UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0053
September Term, 2014
_______________________________________
MORGAN WOODS
F/K/A MORGAN JOHNSON
v.
REGINALD JOHNSON
Meredith,
Arthur,
Kenney, James A., III
(Retired, Specially Assigned),
JJ.
Opinion by Meredith, J.
Filed: September 19, 2014
In this appeal, Morgan Woods (“appellant” or “Mother”) challenges an order of the
Circuit Court for Montgomery County granting her ex-husband, Reginald Johnson
(“appellee” or “Father”), primary physical custody of the parties’ two children; granting
Father tie-breaking authority should an impasse arise between the parties involving their joint
legal custody; and deferring a determination of child support. Mother presents three
questions (with a variety of subparts) for our review.1
1
Mother’s questions presented, as stated in her brief, are:
I.
Did the trial court abuse its discretion in awarding primary physical
custody to the Appellee?
A.
Did the trial court err in finding Mr. Johnson’s testimony
to be credible?
B.
Did the trial court err in finding that Mr. Johnson’s
judgment was not impaired and in finding that no
evidence regarding Mr. Johnson’s judgment was
presented?
C.
Did the trial court err in failing to rely on or give more
weight to the report and recommendations of the custody
evaluator, Audrey Elkinson?
D.
i.
Did the trial judge err in limiting the custody
evaluator’s testimony?
ii.
Did the trial court err in finding that the custody
evaluator’s report was not balanced?
iii.
The trial court erred in her findings and
conclusions regarding Darryl Hooker.
Did the trial court err in entering a vague custody order?
(continued...)
For the reasons that follow, we answer Mother’s questions in the negative and affirm
the Circuit Court for Montgomery County.
FACTS AND PROCEDURAL HISTORY
The parties to this case married on February 2, 2006, and separated when Mother left
the marital home on August 1, 2012. The marriage produced two children — a son, born on
May 19, 2006, and a daughter, born on November 16, 2007. On January 17, 2013, Father
filed a complaint for limited divorce based on voluntary separation; in the complaint, he
asked, inter alia, to be awarded sole legal and physical custody of the children, with
reasonable visitation to Mother, and that Mother be ordered to pay “child support in
accordance with the Maryland Child Support Guidelines.”
On February 5, 2013, there was an altercation between Mother and Father at Father’s
residence. Father filed a petition seeking an order against Mother for protection from
domestic violence. The District Court of Maryland for Montgomery County granted Father
1
(...continued)
II.
Did the trial court abuse its discretion in awarding legal custody tie breaking
authority to the Appellee?
III.
Did the trial court err or abuse its discretion in failing to calculate child
support?
A.
The trial court erred in finding that this was not a child
support case.
B.
The trial court erred in finding that [it] did not have
sufficient information before [it] to calculate child
support.”
2
a temporary protective order pursuant to Maryland Code (1984, 2012 Repl. Vol.), Family
Law Article (“FL”), Title 4, Subtitle 5, and transferred the domestic violence action to the
Circuit Court for Montgomery County. On March 5, 2013, the court entered a consent order,
part of which provided that the domestic violence case would be dismissed. The consent
order also provided, generally, that neither party would “harass[,] assault, threaten or stalk
the other,” and that Mother would stay away from the marital home. It provided further that
the children would reside with Father, except for the following visitation periods when they
would stay with Mother: every Thursday overnight, until school drop-off Friday morning;
every other weekend from Friday after school until Sunday evening at 7 p.m. (except for a
period from 9 a.m. until 2 p.m. on Sundays, when Father would take the children to church).
In addition, in weeks when Mother did not have the children for the weekend, Mother was
entitled to have the children after school on Tuesdays until 7 p.m.
On March 29, 2013, Mother filed an answer to Father’s complaint for divorce. The
parties were ordered to attend co-parenting skills enhancement sessions and to be assessed
by a custody evaluator. On May 21, 2013, Mother filed a counterclaim for absolute divorce,
custody, and other relief; she contended that Father had committed adultery, and that her
departure from the marital home on August 1, 2012, was due to constructive desertion by
Father. She requested sole legal and physical custody, and that Father be ordered to pay child
support.
3
Father filed an answer to the counterclaim on September 3, 2013. A three-day custody
trial took place on November 19, 20, and 21, 2013. At the conclusion of trial, the circuit
court awarded Father primary physical custody of the children. It awarded the parties joint
legal custody, with tie-breaking authority to Father. The trial judge commented, during her
oral ruling: “I do think [Mother] needs to have a lot more access to the children than what
she’s been having.” The court modified the current visitation schedule to allow Mother to
have the children overnight on Tuesdays, and directed Father to also permit Mother to have
“liberal rights to visitation.” The court deferred ruling on the question of child support until
the final merits hearing on the divorce, noting that it did not believe it “really ha[d] enough
information” about the parties’ finances to decide at that time.
In this appeal, Mother takes issue with the court’s award of primary physical custody
to Father, and argues that the court based its ruling on incorrect credibility determinations.
Mother contends that the court erred in its assessment of the credibility of, and weight to
give, the testimony of Father, and the report and testimony of the custody evaluator. Mother
further asserts that the court “erred in [its] findings and conclusions regarding” Darryl
Hooker, a friend of Mother’s who was sometimes present in her home. Mother further
claims that the court erred by “entering a vague custody order” regarding her “liberal rights
to visitation.” Mother complains that the trial court abused its discretion in awarding legal
custody tie-breaking authority to Father. Finally, Mother contends that the court both erred
4
and abused its discretion by deferring the child-support determination until the merits of the
divorce were heard.
STANDARD OF REVIEW
In the case of Baldwin v. Baynard, 215 Md. App. 82 (2013), we summarized the
standards of review applicable to an appeal concerning child custody determinations:
[We review] child custody determinations utilizing three interrelated standards
of review. In re Yve S., 373 Md. 551, 586, 819 A.2d 1030 (2003). The Court
of Appeals described the three interrelated standards as follows:
We point out three distinct aspects of review in child custody
disputes. When the appellate court scrutinizes factual findings,
the clearly erroneous standard of [Rule 8–131(c)] applies.
[Second,] if it appears that the [court] erred as to matters of law,
further proceedings in the trial court will ordinarily be required
unless the error is determined to be harmless. Finally, when the
appellate court views the ultimate conclusion of the [court]
founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the [court's] decision
should be disturbed only if there has been a clear abuse of
discretion.
Id. at 586, 819 A.2d 1030. In our review, we give “due regard ... to the
opportunity of the lower court to judge the credibility of the witnesses.” Id. at
584, 819 A.2d 1030. We recognize that “it is within the sound discretion of the
[trial court] to award custody according to the exigencies of each case, and ...
a reviewing court may interfere with such a determination only on a clear
showing of abuse of that discretion. Such broad discretion is vested in the [trial
court] because only [the trial judge] sees the witnesses and the parties, hears
the testimony, and has the opportunity to speak with the child; he is in a far
better position than is an appellate court, which has only a cold record before
it, to weigh the evidence and determine what disposition will best promote the
welfare of the minor.” Id. at 585–86, 819 A.2d 1030.
Baldwin, 215 Md. App. at 104-05.
5
“This Court may not set aside the factual findings of the chancellor unless they are
clearly erroneous, and absent a clear showing of abuse of discretion, the decision of a trial
judge in a custody case will not be reversed.” Montgomery County Dep’t of Social Services
v. Sanders, 38 Md. App. 406, 419 (1978) (internal citations omitted). Deference is owed by
a reviewing court to the ability of the trial court to view the witnesses and assess credibility.
Id. at 418-19. “Particularly important in custody cases is the trial court's opportunity to
observe the demeanor and the credibility of the parties and witnesses.” Petrini v. Petrini, 336
Md. 453, 470 (1994).
Our review is additionally guided by Maryland Rule 8-131(c):
When an action has been tried without a jury, the appellate court will review
the case on both the law and the evidence. It will not set aside the judgment
of the trial court on the evidence unless clearly erroneous, and will give due
regard to the opportunity of the trial court to judge the credibility of the
witnesses.
(Emphasis added.) This Rule applies to child custody matters, as we made plain in Viamonte
v. Viamonte, 131 Md. App. 151 (2000), a case in which we also noted:
On the ultimate issue of which party gets custody — the application of law to
the facts — we will set aside a judgment only on a clear showing that the
chancellor abused [her] discretion. [Davis v. Davis, 280 Md. 119] at 125, 372
A.2d 231 [(1977)].
Such broad discretion is vested in the chancellor because only
[s]he sees the witnesses and the parties, hears the testimony, and
has the opportunity to speak with the child; [s]he is in a far
better position than the appellate court, which has only a cold
record before it, to weigh the evidence and determine what
disposition will best promote the welfare of the minor.
6
Id. Such deference is necessary, lest we spend judicial resources
second-guessing the chancellor's every decision.
Viamonte, 131 Md. App. at 158.
DISCUSSION
I. The court’s credibility determinations are entitled to deference
The thrust of Mother’s arguments in support of her first group of issues presented is
that the trial court gave inadequate weight to the testimony of the custody evaluator, and gave
unwarranted weight to Father’s testimony and evidence. As we noted in Viamonte, supra,
however, an appellate court does not “second-guess[ ] the chancellor’s every decision.” In
its ruling in this case, the court thoroughly explained its reasons for its more favorable view
of evidence which supported joint legal custody with Father having primary physical custody.
Although the court declined to adopt the evaluator’s recommendation on custody, the court
expressly stated: “I reviewed Ms. Elkinson’s report several times.”
One focus of the custody evaluator’s negative view of Father was Father’s elevated
concern for the daughter’s vaginal hygiene. Father testified that he had concerns about the
children’s hygiene when they would return from visits with their Mother. The parties’ nanny,
Megan Ohmart, provided some corroboration for Father’s testimony on this point when she
testified that the children would sometimes return from a weekend visit with Mother wearing
the same clothes they had been wearing at the start of the visit, three days prior.2 Father
2
Although the transcripts indicate that the nanny’s last name is spelled “Omart,” and
(continued...)
7
testified that there was an instance in which his daughter returned from a visit to her
Mother’s with soreness and a yeasty discharge in her vagina, and Father cleaned it with a Qtip. He then took a photograph of the child’s vagina “[t]o show documentation of the
condition she came back” in. Father testified that the child was not aware he was taking a
photograph and that he shared the photograph only with his own attorneys. Father further
asserted that he had used a Q-tip to clean the child in this manner only twice — on the
instance in question, and “once prior when she was a lot smaller.”
Prior to trial, the parties had been required to be evaluated by a court-appointed
custody evaluator, Audrey Elkinson. During Father’s intake interview, in the course of
describing his concerns about the children’s hygiene while visiting their Mother, Father told
Ms. Elkinson about having to clean the child’s vagina with a Q-tip and having taken a
photograph to document it. Ms. Elkinson asked for the photograph, which led to Father
being reported to Child Protective Services for alleged sexual abuse. Following an
investigation by CPS, sexual child abuse was “ruled out” based on Father’s lack of prurient
intent, and Father was counseled on using a different brand of soap — and not a Q-tip — to
clean his daughter. Despite the CPS investigation having determined that Father had not
committed sexual child abuse against his daughter, the Q-tip usage was highlighted in Ms.
2
(...continued)
that is how the custody evaluator spelled her name in the custody evaluator’s report, Megan
Ohmart spelled her own last name on the record at trial as “Ohmart,” and that is the spelling
we will use.
8
Elkinson’s report and testimony. She testified “[t]hat’s my major concern” when asked about
any actions of Father which she considered “harmful to the children.”3
Ms. Elkinson recommended in her evaluation report that Mother be granted sole
physical and legal custody, with limited visitation permitted for Father, consisting of four
hours every other Saturday and four hours every other Sunday. In other words, Ms. Elkinson
recommended that the children be removed from the physical custody of their Father — with
whom they had resided at the marital home since Mother moved out — and placed in the
sole physical custody of Mother, who lived in a home Ms. Elkinson never visited in
Washington, D.C. This major change recommended by the evaluator may explain the trial
judge’s comment that the evaluator “seemed to . . . not really look at all of the positive
aspects as well as the negative aspects in a balanced way.” Ms. Elkinson observed Mother
with the children on one occasion, for an hour at a playground. Ms. Elkinson conceded in
her testimony that she “did not see a more accurate slice of life” with Mother than she did
during her two dinnertime visits to Father’s home. In her report, Ms. Elkinson was critical
of the parties’ son having eaten with his hands on one of her visits to Father’s home, but
conceded that her interview with Mother’s brother revealed that the children ate with their
hands at Mother’s house, too. Only the incident at Father’s house made it into the evaluator’s
report, however. As noted, in her testimony, Ms. Elkinson identified the Q-tip issue her
3
Although Mother argues in her Reply Brief that the trial court failed to fulfill its
obligation to make a specific finding under FL § 9-101 relative to child abuse, Mother
concedes that this argument was not made to the trial judge. It is not preserved.
9
“major concern” in the case regarding Father’s harmful conduct, and she indicated in her
report that she believed the child’s statements — and disbelieved Father’s denials — that Qtip usage was ongoing.
Another aspect of Ms. Elkinson’s testimony that caused the court to question the
evaluator’s objectivity was Ms. Elkinson’s negative comments about the parties’ nanny,
Megan Ohmart. Ms. Elkinson told the court: “I did not find [Ms. Ohmart] to be credible.”
But, after the judge heard Ms. Ohmart testify, the court did find Ms. Ohmart a credible
witness, whose testimony was more convincing on some issues than Ms. Elkinson’s
evaluation.
The court noted that the parties’ nanny had both positive and negative things to say
about both parties. Ms. Ohmart acted as the children’s live-in nanny from January until July
2013. She testified about strengths and weaknesses of both parents, and about the children
generally. The court was within its discretion to find that Ms. Ohmart was a credible witness,
and to reject Ms. Elkinson’s opinion that Ms. Ohmart was not credible.
Although Ms. Elkinson expressed little concern about the unusual circumstances
under which Ms. Ohmart was hired by Mother, the court found that the incident “did not
show very good decision making on [Mother’s] part.” While Father and the children were
out of town for a Christmas vacation at the end of 2012, Mother hired Ms. Ohmart from a
Craigslist ad, without performing a criminal background check or ascertaining whether and
to what extent Ms. Ohmart had nannying experience, and Mother moved her into Father’s
10
home without ever consulting Father. When Father and the children returned home from a
Christmas visit to Ohio, they were surprised to find someone they had never met living in
their house. Ms. Ohmart testified that she was not aware that the owner of the house into
which she had moved, at Mother’s urging, was not aware that she had been hired as a nanny
to the children, and that she and Father had “quite the awkward interaction at that point.”
Father did subsequently verify Ms. Ohmart’s references and perform a background check,
and let her stay on as nanny for a period that ended up being over six months.
Mother’s subcontentions on the credibility issue include assertions that the trial court
“err[ed] in limiting the custody evaluator’s testimony” and that it “erred in [its] findings and
conclusions regarding Darryl Hooker,” who did not testify, but who was discussed in Ms.
Elkinson’s report. As to the former, Mother contends that the court “erred” in “refusing to
permit Ms. Elkinson to testify as to the impact of [Father’s] vaginal cleaning on [the parties’
daughter].” The colloquy giving rise to this contention was as follows:
[BY MOTHER’S COUNSEL]:Do you have any concerns about [Father’s] —
what he says is care for [the parties’ daughter’s] genitalia and how it might
impact [the parties’ daughter]?
[BY MS. ELKINSON]:
Q
I do.
And what are those concerns?
[BY FATHER’S COUNSEL]: Your honor, I’m going to object to the basis of
her expressing concerns about, you know, how she feels this, you know, the
cleaning that may or may not be happening may or may not impact the child.
It’s all very speculative at this point and she’s — hasn’t been made an expert
in child development. So I don’t see that she can really speak to this.
11
[BY THE COURT]: I’m going to sustain.
[BY MOTHER’S COUNSEL]: Well, your honor, these are the things that
she relied upon in forming the basis of her report. I can move on now.
[BY THE COURT]: Well, but the thing is, though, is that if this was reported
to CPS and they ruled out any type of abuse and they’re the experts in that, and
I don’t see how — [Ms. Elkinson]’s not an expert in child development or —
so at this point I’m going to sustain the objection.
[BY MOTHER’S COUNSEL]:
...
Let me move on to some other questions.
(Emphasis added.)
On appeal, Mother argues that the court erred in “refusing” to permit Ms. Elkinson
to testify to her “concerns” in this regard. In the brief, Mother asserts that the fact “[t]hat
Elkinson was not specifically qualified as an expert on child development was an insufficient
reason for excluding this testimony.” But this argument does not appear in the above-quoted
colloquy; if anything, the most Mother argued at trial was that, because Ms. Elkinson “relied
upon” certain things “in forming the basis of her report,” she should have been allowed to
opine as to the “impact” of something that Father insisted was not happening.
But, regardless, the evaluator’s opinion on this point was included in her report, which
the court read several times.4 In her report, Ms. Elkinson stated:
[Daughter] reported to both her mother and the evaluator that her father
continues to regularly clean her vaginal area with a Q-tip. She appears to be
4
Moreover, Ms. Elkinson was not offered as, or recognized by the court to be, an
expert in child development. Consequently, it was not error for the court to conclude that her
opinion regarding child development would not assist the court in understanding the
evidence. See Maryland Rule 5-702.
12
a credible historian. At five years old, she would be too young to remember
such details if they were told to her by someone else and maintain a lie.
[Father] denied he is still cleaning [Daughter]’s vaginal area, although the
child reports it is still happening. It is hard to understand why, after [Father]
met with staff at Child Welfare, which included Dr. Shukat, a national expert
in child sexual abuse, who provided recommendations and specifically told
him to stop cleaning his daughter’s vagina with a Q-tip, that he is still doing
this. It is not normal behavior and does not seem to make sense. It is unclear
whether his inability to comply with specific directions might be a function of
his disabilities. The obsessive-compulsive type of behavior may be related to
[Father]’s mental health issues, reflecting symptoms of anxiety and depression.
If in fact he is he is actually conducting such behavior with [Daughter], his
denial is of concern as it suggests an attempt to “cover-up” and
acknowledgement that he has been practicing unacceptable behavior.
Even if there is no intent to such behavior, and [Father] does not derive sexual
gratification from cleaning [Daughter]’s vagina with a Q-tip, as deemed by
Child Welfare Services, the experience of trauma inflicted on [Daughter] is the
same. Consequentially, if [Daughter] found herself in a situation faced by the
potential for sexual abuse, she would be less able to assess the dangers based
on her real life experiences. [Daughter] is at risk for experiencing any of the
physical or emotional consequences associated with sexual abuse, such as:
depression, anxiety, sexual or relationship problems, and dissociation.
Similarly, with respect to Mother’s effort to have Ms. Elkinson express expert
opinions about Father’s PTSD and the GAF assessment performed by the Department of
Veteran’s Affairs, the court specifically refused to accept Ms. Elkinson as an expert in post
traumatic stress disorder. Despite this ruling, Mother’s counsel sought to elicit expert
testimony from Ms. Elkinson about a Global Assessment of Functioning performed on
Father. When Father’s counsel objected that Ms. Elkinson should not be permitted to testify
about “the meaning of this test,” which was not discussed in the evaluator’s written report,
the trial court sustained the objection, but did not strike any testimony. Given the trial court’s
13
ruling that Ms. Elkinson was not an expert in post traumatic stress disorder, we perceive no
abuse of discretion in the court’s ruling sustaining the objection to expert testimony about
an assessment that was performed in connection with the disability rating that was made by
the Department of Veterans Affairs. We see no merit in this argument.
We are also mindful of what this Court said in Walker v. Grow, 170 Md. App. 255,
276 (2006):
Even if a witness is qualified as an expert, the fact finder need not accept the
expert’s opinion. To the contrary, “‘an expert's opinion is of no greater
probative value than the soundness of his [or her] reasons given therefor will
warrant.’” Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447 (1970)
(quoting Miller v. Abrahams, 239 Md. 263, 273, 211 A.2d 309 (1965)). The
weight to be given the expert’s testimony is a question for the fact finder. “The
trier of fact may believe or disbelieve, accredit or disregard, any evidence
introduced. We may not — and obviously could not — decide upon an
appeal how much weight must be given, as a minimum to each item of
evidence.” Great Coastal Express, Inc. v. Schruefer, 34 Md.App. 706, 725,
369 A.2d 118 (1977) (citations omitted). Accord Edsall v. Huffaker, 159
Md.App. 337, 342, 859 A.2d 274 (2004).
(Emphasis added.)
Mother also argues in her brief that the trial court “erred in her findings and
conclusions regarding Darryl Hooker.” This contention appears to relate to one basis the trial
court offered for not relying upon Ms. Elkinson’s recommendation as heavily as Mother
believes the court should have. In this regard, the trial court, in its oral ruling, stated:
[BY THE COURT]:
You know, I was struck by the fact that Ms.
Elkinson kept harping on [Father’s] poor decision making when, you
know, both sides had made poor decisions in this case. I mean, certainly,
[Mother] bringing Ms. Ohmart into the home not no [sic] mention that she
acknowledged that she did not let [Father] know that she was bringing — I
14
can’t imagine how Ms. Ohmart felt when she comes out of her room and is
confronted by [Father] and how [Father] felt when Ms. Ohmart comes out of
her room and he’s confronted with a stranger in his house. I thought he was
very credible when he testified about his shock when that happened. And Ms.
Ohmart was very credible as well when she testified about how shocked she
was.
I don’t really know why [Mother] would have made that decision. To
me that did not show very good decision making on her part. I also felt that
the way the kids testified about Mr. Hooker, and the fact that he’s in the house.
[The parties’ son] telling Ms. Elkinson, you know, “My mom and Mr. Hooker
is going to make meals for us.” To me that implies much more familiarity.
That even if it’s not a sexual relationship, it’s still a relationship. And Ms.
Elkinson didn’t even touch upon whether or not that is a good idea to, when
you have your child, you’re breaking up with the child’s father to all of a
sudden introduce another male into the mix and whether that could affect, you
know, because, certainly, [the parties’ daughter] and her drawing talked about
Mr. Hooker being there and. You know, so there’s just a lot of this murkiness,
I think, in this evidence as to both parents. I think, both parents have strengths
and both parents have weaknesses.
(Emphasis added.)
Mr. Hooker did not testify. He was mentioned in Ms. Elkinson’s report and in her
testimony. He was described as one of the three persons shown in a drawing of the family
by the daughter. The court’s comment, quoted above, about Mr. Hooker’s presence in
Mother’s house clearly played no material role in the custody ruling, and, even if it was
inaccurate to characterize Mr. Hooker’s involvement as the “sudden introduc[tion]” of
“another male into the mix,” it was not error to find that he had a relationship with Mother
and had a level of familiarity that made a strong impression upon the daughter. Mother’s
appellate contention in this regard again asks this court to second-guess the trial court
regarding the weight of the evidence, which we will not do.
15
Mother also directs our attention to a number of conflicting statements made by
Father, and she urges us to conclude that the “trial court erred in finding Mr. Johnson’s
testimony credible.” The argument misapprehends our role as an appellate court. The
evaluation of the credibility of witnesses and the weight to be accorded their testimony is
quintessentially the function of a trial court. On appeal, we must consider all evidence in the
record and all inferences therefrom in a light most favorable to the prevailing party. The fact
that there may be some evidence in the record that does not support the trial judge’s findings
of fact is of no consequence on appeal if there is any evidence in the record that supports the
trial judge’s conclusion when viewed in a light most favorable to the prevailing party. The
alleged contradictions highlighted by Mother in her brief do not establish that the trial court’s
findings were clearly erroneous.
Finally, Mother asserts that the judge erred in stating, during the oral ruling, “I don’t
agree that Mr. Johnson’s judgment is impaired. I don’t think there was any evidence that was
presented as to that.” This comment, made during the course of an oral opinion that fills 20
pages of transcript, was not a clearly erroneous finding of fact even if it was hyperbole to say
that there was not “any evidence presented as to that.” In context, it is clear to us that the
court was simply finding unpersuasive the evidence Mother relied upon to support her claim
that Father’s mental condition should disqualify him from continuing to have primary
physical custody of the children. Such a view of the evidence was not clearly erroneous.
16
II. The court’s custody determinations were not an abuse of discretion
As the Court of Appeals noted in Taylor v. Taylor, 306 Md. 290, 303 (1986):
[I]n any child custody case, the paramount concern is the best interest of the
child. As Judge Orth pointed out for the Court in Ross v. Hoffman, 280 Md.
172, 175 n.1 (1977), we have variously characterized this standard as being “of
transcendent importance” and the “sole question.” The best interest of the
child is therefore not considered as one of many factors, but as the objective
to which virtually all other factors speak.
In Montgomery County v. Sanders, 38 Md. App. 406 (1977), our predecessors noted
that, in matters of child custody, a chancellor’s determination of a child’s best interests often
requires judicial prognostication:
Unfortunately, there is no litmus paper test that provides a quick and
relatively easy answer to custody matters. Present methods for determining a
child's best interest are time-consuming, involve a multitude of intangible
factors that ofttimes are ambiguous. The best interest standard is an amorphous
notion, varying with each individual case, and resulting in its being open to
attack as little more than judicial prognostication. The fact finder is called
upon to evaluate the child's life chances in each of the homes competing for
custody and then to predict with whom the child will be better off in the future.
At the bottom line, what is in the child's best interest equals the fact finder's
best guess.
What critics of the “judicial prognostication” overlook is that the court
examines numerous factors and weighs the advantages and disadvantages of
the alternative environments. See Chapsky v. Wood, 26 Kan. at 655, 40
Am.Rep. at 325. The court's prediction is founded upon far more complex
methods than reading tea leaves. The criteria for judicial determination
includes, but is not limited to, 1) fitness of the parents, Cornwell v. Cornwell,
244 Md. 674, 224 A.2d 870 (1966); Barnard v. Godfrey, 157 Md. 264, 145 A.
614 (1929); 2) character and reputation of the parties, Hoder v. Hoder, 245
Md. 705, 227 A.2d 750 (1967); 3) desire of the natural parents and agreements
between the parties, Breault v. Breault, 250 Md. 173, 242 A.2d 116 (1968);
McClary v. Follett, 226 Md. 436, 174 A.2d 66 (1961); Colburn v. Colburn, 20
Md.App. 346, 316 A.2d 283 (1974); Davis v. Jurney, 145 A.2d 846
17
(D.C.Mun.App.1958); 4) potentiality of maintaining natural family relations,
Lippy v. Breidenstein, 249 Md. 415, 240 A.2d 251 (1968); Melton v. Connolly,
supra; Piotrowski v. State, 179 Md. 377, 18 A.2d 199 (1941); 5) preference of
the child, Ross v. Pick, 199 Md. at 353, 86 A.2d at 469; Young v. Weaver, 185
Md. 328, 44 A.2d 748 (1945); United States v. Green, 26 Fed.Cas. No. 15256,
pp. 30, 31-32 (C.C.R.I.1824); 6) material opportunities affecting the future life
of the child, Thumma v. Hartsook, supra; Butler v. Perry, supra; Cockerham
v. The Children's Aid Soc'y of Cecil County, 185 Md. 97, 43 A.2d 197 (1945);
Jones v. Stockett, 2 Bland. 409 (Ch.1838); 7) age, health and sex of the child,
Alden v. Alden, 226 Md. 622, 174 A.2d 793 (1961); Cullotta v. Cullotta, 193
Md. 374, 66 A.2d 919 (1949); Piotrowski v. State, supra; 8) residences of
parents and opportunity for visitation, Rzeszotarski v. Rzeszotarski, 296 A.2d
431, 440 (D.C.App.1972); 9) length of separation from the natural parents,
Ross v. Hoffman, supra; Melton v. Connolly, supra; Powers v. Hadden, 30
Md.App. 577, 353 A.2d 641 (1976); and 10) prior voluntary abandonment or
surrender, Dietrich v. Anderson, supra; Davis v. Jurney, supra.
Id. at 419-20.
With respect to joint legal custody, the Court of Appeals, in Taylor v. Taylor, 306 Md.
290 (1986), held that “the authority to grant joint custody is an integral part of the broad and
inherent authority of a court exercising its equitable powers to determine child custody.” Id.
at 298. The Taylor Court also identified several factors for a trial court to consider when
tasked with determining custody. The Court described these as “the major factors that should
be considered in determining whether joint custody is appropriate,” but it also “recognize[d]
that none has talismanic qualities, and that no single list of criteria will satisfy the demands
of every case.” Id. at 303.
The so-called “Taylor factors” are: 1) capacity of the parents to communicate and to
reach shared decisions affecting the child’s welfare; 2) willingness of parents to share
custody; 3) fitness of parents; 4) relationship established between the child and each parent;
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5) preference of the child; 6) potential disruption of the child’s school and social life; 7)
geographic proximity of parental homes; 8) demands of parental employment; 9) age and
number of children; 10) sincerity of parents’ request; 11) financial status of the parents; 12)
impact on State or Federal assistance; 13) benefit to parents; and 14) other factors. Id. at
304-11.
Here, the trial court gave consideration to the relevant factors and Mother does not
claim otherwise in her brief. Rather, Mother’s principal argument in support of her
contention that the court abused its discretion in its custody award in favor of Father is that
the court erred in its credibility findings and the weight it gave the evidence in the record.
As discussed at length above, however, an appellate court does not second-guess a trial
court’s credibility determinations or its evaluations of the evidence. We detect no abuse of
discretion in the trial court’s award to Father of primary physical custody and tie-breaking
authority should an impasse arise in the parties’ joint legal custody.
Mother also asserts in her brief that the court “erred in entering a vague custody
order,” but Mother does not represent that an actual controversy has arisen between the
parties regarding differing interpretations of the custody order. It appears that the trial court
was not asked in any post-judgment motion to make the visitation schedule less vague.
Unless we were to strike the language that Mother considers overly vague, there is no way
that we could clarify on appeal what the trial judge intended. Until the trial court has been
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asked to resolve an actual dispute about the amount of unscheduled visitation Father allows
Mother to have, there is no controversy about this point which is ripe for appellate review.
III.
The trial court neither erred nor abused its discretion in deferring
on the child-support issue
At the conclusion of the court’s oral opinion, the following colloquy occurred between
the trial court and Mother’s counsel:
[BY THE COURT]: . . . All right? Any other questions?
[BY MOTHER’S COUNSEL]: Just child support, your honor. Are we
going to maintain the current amount until the court can decide that?
[THE COURT]: Well, I think, with the child support, I mean, there was a
sworn testimony about the tenant. But I don’t think that I — because I went
back through my notes and that’s why I asked about the financial statement.
I don’t know what the mortgage is. You know, I don’t know — I mean,
usually, for a child support, you have a little bit more financial
information. I didn’t really get that much from either side. And we could
have a further hearing if you can’t work that out or you could just submit.
I mean if you are in agreement that — because the amount of money
that [Father] made from his real estate isn’t very much. But if that’s included
in this income — I mean, I don’t know. I don’t know what your position is.
And he did say that he has and still continued to do that a little. I don’t think
I have enough information to really decide. And I think, actually, this was
really set more — I think this was just a custody case. I don’t think it was
child support. But if it is child support, then I would just defer it to the final
[hearing on the merits]. And then, hopefully, at that point the judge will have
a lot more information about the parties’ financial situation. And I think, we’ll
be able to make more of a decision.
(Emphasis added.)
No objection was lodged to the court’s statement that it did not feel it had enough
financial information to decide on child support at that time and that it would defer the
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question until the final merits hearing on the divorce. Nevertheless, on appeal, Mother
contends that the trial court “erred and abused its discretion in deferring the calculation of
child support to the divorce merits hearing.”
Father asks this Court to dismiss Mother’s appeal on this point because it is now moot,
was not a final ruling by the court, and, in the alternative, that any error was harmless. Father
represents in his brief:
Approximately six months after the custody trial, the trial court entered
the Judgment of Absolute Divorce on May 28, 2014, which incorporated, but
did not merge, the parties’ Separation and Property Settlement Agreement
(“Agreement”). The Agreement contained an agreement regarding child
support whereby [Mother] would pay [Father] $700 per month in child
support, commencing on June 1, 2014. The Agreement does not account for
any retroactive child support or adjustments; it is a reasonable assumption that
the parties waived any claim for credit of retroactive support for the period of
November 2013 through June 2014, as the circuit court case is now closed.
Father included the Agreement in the appendix to his brief.
In her Reply Brief in this Court, Mother argues that the appeal as to this issue is not
moot because, she asserts, between the entry of the trial court’s order in this matter on
March 11, 2014, and the date of the execution of the Agreement on May 5, 2014, Mother
“overpaid child support.” Therefore, Mother argues, this Court “can afford relief including
but not limited to a modification of the support award” to account for the period of time
between March 11, 2014, and May 5, 2014.
The Agreement of May 5, 2014, is silent as to any overpayment issue. The first page
of the Agreement recites that it was the “desire of the parties hereto to adjust, terminate and
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make a full and complete settlement of all matters relating to the . . . financial obligations
arising out of their marital relationship. . . .” It was “THEREFORE, agreed . . . in full,
complete and final settlement of any interest whatsoever of each party in the property, estate
or interest of the other,” that they would settle all such claims — including child support —
upon the terms set forth in the Agreement. The closing paragraphs of the Agreement
represent that the Agreement “contains the entire understanding between the parties. No
modification or waiver of any of the terms of this Agreement shall be valid unless made in
writing and signed by the parties.” We agree with Father’s assertion that no claim for
reimbursement of child support payments made by Mother prior to May 5, 2014, survived
the execution of the Agreement. We reject Mother’s argument to the contrary.
JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY
COUNTY AFFIRMED. COSTS TO BE
PAID BY APPELLANT.
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