
Both actual desertion and constructive desertion generally require that one of the spouses physically
leave the marital home. In Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952), however, it has
been held that constructive desertion may occur where both parties continue to live under the same
roof. Because desertion means the ceasing to live together as husband and wife, permanent refusal
of either the husband or the wife to have sexual intercourse with the other spouse, from no
consideration of health or other good reason, constitutes matrimonial desertion although the parties
continue to live in the same house. It is not enough that parties sleep in separate bedrooms and
without relations. Rather, there must be a rejection by one spouse of the other’s efforts at
reconciliation. As the Court clearly has authority to decide custody and visitation rights of a
noncustodial parent, and given the connection between custody decisions and divorce, it would be
illogical to deny the court the right to determine issues of custody, support and visitation when the
parties are living under the same roof.
In re: Roberto D. B., 399 Md. 267 (2007)
Through in vitro fertilization, the appellant/father’s sperm was used to impregnate the gestational
carrier/appellee with two fertilized eggs. When the twins were born, the hospital provided the name
of the gestational carrier as the “mother” of the children to the Maryland Division of Vital Records.
The birth certificates were issued for the twins with the gestational carrier’s name listed as the
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mother, which neither she nor the father wanted. The father brought a petition to authorize the
hospital to report only the name of the father to the Maryland Division of Vital Records, and the
gestational carrier joined the father in his appeal. The Circuit Court denied the Petition because: (1)
there was no existing Maryland case law that would give a trial court the power to remove the
mother’s name from a birth certificate, and (2) removing the name of the surrogate from the birth
certificate is inconsistent with the “best interest of the child” based on, generally, “health reasons.”
On appeal, the father argued that Maryland’s parentage statutes, allow a man to deny paternity, and
do not, allow a woman to deny maternity, contrary to the Maryland Equal Rights Amendment: in
other words, in a paternity action, if no genetic link between a man and a child is established, the
man would not be found to be the parent, and the matter would end, but a woman, or a gestational
carrier, as in this case, will be forced by the State to be the “legal” mother of the children, despite
her lack of genetic connection. The Court of Appeals agreed with the father that the paternity
statute, as written, provides an opportunity for genetically unlinked males to avoid parentage, while
genetically unlinked females do not have the same option. The Court of Appeals further held that
Circuit Court’s implication of the best interest of the child standard was an error, as the gestational
carrier wanted to relinquish her parental rights, not assert them, and there was no issue of unfitness
as to the father.
Robinson v. Robinson, 328 Md. 507 (1992)
Issue: May a trial court infer an adulterous relationship, where a spouse invokes the Fifth
Amendment and refuses to admit or deny such a relationship, then allow the spouse to present
testimony regarding her fitness as a parent, and subsequently award custody to that parent?
Holding: Where a party in a civil proceeding invokes the Fifth Amendment privilege against selfincrimination in refusing to answer a question posed during that party’s testimony, the fact finder is
permitted to draw an adverse inference from that refusal. Thus, following the invocation of the Fifth
Amendment privilege, a trial court may properly infer that a parent has engaged in an adulterous
relationship, yet nevertheless find that the parent is a fit and proper person to have custody. The
Court stated that the trial court was not required to strike the testimony regarding the mother’s
fitness as a parent relating to the factors bearing on the issue of which custodial arrangement would
be in the child’s best interest. Such a harsh sanction would result in excluding all of that parent’s
testimony regarding her fitness for custody and would frustrate the primary purpose of the custody
proceeding. The proper sanction in such a case was the drawing of the adverse inference of an
adulterous relationship without the father having to introduce evidence as to that claim, and the bar
to the mother being allowed to introduce evidence in defense of that claim. The Court emphasized
that the primary concern in awarding child custody is the best interests of the child. In the instant
case, the trial court’s award of custody was based on a consideration of all the factors and a
determination of what was in the best interests of the child.
Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308 (2010)
Federal mandate requiring States to give child support collection priority over any other legal
process did not require that former husband’s attempts to execute on child support arrearages
judgments against former wife be given priority, when he attempted to garnish funds held by law
firm on behalf of former wife as a result of settlement of former wife’s personal injury claim against
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airline, as the federal mandate applied to “income,” and personal injury settlement did not fall under
the federal mandate’s definition of “income.”
Ross v. Hoffman, 280 Md. 172 (1977)
When child custody dispute is between a biological parent and a third party, it is presumed that the
child’s best interest is served by custody in the parent however, that presumption is overcome and
such custody will be denied if the parent is unfit to have custody or if there are such exceptional
circumstances as make parental custody detrimental to the best interest of the child.
Where mother was separated from child when child was about four months until child was about
eight years old, where child was strongly attached to custodians, where stability of mother’s
household was uncertain in light of her new marriage, where there had been a lapse of some eight
years before mother attempted to reclaim the child, where there were questions as to real motive of
mother in seeking reclamation, chancellor properly concluded that custody in custodians was in
child’s best interest, and as there was no clear abuse of discretion, determination would be affirmed
and; natural mother would be required to pay to custodians only such amounts as were received by
her for the support of the child from the child’s natural father and she would not be required to pay
additional funds. “The factors which emerge from our prior decisions which may be of probative
value in determining the existence of exceptional circumstances include the length of time the child
has been away from the biological parent, the age of the child when care was assumed by the third
party, the possible emotional effect on the child of a change of custody, the period of time which
elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the
child and the third party custodian, the intensity and genuineness of the parent’s desire to have the
child, the stability and certainty as to the child’s future in the custody of the parent.”
Schaefer v. Cusack, 124 Md. App. 288 (1998)
Facts: The trial judge granted custody of the parties’ six-year-old child to the mother, but ordered
that 30 days after the child completed 5th grade (approximately eight years from the date of the
final judgment), primary physical custody would automatically switch to the father. The court
further ordered the parties not to live more than 45 miles apart, that the father have six weeks of
summer visitation and that the parties maintain a custody diary. The mother appealed on the basis
that the trial court abused its discretion.
Holding: (1) The trial court abused its discretion when it attempted to look ahead and determine
now that it will be in the best interest of a child who has not yet entered kindergarten to have his
custody changed upon completion of 5th grade. To change custody in the future, the court will have
no idea how, at that time, the change of custody will affect the child. The principle of requiring a
change in circumstances for a change in custody is another indicator of looking at the circumstances
as they exist at the time the custody order is passed. The judge cannot predict the future. (2) The
trial court abused its discretion when it imposed a 45-mile limit because there was no evidence to
support this limit.
Schweizer v. Schweizer, 301 Md. 626 (1984)
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“Marital property” under the statutory definition is not dependent on title; a determination of what
constitutes marital property does not depend on the factors enumerated in the statute governing the
amount of a monetary award. The monetary award factors outlined in the statute come into play
only with respect to the amount of the award and the method of its payment. What property is
marital, and the value of what is marital, must be determined before the issue of a monetary award
is reached.
Non-monetary contributions: Under property disposition in annulment and divorce, non-monetary
contributions to the marriage should be recognized. The spouse who did not earn income may
nevertheless have contributed toward the acquisition of property during the marriage. When the
marriage is dissolved, property interests of the spouses should be adjusted equitably, with
consideration given to both monetary and non-monetary contributions made by the spouses.
Source of funds: Source of funds theory is of paramount importance in determining value of
marital property acquired during marriage. Property which the husband received during marriage, as
result of liquidation of a corporation of which he was the sole stockholder, was not necessarily
marital property, in that his acquisition of it was directly traceable to stock which he acquired prior
to his marriage. However, a proportionate share of the property might be marital property if some
payments on it were made with marital funds.
Marital and non-marital debt: A “marital debt” is a debt which is directly traceable to the
acquisition of marital property; a non-marital debt is a debt which is not directly traceable to the
acquisition of marital property. Marital debt is considered under the second step of the process
followed in reaching a monetary award, namely the valuation of marital property. If a spouse takes
on debt during the marriage to purchase marital property, and such debt or a portion thereof is
outstanding at the time a monetary award is being considered, then the value of the marital property
subject to equitable distribution must be adjusted downward to reflect the unpaid liability. A nonmarital debt may not serve to reduce the value of marital property. It has no function in the second
step of the process of determining a monetary award, but it may be taken into consideration in the
third step of the process, namely, the determination of the amount and method of payment of the
award. The amount outstanding on a non-marital debt of a party is part of that party’s economic
circumstances at the time the award is to be made and therefore is taken into consideration when a
monetary award is contemplated.
Shapiro v. Shapiro, 54 Md. App. 477 (1983)
Issues: Did the Court err in interviewing the child outside the presence of the parties and their
counsel? Did the Court err in ordering the father have no visitation until the psychiatrist
recommended it and then only upon the psychiatrist’s terms and conditions.
Facts: The Shapiros were married and had one child before they separated. Harry filed for divorce
and litigation continued for several years. At a hearing, the judge interviewed the ten-year old child
regarding his concerns about visitation with his father, privately in chambers with a court
stenographer present. After the interview, the judge met with counsel and the transcript of the
interview was read to them. The parties then had a discussion and entered into an agreement,
including, among other things, that the mother would have pendente lite custody, the child would
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undergo a psychiatric evaluation, the parties would undergo psychiatric therapy, and that reasonable
visitation with the father would commence when recommended by the psychiatrist. A subsequent
court order awarded permanent custody of the childto his mother and provided that no visitation
with the father would occur until the psychiatrist recommended it, and that visitation would be
according to the terms of the psychiatrist. Mr. Shapiro appealed.
Holding: (1) The interview with the child in a custody case in chambers were proper with or
without consent of the parties and with or without the presence of counsel but, that unless waived,
the interview must be recorded and its contents made known following the interview. (2) The order
vesting authority in the psychiatrist to structure and plan all visitation was an abuse of discretion
because it improperly delegated judicial responsibility to a psychiatrist.
Shenk v. Shenk, 159 Md. App. 548 (2004)
Issue: May the Court award the parties joint legal custody with the Wife having final tiebreaking
decision making authority in the event of a future dispute?
Holding: The Court of Special Appeals held that the trial court did not abuse its discretion when it
ordered joint custody to the parties with the Wife having final tiebreaking decision making authority
in the event of a future dispute. Citing Taylor as “acknowledging the existence of ‘multiple forms’
of joint custody and also stated that ‘formula’ or ‘computer solutions’ in custody cases are
impossible because of the unique character of each case and the subjective nature of the evaluations
and decisions that must be made”. The Court found the tie-breaking authority as a proactive
provision to anticipate a post-divorce dispute”. The Court found the “tie-breaking authority” as a
solution to the unique needs of this family. In addition, after reviewing the evidence presented, the
Court deferred to the trial court’s ability to evaluate the credibility of witnesses.
Shunk v. Walker, 87 Md. App. 389 (1991)
Issue: Can a party’s conduct, including, among other things, its failure to appear for a show cause
hearing and failure to produce a minor child for visitation pursuant to a court’s order, constitute a
change in circumstances sufficient to justify a transfer of custody?
Facts: The parties’ divorce decree in 1988 awarded custody of their six-year-old child to the father
and reasonable supervised visitation to the mother. In 1989, the father moved to Michigan for
employment reasons and took the child with him. The mother then filed a motion to modify
visitation, a motion to enforce visitation rights, a motion for contempt, and an emergency motion
for increased visitation. The court then ordered the father to produce the child for supervised
visitation and to appear for a show cause hearing on the motions. At the hearing, the parties entered
into a consent order that required the father to have the child evaluated by a psychiatrist in Michigan
and to submit the evaluation report within 60 days. The Order also required the court to contact the
mother’s treating physician to determine whether the need still existed to continue supervised
visitation. The father failed to appear for a show cause hearing ordered by the court in response to
the father’s failure to comply with the visitation order, nor did he produce the child as directed by
the court. The mother then filed a petition to modify custody and for contempt. The father failed to
respond, failed to appear at the hearing, and failed to produce the child. The court then awarded the
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mother temporary custody based on testimony by the mother’s physician that there was no need for
supervised visitation, testimony that indicated the father had left the country with the child and was
now living in Canada, and a finding that the father’s contumacious conduct in failing to appear and
produce the child prevented the court from effectively safeguarding the best interests of the child
and created a significant change in circumstances that could well affect the welfare of the child.
Holding: The relocation of a custodial parent and conduct that renders visitation impossible,
because the whereabouts of the child are unknown, as opposed to merely difficult, supports the
finding that the custodial parent is not a fit and proper party to have custody and thus constitutes a
change of circumstances affecting the welfare of the child. Because the father surreptitiously
relocated to Canada with the child and refused to make the child available for visitation, which cuts
off the rights of the visiting parent, the Court determined that a modification of custody was
warranted.
Smith v. Smith, 193 Md. App. 29 (2010)
Gift of real property from one party’s family: Real property deeded by husband’s mother to
husband and wife as tenants by entireties was marital property subject to equitable division, despite
husband’s testimony that mother intended property as gift to him only and wife’s admission that gift
was meant for husband; husband did not contribute any non-marital property to acquisition of real
property and, though mother intended to make gift of land to husband, mother changed her mind, at
husband’s suggestion, and deeded property to both husband and wife.
Accrued annual and sick leave marital property: Husband’s accrued annual leave and sick pay for
which he received payment following retirement, which occurred prior to divorce, was marital
property subject to equitable distribution, where payment was repayment of debt owed to husband
for value of services rendered by husband during marriage. When a party has, prior to the
dissolution of the marriage, actually received payment for vacation, annual, or sick leave accrued
during marriage, the monies paid should be considered marital property.
Sumpter v. Sumpter, 436 Md. 74 (2013)
Issue: Did the Court of Special Appeals err in refusing to vacate and remand the case to the circuit
court when the parties and the best interest attorney were not provided a copy of the custody
investigation report in violation of constitutional due process?
Facts: Baltimore City had a “Policy Regarding Distribution of Court Ordered Evaluative Reports”
which provided that:


Attorneys will be allowed to view all of the sections of a report in the Clerk’s office. They
will not be allowed to carry the report out of the Clerk’s office and will not be allowed to
copy the report.
Pro Se litigants will be allowed to view the Recommendation section and the section of the
report evaluating them in the Clerk’s office. They will not be allowed to carry the report out
of the Clerk’s office and will not be able to copy the report. They will not be allowed access
to sections of the report that evaluate the other party or any minor children.
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


Counsel for children will be allowed to view all sections of a report in the Clerk’s office.
They will not be allowed to carry the report out of the Clerk’s office and will not be able to
copy the report.
Attorneys may obtain copies of a report with a court order.
Pro Se litigants may be allowed to view all sections of a report with a court order.
In this case, there was a custody investigation report. The report was 161 pages long. Mother’s
counsel received notice the report had been submitted to the court on December 6th and immediately
went to the clerk’s office where she took notes for 90 minutes before the clerk’s office closed. Trial
was a week later and counsel was not able to review the report any further before trial. At trial,
counsel moved to exclude the report from the record; it was denied. She moved to have a copy of
the report given to her; that was also denied. The trial resulted in Mother losing custody of her
children.
Holding: In a child custody case, the trial court improperly limited a parent’s access to the custody
investigation report because without a copy of the report, counsel was not able to present the report
to an expert and thus was not able to prepare a rebuttal; the trial court applied a misconceived, hard
and fast rule to a matter that required the exercise of its discretion.
Swain v. Swain, 43 Md. App. 622 (1979)
Issue: May a court deny custody to a parent based solely on the basis of that parent’s adultery?
Holding: The Court of Special Appeals found that none of the trial court’s findings were clearly
erroneous and that the trial court properly refrained from engaging in guesswork as to the effect of
the mother’s affair on the child in the future. The trial court found only a possibility that the child
might, at some point in the future, be harmed by the mother’s adulterous relationship; however, the
child was not presently adversely affected. Relaying on Davis v. Davis, the Court held that although
the fact of adultery may be a relevant consideration in child custody awards, no presumption of
unfitness on the part of the adulterous parent arises from it. Rather, it should be weighed, along with
all other pertinent factors, only insofar as it affects the child’s welfare. The Court concluded that
there was no abuse of discretion by the trial court in awarding custody to the mother.
Taylor v. Taylor, 306 Md. 290 (1986)
Issue: Does a trial court have the authority to order joint custody in Maryland, and if so, did the
court abuse its discretion in so ordering in this case?
Holding: The Court of Appeals held that the authority to grant joint custody is an integral part of
the broad and inherent authority of the court exercising its equitable powers to deal fully and
completely with matters of child custody and that there was no legislative intent to limit this broad
authority by statute. The Court emphasized that the paramount consideration is the best interests of
the child, and stressed that the advantages and disadvantages of joint custody must be considered,
both to the children and to the parents.
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The Court set forth the factors to be considered for joint custody, in addition to those factors
normally considered when evaluating child custody:
1. the capacity of the parents to communicate and to reach shared decisions affecting the
child’s welfare;
2. the willingness of the parents to share custody;
3. the fitness of the parents;
4. the relationship established between the child and each parent;
5. the preference of the child;
6. the potential disruption of the child’s social and school life;
7. the geographic proximity of the parental homes;
8. the demands of parental employment;
9. the age and number of children;
10. the sincerity of the parents’ request;
11. the financial status of the parents;
12. the impact on State and Federal Assistance;
13. the benefit to the parents; and
14. any other relevant factors. .
Tarachanskaya v. Volodarsky, 168 Md. App. 587 (2006)
Issue: Was the trial court’s order regarding visitation an improper delegation of judicial Authority to
the therapist?
Facts: In a highly contested custody case, the court awarded sole legal and physical custody to Ms.
Tarachanskaya and ordered that Mr. Volodarsky have no visitation but could visit Greta “in a
structured, therapeutic setting, under conditions to be explored with the current treating therapist.”
Holding: The Court cited the Court of Appeals in In re Mark M., 365 Md. 687, 707, 782 A.2d 332
(2001) where it vacated the trial court because “it failed to grant or deny visitation but rather
declared that ‘visitation will not occur until the child’s therapist recommends it.” The Court held
that the trial court’s ruling was an improper delegation to a third party of judicial authority to
determine visitation. The Court held in the instant case, that on remand, the trial court must first
reconsider the facts regarding alleged abuse under the reasonable grounds to believe standard. Then,
after doing so, if the trial court orders visitation between Greta and Mr. Volodarsky, the trial court
must clearly articulate a visitation schedule between Mr. Volodarsky and Greta, “including the
nature of any supervision by a therapist in order to ‘assure the safety’ and meet the “physiological,
psychological, and emotional’ needs of Greta.”
Van Schaik v. Van Schaik, 200 Md. App. 126 (2011)
Issue: Did the court err by designating the minor children’s best interest attorney as the
“tiebreaker” decision-maker if the parties cannot reach a mutual agreement on future disputes
regarding the minor children?
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Facts: The custody order provided that the parties would communicate by e-mail and that any
“contentious matters or disputed e-mail issues shall be forwarded to the attorney for the minor
children … for her review.” The order also indicated that if the parties could not agree, the best
interest attorney “shall serve as the ‘tie-breaker’ and resolve the dispute.”
Holding: The Court distinguished this case from Meyr and found that the best interest attorney’s
authority to resolve “any disputed matter regarding the minor children” was not an ancillary matter.
The Court noted that in Meyr, the trial court had resolved the primary custody and visitation issues
and the authority delegated to the best interest attorney was limited to the coordination of family
reunification therapy, which was considered ancillary to custody and visitation. In addition, the trial
court in Meyr expressly stated that the best interest attorney’s authority was subject to supervision
and modification from the court. In the present case, the Court held that the best interest attorney
was granted broad authority that was not limited to ancillary matters and the Order did not include
any language to make the best interest attorney’s authority subject to the court’s review or
modification. Therefore, the Court vacated the “tiebreaker” part of the order.
Volodarsky v. Tarachanskaya, 396 Md. 291 (2007)
In the context of FL § 9-101, which requires that if the court has “reasonable grounds to believe”
that a child has been abused or neglected by a party, the court must in certain instances deny
custody or visitation rights to that party, the term “reasonable grounds to believe” is no different
from “preponderance of the evidence.” In this case, the trial court properly used the “preponderance
of the evidence” standard in finding that the father had not sexually abused the child. The Court of
Appeals reversed an earlier determination by the Court of Special Appeals that the trial court should
have used the “lower threshold of reasonable grounds to believe.” In this context, “reasonable
grounds to believe” is equivalent to “preponderance of the evidence.” The Court of Appeals found
no reason to suggest that the statute created a standard of proof even lower than “preponderance of
the evidence.”
Wagner v. Wagner, 109 Md. App. 1 (1996)
Issue: May a court hold interviews with the children in a custody dispute without first determining
whether the children are competent to testify as witnesses?
Holding: The court held that the interviews were proper because the children’s competency had not
been challenged prior to the interviews. In fact, Ms. Wagner had requested that the trial court
conduct the interviews. Furthermore, the court was able to assess whether the children had
“sufficient understanding to comprehend the obligation of an oath and to be capable of giving a
correct account of the matters which he has seen or heard relevant to the question of issue.”
Walter v. Walter, 181 Md. App. 273 (2008)
Ever since the adoption of the Maryland Alimony Act in 1980, alimony may be awarded either for a
fixed term (often called rehabilitative alimony) or for an indefinite term. When alimony is awarded,
the law prefers that the award be for a fixed term. See Tracey v. Tracey, 328 Md. 380, 391, 614
A.2d 590 (1992); Whittington v. Whittington, 172 Md. App. 317, 336, 914 A.2d 212 (2007). The
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court has discretion, however, to award indefinite alimony in exceptional cases when one of the two
circumstances described in subsection (c) of FL section 11-106 has been shown:
1. due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be
expected to make substantial progress toward becoming self-supporting; or
2. even after the party seeking alimony will have made as much progress toward becoming
self-supporting as can reasonably be expected, the respective standards of living of the
parties will be unconscionably disparate.
Whittington v. Whittington, 172 Md. App. 317 (2007)
Holdings:
1. court was not required to award indefinite alimony;
2. remaining balance of loan that husband took from his retirement account to purchase house
with his girlfriend was extant marital property; and
3. there was insufficient evidence to support trial court’s award of part of survivor benefit of
husband’s pension to wife.
Alimony, generally: The essential purpose of alimony was changed with the adoption of the
Maryland Alimony Act in 1980 (“Act”). Where the principal function of alimony once had been
maintenance of the recipient, dependent spouse’s standard of living, upon passage of the Act, that
function became rehabilitation of the economically dependent spouse. Karmand v. Karmand, 145
Md.App. 317, 327, 802 A.2d 1106 (2002). For that reason, “the ‘statutory scheme [governing]
alimony generally favors fixed-term or so-called rehabilitative alimony,’ rather than indefinite
alimony.” Simonds v. Simonds, 165 Md.App. 591, 605, 886 A.2d 158 (2005) (quoting Tracey v.
Tracey, 328 Md. 380, 391, 614 A.2d 590 (1992)). The preference for fixed-term alimony stems
from “the conviction that ‘the purpose of alimony is not to provide a lifetime pension, but where
practicable to ease the transition for the parties from the joint married state to their new status as
single people living apart and independently.’ ” Simonds, supra, 165 Md.App. at 605, 886 A.2d 158
(quoting Tracey, supra, 328 Md. at 391, 614 A.2d 590). See also Turrisi v. Sanzaro, 308 Md. 515,
524-25, 520 A.2d 1080 (1987) (noting that fixed-term alimony “promote[s] the transitional or
rehabilitative function” of the Act); Jensen v. Jensen, 103 Md.App. 678, 693, 654 A.2d 914 (1995)
(stating that “one of the purposes of the [Act] was to change the focus of alimony from a form of
lifetime pension toward a bridge to self-sufficiency”); Campolattaro v. Campolattaro, 66 Md.App.
68, 75, 502 A.2d 1068 (1986) (observing that alimony “is chiefly rehabilitative and is not designed
to be a life-time pension” (citation omitted)); 1980 Report of the Governor’s Commission on
Domestic Relations Laws (hereinafter “Governor’s Commission’s Report”), at 4 (stating that “the
purpose of alimony at the time of divorce is not to provide a lifetime pension”).
Indefinite alimony: First, the court has discretion to award indefinite alimony if, “due to age,
illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make
substantial progress toward becoming self-supporting [.]” FL § 11-106(c)(1). And second, the court
may award indefinite alimony upon a finding that, “even after the party seeking alimony will have
made as much progress toward becoming self-supporting as can reasonably be expected, the
respective standards of living of the parties will be unconscionably disparate.” FL § 11-106(c)(2).
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These exceptions are a “restraint upon the doctrine of rehabilitative alimony” that exist to “protect
the spouse who is less financially secure from too harsh a life once single again.” Tracey, supra, 328
Md. at 392, 614 A.2d 590.
Williams v. Williams, 71 Md. App. 22 (1987)
Property acquired during separation is marital property: Property acquired by a party up to the date
of the divorce, even if acquired during the separation, is marital property.
Wise-Jones v. Jones, 117 Md. App. 489 (1997)
Issue: May a court enter an immediate order transferring custody while exceptions to the master’s
recommendations are pending, dismiss the exceptions as moot for failure to file a timely transcript,
and modify custody without making findings-of-fact or conducting an independent review?
Holding: The Court of Special Appeals held that the trial court had erred in transferring custody to
the father based on the master’s report, which contained no findings-of-fact or extraordinary
circumstances, and without conducting oral argument or reviewing the master’s recommendations
or the file, and that the mother was not required to file a transcript containing testimony about topics
not related to custody. The Court explained that a trial court may enter an immediate custody order
while exceptions are pending only where extraordinary circumstances exist and only after the court
reviews the file and any exhibits, reviews the master’s findings and recommendations, and affords
the parties an opportunity for oral argument. The Court emphasized that the trial court, not the
master, must independently review the master’s fact finding and recommendations and make an
independent judgment on the issues. The Court also emphasized that oral argument must be
conducted by the trial court, not the master and is separate from that which occurs at the master’s
hearing. The Court concluded that dismissal of the mother’s exceptions for failure to timely file the
full transcript of both hearings was error because Maryland Rule 2-541(h)(2) clearly provides that
only that portion of the transcript necessary to rule on the exceptions need be filed and that the
transcript of the second hearing did not contain testimony on custody issues.
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Index of Cases
Aleem v. Aleem, 175 Md. App. 663 (2007) .......................................................................................... 5
Arrington v. Dep’t of Human Res., 402 Md. 79 (2007) ....................................................................... 5
Aumiller v. Aumiller, 183 Md. App. 71 (2008) .................................................................................... 6
Bangs v. Bangs, 59 Md. App. 350 (1984) ............................................................................................ 6
Barrett v. Ayres, 186 Md. App. 1 (2009) ............................................................................................. 7
B.G. v. M.R., 165 Md. App. 532 (2005)............................................................................................... 7
Bienenfeld v. Bennett-White, 91 Md. App. 488 (1992) ........................................................................ 7
Boemio v. Boemio, 414 Md. 118 (2010) .............................................................................................. 8
Bradford v. State, 199 Md. App. 175 (2011) ....................................................................................... 8
Bradley vs. Bradley, 214 Md. App. 229 (2013) ................................................................................... 9
Brandau v. Webster, 39 Md. App. 99 (1978)....................................................................................... 9
Britton v. Meier, 148 Md. App. 419 (2002) ....................................................................................... 10
Burdick v. Brooks, 160 Md. App. 519 (2004) .................................................................................... 10
Cohen v. Cohen, 162 Md. App. 599 (2005) ....................................................................................... 10
Conover v. Conover, No. 2099, Sept. Term, 2013............................................................................. 11
Corapcioglu v. Roosevelt, 170 Md. App. 572 (2006) ........................................................................ 11
Crawford v. Crawford, 293 Md. 307 (1982) ..................................................................................... 12
Cutts v. Trippe, 208 Md. App. 696 (2012)......................................................................................... 12
Davis v. Davis, 280 Md. 119 (1977) .................................................................................................. 13
Deering v. Deering, 292 Md. 115 (1981) .......................................................................................... 13
Dep’t of Human Res. v. Mitchell, 197 Md. App. 48 (2011)............................................................... 13
Domingues v. Johnson, 323 Md. 486 (1991) ..................................................................................... 14
Falise v. Falise, 63 Md. App. 574 (1985) .......................................................................................... 14
Flanagan v. Dep’t of Human Res. ex rel. Balt. City Dep’t of Soc. Servs., 412 Md. 616 (2010) ....... 15
Flanagan v. Flanagan, 181 Md. App. 492 (2008)............................................................................. 15
Flynn v. May, 157 Md. App. 389 (2004) ........................................................................................... 15
Frase v. Barnhart, 379 Md. 100 (2003)............................................................................................. 16
Gatuso v. Gatuso, 16 Md. App. 632 (1973)....................................................................................... 17
Grant v. Zich, 300 Md. 256 (1984) .................................................................................................... 17
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Giffin v. Crane, 351 Md. 133 (1998) ................................................................................................. 17
Goldmeier v. Lepselter, 89 Md. App. 301 (1991) .............................................................................. 18
Guidash v. Tome, 211 Md. App. 725 (2013) ..................................................................................... 18
Harper v. Harper, 294 Md. 54 (1982) ............................................................................................... 18
Heger v. Heger, 184 Md. App. 83 (2009) .......................................................................................... 19
Heineman v. Bright, 124 Md. App. 1 (1998) ..................................................................................... 19
Janice M. v. Margaret K., 404 Md. 661 (2008) ................................................................................. 20
John O. v. Jane O., 90 Md. App. 406 (1992)..................................................................................... 20
Jordan v. Jordan, 50 Md. App. 437 (1982) ....................................................................................... 20
Kamp v. Dep’t of Human Servs., 410 Md. 645 (2009) ...................................................................... 21
Karen P. v. Christopher J. B., 163 Md. App. 250 (2005).................................................................. 21
Kaufman v. Motley, 119 Md. App. 623 (1998) .................................................................................. 22
Kennedy v. Kennedy, 55 Md. App. 299 (1983) .................................................................................. 23
Khalifa et. al. v. Shannon, 404 Md. 107 (2008)................................................................................. 23
Kline v. Kline, 85 Md. App. 28 (1990) .............................................................................................. 23
Koffley v. Koffley, 160 Md. App. 633 (2005)..................................................................................... 23
Koshko v. Haining, 398 Md. 404 (2007) ........................................................................................... 24
Krebs v. Krebs, 183 Md. App. 102 (2008)......................................................................................... 25
Lapides v. Lapides, 50 Md. App. 248 (1981) .................................................................................... 25
Lawrence v. Lawrence, 74 Md. App. 472 (1988) .............................................................................. 26
Ledvinka v. Ledvinka, 154 Md. App. 420 (2003) .............................................................................. 26
Levitt v. Levitt, 79 Md. App. 394, 556 A.2d 1162 (1989).................................................................. 26
Marshall v. Stefanides, 17 Md. App. 364 (1973)............................................................................... 27
McCarty v. McCarty, 147 Md. App. 268 (2002) ............................................................................... 27
McCready v. McCready, 323 Md. 476 (1991) ................................................................................... 27
McDermott v. Dougherty, 385 Md. 320 (2005) ................................................................................. 28
Meyr v Meyr, 195 Md. App. 524 (2010) ............................................................................................ 28
Miller v. Bosley, 113 Md. App. 381 (1997) ....................................................................................... 29
Montgomery Co. Dep’t. of Social Services v. Sanders, 38 Md. App. 406 (1978) ............................. 29
Nagle v. Hooks, 296 Md. 123 (1983) ................................................................................................. 30
Nodeen, et ux. v. Sigurdsson, 408 Md. 167 (2009) ............................................................................ 30
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Petitto v. Petitto, 147 Md. App. 280 (2002) ...................................................................................... 30
Randolph v. Randolph, 67 Md. App. 577 (1986)............................................................................... 31
Richardson v. Boozer, 209 Md. App. 1 (2012) .................................................................................. 31
Ricketts v. Ricketts, 393 Md. 479 (2006) ........................................................................................... 32
In re: Roberto D. B., 399 Md. 267 (2007) ......................................................................................... 32
Robinson v. Robinson, 328 Md. 507 (1992) ...................................................................................... 33
Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308 (2010) ............... 33
Ross v. Hoffman, 280 Md. 172 (1977) ............................................................................................... 34
Schaefer v. Cusack, 124 Md. App. 288 (1998) .................................................................................. 34
Schweizer v. Schweizer, 301 Md. 626 (1984) .................................................................................... 34
Shapiro v. Shapiro, 54 Md. App. 477 (1983) .................................................................................... 35
Shenk v. Shenk, 159 Md. App. 548 (2004)......................................................................................... 36
Shunk v. Walker, 87 Md. App. 389 (1991) ........................................................................................ 36
Smith v. Smith, 193 Md. App. 29 (2010) ........................................................................................... 37
Sumpter v. Sumpter, 436 Md. 74 (2013) ............................................................................................ 37
Swain v. Swain, 43 Md. App. 622 (1979) .......................................................................................... 38
Taylor v. Taylor, 306 Md. 290 (1986) ............................................................................................... 38
Tarachanskaya v. Volodarsky, 168 Md. App. 587 (2006) ................................................................. 39
Van Schaik v. Van Schaik, 200 Md. App. 126 (2011) ....................................................................... 39
Volodarsky v. Tarachanskaya, 396 Md. 291 (2007).......................................................................... 40
Wagner v. Wagner, 109 Md. App. 1 (1996) ...................................................................................... 40
Walter v. Walter, 181 Md. App. 273 (2008) ...................................................................................... 40
Whittington v. Whittington, 172 Md. App. 317 (2007) ...................................................................... 41
Williams v. Williams, 71 Md. App. 22 (1987) ................................................................................... 42
Wise-Jones v. Jones, 117 Md. App. 489 (1997) ................................................................................ 42
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